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EXHIBIT 10.79
SALE AND ASSIGNMENT AGREEMENT
1. Identification. This Sale and Assignment Agreement (the "Agreement"),
dated as of April 3, 2000, is entered into by and between Inferno Acquisition
Corp., a California corporation ("Assignee"), on the one hand, and Imperial
Bank, a California banking corporation ("Imperial"), and Natexis Banque, a
French corporation ("Natexis")(together sometimes hereinafter referred to as
"Assignor").
2. Recitals.
2.1 Pursuant to a Loan and Security Agreement, dated as of March 3,
1998 (as modified and amended to the date hereof, the "Xxxxx Loan Agreement"),
between Xxxxx Productions, Inc., a California corporation ("Borrower"), on the
one hand, and Imperial and Natexis, on the other hand, Imperial and Natexis as
"Lenders" thereunder made loans and other extensions of credit to Borrower
(collectively, the "Loan") in connection with a motion picture entitled Inferno.
In connection with the Xxxxx Loan Agreement, Imperial acted as agent for
Assignor and, in that capacity is identified in the Xxxxx Loan Agreement as
"Agent."
2.2 In connection with the Xxxxx Loan Agreement, Borrower executed and
delivered to Imperial, as Agent, on behalf of each of the Lenders thereunder two
(2) promissory notes, each in the principal amount of $9,204,500 (each, a "Note"
and together the "Notes").
2.3 In connection with the Xxxxx Loan Agreement, Borrower and others
executed and delivered, or caused to be executed and delivered, to Imperial, as
Agent, on behalf of each of the Lenders other agreements, documents and
instruments which, together with the Xxxxx Loan Agreement and the Notes, are
listed on Exhibit "A" attached hereto and are collectively referred to herein as
the "Xxxxx Loan Documents."
2.4 Assignee wishes to purchase from Assignor and Assignor desires to
sell to Assignee all of Assignor's right, title and interest (the "Claims") in,
to, and under the Loan and the Xxxxx Loan Documents upon and subject to the
terms, covenants, and conditions set forth in this Agreement.
3. Closing and Closing Date.
3.1 Effective upon the "Closing" (as hereinafter defined), and subject
to and conditioned upon the terms, covenants, limitations, and conditions
contained herein, Assignor hereby sells, transfers, and assigns to Assignee, and
Assignee hereby purchases and accepts from Assignor, in each case on and as of
the Closing Date, all of Assignors' right, title and interest, if any, in, to,
and under the Claims.
3.2 The consummation of the transfer and assignment contemplated
herein shall be effected at a closing (the "Closing") which shall occur on April
3, 2000, or such other date as Assignor and Assignee otherwise may agree in
writing (the "Closing Date"), at the offices of
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Jeffer, Mangels, Xxxxxx & Marmaro LLP, 2121 Avenue of the Stars, 00xx Xxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, or such other location upon which Assignor and
Assignee may agree in writing.
4. Consideration. The consideration to be paid by Assignee to Assignor for
the Claims shall be as follows:
4.1 Two Million Dollars ($2,000,000) paid on the Closing Date to
Imperial, as Agent, in immediately available funds by wire transfer in
accordance with Imperial's instructions (the "Cash Purchase Price"). The Cash
Purchase Price shall be paid without defense, offset, counterclaim, withholding,
deduction or reduction for any reason whatsoever.
4.2 Execution and delivery to Imperial, as Agent, at the Closing on
the Closing Date, of a Loan and Security Agreement and promissory notes in favor
of Imperial and Natexis, and such other agreements, documents and instruments as
Imperial, as Agent, may require in its sole and absolute discretion
(collectively, the "New Secured Loan Documents"), to evidence new secured loans
from Assignor to Assignee in the aggregate principal amount on the Closing Date
of Four Million Eight Hundred Seven Thousand Nine Hundred Twenty Six Dollars and
Ninety Seven Cents ($4,807,926.97) (the "Secured Purchase Price"), to be
absolutely, irrevocably and unconditionally guaranteed by The Xxxxxx
Entertainment Company, a California corporation. The Secured Purchase Price is
the amount outstanding under the Xxxxx Loan, as described in Exhibit "B"
attached hereto, less the amount on deposit in the "Collection Account" (as
defined in the Xxxxx Loan Agreement) which shall be applied by Agent to the
Xxxxx Loan (first to accrued but unpaid interest) prior to the Closing. As of
the date of execution hereof by Agent and Lenders, April 13, 2000, the amount on
deposit in the Collection Account is Eighty Three Thousand Nine Hundred Seventy
Three Dollars and Twenty Cents ($83,973.20).
