Amendment no 1 to Joint Venture Agreement by and among Loews Cineplex International Holdings, Inc. (formerly LTM Spanish Holdings, Inc) and Ricardo Evole Martil

Exhibit 10.10

 

Amendment no 1 to Joint Venture Agreement

 

by and among

 

Loews Cineplex International Holdings, Inc.

 

(formerly LTM Spanish Holdings, Inc)

 

and

 

Ricardo Evole Martil

 

In Madrid and New York as of July 7, 2003.

Amendment no 1 to Joint Venture Agreement

by and among

Loews Cineplex International Holdings, Inc. (formerly LTM Spanish Holdings, Inc)

and Ricardo Evole Martil

 

In Madrid and New York as of July 7, 2003.

 

COME TOGETHER

 

ON THE ONE HAND: Mr. Travis Reid, of age, with professional domicile in New York 711 Fifth Avenue with passport number 112136914. He appears in the name and in representation of Loews Cineplex International Holdings, Inc., with professional domicile in 711 Fifth Avenue, 12 ^th Floor, NY, NY 10022.

 

He makes use of the authorities that correspond to him as President of Loews Cineplex International Holdings, Inc.

 

AND ON THE OTHER HAND: Mr. Ricardo Evole Martil, of age, with professional domicile in Madrid, calle Princesa 31, with NIF 2.450.193-A.

 

He appears in his own name and behalf.

 

The parties mutually recognize the capacity of the other to assume the obligations established herein and

 

THEY STATE

 

I.- That on April 27,1998 Mr. Ricardo Evole Martil (hereinafter “RE”) and Loews Cineplex International Holdings, Inc. (previously LTM Spanish Holdings, Inc.) (hereinafter “Loews”) entered into a Joint Venture Agreement (the “Agreement”) to jointly form and manage a motion picture business in Spain under the company name Yelmo Cineplex, S.L., whose governance and administration would correspond to the parties in the form provided for therein, likewise establishing the undertakings assumed by each of the parties for the execution of that agreed to, and among other things, the contribution of capital to the Joint Venture Company.

 

A copy of said Agreement excluding all its annexes, appendices and schedules, except for Appendix A, is attached hereto as Annex I .

 

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II.- The Agreement established an obligation for Loews to make capital contributions to the Joint Venture Company Yelmo Cineplex, S.L. (the “JV” or the “Company”) equal to the Contribution Amount.

 

III.- That in compliance with the Agreement, on June 10, 1998 the JV and RE entered into a top management agreement expiring June 9, 2003, by virtue of which the carrying out of the duties of a General Manager of the JV were entrusted to RE.

 

A copy of said top executive contract is attached hereto as Annex II .

 

IV.- That at the signature of this document, the share capital of the JV is 11,970,000,000 pesetas (ELEVEN THOUSAND NINE HUNDRED AND SEVENTY MILLION PESETAS), equivalent to 71,941,148.89 ¹ Euros (SEVENTY ONE MILLION NINE HUNDRED AND FORTY ONE THOUSAND ONE HUNDRED AND FORTY EIGHT EUROS AND EIGHTY NINE CENTS) divided in 23.940 units numbers 1 to 4,000 and 16,001 to 23,940, inclusive, Class A, and 4,001 to 16,000, inclusive, Class B, all with a nominal value of 500,000 pesetas (FIVE HUNDRED THOUSAND PESETAS), equivalent to 3,005.060522 Euros (THREE THOUSAND FIVE EUROS AND ZERO SIX ZERO FIVE TWO TWO CENTS), as a consequence of the following contributions: the partner RE has contributed to the JV as an in kind capital contribution the amount of 6,000,000,000 pesetas (SIX THOUSAND MILLION PESETAS), having subscribed to, as a consequence, 12,000 (TWELVE THOUSAND) units in the JV, numbers 4,001 to 16,000, inclusive, of Class B, of 500,000 pesetas (FIVE HUNDRED THOUSAND PESETAS) nominal value each, representing 50.12531328% of the total share capital and the partner Loews has contributed to the JV as a cash contribution to the share capital 5,970,000,000 pesetas (FIVE THOUSAND NINE HUNDRED AND SEVENTY MILLION PESETAS), plus issuance premium in cash for an amount of 2,574,894,895 pesetas (TWO THOUSAND FIVE HUNDRED AND SEVENTY FOUR MILLION EIGHT HUNDRED AND NINETY FOUR THOUSAND EIGHT HUNDRED AND NINETY FIVE PESETAS) having subscribed to as a consequence 11,940 (ELEVEN THOUSAND NINE HUNDRED AND FORTY) units of the JV, numbers 1 to 4,000 and 16,001 to 23,940 of Class A, inclusive, with a nominal value of 500,000 pesetas (FIVE HUNDRED THOUSAND PESETAS) and each representing 49.87468671% of the total share capital.

