GUARANTY AND PLEDGE AGREEMENT (NAC)
EXHIBIT
10.5
Form
of
Guaranty and Pledge Agreement, dated as of November 19, 2007, entered into
by
National Cinemas, Inc. in favor of ▇▇▇▇▇ Advisors, L.P.
1
THIS
GUARANTY AND PLEDGE AGREEMENT (NAC), dated as of November 19, 2007 (as amended,
supplemented and otherwise modified from time to time, this “NAC
Guaranty”),
is
made by and between National Cinemas, Inc., a corporation organized under the
laws of the State of Delaware (together with its successors and assigns,
“NAC
Guarantor”),
and
▇▇▇▇▇ Advisors, L.P. (together with its successors and assigns, “▇▇▇▇▇”),
in
its capacity as Agent under the Master Loan Agreement (each as hereinafter
defined).
RECITALS
A. Pursuant
to the Master Loan and Security Agreement, dated as of even date herewith (as
amended, supplemented or otherwise modified from time to time, the “Master
Loan Agreement”),
among
iDNA Cinemas Holdings Inc., a corporation organized under the laws of the State
of Delaware (together with its successors and assigns, the “Borrower”),
▇▇▇▇▇, and such other Persons as may be named therein as “Lenders” (▇▇▇▇▇ and
such other Persons, as “Lenders” under the Master Loan Agreement, are
hereinafter referred to as “Lenders”)
and
▇▇▇▇▇ as administrative, payment and collateral agent for itself, as a Lender,
and for the other Lenders (in such capacities and including its successors
and
assigns, “Agent”),
the
Borrower has agreed to pledge to Agent, on behalf of itself and the Lenders
under the Master Loan Agreement, certain securities subject to the conditions
set forth therein.
B. As
of the
date hereof, the Borrower will contribute to NAC Guarantor a portion of the
loan
proceeds received by the Borrower under the Master Loan Agreement in order
to
enable NAC Guarantor to repay on the date hereof a portion of the intercompany
account or obligations currently owing by NAC Guarantor to IDNA, Inc., a
corporation organized under the laws of the State of Delaware.
C. As
of the
date hereof, NAC Guarantor will derive a substantial direct and indirect benefit
from the loan to be made to the Borrower pursuant to the Master Loan Agreement.
To induce ▇▇▇▇▇ to enter into the Master Loan Agreement and for other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, NAC Guarantor has agreed (subject to certain limitations) to
pledge and grant to Agent, on behalf of itself and the Lenders under the Master
Loan Agreement, a security interest in the Pledged Collateral (as defined
herein).
D. It
is a
condition precedent to the obligation of the Lenders to make the loan to the
Borrower under the Master Loan Agreement that NAC Guarantor shall have executed
and delivered to Agent this NAC Guaranty.
NOW,
THEREFORE, for good and valuable consideration, receipt of which by the parties
hereto is hereby acknowledged, the parties hereto hereby agree as
follows:
2
1. Defined
Terms.
(a)
Unless otherwise defined herein, terms defined in the Master Loan Agreement
and
used herein shall have the meanings given to them in the Master Loan
Agreement.
“Borrower
Obligations”
shall
mean the Obligations, as defined in the Master Loan Agreement.
“Company”
means
Angelika Film Centers LLC, a limited liability company organized under the
laws
of the State of Delaware.
“Company
LLC Agreement”
means
that certain Limited Liability Company Agreement, dated as of August 27, 1996,
between Angelika Cinemas, Inc. (“Angelika”)
and
▇▇▇▇▇▇ ▇▇▇▇ Associates (“▇▇▇▇▇▇
Hill”)
with
respect to Company, as the same has been or hereafter may be amended, restated,
supplemented or otherwise modified.
“Debtor
Relief Law”
shall
mean, collectively, the Bankruptcy Code and all other United States or foreign
applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization or similar debtor relief laws from
time
to time in effect affecting the rights of creditors generally, as amended from
time to time.
“Excluded
Contract”
means
any Contract that, by its terms or applicable law, is not
assignable.
“Excluded
Contract Right”
means
any right under any Contract that, pursuant to the terms of such Contract,
may
not be assigned.
“Excluded
Property”
means,
collectively, (a) the Membership Interest, (b) any and all Excluded Contracts
and Excluded Contract Rights, (c) all products and proceeds of or from any
of
the foregoing, and (d) any and all books and records related to any of the
foregoing.
“Expiration
Date”
shall
have the meaning set forth in Section
2(d)
hereof.
“Lien”
shall
mean any mortgage, pledge, security interest, encumbrance, lien or charge of
any
kind (including any agreement to give any of the foregoing, any conditional
sale
or other title retention agreement or any lease in the nature thereof), or
any
other arrangement pursuant to which title to the property is retained by or
vested in some other Person for security purposes.
“Membership
Interest”
shall
mean NAC Guarantor’s fifty percent (50%) membership interest in the Company,
including, without limitation, (a) NAC Guarantor’s right to capital in the
Company, (b) NAC Guarantor’s interest in all profits, interest, income,
surpluses, losses and assets in the Company and all distributions by the Company
(including distributions to which NAC Guarantor shall at any time be entitled
in
respect of such membership interest), and (c) NAC Guarantor’s right to interest
payments and amounts of any nature due or to become due to NAC Guarantor in
respect of such membership interest, whether as contractual obligations,
damages, insurance proceeds or otherwise.
3
“Obligations”
shall
mean the obligations and liabilities of the Borrower and NAC Guarantor to Agent
and the Lenders (including, without limitation, the obligations whether direct
or indirect, absolute or contingent, due or to become due, or now existing
or
hereafter incurred) that may arise under, or out of or in connection with the
Master Loan Agreement, this NAC Guaranty or any other Loan Documents, whether
on
account of covenants, interest, principal, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all reasonable
fees
and disbursements of counsel to Agent that are required to be paid by the
Borrower or NAC Guarantor pursuant to the terms of the Master Loan Agreement
or
this NAC Guaranty, respectively).
“Pledged
Collateral”
shall
have the meaning assigned thereto in Section
3(a)
hereof.
