EXHIBIT 4.1
EXECUTION VERSION
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Dated as of March 31, 2004
by and among
CINEMARK, INC.
and
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇, SACHS & CO.
DEUTSCHE BANK SECURITIES INC.
CIBC WORLD MARKETS CORP.
BNY CAPITAL MARKETS, INC.
This Exchange and Registration Rights Agreement (this "Agreement") is
made and entered into as of March 31, 2004 by and among Cinemark, Inc., a
Delaware corporation ("Cinemark"), and ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇▇, Sachs &
Co., Deutsche Bank Securities Inc., CIBC World Markets Corp. and BNY Capital
Markets, Inc. (the "Purchasers").
Pursuant to the Purchase Agreement, dated March 29, 2004 (the "Purchase
Agreement"), among Cinemark, and the Purchasers, the Purchasers have agreed to
purchase the aggregate principal amount of Cinemark's 9 3/4% Senior Discount
Notes due 2014 (the "Notes") set forth on Schedule 1 thereto, as provided in the
Purchase Agreement.
In order to induce the Purchasers to purchase the Notes, Cinemark has
agreed to provide the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the obligations of
the Purchasers set forth in Section 5 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Additional Interest: As defined in Section 5 hereof.
Advice: As defined in Section 6(d) hereof.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: Any day except a Saturday, Sunday or other day in the
City of New York on which banks are authorized to close.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Exchange Notes to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof, and (iii) the delivery by Cinemark to
the Trustee under the Indenture of the Exchange Notes in the same aggregate
principal amount at maturity as the aggregate principal amount at maturity of
the Notes that were validly tendered by Holders thereof pursuant to the Exchange
Offer.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: Cinemark's 9 3/4% Senior Discount Notes due 2014 to be
issued pursuant to the Indenture in the Exchange Offer.
Exchange Offer: The registration by Cinemark under the Act of the
Exchange Notes pursuant to an Exchange Offer Registration Statement pursuant to
which Cinemark offers the Holders of all outstanding Transfer Restricted
Securities the opportunity to exchange all such outstanding Transfer Restricted
Securities held by such Holders for Exchange Notes in an aggregate principal
amount at maturity equal to the aggregate principal amount at maturity of the
Transfer Restricted Securities validly tendered in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Purchasers propose to
sell the Notes to certain "qualified institutional buyers," as such term is
defined in Rule 144A under the Act, and outside the United States in reliance
upon Regulation S under the Act.
Full Accretion Date: As defined in Section 5 hereof.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of March 31, 2004, between Cinemark
and The Bank of New York Trust Company, N.A., as trustee (the "Trustee"),
pursuant to which the Securities are to be issued, as such Indenture is amended
or supplemented from time to time in accordance with the terms thereof.
NASD: National Association of Securities Dealers, Inc.
Notes: As defined in the preamble hereto.
Person: An individual, partnership, corporation, limited liability
company, joint venture, association, trust or other organization whether or not
a legal entity, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
Purchaser: As defined in the preamble hereto.
Registration Default: As defined in Section 5 hereof.
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Registration Statement: Any registration statement of Cinemark relating
to (a) an offering of Exchange Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, which is filed pursuant to the provisions of this
Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Securities: The Notes and the Exchange Notes.
Shelf Filing Deadline: As defined in Section 4(a)(x) hereof.
Shelf Registration: A registration effected by the filing of a Shelf
Registration Statement pursuant to Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 as in effect on the date of the
Indenture.
Transfer Restricted Securities: Each of the Securities, until the
earliest to occur, with respect to a particular Security, of (a) the date on
which such Security is exchanged in the Exchange Offer and entitled to be resold
to the public by the Holder thereof without complying with the prospectus
delivery requirements of the Act, (b) the date on which such Security has been
effectively registered under the Act and disposed of in accordance with a Shelf
Registration Statement, (c) the date on which such Security may be distributed
to the public pursuant to Rule 144 under the Act or by a Broker-Dealer pursuant
to the "Plan of Distribution" contemplated by the Exchange Offer Registration
Statement (including delivery of the Prospectus contained therein) or (d) the
date such Security ceases to be outstanding.