 

V.- That on June 30, 2003 a meeting of the Board of Directors of JV and its Subsidiary was held to prepare the Annual Accounts of both companies corresponding to fiscal year ended December 31, 2002 and on this same date a meeting of JV Members and its Subsidiary were held to approve such Annual Accounts and agree on the allocation of results obtained during such fiscal year.

1	71,941,148.894739€ before rounding to two decimals.

 

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VI.- That the parties have agreed to partially modify the Agreement through this amendment (the “Amendment”) to approve a capital contribution by Loews which permits it to own 50% of share capital of the Company, to renew the top executive contact mentioned in Whereas III and to hold a partners meeting to effectuate certain additional provisions concerning the ownership, government and administration of the JV, as set forth in this Amendment, all of this in accordance with the following,

 

CLAUSES

 

FIRST.- DEFINED TERMS .

 

Capitalized terms used but otherwise not defined herein shall have the meanings ascribed thereto in the Agreement. In addition the following terms, when capitalized, shall have the following meanings:

 

(a) “ Agreement ” shall have the meaning set forth in the Recitals to this Amendment.

 

(b) “ Amended Agreement ” shall mean the Agreement, as amended hereby.

 

(c) “ Permitted Transferee ” the definition provided for in the Agreement shall be substituted for the following:

 

“ Permitted Transferee ” means any Subsidiary of Loews or any corporation in which RE and/or his children and/or lawful wife owns at least 51% of the outstanding equity, or directly, RE’s lawful wife and children. To be a Permitted Transferee such transferee must execute the writing required by Section 8.1 of the Amended Agreement to be bound by the terms of this Agreement. Furthermore, for the transfer to be considered as made to a Permitted Transferee RE and his lawful wife and children shall be jointly and severally obligated to perform the duties of RE under the Amendment Agreement including without limitation, the voting obligations in Section 7 of the Amended Agreement, the transfer restrictions and related provisions in Section 8 of the Amended Agreement and the covenants regarding non-competition and corporate opportunities in Section 10 of the Amended Agreement, and shall be jointly and severally liable for any breach of any such duty by any of them; and Loews and its Subsidiary shall be jointly and severally obligated to perform the duties of Loews under the Amendment Agreement including without limitation, the voting obligations in Section 7 of the Amended Agreement, the transfer restrictions and related provisions in Section 8 of the Amended Agreement and the covenants regarding non-competition and corporate opportunities in Section 10 of the Amended Agreement, and shall be jointly and severally liable for any breach of any such duty by any Subsidiary. In the case of Subsidiaries of Loews with a net worth of less than US $ 100 Million they must continue to be a Subsidiary of Loews.”

 

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(d) Plurals, Gender, Etc. In the Amended Agreement, unless the context otherwise indicates or requires:

 

(i) words in the singular include the plural and vice versa and words in one gender include the other gender.

 

(ii) a reference to:

 

A.

any party includes its successors and permitted assigns,

 

B.

a person includes any individual, firm, body corporate, association, partnership, government or state, and

 

C.

parties, unless otherwise expressly indicated herein, shall mean Loews and RE (and their respective successors and assigns).

 

SECOND.- ANNUAL ACCOUNTS. ADDITIONAL SHARE CAPITAL CONTRIBUTIONS TO THE JOINT VENTURE COMPANY YELMO CINEPLEX. S.L .

 

A.

The parties ratify herein the resolutions passed at the Board of Directors meeting as well as the resolutions passed at the General Shareholders Meeting that are referred to in Recital V of this Amendment and which are attached hereto as Annex Second A. The parties expressly state that they do not have any objection or claim against the other nor against JV and its Subsidiary or their respective Directors whatsoever based on such resolutions.

 

B.

