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EXHIBIT 10.13(b)
FRN PLEDGE AGREEMENT
THIS FRN PLEDGE AGREEMENT (this "Agreement"), dated as of September 11,
1998 is executed by CINEMARK INVESTMENTS CORPORATION, a Delaware corporation
(the "Company") for the benefit of BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION as agent (in such capacity herein called the "Administrative Agent")
for itself, each Bank (as hereinafter defined) and NationsBank, N.A., as
Syndication Agent (the Administrative Agent, the Syndication Agent and each Bank
in such capacities are referred to herein collectively as the "Secured
Parties"). Terms not defined herein have the meanings assigned to them in the
Credit Agreement referred to below.
PRELIMINARY STATEMENTS:
A. Reference is made to that certain Credit Agreement dated as of
September 11, 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 the Company,
the banks party thereto (the "Banks") and Bank of America National Trust and
Savings Association, as Administrative Agent (in such capacity, the
"Administrative Agent") for said Banks and NationsBank, N.A., as Syndication
Agent (in such capacity, the "Syndication Agent").
B. It is a requirement of the Credit Agreement that Company execute and
delivery this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. GRANT OF SECURITY INTEREST.
(a) As security for the payment or performance when due (whether at
stated maturity, by acceleration or otherwise) of the Obligations to any Secured
Party, now existing or hereafter arising, the Company hereby pledges, assigns
and transfers to the Administrative Agent for purposes of security and for the
equal benefit of the Secured Parties, and hereby grants to the Administrative
Agent for the equal benefit of the Secured Parties, a lien on, and security
interest in, all of the Company's right, title and interest in, to and under the
following, whether now or hereafter existing and whether now owned or hereafter
acquired (collectively, the "Collateral"):
(i) any and all Fixed Rate Notes, together with any
collateral security therefor.
(ii) all dividends, cash, instruments and other property or
proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Fixed
Rate Notes (all of the foregoing being the "Proceeds"); provided,
however, that so long as no Event of Default has occurred and is
continuing and subject to Section 2.08(a) of the Credit Agreement, the
Company may receive free and clear of
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any security interest under this Agreement any payments made under the
Fixed Rate Notes.
(b) If an Event of Default has occurred and is continuing, the
Administrative Agent shall have the right, at any time in its discretion and
without notice to the Company, to transfer to or to register in its name or any
of its nominees any or all of the Collateral, subject only to the revocable
rights specified in Section 6(a). In addition, if an Event of Default has
occurred and is continuing, the Administrative Agent shall have the right at any
time to exchange certificates or instruments representing or evidencing
Collateral for certificates or instruments of smaller or larger denominations.
2. SECURITY FOR OBLIGATIONS. This Agreement secures, in accordance with
the provisions hereof, the payment of all of the Obligations to any Secured
Party under any Loan Document now existing or hereafter arising. The Collateral
shall secure the Obligations owing to the Secured Parties equally and ratably.
3. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
as of the date hereof as follows:
(a) The chief place of business and chief executive office of the
Company and the office where the Company keeps its records concerning the
Collateral (hereinafter, "Records") is located at the address for notices for
the Company as provided in the Credit Agreement.
(b) The Company has delivered to the Collateral Agent all instruments,
documents, chattel paper and other items of Collateral in which a security
interest is or may be perfected by possession.
(c) Each contract right, item of chattel paper, instrument or any other
right to the payment of money constituting Collateral is genuine and enforceable
in accordance with its terms against Cinemark Brasil; any amount represented by
the Company to the Administrative Agent as owing by Cinemark Brasil is the
correct amount actually and unconditionally owing, free or any defense, set off
claim or counterclaim.
(d) No effective financing statement or other instrument similar in
effect covering all or any part of the Collateral owned by the Company is on
file in any recording office, except as may have been filed pursuant to this
Agreement.
(e) The Company is lawfully possessed of ownership of the Collateral
owned by the Company which exists on the date hereof, and has full power and
lawful authority to grant the Liens in and on the Collateral hereunder.
