Exhibit 10.14
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Execution Copy
REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT, (the "Agreement") dated as of January 12,
1999, is made by MATTHEWS STUDIO EQUIPMENT GROUP, a California corporation (the
"Parent), MATTHEWS STUDIO SALES, INC., a California corporation ("MSSI"),
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HOLLYWOOD RENTAL COMPANY, LLC, a Delaware limited liability company ("HRCL") (as
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successor by merger to Hollywood Rental Co., Inc., a California corporation),
MATTHEWS STUDIO ELECTRONICS, INC., a California corporation ("MSE"), MATTHEWS
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ACCEPTANCE CORPORATION, a California corporation ("MAC"), DUKE CITY VIDEO, INC.,
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a New Mexico corporation ("Duke"), HDI HOLDINGS, INC., a Kentucky corporation
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("HDI"), FOUR STAR LIGHTING, INC., a New York corporation ("Four Star"),
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MATTHEWS STUDIO GROUP CENTERS, INC., a California corporation ("MSGC") (f/k/a
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Matthews Medical Equipment, Inc.), KEYLITE HOLDINGS, INC., California
corporation ("KHI"), REEL WHEELS, INC., a California corporation ("RWI"),
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KEYLITE PRODUCTION SERVICES, INC., a California corporation ("KPS"), DUKE CITY
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HOLDINGS, INC., a California corporation ("Duke Holdings"), and FOUR STAR
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HOLDING, INC., a Delaware corporation ("Four Star Holding") (the Parent, MSSI,
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HRCL, MSE, MAC, Duke, HDI, Four Star, MSGC, KHI, RWI, KPS, Duke Holdings, and
Four Star Holding are collectively referred to herein as the "Account Party")
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and ING EQUITY PARTNERS, L.P. I, a Delaware limited partnership ("ING").
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W I T N E S S E T H:
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WHEREAS, pursuant to the terms of the Amended and Restated Credit
Agreement, dated as of April 1, 1998 (as amended or otherwise modified, the
"Credit Agreement"), between, among others, the Account Party and THE CHASE
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MANHATTAN BANK, a Delaware corporation (the "Beneficiary"), as agent, the
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Account Party may be obligated to pay from time to time certain Obligations to
the Beneficiary;
WHEREAS, the Account Party has requested that ING cause ING (U.S.) Capital,
LLC ("ING Capital" or the "Issuer") to issue for the account of the Account
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Party an irrevocable standby Letter of Credit, substantially in the form of
Exhibit A hereto (such Letter of Credit, as amended from time to time, and any
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substitute or replacement therefor issued by the Issuer, being referred to
herein as the "Letter of Credit"), in favor of the Beneficiary to support
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payment of the Obligations; and
WHEREAS, ING is willing to cause the issuance of the Letter of Credit on
the terms and conditions herein contained;
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
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underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Account Party" is defined in the preamble, and shall also include its
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permitted successors, transferees and assigns.
"Account Party Obligations" means all obligations (monetary or otherwise)
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of the Account Party arising under or in connection with this Agreement and the
Letter of Credit.
"Agreement" means, on any date, this Reimbursement Agreement as originally
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in effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified and in effect on such
date.
"Authorized Officer" means, relative to the Account Party, those of its
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officers whose signatures and incumbency shall have been certified to ING
pursuant to Section 5.1.2.
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"Beneficiary" is defined in the first recital of this Agreement, and also
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includes its successors, transferees and assigns.
"Business Day" means any day other than a Saturday, Sunday or a day on
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which banks are authorized or required to be closed in New York, New York.
"Contract" is defined in Section 2.3(a).
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"Credit Agreement" is defined in the first recital.
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"Disbursement" means any payment made by the Issuer under the Letter of
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Credit to or for the account of the Beneficiary.
"Dollars" or the symbol "$" means dollars in the lawful money of the United
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States of America.
"Effective Date" means the date this Agreement becomes effective pursuant
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to Section 8.7.
