EXHIBIT 3
---------
OB
OCEAN BANK
000 X.X. 00XX XXXXXX
XXXXX, XXXXXXX 00000-0000
(000) 000-0000
"LENDER"
COMMERCIAL SECURITY AGREEMENT
OWNER OF COLLATERAL:
GAMETEK, INC.
0000 Xxxxxx Xxxx Xxxxxxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
Telephone Number:
BORROWER LOCATION OF COLLATERAL
GAMETEK, INC. GAMETEK, INC.
0000 XXXXXX XXXX XXXXXXXXX 00000 XXXXXX XXXXXX
XXXXXX, XXXXX XXXXXXXX 00000 SAN FERNANDO, CALIFORNIA
Telephone Number:
1. SECURITY INTEREST. Owner of Collateral ("Owner") grants to Lender
identified above a continuing security interest in the Collateral described
below to secure the obligations described in this Agreement.
2. OBLIGATIONS. The Collateral shall secure the payment and performance
of all of Borrower's and Owner's present and future, joint and/or several,
direct and indirect, absolute and contingent, express and
implied, indebtedness, (including costs of collection, legal expenses
and attorneys' fees incurred by
Lender upon the occurrence of a default under this Agreement, in
collecting or enforcing payment of
such indebtedness, or preserving, protecting or realizing on the
Collateral herein), liabilities, obligations
and covenants (cumulatively "Obligations") to Lender pursuant to:
(a) this Agreement and the following promissory notes and agreements:
Funding/
Interest Principal Amount/ Agreement Maturity Customer Loan
Rate Credit Limit Date Date Number Number
__________ _________________ ___________ _________ _________ __________
Variable $1,663,880.03 02/28/97 12/31/97 100712663-63
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(b) all other present or future, written, agreements between Borrower or
Owner and Lender (whether executed for the same or different purposes than the
preceding documents);
(c) all amendments, modifications, replacements or substitutions to any
of the foregoing; and
(d) applicable law.
3. COLLATERAL. The Collateral shall consist of all of the
following-described property and Owner's rights, title and interest in such
property whether now owned or hereafter acquired by Owner and wheresoever
located:
XX All accounts and contract rights including, but not limited to,
the accounts and contract rights described on Schedule A attached
hereto and incorporated herein by this reference;
XX All chattel paper including, but not limited to, the chattel paper
described on Schedule A attached hereto and incorporated herein
by this reference;
XX All documents including, but not limited to, the documents described
on Schedule A attached hereto and incorporated herein by this
reference;
XX All equipment, including, but not limited to, the equipment
described on Schedule A attached hereto and incorporated herein
by this reference;
XX All fixtures, including, but not limited to, the fixtures located
or to be located on the real property described on Schedule B
attached hereto and incorporated herein by this reference;
XX All general intangibles including, but not limited to, the general
intangibles described on Schedule A attached hereto and
incorporated herein by this reference;
XX All instruments including, but not limited to, the instruments
described on Schedule A attached
hereto and incorporated herein by this reference;
XX All inventory including, but not limited to, the inventory described
and located at the locations
indicated on Schedule A attached hereto and incorporated herein by
this reference;
XX All minerals or the like located on or related to the real property
described on Schedule B attached
hereto and incorporated herein by this reference;
XX All standing timber located on the real property described on
Schedule B attached hereto and
incorporated herein by this reference;
Other:
All monies, instruments, and savings, checking or other deposit accounts that
are now or in the future in Lender's
custody or control (excluding XXX, Xxxxx, trust accounts, and deposits subject
to tax penalties if so assigned);
All accessions, accessories, additions, amendments, attachments,
modifications, replacements and substitutions to
any of the above;
All proceeds and products of any of the above;
All policies of insurance pertaining to any of the above as well as any
proceeds and unearned premiums pertaining to such policies; and
All books and records pertaining to any of the above.
4. OWNER'S TAXPAYER IDENTIFICATION. Owner's social security number or
federal taxpayer identification number is: 00-0000000 .
