Exhibit 10.30
PLEDGE AND SECURITY AGREEMENT
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THIS PLEDGE AND SECURITY AGREEMENT (this "Agreement") is entered into
as of June 25, 2002, by FIRST LOOK MEDIA, INC., a Delaware corporation
("Debtor"), with its chief executive office located at 0000 Xxxxxx Xxxxxxxxx,
Xxxxxxxxx X, Xxx Xxxxxxx, Xxxxxxxxxx 00000, in favor of SEVEN HILLS PICTURES,
LLC, a Connecticut limited liability company, with an office at 0000 Xxxxx
Xxxxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxxxxxxxxx 00000 ("Secured Party"), with
reference to the following facts:
RECITALS:
A. In connection with the transactions contemplated by the Securities
Purchase Agreement, dated as of May 20, 2002, between the Debtor and the Secured
Party (the "Purchase Agreement"), Debtor has requested that Secured Party extend
to Debtor and First Look/Seven Hills LLC, a Delaware limited liability company
(the "LLC"), certain credit accommodations pursuant to a Secured Convertible
Promissory Note due June 25, 2008, of even date herewith, of Debtor and the LLC
in the principal amount of $2,000,000 (the "Promissory Note").
B. Debtor will contribute to the capital of the LLC the proceeds of the
Secured Party's credit accommodations pursuant to the Promissory Note.
C. As security for, among other obligations, Debtor's obligations under
the Promissory Note, Debtor has agreed to grant to Secured Party a security
interest in all of Debtor's right, title and interest in and to its membership
interest in the LLC (the "LLC Interest") and all proceeds thereof as described
herein.
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Debtor agrees with Secured Party
as follows:
SECTION 1. PLEDGE AND SECURITY INTEREST
1.1 Pledge and Security Interest. As security for the Obligations (as defined in
Section 1.2), Debtor hereby pledges and grants to Secured Party a security
interest (the "Security Interest") in the following (the "Collateral"):
(a) the LLC Interest, any certificates or instruments representing the
LLC Interest and other rights, contractual and otherwise, in respect thereof;
and
(b) all proceeds of all of the foregoing.
1.2 Obligations Secured. This Agreement is given for the purpose of securing, in
such order of priority as Secured Party may elect, the following obligations
(the "Obligations") to Secured Party:
(a) Payment of the indebtedness evidenced by the Promissory Note, and
any renewals, amendments, restatements or replacements thereof, according to the
terms thereof;
(b) Performance and observation of all agreements, warranties,
covenants and conditions contained in the Promissory Note; and
(c) Performance and observation of all agreements, warranties,
covenants and conditions contained in this Agreement.
SECTION 2. REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1 Representations, Warranties and Covenants of Debtor. Debtor hereby
represents, warrants, covenants and agrees with Secured Party that:
(a) Debtor is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware with Debtor's location at
the address of Debtor set forth in the first paragraph above, and is duly
qualified and in good standing and authorized to do business in all
jurisdictions wherein the location and nature of the properties used or
business, as the same is presently or proposed to be conducted, make such
qualification necessary, except for those jurisdictions where the failure to be
so qualified or in good standing, as the case may be, would not, individually or
in the aggregate, have a material adverse effect on the Debtor. Debtor has no
trade name or style other than the fictitious names listed on Schedule I
attached hereto.
(b) Debtor has all requisite power and authority to execute, deliver
and perform this Agreement. This Agreement has been duly executed and delivered
by Debtor and constitutes a legal, valid and binding obligation of Debtor,
enforceable against Debtor in accordance with its terms, subject only to
applicable bankruptcy, insolvency, reorganization and other similar laws of
general application affecting the rights of creditors and by general principles
of equity.
(c) No authorization or approval or other action by or notice to or
filing with any governmental authority or any regulatory body and no consent of
any other person is required for the due execution, delivery and performance by
Debtor of this Agreement other than the "Required Approvals" (as defined in the
Purchase Agreement) and other than filings, notifications and consents which, if
not given or made, could not reasonably be expected to have, individually or in
the aggregate, a material adverse effect on the business, operations or assets
of Debtor or which would be reasonably expected to diminish the value of the
Collateral.