(f) This Agreement creates in favor of the Administrative Agent, for
the ratable benefit of the Secured Parties, a valid and enforceable first
priority Lien on the Collateral, subject to no Liens, securing the payment and
performance of the Obligations, and all filings and other actions necessary to
perfect such Lien have been duly made or taken.
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(g) The Company is duly organized and existing under the laws of the
state of its incorporation, and is properly licensed and in good standing in,
and where necessary to maintain its rights and privileges has complied with the
fictitious name statute of, every jurisdiction in which it is doing business,
except where the failure to be licensed or be in good standing or comply with
any such statute will not have a material adverse effect on the ability of the
Company to perform its obligations hereunder or under any instrument or
agreement required hereunder.
(h) The execution, delivery and performance of this Agreement and any
instrument or agreement required hereunder are within the corporate power of the
Company, have been duly authorized by, and are not in conflict with the terms of
any charter, by-laws, trust instrument or other organization papers, as
applicable, of, the Company.
(i) Except for Brazilian regulatory approval which has been obtained,
no approval, consent, exemption or other action by, or notice to or filing with,
any Governmental Authority is necessary in connection with the execution,
delivery, performance or enforcement by the Company of this Agreement or any
instrument or agreement required hereunder, except as may have been obtained and
certified copies of which have been delivered to Administrative Agent.
(j) There is no law, rule or regulation, nor is there any judgment,
decree or order of any court or Governmental Authority binding on the Company,
which would be contravened by the execution, delivery, performance or
enforcement by the Company of this Agreement or any instrument or agreement
required hereunder.
(k) This Agreement is a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, and any
instrument or agreement required hereunder, when executed and delivered, will be
similarly legal, valid, binding and enforceable, except where enforceability
thereof may be limited by applicable law relating to bankruptcy, insolvency,
moratorium or other similar laws affecting creditors' rights generally or by the
application of general principles o equity.
(l) There is no action, suit or proceeding pending against, or to the
knowledge of the Company, threatened against or affecting the Company, before
any court or arbitrator or any Governmental Authority which in any manner draws
into question the validity or enforceability of this Agreement.
(m) The execution, delivery and performance by the Company of this
Agreement do not and would not be expected to 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 Company is a party.
4. FURTHER ASSURANCES; SUPPLEMENTS.
(a) The Company agrees that from time to time, at the expense of such
Person, it will promptly execute and deliver all further instruments and
documents, and take all further action that may be necessary or desirable, or
that the Administrative Agent may reasonably request, in
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order to perfect the Liens granted or purported to be granted hereby or to
enable the Administrative Agent to exercise and enforce its rights and remedies
hereunder. Without limiting the generality of the foregoing, the Company will
execute and deliver to Administrative Agent such financing or continuation
statements, or amendments thereto, and such other instruments, endorsements or
notices, as may be necessary or desirable, or as the Administrative Agent may
reasonably request, in order to perfect and preserve the Liens granted or
purported to be granted hereby.
(b) The Company hereby authorizes the Administrative Agent to file one
or more financing or continuation statements, and amendments thereto, relative
to all or any part of the Collateral without the signature of the Company where
permitted by law.
(c) The Company shall pay all filing, registration and recording fees
or refiling, re-registration and re-recording fees, and all expenses, incident
to its execution and acknowledgement of this Agreement, any agreement
supplemental hereto and any instruments of further assurance, and all federal,
state, county and municipal stamp taxes and other taxes, duties, imposts,
assessments and charges arising out of or in connection with its execution and
delivery of this Agreement, any agreement supplemental hereto and any
instruments of further assurance.
(d) The Company shall warrant and defend title to the Collateral
against the claims and demands of all Persons (other than the Secured Parties or
any Person claiming by or through any Secured Party) whomsoever.
(e) The Company shall, upon obtaining any Fixed Rate Notes or other
instruments constituting Collateral, promptly deliver the same to the
Administrative Agent and agrees that all such Fixed Rate Notes or other
instruments shall for all purposes hereunder constitute Collateral.