The parties expressly agree to extend for Loews the term for the contribution that is referred to in Recital II of this Amendment and as a consequence they agree to cause the JV to increase its capital by issuing 60 Class A units, with premium, which shall be subscribed to entirely by Loews so that upon paying in the corresponding amount indicated below Loews shall acquire ownership of units necessary to reach 50% of the share capital of the JV. The parties agree hereby that the amount to be paid in and deposited by Loews in the account of the JV for the payment of said increase of capital is 46,389,000 pesetas (FORTY SIX MILLION THREE HUNDRED EIGHTY NINE THOUSAND PESETAS), equal to 278,803.51 2 Euros (TWO HUNDRED AND SEVENTY EIGHT THOUSAND EIGHT HUNDRED AND THREE EUROS AND FIFTY ONE CENTS), (the “Last Contribution Amount”) corresponding to 180,303.63 Euros (ONE HUNDRED AND EIGHTY THOUSAND THREE HUNDRED AND THREE EUROS AND SIXTY THREE CENTS) equal to 30,000,000 (THIRTY MILLION) pesetas of nominal value and 98,499.87 Euros (NINETY EIGHT THOUSAND FOUR HUNDRED AND NINETY NINE EUROS

2	Rounded to two decimals

 

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and EIGHTY SEVEN CENTS) equal to 16,389,000 (SIXTEEN MILLION THREE HUNDRED AND EIGHTY NINE THOUSAND) pesetas of premium, equal to 1,641.66 Euros (ONE THOUSAND SIX HUNDRED AND FORTY ONE EUROS and SIXTY SIX CENTS) or 273,150 (TWO HUNDRED AND SEVENTY THREE THOUSAND ONE HUNDRED AND FIFTY) pesetas for each newly created unit. Upon receipt by the JV of the Last Contribution Amount Loews shall have fully performed its undertaking to make capital contributions equal to the Contribution Amount, and as a consequence mutatis mutandi RE and Loews shall have no claim against the other whatsoever based on the obligation of Loews to fund according to Section 4.3, or recourse to Section 4.8, of the Agreement.

 

For all such purposes, both parties undertake to constitute a Partners Meeting of the JV immediately after signature of this Amendment with all partners attending and to vote favourably for the resolution of increasing the capital by way of cash contribution and issuance and subscription of the units that is reflected in the minutes attached hereto as Annex III and cause the JV to notarize and present for registration said increase at the Mercantile Registry of Madrid.

 

Should the Mercantile Registry of Madrid fail to register the increase in capital referred to in this Clause Second for any reason the parties agree to take the necessary steps as partners in the JV, and therefore cause the directors of the JV and the JV to take the necessary steps, so that the JV registers an increase in capital permitting Loews to obtain 50% of the share capital of the JV.

 

THIRD.- GOVERNMENT AND ADMINISTRATION OF THE JOINT VENTURE COMPANY YELMO CINEPLEX, S.L. AND ITS SUBSIDIARIES.

 

3.1.- The parties agree that, as long as the share of the parties and their respective Permitted Transferees in the JV is 50/50 the undertakings agreed to in Article VII of the Agreement as amended hereto regarding government and administration of the JV and its Subsidiaries shall be applied. In the event that any of the parties and/or their Permitted Transferees ceases to hold a 50% interest in the JV, directors of JV and its Subsidiaries shall be appointed by majority and provisions of the Agreement related to the quorum and approval of resolutions within the Board shall no longer apply.

 

For such purposes, the parties undertake to favourably vote at the partners meeting referred to in the Second Clause of this Amendment regarding the resolution concerning the cessation, designation and appointment of directors included in the minutes attached as Annex III .

 

3.2.-

 

(a).- The parties likewise expressly ratify their intent that RE continue as managing director of the JV and its Subsidiaries.

 

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(b).- With express derogation of what is established in Section 7.4 (a) of the Agreement regarding the limits to the authorities of the managing director the parties agree expressly that the managing director shall be invested with the broadest authorities, except for the realization of the following operations and/or acts, whose valid execution shall require the prior express approval of the Board of Directors. As a consequence Section 7.4 (a) of the Agreement shall be replaced by the following:

 

“Section 7.4. Approval of Certain Matters. (a) The Managing Director shall not and shall not permit the Company or any Subsidiary of the Company to take or agree to take any of the following actions or engage in any of the following transactions without the prior approval of the Board of Directors in accordance with the provisions of this Agreement:

 

(i) expenditure of any sum of Euros 1,250,000 (ONE MILLION TWO HUNDRED AND FIFTY THOUSAND) or more in the aggregate per annum that is not included in an Approved Budget, it being understood and agreed that expenditures on film rental, to the extent such expenditures are determined by reference to box-office sales, and any other variable costs that must be increased for the ordinary running of the JV and its Subsidiaries shall not be restricted by this clause (i);

 

(ii) sale, transfer or disposal of assets of the Company or any of its Subsidiaries, or purchase or other acquisition of assets or businesses, in each case in any single or series of related transactions for a consideration in excess of Euros 1,250,000 (ONE MILLION TWO HUNDRED AND FIFTY THOUSAND) in the aggregate per annum that is not included in an Approved Budget;

 

