Exhibit 4.3
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of March 27, 2002 (this "Agreement"), by
and among AMPEX CORPORATION, a Delaware corporation (the "Issuer"), AMPEX DATA
SYSTEMS CORPORATION, a Delaware corporation and a wholly-owned subsidiary of
Issuer (the "Grantor"), and HILLSIDE CAPITAL INCORPORATED, a Delaware
corporation (the "Secured Party").
PRELIMINARY STATMENTS.
(1) Issuer, Grantor and Secured Party are parties to the HAS Agreement
(as defined below). Pursuant to the HAS Agreement, the Issuer has issued certain
Contribution Notes (as defined in the HAS Agreement) to the Secured Party, and
may in the future issue additional Contribution Notes to the Secured Party or
its designee, and Grantor has agreed to guarantee payment of all Contribution
Notes from time to time outstanding.
(2) Section 4.1 of the HAS Agreement requires Issuer to grant to
Secured Party for the benefit of the Hillside Group (as defined in the HAS
Agreement) and any other Holders of Notes a deed of trust on the Mortgaged
Property to secure certain Obligations (as such terms are defined in the HAS
Agreement), including the Contribution Notes. Pursuant to a letter agreement
dated November 6, 2000, as amended on May 23, 2001 and October 18, 2001, Secured
Party waived its right to obtain the deed of trust on the Mortgaged Property
until May 31, 2002.
(3) In consideration of Secured Party's agreement to irrevocably waive
its right to obtain the deed of trust on the Mortgaged Property, the Grantor has
offered to provide the Collateral described below, and Secured Party has agreed
to accept such Collateral in lieu of and in substitution for the deed of trust.
Accordingly, Grantor is entering into this Security Agreement to secure the due
and punctual performance of the Secured Obligations (as defined below).
Section 1. Definitions.
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As used herein, the terms set forth below shall have the
respective meanings set forth below. Terms used and not otherwise defined herein
shall have the meanings given to them in the HAS Agreement or, if not so defined
herein or therein, in Article 9 of the Code (as defined below).
"Code" means the Uniform Commercial Code (or any successor
statute) of the State of New York or of any other state the laws of which are
required by Section 9-301, Section 9-304 and Section 9-306 of the Uniform
Commercial Code of the State of New York to be applied in connection with the
perfection of a security interest in favor of the Secured Party under this
Agreement or any related document.
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"Discount Notes" means the $9,378,151.92 aggregate principal
amount at maturity of Senior Discount Notes issued by Grantor pursuant to the
Note Purchase Agreement dated as of November 6, 2000, as in effect on the date
hereof and as amended from time to time hereafter, among the Issuer, Grantor,
the Purchasers named therein and DDJ Capital Management LLC.
"HAS Agreement" means the Hillside-Ampex/Sherborne Agreement
dated December 1, 1994, as in effect on the date hereof and as amended from time
to time hereafter among Issuer, Grantor, Secured Party and the other parties
named therein.
"RSSA" means the Amended and Restated Receivables Sale and
Servicing Agreement dated as of May 5, 1994, as in effect on the date hereof and
as amended from time to time hereafter, among Issuer, Grantor, MicroNet
Technology, Inc. and Ampex Finance Corporation, a Delaware corporation and a
wholly-owned subsidiary of Issuer ("Ampex Finance"), and any extensions,
renewals, refinancings or replacements thereof by Ampex Finance.
"Senior Notes" means the 12% Senior Notes due 2008 issued by
Issuer under the Indenture dated as of February 28, 2002, as in effect on the
date hereof and as amended from time to time hereafter, between Issuer and State
Street Bank and Trust Company, as trustee.
Section 2. Grant of Security.
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The Grantor hereby assigns, conveys, pledges, grants and
transfers to the Secured Party a lien on and a security interest in all of the
Grantor's right, title and interest in and to the following personal property
and assets of the Grantor, whether now owned or hereafter acquired, now or
hereafter existing, wherever located, in each case excluding the Excluded
Property (as defined below) (collectively, the "Collateral"):
(a) All goods, now owned or hereafter acquired by the Grantor
and wherever located, which are held for sale or lease or are to be furnished
under any contract of service or which are leased or so furnished or which are
raw materials, work in process, or materials used or consumed in the business of
the Grantor, and in each case which constitute "inventory" (as such term is
defined in the Code), and all accessions thereto and products thereof and
documents therefor (any and all such goods, accessions, products and documents
being hereinafter called the "Inventory"); and
(b) All cash and noncash proceeds and products of any and all
of the Inventory, including, without limitation: (i) whatever is now or
hereafter received by Grantor upon the sale, exchange, collection or other
disposition of any item of Inventory or Collateral, whether such proceeds
constitute Inventory, accounts, accounts receivable, general intangibles,
instruments, securities, credits, documents, letters of credit, chattel paper,
documents of title, warehouse receipts, leases, deposit accounts, money, control
rights, supporting obligations or goods, but not including the Excluded
Property; (ii) all
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cash and noncash proceeds and products of the Excluded Property upon a sale
thereof to Ampex Finance under the RSSA; and (iii) to the extent not otherwise
included, all payments under insurance (whether or not the Secured Party is the
loss payee thereof), or any indemnity, warranty or guaranty, payable by reason
of loss or damage to or otherwise with respect to any Collateral.
