EXECUTION COPY
SECURITY AGREEMENT
SECURITY AGREEMENT, this 3rd day of February, 2004, by and among
Wellspring Media, Inc., a Delaware corporation with offices at 419 Park Ave.
South, New York, New York 10016 (the "Grantor"), in favor of Lee Miller, as
Security Agent (the "Security Agent"), on behalf of Al Cattabiani, an individual
residing at 27 Summit Terrace, Dobbs Ferry, New York 10522, ("Cattabiani"), Lee
Miller, an individual residing at 420 Round Hill Road, Greenwich, Connecticut
06831, ("Miller") Clara Spalter Miller, an individual residing at 420 Round Hill
Road, Greenwich, Connecticut 06831 ("C. Miller"), Carl Seldin Koerner, an
individual residing at 229 Greenway South, Forest Hills, New York 11375
("Koerner"), and Jefferies & Company, Inc. ("Jefferies"), a Delaware Corporation
with offices at 520 Madison Avenue, 8th Floor, New York, New York 10022
(Cattabiani, Miller, C. Miller, Koerner, and Jefferies being collectively
referred to herein as the "Secured Parties").
W I T N E S S E T H :
WHEREAS, on the date hereof, pursuant to the terms of a Stock Purchase
Agreement of even date herewith, (the "Agreement") among the American and
certain of the Secured Parties, American has purchased certain stock of the
Grantor owned by certain of the Secured Parties; and
WHEREAS, pursuant to the terms and conditions of the Agreement, American
has agreed and is obligated to make certain payments to the Secured Parties
under the terms of certain promissory notes (the "Notes"); and
WHEREAS, certain of the Secured Parties have assigned $480,000 in
principal amount of the Notes to Jefferies;
WHEREAS, in order to induce certain of the Secured Parties to execute and
deliver the Agreement, the Grantor has guaranteed the obligations of American
pursuant to the terms of a Guaranty agreement of even date herewith (the
"Guaranty"); and
WHEREAS, in order to induce certain the Secured Parties to execute and
deliver the Agreement, American has agreed to pledge to the Secured Parties
certain stock of the Grantor as security for the Obligations (as defined herein)
pursuant to the terms of a Pledge Agreement of even date (the "Pledge"); and
WHEREAS, in order to induce certain of the Secured Parties to execute and
deliver the Agreement, the Grantor has agreed to pledge to the Secured Parties
certain collateral of the Grantor as security for the Obligations pursuant to
the terms of this Security Agreement;
NOW, THEREFORE, in consideration of One ($1.00) Dollar, and other valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, the
parties hereto agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall have
the meanings set forth in the Agreement and the following terms as used herein
shall have the meanings set forth below:
"Collateral" shall mean all of the property set forth in Exhibit A
attached hereto and made a part hereof, and all substitutions, increases,
replacements and accessions thereto and the proceeds thereof, if any.
"Obligations" shall mean all sums due under the Agreement, the
Notes, the Pledge, the Guaranty and this Security Agreement.
2. Creation of the Security Interest. To secure the due payment and
performance of the Obligations, the Grantor hereby grants, mortgages and conveys
to the Secured Parties a lien on and security interest in all of the right,
title and interest of Grantor in and to the Collateral as set forth on Exhibit
A. This security interest is granted in order to secure the full, prompt and
faithful payment and performance of all of the Obligations.
3. Protection of the Collateral. Grantor shall defend its ownership of the
Collateral against all claims and demands whatsoever. Grantor shall not sell,
exchange, assign, loan, license, deliver, lease, mortgage, transfer or otherwise
dispose of the Collateral, or grant any other security interest in any of the
Collateral, without the prior written consent of the Secured Parties in each
instance, except in the Ordinary Course of Business and except for any Liens
existing on the date hereof, including, without limitation, the Lien of Atlantic
Bank of New York in the Collateral under the Atlantic Bank Security Agreement
(as defined in the Notes) and Permitted Encumbrances under the Atlantic Bank
Security Agreement. Grantor shall keep the Collateral, at Grantor's own cost and
expense, in good repair and condition, ordinary wear and tear excepted, and
available for inspection by the Security Agent at all reasonable times. Grantor
shall keep the Collateral insured against loss by fire, theft and other
casualties in amounts and with carriers consistent with those in existence on
the date hereof, and name the Secured Parties as loss payee as their interests
may appear in the event of any loss. Grantor shall give immediate written notice
to the Security Agent and to insurers of loss or damage to the Collateral and
shall promptly file proofs of loss with insurers.
4. Filing and Recording. Upon demand by the Security Agent, the Grantor
shall do the following: furnish further assurance of ownership of the
Collateral, execute any written agreement or do any other acts reasonably
necessary to effectuate the purposes and provisions of this Security Agreement,
execute any instrument or statement required by law or otherwise in order to
perfect, continue or terminate the security interest of the Secured Parties in
the Collateral and pay all costs of filing in connection therewith. Grantor
hereby authorizes the Security Agent to file or refile any financing statements
or continuation statements with respect to the security interest granted
pursuant to this Security Agreement which at any time may be required or
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appropriate, although the same may have been executed only by the Security
Agent, and to execute such financing statement on behalf of Grantor.
5. Liens and Encumbrances. Except as otherwise herein provided, Grantor
shall keep the Collateral free and clear of all Liens.
6. Taxes and Fees. Grantor shall pay when due (including all extensions)
all taxes, assessments and license fees relating to the Collateral, unless
Grantor is contesting the payment of such taxes in good faith by appropriate
proceedings.
7. Default. The occurrence of an Event of Default under any of the Notes
shall constitute a Default hereunder.
8. Rights and Remedies. Upon the occurrence and during the continuance of
an Event of Default and at the option of the Secured Parties, the Security Agent
may declare, the Obligations secured by this Security Agreement immediately due
and payable in full upon notice to Grantor or American, as the case may be, and
thereafter, the Secured Parties shall have all the rights, remedies and
privileges provided by the Uniform Commercial Code in effect in the State of New
York/or other law on the date hereof. After the Security Agent gives a notice of
default under this Section and upon demand by the Security Agent, Grantor shall
assemble the Collateral and make it available to the Security Agent at the place
and at the time designated in the demand. After notice of default, the Secured
Parties' reasonable attorneys' fees and the legal and other expenses for
pursuing, searching for, receiving, taking, keeping, storing, advertising, and
selling the Collateral, and for any other efforts to collect the Obligations
secured hereby shall be chargeable to the Grantor. The Grantor and American
shall remain liable for any deficiency resulting from a sale of the Collateral
and shall pay any such deficiency forthwith on demand. If the Grantor shall
default in the performance of any of the provisions of this Security Agreement
on the Grantor's part to be performed, the Security Agent may perform same for
the Grantor's account, and any monies expended in so doing shall be chargeable
with interest to the Grantor and shall constitute part of the Obligations
secured hereby.
9. Grantor's Representations and Warranties. Grantor hereby represents and
warrants to Secured Parties that:
(a) Grantor has the corporate power to execute, deliver and
perform the provisions of this Security Agreement or the
documents delivered pursuant thereto, and has taken or caused
to be taken all necessary or appropriate actions to authorize
execution, delivery and performance of this Security
Agreement.
(b) Grantor's state of incorporation is Delaware and its name is
exactly as it appears at the beginning of this Security
Agreement.
(c) Grantor is the owner of the Collateral, free and clear of all
Liens of every kind and nature and no financing statement
covering the Collateral or its proceeds is on file in any
public office, except for the Lien of Atlantic
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Bank of New York under the Atlantic Bank Security Agreement
and Permitted Liens thereunder and Permitted Liens under
the Agreement and financing statements filed with respect
to any of the foregoing Liens.
10. Grantor's Covenants. Until the Obligations are paid in full, Grantor
agrees that it will:
(a) Preserve its corporate existence and not, in one transaction
or a series of related transactions, merge into or consolidate
with any other entity unless Grantor is the surviving entity
in such merger, or sell all or substantially all of its
assets.
(b) Not change the state of its incorporation.
(c) Not change its name without providing the Secured Parties with
thirty (30) days prior written notice, the location of their
principal place of businesses and chief executive offices, the
location of the Collateral or the records pertaining thereto
without giving prior written notice to the Security Agent. In
addition, the Grantor shall not remove any of the Collateral
from the state where it is presently located, without the
prior written approval of the Secured Parties, except to the
extent that such removal is in the Ordinary Course of
Business.
(d) The Grantor shall: (i) use all of the Collateral only for
business purposes; and (ii) not waste or destroy the
Collateral or any part thereof except in the Ordinary Course
of Business.
(e) The Grantor will promptly notify the Security Agent of any
event causing material loss, theft, damage, destruction or
depreciation to or of the Collateral which is not otherwise
fully insured, and the amount thereof, as well as any other
matters materially and adversely affecting the value of any of
the Collateral, upon learning of any such event.
