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EXHIBIT 10.4
[SANWA BANK LOGO]
SECURITY AGREEMENT
This Security Agreement ("Agreement") is made and entered into this 16th day of
August 1996 by and between SANWA BANK CALIFORNIA (the "Bank"); FOUR POINT
ENTERTAINMENT, INC. (the "Grantor"); and DOVE AUDIO, INC. (the "Borrower").
1. GRANT OF SECURITY INTEREST. The Grantor hereby grants to the Bank a
security interest in and to all of the following property (hereinafter
collectively referred to as the "Collateral"):
A. EQUIPMENT. All goods and equipment ("Equipment") now owned or
hereafter acquired by the Grantor or in which the Grantor now has or
may hereafter acquire any interest including, but not limited to, all
machinery, furniture, furnishings, fixtures, tools, supplies and motor
vehicles of every kind and description and all additions, accessions,
improvements, replacements and substitutions thereto and thereof.
B. INVENTORY. All inventory ("Inventory") now owned or hereafter
acquired by the Grantor including, but not limited to, all raw
materials, work in process, finished goods, merchandise, parts and
supplies of every kind and description, including inventory
temporarily out of the Grantor's custody or possession, together with
all returns on accounts.
C. ACCOUNTS AND CONTRACT RIGHTS. All accounts and contract
rights now owned or hereafter created or acquired by the Grantor,
including but not limited to, all receivables and all rights and
benefits due to the Grantor under any contract or agreement.
D. GENERAL INTANGIBLES. All general intangibles now owned or
hereafter created or acquired by the Grantor, including but not
limited to, goodwill, trademarks, trade styles, trade names, patents,
patent applications, software, customer lists and business records.
E. CHATTEL PAPER AND DOCUMENTS. All documents, instruments and
chattel paper now owned or hereafter acquired by the Grantor.
F. MONIES AND OTHER PROPERTY IN POSSESSION. All monies, and
property of the Grantor now or hereafter in the possession of the Bank
or the Bank's agents, or any one of them, including, but not limited
to, all deposit accounts, certificates of deposit, stocks, bonds,
indentures, warrants, options and other negotiable and non-negotiable
securities and instruments, together with all stock rights, rights to
subscribe, liquidating dividends, cash dividends, payments, dividends
paid in stock, new securities or other property to which the Grantor
may become entitled to receive on account of such property.
The Bank's security interest in the Collateral shall be a continuing lien and
shall include all proceeds and products of the Collateral including but not
limited to, the proceeds of any insurance thereon.
2. THE INDEBTEDNESS. The Collateral secures payment of all obligations
and indebtedness pursuant to those certain Term Loan Agreements in the
aggregate principal amounts of $220,000.00 and $1,365,447.27 between the Bank
and the Borrower, both dated August 16, 1996. The indebtedness and obligations
secured hereby (hereinafter referred to as the "Indebtedness") shall include
any and all modifications, extensions and renewals of such obligations or
indebtedness and performance of all the terms, covenants and agreements
contained in this Security Agreement and in any other document, instrument or
agreement evidencing or related to the Indebtedness or the Collateral.
The Indebtedness secured hereby shall not include any indebtedness incurred for
personal, family or household purposes except to the extent any disclosure
required under any consumer protection law (including but not limited to the
Truth in Lending Act) or any regulation thereto, as now existing or hereafter
amended, is or has been given.
3. GRANTOR'S REPRESENTATIONS AND WARRANTIES. The Grantor hereby makes
the following representations and warranties to the Bank, which representations
and warranties are continuing:
A. STATUS. The Grantor is a corporation duly organized and
validly existing under the laws of the State of Florida and is
properly licensed, qualified to do business and in good standing in,
and, where necessary to maintain the Grantor's rights and privileges,
has complied with the fictitious name statute of every jurisdiction in
which the Grantor is doing business.
B. AUTHORITY. The execution, delivery and performance by the
Grantor of this Security Agreement and any instrument, document or
agreement required hereunder have been duly authorized and do not and
will not: (i) violate any provision of any law, rule, regulation,
writ, judgment or injunction presently in effect affecting the
Grantor; (ii) require any consent or approval of the stockholders or
violate any provision of the articles of incorporation or by-laws of
the Grantor; or (iii) result in a breach of or constitute a default
under any material agreement to which the Grantor is a party or by
which the Grantor's properties may be bound or affected.
C. LEGAL EFFECT. This Security Agreement constitutes, and any
document, instrument or agreement required hereunder when delivered
will constitute, legal, valid and binding obligations of the Grantor
enforceable against the Grantor in accordance with their respective
terms.
