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EXHIBIT 10.11(b)
CINEMARK USA GUARANTY
(GUARANTY OF CINEMARK MEXICO (USA))
TO: Bank of America National Trust and Savings
Association, as Administrative Agent (the "Administrative Agent")
PRELIMINARY STATEMENTS:
A. Reference is made to that certain Credit Agreement dated as of
November 16, 1998 (as from time to time amended, extended, restated, modified or
supplemented, the "Credit Agreement;" capitalized terms used herein shall have
the meanings assigned to them in the Credit Agreement) among Cinemark Mexico
(USA), Inc., (the "Borrower"), the Banks party thereto and Bank of America
National Trust and Savings Association, as Administrative Agent (in such
capacity, the "Administrative Agent") for said Banks.
B. Guarantor is the ultimate shareholder of the Borrower and has
derived, and expects to continue deriving, direct and indirect benefits from
extensions of credit made to the Borrower, and now desires to guaranty the
Obligations.
C. It is a requirement of the Credit Agreement that Guarantor execute
and deliver this Guaranty.
NOW, THEREFORE, Guarantor agrees as follows:
1. For valuable consideration, the undersigned (the "Guarantor")
unconditionally, absolutely and irrevocably guarantees and promises to pay to
the Administrative Agent, or order, on demand, in lawful money of the United
States and in immediately available funds, any and all present or future
Obligations owing to the Banks, the Administrative Agent and the Syndication
Agent (collectively, the "Guarantied Parties"). The term Obligations has the
meaning assigned to such term under the Credit Agreement and is used herein in
its most comprehensive sense and includes any and all advances, debts,
obligations, and liabilities of the Borrower, now, or hereafter made, incurred,
or created, whether voluntary or involuntarily, and however arising, including,
without limitation, any and all reasonable attorneys' fees (including the
allocated cost of inhouse counsel), costs, premiums, charges, or interest owed
by the Borrower to the Guarantied Parties, whether due or not due, absolute or
contingent, liquidated or unliquidated, determined or undetermined, whether the
Borrower may be liable individually or jointly with others, whether recovery
upon such indebtedness may be or hereafter becomes barred by any statute of
limitations or whether such indebtedness may be or hereafter become otherwise
unenforceable.
2. This Guaranty is a continuing guaranty which relates to any
Obligations, including those which arise under successive transactions which
shall either cause the Borrower to incur new Obligations, continue the
Obligations from time to time, or renew them after they have been satisfied.
Guarantor agrees that nothing shall discharge or satisfy its obligations
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created hereunder except for the full payment of the Obligations. Any payment by
Guarantor shall not reduce its maximum obligation hereunder.
3. Guarantor agrees that it is directly and primarily liable to the
Administrative Agent for the benefit of the Guarantied Parties, that its
obligations hereunder are independent of the Obligations of the Borrower, or of
any other guarantor, and that a separate action or actions may be brought and
prosecuted against Guarantor, whether action is brought against the Borrower or
whether the Borrower is joined in any such action or actions. Guarantor agrees
that any releases which may be given by the Administrative Agent and the
Guarantied Parties to the Borrower or any other guarantor shall not release it
from this Guaranty.
4. The obligations of Guarantor under this Guaranty shall not be
affected, modified or impaired upon the occurrence from time to time of any of
the following, whether or not with notice to or the consent of Guarantor:
(a) the compromise, settlement, change, modification, amendment
(whether material or otherwise) or partial termination of any or all of the
Obligations;
(b) the failure to give notice to Guarantor of the occurrence of any
Event of Default under the terms and provisions of the Agreement;
(c) the waiver of the payment, performance or observance of any of the
Obligations;
(d) the taking or omitting to take any actions referred to in any Loan
Document or of any action under this Guaranty;
(e) any failure, omission or delay on the part of the Administrative
Agent and/or the Guarantied Parties to enforce, assert or exercise any right,
power or remedy conferred in this Guaranty, the Credit Agreement, any other Loan
Document or any other indulgence or similar act on the part of the
Administrative Agent and/or the Guarantied Parties in good faith and in
compliance with applicable law;
(f) the voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all of the assets, marshalling of
assets, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors or readjustment of, or other similar proceedings which affect
Guarantor, any other guarantor of any of the Obligations of the Borrower or any
of the assets of any of them, or any allegation of invalidity or contest of the
validity of this Guaranty in any such proceeding;
(g) to the extent permitted by law, the release or discharge of any
other guarantors of the Obligations from the performance or observance of any
obligation, covenant or agreement contained in any guaranties of the Obligations
by operation of law; or
(h) the default or failure of any other guarantors of the Obligations
fully to perform any of their respective obligations set forth in any such
guaranties of the Obligations.
