EXHIBIT 10.13
EXHIBIT G
PLEDGE AND SECURITY AGREEMENT
BY AND AMONG
BIZCOM, U.S.A., INC.
AND
SMR MANAGEMENT, INC.
AND
SOPHIA COMMUNICATIONS, INC.
NOVEMBER 25, 2003
PLEDGE AND SECURITY AGREEMENT
(BizCom U.S.A., Inc. and SMR Management, Inc.)
THIS PLEDGE AND SECURITY AGREEMENT (the "SECURITY AGREEMENT") is
entered into as of November 25, 2003, by and among (i) BizCom U.S.A., Inc., a
Florida corporation ("Debtor"), (ii) SMR Management, Inc., a Florida Corporation
and wholly owned subsidiary of Debtor (the "Company"), and (iii) Sophia
Communications, Inc., ("Secured Party") and its assigns.
WHEREAS, Debtor, Secured Party and SOPHIA Licensee, Inc. ("Subsidiary")
entered into that certain Asset Purchase Agreement wherein Secured Party and
Subsidiary have agreed to sell substantially all of their assets to the Debtor
in exchange for cash, shares of the common stock and warrants convertible into
common stock of the Debtor and Promissory Notes (as described herein) (the
"PURCHASE AGREEMENT"); and
WHEREAS, as a condition to Closing of the Purchase Agreement and as
security for payment in full by Debtor of all amounts owed to Secured Party
under the Promissory Notes, Debtor and the Company have agreed to execute and
deliver this Security Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein and in the Purchase Agreements, the parties hereto agree as
follows:
1. REFERENCE TO PURCHASE AGREEMENT. The terms, conditions, and
provisions of the Purchase Agreement are incorporated herein by reference, the
same as if set forth herein verbatim, which terms, conditions, and provisions
shall continue to be in full force and effect hereunder until such time as the
Obligations (as defined below) are paid and performed in full.
2. CERTAIN DEFINITIONS. Unless otherwise defined herein or in the
Purchase Agreement, as used herein, the following terms have the meanings
indicated:
"COLLATERAL" shall mean the Pledged Shares and any and all
proceeds therefrom.
"DEFAULT" shall have the meaning set forth in Section 6.
"FCC LICENSES" means the licenses issued by the Federal
Communications Commission to the Company to operate radio stations
under call signs WPOJ271, WPOJ272, WPOJ273, WPOJ274, WPOJ275, WPOJ276,
WPOJ277, WPOJ278, WPOJ279, WPOJ280, and WPOJ281 in the 220-222 MHz
band.
"OBLIGATIONS" means any and all obligations of Debtor to the
Secured Party owed under the Promissory Notes, including the payment of
principal and accrued interest thereunder.
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"PLEDGED SHARES" means all shares of common or preferred stock
of the Company which are now owned by Debtor or hereafter issued by the
Company to Debtor, including, without limitation, the shares of common
stock of the Company described on SCHEDULE 1 hereto, together with all
distributions thereon, all cash and noncash proceeds thereof, and any
securities, notes, or other instruments issued in increase,
substitution or replacement thereof.
"PROMISSORY NOTES" means collectively (i) the promissory note
issued by Debtor as maker to Secured Party as payee in the principal
amount of Two Million Nine Hundred Thousand Dollars and no cents
($2,900,000.00) as part of the Purchase Price under the Purchase
Agreement and (ii) the promissory note issued by Debtor as maker to
Secured Party as payee in the principal amount of Four Hundred Thousand
Dollars and no cents ($400,000.00) as part of the Purchase Price under
the Purchase Agreement.
"SECURITY INTEREST" means the security interest granted and
the pledge created under Section 3 hereof.
"UCC" means the Uniform Commercial Code as enacted in the
State of Florida or other applicable jurisdiction, as amended at the
time in question.
To the extent that a defined term used herein is also defined in the
UCC then if the definition given to such term in this Security Agreement
conflicts with the definition given to such term in the UCC, this Security
Agreement definition shall control to the extent legally allowable.
3. SECURITY INTEREST. In order to secure the full and complete payment
and performance of the Obligations when due, including, but not limited to, all
indebtedness, liabilities, and obligations now existing or hereafter arising
under or in connection with the Promissory Notes, Debtor hereby grants Secured
Party a security interest in, and pledges and collaterally transfers, and
assigns the Pledged Shares in favor of Secured Party, all upon and subject to
the terms and conditions of this Security Agreement. Such Security Interest is
granted as security only and shall not subject Secured Party to, or transfer or
in any way affect or modify, any obligation of Debtor with respect to any of the
Collateral or any transaction involving or giving rise thereto. If the grant,
pledge, or collateral transfer or assignment of any specific item of the
Collateral is expressly prohibited by any contract or applicable law, then the
Security Interest created hereby nonetheless remains effective to the extent
allowed by UCC ss. 9.404(b) or other applicable law, but is otherwise limited by
that prohibition.
