EXHIBIT 10.9(u)
TO BE RATIFIED BY PLEDGOR
BEFORE A PUBLIC NOTARY
AND APOSTILLED.
PLEDGE AGREEMENT ENTERED INTO ON THIS 27TH. DAY OF JANUARY, 1999 BY AND
BETWEEN CINEMARK MEXICO (USA), INC. (THE "PLEDGOR") AND BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION AS AGENT FOR THE FINANCIAL
INSTITUTIONS REFERRED TO BELOW AS "BANKS" (THE "PLEDGEE") WITH THE
ACKNOWLEDGEMENT OF CINEMARK DE MEXICO, S.A. DE C.V. (THE "COMPANY")
WHEREAS, the Pledgor is a company organized pursuant to the
laws of the State of Delaware, United States of America ("USA"), and has all the
necessary authorizations, corporate or otherwise, to enter into this Agreement;
WHEREAS, the Pledgor is the legal and beneficial owner of the
shares of stock described in PLEDGE SCHEDULE 1 hereto (the "Shares") issued by
the Company, a company organized pursuant to the laws of the United Mexican
States ("Mexico") which Shares represent 65% of the issued and outstanding
voting stock of the Company;
WHEREAS, the Pledgor, as borrower, the Banks (as defined
below) and the Pledgee, as administrative agent for the Banks, have entered into
a Credit Agreement (the "Credit Agreement") dated as of November 16, 1998
whereby the Banks have agreed, subject to the terms and conditions of the Credit
Agreement, to make Loans (as defined in the Credit Agreement) from time to time
to the Pledgor;
WHEREAS, pursuant to the Credit Agreement, upon the request of
any Bank, the Pledgor shall issue promissory notes (the "Notes") to the order of
such Bank to evidence, instead of loan accounts, such Bank's Loans to the
Pledgor; and
2
WHEREAS, in order to induce the Pledgee to enter into the
Credit Agreement, the Pledgor has, among other matters, agreed to secure
fulfillment of all its obligations under the Credit Agreement, the Notes and the
loan accounts, by means of pledging to the Pledgee all its rights in the
Collateral.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
CLAUSES
FIRST. Capitalized terms used and not otherwise defined in
this Agreement shall have the meanings ascribed to them in the Credit Agreement
which is incorporated herein by reference and made a part hereof. The following
additional terms, as used herein, have the following respective meanings:
(1) "BANKS" means the several financial institutions from time
to time party to the Credit Agreement and any successor and
permitted assign of, any such Bank.
(2) "COLLATERAL" means (i) the Shares and any additional
shares (the "Additional Shares") from time to time receivable
or otherwise distributed by the Company on or with respect to
or in exchange for or substitution of any of or all the
Shares, and (ii) the dividends, liquidation quotas and any
other distributions (the "Distributions") which the Company
may make at any time in connection with the Shares.
(3) "SECURED OBLIGATIONS" means any and all obligations of the
Pledgor under the Credit Agreement, the Notes and the loan
accounts and any other Loan Document (as defined in the Credit
Agreement).
3
(4) "SECURITY INTEREST" means the pledge, first priority lien
on and security interest in the Collateral granted hereunder
securing the Secured Obligations.
SECOND. (a) In order to secure the full and punctual payment
and performance by the Pledgor of the Secured Obligations, and to secure the
performance of all the obligations of the Pledgor hereunder, the Pledgor hereby
pledges (pignora) to the Pledgee as agent for the Banks and grants to the
Pledgee as agent for the Banks a first priority lien on and Security Interest in
the Collateral, to have and to hold the Collateral, together with all rights,
titles, interests, powers, privileges and preferences pertaining or incidental
thereto, unto the Pledgee as agent for the Banks, its successors and assigns.
(b) As of the date of execution hereof, the Pledgor has
delivered to the Pledgee as agent for the Banks the certificates representing
the Shares, duly endorsed in guarantee in favor of Pledgee as agent for the
Banks, as provided by applicable law, and the Pledgee as agent for the Banks,
hereby acknowledges receipt thereof.