(c) The following personal property and assets of Grantor
shall be excluded from the Collateral (hereinafter, the "Excluded Property"):
(i) all accounts receivable and other related assets of Grantor that are sold to
Ampex Finance under the RSSA, except that the Excluded Property shall not
include (and the Collateral shall include) all products and proceeds of such
accounts receivable and related assets received or receivable by Grantor under
the RSSA; (ii) any contract, license, permit or franchise that prohibits the
creation by Grantor of a security interest in such contract, license, permit or
franchise, except that the Excluded Property shall not include (and the
Collateral may include) all products and proceeds thereof received or receivable
by Grantor thereunder to the extent not so prohibited and, in each case, to the
extent any such prohibition is legally enforceable; and (iii) any of Grantor's
royalties, property or assets of the type securing, as of the date hereof, any
of Grantor's obligations under the Discount Notes or the Senior Notes, and any
proceeds of such property or assets.
Section 3. Security for Obligations.
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The security interest granted by the Grantor hereunder
secures the prompt and complete payment and performance when due (whether at
stated maturity, upon acceleration or otherwise) of all obligations of Issuer
owing or to be owing to Secured Party now or hereafter existing, whether matured
or unmatured, contingent or liquidated, under each Contribution Note issued or
to be issued pursuant to the HAS Agreement, including any extensions,
modifications, substitutions, amendments and renewals thereof, whether for
principal, interest, premium, fees, expenses, indemnification or otherwise. All
such obligations of Issuer secured hereby are referred to herein as the "Secured
Obligations."
Section 4. Grantor Remains Liable.
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(a) Anything herein to the contrary notwithstanding: (i) the
Grantor shall remain liable under the contracts and agreements included in the
Collateral to the extent set forth therein to perform all of its duties and
obligations thereunder to the same extent as if this Agreement had not been
executed, (ii) the exercise by the Secured Party of any of its rights hereunder
shall not release the Grantor from any of its duties or obligations in
connection with the general intangibles and under the contracts and agreements
included in the Collateral, (iii) the Secured Party shall not have any
obligation or liability under the contracts and agreements included in the
Collateral by reason of this Agreement, nor shall it be obligated to perform any
of the obligations or duties of the Grantor thereunder or to take any action to
collect or enforce any claim for payment assigned hereunder, and (iv) the
Secured Party shall not assume any liability or obligation whatsoever with
respect to any partnership interest of any partnership included
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in the Collateral, nor shall it become a substituted partner of any such
partnership solely by virtue of this Agreement.
(b) The Secured Party shall have the right to make physical
verifications of the Inventory in any manner and through any medium that it
considers advisable, and the Grantor agrees to furnish all such assistance and
information as the Secured Party may reasonably require in connection therewith.
Section 5. Representations and Warranties.
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The Grantor hereby represents and warrants to Secured Party as
follows:
(a) it is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, is duly qualified as a
foreign corporation and is in good standing in each jurisdiction as to which the
location of its assets or the nature of its business makes qualification
necessary or in which the failure to so qualify would have a material adverse
effect on its condition or operations, financial or otherwise, and has all
corporate power and authority to conduct its business and to own or hold under
lease its assets and properties, and to execute, deliver and perform all of its
obligations under this Agreement;
(b) the execution, delivery and performance by it of this
Agreement have been duly authorized by all necessary corporate action, do not
contravene its charter, by-laws, or any applicable laws, rules, regulations,
orders, writs, judgments, injunctions, decrees, determinations or awards, and do
not and will not result in a breach of, or constitute a default under, or
require any consent (other than consents which have been duly obtained and are
in effect and other consents with respect to which Grantor's failure to obtain
such consents will not result in a material adverse effect on Grantor or its
business) under, any indenture or other agreement or instrument to which it is a
party or by which it or its properties may be bound or affected;
(c) no authorization or approval by, and no notice to or
filing with, any governmental authority or regulatory body is required to be
obtained or made either (i) for the grant by it of the security interest in the
Collateral granted hereby or for the execution, delivery or performance of this
Agreement, or (ii) except for the filing of a financing statement in the State
of Delaware, for the perfection of the security interests of or the exercise by
the Secured Party of his rights and remedies hereunder;
(d) this Agreement constitutes the legal, valid and binding
obligation of the Grantor enforceable against it in accordance with its terms,
except as such enforceability shall be subject to bankruptcy, reorganization,
insolvency, moratorium and other similar laws affection creditors' rights
generally and to general principles of equity;
(e) there is no pending or threatened action or proceeding
affecting it before any court, governmental agency or arbitrator which may
materially adversely
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affect its ability to perform its obligations hereunder or which purports to
affect the legality, validity or enforceability of this Agreement or such other
loan document;
(f) Part I of Schedule 5(f) sets forth each location at which
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Inventory owned by Grantor is located. The chief executive office of the Grantor
and the office where it keeps its records concerning the Collateral are located
at the addresses set forth on Part II of Schedule 5(f) hereto. The federal tax
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identification number of the Grantor is set forth in Part III of Schedule 5(f);
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(g) it is the legal and beneficial owner of the Collateral
purported to be granted by it hereunder free and clear of any lien, except for
the following (collectively, the "Permitted Liens"): (i) the security interest
created by this Agreement; (ii) liens subordinated to any prior liens in favor
of Secured Party and permitted pursuant to Section 4.2(a) of the HAS Agreement;
(iii) liens for taxes, assessments or similar charges not yet delinquent or
which are being contested in good faith; (iv) liens to secure payment of
workmen's compensation or other insurance or types of social security; (v)
statutory liens, such as those in favor of mechanics, material men,
warehousemen, carriers or similar liens incurred in good faith in the ordinary
course of business for sums which are not yet delinquent or are being contested
in good faith by negotiation or by appropriate proceedings which suspend the
collection thereof; (vi) good faith deposits in connection with tenders,
contracts (other than contracts for the payment of money) or leases; (vii)
deposits to secure public or statutory obligations, or in lieu of surety or
appeal bonds, (viii) any interest or title of a lessor or lessee under any lease
of property (including any lien granted by such lessor or lessee); and (ix)
liens in favor of customers and revenue authorities arising as a matter of law
to secure payment of customs duties in connection with the importation of goods.
No effective financing statement or other instrument similar in effect covering
all or any part of such Collateral is on file in any recording office, except
such as may have been filed in favor of the Secured Party relating to this
Agreement or such as may have been filed in connection with the Permitted Liens.
The trade names, if any, of the Grantor are set forth on Part IV of
Schedule 5(f);
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(h) except as indicated in Schedule 5(f) hereto, it has
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exclusive possession and control of the Inventory owned by it; and
(i) this Agreement, together with the filing of financing
statements with respect hereto, creates, subject to the Permitted Liens, a valid
and perfected first priority lien on and security interest in the Collateral
owned by it with respect to which a lien and security interest may be perfected
by filing pursuant to the Code, securing the payment of the Secured Obligations.
Section 6. Further Assurances.
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(a) The Grantor agrees that from time to time, at its own
expense, it will promptly execute and deliver all further instruments and
documents, and take all further action, that may be necessary or desirable, or
that the Secured Party may request, in order to perfect and protect any security
interest granted or purported to be granted
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hereby or to enable the Secured Party to exercise and enforce its rights and
remedies hereunder with respect to any Collateral. Without limiting the
generality of the foregoing, the Grantor will: (i) at the request of the Secured
Party, mark conspicuously each of its records pertaining to the Collateral with
a legend, in form and substance satisfactory to the Secured Party, indicating
that such document or Collateral is subject to the security interest granted
hereby; and (ii) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices, as may be necessary
or desirable, or as the Secured Party may request, in order to perfect and
preserve the security interests granted or purported to be granted hereby;
provided that neither the failure of the Secured Party to make such request nor
the failure of the Grantor to comply with such request will impair or affect the
validity of the grant effected by this Agreement.
(b) The Grantor hereby authorizes the Secured Party to file
one or more financing or continuation statements, and amendments thereto,
relative to all or any part of the Collateral without the signature of the
Grantor where permitted by law. A carbon, photographic or other reproduction of
this Agreement or any financing statement covering the Collateral or any part
thereof shall be sufficient as a financing statement where permitted by law.
(c) The Grantor will furnish to the Secured Party from time to
time statements and schedules further identifying and describing the Collateral,
and such other reports in connection with the Collateral as the Secured Party
may reasonably request, all in reasonable detail.
Section 7. Covenants.
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Until the Secured Obligations are paid in full, Grantor shall:
(a) not change the state of its incorporation or its
corporate name without providing Secured Party with at least 30 days' prior
written notice;
(b) advise the Secured Party of the removal of any
Inventory from the states and counties listed in Schedule 5(f) hereof to a
state or county not so listed therein; and -------------
(c) do nothing to impair the rights of Secured Party in the
Collateral, and shall cause the Collateral at all times to be subject to the
security interest granted to Secured Party pursuant to this Agreement and,
notwithstanding the foregoing, Grantor may, prior to an Event of Default, in the
ordinary course of its business, possess, hold and sell Inventory and other
Collateral and use and apply any and all proceeds thereof as working capital in
connection with the operation of its business.
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Section 8. Prohibition on Other Liens.
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The Grantor shall not create or suffer to exist any lien or
security interest upon or with respect to any of the Collateral, except for the
security interest created by this Agreement and except for Permitted Liens.
Section 9. Secured Party Appointed Attorney-in-Fact.
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The Grantor hereby irrevocably appoints Secured Party as its
attorney-in-fact, with full authority in the place and stead of the Grantor and
in the name of the Grantor or otherwise, at any time following the occurrence
and during the continuance of an Event of Default, to take any action and to
execute any instrument which the Secured Party may deem necessary or advisable
to accomplish the purposes of this Agreement, including, without limitation:
(a) to obtain and adjust insurance required to be paid to
the Secured Party,
(b) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Collateral,
(c) to receive, indorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (i) or (ii)
above, and
(d) to file any claims or take any action or institute any
proceedings which the Secured Party may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights of the
Secured Party with respect to any of the Collateral.
Section 10. Secured Party May Perform.
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If Issuer or Grantor fail to perform any agreement contained
herein, the Secured Party may itself perform, or cause performance of such
agreement, and the expenses of the Secured Party incurred in connection
therewith shall be payable by Issuer or Grantor under Section 13(b) hereof.
Section 11. The Secured Party's Duties.
--------------------------
The powers conferred on the Secured Party hereunder are to
protect its interest in the Collateral and shall not impose any duty upon it to
exercise any such powers. Except for the safe custody of any Collateral in its
possession, the accounting for moneys actually received by it hereunder and as
otherwise provided by law, the Secured Party shall have no duty as to any
Collateral or as to the taking of any necessary steps to preserve rights against
prior parties or any other rights pertaining to any Collateral.
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Section 12. Remedies.
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If an Event of Default shall have occurred and be continuing:
(a) The Secured Party may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party on
default under the Code (whether or not the Code applies to the affected
Collateral) and also may (i) require the Grantor to, and the Grantor hereby
agrees that it will at its expense and upon request of the Secured Party
forthwith, assemble all or part of the Collateral owned by it as directed by the
Secured Party and make it available to the Secured Party at a place to be
designated by the Secured Party which is reasonably convenient to each party and
(ii) without notice except as specified below, sell the Collateral or any part
thereof in one or more parcels at public or private sale, at any of the Secured
Party's offices or elsewhere, for cash, on credit or for future delivery, and
upon such other terms as the Secured Party may deem commercially reasonable. The
Grantor agrees that, to the extent notice of sale shall be required by law, at
least ten days' notice to the Grantor of the time and place of any public sale
or the time after which any private sale is to be made shall constitute
reasonable notification. The Secured Party shall not be obligated to make any
sale of Collateral regardless of notice of sale having been given. The Secured
Party may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned.
(b) The Secured Party may exercise any and all rights and
remedies of the Grantor in respect of the Collateral.
(c) All payments received by the Grantor in respect of the
Collateral (excluding the Excluded Property) shall be received in trust for the
benefit of the Secured Party, shall be segregated from other funds of the
Grantor and shall be forthwith paid over to the Grantor in the same form as so
received (with any necessary indorsement).
(d) All cash proceeds received by the Secured Party in respect
of any sale of, collection from, or other realization upon all or any part of
the Collateral of the Grantor (excluding the Excluded Property) may, in the
discretion of the Secured Party, be held by the Secured Party as collateral for,
and/or then or at any time thereafter applied in whole or in part by the Secured
Party against, all or any part of the Secured Obligations. Any surplus of such
cash or cash proceeds held by the Secured Party and remaining after payment in
full of all such Secured Obligations shall be paid over to the Grantor or to
whomsoever shall be lawfully entitled to receive such surplus.
Section 13. Indemnity and Expense.
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(a) Each of Issuer and Grantor agree to indemnify Secured
Party, and Secured Party agrees to indemnify each of Issuer and Grantor, from
and against any and
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all claims, losses and liabilities growing out of or resulting from this
Agreement (including, without limitation, enforcement of this Agreement), except
claims, losses or liabilities resulting from such indemnified person's gross
negligence or willful misconduct. The obligations of Issuer, Grantor and Secured
Party under this Section 13(a) shall survive the termination of this Agreement.
(b) The Grantor will upon demand pay to the Secured Party the
amount of any and all expenses, including the reasonable fees and disbursements
of its counsel and of any experts and agents, which the Secured Party may incur
in connection with (i) the administration of this Agreement, (ii) the custody,
preservation, use or operation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (iii) the exercise or enforcement of
any of the rights of the Secured Party hereunder or (iv) the failure by Issuer
or Grantor to perform or observe any of the provisions hereof to be performed or
observed by Issuer or Grantor, as applicable.
Section 14. Continuing Security Interest; Transfer of
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Rights and Obligations.
-----------------------
This Agreement shall create a continuing security interest
in the Collateral and shall remain in full force and effect until the
indefeasible payment in full of the Secured Obligations. The Secured Party may
assign or otherwise transfer all or any portion of its rights and obligations
hereunder to any other person, and such other person shall thereupon become
vested with all the benefits in respect thereof granted to the Secured Party
herein.
Section 15. Security Interest Absolute.
--------------------------
All rights of the Secured Party and security interests
hereunder, and all obligations of Issuer and Grantor hereunder, shall be
absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any
Contribution Note, the HAS Agreement, or any other agreement or instrument
relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the HAS Agreement,
any Contribution Note or any other loan document;
(c) any taking and holding of Collateral or additional
guarantees for all or any of the Secured Obligations, or any amendment,
alteration, exchange, substitution, transfer, enforcement, waiver,
subordination, termination or release of any Collateral or such guarantees, or
non-perfection of any security interest in any Collateral, or any consent to
departure from any guaranty, for all or any of the Secured Obligations;
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(d) any manner of application of Collateral to all or any of
the Secured Obligations, or the manner of sale of any Collateral; any consent by
the Secured Party or any other person to the existence of the Issuer or the
Grantor and any corresponding change, restructure or termination of the
corporate structure or restructure of the Secured Obligations, or any other
restructure or refinancing of the Secured Obligations or any portion thereof;
(f) any modification, compounding, compromise, settlement,
release by the Secured Party or any other person (or by operation of law or
otherwise), collection or other liquidation of the Secured Obligations or the
liability of the Grantor, Issuer or any guarantor thereunder, or of the
Collateral, in whole or in part, and any refusal of payment by any Secured Party
or any other person, in whole or in part, from any obligor or guarantor in
connection with any of the Secured Obligations, whether or not with notice to,
or further assent by, or any reservation of rights against, the Grantor; or
(g) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the Grantor.
This Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the Secured
Obligations is rescinded or must otherwise be returned by the Secured Party or
any other person upon the insolvency, bankruptcy or reorganization of Issuer,
Grantor, or otherwise, all as though such payment had not been made.
Section 16. Waivers.
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(a) Issuer and Grantor hereby waive:
(i) promptness, diligence and notice of
acceptance with respect to any of the Secured Obligations and this Agreement;
(ii) any requirement that the Secured Party or
any other person protect, secure or insure any lien or any property subject
thereto or exhaust any right or take any action against Issuer, Grantor or
any other person or any Collateral; and
(iii) any defense arising by reason of any claim
or defense based upon an election of remedies by the Secured Party which in
any manner impairs, reduces, releases or otherwise adversely affects Secured
Party's subrogation or reimbursement rights or other rights to proceed against
Issuer, Grantor or any Collateral.
(b) Secured Party hereby irrevocably waives its right under
the HAS Agreement to obtain the deed of trust in the Mortgaged Property.
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Section 17. Notices.
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All notices, requests, demands and other communications to a
party provided for or permitted hereunder shall, unless otherwise stated herein,
be in writing and shall be sent to a party by certified mail, postage prepaid
and return receipt requested; by telex, telegram or facsimile; by nationally
recognized overnight courier service; or by hand delivery, in each case to such
party at its address set forth below, or at such other address as such party may
designate by written notice to the other in accordance with this provision, and
shall be deemed to have been given or made; if by certified mail, return receipt
requested, five (5) days after mailing; if by telex, telegram or facsimile,
immediate upon sending and upon confirmation of receipt; if by nationally
recognized overnight courier service with instructions to deliver the next
business day, one (1) business day after sending; and if by hand, immediately
upon personal delivery.
Section 18. Amendments; Waivers.
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No amendment or waiver of any provision of this Agreement, nor
consent to any departure by any party herefrom, shall in any event be effective
unless the same shall be in writing and signed by such party, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
Section 19. Successors and Assigns.
----------------------
This Agreement, and the terms, covenants and conditions
hereof, shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
Section 20. Severability.
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In case any provision of this Agreement shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 21. Waiver of Right to Trial by Jury.
--------------------------------
ISSUER, GRANTOR AND SECURED PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT,
CLAIM, DEMAND OR CAUSE OF ACTION BY THE OTHER PARTIES HERETO ARISING UNDER, IN
CONNECTION WITH OR OTHERWISE RELATING TO THIS AGREEMENT OR ANY OTHER AGREEMENT,
INSTRUMENT OR DOCUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR
OTHERWISE. ISSUER, GRANTOR AND SECURED PARTY HEREBY AGREE AND CONSENT THAT ANY
PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY
COURT AS WRITTEN
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EVIDENCE OF THIS CONSENT BY ISSUER, GRANTOR AND SECURED PARTY TO THE WAIVER OF
THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY.
Section 22. Consent to Jurisdiction.
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(a) Each of Issuer, Grantor and Secured Party hereby
irrevocably submits to the jurisdiction of any New York State or Federal court
sitting in the Borough of Manhattan, The City of New York, in any action or
proceeding arising out of or relating to this Agreement, and hereby irrevocably
agrees that all claims in respect of such action or proceeding may be heard and
determined in such New York State or Federal court. Each of Issuer, Grantor and
Secured Party hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum to the maintenance of
such action or proceeding. Each of Issuer, Grantor and Secured Party also
irrevocably consents to the service of copies of the summons and complaint and
any other process which may be served in any such action or proceeding by the
mailing or delivery of a copy of such process to such party at its address for
notice specified herein by certified mail, return receipt requested.
(b) Nothing contained in this Section shall affect the right
of Issuer, Grantor or Secured Party to serve legal process in any other manner
permitted by law or to bring any action or proceeding against the other party or
its property in the courts of any other jurisdictions.
Section 23. Governing Law.
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The validity, interpretation and enforcement of this Agreement
shall be governed by the internal laws of the State of New York (without giving
effect to principles of conflicts of law).
Section 24. Counterparts.
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This Agreement may be executed in any number of counterparts,
all of which together shall constitute one and the same instrument. Any of the
parties hereto may execute this Agreement by signing any such counterpart.
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Signature Page
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first written above.
ISSUER:
AMPEX CORPORATION
By /s/ Craig L. McKibben
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Name: Craig L. McKibben
Title: Vice President
Address:
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135 E. 57th Street
New York, NY 10022
GRANTOR:
AMPEX DATA SYSTEMS CORPORATION
By /s/ Craig L. McKibben
-----------------------
Name: Craig L. McKibben
Title: Vice President
Address:
--------
1228 Douglas Avenue
Redwood City, CA 94063
SECURED PARTY:
HILLSIDE CAPITAL INCORPORATED
By /s/ Raymond F. Weldon
---------------------
Name: Raymond F. Weldon
Title: Senior Vice President
Address:
--------
405 Park Avenue
New York, NY 10022
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Schedule 5(f)
-------------
Part I: Location of Inventory.
1228 Douglas Avenue, Redwood City, CA
600 Wooten, Colorado Springs, CO
Loan and consignment inventory at various customer locations
Miscellaneous inventory with service technicians at various locations
Part II: Location of Chief Executive Office and Collateral Records.
Chief Executive Office: 1228 Douglas Avenue, Redwood City, CA
Collateral Records: 1228 Douglas Avenue, Redwood City, CA
600 Wooten, Colorado Springs, CO (1995 &
older)
Part III: Federal Tax ID Number.
94-3112575
Part IV: Trade Names.
Ampex Data Systems Corporation
SECURITY AGREEMENT(V8)
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