Exhibit 10.12
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") is made as of April 3, 2003, by
and among FRONTLINE COMMUNICATIONS CORP., a Delaware corporation ("Frontline");
PROYECCIONES Y VENTAS ORGANIZADAS, S.A. DE C.V. ("Provo" and together with
Frontline, individually a "Grantor" and collectively, the "Grantors"); XXXXXXX
XXXXXXXX DEL RIO ARRANGOIZ ("Arrangoiz") and XXXXXXX XXXXXXXX DEL RIO XXXXXXX
("Requejo", and together with Arrangoiz, collectively, the "Secured Parties").
RECITALS
WHEREAS, concurrently herewith Frontline, Provo, Requejo and Xxxxxxxxx are
entering into a certain Stock Purchase Agreement (the "Stock Purchase
Agreement"), whereby Frontline is acquiring from the Secured Parties all of the
issued and outstanding capital stock of Provo in consideration of certain shares
Series C Preferred Stock of Frontline. Capitalized terms used herein and not
defined are used with the meanings ascribed thereto in the Stock Purchase
Agreement and Certificate of Designation of Series C Convertible Preferred Stock
(the "Certificate of Designation").
WHEREAS, subject to the terms of the Stock Purchase Agreement and the
Secured Note of even date herewith (the "Note"), the Company's obligations under
the Note may arise on the Conversion Date (as defined in the Stock Purchase
Agreement). Each of the Grantors has agreed to enter into this Security
Agreement in order to induce the Secured Parties to enter into the Stock
Purchase Agreement and the Note.
WHEREAS, each of the Grantors is the owner of the type and number of issued
and outstanding shares of capital stock and other equity interests (the "Equity
Interests") set forth opposite the name of such Grantor in Part A of Schedule I
hereto and issued by the Persons named therein (the "Initial Pledged
Interests").
WHEREAS, it is a condition precedent to the entering into the Stock
Purchase Agreement, that each of the Grantors shall have granted the assignment
and security interest and made the pledge and assignment contemplated by this
Agreement. Each of the Grantors will derive substantial direct and indirect
benefit from the transactions contemplated by the Transaction Documents.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. The Security Interests.
(a) In order to secure the performance of each of the Grantors' obligations
under the Stock Purchase Agreement and the Note issued thereunder (collectively
the "Obligations"), each of the Grantors hereby assigns and pledges to the
Secured Parties, and hereby grants to the Secured Parties, a
lien on and security interest in the property and assets set forth on Exhibit A
hereto, in each case, as to each type of property and assets described therein,
whether now owned or hereafter acquired by such Grantor, wherever located, and
whether now or hereafter existing or arising (collectively, the "Collateral").
(b) The security interest granted pursuant to this Section 1 (the "Security
Interest") is granted as security only and shall not subject the Secured Parties
to, or transfer to the Secured Parties, or in any way affect or modify, any
obligation or liability of each of the Grantors under any of the Collateral or
any transaction which gave rise thereto.
Section 2. Filing; Further Assurances.
(a) Each of the Grantors will, at its expense, execute, deliver, file and
record (in such manner and form as the Secured Parties may require), or permit
the Secured Parties to file and record, any financing statements, or this
Security Agreement (which the parties hereto agree shall be sufficient as a
financing statement hereunder), any specific assignments or other paper that may
be necessary or desirable, or that the Secured Parties may reasonably request,
in order to create, perfect or validate the Security Interest or to enable the
Secured Parties to exercise and enforce its rights and remedies hereunder or
under applicable law with respect to any of the Collateral.
(b) The Secured Parties may at any time and from time to time, without the
any of the Grantors' further signature or authorization file financing
statements, continuation statements and amendments thereto that describe the
Collateral as specified herein and that contain any other information required
by Article 9 of the Uniform Commercial Code, in effect from time to time, (the
"UCC") for the sufficiency or filing office acceptance of any financing
statement, continuation statement or amendment, including whether any of the
Grantors is an organization, the type of organization and any organization
identification number issued to the Grantors. Each of the Grantors agrees to
furnish any such information to the Secured Parties promptly upon request.
(c) Each of the Grantors shall at any time and from time to time take such
steps as the Secured Parties may reasonably request for the Secured Parties (i)
to obtain an acknowledgement, in form and substance satisfactory to the Secured
Parties, of any bailee having possession of any of the Collateral that the
bailee holds such Collateral for the Secured Parties and (ii) otherwise to
insure the continued perfection and priority of the Secured Parties' Security
Interest and of the preservation of the Secured Parties' rights therein,
including, without limitation, taking such steps as reasonably requested by
Secured Parties to preserve the Secured Parties' perfected Security Interests in
any portion of the Collateral located in Mexico or otherwise outside of any
jurisdiction where the financing statements on record prior to any such
re-location are insufficient to preserve the Secured Parties' perfected Security
Interest in such portion of the Collateral.
Section 3. Grantors' Representations and Warranties.
Each of the Grantors hereby represents and warrants to the Secured Parties
as follows:
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(a) It is duly incorporated and in good standing under the laws of its
respective jurisdiction of incorporation (to the extent that the concept of good
standing is provided for in the laws of its jurisdiction of incorporation), and
has power to enter into and perform this Agreement and has taken all necessary
corporate action to authorise the execution, delivery and performance of this
Agreement; and (b) the execution, delivery and performance of this Agreement
will not (i) contravene any law or regulation to which each of the Grantors is
subject or any provision of its charter documents, or (ii) cause any of the
Grantors to be in breach of or default under any agreement binding on it or any
of its assets; or (iii) except as provided in the Stock Purchase Agreement, no
material litigation or administrative proceedings before, by or of any court or
governmental authority is pending or threatened against it or any of its assets.
(b) Each of the Grantors is, or, to the extent any Collateral is acquired
by any of the Grantors after the date hereof will be, the legal and beneficial
owner of the Collateral pledged by the Grantors, free and clear of any lien,
security interest, option, or other charge or encumbrance except for the
security interest created by this Agreement.
(c) No financing statement covering the Collateral is on file in any public
office, other than the financing statements filed pursuant to this Security
Agreement.
(d) The pledge of the Collateral pursuant to this Agreement creates a valid
and perfected first priority lien on and security interest in the Collateral,
enforceable against all third parties.
(e) No portion of the Collateral is, or during the term of this Agreement
will be, subject to any right of first refusal or similar restriction, other
than statutory or legal restrictions under Applicable Law, which could affect
the ability of any purchaser from the Secured Parties to sell the same. The term
"Applicable Law" shall mean with respect to any Person, all applicable laws,
statutes, treaties, rules, codes, ordinances, regulations, certificates, orders,
interpretations, licenses and permits of any applicable governmental authority,
and all applicable judgments, decrees, injunctions, writs, orders,
determinations, awards or other similar actions of any applicable court,
arbitrator or other administrative, judicial or quasi-judicial tribunal or
agency of competent jurisdiction (including those pertaining to health, safety
or the environment), binding upon or applicable to such Person or any of its
Subsidiaries or to any of their property, assets or businesses.
(f) That portion of the Collateral comprised of Equity Interests are fully
paid, validly issued and non assessable.
(g) No consent or approval of any governmental body or regulatory authority
is or will be necessary to the validity of the rights created hereunder, other
than those that have been previously obtained.
Section 4. Grantors' Covenants.
Each of the Grantors hereby covenants and agrees with the Secured Parties
that such Grantors will, from the date hereof:
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(a) Defend the Collateral against all claims and demands of all persons at
any time claiming any interest therein.
(b) Provide the Secured Parties, at least 10 business days prior to
occurrence, with written notice of (i) any change in any of the Grantors' chief
executive office, (ii) a change of the jurisdiction in which the Grantors is
incorporated and (iii) the movement or relocation of all or any portion of the
Collateral to a new location within the United States.
(c) Provide the Secured Parties, at least 30 business days' prior to the
occurrence thereof, with written notice of the movement or relocation of all or
any portion of the Collateral to a location outside of the United States.
(d) Keep the Collateral free from any adverse security interest and in good
order and repair, reasonable wear and tear excepted, and not waste or destroy
the Collateral or any part thereof and make the Collateral available for
inspection by the Secured Parties at all reasonable times.
(d) Not use the Collateral in violation of applicable law or of any policy
of insurance applicable thereto.
(e) Promptly pay any and all taxes, assessments and governmental charges
upon the Collateral prior to the date penalties are attached thereto, except to
the extent that such taxes, assessments and charges shall be contested in good
faith by such Grantors, adequate reserves have been set aside therefor, and
payment of such contested taxes made prior to the institution of any enforcement
proceeding which could adversely affect the Security Interests or the
Collateral.
(f) Cause Provo and its Subsidiaries not to issue any stock or other
securities in addition to or in substitution for the Equity Interests issued by
Provo and its Subsidiaries, except to the Grantors. In addition, each of the
Grantors agrees that it will pledge to the Secured Parties, immediately upon its
acquisition (directly or indirectly) thereof, any and all additional shares of
stock or other securities of Provo and/or any of its Subsidiaries.
Section 5. Records Relating to Collateral.
Frontline will keep its records concerning the Collateral at its principal
office located at One Xxxx Xxxx Xxxxx, 0xx Xxxxx, Xxxxx Xxxxx, Xxx Xxxx 00000.
Provo will keep its records concerning the Collateral at its principal office
located at Manzanillo 000, Xxxxxxx Xxxx Xxx, Xxxxxx Xxxx, 00000 Xxxxxx. Each of
the Grantors will hold and preserve such records and will permit the Secured
Parties' representatives at any time during normal business hours to examine and
inspect the Collateral and to make abstracts from such records, and will furnish
to the Secured Parties such information and reports regarding the Collateral as
the Secured Parties may from time to time reasonably request.
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Section 6. Events of Default.
The Secured Parties shall be entitled to exercise any or all of their
remedies under this Agreement only in the event of default. An "Event of
Default" will be deemed to have occurred under this Agreement upon the
occurrence of any one or more of the following:
(a) Frontline shall fail to make any monetary payment under the Note to the
Secured Parties when due and payable.
Section 7. Certain Remedies.
