EXHIBIT 4.3(b)
CINEMARK USA, INC.
and
THE BANK OF NEW YORK,
successor to
NATIONSBANK OF TEXAS, N.A., Trustee
--------------------
First Supplemental Indenture
Dated as of August 9, 1996
to
Indenture
Dated as of June 10, 1992
--------------------
$125,000,000
12% Senior Notes due June 1, 2002
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of August 9, 1996, is between Cinemark USA, Inc., a Texas corporation
(the "Company"), and The Bank of New York, successor to NationsBank of Texas,
N.A., as trustee (the "Trustee"). All capitalized terms contained but not
defined herein shall have the respective meanings assigned to them in the
Indenture (as defined below), as such Indenture is amended by this Supplemental
Indenture.
RECITALS
A. The Company and the Trustee executed an indenture, dated as of June 10,
1992 (the "Indenture"), relating to the Company's $125 million principal amount
12% Senior Notes due June 1, 2002 (the "Securities").
B. Section 9.02 of the Indenture provides that the Company and the Trustee
may amend the Indenture with the written consent of the Holders of at least a
majority of the aggregate principal amount of the Securities at the time
outstanding.
C. The Company desires to amend certain provisions of the Indenture, as set
forth in Article One hereof.
D. The Company has received and accepted written consents of Holders to the
amendments set forth in this Supplemental Indenture (the "Consents"), which
Consents have not been subsequently revoked, from the Holders of at least a
majority of the aggregate principal amount of the Securities outstanding.
E. All conditions precedent provided for in the Indenture relating to this
Supplemental Indenture have been complied with.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH, for and
in consideration of the above premises and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Trustee mutually covenant and agree for the equal and
proportionate benefit of all Holders of the Securities as follows:
ARTICLE ONE
Amendment of Indenture
Section 1.01 Waiver of Indenture Provisions. The application of the
provisions of Sections 4.06 through and including 4.23 of the Indenture are
hereby waived to the extent that such provisions might otherwise interfere with
the ability of the Company to enter into agreements contemplated by, and to
consummate, the repurchase offer and the consent solicitation for
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Securities (the "Repurchase Offer"), as set forth in the Company's Offer to
Purchase and Consent Solicitation and the accompanying Consent and Letter of
Transmittal, each dated July 15, 1996, and any amendments, modifications or
supplements thereto (the "Offer to Purchase").
Section 1.02 Amendment of Indenture Provisions. Effective upon the date
of the Company's deposit with The Bank of New York, as depositary for the
Repurchase Offer, of an amount of money sufficient to repurchase all Securities
validly tendered and accepted pursuant to the Offer to Purchase:
(i) Section 1.01 of Article 1 of the Indenture is hereby
amended by deleting the following definitions in their entirety:
"Acquired Indebtedness"
"Asset Disposition"
"Capitalized Lease Obligations"
"Change of Control"
"Consolidated EBITDA"
"Consolidated Interest Expense"
"Consolidated Net Income"
"Consolidated Net Worth"
"EBITDA Ratio"
"Independent Director"
"Interest Rate Protection Agreement"
"Investment"
"Net Proceeds"
"Offer"
"Offer Purchase Date"
"Permitted Investment"
"Purchase Money Obligation"
"Restricted Subsidiary"
"Subsidiary"
"Trade Payables"
"Unrestricted Subsidiary"
"Weighted Average Life"
"Wholly Owned Subsidiary"
(ii) Sections 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13,
4.14, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20, 4.21, 4.22, 4.23, and 5.01
are hereby amended by deleting all such sections and all references
thereto in their entirety.
(iii) Section 4.03 of Article 4 of the Indenture is hereby
amended and restated in
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its entirety to read as follows:
"Section 4.03 Compliance Certificates. (a) The
Company shall deliver to the Trustee within 60
calendar days after the end of each of the Company's
fiscal quarters (90 calendar days after the end of
the Company's last fiscal quarter of each year) an
Officer's Certificate executed by Officers of the
Company stating whether or not the signers know of
any Default or Event of Default which occurred during
such fiscal quarter. In the case of the Officer's
Certificate delivered within 90 calendar days after
the end of the Company's fiscal year, such
certificate shall contain a certification from the
principal executive officer, principal financial
officer or principal accounting officer of the
Company stating (i) that a review of the activities
of the Company has been made with a view to
determining whether its obligations under the
Indenture have been complied with and (ii) whether
such officer has obtained knowledge of any Default
under the Indenture during the 12-month period ended
on the date of the financial statements. If they do
know of such a Default or Event of Default, the
certificate shall describe any such Default or Event
of Default, and its status including its duration.
