EXHIBIT 4.2(c)
CINEMARK USA, INC.,
THE GUARANTORS PARTIES HERETO
AND
THE BANK OF NEW YORK TRUST COMPANY OF FLORIDA, N.A.
AS TRUSTEE
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SECOND SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 11, 2003
TO
INDENTURE
DATED AS OF AUGUST 15, 1996
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9-5/8% SERIES A AND SERIES B SENIOR SUBORDINATED NOTES DUE 2008
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"),
dated as of February 11, 2003, is among Cinemark USA, Inc., a Texas corporation
(the "COMPANY"), the subsidiary guarantors parties hereto (the "INITIAL
GUARANTORS") and The Bank of New York Trust Company of Florida, N.A., as
successor trustee to U.S. Trust Company of Texas, N.A. under the indenture
referred to below (the "TRUSTEE").
RECITALS
A. The Company and the Trustee executed an indenture, dated as of
August 15, 1996, as amended by that certain First Supplemental Indenture, dated
June 26, 1997 and effective as of August 15, 1996 (as so amended, the
"INDENTURE"), relating to the Company's $200,000,000 of 9-5/8% Series A and
Series B Senior Subordinated Notes due 2008 (the "NOTES").
B. Pursuant to Section 9.1(d) of the Indenture, the Company, when
authorized by a resolution of its Board of Directors, and the Trustee may amend
or supplement the Indenture to make any change that would provide any additional
rights or benefits to the Holders of the Notes.
C. The Company desires and has requested the Trustee to enter into this
Supplemental Indenture to add subsidiary guarantees as permitted by Section
9.1(d) of the Indenture.
D. The Initial Guarantors desire to enter into this Supplemental
Indenture in order to become Guarantors under the Indenture, as amended by this
Supplemental Indenture.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, the Company,
the Initial Guarantors and the Trustee mutually covenant and agree for the equal
and proportionate benefit of all Holders of the Notes as follows:
ARTICLE ONE
Amendments; Subsidiary Guarantees
Section 1.1 Definitions. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
Section 1.2 Amendments to Indenture.
(a) Section 1.1 of the Indenture is hereby amended to add the following
terms and their respective definitions in proper alphabetical order:
"Guarantors" means each Restricted Subsidiary of the Company that
executes and delivers the Second Supplemental Indenture to this Indenture, dated
as of February 11, 2003, as a guarantor and each other Restricted Subsidiary of
the Company that thereafter guarantees the Notes pursuant to the terms of this
Indenture, and their respective successors and assigns, in each case unless and
until released pursuant to the terms of this Indenture.
"Subsidiary Guarantee" means the guarantee of the obligations of the
Company under this Indenture and the Notes.
(b) Section 1.1 of the Indenture is hereby amended to replace the
existing definition of the term "Senior Indebtedness" with the following:
"Senior Indebtedness" means (i) Indebtedness under the Credit Facility
and (ii) any other Indebtedness of the Company or any Guarantor permitted to be
incurred under the terms of this Indenture, unless the instrument under which
such Indebtedness is incurred provides that it is on a parity with or
subordinated in right of payment to the Notes or the Subsidiary Guarantee, as
the case may be. Notwithstanding anything to the contrary in the foregoing,
Senior Indebtedness will not include (x) the Notes and any guarantees of the
Notes, (y) any Indebtedness of the Company to any of its Subsidiaries or other
Affiliates or of any Guarantor to the Company or any of the Company's
Subsidiaries or other Affiliates, or (z) any Indebtedness that is incurred in
violation of the terms of this Indenture.
(c) Section 4.6 of the Indenture is hereby amended to read in its
entirety as follows:
"Each of the Company and the Guarantors covenants (to the extent that
it may lawfully do so) that it shall not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture; and each of
the Company and each of the Guarantors (to the extent that it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law has been
enacted."
(d) Section 4.7(a)(iii) of the Indenture is hereby amended by deleting
the words "scheduled sinking fund payment, any Indebtedness of the Company that
is pari passu with or subordinated in right of payment to the Notes, other than
a Permitted Investment" and replacing them with the following:
"scheduled sinking fund payment, any Indebtedness of the Company that
is pari passu with or subordinated in right of payment to the Notes or any
Indebtedness of a Guarantor that is subordinated in right of payment to any
Subsidiary Guarantee, in each case other than a Permitted Investment".