“Permitted
Liens”
shall
mean all (a) Liens created pursuant to the terms of the Loan Documents or
otherwise arising in favor of Agent, for the benefit of itself and the Lender,
(b) Liens imposed by law for taxes, assessments or charges of any Governmental
Authority for claims not yet due or that are being contested in good faith
by
appropriate proceedings and with respect to which adequate reserves or other
appropriate provisions are being maintained by NAC Guarantor in accordance
with
GAAP, (c) (i) statutory Liens of landlords and of carriers, warehousemen,
mechanics, workmen, repairmen and/or materialmen, (ii) other Liens imposed
by
law or that arise by operation of law in the ordinary course of business from
the date of creation thereof, in each case only for amounts not yet due or
that
are being contested in good faith by appropriate proceedings and with respect
to
which adequate reserves or other appropriate provisions are being maintained
by
NAC Guarantor in accordance with GAAP, (iii) zoning, building codes and other
land use laws regulating the use or occupancy of NAC Guarantor’s real property
or the activities conducted thereon that are imposed by any Governmental
Authority having jurisdiction over such real property and that are not violated
by the current use or occupancy of such real property or the operation of NAC
Guarantor’s business thereon; and (iv) easements, covenants, conditions,
restrictions and other similar matters of record affecting title to such real
property that do not or would not materially impair the use or occupancy of
such
real property in the operation of the business conducted thereon, (d) Liens
incurred or deposits made in the ordinary course of business (including, without
limitation, surety bonds and appeal bonds) to secure the performance of tenders,
bids, leases, contracts (other than for the repayment of Indebtedness),
statutory obligations and other similar obligations, and
(e)
deposits and bonds provided under any lease.
“Person”
shall
mean an individual, a partnership, a corporation, a limited liability company,
a
business trust, a joint stock company, a trust, an unincorporated association,
a
joint venture, a Governmental Authority or any other entity of whatever
nature.
4
“UCC”
shall
mean the Uniform Commercial Code as in effect in the State of New York at the
relevant time; provided,
that
if, by reason of mandatory provisions of law, the validity or perfection of
Agent’s security interest in any item of Pledged Collateral or the effect of
perfection or non-perfection of the security interest in any item of Pledged
Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than New York, “UCC” shall mean the Uniform Commercial Code
as in effect in such other jurisdiction for purposes of the provisions hereof
relating to such validity or perfection or effect of perfection or
non-perfection.
(b)
The
words “hereof”, “herein” and “hereunder” and words of similar import when used
in this NAC Guaranty shall refer to this NAC Guaranty as a whole and not to
any
particular provision of this NAC Guaranty, and section and paragraph references
are to this NAC Guaranty unless otherwise specified.
(c)
The
meanings given to terms defined herein shall be equally applicable to both
the
singular and plural forms of such terms.
2.
Guaranty.
(a)
NAC
Guarantor hereby, unconditionally and irrevocably guarantees to Agent the prompt
and complete payment and performance by Borrower when due (whether at the stated
maturity, by acceleration or otherwise) of the Borrower
Obligations.
(b)
NAC
Guarantor further agrees to pay any and all reasonable expenses (including,
without limitation, all reasonable fees and disbursements of counsel) that
may
be paid or incurred by Agent in enforcing any rights with respect to, or
collecting, any or all of the Obligations and/or enforcing any rights with
respect to, or collecting against, NAC Guarantor under this NAC Guaranty unless,
and to the extent, NAC Guarantor is the prevailing party in any dispute, claim
or action relating thereto. This NAC Guaranty shall remain in full force and
effect until the Obligations are paid in full, notwithstanding that from time
to
time prior thereto the Borrower may be free from any Obligations.
(c) No
payment or payments made by Borrower, NAC Guarantor, any other guarantor or
any
other Person or received or collected by Agent from Borrower, NAC Guarantor,
any
other guarantor or any other Person by virtue of any action or proceeding or
any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of NAC Guarantor hereunder except
to
the extent of the reduction of the Obligations as a consequence thereof. NAC
Guarantor shall remain liable for the Obligations until the date the Obligations
are satisfied and paid in full (such date, the “Expiration
Date”).
5
(d) NAC
Guarantor agrees that whenever, at any time, or from time to time, it shall
make
any payment to Agent on account of NAC Guarantor’s liability hereunder, it will
notify Agent in writing that such payment is made under this NAC Guaranty for
such purpose, but the failure of NAC Guarantor to provide such notice shall
not
impair the effectiveness of such payment to reduce the Obligations.
3. Pledge
of Collateral.
(a) Pledged
Collateral. As collateral security for the prompt satisfaction and performance
of the Obligations, NAC Guarantor hereby pledges, collaterally assigns and
hypothecates to Agent, and hereby grants to Agent, for the benefit of itself
as
a Lender and the other Lenders, a lien on and first priority security interest
in, all of NAC Guarantor’s right, title and interest in, to and under the
following, whether now owned by NAC Guarantor or hereafter acquired and whether
now existing or hereafter coming into existence and wherever located (all being
collectively referred to herein as the “Pledged
Collateral”),
excepting, in each case, any of the following that constitute Excluded
Property:
(i) all
of
NAC Guarantor’s tangible personal property, including, without limitation, all
present and future Goods, Inventory and Equipment (including items of equipment
that are or become Fixtures), Computer Hardware and Software, now owned or
hereafter acquired and all of NAC Guarantor’s real property, including leasehold
interests, now owned or hereafter acquired;
(ii) all
of
NAC Guarantor’s intangible personal property, including, without limitation, all
present and future Accounts, securities, Contract Rights, Permits, General
Intangibles, Chattel Paper, Investment Property, Intellectual Property,
Documents, Instruments, Deposit Accounts, Letter-of-Credit Rights and Supporting
Obligations, rights to the payment of money or other forms of consideration
of
any kind, tax refunds, insurance proceeds (including, without limitation,
proceeds of any life insurance policy), now owned or hereafter acquired, and
all
intangible and tangible personal property relating to or arising out of any
of
the foregoing, including, but not limited to, the following:
(A) all
right, title and interest of NAC Guarantor in and to any Blocked Account
established by NAC Guarantor pursuant to the terms of the Loan Documents,
including all funds, items, instruments, investments, securities and other
things of value at any time paid, deposited, credited or held in or in transit
to such Blocked Account;
6
(B) all
policies of insurance (including without limitation, casualty and hazard
insurance and policies of owner’s or mortgagee’s title insurance), or rights as
loss payee or endorsee thereof, and escrow agreements, all tax, insurance,
security or other deposits, including rights in respect of letters of credit
evidencing or securing any such deposit;
(C) all
contract rights, accounts, rights to payment of money and general intangibles,
relating to such documents and contracts described in (A) and (B) above and
as
to all such collateral described in (A) and (B) above whether now existing
or
hereafter at any time acquired or arising; and
(iii)
any
and all additions to any of the foregoing, and any and all replacements,
products and proceeds (including insurance proceeds) of any of the
foregoing.