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4. REPRESENTATIONS AND WARRANTIES. Debtor represents and warrants to
Secured Party that:
(a) Purchase Agreement. Each of the representations and
warranties of Debtor set forth in the Purchase Agreement are
incorporated in this Security Agreement by reference and, and each such
representation and warranty is true and correct in all material
respects as of the date hereof as if expressly stated herein.
(b) Binding Obligations. This Security Agreement creates a
legal, valid, and binding Lien in and to the Collateral in favor of
Secured Party and enforceable against Debtor, except as may be limited
by laws affecting creditors rights or equitable principles generally.
For Collateral in which the Security Interest may be perfected through
possession or "control" (within the meaning of Sections 8-106 and 9-106
of the UCC) by Secured Party, the Security Interest constitutes a
first-priority Lien in and to the Collateral. The creation of the
Security Interest does not require the consent of any person that has
not been obtained.
(c) Securities. The Pledged Securities are duly authorized,
validly issued, fully paid, and non-assessable, and the transfer
thereof is not subject to any restrictions, other than restrictions
imposed by applicable securities and corporate laws. Debtor has good
title to the Collateral, free and clear of all Liens and encumbrances
thereon (except for the Security Interest created hereby), and, to the
extent certificated has delivered to Secured Party all stock
certificates or other instruments or documents representing or
evidencing the securities, together with corresponding assignment or
transfer powers duly executed in blank by Debtor, and such powers have
been duly and validly executed and are binding and enforceable against
Debtor in accordance with their terms, except as may be limited by laws
affecting creditors rights or equitable principles generally; and the
pledge of the securities in accordance with the terms hereof creates a
valid and perfected first-priority Security Interest in the securities
securing payment of the Obligations. Other than as set forth in this
Security Agreement, there exist as of the date hereof, no agreement
which could affect the transferability of any of the Pledged Shares.
(d) Governmental Authority. No authorization, approval, or
other action by, and no notice to or filing with, any Governmental
Authority is required either (i) for the pledge by Debtor of the
Pledged Shares pursuant to this Security Agreement or for the
execution, delivery, or performance of this Security Agreement by
Debtor (including the filing of a financing statement under the UCC),
or (ii) for the exercise by Secured Party of the voting or other rights
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provided for in this Security Agreement or the remedies in respect of
the Collateral pursuant to this Security Agreement (except as
contemplated by SECTION 6 hereof).
(e) Liens. Debtor owns all presently existing Collateral free
and clear of all Liens.
5. COVENANTS. Until such time as the Obligations are paid in full,
Debtor and the Company covenant and agree with Secured Party that such party
will:
(a) Promptly upon knowledge thereof notify Secured Party of
any material change in any fact or circumstances represented or
warranted by Debtor with respect to any of the Collateral or
Obligations and any claim, action, or proceeding affecting title to all
or any of the Collateral or the Security Interest and, at the request
of Secured Party, appear in and defend, at Debtor's expense, any such
action or proceeding;
(b) At Debtor's or the Company's expense and Secured Party's
request, (i) after the occurrence and continuation of a Default (as
hereinafter defined), file or cause to be filed such applications and
take such other actions as Secured Party may request to obtain the
consent or approval of any Governmental Authority to Secured Party's
rights hereunder to sell the Collateral; (ii) from time to time
promptly execute and deliver to Secured Party all such other
assignments, certificates, supplemental documents, and financing
statements, and do all other acts or things as Secured Party may
reasonably request in order to more fully create, evidence, perfect,
continue, and preserve the priority of the Security Interest; and (iii)
pay all filing fees in connection with any financing, continuation, or
termination statement or other instrument with respect to the Security
Interests.
(c) Impairment of Collateral. Not use any of the Collateral,
or permit the same to be used, for any unlawful purpose, in any manner
that is reasonably likely to adversely impair the value or usefulness
of the Collateral, or in any manner inconsistent with the provisions or
requirements of any policy of insurance thereon.
(d) Pledged Shares. Not sell, exchange, or otherwise dispose
of, or grant any option, warrant, or other right with respect to, any
of the Pledged Shares.