(iii) engaging by the Company or any of its Subsidiaries in any business other than as provided in its corporate purpose;

 

(iv) varying the Company’s accounting policies and practices in any material respect, other than to comply with GAAP;

 

(v) establishing any place of business outside Spain;

 

(vi) entering into any joint venture, partnership agreement or similar arrangement;

 

(vii) approving and adopting the annual budget or the Business Plan or any change thereto;

 

(viii) incurring any debt for borrowed money in excess of Euros 1,250,000 (ONE MILLION TWO HUNDRED AND FIFTY THOUSAND) that is not included in an Approved Budget;

 

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(ix) commencing or settling litigation where the amount involved exceeds Euros 1,250,000 (ONE MILLION TWO HUNDRED AND FIFTY THOUSAND);

 

(x) entering into, amending or waiving the provision of any agreements or transactions with any Member or any Affiliate of any Member after the Closing Date except (1) as expressly provided for in this Agreement, (2) relating to the exhibition and settlement of motion pictures, or (3) in the ordinary course of business under terms no less favorable to the Company than those that could be obtained by the Company in an arms length transaction, provided that prior to the Company entering into such agreement or transaction it is disclosed to the Board;

 

(xi) entering into employment agreements or consulting agreements with any Person involving the payment in any such agreement of an amount in excess of Euros 150,000 (ONE HUNDRED AND FIFTY THOUSAND) or authorizing any Person to enter into any such employment agreements or consulting agreements; or

 

(xii) giving JV’s approval to the Transfer of any Membership Interest pursuant to Section 8.1 of the Amended Agreement.”

 

The amounts referred to in 7.a (i), (ii), (viii), (ix) and (xi) shall be increased annually based on the General Consumer Price Index for Spain taking as a base the previous year’s amount beginning in January 1, 2005.

 

3.3.- The parties hereby agree that:

 

(a) As long as RE and any of his Permitted Transferees own all Class B units, the owners of said Class B units shall be entitled acting together as a group to propose the Managing Director and President of the Board of Directors of the JV and its Subsidiaries.

 

(b) As long as Loews and any of its Permitted Transferees own all Class A units, the owners of said Class A units shall be entitled acting together as a group to propose the Secretary and Vice-Secretary of the Board of Directors of the JV and its Subsidiaries, a senior executive of the JV and its Subsidiaries, and the auditor of the JV and its Subsidiaries, the latter in the terms set forth in clause FIFTH of this Amendment.

 

(c) The party not proposing the positions mentioned in (a) and (b) shall vote in favour of the proposing party’s appointment.

 

(d) If RE or any of his Permitted Transferees sells any or all of its Class B Units prior to July 7, 2008 to any person other than a Permitted Transferee (i) the rights described in (a) above shall cease to exist and operate from the date of such sale, (ii) the rights described under (b) above shall remain in full force and effect indefinitely, (iii) the holders of the Class B units

 

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shall be obliged to perform the obligations set forth in (c) above from and after such date and (iv) the holders of Class A Units shall not be obliged to perform the obligations set forth in (c) above from and after such date.

 

(e) If Loews or any of its Permitted Transferees sells any or all of its units prior to July 7, 2008 to any person other than a Permitted Transferee, then (i) the rights described under (b) above shall cease to exist and operate from the date of such sale, (ii) the rights described in (a) above shall be remain in full force and effect indefinitely, (iii) the holders of the Class A Units shall be obliged to continue to perform the obligations set forth in (c) above and (iv) the holders of Class B Units shall not be obliged to perform the obligations set forth in (c) above from and after such date.

 

(f) Subject to the foregoing, if either party sells all or part of its Units on or after July 7, 2008 to any person other than a Permitted Transferee, then the rights described in (a), (b) and (c) above shall cease to exist and operate from the date of such sale and the positions within the Board of Directors of JV and its Subsidiaries shall be agreed by the members of the Board.

 

3.4.- The parties likewise ratify their intent and undertaking that RE shall continue to manage the JV and its Subsidiaries according to the terms included in Annex IV (“RE’s Employment Contract”). Once RE’s Employment Contract terminates, the Board of Directors of the JV and its Subsidiaries shall agree on the appointment, as necessary, of the JV’s and Subsidiaries’ General Manager.

 

FOURTH.- DIVIDEND POLICY OF THE JOINT VENTURE COMPANY YELMO CINEPLEX, S.L.

 

The parties expressly agree to add a new Article XIV to the Agreement establishing a dividend policy for the JV. Article XIV shall have the following text:

 

“ARTICLE XIV”

DIVIDEND POLICY

 

Section 14.1. The distribution of dividends of the partners shall be made in proportion to their share capital.