Capitalized
terms used in this Section
3(a)
but not
defined in this NAC Guaranty or the Master Loan Agreement shall have the
meanings given to such terms in the UCC.
(b)
NAC
Guarantor shall promptly notify Agent of any Commercial Tort Claims in which
NAC
Guarantor has an interest arising after the Closing Date and shall provide
all
necessary information concerning each such Commercial Tort Claim and make all
necessary filings with respect thereto to perfect Agent’s first priority
security interest therein.
(c)
NAC
Guarantor has full right and power to grant to Agent, for the benefit of itself
and the other Lenders, a perfected, first priority security interest and Lien
on
NAC Guarantor’s right, title and interest in and to and upon the Pledged
Collateral pursuant to this NAC Guaranty, subject to the following sentence.
Upon the execution and delivery of this NAC Guaranty, and upon the filing of
the
necessary financing statements and/or appropriate filings and/or delivery of
the
necessary certificates evidencing an equity interest, control and/or possession,
as applicable, without any further action, Agent will have a good, valid and
first priority perfected Lien and security interest in NAC Guarantor’s right,
title and interest in and to and upon the Pledged Collateral, subject to no
transfer or other restrictions or Liens of any kind in favor of any other
Person, other than Permitted Liens. As of the Closing Date, no financing
statement relating to any of the Pledged Collateral is on file in any public
office except those on behalf of Agent. As of the Closing Date, NAC Guarantor
is
not party to any agreement, document or instrument that conflicts with this
provision.
(d)
Delivery
of Share Certificates. NAC Guarantor shall promptly deliver to Agent (i) share
certificates or other instruments representing any certificated securities
acquired or received by NAC Guarantor after the date of this NAC Guaranty and
(ii) a stock power duly executed in blank by NAC Guarantor. If at any time
Agent
notifies NAC Guarantor that it requires additional stock powers endorsed in
blank, NAC Guarantor shall promptly execute in blank and deliver the requested
power(s) to Agent.
7
4.
Representations
and Warranties of NAC Guarantor.
NAC
Guarantor hereby represents and warrants that:
(a)
It
is
duly organized and validly existing in good standing under the laws of the
State
of Delaware and is duly qualified to do business and is in good standing in
every other jurisdiction as to which the nature of the business conducted by
it
makes such qualification necessary, except where the failure to be so qualified
would reasonably be expected to have a Material Adverse Effect on NAC Guarantor.
The organizational number of NAC Guarantor is 3091796.
(b)
It
has
the full power, authority and legal right to execute and deliver this NAC
Guaranty and perform its obligations hereunder. This NAC Guaranty has been
duly
authorized, executed and delivered by it, has not been amended, supplemented
or
otherwise modified, is in full force and effect and is the legal, valid and
binding obligation of NAC Guarantor, enforceable against it in accordance with
its terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights of
creditors generally and to the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at
law).
(c)
Neither
the execution and delivery of this NAC Guaranty nor the consummation by NAC
Guarantor of the transactions contemplated herein to be consummated by NAC
Guarantor will conflict with or result in a breach of, or constitute a default
under, NAC Guarantor’s charter or by-laws or any agreement or instrument (it
being acknowledged and agreed that conflict with, breach of or default under
the
terms of the Blocked Account Agreement shall not constitute a breach of this
representation) to which NAC Guarantor is a party or by which NAC Guarantor
or
its property is bound, or (except for the liens created pursuant to this NAC
Guaranty or the other the Loan Documents) result in the creation or imposition
of any lien or encumbrance upon NAC Guarantor’s revenues or assets. Neither the
execution and delivery of this NAC Guaranty nor the consummation by NAC
Guarantor of the transactions contemplated herein to be consummated by NAC
Guarantor requires any consent to be obtained by NAC Guarantor under any
applicable law or regulation applicable to NAC Guarantor, any order, writ,
injunction or decree of any court or governmental authority or agency binding
upon NAC Guarantor or any agreement or instrument (it being acknowledged and
agreed that any consent required to be obtained under the terms of the Blocked
Account Agreement shall not constitute a breach of this representation) to
which
NAC Guarantor is a party or by which NAC Guarantor or its property is bound
(other than (i) such consents as have heretofore been obtained, given or made,
(ii) such filings as may be required in connection with the perfection of
Agent’s security interest and (iii) such filings and consents as may be
necessary to comply with applicable federal and state securities laws and such
other laws as may be applicable to the performance of NAC Guarantor’s
obligations hereunder).
8
(d)
It
has received and reviewed copies of the Loan Documents.
(e)
There
is
no action, suit or proceeding at law or in equity by or before any governmental
authority, arbitral tribunal or other body now pending, or to the best of NAC
Guarantor’s knowledge, threatened against or affecting NAC Guarantor or its
property or the Pledged Collateral that would reasonably be expected to have
a
Material Adverse Effect on NAC Guarantor.
(f)
No
authorizations, approvals or consents of, and no filings or registrations with,
any governmental authority are necessary to be obtained or made by NAC Guarantor
for its execution and delivery of this NAC Guaranty or its performance of its
obligations hereunder, except for the filings of the UCC-1 financing statements
(“UCC-1s”)
referred to in Section
4(g)
hereof
and such filings and consents as may be necessary to comply with applicable
federal and state securities laws and such other laws as may be applicable
to
the performance of NAC Guarantor’s obligations hereunder.
