GUARANTY AND PLEDGE AGREEMENT
EXHIBIT
10.4
Form
of
Guaranty and Pledge Agreement, dated as of November 19, 2007, entered into
by
iDNA, Inc. in favor of Xxxxx Advisors, L.P.
1
THIS
GUARANTY AND PLEDGE AGREEMENT, dated as of November 19, 2007 (as amended,
supplemented and otherwise modified from time to time, this “Guaranty”),
is
made by and between iDNA, Inc., a corporation organized under the laws of
the
State of Delaware (together with its successors and assigns, “Guarantor”)
and
Xxxxx Advisors, L.P. (together with its successors and assigns, “Xxxxx”),
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”),
Xxxxx, and such other Persons as may be named therein as “Lenders” (Xxxxx and
such other Persons, as “Lenders” under the Master Loan Agreement, are
hereinafter referred to as “Lenders”)
and
Xxxxx 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”),
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, Guarantor owns all of the outstanding common stock of the Borrower
and 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 Xxxxx
to
enter into the Master Loan Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
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).
C. It
is a
condition precedent to the obligation of the Lenders to make the loan to
the
Borrower under the Master Loan Agreement that Guarantor shall have executed
and
delivered to Agent this 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 respective 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 Xxxxxx Xxxx Associates (“Xxxxxx
Hill”) with respect to Company, as the same has been or hereafter may be
amended, restated, supplemented or otherwise modified.
“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) any and all shares of capital stock and other equity interests
issued by any of Campus Group Companies, Inc., Audience Response Systems,
Inc.,
Multi-Video Services, Inc., Interactive Conferencing Network, Inc. and Option
Technologies Interactive, LLP (or any predecessor or successor to any of
such
corporations and other entities), (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.
“NCI”
shall
mean National Cinemas, Inc., a corporation organized under the laws of the
State
of Delaware.
“Obligations”
shall
mean the obligations and liabilities of the Borrower and 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 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 Guarantor pursuant to the terms of the Master Loan Agreement
or this
Guaranty, respectively).
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“Pledged
Collateral”
shall
have the meaning assigned thereto in Section
3(a)
hereof.
“Pledged
Shares”
shall
mean all of the common stock of the Borrower owned on the date hereof and
hereafter acquired by Guarantor from time to time.
“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 Lenders,
(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 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
Guarantor in accordance with GAAP, (iii) zoning, building codes and other
land
use laws regulating the use or occupancy of 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 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.
“Recourse
Limit”
shall
have the meaning assigned thereto in Section
2(f)
hereof.
“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.
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(b) The
words
“hereof”, “herein” and “hereunder” and words of similar import when used in this
Guaranty shall refer to this Guaranty as a whole and not to any particular
provision of this Guaranty, and section and paragraph references are to this
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)
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, subject
to
the limitation set forth in Section
2(f)
hereof.
(b)
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, Guarantor under this Guaranty unless, and to the extent,
Guarantor is the prevailing party in any dispute, claim or action relating
thereto. This Guaranty shall remain in full force and effect until the
Obligations are paid in full, notwithstanding that from time to time prior
thereto Borrower may be free from any Obligations.
(c)
Guarantor agrees that the Obligations may at any time and from time to time
exceed the Recourse Limit without impairing this Guaranty or affecting the
rights and remedies of Agent hereunder.
(d)
No
payment or payments made by Borrower, Guarantor, any other guarantor or any
other Person or received or collected by Agent from Borrower, 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 Guarantor hereunder except to
the
extent of the reduction of the Obligations as a consequence thereof. Guarantor
shall remain liable for the Obligations until the date the Obligations are
satisfied and paid in full (such date, the “Expiration
Date”).
(e) Guarantor
agrees that whenever, at any time, or from time to time, it shall make any
payment to Agent on account of Guarantor’s liability hereunder, it will notify
Agent in writing that such payment is made under this Guaranty for such purpose,
but the failure of Guarantor to provide such notice shall not impair the
effectiveness of such payment to reduce the Obligations.