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(d) The execution and delivery of this Agreement, and the performance
of its terms, will not result in any violation of or constitute a default under
the terms of any agreement or other instrument, license, judgment, order,
statute, ordinance or other governmental rule or regulation, applicable to
Debtor or the Collateral that would have a material adverse effect on the
business, operations or assets of Debtor or which would be reasonably expected
to diminish the value of the Collateral. Upon its execution and delivery, this
Agreement shall create an enforceable and valid lien and security interest in
the Collateral.
(e) Debtor has good legal and beneficial title to the Collateral, free
and clear of all mortgages, security interests, liens and encumbrances other
than the lien and security interest created under that certain Credit, Security,
Guaranty and Pledge Agreement dated as of June 20, 2000, as amended (the "Chase
Credit Agreement"), securing the payment and performance by Debtor for borrowed
money of Debtor.
(f) Debtor shall not sell, transfer, assign or otherwise dispose of any
Collateral or any interest therein without obtaining the prior written consent
of Secured Party. Debtor shall not execute any financing statement or security
agreement covering the type, kind or class of personal property covered hereby,
except in connection with the lien and security interest under the Chase Credit
Agreement.
(g) Debtor shall pay when due all taxes, assessments and other charges
that may be levied or assessed against the Collateral; provided, however, that
the Debtor shall not be required to pay any such tax, assessment, charge or levy
that is being contested in good faith by proper proceeding and adequate reserves
for the accrual of same are maintained if required by generally accepted
accounting principles.
(h) Debtor shall keep adequate records concerning the Collateral and
Secured Party shall have free and complete access to Debtor's records and shall
have the right to make extracts therefrom or copies thereof.
(i) Debtor, at its sole cost and expense, shall protect and defend this
Agreement, all of the rights of Secured Party hereunder and the Collateral
against all claims and demands of other parties. Debtor shall pay all claims and
charges that in the reasonable judgment of Secured Party might prejudice,
imperil or otherwise affect the Collateral or the Security Interest. Debtor
shall promptly notify Secured Party of any levy, distraint or other seizure by
legal process or otherwise of any part of the Collateral and of any threatened
or filed claims or proceedings that might in any way affect or impair the terms
of this Agreement.
(j) The Security Interest, at all times, shall be perfected and shall
be prior to any other interests in the Collateral other than the lien and
security interest under the Chase Credit Agreement. Debtor shall execute and
deliver to Secured Party and Secured Party shall file all security agreements,
financing statements, continuation statements and other documents deemed
necessary by Secured Party to establish, maintain and continue the perfected
Security Interest. Debtor, on demand, shall promptly pay all costs and expenses
of filing and recording, including the costs of any searches, deemed necessary
by Secured Party from time to time to establish and determine the validity and
the continuing priority of the Security Interest.
(k) All rights, powers and remedies granted Secured Party herein, or
otherwise available to Secured Party, are for the sole benefit and protection of
Secured Party, and Secured Party may exercise any such right, power or remedy at
its option and in its sole and absolute discretion without any obligation to do
so. In addition, if under the terms hereof, Secured Party given two or more
alternative courses of action, Secured Party may elect any alternative or
combination of alternatives at its option and in its sole and absolute
discretion.
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(l) All certificates and instruments currently representing the LLC
Interest shall be delivered to Secured Party on or prior to the execution and
delivery of this Agreement. All other certificates and other instruments
constituting Collateral from time to time shall be delivered to Secured Party
promptly upon the receipt thereof by or on behalf of Debtor. All such
certificates and instruments shall be held by Secured Party pursuant hereto and
shall be delivered in suitable form for transfer by delivery or shall be
accompanied by duly executed instruments of transfer or assignment in blank, all
in form and substance reasonably satisfactory to Secured Party.
SECTION 3. VOTING RIGHTS, DIVIDENDS, ETC., IN RESPECT OF THE COLLATERAL
(a) So long as no "Event of Default" (as defined below) shall have
occurred and be continuing:
(i) Debtor may exercise any and all voting and other
consensual rights pertaining to any Collateral for any purpose not inconsistent
with the terms of this Agreement; and
(ii) Debtor may receive and retain any and all distributions
paid in cash with respect of the Collateral.
(b) Upon the occurrence and during the continuance of a Event of
Default;
(i) all rights of Debtor to exercise the voting and other
consensual rights which it would otherwise be entitled to exercise pursuant to
paragraph (i) of subsection (a) of this Section 3, and to receive the
distribution which it would otherwise be authorized to receive and retain
pursuant to paragraph (ii) of subsection (a) of this Section 3, shall cease, and
all such rights shall thereupon become vested in Secured Party, who shall
thereupon have the sole right to exercise such voting and other consensual
rights and to receive and hold as Collateral such distributions.