(g)
Upon
the
filing of an appropriate UCC-1 in the office of the Secretary of State of the
State of Delaware, the pledge and security interest created hereunder in NAC
Guarantor’s right, title and interest in and to the Pledged Collateral in favor
of Agent constitutes a first priority pledge (subject to Permitted Liens) of
and
security interest in and to all of NAC Guarantor’s right, title and interest in
and to the Pledged Collateral in which a security interest therein may be
perfected by such filing.
(h)
It
is the
sole owner of the Pledged Collateral pledged under Section
3
hereof
free and clear of all claims, mortgages, pledges, liens, security interests
and
other encumbrances of any nature whatsoever (and, other than as provided in
the
Blocked Account Agreement, no right or option to acquire the same exists in
favor of any other Person), except for Permitted Liens,
and
(except to Agent or Lender hereunder) NAC Guarantor agrees that it will not
encumber or grant any security interest in or with respect to the Pledged
Collateral or permit any of the foregoing, other than Permitted
Liens.
(i)
In
pledging the Pledged Collateral, NAC Guarantor does not have any actual intent
to hinder, delay or defraud any entity to which NAC Guarantor is or is to become
indebted.
(j)
It
is
solvent on the date hereof and will not become insolvent as a result of the
pledge.
(k)
It
does
not intend to incur, or believe in respect of the pledge of the Pledged
Collateral that it will incur, debts that would be beyond its ability to pay
such debts as such debts mature.
9
(l)
The Company LLC Agreement is
genuine, and to the best of NAC Guarantor’s knowledge, is the legal, valid and
binding obligation of the parties thereto enforceable against such parties
in
accordance with its terms except as the enforcement thereof may be limited
by
Debtor Relief Laws and the application of principles of equity, which may
limit
the availability of equitable remedies (whether in a proceeding at law or
in
equity). NAC Guarantor had legal capacity to enter into the Company LLC
Agreement, and (assuming that it is legal, valid and binding and enforceable
against the other parties thereto) the Company LLC Agreement constitutes
a
legal, valid, binding and enforceable obligation of NAC Guarantor, except
as the
enforcement thereof may be limited by Debtor Relief Laws and the application
of
principles of equity, which may limit the availability of equitable remedies
(whether in a proceeding at law or in equity). To the best of NAC Guarantor’s
knowledge, the Company LLC Agreement is in full force and effect, and the
enforceability of the Company LLC Agreement has not been contested by NAC
Guarantor or, to best of NAC Guarantor’s knowledge, any other
Person.
(m)
Except
as
reflected therein or described in the next following sentence, the terms of
the
Company LLC Agreement have not been modified in any respect. To the best of
NAC
Guarantor’s knowledge (though not reflected in any written amendment to the
Company LLC Agreement of which NAC Guarantor is aware) (a) FA, Inc.
(“FA”),
as
successor in interest to Angelika, became a member in, and held the membership
interest of Angelika in, the Company, (b) on or about September 1, 2000, Citadel
Holding Corporation (“Citadel”)
acquired from ▇▇▇▇▇▇ ▇▇▇▇ its 16.66% membership interest in the Company; and
(c)
on or about December 31, 2001, FA, Reading Entertainment, Inc. (“REI”),
▇▇▇▇▇
Corporation, Citadel and its wholly-owned subsidiaries consolidated into an
entity that is named Reading International, Inc. and, as a consequence thereof,
Reading International, Inc. became a member in, and the holder of a 50%
membership interest in, the Company.
(n) It
is the
sole owner of the Membership Interest, free and clear of all claims, mortgages,
pledges, liens, security interests and other encumbrances of any nature
whatsoever (and no right or option to acquire the same exists in favor of any
other Person), other (i) than
Permitted Liens
and (ii)
Liens created pursuant to the terms of, or existing as a consequence of, the
Company LLC Agreement.
5.
Covenants
of NAC Guarantor.
NAC
Guarantor hereby covenants and agrees that:
(a)
It
shall
pay and discharge all taxes now or hereafter imposed on it, on its income or
profits, on any of its property or upon the liens or encumbrances provided
herein prior to the date on which penalties attach thereto; provided, however,
that NAC Guarantor shall be free to challenge the amount or validity of any
taxes by appropriate proceedings. It shall promptly pay any valid, final
judgment enforcing any such tax (subject to its right to appeal same) and cause
the same to be satisfied of record and shall also pay, or cause to be paid,
when
due all valid claims for labor, material, supplies or services that, if unpaid,
could by law result in a mechanics’ lien.
(b)
It
shall
notify Agent promptly upon obtaining knowledge of any material action, suit
or
proceeding at law or in equity by or before any government authority, arbitral
tribunal or other body pending or threatened against it or the
Company.
10
(c)
It
shall
not (i) create, incur, assume or permit to exist any lien or encumbrance upon
any of the Pledged Collateral, except for Permitted Liens, or (iii) create,
incur, assume or permit to exist any lien or encumbrance (other than
(x) Permitted
Liens
and (y)
Liens created pursuant to the terms of, or existing as a consequence of, the
Company LLC Agreement)
on the
Membership Interest, including any income or proceeds of the Membership
Interest.
(d)
It
will
not (i) vote to enable or take any other action to permit the Company to issue
any additional membership interests or other equity securities or interests
of
any nature or to issue any other securities convertible into or granting the
right to purchase or exchange for any membership interests or other equity
securities or interests of the Company (with it being agreed and understood
that
the issuance of any membership interest or any of such other securities will
not
be deemed a breach hereof unless NAC Guarantor has voted in favor of such
issuance or taken affirmative action to effectuate such issuance) action or
(ii)
sell, assign, transfer, exchange or otherwise dispose of, or grant any option
with respect to, the Membership Interests.