The first certificate to be delivered pursuant to
this Section 4.03(a) shall be for the first fiscal
quarter beginning after the execution of this
Indenture.
(b) The Company shall deliver to the Trustee as soon
as possible and in any event within 10 calendar days
after the Company, as the case may be, becomes aware
of the occurrence of each Default or Event of Default
that is continuing, an Officer's Certificate setting
forth the details of such Default or Event of
Default, and the action that the Company proposes to
take with respect thereto."
(iv) Section 6.01 of Article 6 of the Indenture is hereby
amended and restated
in its entirety to read as follows:
"Section 6.01 Events of Default. (a) An "Event of
Default" occurs if one
of the following shall have occurred and be
continuing:
(i) the Company defaults in the
payment of (A) the principal of (or
premium, if any, on) any Securities
when the same becomes due and
payable at maturity, by acceleration
or otherwise, (B) any Sinking Fund
Payment on the required payment date
thereof, or (C) the Redemption Price
on any Redemption Date;
(ii) the Company defaults in the
payment of interest on any
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Security when the same becomes due
and payable, which default continues
for a period of 30 calendar days;
(iii) the Company or any Subsidiary
of the Company fails to comply with
any of its covenants or agreements
in the Securities, this Indenture
(other than those referred to in
clauses (i) and (ii) above) or the
Pledge Agreement, and such failure
continues for 30 calendar days after
receipt by the Company of a Notice
of Default;
(iv) (A) the Securities, or any
material provision of this Indenture
or the Pledge Agreement, ceases to
be valid or binding on the Company,
(B) the Pledge Agreement for any
reason after the Initial Issuance
Date ceases to create a valid Lien
on any of the Pledged Stock
purported to be covered thereby in
which the Trustee has a security
interest for the benefit of the
Trustee and the Holders, or any such
Lien ceases to be a perfected first
priority Lien, or (C) the Company or
any of its Subsidiaries initiates
any suit or proceeding challenging
the legality, validity or
enforceability of any of the
foregoing or the attachment,
perfection or priority of any Liens
granted to secure payment and
performance of the Securities;
(b) A Default under clause (iii) of Section
6.01(a) is not an Event of Default until the
Trustee notifies the Company, or the Holders
of at least 25% in aggregate principal
amount of the Securities at the time
outstanding notify the Company and the
Trustee, of the Default and the Company does
not cure such Default within the time
specified in clause (iii) of Section 6.01(a)
after receipt of such notice. Any such
notice must specify the Default, demand that
it be remedied and state that such notice is
a "Notice of Default".
(c) Subject to the provisions of Sections
7.01 and 7.02, the Trustee shall not be
charged with knowledge of a Default or an
Event of Default under this Indenture unless
and until written notice thereof has been
given to the Trustee by the Company."
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ARTICLE TWO
Miscellaneous Provisions
Section 2.1 Counterparts. This Supplemental Indenture may be executed
in counterparts, each of which when so executed shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
Section 2.2 Severability. In the event that 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 article and section headings herein are for
convenience only
and shall not affect the construction 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 or the Trustee shall bind its respective successors and assigns, whether
so expressed or not.
Section 2.5 Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
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, and the Indenture as amended and supplemented by this
Supplemental Indenture is in all respects confirmed and preserved.
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 undersigned, being duly authorized, have
executed this Supplemental Indenture on behalf of the respective parties hereto
as of the date first above written.
Attest: CINEMARK USA, INC.
By:
Name: Name:
Title: Title:
Attest: THE BANK OF NEW YORK,
successor to NationsBank of
Texas, N.A., as Trustee
By:
Name: Name:
Title: Title:
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