Underwritten Registration or Underwritten Offering: A registration in
which securities of Cinemark are sold to an underwriter for reoffering to the
public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The Securities entitled to
the benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a
"Holder") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (so long as the procedures set forth in
Section 6(a) below are being or have been complied with), Cinemark shall (i) use
its reasonable best efforts to cause to be filed with the Commission, not later
than 90 days after the Closing Date, the Exchange Offer Registration
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Statement under the Act relating to the Exchange Notes and the Exchange Offer,
(ii) use its reasonable best efforts to cause such Exchange Offer Registration
Statement to be declared effective by the Commission at the earliest practicable
time, but not later than 180 days after the Closing Date, (iii) in connection
with the foregoing, file (A) all pre-effective amendments to such Exchange Offer
Registration Statement as may be necessary in order to cause such Exchange Offer
Registration Statement to become effective, (B) if applicable, a post-effective
amendment to such Exchange Offer Registration Statement pursuant to Rule 430A
under the Act and (C) cause all necessary filings in connection with the
registration and qualification of the Exchange Notes to be made under the Blue
Sky laws of such jurisdictions as are necessary to permit Consummation of the
Exchange Offer, and (iv) upon the effectiveness of such Exchange Offer
Registration Statement, commence and use its best efforts to Consummate the
Exchange Offer. The Exchange Offer shall be on an appropriate form permitting
registration of the Exchange Notes to be offered in exchange for the Transfer
Restricted Securities and to permit resales of Securities held by Broker-Dealers
as contemplated by Section 3(c) below. If, after such Exchange Offer
Registration Statement initially is declared effective by the Commission, the
Exchange Offer or the issuance of Exchange Notes thereunder or the sale of
Transfer Restricted Securities pursuant thereto as contemplated by Section 3(c)
below is interfered with by any stop order, injunction or other order or
requirement of the Commission or any other governmental agency or court, such
Exchange Offer Registration Statement shall be deemed not to have become
effective for purposes of this Agreement during the period that such stop order,
injunction or other similar order or requirement shall remain in effect.
(b) Cinemark shall use its reasonable best efforts to cause
the Exchange Offer Registration Statement to be effective continuously and shall
keep the Exchange Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period be less
than 20 Business Days. Cinemark shall cause the Exchange Offer to comply with
all applicable federal and state securities laws. No securities other than the
Securities shall be included in the Exchange Offer Registration Statement.
Unless the Exchange Offer shall not be permissible under applicable law or
Commission policy, Cinemark shall use its best efforts to cause the Exchange
Offer to be Consummated on the earliest practicable date after the Exchange
Offer Registration Statement has become effective, but not later than 30 days
thereafter.
(c) Cinemark shall indicate in a "Plan of Distribution"
section contained in the Prospectus included in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Notes that are Transfer Restricted
Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from Cinemark), may exchange such Notes
pursuant to the Exchange Offer; provided, however, such Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Act and must, therefore,
deliver a prospectus meeting the requirements of the Act in connection with any
resales of the Exchange Notes received by such Broker-Dealer in the Exchange
Offer, which prospectus delivery requirement may be satisfied by the delivery by
such Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also contain
all other information with respect to such resales by Broker-Dealers that the
Commission may require in order to permit such resales pursuant thereto, but
such "Plan of Distribution" shall not name any such Broker-Dealer or disclose
the
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amount of Securities held by any such Broker-Dealer except to the extent
required by the Commission.
Cinemark shall use its reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Securities acquired by Broker-Dealers
for their own accounts as a result of market-making activities or other trading
activities, and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of twelve months from the date on
which the Exchange Offer Registration Statement is declared effective.
Cinemark shall provide sufficient copies of the latest version of such
Prospectus to Broker-Dealers promptly upon request at any time during such
period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) Cinemark is not required to
file an Exchange Offer Registration Statement or consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or Commission
policy (so long as the procedures set forth in Section 6(a) below are being or
have been complied with) or (ii) any Holder of Transfer Restricted Securities
shall notify Cinemark on or prior to the 20th Business Day following the
Consummation of the Exchange Offer that (A) such Holder is prohibited by a
change in applicable law or Commission policy from participating in the Exchange
Offer, (B) such Holder may not resell the Exchange Notes to be acquired by it in
the Exchange Offer to the public without delivering a prospectus and that the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (C) such Holder is a
Broker-Dealer and owns Notes acquired directly from Cinemark or an affiliate of
Cinemark, then Cinemark shall:
(x) use its reasonable best efforts to cause to be filed a
shelf registration statement pursuant to Rule 415 under the Act, which
may be an amendment to the Exchange Offer Registration Statement (in
either event, the "Shelf Registration Statement"), on or prior to the
30th day after the obligation to file such Shelf Registration Statement
arises (and in any event within 210 days after the Closing Date) (the
"Shelf Filing Deadline"), which Shelf Registration Statement shall
provide for resales of all Transfer Restricted Securities, the Holders
of which shall have provided the information required pursuant to
Section 4(b) hereof; and
(y) use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on or
before the 180th day after the obligation to file such Shelf
Registration Statement arises.