5. COVENANTS OF COMPANY.
(a) The Company shall pay, before any fine, penalty, interest or cost
attaches thereto, all taxes, assessments and other governmental or
non-governmental charges or levies now or hereafter assessed or levied against
the Collateral or upon the Liens provided for herein, and will retain copies of,
and, upon request, permit the Administrative Agent or any other Secured Party to
examine, receipts showing payment of any of the foregoing; provided, that
Company shall not be required to pay any suc tax, assessment, charge or levy,
the validity of which is being contested in good faith by appropriate
proceedings.
(b) The Company shall give the Administrative Agent at least 30 days'
prior written notice before it changes the location of its chief executive
office or the office where it keeps the Records and shall at the expense of the
Company execute and deliver such instruments and documents as required to
maintain a prior perfected security interest and as reasonably requested by the
Administrative Agent. The Company will hold and preserve all Records and will,
upon reasonable request by the Administrative Agent or any Secured party at any
time during normal business hours (or at any time without notice following the
occurrence and during the
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continuance of any Event of Default), the Administrative Agent may, permit the
Administrative Agent or any Secured Party to inspect and make abstracts from
such Records.
(c) The Company shall not sell, assign (by operation of law or
otherwise) or otherwise dispose of any of the Collateral.
(d) The Company shall not create or suffer to exist any Lien upon or
with respect to any of the Collateral except for the security interest created
by this Agreement or the Credit Agreement, and will defend the right, title and
interest of the Administrative Agent in and to the Company's rights to the
Collateral against the claims and demands of all Persons whatsoever.
(e) The Company will, upon becoming aware of such event, notify the
Administrative Agent promptly, in reasonable detail, (i) of any material claim
made or asserted against the Collateral by any Person; (ii) of any event which
could reasonably be expected to have a material adverse effect on the value of
the Collateral; (iii) of any event which could reasonably be expected to have a
material adverse effect on the ability of the Administrative Agent to dispose of
the Collateral or the rights and remedies of the Administrative Agent; and (iv)
of the occurrence of any other event which would have a material adverse effect
on the Collateral or on the security interest created hereunder.
6. RECEIPT OF PAYMENTS, ETC.
So long as no Event of Default shall have occurred and be continuing
(and, in the case of paragraph (i) below, so long as written notice has not been
given by the Administrative Agent to the Company): (i) the Company shall be
entitled to exercise any and all rights pertaining to the Collateral or any part
thereof for any purpose not inconsistent with the terms of this Agreement or any
Loan Documents; and (ii) subject to Section 2.08(a) of the Credit Agreement, the
Company shall be entitled to receive and retain free and clear of any security
interest under this Agreement any and all payments made in respect of the
Collateral, other than any (A) instruments and other property received,
receivable or otherwise distributed in exchange for, any Collateral, and (B)
cash paid, payable or otherwise distributed in redemption of, or in exchange
for, any Collateral all of which shall be, and all of which shall be forthwith
delivered to the Administrative Agent to hold as, Collateral and shall, if
received by the Company, be received in trust for the benefit of the
Administrative Agent, be segregated from the other property or funds of the
Company, and be forthwith delivered to the Administrative Agent as Collateral in
the same form as so received (with any necessary endorsement).
If an Event of Default has occurred and is continuing, in order to
permit the Administrative Agent to exercise all rights with respect to the
Collateral, and to receive all payments which it may be made under the
Collateral, the Company shall, if necessary, upon written notice from the
Administrative Agent, from time to time during the continuance of an Event of
Default execute and deliver to the Administrative Agent appropriate payment
orders and other instruments as the Administrative Agen may reasonably request.
In addition, concurrently with the execution and delivery of this Agreement, the
Company shall sign, and shall arrange to have the paying agent under the Fixed
Rate Notes sign, an acknowledgement in form and
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substance satisfactory to the Administrative Agent, pursuant to which paying
agent agrees to make all payments under the Fixed Rate Notes directly to the
Administrative Agent upon receipt of written instructions of the Administrative
Agent to do so.