(e) FCC Licenses. Not sell, exchange, or otherwise dispose of,
mortgage or encumber, or enter into any agreement to sell, exchange or
otherwise dispose of, mortgage or encumber, or suffer to exist any
claim, Lien or encumbrance on, or grant any option or other right with
respect to, the FCC Licenses.
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(f) Existence. Not issue any additional securities in the
Company, terminate the corporate existence of the Company, to be a
party to any merger or consolidation, or to sell, lease, or dispose of
all or substantially all of its assets and properties in a single
transaction or a series of related transactions of the Company, except
that Debtor may take such actions as would occur in the ordinary course
of the Debtor's business.
(g) Removal of Legends. In the event Secured Party decides to
foreclose upon or dispose of the Pledged Shares, Debtor agrees to use
commercially reasonable efforts (subject to the requirements of
applicable law) to assist Secured Party in expeditiously removing any
legends on the Pledged Shares which, in Secured Party's sole judgment,
would or could delay Secured Party's foreclosure upon or disposition of
such Pledged Shares.
6. DEFAULT; REMEDIES. In the event there is a default (meaning failure
to pay on a due date as set forth in each Promissory Note or within 5 business
days after written notice of such failure from the Payee) under either
Promissory Note or there exists any material breach of any representation made
by the Debtor or the Company herein, or the Debtor or the Company breaches any
covenant hereunder or if any of the following events shall occur and be
continuing for any reason whatsoever (and whether such occurrence shall be
voluntary or involuntary or come about or be effected by operation of law or
otherwise): (i) if Debtor or Company makes an assignment for the benefit of
creditors or admits in writing an inability to pay its debts generally as they
become due; or (ii) if an order, judgment or decree is entered adjudicating
Debtor or Company bankrupt or insolvent; or (iii) if Debtor or Company petitions
or applies to any tribunal for the appointment of a trustee or receiver of
Debtor or Company, or of any substantial part of the assets of Debtor or
Company, or commences any proceedings relating to Debtor or Company under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction, whether now or hereafter in
effect; or (iv) if any such petition or application is filed, or any such
proceedings are commenced, against Debtor or Company, and Debtor or Company by
any act indicates its approval thereof, consent thereto, or acquiescence
therein, or an order is entered appointing any such trustee or receiver, or
approving the petition in any such proceedings, and such order remains unstayed
and in effect for more than 90 days; or (v) if Debtor or Company dissolves or
otherwise ceases to conduct business in the ordinary course of the Debtor's or
Company's business as generally presently conducted (any and each such event
described in this sentence being a "DEFAULT") Secured Party may exercise any and
all rights available to a secured party under the UCC, in addition to any and
all other rights afforded by this Agreement, at law, in equity, or otherwise,
including, without limitation applying by appropriate judicial proceedings for
appointment of a receiver for all or part of the Collateral (and Debtor hereby
consents to any such appointment). If a foreclosure sale on Pledged Shares is
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subject to SECTION 6 herein, then Secured Party will not foreclose on such
Pledged Shares unless it has given at least ten (10) days written notice to
Debtor and to the FCC, to the extent such notice is required under 47C.F.R.
22.937(f).
(a) Notice. To the extent that any notice of a public, private
or other foreclosure sale is required under the UCC, such notice shall
be sent to Debtor and to any other Person entitled to notice under the
UCC; provided that, if any of the Collateral threatens to decline
speedily in value or is of the type customarily sold on a recognized
market, Secured Party may sell or otherwise dispose of the Collateral
without notification, advertisement, or other notice of any kind.
(b) Sales of Pledged Shares.
(i) Debtor agrees that, because of the Securities Act
of 1933, as amended, or the rules and regulations promulgated
thereunder (collectively, the "SECURITIES ACT"), or any other
laws or regulations, and for other reasons, there may be legal
or practical restrictions or limitations affecting Secured
Party in any attempts to dispose of certain portions of the
Pledged Shares and for the enforcement of its rights. For
these reasons, Secured Party is hereby authorized by Debtor,
but not obligated, upon the occurrence and during the
continuation of a Default, to sell all or any part of the
Pledged Shares at private sale, subject to investment letter
or in any other manner which will not require the Pledged
Shares, or any part thereof, to be registered in accordance
with the Securities Act or any other laws or regulations, and
make a reasonable effort to sell the Pledged Shares and/or the
FCC Licenses at a commercially reasonable value at such
private sale or other distribution in the manner mentioned
above. Debtor understands that Secured Party may in its
discretion approach a limited number of potential purchasers
and that a sale under such circumstances may yield a lower
price for the Pledged Shares, or any part thereof, than would
otherwise be obtainable if such Collateral were either
afforded to a larger number or potential purchasers,
registered under the Securities Act, or sold in the open
market. Debtor agrees that any such private sale made under
this PARAGRAPH 6(B) shall be deemed to have been made in a
commercially reasonable manner, and that Secured Party has no
obligation to delay the sale of any Pledged Shares to permit
the issuer thereof to register it for public sale under any
applicable federal or state securities laws.