Cinemark shall use its reasonable best efforts to keep such Shelf Registration
Statement continuously effective, supplemented and amended as required by the
provisions of Sections 6(b)
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and (c) hereof to the extent necessary to ensure that it is available for
resales of Securities by the Holders of Transfer Restricted Securities entitled
to the benefit of this Section 4(a), and to ensure that it conforms with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time, for a period of two years
following the Closing Date.
(b) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder of Transfer Restricted
Securities may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to Cinemark in writing, within 20 Business Days after receipt of a
request therefor, such information as Cinemark may reasonably request specified
in Item 507 and Item 508 of Regulation S-K under the Act for use in connection
with any Shelf Registration Statement or Prospectus or preliminary Prospectus
included therein. Each Holder as to which any Shelf Registration Statement is
being effected agrees to furnish promptly to Cinemark all information required
to be disclosed in order to make the information previously furnished to
Cinemark by such Holder not materially misleading. No Holder of Transfer
Restricted Securities shall be entitled to Additional Interest pursuant to
Section 5 hereof unless and until such Holder shall have used its best efforts
to provide all such reasonably requested information.
SECTION 5. ADDITIONAL INTEREST
If (i) any of the Registration Statements required by this Agreement is
not filed with the Commission on or prior to the date specified for such filing
in this Agreement, (ii) any of such Registration Statements has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (iii) the
Exchange Offer has not been Consummated within 30 Business Days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within two Business Days
by a post-effective amendment to such Registration Statement that cures such
failure and that is itself immediately declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default"), Cinemark
hereby agrees to pay additional cash interest ("Additional Interest") to each
Holder of Transfer Restricted Securities. Such Additional Interest, with respect
to the first 90-day period immediately following the occurrence of each such
Registration Default, shall equal an increase in the annual interest rate on the
Notes by 0.5%. The amount of Additional Interest will increase by an additional
0.5% per annum with respect to each subsequent 90-day period relating to each
such Registration Default until all Registration Defaults have been cured, up to
a maximum amount of Additional Interest for all Registration Defaults of 1.0%
per annum. Cinemark shall notify the Trustee within one Business Day after (i)
each and every Registration Default and (ii) the date the Registration Default
has been so cured. Cinemark shall pay all accrued Additional Interest to Holders
in New York, New York by wire transfer of immediately available funds or by
federal funds check in the same manner as interest is paid under the Notes
(assuming that the Notes have reached the Full Accretion Date (as defined in the
Indenture)). Following the cure of all
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Registration Defaults relating to any particular Transfer Restricted Securities,
the accrual of Additional Interest with respect to such Transfer Restricted
Securities will cease.
