SUBSIDIARY SECURITY AGREEMENT
THIS SUBSIDIARY SECURITY AGREEMENT is made and entered into as of
September 30, 1996, by and between the Persons listed on the signature pages
hereto under the caption "Debtor" (individually a "Debtor" and collectively, the
"Debtors"), and KEYBANK NATIONAL ASSOCIATION (the "Secured Party"), as agent for
itself and the other financial institutions listed on the signature pages of the
Loan Agreement (as defined below), and their successors and assigns. The
Secured Party and such other financial institutions may be referred to
hereinafter individually as a "Bank" or collectively as the "Banks."
RECITALS
X. Xxxx Communications Systems, Inc., a Georgia corporation (the
"Borrower"), directly or indirectly owns all of the issued and outstanding stock
of the Debtors.
B. The Borrower, the Secured Party, NationsBank, N.A. (South), as
Co-Agent, and the other Banks have entered into a Loan Agreement dated as of
September 23, 1996 (as the same may be extended, amended, restated or modified
from time to time, the "Loan Agreement"), which is hereby incorporated herein by
this reference, pursuant to which the Banks have agreed to make available to the
Borrower up to $53,500,000 on a reducing revolving credit basis and up to
$71,500,000 on a revolving credit converting to a term loan basis. All
capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to them in the Loan Agreement. The Borrower may also be
indebted to a Bank or an Affiliate of a Bank from time to time in respect of
Rate Hedging Obligations.
C. In order to induce the Secured Party and the Banks to enter into
the Loan Agreement and to ensure that the Loans made pursuant to the Loan
Agreement will be secured as provided herein, the Debtors (i) have entered into
a Subsidiary Guaranty, of even date herewith (as the same may be extended,
amended, restated or modified from time to time, the "Guaranty"), pursuant to
which the Debtors have guaranteed payment of the Obligations of the Borrower
under the Loan Agreement, the Notes and the Collateral Documents and (ii) have
agreed to enter into this Agreement pursuant to which the Debtors grant to the
Secured Party a first priority security interest in the personal property of the
Debtors as security for the Guaranteed Obligations of the
Debtors under the Guaranty and the Obligations of the Borrower under the Loan
Agreement.
D. It is a condition precedent to the extensions of credit to the
Borrower under the Loan Agreement that the Debtors, among other things, shall
have executed and delivered this Agreement.
E. The Borrower and the Debtors share an identity of interests as
members of a consolidated group of companies engaged in substantially similar
businesses. The Borrower provides certain centralized financial, accounting and
management services to the Debtors, and the making of the Loans will facilitate
the expansion and enhance the overall financial strength and stability of the
Borrower's corporate group, including the Debtors. Accordingly, the Debtors
will derive substantial benefits as a result of the extensions of credit to the
Borrower under the Loan Agreement, which benefits are hereby acknowledged by the
Debtors, and the Debtors, therefore, desire to enter into this Agreement in
order to satisfy the condition precedent described in the preceding paragraph.
F. The Banks have appointed the Secured Party as their agent for the
purpose, among other things, of protecting and preserving the security for the
repayment of the Borrower's obligations under the Loan Agreement.
AGREEMENTS
In consideration of the foregoing Recitals, and of the agreements made
herein, and of the Loans made or to be made by the Banks to the Borrower, which
will be of material economic benefit to the Debtors, the Debtors and the Secured
Party, on behalf of the Banks, agree as follows:
1. GRANT OF SECURITY INTEREST.
1.1 COLLATERAL. Each Debtor hereby grants to the Secured Party, for
the benefit of the Banks, ratably in proportion to the total Secured Obligations
(as that term is defined below) owing at any time to the Banks, a first priority
security interest in all of such Debtor's personal property, both tangible and
intangible, whether presently owned or existing or hereafter acquired or arising
and wheresoever located, and all books, records, computer printouts, tapes,
disks, ledger sheets,
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files and other data relating thereto, including without limitation:
(a) all inventory of such Debtor, including all goods, raw
materials, work in process, merchandise, goods in transit to such Debtor for
which payment has been made, and other tangible personal property held for sale
or lease or furnished or to be furnished under contracts of service or used or
consumed in such Debtor's business (all hereinafter called the "Inventory");
(b) all accounts receivable, contracts, contract rights
(including, without limitation, any arising out of leases or licenses of real or
personal property), rights to payment, programming agreements, tax refunds,
claims, chattel paper, letters of credit, documents, drafts and accounts,
including, without limitation, all of the same evidencing or representing
indebtedness due or to become due to such Debtor for its own account or on
account of goods sold or leased or to be sold or leased by such Debtor, or
services rendered or to be rendered by such Debtor (all hereinafter called the
"Accounts");
(c) all right, title and interest of such Debtor in and to:
(i) all copyrights, copyright registrations and
applications for copyright registrations, including, without
limitation, all renewals and extensions thereof, the right to recover
for all past, present and future infringements thereof, and all other
rights of any kind whatsoever accruing thereunder or pertaining
thereto (collectively, the "Copyrights");
(ii) all patents and patent applications, including,
without limitation, the inventions and improvements described and
claimed therein together with the reissues, divisions, continuations,
renewals, extensions and continuations-in-part thereof, all income,
royalties, damages and payments now or thereafter due and/or payable
under and with respect thereto, including, without limitation, damages
and payments for past or future infringements thereof, the right to
xxx for past, present and future infringements thereof, and all rights