(ii) without limiting the generality of the foregoing, the
Debtor may, at its option, exercise any and all rights, privileges or options
pertaining to any of the Collateral as if it were the absolute owner thereof,
including, without limitation, the right to exchange, in its discretion, any and
all of the Collateral upon the merger, consolidation, reorganization,
recapitalization or other adjustment of the LLC, or upon the exercise by the LLC
of any right, privilege or option pertaining to any Collateral, and, in
connection therewith, to deposit and deliver any and all of the Collateral with
any committee, depository, transfer agent, registrar or other designated agent
upon such terms and conditions as it may determine; and
(c) all distributions which are received by Debtor contrary to the
provisions of paragraph (i) of this Section 3(b) shall be received in trust for
the benefit of Secured Party, shall be segregated from other funds of Debtor,
and shall be forthwith paid over to Secured Party in the exact form received
with any necessary endorsement and/or appropriate stock powers duly executed in
blank, to be held by Secured Party as Collateral and as further collateral
security for the Obligations.
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SECTION 4. Additional Provisions Concerning the Collateral.
(a) Upon the occurrence and during the continuance of an Event of
Default, Debtor hereby irrevocably appoints Secured Party as Debtor's
attorney-in-fact and proxy, with full authority in the place and stead of the
Debtor and in name of Debtor or otherwise, from time to time in Secured Party's
discretion, to take any action and to execute any instrument which Secured Party
as Debtor's attorney-in-fact and proxy may deem necessary or advisable to
accomplish the purposes of this Agreement (subject to the rights of Debtor under
Section 3(a) hereof), including, without limitation, to receive, endorse and
collect all instruments made payable to Debtor representing any dividend or
other distribution in respect of any Collateral and to give full discharge for
the same.
(b) If Debtor fails to perform any agreement or obligation contained
herein, Secured Party itself may perform, or cause performance of, such
agreement or obligation, and the expenses of Debtor incurred in connection
therewith shall be payable by Debtor.
SECTION 5. EVENT OF DEFAULT; REMEDIES
5.1 Event of Default. The occurrence of any of the following events or
conditions shall constitute and is hereby defined to be an "Event of Default":
(a) A default or violation shall occur in the performance of any of the
obligations of Debtor under Section 2;
(b) A default or violation in the performance of Debtor's obligations
under this Agreement (other than a default or violation referred to elsewhere in
this Section 5) which continues unremedied (i) for a period of ten Business Days
(as defined below) after notice of such default or violation to Debtor in the
case of any default or violation which can be cured by the payment of money
alone or (ii) for a period of 20 Business Days after notice to Debtor in the
case of any other default or violation;
(c) Any levy, execution upon or judicial seizure of any portion of the
Collateral or the institution of any legal action or proceeding affecting
Debtor's or Secured Party's interest in the Collateral;
(d) The occurrence of an "Event of Default" as defined in the
Promissory Note; or
(e) The occurrence of an "Event of Default" as defined in the Security
Agreement, of even date herewith, from the LLC in favor of Secured Party.
As used herein, the term "Business Day" means any day other than a Saturday,
Sunday or a day on which banks in California are required to close.
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5.2 Remedies. Upon the occurrence of any Event of Default, and at any time while
such Event of Default is continuing, Secured Party shall be entitled to do one
or more of the following, and only one or more of the following:
(a) Without notice or demand and without legal process, take possession
of the Collateral wherever found;
(b) Upon obtaining possession of the Collateral or any part thereof,
after notice to Debtor as provided in Section 5.3, sell such Collateral at
public or private sale either with or without having such Collateral at the
place of sale;
(c) The proceeds of any sale of all or any part of the Collateral shall
be applied as follows:
(i) First, to the payment of the reasonable costs and
expenses, including reasonable attorneys' fees and legal expenses, incurred by
Secured Party in connection with (A) the administration of this Agreement, (B)
the custody, preservation, use of operation of, or the sale of, collection from,
or other realization upon, the Collateral, (C) the exercise or enforcement of
any of the rights of Secured Party hereunder or (D) the failure of Debtor to
perform or observe any of the provisions hereof;
(ii) Second, to the payment of the unpaid portion of the
Obligations; and
(iii) Third, the surplus proceeds, if any, to Debtor or to
whomsoever shall be lawfully entitled to receive the same or as a court of
competent jurisdiction shall direct; and
(d) Secured Party or its affiliates, so far as may be lawful, may
purchase all or any part of the Collateral offered at any public or private sale
made in the enforcement of Secured Party's rights and remedies hereunder.