7. ADMINISTRATIVE AGENT APPOINTED ATTORNEY-IN-FACT. The Company hereby
irrevocably appoints the Administrative Agent the Company's attorney-in-fact
(which appointment as attorney-in-fact shall be coupled with an interest), with
full authority to act in the place and stead of the Company and in the name of
the Company or otherwise, from time to time if an Event of Default has occurred
and is continuing or to the extent contemplated by Section 8 hereof in the
Administrative Agent's discretion to take any action and to execute any
instrument which the Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation, to
ask, demand, collect, xxx for, recover, compound, receive and give acquittance
and receipts for moneys due and to become due under or in connection with the
Collateral, to receive, indorse and collect any drafts or other instruments,
documents and chattel paper in connection therewith, and to file any claims or
take any action or institute any proceedings which the Administrative Agent may
deem to be necessary or desirable for the collection thereof or to enforce
compliance with the terms and conditions of the Collateral or this Agreement.
Notwithstanding the foregoing, the Administrative Agent shall not be obligated
to exercise any right or duty as attorney-in-fact, and shall have no duties to
the Assignor in connection therewith.
8. ADMINISTRATIVE AGENT MAY PERFORM.
If the Company fails to perform or comply with any of its agreements
contained herein, the Administrative Agent may, as provided for by the terms of
this Agreement, itself perform or comply, or otherwise cause performance or
compliance, with such Agreement. The reasonable expenses of the Administrative
Agent incurred in connection with such performance or compliance shall be
payable by the Company to the Administrative Agent and shall constitute
Obligations secured hereby; provided, that the payment to the Administrative
Agent shall be made solely through the application of proceeds in accordance
with Section 9(a) hereof. The Administrative Agent agrees to notify the Company
promptly after incurring any expenses pursuant to this Section 8; provided,
however, that the failure to provide such notice shall not affect the
Administrative Agent's right to reimbursement from the Company.
(b) The Administrative Agent shall use reasonable care with respect to
the Collateral in its possession or under its control. Except as set forth in
the preceding sentence, the Administrative Agent shall not have any duty as to
any Collateral in its possession or control or in the possession or control of
any agent or nominee of it or as to any income thereon or as to the preservation
of rights against parties or any other rights pertaining thereto.
9. RIGHTS AND REMEDIES.
If (i) an Event of Default shall have occurred and be continuing and
(ii) any of the Obligations shall have been declared to be, or shall have
become, due and payable, then, in addition to any other rights and remedies
provided for herein or which may otherwise be
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available, the Administrative Agent may, without any further demand,
advertisement or notice (except as expressly provided for below in this Section
9(a)), exercise all the rights and remedies of a secured party under the Uniform
Commercial Code of the State of New York (the "UCC") (whether or not the UCC
applies to the affected Collateral), and in addition: (i) may apply the moneys,
if any, then held by it as part of the Collateral, for the following purposes
and in the following order:
(1) first, to the payment of (A) all costs and expenses
relating to the sale of the Collateral and collection of amounts owing
hereunder, including reasonable attorneys' fees and disbursements and
the just compensation of the Administrative Agent for services rendered
in connection therewith or in connection with any proceeding to sell if
a sale is not completed, and (B) all charges, expenses and advances
incurred or made by the Administrative Agent in order to protect the
Lien of this Agreement or the security afforded hereby, together with
interest at the rate specified in Section 2.09(c) of the Credit
Agreement;
(2) second, to the payment in full of all of the Obligations
owed to the Secured Parties hereunder or under any Loan Document (to be
paid to the Secured Parties in accordance with the aggregate
outstanding amounts of such Obligations owed to each Secured Party);
and
(3) third, the balance, if any, shall be paid to the Company
or to such other Person as shall be lawfully entitled to receive such
surplus (as determined by a court of competent jurisdiction, if such
procedure is available under applicable law);
and (ii) if there shall be no such moneys or the moneys so
applied shall be insufficient to satisfy in full all Obligations, may
sell the Collateral, or any part thereof, as hereinafter provided in
this Section 9(a) and otherwise to the fullest extent permitted by law.