All obligations of Cinemark set forth in the preceding paragraph that
are outstanding with respect to any Transfer Restricted Security at the time
such security ceases to be a Transfer Restricted Security shall survive until
such time as all such obligations with respect to such Security shall have been
satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with
the Exchange Offer, Cinemark shall comply with all of the provisions of Section
6(c) below, shall use its reasonable best efforts to effect such exchange to
permit the sale of Transfer Restricted Securities being sold in accordance with
the intended method or methods of distribution thereof, and shall comply with
all of the following provisions:
(i) If in the reasonable opinion of counsel to Cinemark there
is a question as to whether the Exchange Offer is permitted by
applicable law, Cinemark hereby agrees to seek a no-action letter or
other favorable decision from the Commission, including oral advice
from the staff of the Commission, allowing Cinemark to Consummate an
Exchange Offer for such Notes. Cinemark hereby agrees to pursue the
issuance of such a decision to the Commission staff level but shall not
be required to take commercially unreasonable action to effect a change
of Commission policy. In connection with the foregoing, Cinemark hereby
agrees, however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis prepared by
counsel to Cinemark setting forth the legal bases, if any, upon which
such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursue a resolution (which need not be
favorable) by the Commission staff of such matters.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of Cinemark,
prior to the Consummation thereof, a written representation to Cinemark
(which may be contained in the letter of transmittal contemplated by
the Exchange Offer Registration Statement) to the effect that (A) it is
not an affiliate of Cinemark, (B) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any
person to participate in, a distribution of the Exchange Notes to be
issued in the Exchange Offer and (C) it is acquiring the Exchange Notes
in its ordinary course of business. Each Holder hereby acknowledges and
agrees that any Broker-Dealer who acquired Notes directly from Cinemark
or any affiliate of Cinemark and any such Holder intending to use the
Exchange Offer to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under Commission policy as
in effect on the date of this Agreement rely on the position of the
Commission enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June
5, 1991) and Exxon Capital Holdings Corporation (available May 13,
1988), as interpreted in the Commission's letter to Shearman & Sterling
dated July 2, 1993, and similar no-action letters (including any
no-action letter obtained pursuant to clause (i) above), and (2) must
7
comply with the registration and prospectus delivery requirements of
the Act in connection with a secondary resale transaction and that such
a secondary resale transaction should be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K if the resales are of Exchange Notes obtained by such Holder in
exchange for Notes acquired by such Holders directly from Cinemark.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, Cinemark shall provide a supplemental letter to
the Commission stating that Cinemark is registering the Exchange Offer
in reliance on the position of the Commission enunciated in Exxon
Capital Holdings Corporation (available May 13, 1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and Co., Inc. (available June 5, 1991) and, if applicable, any
no-action letter obtained pursuant to clause (i) above. The
supplemental letter shall include a representation that Cinemark has
not entered into any arrangement or understanding with any Person to
distribute the Exchange Notes to be received in the Exchange Offer and
that, to the best of Cinemark's information and belief, each Holder
participating in the Exchange Offer is acquiring the Exchange Notes in
its ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Exchange
Notes received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, Cinemark shall comply with all the provisions of Section
6(c) below and shall use its reasonable best efforts to effect such registration
to permit the sale of the Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof in accord
with the provisions of Sections 4(a) and 6(c) hereto.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement to permit the
sale or resale of Transfer Restricted Securities (including, without limitation,
any Registration Statement and the related Prospectus required to permit resales
of Securities by Broker-Dealers), Cinemark shall:
(i) use its reasonable best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this
Agreement, as applicable; upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, Cinemark shall file
promptly an appropriate amendment to such Registration Statement, in
the case of clause (A), correcting any such misstatement or omission,
and, in the case of either clause (A) or (B), use its reasonable best
efforts to cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as reasonably practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration
8
Statement effective for the applicable period set forth in Section 3 or
4 hereof, as applicable, or such shorter period as will terminate when
all Transfer Restricted Securities covered by such Registration
Statement have been exchanged or sold or until such Transfer Restricted
Securities no longer constitute Transfer Restricted Securities or are
no longer outstanding; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Act, and to comply fully with the
applicable provisions of Rules 424 and 430A under the Act in a timely
manner; and comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise promptly the underwriter(s), if any, and selling
Holders and, if requested by such Persons, confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information relating thereto, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of
the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the
preceding purposes or (D) of the existence of any fact or the happening
of any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or
that requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, Cinemark shall use its
reasonable best efforts to obtain the withdrawal or lifting of such
order at the earliest practicable time;
(iv) furnish to the Purchaser, each selling Holder named in
any Registration Statement or Prospectus and each of the underwriter(s)
in connection with each such sale, if any, before filing with the
Commission, copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such
Registration Statement or Prospectus if requested by such person, which
documents will be subject to the review of such Holders and
underwriter(s) in connection with each such sale, if any, for a period
of at least five Business Days, and Cinemark will not file any such
Registration Statement or Prospectus or any amendment or supplement to
any such Registration Statement or Prospectus to which a selling Holder
of Transfer Restricted Securities covered by such Registration
Statement or the underwriter(s) in connection with each such sale, if
any, shall reasonably object within five Business Days after the
receipt thereof. A selling Holder or underwriter, if any, shall be
deemed to have
9
reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission or fails to comply
with the applicable requirements of the Act;
(v) promptly provide copies prior to the filing of any
document that is to be incorporated by reference into a Registration
Statement or Prospectus, if requested by any selling Holders or the
underwriter(s), if any, within five Business Days after receipt of
notification thereof from Cinemark, of such document to the selling
Holders and to the underwriter(s), if any; make Cinemark's
representatives available for discussion of such document and other
customary due diligence matters; and include such information in such
document prior to the filing thereof as such selling Holders or
underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection by the
selling Holders, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney or accountant
retained by such selling Holders or any of the underwriter(s), all
financial and other records, pertinent corporate documents and
properties of Cinemark and its subsidiaries, and cause Cinemark's
officers, directors and employees to supply all information reasonably
requested by any such Holder, underwriter, attorney or accountant in
connection with such Registration Statement subsequent to the filing
thereof and prior to its effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s) in connection with each such sale, if any, promptly
include in any Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information
as such selling Holders and such underwriter(s), if any, may reasonably
request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer
Restricted Securities, information with respect to the principal amount
of Transfer Restricted Securities being sold to such underwriter(s),
the purchase price being paid therefor and any other terms of the
offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after Cinemark is
notified of the matters to be included in such Prospectus supplement or
post-effective amendment;
(viii) use its reasonable best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be rated
with the appropriate rating agencies, if so requested by the Holders of
a majority in aggregate principal amount at maturity of Notes covered
thereby or the underwriter(s), if any;
(ix) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits if so requested by such person;
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(x) deliver to each selling Holder and each of the
underwriter(s) in connection with each such sale, if any, without
charge, as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such Persons
reasonably may request; Cinemark hereby consents to the use of the
Prospectus and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if any, in connection
with the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto;
(xi) enter into such agreements (including an underwriting
agreement), and make such representations and warranties, and take all
such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to any Registration Statement contemplated by this Agreement,
all to such extent as may be reasonably acceptable to Cinemark and
reasonably requested by the Purchasers or by any Holder of Transfer
Restricted Securities or any underwriter in connection with any sale or
resale pursuant to any Registration Statement contemplated by this
Agreement; and whether or not an underwriting agreement is entered into
and whether or not the registration is an Underwritten Registration,
Cinemark shall:
(A) furnish to each Purchaser, each selling Holder
and each underwriter, in such substance and scope as they may
reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the date
of the Consummation of the Exchange Offer and, if applicable,
upon the effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, signed by (x) the President or any
Vice President and (y) a principal financial or
accounting officer of Cinemark, confirming, as of the
date thereof, the matters set forth in paragraphs (h)
and (k) of Section 5 of the Purchase Agreement and
such other matters as such parties may reasonably
request;
(2) an opinion, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, of counsel for Cinemark, covering
the matters set forth in paragraphs (c) and (d) of
Section 5 of the Purchase Agreement and such other
matters as such parties may reasonably request, and
in any event including a statement to the effect that
such counsel has participated in conferences with
officers and other representatives of Cinemark,
representatives of the independent public accountants
for Cinemark, the Purchasers' representatives and the
Purchasers' counsel at which the contents of such
Registration Statement and the related Prospectus
were discussed, although such counsel has not
undertaken to investigate or independently verify and
does not assume any responsibility for, the accuracy,
completeness or fairness of such statements; and that
such counsel advises that, on the basis of the
foregoing (relying as to
11
materiality to a large extent upon facts provided to
such counsel by officers and other representatives of
Cinemark and without independent check or
verification), no facts came to such counsel's