(e) Sections 4.7(b)(iii) and (iv) of the Indenture are hereby amended
to read in their entirety as follows:
"(iii) the prepayment, repayment, redemption, defeasance or other
acquisition or retirement for value prior to any scheduled maturity, scheduled
repayment or scheduled sinking fund payment of any Indebtedness that is pari
passu with or subordinated in right of payment to the Notes or that is
subordinated in right of payment to any Subsidiary Guarantee, in exchange for,
or out of the aggregate net proceeds of, a substantially concurrent issuance
(other than to the
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Company or a Restricted Subsidiary) of Capital Stock of the Company or a
Restricted Subsidiary of the Company;"
"(iv) the prepayment, repayment, redemption, defeasance or other
acquisition or retirement for value prior to any scheduled maturity, scheduled
repayment or scheduled sinking fund payment of any Indebtedness that is pari
passu with or subordinated in right of payment to the Notes or that is
subordinated in right of payment to any Subsidiary Guarantee, in exchange for,
or out of the aggregate net proceeds of, a substantially concurrent issuance
(other than to the Company or a Restricted Subsidiary) of Indebtedness of the
Company that is pari passu with or subordinated in right of payment to, the
Notes or Indebtedness of a Guarantor that is subordinated in right of payment to
any Subsidiary Guarantee, but only if the Weighted Average Life and period of
time to Stated Maturity of such new Indebtedness are each greater than the
Weighted Average Life and period of time to Stated Maturity of such retired
Indebtedness; and".
(f) Section 4.9(b)(iv) of the Indenture is hereby amended by deleting
the words "of the Company" therefrom.
(g) Section 4.10(a) of the Indenture is hereby amended by replacing the
portion of the first sentence thereof that follows the words "except to the
extent that" with the following:
"such Net Proceeds have been applied either to (i) the permanent
repayment of principal and interest on Senior Indebtedness of the Company or a
Guarantor or Indebtedness of the Restricted Subsidiary of the Company that is
not a Guarantor that made such Asset Disposition or to (ii) the purchase of
assets or businesses in the same line of business as the Company and its
Restricted Subsidiaries or assets incidental thereto."
(h) Section 4.13 of the Indenture is hereby amended to read in its
entirety as follows:
"The Company and the Guarantors will not incur, create, issue,
assume, guarantee or otherwise become liable for any Indebtedness that
is subordinate or junior in right of payment to any Senior Indebtedness
of the Company or the Guarantors, as the case may be, but senior in any
respect in right of payment to the Notes or the Subsidiary Guarantees,
as the case may be."
(i) The Indenture is hereby amended by adding Section 4.17 entitled
"Additional Subsidiary Guarantors" and which reads in its entirety as follows:
"The Company shall cause its Restricted Subsidiaries to comply with
Section 12.6 of this Indenture."
(j) Section 6.1 of the Indenture is hereby amended as follows:
(i) by deleting the word "or" at the end of paragraph (f);
(ii) by deleting the "." at the end of paragraph (g) and
inserting "; or" in place thereof; and
(iii) by adding a new paragraph (h) as follows:
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"(h) except as permitted by this Indenture, any Subsidiary
Guarantee shall be held in any judicial proceeding to be unenforceable
or invalid or shall cease for any reason to be in full force and effect
or any Guarantor, or any Person acting on behalf of any Guarantor,
shall deny or disaffirm its obligations under its Subsidiary
Guarantee."
(k) Section 6.2 of the Indenture is hereby amended by replacing the
reference in the first sentence thereof to "clauses (a), (b), (c), (d) or (g)"
with the following:
"clauses (a), (b), (c), (d), (g) or (h)".
