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EXHIBIT 10.9(t)
THIRD AMENDMENT TO SECOND AMENDED AND RESTATED
REDUCING REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED REDUCING REVOLVING
CREDIT AGREEMENT (this "Amendment") is made and dated as of February 24, 1999 by
and among CINEMARK USA, INC., a Texas corporation (the "Company"), the several
financial institutions party hereto (the "Banks"), Bank of America National
Trust and Savings Association, as agent for the Banks (in such capacity, the
"Administrative Agent"), NationsBank, N.A., as Syndication Agent and BankBoston,
N.A., The Bank of Nova Scotia, CIBC Inc. and Fleet Bank, as Co-Agents, and
amends that certain Second Amended and Restated Reducing Revolving Credit
Agreement dated as of February 12, 1998 among the Company, the Banks, the
Administrative Agent, the Syndication Agent and the Co-Agents as amended by a
First Amendment to Second Amended and Restated Reducing Revolving Credit
Agreement dated as of August 31, 1998 and a Second Amendment and Waiver to
Second Amended and Restated Reducing Revolving Credit Agreement dated as of
November 16, 1998 (as so amended, the "Agreement).
RECITAL
By this Amendment, the Company, the Banks and the Administrative Agent
desire to amend how the financial covenants in Sections 7.12 and 7.13 of the
Agreement are calculated and to make certain other modifications to the
Agreement, all on the terms provided herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. TERMS. All terms used herein shall have the same meanings as
in the Agreement unless otherwise defined herein.
2. AMENDMENTS TO AGREEMENT. The Agreement shall be amended as
follows:
2.1 The following new definitions are inserted in proper
alphabetical order in Section 1.1 of the Agreement (Defined Terms) as follows:
"'Annualized Monthly Cash Flow' means, for any period, for the
Company and its Restricted Subsidiaries, Cash Flow for such period plus
(a) Proforma Monthly Cash Flow for Monthly Annualized Theatres less (b)
Cash Flow from Monthly Annualized Theatres; provided, however, that if
during the period for which Annualized Monthly Cash Flow is being
determined, the Company or any of its Restricted Subsidiaries shall
have acquired any assets identified to the Administrative Agent other
than assets acquired as a result of Capital Expenditures made in the
ordinary course of business (including without limitation acquisition
by merger or consolidation) or Disposed of assets, the Cash Flow of the
Company and its Restricted Subsidiaries shall be calculated on a pro
forma basis as if such acquisition or disposition had occurred at the
beginning of such period."
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"'Monthly Annualized Theatres' means, for any period, newly
constructed theatres identified to the Administrative Agent that have
had more than one complete month of operation, but less than 12
complete months of operation (each, a 'Monthly Annualized Theatre')."
"'Proforma Monthly Cash Flow for Monthly Annualized Theatres'
means, for any period, the sum of the Proforma Monthly Cash Flow for
each Monthly Annualized Theatre, calculated on a Monthly Annualized
Theatre by Monthly Annualized Theatre basis in accordance with the
formula set forth in Schedule 1.2."
2.2 Section 6.2(a) of the Agreement is amended by deleting "and"
at the end of clause (i) and inserting ";" in lieu thereof, inserting "; and" at
the end of clause (ii), and inserting the following new clause immediately
following clause (ii) as follows:
"(iii) showing in detail the calculations supporting determination
of the Applicable Amount in accordance with the definition thereof."
2.3 Section 7.5 of the Agreement (Limitation on Indebtedness) is
amended by deleting "and" at the end of subsection (l), deleting the period at
the end of subsection (m) and inserting "; and" in lieu thereof, and inserting a
new subsection (n) immediately following subsection (m) as follows:
"(n) other unsecured senior or subordinated
Indebtedness in an aggregate principal amount not exceeding
$200,000,000, in each case having terms and conditions that
are not more restrictive than the terms of the Loan Documents
and having no required principal repayments or prepayments
earlier than one year after the Maturity Date at the time such
indebtedness is incurred."
2.4 Section 7.12 of the Agreement is amended and restated in its
entirety as follows:
"7.12 INDEBTEDNESS TO ANNUALIZED MONTHLY CASH FLOW RATIOS.