(ii) Secured Party is authorized, in connection with
any such sale, (A) to restrict the prospective bidders on or
purchasers of any of the Pledged Shares to a limited number of
sophisticated investors who will represent and agree that they
are purchasing for their own account for investment and not
with a view to the distribution or sale of any of such Pledged
Shares, and (B) to impose such other limitations or conditions
in connection with any such sale as Secured Party reasonably
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deems necessary in order to comply with applicable law. Debtor
covenants and agrees that it will execute and deliver such
documents and take such other action as Secured Party
reasonably deems necessary in order that any such sale may be
made in compliance with applicable law. Upon any such sale
Secured Party shall have the right to deliver, assign, and
transfer to the purchaser thereof the Pledged Shares so sold.
Each purchaser at any such sale shall hold the Pledged Shares
so sold absolutely free from any claim or right of Debtor of
whatsoever kind, including any equity or right of redemption
of Debtor. Debtor, to the extent permitted by applicable law,
hereby specifically waives all rights of redemption, stay, or
appraisal which it has or may have under any law now existing
or hereafter enacted.
(iii) To the extent that any notice of a public,
private or other foreclosure sale is required under the UCC,
Debtor agrees that ten (10) days' written notice from Secured
Party to Debtor of Secured Party's intention to make any such
public, private or other foreclosure sale shall constitute
"reasonable authenticated notification" within the meaning of
the UCC. Such notice shall (A) in case of a public sale, state
the time and place fixed for such sale, and (B) in the case of
a private sale, state the day after which such sale may be
consummated. Any public sale shall be held at such time or
times within ordinary business hours and at such place or
places as Secured Party may fix in the notice of such sale. At
any such sale, the Pledged Shares may be sold in one lot as an
entirety or in separate parcels, as Secured Party may
reasonably determine, and Secured Party may be the purchaser
thereof. Secured Party shall not be obligated to make any such
sale pursuant to any such notice. Secured Party may, without
notice or publication, adjourn any public or private sale or
cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and
such sale may be made at any time or place to which the same
may be so adjourned.
(iv) In case of any sale of all or any part of the
Pledged Shares on credit or for future delivery, the Pledged
Shares so sold may be retained by Secured Party until the
selling price is paid by the purchaser thereof, but Secured
Party shall not incur any liability in case of the failure of
such purchaser to take up and pay for the Pledged Shares so
sold and in case of any such failure, such Pledged Shares may
again be sold. Secured Party, instead of exercising the power
of sale herein conferred upon it, may proceed by a suit or
suits at law or in equity to foreclose the Security Interests
and sell the Pledged Shares, or any portion thereof, under a
judgment or decree of a court or courts of competent
jurisdiction.
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(v) Without limiting the foregoing, or imposing upon
Secured Party any obligations or duties not required by
applicable law, Debtor acknowledges and agrees that, in
foreclosing upon any of the Pledged Shares, or exercising any
other rights or remedies provided Secured Party hereunder or
under applicable law, Secured Party may, but, except to the
extent required by law, shall not be required to: (A) qualify
or restrict prospective purchasers of the Pledged Shares by
requiring evidence of sophistication or creditworthiness and,
to the extent required consents are necessary as contemplated
by SECTION 6 hereof, evidence of capability to obtain such
required consents, and requiring the execution and delivery of
confidentiality agreements or other documents and agreements
as a condition to such prospective purchasers' receipt of
information regarding the Pledged Shares or participation in
any public or private foreclosure sale process, (B) provide to
prospective purchasers business and financial information
regarding Debtor available in the files of Secured Party at
the time of commencing the foreclosure process, without the
requirement that Secured Party obtain, or seek to obtain, any
updated business or financial information or verify, or
certify to prospective purchasers, the accuracy of any such
business or financial information, or (C) offer for sale and
sell the Pledged Shares with, or without, first employing an
appraiser, investment banker, or broker with respect to the
evaluation of the Pledged Shares, the solicitation of
purchasers for Pledged Shares, or the manner of sale of
Pledged Shares.
