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EXHIBIT 10.11(b)
FIRST AMENDMENT TO
FIRST AMENDED AND RESTATED REDUCING REVOLVING CREDIT
AGREEMENT
THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED REDUCING REVOLVING
CREDIT AGREEMENT is made and dated as of December 12, 1997 (this "First
Amendment") among CINEMARK USA, INC., a Texas corporation (the "Company"), the
financial institutions (collectively, the "Banks") party to the Credit
Agreement referred to below, and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Administrative Agent (the "Administrative Agent"), and amends
that certain First Amended and Restated Reducing Revolving Credit Agreement
dated as of December 12, 1996, among the Company, the Banks and the
Administrative Agent (as so amended or modified from time to time, "Agreement").
RECITAL
The Company has requested that the Banks and the Administrative Agent
amend certain provisions of the Agreement, and the Banks and the Administrative
Agent are willing to do so on the terms and conditions set forth 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. All references to the Agreement
shall mean the Agreement as hereby amended.
2. Amendments to Agreement.
2.1 The chart in the definition of "Applicable Amount" in Section 1.1 of
the Agreement is amended and restated in its entirety as follows:
"Ratio of Total Indebtedness
To Annualized Offshore Base Commitment
Cash Flow Rate Loans(1) Rate Loans Fee
---------------------------- ------------- ---------- ----------
x > or = 5.00 1.875% 0.625% 0.3750%
4.50 < or = x < 5.00 1.750% 0.500% 0.3750%
4.00 < or = x < 4.50 1.500% 0.250% 0.3500%
3.50 < or = x < 4.00 1.250% -- 0.3250%
3.00 < or = x < 3.50 1.000% -- 0.2750%
2.50 < or = x < 3.00 0.750% -- 0.2250%
2.00 < or = x < 2.50 0.625% -- 0.2000%
x < 2.00 0.500% -- 0.1875%
-------------------
(1) See provisos immediately following this table for adjustments to Applicable
Amount for Offshore Rate Loans.
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2.2 The chart in Section 7.12 of the Agreement is amended and restated in
its entirety as follows:
"Fiscal Quarters Ending Maximum Ratio
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Closing Date through 12/31/98 6.00 to 1
1/1/99 through 12/31/99 5.00 to 1
1/1/2000 and thereafter 4.50 to 1"
3. Representations and Warranties. The Company represents and warrants
to Banks and Administrative Agent that, on and as of the date hereof, and after
giving effect to this First Amendment:
3.1 Authorization. The execution, delivery and performance of this First
Amendment have been duly authorized by all necessary corporate action by the
Company and this First Amendment has been duly executed and delivered by the
Company.
3.2 Binding Obligation. This First 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 be equitable principles relating to
enforceability.
3.3 No Legal Obstacle to Agreement. The execution, delivery and
performance of this First 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 First
Amendment, or the transactions contemplated hereby.
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 on and as of the date hereof as though made on and as
of the date hereof, 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 First Amendment
shall be subject to the delivery of the following to the Administrative Agent
in form and substance satisfactory to the Administrative Agent and the Banks:
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4.1 Authorized Signatories. A certificate, signed by the Secretary or an
Assistant Secretary of the Company and dated the date of this First Amendment,
as to the incumbency of the person or persons authorized to execute and deliver
this First Amendment and any instrument or agreement required hereunder on
behalf of the Company.
4.2 Other Evidence. Such other evidence with respect to the Company or
any Restricted Subsidiary as of the Administrative Agent or any Bank may
reasonably request in connection with this First Amendment and the compliance
with the conditions set forth herein.
5. Miscellaneous.
5.1 Effectiveness of the Agreement and the Loan Documents. 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.
5.2 Waivers. This First Amendment is specific in time and in intent
and does not constitute, nor should it be construed as, a waiver of any other
right, power or privilege under the Agreement, or under any agreement,
contract, indenture, document, or instrument mentioned in the Agreement; nor
does it preclude any exercise thereof or the exercise of any other right, power
or privilege, nor shall any future waiver of any right, power, privilege or
default hereunder, or under the Agreement or any agreement, contract,
indenture, document or instrument mentioned in the Agreement, constitute a
waiver of any other default of the same or of any other term or provision.
5.3 Counterparts. This First 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 First Amendment shall not become
effective until the Company, the Administrative Agent and the Majority Banks
shall have signed a copy hereof, and the Pledgors shall have consented hereto,
whether the same or counterparts, and the same shall have been delivered to the
Administrative Agent.
5.4. Jurisdiction. This First Amendment shall be governed by and
construed under the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed and delivered as of the date first written above.
CINEMARK USA, INC.
By: /s/ XXXX XXXXXXX
---------------------------------
Name: Xxxx Xxxxxxx
-------------------------------
Title: Vice President
------------------------------
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION
AS ADMINISTRATIVE AGENT
By: /s/ XXXXX XXXXX
---------------------------------
Xxxxx Xxxxx
Vice President
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION, AS A BANK
By: /s/ XXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------
Title: Managing Director
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NATIONSBANK OF TEXAS, N.A.
By: /s/ XXXXXXX X. XXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------------
Title: Vice President
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CIBC INC.
By: /s/ XXXXXXX XXXXXX
---------------------------------
Name: Xxxxxxx Xxxxxx
-------------------------------
Title: Authorized Signatory
------------------------------
(Signatures continue)
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THE BANK OF NEW YORK
By: /s/ XXXXXX X. XXXX, XX.
------------------------------
Name: Xxxxxx X. Xxxx, Xx.
----------------------------
Title: Senior Vice President
---------------------------
BANKBOSTON N.A.
By: /s/ XXXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxxx X. Xxxxxx
----------------------------
Title: Director
---------------------------
COMERICA BANK-TEXAS
By: /s/ XXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxx X. Xxxxxx
----------------------------
Title: Vice President
---------------------------
FLEET BANK N.A.
By: /s/ XXXX X. XXXXX
------------------------------
Name: Xxxx X. Xxxxx
----------------------------
Title: Vice President
---------------------------
THE FUJI BANK, LIMITED
By: /s/ XXXXX XXXXXXXX
------------------------------
Name: Xxxxx Xxxxxxxx
----------------------------
Title: Vice President & Manager
---------------------------
THE BANK OF NOVA SCOTIA
By: /s/ XXXXX X. XXXXXX
------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------
Title: Authorized Signatory
---------------------------
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CONSENT OF PLEDGORS
The undersigned Pledgors under that certain First Amended and Restated
Xxxxxxxx Family Pledge Agreement dated as of December 12, 1996 executed by
Pledgors for the benefit of Bank of America National Trust and Savings
Association as Administrative Agent hereby consent to the foregoing First
Amendment dated as of the date first written above to the First Amended and
Restated Reducing Revolving Credit Agreement dated as of December 12, 1996,
among Cinemark USA, Inc., the Banks named therein and Bank of America National
Trust and Savings Association as Administrative Agent, and represent and
warrant to the Administrative Agent and the Banks that there is no defense,
counterclaim or offset of any type or nature under the Pledge Agreement, and
that the same remain in full force and effect as to them after giving effect
hereto and thereto.
/s/ XXX XXX XXXXXXXX /s/ XXXXX XXXXXXXX
------------------------- -------------------------
XXX XXX XXXXXXXX XXXXX XXXXXXXX, SPOUSE OF
XXX XXX XXXXXXXX
XXXXXXXX SPECIAL TRUST XXXXXXXX GRANDCHILDREN TRUST
FOR XXXXXXX XXX XXXXXXX
XXXXXXXX GRANDCHILDREN TRUST XXXXXXXX GRANDCHILDREN
FOR ASHLEY XXX XXX TRUST FOR XXXXX XXXXX XXX
XXXXXXXX GRANDCHILDREN TRUST XXXXXXXX GRANDCHILDREN
FOR SKYLER XXXX XXXXXXXX TRUST FOR CASSIE XXX XXXXXXX
By: /s/ XXX XXX XXXXXXXX
-------------------------
Name:
-----------------------
Trustee
By: /s/ XXX XXXX
-------------------------
Name: Xxx Xxxx
-----------------------
Trustee
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