4.3 Assignee shall assume, at the Closing, all of the obligations and
liabilities of Assignor under or in connection with the Claims or the Xxxxx Loan
Documents, of every kind or nature whatsoever.
4.4 The sale, transfer and assignment of the Claims and the Xxxxx Loan
Documents is and shall be on an "AS IS" basis, without recourse to Assignor of
any kind or nature whatsoever, or any representation or warranty by Assignor of
any kind or nature whatsoever, expressed or implied, except only such
representations and warranties of Assignor as are expressly and specifically
provided in this Agreement. Assignee acknowledges and agrees that Assignee shall
have no right to use the name or other business identification of either
Assignor.
5. Representations and Warranties of Assignor. Assignor hereby represents
and warrants to Assignee as follows, each of which is a material inducement to
Assignee to enter into and perform this Agreement and shall survive the Closing:
5.1 Each Assignor has all requisite power and authority to execute and
deliver, and to perform, all of its obligations under this Agreement and all
other agreements, documents and instruments to be executed and delivered by
Assignor in connection herewith.
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5.2 The execution, delivery and performance of this Agreement by
Assignor has been duly authorized by all necessary corporate action and does not
and will not: (a) violate any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to either Assignor or any provision of such Assignor's charter or
by-laws; (b) require any authorization, consent, approval, license, exemption by
or from, or filing or registration with, any court, executive or legislative
body, governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign.
5.3 This Agreement constitutes a legal, valid and binding obligation
of each Assignor enforceable against it in accordance with its terms, except as
such enforceability may be limited by bankruptcy, reorganization, receivership,
insolvency or similar laws affecting the enforcement of creditors' rights
generally or by general principles of equity.
5.4 Except for this Agreement, Assignor has not sold, pledged,
assigned, transferred, disposed or terminated, in whole or in part, or entered
into any agreement (other than this Agreement) to sell, pledge, assign,
transfer, dispose of or terminate, in whole or in part, any of its right, title
and interest in and to the Claims or any of the Xxxxx Loan Documents or any of
their rights under or in connection with the Claims or any of the Xxxxx Loan
Documents, or agreed to do any of the foregoing.
5.5 The photocopies of the Xxxxx Loan Documents delivered by Assignor
to Assignee on the Closing Date, subject to the New Secured Loan Documents,
constitute accurate copies of the Xxxxx Loan Documents listed on Exhibit "A"
attached hereto, and such Xxxxx Loan Documents have not been amended, waived,
modified or supplemented other than by Xxxxx Loan Documents listed on Exhibit
"A" attached hereto. The Xxxxx Loan Documents constitute all material documents
received by Assignor in connection with the making of the Loan.
5.6 The aggregate amount of the Loan as of the date of this Agreement
is Six Million Eight Hundred Sixty Nine Thousand Eight Hundred Seventy Eight
Dollars and Seventy Five Cents ($6,869,878.75), which is comprised of principal
and interest determined as of March 31, 2000, and continuing interest, fees and
other amounts owing in respect of the Loan, set forth in Exhibit "B" attached
hereto. Assignee acknowledges and agrees that the amount of the Loan will
increase by the time of the Closing as a result of the accrual of interest, and
additional fees and other amounts becoming payable, under the Xxxxx Loan
Documents. Assuming that the Closing Date will be April 13, 2000, Assignor's
good faith estimate of the amounts owing in respect of the Loan on that date is
Six Million Eight Hundred Ninety One Thousand Nine Hundred Dollars and Seventeen
Cents ($6,891,900.17).
6. Representations and Warranties of Assignee. Assignee hereby represents
and warrants to, and further agrees with, Assignor as follows, each of which is
a material inducement to Assignor to enter into and perform this Agreement and
shall survive the Closing:
6.1 Assignee is a corporation duly incorporated, validly existing and
in good standing in the state of its incorporation and is duly qualified and in
good standing in each jurisdiction in which Assignee conducts business or is
otherwise required to be qualified pursuant to
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applicable law. Assignee has all requisite power and authority to execute and
deliver, and to perform, all of its obligations under this Agreement and under
all other agreements, documents and instruments to be executed and delivered by
Assignee in connection herewith.
6.2 The execution, delivery and performance of this Agreement by
Assignee has been duly authorized by all necessary corporate action and does not
and will not: (a) require any consent or approval of Assignee's shareholders;
(b) violate any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to
Assignee or any provision of Assignee's charter, articles of incorporation or
by-laws; (c) result in a breach or constitute a default under any indenture or
loan or credit agreement or any other material agreement to which Assignee is a
party or by which it is bound; (d) require any authorization, consent, approval,
license, exemption by or from, or filing or registration with, any court,
executive or legislative body, governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign.
6.3 This Agreement constitutes a legal, valid and binding obligation
of Assignee enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, reorganization, receivership,
insolvency or similar laws affecting the enforcement of creditors' rights
generally or by general principles of equity.
6.4 Assignee has made such examination, review and investigation of
the Xxxxx Loan Documents and the Claims, and of any and all facts and
circumstances necessary to evaluate the Xxxxx Loan Documents and the Claims it
has deemed necessary or appropriate. Except for the representations and
warranties specifically and expressly made by Assignor in paragraph 5 above: (a)
Assignee has been and will continue to be solely responsible for Assignee's own
independent investigations as to all aspects of the transactions contemplated
hereby including, but not limited to: (i) the authorization, execution,
legality, validity, effectiveness, genuineness, enforceability, collectibility
or sufficiency of the Claims and the Xxxxx Loan Documents; (ii) the adequacy,
condition or existence of any collateral, or the attachment, perfection or
priority of any security interest or lien held by Assignor, in connection with
the Xxxxx Loan Documents and the Claims; and (iii) the status, affairs,
financial condition, operations, prospects, business, property, assets and
creditworthiness of Borrower and of any guarantor of any of the obligations or
liabilities of Borrower, and any actions taken or to be taken under or in
connection with the Claims and the Xxxxx Loan Documents; and (b) Assignee has
not relied upon any expressed or implied, written or oral, representation,
warranty or other statement by or on behalf of Assignor concerning any of the
foregoing or otherwise with respect to the Loan, the Claims or the Xxxxx Loan
Documents, except for such representations and warranties of Assignor as are
specifically and expressly provided in this Agreement.
6.5 Assignee is acquiring the Claims without any view either to
participate in (other than as described in this Agreement), or to sell the
Claims in connection with, any public distribution thereof, and Assignee has no
intention of making any distribution of the Claims in a manner which would
violate applicable securities laws; provided, however, that nothing in this
Agreement shall restrict or limit in any way Assignee's ability and right to
dispose of all or part of the Claims in accordance with such laws if at some
future time Assignee deems it advisable to do
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so; and, provided, further, that Assignee and any party acquiring all or any
portion of the Claims or any proceeds thereof from Assignee, other than Assignor
or Imperial as Agent for Assignor or any successor, must agree in writing with
Assignor to be bound (or to continue to be bound) by this Agreement; and,
provided, further, that all of Assignee's right, title and interest in, to and
under the Claims and the Xxxxx Loan Documents shall be subject and subordinate
to the New Secured Loan Documents until all of the obligations of Assignee under
the New Secured Loan Documents have been absolutely, indefeasibly, irrevocably
and unconditionally paid, performed and discharged in full.
6.6 If, subsequent to the Closing, Assignor receives (a) any note or
other obligation issued by Borrower in substitution or replacement of the
Claims, or (b) any cash, securities or other property distributed or paid by
Borrower in connection with the Claims, Assignor shall accept and hold the same
in trust for such limited purpose on behalf and for the benefit of Assignee, and
shall deliver the same promptly to the Assignee in the same form received, with
the endorsement (without recourse, representation or warranty) of Assignor when
necessary or appropriate; provided, however, that all such notes, obligations,
cash, securities or other property shall be subject to Assignor's rights under
or in connection with the New Secured Loan Documents.
6.7 Effective upon the Closing, Assignee agrees that, if any transfer
or payment made to Assignor by Borrower prior to the Closing Date in respect of
the obligations of Borrower under or in connection with the Xxxxx Loan Documents
is, in whole or in part, rescinded, void, voidable or must otherwise be returned
by Assignor in connection with any bankruptcy, reorganization, receivership,
insolvency, or other similar proceeding with respect to Borrower (each such
rescinded, voided, voidable or otherwise returned amount hereinafter is referred
to as a "Returned Payment Amount"), then, no later than thirty (30) days after
Assignee's receipt of notice in writing from Assignor, or Imperial as Agent,
specifying the applicable Returned Payment Amount and requesting Assignee to
purchase Assignor's claim against Borrower for the applicable Returned Payment
Amount, Assignee shall purchase said claim from Assignor for cash in an amount
equal to one hundred percent (100%) of the applicable Returned Payment Amount,
together with interest thereon accruing from and after the date of Assignee's
receipt of said notice from Assignor, or Imperial as Agent, and ending on the
date of such purchase, at the current rate of interest applicable to the New
Secured Loan, to be paid to Assignor, or Imperial as Agent as Imperial may
instruct Assignee in writing, in immediately available funds by wire transfer in
accordance with Imperial's instructions. Assignor shall assign such claim to
Assignee, without recourse or, except as specifically and expressly provided
herein, any representation or warranty of any kind or nature whatsoever, against
receipt of funds from Assignee as herein provided but subject to the New Secured
Loan Documents.
7. Certain Claims Subject to Pending Arbitration.
7.1 Assignee acknowledges and agrees that the Claims include, and in
the future may include, claims against one (1) or more third parties for failure
of performance, or other breach or default of their respective obligations to,
any or all of Xxxxx, Agent or Lenders (each, a "Third Party Claim") and that
certain Third Party Claims currently are the subject of pending litigation or
arbitration proceedings identified in Exhibit "C" attached hereto (each, a
"Pending Third Party Claim") including, but not limited to, arbitration
proceedings concerning: (a) disputed delivery
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of the Picture to Metropolitan Film Export ("Metropolitan") in which
Metropolitan, Xxxxx/Xxxxx Entertainment Group, Inc. ("PM") and Motion Picture
Bond Company ("MPBC") are respondents, any of which may be liable to Agent and
Lenders (the "Metropolitan Arbitration"); and (b) disputed delivery of the
Picture to Spring Cinema (also known as Spring Cinema Agencies) in which Spring
Cinema, PM and MPBC are respondents, any of which may be liable to Agent and
Lenders (the "Spring Cinema Arbitration").
7.2 Except as specifically and expressly provided in this Paragraph 7
or as permitted in the New Secured Loan Documents, Assignee shall prosecute to
final collectible arbitration award or judgment each Third Party Claim that is
the subject of pending arbitration or litigation, at its sole cost, expense and
risk. To date, the Spring Cinema Arbitration has been prosecuted by Agent, on
behalf of Lenders, and it is likely that by the Closing Date Agent will have
obtained a default award against Spring Cinema (the "Spring Cinema Award"). All
costs and expenses incurred by or on behalf of Agent in connection with the
Spring Cinema Arbitration: (a) prior to the Closing Date, shall be added to the
Loan; or (b) after the Closing Date, shall be added to the loans to be made by
Assignor pursuant to the New Secured Loan Documents. If, by the Closing Date,
Agent has obtained the Spring Cinema Award, Agent shall have the right, at its
election, to enforce and collect the Spring Cinema Award on behalf of, but
without any obligation or liability to, Assignee and any proceeds of the Spring
Cinema Award shall be paid to Agent, on behalf of Lenders, pursuant to and in
accordance with the New Secured Loan Documents.
7.3 All gross proceeds payable to Xxxxx or Assignee arising out of, in
connection with or as a result of any Third Party Claim shall be paid
immediately to Agent, on behalf of Lenders, pursuant to and in accordance with
the New Secured Loan Documents, without defense, offset, counterclaim,
withholding, deduction or reduction for any reason whatsoever.
8. Further Assurances and Indemnity.
8.1 Effective upon the Closing, Assignor and Assignee each hereby
covenant and agree to execute and deliver all such documents and instruments,
and to take such further actions as may be reasonably necessary or appropriate,
from time to time, to carry out the intent and purpose of this Agreement and to
consummate the transactions contemplated hereby; provided, however, that all
such documents and instruments executed, and actions taken, by Assignor shall be
without recourse or, except as specifically and expressly provided in this
Agreement, representation or warranty of any kind or nature whatsoever.
8.2 Effective upon the Closing, Assignee shall defend, indemnify and
hold each Assignor harmless from and against any and all costs, losses,
expenses, liabilities and damages (including reasonable attorneys' fees and
disbursements) incurred by Assignor in connection with or arising out of: (a)
any misrepresentation by Assignee or any breach by Assignee of any warranty or
any other term, covenant or agreement set forth in this Agreement or any other
agreement, document or instrument contemplated hereby; or (b) the Claims
(including, but not limited to, Third Party Claims), the Xxxxx Loan Documents or
the transactions contemplated hereby or thereby.
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8.3 Assignee shall pay on demand all costs and expenses, including
attorneys' fees and costs, incurred by Assignor: (a) in connection with the
negotiation, preparation, execution and performance of this Agreement and the
other agreements, documents and instruments contemplated hereby, whether or not
the Closing occurs; (b) the preservation and protection of the Claims or any
collateral for the Claims, or any of Assignor's rights or remedies under or in
connection with the Xxxxx Loan Documents, at any time prior to the Closing or,
if the Closing occurs, thereafter; and (c) after the Closing, in connection with
this Agreement and the other agreements, documents and instruments contemplated
hereby including, without limitation, any and all amendments and modifications
hereof or thereof, including, but not limited to, defense of any claim made or
threatened against Assignor arising out of, in connection with or related to the
transactions contemplated hereby or the enforcement of the rights of Assignor
hereunder or thereunder.
9. Conditions Precedent.
9.1 The obligations of Assignor under this Agreement shall be subject
to the satisfaction (or specific and express waiver by Assignor in writing) of
the following conditions precedent, on or prior to the Closing Date:
(a) Assignee shall have paid to Assignor the Cash Purchase Price
as provided herein.
(b) Assignee shall have caused the absolute, indefeasible,
irrevocable and unconditional payment, performance and discharge in full of all
indebtedness and obligations of PM to Imperial pursuant to that certain Second
Amended and Restated Revolving Credit Loan and Security Agreement, dated
December 16, 1999, between PM and Imperial, as amended.
(c) Assignee shall have executed and delivered, and caused the
execution and delivery, to Assignor of all of the New Secured Loan Documents and
all conditions precedent to the obligations of Agent and Lenders thereunder have
occurred.
(d) Assignee shall have complied with all terms, covenants and
conditions to be performed or complied with by Assignee as contemplated by this
Agreement.
(e) All of Assignee's representations and warranties shall be
true and correct as of the Closing Date and shall not be misleading in any
respect.
(f) Assignor shall have received the favorable written opinion of
Sidley & Austin, counsel for Assignee, dated as of the date thereof, addressed
to Assignor and satisfactory to counsel to Assignor.
9.2 The obligations of Assignee under this Agreement shall be subject
to the satisfaction (or specific and express waiver by Assignee in writing) of
the following conditions precedent, on or prior to the Closing Date:
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(a) Assignor shall have delivered to Assignee photocopies of the
Xxxxx Loan Documents and, subject to and if, as and when provided in the New
Secured Loan Documents, shall have agreed to deliver to Assignee the Notes
endorsed as payable to the order of Assignee without recourse or, except as
specifically and expressly set forth herein, representation or warranty of any
kind or nature whatsoever.
(b) Subject to and in accordance with the New Secured Loan
Documents, Assignor shall have agreed to execute, acknowledge (where appropriate
as determined by Agent) and deliver to Assignee such assignments of Uniform
Commercial Code financing statements, assignments of mortgages, and similar
documents as Assignee shall have reasonably requested to assign, of record, to
Assignee the security interests and mortgage liens granted by Borrower to
Assignor in connection with the Xxxxx Loan Documents, in each case without
recourse or, except as specifically and expressly set forth herein,
representation or warranty of any kind or nature whatsoever.
(c) All of Assignor's representations and warranties shall be
true and correct as of the Closing Date and shall not be misleading in any
respect.
10. Miscellaneous.
10.1 If any provision of this Agreement, or of any other agreement,
document or instrument contemplated hereby, shall be invalid, illegal or
unenforceable in any jurisdiction then, as to such jurisdiction only, such
provision shall to the extent of such prohibition or unenforceability be deemed
severed from the remainder of such agreement, document or instrument and the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
10.2 This Agreement, and the other agreements, documents and
instruments contemplated hereby, and the rights and obligations of the parties
hereto and thereto, shall be governed by and construed and enforced in
accordance with, the laws of the state of California without reference to its
conflict or choice of law principles.
10.3 Each controversy, dispute or claim ("Claim") arising out of or
relating to this Agreement or any other agreement, document or other instrument
contemplated hereby shall be resolved pursuant to the provisions for reference
and trial by referee (without jury) set forth in California Code of Civil
Procedure Section 638 et seq., or any statute containing reasonably similar
provisions which replaces such sections, except as expressly modified by the
provisions hereof.
(a) The reference herein contemplated shall be the exclusive
remedy for the resolution of any Claim (including, but not limited to, whether
or not any Claim is subject to reference hereunder). Each of the parties hereby
absolutely, irrevocably and unconditionally waives (i) its rights to initiate
any legal proceedings against the other party(ies) in any court or jurisdiction
other than the Superior Court of Los Angeles County (the "Court") and (ii) trial
by jury with respect to any Claim. The referee ("Referee") shall be a retired or
former California Superior Court or Appellate Court judge residing in Los
Angeles County, California, who is either
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(1) agreed to by the parties within fifteen (15) days of the notice by any party
to the other of the intention to invoke this Paragraph to resolve the Claim, or
(2) failing such agreement, is appointed pursuant to California Code of Civil
Procedure Section 640 in an action filed in the Court.
(b) The parties agree that any party may (and, if necessary, the
other parties shall join in such filing) file with the Clerk of the Court,
and/or with the appropriate judge of the Court, any and all petitions, motions,
applications or other documents necessary to obtain the appointment of a Referee
immediately upon the commencement of any action or proceeding to resolve any
Claim and to conduct all necessary discovery and to proceed to trial as
expeditiously as possible. It is the parties' intention that the parties and the
Referee shall use their best efforts to be certain that: (i) discovery is
conducted for a period no longer than six (6) months (the "Discovery Period")
from the date the Referee is appointed (the "Referee Date") (whether by
stipulation or by the Court), excluding motions regarding discovery, and (ii)
trial is set on a date that is within nine (9) months of the Referee Date. All
discovery motions shall be filed with the Referee and served upon the opposing
party no later than the last day of the Discovery Period; provided, however,
that the parties agree to grant reasonable extensions of time necessary to
reflect the complexities of the issues presented for resolution. All
proceedings, including trial, before the Referee shall be conducted at a neutral
location (unless otherwise stipulated by the parties) within five (5) miles of
the Los Angeles County Superior Court located at 000 X. Xxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx. The parties agree that the Referee shall be a judge for all
purposes (including, without limitation, (i) ruling on any and all discovery
matters and motions and any and all pretrial or trial motions, (ii) setting a
schedule of pretrial proceedings, and (iii) subject to California Code of Civil
Procedure Section 638 et seq., making other orders or rulings a sitting judge of
the Court would be empowered to make in any action or proceeding in the Court).
Any matter before the Referee shall be governed by the substantive law of
California, its Code of Civil Procedure, Rules of Court and Evidence Code,
except as otherwise specifically agreed by the parties and approved by the
Referee. The parties intend this general reference agreement to be specifically
enforceable in accordance with the California Code of Civil Procedure. Any
appeal of the decision of the Referee and/or of the Court upon the
recommendation of the Referee shall be appealable to the same extent and in the
same manner that such decision would be appealable if rendered by a judge of the
Court. The Referee shall in his/her statement of decision set forth his/her
findings of fact and conclusions of law.
(c) During the pendency of any such action or proceeding and
before the entry of any judgment therein, each of the parties to such action or
proceeding shall bear equal shares of the fees charged and costs incurred by the
Referee in connection with performing the services provided in this Section. The
compensation of the Referee shall not exceed the prevailing rate for like
services. The prevailing party shall be entitled to reasonable court costs and
legal fees, including the customary attorney fees, expert witness fees,
paralegal fees, the fees of the Referee and other reasonable costs and
disbursements charged to the party by its counsel, in such amount as is
determined by the Referee. If a court reporter is requested by either party,
then such reporter shall be present at all proceedings, and the fee of such
reporter shall be borne by the party requesting such reporter. Such fees shall
be an item of recoverable costs.
(d) Nothing in this Section shall prejudice the right of the
Agent or any Imperial Lender to exercise its non-judicial foreclosure rights and
remedies in respect of the
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Senior Obligations, or prejudice the right of either party to obtain provisional
relief or other equitable remedies as shall otherwise be available judicially
pending reference of a dispute to a Referee as provided in this Section.
10.4 WAIVER OF JURY TRIAL. THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL
BY JURY. ASSIGNEE FURTHER WAIVES ANY RIGHTS OF SETOFF, AND THE RIGHT TO IMPOSE
COUNTERCLAIMS (OTHER THAN THOSE RIGHTS OF SETOFF AND COUNTERCLAIMS WHICH COULD
NOT, BY REASON OF ANY APPLICABLE FEDERAL OR STATE PROCEDURAL LAWS, BE
INTERPOSED, PLEADED OR ALLEGED IN ANY OTHER ACTION ) IN ANY LITIGATION IN ANY
COURT REFERENCE OR ARBITRATION WITH RESPECT TO, IN CONNECTION WITH, OR ARISING
OUT OF THIS AGREEMENT, OR ANY OTHER AGREEMENT, DOCUMENT OR INSTRUMENT
CONTEMPLATED HEREBY, PURSUANT HERETO OR THERETO, OR ANY OTHER CLAIM OR DISPUTE
HOWSOEVER ARISING, BETWEEN ASSIGNEE, ON THE ONE HAND, AND ASSIGNOR, ON THE OTHER
HAND.
10.5 Except as otherwise expressly provided herein, any notice,
request, demand or other communication provided for hereunder shall be in
writing and shall be delivered personally, by certified mail, return receipt
requested, postage prepaid, or by transmission by a telecommunications device,
and shall be effective (a) on the day when personally served, including delivery
by overnight mail and courier service, (b) on the third day after its deposit in
the United States mail, and (c) on the business day of confirmed transmission by
telecommunications device. The addresses of the parties hereto (until notice of
a change thereof is served as provided in this Paragraph) shall be as follows:
To Assignee:
Inferno Acquisition Corp.
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx, Esq.
Fax No.: 000-000-0000
With a concurrent copy to:
Sidley & Austin
000 Xxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Fax No.: 000-000-0000
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To Imperial (as Lender and as Agent):
Imperial Bank
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxx
Fax No.: 000-000-0000
To Natexis:
Natexis Banque
Entertainment Group
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Fax No.: 000-000-0000
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With a concurrent copy to:
Jeffer, Mangels, Xxxxxx & Xxxxxxx LLP
2121 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, P.C.
Fax No.: 000-000-0000
10.6 This Agreement shall be binding upon the parties hereto and their
respective successors and assigns, and shall inure to the benefit of the parties
hereto and the successors and assigns; provided, however, that so long as any
obligations under the New Secured Loan Documents have not been absolutely,
indefeasibly, irrevocably and unconditionally paid, performed and in full,
Assignee may not assign its rights or delegate its duties hereunder or any
interest herein without the prior written consent of Assignor and any such
purported assignment or delegation shall be null and void.
10.7 This Agreement and the other agreements, documents and
instruments contemplated hereby are intended by the parties to be the final,
complete and exclusive expression of the agreement between them. This Agreement
and such other agreements, documents and instruments supersede any and all prior
oral or written agreements relating to the subject matter hereof between
Assignee, on the one hand, and Assignor, on the other hand. No modification,
rescission, waiver, release, or amendment of any provision of this Agreement or
any such other agreement, document or instrument shall be made, except by a
written agreement signed by the parties hereto.
10.8 This Agreement and the other agreements, documents and
instruments contemplated hereby may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument,
respectively. Delivery of an executed counterpart of this Agreement, or any such
other agreement, document or instrument, by facsimile shall be equally effective
as delivery of a manually executed counterpart hereof and thereof. Any party
delivering an executed counterpart by facsimile shall also deliver a manually
executed counterpart, but failure to do so shall not effect the validity,
enforceability, of binding effect of this Agreement or any such other agreement,
document or instrument.
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10.9 The various headings used in this Agreement are inserted for
convenience of reference only and shall not affect the meaning or interpretation
of this Agreement or any provision hereof.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the date above first written.
"ASSIGNOR:"
IMPERIAL BANK, individually and as Agent
By: /s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx
Its: Commercial Loan Officer
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NATEXIS BANQUE
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Its: Vice President
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"ASSIGNEE"
INFERNO ACQUISITION CORP.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Xxxxx Xxxxxxxxxx
Its: Secretary
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Exhibits*
Description Exhibit
----------- -------
Xxxxx Loan Documents A
Xxxxx Loan B
Third Party Claims C
Xxxxx Productions, Inc. Bylaws E
*The Schedules and Exhibits are omitted from this filing. The Company agrees to
furnish supplementally a copy of any Schedule or Exhibit to the Commission upon
request.
