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MDD Resolution No. 131 RESOLUTION NO.131 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT AUTHORIZING BAYTOWN PREMIERE CINEMA,INC.'S DIGITAL CINEMA INITIATIVE AS A DEVELOPMENT PROJECT;PROVIDING AN UNSECURED,FOUR-YEAR LOAN IN AN AMOUNT OF ONE HUNDRED SIXTY-FIVE THOUSAND AND NO/100 DOLLARS ($165,000.00)SUBJECT TO CORPORATE AND PERSONAL GUARANTIES AS APPROVED BY THE GENERAL MANAGER;MAKING OTHER PROVISIONS RELATED THERETO:AND PROVIDING FOR THE EFFECTIVE DATE TI-IEREOF. ************************************************************************************* BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT: Section 1:That the Board of Directors of the Baytown Municipal Development District hereby finds that the expenditures authorized herein are for a development project,which satisfy the purposes for which the funds can be expended pursuant to Chapter 377 of the Texas Local Government Code.All required findings pursuant thereto are hereby declared to have been made and adopted as findings of the Board of Directors. Section 2:That the Board of Directors of the Baytown Municipal Development District hereby authorizes an unsecured,four-year loan in an amount of ONE HUNDRED SIXTY-FIVE THOUSAND AND NO/100 DOLLARS($165,000.00)subject to corporate and personal guaranties,as approved by the General Manager. Section 3:That the Board of Directors of the Baytown Municipal Development District hereby authorizes the payment in an amount of ONE HUNDRED SIXTY-FIVE THOUSAND AND NO/100 DOLLARS($165,000.00)to Baytown Premiere Cinema,Inc.,in accordance with the loan documents to be approved by the General Manager. Section 4:This resolution shall take effect immediately from and after its passage by the Board of Directors of the Baytown Municipal Development District. INTRODUCED..READ and PASSED by the affirmative vote of rlie Board of Directors of the Baytown Municipal Development District.this the 7`h day of May.2009., f ST PI-IEN H.DONCARLOS,President ATT T: KAYTI DARNELL.Assistant Secretary APPROVED AS TO FORM: ACID RAMIREZ,SR,eneral Counsel I%cobsrvllLegaRKarrnlFileslCity CounciMfunicipal Development DistridUtesolutions12009UNayLurerniereResolutioadoc UNSECURED NOTE Date: NCL , 2009 Maker: BAYTOWN PREMIERE CINEMA, INC., a Texas corporation Maker's Mailing Address: 1518 San Jacinto Mall Baytown,Texas 76502 Payee: BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT Place for Payment: 2401 Market Street Baytown,TX 77520 Principal Amount: $165,000.00 Annual Interest Rate on Unpaid Principal from Date until Maturity: Five percent (5.0%) per annum. Annual Interest Rate on Matured,Unpaid Amounts: Highest lawful contract rate. Terms of Payment: This note is due and payable in Forty-eight (48) consecutive monthly installments, the first Forty-seven (47) installments in the amount of$3,799.83 each, including interest, and the Forty-eighth (48) and final installment of the entire balance then remaining unpaid. The first installment is due and payable on July 1, 2009, and one installment is due and payable on the same day of each succeeding month thereafter until fully paid, both principal and interest, except that the final installment, if not sooner paid, shall be due and payable on June 1, 2013. Interest will be calculated on the unpaid principal to the date of each payment. Payments will be credited first to the accrued interest and then to reduction of principal. Interest on this note, both prior to and after maturity, shall be calculated on the basis of the actual number of days elapsed, but computed as if each year consisted of 360 days. Maker reserves the right to prepay this Note in any amount at any time without penalty. Prepayments shall be applied against the installments of principal last maturing hereon, and interest shall immediately cease upon any amounts of principal so prepaid. Maker promises to pay to the order of Payee at the place for payment and according to the terms of payment the principal amount plus interest at the rates stated above. All unpaid amounts shall be due by the final scheduled payment date. - 1 - If Payee has not received the full amount of any monthly installment provided for herein by the end of ten (10) calendar days after the date such installment is due, Maker will pay on demand to Payee a late charge in the amount of five percent (5%) of the overdue installment of principal and interest. This late charge will be made in addition to the regularly scheduled monthly installment. The late charge will be paid only once on any late payment. On default in the payment of this note or in the performance of any obligation in any instrument securing or collateral to it, the unpaid principal balance and earned interest on this note shall become immediately due at the election of Payee. Maker and each surety, endorser, and guarantor waive all demands for payment, presentations for payment, notices of intention to accelerate maturity, notices of acceleration of