D. FICTITIOUS TRADE STYLES. The Grantor currently uses no
fictitious trade styles in connection with its business operations.
The Grantor shall notify the Bank within thirty (30) days of the use
of any fictitious trade style at any future date, indicating the trade
style and state(s) of its use.
E. TITLE TO COLLATERAL; PERMITTED LIENS. The Grantor has good
and marketable title to the Collateral and the same is not now and
shall not become subject to any security interest, encumbrance, lien
or claim of any third person other than: (i) liens and security
interests securing the Indebtedness or other indebtedness owed to the
Bank; (ii) liens for taxes, assessments or similar charges either not
yet due or being contested in good faith; (iii) liens of mechanics,
materialmen, warehousemen, carriers or other like liens arising in the
ordinary course of business and securing obligations which are not yet
delinquent; (iv) purchase money liens or purchase money security
interests upon or in any property acquired or held by the Grantor in
the ordinary course of business to secure indebtedness outstanding on
the date hereof or permitted to be incurred hereunder; (v) liens and
security interests which, as of the date hereof, have been disclosed
to and approved by the Bank in writing; and (vi) those liens and
security interests which in the aggregate constitute an immaterial and
insignificant monetary amount with respect to the net value of the
Grantor's assets (collectively, the "Permitted Liens").
F. FINANCIAL STATEMENTS. All financial statements, information
and other data now or hereafter submitted to the Bank by the Grantor
in connection with the transaction with respect to which this Security
Agreement is entered into are true, accurate and correct and have been
or will be prepared in accordance with generally accepted accounting
principles consistently applied. Since the most recent submission of
any such financial statement, information or other data to the Bank,
the Grantor represents and warrants that no material adverse change in
the financial condition or operations as disclosed therein or thereby
has
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occurred which has not been fully disclosed to the Bank in writing.
G. LITIGATION. Except as have been disclosed to the Bank in
writing, there are no actions, suits or proceedings pending or, to the
knowledge of the Grantor, threatened against or affecting the Grantor
or the Grantor's properties before any court or administrative agency
which, if determined adversely to the Grantor, would have a material
adverse effect on the Grantor's financial condition, operations or the
Collateral.
H. TAXES. The Grantor has filed all tax returns required to be
filed and paid all taxes shown thereon to be due, including interest
and penalties, other than taxes which are currently payable without
penalty or interest or those which are being duly contested in good
faith.
4. BANK'S RIGHT TO AMEND OR MODIFY THE INDEBTEDNESS. The Grantor
authorizes the Bank, in its sole and absolute discretion, with or without
notice and without affecting the Bank's security interest in or to the
Collateral or the Bank's rights and remedies against the Collateral under this
Security Agreement, and from time to time, to: (i) change the time or manner of
payment of any Indebtedness by renewal, extension, modification, acceleration
or otherwise; (ii) alter or change any provision of any Indebtedness,
including, but not limited to, the rate of interest thereon, or any provision
of any document, instrument or agreement (other than this Security Agreement)
evidencing, guarantying, securing or related to any Indebtedness; (iii)
release, discharge, exonerate, substitute or add one or more of the parties
liable on any Indebtedness or one or more endorsers, cosigners, or guarantors
for any Indebtedness; (iv) obtain any other or additional collateral for the
payment of any Indebtedness or any guaranty thereof; (v) release existing or
after-acquired other or additional collateral on such terms as the Bank, in its
sole and absolute discretion, shall determine; (vi) apply any sums received
from the Borrower, any endorser, cosigner, guarantor or other person liable on
the Indebtedness or from the sale or collection of any other or additional
collateral or its proceeds securing any Indebtedness or any guaranty thereof to
any indebtedness whatsoever owed or to be owed to the Bank by the Borrower in
any order or amount and regardless of whether or not any portion of such sum is
applied to the Indebtedness secured hereunder or regardless of whether or not
any such indebtedness is due and payable; and (vii) apply any sums received
from the Grantor or from the sale or collection of the Collateral or its
proceeds to any Indebtedness in any order or amount regardless of whether or
not any such Indebtedness is due and payable.
5. GRANTOR'S ACKNOWLEDGMENTS AND WAIVERS. The Grantor hereby
unconditionally and irrevocably acknowledges and agrees to the following
matters:
A. CONSIDERATION. The Grantor hereby acknowledges and agrees
that the security interest in the Collateral is granted to the Bank in
consideration of the Indebtedness incurred by the Borrower to the Bank
or the benefits to the Grantor derived therefrom.