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"including" means including without limiting the generality of any
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description preceding such term.
"Indemnified Parties" is defined in Section 2.4.
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"ING" is defined in the preamble, and also includes its successors,
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transferees and assigns.
"ING Capital" is defined in the second recital, and also includes its
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successors, transferees and assigns.
"ING Security Agreement" means the Security Agreement, executed and
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delivered by an Authorized Officer of the Account Party pursuant to Section
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5.1.3, substantially in the form of Exhibit B hereto, as amended, supplemented,
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amended and restated or otherwise modified from time to time.
"ING Warrants" means the certificate(s) representing the warrants to
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purchase a total of 450,000 shares of Common Stock of the Company, issued by the
Company to ING as of the date hereof.
"Issuance Date" means the date on which the Letter of Credit is issued
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pursuant to Section 2.1 hereof.
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"Issuer" is defined in the second recital.
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"Letter of Credit" is defined in the second recital of this Agreement.
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"Loan Documents"has the meaning given to it in the Credit Agreement.
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"Obligations" has the meaning given to it in the Credit Agreement.
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"Organic Document" means, relative to the Account Party, its certificate or
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articles of incorporation or its articles of organization, as applicable, its
by-laws or limited liability company agreement, as applicable, and all
shareholder agreements, voting trusts and similar arrangements applicable to any
of its authorized shares of capital stock.
"Person" means any natural person, corporation, partnership, limited
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liability entity, firm, association, trust, government, governmental agency or
any other entity, whether acting in an individual, fiduciary or other capacity.
"Reimbursement Documents" means this Agreement, the ING Security Agreement
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and each other document or instrument executed and delivered in connection
herewith or therewith.
"Reimbursement Obligation" is defined in Section 2.3.
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"Stated Amount" means, as of any date, the amount that is available to be
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paid under the Letter of Credit on such date pursuant to the terms thereof,
which initially shall be $3,000,000.
"Taxes" is defined in Section 4.2.
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SECTION 1.2. Cross-References. Unless otherwise specified, references in
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this Agreement to any Article or Section are references to such Article or
Section of this Agreement and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
ARTICLE II
THE LETTER OF CREDIT
SECTION 2.1. Issuance of the Letter of Credit. On the terms and subject
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to the conditions herein set forth, ING agrees to cause the issuance and
delivery of the Letter of Credit to the Beneficiary in an amount equal to the
Stated Amount.
SECTION 2.2. Reimbursement on Demand. On (or promptly after) each date on
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which a payment is made by ING to reimburse the Issuer for a payment made under
the Letter of Credit, ING shall notify the Account Party of the amount of such
payment and of ING's reimbursement of the Issuer for such payment, and will
promptly thereafter furnish to the Account Party copies of each certificate
accompanying any demand for payment; provided, however, that ING's failure to
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give such notice or to provide such copies shall not affect the Account Party
Obligations hereunder. Within three Business Days following receipt of any
notice of a payment under the Letter of Credit and of ING's reimbursement of the
Issuer for such payment, the Account Party agrees that it will, as reimbursement
for such payment by ING, promptly pay to ING the amount as notified by ING to
the Account Party, together with interest on the amount to be so reimbursed at a
fixed rate per annum equal to 15%, payable on the first Business Day of each
April, July, October and January in arrears.
SECTION 2.3. Obligations Absolute. The obligation (a "Reimbursement
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Obligation") of the Account Party to reimburse ING for each payment made by ING
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to reimburse the Issuer's payment under the Letter of Credit shall be absolute,
unconditional and irrevocable under all circumstances, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including, without limitation, to the extent permitted by law, the following
circumstances:
(a) any lack of validity or enforceability of the Letter of Credit or
any related contract, instrument or other agreement in support of which the
Letter of Credit has been issued or pursuant to which ING has made any
reimbursement to the Issuer (collectively referred to as a "Contract");
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(b) any amendment or waiver of or any consent to or departure from
the Letter of Credit or any Contract;
(c) the existence of any claim, set-off, defense or other right which
the Account Party or any other Person may have at any time against the
Beneficiary (or any Persons for whom the Beneficiary may be acting), ING or
any other Person, whether in connection with this Agreement, the
transactions contemplated herein, or in the Letter of Credit, any Contract
or any unrelated transaction;
(d) any certificate or any other document presented under the Letter
of Credit proving to be forged, fraudulent or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect; or
(e) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.
Notwithstanding the foregoing, if the Account Party has made any payment as
provided above, then the Account Party shall have a claim against ING, and ING
shall be liable to the Account Party to the extent, but only to the extent, of
any direct (as opposed to consequential or punitive) damages suffered by the
Account Party as the result of the willful misconduct or gross negligence on the
part of ING in reimbursing the Issuer for any payment made under the Letter of
Credit.
SECTION 2.4. Action in Respect of the Letter of Credit. The Account Party
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agrees to assume all risks of the acts or omissions of the Beneficiary under the
Letter of Credit with respect to its use of the Letter of Credit. Neither ING,
ING Capital nor any of their officers, directors, partners, employees or agents,
or any of their respective affiliates (collectively, the "Indemnified Parties")
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shall be liable or responsible for:
(a) the use of the Letter of Credit;
(b) the form, validity, sufficiency, legal effect, accuracy or
genuineness of certificates or other documents delivered under or in
connection with the Letter of Credit, even if such certificates or other
documents should prove to be insufficient, invalid, fraudulent or forged;
(c) the failure of the Beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telex, telecopy, telegraph,
wireless or otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under the Letter
of Credit, or errors in translation or in interpretation of technical
terms.
ING and ING Capital may accept certificates or other documents that appear on
their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary. In furtherance and not
in limitation of the foregoing provisions, the Account Party agrees that any
action, inaction or omission by ING or ING Capital in good
faith in connection with the Letter of Credit, any reimbursement by ING of
amounts drawn thereunder or any related drafts, certificates or other documents,
shall be binding on the Account Party and shall not result in any liability of
ING or ING Capital to the Account Party.
SECTION 2.5. Indemnification. The Account Party hereby indemnifies,
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exonerates and holds harmless each Indemnified Party from and against any and
all actions, causes of actions, suits, claims, losses, liabilities, costs,
damages or expenses which any Indemnified Party may incur or which may be
claimed against such Indemnified Party (whether or not such Indemnified Party is
a party to the action for which indemnification hereunder is sought) by any
Person, including reasonable attorneys' fees and disbursements by reason of or
in connection with the execution and delivery of this Agreement and the issuance
of the Letter of Credit or the payment or failure to make payment under the
Letter of Credit or the reimbursement or the failure to make reimbursement of
amounts paid under the Letter of Credit; provided, however, that the Account
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Party shall not be required to indemnify such Indemnified Parties pursuant to
this Section 2.5 for any actions, causes of actions, suits, claims, losses,
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liabilities, costs, damages or expenses to the extent caused by ING's willful
misconduct or gross negligence in determining the validity of its reimbursement
obligation to the Issuer for payments made to the Beneficiary under the Letter
of Credit or ING Capital's willful misconduct or gross negligence in making
payments under the Letter of Credit.
ARTICLE III
LETTER OF CREDIT FEE; POST-MATURITY RATES
SECTION 3.1. Letter of Credit Fee. The Account Party agrees to reimburse
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ING for all fees paid by ING in connection with the issuance of the Letter of
Credit, including any fronting fees required for the Letter of Credit.
SECTION 3.2. Post-Maturity Rates. After the date on which any
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Reimbursement Obligation is due and payable, or after any other monetary Account
Party Obligation hereunder shall have become due and payable, the Account Party
agrees to promptly pay, but only to the extent permitted by applicable law,
interest (after as well as before judgment) on such amounts at a fixed rate per
annum equal to 15%, payable on the first Business Day of each April, July,
October and January in arrears.
ARTICLE IV
CERTAIN OTHER PROVISIONS
SECTION 4.1. Increased Capital Costs. If any change in, or the
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introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by ING or ING Capital, and ING or ING
Capital determines (in its sole and absolute discretion) that the rate of return
on its capital as a consequence of the Letter of Credit is reduced to a level
below that which ING or ING Capital could have achieved but for the occurrence
of any such circumstance, then, in any such case upon notice from time to time
by ING to the Account Party, the Account Party agrees to immediately pay
directly to ING additional amounts sufficient to compensate ING or ING Capital
for such reduction in its rate of return. A statement of ING or ING Capital as
to any such additional amount or amounts (including calculations thereof in
reasonable detail) shall, in the absence of manifest error, be conclusive and
binding on the Account Party. In determining such amount, ING or ING Capital
may use any method of averaging and attribution that it, in its sole and
absolute discretion, shall deem applicable. The statement from ING or ING
Capital as to such additional amount(s) shall include such reasonably detailed
information as will enable the Account Party to determine the basis for ING or
ING Capital's request for such additional amount(s).
SECTION 4.2. Taxes.
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(a) All payments by the Account Party of any amounts payable
hereunder (including in respect of fees and Reimbursement Obligations)
shall be made free and clear of and without deduction for any present or
future income, excise, stamp or franchise taxes and other taxes, fees,
duties, withholdings or other charges of any nature whatsoever imposed by
any taxing authority, but excluding franchise taxes and taxes imposed on or
measured by ING's or ING Capital's net income or receipts (such non-
excluded items being called "Taxes"). In the event that any withholding or
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deduction from any payment to be made by the Account Party hereunder is
required in respect of any Taxes pursuant to any applicable law, rule or
regulation, the Account Party agrees that it will
(i) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(ii) promptly forward to ING an official receipt or other
documentation satisfactory to ING evidencing such payment to such
authority; and
(iii) pay to ING such additional amount or amounts as are
necessary to ensure that the net amount actually received by ING or
ING Capital will equal the full amount ING or ING Capital would have
received had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against ING or ING Capital
with respect to any payment received by ING or ING Capital hereunder, ING
or ING Capital may pay such Taxes and the Account Party agrees to promptly
pay directly to ING such additional amount or amounts (including any
penalties, interest or expenses) as are necessary to ensure that the net
amount received by ING or ING Capital after the payment of such Taxes
(including any Taxes on such additional amount) will equal the full amount
ING or ING Capital would have received had no such Taxes been asserted.
(b) If the Account Party fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to ING or ING Capital the
required receipts or other required documentary evidence, the Account Party
agrees that it shall indemnify ING or ING Capital for any incremental
Taxes, interest or penalties that may become payable by ING or ING Capital
as a result of any such failure. For purposes of this Section 4.2, a
distribution hereunder by ING or ING Capital to or for the Account of ING
or ING Capital shall be deemed a payment by the Account Party.
SECTION 4.3. Payments, Computations, etc.
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(a) All payments by the Account Party to ING pursuant to this
Agreement shall be made in lawful money of the United States without
setoff, deduction or counterclaim, not later than 12:00 noon (New York City
time) on the date due, in same day or immediately available funds, to such
account as ING shall specify from time to time by notice to the Account
Party. Funds received after that time shall be deemed to have been
received by ING on the next succeeding Business Day.
(b) All interest and fees shall be computed on the basis of the
actual number of days (including the first day but excluding the last day)
occurring during the period for which such interest or fee is payable over
a year comprised of 360 days. Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
be made on the next succeeding Business Day and such extension of time
shall be included in computing interest and fees, if any, in connection
with such payment.
ARTICLE V
CONDITIONS TO ISSUANCE
SECTION 5.1. Conditions Precedent. The obligation of ING to cause the
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issuance of the Letter of Credit on the Issuance Date is subject to the prior
or concurrent satisfaction of each of the conditions precedent set forth in this
Article.
SECTION 5.1.1. Execution of Counterparts. ING shall have received
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evidence that the Agreement has become effective pursuant to Section 8.7.
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SECTION 5.1.2. Resolutions, etc. ING shall have received a certificate,
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dated the Issuance Date, of the Secretary or Assistant Secretary of the Account
Party as to
(a) a copy of the resolutions of its Board of Directors then in full
force and effect authorizing the execution, delivery and performance of
this Agreement to be executed and delivered by it; and
(b) the incumbency and signatures of those of its officers authorized
to act with respect to this Agreement to be executed and delivered by it,
upon which certificate ING may conclusively rely until it shall have received a
further
certificate of the Secretary or Assistant Secretary of the Account Party
canceling or amending such prior certificate.
SECTION 5.1.3. ING Security Agreement. ING shall have received executed
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counterparts of the ING Security Agreement, dated as of the date hereof, duly
executed and delivered by an Authorized Officer of the Account Party.
SECTION 5.1.4. ING Warrants. The Company shall have duly issued and
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delivered to ING the ING Warrants.
SECTION 5.1.5. Payment of Fees, etc. ING shall have received all fees,
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costs and expenses due and payable pursuant to Section 8.3, if then invoiced.
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SECTION 5.1.6. Legal Opinion. ING shall have received the opinions of (i)
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Whitman Breed Abbott & Morgan LLP, counsel for the Account Party, (ii)
Jacobvitz, Thuma & Matthews, New Mexico counsel for Duke and (iii) Brown, Todd &
Heyburn PLLC, Kentucky counsel for HDI, in each case dated the Issuance Date and
addressed to ING, in form and substance reasonably satisfactory to ING.
SECTION 5.1.7. Satisfactory Legal Form. All documents executed or
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submitted pursuant hereto by or on behalf of the Account Party shall be
reasonably satisfactory in form and substance to ING and its counsel; ING and
its counsel shall have received all information, approvals, opinions, documents
or instruments as ING or its counsel may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce ING to obtain the issuance by the Issuer of the Letter
of Credit, the Account Party represents and warrants to ING as set forth in this
Article.
SECTION 6.1. Organization, Corporate Power. The Account Party (i) is a
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corporation or limited liability company duly organized, validly existing and in
good standing under the laws of its state of incorporation or organization, (ii)
has the requisite power and authority to own its property and assets and to
carry on its business as now conducted, (iii) is qualified to do business in
every jurisdiction where such qualification is required, except where the
failure to so qualify would not have a material adverse effect on the business,
assets, operations or properties of the Account Party, and (iv) the Account
Party has the corporate power and authority to execute, deliver and perform its
obligations under this Agreement and each other Reimbursement Document.
SECTION 6.2. Authorization, etc. The execution, delivery and performance
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by the Account Party of this Agreement and each other Reimbursement Document to
which it is a party has been duly authorized by all requisite corporate or
company action and, if required, shareholder or member action and will not
violate (i) any provision of law, statute, rule or regulation binding on the
Account Party or the Organic Documents of the Account Party, (ii)
any order of any court, or any rule, regulation or order of any other agency of
government binding upon the Account Party or (iii) any provisions of any
indenture, agreement or other instrument to which the Account Party is a party,
or by which the Account Party or any of its properties or assets are bound.
SECTION 6.3. Governmental Approvals. No filings or registration with or
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consent or approval of, or other action by, any Federal, state or other
governmental agency, authority or regulatory body is or will be required (other
than any which have been made and obtained) in connection with the execution,
delivery and performance by the Account Party of this Agreement.
SECTION 6.4. Binding Effect. This Agreement and each other Reimbursement
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Document to which it is a party, when executed and delivered by the Account
Party, will constitute a legal, valid and binding obligation of the Account
Party, enforceable in accordance with its terms (i) except to the extent limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and (ii) subject to general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
ARTICLE VII
COVENANTS
SECTION 7.1. Covenants. The Account Party agrees with ING that until the
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Letter of Credit has been fully drawn, terminated or expired and all Account
Party Obligations (including Reimbursement Obligations) have been paid in full,
the Account Party will perform the obligations set forth in this Article.
SECTION 7.1.1. Compliance with Laws, etc. The Account Party will comply
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in all material respects with all applicable laws, rules, regulations and
orders, such compliance to include the maintenance and preservation of its
corporate existence.
SECTION 7.1.2. Asset Dispositions, etc. The Account Party will not sell,
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transfer, lease, contribute or otherwise convey, or grant options, warrants or
other rights with respect to all or substantially all of its assets, except as
permitted by the terms of the ING Security Agreement.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1. Waivers, Amendments, etc. The provisions of this Agreement
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may from time to time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to by the Account Party and
ING. No failure or delay on the part of ING in exercising any power or right
under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power or
right preclude any other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on the Account Party in any case
shall entitle it to any notice or demand in similar or other circumstances. No
waiver or approval by ING under this Agreement shall, except as may be otherwise
stated in such waiver or approval, be applicable to subsequent transactions. No
waiver or approval hereunder shall require any similar or dissimilar waiver or
approval thereafter to be granted hereunder.
SECTION 8.2. Notices. All notices and other communications provided to
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any party hereto under this Agreement shall be in writing or by facsimile and
addressed, delivered or transmitted to such party at its address or facsimile
number set forth below its signature hereto or at such other address, or
facsimile number as may be designated by such party in a notice to the other
party. Any notice, if mailed and properly addressed with postage prepaid or if
properly addressed and sent by pre-paid courier service, shall be deemed given
when received; any notice, if transmitted by facsimile, shall be deemed given
when transmitted.
SECTION 8.3. Payment of Costs and Expenses. The Account Party agrees to
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pay on demand all expenses of ING (including the reasonable fees and out-of-
pocket expenses of counsel to ING) in connection with the negotiation,
preparation, execution and delivery of this Agreement, the Letter of Credit,
exhibits, opinions and other documents delivered in connection with this
Agreement, and any amendments, waivers, consents, supplements or other
modifications to this Agreement as may from time to time hereafter be required.
Account Party also agrees to reimburse ING upon demand for all reasonable out-
of-pocket expenses (including reasonable attorneys' fees and legal expenses)
incurred by ING in connection with (x) the negotiation of any restructuring or
"work-out", whether or not consummated, of any Account Party Obligations and (y)
the enforcement of any Account Party Obligations.
SECTION 8.4. Survival. The obligations of the Account Party under
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Sections 2.5, 4.1, 4.2 and 8.3 shall survive any termination of this Agreement,
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the payment in full of all Account Party Obligations and the termination or
expiration of the Letter of Credit. The representations and warranties made by
the Account Party in this Agreement shall survive the execution and delivery of
this Agreement.
SECTION 8.5. Severability. Any provision of this Agreement which is
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prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 8.6. Headings. The various headings of this Agreement are
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inserted for convenience only and shall not affect the meaning or interpretation
of this Agreement or any provisions hereof or thereof.
SECTION 8.7. Execution in Counterparts, Effectiveness, etc. This
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Agreement may be executed by the parties hereto in two or more counterparts,
each of which shall be deemed an original, but all of which shall constitute
together one and the same agreement. This
Agreement shall become effective when counterparts hereof executed on behalf of
the Account Party and ING (or notice thereof satisfactory to ING) shall have
been received by ING and notice thereof shall have been given by ING to the
Account Party.
SECTION 8.8. Governing Law; Entire Agreement. THIS AGREEMENT SHALL BE
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DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK. This Agreement constitutes the entire understanding among
the parties hereto with respect to the subject matter hereof and supersede any
prior agreements, written or oral, with respect thereto.
SECTION 8.9. Successors and Assigns. This Agreement shall be binding upon
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and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that the Account Party may not assign
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or transfer the Account Party Obligations or its rights hereunder without the
prior written consent of ING.