maturity, protests, notices of protest, and all other notices, except where such waiver may be expressly prohibited by law. If this note or any instrument securing or collateral to it is given to an attorney for collection or enforcement, or if suit is brought for collection or enforcement, or if it is collected or enforced through probate, bankruptcy, or other judicial proceeding, then Maker shall pay Payee all costs of collection and enforcement, including reasonable attorney's fees and court costs, in addition to other amounts due. Interest on the debt evidenced by this note shall not exceed the maximum amount of nonusurious interest that may be contracted for, taken, reserved, charged, or received under law; any interest in excess of that maximum amount shall be credited on the principal of the debt or, if that has been paid, refunded. On any acceleration or required or permitted prepayment, any such excess shall be canceled automatically as of the acceleration or prepayment or, if already paid, credited on the principal of the debt or, if the principal of the debt has been paid, refunded. Each Maker is responsible for all obligations represented by this note. When the context requires, singular nouns and pronouns include the plural. EXECUTED the 4y^day of , 2009. BAYTOWN kEMIERE CINEMA, INC., a Texas corporation By: GA MOORE, P esident STATE OF TEXAS § COUNTY OF HARRIS § Before me, the undersigned notary public, on this day personally appeared Gary Moore, in his c pace as President of --af-Premiere Cinema Corporation, " -2- t� known to me proved to me on the oath of or proved to me through his current (description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person) (check one) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office thisq_day of ,2009. KATHLEEN EPLEY •�' ' Notary Public,State of Texas 41CX-4m� LQU'L' My Commission Expires Notary blic in and for the State Tex Februory 27,2013 fd My commission expires: \\cobsrvI\Legal\Karen\Files\Contracts\Premiere Cinema\UNSECURED NOTE for Baytown Premiere Cinema,Inc.(00720174)C1ean.doc -3 - A RESOLUTION BE IT RESOLVED by the Members and Managers of BAYTOWN PREMIERE CINEMA, INC., a Texas corporation (the "Corporation"), that the Corporation borrow from the BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT, the sum of ONE HUNDRED SIXTY-FIVE THOUSAND AND NO/100 DOLLARS ($165,000.00), on such terns and condi- tions as GARY MOORE, a Director and President of the Corporation, deems proper and in the best interest of the Corporation; and BE IT FURTHER RESOLVED that GARY MOORE be, and he is hereby authorized, empowered and directed to execute, acknowledge and deliver, for and on behalf of the Corpora- tion, such note, closing statements, loan agreements, and any and all other documents or agree- ments as GARY MOORE in his sole discretion deems necessary and proper to evidence and give effect to the transactions herein described, all of which when so executed and acknowledged by the said GARY MOORE, shall be the binding act and deed of the Corporation without the attestation of any other officer of the Corporation and without affixing the Corporation's seal. PASSED AND ADOPTED this the ... _ ay of w , 1009. (Signature) r,,-A-/4 AQ 8) 0—_ (Prmted Name) P ot�,s (Title) -1- THE STATE OF TEXAS § COUNTY OF 46 § 1, _ LAQQkE , do hereby certify that 1 am the duly qualified and acting Secretary of A TOWN PREMIERE CINEMA, INC., and that the above and foregoing is a true and correct copy of a resolution duly passed and adopted by the Directors and Shareholders of said Corporation, at a meeting d I called and held in accordance with the governing docu- ments of the Corporation, on the day of 4A iz--1 2009, and at which meeting a quorum was present. ted Name• Secretary SUBSCRIBED AND SWORN TO BEFORE ME, by on the 9 day of_ I _,2009,to certify which witness my hand an se I ofo ice.KATHLEEN EPLEY r Notary Public,State of Texas My Commission Expires February 27.2013 Notary ti lic in and for the St a of I&hs THE STATE,OF TEXAS § § COUNTY OF �12WA § This Znrum�ent Sack�no%vledged before me on the day of , 2009, by Secretary, of BAY OWN PREMIERE CI MA, INC.,a Texas corporation. o,er� KATHLEEN EPLEY r��:s Notary Public,State of Texas My Commission Expires Nefar Public in and for the Stide of Te a Februory 27,2013 .cohsry 1+i egal�Karen�Filcs•Cottuacts\i'remierc CinemulCorporate Rcsolution to Bartow for Baytown 1'remicre Cinema(00720241);lean doe -2- A RESOLUTION BE IT RESOLVED by the Directors of PREMIERE CINEMA CORPORATION, a Texas corporation(the"Corporation"),that GARY MOORE,President ofthe Corporation,be,and he is hereby authorized and empowered to execute any and all documents of any description deemed by him in his sole discretion to be necessary or proper to evidence the actions of the Corporation in guaranteeing a loan of BAYTOWN PREMIERE CINEMA,INC.,a Texas corporation("Baytown Premiere"),payable to BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT in the amount of ONE HUNDRED