 

Section 14.2. Dividends may only be distributed once all applicable contractual and other legal requirements are met.

 

Section 14.3. Once the legal requirements are met, if there are profits that may be distributed with respect to any fiscal year of the JV, and as long as the participation of the parties and their respective Permitted Transferees in the JV is 50/50, either of the parties acting as a group with its Permitted Transferees may require that the JV proceed to distribute dividends among the partners up to a maximum equal to 5% of the Equity of the JV provided

 

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that the JV has distributable cash at the date of the proposed dividend distribution, which means that no borrowed money can be used to pay dividends.

 

For such purposes the party making the request shall notify the other party of its request in such a way as to prove the date of sending and the contents of the same to the other party, detailing the amount that it wishes to have distributed as dividends, attaching to the communication the audited Annual Accounts of the JV for such fiscal year and written confirmation by the Company’s independent auditors that the closing balance sheet in such Annual Accounts complies with the requirements of article 213 of the Ley de Sociedades Anónimas.

 

Section 14.4. The party that is requested to do so undertakes to favourably vote for the resolution for distribution of dividends proposed by the requesting party at the Partners Meeting that must be held to approve the Annual Accounts and application of results, as long as said resolution complies with the conditions established in the above sections.”

 

FIFTH.- AUDITORS OF THE JOINT VENTURE COMPANY YELMO CINEPLEX, S.L.

 

The parties expressly agree to add a new Section 7.5 to the Agreement with the following text:

 

“Section 7.5. Auditors. Both parties agree that, as long as the participation of the parties and their respective Permitted Transferees in the JV is 50/50, the auditors of the JV and its Subsidiaries shall be appointed by the General Partners Meeting at the proposal of the partner Loews from among auditing firms of internationally recognized prestige with offices in Madrid. As a consequence RE and/or any Permitted Transferees shall vote in favour of the proposal of auditors made by Loews at the General Partners Meeting when Loews requests such point to be included in the agenda of the meeting, it being understood that, unless there is a justified cause, such as a change in control of Loews, a legal requirement or conflict of interest, Loews will not propose a change of the auditors so designated unless a minimum period of three years has passed since its original appointment of such auditors.”

 

SIXTH.- DEADLOCK OF THE JOINT VENTURE COMPANY YELMO CINEPLEX, S.L.

 

The parties expressly agree to add a new Article XV to the Agreement establishing a procedure to divide the assets of the JV into two equal blocks if the parties fail to reach a negotiated agreement under certain conditions. Article XV shall have the following text:

 

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“ARTICLE XV

DEADLOCK PROCEDURE

 

Section 15.1 If while the Agreement is in force a serious and repeated disagreement arises between Loews and its Permitted Transferees acting together as a group representing 50% of the share capital of the JV on the one hand, and RE arid his Permitted Transferee acting together as a group representing 50% of the share capital of the JV on the other hand resulting in a failure to reach a majority resolution regarding a matter that is submitted to either a Partners Meeting or the Board of Directors within the sphere of their respective competence which is essential for the normal running of the business or that prevents the normal development of the projects and activities of the JV or its Subsidiaries (a “Disagreement”), the parties agree to apply the following rules:

 

(a) Once aware of the existence of a Disagreement between the parties, both undertake to negotiate in good faith, a solution to the Disagreement that results in a resolution of the Board of Directors or the Partners Meeting, or that in any other manner satisfies both parties and is reflected in a written agreement, for a period of 60 (sixty) calendar days (the “Negotiating Period”) from the receipt of written notification regarding the Disagreement by either of the parties from the other party, unless the parties otherwise agree.

 

(b) If the Negotiating Period has transpired without the parties having been able to reach a satisfactory solution to the Disagreement they shall proceed, as provided for in Section 15.2 below, to a spin-off of the assets of the JV and its Subsidiaries (the “Spin-off’).

 

Section 15.2 (a) Either of the parties may initiate the Spin-off procedure immediately after the expiry of the Negotiating Period by giving notice (the “Spin-off Notice”) to the other party if no solution, as provided for in Section 15.1 (b), has been reached. The purpose of the Spin-off shall be the division by the Independent Expert appointed in accordance with the procedure established in Section 15.2 (b), of all the assets and liabilities of the JV and its Subsidiaries (including the personnel) into two separate blocks, each of them with equivalent value and content and each capable of operating separately, and each of the blocks shall be transferred by the JV in accordance with the Plan to newly incorporated limited liability companies (the “Beneficiary Companies”), in accordance with the spin-off process established in articles 94 and related articles of the Law on Limited Liability Companies, (the “LSRL”). The units of said Beneficiary Companies shall be allocated to the partners of the JV as compensation for the liquidation of the JV. Both parties agree hereby, as required by article 252 of the Law on Stock Companies (the “LSA”), to which the LSRL refers to, that all the units of one of the Beneficiary Companies of the Spin-off shall be allocated to the partners holding Class A Units, and that all the units of the other Beneficiary Company of the Spin-off shall be allocated to the other partners holding Class B Units.