"(a) The Company shall not permit as of the end
of any fiscal quarter its ratio of (a) Total Indebtedness to
(b) Annualized Monthly Cash Flow for the four fiscal quarters
ending on such date, to exceed the ratio set forth opposite
the respective period set forth below:
Total Indebtedness to
Annualized Monthly Cash Flow
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Maximum
Fiscal Quarters Ending Ratio
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12/31/98 through 12/31/99 6.00 to 1
1/01/00 through 9/30/00 5.75 to 1
10/01/00 through 6/30/01 5.50 to 1
7/01/01 through 3/31/02 5.25 to 1
4/01/02 and thereafter 5.00 to 1
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"(b) The Company shall not permit as of the end
of any fiscal quarter its ratio of (a) Senior Indebtedness to
(b) Annualized Monthly Cash Flow for the four fiscal quarters
ending on such date, to exceed the ratio set forth opposite
the respective period set forth below:
Senior Indebtedness to
Annualized Monthly Cash Flow
--------------------------------------------------
Maximum
Fiscal Quarters Ending Ratio
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12/31/98 through 3/31/02 4.00 to 1
4/01/02 and thereafter 3.50 to 1"
2.5 Section 7.13 of the Agreement (Debt Service Coverage Ratio)
is amended by deleting "Annualized Cash Flow" in clause (a) and inserting
"Annualized Monthly Cash Flow" in lieu thereof.
2.6 A new Schedule 1.2 to the Agreement is inserted in the
Agreement in the form of Schedule 1.2 hereto.
3. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Banks and Administrative Agent that, on and as of the date
hereof, and after giving effect to this Amendment:
3.1 AUTHORIZATION. The execution, delivery and performance of
this Amendment have been duly authorized by all necessary corporate action by
the Company and this Amendment has been duly executed and delivered by the
Company.
3.2 BINDING OBLIGATION. This Amendment is the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
3.3 NO LEGAL OBSTACLE TO AMENDMENT. The execution, delivery and
performance of this Amendment will not (a) contravene the terms of the Company's
certificate of incorporation, by-laws or other organization document; (b)
conflict with or result in any breach or contravention of the provisions of any
contract to which the Company is a party, or the violation of any law, judgment,
decree or governmental order, rule or regulation applicable to the Company, or
result in the creation under any agreement or instrument of any security
interest, lien, charge, or encumbrance upon any of the assets of the Company. No
approval or authorization of any governmental authority is required to permit
the execution, delivery or performance by the Company of this Amendment, or the
transactions contemplated hereby.
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3.4 INCORPORATION OF CERTAIN REPRESENTATIONS. The representations
and warranties of the Company set forth in Section 5 of the Agreement are true
and correct in all respects, except as to such representations made as of an
earlier specified date.
3.5 DEFAULT. No Default or Event of Default under the Agreement
has occurred and is continuing.
4. CONDITIONS, EFFECTIVENESS. The effectiveness of this Amendment
shall be subject to the compliance by the Company with its agreements herein
contained, and to the delivery of the following to the Administrative Agent in
form and substance satisfactory to the Administrative Agent:
4.1 AUTHORIZED SIGNATORIES. A certificate, signed by the
Secretary or an Assistant Secretary of the Company dated the date hereof, as to
the incumbency of the person or persons authorized to execute and deliver this
Amendment and any instrument or agreement required hereunder on behalf of the
Company.
4.2 AMENDMENT FEE. An amendment fee payable to the Administrative
Agent for the account of each Bank signing this Amendment equal to 10 basis
points of such Bank's Commitment.
4.3 THIRD PARTY CONSENTS. The written consent of each Pledgor,
Subordinated Creditor, Subordinated Obligor and Guarantor to the terms of this
Amendment. By signing below, the Borrower is also signing in its capacity as a
Subordinated Creditor.
4.4 OTHER EVIDENCE. Such other evidence with respect to the
Company or any other person as the Administrative Agent or any Bank may
reasonably request to establish the consummation of the transactions
contemplated hereby, the taking of all corporate action in connection with this
Amendment and the compliance with the conditions set forth herein.
5. MISCELLANEOUS.
5.1 PLEDGE OF STOCK OF CINEMARK DE MEXICO; COMPLIANCE WITH SECTION
6.14. The Banks and the Administrative Agent hereby agree that the Company shall
have until February 26, 1999 to comply with Section 6.14 of the Agreement as it
relates to the pledge of 65% of the capital stock of Cinemark de Mexico, and any
default under the Agreement arising from the Company's failure to so comply with
such Section earlier is hereby waived. The Banks and the Administrative Agent
also hereby approve the form of the Foreign Material Restricted Subsidiary
Pledge Agreement relating to the pledge of such stock, an English language
version of which form is attached hereto as Exhibit A (the official legal
version of such agreement is in Spanish).
5.2 EFFECTIVENESS OF AGREEMENT. Except as hereby expressly
amended, the Agreement and each other Loan Document shall each remain in full
force and effect, and are hereby ratified and confirmed in all respects on and
as of the date hereof.
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5.3 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument. This Amendment shall not become
effective until the Company, the Administrative Agent and the Majority Banks
shall have signed a copy hereof, whether the same or counterparts, and the same
shall have been delivered to the Administrative Agent and all conditions
precedent have been satisfied.