(c) The Security Interest is granted as security only and
shall not subject the Pledgee as agent for the Banks to, or transfer or in any
way affect or modify, any obligation or liability of the Pledgor with respect to
any of the Collateral or, except as otherwise provided in this Agreement, any
transaction in connection therewith.
THIRD. The Pledgor delivers to the Pledgee as agent for the
Banks concurrently with this Agreement, a certificate of the Chairman of the
Board of Directors of the Company certifying that the Security Interest (prenda)
on the Shares in the terms hereof has been duly recorded in favor of the Pledgee
in the stock registry book of the Company.
FOURTH. The Pledgor represents and warrants to the Pledgee
that as of the date hereof:
4
(1) The Pledgor owns and is registered as the owner of record
of the Shares, and the Shares are free and clear of liens,
encumbrances and security interests of any nature whatsoever
other than the Security Interest granted herein.
(2) The Pledgor has (i) the right to vote the Shares, and (ii)
the legal right, power and capacity to pledge and grant a
security interest in, and to otherwise pledge the Collateral
in the manner provided herein.
(3) Upon (i) the endorsement in guarantee to the Pledgee of
the certificates representing the Shares, (ii) the physical
delivery of the certificates representing the Shares to the
Pledgee, and (iii) the registration of the Security Interest
(prenda) in the stock registry book of the Company, as
appropriate, then the Pledgee will have a valid and perfected
security interest in the Collateral subject to no prior lien.
(4) There are no restrictions upon the voting rights
associated with or the transfer of, any of the Collateral,
except as provided in the by-laws of the Company.
(5) The Pledgor's representative who executes this Agreement
on behalf of the Pledgor has the necessary authority to
execute this Agreement on behalf of the Pledgor and such
authority has not been limited or revoked in any manner
whatsoever.
FIFTH. For purposes of Article 9 of the General Law of Credit
Instruments and Transactions of Mexico the Pledgor hereby confers the Company an
irrevocable power of attorney to endorse in guarantee to the Pledgee as agent
for the Banks all the stock certificates that may be issued from time to time by
the Company representing Additional Shares to be pledged under
5
this Agreement. When following this instructions, the Company shall be released
from any responsibility.
SIXTH. (a) Unless an Event of Default (as such term is defined
in the Credit Agreement), shall have occurred and be continuing, the Pledgor
shall have the right to vote and exercise all corporate rights with respect to
the Collateral.
(b) Upon the occurrence and during the continuance of an Event
of Default and unless otherwise prohibited by applicable Law, all direct or
indirect rights of the Pledgor to exercise the voting and corporate rights and
powers which it is entitled to exercise under or in respect of the Collateral
shall cease, and all such rights shall thereupon and during such time be vested
in the Pledgee, as agent for the Banks, which shall have the sole and exclusive
right and authority to exercise such voting and corporate rights and powers. For
purposes of Article 192 of the General Law of Business Corporations the
execution hereof by the Pledgor constitutes a proxy for the purposes indicated
in this Section, in favor of the Pledgee.
(c) Notwithstanding the provisions of Article 336 of the
General Law of Credit Instruments and Transactions of Mexico and as long as no
Event of Default (as such term is defined in the Credit Agreement) shall have
occurred and be continuing, the Pledgee shall release from the Security Interest
therein granted and the Pledgor shall have the right to receive any and all
Distributions from the Company. For such purpose, the Pledgee as agent for the
Banks shall execute such documents as may be reasonably necessary in order for
the Company to deliver to the Pledgor any Distributions which the Pledgor may be
entitled to receive pursuant to the terms hereof.
SEVENTH. (a) Upon the occurrence of any Event of Default (as
defined in the Credit Agreement) the Pledgee, as agent for the Banks, may
request a competent court to authorize the sale of the Collateral through a
public broker or two merchants as provided in Article 341 of the General Law of
Credit Instruments and Transactions of Mexico.