 

Section 15.2.(b) Appointment of Independent Expert

 

(i) The parties shall by agreement in writing appoint the Independent Expert from among the internationally recognized auditing firms located in Madrid that do not audit the

 

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JV or its Affiliates or either partner or its Affiliates. The party sending the Spin-off Notice, (the “Requesting Partner”) will indicate to the other party the name of the Independent Expert that is proposed by him. Should the parties agree on the Independent Expert, the Requesting Partner shall send a communication to the Independent Expert in the form attached as Annex 15.2(b)(i) . The Independent Expert so notified will have 7 days to notify the Requesting Partner of its acceptance in writing of its appointment. If the Independent Expert fails to duly accept its appointment, then the parties shall upon the expiry of the referred to 7 day period repeat the process established in this paragraph.

 

(ii) If the parties do not reach an agreement regarding the identity of the Independent Expert within seven (7) days of the date of the Spin-off Notice, either of the Partners, (the “Notifying Partner”), may send a communication, in the form attached as Annex 15.2(b)(ii) , to the Dean of the Bar of Madrid (the “Dean”) requesting him to appoint the Independent Expert from among the internationally recognized auditing firms that do not audit the JV or its Affiliates or either party or its Affiliates, located in Madrid (the “Request ”). The Notifying Partner shall simultaneously with the sending of the Request to the Dean notify via notary the other party of the existence of the Request by sending a copy of the Request.

 

(iii) The appointment of the Independent Expert, which shall at the same time, be communicated to both parties, shall be made by the Dean within 10 working days of receipt of the Request made by the Notifying Partner. The appointment by the Dean will indicate the tasks of the Independent Expert as provided for in Annex 15.2(b)(iii) [a transcription of this Article XV]. The Independent Expert shall confirm acceptance of the appointment to both parties and the Dean within 7 days of receipt of the appointment by the Dean.

 

(iv) Any other communications related to the appointment of the Independent Expert shall be sent by the Requesting or Notifying Partner, as applicable, to the other party immediately upon sending or receiving any communication.

 

Section 15.2.(c) The task of the Independent Expert shall be to issue a report, (the “Report”) containing a draft of the Spin-off plan and directors’ report that shall be approved afterwards by the Board of the JV, and as applicable the Subsidiaries, as the Spin-off plan of the JV (the “Plan”) and directors’ report (the “Directors’ Report”), required by article 94 of the LSRL. The Report shall include, as a consequence, all that required by article 94 of the LSRL and the related articles of the LSA, and particularly the following:

 

(i)

a description and valuation of the assets and liabilities of the JV and its Subsidiaries;

 

(ii)

a division of the assets and liabilities of the JV and its Subsidiaries in two blocks of equivalent value and content, each capable of being operated as a going concern, specifying the elements of assets and liabilities making up each one of the blocks (including the personnel that may be

 

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attributed to each block, including those that are not working in cinemas) taking into account that RE’s Employment Contract shall terminate immediately upon assignment of the JV’s assets and liabilities to the Beneficiary Companies;

 

(iii)

the valuation of each block;

 

(iv)

the corporate procedure for creating the two blocks taking into account (1) the nature of the business and operations of the JV, (2) its corporate structure, (i.e. holding company owning one hundred percent of one Subsidiary which owns the operating assets) and (3) the purpose of the Spin-off;

 

(v)

satisfaction of obligations to third parties;

 

(vi)

payment by the JV of all costs and expenses related to the intervention of the Dean, the Independent Expert and the implementation of the Plan;

 

(vii)

a draft of the Plan;

 

(viii)

a draft of the Directors’ Report; and

 

(ix)

any other information required by law.

 

Apart from the above, the parties expressly agree that all the industrial property rights contributed to the JV by either of the parties or their Affiliates, and including those associated with the name “Yelmo” and “Regaliz” on the one hand and the name “Cineplex” and the Spotlight Logo on the other, will be allocated to the Beneficiary Companies of RE and Loews respectively, since both have an equivalent value and nature. The licence contract effective June 30, 1999 concerning the use of the spotlight logo, Spanish graphic trademark number M2192245, and Community number 000965053 both in Class 41 and the word Cineplex, all licensed by Loews Theatre Management Corp. to the JV shall be terminated without cost to either party, and any registered right derived from such license shall prior to the Spin-off be assigned to Loews.

