EXHIBIT 10.2(c)
ANNEX A
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Dated as of February __, 2003
by and among
CINEMARK USA, INC.
EACH OF THE GUARANTORS LISTED
ON THE SIGNATURE PAGES HEREIN
and
▇▇▇▇▇▇ BROTHERS INC.
BANC OF AMERICA SECURITIES LLC
BNY CAPITAL MARKETS, INC.
FLEET SECURITIES, INC.
This Exchange and Registration Rights Agreement (this "Agreement") is
made and entered into as of February __, 2003 by and among Cinemark USA, Inc., a
Texas corporation ("Cinemark"), certain of Cinemark's subsidiaries signatory
hereto as guarantors (the "Guarantors"), ▇▇▇▇▇▇ Brothers Inc., Banc of America
Securities LLC, BNY Capital Markets, Inc., and Fleet Securities, Inc. (the
"Purchasers").
Pursuant to the Purchase Agreement, dated February __, 2003 (the
"Purchase Agreement"), among Cinemark, the Guarantors and the Purchasers, the
Purchasers have agreed to purchase the aggregate principal amount of Cinemark's
9% Senior Subordinated Notes due 2013 (the "Notes") set forth on Schedule I
thereto which shall be jointly and severally guaranteed on a senior subordinated
basis by each of the Guarantors, as provided in the Purchase Agreement.
In order to induce the Purchasers to purchase the Notes, Cinemark and
each of the Guarantors have 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.
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 as the aggregate principal amount of the Notes that were
validly tendered by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Notes, each Interest Payment
Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: Cinemark's 9% Senior Subordinated Notes due 2013 to be
issued pursuant to the Indenture in the Exchange Offer.
Exchange Offer: The registration by Cinemark and the Guarantors under
the Act of the Exchange Notes pursuant to an Exchange Offer Registration
Statement pursuant to which Cinemark and the Guarantors offer 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 equal to the
aggregate principal amount 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.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of February __, 2003, between
Cinemark, the Guarantors and The Bank of New York Trust Company of Florida,
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.
Interest Payment Date: As defined in the Indenture and the Securities.
Liquidated Damages: As defined in Section 5 hereof.
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.
Record Holder: With respect to any Damages Payment Date relating to the
Securities, each Person who is a Holder of the Securities on the record date
with respect to the Interest Payment Date on which such Damages Payment Date
shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of Cinemark and the
Guarantors 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 hereof.
Shelf Registration: A registration effected by the filing of a Shelf
Registration Statement pursuant to Section 4 hereof.
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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 and the Guarantors 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 and the Guarantors shall
(i) use their best efforts to cause to be filed with the Commission, not later
than 90 days after the Closing Date, the Exchange Offer Registration Statement
under the Act relating to the Exchange Notes and the Exchange Offer, (ii) use
their 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 150 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 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 and the Guarantors shall use their 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 and the Guarantors shall cause the Exchange
Offer to comply with all applicable federal and state securities laws. No
securities other
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than the Securities shall be included in the Exchange Offer Registration
Statement. Cinemark and the Guarantors shall use their 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 amount of Securities held by any such Broker-Dealer except to the extent
required by the Commission.
Cinemark and the Guarantors shall use their 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 and the Guarantors are 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 and the Guarantors shall:
(x) use their 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 180 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 their best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or before the
150th day after the obligation to file such Shelf Registration
Statement arises.
Cinemark and the Guarantors shall use their best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (c) hereof to the extent
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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 Liquidated Damages 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. LIQUIDATED DAMAGES
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 immediately 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 and the
Guarantors hereby agree to pay, jointly and severally, liquidated damages
("Liquidated Damages") to each Holder of Transfer Restricted Securities on each
Interest Payment Date. Liquidated Damages shall equal an increase in the annual
interest rate on the Notes by 0.5% until the Exchange Offer is consummated or
the Shelf Registration is declared effective. 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 and the Guarantors
shall, jointly and severally, pay all accrued Liquidated Damages to Record
Holders in New York, New York by wire transfer of immediately available funds or
by federal funds check on each Interest Payment Date. Following the cure of all
Registration Defaults relating to any particular Transfer Restricted Securities,
the accrual of Liquidated Damages with respect to such Transfer Restricted
Securities will cease.
All obligations of Cinemark and the Guarantors 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 and the Guarantors shall comply with all of the
provisions of Section 6(c) below, shall use their 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 and the Guarantors hereby agree to seek a
no-action letter or other favorable decision from the Commission,
including oral advice from the staff of the Commission, allowing
Cinemark and the Guarantors to Consummate an Exchange Offer for such
Notes.
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Cinemark and the Guarantors hereby agree 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 and the Guarantors
hereby agree, 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 submission.