5. RESIDENCY/LEGAL STATUS. Owner is a resident of the state of: n/a.
Owner is a: XXX Corporation; Partnership; Non-Profit Association; duly
organized, validly existing and in good standing under the laws of the state
of: DELAWARE.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS. Owner represents, warrants
and covenants to Lender that:
(a) Owner is and shall remain the sole owner of the Collateral;
(b) Neither Owner nor, to the best of Owner's knowledge, any other party
has used, generated, released, discharged, stored, or disposed of any hazardous
waste, toxic substance, or related material
(cumulatively "Hazardous Materials") or transported any Hazardous
Materials. Owner shall not commit or permit such actions to be taken in the
future. The term "Hazardous Materials" shall mean
any substance, material, or waste which is or becomes regulated by
any governmental authority
including, but not limited to, (i) petroleum; (ii) asbestos; (iii)
polychlorinated biphenyls; (iv) those
substances, materials or wastes designated as a "hazardous substance"
pursuant to Section 311 of the Clean Water Act or listed pursuant to Section
307 of the Clean Water Act or any amendments or
replacements to these statutes; (v) those substances, materials or
wastes defined as a "hazardous
waste" pursuant to Section 1004 of the Resource Conservation and
Recovery Act or any amendments
or replacements to that statute; or (vi) those substances, materials
or wastes defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation
and Liability Act, or any amendments or replacements to that statute;
Page 1 of 4 s/JWB;MV Initials
(c) Owner's chief executive office, chief place of business, office
where its business records are located,
or residence is the address identified above. Owner's other
executive offices, places of business,
locations of its business records, or domiciles are described on
Schedule C attached hereto and
incorporated herein by this reference. Owner shall immediately
advise Lender in writing of any change in or addition to the foregoing
addresses;
(d) Owner shall not become a party to any restructuring of its form of
business or participate in any
consolidation, merger, liquidation or dissolution without providing
Lender with thirty (30) or more
days' prior written notice of such change;
(e) Owner shall notify Lender of the nature of any intended change of
Owner's name, or the use of any trade name, and the effective date of such
change;
(f) The Collateral is and shall at all times remain free of all tax and
other liens, security interests,
encumbrances and claims of any kind except for those belonging to
Lender and those described on
Schedule D attached hereto and incorporated herein by this reference.
Without waiving the event of default as a result thereof, Owner shall take
any action and execute any document needed to
discharge the foregoing liens, security interests, encumbrances and claims;
(g) Owner shall defend the Collateral against all claims and demands of
all persons at any time claiming any interest therein;
(h) All of the goods, fixtures, minerals or the like, and standing
timber constituting the Collateral is and
shall be located at Owner's executive offices, places of business,
residence and domiciles specifically
described in this Agreement. Owner shall not change the location of
any Collateral without the prior
written consent of Lender;
(i) Owner shall provide Lender with possession of all chattel paper and
instruments constituting the
Collateral, and Owner shall promptly xxxx all chattel paper,
instruments, and documents constituting
the Collateral to show that the same are subject to Lender's security interest;
(j) All of Owner s accounts or contract rights; chattel paper;
documents; general intangibles;
instruments; and federal, state, county, and municipal government and
other permits, licenses, trusts,
liens, contracts, leases, and agreements constituting the Collateral
are and shall be valid, genuine and
legally enforceable obligations and rights belonging to Owner against
one or more third parties and
not subject to any claim, defense, set-off or counterclaim of any kind;
(k) Owner shall not amend, modify, replace, or substitute any account or
contract right; chattel paper; document; general intangible; or instrument
constituting the Collateral without the prior written consent of Lender;
(l) Owner has the right and is duly authorized to enter into and perform
its obligations under this
Agreement. Owner's execution and performance of these obligations do
not and shall not conflict
with the provisions of any statute, regulation, ordinance, rule of law,
contract or other agreement which may now or hereafter be binding on Owner;
(m) No action or proceeding is pending against Owner which might result
in any material or adverse
change in its business operations or financial condition or
materially affect the Collateral;
(n) Owner has not violated and shall not violate any applicable federal,
state, county or municipal
statute, regulation or ordinance (including but not limited to those
governing Hazardous Materials)
which may materially and adversely affect its business operations or
financial condition or the Collateral;
(o) Owner shall, upon Lender's request, after an event of default (not
timely cured) deposit all proceeds
of the Collateral into an account or accounts maintained by Owner or
Lender at Lender's institution; and
(p) This Agreement and the obligations described in this Agreement are
executed and incurred for business and not consumer purposes.
7. SALE OF COLLATERAL. Owner shall not assign, convey, lease, sell or
transfer any of the Collateral to
any third party without the prior written consent of Lender except for
sales of inventory to buyers in the ordinary course of business.
8. FINANCING STATEMENTS AND OTHER DOCUMENTS. Owner shall take all actions
and execute all documents required by Lender to attach, perfect and maintain
Lender's security interest in the
Collateral and establish and maintain Lender's right to receive the
payment of the proceeds of the Collateral including, but not limited to,
executing any financing statements, fixture filings, continuation
statements, notices of security interest and other documents required
by the Uniform Commercial Code and other applicable law. Owner shall pay
the costs of filing such documents in all offices wherever
filing or recording is deemed by Lender to be necessary or desirable.
In lieu of filing security agreements, financing statements, and effective
financing statements, Lender shall be entitled to perfect its security
interest in the Collateral by filing carbon, photographic or other
reproductions of the aforementioned documents with any authority required by
the Uniform Commercial Code or other
applicable law. Lender may execute and file any financing statements,
as well as extensions, renewals and amendments of financing statements in
such form as Lender may require to perfect and maintain
perfection of any security interest granted in this Agreement.
9. INQUIRIES AND NOTIFICATION TO THIRD PARTIES. Owner hereby authorizes
Lender to contact
any third party and make any inquiry pertaining to Owner's financial
condition or the Collateral. In
addition, Lender is authorized to provide oral or written notice of its
security interest in the Collateral to any third party.
10. COLLECTION OF INDEBTEDNESS FROM THIRD PARTIES. Lender shall be
entitled to notify, and upon the request of Lender, Owner shall notify any
account debtor or other third party (including, but not
limited to, insurance companies) to pay any indebtedness or obligation
owing to Owner and constituting
the Collateral (cumulatively "Indebtedness") to Lender upon an event of
default (not timely cured).
Owner shall diligently collect the Indebtedness owing to Owner from its
account debtors and other third
parties until the giving of such notification. In the event that Owner
possesses or receives possession of
any instruments or other remittances with respect to the Indebtedness
following the giving of such
notification or if the instruments or other remittances constitute the
prepayment of any Indebtedness or
the payment of any insurance proceeds, Owner shall hold such
Instruments and other remittances in trust
for Lender apart from its other property, endorse the instruments and
other remittances to Lender, and
immediately provide Lender with possession of the instruments and other
remittances. Lender shall be
entitled, but not required, to collect (by legal proceedings or
otherwise), extend the time for payment,
compromise, exchange or release any obligor or collateral upon, or
otherwise settle any of the
Indebtedness for so long as an event of default exists under this
Agreement. Lender shall not be liable to
Owner for any action, error, mistake, omission or delay pertaining to
the actions described in this
paragraph or any damages resulting therefrom.
11. POWER OF ATTORNEY. Owner hereby appoints Lender as its
attorney-in-fact to endorse Owner's
name on all instruments and other remittances payable to Owner with
respect to the Indebtedness or other
documents pertaining to Lender's actions in connection with the
Indebtedness. In addition, Lender shall
be entitled, but not required, to perform any action or execute any
document required to be taken or
executed by Owner under this Agreement. Lender's performance of such
action or execution of such
documents shall not relieve Owner from any obligation or cure any
default under this Agreement. The
powers of attorney described In this paragraph are coupled with an
interest and are irrevocable. Such
power of attorney shall only be exercisable upon the occurrence of a
default not timely cured.