 

The Report shall be prepared and delivered simultaneously to the Board of Directors of the JV, Loews and RE by the Independent Expert within 60 (sixty) calendar days of its acceptance of its appointment.

 

Section 15.2.(d) Once the Report of the Independent Expert is received, the parties will have a maximum period of 7 (seven) calendar days from the day after its receipt to agree to the allocation of the two blocks proposed by it. If they cannot agree, either party may notify the Independent Expert of their failure to agree and request that the allocation of

 

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said blocks shall be done according to a random drawing before the Independent Expert. The drawing shall take place within 5 (five) days of the sending of the notice referred to in this paragraph on the date and at the place that the Independent Expert communicates to the partners. The Independent Expert shall establish the procedure for the drawing. The procedure shall be transparent and communicated to the parties prior to the drawing.

 

Section 15.2.(e) As a result of the creation of the blocks, their allocation to the Beneficiary Companies, and the allocation of the Beneficiary Companies to the Partners according to 15.2(d) the parties as partners to the JV shall take all steps necessary under Spanish law to cause the JV and its Subsidiaries to effect the Spin-off in the terms and conditions set forth in the Report of the Independent Expert. Both parties hereby undertake to favourably vote for said Spin-off resolution, cause the corresponding deed of spin-off to be granted and cause the directors they have appointed to sign and approve the Plan and the Directors’ Report required by the LSRL based on the Report prepared by the Independent Expert, deposit the Plan, have prepared the information for the partners, publish the announcements, and register the Spin-off deeds, all as required by law.

 

The call of the corresponding Board of Directors and General Partners Meeting that shall approve, respectively, the Plan, the Director’s Report, and the Spin-off balance sheet if necessary, and the spin-off resolution shall be made as provided for in the By-laws, immediately after receiving the Report of the Independent Expert and the allocation of the Beneficiary Companies to the Partners according to 15.2(d).

 

Section 15.2.(f) The breach by one of the parties (the “Breaching Partner”) of its obligation to appear at the Partners Meeting, vote in favor of the Spin-off resolution on the terms herein agreed, of its obligation to grant the corresponding deeds or, in general, to take any other legally required action to carry out the Spin-off, shall give the other party (the “Performing Partner”) the right to seek in arbitration, according to the procedure provided for in Article XIII of the Amended Agreement, the specific performance of the Spin-off and what it implies, in the form and according to the division of assets and liabilities made by the Independent Expert according to what is established in the preceding sections. The parties hereby expressly undertake to comply with the arbitration award issued by the arbitrators hearing any such dispute.

 

The fees incurred from the arbitration proceeding mentioned in the above paragraph shall be paid by the Breaching Partner, unless, taking into the account the circumstances of the case, the arbitration tribunal decides otherwise.

 

Section 15.2.(g) If, once the arbitration award is issued, its execution is impossible due to causes attributable to one of the parties, even by virtue of the substitution of will foreseen in articles 705 and related of the Civil Procedure Act, the party that had made impossible the execution of the arbitration award shall give to the other party as equivalent compliance, 1% of the units that it holds in the JV.

 

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Section 15.3 Non-Solicitation and Confidentiality; Ordinary Course. The parties agree hereby that, once the spin-off proceeding set-forth in the preceding sections of this Clause is initiated, if applicable, each party will refrain from proposing and/or promoting in any manner, directly or indirectly, offers to hire the employees assigned to the Beneficiary Company allocated to the other party, for a period of three years from the date of the acceptance of appointment by the Independent Expert pursuant to Section 15.2 (b) iii. Likewise both parties undertake to keep confidentially for the same three year period the knowledge that each party and the employees of the Beneficiary Companies have of the other Beneficiary Company.

 

Section 15.4 Indemnity. If a claim is made against a party or its Affiliates, including a Beneficiary Company (the “First Party”), for failure of the other party’s Beneficiary Company or its Affiliates (the “Second Party”) to perform an obligation assumed as a result of the Spin-off, the parties agree that the Second Party and its Affiliates, successors and assigns shall defend, hold harmless and indemnify the First Party and its Affiliates, for any liability arising from such a claim.

 

Section 15.5 Liabilities of the JV. When a liability of the JV has not been attributed to either of the Beneficiary Companies in the Plan and the Plan cannot be clearly interpreted as establishing to which Beneficiary Company the liability should be assigned, the Beneficiary Companies shall be jointly and severally liable for this liability.