(c) Application of Proceeds. Secured Party shall apply the
proceeds of any sale or other disposition of the Collateral under this
PARAGRAPH 6 in the following order: first, to the payment of all
expenses incurred in retaking, holding, and preparing any of the
Collateral for sale(s) or other disposition, in arranging for such
sale(s) or other disposition, and in actually selling or disposing of
the same (all of which are part of the Obligations); second, toward
payment of the balance of the Obligations. Any surplus remaining shall
be delivered to Debtor or as a court of competent jurisdiction may
direct. If the proceeds are insufficient to pay the Obligations in
full, Debtor shall remain liable for any deficiency.
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7. OTHER RIGHTS OF SECURED PARTY.
(a) Performance. If Debtor fails to keep the Collateral in
good standing and condition, as required in this Security Agreement, or
fails to preserve the priority of the Security Interest in any of the
Collateral, or otherwise fails to perform any of the Obligations, then
Secured Party may, at its option, but without being required to do so,
take all other action which Debtor is required, but has failed or
refused, to take. Any sum which may be expended or paid by Secured
Party under this subparagraph (including, without limitation, court
costs and reasonable attorneys' fees) shall bear interest from the
dates of expenditure or payment at the interest rate set for a default
under the Promissory Notes until paid and, together with such interest,
shall be payable by Debtor to Secured Party upon demand and shall be
part of the Obligations.
(b) Record Ownership of Securities. If a Default exists,
Secured Party at any time may have any Collateral that is Pledged
Shares and that is in the possession of Secured Party, or its nominee
or nominees, registered in its name, or in the name of its nominee or
nominees, as pledgee; and, as to any Pledged Shares so registered,
Debtor shall execute and deliver (or cause to be executed and
delivered) to Secured Party all such proxies, powers of attorney,
dividend coupons or orders, and other documents as Secured Party may
reasonably request for the purpose of enabling Secured Party to
exercise the voting rights and powers which it is entitled to exercise
under this Security Agreement or to receive the dividends and other
payments in respect of such Collateral that is Pledged Shares which it
is authorized to receive and retain under this Security Agreement.
(c) Voting of Securities. As long no Default exists, Debtor is
entitled to exercise all voting rights pertaining to any Collateral
that is Pledged Shares. If a Default exists and is continuing, and if
Secured Party elects to exercise such right by delivering written
notice of such election to Debtor, then the right to vote any
Collateral that is Pledged Shares shall be vested exclusively in
Secured Party. To this end, Debtor hereby irrevocably constitutes and
appoints Secured Party the proxy and attorney-in-fact of Debtor, with
full power of substitution, to vote, and to act with respect to, any
and all Collateral that is Pledged Shares standing in the name of
Debtor or with respect to which Debtor is entitled to vote and act,
subject to the understanding that such proxy may not be exercised
unless a Default exists and is continuing. The proxy herein granted is
coupled with an interest, is irrevocable, and shall continue until the
Obligations has been paid and performed in full.
(d) Certain Proceeds. Any and all stock dividends or
distributions in property made on or in respect of any Pledged Shares,
and any proceeds of any Pledged Shares, whether such dividends,
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distributions, or proceeds result from a subdivision, combination, or
reclassification of the outstanding capital stock of any issuer thereof
or as a result of any merger, consolidation, acquisition, or other
exchange of assets to which any issuer may be a party, or otherwise,
shall be part of the Collateral hereunder, shall, if received by
Debtor, be held in trust for the benefit of Secured Party, and shall
forthwith be delivered to Secured Party (accompanied by proper
instruments of assignment and/or stock and/or bond powers executed by
Debtor in accordance with Secured Party's instructions) to be held
subject to the terms of this Security Agreement. Any cash proceeds of
Collateral which come into the possession of Secured Party (including,
without limitation, insurance proceeds) may, at Secured Party's option,
be applied in whole or in part to the Obligations (to the extent then
due), be released in whole or in part to or on the written instructions
of Debtor for any general or specific purpose, or be retained in whole
or in part by Secured Party as additional Collateral.
(e) Use and Operation of Collateral. Should any Collateral
come into the possession of Secured Party, Secured Party may use or
operate such Collateral for the purpose of preserving it or its value
pursuant to the order of a court of appropriate jurisdiction or in
accordance with any other rights held by Secured Party in respect of
such Collateral. Debtor covenants to promptly reimburse and pay to
Secured Party, at Secured Party's request, the amount of all reasonable
expenses (including, without limitation, the cost of any insurance and
payment of taxes or other charges) incurred by Secured Party in
connection with its custody and preservation of Collateral, and all
such expenses, costs, taxes, and other charges shall bear interest at
the default rate until repaid and, together with such interest, shall
be payable by Debtor to Secured Party upon demand and shall become part
of the Obligations. However, the risk of accidental loss or damage to,
or diminution in value of, Collateral is on Debtor, and Secured Party
shall have no liability whatever for failure to obtain or maintain
insurance, nor to determine whether any insurance ever in force is
adequate as to amount or as to the risks insured. With respect to
Collateral that is in the possession of Secured Party, Secured Party
shall have no duty to fix or preserve rights against prior parties to
such Collateral and shall never be liable for any failure to use
diligence to collect any amount payable in respect of such Collateral,
but shall be liable only to account to Debtor for what it may actually
collect or receive thereon. The provisions of this subparagraph are
applicable whether or not a Default exists.