corresponding thereto throughout the world (collectively, the
"Patents");
(iii) all trade names, trademarks and service marks, logos,
trademark and service xxxx registrations, and applications for
trademark and service xxxx registrations, including, without
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limitation, all renewals of trademark and service xxxx registrations,
all rights corresponding thereto throughout the world, the right to
recover for all past, present and future infringements thereof, all
other rights of any kind whatsoever accruing thereunder or pertaining
thereto, together in each case, with the product lines and goodwill of
the business connected with the use of, and symbolized by, each such
trade name, trademark and service xxxx (collectively, the
"Trademarks");
(iv) (A) all inventions, processes, production methods,
proprietary information, know-how and trade secrets used or useful in
the business of such Debtor; (B) all licenses or user or other
agreements granted to such Debtor with respect to the Copyrights,
Patents, Trademarks or any of the foregoing; (C) all information,
customer lists, identification of suppliers, data, plans, blueprints
specifications, designs, drawings, recorded knowledge, surveys,
engineering reports, test reports, manuals, materials standards,
processing standards, performance standards, catalogs, computer and
automatic machinery software and programs, and the like pertaining to
the operation by such Debtor of its business; (D) all field repair
data, sales data and other information relating to sales or service of
products now or hereafter manufactured and which pertain to such
Debtor's business; (E) all accounting information which pertains to
such Debtor's business and all media in which or on which any of the
information or knowledge or data or records which pertain to such
business may be recorded or stored and all computer programs used for
the compilation or printout of such information, knowledge, records or
data; (F) all licenses, consents, permits, variances, certifications
and approvals of governmental agencies now or hereafter held by such
Debtor pertaining to the operation of its business; and (G) all causes
of action, claims and warranties now or hereafter owned or acquired by
such Debtor in respect of any of the items listed above; and
(v) all money, deposit accounts, insurance proceeds,
securities, partnership interests, notes, instruments, licenses,
franchises, permits, authorizations, agreements, leases, and general
intangibles of such Debtor, including, without limitation, goodwill,
going concern value, all of such
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Debtor's rights under or relating to any Licenses and the proceeds of
any Licenses, and all rights incident or appurtenant to such Licenses
and the right to receive all proceeds derived from or in connection
with the sale, assignment or transfer thereof; PROVIDED, HOWEVER, that
such security interest shall include the Licenses granted by the FCC
only at such times and to the extent (but only to the extent) that
such Debtor is permitted to grant a security interest therein under
applicable provisions of the Communications Act of 1934, as amended,
and the rules and regulations of the FCC promulgated thereunder, but
shall include at all times, to the maximum extent permitted by law,
all rights incident or appurtenant to such Licenses and the right to
receive all proceeds derived from or in connection with the sale,
assignment or transfer of such Licenses or any Station (all of the
foregoing items of collateral referenced in this Subsection 1.1(c),
including, without limitation, the Copyrights, the Patents and the
Trademarks, being hereinafter called the "Intangibles");
(d) all of such Debtor's furniture, fixtures, trade fixtures,
machinery, equipment, antennas, towers, transmitting and receiving equipment,
computers, pagers, satellite earth stations, microwave equipment, appliances,
motor vehicles, furnishings, leasehold improvements, operating and testing
equipment, amplifiers and other electronic equipment, parts, supplies and tools
(all hereinafter called the "Equipment");
(e) all of such Debtor's rights as a seller of goods under
Article 2 of the Uniform Commercial Code or otherwise with respect to Inventory
and Equipment, and, as to goods represented by or securing any of the Accounts,
all of such Debtor's rights therein, including, without limitation, rights as an
unpaid vendor or lienor and including rights of stoppage in transit, replevin
and reclamation;
(f) all guarantees, mortgages or security interests in real or
personal property, leases or other agreements or property now or hereafter
securing or relating to any of the items referred to above in favor of such
Debtor, or now or hereafter acquired for the purpose of securing and enforcing
any of such items in favor of such Debtor, and the proceeds thereof;
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(g) all rents, revenues, proceeds, issues, profits, royalties,
income and other benefits derived from real estate, and from any improvements or
fixtures thereon owned by such Debtor;
(h) all right, title and interest of such Debtor in and to all
proceeds of insurance and any and all awards made for the taking by eminent
domain, or by any proceeding or purchase in lieu thereof, of any real estate, or
any improvements or fixtures thereon, including, without limitation, any awards
resulting from any damage to any real estate, improvements or fixtures for which
compensation shall be given by any governmental authority;
(i) all the proceeds, products, income and profits of any of the
foregoing and the proceeds of any such proceeds, products, income and profits;
and
(j) all right, title and interest of such Debtor in or to all
instruments and documents covering or relating to the above described Collateral
(as defined below) or to the property described in or represented by the
Accounts (all such instruments and documents being called the "Related
Documents");
PROVIDED, HOWEVER, that, with respect to any agreement, lease or contract right
which prohibits the grant of a security interest in such Debtor's interest
therein or the assignment thereof, such grant of a security interest or
assignment shall be limited to the account or general intangible for money due
or to become due relating to or arising out of such agreement, lease or contract
right.