 

SEVENTH.- BY-LAWS.

 

The parties agree where provided for herein to adapt the current By-laws of the JV and its Subsidiaries to that agreed to in this Amendment. Notwithstanding, if the Mercantile Registry does not accept the registration of the By-laws that result from said adaptation, the parties agree that, in the case of conflict between the By-laws and this Amendment, the latter shall prevail over the former concerning the relation between the parties.

 

EIGHTH.-NOTICES

 

The parties hereby substitute the addresses and persons designated in Section 13.2 of the Agreement for those listed below:

 

 

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15

NINETH.- SCOPE OF THE NOVATION

 

The parties agree that except for the amendments introduced in this Amendment, the Agreement shall continue in force regarding all that has not been altered hereby.

 

And in proof of agreement they sign this document in Madrid and New York as of July 7, 2003.

 

/s/    T RAVIS R EID

Mr. Travis Reid in the name and on behalf of

LOEWS CINEPLEX INTERNATIONAL HOLDINGS, INC.

/s/    R ICARDO E VOLE M ARTIL

Mr. RICARDO EVOLE MARTIL

 

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JOINT VENTURE AGREEMENT

 

by and among

 

LTM SPANISH HOLDINGS, INC.

 

and

 

RICARDO EVOLE MARTIL

 

 

TABLE OF CONTENTS

 

 

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JOINT VENTURE AGREEMENT

 

JOINT VENTURE AGREEMENT, dated as of April 27, 1998 (this “ Agreement ”), by and among LTM Spanish Holdings, Inc., a Delaware corporation (“ LTM ”) and Ricardo Evole Martil (“ RE ”) DNI n° 2.450.193-A.

 

BACKGROUND

 

(1) LTM and RE desire to operate a motion picture exhibition business in Spain through LTM Spain S.L., a company in formation (the “ Company ”), by owning and operating the Yelmo Group Companies and constructing new state-of-the-art multiplex theaters of high quality in key locations.

 

(2) LTM and RE intend to acquire Membership Interests in the Company so that immediately after giving effect to the transactions contemplated by this Agreement to occur at the Closing and subject to the terms of this Agreement, each of LTM and RE shall own Membership Interests in the Company which entitle each of LTM and RE to 50% of the vote and to receive 50% of the profits and losses of the Company.

 

(3) The parties intend that the Company will own Yelmo Films S.A. and all of its Subsidiaries, the names of which are set forth in Schedule X hereto .

 

Accordingly, for good and valuable consideration the parties hereto hereby agree as follows:

 

ARTICLE I

DEFINITIONS

 

Section 1.1. Definitions . Capitalized terms used herein are defined in Appendix A .

 

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ARTICLE II

ORGANIZATION OF THE COMPANY

 

Section 2.1. Organizational Documents: Member Resolutions . (a) The parties hereto agree that the Company’s initial Estatutos shall be as set forth in Exhibit 2.1 attached to this Agreement. In the event that the Mercantile Registry where the Company is registered considers that any portion of the Estatutos should be changed from the form contained in Exhibit 2.1 , the parties will amend the Estatutos so as to as closely as possible reflect the agreements set forth herein. Notwithstanding anything herein or in the Estatutos to the contrary, to the extent that any provision of the Estatutos conflicts with, or otherwise is inconsistent with, any provision of this Agreement with respect to any matter, or this Agreement covers any matter that is not covered in the Estatutos, the provisions of this Agreement with respect to such matter shall control and shall be binding upon each of the parties hereto

 

(b) The Members shall call such Members’ meetings and shall cause the Company to call such directors and Members’ meetings as are reasonably required to consummate the transactions contemplated by this Agreement to occur at Closing.

 

Section 2.2. Purpose . The purpose of the Company will be to develop and operate, either itself or through its Subsidiaries, a motion picture exhibition business (which business includes the concessions business associated with motion picture exhibition) in Spain in accordance with the Business Plan and otherwise as determined by the Members.

 

ARTICLE III

INITIAL CAPITAL OF THE COMPANY

 

Section 3.1. Membership Interests . Membership Interests in the Company shall be divided into Class A Units and Class B Units ( “ Class A Units ” and “ Class B Units ”). The Class A Units and the Class B Units shall be equal in all respects as to interests in the profits and losses of the Company and, following contribution by LTM of an amount equal to the Contribution Amount as more particularly described in Section 4.3 below, rights upon the liquidation or termination of the Company. As more fully provided below under Section 7.2 and subject to Section 4.8., Members holding Class A Units shall be entitled to elect one ha