12. USE AND MAINTENANCE OF COLLATERAL. Owner shall use the Collateral
solely in the ordinary
course of its business, for the usual purposes intended by the
manufacturer (if applicable), with due care,
and in compliance with the laws, ordinances, regulations, requirements
and rules of all federal, state,
county and municipal authorities including environmental laws and
regulations and insurance policies.
Owner shall not make any alterations, additions or improvements to the
Collateral without the prior
written consent of Lender. Without limiting the foregoing, all
alterations, additions and improvements
made to the Collateral shall be subject to the security interest
belonging to Lender, shall not be removed
without the prior written consent of Lender, and shall be made at
Owner's sole expense. Owner shall
take all actions and make any repairs or replacements needed to
maintain the Collateral in good condition
and working order.
13. LOSS OR DAMAGE. Owner shall bear the entire risk of any loss, theft,
destruction or damage
(cumulatively "Loss or Damage") to all or any part of the Collateral.
In the event of any Loss or
Damage, Owner will either restore the Collateral to its previous
condition, replace the Collateral with
similar property acceptable to Lender in its sole discretion, or pay or
cause to be paid to Lender the
decrease in the fair market value of the affected Collateral.
14. INSURANCE. The Collateral will be kept insured for its full value
against all hazards including loss or
damage caused by fire, collision, theft or other casualty. It the
Collateral consists of a motor vehicle,
Owner will obtain comprehensive and collision coverage in amounts at
least equal to the actual cash
value of the vehicle with deductibles not to exceed $500. Owner may
obtain insurance on the Collateral
from such companies as are acceptable to Lender in its sole discretion.
The insurance policies shall
require the insurance company to provide Lender with at least thirty
(30) days' written notice before such
policies are altered or cancelled in any manner. The insurance
policies shall name Lender as a loss payee
and provide that no act or omission of Owner or any other person shall
affect the right of Lender to be
paid the insurance proceeds pertaining to the loss or damage of the
Collateral. In the event Owner tails to
acquire or maintain insurance, Lender (after providing notice as may be
required by law) may in its
discretion procure appropriate insurance coverage upon the Collateral
and charge the insurance cost as an
advance of principal under the promissory note. Owner shall furnish
Lender with evidence of insurance
indicating the required coverage. Lender may act as attorney-in-fact
for Owner in making and settling
claims under insurance policies, cancelling any policy or endorsing
Owner's name on any draft or
negotiable instrument drawn by any insurer.
15. INDEMNIFICATION. Lender shall not assume or be responsible for the
performance of any of Owner's
obligations with respect to the Collateral under any circumstances.
Owner shall immediately provide
Lender with written notice of and indemnify and hold Lender and its
shareholders, directors, officers,
employees and agents harmless from all claims, damages, liabilities
(including attorneys' fees and legal
expenses), causes of action, actions, suits and other legal proceedings
(cumulatively "Claims'') pertaining
to its business operations or the Collateral including, but not limited
to, those arising from Lender's
performance of Owner's obligations with respect to the Collateral.
Owner, upon the request of Lender,
shall hire legal counsel to defend Lender from such Claims, and pay the
attorneys' fees, legal expenses
and other costs incurred in connection therewith. In the alternative,
Lender shall be entitled to employ its
own legal counsel to defend such Claims at Owner's cost.
16. TAXES AND ASSESSMENTS. Owner shall execute and file all tax returns
and pay all taxes, licenses,
fees and assessments relating to its business operations and the
Collateral (including, but not limited to,
income taxes, personal property taxes, withholding taxes, sales taxes,
use taxes, excise taxes and workers'
compensation premiums) in a timely manner.
17. INSPECTION OF COLLATERAL AND BOOKS AND RECORDS. Owner shall allow
Lender or its
agents to examine, inspect and make abstracts and copies of the
Collateral and Owner's books and
records pertaining to Owner's business operations and financial
condition or the Collateral during normal
business hours. Owner shall provide any assistance required by Lender
for these purposes. All of the
signatures and information pertaining to the Collateral or contained in
the books and records shall be
genuine, true, accurate and complete in all respects. Owner shall note
the existence of Lender's security
interest in its books and records pertaining to the Collateral.
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18. DEFAULT. Owner shall be in default under this Agreement in the event
that Owner, Borrower or any guarantor:
(a) fails to make any payment under this Agreement or any other
indebtedness to Lender when due and no cure within 10 days of notice;
(b) fails to perform any obligation or breaches any warranty or covenant
to Lender contained in this
Agreement or any other present or future, written or oral, agreement
regarding this or any other
indebtedness to Lender and no cure within 10 days of notice;
(c) provides or causes any false or misleading signature or
representation to be provided to Lender;
(d) allows the Collateral to be destroyed, lost or stolen, damaged in
any material respect, or subjected to seizure or confiscation;
(e) seeks to revoke, terminate or otherwise limit its liability under
any continuing guaranty;
(f) permits the entry or service of any garnishment, judgment, tax levy,
attachment or lien against Owner, any guarantor, or any of their property;
(g) dies, becomes legally incompetent, is dissolved or terminated,
ceases to operate its business, becomes
insolvent, makes an assignment for the benefit of creditors, or
becomes the subject of any
bankruptcy, insolvency or debtor rehabilitation proceeding, not
discharged within 30 days;
(h) allows the Collateral to be used by anyone to transport or store
goods, the possession, transportation, or use of which, is illegal; or
(i) causes Lender to deem itself insecure for any reason.
19. RIGHTS OF LENDER ON DEFAULT. If there is a default under this
Agreement not timely cured
Lender shall be entitled to exercise one or more of the following
remedies without notice or demand (except as required by law):
(a) to declare the Obligations immediately due and payable in full;
(b) to collect the outstanding Obligations with or without resorting to
judicial process;
(c) to change Owner's mailing address, open Owner's mail, and retain any
instruments or other remittances constituting the Collateral contained therein;
(d) to take possession of any Collateral in any manner permitted by law;
(e) to apply for and obtain, without notice and upon ex parte
application, the appointment of a receiver
for the Collateral without regard to Owner's financial condition or
solvency, the adequacy of the
Collateral to secure the payment or performance of the obligations,
or the existence of any waste to the Collateral;
(f) to require Owner to deliver and make available to Lender any
Collateral at a place reasonably convenient to Owner and Lender;
(g) to sell, lease or otherwise dispose of any Collateral and collect
any deficiency balance with or
without resorting to legal process (if notice to Borrower of the
intended disposition of the Collateral is required by law, five (5) days
notice shall constitute reasonable notification);
(h) to set-off Owner's obligations against any amounts due to Owner
including, but not limited to,
monies, instruments, and deposit accounts maintained with Lender: and
(i) to exercise all other rights available to Lender under any other
written agreement or applicable law.
Lender's rights are cumulative and may be exercised together, separately, and
in any order. If notice to Owner of
intended disposition of Collateral is required by law, five (5) days' notice
shall constitute reasonable notification.
In the event that Lender institutes an action to recover any Collateral or
seeks recovery of any Collateral by way
of a prejudgment remedy in an action against Owner, Owner waives the posting
of any bond which might otherwise be required. Lender's remedies under this
paragraph are in addition to those available at common law, such as setoff.
20. WAIVER OF JURY TRIAL. LENDER AND OWNER HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN
RESPECT TO ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN
CONJUNCTION WITH THE PROMISSORY NOTE, THIS AGREEMENT AND ANY OTHER
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH OR
THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION
IS A MATERIAL INDUCEMENT FOR LENDER MAKING THE LOAN EVIDENCED BY THE
PROMISSORY NOTE.
21. APPLICATION OF PAYMENTS. Upon the occurrence of a default not timely
cured, all payments made
by or on behalf of Owner and all credits due to Owner from the
disposition of the Collateral or otherwise
may be applied against the amounts paid by Lender (including attorneys'
fees and legal expenses) in
connection with the exercise of its rights or remedies described in
this Agreement and any interest
thereon and then to the payment of the remaining Obligations in
whatever order Lender chooses.
