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EXHIBIT 10.13(b)
FIRST AMENDMENT TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT is made and dated as of
December 16, 1997 (this "First Amendment") among CINEMARK INTERNATIONAL INC., a
Texas corporation (the "Borrower"), the financial institutions (collectively,
the "Banks") party to the Credit Agreement referred to below, and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Administrative Agent (the
"Administrative Agent"), and amends that certain Credit Agreement dated as of
November 18, 1997, among the Borrower, the Banks and the Administrative Agent
(as so amended or modified from time to time, the "Agreement").
RECITAL
The Borrower has requested that the Banks and the Administrative
Agent increase the Aggregate Commitment to $30,000,000, and the Banks and the
Administrative Agent are willing to do so on the terms and conditions set forth
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. TERMS. All terms used herein shall have the same meanings as in
the Agreement unless otherwise defined herein. All references to the Agreement
shall mean the Agreement as hereby amended.
2. AMENDMENTS TO AGREEMENT.
2.1 The definition of "Aggregate Commitment" is amended by deleting
"$25,000,000" and inserting "$30,000,000" in lieu thereof.
2.2 Schedule 2.1 is amended and restated in its entirety as set
forth on Schedule 2.1 hereto.
3. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to Banks and Administrative Agent that, on and as of the date hereof,
and after giving effect to this First Amendment:
3.1 AUTHORIZATION. The execution, delivery and performance of this
First Amendment have been duly authorized by all necessary corporate action by
the Borrower and this First Amendment has been duly executed and delivered by
the Borrower.
3.2 BINDING OBLIGATION. This First Amendment is the legal, valid
and binding obligation of the Borrower, enforceable against the Borrower 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.
3.3 NO LEGAL OBSTACLE TO AGREEMENT. The execution, delivery and
performance of this First Amendment will not (a) contravene the terms of the
Borrower's certificate of
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incorporation, by-laws or other organization document; (b) conflict with or
result in any breach or contravention of the provisions of any contract to
which the Borrower is a party, or the violation of any law, judgment, decree or
governmental order, rule or regulation applicable to the Borrower, or result in
the creation under any agreement or instrument of any security interest, lien,
charge, or encumbrance upon any of the assets of the Borrower. No approval or
authorization of any governmental authority is required to permit the
execution, delivery or performance by the Borrower of this First Amendment, or
the transactions contemplated hereby.
3.4 INCORPORATION OF CERTAIN REPRESENTATIONS. The representations
and warranties of the Borrower set forth in Section 5 of the Agreement are true
and correct in all respects on and as of the date hereof as though made on and
as of the date hereof, except as to such representations made as of an earlier
specified date.
3.5 DEFAULT. No Default or Event of Default under the Agreement
has occurred and is continuing.
4. CONDITIONS, EFFECTIVENESS. The effectiveness of this First
Amendment shall be subject to the delivery of the following to the
Administrative Agent in form and substance satisfactory to the Administrative
Agent:
4.1 AMENDMENT FEE. The Administrative Agent shall have received
an amendment fee equal to 50 basis points ($25,000) of the amount by which the
Aggregate Commitment is increased hereby.
4.2 OTHER EVIDENCE. Such other evidence with respect to the
Borrower as the Administrative Agent or any Bank may reasonably request in
connection with this First Amendment and the compliance with the conditions set
forth herein.
5. MISCELLANEOUS.
5.1 EFFECTIVENESS OF THE AGREEMENT AND THE LOAN DOCUMENTS.
Except as hereby expressly amended, the Agreement and each other Loan Document
shall each remain in full force and effect, and are hereby ratified and
confirmed in all respects on and as of the date hereof.
5.2 WAIVERS. This First Amendment is specific in time and in
intent and does not constitute, nor should it be construed as, a waiver of any
other right, power or privilege under the Agreement, or under any agreement,
contract, indenture, document or instrument mentioned in the Agreement; nor
does it preclude any exercise thereof or the exercise of any other right, power
or privilege, nor shall any future waiver of any right, power, privilege or
default hereunder, or under the Agreement or any agreement, contract,
indenture, document or instrument mentioned in the Agreement, constitute a
waiver of any other default of the same or of any other term or provision.
5.3 COUNTERPARTS. This First Amendment may be executed in any
number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument. This First Amendment shall
not become effective until the Borrower, the Administrative Agent and the Banks
shall have signed a copy hereof, and Cinemark, USA, Inc.,
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and Cinemark Mexico (USA), Inc shall have consented hereto, whether the same or
counterparts, and the same shall have been delivered to the Administrative
Agent. Borrower, in its capacity as pledgor under the Pledge agreement, hereby
consents to this First Amendment.
5.4 JURISDICTION. This First Amendment shall be governed by and
construed under the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed and delivered as of the date first written above.
CINEMARK INTERNATIONAL, 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 AND
SAVINGS ASSOCIATION AS ADMINISTRATIVE
AGENT
By: /s/ XXXXXXX X. XXXX
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Name: Xxxxxxx X. Xxxx
----------------------------
Title: Vice President
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS A BANK
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
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Title: Managing Director
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SCHEDULE 2.1
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Bank Commitment Share
---- ---------- --------
Bank of America National
Trust and Savings Association $30,000,000 100.00%
TOTAL $30,000,000 100.00%
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CONSENT OF CINEMARK USA, INC.
AND CINEMARK MEXICO (USA), INC.
The undersigned (a) Cinemark, USA, Inc., as signatory of the Letter of
Responsibility and (b) Cinemark Mexico (USA), Inc. as guarantor under the
Cinemark Mexico Guaranty, hereby consent to the foregoing First Amendment dated
as of the date first written above to the Credit Agreement dated as of November
18, 1997, among Cinemark International, Inc., the Banks named therein and Bank
of America National Trust and Savings Association as Administrative Agent, and
represent and warrant to the Administrative Agent and the Banks that there is
no defense, counterclaim or offset of any type or nature under the Letter of
Responsibility, and that the same remain in full force and effect as to them
after giving effect hereto and thereto. All terms used herein shall have the
same meanings as in the Credit Agreement referred to above unless otherwise
defined herein.
CINEMARK USA, INC.
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
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Title: Vice President
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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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