SIXTY-FIVE THOUSAND AND NO1100 DOLLARS ($165,000.00), on such terms and conditions as GARY MOORE, President of the Corporation, deems proper and in the best interest of the Corporation; and BE IT RESOLVED that said loan is reasonably expected to benefit the Corporation; such guaranty is in the best interest of the Corporation; and such loan would not be made but for the guaranty by the Corporation; and BE IT FURTHER RESOLVED that GARY MOORE, President, be, and he is hereby authorized,empowered and directed to execute,acknowledge and deliver,for and on behalf of the Corporation, such guaranty and any and all other documents or agreements as GARY MOORE, President, in his sole discretion deems necessary and proper,all of which when so executed and ac- knowledged by the said GARY MOORE, President, shall be the binding act and deed of the Corporation,without the necessity of attestation by any other officer or director of the Corporation or the affixing of the Corporation's seal. / PASSED AND ADOPTED this the day of , 2009. u (Printed me) (Title) _1_ THE STATE OF TEXAS § r g COUNTY OF ` rti/�t ' I, d0 11jr, do hereby certify that I am the duly qualified and acting Secretary of PREMIERE CINEMA CORPORATION,and that the above and foregoing is a true and correct copy of a resolution passed and adopted by the Board of Directors of said PREMIERE CINEMA CORPORATION,at a meeting duly called and held in accordancl with the governing documents of PREMIERE CINEMA CORPORATION on the day of 2009,and at which meeting a quorum was present. r' t Na e: ecretary 1 SU SCRIBED AND SWORN TO BEFORE ME by on the day f ,2009,to certi which witness my and and seal of office. . KATHLEEN EPLEY __•. "_ NJ, ry Public,State of Texas My Commission Expires +r ; eq February 27,2013 "'". to ublic in and for the St4 of T . a THE STATE OF TEXAS COUNTY OF FLU This instrument was acknowledged before me on the 1 day of , 2009,by �,Secretary,of PREMIERE CINEMA CORPORATI ,a Texas corporation. KATHLEEN EPLEY Ncfta6 Public in and for the S e of T . 's ;.�•yi Notary Public.State of Texas r My Commission Expires February 27,2013 kuturs I I egal.Karen Fdes'Contracts Premiere Cinema Resolution to Guaranty loan to Baytown Premiere Cinema(00720244)(I)Clcan doe -1. GUARANTY WHEREAS, BAYTOWN PREMIERE CINEMA, INC., a Texas corporation, hereinafter called "Borrower," has applied to BAYTOWN MUNICIPAL DEVELOPMENT DISTRICT, hereinafter called "Creditor," for a an original loan in the original principal amount of ONE HUNDRED SIXTY-FIVE THOUSAND AND NO/100 DOLLARS ($165,000.00) (the "Loan"); and WHEREAS, Creditor is not willing to make the Loan to Borrower without the guaranty of the undersigned, and the undersigned acknowledges and agrees that the Loan is reasonably expected to benefit the undersigned. NOW, THEREFORE, the undersigned, PREMIERE CINEMA CORPORATION, for and in consideration of Creditor making the Loan to Borrower, and for TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the undersigned (whether one or more, herein referred to as "Guarantor") hereby guarantees to Creditor the prompt and full payment of the Guaranteed Indebtedness (hereinafter defined), as and when the same shall be due and payable, whether by lapse of time, by acceleration of maturity or otherwise, and at all times thereafter, this Guaranty being upon the following terms and conditions: 1. The term "Guaranteed Indebtedness," as used herein, includes: (a) all indebtedness of every kind and character, without limit as to amount, whether now existing or hereafter arising, of Borrower to Creditor, regardless of whether evidenced by notes, drafts, acceptances, discounts, overdrafts, or otherwise, and whether such indebtedness be fixed, contingent,joint, several, or joint and several; (b) interest on any - 1 - of the indebtedness described in (a) above; (c) any and all costs, attorneys' fees, and expenses suffered by Creditor by reason of Borrower's default in payment of any of the foregoing indebtedness; and (d) any renewal, extension or rearrangement of the indebtedness, costs, or expenses described in (a)through(c)above, or any part thereof. 2. This instrument shall be an absolute and continuing guaranty, and the circumstance that at any time or from time to time the Guaranteed Indebtedness may be paid in full shall not affect the obligation of Guarantor with respect to indebtedness of Borrower to Creditor thereafter incurred; provided that Guarantor may give written notice that Guarantor will not be liable hereunder for any indebtedness of Borrower incurred after the giving of such notice (which notice shall not be deemed to have been given until actually received by Creditor), and in such event Guarantor shall remain liable hereunder until the payment in full of(a) the Guaranteed Indebtedness as it exists at the date of the receipt of such notice, and (b) loans and advances made to or for the account of Borrower after such notice pursuant to any commitment or agreement made to or with Borrower prior to the giving of such notice. 