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(f) Guarantor’s
liability hereunder on any date of determination shall not exceed an amount
(the
“Recourse
Limit”)
equal
to the excess (if any) of (x) the product of (i) ten percent (10%) and (ii)
the
amount by which the Loan Amount exceeds (y) the aggregate amount of all payments
previously made by Guarantor in respect of the Borrower Obligations on or
at any
time prior to such date of determination pursuant to the terms of this Guaranty
and, in no event, shall there be included as a reduction of the Recourse
Limit
any voluntary capital contribution to the Borrower made on or prior to such
date. Notwithstanding the foregoing, such Recourse Limit shall not (i)
constitute a waiver, release or impairment of any obligation evidenced or
secured by the Loan Documents; (ii) impair the right of Agent to name Guarantor
or the Borrower as a party or defendant in any action or suit for judicial
foreclosure and sale under the Loan Documents; (iii) impair the right of
Agent
to obtain the appointment of a receiver; (iv) impair the right of Agent to
bring
suit (and seek a money judgment therein) with respect to breach of contract,
tort, fraud or intentional misrepresentation by Guarantor or the Borrower
or any
other Person in connection with the Loan Documents; (v) impair the right
of
Agent to obtain payments on the Pledged Collateral received by Guarantor
or the
Borrower after the occurrence and during the continuation of an Event of
Default; (vi) impair the right of Agent to bring suit (and seek a money judgment
therein) with respect to any misappropriation by Guarantor or the Borrower
of
payments collected in advance with respect to the Pledged Collateral; (vii)
impair the right of Agent to apply for losses arising out of any willful
misconduct or fraud by Guarantor or the Borrower or any of their agents or
employees; or (viii) impair the right of Agent to receive from Guarantor
all
losses, costs and expenses actually incurred by Agent and Lender as the result
of a breach by Guarantor of its representations, warranties or covenants
under
this Guaranty.
3. Pledge
of
Collateral.
(a) Pledged
Collateral.
As
collateral security for the prompt satisfaction and performance of the
Obligations, 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
Guarantor’s right, title and interest in, to and under the following, whether
now owned by 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
Contracts, Excluded Contract Rights or Excluded Property:
(i) the
Pledged Shares, including, without limitation, (A) all rights of Guarantor
to
receive moneys due but unpaid or to become due thereunder or in respect thereof
(including, without limitation, but only upon the occurrence and during the
continuation of an Event of Default, all dividends and other distributions
thereon) and all property received in substitution or exchange, redemption
or
repurchase therefore, (B) all of Guarantor’s rights, powers and privileges with
respect to the Pledged Shares, (C) all rights of Guarantor to property of
Borrower, (D) all rights of Guarantor to receive proceeds of any insurance,
bond, indemnity, warranty or guaranty with respect to Borrower, and (E) all
proceeds, payments, income and profits of the foregoing;
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(ii) all
Accounts, accounts receivable, contract rights for monies due or to become
due
to Guarantor, and chattel paper, regardless of whether or not they constitute
proceeds of other Collateral;
(iii) all
obligations for monies due or to become due to Guarantor or owing to Guarantor
of every kind and nature, and all choses in action;
(iv) all
Securities (whether or not certificated);
(v) all
Equipment;
(vi)
all
Inventory;
(vii) all
Goods;
(viii) all
Fixtures, furniture and furnishings;
(ix) all
trademarks, trade names, logos, designs, patents, copyrights, applications
for
any of the foregoing, know-how, computer software (including, without
limitation, source and object codes), customer lists and other intellectual
property of any type or nature whatsoever;
(x) all
books
and records relating to any of the foregoing, including, without in any way
limiting the generality of the foregoing, those relating to its accounts;
and
(xi) to
the
extent not included in the foregoing, all proceeds, products, offspring,
rents,
revenues, issues, profits, royalties, income, benefits, accessions, additions,
substitutions and replacements of and to any and all of the
foregoing;
provided,
however, that the Pledged Collateral shall not include any Excluded Property.
Capitalized
terms used in this Section
3(a)
but not
defined in this Guaranty or the Master Loan Agreement shall have the respective
meanings given to such terms in the UCC.
(b)
Later
Acquired Shares, Stock Dividends, Options or Adjustments.
Until
the Expiration Date, Guarantor shall deliver (and irrevocably instructs Borrower
to deliver) to or upon the order of Agent any and all additional shares of
stock
or any other property of any kind distributable on or by reason of the Pledged
Shares, whether in the form of or by way of stock dividends, warrants, total
or
partial liquidation, conversion, prepayments, redemptions or otherwise,
including, but not limited to, cash dividends (but only upon the occurrence
and
continuation of an Event of Default) or cash interest payments, as the case
may
be. If any additional shares of capital stock or instruments, or of property,
in
which a security interest can only be perfected by possession by Agent, which
are distributable on or by reason of the Pledged Collateral, shall not be
delivered to or be under the control of Agent, Guarantor shall forthwith
transfer and deliver, or cause to be transferred and delivered, such property
to
or upon the order of Agent as Pledged Collateral hereunder.
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(c)
Delivery
of Share Certificates and Powers of Attorney.
