EXHIBIT 4.4
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CINEMARK USA, INC.
AND
U.S. TRUST COMPANY OF TEXAS, N.A.
AS TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE
DATED JUNE 26, 1997
AND EFFECTIVE AS OF AUGUST 15, 1996
TO
INDENTURE
DATED AS OF AUGUST 15, 1996
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9-5/8% SERIES A AND SERIES B SENIOR SUBORDINATED NOTES DUE 2008
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FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"),
dated June 26, 1997 and effective as of August 15, 1996, is between Cinemark
USA, Inc., a Texas corporation (the "COMPANY"), and U.S. Trust Company of Texas,
N.A., as trustee (the "TRUSTEE"). All terms not defined herein shall have the
meanings assigned to them in the Indenture defined below, as such Indenture is
amended by this Supplemental Indenture.
RECITALS
A. The Company and the Trustee executed an indenture, dated as of
August 15, 1996 (the "INDENTURE"), relating to $200,000,000 of the Company's
9-5/8% Series A and Series B Senior Subordinated Notes due 2008 (the "NOTES").
B. Section 4.4(a) of the Indenture provides that the Company shall
deliver to the Trustee an Officers' Certificate within 45 days after the end of
each fiscal quarter stating that the Company has complied with its obligations
under the Indenture for each such fiscal quarter (the "OFFICERS' CERTIFICATE").
C. Pursuant to Section 9.1(a) of the Indenture, the Company and the
Trustee desire to amend Section 4.4(a) of the Indenture to provide that the
Company will deliver to the Trustee the Officers' Certificate within (i) 45 days
after the end of each fiscal quarter for the first three quarters of each fiscal
year and (ii) 90 days after the end of the fourth fiscal quarter of each fiscal
year.
D. Due to a clerical error, the Notes and the form thereof contained in
the Indenture do not specifically refer to the Notes as senior subordinated
obligations of the Company.
E. The Indenture, the Offering Memorandum, the registration statement
relating to the Exchange Offer and all other documentation (other than the
Notes) properly refer to the Notes as senior subordinated obligations of the
Company.
F. Pursuant to Section 9.1(a) of the Indenture, the Company and the
Trustee desire to amend Exhibit A thereto to reflect the status of the Notes as
senior subordinated obligations of the Company.
G. All conditions precedent provided for in the Indenture relating to
this Supplemental Indenture have been complied with.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, the Company and
the Trustee mutually covenant and agree for the equal and proportionate benefit
of all Holders of the Notes as follows:
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ARTICLE ONE
Amendment of Indenture
Section 1.1 Amendment of Section 4.4(a) of the Indenture. Section
4.4(a) of Article 4 of the Indenture is hereby deleted in its entirety and
substituted in lieu thereof with the following:
"(a) The Company shall deliver to the Trustee, within 45 days after the
end of each of the first three fiscal quarters of each year, and within
90 days after the end of the last fiscal quarter of each year, an
Officers' Certificate stating that a review of the activities of the
Company and its Subsidiaries during the preceding fiscal quarter, or
fiscal year, as appropriate, has been made under the supervision of the
signing Officers with a view to determining whether the Company has
kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has
kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he or she
may have knowledge and what action the Company is taking or proposes to
take with respect thereto) and that to the best of his or her knowledge
no event has occurred and remains in existence by reason of which
payments on account of the principal of, or interest on, the Notes are
prohibited or, if such event has occurred, a description of the event
and what action the Company is taking or proposes to take with respect
thereto."
Section 1.2 Amendments to Exhibit A to the Indenture. Exhibit A to the
Indenture is amended as follows:
(a) The face of the form of Note (page A-3) is hereby amended by
deleting the title:
"9-5/8 % Senior Notes due 2008[, Series A] [, Series B]"
and inserting in lieu thereof the following:
"9-5/8% Senior Subordinated Notes due 2008 [, Series A] [, Series
B]".
(b) The face of the form of Note (page A-4) is hereby amended by
deleting the title:
"9-5/8 % Senior Notes due 2008[, Series A] [, Series B]"
and inserting in lieu thereof the following:
"9-5/8 % Senior Subordinated Notes due 2008 [, Series A] [,
Series B]".
(c) Paragraph 4 of the form of Note is hereby amended by adding
the following new paragraph at the end thereof.
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The Indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness (as
defined in the Indenture) and this Note is issued subject to such
provisions. Each Holder of this Note, by accepting the same, (i) agrees
to and shall be bound by such provisions, (ii) authorizes and directs
the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in the
Indenture and (iii) appoints the Trustee as his attorney-in-fact for
such purpose.
ARTICLE TWO
Miscellaneous Provisions
Section 2.1 Counterparts. This Supplemental Indenture may be signed in
counterparts and by the different parties hereto in separate counterparts, each
of which shall constitute an original and all of which together shall constitute
one and the same instrument.
Section 2.2 Severability. In case any provision in this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 2.3 Headings. The headings of the Articles and Sections of this
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part of this Supplemental Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 2.4 Successors and Assigns. All the covenants, stipulations,
promises and agreements in this Supplemental Indenture by or on behalf of the
Company shall bind its respective successors and assigns, whether so expressed
or not.
Section 2.5 Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
Section 2.6 Effect of Supplemental Indenture. Except as amended by this
Supplemental Indenture, the terms and provisions of the Indenture shall remain
in full force and effect.
Section 2.7 Trustee. The Trustee accepts the modifications of trusts
referenced in the Indenture and effected by this Supplemental Indenture. Without
limiting the generality of the foregoing, the Trustee assumes no responsibility
for the correctness of the recitals herein contained, which shall be taken as
the statements of the Company, and the Trustee shall not be responsible or
accountable in any way whatsoever for or with respect to the validity or
execution or sufficiency of this Supplemental Indenture, and the Trustee makes
no representation with respect thereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Supplemental
Indenture as of the date first above written.
CINEMARK USA, INC.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Vice President
U.S. TRUST COMPANY OF TEXAS, N.A.,
as Trustee
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Vice President
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