The Collateral may be sold in one or more sales, at public or private
sale, conducted by any officer or agent of, or auctioneer or attorney
for, the Administrative Agent, at the Administrative Agent's place of
business or elsewhere, for cash, upon credit or for other property, for
immediate or future delivery, and at such price or prices and on such
terms as the Administrative Agent shall deem appropriate. The
Administrative Agent or any other Secured Party may be the purchaser of
any or all of the Collateral so sold at a public sale and, to the
extent permitted by law, at a private sale and thereafter hold the
same, absolutely free from any right or claim of whatsoever kind, and,
the obligations of the Company to such purchaser may be applied as a
credit against the purchase price. The Administrative Agent, may, in
its sole discretion (in the case of Collateral consisting of
securities) or if commercially reasonable (in the case of all other
Collateral), at any such sale restrict the prospective bidders or
purchasers as to their number, nature of business and investment
intention. Upon any public or private sale the Administrative Agent
shall have the right to deliver, assign and transfer to the purchaser
thereof the Collateral so sold. Each purchaser (including the
Administrative Agent or any other Secured Party) at any such sale shall
hold the Collateral so sold, absolutely free from any claim or right of
whatsoever kind, including any equity or right of redemption,
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of the Company, and the Company hereby specifically waives, to the full
extent it may lawfully do so, all rights of redemption, stay or
appraisal which it has or may have under any rule of law or statute now
existing or hereafter adopted. The Administrative Agent shall give the
Company at least ten days' notice (which the Company agrees is
reasonable notification within the meaning of Section 9-504(3) of the
UCC) of any such public or private sale. Any public sale shall be held
at such time or times within ordinary business hours as the
Administrative Agent shall fix in the notice of such sale. At any such
sale the Collateral may be sold in one lot as an entirety or in
separate parcels. The Administrative Agent shall not be obligated to
mak any sale pursuant to any such notice. The Administrative Agent may,
without notice or publication, adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the
time and place fixed for such sale, and any such sale may be made at
any time or place to which the same may be so adjourned without further
notice or publication. In case of any sale of all or any part of the
Collateral on credit or for future delivery, the Collateral so sold may
be retained by th Administrative Agent until the full selling price is
paid by the purchaser thereof, but neither the Administrative Agent nor
any other Secured Party shall incur any liability in case of the
failure of such purchaser to take up and pay for the Collateral so
sold, and, in case of any such failure, such Collateral may again be
sold pursuant to the provisions hereof.
(b) Instead of exercising the power of sale provided in Section 9(a)
hereof, the Administrative Agent may proceed by a suit or suits at law or in
equity to foreclose the security interest under this Agreement and sell the
Collateral or any portion thereof under a judgment or decree of a court or
courts of competent jurisdiction.
(c) The Administrative Agent as attorney-in-fact pursuant to Section 7
hereof may, in the name and stead of the Company, make and execute all
conveyances, assignments and transfers of the Collateral sold pursuant to
Section 9(a) or Section 9(b) hereof, and the Company hereby ratifies and
confirms all that the Administrative Agent, as said attorney-in-fact, shall do
by virtue hereof. Nevertheless, the Company shall, if so requested by the
Administrative Agent, ratify and confirm any sale or sale by executing and
delivering to the Administrative Agent, or to such purchaser or purchasers, all
such instruments as may, in the reasonable judgment of the Administrative Agent,
be advisable for the purpose.
(d) The receipt by the Administrative Agent of the purchase money paid
at any sale made by it shall be a sufficient discharge therefor to any purchaser
of the Collateral, or any portion thereof, sold as aforesaid; and no such
purchaser (or the representatives or assigns of such purchaser), after paying
such purchase money and receiving such receipt, shall be bound to see to the
application of such purchase money or any part thereof or in any manner
whatsoever be answerable for any loss, misapplication or nonapplication of any
such purchase money, or any part thereof, or be bound to inquire as to the
authorization, necessity, expediency or regularity of any such sale.
(e) The Administrative Agent shall incur no liability as a result of
the sale of the Collateral, or any part thereof, at any private sale conducted
in a commercially reasonable
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manner. The Company hereby waives, to the full extent permitted by applicable
law, any claims against the Administrative Agent and/or any Secured Party
arising by reason of the fact that the price at which the Collateral, or any
part thereof, may have been sold at a private sale was less than the price which
might have been obtained at a public sale or was less than the aggregate amount
of the Obligations, even if the Administrative Agent accepts the first offer
received which the Administrative Agent in good xxxxx xxxxx to be commercially
reasonable under the circumstances and does not offer the Collateral to more
than one offeree. To the fullest extent permitted by law, the Company shall have
the burden of proving that any such sale of the Collateral was conducted in a
commercially unreasonable manner.