11. Power of Attorney. The Grantor hereby irrevocably makes, constitutes
and appoints the Security Agent as the Grantor's true and lawful
attorney-in-fact, with full power and authority from time to time in such
Grantor's name, place and stead, or otherwise, exercisable upon the occurrence
and during the continuance of an Event of Default, to: (a) take possession of
and execute or endorse (to the Secured Parties or otherwise) any one or more
contracts, agreements, assignments and other documents, and any one or more
notes, checks, or other instruments received, in payment for or on account of
any of the Collateral; (b) demand, collect and receive any monies due on account
of any of the Collateral, or exercise any withdrawal or other rights, powers,
privileges, remedies or interests of the Grantor under Legal Requirements, and
give receipts and acquittances in connection therewith; (c) negotiate and
compromise any claim, and commence, prosecute, defend, settle or withdraw any
claims, suits or proceedings, pertaining to or arising out of any of the
Collateral; and (d) otherwise to take any and all action and to execute any and
all agreements, contracts, documents and instruments as the Security Agent, in
his discretion, shall deem necessary, appropriate or advisable to carry out the
purpose
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and intent of this Security Agreement, all without regard to whether the
Security Agent or the Secured Parties have taken any other action under this
Security Agreement, the Notes, the Guaranty, the Pledge or otherwise. This
Power of Attorney is hereby declared to be irrevocable, with full power of
substitution and coupled with an interest. This Power of Attorney shall
survive the dissolution, reorganization or bankruptcy of the Grantor or
American and shall extend to and be binding upon each such Grantor's
successors, assigns, heirs and legal representatives. The Secured Parties
shall not be liable for any failure to collect or enforce the payment of any
of those assets and properties.
12. Appointment of Security Agent. The Secured Parties hereby authorize
Miller and do hereby make, constitute and appoint Miller as Security Agent, with
full power of substitution, as the Secured Parties' true and lawful attorney-in
fact, with power in his own name or in the name of the Secured Parties
individually or collectively to (a) take possession of and execute or endorse
(to the Secured Parties or otherwise) any one or more contracts, agreements,
assignments and other documents, and any one or more notes, checks, or other
instruments received, in payment for or on account of any of the Collateral; (b)
demand, collect and receive any monies due on account of any of the Collateral,
or exercise any withdrawal or other rights, powers, privileges, remedies or
interests of the Grantor under Legal Requirements, and give receipts and
acquittances in connection therewith; (c) negotiate and compromise any claim,
and commence, prosecute, defend, settle or withdraw any claims, suits or
proceedings, pertaining to or arising out of any of the Collateral; and (d)
otherwise to take any and all action and to execute any and all agreements,
contracts, documents and instruments as the Secured Parties, in their
discretion, shall deem necessary, appropriate or advisable to carry out the
purpose and intent of this Security Agreement, all without regard to whether the
Secured Parties have taken any other action under the Notes, this Security
Agreement, the Pledge, the Guaranty or otherwise.
13. Termination. The term of this Security Agreement shall commence on the
date hereof and shall continue in full force and effect, and be binding upon the
Grantor, until all of the Obligations have been fully paid and performed and
such payment and performance has been acknowledged in writing by the Secured
Parties, whereupon this Security Agreement shall terminate.
14. Notices. All notices, requests, demands or other communications
provided for herein shall be in writing and shall be directed as set forth in
the Agreement except for notices to Jefferies. Any notices or other
communications required or permitted under, or otherwise in connection with this
Security Agreement to Jefferies shall be in writing and shall be deemed to have
been duly given when delivered in person or upon confirmation of receipt when
transmitted by facsimile transmission (but only if followed by transmittal by
national overnight courier or hand for delivery on the next Business Day) or on
receipt after dispatch by registered or certified mail, postage prepaid,
addressed, or on the next Business Day if transmitted by national overnight
courier as follows:
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Jefferies & Company, Inc.
520 Madison Avenue
8th Floor
New York, New York 10022
Attn: General Counsel
Fax: 212-284-2280
15. Modification and Waiver. No modification or waiver of any provision of
this Security Agreement, and no consent by the Security Agent or any Secured
Party to any breach thereof by the Grantor shall be effective unless such
modification or waiver shall be in writing and signed by the Secured Parties or
the Security Agent on behalf of the Secured Parties, and the same shall then be
effective only for the period and on the conditions and for the specific
instances and purposes specified in such writing. No course of dealing between
the Grantor and the Secured Parties in exercising any rights or remedies
hereunder shall operate as a waiver or preclude the exercise of any other rights
or remedies hereunder.
16. Binding Effect. This Security Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
17. Assignment. The Grantor may not assign its rights or obligations under
this Security Agreement and any such transfer or assignment or attempt thereat
will be null and void. The Secured Parties may assign their rights or
obligations under this Security Agreement. If such assignment is made by the
Secured Parties, the Grantor shall render performance under this Security
Agreement to the assignee.
18. Captions. The captions are inserted only as a matter of convenience
and for reference and in no way to define, limit or describe the scope of this
Security Agreement, nor the intent of any provision thereof.