B. DEFICIENCY. In the event that any Indebtedness is now or
hereafter secured by a deed of trust, the Grantor waives any defense
and all rights and benefits of those laws purporting to state that no
deficiency judgment may be recovered on certain real property purchase
money obligations (as presently contained in Section 580b of the
California Code of Civil Procedure and as it may be amended or
superseded in the future) and those laws purporting to state that no
deficiency judgment may be recovered after a trustee's sale under a
deed of trust (as presently contained in Section 580d of the
California Code of Civil Procedure and as it may be amended or
superseded in the future).
C. ELECTION OF REMEDIES. The Grantor waives any defense
based upon the Grantor's loss of a right against the Borrower arising
from the Bank's election of a remedy on any Indebtedness under
bankruptcy or other debtor relief laws or under any other laws,
including, but not limited to, those purporting to reduce the Bank's
rights against the Collateral in proportion to the principal
obligation of any Indebtedness (as presently contained in Section 2809
of the California Civil Code and as it may be amended or superseded in
the future).
D. STATUTE OF LIMITATIONS. The Grantor waives the benefit of the
statute of limitations affecting the Grantor's liability hereunder
or the enforcement hereof.
E. BORROWER'S DEFENSES. The Grantor waives any defense arising
by reason of any disability or other defense of the Borrower, the
Borrower's successor or any endorser, cosigner, guarantor or other
person liable on any Indebtedness. Until all Indebtedness has been
paid in full, the Grantor shall not have any right of subrogation
against the Borrower, any endorser, cosigner, guarantor or other
person liable on any Indebtedness and the Grantor waives any benefit
of and any right to participate in any other or additional collateral
securing any Indebtedness or any guaranty thereof in which the Bank
now or hereafter has or acquires a security interest. The Grantor
waives all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor,
notices of acceptance with respect to any Indebtedness and all notices
of sale with respect to any other or additional collateral securing
any Indebtedness or any guaranty thereof.
F. Borrower's Financial Condition. The Grantor hereby
recognizes, acknowledges and agrees that advances may be made from
time to time with respect to any Indebtedness without authorization
from or notice to the Grantor even though the financial condition of
the Borrower, any endorser, cosigner, guarantor or other person liable
on any Indebtedness may have deteriorated since the date of this
Security Agreement. The Grantor waives all right to require the Bank
to disclose any information with respect to: (i) any Indebtedness;
(ii) the financial condition, credit or character of the Borrower, any
endorser, cosigner, guarantor or other person liable on any
Indebtedness; (iii) any other or additional collateral securing any
Indebtedness or any guaranty thereof; or (iv) any action or inaction
on the part of the Bank, the Borrower or any endorser, cosigner,
guarantor or other person liable on any Indebtedness. The Grantor
hereby assumes the responsibility for being informed of the financial
condition, credit and character of the Borrower and of all
circumstances bearing upon the risk of non-payment of any Indebtedness
which diligent inquiry would reveal.
6. GRANTOR'S COVENANTS. The Grantor covenants and agrees that, unless the
Bank otherwise consents in writing, the Grantor shall at all times:
A. MAINTENANCE OF INSURANCE. Keep and maintain the Collateral
insured for not less than its full replacement value against all risks
of loss and damage and maintain such other insurance as is usually
carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which the Grantor operates and
maintain such other insurance and coverages as may be required by the
Bank. All such insurance shall be in form and amount and with
companies satisfactory to the Bank. With respect to insurance
covering the Collateral, such insurance shall name the Bank as loss
payee pursuant to a loss payable endorsement satisfactory to the Bank
and shall not be altered or canceled except upon 10 days' prior
written notice to the Bank. Upon the Bank's request, the Grantor
shall furnish the Bank with the original policy or binder of all such
insurance.
B. MAINTENANCE OF COLLATERAL. Except for Permitted Liens, keep
and maintain the Collateral free and clear of all levies, liens,
encumbrances and other security interests (including, but not limited
to, any lien of attachment, judgment or execution) and defend the
Collateral against any such levy, lien, encumbrance or security
interest; comply with all laws, statutes and regulations pertaining to
the Collateral, its use and operation; execute, file and record such
statements, notices and agreements, take such actions and obtain such
certificates and other documents necessary to perfect, evidence and
continue the Bank's security interest in the Collateral and the
priority thereof; maintain accurate and complete records of the
Collateral; and properly care for, house, store and maintain the
Collateral in good condition, free of misuse, abuse and deterioration,
other than normal wear and tear.
C. LOCATION AND MAINTENANCE OF EQUIPMENT.
(i) LOCATION. The Equipment shall at all times be in the
Grantor's physical possession, shall not be held for sale or
lease and shall be kept only at the following locations): 0000
Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx, XX 00000.
The Grantor shall not secrete, abandon or remove, or permit
the removal of, the Equipment, or any part thereof, from the
locations shown above or remove or permit to be removed any
accessories now or hereafter placed upon the Equipment.
(ii) EQUIPMENT SCHEDULES. Upon the Bank's demand, the
Grantor shall immediately provide the Bank with a complete and
accurate description of the
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Equipment including, as applicable, the make, model,
identification number and serial number of each item of
Equipment. In addition, the Grantor shall immediately notify
the Bank of the acquisition of any new or additional Equipment
or the replacement of any existing Equipment and shall supply
the Bank with a complete description of any such additional or
replacement Equipment.
(iii) MAINTENANCE OF EQUIPMENT. The Grantor shall, at the
Grantor's sole cost and expense, keep and maintain the
Equipment in a good state of repair and shall not destroy,
misuse, abuse, illegally use or be negligent in the care of
the Equipment or any part thereof. The Grantor shall not
remove, destroy, obliterate, change, cover, paint, deface or
alter the name plates, serial numbers, labels or other
distinguishing numbers or identification marks placed upon the
Equipment or any part thereof by or on behalf of the
manufacturer, any dealer or rebuilder thereof, or the Bank.
The Grantor shall not be released from any liability to the
Bank hereunder because of any injury to or loss or destruction
of the Equipment. The Grantor shall allow the Bank and its
representatives free access to and the right to inspect the
Equipment at all times and shall comply with the terms and
conditions of any leases covering the real property on which
the Equipment is located and any orders, ordinances, laws,
regulations or rules of any federal, state or municipal agency
or authority having jurisdiction of such real property or the
conduct of business of the persons having control or
possession of the Equipment.
(iv) FIXTURES. The Equipment is not now and shall not at
any time hereafter be so affixed to the real property on which
it is located as to become a fixture or a part thereof. The
Equipment is now and shall at all times hereafter be and
remain personal property of the Grantor.
D. LOCATION AND QUALITY OF INVENTORY. The Inventory (i) is now
and shall at all times hereafter be of good and merchantable quality
and free from defects; (ii) is not now and shall not at any time
hereafter be stored with a bailee, warehouseman or similar party
without the Bank's prior written consent and, in such event, the
Grantor will concurrently therewith cause any such bailee,
warehouseman or similar party to issue and deliver to the Bank, in
form acceptable to the Bank, warehouse receipts in the Bank's name
evidencing the storage of inventory; (iii) shall at all times be in
the Grantor's physical possession; (iv) shall not be held by others on
consignment, sale on approval, or sale or return; and (v) shall be
kept only at the following locations(s): 0000 Xxxxxxx Xxxxxxxxx, Xxxx
Xxxxxxxxx, XX 00000.
E. INSPECTION RIGHTS. At any reasonable time and from time to
time, permit the Bank or any representative thereof to examine and
make copies of the records and visit the properties of the Grantor and
discuss the business and operations of the Grantor with any employee
or representative thereof. If the Grantor now or at any time
hereafter maintains any records (including, but not limited to,
computer generated records and computer programs for the generation of
such records) in the possession of a third party, the Grantor hereby
agrees to notify such third party, to permit the Bank free access to
such records at all reasonable times and to provide the Bank with
copies of any records it may request, all at the Grantor's expense,
the amount of which shall be payable immediately upon demand.
F. REPORTING REQUIREMENTS. Promptly upon the Bank's request,
deliver or cause to be delivered to the Bank such information
pertaining to the Grantor, the Collateral or such other matters as the
Bank may reasonably request.
G. TRANSFER OF COLLATERAL. Not sell, contract for sale, convey,
transfer, assign, lease or sublet any of the Collateral except in the
ordinary course of business as presently conducted by the Grantor and
then, only for full, fair and reasonable consideration.
H. PAYMENT OF OBLIGATIONS. Pay all of the Grantor's liabilities
and obligations when due.
I. COMPENSATION OF EMPLOYEES. Compensate the Grantor's employees
for services rendered at an hourly rate at least equal to the minimum
hourly rate prescribed by any applicable federal or state law or
regulation.
J. NOTICES. Give the Bank prompt written notice of: (i) any
change in the Grantor's place of business or the acquisition of more
than one place of business; (ii) any proposed or actual change in the
Grantor's name, identity or business nature; (iii) any change in the
location of any Collateral; (iv) any Event of Default; (v) litigation,
arbitration or administrative proceedings to which the Grantor is a
party and which affects the Collateral and in which the claim or
liability exceeds $100,000.00; and (vi) any other matter which has
resulted in, or might result in, a material adverse change in the
Collateral or the financial condition or business operations of the
Grantor.
7. BORROWER'S COVENANTS. The Borrower hereby covenants and agrees as
follows:
X. XXXXX OF SECURITY INTEREST. To the extent the Borrower has
any rights in or to any of the Collateral, the Borrower hereby grants
to the Bank a security interest in and to the Collateral in accordance
with and subject to the terms and provisions of this Security
Agreement. Any and all interests or rights which the Borrower may
have in or to the Collateral shall be, at all times, inferior,
subordinate, and subject to the security interests of the Bank therein
or thereto and shall be extinguished or terminated following, or as a
result of, the Bank's exercise of its rights and remedies under this
Security Agreement.
B. COLLATERAL IN THE BORROWER'S POSSESSION. To the extent that
any item of the Collateral is in the possession of the Borrower, the
above covenants of the Grantor pertaining to such item of the
Collateral shall be those of the Borrower or, with respect to
covenants concerning the maintenance of such item of the Collateral,
inspection rights, reporting requirements, any transfer of such items
of the Collateral and notices, those of both the Borrower and the
Grantor.
8. EVENTS OF DEFAULT. Any one or more of the following described events
shall constitute an event of default ("Event of Default") hereunder:
A. NON-PAYMENT. There shall occur a failure to pay when due any
payment of principal or interest or any other sum referred to in this
Security Agreement or under any other document, instrument or
agreement evidencing or relating to any indebtedness owed by the
Grantor to the Bank or owed to the Bank by any obligor on the
Indebtedness.
B. PERFORMANCE UNDER THIS AND OTHER AGREEMENTS. The Grantor
shall fail in any material respect to perform or observe any term,
covenant or agreement contained in this Security Agreement or in any
document, instrument or agreement evidencing or relating to any
indebtedness of the Grantor or any indebtedness of any obligor on the
Indebtedness (whether such indebtedness is owed to the Bank or
third persons), and any such failure (exclusive of the payment of
money to the Bank, which failure shall constitute and be an immediate
Event of Default if not paid when due or when demanded to be due)
shall continue for more than 30 days after written notice from the
Bank to the Grantor or the obligor on the Indebtedness of the
existence and character of such Event of Default.
C. REPRESENTATIONS AND WARRANTIES; FINANCIAL STATEMENTS. Any
representation or warranty made under or in connection with this
Security Agreement or any financial statement or information given in
connection with the transaction with respect to which this Security
Agreement is entered into shall prove to have been incorrect in any
material respect when made or given or when deemed to have been made
or given.
D. INSOLVENCY. The Grantor or any obligor on or any guarantor of
the Indebtedness shall: (i) become insolvent or be unable to pay its
debts as they mature; (ii) make an assignment for the benefit of
creditors or to an agent authorized to liquidate any substantial
amount of its properties or assets; (iii) file a voluntary petition in
bankruptcy or seeking reorganization or to effect a plan or other
arrangement with creditors; (iv) file an answer admitting the material
allegations of an involuntary petition relating to bankruptcy or
reorganization or join in any such petition; (v) become or be
adjudicated a bankrupt; (vi) apply for or consent to the appointment
of, or consent that an order be made appointing, any receiver,
custodian or trustee, for itself or any of its properties, assets or
businesses; or (vii) any receiver, custodian or trustee shall have
been appointed for all or a substantial part of its properties, assets
or businesses and shall not be discharged within 30 days after the
date of such appointment.
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E. EXECUTION. Any writ of execution or attachment or any
judgment lien shall be issued against the Collateral and shall not be
discharged or bonded against or released within 30 days after the
issuance or attachment of such writ or lien.
F. IMPAIRMENT OF COLLATERAL. There shall occur any injury or
damage to all or any part of the Collateral or all or any part of the
Collateral shall be lost, stolen or destroyed.
G. REVOCATION OR LIMITATION OF GUARANTY. Any guaranty given with
respect to the Indebtedness shall be revoked or limited or its
enforceability or validity shall be contested by any guarantor, by
operation of law, legal proceeding or otherwise or any guarantor who
is a natural person shall die.
H. SUSPENSION. The Grantor or any obligor on the Indebtedness
shall voluntarily suspend the transaction of business or allow to be
suspended, terminated, revoked or expired any permit, license or
approval of any federal, state or municipal agency or authority
necessary to conduct such person's business as now conducted.
I. CHANGE IN OWNERSHIP. There shall occur a sale, transfer,
disposition or encumbrance (whether voluntary or involuntary), or an
agreement shall be entered into to do so, with respect to more than
10% of the issued and outstanding capital stock of the Grantor or any
obligor on the Indebtedness, if a corporation, or there shall occur a
change in any general partner or a change affecting the control of the
Grantor or any obligor on the Indebtedness, if a partnership.
9. BANK'S RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of any
Event of Default, the Bank may, at its sole and absolute election, without
demand and only upon such notice as may be required by law:
A. ACCELERATION. Declare the Indebtedness and any or all other
indebtedness owing to the Bank by the Grantor or any obligor on the
Indebtedness (however such indebtedness may be evidenced or secured)
immediately due and payable, whether or not otherwise due and payable.
B. CEASE EXTENDING CREDIT. Cease extending credit to or for the
account of the Grantor or any obligor on the Indebtedness under any
agreement now existing or hereafter entered into with the Bank.
C. TERMINATION. Terminate any agreement as to any future
obligation of the Bank without affecting the Grantor's obligations to
the Bank or the Bank's rights and remedies under this Security
Agreement or under any other document, instrument or agreement.
D. SEGREGATE COLLECTIONS. Require the Grantor to segregate all
collections and proceeds of the Collateral so that they are capable of
identification and to deliver such collections and proceeds to the
Bank, in kind, without commingling, at such times and in such manner
as required by the Bank.
E. RECORDS OF COLLATERAL. Require the Grantor to periodically
deliver to the Bank records and schedules showing the status,
condition and location of the Collateral and such contracts or other
matters which affect the Collateral. In connection herewith, the Bank
may conduct such audits or other examinations of such records,
including, but not limited to, verification of balances owing by any
account debtor of the Grantor, as the Bank, in its sole and absolute
discretion, deems necessary.
F. NOTIFICATION OF ACCOUNT DEBTORS. Notify any or all of the
Grantor's account debtors, buyers or transferees of the Collateral or
other persons of the Bank's interest in the Collateral and the
proceeds thereof and instruct such person(s) to thereafter make any
payment due the Grantor directly to the Bank.
The Grantor hereby irrevocably constitutes and appoints the Bank as
its attorney-in-fact to (i) endorse the name of the Grantor on any
notes, acceptances, checks, drafts, money orders or other evidence of
payment that may come into the Bank's possession; (ii) sign the name
of the Grantor on any invoice or xxxx of lading relating to any of the
Collateral; (iii) notify post office authorities to change the address
for delivery of mail addressed to the Grantor to such address as the
Bank may designate and take possession of and open mail addressed to
the Grantor and remove therefrom proceeds of and payments on the
Collateral; and (iv) demand, receive and enforce payment and give
receipts, releases and satisfactions for and xxx for all money payable
to the Grantor. All of the preceding may be done either in the name
of the Bank or in the name of the Grantor with the same force and
effect as the Grantor could have done had this Security Agreement not
been entered into.
G. COMPROMISE. Grant extensions, compromise claims and settle
any account for less than the amount owing thereunder, all without
notice to the Grantor or any obligor on or any guarantor of the
Indebtedness.
H. PROTECTION OF SECURITY INTEREST IN COLLATERAL. Make such
payments and do such acts as the Bank, in its sole judgment, considers
necessary and reasonable to protect its security interest in the
Collateral. The Grantor hereby irrevocably authorizes the Bank to
pay, purchase, contest or compromise any encumbrance, lien or claim
which the Bank, in its sole judgment, deems to be prior or superior to
its security interest. Further, the Grantor hereby agrees to pay to
the Bank, upon demand therefor, all expenses and expenditures
(including attorneys' fees) incurred in connection with the foregoing.
I. FORECLOSURE. Enforce any security interest or lien given or
provided for under this Security Agreement or under any other document
relating to the Collateral, in such manner and such order, as to all
or any part of the Collateral, as the Bank, in its sole judgment,
deems to be necessary or appropriate and the Grantor hereby waives any
and all rights, obligations or defenses now or hereafter established
by law relating to the foregoing. In the enforcement of its security
interest in the Collateral, the Bank is authorized to enter upon the
premises where any Collateral is located and take possession of the
Collateral or any part thereof, together with the Grantor's records
pertaining thereto, or the Bank may require the Grantor to assemble
the Collateral and records pertaining thereto and make such Collateral
and records available to the Bank at a place designated by the Bank.
The Bank may sell the Collateral or any portions thereof, together
with all additions, accessions and accessories thereto, giving only
such notices and following only such procedures as are required by
law, at either a public or private sale, or both, with or without
having the Collateral present at the time of sale, which sale shall be
on such terms and conditions and conducted in such manner as the Bank
determines in its sole judgment to be commercially reasonable. Any
deficiency which exists after the disposition or liquidation of the
Collateral shall be a continuing liability of any obligor on or any
guarantor of the Indebtedness and shall be immediately paid to the
Bank.
The Bank may foreclose, either by judicial foreclosure or by exercise
of power of sale, any deed of trust securing any Indebtedness even
though such foreclosure may destroy or diminish the Grantor's rights
against the Borrower. The Borrower shall be liable to the Bank for
any part of any Indebtedness remaining unpaid after any such
foreclosure whether or not such foreclosure was for fair market value.
J. APPLICATION OF PROCEEDS. All amounts received by the Bank as
proceeds from the disposition or liquidation of the Collateral shall
be applied as follows: first, to the costs and expenses of collection,
including court costs and reasonable attorneys' fees, whether or not
suit is commenced by the Bank; next, to those costs and expenses
incurred by the Bank in protecting, preserving, enforcing, collecting,
selling or disposing of the Collateral; next, to the payment of
accrued and unpaid interest on all of the Indebtedness; next, to die
payment of the outstanding principal balance of the Indebtedness; and
last, to the payment of any other indebtedness owed by the Grantor to
the Bank. Any excess Collateral or excess proceeds existing after the
disposition or liquidation of the Collateral will be returned or paid
by the Bank to the Grantor.
K. NON-EXCLUSIVITY OF REMEDIES. Exercise one or more of the
Bank's rights set forth herein or seek such other rights or pursue
such other remedies as may be provided by law, in equity or in any
other agreement now existing or hereafter entered into between the
Bank and the Grantor or any obligor on or guarantor of the
Indebtedness, or otherwise.
(4)
5
L. BORROWER'S AND GRANTOR'S WAIVERS. The Grantor and the
Borrower each waive all rights to require the Bank to: (i) proceed
against the Borrower, any endorser, cosigner, guarantor or other
person liable on any Indebtedness; (ii) proceed against the
Collateral, any particular item of the Collateral or any other or
additional collateral securing any Indebtedness or any guaranty
thereof; or (iii) pursue or refrain from pursuing any other remedy in
the Bank's power whatsoever against any Collateral or on any
Indebtedness.
10. SUBORDINATION. Any indebtedness of the Borrower or any endorser,
cosigner, guarantor or other person liable on any Indebtedness now or hereafter
owed to the Grantor is hereby subordinated to the Indebtedness. Such
indebtedness owed to the Grantor shall, if the Bank so requests, be collected,
enforced and received by the Grantor as trustee for the Bank and be paid over
to the Bank on account of the Indebtedness but without reducing or affecting in
any manner the matters contained in this Security Agreement. Should the
Grantor fail to collect the proceeds of any such indebtedness owed to it and
pay such proceeds to the Bank, the Bank, as the Grantor's attorney-in-fact, may
do such acts and sign such documents in the Grantor's name as the Bank
considers necessary to effect such collection.
11. INVALID, FRAUDULENT OR PREFERENTIAL PAYMENTS. The Grantor agrees
that, to the extent the Borrower or any endorser, cosigner, guarantor or other
person liable on any Indebtedness makes a payment or payments on any
Indebtedness, or is credited for any payment or payments made for or on behalf
of any Indebtedness, which payment or payments, or any part thereof, is
subsequently invalidated, determined to be fraudulent or preferential, set
aside or required to be repaid to any trustee, receiver, assignee or any other
party whether under any bankruptcy, state or federal law or under any common
law or equitable cause or otherwise, then, to the extent thereof, the
obligation or part thereof intended to be satisfied thereby shall be revived,
reinstated and continued in full force and effect as if such payment or
payments had not originally been made or credited.
12. MISCELLANEOUS PROVISIONS.
A. AMOUNTS PAYABLE UNDER THIS SECURITY AGREEMENT. If the Grantor
fails to pay on demand the amount of any obligations referred to in
this Security Agreement, the Bank may pay such amount at its option
and without any obligation to do so and without waiving any default
occasioned by the Grantor's failure to pay such amount. All amounts
so paid by the Bank, together with reasonable attorneys' fees and all
other costs, charges and expenses relating to the Indebtedness, shall
be a part of the Indebtedness and shall bear interest at the highest
rate chargeable on any Indebtedness until paid in full.
B. OTHER TERMS. Terms not otherwise defined in this Security
Agreement shall have the meanings attributed to such terms in the
California Uniform Commercial Code.