All of the foregoing property in which the Secured Party has been granted a
security interest is hereinafter collectively referred to as the "Collateral".
1.2 OBLIGATIONS SECURED. The security interests of the Secured Party
under this Agreement secure (a) the payment and performance of all indebtedness,
Obligations and liabilities of the Borrower arising at any time and from time to
time, now or in the future, pursuant to the Loan Agreement or any Collateral
Document, including, without limitation, such obligations as are evidenced by
the Notes; (b) the payment and performance of all obligations and liabilities of
the Borrower arising at any time and from time to time, now or in the future,
pursuant to any agreement with a Bank or an Affiliate of a Bank with respect to
Rate Hedging Obligations; (c) performance by the Debtors of the obligations and
liabilities under the Guaranty and the agreements
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set forth herein, in the Loan Agreement and in the Collateral Documents; (d) all
payments made or expenses incurred by the Secured Party under this Agreement,
the Loan Agreement or the Collateral Documents, including, without limitation,
reasonable attorneys fees and legal expenses, in the exercise, preservation or
enforcement of any of the rights, powers or remedies of the Secured Party, or in
the enforcement of the obligations of the Debtors, hereunder; and (e) any
renewals, continuations or extensions of any of the foregoing (all of which are
referred to herein as the "Secured Obligations").
2. THE DEBTORS' REPRESENTATIONS AND WARRANTIES. Each Debtor
represents and warrants to the Secured Party as follows, and these
representations and warranties shall survive the execution hereof and the making
of the Loans and shall be continuing until the termination of this Agreement:
2.1 AUTHORITY. The execution, delivery and performance of this
Agreement and any instruments or documents executed and delivered by such Debtor
pursuant hereto are within such Debtor's corporate powers, have been duly
authorized by all proper and necessary corporate and stockholder action, are not
in contravention of law or the terms of the Certificate or Articles of
Incorporation, By-Laws or other organizational documents of such Debtor or any
provision of any material indenture, contract or agreement to which such Debtor
is a party or by which it or any of its property is bound; and this Agreement
constitutes a legal, valid and binding obligation of such Debtor enforceable in
accordance with its terms except to the extent that the enforceability hereof
may be limited by bankruptcy, insolvency or like laws affecting creditors'
rights generally and the application of equitable principles.
2.2 TITLE. Except for Permitted Liens, such Debtor is and will be
the sole owner of all of its Collateral, whenever acquired or arising, free and
clear of all Liens or adverse claims.
2.3 ACCOUNTS. Each account (as that term is defined in the Uniform
Commercial Code) included in such Debtor's Accounts as shown on such Debtor's
books and records, whether currently existing or hereafter arising, is or will
be genuine and in all respects is or will be what it purports to be. The whole
of the balance indicated as being unpaid and owing with respect to each such
account on the books of such Debtor, is, and shall be, unpaid and owing, net of
any reserves on the books of such Debtor.
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2.4 NO OTHER NAMES. Except as set forth under such Debtor's name on
SCHEDULE B hereto, such Debtor has conducted no business under any name other
than the name in which it executed this Agreement.
2.5 INTELLECTUAL PROPERTY. SCHEDULE A attached hereto sets forth a
complete and accurate list of all registered Copyrights, Patents and Trademarks
owned by such Debtor on the date hereof. Such Debtor owns and possesses the
right to use, and has done nothing to authorize or enable any other Person to
use, any Copyright, Patent or Trademark listed on SCHEDULE A. All registrations
for such Copyrights, Patents and Trademarks are valid and in full force and
effect, and such Debtor owns or possesses the right to use all material
Copyrights, Patents and Trademarks necessary for the operation of its business.
To the best of such Debtor's knowledge, except as set forth on SCHEDULE A, (a)
there is no violation by others of any right of such Debtor with respect to any
material Copyright, Patent or Trademark and (b), to the best of such Debtor's
knowledge, such Debtor is not infringing in any respect upon any copyright,
patent or trademark of any other Person; and no proceedings have been instituted
or are pending against such Debtor or, to such Debtor's knowledge, are
threatened against such Debtor and no claim against such Debtor has been
received by such Debtor, alleging any such violation.
2.6 SOLVENCY. Such Debtor is not insolvent as defined in Title 11 of
the United States Code or any other applicable federal or state bankruptcy or
insolvency statute, nor, after giving effect to the consummation of the
transactions contemplated in the Loan Agreement, will such Debtor be rendered
insolvent by the execution and delivery of this Agreement. Such Debtor has not
engaged, and is not about to engage, in any business or transaction for which
the assets retained by it shall be an unreasonably small capital, taking into
consideration the obligations to the Secured Party incurred under the Guaranty
and hereunder. Such Debtor does not intend to, and does not believe that it
will, incur debts beyond its ability to pay them as they mature.
3. COVENANTS. Each Debtor agrees and covenants with the Secured
Party as follows:
3.1 MAINTENANCE AND USE OF COLLATERAL. Such Debtor (a) shall keep
all its Inventory and Equipment in good condition and repair, reasonable wear
and tear excepted, and shall not commit any material waste thereof or permit
anything to be done which may materially impair the value thereof; (b) shall
observe
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and perform all material terms, conditions and covenants contained in any
material agreements, leases, licenses, permits, Operating Agreements and
franchises evidencing the Intangibles, including, without limitation, the
Licenses; (c) shall use the Collateral only in the ordinary course of its
business and not in material violation of any applicable License, permit,
authorization, law, ordinance, regulation, rule, order, franchise or policy of
insurance; and (d) shall take all commercially reasonable actions as may be
necessary to keep all material Patents, Copyrights and Trademarks from becoming
invalidated or subject to any claim of abandonment for non-use.
3.2 TAXES. Except as expressly provided in the Loan Agreement, such
Debtor shall pay and discharge promptly all taxes, assessments, license or
permit fees and governmental charges or levies imposed upon it or in respect of
its Collateral before the imposition of any penalty, as well as all lawful
claims for labor, materials, supplies or other matters which, if unpaid, might
become a Lien or charge upon its Collateral or any part thereof, and, upon
request, deliver to the Secured Party evidence of the discharge of such taxes,
assessments, charges or claims.
3.3 SALE OR TRANSFER. Except as expressly provided in the Loan
Agreement or herein, such Debtor shall not voluntarily or involuntarily sell,
assign, lease, transfer, pledge, hypothecate or otherwise dispose of or encumber
any of its Collateral or any interest therein, or permit any of such Collateral
to become a fixture on or an accession to other goods or property. For purposes
of this Section 3.3, the term "Collateral" shall be deemed to include the
Licenses whether or not the Secured Party is permitted under existing law to
hold a security interest therein.
3.4 INSURANCE. Such Debtor will obtain and maintain a policy or
policies of insurance insuring its Collateral in accordance with Section 7.3 of
the Loan Agreement, the terms and provisions of which are hereby incorporated
herein by this reference. In the event of any damage or destruction to such
Debtor's Collateral or any part thereof, any and all proceeds of such insurance
shall be delivered to the Secured Party. Such proceeds of insurance shall, (a)
if no Event of Default or Possible Default then exists, be paid to such Debtor
to be used solely for repair or replacement of the property so damaged, or (b)
if an Event of Default or Possible Default then exists, be applied, in the
Secured Party's discretion, against the Secured Obligations then outstanding,
whether or not then due and payable. Such Debtor hereby appoints the Secured
Party as its
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agent and attorney-in-fact (which appointment is coupled with an interest) with
full power and authority to make proof of loss, to give a receipt for any sums
collected under said policies and, in the event any insurance losses are paid by
check, draft or other instrument payable to such Debtor and the Secured Party,
to endorse such Debtor's name thereon and take such further steps on behalf of
such Debtor as may be necessary to realize on such insurance.
3.5 MAINTENANCE OF SECURITY INTEREST. Such Debtor shall do all
things necessary or reasonably requested by the Secured Party to preserve and
maintain the security interests of the Secured Party hereunder as a first lien
in such Debtor's Collateral, except for Permitted Liens, and shall not permit
the creation of any other Lien (other than Permitted Liens) in its Collateral.
Such Debtor shall protect and defend its Collateral from and against any and all
claims, demands or legal proceedings brought or asserted by any party other than
the Secured Party in such capacity. Such Debtor shall, if requested by the
Secured Party, execute and deliver and shall file or record, or cause to be
filed or recorded, such notices, financing statements, continuation statements,
certificates of title and other documents as the Secured Party may reasonably
deem appropriate, and shall deliver to the Secured Party upon request therefor
such insurance policies, securities, agreements, leases, franchises, licenses,
permits, writings, documents, certificates, instruments or other Intangibles, as
may be necessary to perfect the security interests of the Secured Party
hereunder. Such Debtor shall bear the expenses of all such filings and actions.
All documents which are being filed or recorded shall be in form and substance
satisfactory to the Secured Party. Such Debtor shall do such further acts and
things and execute and deliver to the Secured Party such additional conveyances,
assignments, agreements and instruments as the Secured Party may reasonably
require or deem advisable to carry into effect the purposes of this Agreement or
to better perfect, assure and confirm unto the Secured Party its rights, powers
and remedies hereunder. Upon request by the Secured Party, such Debtor shall
xxxx conspicuously all chattel paper and instruments with a legend, in form and
substance satisfactory to the Secured Party, indicating that such Collateral is
subject to the security interest granted hereby.