(a) The Secured Parties may exercise in respect of the Collateral, in
addition to the other rights and remedies provided for herein, in the
Transaction Documents or in any other instrument or agreement securing,
evidencing or otherwise relating the Obligations of each of the Grantors or
otherwise available to it, all the rights and remedies of a secured party upon
default under the UCC and also may:
(i) require any of the Grantors to, and each of the Grantors hereby
agrees that it will, at its sole expense and upon request of the
Secured Parties forthwith, assemble all or part of its Collateral
capable of being assembled as directed by the Secured Parties and
make it available to the Secured Parties at a place to be
designated by the Secured Parties that is reasonably convenient
to both parties;
(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 Parties' offices or elsewhere, for
cash, on credit or for future delivery, and upon such other terms
as the Secured Parties may deem commercially reasonable;
(iii) occupy any premises owned or leased by any of the Grantors where
the Collateral or any part thereof is assembled or located for a
reasonable period of time in order to effectuate the rights and
remedies afforded to the Secured Parties under this Agreement and
the other Transaction Documents or under any Applicable Law,
without obligation to such Grantor in respect of such occupation;
(iv) transfer all or any part of the Collateral into the Secured
Parties' name or the name of one or more of its nominees; and
(v) notify the Grantors that all of its rights to exercise or refrain
from exercising the voting and other consensual rights that it
would otherwise be entitled to exercise with respect to the
Equity Interests comprising part of the Collateral pursuant to
Section 15 shall cease and, upon such notice, all such rights
shall become vested
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in the Secured Parties, who shall thereupon have the sole right
to exercise or refrain from exercising such voting and other
consensual rights.
(b) Each of the Grantors hereby agrees that, to the extent notice of sale
shall be required by Applicable Law, at least ten days' prior notice to such
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
Parties shall not be obligated to make any sale of Collateral regardless of
notice of sale having been given. The Secured Parties 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. Any of the Collateral may be sold, leased or
otherwise disposed of in the condition in which the same existed when taken by
the Secured Parties or after any overhaul or repair which the Secured Parties
shall determine to be commercially reasonable.
(c) If the Secured Parties shall determine to exercise their right to sell
any or all of the Collateral pursuant to this Section 7, each of the Grantors
shall, upon the written request of the Secured Parties therefor, furnish to the
Secured Parties all such information as the Secured Parties may reasonably
request in order to determine the number of shares and other instruments
included in such Collateral that may be sold by the Secured Parties in
transactions exempt under the Securities Act or any similar Applicable Law in
effect from time to time in any relevant jurisdiction.
(d) Each of the Grantors agrees to use its best efforts to do or cause to
be done all such other acts as may be necessary to make the sale or sales of all
or any portion of the Security Collateral pursuant to this Section 7 valid and
binding and in compliance with any and all Applicable Law. Each of the Grantors
further agrees that a breach of any of the covenants contained in subsection (a)
of this Section 7 will cause irreparable injury to the Secured Parties, that the
Secured Parties have no adequate remedy at law in respect of such breach and, as
a consequence, that each and every covenant contained in subsection (a) of this
Section 7 shall be specifically enforceable against such Grantor by the Secured
Parties, and each of the Grantors hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants, except
for a defense that no Event of Default has occurred and is continuing.
(e) Each purchaser of all or any part of the Collateral at any such sale
that has been made in accordance with all Applicable Law shall hold the property
sold absolutely free from any claim, encumbrance or other right on the part of
any of the Grantors, and each of the Grantors hereby waives, to the fullest
extent permitted by Applicable Law, all rights of redemption, stay and/or
appraisal that it now has or may at any time in the future have under any
Applicable Law now existing or hereafter enacted with respect to any such sale.
(f) All proofs of claim, rights of action and rights to assert claims under
this Agreement or any of the other Transaction Documents may be enforced by the
Secured Parties without the possession of the Note (or any document or
instrument substituting the Note) at any proceeding instituted by the Secured
Parties.
(g) All cash held by or on behalf of the Secured Parties as Collateral and
all cash proceeds received by or on behalf of the Secured Parties in respect of
any sale of, collection from, or other realization upon all or any part of the
Collateral may, in the discretion of the Secured Parties, be held
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by the Secured Parties as collateral for, and/or then or at any time thereafter
applied (after payment of any amounts payable to the Secured Parties pursuant to
Section 8) in whole or in part by the Secured Parties, against all or any part
of the Obligations in the order of priority set forth in Section 8 or, to the
extent not expressly provided therein, in such order as the Secured Parties
shall elect.
(h) The Secured Parties may exercise any and all rights and remedies of any
of the Grantors under or in connection with the Assigned Agreements (as defined
below) and the Receivables (as defined below) or otherwise in respect of the
Collateral (including, without limitation, any and all rights of any such
Grantors to demand or otherwise require payment of any amount under, or
performance of any provision of, any of the Assigned Agreements, the Receivables
or the Related Contracts or any other Collateral).