attention that caused such counsel to believe that
the applicable Registration Statement, at the time
such Registration Statement or any post-effective
amendment thereto became effective, and, in the case
of the Exchange Offer Registration Statement, as of
the date of Consummation, contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the
case of the opinion dated the date of Consummation of
the Exchange Offer, as of the date of Consummation,
contained an untrue statement of a material fact or
omitted to state a material fact necessary in order
to make the statements therein, in light of the
circumstances under which they were made, not
misleading. Without limiting the foregoing, such
counsel may state further that such counsel makes no
comment with respect to, assumes no responsibility
for, and has not independently verified, the
accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial
and statistical data included in any Registration
Statement contemplated by this Agreement or the
related Prospectus; and
(3) a customary comfort letter, dated as of
the date of Consummation of the Exchange Offer or the
date of effectiveness of the Shelf Registration
Statement, as the case may be, from Cinemark's
independent accountants, in the customary form and
covering matters of the type customarily covered in
comfort letters by underwriters in connection with
primary underwritten offerings, and affirming the
matters set forth in the comfort letters delivered
pursuant to Section 5(f) of the Purchase Agreement,
without exception;
(B) set forth in full or incorporate by reference in
the underwriting agreement, if any, the indemnification
provisions and procedures of Section 8 hereof with respect to
all parties to be indemnified pursuant to said Section;
(C) deliver such other documents and certificates as
may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by Cinemark pursuant to this clause
(xi), if any; and
(D) if at any time the representations and warranties
of Cinemark contemplated in clause (A)(1) above cease to be
true and correct, Cinemark shall so advise the Purchasers and
the underwriter(s), if any, and each Holder promptly and, if
requested by such Persons, shall confirm such advice in
writing;
12
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration
and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling
Holders or underwriter(s), if any, may reasonably request and do any
and all other acts or things necessary or advisable (including, without
limitation, the imposition of such restrictions on offers or sales of
the Securities as are referred to in Section 3(b) of this Agreement) to
enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the applicable Registration Statement; provided,
however, that Cinemark shall not be required to register or qualify as
a foreign corporation where it is not now so qualified or to take any
action that would subject it to the service of process in suits or to
taxation, except as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so
subject;
(xiii) shall issue, upon the request of any Holder of Notes
covered by the Shelf Registration Statement, Exchange Notes, having an
aggregate principal amount equal to the aggregate principal amount at
maturity of Notes surrendered to Cinemark by such Holder in exchange
therefor or being sold by such Holder; such Exchange Notes to be
registered in the name of such Holder or in the name of the
purchaser(s) of such Exchange Notes, as the case may be; in return, the
Notes held by such Holder shall be surrendered to Cinemark for
cancellation;
(xiv) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and to register such
Transfer Restricted Securities in such denominations (which
denominations shall be of $1,000 and integral multiples thereof) and
such names as the Holders or the underwriter(s), if any, may request at
least two Business Days prior to any such sale of Transfer Restricted
Securities made by such underwriter(s);
(xv) use its reasonable best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
or the underwriter(s), if any, to consummate the disposition of such
Transfer Restricted Securities;
(xvi) if any fact or event contemplated by Section
6(c)(iii)(D) above shall exist or have occurred, prepare a supplement
or post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement covering such Transfer Restricted
13
Securities and provide the Trustee under the Indenture with printed
certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with the Depository Trust Company;
(xviii) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD, and use its reasonable best efforts
to cause such Registration Statement to become effective and approved
by such governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to consummate
the disposition of such Transfer Restricted Securities;
(xix) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission, and make
generally available to Holders, as soon as reasonably practicable, a
consolidated earnings statement meeting the requirements of Rule 158
under the Act (which need not be audited) covering a twelve-month
period (A) beginning at the end of any fiscal quarter in which Transfer
Restricted Securities are sold to underwriters in a firm or best
efforts Underwritten Offering or (B) if not sold to underwriters in
such an offering, commencing with the first month of Cinemark's first
fiscal quarter commencing after the effective date of the Registration
Statement;
(xx) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate,
with the Trustee and the Holders of Securities to effect such changes
to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute, and use
its reasonable best efforts to cause the Trustee to execute, all
documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner;
(xxi) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of
Section 13 or Section 15 of the Exchange Act; and
(xxii) use its reasonable best efforts to cause all Transfer
Restricted Securities covered by the Registration Statement to be
listed on each securities exchange on which similar securities issued
by Cinemark are then listed if requested by the Holders of a majority
in aggregate principal amount at maturity of Notes covered by such
Registration Statement or the managing underwriter(s), if any.