(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
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 and the Guarantors shall provide a
supplemental letter to the Commission (A) stating that Cinemark and the
Guarantors are 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, (B) including a representation
that Cinemark and the Guarantors have 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 and the Guarantors shall comply with all the
provisions of Section 6(c) below and shall use their 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, and
pursuant thereto Cinemark and the Guarantors will as expeditiously as
practicable prepare and file with the Commission a Registration Statement
relating to the registration on any appropriate form under the Act, which form
shall be available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution thereof.
(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 and the Guarantors shall:
(i) use their 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
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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 and the Guarantors 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 their 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 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 and the Guarantors
shall use their 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 and the Guarantors 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 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;
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(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 their 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 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;
(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 and the Guarantors hereby consent 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 the
Guarantors 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 and each of the Guarantors 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
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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 and each of the
Guarantors, 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 and the
Guarantors, 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 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
9
contained in the underwriting agreement or other agreement
entered into by Cinemark and the Guarantors pursuant to this
clause (xi), if any; and
(D) if at any time the representations and warranties
of Cinemark and each of the Guarantors contemplated in clause
(A)(1) above cease to be true and correct, Cinemark and each
of the Guarantors 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;
(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 paragraph 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 neither Cinemark nor any Guarantor shall 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 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 their 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 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
10
use its 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 their 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
their 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 their 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 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 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 and the Guarantors' performance
of or compliance with this Agreement will be borne jointly and severally by
Cinemark and the Guarantors, 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
11
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 and the Guarantors will bear their 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 and/or any Guarantor.
(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 and the Guarantors
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
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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.
SECTION 8. INDEMNIFICATION
(a) Cinemark and the Guarantors agree, jointly and severally, 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 neither Cinemark nor any Guarantor
will 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 and the
Guarantors by or on behalf of any Holders expressly for use therein. This
indemnity will be in addition to any liability which Cinemark or any Guarantor
may otherwise have, including, under this Agreement.
(b) Each of the Holders agrees, severally and not jointly, to indemnify
and hold harmless Cinemark, each of the Guarantors, each person, if any, who
controls Cinemark or any Guarantor 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 Guarantor 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 and the Guarantors 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
12
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.
(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 and the Guarantors, 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 and the Guarantors, any
contribution received by Cinemark and the Guarantors from persons, other than
the Holders, who may also be liable for contribution, including persons who
control either Cinemark or any Guarantor within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act) to which Cinemark, any Guarantor and
any Holder may be subject, in such proportion as is appropriate to reflect the
relative benefits received by Cinemark and the Guarantors, 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 reflect not only the relative benefits
referred to above but also the relative fault of Cinemark and the Guarantors, 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 and the Guarantors, 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 the
Guarantors 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 and the Guarantors, 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 and the Guarantors or the Holders
and the parties'
13
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. Cinemark, each of the Guarantors 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 or any Guarantor 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 Guarantor or any controlling person shall have the same rights to
contribution as Cinemark and each of the Guarantors, 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 and the Guarantors hereby agree 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.
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,
Banc of America Securities LLC, BNY Capital Markets, Inc., and Fleet Securities,
Inc. are reasonably satisfactory); such investment bankers and manager or
managers are referred to herein as the "underwriters".
14
SECTION 12. MISCELLANEOUS
(a) Remedies. Cinemark and the Guarantors agree that monetary damages
(including the Liquidated Damages 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. Neither Cinemark nor any Guarantor will
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. Neither Cinemark nor any
Guarantor will 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
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 USA, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇.▇.
▇▇
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.
(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 Operative
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 and the Guarantors
with respect to the Transfer Restricted Securities. This Agreement supersedes
all prior agreements and understandings between the parties with respect to such
subject matter.
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
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:
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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:
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Secretary
CNMK DELAWARE INVESTMENT PROPERTIES, L.P.,
by CNMK Delaware Investments I, L.L.C.,
its general partner
By:
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Secretary
LAREDO THEATRE, LTD.,
by CNMK TEXAS PROPERTIES, LTD.,
its general partner,
by Sunnymead Cinema Corp., the general
partner of CNMK Texas Properties, Ltd.,
By:
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President-General Counsel
CNMK TEXAS PROPERTIES, LTD.
by Sunnymead Cinema Corp.,
its general partner,
By:
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President-General Counsel
▇▇▇▇▇▇ BROTHERS INC.
By:
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Name:
Title:
BANC OF AMERICA SECURITIES LLC
By:
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Name:
Title:
BNY CAPITAL MARKETS, INC.
By:
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Name:
Title:
FLEET SECURITIES, INC.
By:
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Name:
Title: