LOAN AND SECURITY AGREEMENT
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(EQUIPMENT)
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Loan No.: SMA0001
Loan Date: 09/12/96
Loan and Security Agreement entered into as of the 12th day of September, 1996
(the "Agreement") by and between INDEPENDENT RESOURCES, INC. a New York
corporation with its principal offices at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("Lender") and SMA Video, Inc. a New York Corporation with its principal
office at 100 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
("Borrower").
WHEREAS, Borrower desires to obtain a secured loan from Lender to
finance its acquisition of equipment (and/or to refinance existing
equipment); and
WHEREAS, Lender is agreeable to making a secured loan to Borrower on
the terms and conditions contained in this Loan and Security Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
parties' mutual agreements below set forth, Borrower and Lender agree
as follows:
1. THE LOAN AND LOAN REPAYMENT. As requested by Borrower, Lender agrees
to lend to Borrower the sum of Nine Hundred Ninety-five Thousand Dollars
($995,000.00) ("Loan"). Borrower agrees to repay the Loan in successive
installments (which installment payments are inclusive of interest) as set forth
in the following Schedule:
SCHEDULE
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NUMBER OF INSTALLMENTS
(Exclusive of Advance PERIODIC INSTALLMENT PAYMENT
ADVANCE PAYMENT Payment) AND PAYMENT PERIOD AMOUNT PER PERIOD
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$0.00 Five (5) Monthly Payment $4,641.75, followed by
Fifty-nine (59) Monthly $20,868.96
Payments
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Commencement Date: _____________________ Security Deposit (if any): N/A
Equipment Location (if other than above address of Borrower): N/A
Equipment: See Schedule A attached hereto and made a part hereof
Special Provisions (if any): N/A
The Advance Payment, if any, shall be due and payable upon execution of
this Agreement. The first periodic installment payment (after excluding the
Advance Payment, if any) shall be due on the first (1st) day of the month
following the advance of the Loan proceeds by Lender and Borrower authorizes
Lender to insert such date above as the Commencement Date. The remaining
periodic installment payments shall be due and payable on the same day of each
successive month (or quarter, if quarterly payments are provided for above).
However, the parties may select another Commencement date by noting the same in
the above Special Provisions section or by a separate writing signed by Lender
and Borrower in which case the first periodic installment payment shall be due
on such date. Unless otherwise specifically provided for in this Agreement, the
Loan may not be prepaid.
2. UNCONDITIONAL OBLIGATION TO PAY, LATE PAYMENTS, ETC. All payments
due hereunder shall be paid to Lender or its assigns without notice or demand
and without abatement, offset, defense or counterclaim, at Lender's principal
office shown above, or such other place as Lender or its assignee may designate
in writing to Borrower. Borrower's obligation to pay the installments and other
payments due hereunder shall be absolute and unconditional and shall not be
affected by reason of (i) any defect in, lack of fitness for use of, damage to,
loss of possession or use of or destruction or, all or any of the Equipment (as
defined below) securing borrower's obligations, (ii) the prohibition or other
restriction against Borrower's use of said Equipment or (iii) for any other
cause, it being the agreement of the parties that the Loan and any other amount
payable by Borrower hereunder shall continue to be payable in all events in the
manner and at the times provided in this Agreement.
The Loan shall become immediately due and payable in its entirely upon
the occurrence of any Event of Default (as defined below). If any periodic
installment payment or other payment is more than Five (5) days late, Lender
may, at its election, and subject to prior exercise of its right of
acceleration, accept the payment in arrears and Borrower shall pay, as
liquidated damages, a late charge equal to two (2%) percent per month on each
defaulted payment from the due date thereof. In no event shall any amount
payable to Lender as interest, including any sum held by a Court of competent
jurisdiction to be "interest" under applicable law, exceed, with respect to any
period of time, the highest rate of interest permitted by applicable law. Any
amount received by lender determined to be in excess of the highest rate of
interest receivable by Lender, shall be refunded to Borrower.
3. SECURITY INTEREST. To secure payment when due (at maturity, by
acceleration or otherwise) of the Loan, any interim fundings against the Loan
and any additional or future advances, renewals, extensions and replacements
thereto and any and all other present and future obligations of Borrower to
Lender, whether direct or contingent or joint and several, Borrower hereby
conveys, assigns, and grants to lender a continuing security interest in and to
(i) the equipment described in the annexed Schedule A including all present and
future additions, attachments, replacements, accessions and accessories thereto
(the "Equipment"), and all substitutions and proceeds thereof including all
proceeds of insurance thereon, and (ii) all equipment, inventory, accounts,
receivables, goods and assets of any and every kind, including, but not limited
to, all items or intangible properly, wherever located, now or hereafter
belonging to Borrower or in which Borrower has any interest, and all proceeds of
the foregoing including insurance proceeds; all of the above, collectively, the
"Collateral".
BORROWER GRANTS LENDER THE AUTHORITY TO FILE THIS AGREEMENT OR A
CARBON, PHOTOGRAPHIC OR OTHER REPRODUCTION THEREOF AS A FINANCING STATEMENT
UNDER THE UNIFORM COMMERCIAL CODE WITH RESPECT TO ALL SECURITY INTERESTS CREATED
HEREBY.
4. FINANCING AGREEMENT. THIS AGREEMENT IS SOLELY A FINANCING
AGREEMENT. BORROWER ACKNOWLEDGES THAT THE EQUIPMENT HAS BEEN OR WILL BE SELECTED
AND ACQUIRED SOLELY BY BORROWER AND THAT LENDER HAS NOT AND DOES NOT MAKE ANY
WARRANTY WITH RESPECT TO ITS CONDITION, MERCHANTABILITY, SUITABILITY, CAPACITY
OR FITNESS FOR ANY PARTICULAR PURPOSE.
5. REPRESENTATIONS AND WARRANTIES. Borrower warrants, represents and
agrees as follows (i) Borrower has full power and authority to execute, deliver
and perform its obligations under this Agreement; (ii) the execution and
delivery of this Agreement has been authorized by all requisite corporate (or
partnership) action; (iii) the execution, delivery and performance of this
Agreement do not and will not constitute a breach, default or violation of or
under Borrower's articles of incorporation, by laws (partnership agreement) or
any other agreement, law, order, lease, judgment or injunction to which it is a
party or may be bound; (iv) the Equipment is (or, on the Commencement Date, will
be) lawfully owned by Borrower, free and clear of all liens, encumbrances and
security interests and Borrower will warrant and defend title thereto against
all claims; (v) Borrower has not granted and will not grant to any one other
than Lender a security interest in the equipment and no Financing Statement or
other instrument affecting the Equipment nor rights therein, bearing the
signature of, or otherwise authorized by, Borrower is on File in any public
office; (vi) the Equipment shall at all times remain personal properly and be
retained in Borrower's possession at its principal address set forth above (or,
if so indicated, at the Equipment Location set forth above), (vii) the Equipment
shall be used for business purposes; and (viii) if the Equipment is attached to
real estate or if it is or may become subject to a prior interest in favor of a
party having any interest in the real estate. Borrower will, on Lender's
demand, furnish Lender with a writing by which any and all parties having such
prior interest waive or subordinate their rights and priorities to, or in favor
of, Lender's security interest provided herein.
6. INSURANCE. Borrower shall, at its sole cost and expense, procure and
maintain, so long as Borrower is indebted to Lender on the Loan or on any other
liability (i) insurance insuring the Equipment against all risks of physical
loss, theft, damage and destruction with extended coverage in an amount equal to
the greater of (a) the amount of the Loan or (b) the full replacement value
(new) of the Equipment with loss payable solely to Lender (and its assigns) and
Borrower as their interests may appear and (ii) personal injury liability and
property damage insurance with respect to the Equipment and the use thereof in
such amounts as may be reasonably acceptable to Lender, and naming Lender (and
its assigns) as additional insured. All insurers and coverages must be
reasonably satisfactory to Lender. Borrower shall deposit said policy or
policies or duplicates thereof or certificates of insurance with lender and said
policies shall provide satisfactory to Lender. Borrower shall deposit said
policy or policies or duplicates thereof or certificates of insurance with
Lender and said policies shall provide that the policies may not be canceled or
altered without at least thirty (30) days prior notice to Lender and that the
coverage shall not be invalidated against Lender because of any violation of any
condition or warranty contained in any policy or application therefor by
Borrower or by reason of any action or inaction of Borrower.
7. USE. REPAIRS, LOSS AND DAMAGE. Borrower agrees to maintain the
Equipment in good condition and repair and in accordance with the manufacturer's
instructions, manuals and warranties (if any), and the requirements of any
applicable insurance and any governmental authority having jurisdiction.
Borrower shall pay for all fuel, service, inspection, overhaul, replacements,
substitutions, materials and labor necessary or desirable for the proper use,
repair, operation and maintenance of the Equipment. All risks of loss, theft,
damage or destruction of the Equipment shall be borne by Borrower and Borrower
shall promptly notify Lender in writing of any such loss, theft, damage or
destruction. In the event of any damage to the Equipment (unless the same is
damaged beyond repair) Borrower shall, at its expense, place the same in good
repair, condition and working order. If the Equipment is determined by Lender to
be lost, stolen or damaged beyond repair, or should the Equipment be
confiscated, seized or the use and title thereof requisitioned to someone other
than Borrower, Borrower shall immediately pay to Lender, in addition to unpaid
periodic installment payments on the Loan, other unpaid sums due hereunder and
late charges then past due, an amount equal to the then remaining periodic
installment payments due on the Loan discounted to present value at the rate of
six (6%) percent per annum, less the net amount of the recovery, if any,
actually received by Lender from insurance on the Equipment.
TERMS AND CONDITIONS OF LOAN AND SECURITY AGREEMENT CONTINUED ON REVERSE SIDE
Accepted at Lender's Office at Litchfield, Connecticut The undersigned signatory affirms that he/she has read tile terms and
conditions printed above and on the reverse side, that he/she is a duty
authorized officer, partner or proprietor of the Borrower, and has
authority to execute this Loan and Security Agreement on its behalf.
LENDER: BORROWER:
INDEPENDENT RESOURCES, INC.
SMA VIDEO, INC.
AUTHORIZED OFFICER: AUTHORIZED OFFICER, PARTNER OR PROPRIETOR:
BY: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ FP BY: /s/ Illegible
TITLE President
(1)
TERMS AND CONDITIONS OF LOAN AND SECURITY AGREEMENT (CONTINUED)
8. TAXES AND OTHER CHARGES. Borrower agrees to pay promp and sales,
use, gross receipts, ad valorum, property and any and all other taxes imposed by
any State, Federal, local or foreign government upon this Agreement or upon the
ownership, shipment, delivery, use or operation of the Equipment or any
Collateral or upon or measured by any payments due hereunder (other than taxes
on or measured solely by the net income of Lender) and any fines, penalties and
interest thereon.
9. BORROWER'S ADDITIONAL COVENANTS. Borrower hereby agrees and
covenants as follows: (i) except for the security interest granted hereby,
Borrower shall keep the Equipment free and clear of any security interest, lien
or encumbrance and shall not sell, lease, assign (by operation of law or
otherwise), exchange or otherwise dispose of any of the Equipment, (ii) at the
request of the Lender in execution of one or more Financing Statements and
continuation statements pursuant to the Uniform Commercial code to establish and
maintain its security interest in the Collateral, in form satisfactory to
Lender, and will pay any filing fees and/or costs with respect thereto and for
lien searches; (iii) Borrower authorizes Lender to file one or more Financing
Statements covering the Collateral without Borrower's signature thereto; (iv)
Borrower will immediately notify Lender in writing of any change in its place(s)
of business or the adoption or change of any trade name or fictitious business
names and will execute any additional Financing Statements as Lender may request
to perfect and maintain its security interest, but such notice shall not be
deemed an authorization to move the Collateral without the prior written consent
of Lender; (vi) Borrower will allow Lender and its representatives free access
to the Collateral at all times during normal business hours, for purposes of
inspection and repair and, following an Event of Default, lender shall have the
right to demonstrate and show the Collateral to others and (vii) Borrower will
furnish to Lender (and will cause any guarantor of Borrower's obligations
hereunder to furnish to Lender) (a) its unaudited quarterly Financial Statements
within thirty (30) days after the end of its first three quarters in each fiscal
year, (b) its certified Financial Statement prepared by an independent certified
public accountant within ninety (90) days after the close of its fiscal year
which shall be prepared in accordance with generally accepted accounting
principles and (c) all other financial information and reports that Lender may
from time to time reasonably request, including income tax returns of Borrower
and any guarantor of Borrower's obligations hereunder.
10. BORROWER'S FAILURE TO PAY TAXES, INSURANCE, ETC. Should Borrower
fail to make any payment or do any act as herein provided (including, but not
limited to, payment of taxes or for insurance). Lender shall have the right, but
not the obligation, and without releasing Borrower from any obligation
hereunder, to make or do the same, and to pay any sum due in connection
therewith or to contest or compromise any encumbrance, charge or lien and in
exercising any such rights, incur any liability and expend whatever amounts in
this absolute discretion it may deem necessary therefor. All sums so incurred or
expended by lender shall be payable by Borrower on demand with interest at the
rate of two (2%) percent per month.
11. CROSS COLLATERALIZATION. Without in any way limited the provisions
of Section 3, as additional collateral security for the Borrowers' obligations
hereunder, Borrower grants to Lender a further security interest in all
machinery, equipment, goods and other collateral covered by any other Loan and
Security Agreement, note and security agreement, other agreement or lease
(collectively the "other agreements") between Borrower and Lender whether such
other agreements are now in existence or hereafter come into existence and
Borrower assigns to Lender as security for its obligations hereunder, all of its
rights, title and interest in and to any surplus money to which Borrower may be
entitled upon the sale of the machinery, equipment, goods and other collateral
covered by such other agreements. Anything above to the contrary notwithstanding
the benefit of the foregoing cross collateralization shall apply for the benefit
of Lender and its assignee holding this Agreement only to the extent that Lender
or such assignee is also the holder of such other agreements or one or more of
them.
12. INDEMNITY. Borrower assumes liability for and agrees to indemnify,
defend, protect, save and keep harmless Lender from and against costs, expenses
and disbursements, including court costs and legal expenses, of whatever kind
and nature, imposed on, incurred by or asserted against Lender (whether or not
also indemnified against by any other person) in any way relating to or arising
out of this Agreement or the manufacture, financing, ownership, delivery,
possession, use, operation, condition or disposition of the Equipment by
Borrower, including, without limitation, any claim alleging latent and other
defects, whether or not discoverable by Lender or Borrower, and any other claim
arising out of strict liability in tort, whether or not in either instance
relating to an event occurring while Borrower remains obligated under this
Agreement, and any claim for patent, trademark or copyright infringement. Each
party agrees to give the other notice of any claim or liability hereby
indemnified against promptly following learning thereof. The fact that a claim
for which Lender is entitled to indemnity under this Section is asserted after
the termination of this Agreement shall not release Borrower from its indemnity
obligations and this covenant of indemnity shall survive the termination of this
Agreement.
13. DEFAULT. The occurrence of any one of the following shall
constitute an Event of Default hereunder: (i) Borrower fails to pay any periodic
installment payment or other amount due hereunder on or before the fifth (5th)
day following the date when the same becomes due and payable; (ii) Borrower
removes, sells, transfers, encumbers, or parts with possession of the Equipment
or any items thereof or attempts to do any of the foregoing; (iii) Borrower
fails to maintain in force the required insurance on the Equipment in compliance
herewith or fails to provide loss payable protection to lender in form
satisfactory to Lender; (iv) any representation or warranty made by Borrower
herein or in any other agreement between the parties or in any statement given
to Lender shall be materially untrue; (v) Borrower shall fail to observe or
perform any of the obligations required to be observed or performed by Borrower
hereunder, or other obligation or indebtedness of Borrower to Lender otherwise
owing or due by Borrower to Lender in any other agreement now or hereafter
executed between the parties hereto, and such failure shall continue uncured for
twenty (20) days after written notice thereof to Borrower; (vi) Borrower shall
(a) fail to pay any indebtedness for borrowed money (other than the Loan) of the
Borrower, or any interest or premium thereon, when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), or (b) fail
to perform or observe any term, covenant, or condition on its part to be
performed or observed under any agreement or instrument relating to such
indebtedness, or if any such indebtedness shall be declared to be due or payable
or required to be prepaid (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof; (vii) if Borrower leases the
premises where the Equipment is located, a breach of such lease by Borrower and
the commencement of an action by the landlord to evict Borrower or to repossess
the premises; (viii) if Borrower sells, leases or disposes of any of its assets
except in the ordinary course of its business and except for the disposition of
any obsolete or retired property not useful to Borrower; (ix) Borrower ceases
doing business as a going concern, makes an assignment for the benefit of
creditors, admits in writing its inability to pay its debts as they become due,
files a voluntary petition in bankruptcy, is adjudicated a bankrupt or an
insolvent, files a petition seeking for itself any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
present or future statue, law or regulation, such proceedings shall not have
been dismissed, or if within sixty (60) days after the appointment without
Borrower's acquiescence of any trustee, custodian, receiver or liquidator of it
or of all or any substantial part of its assets and properties, such appointment
shall to be vacated; (xi) Borrower sells all or substantially all of its assets
or consolidates with or merges into any other entity or Borrower's stockholders
or partners sell all or substantially all of their stock or partnership
interests; or (xii) the death of a guarantor of Borrower's obligations hereunder
or the dissolution or filing of a petition in bankruptcy by or against a
guarantor of Borrower's obligations hereunder.
14. REMEDIES. Upon the occurrence of any Event of Default, Lender shall
have the right to recover from Borrower, as liquidated damages for loss of a
bargain and not as a penalty, a sum equal to the aggregate of the following; (a)
all unpaid periodic installment payments and other sums due under this Agreement
to the date of default plus late charges, if any, (b) the present value (using a
6% per year discount rate) of all remaining periodic installment payments due
under this Agreement and (c) interest at the rate of two percent (2%) per month
on the total of (a) plus (b) from the date of default. In addition, Lender shall
have the right to recover from Borrower any expenses paid or incurred by Lender
in connection with the enforcement of its rights under this Agreement and the
repossession, holding, repair, preparing for sale and subsequent sale, lease or
other disposition of the Collateral including attorneys fees and legal expenses
(collectively "Repossession Expenses"). BORROWER AND LENDER WAIVE ANY AND ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PRECEEDING BASED UPON THIS AGREEMENT.
The Lender shall have all the rights and remedies of a Secured Party
under the Uniform Commercial Code and Lender is hereby authorized and empowered,
with the aid and assistance of any person or persons, to enter any premises
where the Collateral or any part thereof is, or may be, placed, and to assemble
and/or remove same and/or to render it unusable and sell and dispose of such
Collateral at one or more public or private sales upon at lease seven (7) days'
written notice to Borrower of such sale. The proceeds of each such sale shall be
applied by the Lender toward the payment of the repossession Expenses, the
liquidated damages specified above and other indebtedness secured hereby. Should
the proceeds of any such sale be insufficient to fully pay all the items above
mentioned Borrower hereby covenants and agrees to pay any deficiency to the
Lender. If Lender employs counsel for the purpose of effecting collection of any
monies due hereunder (whether or not Lender has retaken the Collateral or any
part thereof) or for the purpose of recovering the Collateral, or for the
purpose of protecting Lender's interest because of any default of Borrower,
Borrower agrees to pay reasonable attorney's fees. The Lender may require
Borrower to assemble the Collateral and make it available to Lender at a place
to be designated by lender which is reasonably convenient to both parties. All
rights and remedies hereunder are cumulative and not exclusive and a waiver by
lender of any breach by Borrower in the terms, covenants, and conditions hereof
shall not constitute a waiver of future breaches or cumulative and not exclusive
and a waiver by Lender of any breach by Borrower of the terms, covenants, and
conditions hereof shall not constitute a waiver of future breaches or defaults;
and no failure or delay on the part of Lender in exercising any of its options,
powers, rights or remedies, or partial or single exercise thereof, shall
constitute a waiver thereof.
If any court of competent jurisdiction determines that any provision of
this Section 14 is invalid or unenforceable in any jurisdiction, in whole or in
part, such determination, as to such jurisdiction, shall not prohibit Lender
from enforcing its rights and establishing its damages sustained as the result
of any breach of this Agreement in accordance with the laws of such
jurisdiction.
15. ASSIGNMENT. Lender may assign or otherwise transfer this Agreement
and any and all of Lender's right, title and interest hereunder and in the
Collateral including the right to receive all amounts payable hereunder or grant
participations therein without Borrower's consent. In the event of such
assignment, the right of the assignee to receive all amounts payable hereunder
as well as any other right of the assignee shall not be subject to any defense,
set-off or counterclaim which Borrower may have against Lender although any
claim Borrower may have against Lender shall be preserved and may be separately
pursued against Lender. Upon Lender giving notice to Borrower of any such
assignment, Borrower shall promptly acknowledge its obligations hereunder to
such assignee, and shall comply with the written directions or demands of such
assignee and shall make all payments due hereunder as such assignee may direct
in writing. Following any such assignment the term "Lender" shall be deemed to
include or refer to lender's assignees, but no such assignee shall be deemed to
assume any obligation or duty imposed upon Lender hereunder and Borrower shall
look only to Lender for performance thereof. As used in this Section 15,
"assign" shall be deemed to include a pledge, sale of, or grant of a mortgage
on, or a security interest in, any of the Collateral or this Agreement by lender
and the term "assignee" shall be deemed to refer to the recipient of such
pledge, sale, mortgage or security interest. This Agreement and Borrower's
rights and obligations herein shall not be transferable or assignable by
Borrower without the Lender's express prior written consent and any such
purported assignment by Borrower without such consent shall be null and void.
16. GENERAL PROVISION. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF CONNECTICUT. This Agreement may not be changed, modified or
discharged on behalf of Lender, in whole or part, and no right of Lender may be
waived except by a writing signed by a duty authorized officer of Lender. The
Lender is authorized and empowered to date this Agreement and the Schedule(s)
thereto and to fill in blank spaces in accordance with the terms of this
transaction, including, but not limited to inserting serial numbers and
equipment descriptions in Schedule A and the assignment of an account number.
Notices hereunder shall be in writing and shall be deemed given when personally
delivered or when sent by facsimile to a party's facsimile number or three days
after having been mailed to the other party at the address specified above or
such new address as to which a party may advise the other. Forbearance or
indulgence by Lender in any regard shall not constitute a waiver of the covenant
or condition to be performed by Borrower to which the same may apply. The
section captions are for convenience and are not a part of the Agreement. This
Agreement shall be binding upon and inure to the benefit of the heirs,
executors, administrators, successors and permitted assigns of the parties. 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 hereof. THIS AGREEMENT AND ANY OTHER WRITTEN AGREEMENTS EXECUTED
SIMULTANEOUSLY HEREWITH SUPERSEDE ANY PRIOR PROPOSAL LETTERS, COMMITMENT LETTERS
OR NEGOTIATIONS AND THERE ARE NO ORAL COVENANTS OR AGREEMENTS. This Agreement
shall not be binding on Lender until accepted and executed on behalf of Lender
at its Litchfield Connecticut office.
(2)
CORPORATE GUARANTEE
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WHEREAS, the financial and business affairs of the undersigned corporation (the
"undersigned") are closely associated with and connected with those of SMA
Video, Inc. (the "Obligor"), and the continued successful operations of the
Obligor will directly benefit the undersigned; and
WHEREAS, the Obligor is desirous of having Independent Resources, Inc. ("I.R.")
finance certain equipment for the Obligor and I.R. is unwilling to do so unless
the undersigned guarantees the obligations of the Obligor, as hereafter set
forth:
NOW THEREFORE, in consideration of the foregoing and in order to induce I.R. to
accept and enter into a Loan and Security Agreement dated September 12, 1996
(the "Agreement") with the Obligor, the undersigned agrees as follows:
1. The undersigned unconditionally and irrevocably guarantees to I.R. the
prompt payment in full of all indebtedness and obligations of every kind and
nature now and hereafter owing by the Obligor to I.R. under the Agreement as
well as any other obligations and indebtedness which the Obligor now owes or
may hereafter incur to I.R. under any other agreements or by reason of any
financial accommodation including, without limitation, leases of personal
property and/or notes and security agreements and/or loan and security
agreements between I.R. and the Obligor, now existing or made after the date
hereof whether or not presently contemplated.
2. The undersigned unconditionally and irrevocably guarantees to I.R. the
prompt, full and faithful performance and discharge by the Obligor of each
and every term, condition and warranty to be performed by the Obligor under
the Agreement or any modifications or amendments thereof or under any other
documents or instruments evidencing any other financial accommodation
between I.R. and the Obligor.
3. The undersigned unconditionally and irrevocably agrees to reimburse I.R. for
all expenses, costs and reasonable attorney's fees incurred by it in
enforcing any of its rights and remedies against the Obligor and/or the
undersigned or any other person or concern liable thereon.
4. The undersigned agrees to pay all of the foregoing amounts and perform all
of the foregoing obligations notwithstanding that any part or all of the
Agreement or any other agreements or financial accommodation shall be void
or voidable or unenforceable as against the Obligor or any of the Obligor's
creditors, including a trustee in bankruptcy or receiver of Obligor, by
reason of any fact or circumstance, including, without limitation, failure
of any person to file any document or to take any other action to make any
of the Agreement or any other agreement or instrument enforceable in
accordance with their respective terms. The liability of the undersigned
shall be an absolute and primary obligation of payment and I.R. shall not be
required to first (i) proceed against the Obligor; (ii) proceed against or
exhaust any security held from the Obligor or any guarantor; or (iii) pursue
any other remedies it may have, including remedies against other guarantors.
5. The undersigned waives notice of acceptance hereof and all notices and
demands of any kind to which the undersigned may be entitled, including,
without limitation, demands of payment and notices of nonpayment, default,
protest and dishonor to the undersigned or the Obligor or to the makers or
endorsers of any notes or other instruments for which the undersigned may be
liable hereunder. The undersigned further waives notice of and hereby
consents to any agreement or arrangement for payment, extension,
subordination, moratoria, composition, discharge or release of the whole or
any part of the Obligor's obligations under the Agreement or any other
agreement or instrument, the release of other guarantors or the compromise
of their obligations or the change in location release of any equipment or
collateral or the taking of a security interest in any additional or
substituted equipment or collateral; and none of the same shall in any way
impair the undersigned's liability hereunder. I.R. shall be under no
obligation to insure, protect or otherwise preserve the equipment or any
other collateral which may secure any indebtedness guaranteed hereunder.
6. All sums at any time to the undersigned's credit and any of the
undersigned's property at any time in Ir.'s possession may be held by I.R.
as security for all of obligations hereunder.
7. This guaranty will continue to be effective or will be reinstated, as the
case may be, if at any time any payment made to IR. in rescinded or must be
returned upon the insolvency, bankruptcy, or reorganization of the Obligor,
or otherwise, as if such payment had not been made. The undersigned
expressly waives any and all rights of subrogation, reimbursement,
indemnity, exoneration or any other claim which the undersigned may now or
hereafter have against the Obligor for the obligations guaranteed hereunder
or against or with respect to the property of the Obligor arising from the
existence or performance of this guaranty.
8. This guaranty is a continuing guaranty and shall continue in full force and
effect until terminated by the actual receipt by IR. or its assignee of
written notice of termination from the undersigned. Such termination shall
be applicable only to transactions having their inception thereafter, and
rights and obligations arising out of transactions having their inception
prior to receipt of such termination shall not be affected.
9. THE UNDERSIGNED WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED HEREON. This guaranty is assignable by I.R., in whole or
part, and may be subsequently further assigned by such assignees, all
without notice to the undersigned. Any assignee of I.R. and all subsequent
assignees shall have all of the rights of I.R. hereunder and may enforce
this guaranty with the same force and effect as if such guaranty were given
to such assignee in the first instance. The invalidity, illegality or
unenforceability of any provision of this guaranty shall not affect the
validity, legality or enforceability of any of its other provisions. LEGAL
RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF CONNECTICUT. This guaranty shall be binding on the
undersigned and its successors and assigns.
10. The undersigned acknowledges the accuracy of the facts set forth in the
recitals hereto and warrants and represents that this guaranty is not in
contravention of its charter, certificate of incorporation, by-laws and
applicable law and that the execution and delivery of this guaranty and the
performance thereof has been duly authorized by its Board of Directors.
Executed this 12th day of September, 1996 FLY FILMS, INC.
BY: /s/ illegible
----------------------------------
TITLE: illegible
-------------------------------
Affix Seal
CERTIFICATE OF SECRETARY
------------------------
The undersigned does hereby certify that he/she is Secretary of Fly Films, Inc.
(hereafter call the "Corporation") and that the following is a true, complete
and correct copy of resolutions duly adopted by the Board of Directors of the
Corporation at a meeting thereof duly called and held on September 12, 1996, at
which a quorum was present and acting throughout, and that such resolutions are
in full force and effect:
"Whereas, the financial affairs of the Corporation are intimately connected to
those of SMA Video, Inc. (the "Obligor"); and
Whereas, the financial success of the Obligor will directly benefit the
Corporation; and
Whereas, the Obligor has requested that the Corporation guaranty its present and
future obligations to INDEPENDENT RESOURCES, INC. ("I.R."); now therefore, it is
RESOLVED, that the officers of the Corporation, and each of them singly, hereby
are authorized to execute and deliver to I.R. an unconditional guaranty by the
Corporation of the obligations of the Obligor to I.R., either in the form
presented to this meeting or with such changes therein as the officer executing
the same may approve, his approval and authority to be conclusively evidenced
by his execution thereof, such execution to be valid and binding on the
Corporation with or without the corporate seal of the Corporation."
The undersigned further certifies that the persons whose names, titles and
signatures appear below are the duly elected (or appointed), qualified and
acting officers of the Corporation and hold on the date of this Certificate the
offices set forth opposite their respective names and the signatures appearing
opposite their respective names are the genuine signatures of such persons.
NAME OF OFFICER TITLE OF OFFICER SIGNATURE OF OFFICER
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ President /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------- ------------------------ -------------------------
----------------------- ------------------------ -------------------------
----------------------- ------------------------ -------------------------
----------------------- ------------------------ -------------------------
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said
Corporation this 12th day of September, 1996.
/s/ Illegible
-------------------------------------------
Secretary
*Above Certification Confirmed
-------------------------------------------
Other Officer (Title)
(Corporate Seal)
*In the case where the Secretary is authorized to sign the guaranty Agreements,
by this resolution, and does or will execute the same, this Certificate must
also be signed by a second officer of the Corporation.
CORPORATE GUARANTEE
-------------------
WHEREAS, the financial and business affairs of the undersigned corporation (the
"undersigned") are closely associated with and connected with those of SMA
Video, Inc. (the "Obligor"), and the continued successful operations of the
Obligor will directly benefit the undersigned; and
WHEREAS, the Obligor is desirous of having Independent Resources, Inc. ("I.R.")
finance certain equipment for the Obligor and I.R. is unwilling to do so unless
the undersigned guarantees the obligations of the Obligor, as hereafter set
forth:
NOW THEREFORE, in consideration of the foregoing and in order to induce I.R. to
accept and enter into a Loan and Security Agreement dated September 12, 1996
(the "Agreement") with the Obligor, the undersigned agrees as follows:
1. The undersigned unconditionally and irrevocably guarantees to I.R. the
prompt payment in full of all indebtedness and obligations of every kind and
nature now and hereafter owing by the Obligor to I.R. under the Agreement as
well as any other obligations and indebtedness which the Obligor now owes or
may hereafter incur to I.R. under any other agreements or by reason of any
financial accommodation including, without limitation, leases of personal
property and/or notes and security agreements and/or loan and security
agreements between I.R. and the Obligor, now existing or made after the date
hereof whether or not presently contemplated.
2. The undersigned unconditionally and irrevocably guarantees to I.R. the
prompt, full and faithful performance and discharge by the Obligor of each
and every term, condition and warranty to be performed by the Obligor under
the Agreement or any modifications or amendments thereof or under any other
documents or instruments evidencing any other financial accommodation
between I.R. and the Obligor.
3. The undersigned unconditionally and irrevocably agrees to reimburse I.R. for
all expenses, costs and reasonable attorney's fees incurred by it in
enforcing any of its rights and remedies against the Obligor and/or the
undersigned or any other person or concern liable thereon.
4. The undersigned agrees to pay all of the foregoing amounts and perform all
of the foregoing obligations notwithstanding that any part or all of the
Agreement or any other agreements or financial accommodation shall be void
or voidable or unenforceable as against the Obligor or any of the Obligor's
creditors, including a trustee in bankruptcy or receiver of Obligor, by
reason of any fact or circumstance, including, without limitation, failure
of any person to file any document or to take any other action to make any
of the Agreement or any other agreement or instrument enforceable in
accordance with their respective terms. The liability of the undersigned
shall be an absolute and primary obligation of payment and I.R. shall not be
required to first (i) proceed against the Obligor; (ii) proceed against or
exhaust any security held from the Obligor or any guarantor; or (iii) pursue
any other remedies it may have, including remedies against other guarantors.
5. The undersigned waives notice of acceptance hereof and all notices and
demands of any kind to which the undersigned may be entitled, including,
without limitation, demands of payment and notices of nonpayment, default,
protest and dishonor to the undersigned or the Obligor or to the makers or
endorsers of any notes or other instruments for which the undersigned may be
liable hereunder. The undersigned further waives notice of and hereby
consents to any agreement or arrangement for payment, extension,
subordination, moratoria, composition, discharge or release of the whole or
any part of the Obligor's obligations under the Agreement or any other
agreement or instrument, the release of other guarantors or the compromise
of their obligations or the change in location release of any equipment or
collateral or the taking of a security interest in any additional or
substituted equipment or collateral; and none of the same shall in any way
impair the undersigned's liability hereunder. I.R. shall be under no
obligation to insure, protect or otherwise preserve the equipment or any
other collateral which may secure any indebtedness guaranteed hereunder.
6. All sums at any time to the undersigned's credit and any of the
undersigned's property at any time in I.R.'s possession may be held by I.R.
as security for all of obligations hereunder.
7. This guaranty will continue to be effective or will be reinstated, as the
case may be, if at any time any payment made to I.R. is rescinded or must be
returned upon the insolvency, bankruptcy, or reorganization of the Obligor,
or otherwise, as if such payment had not been made. The undersigned
expressly waives any and all rights of subrogation, reimbursement,
indemnity, exoneration or any other claim which the undersigned may now or
hereafter have against the Obligor for the obligations guaranteed hereunder
or against or with respect to the property of the Obligor arising from the
existence or performance of this guaranty.
8. This guaranty is a continuing guaranty and shall continue in full force and
effect until terminated by the actual receipt by I.R. or its assignee of
written notice of termination from the undersigned. Such termination shall
be applicable only to transactions having their inception thereafter, and
rights and obligations arising out of transactions having their inception
prior to receipt of such termination shall not be affected.
9. THE UNDERSIGNED WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED HEREON. This guaranty is assignable by I.R., in whole or
part, and may be subsequently further assigned by such assignees, all
without notice to the undersigned. Any assignee of I.R. and all subsequent
assignees shall have all of the rights of I.R. hereunder and may enforce
this guaranty with the same force and effect as if such guaranty were given
to such assignee in the first instance. The invalidity, illegality or
unenforceability of any provision of this guaranty shall not affect the
validity, legality or enforceability of any of its other provisions. LEGAL
RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF CONNECTICUT. This guaranty shall be binding on the
undersigned and its successors and assigns.
10. The undersigned acknowledges the accuracy of the facts set forth in the
recitals hereto and warrants and represents that this guaranty is not in
contravention of its charter, certificate of incorporation, by-laws and
applicable law and that the execution and delivery of this guaranty and the
performance thereof has been duly authorized by its Board of Directors.
Executed this 12th day of September, 1996
SMA REAL TIME, INC.
BY: /s/ Illegible
-------------------------------
Affix Seal
TITLE: President
----------------------------
CERTIFICATE OF SECRETARY
------------------------
The undersigned does hereby certify that he/she is the Secretary of SMA Real
Time, Inc. (hereafter call the "Corporation") and that the following is a true,
complete and correct copy of resolutions duly adopted by the Board of Directors
of the Corporation at a meeting thereof duly called and held on September 12,
1996, at which a quorum was present and acting throughout, and that such
resolutions are in full force and effect:
"Whereas, the financial affairs of the Corporation are intimately connected to
those of SMA Video, Inc. (the "Obligor"); and
Whereas, the financial success of the Obligor will directly benefit the
Corporation; and
Whereas, the Obligor has requested that the Corporation guaranty its present and
future obligations to INDEPENDENT RESOURCES, INC. ("I.R."); now therefore, it is
RESOLVED, that the officers of the Corporation, and each of them singly, hereby
are authorized to execute and deliver to I.R. an unconditional guaranty by the
Corporation of the obligations of the Obligor to I.R., either in the form
presented to this meeting or with such changes therein as the officer executing
the same may approve, his approval and authority to be conclusively evidenced
by his execution thereof, such execution to be valid and binding on the
Corporation with or without the corporate seal of the Corporation."
The undersigned further certifies that the persons whose names, titles and
signatures appear below are the duly elected (or appointed), qualified and
acting officers of the Corporation and hold on the date of this Certificate the
offices set forth opposite their respective names and the signatures appearing
opposite their respective names are the genuine signatures of such persons.
NAME OF OFFICER TITLE OF OFFICER SIGNATURE OF OFFICER
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ President /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------- ------------------------ -------------------------
----------------------- ------------------------ -------------------------
----------------------- ------------------------ -------------------------
----------------------- ------------------------ -------------------------
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said
Corporation this 12th day of September, 1996.
/s/ Illegible
-------------------------------------------
Secretary
*Above Certification Confirmed
-------------------------------------------
Other Officer (Title)
(Corporate Seal)
*In the case where the Secretary is authorized to sign the guaranty by this
resolution, and does or will execute the same, this Certificate must also be
signed by a second officer of the Corporation.
CORPORATE GUARANTEE
-------------------
WHEREAS, the financial and business affairs of the undersigned corporation (the
"undersigned") are closely associated with and connected with those of SMA
Video, Inc. (the "Obligor"), and the continued successful operations of the
Obligor will directly benefit the undersigned; and
WHEREAS, the Obligor is desirous of having Independent Resources, Inc. ("I.R.")
finance certain equipment for the Obligor and I.R. is unwilling to do so unless
the undersigned guarantees the obligations of the Obligor, as hereafter set
forth:
NOW THEREFORE, in consideration of the foregoing and in order to induce I.R. to
accept and enter into a Loan and Security Agreement dated September 12, 1996
(the "Agreement") with the Obligor, the undersigned agrees as follows:
1. The undersigned unconditionally and irrevocably guarantees to I.R. the
prompt payment in full of all indebtedness and obligations of every kind and
nature now and hereafter owing by the Obligor to I.R. under the Agreement as
well as any other obligations and indebtedness which the Obligor now owes or
may hereafter incur to I.R. under any other agreements or by reason of any
financial accommodation including, without limitation, leases of personal
property and/or notes and security agreements and/or loan and security
agreements between I.R. and the Obligor, now existing or made after the date
hereof whether or not presently contemplated.
2. The undersigned unconditionally and irrevocably guarantees to I.R. the
prompt, full and faithful performance and discharge by the Obligor of each
and every term, condition and warranty to be performed by the Obligor under
the Agreement or any modifications or amendments thereof or under any other
documents or instruments evidencing any other financial accommodation
between I.R. and the Obligor.
3. The undersigned unconditionally and irrevocably agrees to reimburse I.R. for
all expenses, costs and reasonable attorney's fees incurred by it in
enforcing any of its rights and remedies against the Obligor and/or the
undersigned or any other person or concern liable thereon.
4. The undersigned agrees to pay all of the foregoing amounts and perform all
of the foregoing obligations notwithstanding that any part or all of the
Agreement or any other agreements or financial accommodation shall be void
or voidable or unenforceable as against the Obligor or any of the Obligor's
creditors, including a trustee in bankruptcy or receiver of Obligor, by
reason of any fact or circumstance, including, without limitation, failure
of any person to file any document or to take any other action to make any
of the Agreement or any other agreement or instrument enforceable in
accordance with their respective terms. The liability of the undersigned
shall be an absolute and primary obligation of payment and I.R. shall not be
required to first (i) proceed against the Obligor; (ii) proceed against or
exhaust any security held from the Obligor or any guarantor; or (iii) pursue
any other remedies it may have, including remedies against other guarantors.
5. The undersigned waives notice of acceptance hereof and all notices and
demands of any kind to which the undersigned may be entitled, including,
without limitation, demands of payment and notices of nonpayment, default,
protest and dishonor to the undersigned or the Obligor or to the makers or
endorsers of any notes or other instruments for which the undersigned may be
liable hereunder. The undersigned further waives notice of and hereby
consents to any agreement or arrangement for payment, extension,
subordination, moratoria, composition, discharge or release of the whole or
any part of the Obligor's obligations under the Agreement or any other
agreement or instrument, the release of other guarantors or the compromise
of their obligations or the change in location release of any equipment or
collateral or the taking of a security interest in any additional or
substituted equipment or collateral; and none of the same shall in any way
impair the undersigned's liability hereunder. I.R. shall be under no
obligation to insure, protect or otherwise preserve the equipment or any
other collateral which may secure any indebtedness guaranteed hereunder.
6. All sums at any time to the undersigned's credit and any of the
undersigned's property at any time in Ir.'s possession may be held by I.R.
as security for all of obligations hereunder.
7. This guaranty will continue to be effective or will be reinstated, as the
case may be, if at any time any payment made to IR. in rescinded or must be
returned upon the insolvency, bankruptcy, or reorganization of the Obligor,
or otherwise, as it such payment had not been made. The undersigned
expressly waives any and all rights of subrogation, reimbursement,
indemnity, exoneration or any other claim which the undersigned may now or
hereafter have against the Obligor for the obligations guaranteed hereunder
or against or with respect to the property of the Obligor arising from the
existence or performance of this guaranty.
8. This guaranty is a continuing guaranty and shall continue in full force and
effect until terminated by the actual receipt by IR. or its assignee of
written notice of termination from the undersigned. Such termination shall
be applicable only to transactions having their inception thereafter, and
rights and obligations arising out of transactions having their inception
prior to receipt of such termination shall not be affected.
9. THE UNDERSIGNED WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED HEREON. This guaranty is assignable by I.R., in whole or
part, and may be subsequently further assigned by such assignees, all
without notice to the undersigned. Any assignee of I.R. and all subsequent
assignees shall have all of the rights of I.R. hereunder and may enforce
this guaranty with the same force and effect as if such guaranty were given
to such assignee in the first instance. The invalidity, illegality or
unenforceability of any provision of this guaranty shall not affect the
validity, legality or enforceability of any of its other provisions. LEGAL
RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF CONNECTICUT. This guaranty shall be binding on the
undersigned and its successors and assigns.
10. The undersigned acknowledges the accuracy of the facts set forth in the
recitals hereto and warrants and represents that this guaranty is not in
contravention of its charter, certificate of incorporation, by-laws and
applicable law and that the execution and delivery of this guaranty and the
performance thereof has been duly authorized by its Board of Directors.
Executed this 12th day of September, 1996
SMA VISUAL EFFECTS CORP.
BY: /s/ illegible
-------------------------------------
Affix Seal
TITLE: President
----------------------------------
INDIVIDUAL GUARANTY
-------------------
1. To induce Independent Resources, Inc. (herein called "I.R.") to accept and
enter into a Loan and Security Agreement dated September 12, 1996 (herein
collectively called the "Agreements") with SMA Video, Inc. (herein called
the "Obligor"), the undersigned:
(a) Unconditionally and irrevocably guarantees to I.R. the prompt
payment in full of all indebtedness and obligations of every kind
and nature now and hereafter owing by the Obligor to I.R. under the
Agreements as well as any other obligations and indebtedness which
the Obligor now owes or may hereafter incur to I.R. under any other
agreements or by reason of any financial accommodation including,
without limitation, leases of personal property and/or notes and
security agreements between I.R. and the Obligor whether now
existing or made after the date hereof, whether or not presently
contemplated;
(b) Unconditionally and irrevocably guarantees to I.R. the prompt, full
and faithful performance and discharge by the Obligor of each and
every term, condition, agreement, and warranty to be performed by
the Obligor under the Agreements or any modifications or amendments
thereof or under any other documents or instruments evidencing any
other financial accommodation between I.R. and the Obligor; and
(c) Unconditionally and irrevocably agrees to reimburse I.R. for all
expenses, costs and reasonable attorney's fees incurred by it in
enforcing any of its rights and remedies against the Obligor and/or
the undersigned or any other person or concern liable thereon.
2. The undersigned agrees to pay all of the foregoing amounts and perform all
of the foregoing obligations notwithstanding that any part or all of the
Agreements or any other agreements or financial accommodation shall be void
or voidable or unenforceable as against the Obligor or any of the Obligor's
creditors, including a trustee in bankruptcy or receiver of Obligor, by
reason of any fact or circumstance, including, without limitation, failure
of any person to file any document or to take any other action to make any
of the Agreements or any financial accommodation enforceable in accordance
with their respective terms. The liability of the undersigned shall be an
absolute and primary obligation of payment and I.R. shall not be required to
first (i) proceed against the Obligor; (ii) proceed against or exhaust any
security held from the Obligor or any guarantor; or (iii) pursue any other
remedies it may have, including remedies against other guarantors.
3. The undersigned waives notice of acceptance hereof, and of all notices and
demands of any kind to which the undersigned may be entitled, including,
without limitation, demands of payment and notices of nonpayment, default,
protest and dishonor to the undersigned or the Obligor or to the makers or
endorsers of any notes or other instruments for which the undersigned may be
liable hereunder. The undersigned further waives notice of and hereby
consents to any agreement or arrangement for payment, extension,
subordination, moratoria, composition, discharge or release of the whole or
any part of the Obligor's obligations under the Agreements or any other
agreement or financial accommodation, the release of other guarantors or the
compromise of their obligations and the change in location or release of any
equipment or collateral or the taking of a security interest in any
additional or substituted equipment or collateral; and none of the same
shall in any way impair the undersigned's liability hereunder. I.R. shall be
under no obligation to insure, protect or otherwise preserve the equipment
or any other collateral which may secure any indebtedness guaranteed
hereunder.
4. All sums at any time to the undersigned's credit and any of the
undersigned's property at any time in I.R.'s possession may be held by I.R.
as security for all of undersigned's obligations hereunder.
5. This Guaranty will continue to be effective or will be reinstated, as the
case may be, if at any time any payment made to I.R. is rescinded or must be
returned upon the insolvency, bankruptcy, or reorganization of the Obligor,
or otherwise, as if such payment had not been made. The undersigned
expressly waives any and all rights of subrogation, reimbursement,
indemnity, exoneration or any other claim which the undersigned may now or
hereafter have against the Obligor for the obligations guaranteed hereunder
or against or with respect to the property of the Obligor arising from the
existence or performance of this Guaranty.
6. This guaranty shall not be discharged or otherwise affected by the death,
incompetence or insolvency of the undersigned and shall be binding on the
undersigned's heirs, executors and administrators.
7. This guaranty is a continuing guaranty and shall continue in full force and
effect until terminated by the actual receipt by I.R. or its assignee of
written notice of termination from the undersigned. Such termination shall
be applicable only to transactions having their inception thereafter, and
rights and obligations arising out of transactions having their inception
prior to receipt of such termination shall not be affected.
8. The undersigned waives all right to a trial by jury in any action or
proceeding based hereon. This guaranty is assignable by I.R., in whole or
part, and may be subsequently further assigned by such assignees, all
without notice to the undersigned. Any assignee of I.R. and all subsequent
assignees shall have all of the rights of I.R. hereunder and may enforce
this guaranty with the same force and effect as if such guaranty were given
to such assignee in the first instance. The invalidity, illegality or
unenforceability of any provision of this guaranty shall not affect the
validity, legality or enforceability of any of its other provisions. Legal
rights and obligations hereunder shall be determined in accordance with the
laws of the State of Connecticut.
Executed this 12th day of September, 1996.
/s/ illegible
----------------------------------
WITNESS /s/ ▇▇▇▇▇ Satin
---------------------------------
▇▇▇▇▇ Satin
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SS# ###-##-####
INDIVIDUAL GUARANTY
-------------------
1. To induce Independent Resources, Inc. (herein called "I.R.") to accept and
enter into a Loan and Security Agreement dated September 12, 1996 (herein
collectively called the "Agreements") with SMA Video, Inc. (herein called
the "Obligor"), the undersigned:
(a) Unconditionally and irrevocably guarantees to I.R. the prompt
payment in full of all indebtedness and obligations of every kind
and nature now and hereafter owing by the Obligor to I.R. under the
Agreements as well as any other obligations and indebtedness which
the Obligor now owes or may hereafter incur to I.R. under any other
agreements or by reason of any financial accommodation including,
without limitation, leases of personal property and/or notes and
security agreements between I.R. and the Obligor whether now
existing or made after the date hereof, whether or not presently
contemplated;
(b) Unconditionally and irrevocably guarantees to I.R. the prompt, full
and faithful performance and discharge by the Obligor of each and
every term, condition, agreement, and warranty to be performed by
the Obligor under the Agreements or any modifications or amendments
thereof or under any other documents or instruments evidencing any
other financial accommodation between I.R. and the Obligor; and
(c) Unconditionally and irrevocably agrees to reimburse I.R. for all
expenses, costs and reasonable attorney's fees incurred by it in
enforcing any of its rights and remedies against the Obligor and/or
the undersigned or any other person or concern liable thereon.
2. The undersigned agrees to pay all of the foregoing amounts and perform all
of the foregoing obligations notwithstanding that any part or all of the
Agreements or any other agreements or financial accommodation shall be void
or voidable or unenforceable as against the Obligor or any of the Obligor's
creditors, including a trustee in bankruptcy or receiver of Obligor, by
reason of any fact or circumstance, including, without limitation, failure
of any person to file any document or to take any other action to make any
of the Agreements or any financial accommodation enforceable in accordance
with their respective terms. The liability of the undersigned shall be an
absolute and primary obligation of payment and I.R. shall not be required to
first (i) proceed against the Obligor; (ii) proceed against or exhaust any
security held from the Obligor or any guarantor; or (iii) pursue any other
remedies it may have, including remedies against other guarantors.
3. The undersigned waives notice of acceptance hereof, and of all notices and
demands of any kind to which the undersigned may be entitled, including,
without limitation, demands of payment and notices of nonpayment, default,
protest and dishonor to the undersigned or the Obligor or to the makers or
endorsers of any notes or other instruments for which the undersigned may be
liable hereunder. The undersigned further waives notice of and hereby
consents to any agreement or arrangement for payment, extension,
subordination, moratoria, composition, discharge or release of the whole or
any part of the Obligor's obligations under the Agreements or any other
agreement or financial accommodation, the release of other guarantors or the
compromise of their obligations and the change in location or release of any
equipment or collateral or the taking of a security interest in any
additional or substituted equipment or collateral; and none of the same
shall in any way impair the undersigned's liability hereunder. I.R. shall be
under no obligation to insure, protect or otherwise preserve the equipment
or any other collateral which may secure any indebtedness guaranteed
hereunder.
4. All sums at any time to the undersigned's credit and any of the
undersigned's property at any time in I.R.'s possession may be held by I.R.
as security for all of undersigned's obligations hereunder.
5. This Guaranty will continue to be effective or will be reinstated, as the
case may be, if at any time any payment made to I.R. is rescinded or must be
returned upon the insolvency, bankruptcy, or reorganization of the Obligor,
or otherwise, as if such payment had not been made. The undersigned
expressly waives any and all rights of subrogation, reimbursement,
indemnity, exoneration or any other claim which the undersigned may now or
hereafter have against the Obligor for the obligations guaranteed hereunder
or against or with respect to the property of the Obligor arising from the
existence or performance of this Guaranty.
6. This guaranty shall not be discharged or otherwise affected by the death,
incompetence or insolvency of the undersigned and shall be binding on the
undersigned's heirs, executors and administrators.
7. This guaranty is a continuing guaranty and shall continue in full force and
effect until terminated by the actual receipt by I.R. or its assignee of
written notice of termination from the undersigned. Such termination shall
be applicable only to transactions having their inception thereafter, and
rights and obligations arising out of transactions having their inception
prior to receipt of such termination shall not be affected.
8. The undersigned waives all right to a trial by jury in any action or
proceeding based hereon. This guaranty is assignable by I.R., in whole or
part, and may be subsequently further assigned by such assignees, all
without notice to the undersigned. Any assignee of I.R. and all subsequent
assignees shall have all of the rights of I.R. hereunder and may enforce
this guaranty with the same force and effect as if such guaranty were given
to such assignee in the first instance. The invalidity, illegality or
unenforceability of any provision of this guaranty shall not affect the
validity, legality or enforceability of any of its other provisions. Legal
rights and obligations hereunder shall be determined in accordance with the
laws of the State of Connecticut.
Executed this 12th day of September, 1996.
/s/ illegible
-------------------------------------
WITNESS
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SS# ###-##-####
CERTIFICATE OF SECRETARY
------------------------
The undersigned does hereby certify that he/she is Secretary of SMA
Visual Effects Corp. (hereafter called the "Corporation") and that the
following is a true, complete and correct copy of resolutions duly adopted by
the Board of Directors of the Corporation at a meeting thereof duly called and
held on September 12, 1996, at which a quorum was present and acting
throughout, and that such resolutions are in full force and effect:
"Whereas, the financial affairs of the Corporation are intimately connected to
those of SMA Video, Inc. (the "Obligor"); and
Whereas, the financial success of the Obligor will directly benefit the
Corporation; and
Whereas, the Obligor has requested that the Corporation guaranty its present and
future obligations to INDEPENDENT RESOURCES, INC. ("I.R"); now therefore, it is
RESOLVED, that the officers of the Corporation, and each of them singly, hereby
are authorized to execute and deliver to I.R. an unconditional guaranty by the
Corporation of the obligations of the Obligor to I.R., either in the form
presented to this meeting or with such changes therein as the officer executing
the same may approve, his approval and authority to be conclusively evidenced
by his execution thereof, such execution to be valid and binding on the
Corporation with or without the corporate seal of the Corporation."
The undersigned further certifies that the persons whose names, titles and
signatures appear below are the duly elected (or appointed), qualified and
acting officers of the Corporation and hold on the date of this Certificate the
offices set forth opposite their respective names and the signatures appearing
opposite their respective names are the genuine signatures of such persons.
NAME OF OFFICER TITLE OF OFFICER SIGNATURE OF OFFICER
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ President /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------- ------------------------ -------------------------
----------------------- ------------------------ -------------------------
----------------------- ------------------------ -------------------------
----------------------- ------------------------ -------------------------
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said
Corporation this 12th day of September, 1996.
/s/ illegible
-------------------------------------------
Secretary
*Above Certification Confirmed
-------------------------------------------
Other Officer (Title)
(Corporate Seal)
*In the case where the Secretary is authorized to sign the guaranty by
this resolution and does or will execute the same, this Certificate must also
be signed by a second officer of the Corporation.
September 12, 1996
SMA Video, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen and Madams:
As you are aware, Independent Resources, Inc. requires the following insurance
coverage with companies and in form satisfactory to it as one of the conditions
of its entering into the proposed Loan and Security Agreement #SMA0001 with
respect to its contemplated equipment financing for your Company:
1. Insurance against loss, damage, destruction or theft of the Equipment, with
extended coverage, with loss payable solely to INDEPENDENT RESOURCES, INC.
AND OR ITS ASSIGNS in the amount equal to not less than the Equipment's full
replacement value. The amount initially required is $995,000.00.
2. $5,000,000.00 combined single limit for general liability insurance written
by an insurance carrier rated A+VIII by A.M. Best Company with respect to
the Equipment, naming INDEPENDENT RESOURCES, INC. AND/OR ITS ASSIGNS as
Additional Insured.
3. The policies must provide that they will not be canceled or altered without
thirty (30) days prior written notice to INDEPENDENT RESOURCES, INC. AND/OR
ITS ASSIGNS. Notices to Independent Resources, Inc. are to be sent to ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ until further notice to the
insurance carrier. The policies insuring against loss, damage, destruction
or theft must provide that the coverage will not be invalidated against
INDEPENDENT RESOURCES, INC. AND/OR ITS ASSIGNS because of any violation of
any condition or warranty contained in any policy or application therefore
by the insured or others or by reason of any act of the insured.
4. Insurance must be effective and Independent Resources, Inc. must receive
duplicates of policies or satisfactory certificates prior to the
commencement date of the applicable Lease, Loan and Security Agreement or
other financing document.
Please be sure to forward a copy of this letter to your insurance company to be
processed, and sign and return a copy of this letter to us.
Very truly yours,
INDEPENDENT RESOURCES, INC.
----------------------------------
(Title)
AGREED TO AND ACCEPTED BY:
SMA VIDEO, INC.
BY: /s/ illegible
-------------------------------
(Title)
--------------------------------------------------------------------------------
INSURANCE COMPANY
NAME: DWD Insurance ADDRESS
----------------------------- ---------------------------------
PHONE: ▇▇▇-▇▇▇-▇▇▇▇ CONTACT: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------- --------------------------------
▇▇▇-▇▇▇-▇▇▇▇ (Fax)
INDEPENDENT RESOURCES, INC.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
September 12, 1996
SMA Video, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen and Madams:
Under your Loan and Security Agreement #SMA0001 with Independent Resources, Inc.
you are responsible for the payment of all taxes related to the Equipment that
we are financing for you.
While we normally ▇▇▇▇ for taxes, if any, payable on the rentals (sales/use
tax), we will not ▇▇▇▇ you for or furnish any advise with respect to any taxes
on the Equipment, such as property, ad valorem or other tax imposed by any
state, federal, local or foreign government in connection with the purchase,
possession, ownership or operation of the Equipment.
It is your obligation to timely submit such reports, file such returns and pay
applicable taxes when due in connection with the Equipment. If local law
prohibits you from making direct payment or filing the applicable report or
return it is your responsibility to immediately advise us in writing to such
effect and furnish us with the forms, data and information as will enable us to
make and file the return or report, along with your payment for the tax due.
Your prompt attention will avoid accrual of interest and penalties which would
be your responsibility.
Please sign and return a copy of this letter to us.
Very truly yours,
INDEPENDENT RESOURCES, INC.
/s/ illegible
---------------------------------------
(Title)
The above is acknowledged and agreed to by:
SMA VIDEO, INC.
/s/ illegible
---------------------------------------
(Title)
September 12, 1996
Independent Resources, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Gentlemen:
Reference is made herein to a certain Loan and Security Agreement #SMA0001 dated
September 12, 1996 between Independent Resources, Inc. as Lender and SMA Video,
Inc. as Borrower (the "Loan") covering (see Schedule "A" attached hereto and
made a part hereof).
We hereby authorize you to disburse the proceeds representing the amount
financed by virtue of the Loan as follows:
$895,000.00 Philips Broadcast Television Systems Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
$100,000.00 Security Deposit to Independent Resources, Inc.
================================================================================
$995,000.00 TOTAL PROCEEDS
Very truly yours,
SMA VIDEO, INC.
/s/ illegible
---------------------------------------
(Title)
LOAN AND SECURITY AGREEMENT
---------------------------
SCHEDULE A
----------
The following description of property supplements, and is part of, the Loan and
Security Agreement #SMA0001 dated September 12, 1996 between the undersigned
Buyer and Independent Resources, Inc. and may be attached to said Loan and
Security Agreement and any related UCC Financing Statements, Acceptance or
Delivery Certificate or other document describing the property.
One (1) Spirit Datacine Telecine 2K X 2K Real Time Film Scanner, S/N 104 .
----
COMPLETE WITH ANY AND ALL ATTACHMENTS, ACCESSIONS, ADDITIONS, REPLACEMENTS,
IMPROVEMENTS, MODIFICATIONS AND SUBSTITUTIONS THERETO AND THEREFOR AND ALL
PROCEEDS INCLUDING INSURANCE PROCEEDS THERETO AND THEREFROM.
SMA VIDEO, INC. INDEPENDENT RESOURCES, INC.
/s/ illegible /s/ illegible
----------------------------------- -----------------------------------
(Title) (Title)
DELIVERY CERTIFICATE
--------------------
TO: INDEPENDENT RESOURCES, INC. LOAN NO.: SMA0001
09/12/96 LOAN DATE:
The undersigned Borrower hereby acknowledges that all of the Equipment described
below and in the Loan and Security Agreement referred to above ("the Loan and
Security Agreement") has been delivered to Borrower, and is of the manufacture,
design and specifications selected by Borrower and is suitable for Borrower's
purposes, and that said Equipment fully complies with said Loan and Security
Agreement and Borrower has accepted said Equipment thereunder.
Borrower understands that this Delivery Certificate may be used as an inducement
to an assignee of Independent Resources, Inc. ("I.R.") to accept an assignment
of said Loan and Security Agreement and to make advances to I.R. Borrower hereby
represents to I.R. and any such assignee that said Loan and Security Agreement
at the date hereof is free from any defense, off-set or counterclaim and hereby
waives, as to any such assignee, all such defenses, off-sets and counterclaims
as may arise in the future (preserving the same against I.R.).
Equipment Description:
SEE SCHEDULE A ATTACHED HERETO MADE A PART HEREOF.
SMA VIDEO, INC.
/s/ illegible
-----------------------------
(Title)
Date: 10/31 , 1996
----------- --
▇▇▇▇▇▇
LOAN AND SECURITY AGREEMENT
---------------------------
SCHEDULE A
----------
The following description of property supplements, and is part of, the Loan and
Security Agreement #SMA0001 dated September 12, 1996 between the undersigned
Buyer and Independent Resources, Inc. and may be attached to said Loan and
Security Agreement and any related UCC Financing Statements, Acceptance or
Delivery Certificate or other document describing the property.
One (1) Spirit Datacine Telecine 2K X 2K Real Time Film Scanner, S/N 104 .
------
COMPLETE WITH ANY AND ALL ATTACHMENTS, ACCESSIONS, ADDITIONS, REPLACEMENTS,
IMPROVEMENTS, MODIFICATIONS AND SUBSTITUTIONS THERETO AND THEREFOR AND ALL
PROCEEDS INCLUDING INSURANCE PROCEEDS THERETO AND THEREFROM.
SMA VIDEO, INC. INDEPENDENT RESOURCES, INC.
/s/ illegible /s/ illegible
--------------------------------------- --------------------------------
(Title) (Title)
INDEPENDENT RESOURCES, INC.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
September 23, 1996
Philips Broadcast Television Systems Company
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: Remarketing Agreement with Respect to SMA Video, Inc. (the "Obligor")
Gentlemen and Madams:
In consideration of the interest of Philips Broadcast Television Systems Company
("Vendor") as the supplier of the equipment listed on the annexed Schedule A
(the "Equipment") to Independent Resources, Inc. and/or Its Assigns ("I.R.") for
financing by I.R. to the above Obligor pursuant to Loan and Security Agreement
#SMA0001 dated September 12, 1996 (the "Agreement"):
If the Obligor defaults under the Agreement, then Vendor agrees that Vendor
will, if requested by I.R., remarket the Equipment on a "best efforts" basis, on
I.R.'s behalf according to the following terms and conditions. Upon I.R.'s
repossessing the Equipment or acquiring the legal right to take possession of
the Equipment, Vendor will, at I.R.'s request with all reasonable dispatch
undertake to sell the Equipment as agent for I.R. utilizing sales efforts at
least as great as efforts Vendor makes to sell similar machinery held for
Vendor's own account. Vendor will keep I.R. regularly apprised of Vendor's sales
efforts and prospects. In addition, if requested by I.R., Vendor shall
dismantle, crate, remove, transport and store the Equipment and maintain hazard
insurance coverage (naming I.R. as owner/loss payee) upon the Equipment in such
amounts and terms as are usual and customary for such Equipment, Vendor also
agrees at I.R.'s request to clean and refurbish the Equipment to the extent
reasonably required to facilitate the sale of the Equipment. All expenses of
Vendor under this paragraph are referred to as Vendor's "Remarketing Expenses"
and Vendor shall ▇▇▇▇ I.R. for Vendor's cost. I.R. will only be responsible for
the first $5,000.00 of "Remarketing Expenses", excluding cleaning and
refurbishing expenses. Cleaning and refurbishing expenses will be determined
after Vendor inspects the Equipment and will be mutually agreed to by both
Vendor and I.R. Such cleaning and refurbishing expenses will be at Vendor's cost
and paid by I.R. In addition, if requested by I.R., Vendor agrees to give I.R. a
written appraisal of the Equipment without cost. Vendor's sale of the Equipment
shall be as agent for I.R.'s approval, which approval shall not be unreasonably
withheld. The proceeds of such sale shall be paid to I.R. The sale shall not be
consummated until I.R. has given proper notice of sale to Obligor and otherwise
complied with the provisions of the Uniform Commercial Code and other applicable
law.
If the proceeds received by I.R. on the sale or other disposition of the
Equipment exceed I.R.'s close out amount on the transaction (I.R.'s close out
amount shall consist of the unpaid balance due under the Agreement less unearned
interest as calculated by I.R. plus late charges plus any expenses, including
legal fees, incurred by I.R. in enforcing its rights under the Agreement).
Vendor shall be entitled to receive from such excess all Remarketing Expenses
paid or incurred by it to the extent authorized under the Uniform Commercial
Code. To the extent there is no excess to reimburse Vendor, it shall have no
claim against I.R. therefor.
The obligations of Vendor hereunder shall inure to the benefit of I.R.'s
assignees.
Very Truly Yours,
INDEPENDENT RESOURCES, INC.
----------------------------------
(Title)
AGREED TO AND ACCEPTED BY:
PHILIPS BROADCAST TELEVISION SYSTEMS COMPANY
/s/ illegible
----------------------------------
(Title)
ACKNOWLEDGMENT OF ASSIGNMENT
----------------------------
TO: PHOENIXCOR, INC.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: LOAN & SECURITY AGREEMENT #SMA0001 DATED
VIDEO, INC.
Gentlemen:
Reference is made to the annexed Loan & Security Agree related purchase
agreement (collectively, the "Loan") between India ("Lender") and the
undersigned SMA Video, Inc. as Borrower. We consent to Lender's assignment of
the Loan to you, acknowledge receipt of notice of such assignment and in
consideration of your advancement of funds to the vendor of the equipment
described in the Loan (the "Equipment) and/or to Lender with respect to the
Loan, we hereby acknowledge and agree that:
1. The Loan is in full force and effect and constitutes our valid and
binding obligation, enforceable in accordance with its terms. We
have not entered into any agreement with any person modifying the
provisions of the Loan and we cannot make any further modification,
termination or settlement of amounts due under the Loan except with
the consent of you or your assigns.
2. The Loan describes the entire agreement between Lender and us
regarding our use of and rights and obligations with respect to the
Equipment. There are no "side letters" or verbal understandings
between us and Lender modifying the provisions of the Loan or
otherwise affecting our obligations to make the payments
thereunder.
3. The Equipment was first delivered to our premises located at 100
Avenue of the Americas, 10th Floor on or after September 6,1996
and has been unconditionally accepted by us, including backordered
product upgrades remaining to be delivered in the amount of
$76,965.00. We agree to make no claim against you with respect to
the Equipment.
4. If the Equipment does not contain the serial number(s) of the
items, you are hereby authorized to insert any serial number(s)
obtained wherever the Equipment is described in the Loan or related
documents and you are hereby further authorized to execute and file
UCC Amendments to reflect such serial number(s) on our behalf.
5. Lender has assigned to you all of its right, title and interest in
the Loan but none of its obligations and you are the Lender of
record under the Loan. We agree to remit to you the remaining 64
monthly rental payments consisting of 5 monthly payments in the
amount of $4,641.75 followed by 59 monthly payments in the amount
of $20,868.96 (plus tax if applicable) commencing December 21, 1996
and continuing on the same day of every month thereafter. These are
the remaining monthly rentals due after crediting any prepaid
rentals paid to Lender. We will have no obligation to you and you
will have no obligation to us with respect to any such prepaid
rent paid to Lender. However, we preserve all our rights against
Lender and the vendor of the Equipment. We agree to make all
payments due and to give all notices and information required under
the Loan to you at your above address or to any revised address of
which you or your assigns may advise us. The commencement date of
December 21,
1996 shall supersede the commencement date of December 13, 1996 as
written on the Loan, and Lender may correct such date on the Loan.
6. We will insure the Equipment as required under the Loan and cause
you to be named as loss payee and additional insured and we will
perform for your benefit all of our obligations as Borrower under
the Loan.
7. We have received no notice of a prior sale, transfer, assignment or
pledge of the Loan, the rents reserved thereunder or the Equipment.
8. We have no right to prepay the sums due under the Loan except N/A.
9. There will not be use/sales tax due with each payment under the
Loan.
10. There are no judgments, suits or proceedings pending or threatened
against us which would adversely affect our ability to make
payments under the Loan.
11. No event of default (or that which would constitute an event of
default under the Loan with the passage of time, giving of notice,
or both) on our part, or to our knowledge, on the part of Lender,
has occurred in the performance of each such Party's obligations
under the Loan.
12. This Acknowledgment of Assignment shall inure to the benefit of
your successor and assigns.
DATED: November 21, 1996
Very truly yours,
SMA VIDEO, INC.
---------------
(BORROWER)
BY: /s/ illegible
--------------------------
TITLE: Executive Vice President
ACKNOWLEDGMENT OF LENDER
------------------------
The undersigned Lender under the Loan defined in the foregoing Acknowledgment of
Assignment hereby consent to the foregoing and confirms that it has assigned all
remaining rentals under the Loan to Phoenixcor, Inc., as specified in the
Acknowledgment of Assignment.
DATED: , 19
---------------- ---
INDEPENDENT RESOURCES, INC.
---------------------------
(LENDER)
BY:
------------------------
TITLE:
---------------------
FAX
SMA
SMA VIDEO INC.
SMA Video, Inc.
100 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ Fax ▇▇▇ ▇▇▇ ▇▇▇▇
Date: 11/21/96 Time: 12:07
To: Alyson Guest
Company: IR
From: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax #: # of pages (including cover): 3
Independent Resources, Inc.
================================================================================
FOR YOUR INFORMATION
================================================================================
To: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Company:
Fax number: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Business phone:
From: ▇▇▇▇▇▇ ▇. Guest
Title: Director of
Fax number: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇,
Business phone. ▇▇▇-▇▇▇-▇▇▇▇
Date & Time: 11/21/96 9:51:40 AM
Pages sent 4
Re: REVISED NOTICE OF ASSIGNMENT
================================================================================
▇▇▇▇▇▇: THIS NEEDS TO BE FAXED BACK TO ME (MAIL ORIGINAL) BY 12:00 NOON IN ORDER
TO WIRE THE MONIES TO ▇▇▇▇▇▇▇▇.
PLEASE CALL. THANKS
================================================================================
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ACKNOWLEDGMENT OF ASSIGNMENT
----------------------------
TO: PHOENIXCOR, INC.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: LOAN & SECURITY AGREEMENT #SMA0001 DATED SEP
VIDEO, INC.
Gentlemen:
Reference is made to the annexed Loan & Security Agreement dated
September 12, 1996 and any related purchase agreement (collectively, the
"Loan") between Independent Resources, Inc. as Lender ("Lender") and the
undersigned SMA Video, Inc. as Borrower. We consent to Lender's assignment of
the Loan to you, acknowledge receipt of notice of such assignment and in
consideration of your advancement of funds to the vendor of the equipment
described in the Loan (the "Equipment") and/or to Lender with respect to the
Loan, we hereby acknowledge and agree that:
1. The Loan is in full force and effect and constitutes our valid and
binding obligation, enforceable in accordance with its terms. We
have not entered into any agreement with any person modifying the
provisions of the Loan and we cannot make any further modification,
termination or settlement of amounts due under the Loan except with
the consent of you or your assigns.
2. The Loan describes the entire agreement between Lender and us
regarding our use of and rights and obligations with respect to the
Equipment. There are no "side letters" or verbal understandings
between us and Lender modifying the provisions of the Loan or
otherwise affecting our obligations to make the payments
thereunder.
3. The Equipment was first delivered to our premises located at 100
Avenue of the Americas, 10th Floor on or after October 29, 1996 and
has been unconditionally accepted by us. We agree to make no claim
against you with respect to the Equipment.
4. If the Equipment does not contain the serial number(s) of the
items, you are hereby authorized to insert any serial number(s)
obtained wherever the Equipment is described in the Loan or related
documents and you are hereby further authorized to execute and file
UCC Amendments to reflect such serial number(s) on our behalf.
5. Lender has assigned to you all of its right, title and interest in
the Loan but none of its obligations and you are the Lender of
record under the Loan. We agree to remit to you the remaining 64
monthly rental payments consisting of 5 monthly payments in the
amount of $4,641.75 followed by 59 monthly payments in the amount
of $20,868.96 (plus tax if applicable) commencing December 14, 1996
and continuing on the same day of every month thereafter. These are
the remaining monthly rentals due after crediting any prepaid
rentals paid to Lender. We will have no obligation to you and you
will have no obligation to us with respect to any such prepaid rent
paid to Lender. However, we preserve all our rights against Lender
and the vendor of the Equipment. We agree to make all payments due
and to give all notices and information required under the Loan to
you at your above address or to any revised address of which you or
your assigns may advise us.
6. We will insure the Equipment as required under the Loan and cause
you to be named as loss payee and additional insured and we will
perform for your benefit all of our obligations as Borrower under
the Loan.
7. We have received no notice of a prior sale, transfer, assignment or
pledge of the Loan, the rents reserved thereunder or the Equipment.
8. We have no right to prepay the sums due under the Loan except N/A.
9. There will not be use/sales tax due with each payment under the
Loan.
10. There are no judgments, suits or proceedings pending or threatened
against us which would adversely affect our ability to make
payments under the Loan.
11. No event of default (or that which would constitute an event of
default under the Loan with the passage of time, giving of notice,
or both) on our part, or to our knowledge, on the part of Lender,
has occurred in the performance of each such party's obligations
under the Loan.
12. This Acknowledgment of Assignment shall inure to the benefit of
your successor and assigns.
DATED: November 13, 1996
Very truly yours,
SMA VIDEO, INC.
---------------
(BORROWER)
BY: /s/ illegible
--------------------------
TTILE: Executive Vice President
------------------------
Director of Engineering
ACKNOWLEDGMENT OF LENDER
------------------------
The undersigned Lender under the Loan defined in the foregoing Acknowledgment of
Assignment hereby consent to the foregoing and confirms that it has assigned all
remaining rentals under the Loan to Phoenixcor, Inc., as specified in the
Acknowledgment of Assignment.
DATED: ,19
----------------- --
INDEPENDENT RESOURCES, INC.
---------------------------
(LENDER)
BY:
------------------------
TITLE:
---------------------
ACKNOWLEDGMENT OF ASSIGNMENT
----------------------------
TO: PHOENIXCOR, INC.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: LOAN & SECURITY AGREEMENT #SMA0001 DATED SEP
VIDEO, INC.
Gentlemen:
Reference is made to the annexed Loan & Security Agreement dated
September 12, 1996 and any related purchase agreement (collectively, the
"Loan") between Independent Resources, Inc. as Lender ("Lender") and the
undersigned SMA Video, Inc. as Borrower. We consent to Lender's assignment of
the Loan to you, acknowledge receipt of notice of such assignment and in
consideration of your advancement of funds to the vendor of the equipment
described in the Loan (the "Equipment") and/or to Lender with respect to the
Loan, we hereby acknowledge and agree that:
1. The Loan is in full force and effect and constitutes our valid and
binding obligation, enforceable in accordance with its terms. We
have not entered into any agreement with any person modifying the
provisions of the Loan and we cannot make any further modification,
termination or settlement of amounts due under the Loan except with
the consent of you or your assigns.
2. The Loan describes the entire agreement between Lender and us
regarding our use of and rights and obligations with respect to the
Equipment. There are no "side letters" or verbal understandings
between us and Lender modifying the provisions of the Loan or
otherwise affecting our obligations to make the payments
thereunder.
3. The Equipment was first delivered to our premises located at 100
Avenue of the Americas, 10th Floor on or after October 29, 1996 and
has been unconditionally accepted by us. We agree to make no claim
against you with respect to the Equipment.
4. If the Equipment does not contain the serial number(s) of the
items, you are hereby authorized to insert any serial number(s)
obtained wherever the Equipment is described in the Loan or related
documents and you are hereby further authorized to execute and file
UCC Amendments to reflect such serial number(s) on our behalf.
5. Lender has assigned to you all of its right, title and interest in
the Loan but none of its obligations and you are the Lender of
record under the Loan. We agree to remit to you the remaining 64
monthly rental payments consisting of 5 monthly payments in the
amount of $4,641.75 followed by 59 monthly payments in the amount
of $20,868.96 (plus tax if applicable) commencing December 14, 1996
and continuing on the same day of every month thereafter. These are
the remaining monthly rentals due after crediting any prepaid
rentals paid to Lender. We will have no obligation to you and you
will have no obligation to us with respect to any such prepaid rent
paid to Lender. However, we preserve all our rights against Lender
and the vendor of the Equipment. We agree to make all payments due
and to give all notices and information required under the Loan to
you at your above address or to any revised address of which you or
your assigns may advise us.
6. We will insure the Equipment as required under the Loan and cause
you to be named as loss payee and additional insured and we will
perform for your benefit all of our obligations as Borrower under
the Loan.
7. We have received no notice of a prior sale, transfer, assignment or
pledge of the Loan, the rents reserved thereunder or the Equipment.
8. We have no right to prepay the sums due under the Loan except N/A.
9. There will not be use/sales tax due with each payment under the
Loan.
10. There are no judgments, suits or proceedings pending or threatened
against us which would adversely affect our ability to make
payments under the Loan.
11. No event of default (or that which would constitute an event of
default under the Loan with the passage of time, giving of notice,
or both) on our part, or to our knowledge, on the part of Lender,
has occurred in the performance of each such party's obligations
under the Loan.
12. This Acknowledgment of Assignment shall inure to the benefit of
your successor and assigns.
DATED: November 1, 1996
Very truly yours,
SMA VIDEO, INC.
---------------
(BORROWER)
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
TTILE: President
ACKNOWLEDGMENT OF LENDER
------------------------
The undersigned Lender under the Loan defined in the foregoing Acknowledgment of
Assignment hereby consent to the foregoing and confirms that it has assigned all
remaining rentals under the Loan to Phoenixcor, Inc., as specified in the
Acknowledgment of Assignment.
DATED: 11/1 ,1996
------------ --
INDEPENDENT RESOURCES, INC.
---------------------------
(LENDER)
BY: /s/ illegible
---------------------------
TITLE: Director of Business Development
[LOGO] PHILIPS
Philips Broadcast Television Systems Company
REMITTANCE ADDRESS
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVOICE
▇▇▇▇ SMA VIDEO
TO ATTN: ▇▇▇▇ STAIN
▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SHIP SMA VIDEO
TO ATTN: ▇▇▇▇ SATIN
▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
INVOICE NO. RVSN DATE PAGE
277196E 09/18/96 1
CUSTOMER ORDER NO. SALES ORDER TAXABLE
A1-11192 NO
AIRBILL/▇▇▇▇ OF LADING NO. DATE OF SHIPMENT
09/06/96
METHOD OF SHIPMENT F.O.B. P.P.D.
2 XXX
CARRIER
TERMS
LEASE COMPANY BANK
▇▇▇▇ TO CUSTOMER > 2050 SHIP TO CUSTOMER > 2050
ITEM PRODUCT NUMBER DESCRIPTION TAX QTY. SHIPPED QTY.BACK ORD UNIT PRICE EXTENSION
1 F0-128510-000 SDC200 SPIRIT DATACINE 1 0 $797,730.00 $797,730.00
S/N: 104
2 F0-128102-000 FH 1020 ACCESSORY KIT 1 0 $2,820.00 $2,820.00
4 F0-128151-010 FH-1510 CONTROL PANEL KIT 1 0 $8,450.00 $8,450.00
9 ▇▇-▇▇▇▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ SUPER 35 LGA 1 0 $103,236.00 $103,236.00
10 75-033373-001 INSTL & ORIENTATION FDL-90 1 0 $4,860.00 $4,860.00
11 F0-128106-100 FH1061 FUSE SET 1 0 $0.00 $0.00
12 F0-126692-800 FD0708 8MM REEL DRIVE SET 1 0 $0.00 $0.00
13 F0-126624-300 FU-0043 CUSTOMER MANUAL 1 0 $939.00 $939.00
BACKORDERED PRODUCT UPGRADES
SCHEDULED SHIP DATE 12/96
14 F0-128167-410 FH-1674 ROTATION 0 1 $60,069.00
15 F0-128140-810 FY-1408 MONITORING SEL. 0 1 $12,200.00
16 F0-128166-000 FH1660 DIAGNOSTIC SOFTWARE 0 1 $2,348.00
17 F0-128624-400 FU-0044 SERVICE MANUALS 0 1 $2,348.00
TOTAL BACKORDER VALUE $76,965.00
TO BE INVOICED SEPARATEDLY AT TIME
OF SHIPMENT.
--------------
$918,035.00
LESS DEPOSIT ($70,000.00)
FREIGHT $553.41
--------------
TOTAL $848,588.41
LOAN AND SECURITY AGREEMENT
---------------------------
SCHEDULE A
----------
The following description of property supplements, and is part of, the Loan and
Security Agreement #SMA0001 dated September 12, 1996 between the undersigned
Buyer and Independent Resources, Inc. and may be attached to said Loan and
Security Agreement and any related UCC Financing Statements, Acceptance or
Delivery Certificate or other document describing the property.
One (1) Spirit Datacine Telecine 2K X 2K Real Time Film Scanner, S/N 104 .
-------
COMPLETE WITH ANY AND ALL ATTACHMENTS, ACCESSIONS, ADDITIONS, REPLACEMENTS,
IMPROVEMENTS, MODIFICATIONS AND SUBSTITUTIONS THERETO AND THEREFOR AND ALL
PROCEEDS INCLUDING INSURANCE PROCEEDS THERETO AND THEREFROM.
SMA VIDEO, INC. INDEPENDENT RESOURCES, INC.
/s/ illegible /s/ illegible
------------------------------------ ------------------------------------
(Title) Director of (Title)
Business Development
RIDER TO LOAN AND SECURITY AGREEMENT #SMA0001
(THE "AGREEMENT"), DATED 09/12/96,
BETWEEN INDEPENDENT RESOURCES, INC. ("I.R.") AND
SMA VIDEO, INC. ("OBLIGOR")
The above mentioned Agreement is hereby amended to add the following:
1. Obligor agrees that so long as the Contract remains outstanding and unpaid,
Obligor shall:
a. Maintain a ratio of Debt (defined as Obligor's total liabilities) to
Tangible Net Worth of not more than 3.50 to 1.00. "Tangible Net Worth" is
defined as: (i) Obligor's net worth plus (ii) all indebtedness to Obligor
which is subordinated to Obligor's indebtedness under the Agreement
pursuant to a subordination agreement in form satisfactory to I.R. less
(iii) all of the following: Obligor's patents, licenses, goodwill,
subscription lists, organization expenses, moneys due from affiliates
(including officers, directors and shareholders), all intangible assets
and any write-up in book value of any assets resulting from a revaluation.
b. Maintain a Cash Flow Coverage of at least 1.00 to 1.00. The "Cash Flow
Coverage" shall mean Obligor's Cash Flow divided by Obligor's Current
Funded Debt Requirements. Obligor's "Cash Flow" shall mean Obligor's net
profit for the applicable fiscal year exclusive of extraordinary gains
plus non-cash outlay expenses of depreciation and amortization. "Current
Funded Debt Requirements" shall mean all current maturities of Obligor's
long term debt, including capital leases, shown on the applicable
Financial Statements.
c. Maintain a Current Ratio of at least 1.00 to 1.00. The "Current Ratio"
shall mean the ratio of Obligor's Total Current Assets to Total Current
Liabilities.
2. Obligor shall inform I.R., in writing, of any change in any business related
structure of the company or its affiliates within thirty (30) days of change.
3. Except as expressly provided herein, all accounting terms used herein shall
be interpreted in accordance with generally accepted accounting principles in
effect from time to time.
4. It shall be an additional Event of Default under the Agreement if Obligor
fails to maintain any of the above financial covenants.
IN WITNESS WHEREOF, the parties have executed this Rider simultaneously with the
Agreement.
SMA VIDEO, INC. INDEPENDENT RESOURCES, INC.
BY: /s/ illegible BY: /s/ illegible
--------------------------- -----------------------------
(Title) Director of (Title)
Business Development
PAYMENT ADJUSTMENT RIDER
------------------------
RIDER TO LOAN AND SECURITY AGREEMENT #SMA0001 DATED SEPTEMBER 12, 1996 (THE
"CONTRACT") BETWEEN SMA VIDEO, INC. AS BORROWER (THE "OBLIGOR") AND INDEPENDENT
RESOURCES, INC. AS LENDER ("I.R.")
1. Purpose. This Rider sets forth the terms of adjustment to the payments set
forth in the Contract.
2. Definition. The following terms shall have the following meanings herein:
(a) "Adjustment Date" shall mean the date I.R. disburses the proceeds of
the Contract.
(b) "Final T-Note Average" shall mean the average of the yields on U.S.
Treasury Notes maturing in six (6) years, as published by the Dow ▇▇▇▇▇
Telerate Access Service, Page 19901, for the close of business on each
business day of the two full calendar weeks immediately preceding the
week containing the Adjustment Date.
(c) "Preliminary Payments" shall mean the payments set forth in the
Contract, consisting of five (5) consecutive monthly payments
commencing 30 days after the Adjustment Date consisting of 5 @
$4,641.75, followed by fifty-nine (59) consecutive monthly payments
consisting of 59 @ $20,868.96
(d) "Preliminary T-Note Average" shall mean 6.72%.
3. Adjustment of Payments. The Preliminary Payments were calculated based on a
spread over the Preliminary T-Note Average. If the Adjustment Date occurs
after September 16, 1996 and the Final T-Note Average exceeds the Preliminary
T-Note Average, then the Preliminary payments shall be revised. For each
increase of one (1) basis point (i.e., 1/100 of 1%) in the Final T-Note
Average above the Preliminary T-Note Average, the Preliminary Payments shall
be revised as follows:
o Each of the five (5) payments in the amount of $4,641.75 shall remain
unchanged.
o Each of the fifty-nine (59) payments in the amount of $20,868.96 shall
increase by $5.81
Immediately after the determination of the revised payments due under the
Contract, Obligor shall, at the request of I.R., execute an acknowledgment
reflecting the revised payment schedule and, if requested by I.R., a Replacement
Contract containing the agreed to payments, but the failure of I.R. to make such
a request or the failure of Obligor to execute the acknowledgment or Replacement
Contract shall in no way diminish Obligor's obligations hereunder.
4. I.R.'s Requirements. The commencement of the Contract is subject to
satisfaction of all documentation and credit requirements of I.R. If such
requirements are not satisfied by the Adjustment Date, then at I.R.'s option,
the Adjustment Date shall be the date when such requirements are satisfied.
The calculation of the Contract payments under this Rider will supersede any
prior proposal or quotation.
IN WITNESS WHEREOF, the parties have executed this Rider simultaneously with the
Contract.
SMA VIDEO, INC. INDEPENDENT RESOURCES, INC.
/s/ illegible /s/ illegible
--------------------------------- -----------------------------
(Title) (Title)
SECURITY DEPOSIT RIDER
----------------------
Part of a Loan and Security Agreement #SMA0001 dated September 12, 1996 between
INDEPENDENT RESOURCES, INC. ("I.R.") as Lender and SMA VIDEO, INC. ("Borrower")
as Borrower.
The Borrower has simultaneously with the execution of this Loan and Security
Agreement (the "Security Agreement") deposited with the Lender the sum of
$100,000.00 (the "Security Deposit") as security for the full and faithful
performance by Borrower of all the terms and conditions on the Borrower's part
to be performed under the Security Agreement.
In the event of a default by the Borrower in respect to any of the terms,
conditions, covenants or provisions of the Security Agreement, including but
not limited to, the payment of any installment, or other charges, the Lender or
its assignee may use, apply or retain all or any part of the said Security
Deposit for the payment of any unpaid installment or other charges or for any
other amount which the Lender may spend or be required to spend by reason of the
Borrower's default, including any damages or deficiencies. Such Security Deposit
shall not bear interest so long as the Borrower is not in default under the
Security Agreement, Lender shall accrue for the benefit of the Borrower interest
on such Security Deposit amount computed at the rate of 3.5% per annum.
Should the Lender sell or assign this Security Agreement, it may assign and
transfer said Security Deposit to such assignee, and the Lender shall thereupon
be relieved and released from all obligation or liability with respect to this
Security Deposit; and this provision shall apply to all subsequent assignees of
the Security Agreement.
Notwithstanding the foregoing, in the event that Borrower timely pays to Lender
the first twenty-four (24) monthly installments due under the Security Agreement
(exclusive of any advance payments) and Borrower does not otherwise default
under the Security Agreement during said twenty-four (24) month period then, in
such event, Lender, in its sole discretion, agrees, but does not in any manner
obligate itself, to consider the release and return of the Security Deposit to
Borrower.
AGREED TO AND ACCEPTED BY:
SMA VIDEO, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ President
----------------------------------
(Title)
Date: 9/12/96
-------------
CERTIFICATE OF SECRETARY
------------------------
The undersigned does hereby certify that he/she is Secretary of SMA Video, Inc.
(hereafter call the "Corporation") and the following is a true, complete and
correct copy of resolutions duly adopted by the Board of Directors of the
Corporation at a meeting thereof duly called and held on September 12, 1996, at
which a quorum was present and acting throughout, and that such resolutions are
in full force and effect:
"RESOLVED, that the Corporation enter into a Loan and Security
Agreement (the "Agreement") with INDEPENDENT RESOURCES, INC. (hereafter
called "I.R."), substantially in the form presented to this meeting,
providing for the Loan by the Corporation from I.R. of the amount
reflected in the Agreement to be secured by the property described in
the Agreement (the "Collateral"); and it is further.
RESOLVED, that the officers of the Corporation and each of them singly,
hereby are authorized (a) to execute and deliver said Agreement in the
name and on behalf of the Corporation, either in the form presented to
this meeting or with such changes therein as the officer executing the
same may approve, his approval and authority to be conclusively
evidenced by his execution thereof, such execution to be valid and
binding on the Corporation with or without the corporate seal of the
Corporation, (b) to carry out the obligations and enforce the rights of
the Corporation under said Agreement, (c) to execute and deliver in the
name and on behalf of the Corporation such other documents as may be
requested or required by I.R. in connection with said Agreement
including (without limiting the generality of the foregoing) security
agreements and financing statements evidencing security interests of
I.R. and its assignees in and to the Equipment and/or additional
collateral, agreements with assignees of I.R. as to the payment of
installments to such assignees and an Acceptance or Delivery
Certificate in respect of the Equipment as contemplated by said
Agreement, and (d) to take all other action deemed by them necessary or
advisable in connection with the foregoing; and it is further
RESOLVED, that the officers of the Corporation, and each of them
singly, hereby are authorized from time to time on behalf of the
Corporation to enter into additional Loan and Security Agreements or
otherwise finance the acquisition of additional equipment from I.R.
upon such terms and conditions as the officers, or any one of them,
shall determine, and in that connection to execute and deliver in the
name and on behalf of the Corporation amendments or additional Loan and
Security Agreements or leases, together with all accompanying documents
as are set forth in the preceding resolutions; and it is further
RESOLVED, that all acts authorized in the foregoing resolutions, but
performed prior to the adoption of these resolutions, are hereby
ratified and affirmed."
The undersigned further certifies that the persons whose names, titles and
signatures appear below are the duly elected (or appointed), qualified and
acting officers of the Corporation and hold on the date of this Certificate the
offices set forth opposite their respective names, and the signatures
appearing opposite their respective names are the genuine signatures of such
persons:
NAME OF OFFICER TITLE OF OFFICER SIGNATURE OF OFFICER
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ President /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------- ------------------ ------------------------
[Logo] PHILIPS
Philips Broadcast Television Systems Company
REMITTANCE ADDRESS INVOICE
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVOICE NO. RVSN DATE PAGE
277196E 09/18/96 1
CUSTOMER ORDER NO. SALES ORDER TAXABLE
A1-11192 NO
AIRBILL/▇▇▇▇ OF LADING NO. DATE OF SHIPMENT
09/06/96
METHOD OF SHIPMENT F.O.B. P.P.D.
2 XXX
CARRIER
TERMS
LEASE COMPANY BANK
▇▇▇▇ TO CUSTOMER > 2050 SHIP TO CUSTOMER > 2050
ITEM PRODUCT NUMBER DESCRIPTION TAX QTY. SHIPPED QTY.BACK ORD UNIT PRICE EXTENSION
1 F0-128510-000 SDC200 SPIRIT DATACINE 1 0 $797,730.00 $797,730.00
S/N: 104
2 F0-128102-000 FH 1020 ACCESSORY KIT 1 0 $2,820.00 $2,820.00
4 F0-128151-010 FH-1510 CONTROL PANEL KIT 1 0 $8,450.00 $8,450.00
9 ▇▇-▇▇▇▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇▇ SUPER 35 LGA 1 0 $103,236.00 $103,236.00
10 75-033373-001 INSTL & ORIENTATION FDL-90 1 0 $4,860.00 $4,860.00
11 F0-128106-100 FH1061 FUSE SET 1 0 $0.00 $0.00
12 F0-126692-800 FD0708 8MM REEL DRIVE SET 1 0 $0.00 $0.00
13 F0-126624-300 FU-0043 CUSTOMER MANUAL 1 0 $939.00 $939.00
BACKORDERED PRODUCT UPGRADES
SCHEDULED SHIP DATE 12/96
14 F0-128167-410 FH-1674 ROTATION 0 1 $60,069.00
[Logo] PHILIPS
Philips Broadcast Television Systems Company
REMITTANCE ADDRESS: FUNLOC:133447 INVOICE
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ SMA SHIP SMA
TO: ATTENTION: ACCOUNTS PAYABLE TO: ATTN: ▇▇▇▇ SATIN
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ 10013
SHIPMENT ID NUMBER: 1015618
INVOICE NO. RVSN DATE PAGE
279239 1 02/21/97 1
CUSTOMER ORDER NO. SALES ORDER NO. TAXABLE
*SEE BELOW A1-11192 NO
▇▇▇▇ OF LADING NO. DATE OF SHIPMENT
02/20/97
METHOD OF SHIPMENT F.O.B. P.P.D.
DROPSHIP 2 XXX
S.A.
5415
TERMS
LEASE COMPANY/BANK
▇▇▇▇ TO CUSTOMER > 2050 SHIP TO CUSTOMER > 2050 *P.O.: CONTRACT
ITEM PRODUCT NUMBER DESCRIPTION TAX QTY. SHIPPED QTY. BACK ORDERED UNIT PRICE EXTENSION
3 F0-128167-410 FH-1674 ROTATION .0 1 60069.000 .00
5 F0-128140-810 ▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ SEL. 1.0 0 12200.000 12200.00
6 F0-128166-000 FH1660 DIAGNOSTIC SOFTWARE .0 1 2348.000 .00
8 F0-128624-400 SERV MANU USE F0-126624-400 .0 1 2348.000 .00
----------
TOTAL: 12200.00
**** ISO 9002 CERTIFIED ****
*** OUR COMMITMENT TO *** [Stamp]
** EXCELLENCE IS TOTAL ** RECEIVED
* CUSTOMER SATISFACTION * FEB 28
"ANY DIVERSION OF THIS SHIP-
MENT CONTRARY TO UNITED STATES
LAW IS PROHIBITED"
PARTIAL SHIPMENTS ALLOWED
CONTACT:
▇▇▇▇ SATIN
▇▇▇-▇▇▇-▇▇▇▇
ACKNOWLEDGMENT OF ASSIGNMENT
TO: PHOENIXCOR, INC.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
RE: LOAN & SECURITY AGREEMENT #SMA0001 DATED SEPTEMBER 12, 1996 WITH SMA
VIDEO, INC.
Gentlemen:
Reference is made to the annexed Loan & Security Agreement dated
September 12, 1996 and any related purchase agreement (collectively, the "Loan")
between Independent Resources, Inc. as Lender ("Lender") and the undersigned SMA
Video, Inc. as Borrower. We consent to Lender's assignment of the Loan to you,
acknowledge receipt of notice of such assignment and in consideration of your
advancement of funds to the vendor of the equipment described in the Loan (the
"Equipment") and/or to Lender with respect to the Loan, we hereby acknowledge
and agree that:
1. The Loan is in full force and effect and constitutes our valid and
binding obligation, enforceable in accordance with its terms. We
have not entered into any agreement with any person modifying the
provisions of the Loan and we cannot make any further modification,
termination or settlement of amounts due under the Loan except with
the consent of you or your assigns.
2. The Loan describes the entire agreement, between Lender and us
regarding our use of and rights and obligations with respect to the
Equipment. There are no "side letters" or verbal understandings
between us and Lender modifying the provisions of the Loan or
otherwise affecting our obligations to make the payments
thereunder.
3. The Equipment was first delivered to our premises located at 100
Avenue of the Americas, 10th Floor on or after September 6, 1996
and has been unconditionally accepted by us, including backordered
product upgrades remaining to be delivered in the amount of
$76,965.00. We agree to make no claim against you with respect to
the Equipment.
4. If the Equipment does not contain the serial number(s) of the
items, you are hereby authorized to insert, any serial number(s)
obtained wherever the Equipment is described in the Loan or related
documents and you are hereby further authorized to execute and file
UCC Amendments to reflect such serial number(s) on our behalf.
5. Lender has assigned to you all of its right title and interest in
the Loan but none of its obligations and you are the Lender of
record under the Loan. We agree to remit to you the remaining 64
monthly rental payments consisting of 5 monthly payments in the
amount of $4,641.75 followed by 59 monthly payments in the amount
of $20,868.96 (plus tax if applicable) commencing December 21, 1996
and continuing on the same day of every month theater. These are
the remaining monthly rentals due after crediting any prepaid
rentals paid to Lender. We will have no obligation to you and you
will have no obligation to us with respect to any such prepaid rent
paid to Lender. However, we preserve all our rights against Lender
and the vendor of the Equipment. We agree to make all payments due
and to give all notices and information required under the Loan to
you at your above address or to any revised address of which you or
your assigns may advise us. The commencement date of December 21,
1996 shall supersede the commencement date of December 13, 1996 as
written on the Loan, and Lender may correct such date on the Loan.
6. We will insure the Equipment as required under the Loan and cause
you to be named as loss payee and additional insured and we will
perform for your benefit all of our obligations as Borrower under
the Loan.
7. We have received no notice of a prior sale, transfer, assignment or
pledge of the Loan, the rents reserved thereunder or the Equipment.
8. We have no right to prepay the sums due under the Loan except N/A.
9. There will not be use/sales tax due with each payment under the
Loan.
10. There are no judgments, suits or proceedings pending or threatened
against us which would adversely affect our ability to make
payments under the Loan.
11. No event of default (or that which would constitute an event of
default under the Loan with the passage of time, giving of notice,
or both) on our part, or to our knowledge, on the part of Lender,
has occurred in the performance of each such party's obligations
under the Loan.
12. This Acknowledgment of Assignment shall inure to the benefit of
your successor and assigns.
DATED: November 21, 1996
Very truly yours,
SMA VIDEO, INC.
---------------
(BORROWER)
BY: /s/ illegible
--------------------------
TITLE: Executive Vice President
ACKNOWLEDGMENT OF LENDER
------------------------
The undersigned Lender under the Loan defined in the foregoing Acknowledgment of
Assignment hereby consent to the foregoing and confirms that it has assigned all
remaining rentals under the Loan to Phoenixcor, Inc., as specified in the
Acknowledgment of Assignment.
DATED: , 19
----------------- --
INDEPENDENT RESOURCES, INC.
---------------------------
(LENDER)
BY:
------------------------
TITLE:
---------------------
September 12, 1996
Independent Resources, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
This is to confirm our agreement to pay to you the sum of $34,999.23 in
connection with the services rendered in financing BTS Philips Telecine
equipment.
Very truly yours,
SMA Video, Inc.
By: /s/ illegible
--------------------------
Title: President
Agreed To:
Independent Resources, Inc.
By: /s/ illegible
--------------------------
Title: Director of Business Development