(f) Power of Attorney. For use following and during the
continuation of a Default, Debtor hereby irrevocably constitutes and
appoints Secured Party as Debtor's attorney-in-fact, with full
irrevocable power and authority in the place and stead of Debtor and in
the name of Debtor, Secured Party or otherwise, from time to time in
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Secured Party's discretion, for the sole purpose of carrying out the
terms of this Security Agreement, enforcing Secured Party's rights
under this Security Agreement, and, to the extent permitted by
applicable law, to take any action and to execute any document and
instrument which Secured Party may deem necessary or advisable to
execute on behalf of Debtor any continuation statement with respect to
the Security Interests created hereby, and to do any and all acts and
things to protect, preserve and (following a Default) foreclose upon
the Collateral, including, without limitation, the protection and
prosecution of all rights included in the Collateral.
(G) INDEMNIFICATION. DEBTOR HEREBY ASSUMES ALL LIABILITY FOR
THE COLLATERAL AND FOR THE SECURITY INTEREST ARISING AS A RESULT OF OR
IN CONNECTION WITH, THE TRANSACTIONS CONTEMPLATED HEREIN. DEBTOR AGREES
TO INDEMNIFY, SAVE, AND HOLD SECURED PARTY HARMLESS FROM AND AGAINST,
AND COVENANTS TO DEFEND SECURED PARTY AGAINST, ANY AND ALL LOSSES,
DAMAGES, CLAIMS, COSTS, PENALTIES, LIABILITIES, AND EXPENSES
(COLLECTIVELY, "CLAIMS"), INCLUDING, WITHOUT LIMITATION, COURT COSTS
AND REASONABLE ATTORNEYS' FEES, AND ANY OF THE FOREGOING ARISING FROM
SECURED PARTY'S ENFORCEMENT OF THIS SECURITY AGREEMENT UPON A DEFAULT
BY DEBTOR OR THE COMPANY. WITHOUT LIMITING THE FOREGOING, AND
NOTWITHSTANDING THE EXISTENCE OF A DEFAULT, DEBTOR AND COMPANY
EXPRESSLY RELEASE AND HOLD HARMLESS SECURED PARTY FROM ANY OBLIGATIONS
OR RESPONSIBILITIES WITH RESPECT TO SECURED PARTY'S REASONABLE STEPS
TAKEN TO ENSURE THE PRESERVATION OF THE FCC LICENSES, INCLUDING ANY
OBLIGATION OR RESPONSIBLITY RELATING TO COMPLIANCE WITH ANY REGULATION
OR REQUIREMENT OF THE FCC.
8. ACKNOWLEDGMENT OF REGULATORY CONSIDERATIONS
If any consents, authority, or approval of the FCC or any applicable
PUC (collectively, "REQUIRED CONSENTS") is required in connection with the
exercise by Secured Party of any rights granted, or action to be taken,
hereunder with respect to the Collateral, then the following provisions shall
apply:
(a) FCC Approval. Notwithstanding anything to the contrary
contained in this Security Agreement, Secured Party will not consummate
any foreclosure sale or take any other actions pursuant to this
Security Agreement which would constitute a transfer of control or an
assignment of an FCC License if such transfer of control or assignment
would require under then-existing law (including the written rules and
regulations promulgated by the FCC or any other applicable PUC with
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jurisdiction) any consents, without first obtaining such consents. To
the fullest extent permitted by applicable laws, Secured Party
nevertheless may, without limiting other rights and remedies available
to it by applicable laws or agreement, give notice of a proposed
foreclosure sale, prepare for such sale, and conduct such sale, subject
to a requirement (to the extent required by applicable laws) that such
sale will not be consummated until Required Consents are obtained.
Debtor further acknowledges that any such approval process would
substantially delay the consummation of a foreclosure sale,
significantly restrict the number of possible bidders at any such
foreclosure sale, and reduce the price which would be bid or paid in
connection with any such foreclosure sale; and notwithstanding the
foregoing, conduct of such a foreclosure, subject to such approval
procedure, shall be commercially reasonable and Secured Party shall
have no obligation or liability to Debtor in connection therewith.