(e)
It
shall
not file or cause to be filed with respect to the Company a voluntary petition
in bankruptcy to seek relief for the Company under any provision of any
bankruptcy, reorganization, moratorium, delinquency, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction,
whether now or subsequently in effect, or consent to the filing of any petition
against the Company under any such law, or consent to the appointment of or
taking possession by a custodian, receiver, conservator, trustee, liquidator,
sequestrator or similar official for the Company or of all or any part of
Company’s property, or make an assignment for the benefit of creditors of the
Company.
(f)
It shall
fund (or cause iDNA or some other Person to fund) any request received from
the
Company for additional capital contributions to the Company if, and to the
extent that, the failure to fund such additional capital contribution would
result in the NAC Guarantor owning less than fifteen percent (15%) of all of
the
membership interests in the Company (with it being agreed and understood that
NAC Guarantor shall be entitled to fund (or cause iDNA or some other Person
to
fund) a greater portion (including all) of any such request with the purpose
of
this clause (f) being to assure that the NAC Guarantor does not own less than
fifteen percent (15%) of all of the membership interests in the Company but
not
to preclude the NAC Guarantor from owning a greater percentage of the membership
interests in the Company).
(g)
Company
LLC Agreement.
NAC
Guarantor agrees that it shall not amend, nor consent to the amendment of,
the
Company LLC Agreement, without the prior written consent of Agent, which consent
shall not be unreasonably withheld, delayed or conditioned. For purposes of
the
foregoing, any change in the ownership of membership interests in the Company
or
other change in the Company LLC Agreement effected without the affirmative
consent or approval of NAC Guarantor shall not be deemed an amendment of the
Company LLC Agreement.
11
6.
Further
Assurances; Remedies.
In
furtherance of the grant of the pledge and security interest pursuant to
Section
3
hereof,
NAC Guarantor hereby agrees with Agent as follows:
(a)
Delivery
and Other Perfection.
NAC
Guarantor shall:
(i) with
respect to any Pledged Collateral that is a security, if such Pledged Collateral
is received by NAC Guarantor, forthwith either (x) transfer and deliver to
Agent
such security so received by NAC Guarantor (together with the certificates
for
any such security duly endorsed in blank or accompanied by undated powers of
attorney duly executed in blank authorizing Agent to transfer ownership of
such
security to a third party), all of which thereafter shall be held by Agent,
pursuant to the terms of this NAC Guaranty as part of the Pledged Collateral,
or
(y) take such other action as Agent shall reasonably request to duly record,
enforce, grant and perfect the lien created hereunder in such security;
and
(ii) upon
the
reasonable request of Agent, give, execute, deliver, file and/or record any
financing statement, continuation statement, notice, instrument, document,
agreement or other papers that may be necessary or desirable to create,
preserve, perfect or validate the security interest granted pursuant hereto
or
to enable Agent to exercise and enforce its rights hereunder with respect to
such pledge and security interest; and, without limiting the generality of
the
foregoing, if any Pledged Collateral shall be evidenced by a promissory note
or
other instrument, NAC Guarantor shall deliver and pledge to Agent such note
or
instrument duly endorsed or accompanied by duly executed instruments of transfer
or assignment, all in form and substance reasonably satisfactory to
Agent.
(b)
Other
Financing Statements and Liens.
Without
the prior consent of Agent, NAC Guarantor shall not file, or authorize to be
filed or to be on file, in any jurisdiction, any financing statement or like
instrument with respect to the Pledged Collateral in which Agent is not named
as
the sole secured party.
(c)
Preservation
of Rights.
Agent
shall not be required to take any steps necessary to preserve any of the rights
or interests of any Person in, to or under any of the Pledged
Collateral.
(d)
Pledged
Collateral.
(i)
Notwithstanding anything to the contrary herein or in the Master Loan Agreement
or the Loan Documents, so long as no Default or Event of Default shall have
occurred and be continuing, NAC Guarantor shall have the right to exercise
all
voting and corporate rights pertaining to the Pledged Collateral for all
purposes not inconsistent with the terms of this NAC Guaranty, the Master Loan
Agreement, the other Loan Documents or any documents referenced herein or
therein; provided that (A) NAC Guarantor agrees that it will not vote the
Pledged Collateral in any manner that is inconsistent with the terms of this
NAC
Guaranty, the Master Loan Agreement or the other Loan Documents and (B) so
long
as no Default or Event of Default has occurred and is continuing, Agent shall
execute and deliver to NAC Guarantor or cause to be executed and delivered
to
NAC Guarantor all such proxies, powers of attorney, dividend and other orders,
and all such instruments, without recourse, as NAC Guarantor may reasonably
request for the purpose of enabling NAC Guarantor to exercise the rights and
powers that it is entitled to exercise pursuant to this Section
6(d).
12
(ii) NAC
Guarantor recognizes and agrees that, subject to the terms of this NAC Guaranty
and applicable law, the Agent has an absolute and unconditional right to
liquidate the Pledged Collateral upon and during the continuation of an Event
of
Default. NAC Guarantor agrees not to seek any equitable or other relief to
delay
or prevent Agent from exercising its right to liquidate the Pledged Collateral
upon and during the continuation of an Event of Default, subject to Agent’s
complying with the terms of this NAC Guaranty and applicable law.
(e)
Events
of Default, Etc.
