LOAN AND SECURITY AGREEMENT
(EQUIPMENT)
Loan No.: 207-02
Loan Date: 12/23/96
Loan and Security Agreement entered into as of the 23rd day of December, 1996
(the "Agreement") by and between INDEPENDENT RESOURCES, INC. a New York
corporation with its principal offices at 00 Xxxx Xxxxxx, Xxxxxxxxxx Xxxxxxxxxxx
000000 ("Lender") and NEW YORK SKYLINE, INC. a New York State Corporation with
its principal office at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 ("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 One Million Five Hundred Thousand Dollars
($1,500,000.00) ("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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ADVANCE PAYMENT NUMBER OF INSTALLMENTS PERIODIC INSTALLMENT PAYMENT
(Exclusive of Advance Payment) AMOUNT PER PERIOD
AND PAYMENT PERIOD
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$117,400.53 Forty-five (45) Monthly $39,133.50
Payments
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Commencement Date: ______________ Security Deposit (if any): __________
Equipment Location (if other than above address of Borrower): __________________
Equipment Description: See Schedule "A" attached hereto and made a part hereof
Special Provisions (if any): ________________________________
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 of, 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 entirety 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 of intangible property, 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 property 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,
provided, however, that Borrower shall not make any changes or alterations in or
to the Equipment except as necessary for compliance with this section. 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 them 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
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Accepted at Lender's Office The undersigned signatory affirms that he/she has
at Litchfield, Connecticut read the terms and conditions printed above and on
the reverse side, that he/she is a duly authorized
officer, partner or proprietor of the Borrower,
and has authority to execute this Loan and
Security Agreement on its behalf.
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LENDER: BORROWER:
INDEPENDENT RESOURCES, INC. NEW YORK SKYLINE, INC.
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AUTHORIZED OFFICER: AUTHORIZED OFFICER, PARTNER OR PROPRIETOR:
BY: BY:
TITLE TITLE
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(1)
TERMS AND CONDITIONS OF LOAN AND SECURITY AGREEMENT (CONTINUED)
8. TAXES AND OTHER CHARGES. Borrower agrees to pay promptly when due all
registration, title, license and other fees, assessments 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,
Borrower shall execute 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 its 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 form 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 statute, 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 not
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 PROCEEDING BASED UPON THIS AGREEMENT.
The Lender shall have all the rights and remedies of a Secured Party under
the Uniform Commercial Code and all other rights and remedies available to
creditors at law or in equity. 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 least 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 PROVISIONS. 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 duly 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 the
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 Lithcfield Connecticut office.
(2)
LOAN AND SECURITY AGREEMENT
SCHEDULE A
The following description of property supplements, and is part of, the Loan and
Security Agreement dated December 23, 1996, and numbered 207-02, between the
undersigned Borrower 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.
Engineering Room:
1 Hewlett Packard - Oscilloscope, MDL# 1220A
1 Lot of Misc., Shop Room Equipment, C/O: Various Office Furniture, Hand
Tools, Power Tools, Small Air Compressor, Multimeter, Etc.
1 COMPAQ - Personal Computer, MDL# Presario 433, w/ Monitor, Keyboard, and
Mouse
1 Xxxxxx - Vertical Platform Lift, MDL# VPL Series 2000, 20' Height, Assoc.
Equipment
Gift Shop:
1 Intercon-X Virtual Reality System, w/ (2) Pods, "Cyberbase SU2000", w/
Insert Card Reader, Goggles, Attached, Assoc. Equipment
1 Lot Of - Gift Shop Cabinets, Racks, Wall and Freestanding Type, Etc.
1 Lot Of - Food Court Equipment, C/O: (1) Beveragaire - Cooler, (1) Ice
Cream Freezer, Top Opening, (1) Cotton Candy Machine, (1) Popcorn Machine,
(1) Beveragaire - Refrigerator, Under-The-Counter Type, (1) Soft Pretzel
Warmer, (2) Hot Dog Warmers, (1) Cash Register, w/ Verifone - Printer, Mod.
9000U, (1) Beveragaire - Cooler, (1) Coinmaster - Counter, Type "Elite",
(1) Coffee Maker, (1) Pepsi Cola - Dispenser Unit
Office:
1 Xerox - Copier MDL# 5320, w/ Cabinet Base
1 Realistic - Amplifier, MDL# MPA-95
1 AT&T - Telephone System, MDL# Partner Plus, w/ (2) 400E Expansion
Modules, (1) Partner - Mail VS R1 Module, (1) Processor Module, Mod. 206E,
Assoc. Handsets, and Equipment
page 1 of 6 Borrower Initial: _____
Lender Initial: _____
Office Continued:
1 Chair, Wood, Upholstered, Swivel Base
1 Print Stand, Metal, 3 Tier, Laminate Finish
1 Desk, Metal, Single Pedestal, 2 Drawer, Laminate Finish
1 Hewlett Packard - Laser Printer, MDL# LASERJET 4P
1 Hewlett Packard - Fax Machine, MDL# FAX 900
1 Amano - Time Clock, MDL# MJR7000, Digital, w/ Card Rack
1 Motorolla - Charge Unit, 6-Bay, w/ (8) Motorolla - Hand Sets, Mod. Radius
CP-300
1 Credenza, Wood, 8' 2 Drawer, Sliding Door
1 Panasonic - Microwave Oven
1 Chair, Chrome, Upholstered, Swivel Base
2 Locker Sections, Metal, U-Shaped, Multiple Door
5 Locker Sections, Metal, Cube Type, 6 Door
1 Picnic Table, Metal, Wood
1 Partition Section, Metal
1 Marking Board, White
2 Chairs, Wood, Upholstered, Swivel Base
1 Desk, Laminate Finish, Woodgrain Formica Top, Left Angle Return
1 Compaq - Personal Computer, MDL# PRESARIO 433, w/ Monitor and Keyboard
1 Secretarial Chair, Metal, Upholstered, Swivel Base
1 Marking Board, White
1 File Cabinet, Metal, 4 Drawer
1 Lateral File Cabinet, Metal, 5 Drawer
1 Desk, Metal, Double Pedestal
1 Chair, Wood, Upholstered, Swivel Base
page 2 of 6 Borrower Initial: _____
Lender Initial: _____
Office Continued:
1 Desk, Wood, Single Pedestal, 2 Xxxxxx
0 Xxxx, Xxxx, 0 Drawer
1 Compaq - Personal Computer, MDL# DESKPRO 590, w/ Maxtex - Color Monitor,
Keyboard, and Mouse
1 Hewlett Packard - Laser Printer, MDL# LASERJET 5L
1 Trademark - Personal Computer, 3.5" Floppy Disk Drive, Trademark - Color
Monitor, Keyboard and Mouse
1 File Cabinet, Metal, 5 Drawer
2 Secretarial Chairs, Metal, Upholstered, Swivel Base
1 Chair, Wood, Wraparound Type
1 JVC - Personal CD Player, Stereo Cassette
1 Stool, Metal, Upholstered, Swivel Base
1 Fire Extinguisher, Class ABC
1 Gateway - Personal Computer, MDL# P5-100, Series 2000, w/ Crystal Scan -
Color Monitor, 15" Mouse and Keyboard
1 Hewlett Packard - Printer, MDL# DESKJET 660CSE
1 Ticketing System, C/O: (2) Hewlett Packard - Personal Computers, Type
VECTRA VE, Mod. 4/66, w/ 3.5" Floppy Disk Drive, (1) Compaq Personal
Computer, Mod. Prosigna 300, w/ Hewlett Packard - Tape Drive, Mod. 6000,
(1) Personal Computer, 486, (1) Compaq Personal Computer, Mod. DESKPRO 500,
w/ 3.5" Floppy Disk Drive, (1) Kenitec - 486 Personal Computer, (3) MAC -
Color Monitors, (1) HUB, (3) Practical Periferals - Modems, Mod. PC144MT,
(2) Keyboards, w/(1) Cart Stand, (1) APC - UPS Unit, Mod. 1400 (w/ Above
Ticketing System)
1 JVC - Color Television, 20". W/ JVC - 4-Head VCR, w/ Stand
1 Security System, w/ (4) Cameras, (1) Provideo - Black and White Monitor,
Mod. VM1201B, (1) Toshiba 24-Hour Security Recorder, (1) Xxxxxxx Split 660B
1 Lot Of Various, Office Furniture, C/O: Desks, Chairs, Conference Tables,
Lateral File Cabinets, Computer Stands, Etc.
page 3 of 6 Borrower Initial: _____
Lender Initial: _____
Simulator Room:
2 SIMEX - Motion Simulator Systems, C/O: (1) MOOG Motion Base, Mod.
170E101, SN. #003, #004, Approx. 15' x 25' Platform, Electrical Mechanics,
Four Degrees Of Motion, With Forty Individual Buckets Seats, E/W Seat Belts
And Pneumatic Activated Lap Bar Restraint, (1) Westrex Interactive - Elec.