Simultaneously with the delivery of this Guaranty, Guarantor is delivering
to or
upon the order of Agent all certificated securities (including, without
limitation, certificated instruments and stock certificates) representing
the
Pledged Shares, together with stock powers duly executed in blank by Guarantor
and the registration book maintained by Borrower with respect to the Pledged
Shares. Guarantor shall promptly deliver to Agent, or cause Borrower to deliver
directly to Agent, (i) share certificates or other instruments representing
any
Pledged Shares acquired or received by Guarantor after the date of this Guaranty
and (ii) a stock power duly executed in blank by Guarantor. If at any time
Agent
notifies Guarantor that it requires additional stock powers endorsed in blank,
Guarantor shall promptly execute in blank and deliver the requested power(s)
to
Agent.
(d)
Power
of Attorney, Irrevocable Proxy.
(i) Guarantor
hereby constitutes and irrevocably appoints Agent, with full power of
substitution and revocation, as Guarantor’s true and lawful attorney-in-fact,
with the power, to the full extent permitted by law, upon the occurrence
and
during the continuation of an Event of Default and in accordance with applicable
law, to affix to any documents representing the Pledged Shares the stock
or bond
powers delivered with respect thereto, and to transfer or cause the transfer
of
the Pledged Shares, or any part thereof, on the books of Borrower, to the
name
of Agent and to exercise with respect to the Pledged Shares all the rights,
powers, privileges and remedies of an owner. The power of attorney granted
pursuant to this Guaranty and all authority hereby conferred are granted
and
conferred solely to protect Agent’s interest in the Pledged Shares and shall not
impose any duty upon Agent to exercise any power. This power of attorney
shall
be irrevocable as one coupled with an interest until the Expiration
Date.
(ii) As
of the
date hereof, Guarantor hereby constitutes and irrevocably appoints Agent,
with
full power of substitution and revocation, as Guarantor’s true and lawful
attorney-in-fact, with the power, to the full extent permitted by law, upon
the
occurrence and during the continuation of an Event of Default and in accordance
with applicable law, to vote as proxy the Pledged Shares at a meeting, or
to
express consent or dissent to corporate action in writing without a meeting.
This proxy shall be irrevocable as one coupled with an interest and shall
be
valid until the Expiration Date.
(e)
Dividends.
Guarantor agrees that, without the prior written consent of Agent, Guarantor
shall not, following the occurrence and during the continuation of an Event
of
Default, cause Borrower to declare or make payment of (i) any dividend or
other
distribution on any shares of its capital stock or (ii) any payment on account
of the purchase, redemption, retirement or acquisition of any shares of its
capital stock or any option, warrant or other right to acquire shares of
its
capital stock.
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4. Representations
and Warranties of Guarantor.
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 Guarantor.
The
organizational number of Guarantor is 2556266.
(b)
It
has
the full power, authority and legal right to execute and deliver this Guaranty
and perform its obligations hereunder. This 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 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 Guaranty nor the consummation by Guarantor
of
the transactions contemplated herein to be consummated by Guarantor will
conflict with or result in a breach of, or constitute a default under,
Guarantor’s charter or by-laws or any agreement or instrument to which Guarantor
is a party or by which Guarantor or its property is bound, or (except for
the
liens created pursuant to this Guaranty or the other the Loan Documents)
result
in the creation or imposition of any lien or encumbrance upon Guarantor’s
revenues or assets. Neither the execution and delivery of this Guaranty nor
the
consummation by Guarantor of the transactions contemplated herein to be
consummated by Guarantor requires any consent to be obtained by Guarantor
under
any applicable law or regulation applicable to Guarantor, any order, writ,
injunction or decree of any court or governmental authority or agency binding
upon Guarantor or any agreement or instrument to which Guarantor is a party
or
by which 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 Guarantor’s obligations hereunder).
(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
Guarantor’s knowledge, threatened against or affecting Guarantor or its property
or the Pledged Collateral that would reasonably be expected to have a Material
Adverse Effect on Guarantor.
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(f)
No
authorizations, approvals or consents of, and no filings or registrations
with,
any governmental authority are necessary to be obtained or made by Guarantor
for
its execution and delivery of this 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 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
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 Guarantor’s right, title and interest in and
to the Pledged Collateral (inclusive of the Pledged Shares) in which a security
interest therein may be perfected by such filing.
(h)
It
is the
sole owner of the Pledged Shares pledged under Section
3
hereof
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), except for Permitted Liens,
and
(except to Agent or Lenders hereunder) 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, Guarantor does not have any actual intent
to
hinder, delay or defraud any entity to which 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.
(l)
The
Pledged Shares are validly issued, fully paid for and nonassessable. No options,
warrants or other agreements with respect to the Pledged Shares are outstanding.