(b) Actions by Debtor. Debtor agrees to take, and cause to be
taken, any action which Secured Party may reasonably request in order
to obtain and enjoy the full rights and benefits granted to Secured
Party by this Security Agreement and any other instruments or
agreements executed pursuant hereto, including, without limitation,
Debtor, at its sole cost and expense, agrees to use its best efforts to
secure the Required Consents and to cooperate with Secured Party in any
action commenced by Secured Party to secure such consent. Upon the
occurrence and during the continuation of a Default, Debtor shall
promptly prepare and execute or cause the preparation and execution
(including the preparation and execution by Communications) of all
applications, certificates, instruments, and other documents and papers
that may be required to file in order to obtain any required consents,
and if Debtor fails or refuses to prepare or execute (or cause
preparation and execution of) such documents, then, on the order of any
court of competent jurisdiction, the Clerk of the Court with
jurisdiction may prepare and execute such documents on behalf of
Debtor. Debtor further recognizes that a violation of this covenant
would result in irreparable harm to Secured Party for which monetary
damages are not readily ascertainable and which might not fully
compensate Secured Party. Therefore, in addition to any other remedy
which may be available to Secured Party, at law or in equity, Secured
Party shall have the remedy of specific performance of the provisions
of this subsection.
9. MISCELLANEOUS.
(a) Continuing Security Interest. This Security Agreement
creates a continuing security interest in the Collateral and shall (i)
remain in full force and effect until the termination of the
Obligations of Secured Party; (ii) be binding upon Debtor, its
successors, and assigns; and (iii) inure to the benefit of and be
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enforceable by the Secured Party, and its respective successors,
transferees, and assigns. Without limiting the generality of the
foregoing CLAUSE (III), the Secured Party may assign or otherwise
transfer any of its respective rights under this Security Agreement to
any other Person who acquires an interest in either Promissory Note,
and such Person shall thereupon become vested with all the rights and
benefits in respect thereof granted herein or otherwise to the Secured
Party to the extent of such assignment or transfer. Upon payment in
full of the Obligations, Debtor shall be entitled to the return, upon
its request and at its expense, of such of the Collateral as shall not
have been sold or otherwise applied pursuant to the terms hereof.
(b) Actions Not Releases. The Security Interest and Debtor's
obligations and Secured Party's rights hereunder shall not be released,
diminished, impaired, or adversely affected by the occurrence of any
one or more of the following events: (i) the taking or accepting of any
other security or assurance for any or all of the Obligations; (ii) any
release, surrender, exchange, subordination, or loss of any security or
assurance at any time existing in connection with any or all of the
Obligations; (iii) the insolvency, bankruptcy, or lack of corporate or
trust power of any party at any time liable for the payment of any or
all of the Obligations, whether now existing or hereafter occurring;
(iv) any renewal, extension, or rearrangement of the payment of any or
all of the Obligations, either with or without notice to or consent of
Debtor, or any adjustment, indulgence, forbearance, or compromise that
may be granted or given by Secured Party to Debtor; (v) any neglect,
delay, omission, failure, or refusal of Secured Party to take or
prosecute any action in connection with any other agreement, document,
guaranty, or instrument evidencing, securing, or assuring the payment
of all or any of the Obligations; (vi) any failure of Secured Party to
notify Debtor of any renewal, extension, or assignment of the
Obligations or any part thereof, or the release of any security, or of
any other action taken or refrained from being taken by Secured Party
against Debtor or any new agreement between Secured Party and Debtor,
it being understood that Secured Party shall not be required to give
Debtor any notice of any kind under any circumstances whatsoever with
respect to or in connection with the Obligations, including, without
limitation, notice of acceptance of this Security Agreement or any
Collateral ever delivered to or for the account of Secured Party
hereunder; (vii) the illegality, invalidity, or unenforceability of all
or any part of the Obligations against any party obligated with respect
thereto by reason of the fact that the Obligations, or the interest
paid or payable with respect thereto, exceeds the amount permitted by
law, the act of creating the Obligations, or any part thereof, is ultra
xxxxx, or the officers, partners, or trustees creating same acted in
excess of their authority, or for any other reason; or (viii) if any
payment by any party obligated with respect thereto is held to
constitute a preference under applicable laws or for any other reason
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Secured Party is required to refund such payment or pay the amount
thereof to someone else.