SECTION 8.10. Jurisdiction. For purpose of any action or proceeding
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involving this Agreement, the Account Party hereby expressly submits to the
jurisdiction of all Federal and State Courts located in the City of New York,
State of New York and consents that it may be served with any process or paper
by registered mail or by personal service within or without the State of New
York, provided a reasonable time for appearance is allowed.
SECTION 8.11. Waiver of Jury Trial. ING AND THE ACCOUNT PARTY HEREBY
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KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS EACH MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER AGREEMENT CONTEMPLATED
HEREBY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF ING OR THE ACCOUNT PARTY. THE ACCOUNT PARTY ACKNOWLEDGES
AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ING ENTERING INTO
THIS AGREEMENT AND ISSUING THE LETTER OF CREDIT.
[Remainder of Page Intentionally Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
ING EQUITY PARTNERS, L.P. I
By: LEXINGTON PARTNERS, L.P.
its General Partner
By: LEXINGTON PARTNERS, INC.
its General Partner
By: /s/ Benjamin P. Giess
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Name: Benjamin P. Giess
Title: Authorized Signatory
Address: 520 Madison Avenue
New York, New York 10022
Facsimile: 212-750-2970
Attention: Benjamin P. Giess
MATTHEWS STUDIO EQUIPMENT GROUP
By: /s/ Carlos D. DeMattos
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Name: Carlos D. DeMattos
Title: Chairman of the Board & Chief
Executive Officer
Address: 3111 North Kenwood Street
Burbank, California 91505
Facsimile: 818-525-5216
Attention: Carlos D. DeMattos
MATTHEWS STUDIO SALES, INC.
By: /s/ Carlos D. DeMattos
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Name: Carlos D. DeMattos
Title: President
HOLLYWOOD RENTAL COMPANY, LLC (as
successor by merger to Hollywood Rental
Co., Inc.)
By: /s/ Carlos D. DeMattos
--------------------------------------
Name: Carlos D. DeMattos
Title: Chief Financial Officer
MATTHEWS STUDIO ELECTRONICS, INC.
By: /s/ Carlos D. DeMattos
--------------------------------------
Name: Carlos D. DeMattos
Title: Chief Executive Officer
MATTHEWS ACCEPTANCE CORPORATION
By: /s/ Carlos D. DeMattos
--------------------------------------
Name: Carlos D. DeMattos
Title: President
DUKE CITY VIDEO, INC.
By: /s/ Carlos D. DeMattos
------------------------------
Name: Carlos D. DeMattos
Title: President
HDI HOLDINGS, INC.
By: /s/ Carlos D. DeMattos
--------------------------------------
Name: Carlos D. DeMattos
Title: Chairman of the Board
FOUR STAR LIGHTING, INC.
By: /s/ Carlos D. DeMattos
--------------------------------------
Name: Carlos D. DeMattos
Title: Chief Executive Officer
MATTHEWS STUDIO GROUP CENTERS, INC.
(f/k/a Matthews Medical Equipment, Inc.)
By: /s/ Carlos D. DeMattos
--------------------------------------
Name: Carlos D. DeMattos
Title: President
KEYLITE HOLDINGS, INC.
By: /s/ Carlos D. DeMattos
--------------------------------------
Name: Carlos D. DeMattos
Title: Chief Financial Officer
REEL WHEELS, INC.
By: /s/ Carlos D. DeMattos
--------------------------------------
Name: Carlos D. DeMattos
Title: Chief Financial Officer
KEYLITE PRODUCTION SERVICES, INC.
By: /s/ Carlos D. DeMattos
--------------------------------------
Name: Carlos D. DeMattos
Title: Chief Financial Officer
DUKE CITY HOLDINGS, INC.
By: /s/ Carlos D. DeMattos
--------------------------------------
Name: Carlos D. DeMattos
Title: Chief Executive Officer
FOUR STAR HOLDING, INC.
By: /s/ Carlos D. DeMattos
--------------------------------------
Name: Carlos D. DeMattos
Title: President