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EXHIBIT 10.13(d)
CINEMARK MEXICO GUARANTY
TO: Bank of America National Trust as
Administrative Agent (the "Administrative Agent")
PRELIMINARY STATEMENTS:
A. Reference is made to the Credit Agreement dated as of November
18, 1997 (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
International, Inc. (the "Borrower"), the banks from time to time party thereto
(the "Banks") and Bank of America National Trust and Savings Association, as
Administrative Agent (the "Administrative Agent") for said Xxxxx.
B. Cinemark Mexico (USA), Inc., a Texas corporation ("Guarantor")
is a Wholly-Owned Subsidiary of the Borrower and has derived, and expects to
continuing deriving, direct and indirect benefits from extensions of credit made
to the Borrower, and now desires to guaranty the Obligations.
NOW, THEREFORE, the Guarantor agrees as follows:
1. For valuable consideration, the Guarantor unconditionally,
absolutely and irrevocably guarantees and promises to pay to the Administrative
Agent, or order, on demand made during the existence of an Event of Default, 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 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
reasonable 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.
The Guarantor agrees that nothing shall discharge or satisfy its obligations
created hereunder except for the full payment of the Obligations.
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Any payment by the Guarantor shall not reduce its obligations hereunder with
respect to guarantying all Obligations from time to time outstanding.
3. The 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 the Guarantor, whether action is brought against the
Borrower or whether the Borrower is joined in any such action or actions. The
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 the 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 the 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 the Guarantor of the occurrence of
any Event of Default under the terms and provisions of the Credit 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 the
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
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(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, the 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 the Guarantor from its undertakings hereunder and the Guarantor
hereby consents to each and all of the foregoing actions, events and
occurrences.
5. The 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 the 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 the Guarantor's
subrogation rights, rights to proceed against the Borrower for reimbursement,
or any other rights of the Guarantor to proceed against the Borrower, against
any other guarantor, or against any other security, with the Guarantor
understanding that the exercise by the Administrative Agent and/or the
Guarantied Parties of certain rights and remedies may offset or eliminate the
Guarantor's right of subrogation against the Borrower, and that the Guarantor
may therefore incur partially or totally non-reimbursable liability hereunder;
and
(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 the Guarantor may be entitled.
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6. The 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 any, and shall not seek to
assert or enforce the same. The Guarantor understands that the exercise by
Administrative Agent of certain rights and remedies contained in the Loan
Documents may affect or eliminate the Guarantor's right of subrogation if any,
against the Borrower and that the Guarantor may therefore incur a partially or
totally non-reimbursable liability hereunder; nevertheless, the 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 the Guarantor that the obligations hereunder shall be absolute,
independent and unconditional under any and all circumstances.
7. The 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. The
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. The
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. Notwithstanding anything to the contrary contained herein, the
Guarantor's liability pursuant to this Guaranty shall be limited to the greater
of: (a) the 'reasonably equivalent value,' received by the 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, the Guarantor or any
of its subsidiaries, directly or indirectly, by Borrower 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 the 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 the Guarantor and its subsidiaries taken as a whole as of the applicable
date of determination of the incurrence of the Guarantor's obligations
hereunder over (ii) a 'fair valuation, of the 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 the Guarantor and its
subsidiaries taken as a whole to the Borrower or any other Subsidiary or
otherwise subordinated to the Guarantor's obligations hereunder, it being
understood that a portion of such indebtedness owing to Borrower shall be
discharged on a dollar-for-dollar basis in an amount equal to
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the amount paid by the 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 New York 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 the 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, the Guarantor agrees, to the maximum extent permitted by law, that
'fair valuation' of the 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 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 the Guarantor or its
subsidiaries is liable for matured known liquidated liabilities or would
reasonably be expected to become liable on contingent 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. The Guarantor represents and warrants for and with respect to
itself that:
(a) The 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 the 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 the
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
the Guarantor is a party or any order, injunction, writ or decree of any
Governmental Authority to which the 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, the Guarantor of the Guaranty, except for routine
corporate filings to maintain the corporate good standing of the Guarantor.
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(d) This Guaranty constitutes the legal, valid and binding
obligations of the Guarantor, enforceable against the 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 the Guarantor, threatened against or affecting the 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 the Guarantor of this
Guaranty does not constitute, to the best knowledge of the 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.
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 Guarantor, in care of the Borrower.
12. This Guaranty shall be binding upon the successors and assigns of
the 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 the 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 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 reasonable
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
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subject matter of this Guaranty which preceded or may accompany the execution
of this Guaranty.
15. (a) THIS GUARANTY SHALL BE GOVERNED BY, AND, CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED THAT THE
ADMINISTRATIVE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
GUARANTY MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF THE GUARANTOR AND THE ADMINISTRATIVE AGENT CONSENTS,
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF
THOSE COURTS. EACH OF THE GUARANTOR AND THE ADMINISTRATIVE AGENT IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED
ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF
THIS GUARANTY OR ANY DOCUMENT RELATED HERETO. THE GUARANTOR AND THE
ADMINISTRATIVE AGENT EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
16. WAIVER OF JURY TRIAL. THE GUARANTOR AND THE ADMINISTRATIVE AGENT
EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR
PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE.
THE PLEDGOR AND THE ADMINISTRATIVE AGENT EACH AGREE THAT ANY SUCH CLAIM OR
CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT
TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS GUARANTY OR THE OTHER LOAN DOCUMENTS OR
ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY AND THE
OTHER LOAN DOCUMENTS.
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17. NOTICE OF CLAIMS; CLAIMS BAR. THE GUARANTOR HEREBY AGREES THAT IT
SHALL GIVE PROMPT WRITTEN NOTICE OF ANY CLAIM OR CAUSE OF ACTION IT BELIEVES IT
HAS, OR MAY SEEK TO ASSERT OR ALLEGE AGAINST THE ADMINISTRATIVE AGENT OR ANY
BANK, WHETHER SUCH CLAIM IS BASED IN LAW OR EQUITY, ARISING UNDER OR RELATED TO
THIS GUARANTY, OR ANY ACT OR OMISSION TO ACT BY THE ADMINISTRATIVE AGENT OR ANY
BANK WITH RESPECT HERETO OR THERETO, AND THAT IF IT SHALL FAIL TO GIVE SUCH
PROMPT NOTICE TO THE ADMINISTRATIVE AGENT WITH REGARD TO ANY SUCH CLAIM OR
CAUSE OF ACTION, IT SHALL BE DEEMED TO HAVE WAIVED, AND SHALL BE FOREVER BARRED
FROM BRINGING OR ASSERTING SUCH CLAIM OR CAUSE OF ACTION IN ANY SUIT, ACTION OR
PROCEEDING IN ANY COURT OR BEFORE ANY GOVERNMENTAL AGENCY.
18. 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.
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19. 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 the Guarantor if the Administrative Agent so requests during the
existence of an Event of Default shall be collected, enforced and received by
the 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 the
Guarantor under the other provisions of this guaranty.
DATED AS OF: December 18,1997
CINEMARK MEXICO (USA), INC.
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
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Title: Vice President
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BANK OF AMERICA NATIONAL TRUST
SAVINGS ASSOCIATION, as Administrative
Agent
By: /s/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx
Vice President
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