6
(b) The proceeds of any sale of, or other realization upon,
the Collateral pursuant to or as contemplated by this Agreement, shall be
promptly applied by the Pledgee, as agent for the Banks, to the extent permitted
by applicable law, as follows:
(1) FIRST, to the payment of all reasonable costs and expenses
incurred by the Pledgee, as agent for the Banks, in connection
with such sale or otherwise in connection with its duties
under this Agreement or any of the Secured Obligations,
including, but not limited to, all court costs and the
reasonable fees and expenses of its agents and legal counsel,
the repayment of all advances made by the Pledgee, as agent
for the Banks, on behalf of the Pledgor and any other costs or
expenses incurred in connection with the exercise of any right
or remedy hereunder;
(2) SECOND, the balance, if any, to the payment in full of the
Secured Obligations; and
(3) THIRD, the balance, if any, to the payment to the Pledgor
and its successors, or as a court of competent jurisdiction
may otherwise direct.
EIGHTH. All rights of the Pledgee as agent for the Banks
arising hereunder, the grant of the Security Interest in the Collateral and all
obligations of the Pledgor hereunder shall be absolute and unconditional
irrespective of any perfection, exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to or departure
from any guaranty, for all or any of the Secured Obligations.
NINTH. The execution of this Agreement and the creation of the
Security Interest (prenda) in the Collateral does not constitute a novation,
satisfaction, discharge, or modification of the Secured Obligations in any
manner whatsoever.
7
TENTH. The release of Collateral upon the termination of this
Agreement shall be without recourse to or warranty by the Pledgee as agent for
the Banks and shall be made by the Pledgee at the expense of the Pledgor. This
Agreement shall terminate upon the payment in full of the Secured Obligations
whereupon the Pledgee shall cancel the endorsement in guarantee of the Shares
and return them to the Pledgor.
ELEVENTH. The Pledgor agrees to do such further acts and
things, and to execute and deliver such additional conveyances, assignments,
agreements and instruments, as the Pledgee as agent for the Banks, may at any
time reasonably request in connection with the execution, administration and
enforcement of this Agreement or with respect to the Collateral or any part
thereof or in order to better assure and confirm unto the Pledgee as agent for
the Banks its rights and remedies hereunder.
TWELFTH. No failure or delay of the Pledgee as agent for the
Banks in exercising any right, power or remedy under this Agreement shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder.
THIRTEENTH. All notices, requests and other communications
provided for hereunder shall be in writing (including telegraphic, telex,
facsimile transmission or cable communication) and mailed, by certified mail,
return receipt requested, telegraphed, telexed or delivered to its address
specified on the signature page(s) hereof or, to such other address as shall be
designated by such party in a written notice to the other party. Facsimile
transmission to the Pledgee as agent for the Banks shall be confirmed by
telephone. All such notices and communications shall be effective: (a) when
receipt is confirmed by the carrier or by receipt of answerback, when sent by
overnight delivery, telegraph, cable or telex, (b) when transmission has cleared
without notice of error if transmitted by facsimile transmission, and (c) when
delivered by hand, upon delivery.
8
FOURTEENTH. (1) All notices, communications, and other
documents given pursuant to this Agreement, unless submitted in the English
language, shall be accompanied by an English translation.
(2) This Agreement is executed both in the Spanish and English
languages, both of which shall be binding and constitute one and the same
document, provided, however, that in case of dispute the Spanish version shall
prevail, except in actions instituted in any country where English is the
official language, in which case the English version shall prevail.
(3) If at any time it becomes necessary to translate any Loan
Document (as defined in the Credit Agreement) into Spanish for purposes of
enforcing this Agreement, the parties hereby irrevocably agree (i) that such
translation must be requested by the Pledgee from any of Messrs. Xxxxxx
Xxxxxxxxxx Xxxxxx or Xxxxxxxxx X. Xxxxxxxxx Xxxxxx or Xx. Xxxxxxx Xxxx Xxxxxxx
or, if none of them is available, from any other sworn translator judicially
licensed as such in Mexico City, and (ii) that except in the case of manifest
error such translation will be final, binding and conclusive between them and
irrevocably waive any right which they may have to oppose or appeal such
translation.