Projection System, #MMM35, With Xenon - Lamphouse, With Power Supply And
Controls, 30 Frame Per Second SPPD, High Speed Rewind, Four Reels, Lenses,
Assoc. Equipment w/ (1) Audio Surround System, With (1) Protone SS Audio
Processor, #SD-1000, (4) Rand - Equalizers, Mod. ME-60, (1) Apogee - Stereo
Processor, Mod. P-3000, With (1) P-3RV, (1) P-3PV, (1) P-2PV, (7) Crown -
AMP Units, Mod #800 "Com-Tech", (2) Pioneer - Laser Disc Players, Mod.
LDV-8000, (12) Apogee - Speakers, Assoc. Equipment (1) System Control Unit,
Microprocessor Based, Assoc. Equipment w/ (1) Projection Screen, Approx.
20' x 20', Motion Control Computers, Power Supplies, Assoc. Equipment (w/
Above Motion Simulator Systems)
1 Skyline Multimedia Film, "NY Skyride", w/ Audio CD's Etc., 8-12 Minute,
Compatible w/ Simulation Ride
Staging Area:
1 Table, Metal, Folding Legs
2 Benches, Metal, Folding Legs
1 Lot Of Various, Crowd Control Posts, And Ropes
2 Display Booths, E/W (1) JVC - Color Monitor, 20", And (1) Hitachi - VCR,
Mod. M281
1 JVC - Color Monitor, 27"
1 Display Booth, w/ JVC - 27" Color Monitor, w/ Hitachi - VCR
1 JVC - Audio System, C/): CD Automatic Changer, Mod. XL-MC302, Double
Cassette Deck, Mod. TD-W118, w/ Audio Video Control Receiver, Mod. RX-718V,
w/ CD Automatic Changer, 100-Disk Capacity, w/ (2) SX-SW9 Satellite
Subwoofer Speaker Systems
1 JVC - Keost System, CD Drive, Liquid Color Monitor, w/ Built-In Speaker
and Printer
1 JVC - Projection Television, MDL# NV-55BH6, 55"
1 Miko - Keost, w/ JVC - Liquid Color Monitor, Built-In Speaker
4 JVC - Color Monitors, 27", "Super Command"
2 Fans, Electric, Pedestal Type
page 4 of 6 Borrower Initial: _____
Lender Initial: _____
Staging Area (Continued):
1 Lot Of Various, Misc. Decorations, C/O: Traffic Light, Walk Signs, Street
Lamp, Statue Of Liberty, Car Panel Display, Misc. Signs, Posters, Etc.
2 Fire Extinguishers, Class ABC
1 Pioneer - Laser Disk Players, MDL# LD-4000
1 JVC - Distribution Amplifier, MDL# JX-S700, AV Selector
2 JVC - Audio Video Control, MDL# RX-817V, Receivers
1 JVC - CD Automatic Changer, MDL# XL-M417
1 JVC - 100 Disc Changer, (Spare)
1 Radio Shack - PA System, MDL# MPA-46, 35 Watt, w/ Microphone, (2) Optimus
- Speakers
10 JVC - Color Monitors, 15"
9 JVC - Color Monitors, 27"
4 JVC - Color Monitors, 20"
1 Fan, Electric, Pedestal Type
1 Strand Lighting, Floor Light Controller, MDL# CD80PACK, w/ Merlin - Light
Pattern Controller, Mod. 088
1 Lot Of Various - Floor Scrubbers, Cleaners, Etc.
18 JVC - Color Monitors, 20"
3 JVC - Laser Disc Players, MDL# LDV-8000
4 JVC - Distribution Amplifiers
12 JBL - Speakers
1 Hot Dog Wagon, Portable
Ticket Area:
2 Compaq - Personal Computers, MDL# DESKPRO 590, w/ Monitor, Keyboard, w/
Cash Drawer And Boca - Ticket Printers
1 File Cabinet, Metal, 5 Drawer
page 5 of 6 Borrower Initial: _____
Lender Initial: _____
Ticket Area (Continued):
1 Desk, Single Pedestal, Single Xxxxxx
0 XXX - Safe, Digital
1 Coin Counter
1 Microwave, White
3 Stools, Metal
1 Verifone - Card Checker, MDL# RTRANZ330 w/ Verifone - Printer, Mod. 250
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.
ALL GOODS, MACHINERY, EQUIPMENT, FURNITURE AND FIXTURES, COMPLETE WITH ANY AND
ALL ATTACHMENTS, ACCESSIONS, ADDITIONS, REPLACEMENTS, IMPROVEMENTS,
MODIFICATIONS AND SUBSTITUTIONS THERETO AND THEREFOR AND ALL PROCEEDS INCLUDING
INSURANCE AND PRODUCTS THEREOF AND THEREFROM.
ALL ACCOUNTS, ACCOUNTS RECEIVABLE, CONTRACT RIGHTS, INSTRUMENTS, GENERAL
INTANGIBLES, AND CHATTEL PAPER AND ALL PROCEEDS THEREOF AND THEREFROM.
ALL INVENTORY AND ANY OTHER GOODS, MERCHANDISE OR OTHER PERSONAL PROPERTY HELD
BY DEBTOR FOR SALE OR LEASE AND ALL RAW MATERIALS, WORK OR GOODS IN PROCESS OR
MATERIALS OR SUPPLIES OF EVERY NATURE USED, CONSUMED OR TO BE CONSUMED IN
DEBTOR'S BUSINESS, AND ALL PROCEEDS, INCLUDING INSURANCE PROCEEDS AND PRODUCTS
OF ANY OF THE FOREGOING.
NEW YORK SKYLINE, INC. INDEPENDENT RESOURCES, INC.
BY: _______________________________ BY: _____________________________________
ITS: ______________________________ ITS: ____________________________________
page 6 of 6 Borrower Initial: _____
Lender Initial: _____
PAYMENT ADJUSTMENT RIDER
RIDER TO LOAN AND SECURITY AGREEMENT #207-02 DATED DECEMBER 23, 1996 (THE
"AGREEMENT") BETWEEN NEW YORK SKYLINE, 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 Agreement.
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
Agreement.
(b) "Final T-Note Average" shall mean the average of the yields on U.S.
Treasury Notes maturing in four (4) years as published by the Dow Xxxxx
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
Agreement, consisting of $117,400.53 due upon execution followed by
forty-five (45) consecutive monthly payments commencing 30 days after the
Adjustment Date consisting of $39,133.50.
(d) "Preliminary T-Note Average" shall mean 6.10%.
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 December 31, 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 The $117,400.53 payment due upon execution shall remain unchanged.
o Each of the forty-five (45) payments in the amount of $39,133.50 shall
increase by $5.80.
Immediately after the determination of the revised payments due under the
Agreement, Obligor shall, at the request of I.R., execute an acknowledgment
reflecting the revised payment schedule and, if requested by I.R., a Replacement
Agreement 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 Agreement shall in no way diminish Obligor's obligations hereunder.
4. I.R.'s Requirements. The commencement of the Agreement 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 Agreement payments under this Rider will supersede any
prior proposal or quotation.
IN WITNESS WHEREOF, the parties have executed this Rider simultaneously with the
Agreement.
NEW YORK SKYLINE, INC. INDEPENDENT RESOURCES, INC.
By: _______________________________ By: _____________________________________
Its: ______________________________ Its: ____________________________________
RIDER TO LOAN AND SECURITY AGREEMENT DATED DECEMBER 23, 1996 AND
NUMBERED 207-02 (THE "AGREEMENT") BETWEEN NEW YORK SKYLINE, INC.
AS BORROWER AND INDEPENDENT RESOURCES, INC. AS LENDER
The Agreement is hereby amended as follows:
1. Paragraph 1. delete the last sentence and replace with the following:
"Unless otherwise specifically provided for in this Agreement or in side
letters hereto, the Loan may not be prepaid."