3.6 RECORDS, STATEMENTS AND RELATED DOCUMENTS. Such Debtor agrees
that (a) when reasonably requested to do so by the Secured Party, it will
prepare and deliver to the Secured Party a schedule in form reasonably
satisfactory to the Secured Party, certified by an authorized officer of such
Debtor, listing the location by county and state of all such Debtor's
Collateral; (b)
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it will keep accurate and complete records at all times with respect to its
Collateral and will deliver to the Secured Party copies of such records and such
other information regarding its Collateral or account debtors which the Secured
Party may reasonably request; and (c) at any reasonable time the Secured Party
or its authorized representatives may enter the premises of such Debtor to
examine such Debtor's Collateral and inspect and copy the books and records of
such Debtor. Such Debtor shall furnish to the Secured Party from time to time
statements and schedules further identifying and describing the Copyrights, the
Patents and the Trademarks, respectively, and such other reports in connection
with the Copyrights, the Patents and the Trademarks as the Secured Party may
reasonably request, all in reasonable detail.
3.7 LOCATION. The principal and chief executive office of such
Debtor is located at the address set forth under the name of such Debtor on
SCHEDULE B attached hereto, and all of such Debtor's Collateral is located in
the jurisdictions listed on SCHEDULE B attached hereto under the name of such
Debtor. Such Debtor shall not move its principal and chief executive office or
any of its Collateral, or any records relating thereto, from a county or other
filing location listed on SCHEDULE B, without thirty days prior written notice
to the Secured Party. If such Debtor acquires any Collateral in any
jurisdiction not listed on SCHEDULE B under the name of such Debtor, it shall
immediately notify the Secured Party.
3.8 NOTICE. Such Debtor shall promptly notify the Secured Party of
any loss, destruction or damage to any material portion of its Collateral.
3.9 COLLECTION OF ACCOUNTS. Such Debtor agrees that it will use
commercially reasonable efforts to collect all of its Accounts as the same
become due.
3.10 CHANGE OF NAME, IDENTITY OR CORPORATE STRUCTURE. Such Debtor
shall not change its name, identity or corporate structure, voluntarily or
involuntarily, except as expressly permitted in the Loan Agreement.
4. RIGHT TO PERFORM FOR THE DEBTORS. If an Event of Default shall
occur, subject to compliance with all applicable law, including, without
limitation, the rules and regulations of the FCC and the applicable provisions
of the Licenses, the Secured Party may, but shall not be obligated to, on behalf
of each Debtor and in its name and stead, in addition to any other rights or
remedies provided to the Secured Party by law or by
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this Agreement, perform any act, make any payment, discharge any obligation,
collect any Account or money owed to such Debtor or otherwise act for such
Debtor in such manner as the Secured Party in its sole discretion may deem
necessary or advisable to protect, secure or enforce its interests, rights or
remedies hereunder. Such Debtor shall pay to the Secured Party on demand the
amounts of all such payments made or expenses incurred by the Secured Party,
including reasonable attorneys' fees and legal expenses, in exercising any of
the rights granted in this Section 4. The obligation to repay such amounts
shall be one of the Secured Obligations secured hereby and shall bear interest
at the Default Interest Rate.
5. DEFAULT. The occurrence of any Event of Default under the Loan
Agreement shall constitute an Event of Default under this Agreement.
6. REMEDIES. The Secured Party shall have all of the rights and
remedies of a secured party under the Uniform Commercial Code in effect in any
applicable jurisdiction, as well as all rights and remedies provided by any
other applicable law, at law or in equity, or herein, in the Loan Agreement or
in any other instrument executed by any Debtor in favor of the Secured Party or
the Banks. Without limiting the generality of the foregoing, the Secured Party
shall also have the right to do any or all of the following (as set forth in
Sections 6.1 through 6.7 below) upon the occurrence and during the continuance
of an Event of Default and subject to compliance with all applicable rules and
regulations of the FCC and any other applicable federal or state regulatory
authority, and other applicable requirements of law:
6.1 POSSESSION. Without notice, demand or hearing, any right to
which is hereby waived by each Debtor, the Secured Party may take possession of
all or any part of the Collateral and enter and remain upon the premises where
such Collateral is located for the purpose of such possession and the exercise
of the remedies provided herein, without the same being a trespass.
6.2 ASSEMBLING COLLATERAL. The Secured Party may require each Debtor
to assemble the Collateral and to make it available to the Secured Party at any
mutually convenient place designated by the Secured Party.
6.3 OPERATION. The Secured Party may take such measures, including
the use or operation of the Collateral in each Debtor's business, or the repair,
dismantling, removal or transportation of all or any part of the Collateral, as
the
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Secured Party may deem necessary or proper for the care, protection, maintenance
and preservation of the Collateral, for the preparation of the Collateral for
sale, lease, or other disposition, or for the most advantageous beneficial
exercise of its remedies hereunder. Without limiting the generality of the
foregoing, the Secured Party shall have the right to apply for and have a
trustee or receiver appointed by a court of competent jurisdiction in any action
taken by the Secured Party to enforce its rights and remedies hereunder in order
to manage, protect and preserve the Collateral and continue the operation of the
business of each Debtor and to collect all revenues and profits thereof and
apply the same to the payment of all expenses and other charges of such
receivership, including the compensation of the receiver, and to the payment of
the Secured Obligations until a sale or other disposition of such Collateral
shall be finally made and consummated. Furthermore, each Debtor shall take any
action which the Secured Party may reasonably request in order to obtain and
enjoy the full rights and benefits granted to the Secured Party by this
Agreement, including specifically, at such Debtor's own cost and expense, the
use of its best efforts to assist in obtaining the approval of the FCC and any
other applicable federal or state regulatory authority and any other third party
for any action or transaction contemplated by this Agreement which is then
required by law or the terms of any contract, agreement or License, permit or
authorization.
6.4 COLLECTION OF ACCOUNTS; SPECIAL ACCOUNT.
(a) Without notice to the Debtors, the Secured Party may notify
the account debtor obligated under any Account of the Secured Party's security
interest therein and may direct such account debtor to make payment of all
amounts due or to become due to the applicable Debtor thereunder directly to the
Secured Party or any agent selected by it and, upon such notification, may
enforce, or cause such agent to enforce, collection of any such Account in the
same manner and to the same extent as such Debtor might have done. Effective
upon the occurrence and during the continuance of an Event of Default, each
Debtor hereby constitutes and appoints the Secured Party its true and lawful
attorney (which appointment is coupled with an interest), with full power of
substitution, either in the Secured Party's own name or in the name of such
Debtor, to ask for, demand, xxx for, collect, receive, receipt and give
acquittance for any and all moneys due or to become due under or by virtue of
any Account; to endorse checks, drafts, orders and order instruments for the
payment of money payable to such Debtor on account thereof; to settle,
compromise, prosecute or defend any action, claim or proceeding with respect
thereto; and to sell,
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assign, pledge, transfer and make any agreement respecting, or otherwise deal
with, the same.
(b) Nothing in this Agreement shall be construed as requiring or
obligating the Secured Party to make any demand or inquiry as to the nature or
sufficiency of any payment received by it. The Secured Party shall not be
obligated to present or file any claim or notice or to take any action with
respect to any such Account, or the monies due or to become due thereunder, or
the property covered thereby or by any Related Document. No action taken by the
Secured Party or omitted to be taken with respect to any such Account shall give
rise to any defense, counterclaim or offset in favor of any Debtor or to any
claim or action against the Secured Party or any Bank.
(c) Each Debtor agrees that all cash, proceeds, checks, drafts,
orders and other instruments for the payment of money received by it on account
of any Account or as a result of the sale, lease, destruction, condemnation or
other voluntary or involuntary disposition of any Collateral, whether pursuant
to the exercise of a right granted herein to such Debtor or otherwise, shall be
additional Collateral of the Secured Party. All such proceeds shall be
deposited in the form received (properly endorsed for collection where required)
not later than the Banking Day following the day of receipt in a special bank
account maintained with the Secured Party in such Debtor's name, over which the
Secured Party alone shall have the right of withdrawal, for the payment of all
of the Secured Obligations. Such Debtor shall not commingle any such
collections or proceeds with any of its other funds or property and shall hold
the same upon an express trust for the Secured Party until deposited in the
special account, as aforesaid. In the event any Debtor shall obtain possession
of any goods (as a result of their return or repossession or otherwise), the
sale, lease or other disposition of which gave rise to an Account, such Debtor
shall hold the same subject to the security interest of the Secured Party
hereunder and to dispose of such goods, at its own expense and sole risk but for
the account of the Secured Party, in such manner as the Secured Party may
direct.
6.5 TRANSFER OF INTANGIBLES.
(a) The Secured Party shall have the right to take possession of
any agreement, lease, License, permit or other document evidencing any of the
Collateral, and may apply for or seek, on behalf of and as attorney-in-fact for
each Debtor, any necessary consent to the voluntary or involuntary assignment,
transfer, conveyance, sale, renewal, reissuance or other
- 14 -
disposition of the same, and each Debtor shall cooperate fully with the Secured
Party in doing so and shall take all actions requested by the Secured Party in
furtherance thereof.
(b) Each Debtor hereby constitutes and appoints the Secured
Party its true and lawful attorney (which appointment is coupled with an
interest) with full power of substitution, either in the Secured Party's own
name or in the name of such Debtor, to assign, transfer and convey any and all
of such Debtor's rights in and to any of the Intangibles, including without
limitation, any License (to the extent permitted by law), to any purchaser of
all or any of the Collateral pursuant to Section 6.6 hereof.
