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EXHIBIT 10.34
LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT ("agreement") is dated this 19th day of
December, 1997, by and between Inland Entertainment Corporation, a Utah
corporation, whose principal place of business is located at 00000 Xxx Xxx Xxxxx
Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000, as Lender and Secured Party (Lender), and
Xxxxxxxxxxx Xx. Xxxxxx, residing at 0000 Xxxxxxxxxxx Xxxxx, Xxxxxxxx, XX. 00000
(Debtor).
Recitals
The Lender, on or about August 25, 1997 and November 20, 1997, loaned
to the Debtor the sums of Four-Thousand Four-Hundred and Sixty-Two ($4,462.00)
Dollars and Forty-Five Thousand ($45,000.00) Dollars, respectively, totaling
Forty-Nine Thousand, Four-Hundred and Sixty-Two ($49,462.00) Dollars, said sums
which the Debtor has agreed to repay with interest at the rate of 8 percent per
annum, as evidenced by the Debtor' promissory note attached hereto and
incorporated by reference herein as Exhibit "A".
That Lender and Debtor enter into this written agreement to memorialize
the terms and conditions of the loan agreement and to more fully set forth the
terms and conditions thereof.
It is Therefore Agreed:
1. Obligation to pay - Execution and delivery of promissory note. The Debtor,
concurrently with the execution and delivery of this agreement, will execute and
deliver to the Lender a promissory note in favor of the Lender evidencing the
combined loan amount of $49,462.00 and the terms and conditions of payment
including principal and interest.
2. Collateral. The Debtor desires to enter into this agreement for the purpose
of creating a security interest in favor of Lender as Secured Party, in the real
and personal property listed and described in Exhibit "B", the same attached
hereto and incorporated by reference herein, and in all additions and accessions
thereto, substitutions thereof and all proceeds of their sale or disposition
(all hereinafter referred to collectively as "collateral").
3. Creation of security interest. The Debtor, in order to secure (1) payment of
the debt evidenced by the note, including renewals and extensions thereof; (2)
all costs and expenses incurred in collection of the note; and (3) all future
advances made by the Lender, hereby grants to the Lender a security interest in
the collateral described in Exhibit "B".
4. Care, use and disposition of collateral. The Debtor shall use reasonable care
in maintaining the collateral and until and unless default occurs hereunder, the
Debtor shall be entitled to the sole and exclusive possession, use, and
enjoyment of the collateral including, in the case of any and all real property
collateralized hereby, the right to lease, rent, or sell said real property. In
all other cases, the Debtor shall not encumber, dispose, hypothecate,
collateralize, or transfer the collateral or any part or interest therein except
in accordance with the terms and provisions set forth in paragraph 5
hereinbelow.
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5. Sale, transfer, or other disposition of real property collateral. The Debtor
shall have the right to sell the real property and/or any interest therein
during the term of this agreement. It is agreed that in the case of any such
sale the Debtor shall have the option of applying the proceeds of the sale
towards the purchase of other real property or towards and against the principal
amount owed and outstanding. In any instance in which the Debtor sells the real
property and/or any interest therein and does not elect to apply the proceeds of
the sale towards the purchase of other real property, then the net proceeds
thereof shall be paid over to the Lender to be applied against the principal
amount owed and outstanding. To the extent that the net proceeds exceed the
principal amount owed, the balance shall be retained by the Debtor.
The Debtor shall also have the right to transfer, will, devise, or
bequeath his interest in the real property to his spouse for purposes of
protecting her interest in their marital estate including any and all community
or quasi-community property rights and interests; however, any such transfer
shall be subject the terms and conditions of this agreement and the promissory
note attached hereto. If so desired by the Lender and prior to any such transfer
or testimonial disposition of the real property, the Debtor shall require the
spouse to execute an addendum to this agreement deemed reasonably necessary to
protect the Lender=s security interest therein.
The Debtor shall not otherwise encumber, pledge, hypothecate, transfer,
create any security interest therein, collateralize, or otherwise dispose of the
collateral or any of Debtor=s rights or interests therein without the prior
written consent of the Lender or as allowed under this agreement.
6. Default and remedies. In the event that the Debtor defaults in the payment of
the principal or interest of the loan, or in the payment of the expenses
mentioned in paragraph 3, the Lender may, on ten days= notice to the Debtor,
sell such of the real property, and/or garnish and attach the wages of the
Debtor, as will be sufficient to pay such principal, interest, and expenses, and
the Lender may become the purchaser at any such sale. The proceeds of any such
sale shall be retained by the Lender and applied in the following order:
principal, interest, expenses; and shall pay any balance of the proceeds to the
Debtor. In the event that the proceeds of sale are insufficient to pay the
Lender in full, the Debtor shall remain liable to the Lender for any deficiency.
In addition to the remedies set forth above, upon default, Lender shall have any
and all rights and remedies at law and in equity as may be recognized at the
time of default and which are not inconsistent with the terms hereof.
7. Title and warranties. Debtor warrants that he has good, marketable and clear
title to the real property, subject to any and all encumbrances and liens of
record, lease and/or rental agreements, and subject to any and all community or
quasi-community property interest in said property. It is expressly agreed and
understood by the parties hereto that the real property is currently subject to,
and will continue to be subject to a lease and/or rental agreement with an
option to purchase
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by the Lessee, and that the Debtor shall have the sole and exclusive right to
renew, extend, release, or relet the real property on terms and conditions
agreeable to the Debtor and Lessee provided the same does not materially
jeopardize or damage the Lenders= security interests therein.
8. Merger. The terms and conditions of this agreement shall merge with and
become part of any and all subsequent and collateral agreements entered into by
and between the parties as if more fully set forth herein.
9. Governing law. The terms and conditions of this agreement shall be governed,
construed, and enforced in accordance with the laws of the State of California,
regardless of the laws that may be applicable under the principles of conflicts
of law.
10. Recitals. The recitals to this agreement shall constitute part of this
agreement.
11. Binding effect. The parties hereby agree that the terms and conditions of
this agreement shall inure to the benefit of and shall be binding upon the
parties hereto, their successors, heirs, transferees, and assigns.
12. Entire agreement. This agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter described.
All prior or contemporaneous agreements, understandings, representations,
warranties, and statements, oral or written, relating to the subject matter are
superseded and without effect. No modification to this agreement shall be
binding unless in writing and executed by the parties or their lawful
representatives.
13. Counterparts. This agreement may be signed in multiple counterparts, each of
which shall have the same effect as originals, but all such counterparts
collectively shall constitute the same instrument.
This agreement shall become effective and binding upon the parties
hereto on the date and year first above written.
Lender: Debtor:
Inland Entertainment Corporation Xxxxxxxxxxx Xx. Voisin
a Utah corporation
By: /s/ L. XXXXXX XXXXX, XX By: /s/ XXXXXXXXXXX XX. VOISIN
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L. Xxxxxx Xxxxx, XX Xxxxxxxxxxx Xx. Voisin
Title: President
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EXHIBIT "A"
PROMISSORY NOTE
For value received, and in accordance with the terms and conditions of
the Loan and Security Agreement (the "loan agreement"), the undersigned
("Promisor") promises to pay to Inland Entertainment Corporation, a Utah
corporation (the "Corporation"), or order, at 16868 Xxx Xxx Xxxxx Xxxxx, Xxxxx
000, Xxx Xxxxx, XX. 00000 the sum of FORTY-NINE THOUSAND, FOUR-HUNDRED AND
SIXTY-TWO ($49,462.00) DOLLARS with 8 percent interest, fixed rate, per annum,
payable in monthly installments of equal amounts on the same date of each month
thereafter until paid in full, said installments payable on interest and
principal as follows:
1. INTEREST ONLY PAYMENT - INSTALLMENT PERIOD. Promisor shall make interest only
payments to the CORPORATION in equal monthly installments of $329.75, the same
due and payable on the fifteenth day of each month commencing January 15, 1998
and continuing thereafter until October 15, 1998. At the expiration of said
installment period, Promisor and the Corporation may agree to extend the period
of interest only installment payments for an additional six (6) months. If the
parties elect not to extend said period, the Promisor shall thereafter make
payments in accordance with paragraph 2 herein. At any time during this period,
Promisor may elect to make additional payments, the same to be applied towards
the outstanding principal only.