(d) Restrictions on Holders. Each Holder agrees by acquisition
of a Transfer Restricted Security that, upon receipt of any notice from Cinemark
of the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof, such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
14
contemplated by Section 6(c)(xvi) hereof, or until it is advised in writing (the
"Advice") by Cinemark that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus. If so directed by Cinemark, each Holder will
deliver to Cinemark (at Cinemark's expense) all copies, other than permanent
file copies then in such Holder's possession, of the Prospectus covering such
Transfer Restricted Securities that was current at the time of receipt of such
notice. In the event Cinemark shall give any such notice, the time period
regarding the effectiveness of such Registration Statement set forth in Section
3 or 4 hereof, as applicable, shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) hereof to and including the date when each selling Holder
covered by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof or
shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to Cinemark's performance of or
compliance with this Agreement will be borne by Cinemark, regardless of whether
a Registration Statement becomes effective, including without limitation: (i)
all registration and filing fees and expenses (including filings made by any
Purchaser or Holder with the NASD (and, if applicable, the reasonable fees and
expenses of any "qualified independent underwriter" and its counsel that may be
required by the rules and regulations of the NASD)); (ii) all fees and expenses
incurred in connection with compliance with federal securities and state Blue
Sky or securities laws; (iii) all expenses of printing (including printing
certificates for the Exchange Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for Cinemark, and in accordance with
Section 7(b) below, the Holders of Transfer Restricted Securities; (v) if
applicable, all application and filing fees in connection with listing
Securities on a national securities exchange or automated quotation system
pursuant to the requirements hereof; and (vi) all fees and disbursements of
independent certified public accountants of Cinemark (including the expenses of
any special audit and comfort letters required by or incident to such
performance).
Cinemark will bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by Cinemark.
(b) In connection with any Registration Statement required by
this Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), Cinemark will reimburse the
Purchasers and the Holders of Transfer Restricted Securities being tendered in
the Exchange Offer and/or resold pursuant to the "Plan of Distribution"
contained in the Exchange Offer Registration Statement or registered pursuant to
the Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, which shall be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP or such other counsel as may be chosen by the Holders of a majority
in principal amount of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared.
15
SECTION 8. INDEMNIFICATION
(a) Cinemark agrees to indemnify and hold harmless, to the
fullest extent permitted by applicable law, each of the Holders, each person, if
any, who controls any Holder within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act and the respective officers, directors,
partners, employees, representatives and agents of each Holder or any
controlling person, against any and all losses, liabilities, claims, damages and
expenses whatsoever (including but not limited to reasonable attorneys' fees and
any and all reasonable expenses whatsoever incurred in investigating, preparing
or defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation) (collectively, "Losses"), joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or otherwise, insofar as
such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus, or in any supplement thereto or amendment thereof, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that Cinemark will not be liable in any such case to the
extent, but only to the extent, that any such Loss arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to Cinemark by or on behalf of any Holders expressly for
use therein. This indemnity will be in addition to any liability which Cinemark
may otherwise have, including, under this Agreement.
(b) Each of the Holders agrees, severally and not jointly, to
indemnify and hold harmless Cinemark, each person, if any, who controls Cinemark
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act
and the respective officers, directors, partners, employees, representatives and
agents of Cinemark or any controlling person, against any and all Losses, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
any such loss, liability, claim, damage or expense arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to Cinemark by or on behalf of such Holder expressly for
use therein; provided, however, that in no case shall any Holder be liable or
responsible for any amount in excess of the dollar amount of the proceeds
received by such Holder upon the sale of the Securities giving rise to such
indemnification obligation, unless such Losses are a result of the gross
negligence or willful misconduct of such Holder. This indemnity will be in
addition to any liability which any Holder may otherwise have, including under
this Agreement.
16
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought, in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent that it
has been prejudiced in any material respect by such failure or from any
liability which it may otherwise have). In case any such action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying parties
in connection with the defense of such action and the indemnifying party has
agreed in writing to pay the fees and expenses of such counsel, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) such indemnified party or parties shall have concluded,
upon the advice of counsel, that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses of counsel shall be
borne by the indemnifying parties; provided, however, that the indemnifying
party under subsection (a) or (b) above, shall only be liable for the legal
expenses of one counsel (in addition to any local counsel) for all indemnified
parties in each jurisdiction in which any claim or action is brought. Anything
in this subsection to the contrary notwithstanding, an indemnifying party shall
not be liable for any settlement of any claim or action effected without its
written consent; provided, however, that such consent was not unreasonably
withheld.