5.3 Notice of Sale and Foreclosure Sale. Secured Party shall give to Debtor
notice of any sale or other disposition of all or any part of the Collateral as
required by law. Debtor agrees that notice and demand shall be deemed to be
commercially reasonable and effective if such notice is given to Debtor at least
ten Business Days prior to such sale or other disposition in the manner provided
herein for the giving of notices. At any sale hereunder by Secured Party or
pursuant to a judicial decree, the Collateral may be sold as a unit or in
parcels, at Secured Party's sole discretion, and Secured Party may be the
purchaser at any such sale and hold said properties and rights thereafter free
from claim of Debtor. At any such sale it shall not be necessary, and Debtor
hereby waives any right to require, that the Collateral be present at the sale
or in view of the prospective purchasers or that the person conducting the sale
have actual physical possession thereof, and Debtor agrees that all of Debtor's
interest in the Collateral wheresoever located, shall pass upon such sale with
like effect as if the same were present and in the possession of the person
conducting such sale and were physically delivered to the purchaser at such
sale. Debtor further agrees that the possession of Debtor of the Collateral or
any of the same shall be deemed the possession of the person conducting such
sale. The recitals in any judicial decree or Certificate of Sale made
thereunder, shall be conclusive proof of the truthfulness of any matters or
facts stated therein, whether set forth in specific or general terms or as
conclusions of law or fact. There shall be deducted from the proceeds of any
such sale all costs and expenses incurred therein, including reasonable
attorneys' fees and commissions, and the net proceeds thereof shall be paid to
Secured Party for application on the Liabilities, the surplus, if any, to be
paid to the person or persons legally entitled thereto.
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5.4 Costs and Expenses. Debtor shall pay all costs and expenses, including
without limitation, costs of Uniform Commercial Code searches, court costs and
reasonable attorney's fees and expert witness fees, incurred by Secured Party in
enforcing payment and performance of the Obligations or in exercising the rights
and remedies of Secured Party hereunder. All such costs and expenses shall be
secured by this Agreement and all other lien and security documents securing the
Obligations. In the event of any court proceedings, court costs and attorneys'
fees shall be set by the court and not by jury and shall be included in any
judgment obtained by Secured Party.
5.5 Uniform Commercial Code. Subject to Section 5.6, in addition to the remedies
provided herein, in an Event of Default, Secured Party shall have all the rights
and remedies afforded a secured party under the Uniform Commercial Code. No
failure on the part of Secured Party to exercise any of their rights hereunder
arising upon any Event of Default shall be construed to prejudice its rights
upon the occurrence of any other or subsequent Event of Default. No delay on the
part of Secured Party in exercising any such rights shall be construed to
preclude it from the exercise thereof at any time while that Event of Default is
continuing. Subject to Section 5.6, Secured Party may enforce any one or more
remedies or rights hereunder successively or concurrently. By accepting payment
or performance of any of the obligations after its due date, Secured Party shall
not thereby waive the agreement contained herein that time is of the essence,
its right to require prompt payment or performance when due of the remainder of
the Obligations, or its right to consider the failure to so pay or perform an
Event of Default.
5.6 Nonrecourse to Debtor. Secured Party acknowledges and agrees that it shall
have no rights or remedies against Debtor in an Event of Default other than as
set forth in this Section 5. Without limiting the generality of the foregoing,
Secured Party shall have no recourse against Debtor or any of its property or
assets (other than the Collateral) for any deficiency.
SECTION 6. MISCELLANEOUS PROVISIONS
6.1 Other Security. The acceptance of this Agreement by Secured Party shall not
be considered a waiver of or in any way to affect or impair any other security
that Secured Party may have, acquire simultaneously herewith, or hereafter
acquire for the payment or performance of the Obligations, and the taking by
Secured Party at any time of any such additional security shall not be construed
as a waiver of or in any way to affect or impair the Security Interest. Secured
Party may resort, for the payment or performance of the Obligations, to any
collateral in such order and manner as it may determine.