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To the extent any of the foregoing refers to any actions which the
Administrative Agent or the Guarantied Parties may take, Guarantor hereby agrees
that the Administrative Agent and/or the Guarantied Parties may take such
actions in such manner, upon such terms, and at such times as the Administrative
Agent or the Guarantied Parties, in their discretion, deem advisable, without,
in any way or respect, impairing, affecting, reducing or releasing Guarantor
from its undertakings hereunder and Guarantor hereby consents to each and all of
the foregoing actions, events and occurrences.
5. Guarantor hereby waives:
(a) any and all rights to require the Administrative Agent or the
Guarantied Parties to prosecute or seek to enforce any remedies against the
Borrower or any other party liable to the Administrative Agent or the Guarantied
Parties on account of the Obligations;
(b) any right to assert against the Administrative Agent or the
Guarantied Parties any defense (legal or equitable), set-off, counterclaim, or
claim which Guarantor may now or at any time hereafter have against the Borrower
or any other party liable to the Administrative Agent or the Guarantied Parties
in any way or manner under the Credit Agreement;
(c) all defenses, counterclaims and off-sets of any kind or nature,
arising directly or indirectly from the present or future lack of perfection,
sufficiency, validity or enforceability of any Loan Document and the security
interest granted pursuant thereto;
(d) any defense arising by reason of any claim or defense based upon an
election of remedies by the Administrative Agent or the Guarantied Parties
including, without limitation, any direction to proceed by judicial or
nonjudicial foreclosure or by deed in lieu thereof, which, in any manner
impairs, affects, reduces, releases, destroys or extinguishes Guarantor's
subrogation rights, rights to proceed against the Borrower for reimbursement, or
any other rights of Guarantor to proceed against the Borrower, against any other
guarantor, or against any other security, with Guarantor understanding that the
exercise by the Administrative Agent and/or the Guarantied Parties of certain
rights and remedies may offset or eliminate Guarantor's right of subrogation
against the Borrower, and that Guarantor may therefore incur partially or
totally non-reimbursable liability hereunder;
(e) all presentments, demands for performance, notices of
non-performance, protests, notices of protest, notices of dishonor, notices of
default, notice of acceptance of this Guaranty, and notices of the existence,
creation, or incurring of new or additional indebtedness, and all other notices
or formalities to which Guarantor may be entitled; and
(f) without limiting the generality of the foregoing, Guarantor hereby
expressly waives any and all benefits of California Civil Code Sections 2809,
2810, 2819, 2825, 2839 and 2845 through 2850.
6. Guarantor hereby agrees that unless and until all Obligations have
been paid to the Administrative Agent and the Guarantied Parties in full, it
shall not have any rights of subrogation, reimbursement or contribution as
against the Borrower or any other guarantor, if
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any, and shall not seek to assert or enforce the same. Guarantor understands
that the exercise by Administrative Agent of certain rights and remedies
contained in the Loan Documents may affect or eliminate Guarantor's right of
subrogation if any, against the Borrower and that Guarantor may therefore incur
a partially or totally non-reimbursable liability hereunder; nevertheless,
Guarantor hereby authorizes and empowers the Administrative Agent and the
Guarantied Parties to exercise, in their sole discretion, any right and remedy,
or any combination thereof, which may then be available, since it is the intent
and purpose of Guarantor that the obligations hereunder shall be absolute,
independent and unconditional under any and all circumstances.
7. Guarantor is presently informed of the financial condition of the
Borrower and of all other circumstances which a diligent inquiry would reveal
and which bear upon the risk of nonpayment of the Obligations. Guarantor hereby
covenants that it will continue to keep itself informed of the financial
condition of the Borrower, the status of other guarantors, if any, and of all
other circumstances which bear upon the risk of nonpayment. Guarantor hereby
waives its right, if any, to require the Administrative Agent or the Guarantied
Parties to disclose to it any information which the Administrative Agent or any
Bank may now or hereafter acquire concerning such condition or circumstances
including, but not limited to, the release of any other guarantor.
8. The Administrative Agent and each Bank's books and records
evidencing the Obligations shall be admissible in any action or proceeding and
shall be binding upon the Guarantor for the purpose of establishing the terms
set forth therein and shall constitute prima facie proof thereof.