(i) In the event of any sale, assignment or other disposition of any of the
Intellectual Property Collateral, the goodwill of the business connected with
and symbolized by any of the Trademarks subject to such disposition will be
included, and each of the Grantors will supply the Secured Parties or its
designee with such Grantor's know-how and expertise, and with documents and
things embodying the same, subject to such sale, assignment or other
disposition, and such Grantor's customer lists and other records and documents
relating to such Intellectual Property Collateral.
(j) Upon the occurrence and continuance of an Event of Default, all
payments received by any of the Grantors under, in connection with, or in
respect of, any of the Collateral shall be received and held by such Grantor in
trust for the benefit of the Secured Parties, shall be segregated from the other
property and funds of such Grantor and shall be delivered forthwith to the
Secured Parties in the same form as so received (with any necessary endorsement
or assignment).
(k) The Secured Parties may, at any time or from time to time, charge, set
off and otherwise apply all or any part of the Obligations against any funds of
any of the Grantors held by them. Each of the Secured Parties hereby agrees
promptly to notify the applicable Grantor after any such charge, set-off or
other application is made by the Secured Parties; provided, however, that the
failure to give such notice shall not affect the validity of such charge,
set-off or other application.
Section 8. Application of Collateral and Proceeds.
The proceeds of any sale of, or other realization upon, all or any part of
the Collateral shall be applied in the following order of priorities:
(a) first, to pay the expenses of such sale or other realization, including
reasonable commission to the Secured Parties' third party selling agent, and all
reasonable expenses, liabilities and advances incurred or made by the Secured
Parties in connection therewith, and any other unreimbursed expenses for which
the Secured Parties is to be reimbursed pursuant to Section 14 hereof,
including, without limitation, reasonable attorney's fees and expenses;
(b) second, to the payment of amounts due under the Note and any fees or
expenses incurred in connection therewith in such order and manner as the
Secured Parties, in their sole discretion, shall determine; and
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(c) finally, unless Applicable Law otherwise provides, to pay to the
Grantors, or its successors or assigns, or as a court of competent jurisdiction
may direct, any surplus then remaining from such proceeds.
Each of the Grantors shall remain liable for any deficiency resulting from a
sale of the Collateral and shall pay such deficiency forthwith upon demand.
Section 9. Acknowledgement Relating to certain Collateral.
Each of the Grantors recognizes and hereby acknowledges that, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws (or other similar Applicable Law of other relevant
jurisdictions), the Secured Parties may be compelled with respect to any sale of
all or any part of the Collateral comprised of Equity Interests that are not
registered under the Securities Act to limit the purchasers thereof to those
Persons who will agree, among other things, to acquire the Collateral for their
own account, for investment and not with a view to the distribution or resale
thereof. Each of the Grantors hereby further acknowledges that any such private
sale may be at a price and on terms less favorable to the Secured Parties than
those obtainable through a public sale without such restrictions (including,
without limitation, a public offering made pursuant to a registration statement
under the Securities Act) and, notwithstanding such circumstances, each of the
Grantors hereby agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner and that the Secured Parties shall have
no obligation to engage in public sales and no obligation to delay the sale of
any Collateral for the period of time necessary to permit the issuer thereof to
register it for a form of public sale requiring registration under the
Securities Act or any applicable state securities laws (or other similar
Applicable Law of other relevant jurisdictions), even if any of the Grantors
would agree to do so. Each of the Grantors hereby waives any claims against the
Secured Parties arising by reason of the fact that the price at which any
Collateral, may have been sold at such a private sale was less than the price
that might have been obtained at a public sale, even if the Secured Parties
accepts the first offer received and does not offer such Collateral to more than
one offeree.
Section 10. Secured Parties Appointed Attorney-in-Fact. Each of the
Grantors hereby irrevocably appoints each of the Secured Parties Agent as each
of the Grantors' attorney-in-fact, with full authority in the place and stead of
each of the Grantors and in the name of each of the Grantors or otherwise, from
time to time in the Secured Parties' discretion, to take any action and to
execute any instrument that the Secured Parties may deem necessary or advisable
to accomplish the purposes of this Agreement, including, without limitation, to
receive, indorse, and collect all instruments made payable to each of the
Grantors representing any dividend or other distribution in respect of the
Collateral or any part thereof and to give full discharge for the same.
Section 11. The Secured Parties May Perform. If any the Grantors fails to
perform any agreement contained herein, each of the Secured Parties may itself
perform, or cause performance of, such agreement, and the expenses of the
Secured Parties incurred in connection therewith shall be payable by such
Grantors.
Section 12. The Secured Parties' Duties. The powers conferred on each of
the Secured Parties hereunder are solely to protect its interest in the
Collateral and shall not impose any duty upon
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such Secured Party to exercise any such powers. Except for the safe custody of
any Collateral in its possession and the accounting for monies and for other
properties actually received by it hereunder, each of the Secured Parties shall
have no duty as to any Collateral, as to ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders, or other matters
relative to any Collateral, whether or not such Secured Party has or is deemed
to have knowledge of such matters, or as to the taking of any necessary steps to
preserve rights against any parties or any other rights pertaining to any
Collateral. Each of the Secured Parties shall be deemed to have exercised
reasonable care in the custody and preservation of any of the Collateral in its
possession if it takes such action for that purpose as the Grantors may request
in writing, but failure of the Secured Parties to comply with any such request
shall not itself be deemed a failure to exercise reasonable care. The Secured
Parties shall also be deemed to have exercised reasonable care in the custody
and preservation of any Collateral in their possession if such Collateral is
accorded treatment substantially equal to that which each of the Secured Parties
accords its own property of like kind.