(d) In order to provide for contribution in circumstances in
which the indemnification provided for in this Section 8 is for any reason held
to be unavailable or is insufficient to hold harmless a party indemnified
hereunder, Cinemark, on the one hand, and each Holder, on the other hand, shall
contribute to the aggregate losses, claims, damages, liabilities and expenses of
the nature contemplated by such indemnification provision (including any
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by Cinemark, any contribution received by
Cinemark from persons, other than the Holders, who may also be liable for
contribution, including persons who control Cinemark within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act) to which Cinemark
and any Holder may be subject, in such proportion as is appropriate to reflect
the relative benefits received by Cinemark, on the one hand, and any such
Holder, on the other hand, or, if such allocation is not permitted by applicable
law or if indemnification is not available as a result of the indemnifying party
not having received notice as provided in this Section 8, in such proportion as
is appropriate to
17
reflect not only the relative benefits referred to above but also the relative
fault of Cinemark, on the one hand, and the Holders, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by Cinemark, on the one
hand, and any Holder, on the other hand, shall be deemed to be in the same
proportion as (x) the total proceeds from the offering of the Securities (net of
discounts and commissions but before deducting expenses) received by Cinemark
and (y) the total proceeds received by such Holder upon its sale of Securities
which would otherwise give rise to the indemnification obligation, respectively.
The relative fault of Cinemark, on the one hand, and of the Holders, on the
other hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by Cinemark or
the Holders and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. Cinemark and
each Holder agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation or by any
other method of allocation which does not take into account the equitable
considerations referred to above. Notwithstanding the provisions of this Section
8, (i) no Holder shall be required to contribute, in the aggregate, any amount
in excess of the dollar amount by which the proceeds received by such Holder
with respect to the sale of its Securities exceeds the amount of any damages
which such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and (ii) no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 8, each person,
if any, who controls a Holder within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act and the respective officers, directors,
partners, employees, representatives and agents of a Holder or any controlling
person shall have the same rights to contribution as such Holder, and each
person, if any, who controls Cinemark within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act and the respective officers, directors,
partners, employees, representatives and agents of Cinemark or any controlling
person shall have the same rights to contribution as Cinemark, subject in each
case to clauses (i) and (ii) of this Section 8(d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this Section 8,
notify such party or parties from whom contribution may be sought, but the
failure to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 8 or otherwise.
SECTION 9. RULE 144A
Cinemark hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to make available to any Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
from such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A.
18
SECTION 10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to Cinemark (it being understood that ▇▇▇▇▇▇ Brothers
and ▇▇▇▇▇▇▇, Sachs & Co. are reasonably satisfactory); such investment bankers
and manager or managers are referred to herein as the "underwriters".
SECTION 12. MISCELLANEOUS
(a) Remedies. Cinemark agrees that monetary damages (including
the Additional Interest contemplated hereby) would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Cinemark will not, on or after
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way conflict with, and are not
inconsistent with, the rights granted to the holders of Cinemark's securities
under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Securities. Cinemark will not
take any action, or permit any change to occur, with respect to the Securities
that would materially and adversely affect the ability of the Holders to
Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless Cinemark has
obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer or registered pursuant to the Shelf Registration
and that does not affect directly
19
or indirectly the rights of other Holders whose securities are not being
tendered pursuant to such Exchange Offer or registered pursuant to the Shelf
Registration, may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities being tendered or registered,
as applicable.
(e) Notices. All notices and other communications provided
for, or permitted hereunder, shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested), telex,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(ii) if to Cinemark:
Cinemark, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign acquired Transfer Restricted Securities from such Holder.
20
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the other
Transaction Documents (as defined in the Purchase Agreement) is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by Cinemark with respect
to the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CINEMARK, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President, Treasurer
And Chief Financial Officer
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇▇, SACHS & CO.
DEUTSCHE BANK SECURITIES INC.
CIBC WORLD MARKETS CORP.
BNY CAPITAL MARKETS, INC.
BY ▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Authorized Representative
BY ▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By: /s/ ▇▇▇▇▇▇▇, Sachs & Co.
---------------------------------
Authorized Representative