(f) Each and every right and remedy of the Administrative Agent shall,
to the extent permitted by law, be cumulative and shall be in addition to any
other remedy given hereunder or under the Credit Agreement or now or hereafter
existing at law or in equity or by statute.
(g) The Administrative Agent may participate in any recapitalization,
reclassification, reorganization, consolidation, redemption, stock split,
merger, or liquidation of the Issuer, and in connection therewith deposit or
surrender control of the Collateral, accept money or other property in exchange
for the Collateral, and take such action as deemed proper by the Administrative
Agent in connection therewith, and any other money or property received in
exchange for the Collateral shall be applied to satisfy the Obligations or held
by the Administrative Agent thereafter as Collateral pursuant to the provisions
hereof.
10. CONTINUING ASSIGNMENT AND SECURITY INTEREST; TRANSFER OF NOTES.
This Agreement shall create a continuing assignment of and security interest in
the Collateral and shall (a) remain in full force and effect until payment in
full of the Obligations and all other amounts owing to each Secured Party under
any Loan Documents and the termination or expiration of the Commitments, (b) be
binding upon the Company, its successors and assigns and (c) inure, together
with the rights and remedies of the Administrative Agent hereunder, to the
benefit of the Administrative Agent and the Secured Parties and their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing, any Bank may assign or otherwise transfer its rights and obligations
under any Loan Document to any other Person or entity, and such other Person or
entity shall thereupon become vested with all the benefits in respect thereof
granted to such Bank herein or otherwise, all as provided in, and to th extent
set forth in, the Loan Documents. The Company may not assign or transfer any of
its rights or obligations under this Agreement without the prior written consent
of the Administrative Agent. Upon the payment in full of the Obligations and
termination of the commitments (exclusive of future, contingent or unliquidated
amounts arising under indemnity agreements), the security interest granted
hereby shall terminate and all rights to the Collateral shall revert to the
Company. Upon any such termination, the Administrative Agent will, at the
Company's expense, execute and deliver to the Company such documents as the
Company shall reasonably request to evidence such termination.
11. NO NOTICES, ETC. No Secured Party shall be under any duty or
obligation whatsoever (a) to make or give any presentments, demands for
performances, notices of nonperformance, protests, notices of protest or notices
of dishonor in connection with any
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Obligations or evidences of Obligations held by Secured Parties as Collateral,
or in connection with any Obligation or evidences of Obligations which
constitute in whole or in part the Obligations secured hereunder, or (b) to give
the Company notice of, or to exercise any subscription rights or privileges, any
rights or privileges to exchange, convert or redeem or any other rights or
privileges relating to or affecting any Collateral held by Secured Parties.
12. DELIVERY OF COLLATERAL. The Secured Parties may at any time cause
the Administrative Agent to deliver the Collateral or any part thereof to the
Company and the receipt of the Company shall be a complete and full acquittance
for the Collateral so delivered, and Secured Parties shall thereafter be
discharged from any liability or responsibility therefor.
13. ATTORNEYS FEES.
(a) The Company agrees to pay to each Secured Party the amount of any
and all expenses, including expenses incurred by the Administrative Agent, and
the reasonable fees and expenses of its counsel (including, without limitation,
the allocated cost of in-house counsel) and of any experts, which such Secured
Party may incur in connection with (i) the custody or preservation of, or the
sale of, collection from, or other realization upon, any of the Collateral; (ii)
the exercise or enforcement o any of the rights of any Secured Party hereunder;
or (iii) the failure by the Company to perform or observe any of the provisions
hereof; provided that the payment of such sums shall be made to the Secured
Parties solely through the application of proceeds in accordance with Section
9(a) hereof.