22. REIMBURSEMENT OF AMOUNTS EXPENDED BY LENDER. Owner shall reimburse
Lender for all amounts (including attorneys' fees and legal expenses) expended
by Lender in the performance of any
action required to be taken by Owner or the exercise of any right or
remedy belonging to Lender under
this Agreement, together with interest thereon at the lower of the
highest rate described in any
promissory note or credit agreement executed by Borrower or Owner or
the highest rate allowed by law
from the date of payment until the date of reimbursement. These sums
shall be included in the definition
of Obligations, shall be secured by the Collateral identified in this
Agreement and shall be payable upon demand.
23. ASSIGNMENT. Owner shall not be entitled to assign any of its rights,
remedies or obligations described
in this Agreement without the prior written consent of Lender. Consent
may be withheld by Lender in its
sole discretion. Lender shall be entitled to assign some or all of its
rights and remedies described in this
Agreement without notice to or the prior consent of Owner in any manner.
24. MODIFICATION AND WAIVER. The modification or waiver of any of Owner's
Obligations or Lender's rights under this Agreement must be contained in a
writing signed by Lender. Lender may perform any of Owner's Obligations or
delay or fail to exercise any of its rights without causing a waiver
of those Obligations or rights. A waiver on one occasion shall not
constitute a waiver on any other
occasion. Owner's Obligations under this Agreement shall not be
affected if Lender amends,
compromises, exchanges, fails to exercise, impairs or releases any of
the obligations belonging to any
Owner or third party or any of its rights against any Owner, third
party or collateral.
25. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of
Owner and Lender and their respective successors, assigns, trustees,
receivers, administrators, personal representatives, legatees, and devisees.
26. NOTICES. Any notice or other communication to be provided under this
Agreement shall be in writing
and sent to the parties at the addresses described in this Agreement or
such other address as the parties may designate in writing from time to time.
27. SEVERABILITY. If any provision of this Agreement violates the law or
is unenforceable, the rest of the Agreement shall remain valid.
28. APPLICABLE LAW. This Agreement shall be governed by the laws of the
state identified in Lender's
address. Owner consents to the jurisdiction and venue of any court
located in the state indicated in
Lender's address in the event of any legal proceeding under this Agreement.
29. COLLECTION COSTS. If Lender hires an attorney to assist in collecting
any amount due or enforcing
any right or remedy under this Agreement, Owner agrees to pay Lender's
reasonable attorneys' fees and
collection costs (subject to any restrictions imposed by law).
30. MISCELLANEOUS. This Agreement is executed for commercial purposes.
Owner shall supply
information regarding Owner's business operations and financial
condition or the Collateral in the form
and manner requested by Lender. All information furnished by Owner to
Lender shall be true, accurate
and complete in all respects. Owner and Lender agree that time is of
the essence. Owner waives
presentment, demand for payment, notice of dishonor and protest except
as required by law. All
references to Owner in this Agreement shall include all parties signing
below except Lender. If there is
more than one Owner, their obligations shall be joint and several.
This Agreement shall remain in full
force and effect until Lender provides Owner with written notice of
termination. This Agreement and
any related documents represent the complete and integrated
understanding between Owner and Lender
pertaining to the terms and conditions of those documents.
31. ADDITIONAL TERMS:
Owner acknowledges that Owner has read, understands, and agrees to the terms
and conditions of this Agreement.
Dated: FEBRUARY 28, 1997
OWNER: GAMETEK, INC. OWNER:
By: s/ X. Xxxxxxx Blue By:_________________________________
___________________________
Xxxxxxx Blue
Title: Auth. Signer Title:_______________________________
_________________________
OWNER: OWNER:
By:______________________________ By:_________________________________
Title:___________________________ Title:_______________________________
LENDER: OCEAN BANK
By: s/ Xxxxxx X. Xxxxxx By:_________________________________
------------------------------
Xxxxxx X. Xxxxxx
Title: Vice President
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