3. If Guarantor becomes liable for any indebtedness owing by Borrower to Creditor, by endorsement or otherwise, other than under this Guaranty, such liability shall not be in any manner impaired or affected hereby, and the rights of Creditor hereunder shall be cumulative of any and all other rights that Creditor may ever have against Guarantor. The exercise by Creditor of any right or remedy hereunder or under any other instrument, or at law or in equity, shall not preclude the concurrent or subsequent exercise of any other right or remedy. If, for any reason whatsoever, Borrower is now, or hereafter becomes, indebted to Guarantor, such indebtedness and all interest thereon - 2 - shall, at all times, be subordinate in all respects to the Guaranteed Indebtedness, and Guarantor shall not be entitled to enforce or receive payment thereof until the Guaranteed Indebtedness has been fully paid. Notwithstanding anything to the contrary contained in this Guaranty or any payments made by any party hereunder, Guarantor shall not have any right of subrogation in or under the documents securing payment of the Guaranteed Indebtedness or to participate in any way therein, or in any right, title or interest in and to any mortgaged property or any collateral for the Guaranteed Indebtedness, all such rights of subrogation and participation being hereby expressly waived and released, until the Guaranteed Indebtedness has been fully paid. 4. In the event of default by Borrower in payment of the Guaranteed Indebtedness, or any part thereof, when such indebtedness becomes due, either by its terms or as the result of the exercise of any power to accelerate, Guarantor shall, on demand and without further notice of nonpayment or of dishonor, without any notice having been given to Guarantor previous to such demand of the acceptance by Creditor of this Guaranty, and without any notice having been given to Guarantor previous to such demand of the creating or incurring of such indebtedness, pay the total amount of the Guaranteed Indebtedness to Creditor, and it shall not be necessary for Creditor, in order to enforce such payment by Guarantor, first to institute suit or exhaust its remedies against Borrower or others liable on such indebtedness, or to enforce its rights against any security which shall ever have been given to secure such indebtedness. Suit may be brought or demand may be made against all parties who have signed this guaranty, or against any one or more of them, separately or together, without impairing the rights of Creditor against any other party hereto. - 3 - 5. Guarantor hereby agrees that Guarantor's obligations under the terms of this Guaranty shall not be released, diminished, impaired, reduced or affected by the occurrence of any one or more of the following events: (a)the taking or accepting of any other security or guaranty for any or all of the Guaranteed Indebtedness; (b) any release, surrender, exchange, subordination, or loss of any security at any time existing in connection with any or all of the Guaranteed Indebtedness; (c) any partial release of the liability of Guarantor hereunder or, if there is more than one person or entity signing this Guaranty, the complete or partial release of any one or more of them hereunder; (d) the death, insolvency, bankruptcy, disability, dissolution, termination, receivership, reorganization or lack of corporate, partnership or other power of Borrower, any of the undersigned, or any party at any time liable for the payment of any or all of the Guaranteed Indebtedness, whether now existing or hereafter occurring; (e) renewal, extension, modification or rearrangement of the payment of any or all of the Guaranteed Indebtedness, either with or without notice to or consent of Guarantor, or any adjustment, indulgence, forbearance, or compromise that may be granted or given by Creditor to Borrower or Guarantor; (f) any neglect, delay, omission, failure, or refusal of Creditor to take or prosecute any action for the collection of any of the Guaranteed Indebtedness or to foreclose or take or prosecute any action to foreclose upon any security therefor or to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guaranteed Indebtedness; (g) any failure of Creditor to notify Guarantor of any renewal, extension, rearrangement, modification or assignment of the Guaranteed Indebtedness or any part thereof, or of any instrument evidencing or securing the Guaranteed Indebtedness or any part thereof, or of the release of or change -4 - in any security or of any other action taken or refrained from being taken by Creditor against Borrower or of any new agreement between Creditor and Borrower, it being understood that Creditor shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Indebtedness; (h) the unenforceability of all or any part of the Guaranteed Indebtedness against Borrower, whether because the Guaranteed Indebtedness exceeds the amount permitted by law, the act of creating the Guaranteed