FIFTEENTH. This Agreement shall be construed in accordance
with and governed by the laws of Mexico.
SIXTEENTH. This Agreement shall be binding upon and inure to
the benefit of the Pledgor and the Pledgee, as agent for the Banks, and their
respective successors. The Pledgor may not assign any of its rights or
obligations hereunder. The Pledgee, as agent for the Banks, shall have the right
at any time to sell, assign, transfer, negotiate or grant participations in all
or any of its rights hereunder in favor of any successor agent as set forth in
the Credit Agreement.
9
SEVENTEENTH. No amendment, modification, termination, or
waiver of any provision of this Agreement, shall be effective unless the same
shall be in writing and signed by the Pledgor and the Pledgee as agent for the
Banks.
EIGHTEENTH. Any provision of this Agreement which is now or
may become prohibited or unenforceable in any jurisdiction, shall as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
NINETEENTH. Pledgor shall: (a) reimburse Pledgee as agent of
the Banks on demand for all reasonable costs and expenses incurred in connection
with the preparation, delivery, administration and execution of, and any
amendment, supplement, waiver or modification to this Agreement and any other
documents prepared in connection herewith and the consummation of the
transactions contemplated hereby, including the reasonable costs and expenses of
counsel to Pledgee as agent of the Banks (and the allocated cost of internal
counsel) with respect thereto; (b) reimburse each Bank and Pledgee as agent of
the Banks on demand for all reasonable costs and expenses incurred by them in
connection with the enforcement or preservation of any rights (including in
connection with any "workout" or restructuring regarding the Loans, as defined
in the Credit Agreement) under this Agreement, including fees and out-of-pocket
expenses of counsel (and the allocated cost of internal counsel), to each Bank
and Pledgee as agent of the Banks, and (c) reimburse Pledgee as agent of the
Banks on demand for all reasonable appraisal, audit, search and filing fees
incurred or sustained by Pledgee as agent of the Banks in connection with the
matters referred to under paragraphs (a) and (b) above.
IN WITNESS WHEREOF, the parties hereto have themselves
executed or caused this Agreement to be executed by their duly authorized
representatives as of the date first above written.
10
THE PLEDGOR THE PLEDGEE AS AGENT
FOR THE BANKS
CINEMARK XXXXXX, XXXX OF AMERICA NATIONAL
(USA), INC. TRUST AND SAVINGS
ASSOCIATION
BY: BY:
---------------------------------- ----------------------------------
NAME: NAME:
TITLE: TITLE
ADDRESS: ADDRESS:
TELEFAX: TELEFAX:
11
By its execution hereof, Cinemark de Mexico, S.A. de C.V.
hereby acknowledges the terms of the foregoing Pledge Agreement and hereby
irrevocably agrees to be bound by the provisions of the Pledge Agreement as they
apply to Cinemark de Mexico, S.A. de C.V. including the obligations to (i)
endorse in guarantee and deliver to the Pledgee as agent for the Banks any
Additional Shares which Cinemark de Mexico, S.A. de C.V. may distribute,
exchange or substitute, and (ii) delivery to the Pledgee as agent for the Banks
any Distribution which Cinemark de Mexico, S.A. de C.V. may make only if an
Event of Default (as defined in the Credit Agreement) shall have occurred and be
continuing as may be confirmed in writing by Pledgee to Cinemark de Mexico, S.A.
de C.V.
CINEMARK DE MEXICO, S.A. DE C.V.
By:
--------------------------------
Name:
Title:
Address:
Telefax:
WITNESS WITNESS
---------------------------- ----------------------------
Name: Name:
