EXHIBIT 10.13(e)
GUARANTY
TO: Bank of America National Trust and Savings Association, as Administrative
Agent (the "Administrative Agent")
PRELIMINARY STATEMENTS:
A. Reference is made to the Second Amended and Restated Reducing
Revolving Credit Agreement dated as of February 12, 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 USA, Inc. (the "Company"), the banks from time
to time party thereto (together with any Bank or any Affiliate of any bank, in
its capacity as a counterparty under any Swap Contract, the "Banks"), Bank of
America National Trust and Savings Association, as Administrative Agent (the
"Administrative Agent") for said Banks, NationsBank of Texas, N.A. as
Syndication Agent, and BankBoston, N.A., The Bank of Nova Scotia, CIBC Inc. and
Fleet Bank, N.A., as Co-Agents.
B. Each Guarantor is a Material Restricted Subsidiary and has derived,
and expects to continuing deriving, direct and indirect benefits from extensions
of credit made to the Company, and now desires to guaranty the Obligations
C. It is a requirement of the Credit Agreement that each Material
Restricted Subsidiary execute and delivery this Guaranty.
NOW, THEREFORE, each Guarantor agrees as follows:
1. For valuable consideration, each of the undersigned (each, a
"Guarantor" and collectively, the "Guarantors") unconditionally, absolutely and
irrevocably jointly and severally 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 and the Administrative 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 Company, now,
or hereafter made, incurred, or created, whether voluntary or involuntarily, and
however arising, including, without limitation, any and all attorneys' fees
(including the allocated cost of inhouse counsel), costs, premiums, charges, or
interest owed by the Company to the Guarantied Parties, whether due or not due,
absolute or contingent, liquidated or unliquidated, determined or undetermined,
whether the Company 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 Company to incur new Obligations, continue the
Obligations from time to time, or renew them after they have been satisfied.
Each Guarantor agrees that nothing shall discharge or satisfy its obligations
created hereunder except for the full payment of the Obligations. Any payment by
any Guarantor shall not reduce its maximum obligation hereunder.
3. Each 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 Company, or of
any other guarantor, and that a separate action or actions may be brought and
prosecuted against any Guarantor, whether action is brought against the Company
or whether the Company is joined in any such action or actions. Each Guarantor
agrees that any releases which may be given by the Administrative Agent and the
Guarantied Parties to the Company or any other guarantor shall not release it
from this Guaranty.
4. The obligations of each 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 any 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 any 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 any
Guarantor, any other guarantor of any of the Obligations of the Company 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.
To the extent any of the foregoing refers to any actions which the
Administrative Agent or the Guarantied Parties may take, each 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
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advisable, without, in any way or respect, impairing, affecting, reducing or
releasing any Guarantor from its undertakings hereunder and each Guarantor
hereby consents to each and all of the foregoing actions, events and
occurrences.
5. Each 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
Company 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 such Guarantor may now or at any time hereafter have against the
Company 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 such Guarantor's
subrogation rights, rights to proceed against the Company for reimbursement, or
any other rights of such Guarantor to proceed against the Company, against any
other guarantor, or against any other security, with such Guarantor
understanding that the exercise by the Administrative Agent and/or the
Guarantied Parties of certain rights and remedies may offset or eliminate such
Guarantor's right of subrogation against the Company, and that such 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 such Guarantor may be entitled; and
(f) without limiting the generality of the foregoing, such Guarantor
hereby expressly waives any and all benefits of California Civil Code Sections
2809, 2810, 2819, 2825, 2839 and 2845 through 2850.
6. Each 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 Company or any other guarantor, if any, and shall not seek to assert
or enforce the same. Each Guarantor understands that the exercise by
Administrative Agent of certain rights and remedies contained in the Loan
Documents may affect or eliminate such Guarantor's right of subrogation if any,
against the Company and that such Guarantor may therefore incur a partially or
totally non-reimbursable liability hereunder; nevertheless, such Guarantor
hereby authorizes and empowers the
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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 such Guarantor that the
obligations hereunder shall be absolute, independent and unconditional under any
and all circumstances.
7. Each Guarantor is presently informed of the financial condition of
the Company and of all other circumstances which a diligent inquiry would reveal
and which bear upon the risk of nonpayment of the Obligations. Each Guarantor
hereby covenants that it will continue to keep itself informed of the financial
condition of the Company, the status of other guarantors, if any, and of all
other circumstances which bear upon the risk of nonpayment. Each 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 Guarantors for the purpose of establishing the terms
set forth therein and shall constitute prima facie proof thereof.
9. Notwithstanding anything to the contrary contained herein, each
Guarantor's liability pursuant to this Guaranty shall be limited to the greater
of (a) the reasonably equivalent value, received by such Guarantor or any of its
subsidiaries arising out of the Loan Documents (including, without limitation,
repayment of intercompany or third party debt of, investments made in, and
capital contributions, advances and loans made to, such Guarantor or any of its
subsidiaries, directly or indirectly, by Company or any other subsidiary with,
or as a direct or indirect result of obtaining, the proceeds of any credit
extended under the Loan Documents) in exchange for or in connection with such
Guarantor's guaranty of the Obligations, and (b) 95% of the excess of (i) a
`fair valuation' of the amount of the assets and other property of such
Guarantor and its subsidiaries taken as a whole as of the applicable date of
determination of the incurrence of such Guarantor's obligations hereunder over
(ii) a `fair valuation' of such Guarantor's and its subsidiaries' debts taken as
a whole as of such date, but excluding liabilities arising under this Guaranty
and excluding all liabilities owing by such Guarantor and its subsidiaries taken
as a whole to the Company or any other Subsidiary or otherwise subordinated to
such Guarantor's obligations hereunder, it being understood that a portion of
such indebtedness owing to Company shall be discharged on a dollar-for-dollar
basis in an amount equal to the amount paid by such Guarantor hereunder. The
meaning of the terms `reasonably equivalent value' and `fair valuation,' and the
calculations of assets and other property and debts shall be determined in
accordance with the applicable federal and California state laws in effect on
the date hereof governing the determination of the insolvency of a debtor and to
further the intent of all parties hereto to maximize the amount payable by a
Guarantor without rendering it insolvent or leaving it with an unreasonably
small amount of capital in relation to its business, in either case, at the
applicable date for the determination of the incurrence of its obligations
hereunder, provided, however, each Guarantor agrees, to the maximum extent
permitted by law, that `fair valuation' of such Guarantor's and its
subsidiaries' assets and other properties means the fair market sales price as
would be obtained in an arms-length transaction between competent, informed and
willing parties under no compulsion to sell or buy or collections thereof
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obtained in the ordinary course of business and `fair valuation' of its debts
means the amount, in light of the applicable circumstances, at the time, for
which such Guarantor or its subsidiaries is liable for matured known liquidated
liabilities or would reasonably be expected to become liable on continent or
unliquidated liabilities as they mature and taking into consideration the nature
of any such contingency and the probability that liability would be imposed.
10. Each Guarantor represents and warrants for and with respect to
itself that:
(a) Such 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 such 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 such
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
such Guarantor is a party or any order, injunction, writ or decree of any
Governmental Authority to which such Guarantor or its Property is subject; or
(iii) violate any Requirement of Law.
(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, such Guarantor of the Guaranty, except for routine
corporate filings to maintain the corporate good standing of such Guarantor.
(d) This Guaranty constitutes the legal, valid and binding obligations
of such Guarantor, enforceable against such 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 such Guarantor, threatened against or affecting such 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 such Guarantor of this
Guaranty does not constitute, to the best knowledge of such Guarantor, a
"fraudulent conveyance," "fraudulent obligation" or "fraudulent transfer" within
the meanings of the
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Uniform Fraudulent Conveyances Act or Uniform Fraudulent Transfer Act, as
enacted in any jurisdiction.
11. 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 Guarantors, in care of the Company.
12. This Guaranty shall be binding upon the successors and assigns of
each 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 any 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.
13. 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.
14. The Guarantors shall jointly and severally 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).
15. 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 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.
16. 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.
17. This Guaranty may be executed in any number of counterparts and by
the different patties 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.
18. Terms not defined herein shall have the meanings assigned to them
in the Credit Agreement.
19. Any indebtedness of the Company now or hereafter held by any
Guarantor is hereby subordinated to the indebtedness of the Company to the
Administrative Agent and the Guarantied Parties; and such indebtedness of the
Company to any Guarantor if the Administrative Agent so requests shall be
collected, enforced and received by each Guarantor as
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trustee for the Administrative Agent and the Guarantied Parties and be paid over
to the Administrative Agent on account of the indebtedness of the Company to the
Administrative Agent and the Guarantied Parties but without reducing or
affecting in any manner the liability of any Guarantor under the other
provisions of this guaranty.
20. It is not necessary for the Guarantied Parties to inquire into the
powers of the Company 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.
21. Any Person becoming or which is designated a Material Restricted
Subsidiary shall become a Guarantor hereunder by executing and delivering a
supplement hereto substantially in the form of Exhibit A hereto and by complying
with Section 6.13 of the Credit Agreement. Upon the Administrative Agent's
receipt of a duly executed and delivered supplement, Exhibit A shall be deemed
amended to include such additional Person as a Guarantor and such Person shall
become a party hereto as through a signatory hereto, with no amendment or
further action required hereunder, and thereafter, all references to Guarantors
shall include such additional Person.
DATED AS OF: February 12,1998
"GUARANTOR"
CINEMARK PROPERTIES INC.
By /s/ Xxxx Xxxxxxx
---------------------------
Name Xxxx Xxxxxxx
---------------------------
Title Senior Vice President
---------------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS
ADMINISTRATIVE AGENT
By: /s/ Xxxxx Xxxxx
---------------------------
Vice President
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EXHIBIT A
TO
GUARANTY
ADDITIONAL GUARANTORS
Dated: __________, 199_
Reference is made to that certain Guaranty dated as of __________ as
amended (the "Guaranty"), by and among the Guarantors from time to time party
thereto in favor of Bank of America National Trust and Savings Association, as
Administrative Agent for the Guarantied Parties. Unless otherwise defined
herein, capitalized terms used herein have the respective meanings assigned to
them in the Guaranty and the Credit Agreement referred to therein.
____________________, a Material Restricted Subsidiary of
____________________, ("Subsidiary") hereby agrees to become a Guarantor under
the Guaranty, and agrees to be bound by all the terms and conditions applicable
to a Guarantor thereunder as of the date hereof.
The undersigned Subsidiary hereby represents and warrants to the
matters set forth in Section 10 of the Guaranty as of the date hereof.
The undersigned existing Guarantors hereby consent to Subsidiary
becoming a party to the Guaranty. This supplement to the Guaranty is executed by
the parties hereto as of the date first written above.
"SUBSIDIARY"
By
-------------------------
Name
-------------------------
Title
-------------------------
EXISTING GUARANTORS
By
-------------------------
Name
-------------------------
Title
-------------------------
ACKNOWLEDGED:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS
ADMINISTRATIVE AGENT
By:
--------------------------
Vice President
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