(l) Section 8.2 of the Indenture is hereby amended to read in its
entirety as follows:
"Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.2, the Company shall be deemed to
have been discharged from its obligations with respect to all
outstanding Notes and this Indenture and the Guarantors shall be deemed
to have been discharged from their obligations with respect to this
Indenture, subject to the satisfaction of the conditions set forth in
Section 8.4 hereof, on the date the conditions set forth below are
satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding
Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.6 hereof and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied all
its other obligations under such Notes and this Indenture (and the
Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following
provisions which shall survive until otherwise terminated or discharged
pursuant to this Indenture: (a) the rights of Holders of outstanding
Notes to receive solely from the trust fund described in Section 8.4
hereof, and as more fully set forth in such Section, payments in
respect of the principal of, and premium, if any, and interest on, such
Notes when such payments are due, (b) the Company's obligations with
respect to such Notes under Article 2 and Section 4.2 hereof, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder
and the Company's and the Guarantors' obligations in connection
therewith and (d) this Article 8. Subject to compliance with this
Article 8, the Company may exercise its option under this Section 8.2
notwithstanding the prior exercise of its option under Section 8.3
hereof."
(m) Section 8.3 of the Indenture is hereby amended by replacing the
first sentence thereof with the following:
"Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, and subject to the satisfaction
of the conditions set forth in Section 8.4 hereof, the Company and the
Guarantors shall be released from their obligations under the covenants
contained in Sections 4.4, 4.5, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13,
4.14, 4.15, 4.16, 4.17, 5.1, and 5.2 and Article 12 on and after the
date the conditions set forth below are satisfied (hereinafter,
"COVENANT DEFEASANCE"), and the Notes shall thereafter be deemed not
"outstanding" for the purposes of any direction, waiver, consent or
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declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood
that such Notes shall not be deemed outstanding for accounting
purposes)."
(n) Section 8.5 of the Indenture is hereby amended by replacing the
proviso at the end of such section with the following:
"provided that the Company or any Guarantor's obligations with
respect to the payment of principal, premium, if any, and interest will
not terminate until the same shall apply the moneys so deposited to the
payment to the Holders of Notes of all sums due and to become due
thereon."
(o) Section 8.8 of the Indenture is hereby amended to read in its
entirety as follows:
If the Trustee or Paying Agent is unable to apply any United
States dollars or U.S. Government Obligations in accordance with
Section 8.2, 8.3 or 8.5 hereof, as the case may be, by reason of any
order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Notes, and any
Guarantor's obligations under this Indenture, shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.2,
8.3 or 8.5 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such assets in accordance with Section 8.2, 8.3
or 8.5 hereof, as the case may be; provided, however, that, if the
Company makes any payment of principal of, or premium, if any, or
interest on, any Note following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such
Notes to receive such payment from the money held by the Trustee or
Paying Agent.
(p) Section 9.1 of the Indenture is hereby amended as follows:
(i) by replacing the introductory sentence to read
as follows:
"Notwithstanding Section 9.2 of this Indenture, the
Company, the Guarantors and the Trustee may amend or
supplement this Indenture without the consent of any Holder:";
(ii) by amending paragraph (c) to read in its
entirety as follows:
"to provide for the assumption of the Company's or a
Guarantor's obligations to the Holders of Notes in the case of
a merger or consolidation;";
(iii) by deleting the word "or" at the end of
paragraph (d);
(iv) by deleting the "." at the end of paragraph (e)
and inserting "; or" in place thereof;
(v) by adding a new paragraph (f) as follows:
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"(f) to add additional Guarantors with
respect to the Notes."; and
(vi) by deleting the words "the Trustee shall join
with the Company" in the last paragraph thereof and replacing
such words with the following:
"the Trustee shall join with the Company and the
Guarantors".
(q) Section 9.2 of the Indenture is hereby amended as follows:
(i) by deleting the words "the Trustee shall join
with the Company" in the second paragraph thereof and
replacing such words with the following:
"the Trustee shall join with the Company and the
Guarantors";
(ii) by deleting the words "compliance in a
particular instance by the Company" in the fourth paragraph
thereof and replacing such words with the following:
"compliance in a particular instance by the Company
or the Guarantors";
(iii) by deleting the word "or" at the end of clause
(g);
(iv) by adding a new clause (h) as follows:
"(h) release any Guarantor from any of its
obligations under this Indenture, except in
accordance with the terms of this Indenture; or"; and
(v) by redesignating clause (h) as clause (i).