Section 13. Security Interest Absolute.
(a) The obligations of each of the Grantors under this Agreement are
independent of the Obligations, and a separate action or actions may be brought
and prosecuted against such Grantors to enforce this Agreement, irrespective of
whether any action is brought against it under any of the other Transaction
Documents. All rights of the Secured Parties and security interests hereunder,
and all obligations of each of the Grantors hereunder, shall be absolute and
unconditional irrespective of (but not limited to) the occurrence of any of the
following:
(i) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from the
Transaction Documents;
(ii) any taking, exchange, release, or non-perfection of any other
Collateral, or any taking, release, or amendment or waiver of or
consent or departure from any guaranty, for all or any of the
Obligations;
(iii) any manner of application of Collateral, or proceeds thereof, to
all or any of the Obligations, or any manner of sale or other
disposition of any collateral for all or any part of the
Obligations, or any other assets of Grantors;
(iv) any change, restructuring, or termination of the corporate
structure or existence of any of the Grantors or any of its
direct or indirectly held Subsidiaries, or
(v) the existence of any defense in respect of the Obligations.
(b) 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 Obligations is rescinded
or must otherwise be returned by the Secured Parties or by any other person upon
the insolvency, bankruptcy or reorganization of any of the Grantors or
otherwise, all as though such payment had not been made, and each of the
Grantors hereby unconditionally and irrevocably agrees that it will indemnify
the Secured Parties, upon demand, for all
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of the costs and expenses (including, without limitation, reasonable fees and
expenses of counsel) incurred by the Secured Parties in connection with such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a preference,
a fraudulent transfer or a similar payment under any bankruptcy, insolvency or
similar Applicable Law.
Section 14. Expenses; the Secured Parties' Lien.
Each of the Grantors will forthwith upon demand pay to the Secured Parties
the amount of any and all reasonable out-of-pocket expenses, including
reasonable attorneys' fees and the reasonable fees and disbursements of any
agents not regularly in its employ, which the Secured Parties may incur in
connection with the collection, sale or other disposition of any of the
Collateral or any default on any of the Grantors' part hereunder.
Section 15. Voting Rights; Dividends; Etc
(a) Subject to paragraph (c) of this Section 15, Frontline and/or Provo
shall be entitled to exercise or refrain from exercising any and all voting and
other consensual rights pertaining to the Equity Interests conforming the
Collateral or any part thereof for any purpose not inconsistent with the terms
of this Agreement; provided, however, that Frontline or Provo shall not exercise
or refrain from exercising any such right if such action constitutes, could
result or could reasonably be expected to result in, a material adverse effect
on the value of the Collateral or any material part thereof.
(b) The Secured Parties shall execute and deliver (or cause to be executed
and delivered) to the applicable Grantor all such revocable proxies and other
instruments as such Grantor may reasonably request for the purpose of enabling
such Grantor to exercise the voting and other rights that it is entitled to
exercise pursuant to paragraph (a) of this Section 15.
(c) Upon the occurrence and during the continuance of any Event of Default,
the Secured Parties shall have the right, upon prior written notice to the
Grantors:
(i) to terminate all rights of the Grantors to exercise or refrain
from exercising the voting and other consensual rights that they
would otherwise be entitled to exercise pursuant to paragraph (a)
of this Section 15, and all such rights shall thereupon become
vested in the Secured Parties, which shall thereupon have the
sole right to exercise or refrain from exercising such voting and
other consensual rights;
(ii) to revoke any proxies and other instruments delivered to the
Grantors pursuant to paragraph (b) of this Section 15; and
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(iii) to cause any or all of the Collateral comprised of Equity
Interests, to be transferred of record into the name of the
Secured Parties or their nominee.
Section 16. Termination of Security Interests; Release of Collateral.
Upon the repayment and performance in full of the Obligations, the Security
Interests shall terminate and all rights to the Collateral shall revert to the
Grantors. Upon any such termination of the Security Interests or release of
Collateral, the Secured Parties will, at the Grantors' expense to the extent
permitted by law, execute and deliver to the Grantors such documents as the
Grantors shall reasonably request to evidence the termination of the Security
Interests or the release of such Collateral, as the case may be.
Section 17. Waivers; Non-Exclusive Remedies.
(a) Except as otherwise specifically provided herein, each of the Grantors
hereby waives demand, notice, protest, notice of acceptance of this Security
Agreement, notice of loans made, credit extended, collateral received or
delivered or other action taken in reliance hereon (and all other demands and
notice of any description). With respect to both the Obligations and the
Collateral, each of the Grantors hereby assents to any extension or postponement
of the time of payment or any other indulgence, to any substitution, exchange or
release of Collateral, to the addition or release of any party or person
primarily or secondarily liable, to the acceptance of partial payment thereon
and the settlement, compromising or adjusting of any thereof, all in such manner
and at such time or times as the Secured Parties may deem advisable.