2. PRINCIPLE AND INTEREST - MONTHLY INSTALLMENTS. Subsequent to the expiration
of the interest only payment installment period, Promisor shall pay to the
Corporation, in equal monthly installments, the sum of $1,000.00 per month
including principal and interest, for a period of thirty-six (36) months
commencing November 15, 1998 and continuing through October 15, 2001.
3. BALLOON PAYMENT. That on or about November 15, 2001, Promisor shall
pay-in-full, to the Corporation, any and all balance due and owed to the
Corporation under the terms and conditions of this promissory note and the loan
agreement.
4. LATE CHARGE. Whenever payment of any installment is in default for at least
ten (10) days, a penalty in the amount of five (5%) percent on the unpaid
installment shall be assessed; and
5. COLLECTION COSTS. Should legal proceedings be instituted to collect any
amount due hereunder, a sum equal to all collection costs and expenses,
including attorney=s fees shall be assessed and due hereunder.
6. ACCEPTANCE OF LATE PAYMENT. The acceptance by the Corporation of any
installment after any default shall not operate to extend the time of payment of
any amount then remaining unpaid or constitute a waiver of any of the other
rights of the Corporation.
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7. COLLATERAL. To secure payment of this note, and of any liability of
liabilities of the Promisor to the Corporation, due or to become due, or that
may hereafter be contracted or existing, the Promisor has entered into a loan
and security agreement with the Corporation, granting the Corporation a security
interest in any and all real and personal property set forth and listed on
Exhibit "B" to said loan agreement.
8. PREPAYMENT. Promisor, at its election, may make additional payments as
against the principal amount due and owed under the terms of the loan agreement
and this promissory note. In doing so Promisor shall suffer no prepayment
penalty.
9. DEFAULT REMEDIES. In case of default in the payment of this promissory note,
the Corporation shall have all rights in the collateral given under the terms
and conditions of the loan agreement together with any and all rights and
remedies at law or in equity, not inconsistent with the terms and conditions of
the loan agreement, existing at the time of said default and as may be
enforceable in the State of California.
10. ACCELERATION, WAIVERS. The Corporation may accelerate the due date of this
instrument and demand immediate payment whenever default shall occur and the
Corporation in good faith believe that the prospect of payment is impaired. The
Promisor waives presentment demand, notice of dishonor, protest, and all other
notices or demands in connection with the delivery, acceptance, performance,
default, or endorsement of this promissory note.
11. MERGER. The terms and conditions of this promissory note shall merge with
and become part of any and all previous, subsequent, and collateral agreements,
including the loan agreement entered into by and between the Promisor and the
Corporation.
12. GOVERNING LAW. The terms and conditions of this promissory note shall be
governed, construed, and enforced in accordance with the laws of the State of
California, regardless of the laws that may be applicable under the principle of
conflicts of law.
DATED THIS 19TH DAY OF DECEMBER, 1997.
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EXHIBIT "B"
TO
LOAN AND SECURITY AGREEMENT
COLLATERAL SUBJECT TO LOAN AND SECURITY AGREEMENT
The following real and personal property ("Collateral") is hereby subject to
that certain Loan and Security Agreement ("Agreement") entered into on the 19th
day of December, 1997 by and between Inland Entertainment Corporation ("Lender")
and Xxxxxxxxxxx Xx. Xxxxxx ("Debtor"):
1. Real Property:
(a) Debtor's residence located at 0000 Xxxx Xxxxx Xx., Xxx Xxxxx,
Xxxxxx 00000
2. Personal Property:
(a) None
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