(r) Section 9.4 of the Indenture is hereby amended by replacing the
reference in the last paragraph thereof to "clauses (a) through (h)" with the
following:
"clauses (a) through (i)".
(s) Article 10 of the Indenture is hereby amended by replacing all
references to "Senior Indebtedness" contained therein with "Senior Indebtedness
of the Company".
(t) Section 11.2 of the Indenture is hereby amended as follows:
(i) the Company's contact information is hereby
revised to read as follows:
Cinemark USA, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel;
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(ii) the Trustee's contact information is hereby
revised to read as follows:
The Bank of New York Trust Company of Florida, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President;
(iii) by adding the following after the provision for
copies to Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.:
"If to any Guarantor: c/o the Company, at the address
noted above, with a copy as noted."; and
(iv) by replacing the second paragraph thereof with
the following:
"The Company, any Guarantor or the Trustee, by notice
to the other, may designate additional or different addresses
for subsequent notices or communications."
(u) Section 11.7 of the Indenture is hereby revised to read in its
entirety as follows:
"No past, present or future director, officer, employee, agent,
manager, incorporator, stockholder or other Affiliate of the Company or any
Guarantor, as such, shall have any liability for any obligations of the Company
or any Guarantor under any of the Notes or this Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes."
(v) Section 11.10 of the Indenture is hereby revised to read in its
entirety as follows:
"This Indenture shall inure to the benefit of and be binding upon the
parties hereto and each of their respective successors and assigns, except that
the Company may not assign this Indenture or its obligations hereunder except as
expressly permitted by Sections 5.1 and 5.2 and each of the Guarantors may not
assign this Indenture, the Subsidiary Guarantee or its obligations hereunder
except as expressly permitted by Section 12.4. Without limiting the generality
of the foregoing, this Indenture shall inure to the benefit of all Holders from
time to time. Except as set forth in Article 10 and Section 12.2, nothing
expressed or mentioned in this Indenture is intended or shall be construed to
give any Person, other than the parties hereto, their respective successors and
assigns, and the Holders, any legal or equitable right, remedy or claim under or
in respect of this Indenture or any provision herein contained."
(w) The following is hereby added as Article 12 of the Indenture:
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ARTICLE 12
SUBSIDIARY GUARANTEES
SECTION 12.1 GUARANTEE.
Subject to this Article 12, each of the Guarantors hereby, jointly and
severally, unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes or
the obligations of the Company hereunder or thereunder, that: (a) the principal
of, premium, if any, and interest on the Notes will be promptly paid in full
when due, whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of, premium, and interest on the Notes, if
any, if lawful, and all other obligations of the Company to the Holders or the
Trustee hereunder or thereunder will be promptly paid in full or performed, all
in accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same immediately.
Each Guarantor agrees that this Subsidiary Guarantee is a general unsecured
obligation of such Guarantor and it is a guarantee of payment and not a
guarantee of collection.
The Guarantors hereby agree that their obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that this Subsidiary Guarantee shall not be discharged except by
complete performance of the obligations contained in the Notes and this
Indenture.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors or any custodian, trustee, liquidator or
other similar official acting in relation to either the Company or the
Guarantors, any amount paid by the Company or a Guarantor either to the Trustee
or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Subsidiary Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event
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of any declaration of acceleration of such obligations as provided in Article 6
hereof, such obligations (whether or not due and payable) shall forthwith become
due and payable by the Guarantors for the purpose of this Subsidiary Guarantee.
The Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under this Subsidiary Guarantee.
SECTION 12.2 SUBORDINATION OF SUBSIDIARY GUARANTEE.
The Obligations of each Guarantor under its Subsidiary Guarantee
pursuant to this Article 12 shall be junior and subordinated in right of payment
to the prior payment in full of all the obligations of such Guarantor under its
Senior Indebtedness (including any guarantees constituting Senior Indebtedness
and any Designated Senior Indebtedness of such Guarantor) on the same basis as
the Notes are junior and subordinated to Senior Indebtedness of the Company. For
the purposes of the foregoing sentence, the Trustee and the Holders shall have
the right to receive and/or retain payments by any of the Guarantors only at
such times as they may receive and/or retain payments in respect of the Notes
pursuant to this Indenture, including Article 10 hereof.