(c) In connection with the exercise of its remedies under the
Loan Agreement and this Agreement, the Secured Party may obtain the appointment
of a trustee or receiver to obtain, upon receipt of all necessary judicial or
other federal or state regulatory authority consents or approvals, an assignment
of any Intangible, including, without limitation, any License. Such trustee or
receiver shall have all rights and powers provided to it by law or by court
order or provided to the Secured Party under this Agreement.
(d) For the purpose of enabling the Secured Party to exercise
rights and remedies under this Section 6 at such time as the Secured Party shall
be lawfully entitled to exercise such rights and remedies, and for no other
purpose, each Debtor hereby grants to the Secured Party, to the extent
assignable without violation of any third party rights, an irrevocable, non-
exclusive license (exercisable without payment of royalty or other compensation)
to use, assign, license or sublicense any of the Intangibles, wherever the same
may be located, including in such license reasonable access to all media in
which any of the licensed items may be recorded or stored and to all computer
programs used for the compilation or printout thereof.
(e) In the event of any sale, assignment or other disposition of
any of the Trademarks, the goodwill of the applicable Debtor's business
connected with and symbolized by such Trademarks subject to such disposition
shall be included, and such Debtor shall supply to the Secured Party or its
designee, for inclusion in such sale, assignment or other disposition, all
Intangibles relating to such Trademarks.
- 15 -
6.6 SALE OR DISPOSITION.
(a) The Secured Party may sell, lease, assign, transfer, convey
or otherwise dispose of any or all of the Collateral, as the Secured Party in
its discretion may determine, by public or private sale. Except for items of
Inventory or Equipment which are perishable or threaten to decline speedily in
value or are of a type customarily sold on a recognized market, the Secured
Party shall give each applicable Debtor at least ten days prior written notice
of the time and place of any public sale thereof or of the time after which any
private sale or other intended disposition thereof is to be made. At any such
sale, the Collateral may be sold in one lot as an entirety or in separate
parcels, as the Secured Party may determine, and the price and other terms shall
be such as the Secured Party deems to be commercially reasonable. At any sale
hereunder, to the extent permitted by law, the Secured Party or any Bank may
become the purchaser. Any purchaser of any or all of the Collateral shall hold
the same free from any claim or right of whatsoever kind, including, without
limitation, any right or equity of redemption (statutory or otherwise), of any
Debtor, any such right or equity being hereby expressly waived.
(b) The Secured Party and the Banks shall incur no liability as
a result of the sale of the Collateral, or any part thereof, at any private sale
pursuant to this Section conducted in a commercially reasonable manner. Each
Debtor hereby waives any claims against the Secured Party and the Banks arising
by reason of the fact that the price at which the Collateral may have been sold
at such a private sale was less than the price that might have been obtained at
a public sale or less than the aggregate amount of the Secured Obligations, even
if the Secured Party accepts the first offer received and does not offer the
Collateral to more than one offeree, PROVIDED that such private sale is
conducted in a commercially reasonable manner.
6.7 PROCEEDS. All proceeds from the sale or other disposition of
Collateral by the Secured Party hereunder, all other moneys received by the
Secured Party pursuant to the terms of this Agreement (whether through the
exercise by the Secured Party of its right of collection of Accounts or
otherwise) and all balances from time to time remaining in the special account
required to be maintained by each Debtor under Section 6.4 shall be applied as
follows:
(a) First, to the payment of (i) all expenses incurred by the
Secured Party in connection with this Agreement
- 16 -
or the exercise of any right or remedy hereunder, or any sale or disposition,
including, but not limited to, the expenses of taking, advertising, processing,
insuring, preparing and storing the Collateral to be sold, all court costs and
the Secured Party's legal fees in connection therewith, and (ii) all advances
made by the Secured Party hereunder for the account of any Debtor;
(b) Next, to the payment of the unpaid principal amount due and
owing on any of the Secured Obligations in accordance with the terms thereof,
together with interest thereon to the date of payment; the remainder to be held
as security for the Debtors' payment of any Secured Obligations not then due and
owing, together with interest accrued and accruing thereon; and
(c) Finally, any surplus remaining to be paid over to the
Debtors or as a court of competent jurisdiction may direct.
With respect to any application pursuant to clause (b) above, such proceeds,
moneys or balances may be applied, at the sole discretion of the Secured Party
and to the extent of the amount thereof, to discharge in whole or in part the
most recently incurred and unpaid Secured Obligation, notwithstanding any
manifestation of an intent to the contrary expressed in writing or otherwise by
any Debtor at any time. Upon any sale of Collateral by the Secured Party
(whether pursuant to a power of sale granted by a statute or under a judicial
proceeding), the receipt of the Secured Party or of the officer making the sale
shall be a sufficient discharge to the purchaser or purchasers of the Collateral
so sold and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Secured Party or
such officer, or be answerable in any way for the misapplication thereof.