(b) Except as otherwise provided by Applicable Law, the Secured Parties
shall not have any duty as to the collection or protection of the Collateral or
any income thereon, nor as to the preservation of rights against prior parties,
nor as to the preservation of any rights pertaining thereto beyond the safe
custody of any Collateral in its possession. Except as otherwise provided by
Applicable Law, each of the Secured Parties may exercise its rights with respect
to the Collateral without resort or regard to other collateral or sources of
reimbursement for liability. Except as otherwise provided by Applicable Law, the
Secured Parties shall not be required to marshal any present or future security
for (including, but not limited to, this Security Agreement and the Collateral
subject to the Security Interests created hereby) the Obligations or any portion
thereof, or to resort to such security in any particular order; and all of its
rights hereunder and in respect of such security and guarantees shall be
cumulative and in addition to all other rights, however existing or arising. To
the extent that it lawfully may do so, each of the Grantors hereby agrees that
it will not invoke any law relating to the marshalling of collateral which might
cause delay in or impede the enforcement of the Secured Parties' rights under
this Agreement or under any other instrument evidencing all or any portion of
the Obligations or under which all or any portion of the Obligations are
outstanding or by which all or any portion of the Obligations is secured, and,
to the extent that it lawfully may do so, the Grantors hereby irrevocably waives
the benefits of all such laws.
(c) No failure on the part of the Secured Parties to exercise, and no delay
in exercising, and no course of dealing with respect to, any right, power or
remedy under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise by the Secured Parties of any right, power or
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remedy under this Agreement preclude any other right, power or remedy that they
may have hereunder or at law or equity. The remedies in this Agreement are
cumulative and are not exclusive of any other remedies provided by law or
equity, including any rights of setoff in favor of the Secured Parties.
(d) Each of the Grantors, hereby consents to the non-exclusive jurisdiction
of the courts of the State of New York sitting in New York County and the United
States District Court for the Southern District of New York for the purpose of
any suit or proceeding brought in connection with or with respect to this
Agreement.
SECTION 18. WAIVER OF JURY TRIAL.
EACH OF THE DEBTORS AND EACH OF THE LENDERS HEREBY EXPRESSLY WAIVES ITS
RIGHT TO TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS
AGREEMENT.
Section 19. Changes in Writing.
Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally, but only by a statement in writing signed by
the party against which enforcement of the change, waiver, discharge or
termination is sought.
Section 20. Governing Law; Meaning of Terms.
This Agreement shall be construed in accordance with and governed by the
laws of the State of New York applicable to contracts made and performed therein
without giving effect to the conflicts or choice of law provisions thereof that
would give rise to the application of the domestic substantive law of any other
jurisdiction; except in any event to the extent that remedies provided by the
laws of any jurisdiction other than the State of New York are governed by the
laws of such jurisdiction. Unless otherwise defined herein, or unless the
context otherwise requires, all terms used herein which are defined in the UCC
as in effect in the State of New York have the meanings stated therein.
Section 21. Severability.
If any provision hereof is invalid or unenforceable in any jurisdiction,
the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Secured Parties.
Section 22. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
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Section 23. Headings.
The headings in this Agreement are for the purposes of reference only and
shall not limit or otherwise affect the meaning hereof.
Section 24. Counterparts.
This Agreement may be executed in any number of counterparts and by the
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
under seal all as of the day and year first above written.
THE GRANTORS:
FRONTLINE COMMUNICATIONS CORP.
By: /s/
-----------------------------------
Xxxxxxx Xxxx-Xxxxxxxx
Chief Executive Officer
PROYECCIONES Y VENTAS
ORGANIZADAS, S.A. DE C.V.
By: /s/
-----------------------------------
Xxxxxxx Xxxxxxxx del Rio Xxxxxxx
Chief Executive Officer
THE SECURED PARTIES:
/s/
--------------------------------------
XXXXXXX XXXXXXXX DEL RIO ARRANGOIZ
/s/
-----------------------------------
XXXXXXX XXXXXXXX DEL RIO XXXXXXX
EXHIBIT A
Collateral
(a) All of such Grantor's right, title and interest in and to all equipment
in all of its forms (including, but not limited to, (i) all furniture,
furnishings, trade fixtures, machinery and appliances and (ii) all production,
manufacturing, distribution, selling, data processing, computer and office
equipment (including, without limitation, notebooks, drawings, diagrams, plans,
manuals, computer peripherals, hardware, firmware, software, data storage tapes,
disks, diskettes and other computerized information)), all fixtures and all
parts thereof and all accessions and additions thereto, parts and appurtenances
thereof, substitutions therefor and replacements thereof (any and all such
equipment, fixtures, accessions, additions, parts, appurtenances, substitutions
and replacements being the "Equipment"); with the exception of Frontline's
leased equipment and Frontline's equipment subject to pre-existing security
interests.
(b) All of such Grantor's right, title and interest in and to all inventory
in all of its forms (including, but not limited to, (i) all raw materials and
works in process therefor, finished goods thereof and materials used or consumed
in the manufacture or production thereof, (ii) all goods in which such Grantor
has an interest in mass or a joint or other interest or right of any kind
(including, without limitation, goods in which such Grantor has an interest or
right as consignee) and (iii) all goods that are returned to or repossessed or
stopped in transit by such Grantor), and all accessions thereto and products
thereof and documents therefor (any and all such inventory, accessions, products
and documents being the "Inventory").
(c) All of such Grantor's right, title and interest in and to the following
(collectively, the "Security Collateral"):
(i) the Initial Pledged Interests, whether or not evidenced by
certificates, and all of the certificates, if any, representing such
Initial Pledged Interests, all security therefor and all dividends,
cash, instruments and other property and assets from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such Initial Pledged Interests;
(ii) all of the additional Equity Interests in any Person from time to time
acquired by such Grantor in any manner and all other all investment
property (together with the Initial Pledged Interests, the "Pledged
Interests"), whether or not evidenced by certificates, and all of the
certificates, if any, representing such additional Equity Interests,
all security therefor, and all dividends, cash, instruments and other
property and assets from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of
such additional Equity Interests and other investment property;
(iii) all of the additional Indebtedness from time to time owed to such
Grantor by any Person (other than trade and other accounts receivable
owed to such Grantor in the ordinary course of its business, which are
otherwise covered by Section (e)) (the "Pledged Debt"), whether or not
evidenced by instruments, and all of the instruments, if any,
evidencing such additional Indebtedness, all security therefor and all
interest, cash,
instruments and other property and assets from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all of such additional Indebtedness; and
(v) all of the additional investment property (including, without
limitation, all securities (whether certificated or uncertificated),
security entitlements, security accounts, commodity contracts and
commodity accounts, whether or not evidenced by certificates or
instruments, and all of the certificates and instruments, if any,
representing or evidencing such additional investment property, all
security therefor and all dividends, interest, distributions, value,
cash, instruments and other property and assets from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such additional investment property;
(d) All of such Grantor's right, title and interest in, to and under each
of the agreements listed on Schedule II hereto to which such Grantor is now or
may hereafter become a party, in each case as such agreement may be amended,
supplemented or otherwise modified from time to time (collectively, the
"Assigned Agreements"), including, without limitation, (A) all rights of such
Grantor to receive moneys due and to become due under or pursuant to the
Assigned Agreements, (B) all rights of such Grantor to receive proceeds of any
insurance, indemnity, warranty or guarantee with respect to the Assigned
Agreements or any other instrument, agreement or document delivered pursuant
thereto, (C) all claims of such Grantor for damages arising out of or for breach
of or default under the Assigned Agreements and (D) all rights of such Grantor
to terminate the Assigned Agreements, to perform thereunder and to compel
performance and otherwise to exercise all remedies thereunder (any and all such
agreements, rights and claims being the "Agreement Collateral");
(e) All of such Grantor's right, title and interest in and to all accounts,
contract rights, chattel paper, instruments, deposit accounts, payment
intangibles and general intangibles, and all other rights and obligations of any
kind, whether or not arising out of or in connection with the sale or lease of
goods or the rendering of services, and whether or not earned by performance
(including, without limitation, any right with respect to workers' compensation
or other deposits made by such Grantor and any right to receive tax refunds or
other refunds, reimbursements or payments from any governmental authority), and
all rights in and to all security agreements, leases and other contracts
securing or otherwise relating to any such accounts, contract rights, chattel
paper, instruments, deposit accounts, general intangibles or other rights or
obligations (any and all such accounts, contract rights, chattel paper,
instruments, deposit accounts, general intangibles and other rights and
obligations, to the extent not referred to in subsection (c), (d), (e), (g),
(h), (i), or (j) hereof, being the "Receivables".
(g) All of such Grantor's right, title and interest in and to all general
intangibles (other than general intangibles for money due or to become due,
which are covered by subsection (e), and other than any of the Intellectual
Property Collateral (as hereinafter defined), which is covered by subsections
(h), (i), and (j) of this Exhibit A), including, but not limited to, (i) all
Equity Interests in and to any Person, (ii) all Governmental Authorizations,
(iii) all certificates, records, circulation lists, subscriber lists, advertiser
lists, supplier lists, customer lists, customer and supplier contracts, sales
orders, purchasing records and other rights, privileges and goodwill obtained or
used in connection with the Collateral, (iv) all processes, practices,
techniques, procedures, trade secrets, know-how and other information and data
(including, without limitation, all designs, drawings, compilations of data,
specifications and assembly procedures) and (v) the right to xxx or otherwise
recover for any and all past, present and future infringements,
misappropriations and other violations thereof (any and all such general
intangibles being the "Propriety Works").