SECTION 12.3 LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Subsidiary
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Subsidiary Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of such Guarantor will be limited to such maximum amount as
will, after giving effect to such maximum amount and all other contingent and
fixed liabilities of such Guarantor that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 12, result in the
obligations of such Guarantor under its Subsidiary Guarantee not constituting a
fraudulent transfer or conveyance.
SECTION 12.4 GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Except as otherwise provided in Section 12.6, a Guarantor may not sell
or otherwise dispose of all or substantially all of its assets to, or
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, other than the Company or another Guarantor,
unless either:
(a) subject to Section 12.6 hereof, the Person acquiring the property
in any such sale or disposition or the Person formed by or surviving any such
consolidation or merger (if other than a Guarantor or the Company) assumes all
the obligations of that Guarantor under the Notes and this Indenture (including
its Subsidiary Guarantee) on the terms set forth herein or therein pursuant to a
supplemental indenture in the form of Exhibit C attached hereto; or
(b) the Net Proceeds of such sale or other disposition are applied in
accordance with the applicable provisions of this Indenture.
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In case of any such consolidation, merger, sale or other disposition
and upon the assumption by the successor Person, by supplemental indenture in
the form of Exhibit C attached hereto, executed and delivered to the Trustee, of
the Subsidiary Guarantee and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Guarantor,
such successor Person shall succeed to and be substituted for the Guarantor with
the same effect as if it had been named herein as a Guarantor. All the
Subsidiary Guarantees so issued shall in all respects have the same legal rank
and benefit under this Indenture as the Subsidiary Guarantees theretofore and
thereafter issued in accordance with the terms of this Indenture as though all
of such Subsidiary Guarantees had been issued at the date of the Second
Supplemental Indenture to this Indenture.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding
clauses (a) and (b) above, nothing contained in this Indenture or in any of the
Notes shall prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor, or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.
SECTION 12.5 RELEASES OF SUBSIDIARY GUARANTEE.
The Subsidiary Guarantee of a Guarantor will be released and the
Guarantor will be relieved of any obligations under the Notes and this
Indenture:
(a) in connection with any sale or other disposition of all or
substantially all of the assets of that Guarantor (including by way of merger or
consolidation) to a Person that is not (either before or after giving effect to
such transaction) a Subsidiary of the Company, if the sale or other disposition
complies with Section 4.10;
(b) in connection with any sale of all of the Capital Stock of a
Guarantor to a Person that is not (either before or after giving effect to such
transaction) a Subsidiary of the Company, if the sale complies with Section
4.10;
(c) if the Company designates any Restricted Subsidiary that is a
Guarantor as an Unrestricted Subsidiary in accordance with the applicable
provisions of this Indenture; or
(d) upon the release, termination or satisfaction of the Guarantor's
guarantee or assumption of certain other Indebtedness under Section 12.6 of this
Indenture.
Upon delivery by the Company to the Trustee of an Officers' Certificate
and an Opinion of Counsel together to the effect that all conditions precedent
set forth in this Section 12.5 to the release of the Subsidiary Guarantee of a
Guarantor have been satisfied, to the extent such conditions can be satisfied as
of such date, the Trustee shall execute any documents reasonably required in
order to evidence the release of any Guarantor from its obligations under its
Subsidiary Guarantee.
Any Guarantor not released from its obligations under its Subsidiary
Guarantee shall remain liable for the full amount of principal of and interest
on the Notes and for the other obligations of any Guarantor under this Indenture
as provided in this Article 12.
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SECTION 12.6 ADDITIONAL SUBSIDIARY GUARANTEES.