Indebtedness, or any part thereof is ultra vires, the officers or persons creating same acted in excess of their authority, or otherwise, it being agreed that Guarantor shall remain liable hereon regardless of whether Borrower or any other person be found not liable on the Guaranteed Indebtedness, or any part thereof, for any reason; or (i) any payment by Borrower to Creditor is held to constitute a preference under the bankruptcy laws or if for any other reason Creditor is required to refund such payment or pay the amount thereof to someone else. It is the intent of Guarantor and Creditor that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances, and that until the Guaranteed Indebtedness is fully and finally paid, such obligations and liabilities shall not be discharged or released, in whole or in part, by any act or occurrence which might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a Guarantor. 6. This Guaranty is for the benefit of Creditor and Creditor's successors and assigns, and in the event of any assignment of the Guaranteed Indebtedness, or any part thereof, the rights and benefits hereunder, to the extent applicable to the indebtedness so assigned, may be transferred with such indebtedness. This Guaranty is binding not only - 5 - on Guarantor, but on Guarantor's heirs, personal representatives, successors and assigns, and, if this Guaranty is signed by more than one person or entity, then all of the obligations of Guarantor arising herein shall be jointly and severally binding on each of the undersigned, and their respective heirs, personal representatives, successors and assigns. This Guaranty shall be governed by and construed in accordance with the laws of the State of Texas, and is intended to be performed in accordance with, and only to the extent permitted by, such laws. All obligations of Guarantor hereunder are performable in Harris County, Texas, at the place where the Guaranteed Indebtedness is payable. If any provision of this Guaranty or the application thereof to any person or circumstance shall, for any reason and to any extent, be invalid or unenforceable, neither the remainder of this Guaranty nor the application of such provision to any other person or circumstances shall be affected thereby, but rather the same shall be enforced to the greatest extent permitted by law. Guarantor hereby agrees with Creditor that all rights, remedies and recourse afforded to Creditor by reason of this Guaranty or otherwise are separate and cumulative, and may be pursued separately, successively or concurrently, as occasion therefore shall arise, and are nonexclusive, and shall in no way limit or prejudice any other legal or equitable right,remedy or recourse which Creditor may have. The Guarantor shall pay the attorneys' fees and all other costs and expenses which may be incurred by Creditor in the enforcement of this Guaranty. 7. It is not the intention of Creditor or Guarantor to obligate Guarantor to pay interest in excess of that legally permitted to be paid by Guarantor under applicable law. Should it be determined that any portion of the Guaranteed Indebtedness constitutes interest in excess of the maximum amount of interest which Guarantor (in such capacity) -6 - may lawfully be required to pay under applicable law, the obligation of Guarantor to pay such interest shall automatically be limited to the payment thereof at the maximum rate so permitted under applicable law. 8. Guarantor represents that it is either the owner of a direct or indirect interest in Borrower or a corporate subsidiary of Borrower, and that this Guaranty may reasonably be expected to benefit, directly or indirectly, the Guarantor, or in the alterna- tive, Guarantor represents that it is the owner of a direct or indirect interest in Borrower and/or that Guarantor will receive a direct and material benefit from the proceeds of the Guaranteed Indebtedness. Guarantor further represents that the consideration received for this Guaranty is reasonably worth at least as much as the liability and obligation of Guarantor under the Guaranty. 9. In the event Borrower files a voluntary petition seeking relief under the United States Bankruptcy Code, or if an involuntary petition is filed against the Borrower under the Under States Bankruptcy Code, the Guaranteed Indebtedness shall be automatically accelerated as against the Guarantor. Guarantor further covenants to pay interest which would have accrued on the Guaranteed Indebtedness but for the commencement of the Borrower's bankruptcy case. 10. This Guaranty is in addition to any prior guaranty given by Guarantors to Creditor in connection with any indebtedness owed by Borrower to Creditor. Creditor shall have the right, at its option, to enforce its rights under this Guaranty or any prior guaranty or under any combination of such guaranties, at its sole option. In the event of a conflict between the terms or conditions of any of the guaranty agreements executed by - 7 - Guarantor to Creditor, Creditor shall have the right to elect which of the conflicting terms or conditions of the guaranty to enforce. 