Contract
Form
of
Amendatory Agreement, dated as of November 21, 2007, entered into by iDNA,
Inc.,
iDNA Cinema Holdings, Inc., National Cinemas, Inc., Xxxxx Advisors, L.P. and
Xxxx Xxxxx LLP providing, inter alia, for the re-dating to November 21, 2007
of
the foregoing agreements that were dated as of as of November 19,
2007
1
Reference
is made to the following documents:
1. a
certain
Master Loan And Security Agreement (the “Loan
Agreement”),
dated
as of November 19, 2007, by and between iDNA Cinemas Holdings Inc. (formerly
known as Newco #3 Acquisition Corp.) (“Holdings”)
and
Xxxxx Advisors, L.P. (“Xxxxx”),
as
administrative, payment and collateral agent for itself and any other lenders
thereunder (Xxxxx, in such capacity, is hereinafter referred to as “Agent”)
and as
a lender (Xxxxx, in such capacity, is hereinafter referred to as “Lender”);
2. a
certain
Note, dated November 21, 2007 and issued by Borrower in the stated principal
amount of $4,250,000 payable to the order of Lender;
3. a
certain
Guaranty And Pledge Agreement, dated as of November 19, 2007, by and between
iDNA, Inc. (formerly known as National Auto Credit, Inc.) (“iDNA”)
and
Xxxxx;
4. a
certain
Guaranty And Pledge Agreement, dated as of November 19, 2007, by and between
NCI
and Xxxxx;
5. a
certain
Deposit Account Control Agreement, dated as of November 19, 2007, by and among
National Cinemas, Inc. (“NCI”),
Lender and Wachovia Bank, National Association as depositary bank with respect
to the bank account specified therein;
6. a
certain
Common Stock Purchase Warrant, dated as of November 21, 2007, by and between
iDNA and Lender;
7. various
collateral documents related thereto one or more of the foregoing documents
(such collateral documents, collectively, the “Collateral
Documents”),
including, without limitation, certain Officer’s or Secretary’s Certificates
delivered on behalf of Holdings, iDNA and/or NCI; and
8.two
opinion letters, dated November 19, 2007, from Xxxx Xxxxx LLP to
Xxxxx.
The
documents referred to in items 1 through 6 above are hereinafter referred to
collectively as the “Operative
Loan Documents,”
and
the documents referred to in item 8 above are hereinafter referred to
collectively as the “Opinions.”
This
will
confirm that the undersigned parties intended to close and fund the loan
contemplated by the Loan Agreement on November 19, 2007 but, despite the
execution and delivery of most (if not all) of the Operative Loan Documents
and
Collateral Documents on November 19, 2007, were unable to do so on such date.
In
order to avoid having to re-execute and re-deliver some or all of those
documents, the parties are entering into this Agreement to provide for the
re-dating (where necessary) of the documents to correspond with the actual
closing and funding of such loan on November 21, 2007.
2
Accordingly,
each of the undersigneds agrees as follows:
1. To
the
extent that any Operative Loan Document, Collateral Document or Opinion (all
of
the foregoing, collectively, the “Amended
Documents”)
has
been delivered and, as so delivered, is dated November 19, 2007 or as of
November 19, 2007, such Operative Loan Document, Collateral Document or Opinion
shall (except to the extent that the same has been replaced by a more current
version of the same dated November 21, 2007 or as of November 21, 2007) be
deemed amended so that the same is dated November 21, 2007 or as of November
21,
2007;
2. To
the
extend that any Amended Document refers to any other Amended Document as being
dated November 19, 2007 (or as of November 19, 2007), such reference shall
be
deemed amended to refer to such other Amended Document as being dated November
21, 2007 (or as of November 21, 2007); and
3. To
the
extend that any Operative Loan Document or Collateral Document shall provide
for
any action to be taken on or by November 19, 2007, the same shall be deemed
amended to provide for such action to be taken on or by November 21, 2007;
and
4. The
Amended Documents shall otherwise be deemed amended consistent with the purpose
and intent of the foregoing to take into consideration that the closing and
funding of the loan contemplated by the Loan Agreement was delayed until
November 21, 2007; and
5. Except
as
expressly amended (or deemed amended) hereby, each of the Amended Documents
shall be and remain in full force and effect.
This
Agreement may be executed in two or more counterparts, each of which shall
be an
original, but all of which together shall constitute one and the same
instrument.
IN
WITNESS WHEREOF,
each of
the undersigneds, by an officer or other representative thereunder duly
authorized, has executed and delivered this Agreement as of this 21st
day of
November 2007.
iDNA
CINEMAS HOLDINGS,
INC.
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By:
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By:
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Name:
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Xxxxxx
X. Xxxxxxx, Xx.
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Name:
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Xxxxxx
X. Xxxxxxx, Xx.
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Title:
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Treasurer
|
Title:
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Treasurer
|
3
NATIONAL
CINEMAS INC.
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XXXXX
ADVISORS, L.P.
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By:
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Leeds
Holdings, LLC,
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Its
general partner
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By:
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Name:
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Xxxxxx
X. Xxxxxxx, Xx.
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By:
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Title:
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Treasurer
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Xxxxxx
X. Xxxxx
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Chief
Executive Officer
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XXXX
XXXXX LLP
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Partner
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4