If any Restricted Subsidiary of the Company that is not a Guarantor
(the "NEW GUARANTOR") guarantees, assumes or in any other manner becomes liable
with respect to Indebtedness of the Company or any Guarantor (the "OTHER
INDEBTEDNESS"), then the New Guarantor shall, within ten business days of the
date of the New Guarantor's guarantee or assumption of the Other Indebtedness,
execute and deliver to the Trustee a supplemental indenture in the form of
Exhibit C attached hereto pursuant to which the New Guarantor shall become a
Guarantor and guarantee the obligations of the Company under this Indenture and
the Notes. Concurrently with the execution and delivery of such supplemental
indenture, the Company shall deliver to the Trustee an Opinion of Counsel and an
Officers' Certificate to the effect that such supplemental indenture has been
duly authorized, executed and delivered by such New Guarantor, and that, subject
to the application of bankruptcy, insolvency, moratorium, fraudulent conveyance
or transfer or other similar laws relating to creditors' rights generally and to
the principles of equity, whether considered in a proceeding at law or in
equity, and other customary exceptions, such New Guarantor's Subsidiary
Guarantee is a legal, valid and binding obligation of such New Guarantor,
enforceable against such New Guarantor in accordance with its terms and as to
such other matters as the Trustee may reasonably request. Upon the release,
termination or satisfaction of the New Guarantor's guarantee or assumption of
the Other Indebtedness, the New Guarantor's Subsidiary Guarantee shall
automatically be released and terminated. Upon request of the New Guarantor, the
Trustee will provide written evidence of such release and termination.
(x) The Indenture is hereby amended by adding Exhibit C attached hereto
and entitled "Form of Supplemental Indenture" as Exhibit C to the Indenture.
Section 1.3 Amendments to Exhibit A to the Indenture.
Exhibit A to the Indenture is hereby amended as follows:
(a) Paragraph 4 of the form of Note is hereby amended by replacing the
reference to "Senior Indebtedness (as defined in the Indenture)" contained
therein with "Senior Indebtedness (as defined in the Indenture) of the Company".
(b) the contact information in Paragraph 21 of the form of Note is
hereby amended to read in its entirety as follows:
Cinemark USA, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel.
11
(c) The following is added to the form of Note as Paragraph 22:
22. SUBSIDIARY GUARANTEES. The payment of principal of, premium, if
any, and interest on the Notes are unconditionally guaranteed, jointly
and severally, on a senior subordinated basis by the Guarantors. The
Indenture does not require all Subsidiaries of the Company to be
Guarantors, and provides for the release of certain Guarantors under
certain circumstances.
Section 1.4 Agreement to Guarantee.
Each of the Initial Guarantors hereby, jointly and severally with all
the other Guarantors, unconditionally guarantees the Company's obligations under
the Notes and the Indenture as amended and supplemented by this Supplemental
Indenture and as such may be further amended or supplemented from time to time
(the "AMENDED INDENTURE") on the terms and subject to the conditions set forth
in Article 12 of the Amended Indenture and agrees to be bound by all other
applicable provisions of the Amended Indenture and the Notes.
ARTICLE TWO
Miscellaneous Provisions
Section 2.1 Counterparts. This Supplemental Indenture may be signed in
counterparts and by the different parties hereto in separate counterparts, each
of which shall constitute an original and all of which together shall constitute
one and the same instrument.
Section 2.2 Severability. In case any provision in this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 2.3 Headings. The headings of the Articles and Sections of this
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part of this Supplemental Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 2.4 Successors and Assigns. All the covenants, stipulations,
promises and agreements in this Supplemental Indenture by or on behalf of each
of the Company and the Guarantors shall bind their respective successors and
assigns, whether so expressed or not.
Section 2.5 Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
Section 2.6 Effect of Supplemental Indenture. Except as amended by this
Supplemental Indenture, the terms and provisions of the Indenture shall remain
in full force and effect.
12
Section 2.7 Trustee. The Trustee accepts the amendments of the
Indenture effected by this Supplemental Indenture, but on the terms and
conditions set forth in the Indenture, including the terms and provisions
defining and limiting the liabilities and responsibilities of the Trustee.
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 Initial Guarantors, or for or with respect to (i)
the validity or sufficiency of this Supplemental Indenture or any of the terms
or provisions hereof, (ii) the proper authorization hereof by the Company and
Initial Guarantors by corporate action or otherwise, (iii) the due execution
hereof by the Company, the Initial Guarantors or (iv) 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.