During
the period during which an Event of Default has occurred and is
continuing:
(i) Agent
(to
the extent of its security interest) shall have all of the rights and remedies
with respect to the Pledged Collateral of a secured party under the UCC and
such
additional rights and remedies to which a secured party is entitled under the
laws in effect in any jurisdiction where any rights and remedies hereunder
may
be asserted (including, without limitation, the right, to the maximum extent
permitted by law, to exercise all voting, consensual and other powers of
ownership pertaining to the Pledged Collateral as if Agent were the sole and
absolute owner thereof (and NAC Guarantor agrees to take all such action as
may
be appropriate to give effect to such right));
(ii) Agent
may
make any reasonable compromise or settlement with respect to any of the Pledged
Collateral and may extend the time of payment, arrange for payment in
installments or otherwise modify the terms of the sale or other disposition
of
any of the Pledged Collateral;
(iii) Agent
may, in its name or in the name of NAC Guarantor or otherwise, demand, ▇▇▇
for,
collect or receive any money or property at any time payable or receivable
on
account of, or in exchange for, any of the Pledged Collateral, but shall be
under no obligation to do so; and
13
(iv) Agent
may, with respect to the Pledged Collateral or any part thereof that shall
then
be or shall thereafter come into the possession, custody or control of Agent
or
any of its agents, sell, lease, assign or otherwise dispose of all or any
part
of such Pledged Collateral, at such place or places as is commercially
reasonable, and for cash or for credit or for future delivery (without thereby
assuming any credit risk), at public or private sale, without demand of
performance or notice of intention to effect any such disposition or of the
time
or place thereof (except such notice as is required above or by applicable
statute and cannot be waived), and any Person may be the purchaser, lessee,
assignee or recipient of any or all of the Pledged Collateral so disposed
of at
any public sale (or, to the extent permitted by law, at any private sale)
and
thereafter hold the same absolutely free from any claim or right of whatsoever
kind, including any right or equity of redemption (statutory or otherwise),
of
NAC Guarantor, any such demand, notice and right or equity being hereby
expressly waived and released. 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 the sale, and such sale may
be
made at any time or place to which the sale may be so
adjourned.
To
the
extent all or any part of the Pledged Collateral shall include a security under
the Securities Act of 1933, as amended (the “Securities
Act”),
NAC
Guarantor recognizes that, by reason of certain prohibitions contained in the
Securities Act, and applicable state securities laws, Agent may be compelled,
with respect to any sale of all or any part of such security, to limit
purchasers to those who will agree, among other things, to acquire such security
for their own account, for investment and not with a view to the distribution
or
resale thereof. NAC Guarantor acknowledges that any such private sale may be
at
prices and on terms less favorable to Agent than those obtainable through a
public sale without such restrictions, and, notwithstanding such circumstances,
agrees that any such private sale shall be deemed to have been made in a
commercially reasonable manner and that Agent shall have no obligation to engage
in public sales and no obligation to delay the sale of any such security for
the
period of time necessary to permit the respective issuer thereof to register
it
for public sale.
(f) Removals,
Etc.
Without
at least thirty (30) days’ prior written notice to Agent, NAC Guarantor shall
not either (i) change the name under which it does business from the name shown
on the signature page hereto or (ii) change its state of incorporation.
(g) Private
Sale.
Agent
shall not incur any liability as a result of the sale of the Pledged Collateral,
or any part thereof, at any private sale pursuant to Section
6(e)
hereof
conducted in good faith and otherwise in compliance with applicable law. NAC
Guarantor hereby waives any claims against Agent by reason of the fact that
the
price at which the Pledged Collateral may have been sold at such a private
sale
was less than the price that might have been obtained at a public sale or was
less than the aggregate amount of the Obligations.
14
(h) Attorney-in-Fact.
Agent
is hereby appointed the attorney-in-fact of NAC Guarantor for the purpose
of
carrying out the provisions of this Section 6 during the period during
which an Event of Default has occurred and is continuing. Upon the occurrence
and during the continuance of any Event of Default, Agent may take any action
and execute any instruments that Agent may deem necessary or advisable to
accomplish the purposes hereof, which appointment as attorney-in-fact is
irrevocable and coupled with an interest. Without limiting the generality
of the
foregoing, so long as Agent shall be entitled under this Section 6 to
make collections in respect of the Pledged Collateral, Agent shall have the
right and power to receive, endorse and collect all checks made payable to
the
order of NAC Guarantor representing any dividend, payment or other distribution
in respect of the Pledged Collateral or any part thereof and to give full
discharge for the same.
(i)
Termination.When all of the Obligations shall have been satisfied by
payment in full, this NAC Guaranty shall terminate and Agent shall forthwith
cause to be assigned, transferred and delivered, against receipt but without
any
recourse, warranty or representation whatsoever, any remaining Pledged
Collateral and money received in respect thereof, to or on the order of NAC
Guarantor; provided, however, that NAC Guarantor’s obligations
under Sections 20 and 21 shall survive any such
termination.
(j) Expenses.
NAC
Guarantor agrees to pay all reasonable out-of-pocket expenses (including
reasonable expenses for legal services of every kind) of or incident to the
enforcement of any of the provisions of this NAC Guaranty, or performance by
Agent of any obligations of NAC Guarantor in respect of the Pledged Collateral
that NAC Guarantor has (for a period of at least five (5) Business Days after
receipt of written request from Agent that the same be performed by NAC
Guarantor) failed or refused to perform, or (after occurrence and during the
continuation of an Event of Default) any actual or attempted sale, or any
exchange, enforcement, collection, compromise or settlement in respect of any
of
the Pledged Collateral, and (after occurrence and during the continuation of
an
Event of Default) for the care of the Pledged Collateral and defending or
asserting rights and claims of Agent in respect thereof, by litigation or
otherwise.
(k)
Further
Assurances.
NAC
Guarantor agrees to, from time to time upon the reasonable request of Agent,
execute and deliver such further documents and do such other acts and things
as
such Agent may reasonably request in order to effectuate the purposes of this
NAC Guaranty.
7. Right
of Set-off.
Upon
the occurrence and during the continuation of any Event of Default, NAC
Guarantor hereby irrevocably authorizes Agent at any time and from time to
time
without notice to NAC Guarantor, any such notice being expressly waived by
NAC
Guarantor, to set-off and appropriate and apply any and all deposits (general
or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct
or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by Agent to or for the credit or the account of NAC Guarantor, or any
part
thereof in such amounts as Agent may elect, against and on account of the
obligations and liabilities of NAC Guarantor to Agent hereunder, in any
currency, whether arising hereunder or under any Loan Document, as Agent may
elect, whether or not Agent has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured. Agent shall
notify NAC Guarantor promptly of any such set-off and the application made
by
Agent; provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of Agent under this
Section
7
are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) that Agent may have.
15
8. No
Subrogation.