(h) all of such Grantor's right, title and interest in and to (i) all
copyrights (including, without limitation, all sales literature, promotional
literature, software, mask works, databases and firmware), whether statutory or
common law, and whether or not the underlying works of authorship have been
published, (ii) all copyright registrations and copyright applications
(including, without limitation, each of the copyright registrations and
copyright applications set forth opposite the name of such Grantor in Part A of
Schedule III hereto) and all works of authorship and other intellectual property
rights therein, (iii) all copyrights of works based on, incorporated in, derived
from or relating to works covered by such copyrights, (iv) all rights to make
and exploit all derivative works based on or adopted from works covered by such
copyrights, and (v) any extensions or renewals thereof, including, but not
limited to, (A) the right to print, publish and distribute any of the foregoing,
(B) all commercial tort claims and the right to xxx or otherwise recover for any
and all other past, present and future infringements, misappropriations and
other violations thereof, (C) all income, royalties, damages, settlements and
other payments now and hereafter due and/or payable with respect thereto
(including, without limitation, payments under all licenses entered into in
connection therewith, and damages, settlements and payments for past or future
infringements thereof) and (D) all rights corresponding thereto throughout the
world and all other rights of such Grantor of any kind whatsoever accruing
thereunder or pertaining thereto (any and all such copyrights, works of
authorship, copyrights of works, rights to make or exploit, copyright
registrations, copyright applications, extensions and renewals being the
"Copyrights");
(i) all of such Grantor's right, title and interest in and to (i) all
trademarks, service marks, trade names, corporate names, company names, business
names, fictitious names, trade dress, service marks, trade styles, logos and
other designs or sources of business identifiers or other indicia of trade
origin, (ii) all trademark and service xxxx registrations and applications for
trademark or service xxxx registrations (including, without limitation, each
registration and application set forth opposite the name of such Grantor in Part
B of Schedule III hereto) and (iii) any and all extensions and renewals of or
with respect to any of the foregoing, including, but not limited to, (A) all
commercial tort claims and the right to xxx or otherwise recover for any and all
other past, present and future infringements, misappropriations and other
violations thereof, (B) all income, royalties, damages, settlements and other
payments now and hereafter due and/or payable with respect thereto (including,
without limitation, payments under all licenses entered into in connection
therewith, and damages, settlements and payments for past or future
infringements thereof) and (C) all rights of such Grantor corresponding thereto
throughout the world and all other rights of such Grantor of any kind whatsoever
accruing thereunder or pertaining thereto, together in each case with the
goodwill of the business connected with the use of, and symbolized by, any or
all of the foregoing throughout the world, but excluding any United States
intent-to-use trademark application prior to the filing of a Statement of Use or
an amendment to allege use in connection therewith to the extent that a valid
lien and security interest may not be taken in such an intent-to-use application
under applicable law (any and all such trademarks, service marks, trade names,
corporate names, company names, business names, fictitious names, trade dress,
service marks, trade styles, logos, designs, sources of business identifiers,
indicia of trade origin, registrations, applications, extensions and renewals
being the "Trademarks");
(j) all of such Grantor's right, title and interest in and to all patents,
patent applications and patentable inventions (including, without limitation,
each patent and patent application set forth opposite the name of such Grantor
in Part C of Schedule III hereto), including, but not limited to, (i) all
inventions and improvements described and claimed therein, (ii) all commercial
tort claims and the right to xxx or otherwise recover for any other
infringements and other violations thereof, (iii) all income, royalties,
damages, settlements and other payments now and hereafter due and/or payable
with respect thereto (including, without limitation, payments under all licenses
entered into in connection therewith, and damages, settlements and payments for
past and future infringements thereof) and (iv) all rights corresponding thereto
throughout the world and all reissues, divisions, continuations,
continuations-in-part, provisional applications, substitutes, renewals and
extensions thereof, all improvements thereon and all other rights of such
Grantor of any kind whatsoever accruing thereunder or pertaining thereto (any
and all such patents, patent applications, patentable inventions, reissues,
divisions, continuations, continuations-in-part, provisional applications,
substitutes, renewals, extensions, improvements and other rights being the
"Patents"); and
(k) all proceeds and supporting obligations of any and all of the foregoing
Collateral (including, without limitation, proceeds that constitute property and
assets of the types described in subsections (a) through (j) of this Exhibit A)
and, to the extent not otherwise included, (i) all payments under insurance
(whether or not the Administrative Agent is the loss payee thereof), or any
indemnity, warranty or guarantee, payable by reason of loss or damage to or
otherwise with respect to any of the foregoing Collateral and (ii) all cash. The
Copyrights, Trademarks, Patents and Licenses are hereinafter collectively
referred to as the "Intellectual Property Collateral";
provided, however, that notwithstanding anything herein to the contrary, the
Collateral shall not include (i) any Contract, license or other agreement to the
extent, but only to the extent, that the grant of a security interest therein
would constitute a violation of a valid and enforceable restriction in favor of
a third party, or would give any third party thereto a valid and enforceable
right to terminate its obligations thereunder (in each case, after giving effect
to Section 9-408 of the N.Y. Uniform Commercial Code and similar provisions of
Applicable Law).
Schedule I
Initial Pledged Interests
192,000 common shares, par value of $50.00 Mexican Peso each, of Provo
stock.
It is expressly agreed that the Frontline common stock, preferred stock and
other equity instruments do not constitute Initial Pledged Interests and are not
subject to this Agreement.
Schedule II
Assigned Agreements
Schedule III
Intellectual Property