11. THE UNDERSIGNED WAIVE ALL RIGHTS OF GUARANTORS UNDER CHAPTER 34 OF THE TEXAS B SINESS&COMMERCE CODE. EXECUTED to be effective the day of A0 _ 2009. PREMIERE CINEMA CORPORATION, a Texas corporation GARY 00 President STATE OF TEXAS § COUNTY OF HARRI § Before me, the undersigned notary public, on this day personally appeared Gary Moore, in his ap city as President of of Premiere Cinema Corporation, known to me proved to me on the oath of or proved to me through his current _ {description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person) (check one) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this day of ,2009. KATHLEEN EPLEY •,: Notary Public,State of Texas My Commission Expires No Public in and for the Oate o exas •;;so��;;: February 27,2013 My commission expires: \lcobsrvl\Legal\Karen\Files\Contracts\Premiere Cmema\Guaranty for Premiere Cinema Corp.(00720233)(1)Clean.doc - 8 - GUARANTY WHEREAS, BAYTOWN PREMIERE CINEMA, INC., a Texas corporation, hereinafter called "Borrower," has applied to the BAYTOWN MUNICIPAL DEVELOPMENT ❑ISTRICT, hereinafter called "Creditor," for a loan in the original principal amount of ONE HUNDRED SIXTY-FIVE THOUSAND AND NO/100 DOLLARS ($165,000.00) (the "Loan"); and WHEREAS,the undersigned has a direct financial interest therein; and, WHEREAS, Creditor is not willing to enter into the Loan without the personal guaranty of the undersigned; NOW, THEREFORE, I, the undersigned, GARY MOORE, for and in consideration of Creditor making the Loan to Borrower, and for TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the undersigned (whether one or more, herein referred to as "Guarantor") hereby guarantees to Creditor the prompt and full payment of the Guaranteed Indebtedness(hereinafter defined), as and when the same shall be due and payable, whether by lapse of time, by acceleration of maturity or otherwise, and at all times thereafter, this Guaranty being upon the following terms and conditions: 1. The term "Guaranteed Indebtedness," as used herein, includes: (a) all indebtedness of every kind and character, without limit as to amount, whether now existing or hereafter arising, of Borrower to Creditor, regardless of whether evidenced by notes, drafts, acceptances, discounts, overdrafts, or otherwise, and whether such indebtedness be fixed, contingent,joint, several, or joint and several; (b) interest on any of the indebtedness described in (a) above; (c) any and all costs, attorneys' fees, and - 1 - expenses suffered by Creditor by reason of Borrower's default in payment of any of the foregoing indebtedness; and (d) any renewal, extension or rearrangement of the indebtedness, costs, or expenses described in (a)through(c)above, or any part thereof. 2. This instrument shall be an absolute and continuing guaranty, and the circumstance that at any time or from time to time the Guaranteed Indebtedness may be paid in full shall not affect the obligation of Guarantor with respect to indebtedness of Borrower to Creditor thereafter incurred;provided that Guarantor may give written notice that Guarantor will not be liable hereunder for any indebtedness of Borrower incurred after the giving of such notice (which notice shall not be deemed to have been given until actually received by Creditor), and in such event Guarantor shall remain liable hereunder until the payment in full of(a) the Guaranteed Indebtedness as it exists at the date of the receipt of such notice, and (b) loans and advances made to or for the account of Borrower after such notice pursuant to any commitment or agreement made to or with Borrower prior to the giving of such notice. 3. If Guarantor becomes liable for any indebtedness owing by Borrower to Creditor, by endorsement or otherwise, other than under this Guaranty, such liability shall not be in any manner impaired or affected hereby, and the rights of Creditor hereunder shall be cumulative of any and all other rights that Creditor may ever have against Guarantor. The exercise by Creditor of any right or remedy hereunder or under any other instrument, or at law or in equity, shall not preclude the concurrent or subsequent exercise of any other right or remedy. If, for any reason whatsoever, Borrower is now, or hereafter becomes, indebted to Guarantor, such indebtedness and all interest thereon shall, at all times, be subordinate in all respects to the Guaranteed Indebtedness, and -2 - Guarantor shall not be entitled to enforce or receive payment thereof until the Guaranteed Indebtedness has been fully paid. Notwithstanding anything to the contrary contained in this Guaranty or any payments made by any party hereunder, Guarantor shall not have any right of subrogation in or under the documents securing payment of the Guaranteed Indebtedness or to participate in any way therein, or in any right, title or interest in and to any mortgaged property or any collateral