Section 2.8 Effectiveness. This Supplemental Indenture shall become
effective, once executed, upon receipt by the Trustee of a certificate of the
appropriate officers of the Company and an Opinion of Counsel (as defined in the
Indenture), each of which shall be dated no earlier than the date hereof.
[Signature Pages Follow]
13
IN WITNESS WHEREOF, the parties hereto have executed this Supplemental
Indenture as of the date first above written.
CINEMARK USA, INC.
SUNNYMEAD CINEMA CORP.
CINEMARK MEXICO (USA), INC
CINEMARK INVESTMENTS CORPORATION
CINEMARK LEASING COMPANY
CINEMARK PARADISO, INC.
CINEMARK PARTNERS I, INC.
CINEMARK PROPERTIES, INC.
MISSOURI CITY CENTRAL 6, INC.
MULTIPLEX SERVICES, INC.
TRANS TEXAS CINEMA, INC.
CINEMARK, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President-General Counsel
CNMK INVESTMENTS, INC.
MULTIPLEX PROPERTIES, INC.
CNMK DELAWARE INVESTMENTS I, L.L.C.
CNMK DELAWARE INVESTMENTS II, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Secretary
CNMK DELAWARE INVESTMENT
PROPERTIES, LTD., by CNMK Delaware
Investments I, L.L.C., its general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Secretary
14
LAREDO THEATRE, LTD.,
by CNMK TEXAS PROPERTIES, LTD., its
general partner,
by Sunnymead Cinema Corp., the general partner of
CNMK Texas Properties, Ltd.,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President-General Counsel
CNMK TEXAS PROPERTIES, LTD.
by Sunnymead Cinema Corp., its general partner,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President-General Counsel
THE BANK OF NEW YORK TRUST COMPANY
OF FLORIDA, N.A., as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
15
EXHIBIT C
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of
____________, 20__, among [GUARANTOR] (the "New Guarantor"), a subsidiary of
Cinemark USA, Inc. (or its successor), a Texas corporation (the "Company"), and
The Bank of New York Trust Company of Florida, N.A., as trustee under the
indenture referred to below (the "Trustee").
WITNESSETH :
WHEREAS the Company, the guarantors parties thereto and the Trustee are
parties to that certain Indenture (as amended and supplemented to the date
hereof, and as such may be further amended or supplemented from time to time,
the "Indenture") dated as of August 15, 1996, providing for the issuance of
$200,000,000 of the Company's 9-5/8% Series A and Series B Senior Subordinated
Notes due 2008 (the "Notes");
WHEREAS Sections 4.17 and 12.6 of the Indenture provide that the
Company shall cause the New Guarantor to execute and deliver to the Trustee a
supplemental indenture pursuant to which the New Guarantor shall unconditionally
guarantee all the Company's obligations under the Notes and the Indenture
pursuant to a Subsidiary Guarantee on the terms and conditions set forth herein;
and
WHEREAS pursuant to Section 9.1 of the Indenture, the Trustee, the
Company and the New Guarantor are authorized to execute and deliver this
Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor, the Company and the Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Notes as follows:
1. Agreement to Guarantee. The New Guarantor hereby, jointly and
severally with all the other Guarantors, unconditionally guarantees the
Company's obligations under the Notes and the Indenture on the terms and subject
to the conditions set forth in Article 12 of the Indenture and agrees to be
bound by all other applicable provisions of the Indenture and the Notes.
2. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly supplemented hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every Holder of Notes
heretofore or hereafter authenticated and delivered shall be bound hereby.
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
C-1
4. Trustee Makes No Representation. The Trustee makes no representation
as to the validity or sufficiency of this Supplemental Indenture.
5. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. Effect of Headings. The Section headings herein are for convenience
only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR]
By:
------------------------------------------
Name:
Title:
CINEMARK USA, INC.
By:
------------------------------------------
Name:
Title:
THE BANK OF NEW YORK TRUST COMPANY OF
FLORIDA, N.A., as Trustee
By:
------------------------------------------
Name:
Title:
C-2