Exhibit 10.15
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Execution Copy
ING SECURITY AGREEMENT
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THIS SECURITY AGREEMENT (this "Security Agreement"), dated as of January
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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") (each of the Parent,
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MSSI, HRCL, MSE, MAC, Duke, HDI, Four Star, MSGC, KHI, RWI, KPS, Duke Holdings,
and Four Star Holding a "Grantor" and collectively, "Grantors"), in favor of ING
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EQUITY PARTNERS, L.P. I, a Delaware limited partnership ("Beneficiary").
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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 Grantors and THE CHASE MANHATTAN BANK, a New York
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banking corporation, acting as agent for the Lenders (the "Agent"), Grantors may
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be obligated to pay from time to time certain Obligations to the Agent;
WHEREAS, at the request of Grantors, Beneficiary will cause ING (U.S.)
Capital, LLC (the "Issuer") to issue an irrevocable standby Letter of Credit
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(such Letter of Credit, as amended from time to time, and any substitute or
replacement therefor issued by the Issuer, being referred to herein as the
"Letter of Credit") in the maximum amount of $3,000,000 in favor of the Agent to
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support payment of the Obligations, subject to certain terms and conditions as
set forth in the Letter of Credit;
WHEREAS, Beneficiary is willing to cause the issuance of the Letter of
Credit on the terms and conditions of the Reimbursement Agreement, dated as of
the date hereof (as amended from time to time, the "Reimbursement Agreement"),
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between Grantors and the Beneficiary;
WHEREAS, as a condition precedent to Beneficiary's causing the issuance of
the Letter of Credit and Beneficiary's execution of the Reimbursement Agreement,
each Grantor is required to execute and deliver this Security Agreement to
secure the due and prompt repayment of any and all obligations of Grantors to
Beneficiary under the Reimbursement Agreement;
WHEREAS, each Grantor has duly authorized the execution, delivery and
performance of this Security Agreement;
NOW THEREFORE, in consideration of the premises herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in order to induce Beneficiary to cause the issuance of
the Letter of Credit, Grantors agree, for the benefit of Beneficiary, as
follows:
ARTICLE I
DEFINITIONS
1.1. Certain Terms. Unless the context shall otherwise require,
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capitalized terms used and not defined herein shall have the meanings set forth
in the Credit Agreement. The following terms when used herein shall have the
following meanings:
"Copyright" shall have the meaning given to it in the Amended and Restated
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Security Agreement and Mortgage - Patents, Trademarks and Copyrights, dated as
of April 1, 1998, among the Grantors and the Agent, as amended from time to
time.
"Copyright License" shall mean any agreement, whether written or oral,
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providing for the grant by or to a Grantor of any right in or to any Copyright.
"Equipment" shall have the meaning given to it in the Amended and Restated
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Security Agreement, dated as of April 1, 1998, among the Grantors and the Agent,
as amended from time to time.
"Inventory" shall have the meaning given to it in the Amended and Restated
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Security Agreement, dated as of April 1, 1998, among the Grantors and the Agent,
as amended from time to time.
"Patent" shall have the meaning given to it in the Amended and Restated
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Security Agreement and Mortgage - Patents, Trademarks and Copyrights, dated as
of April 1, 1998, among the Grantors and the Agent, as amended from time to
time.
"Patent License" shall mean any agreement, whether written or oral,
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providing for the grant by or to a Grantor of any right to manufacture, use or
sell any invention covered by a Patent, and all rights of a Grantor under such
agreement.
"Reimbursement Documents" shall mean this Agreement, the Reimbursement
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Agreement and any other document or instrument executed and delivered in
connection herewith or therewith.
"Trademark" shall have the meaning given to it in the Amended and Restated
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Security Agreement and Mortgage - Patents, Trademarks and Copyrights dated as of
April 1, 1998, among the Grantors and the Agent, as amended from time to time.
"Trademark License" shall mean any agreement, whether written or oral,
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providing for the grant by or to a Grantor of any right to use any Trademark.
ARTICLE II
SECURITY INTEREST
2.1. Grant of Security Interest. Each Grantor hereby assigns to
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Beneficiary, and grants to Beneficiary, its successors and its assigns, a
continuing Security Interest (the "Security Interest") in all currently existing
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and hereafter acquired or arising Collateral in order to secure prompt repayment
of any and all obligations of Grantors to Beneficiary arising under the
Reimbursement Agreement in connection with the issuance by the Issuer of the
Letter of Credit (the "Reimbursement Obligations"). Beneficiary's Security
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Interest in the Collateral shall attach to all Collateral without further act on
the part of Beneficiary or any Grantor.
2.2. Limitation on Security Interest.
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(a) Subordination and Other Liens. The Beneficiary agrees that until the
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Grantors have indefeasibly paid in cash in full all of the Obligations, the
Security Interest granted hereunder (the "Subordinated Liens") shall be subject,
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junior and subordinate to all security interests and liens granted or purported
to be granted by any Grantor in favor of the Agent (all such security interests
and liens, and any other security interests and liens granted or purported to be
granted, now or hereafter by a Grantor in favor of the Agent are collectively
referred to as the "Senior Liens"), irrespective of (i) the order of perfection
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of any Senior Liens and any Subordinated Liens, (ii) the failure of Agent to
perfect, or to maintain the perfection of, any security interests or liens
compromising any of the Senior Liens or (iii) the rules for determining the
priority under the Uniform Commercial Code or other relevant law.
(b) Subordination upon Payments and Distributions. Other than with
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respect to Permitted Securities, upon any payment or distribution of cash,
securities or other property of any of the Grantors of any kind or character to
creditors upon any dissolution, winding up, total or partial liquidation,
reorganization or marshaling of assets of any of the Grantors, whether voluntary
or involuntary, or in bankruptcy, insolvency, receivership proceedings or upon
assignment for the benefit of creditors: (i) all Obligations shall first be paid
in full in cash before the Beneficiary (or its successors or assigns) may
receive or retain any payment or distribution of assets (including assets as to
which any such person has a lien or security interest) and (ii) any payment or
distribution of cash, securities or other property to which the
Beneficiary (or its successors or assigns) would be entitled, except for the
provisions of this section, shall be paid directly to the Agent for its benefit
and the benefit of the Lenders to the extent necessary to pay all Obligations in
full in cash, after giving effect to any concurrent payment or distribution to
the Lenders, before any such payment or distribution is made to the Beneficiary
(or their successors or assigns). For the purposes of this Section 2.2, the
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term "Permitted Securities" means any securities of any of the Grantors provided
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for by a plan of reorganization, the payment of which is subordinated to the
Obligations at least to the extent provided in this Agreement, which securities
shall be distributed upon any insolvency, bankruptcy, liquidation, dissolution
or similar proceeding under any applicable bankruptcy or insolvency law and
shall be approved by a court of competent jurisdiction pursuant to a decree or
order that states that the effect of such securities and the distribution
thereof is to preserve the subordination of the Security Interest granted herein
to the Senior Liens.
(c) Release of Subordinated Liens; Disposition of Collateral. If the
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Agent consents to any request by a Grantor to sell or otherwise dispose of any
Collateral, the Beneficiary agrees to release any Subordinated Liens encumbering
any such Collateral sold or otherwise disposed of, and to execute and deliver
promptly such lien release documents as Agent may reasonably request in
connection therewith. If the Agent agrees with a Grantor to take possession of
or otherwise acquire any Collateral in complete or partial satisfaction of any
Obligations, the Beneficiary agrees to release any Subordinated Liens
encumbering any such Collateral acquired by Agent, and to execute and deliver
promptly such lien release documents as Agent may reasonably request in
connection therewith. The Beneficiary hereby waives any right it may have by
contract or by law to require Agent to give notice of any disposition of
Collateral contemplated by this Section 2.2(c) or any such right the Beneficiary
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may have to object to or otherwise contest any such disposition, including,
without limitation, any requirement that Agent foreclose upon such Collateral
under applicable law. If Agent elects to foreclose upon any Collateral, the
Beneficiary agrees not to contest or otherwise challenge any such foreclosure
and further agree not to assert any claim or defense that any such foreclosure
was not commercially reasonable or otherwise failed to comply with applicable
law.
(d) Insurance for Collateral. Prior to indefeasible payment in full in
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cash of the Obligations and termination of the Credit Agreement in accordance
with its terms, as between the Beneficiary and the Agent, Agent shall have the
sole right, in the exercise of its reasonable credit judgment, to adjust and
compromise any claims under any insurance maintained by any of the Grantors
insuring any Collateral, to collect and receive the proceeds thereof, and to
execute and deliver all proofs of loss, receipts, vouchers and releases in
connection with such claims. Upon receipt, the Beneficiary will deliver to
Agent or any such insurer such releases, consents or other instruments as Agent
may reasonably request to implement the provisions of this Section 2.2(d). Any
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insurer shall be entitled to rely on a copy of this Agreement as its irrevocable
authorization to deal solely with Agent as hereinabove described,
notwithstanding the designation of Beneficiary as loss payee, mortgagee,
additional insured or the like of any such policy of insurance.
2.3. Negotiable Collateral. In the event that any Collateral, including
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proceeds, is evidenced by or consists of negotiable instruments ("Negotiable
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Collateral"), the applicable Grantor or Grantors shall, immediately upon the
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request of Beneficiary, endorse and assign
such Negotiable Collateral to Beneficiary and deliver physical possession of
such Negotiable Collateral to Beneficiary, subject to the respective rights of
the Lenders and Beneficiary.
2.4. Collection of Receivables. Subject to Section 2.10, (a) to expedite
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collection of Receivables of Grantors, Grantors shall, promptly upon the request
of Beneficiary (and subject to the rights of the Lenders under the Credit
Agreement and the other Loan Documents), collect any cash receipts, checks, and
other items of payment that it receives on account of the Receivables for
deposit into lockboxes or blocked accounts (the "Blocked Accounts") designated
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by Beneficiary. All remittances received by Grantors shall be held in trust for
Beneficiary and Grantors will immediately deposit such collections in the
Blocked Accounts or, if requested by Beneficiary, deliver to Beneficiary said
collections in the same form as received (but with any endorsements of Grantors
necessary for deposit or collection).
(b) Beneficiary shall have the right to take any and all of the actions set
forth in paragraph (c) of this Section 2.4, at any time, without notice to
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Grantors, if (1) there then exists an Event of Default; (2) in Beneficiary's
good faith judgment, based upon credible evidence, Beneficiary believes that:
(A) the Blocked Accounts are being circumvented or other circumstances exist
which threaten Beneficiary's ability to maintain its dominion over cash, (B) the
proceeds of Beneficiary's Collateral are being diverted from it, or (C) the
Grantors' properties or assets are otherwise being misappropriated; or (3) in
Beneficiary's reasonable judgment, based upon credible evidence, there has
occurred a material impairment of the prospect of repayment of Grantors'
obligations or a material impairment of the validity, priority, or
enforceability of Beneficiary's Security Interest in the Collateral.
Beneficiary shall additionally have all rights of stoppage in transit,
replevin, reclamation and other rights of an unpaid seller and/or lienor under
the Uniform Commercial Code. All amounts received by Beneficiary in payment of
Receivables assigned to it, including without limitation, all amounts wired to
Beneficiary's account from the Blocked Accounts in accordance with Beneficiary's
instructions, will be credited to the account of Grantors, for purposes of
interest calculations, on the date of receipt of good funds by Beneficiary.
(c) At the times and upon the occurrence of the events described in
paragraph (b) of this Section 2.4, Beneficiary or Beneficiary's designee may:
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(i) notify customers or account debtors of any Grantor that the accounts or
Receivables have been assigned to Beneficiary or that Beneficiary has a security
interest therein; (ii) collect Receivables directly in its own name and charge
the collection costs and expenses, including reasonable attorneys' fees, to
Grantors, and (iii) receive, open and dispose of all mail addressed to any
Grantor.
2.5. Delivery of Additional Documentation Required. Subject to Section
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2.10, each Grantor shall execute and deliver to Beneficiary, prior to or
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concurrently with such Grantor's execution and delivery of this Security
Agreement and at any time thereafter at the request of Beneficiary, all
financing statements, continuation financing statements, fixture filings,
security agreements, chattel mortgages, pledges, assignments (of all Receivables
and all related documents), endorsements of certificates of title, applications
for title, affidavits, reports, notices, schedules of accounts, letters of
authority, and all other documents that Beneficiary may reasonably request, in
form satisfactory to Beneficiary, to perfect and
continue perfected the Security Interest in the Collateral and in order to fully
consummate all of the transactions contemplated under the documents evidencing
the Reimbursement Obligations.
2.6. Power of Attorney. Subject to Section 2.10, each Grantor hereby
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irrevocably makes, constitutes, and appoints Beneficiary (and any of
Beneficiary's officers, employees, or agents designated by Beneficiary) as
Grantor's true and lawful attorney, with power to:
(a) sign the name of such Grantor on any of the documents described in
Section 2.5 or on any other similar documents to be executed, recorded, or
filed in order to perfect or continue perfected the Security Interest;
(b) sign Such Grantor's name on any invoice or bill of lading relating
to any accounts, drafts against account debtors, schedules and assignments
of Receivables, verifications of Receivables, and notices to account
debtors;
(c) send requests for verification of Receivables;
(d) endorse such Grantor's name on any checks, notices, acceptances,
money orders, drafts, or other item of payment or security that may come
into Beneficiary's possession;
(e) at any time that (1) there then exists an Event of Default, (2) in
Beneficiary's good faith judgment, based upon credible evidence,
Beneficiary believes that (A) the Blocked Accounts are being circumvented
or other circumstances exist which threaten Beneficiary's ability to
maintain its dominion over cash, (B) the proceeds of Beneficiary's
Collateral are being diverted from it, or (C) such Grantor's properties or
assets are otherwise being misappropriated, or (3) in Beneficiary's
reasonable judgment, based upon credible evidence, there has occurred a
material impairment of the prospect of repayment of such Grantor's
obligations or material impairment of the validity, priority, or
enforceability of Beneficiary's Security Interest in the Collateral, notify
the post office authorities to change the address for delivery of such
Grantor's mail to an address designated by Beneficiary, receive and open
all mail addressed to such Grantor, and retain all mail relating to the
Collateral and forward all other mail to such Grantor;
(f) at any time that there exists an Event of Default or Beneficiary
deems itself insecure, make, settle, and adjust all claims under such
Grantor's policies of insurance or in respect of condemnation proceedings,
and make all determinations and decisions with respect to such policies of
insurance or condemnation proceedings; and
(g) at any time that there exists an Event of Default or Beneficiary
deems itself insecure, settle and adjust disputes and claims respecting the
Receivables directly with the applicable Debtors, for amounts and upon
terms which Beneficiary determines to be reasonable, and Beneficiary may
cause to be executed and delivered any documents and releases which
Beneficiary determines to be necessary.
With respect to the matters described in clauses (f) and (g) of this
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Section 2.6, Beneficiary shall not act pursuant to the foregoing power of
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attorney until Beneficiary has provided such Grantor with notice of
Beneficiary's intent so to act not less than ten (10) Business Days prior to any
such proposed action and, in the event such Grantor has taken the necessary
steps during such period to settle or adjust such disputes or claims in a manner
satisfactory to Beneficiary, or is otherwise proceeding toward a resolution of
such matters in a manner satisfactory to Beneficiary, Beneficiary shall allow
such Grantor to complete such settlement so long as Grantor continues to
diligently prosecute the same toward a conclusion. The appointment of
Beneficiary as each Grantor's attorney, and each and every one of Beneficiary's
rights and powers, being coupled with an interest, is irrevocable until all
Reimbursement Obligations have been fully repaid and performed and Beneficiary's
obligations hereunder are terminated.
2.7. Right to Inspect. Beneficiary (through any of its officers,
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employees, or agents) shall have the right, from time to time hereafter, at
reasonable times and upon reasonable notice, to inspect Grantor's books and to
check, test, and appraise the Collateral in order to verify each Grantor's
financial condition or the amount, quality, value, condition of, or any other
matter relating to, the Collateral.
2.8. Releases Upon Termination. Upon the termination of this Security
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Agreement and the satisfaction of and payment in full of all Reimbursement
Obligations, Beneficiary shall deliver to each Grantor upon its request therefor
and at such Grantor's expense, releases, reconveyances and satisfactions of all
financing statements, mortgages, notices of assignment and other registrations
of security, and each Grantor shall also deliver to Beneficiary an unqualified
release of all of Beneficiary's obligations under all documents evidencing
Reimbursement Obligations and an acknowledgment that the same have been
terminated.
2.9. Recourse to Security. Recourse to security shall not be required for
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any of Grantors' Reimbursement Obligations hereunder nor shall Beneficiary be
required to first marshall, dispose of, or realize upon any security or
Collateral.
2.10. Standstill Provisions. (a) So long as the Obligations have not
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been paid in full, in cash, and any Loan Document remains in effect, whether or
not any event or proceeding described in subparagraphs (f) or (g) of Article
VIII of the Credit Agreement has been commenced by or against any Grantor:
(i) no Beneficiary will (A) exercise or seek to exercise any rights
or exercise any remedies with respect to any Collateral or (B) institute
any action or proceeding with respect to such rights or remedies, including
without limitation, any action of foreclosure or (C) contest, protest or
object to any foreclosure proceeding or action brought by the Agent or any
Lender or any other exercise by the Agent or any Lender of any rights and
remedies under any Loan Documents; and
(ii) the Agent and the Lenders shall have the exclusive right to
enforce rights and exercise remedies with respect to the Collateral,
including, without limitation, the right to notify account debtors.
(b) In exercising rights and remedies with respect to the Collateral, the
Agent and the Lenders may enforce the provisions of the Loan Documents and
exercise remedies thereunder, all in such order and in such manner as they may
determine in the exercise of their sole business judgment. Such exercise and
enforcement shall include, without limitation, the rights to sell or otherwise
dispose of Collateral, to incur expenses in connection with such sale or
disposition and to exercise all the rights and remedies of a secured lender
under the Uniform Commercial Code of any applicable jurisdiction.
(c) When all Obligations have been paid in full in cash and the Security
Documents no longer are in effect, the Beneficiary shall have the right to
enforce the provisions of this Security Agreement and exercise remedies
hereunder.
ARTICLE III
CONDITIONS PRECEDENT
3.1. Approval of Documents and Security Interest. Beneficiary shall have
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received evidence that all approvals and/or consents of, or other action by, any
shareholder, government, agency, or other Person whose approval or consent is
necessary or required to enable (a) the Grantor to: (1) enter into and perform
its obligations under the documents evidencing Reimbursement Obligations, and
(2) enter into Reimbursement Obligations and grant to Beneficiary the Security
Interest; and (b) all other applicable parties to execute and deliver all
documents evidencing Reimbursement Obligations, have been obtained.
3.2. Perfection of Security Interest. All filings of Uniform Commercial
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Code financing statements and all other filings and actions necessary to perfect
and maintain the Security Interest as valid and perfected Liens in the Property
covered thereby, subject only to Senior Liens and those Liens existing on the
date hereof which are permitted under the Credit Agreement (collectively, the
"Permitted Liens"), shall be filed within 10 days of the date of execution of
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this Security Agreement or taken and confirmation thereof shall have been
received by Beneficiary within 10 days of such filing. Beneficiary shall have
received the original of any certificates of title or other instruments
necessary to be delivered into Beneficiary's possession in order to perfect
Beneficiary's Security Interest therein.
ARTICLE IV
COVENANTS; REPRESENTATIONS
4.1. Consents and Approvals. Except for such filings as are required to
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perfect Beneficiary's Security Interest, the consent of the Agent and the
Lenders, the approval of each Grantor's Board of Directors and Beneficiary and
any consents of parties to Contracts and as set forth on Schedule 4.1 hereto, no
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approvals and/or consents of, or other action by, any shareholder, government
instrumentality, agency or regulatory authority, or other Person are necessary
or required to enable each Grantor to (i) enter into and perform its obligations
under the documents evidencing the Reimbursement Obligations, and (ii) enter
into Reimbursement Obligations and grant to Beneficiary the Security Interest.
4.2. Covenants. Each Grantor covenants and agrees with the Beneficiary
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that, from and after the date of this Security Agreement until the Reimbursement
Obligations are paid in full, and subject to Section 2.10:
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(a) Maintenance of Perfected Security Interests; Further
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Documentation; Pledge of Instruments and Chattel Paper. Subject to
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Permitted Liens, the Grantor shall maintain the Security Interest created
by this Security Agreement hereof and shall defend such Security Interest
against the claims and demands of all Persons whomsoever. At any time and
from time to time, upon the written request of the Beneficiary, and at the
sole expense of the Grantor, the Grantor will promptly and duly execute and
deliver such further instruments and documents and take such further action
as the Beneficiary may reasonably request for the purpose of obtaining or
preserving the full benefits of this Security Agreement and of the rights
and powers herein granted, including, without limitation, the filing of any
financing or continuation statements made under the Uniform Commercial Code
in effect in any jurisdiction with respect to the Liens created hereby.
The Grantor also hereby authorizes the Beneficiary to file any such
financing or continuation statement without the signature of such Grantor
to the extent permitted by applicable law. A carbon, photographic or other
reproduction of this Security Agreement shall be sufficient as a financing
statement for filing in any jurisdiction. Subject to the prior rights of
the Lenders and the Agent and with their consent, if any amount payable
under or in connection with any of the Collateral shall be or become
evidenced by any Instrument or Chattel Paper, such Instrument or Chattel
Paper shall be immediately delivered to the Beneficiary, duly endorsed in a
manner satisfactory to the Beneficiary, to be held as Collateral pursuant
to this Security Agreement.
(b) Indemnification. The Grantor agrees to pay, and to save the
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Beneficiary, harmless from, any and all liabilities, costs and expenses
(including, without limitation, legal fees and expenses) (i) with respect
to, or resulting from, any delay in paying, any and all excise, sales or
other taxes which may be payable or determined to be payable with respect
to any of the Collateral, (ii) with respect to, or resulting from, any
delay in complying with any requirement of law applicable to any of the
Collateral or (iii) in connection with any of the transactions contemplated
by this Security Agreement. In any suit, proceeding or action brought by
the Beneficiary in respect of any Receivable or Reimbursement Document for
any sum owing thereunder, or to enforce any provisions of any Receivable or
Reimbursement Document, the Grantor will save, indemnify and keep the
Beneficiary harmless from and against all expense, loss or damage suffered
by reason of any defense, setoff, counterclaim, recoupment or reduction or
liability whatsoever of the account debtor or obligor thereunder, arising
out of a breach by the Grantor of any obligation thereunder or arising out
of any other agreement, indebtedness or liability at any time owing to or
in favor of such account debtor or obligor or its successors from the
Grantor, except where the same is the direct result of the Beneficiary's
gross negligence or willful misconduct.
(c) Maintenance of Records. The Grantor will keep and maintain at its
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own cost and expense satisfactory and complete records of the Collateral,
including, without limitation, a record of all payments received and all
credits granted with respect to the Receivables. The Grantor will enter a
field into its financial records software or otherwise mark its books and
records pertaining to the Collateral to evidence this Security Agreement
and the Security Interest granted hereby. Subject to Section 2.10, if the
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Grantor is then in default under the Reimbursement Agreement the Grantor
shall turn over any books and records pertaining to the Collateral to the
Beneficiary or to its representatives during normal business hours at the
request of the Beneficiary.
(d) Right of Inspection. Upon reasonable notice (which may be
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telephonic), Beneficiary shall at all times have full and free access
during normal business hours to all the books, correspondence and records
of the Grantor and the Beneficiary or its representatives may examine the
same, take extracts therefrom and make photocopies thereof, at
Beneficiary's cost and expense, and the Grantor agrees to render to the
Beneficiary, at such Grantor's cost and expense, such clerical and other
assistance as may be reasonably requested with regard thereto. The
Beneficiary and their respective representatives shall at all times also
have the right to enter into and upon any premises where any of the
Inventory or Equipment is located for the purpose of inspecting the same,
observing its use or otherwise protecting its interests therein.
(e) Compliance with Laws, etc. The Grantor will comply in all
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material respects with all requirements of law applicable to the Collateral
or any part thereof or to the operation of the Grantor's business;
provided, however, that the Grantor may contest any requirement of law in
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any reasonable manner which shall not, in the reasonable opinion of the
Beneficiary, adversely affect the Beneficiary's rights or the priority of
its Liens on the Collateral.
(f) Compliance with Terms of Reimbursement Documents. The Grantor
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will perform and comply in all material respects with all its obligations
under the Reimbursement Documents and all its other obligations relating to
the Collateral.
(g) Payment of Obligations. The Grantor will pay promptly when due
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all taxes, assessments and governmental charges or levies imposed upon the
Collateral or in respect of its income or profits therefrom, as well as all
claims of any kind (including, without limitation, claims for labor,
materials and supplies) against or with respect to the Collateral, except
that no such charge need be paid if (i) the validity thereof is being
contested in good faith by appropriate proceedings, (ii) such proceedings
do not involve any material danger of the sale, forfeiture or loss of any
of the Collateral or any interest therein and (iii) such charge is
adequately reserved against on the Grantor's books in accordance with GAAP.
(h) Limitation on Liens on Collateral. The Grantor will not create,
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incur or permit to exist, and the Grantor shall defend the Collateral
against, and will take such other action as is necessary to remove, any
Lien or claim on or to the Collateral, other than the Liens created hereby
and Permitted Liens, and will defend the right, title and
interest of the Beneficiary in and to any of the Collateral against the
claims and demands of all Persons whomsoever, other than Permitted Liens.
(i) Limitations on Dispositions of Collateral. The Grantor will not
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sell, transfer, lease or otherwise dispose of any of the Collateral, or
attempt, offer or contract to do so except for (x) sales of Inventory in
the ordinary course of its business, (y) so long as no Event of Default has
occurred and is continuing, the disposition in the ordinary course of
business of property not material to the conduct of its business, or (z)
sales, transfers and other dispositions of Collateral permitted or
consented to pursuant to the Credit Agreement and the other Loan Documents.
(j) Limitations on Modifications of Reimbursement Documents and
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Agreements Giving Rise to Receivables; Exercise of Rights; Notices. Except
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to the extent permitted or consented to pursuant to the Loan Documents, the
Grantor will not (i) amend, modify, terminate or waive any provision of any
Reimbursement Document or any agreement giving rise to a Receivable in any
manner which could reasonably be expected to materially adversely affect
the value of such Reimbursement Document or such Receivable as Collateral,
(ii) other than in the ordinary course of business as generally conducted
by the Grantor over a period of time, fail to exercise promptly and
diligently each and every material right which it may have under each
Reimbursement Document and each agreement giving rise to a Receivable
(other than any right of termination) or (iii) fail to deliver to the
Beneficiary a copy of each material demand, notice or document received by
it relating in any way to any Reimbursement Document or any agreement
giving rise to a Receivable that questions the validity or enforceability
of such Reimbursement Document or Receivables constituting more than 5 % of
the aggregate amount of the Receivables.
(k) Limitations on Discounts, Compromises, Extensions of Receivables.
----------------------------------------------------------------
Except to the extent permitted or consented to do otherwise pursuant to the
Loan Documents, other than in the ordinary course of business consistent
with its past practice, the Grantor will not (i) grant any extension of the
time of payment of any Receivable, (ii) compromise, compound or settle any
Receivable for less than the full amount thereof, (iii) release, wholly or
partially, any Person liable for the payment of any Receivable, or (iv)
allow any credit or discount whatsoever on any Receivable.
(l) Maintenance of Equipment. Except to the extent permitted to do
------------------------
otherwise pursuant to the Loan Documents, the Grantor will maintain each
item of Equipment in good operating condition, ordinary wear and tear and
immaterial impairments of value and damage by the elements excepted, and
will provide all maintenance, service and repairs necessary for such
purpose, except that the Grantor's obligations pursuant to this Section
-------
4(l) shall not extend to obsolete Equipment.
----
(m) Maintenance of Insurance. Except to the extent permitted to do
------------------------
otherwise pursuant to the Loan Documents, the Grantor will maintain, with
financially sound and reputable companies, insurance policies as required
under the Credit Agreement. All such insurance shall (i) provide that no
cancellation, material reduction in amount or material change in coverage
thereof shall be effective until at
least 30 days after receipt by the Beneficiary of written notice thereof,
(ii) name the Beneficiary as insured party and loss payee, (iii) include a
breach of warranty clause and (iv) be reasonably satisfactory in all other
respects to the Beneficiary. The Grantor shall deliver to the Beneficiary
during the month of April in each calendar year, and from time to time as
the Beneficiary may reasonably request, certificates of insurance or other
evidence reasonably satisfactory to Beneficiary of compliance with the
foregoing.
(n) Further Identification of Collateral. The Grantor will furnish to
------------------------------------
the Agent from time to time statements and schedules further identifying
and describing the Collateral and such other reports in connection with the
Collateral as the Beneficiary may reasonably request, all in reasonable
detail.
(o) Notices. The Grantor will advise the Beneficiary promptly, in
-------
reasonable detail, at the address set forth on the signature page hereto,
(i) of any Lien (other than Liens created hereby or Permitted Liens) on, or
claim asserted against, any of the Collateral and (ii) of the occurrence of
any other event which could reasonably be expected to have a material
adverse effect on the aggregate value of the Collateral or on the Liens
created hereunder.
(p) Changes in Locations. The Grantor will not (i) change the
--------------------
location of its executive offices, (ii) maintain books and records
(including computer printouts and programs) concerning the Receivables or
permit any of the Inventory or Equipment to be kept at a location other
than those at which the same are presently maintained or kept (except when
such Inventory or Equipment are being used in the ordinary course of the
Grantor's business) or (iii) change its name, identity or corporate
structure to such an extent that any financing statement filed by the
Beneficiary in connection with this Security Agreement would become
seriously misleading, unless it shall have given the Beneficiary at least
30 days prior written notice thereof.
(q) Patents, Trademarks and Copyrights. Except to the extent
----------------------------------
permitted to do otherwise pursuant to the Loan Documents,
(i) The Grantor (either itself or through licensees) will (A)
continue to use each Trademark on each and every trademark class of
goods applicable to its current line as reflected in its current
catalogs, brochures and price lists in order to maintain such
Trademarks in full force free from any claim of abandonment for non-
use, (B) maintain as in the past the quality of products and services
offered under such Trademark, (C) employ such Trademark with the
appropriate notice of registration, (D) not adopt or use any mark
which is confusingly similar or a colorable imitation of such
Trademark unless the Beneficiary, shall obtain a perfected security
interest in such mark pursuant to this Security Agreement, and (E) not
(and not permit any licensee or sublicensee thereof to) do any act or
knowingly omit to do any act whereby any Trademark may become
invalidated;
(ii) The Grantor will not do any act, or omit to do any act,
whereby any material Patent may become abandoned or dedicated;
(iii) The Grantor (either itself or through licensees) will, for
each work covered by a material Copyright, continue to publish,
reproduce, display, adopt and distribute the work with appropriate
copyright notice as necessary and sufficient to establish and preserve
the Grantor's material rights under all applicable copyright laws;
(iv) The Grantor will notify the Beneficiary immediately if it
knows, or has reason to know, that any material Patent, Trademark or
Copyright or any application or registration relating to any thereof
may become abandoned, lost or dedicated, or of any adverse
determination or development (including, without limitation, the
institution of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office, the
United States Copyright Office or any court or tribunal or similar
office in any country) regarding the Grantor's ownership of any
material Patent, Trademark or Copyright or its right to register the
same or to keep and maintain the same;
(v) The Grantor, either by itself or through any agent,
employee, licensee or designee, shall not file (A) any application for
the registration of a Patent, Trademark or Copyright, or (B) any
assignment of a patent, trademark or copyright which it may acquire
from a third party, with the United States Patent and Trademark
Office, the United States Copyright Office or any similar office or
agency in any other country or any political subdivision thereof, as
the case may be, unless the Grantor reports such filing to the
Beneficiary on or prior to the date of thereof;
(vi) The Grantor shall from time to time execute and deliver any
and all agreements, instruments, documents, and papers as the
Beneficiary may request to evidence the Beneficiary's security
interest in any Patent, Trademark or Copyright and the goodwill and
general intangibles of the Grantor relating thereto or represented
thereby, and, subject to the rights of the Lenders and the Agent, the
Grantor hereby constitutes the Beneficiary its attorney-in-fact to
execute and file all such writings for the foregoing purposes, all
acts of such attorney being hereby ratified and confirmed; such power
being coupled with an interest is irrevocable until the Reimbursement
Obligations are paid in full;
(vii) The Grantor will take all reasonable and necessary steps,
including, without limitation, in any proceeding before the United
States Patent and Trademark Office or the United States Copyright
Office, or any similar office or agency in any other country or any
political subdivision thereof, to maintain and pursue each application
(and to obtain the relevant registration) and to maintain each
registration of the Patents, Trademarks and Copyrights, including,
without limitation, timely filing of applications for renewal,
affidavits of use and affidavits of incontestability and payment of
maintenance fees;
(viii) In the event that any Patent, Trademark or Copyright
included in the Collateral is infringed, misappropriated or diluted by
a third party, the Grantor shall promptly notify the Beneficiary after
it learns thereof and, at the Grantor's sole expense, shall, unless
the Grantor shall reasonably determine that such Patent, Trademark or
Copyright is of negligible economic value to the Grantor, promptly sue
for infringement, misappropriation or dilution, to seek injunctive
relief where appropriate and to recover any and all damages for such
infringement, misappropriation or dilution, or take such other actions
as the Grantor shall reasonably deem appropriate under the
circumstances to protect such Patent, Trademark or Copyright; and
(ix) Upon and during the continuance of an Event of Default and
at the reasonable request of the Beneficiary, the Grantor shall use
its reasonable efforts to obtain all requisite consents or approvals
by the licensor of each Copyright License, Patent License or Trademark
License to effect the assignment of all of the Grantor's rights, title
and interest thereunder to the Beneficiary or its designee.
(r) Vehicles. Except to the extent permitted to do otherwise
--------
pursuant to the Loan Documents, the Grantor will maintain each vehicle in
good operating condition, ordinary wear and tear and immaterial impairments
of value and damage by the elements excepted, and will provide all
maintenance, service and repairs reasonably necessary for such purpose.
(s) Inventory. None of the Inventory of the Grantor shall be
---------
evidenced by a warehouse receipt.
ARTICLE V
REMEDIES
5.1. Enforcement of Security Interest. Subject to Section 2.10,
-------------------------------- ------------
Beneficiary may enforce its rights and remedies with respect to the
Reimbursement Obligations in accordance with their respective terms, and do any
one or more of the following, all of which are authorized by each Grantor:
(i) terminate this Security Agreement and any of the other documents
evidencing Reimbursement Obligations as to any future liability or obligation of
Beneficiary, but without affecting Beneficiary's rights and Security Interest in
the Collateral and without affecting Grantor's Reimbursement Obligations and
Grantor shall continue to assign Receivables and consign Inventory to
Beneficiary and continue to turn over collections to it;
(ii) cause Grantor to hold all returned Inventory in trust for
Beneficiary, segregate all returned Inventory from all other property of Grantor
or in Grantor's possession and conspicuously label said returned Inventory as
the property of Beneficiary;
(iii) without notice to or demand upon Grantor, make such payments
and do such acts as Beneficiary considers necessary or reasonable to protect its
Security Interest in the Collateral. Grantor agrees to assemble the Collateral
if Beneficiary so requires, and to make the Collateral available to Beneficiary
as Beneficiary may designate. Grantor authorizes Beneficiary to enter the
premises where the Collateral is located, to take and maintain possession of the
Collateral, or any part of it, and to pay, purchase, contest, or compromise any
encumbrance, charge, or Lien that in Beneficiary's determination appears to be
prior or superior to its Security Interest and to pay all expenses incurred in
connection therewith. With respect to any of Grantor's owned premises, Grantor
hereby grants Beneficiary a license to enter into possession of such premises
and to occupy the same, without charge, for up to one hundred twenty (120) days
in order to exercise any of Beneficiary's rights or remedies provided herein, at
law, in equity, or otherwise;
(iv) ship, reclaim, recover, store, furnish, maintain, repair,
prepare for sale, advertise for sale, and sell (in the manner provided for
herein) the Collateral. Beneficiary is hereby granted a license or other right
to use, without charge, Grantor's Patents, Copyrights, rights of use of any
name, trade secrets, Trademarks, and advertising matter, and the goodwill
associated with any of the foregoing, or any property of a similar nature, as it
pertains to the Collateral, in completing production of, advertising for sale,
and selling any Collateral and Grantor's rights under all licenses and all
franchise agreements shall inure to Beneficiary's benefit;
(v) sell the Collateral at either a public or private sale, or both,
by way of one or more contracts or transactions, for cash or on terms, in such
manner and at such places (including Grantor's premises) as Beneficiary
determines is commercially reasonable. It is not necessary that the Collateral
be present at any such sale;
(vi) Beneficiary shall give notice of the disposition of the
Collateral as follows:
(a) Beneficiary shall give Grantor, the Agent and each holder
of a security interest in the Collateral who has filed with Beneficiary a
written request for notice, a notice in writing of the time and place of
public sale, or, if the sale is a private sale or some other disposition
other than a public sale is to be made of the Collateral, then the time on
or after which the private sale or other disposition is to be made;
(b) the notice shall be personally delivered or mailed, postage
prepaid, to Grantor as provided in Section 6.11, at least five (5) calendar
days before the date fixed for the sale, or at least five (5) calendar days
before the date on or after which the private sale or other disposition is
to be made, unless the Collateral is perishable or threatens to decline
speedily in value. Notice to persons other than Grantor claiming an
interest in the Collateral shall be sent to such addresses as they have
furnished to Beneficiary;
(c) if the sale is to be a public sale, Beneficiary also shall
give notice of the time and place by publishing a notice one time at least
five (5) calendar days
before the date of the sale in a newspaper of general circulation in the
county in which the sale is to be held;
(vii) Beneficiary may credit bid and purchase at any public sale;
and
(viii) any deficiency that exists after disposition of the Collateral
as provided above will be paid immediately by Grantor. Any excess will be
returned, without interest and subject to the rights of third parties, by
Beneficiary to Grantor.
ARTICLE VI
MISCELLANEOUS
6.1. Attorneys' Fees and Other Fees and Expenses. Whether or not any of
-------------------------------------------
the transactions contemplated by this Security Agreement shall be consummated,
Grantors agree to pay to Beneficiary on demand all reasonable and documented
expenses incurred by Beneficiary in connection with the transactions
contemplated hereby (including, without limitation, any appraisal fees, title
insurance premiums and recording charges) and in connection with any amendments,
modifications or waivers (whether or not the same become effective) under or in
respect of any of the Reimbursement Obligations.
6.2. Further Assurances. From time to time, each Grantor shall execute
------------------
and deliver to Beneficiary such additional documents as Beneficiary may require
to carry out the purposes of all documents evidencing Reimbursement Obligations
and to protect Beneficiary's rights thereunder.
6.3. Taxes and Fees. Should any tax (other than taxes based upon the net
--------------
income of Beneficiary), recording or filing fees become payable in respect of
any of the Reimbursement Obligations, or any amendment, modification or
supplement thereof, the Grantors agree to pay the same to Beneficiary on demand,
together with any interest or penalties thereon attributable to any delay by
Grantors in meeting Beneficiary's demand, and agrees to hold Beneficiary
harmless with respect thereto.
6.4. Modification of This Security Agreement. No modification or waiver
---------------------------------------
of any provision of this Security Agreement shall be effective unless the same
shall be in writing, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice to or
demand on a Grantor in any case shall entitle such Grantor to any other or
further notice or demand in the same, similar or other circumstances. No
modification of Section 2.2 or 2.10 which could reasonably be expected to be
----------- ----
adverse to the rights of the Lenders under the Loan Documents shall be effective
without the consent of the Agent.
6.5. Third Party Beneficiaries. The parties hereto acknowledge that the
-------------------------
Agent and the Lenders shall be deemed third party beneficiaries of Sections 2.2,
------------
2.10 and 6.4 hereof, entitled to rely on such provisions as if they were direct
- ---- ---
signatories to this Agreement.
6.6. Headings. The headings in this Security Agreement are for purposes
--------
of reference only and shall not limit otherwise affect the meaning hereof.
6.7. Successors and Assigns. This Security Agreement shall be binding
----------------------
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided, however, that neither this Security
-------- -------
Agreement nor any rights or obligations hereunder shall be assignable by a
Grantor without the prior express written consent of Beneficiary, and any
purported assignment made in contravention hereof shall be void. No standard of
reasonableness shall attach to Beneficiary's discretion in consenting or not
consenting to any assignment.
6.8. Remedies Cumulative. All rights and remedies of Beneficiary pursuant
-------------------
to this Security Agreement, any other documents evidencing Reimbursement
Obligations or otherwise, shall be cumulative and nonexclusive, and may be
exercised singularly or concurrently. Beneficiary shall not be required to
prosecute collection, enforcement or other remedies against a Grantor before
proceeding to enforce or resort to any security, Liens, collateral or other
rights of Beneficiary.
6.9. Joint and Several Liability. Any obligations of more than one party
---------------------------
hereunder, including without limitation, any obligations of a Grantor, shall be
joint and several obligations of such parties.
6.10. APPLICABLE LAW. THIS SECURITY AGREEMENT SHALL BE DEEMED TO BE A
--------------
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
FOR PURPOSES OF THIS SECTION 6.10, THIS SECURITY AGREEMENT SHALL BE DEEMED TO BE
PERFORMED AND MADE IN THE STATE OF NEW YORK.
6.11. Counterparts. This Security 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 together constitute one and the same agreement.
6.12. Severability. Any provision of this Agreement which is prohibited
------------
or unenforceable in any jurisdiction shall, as to 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 jurisdiction.
6.13. Notices. All notices required to be given under this Security
-------
Agreement shall be sent by overnight courier or by facsimile with same day
confirmation or by certified or registered mail, return receipt requested, to
Grantors at 3111 North Kenwood Street, Burbank, California 91505 or to
Beneficiary at 520 Madison Avenue, New York, New York 10022, or to such other
addresses as any party may specify to the other parties by like notice.
IN WITNESS WHEREOF, this Security Agreement has been executed and
delivered by each of the parties hereto by a duly authorized officer of each
such party on the date first set forth above.
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
----------------------------
Name: Benjamin P. Giess
Title: Authorized Signatory
MATTHEWS STUDIO EQUIPMENT GROUP
By: /s/ Carlos D. DeMattos
-----------------------------
Name: Carlos D. DeMattos
Title: Chairman of the Board &
Chief Executive Officer
MATTHEWS STUDIO SALES, INC.
By: /s/ Carlos D. DeMattos
-----------------------------
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