for the Guaranteed Indebtedness, all such rights of subrogation and participation being hereby expressly waived and released, until the Guaranteed Indebtedness has been fully paid. 4. In the event of default by Borrower in payment of the Guaranteed Indebtedness, or any part thereof, when such indebtedness becomes due, either by its terms or as the result of the exercise of any power to accelerate, Guarantor shall, on demand and without further notice of nonpayment or of dishonor, without any notice having been given to Guarantor previous to such demand of the acceptance by Creditor of this Guaranty, and without any notice having been given to Guarantor previous to such demand of the creating or incurring of such indebtedness, pay the total amount of the Guaranteed Indebtedness to Creditor, and it shall not be necessary for Creditor, in order to enforce such payment by Guarantor, first to institute suit or exhaust its remedies against Borrower or others liable on such indebtedness, or to enforce its rights against any security which shall ever have been given to secure such indebtedness. Suit may be brought or demand may be made against all parties who have signed this guaranty, or against any one or more of them, separately or together, without impairing the rights of Creditor against any other party hereto. - 3 - 5. Guarantor hereby agrees that Guarantor's obligations under the terms of this Guaranty shall not be released, diminished, impaired, reduced or affected by the occurrence of any one or more of the following events: (a)the taking or accepting of any other security or guaranty for any or all of the Guaranteed Indebtedness; (b) any release, surrender, exchange, subordination, or loss of any security at any time existing in connection with any or all of the Guaranteed Indebtedness; (c) any partial release of the liability of Guarantor hereunder or, if there is more than one person or entity signing this Guaranty, the complete or partial release of any one or more of them hereunder; (d) the death, insolvency, bankruptcy, disability, dissolution, termination, receivership, reorganization or lack of corporate, partnership or other power of Borrower, any of the undersigned, or any party at any time liable for the payment of any or all of the Guaranteed Indebtedness, whether now existing or hereafter occurring; (e) renewal, extension, modification or rearrangement of the payment of any or all of the Guaranteed Indebtedness, either with or without notice to or consent of Guarantor, or any adjustment, indulgence, forbearance, or compromise that may be granted or given by Creditor to Borrower or Guarantor; (f) any neglect, delay, omission, failure, or refusal of Creditor to take or prosecute any action for the collection of any of the Guaranteed Indebtedness or to foreclose or take or prosecute any action to foreclose upon any security therefor or to take or prosecute any action in connection with any instrument or agreement evidencing or securing all or any part of the Guaranteed Indebtedness; (g) any failure of Creditor to notify Guarantor of any renewal, extension, rearrangement, modification or assignment of the Guaranteed Indebtedness or any part thereof, or of any instrument evidencing or securing the Guaranteed Indebtedness or any part thereof, or of the release of or change - 4 - in any security or of any other action taken or refrained from being taken by Creditor against Borrower or of any new agreement between Creditor and Borrower, it being understood that Creditor shall not be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Indebtedness; (h) the unenforceability of all or any part of the Guaranteed Indebtedness against Borrower, whether because the Guaranteed Indebtedness exceeds the amount permitted by law, the act of creating the Guaranteed Indebtedness, or any part thereof is ultra vires, the officers or persons creating same acted in excess of their authority, or otherwise, it being agreed that Guarantor shall remain liable hereon regardless of whether Borrower or any other person be found not liable on the Guaranteed Indebtedness, or any part thereof, for any reason; or (i) any payment by Borrower to Creditor is held to constitute a preference under the bankruptcy laws or if for any other reason Creditor is required to refund such payment or pay the amount thereof to someone else. It is the intent of Guarantor and Creditor that the obligations and liabilities of Guarantor hereunder are absolute and unconditional under any and all circumstances, and that until the Guaranteed Indebtedness is fully and finally paid, such obligations and liabilities shall not be discharged or released, in whole or in part, by any act or occurrence which might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a Guarantor. 