The Pledged Shares represent all of the issued and outstanding capital stock
in
the Borrower. The Pledged Shares are not Excluded Property. All share
certificates, stock certificates, certificated instruments or other instruments
representing any Pledged Shares furnished by Guarantor to Agent over time
are
original of such documents.
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5. Covenants
of Guarantor.
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 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
Borrower.
(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 (ii) directly
or
indirectly create, incur or suffer to exist any indebtedness payable by Borrower
(except as contemplated by the Loan Documents).
(d)
It
will
not (i) vote to enable or take any other action to permit the Borrower to
issue
any stock 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 stock or other equity securities or interests of the Borrower or
(ii)
sell, assign, transfer, exchange or otherwise dispose of, or grant any option
with respect to, the Pledged Shares.
(e)
It
shall
not file or cause or suffer to be filed with respect to the Borrower a voluntary
petition in bankruptcy to seek relief for the Borrower 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 Borrower 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 Borrower or
of all
or any part of Borrower’s property, or make an assignment for the benefit of
creditors of the Borrower.
(f)
It
agrees
that it shall not amend, nor consent to the amendment of (x) the Governing
Agreement of either the Borrower or NCI, or (y) the Company LLC Agreement,
in
each case, without the prior written consent of the 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 Guarantor shall not be deemed an amendment of the
Company
LLC Agreement.
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(g)
It
shall,
or shall cause NCI 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 NCI owning less than fifteen percent (15%) of all of the membership
interests in the Company (with it being agreed and understood that Guarantor
shall be entitled to fund, or cause NCI or some other Person to fund, a greater
portion (including all) of any such request with the purpose of this clause
(g)
being to assure that NCI does not own less than fifteen percent (15%) of
all of
the membership interests in the Company but not to preclude NCI from owning
a
greater percentage of the membership interests in the Company).
(h)
It
shall,
to the maximum extent permissible by applicable law, include both the Borrower
and NCI in a consolidated income tax return of the Guarantor.
6. Further
Assurances; Remedies.
In
furtherance of the grant of the pledge and security interest pursuant to
Section
3
hereof,
Guarantor hereby agrees with Agent as follows:
(a)
Delivery
and Other Perfection.
Guarantor shall:
(i)
with
respect to any Pledged Collateral that is a security, if such Pledged Collateral
is received by Guarantor, forthwith either (x) transfer and deliver to Agent
such security so received by 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 following and during the continuation of an Event
of
Default), all of which thereafter shall be held by Agent, pursuant to the
terms
of this 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, 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, 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.
12
(d)
Pledged
Collateral.
(i)
Notwithstanding
anything to the contrary herein or in the Master Loan Agreement or the other
Loan Documents, so long as no Default or Event of Default shall have occurred
and be continuing, 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 Guaranty, the Master Loan Agreement,
the
other Loan Documents or any documents referenced herein or therein; provided
that Guarantor agrees that it will not vote the Pledged Collateral in any
manner
that is inconsistent with the terms of this Guaranty, the Master Loan Agreement
or the other Loan Documents
(ii)
Guarantor recognizes and agrees that, subject to the terms of this 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.
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 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 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 Guarantor or otherwise, demand, xxx 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
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.
Guarantor
recognizes that, by reason of certain prohibitions contained in the Securities
Act of 1933, as amended (the “Securities
Act”),
and
applicable state securities laws, Agent may be compelled, with respect to
any
sale of all or any part of the Pledged Collateral that constitutes a “security”
under the Securities Act, to limit purchasers to those who will agree, among
other things, to acquire such Pledged Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. 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 Pledged Collateral 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, Guarantor shall not
either (i) change the name under which it does business from the name shown
on
the signature pages 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.
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 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
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 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 Guarantor; provided,
however,
that
Guarantor’s obligations under Sections
20
and
21
shall
survive any such termination.
(j)
Expenses.
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 Guaranty, or performance by
Agent
of any obligations of Guarantor in respect of the Pledged Collateral that
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 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.
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
Guaranty.
7. Right
of Set-off.
Upon
the occurrence and during the continuation of any Event of Default, Guarantor
hereby irrevocably authorizes Agent at any time and from time to time without
notice to Guarantor, any such notice being expressly waived by 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 Guarantor, or any part
thereof in such amounts as Agent may elect, against and on account of the
obligations and liabilities of 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 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 Guarantor hereunder or any
set-off or application of funds of Guarantor by Agent, unless and until the
Obligations are paid in full, Guarantor shall not be (i) entitled to payment
of
any Indebtedness owing by Borrower to Guarantor except for (A) Indebtedness
owing by the Borrower to Guarantor that will be paid on the Closing Date
and (B)
any reimbursement for income taxes, audit fees and allocated overhead expenses
at the times and in the amounts set forth in Section 2.5 of the Master Loan
Agreement, 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, 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 Guarantor hereunder. If any
amount shall be paid to 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 Guarantor in trust for Agent,
segregated from other funds of Guarantor and shall, forthwith upon receipt
by
Guarantor, be turned over to Agent in the exact form received by Guarantor
(duly
indorsed by 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.