Notwithstanding any payment or payments made by NAC Guarantor hereunder or
any
set-off or application of funds of NAC Guarantor by Agent, unless and until
the
Obligations are paid in full, NAC Guarantor shall not be (i) entitled to payment
of any Indebtedness owing by the Borrower to NAC Guarantor or (ii) subrogated
to
any of the rights of Agent against the Borrower or any other guarantor or any
collateral security or guarantee or right of offset held by Agent for the
payment of the Obligations. In addition, NAC Guarantor shall not (unless and
until the Obligations are paid in full) seek or be entitled to seek any
contribution or reimbursement from the Borrower or any other guarantor in
respect of payments made by NAC Guarantor hereunder. If any amount shall be
paid
to NAC Guarantor on account of such Indebtedness or subrogation rights at any
time when all of the Obligations shall not have been paid and satisfied in
full,
such amount shall be held by NAC Guarantor in trust for Agent, segregated from
other funds of NAC Guarantor and shall, forthwith upon receipt by NAC Guarantor,
be turned over to Agent in the exact form received by NAC Guarantor (duly
indorsed by NAC Guarantor to Agent, if required), to be applied against the
Obligations, whether matured or unmatured, in such order as Agent may
determine.
9. Amendments,
Etc. with Respect to the Obligations.
NAC
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against NAC Guarantor and without notice to or further
assent by NAC Guarantor, any demand for payment of any of the Obligations made
by Agent may be rescinded by Agent and any of the Obligations continued, and
the
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefore or right of offset with
respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, terminated, waived,
surrendered or released by Agent, and the Master Loan Agreement and any other
Loan Documents may (subject to the terms and conditions thereof) be amended,
modified, supplemented or terminated, in whole or in part, as Agent may deem
advisable from time to time, and (subject to the terms and conditions of any
relevant agreement related thereto) any collateral security, guarantee or right
of offset at any time held by Agent for the payment of the Obligations may
be
sold, exchanged, waived, surrendered or released. Agent shall not have any
obligation to protect, secure, perfect or insure any lien at any time held
by it
as security for the Obligations or for this NAC Guaranty or any property subject
thereto. When making any demand hereunder against NAC Guarantor, Agent may,
but
shall be under no obligation to, make a similar demand on the Borrower or any
other guarantor, and any failure by Agent to make any such demand or to collect
any payments from the Borrower or any such other guarantor or any release of
such other guarantor shall not relieve NAC Guarantor of its obligations or
liabilities hereunder, and shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of Agent against NAC Guarantor.
For
the purposes hereof “demand” shall include the commencement and continuance of
any legal proceedings.
16
10. Waiver
of Rights.
Except
as otherwise expressly provided herein, NAC Guarantor waives any and all notice
of any kind, including, without limitation, notice of the creation, renewal,
extension or accrual of any of the Obligations, and notice of or proof of
reliance by Agent upon this NAC Guaranty or acceptance of this NAC Guaranty,
the
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this NAC Guaranty; and all dealings between the Borrower and NAC Guarantor,
on the one hand, and Agent, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon this NAC Guaranty.
NAC
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Borrower or NAC Guarantor with respect
to the Obligations. In addition, NAC Guarantor waives any requirement that
Agent
exhaust any right, power, remedy or proceeding against the Borrower.
11. NAC
Guaranty Absolute and Unconditional.
NAC
Guarantor understands and agrees that this NAC Guaranty shall be construed
as a
continuing, absolute and unconditional guarantee of the full and punctual
payment and performance by the Borrower of the Borrower Obligations and not
of
their collectibility only and is in no way conditioned upon any requirement
that
Agent first attempt to collect any of the Borrower Obligations from the
Borrower, without regard to (a) the validity, regularity or enforceability
of
the Master Loan Agreement or any other Loan Documents, any of the Borrower
Obligations or any other collateral security therefore or guarantee or right
of
offset with respect thereto at any time or from time to time held by Agent,
(b)
any defense, set-off, deduction, abatement, recoupment, reduction or
counterclaim (other than a defense of payment or performance) that may at any
time be available to or be asserted by the Borrower against Agent, or (c) any
other circumstance whatsoever (with or without notice to or knowledge of the
Borrower or NAC Guarantor) that constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrower from the Borrower
Obligations, or of NAC Guarantor from this NAC Guaranty, in bankruptcy or in
any
other instance. When pursuing its rights and remedies hereunder against NAC
Guarantor, Agent may, but shall be under no obligation to, pursue such rights,
powers, privileges and remedies as it may have against the Borrower or any
other
Person or against the Pledged Collateral or any other collateral security or
guarantee for the Borrower Obligations or any right of offset with respect
thereto, and any failure by Agent to pursue such other rights or remedies or
to
collect any payments from the Borrower or any such other Person or to realize
upon any such collateral security or guarantee or to exercise any such right
of
offset, or any release of the Borrower or any such other Person or any such
collateral security, guarantee or right of offset, shall not relieve NAC
Guarantor of any liability hereunder, and shall not impair or affect the rights,
powers, privileges and remedies, whether express, implied or available as a
matter of law or equity, of Agent against NAC Guarantor. This NAC Guaranty
shall
remain in full force and effect and be binding in accordance with and to the
extent of its terms upon NAC Guarantor, and shall inure to the benefit of Agent,
until all the Borrower Obligations and the obligations of NAC Guarantor under
this NAC Guaranty shall have been satisfied by performance and payment in
full.
17
12. Reinstatement.
This
NAC Guaranty shall continue to be effective, or be reinstated, as the case
may
be, if at any time payment, or any part thereof, of any of the Obligations
is
rescinded or must otherwise be restored or returned by Agent upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or NAC Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for,
the
Borrower or NAC Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
13. Payments.
NAC
Guarantor hereby guarantees that payments hereunder will be paid to Agent
without deduction, abatement, recoupment, reduction, set-off or counterclaim,
in
U.S. Dollars and in accordance with the wiring instructions of
Agent.
14. Notices.
Except
as provided herein, all notices, requests and other communications required
or
permitted by this NAC Guaranty (including, without limitation, any modifications
of, or waivers, requests or consents under, this NAC Guaranty) shall be in
writing and shall be effective and deemed delivered only when received by the
party to which it is sent to the intended recipient at the “Address for Notices”
specified on the signature page hereto; or, as to any party, at such other
address as shall be designated by such party in a written notice to the other
party; provided,
however,
that a
facsimile transmission shall be deemed to be received when transmitted so long
as the transmitting machine has provided an electronic confirmation (without
error message) of such transmission and notices being sent by first class mail,
postage prepaid, shall be deemed to be received five (5) Business Days following
the mailing thereof.