C. RELIANCE. Each warranty, representation, covenant and
agreement contained in this Security Agreement shall be conclusively
presumed to have been relied upon by the Bank regardless of any
investigation made or information possessed by the Bank and shall be
cumulative and in addition to any other warranties, representations,
covenants or agreements which the Grantor shall now or hereafter give,
or cause to be given, to the Bank.
D. ATTORNEYS' FEES. In the event of any action in relation to
this Security Agreement, the Collateral or any document, instrument or
agreement secured hereby or related hereto, the prevailing party, in
addition to all other sums to which it may entitled, shall be entitled
to reasonable attorneys' fees.
E. NOTICES. All notices, payments, requests, information and
demands which either party hereto may desire, or be required to give
or make to the other party, shall be given or made to such party by
hand delivery or through deposit in the United States mail, postage
prepaid, or by Western Union telegram, addressed to the address set
forth below such party's signature to this Security Agreement or to
such other address as may be specified from time to time in writing by
either party to the other.
F. WAIVER. Neither the failure nor delay by the Bank in
exercising any right hereunder or under any document, instrument or
agreement mentioned herein shall operate as a waiver thereof, nor
shall any single or partial exercise of any right hereunder or under
any other document, instrument or agreement mentioned herein preclude
other or further exercise thereof or the exercise of any other right;
nor shall any waiver of any right or default hereunder or under any
other document, instrument or agreement mentioned herein constitute a
waiver of any other right or default or constitute a waiver of any
other default of the same or any other term or provision.
G. Assignment. This Security Agreement shall be binding upon and
inure to the benefit of the Grantor and the Bank and their respective
successors and assigns, except that the Grantor shall not have the
right to assign the Grantor's rights hereunder or any interest herein
without the Bank's prior written consent. The Bank may sell or assign
all or any portion of its rights and benefits hereunder and, in
connection therewith, may deliver to such prospective buyer or
assignee financial statements and other relevant information
pertaining to the Grantor or any obligor on the Indebtedness.
H. SEVERABILITY. Should any one or more provisions of this
Security Agreement be determined to be illegal or unenforceable, all
other provisions shall remain effective.
I. JURISDICTION. This Security Agreement and the rights of the
parties hereunder to and concerning the Collateral, and any documents,
instruments or agreements mentioned or referred to herein, shall be
governed by and construed according to the laws of the State of
California, to the jurisdiction of whose courts the parties hereby
submit.
IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement to
be executed as of the date first hereinabove written.
BANK: GRANTOR:
SANWA BANK CALIFORNIA FOUR POINT ENTERTAINMENT, INC.
BY: /s/ XXXX X. XXXXX BY: /s/ XXXXXX X. XXXXXX
--------------------------------- --------------------------------
XXXX X. XXXXX, AUTHORIZED OFFICER XXXXXX X. XXXXXX, PRESIDENT
ADDRESS: ADDRESS:
Xxxxxxx Xxxx Xxxxxx
00000 Xxxxxxx Xxxxxxxxx 0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxx, XX 00000 Xxxx Xxxxxxxxx, XX 00000
(5)
6
BORROWER:
DOVE AUDIO, INC.
BY: /s/ XXXXXXX XXXXX
----------------------------------------
XXXXXXX XXXXX, PRESIDENT/CHAIRMAN
BY: /s/ XXXXXXX XXXXXX
----------------------------------------
XXXXXXX XXXXXX, VICE PRESIDENT/SECRETARY
ADDRESS:
0000 Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, XX 00000
(6)
7
[LOGO]
Sanwa
Bank
California
LOAN DISBURSEMENT INSTRUCTIONS
($1,365,447.27 Term Loan)
Date: 8-16-96 Loan Number:
----------------------- ---------------------
The undersigned hereby instructs Sanwa Bank California to disburse the proceeds
of this loan as shown below:
DISBURSEMENT AMOUNT
1. PAY OFF THE FOLLOWING LOAN WITH SANWA BANK CALIFORNIA: Four Point Entertainment, Inc. $800,702.13
0178362636/00216.
2. PAY OFF THE FOLLOWING LOAN WITH SANWA BANK CALIFORNIA: Four Point Entertainment, Inc. $564,745.14
0178362636/00224.
===============
TOTAL: $1,365,447.27
BORROWER:
DOVE AUDIO, INC.
BY: /s/ XXXXXXX XXXXX
-------------------------------------
XXXXXXX XXXXX, PRESIDENT/CHAIRMAN
BY: /s/ XXXXXXX XXXXXX
-------------------------------------
XXXXXXX XXXXXX, VICE PRESIDENT/SECRETARY
(1)