2. Paragraph 2. Line 9 amend "five (5) days" to "ten (10) days".
3. Paragraph 2. Line 10 amend "two (2%) percent" to "one and one half (1.5%)
percent".
4. Paragraph 9. Line 10 amend "thirty (30) days" to "forty-five (45) days".
5. This space left blank intentionally.
6. Paragraph 13. Line 2 amend "fifth (5th) day" to "tenth (10th) day".
7. Paragraph 13. Line 3 after the words "...any of the foregoing" insert the
following: "except for spare parts relating to maintenance...".
8. Paragraph 13. Line 8 after the words "....borrowed money" insert the
following: "over $250,000.00..."
9. Paragraph 13. Line 12 after the words "...repossess the premises" insert the
following: "provided such action is successful against borrower..."
10. Paragraph 13. Line 18 after the words "...or merges into any other entity"
insert the following: "except mergers in which Borrower is the survivor and
which do not materially, adversely affect the financial condition of the
Borrower...".
11. Paragraph 14. Line 4, after the words "...from the date of default" insert
the following: "until payment of all accounts due under A and B...".
12. Paragraph 14. Insert as the final sentence: "Lender shall release any and
all security interest upon full payment of any amounts due Lender from
Borrower."
13. Paragraph 15. Line 1 after the words "...this Agreement" insert the
following: ", except to a direct competitor of Borrower...".
14. Paragraph 15. At the end of paragraph insert the following: ", provided,
however, that no assignment of Lender's rights in this Agreement shall be
permitted unless Lender's assign expressly undertakes to be bound by the
terms and obligations by the Security Deposit Rider to this Agreement
between Lender and Borrower of even date."
NEW YORK SKYLINE, INC. INDEPENDENT RESOURCES, INC.
BY: _______________________________ BY: _____________________________________
ITS: ______________________________ ITS: ____________________________________
RIDER TO LOAN AND SECURITY AGREEMENT #207-02
DATED 12/23/96, (THE "AGREEMENT"),
BETWEEN INDEPENDENT RESOURCES, INC. ("I.R.") AND
NEW YORK SKYLINE, INC. ("OBLIGOR")
The above mentioned Agreement is hereby amended to add the following:
1. Obligor agrees that so long as the Agreement remains outstanding and unpaid,
Obligor shall:
Maintain at all times a ratio of Operating Cash Flow to Debt Service of at
least 1.2 to 1.0. For purposes of this Agreement, the term "Operating Cash
Flow" shall mean, for any period of determination, an amount equal to
Borrower's earnings before provision for interest expense, taxes,
depreciation and amortization for each period less all dividends,
distributions and other intercompany transfers of any kind made by
Borrower to its parent corporation, Skyline Multimedia Entertainment,
Inc., during such period; and the term "Debt Service" shall mean, for any
period of determination, the sum of (i) interest expense, (ii) current
maturity of long term debt, and (iii) the current portion of expenditures
of Borrower for fixed assets which are required to be capitalized by
Borrower pursuant to generally accepted accounting principles. Each of the
foregoing financial terms shall be interpreted and calculated in
accordance with generally accepted accounting principles consistently
applied.
2. Obligor shall deliver to I.R. a compliance certificate for each fiscal year
and quarter during the term of the Agreement executed by the Obligor's chief
financial officer stating the results of Obligor's operations for such year
in terms of the financial covenants set forth in this paragraph 1 and whether
such financial covenants have been complied with. The compliance certificate
shall be delivered within the period of time allowed under the Agreement for
the Obligor to deliver its financial statements for such year and quarter.
3. 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.
4. 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.
5. It shall be an additional Event of Default under the Agreement if Obligor
fails to maintain any of the above financial covenants.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT A FAILURE BY I.R. TO INSIST ON STRICT
COMPLIANCE WITH ANY PROVISION OF THIS RIDER IN ANY FISCAL YEAR SHALL NOT
CONSTITUTE A WAIVER OF OBLIGOR'S OBLIGATION TO COMPLY WITH SUCH PROVISION IN ANY
SUBSEQUENT YEAR.
IN WITNESS WHEREOF, the parties have executed this Rider simultaneously with the
Agreement.
NEW YORK SKYLINE, INC. INDEPENDENT RESOURCES, INC.
BY: _______________________________ BY: _____________________________________
ITS: ______________________________ ITS: ____________________________________