6. This Guaranty is for the benefit of Creditor and Creditor's successors and assigns, and in the event of any assignment of the Guaranteed Indebtedness, or any part thereof, the rights and benefits hereunder, to the extent applicable to the indebtedness so assigned, may be transferred with such indebtedness. This Guaranty is binding not only - 5 - on Guarantor, but on Guarantor's heirs, personal representatives, successors and assigns, and, if this Guaranty is signed by more than one person or entity, then all of the obligations of Guarantor arising herein shall be jointly and severally binding on each of the undersigned, and their respective heirs, personal representatives, successors and assigns. This Guaranty shall be governed by and construed in accordance with the laws of the State of Texas, and is intended to be performed in accordance with, and only to the extent permitted by, such laws. All obligations of Guarantor hereunder are performable in Harris County, Texas, at the place where the Guaranteed Indebtedness is payable. If any provision of this Guaranty or the application thereof to any person or circumstance shall, for any reason and to any extent, be invalid or unenforceable, neither the remainder of this Guaranty nor the application of such provision to any other person or circumstances shall be affected thereby, but rather the same shall be enforced to the greatest extent permitted by law. Guarantor hereby agrees with Creditor that all rights, remedies and recourse afforded to Creditor by reason of this Guaranty or otherwise are separate and cumulative, and may be pursued separately, successively or concurrently, as occasion therefore shall arise, and are nonexclusive, and shall in no way limit or prejudice any other legal or equitable right, remedy or recourse which Creditor may have. The Guarantor shall pay the attorneys' fees and all other costs and expenses which may be incurred by Creditor in the enforcement of this Guaranty. 7. It is not the intention of Creditor or Guarantor to obligate Guarantor to pay interest in excess of that legally permitted to be paid by Guarantor under applicable law. Should it be determined that any portion of the Guaranteed Indebtedness constitutes interest in excess of the maximum amount of interest which Guarantor (in such capacity) - 6 - may lawfully be required to pay under applicable law, the obligation of Guarantor to pay such interest shall automatically be limited to the payment thereof at the maximum rate so permitted under applicable law. 8. Guarantor represents that it is either the owner of a direct or indirect interest in Borrower or a corporate subsidiary of Borrower, and that this Guaranty may reasonably be expected to benefit, directly or indirectly, the Guarantor, or in the alterna- tive, Guarantor represents that it is the owner of a direct or indirect interest in Borrower and/or that Guarantor will receive a direct and material benefit from the proceeds of the Guaranteed Indebtedness. Guarantor further represents that the consideration received for this Guaranty is reasonably worth at least as much as the liability and obligation of Guarantor under the Guaranty. 9. In the event Borrower files a voluntary petition seeking relief under the United States Bankruptcy Code, or if an involuntary petition is filed against the Borrower under the Under States Bankruptcy Code, the Guaranteed Indebtedness shall be automatically accelerated as against the Guarantor. Guarantor further covenants to pay interest which would have accrued on the Guaranteed Indebtedness but for the commencement of the Borrower's bankruptcy case. 10. This Guaranty is in addition to any prior guaranty given by Guarantors to Creditor in connection with any indebtedness owed by Borrower to Creditor. Creditor shall have the right, at its option, to enforce its rights under this Guaranty or any prior guaranty or under any combination of such guaranties, at its sole option. In the event of a conflict between the terms or conditions of any of the guaranty agreements executed by - 7 - Guarantor to Creditor, Creditor shall have the right to elect which of the conflicting terms or conditions of the guaranty to enforce. 11. THE UNDERSIGNED WAIVE ALL RIGHTS OF GUARANTORS UNDER CHAPTER 34 OF THE TEXAS BUSINESS & COMMERCE CODE. EXECUTED to be effective the 4 day of 20i GARY STATE OF TEXAS § COUNTY OF HARRIS § Before me, k CL �' p� the undersigned notary public, on this day personally appeared Gary Moore ✓ly known to me proved to me on the oath of or proved to me through his current (description of identification card or other document issued by the federal government or any state government that contains the photograph and signature of the acknowledging person) (check one) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed that instrument for the purposes and consideration therein expressed. Given under my hand and seal of office this%_day of mci 1 2009. KATHLEEN EPLEY _.;;t" °•�,� Notary b 'c in and for the State Tex YI i Notary Public,State of Texas My Commission Expires /1 February 27,2013 My commission expires: \\cobsrvl(Legal:Karen\Files\Contracts\Premiere Cinema\Guaranty for Gary Moore(00720168)(I)Clean doc - 8 -