19. Jurisdiction. The Secured Parties, the Security Agent and the Grantor
hereby irrevocably consent to the exclusive jurisdiction of the courts of the
State of New York and of the United States District Court located in New York
County in any action against it in connection with this Security Agreement and
the Grantor and Secured Parties hereby waive any right to a trial by jury in an
action or proceeding arising out of our relating to this Security Agreement.
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20. Miscellaneous. This Security Agreement shall be construed in
accordance with and shall be governed by the laws of the State of New York. The
gender and numbers used in this Security Agreement are used as a reference term
only and shall apply with the same effect whether the parties are of the
masculine ore feminine gender, corporate or other form, and the singular shall
likewise include the plural. In the event that any word, sentence, paragraph or
article of this Security Agreement is found to be void or voidable, the balance
of this Security Agreement shall nevertheless be legal and binding with the same
force and effect as though the void or voidable parts were deleted.
21. Subordination. THIS AGREEMENT IS SUBJECT TO THE AGREEMENT OF
SUBORDINATION DATED AS OF FEBRUARY 3, 2004 AMONG ATLANTIC BANK OF NEW YORK (THE
"BANK"), EACH OF THE SECURED PARTIES AND WELLSPRING MEDIA, INC., WHICH AMONG
OTHER THINGS SUBORDINATES THE GRANTOR'S OBLIGATIONS HEREUNDER TO THE PRIOR
PAYMENT OF CERTAIN OBLIGATIONS OWING TO THE BANK.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties hereto have duly executed this Security
Agreement as of the date first above written.
WELLSPRING MEDIA, INC.
By:
-----------------------------------
Stephen K. Bannon, President
SECURED PARTIES:
---------------------------------------
Al Cattabiani
---------------------------------------
Lee Miller
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Clara Spalter Miller
---------------------------------------
Carl Selden Koerner
Jeffries & Company, Inc.
By:
---------------------------------------
SECURITY AGENT:
---------------------------------------
Lee Miller
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ACKNOWLEDGMENT IN NEW YORK STATE
STATE OF NEW YORK, COUNTY OF __________________ SS.:
On February ___, 2004, before me, the undersigned, personally appeared
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personally known to me or proved to me on the basis of satisfactory evidence
to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
---------------------------------------
(signature and office of individual
taking acknowledgment)
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EXHIBIT A
The Grantor has pledged to the Secured Parties and granted to the Secured
Parties a present and continuing lien and security interest in and to the
following personal properties and fixtures of the Grantor wherever located and
whether now owned or hereinafter acquired or created by the Grantor (with
certain terms, words and phrases being defined in subsequent paragraphs below):
(a) All of Grantor's personal property and fixtures, whether now or
hereafter existing or now owned or hereafter acquired and wherever located, of
every kind and description, tangible and intangible, all goods, investment
properties, equipment, machinery, deposit accounts, furniture, inventory,
accounts, contract rights, chattel paper, accounts receivable, notes receivable,
programming rights library, instruments and documents, including, without
limitation, documents of title, warehouse receipts and all other shipping
documents and instruments of any kind whatsoever whether relating to goods in
transit or otherwise, all general intangibles, credits, claims, demands and any
other obligations of any kind, whether now or hereafter arising, of Grantor, and
the balance of every account now or hereafter existing of Grantor and any and
all additions and accessions thereto, all substitutions and replacements
therefor and all products and proceeds thereof and proceeds of insurance
thereon; and
(b) All choses in action, any rights arising under any judgment, statute
or rule, all corporate and business records, customer lists, credit files,
computer program printouts, and other computer materials and records, all
inventories, trademarks, trade styles, designs, patents, copyrights, licenses,
licenses agreements, and any applications for patents and/or trademarks,
including, without limitation, in connection with such trademarks, trade styles,
designs, patents and copyrights, licenses, license agreements, and any
applications for patents and/or trademarks, any and all reissues, divisions,
continuations, reexaminations, renewals and extensions thereof (whether in whole
or in part), any and all rights corresponding thereto throughout the world, and
the goodwill of the business to which each relates, and any and all accounts,
contract rights, warranties, litigation claims and rights and other general
intangibles related to any of the foregoing, in each case whether now existing
or hereafter acquired or created, whether owned, leased, licensed, beneficially
or of record, and whether owned, leased or licensed individually, jointly or
otherwise, and all payments and other distributions with respect thereto and any
renewals, continuations, modifications and extensions of any and all of the
foregoing; and
(c) Any and all additions and accessions to the foregoing, all
substitutions and replacements therefor and all products and proceeds thereof
and proceeds of insurance thereon, whether now owned or hereafter, acquired or
created by the Grantor.
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