EXHIBIT 10.9(x)
PLEDGE AGREEMENT
TO BE RATIFIED BY PLEDGOR
BEFORE A PUBLIC NOTARY
AND APOSTILLED
PLEDGE AGREEMENT ENTERED INTO ON THIS 28TH. DAY OF SEPTEMBER, 2001 BY AND
BETWEEN CINEMARK MEXICO (USA), INC. (THE "PLEDGOR") AND BANK OF AMERICA,
NATIONAL ASSOCIATION AS AGENT FOR THE FINANCIAL INSTITUTIONS REFERRED TO BELOW
AS "BANKS" (THE "PLEDGEE") WITH THE ACKNOWLEDGEMENT OF CINEMARK HOLDINGS MEXICO,
S. DE X.X. DE C.V. (THE "COMPANY").
WHEREAS, the Pledgor is a company organized pursuant to the
laws of Delaware, United States of America, 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
quota (parte social) described in Pledge Schedule 1 hereto (the "Quota") issued
by the Company, a sociedad de responsabilidad limitada de capital variable
organized pursuant to the laws of the United Mexican States, which represents
65% of the issued and outstanding capital stock of the Company;
WHEREAS, Cinemark USA, Inc., as borrower ("Borrower"), the
Banks (as defined below) and the Pledgee, as administrative agent for the Banks,
have entered into the Second Amended and Restated Credit Agreement dated as of
February 12, 1998, (as amended, supplemented, restated or otherwise modified
from time to time, the "Credit Agreement") 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 Borrower;
WHEREAS, pursuant to the Credit Agreement, upon the request of
any Bank, the Borrower shall issue promissory notes (the "Notes") to the order
of such Bank to evidence, instead of loan accounts, such Bank's Loans to the
Borrower; and
WHEREAS, in order to guarantee and induce the Banks to
continue extending credit under the Credit Agreement, the Borrower has, among
other matters, agreed to cause the Pledgor to secure fulfillment of all of
Borrower's obligations under the Loan Documents (as defined in the Credit
Agreement) by means of pledging to the Pledgee all it 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:
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PLEDGE AGREEMENT
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 assigns of
any such Bank.
(2) "COLLATERAL" means (I) the Quota and 65% of any additional
quotas (the "Additional Quota") 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 Quota, and (II) the dividends, liquidation
quotas and any other distributions (the "Distributions") which the Company may
make at any time in connection with the Quota.
(3) "SECURED OBLIGATIONS" means any and all Obligations as
defined in the Credit Agreement.
(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 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) 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 Secretary of the
Board of Managers of the Company certifying that the Security Interest (prenda)
on the Quota in the terms hereof has been duly recorded in favor of the Pledgee
in the partners special registry book (libro especial de socios) of the Company.
FOURTH. The Pledgor represents and warrants to the Pledgee
that, as of the date hereof:
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PLEDGE AGREEMENT
(1) The Pledgor owns and is registered as the owner of record
of the Quota, and the Quota is 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 Quota, 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) The Quotaholders' Meeting of the Pledgor has approved the
Security Interest of the Quota in favor of Pledgee.
(4) Upon the delivery of the certificate evidencing ownership
of the Quota and the registration of the Security Interest (prenda) in the
partners special registry book (libro especial de socios) of the Company, as
appropriate, then the Pledgee will have a valid and perfected security interest
in the Collateral subject to no prior lien.
(5) 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 (estatutos sociales) of the Company.
(6) 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. (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 (as such term is defined in the Credit Agreement) 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. 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 Negotiable Instruments and Credit Operations 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.
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PLEDGE AGREEMENT
SIXTH. (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.
(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.
SEVENTH. 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.
EIGHTH. 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.
NINTH. 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 return the Quota to the Pledgor.
TENTH. 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.
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PLEDGE AGREEMENT
ELEVENTH. 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.
TWELFTH. All notices, requests and other communications
provided for hereunder shall be in writing (including telegraphic, facsimile
transmission or electronic communication) and mailed, by certified mail, return
receipt requested, telegraphed 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.
THIRTEENTH. (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.
FOURTEENTH. This Agreement shall be construed in accordance
with and governed by the laws of Mexico.
FIFTEENTH. 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.
SIXTEENTH. 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.
SEVENTEENTH. 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.
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PLEDGE AGREEMENT
EIGHTEENTH. Borrower 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 Sections (a) and (b) above.
(SIGNATURE PAGES FOLLOW)
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PLEDGE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have themselves
executed or caused this PLEDGE AGREEMENT to be executed by their duly authorized
representatives as of the date first above written.
THE PLEDGOR THE PLEDGEE AS AGENT FOR THE BANKS
CINEMARK MEXICO (USA), INC. BANK OF AMERICA, N.A., AS
ADMINISTRATIVE AGENT
By: By:
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Name: Xxxxx Xxxxx
Title: Vice President
Telefax Agency Management Services
CA 9-706-11-03
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Telefax: (000) 000-0000
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PLEDGE AGREEMENT
By its execution hereof, Cinemark Holdings Mexico, S. de X.X.
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 Holdings Mexico, S. de X.X. de C.V. including the
obligations to (I) record the pledge agreed upon hereof in favor of the Pledgee
in its partners special registry book (libro especial de socios), (II) record
any transfer of the Quota under Section Sixth hereof in the partners special
registry book (libro especial de socios), and (III) deliver to the Pledgee, as
agent for the Banks, any Distribution which Cinemark Holdings Mexico, S. de X.X.
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 Holdings Mexico, S. de X.X. de C.V.
THE COMPANY
CINEMARK HOLDINGS MEXICO,
S. DE X.X. DE C.V
By
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Name
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Title
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Address:
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Telefax:
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