Guarantor shall remain obligated hereunder notwithstanding that, without
any
reservation of rights against Guarantor and without notice to or further
assent
by 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 Guaranty or any property subject
thereto. When making any demand hereunder against 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 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 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, 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 Guaranty or acceptance of this 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 Guaranty; and all dealings between the Borrower and 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 Guaranty. Guarantor
waives
diligence, presentment, protest, demand for payment and notice of default
or
nonpayment to or upon the Borrower or Guarantor with respect to the Obligations.
In addition, Guarantor waives any requirement that Agent exhaust any right,
power, remedy or proceeding against the Borrower.
11. Guaranty
Absolute and Unconditional.
Guarantor understands and agrees that this 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 Guarantor) that constitutes, or might be construed to constitute,
an
equitable or legal discharge of the Borrower from the Borrower Obligations,
or
of Guarantor from this Guaranty, in bankruptcy or in any other instance.
When
pursuing its rights and remedies hereunder against 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 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 Guarantor. This Guaranty shall remain in
full
force and effect and be binding in accordance with and to the extent of
its
terms upon Guarantor, and shall inure to the benefit of Agent, until all
the
Borrower Obligations and the obligations of Guarantor under this Guaranty
shall
have been satisfied by performance and payment in full.
17
12. Reinstatement.
This
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 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
Guarantor or any substantial part of its property, or otherwise, all as
though
such payments had not been made.
13. Payments.
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 Guaranty (including, without limitation, any modifications
of,
or waivers, requests or consents under, this 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 Guaranty shall be held invalid or unenforceable,
this
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
Guaranty represents the agreement of 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 Guaranty may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by Guarantor
and
Agent; provided that any provision of this Guaranty may be waived in writing
by
Agent.
(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.
18
(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 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
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 Guaranty may not be assigned by Guarantor
without
the express written consent of Agent in its sole discretion, and any attempt
to
assign or transfer this Guaranty without such consent shall be null and
void and
of no effect whatsoever.
20. Governing
Law.
THIS
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).
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 GUARANTY OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY. 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 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 XXX XXXXXX XX XXX
XXXXX XX
XXX XXXX AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW
YORK, WITH RESPECT TO ANY DISPUTES ARISING OUT OF OR RELATING TO THE LOAN
DOCUMENTS. 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 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.
19
22. Security
Agreement.
This
Guaranty shall constitute a “security agreement” within the meaning of the UCC.
Guarantor, by executing and delivering this Guaranty, has granted and hereby
grants to Agent, as security for 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 Guarantor in favor of Agent or future liens that are granted
by
Guarantor in favor of Agent will not constitute a breach of this
Guaranty.
24. Agents.
Agent
may employ agents and attorneys-in-fact in connection herewith.
25. Counterparts.
This
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 Guaranty by signing any such counterpart.
[Signature
page to follow]
20
IN
WITNESS WHEREOF, the parties hereto have caused this Guaranty And Pledge
Agreement to be duly executed and delivered as of the day and year first
above
written.
|
iDNA,
INC.
|
||
|
By:
|
||
|
Name:
Xxxxxx X. Xxxxxxx, Xx.
|
||
|
Title:
Treasurer
|
||
|
Address
for Notices:
|
||
|
000
Xxxxxxx Xxxxxx, 0xx
Xxxxx
|
||
|
Xxx
Xxxx, Xxx Xxxx 00000
|
||
|
Attention:
Xx. Xxxxxx X. Xxxxxxx, Xx.
|
||
|
Facsimile:
(000) 000-0000
|
||
|
XXXXX
ADVISORS, L.P.
|
||
|
By: Leeds
Holdings, LLC,
|
||
|
its general partner
|
||
|
By:
|
|||
|
Name: Xxxxxx
X. Xxxxx
|
|||
|
Title: Chief
Executive Officer
|
|||
|
Address
for Notices:
|
|||
|
000
Xxxxxxx Xxxxxx, 0xx
Xxxxx
|
|||
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|||
|
Attention:
Xx. Xxxxxx Xxxxx
|
|||
|
Facsimile:
(000) 000-0000
|
|||
21