(b) The Company agrees to indemnify and hold each Secured Party
harmless from and against any taxes, liabilities, claims and damages, including
attorney's fees and disbursements (including, without limitation, the allocated
cost of in-house counsel), and other expenses incurred or arising by reason of
the taking or the failure to take action by any Secured Party in respect of any
transaction effected under this Agreement or in connection with the Lien
provided for herein, including, without limitation, any taxes payable with
respect to the Collateral or in connection with any transaction contemplated by
this Agreement and any and all costs, losses, liabilities, claims, damages or
expenses incurred by any Secured Party arising out of any investigation,
litigation or other proceeding related to this Agreement or any transaction
contemplated hereby (all the foregoing, collectively, the "Indemnified
Liabilities"), except for the gross negligence and willful misconduct of such
Secured Party. The Company shall have the right to undertake, conduct and
control through counsel of its own choosing (which counsel shall be acceptable
to the Secured Parties acting reasonably) and at the sole expense of the
Company, the conduct and settlement of any Indemnified Liabilities, and the
Secured Parties shall cooperate with the Company in connection therewith;
provided that the Company shall permit the Secured Parties to participate in
such conduct and settlement through counsel chosen by the Secured Parties, but
the fees and expenses of such counsel shall be borne by the Secured Parties.
Notwithstanding the foregoing, the Secured Parties shall have the right to
employ their own counsel, and the reasonable fees and expenses of such counsel
shall be at the Company's cost and expense if the interests of the Company and
the Secured Parties become adverse in any such claim or course of action;
provided, however, the Company, in such event, shall only be liable for the
reasonable legal expenses of one counsel for all of such Secured Parties. The
Company
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shall not be liable for any settlement of any claim or action effected without
its prior written consent, such consent not to be unreasonably withheld. All
amounts owing under this Section 13(b) shall be paid within 30 days after
demand.
(c) The obligations of the Company under this Section 13 shall survive
the termination of this Agreement.
14. MISCELLANEOUS.
(a) Headings used in this Agreement are for convenience of reference
only and do not constitute part of this Agreement for any purpose.
(b) No failure on the part of the Administrative Agent or any of its
agents to exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Administrative Agent or
any of its agents of any right, power or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
(c) If any provision hereof is invalid and unenforceable in any
jurisdiction, then, to the fullest extent permitted by law, the other provisions
hereof shall remain in full force and effect in such jurisdiction and shall be
liberally construed in favor of the Administrative Agent and the Banks in order
to carry out the intentions of the parties hereto as nearly as may be possible
and the invalidity or unenforceability of any provision hereof in any
jurisdiction shall not affect the validity or enforceability of such provision
in any other jurisdiction.
(d) The Administrative Agent may employ agents and attorneys-in-fact in
connection herewith and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it in good faith.
(e) The agreements of the parties hereto are solely for the benefit of
the Secured Parties, and no Person (other than the parties hereto and the
Secured Parties) shall have any rights hereunder.
(f) No amendment or waiver of any provision of this Agreement nor
consent to any departure by the Company herefrom shall in any event be effective
unless the same shall be in writing and signed by the Administrative Agent (with
the consent of the Majority Banks or all the Banks as required by Section 10.01
of the Credit Agreement) and the Company, and then such waiver or consent shall
be effective only in the specific instance and for the specified purpose for
which given.
(g) All notices, requests, demands, waivers or other communications to
or upon the respective parties hereto shall be in made in accordance with the
Credit Agreement.
15. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
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YORK, AND EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY
INTEREST HEREUNDER, OR REMEDIES HEREUNDER, ARE GOVERNED BY THE LAW OF ANY
JURISDICTION OTHER THAN THE STATE OF NEW YORK. TERMS USED IN ARTICLE 9 OF THE
UCC ARE USED HEREIN AS THEREIN DEFINED.
16. WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES 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 AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, 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. EACH PARTY HERETO AGREES 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 AGREEMENT OR ANY PROVISION HEREOF. THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto, by their officers duly
authorized, have caused this Agreement to be duly executed and delivered as of
the day and year first above written.
CINEMARK INVESTMENTS CORPORATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Agreed to:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By:
-----------------------------
Xxxxx Xxxxx
Vice President
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