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6.2 Extensions of Time. Without notice or demand, without affecting the
obligations of Debtor hereunder or the personal liability of any person for
payment or performance of the Obligations, and without affecting the Security
Interest or the priority thereof, Secured Party, from time to time may extend
the time for payment of all or any part of the Obligations owed to it.
6.3 Rights of Secured Party. Without notice or demand, without affecting the
obligations of Debtor hereunder or the personal liability of any person for the
payment or performance of the Obligations, and without affecting the Security
Interest or the priority thereof, Secured Party from time to time may: (i)
accept a renewal note for the Promissory Note, reduce the payments thereon,
release any person liable for all or any part thereof or otherwise change the
terms thereof or of all or any part of any of the Obligations; (ii) take and
hold other security for the payment or performance of the Obligations and
enforce, exchange, substitute, subordinate, waive or release any such security;
(iii) join in any extension or subordination agreement; or (iv) release any part
of the Collateral from the Security Interest.
6.4 Waiver. Debtor waives and agrees not to assert: (i) any right to require
Secured Party to proceed against any guarantor, to proceed against or exhaust
any other security for the obligations, to pursue any other remedy available to
Secured Party, or to pursue any remedy in any particular order or manner; (ii)
the benefits of any legal or equitable doctrine or principle of marshalling;
(iii) the benefits of any statute of limitations affecting the enforcement
hereof; (iv) demand, diligence, presentment for payment, protest and demand, and
notice of extension, dishonor, protest, demand and nonpayment, relating to the
Obligations; and (v) any benefit of, and any right to participate in, any other
security now or hereafter held by Secured Party.
6.5 Possession. Until an Event of Default, Debtor may retain possession of the
Collateral and may use it in any lawful manner consistent with this Agreement.
6.6 Construction; Severability. The terms herein shall have the meanings in and
be construed under the Uniform Commercial Code of the State of California. Each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
is held to be void or invalid, the same shall not affect the remainder hereof
which shall be effective as though the void or invalid provision had not been
contained herein.
6.7 Modification, Waiver, etc. No modification, rescission, waiver, release or
amendment of any provision of this Agreement shall be made except by a written
agreement subscribed by Debtor and Secured Party.
6.8 Term. This Agreement shall remain in full force and effect until all of the
Obligations shall have been paid and performed in full.
6.9 Setoff. No setoff or claim that Debtor now has or may in the future have
against Secured Party shall relieve Debtor from paying or performing the
Obligations.
6.10 Time. Time is of the essence hereof.
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6.11 Successors and Assigns. This Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and their heirs, personal
representatives, successors and assigns. The term "Secured Party" shall include
not only the original Secured Party hereunder, but also its successors and
assigns, including without limitation, any future owner and holder, including
pledgee, of the Promissory Note. The provisions hereof shall apply to the
parties according to the context thereof and without regard to the number or
gender of words or expressions used.
6.12 Notice. Any notice required or permitted under this Agreement shall be
given in writing and shall be deemed effective upon personal delivery to the
party to be notified or, if sent by telex or telecopier, upon receipt of the
correct answer back, or upon deposit with the United States Post Office, by
registered or certified mail, or upon deposit with an overnight air courier, in
each case postage prepaid and addressed to the party to be notified at the
address indicated for such party in the introduction to this Agreement, or at
such other address as such party may designate by ten days' advance written
notice to the other party.
6.13 Financing Statement. Debtor hereby authorizes Secured Party to prepare and
file, or refile, any and all financing statements, or renewals or replacements
thereof, necessary or appropriate, in Secured Party's discretion, to perfect or
reflect of record the Security Interest. Debtor agrees that a photographic or
other reproduced copy of this Agreement or any financing statement relating
hereto shall be sufficient for filing and recording as a financing statement.
6.14 Governing Law. This Agreement and the rights, duties and obligations of the
parties hereto shall be governed by and construed in accordance with the
internal laws of the State of California and, to the extent they preempt the
laws of such state, the laws of the United States.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Debtor has caused this Agreement to be signed in
its name by its duly authorized officer.
FIRST LOOK MEDIA, INC.
By: /s/ Xxxxxxxxxxx Xxxxxx
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Name: Xxxxxxxxxxx Xxxxxx
Title: Chief Executive Officer
SCHEDULE I
FICTITIOUS NAMES
Corporate Name Fictitious Name
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First Look Media, Inc. Overseas Filmgroup
First Look Pictures
First Look Home Entertainment
First Look Artists
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