5.4 JURISDICTION. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the date first written above.
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CINEMARK USA, INC.
By
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Financial Officer
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
AS ADMINISTRATIVE AGENT
By
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇
Vice President
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS ISSUING
BANK AND A BANK
By
-----------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
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BANKBOSTON, NA.,
AS A CO-AGENT AND A BANK
By
---------------------------------
Name
-------------------------------
Title
------------------------------
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▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
AS A CO-AGENT AND A BANK
By
---------------------------------
Name
-------------------------------
Title
------------------------------
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CIBC INC., AS A CO-AGENT AND A BANK
By
---------------------------------
Name
-------------------------------
Title
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FLEET BANK, N.A.
AS A CO-AGENT AND A BANK
By
---------------------------------
Name
-------------------------------
Title
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THE BANK OF NEW YORK
By
---------------------------------
Name
-------------------------------
Title
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THE BANK OF MONTREAL
By
---------------------------------
Name
-------------------------------
Title
------------------------------
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COMERICA BANK - TEXAS
By
---------------------------------
Name
-------------------------------
Title
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FIRST HAWAIIAN BANK
By
---------------------------------
Name
-------------------------------
Title
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THE FUJI BANK, LIMITED
By
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Name
-------------------------------
Title
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PNC BANK, NATIONAL ASSOCIATION
By
---------------------------------
Name
-------------------------------
Title
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THE SUMITOMO BANK, LIMITED
By
---------------------------------
Name
-------------------------------
Title
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By
---------------------------------
Name
-------------------------------
Title
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▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.
By
---------------------------------
Name
-------------------------------
Title
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CONSENT OF pledgors, guarantorS
AND SUBORDINATED obligor
Each of the undersigned (a) Pledgors party to the Second Amended
and Restated ▇▇▇▇▇▇▇▇ Family Pledge Agreement dated as of February 12, 1998, (b)
Guarantors under the Guaranty dated as of February 12, 1998, (c) Pledgor party
to the Foreign Material Restricted Subsidiary Pledge Agreement relating to the
pledge of the stock of Cinemark de Mexico, and (d) Subordinated Creditors party
to the Intercompany Subordination Agreement dated as of November 16, 1998,
hereby consents to the foregoing Third Amendment, and represents and warrants to
the Administrative Agent and the Banks that there is no defense, counterclaim or
offset of any type or nature under the respective guaranty, pledge agreement or
intercreditor agreement, and that the same remain in full force and effect as to
it after giving effect hereto and thereto. All terms used herein shall have the
same meanings as in the Credit Agreement referred to in the Third Amendment
unless otherwise defined herein.
PLEDGORS:
CGI EQUITIES, LTD., a Texas limited
partnership
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▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ By: CGI INVESTMENTS, LLC, a Texas
limited liability company, its
general partner
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Spouse Of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇
Vice President
▇▇▇▇▇▇▇▇ SPECIAL TRUST
▇▇▇▇▇▇▇▇ GRANDCHILDREN TRUST
FOR CASSIE ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ GRANDCHILDREN TRUST
FOR ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ GRANDCHILDREN TRUST
FOR ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ GRANDCHILDREN TRUST
FOR ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ GRANDCHILDREN TRUST
FOR LASEY ▇▇▇▇▇ ▇▇▇
By
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Trustee
By
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Trustee
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▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) INC.,
a Delaware corporation, as a Guarantor,
Pledgor and Subordinated Creditor
CINEMARK PROPERTIES, INC.
a Delaware corporation, as a Guarantor
By:
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
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SCHEDULE 1.2
PROFORMA CASH FLOW FOR MONTHLY ANNUALIZED THEATRES
Proforma Cash Flow for Monthly Annualized Theatres shall be the sum of the
Proforma Cash Flow for each Monthly Annualized Theatre, calculated on a Monthly
Annualized Theatre by Monthly Annualized Theatre basis in accordance with the
formula set forth below:
Proforma Cash Flow for each Actual Full Month Cash Flow
= ---------------------------
Monthly Annualized Theatre Annualization Factor
Where:
Actual Full Month Cash Flow means the sum of actual Cash Flow
from each Monthly Annualized Theatre for each Included Month.
Included Month means each full month that such Monthly
Annualized Theatre was in operation during the measurement period.
Annualization Factor means the sum of annualization factors
set forth below for Included Months:
Month Percentage
----- ----------
January 9.64% 0.22%
February 5.20%
March 7.16%
------
April 4.76% 0.24%
May 7.78%
June 11.46%
------
July 18.83% 0.31%
August 10.16%
September 2.01%
------
October 2.02% 0.23%
November 10.23%
December 10.75%
======
Total 100.00%
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