(c) Waivers. Except to the extent expressly otherwise provided
and to the fullest extent permitted by applicable law, Debtor waives
(i) any right to require Secured Party to proceed against any other
person, to exhaust its rights in Collateral, or to pursue any other
right which Secured Party may have; (ii) with respect to the
Obligations, presentment and demand for payment, protest, notice of
protest and nonpayment, and notice of the intention to accelerate; and
(iii) all rights of marshaling in respect of any and all of the
Collateral.
(d) Amendments. This Security Agreement may be amended only by
an instrument in writing executed jointly by Debtor, the Company and
Secured Party, and supplemented only by documents delivered or to be
delivered in accordance with the express terms hereof.
(e) Multiple Counterparts. This Security Agreement has been
executed in a number of identical counterparts, each of which shall be
deemed an original for all purposes and all of which constitute,
collectively, one agreement; but, in making proof of this Security
Agreement, it shall not be necessary to produce or account for more
than one such counterpart.
(f) Parties Bound; Assignment. This Security Agreement shall
be binding on Debtor and the Company's and Debtor and the Company's
heirs, legal representatives, successors, and assigns and shall inure
to the benefit of Secured Party and Secured Party's successors and
assigns, except that, Debtor and Company may not, without the prior
written consent of Secured Party, assign any rights, duties, or
obligations hereunder.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AS TO ITS
VALIDITY, INTERPRETATION, AND EFFECT SOLELY IN ACCORDANCE WITH THE LAWS
OF THE STATE OF FLORIDA, EXCEPT IF THE VALIDITY OR PERFECTION OF THE
SECURITY INTERESTS HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR COLLATERAL, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF FLORIDA. UNLESS THE CONTEXT OTHERWISE REQUIRES, ALL
TERMS USED HEREIN WHICH ARE DEFINED IN THE UNIFORM COMMERCIAL CODE AS
ENACTED IN THE STATE OF FLORIDA SHALL HAVE THE MEANINGS THEREIN STATED.
(h) Jurisdiction and Venue; Service of Process; Waiver of
Trial by Jury; Attorneys' Fees. If any dispute or controversy shall
arise between any of the parties hereto, such dispute or controversy
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may only be brought for resolution solely in the federal and/or state
courts located in Broward County, Florida. Each of the parties hereto
hereby consent solely to the jurisdiction and venue of such courts, and
agree that they shall not contest or challenge the jurisdiction or
venue of such courts. Each of the parties hereto agrees that service of
any process, summons, notice or document, by U.S. registered or
certified mail, to its address set forth in or as provided in Section
8.08 of the Purchase Agreement shall be effective service of process
for any action, suit or proceeding brought against it in any such
court. In recognition of the fact that the issues which would arise
under or relating to this Security Agreement, are of such a complex
nature that they could not be properly be tried before a jury, each of
the parties hereto waives trial by jury. The prevailing party in any
action and/or proceeding shall be entitled to recover its reasonable
attorneys' fees and costs from the other party/parties to such action,
suit or proceeding.
(i) Return of Collateral. Upon timely payment in full to
Secured Party of the Obligations, Secured Party shall immediately
return the Collateral unencumbered to the Company and the Debtor.
[NEXT PAGE IS THE SIGNATURE PAGE]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
BIZCOM, U.S.A., INC. SOPHIA COMMUNICATIONS, INC.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxx
------------------------------ ---------------------------------
Name: Hanan "Xxxx" Xxxxx Name: Xxxxxxx Xxxxxx
Title: President Title: Chairman of the Board
SMR MANAGEMENT, INC.
By: /s/ Xxxxx Xxxxx
------------------------------
Name: Hanan "Xxxx" Xxxxx
Title: President
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SCHEDULE 1
PLEDGED SHARES
--------------
--------------------------------------------------------------------------------
One Hundred (100) shares of Common Stock of SMR Management, Inc., par value
$.001 per share, issued in the name of BizCom, U.S.A., Inc. as evidenced by
Stock Certificate Number 1.
--------------------------------------------------------------------------------
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ANNEX A TO SECURITY AGREEMENT
I. Information regarding Debtor:
A. DEBTOR'S TRADENAMES:
None
B. LOCATION OF BOOKS AND RECORDS:
0000 XX 00 Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
C. JURISDICTION(S) FOR FILING FINANCING STATEMENTS:
Florida
Secretary of State, UCC Division
[Please insert address]
II. Information regarding the Company:
A. THE COMPANY'S TRADENAMES:
None
B. LOCATION OF BOOKS AND RECORDS:
0000 XX 00 Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
C. JURISDICTION(S) FOR FILING FINANCING STATEMENTS:
Florida
Secretary of State, UCC Division
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