15. Severability. If
any of
the provisions of this NAC Guaranty shall be held invalid or unenforceable,
this
NAC Guaranty shall be construed as if not containing such provisions, and the
rights and obligations of the parties hereto shall be construed and enforced
accordingly.
16. Integration.
This
NAC Guaranty represents the agreement of NAC Guarantor and Agent with respect
to
the subject matter hereof, and there are no promises or representations by
either party relative to the subject matter hereof not reflected
herein.
17. Amendments
in Writing; No Waiver; Cumulative Remedies.
(a)
None
of
the terms or provisions of this NAC Guaranty may be waived, amended,
supplemented or otherwise modified except by a written instrument executed
by
NAC Guarantor and Agent; provided that any provision of this NAC Guaranty may
be
waived in writing by Agent.
18
(b)
Neither
party shall be deemed by any act (except by a written instrument pursuant
to
Section 17(a)
hereof),
delay, indulgence, omission or otherwise to have waived any right, power,
privilege or remedy hereunder or to have acquiesced in any Default or Event
of
Default or in any breach of any of the terms and conditions hereof. No failure
to exercise, nor any delay in exercising, on the part of either party, any
right, power, remedy or privilege hereunder shall operate as a waiver thereof.
No single or partial exercise of any right, power, remedy or privilege hereunder
shall preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. A waiver by any either party of any right,
power, privilege or remedy hereunder on any one occasion shall not be construed
as a bar to any right, power, privilege or remedy that such party would
otherwise have on any future occasion.
(c)
The
rights and remedies herein provided are cumulative, may be exercised singly
or
concurrently and are not exclusive of any other rights or remedies provided
by
law.
18. Section
Headings.
The
section headings used in this NAC Guaranty are for convenience of reference
only
and are not to affect the construction hereof or be taken into consideration
in
the interpretation hereof.
19. Successors
and Assigns.
This
NAC Guaranty shall be binding upon the successors and permitted assigns of
the
parties hereto and shall inure to the benefit of the parties hereto and their
successors and assigns. This NAC Guaranty may not be assigned by NAC Guarantor
without the express written consent of Agent in its sole discretion and any
attempt to assign or transfer this NAC Guaranty without such consent shall
be
null and void and of no effect whatsoever.
20. Governing
Law.
THIS
NAC GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS
OF
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES
THEREOF (EXCEPT FOR SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
19
21. Waiver
Of Jury Trial; Consent To Jurisdiction And Venue; Service Of Process. EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS NAC GUARANTY, THE OTHER LOAN DOCUMENTS OR
ANY
OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENTS, ON BEHALF OF ITSELF AND ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF ANY COURT OF THE STATE OF NEW
YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS NAC
GUARANTY. EACH OF THE PARTIES HERETO HEREBY SUBMITS TO, AND WAIVES ANY OBJECTION
SUCH PARTY MAY HAVE TO, NON-EXCLUSIVE PERSONAL JURISDICTION AND VENUE IN ▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ AND THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, WITH RESPECT TO ANY DISPUTES ARISING OUT OF
OR
RELATING TO THIS NAC GUARANTY. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
CONSENTS TO THE SERVICE OF A SUMMONS AND COMPLAINT AND OTHER PROCESS IN ANY
ACTION, CLAIM OR PROCEEDING BROUGHT BY THE OTHER PARTY IN CONNECTION WITH THIS
NAC GUARANTY OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER
OR
THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS, ON BEHALF OF
ITSELF OR ITS PROPERTY, TO SUCH PARTY’S ADDRESS SET FORTH UNDER ITS SIGNATURE
BELOW OR SUCH OTHER ADDRESS AS SUCH PARTY SHALL HAVE PROVIDED IN WRITING TO
THE
OTHER PARTY. NOTHING IN THIS SECTION 21 SHALL AFFECT THE RIGHT OF EITHER PARTY
HERETO TO (I) SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW OR (II) BRING ANY ACTION OR PROCEEDING AGAINST THE OTHER PARTY OR ITS
PROPERTIES IN THE COURTS OF ANY OTHER JURISDICTIONS.
22. Security
Agreement.
This
NAC Guaranty shall constitute a “security agreement” within the meaning of the
UCC. NAC Guarantor, by executing and delivering this NAC Guaranty, has granted
and hereby grants to Agent, as security for NAC Guarantor’s performance, a
security interest in the Pledged Collateral that may be subject to the
UCC.
23. Other
Liens.
Notwithstanding anything to the contrary contained herein, liens previously
granted by NAC Guarantor in favor of Agent or future liens that are granted
by
NAC Guarantor in favor of Agent will not constitute a breach of this NAC
Guaranty.
24. Agents.
Agent
may employ agents and attorneys-in-fact in connection herewith.
25. Counterparts.
This
NAC Guaranty may be executed in any number of counterparts, all of which when
taken together shall constitute one and the same instrument, and either of
the
parties hereto may execute this NAC Guaranty by signing any such
counterpart.
[Signature
Page to Follow]
20
IN
WITNESS WHEREOF, the parties hereto have caused this Guaranty And Pledge
Agreement (NAC) to be duly executed and delivered as of the day and year first
above written.
|
NATIONAL
CINEMAS INC.
|
||
|
By:
|
||
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
|
||
|
Title:
Treasurer
|
||
|
Address
for Notices:
|
||
|
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
|
||
|
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
||
|
Attention:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
|
||
|
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
||
|
▇▇▇▇▇
ADVISORS, L.P.
|
||
|
By: Leeds
Holdings, LLC,
|
||
|
its general partner
|
||
|
By:
|
|||
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
|||
|
Title:
Chief
Executive Officer
|
|||
|
Address
for Notices:
|
|||
|
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
|
|||
|
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
|||
|
Attention:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
|
|||
|
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|||
21