9. Guarantor represents and warrants that:
(a) Guarantor: (i) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation;
(ii) has the power and authority and all governmental licenses, authorizations,
consents and approvals to own its assets, carry on its business and execute,
deliver, and perform its obligations under, the Loan Documents; (iii) is duly
qualified as a foreign corporation, licensed and in good standing under the laws
of each jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification; and (iv) is in compliance
with all Requirements of Law; except, in each case referred to in clause (ii),
(iii) or clause (iv), to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by Guarantor of this
Guaranty have been duly authorized by all necessary corporate action, and do not
and would not be expected to: (i) contravene the terms of any of Guarantor's
articles of incorporation, bylaws or other organization documents; (ii) conflict
with or result in any breach or contravention of, or the creation of any Lien
under, any document evidencing any Contractual Obligation to which Guarantor is
a party or any order, injunction, writ or decree of any Governmental Authority
to which Guarantor or its Property is subject; or (iii) violate any Requirement
of Law.
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(c) No approval, consent, exemption, authorization, or other action
by, or notice to, or filing with, any Governmental Authority is necessary or
required in connection with the execution, delivery or performance by, or
enforcement against, Guarantor of the Guaranty, except for routine corporate
filings to maintain the corporate good standing of Guarantor.
(d) This Guaranty constitutes the legal, valid and binding obligations
of Guarantor, enforceable against Guarantor 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.
(e) There is no action, suit or proceeding pending against, or to the
knowledge of Guarantor, threatened against or affecting Guarantor, before any
court or arbitrator or any governmental body, agency or official which in any
manner draws into question the validity or enforceability of this Guaranty; and
(f) The execution, delivery and performance by Guarantor of this
Guaranty does not constitute, to the best knowledge of Guarantor, a "fraudulent
conveyance," "fraudulent obligation" or "fraudulent transfer" within the
meanings of the Uniform Fraudulent Conveyances Act or Uniform Fraudulent
Transfer Act, as enacted in any jurisdiction.
10. All notices and other communications hereunder shall be delivered,
in the manner and with the effect provided in the Credit Agreement and, in the
case of the Guarantor, in care of the Borrower.
11. This Guaranty shall be binding upon the successors and assigns of
Guarantor and shall inure to the benefit of the Administrative Agent's and the
Guarantied Parties' successors and assigns. This Guaranty cannot be assigned by
Guarantor without the prior written consent of the Administrative Agent and the
Guarantied Parties which shall be in the Administrative Agent's and the
Guarantied Parties' sole and absolute discretion.
12. No failure or delay by the Administrative Agent or the Guarantied
Parties in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
13. The Guarantor shall pay (a) all reasonable out-of-pocket expenses
of the Administrative Agent and the Guarantied Parties, including reasonable
fees and disbursements of counsel (including the allocated cost of inhouse
counsel and staff) for the Administrative Agent, in connection with any waiver
or consent hereunder or any amendment hereof and (b) all out-of-pocket expenses
incurred by the Administrative Agent and the Guarantied Parties, including fees
and disbursements of counsel (including the allocated cost of inhouse counsel
and staff), in connection with the enforcement of this Guaranty (whether or not
suit is brought).
14. No modification of this Guaranty shall be effective for any purpose
unless it is in writing and executed by an officer of the Administrative Agent
authorized to do so. This
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Guaranty merges all negotiations, stipulations and provisions relating to the
subject matter of this Guaranty which preceded or may accompany the execution of
this Guaranty.
15. This Guaranty and the rights and obligations of the parties
hereunder shall be construed in accordance with and be governed by the laws of
the State of California without reference to the principles of conflicts of laws
thereof.
16. This Guaranty may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.
17. Terms not defined herein shall have the meanings assigned to them
in the Credit Agreement.
18. Any indebtedness of the Borrower now or hereafter held by Guarantor
is hereby subordinated to the indebtedness of the Borrower to the Administrative
Agent and the Guarantied Parties; and such indebtedness of the Borrower to
Guarantor if the Administrative Agent so requests shall be collected, enforced
and received by Guarantor as trustee for the Administrative Agent and the
Guarantied Parties and be paid over to the Administrative Agent on account of
the indebtedness of the Borrower to the Administrative Agent and the Guarantied
Parties but without reducing or affecting in any manner the liability of
Guarantor under the other provisions of this guaranty.
20. It is not necessary for the Guarantied Parties to inquire into the
powers of the Borrower or of the officers, directors or agents acting or
purporting to act on its behalf, and any indebtedness made or created in
reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
DATED AS OF:
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CINEMARK USA, INC.
By
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Xxxxxxx Xxxxxxx
Chief Financial Officer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS
ADMINISTRATIVE AGENT
By
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Xxxxx Xxxxx
Vice President
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