Notwithstanding the sale or other disposition of any Collateral by the Secured
Party hereunder, the Borrower and each Debtor shall remain liable for any
deficiency.
7. REMEDIES CUMULATIVE. All rights, remedies or powers conferred
upon the Secured Party herein or by law shall be cumulative and concurrent at
the option of the Secured Party, and the Secured Party may foreclose or exercise
the power of sale or any other remedy available to it successively upon, and
during the continuance of, any Event of Default or successive Events of Default.
Upon any such occasion, the Secured Party shall be authorized to sell, lease or
dispose of all or any such part of the Collateral as it shall elect and as
permitted by law. The remaining Collateral shall continue as security for any
other
- 17 -
sums remaining due after such sale, lease or disposition or thereafter to become
due or payable on any of the Secured Obligations.
8. WAIVERS.
(a) No delay, omission or forbearance by the Secured Party in
the exercise of any right, power or remedy conferred upon it herein or by law or
equity, nor any continuance by the Secured Party of its performance shall be a
waiver or excuse of the event giving rise to the same. The single or partial
exercise of a right, power or remedy does not preclude its further exercise from
time to time and as often as may be deemed expedient by the Secured Party. No
waiver by the Secured Party of any Event of Default or of any right, power or
remedy hereunder shall operate as a waiver of any other Event of Default, right,
power or remedy on a future occasion.
(b) Each Debtor hereby waives, releases and discharges, to the
full extent permitted by law, any right which it has or may have at law, in
equity or by statute, to require the Secured Party to pursue or otherwise avail
itself of any rights or remedies which it has or may have against any other
Person with respect to the payment of the Notes or performance of the terms,
covenants and conditions of the Loan Agreement and Collateral Documents or to
pursue or exhaust any of its rights or remedies with respect to any other
security for the satisfaction of the Secured Obligations or the performance of
the terms, covenants and conditions of the Loan Agreement. Each Debtor hereby
waives and releases any right of marshalling of assets which it might otherwise
have.
(c) No failure on the part of the Secured Party to exercise, and
no delay on its part in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy preclude any other or the further exercise thereof
or the exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies at law or in equity. All
rights of the Secured Party, the security interests granted hereunder, and all
obligations of each Debtor hereunder, shall be absolute and unconditional
irrespective of:
(i) any lack of validity or enforceability of the Loan
Agreement, the Notes, the other Collateral Documents, any other related
instrument or any other agreement or instrument relating thereto;
- 18 -
(ii) any change in the time, manner or place of payment of,
or in any other term in respect of, all or any of the Secured Obligations, or
any other amendment or waiver of or any consent to any departure from the Loan
Agreement, the Notes, the other Collateral Documents or any other related
instrument; or
(iii) any exchange or release of, or non-perfection of any
Lien or security on or in, any other collateral, or any release or amendment or
waiver of or consent to departure from any guarantee, for all or any of the
Secured Obligations.
9. DEBTORS' LIABILITY AND INDEMNITIES. Anything herein to the
contrary notwithstanding, (a) each Debtor shall remain liable under all
contracts and agreements included in the Collateral to the extent set forth
therein to perform all of the duties and obligations thereunder to the same
extent as if this Agreement had not been executed, (b) the exercise by the
Secured Party or the Banks of any of its or their rights hereunder shall not
release any Debtor from any of its duties or obligations under the contracts and
agreements included in the Collateral, and (c) neither the Secured Party nor any
Bank shall have any obligation or liability under the contracts and agreements
included in the Collateral or be obligated to perform any of the obligations or
duties of any Debtor thereunder or to take any action to collect or enforce any
claim for payment assigned hereunder. Each Debtor hereby agrees to indemnify
and hold harmless the Secured Party and the Banks, and their respective
directors, officers, attorneys, agents and employees (all such indemnified
persons, including their heirs, successors, assigns and administrators, being
referred to as "Indemnified Persons" for purposes of this Section 9), from and
against any and all claims, demands, losses, costs, expenses, judgments and
liabilities (including liabilities for penalties) of any nature whatsoever
arising in connection with this Agreement or the exercise or enforcement by the
Secured Party or any other Indemnified Person of any right, power or remedy
hereunder, except for losses which are found in a final non-appealable judgment
by a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of such Indemnified Person. In no event shall the Secured
Party, any Bank or any director, officer, attorney, agent or employee of the
Secured Party or any Bank be liable to such Debtor for any action, matter or
thing in connection with this Agreement other than gross negligence or willful
misconduct and to account for moneys actually received by the Secured Party in
accordance with the terms hereof.
- 19 -
10. POSSESSION OF COLLATERAL. So long as no Event of Default
hereunder has occurred and is continuing, each Debtor may have and retain
possession of its Collateral and use it in any lawful manner not inconsistent
with the Loan Agreement, this Agreement, any Collateral Document or any policy
of insurance thereon, unless possession of such Collateral by the Secured Party
is necessary or appropriate to perfect the Secured Party's security interest
therein.
11. TERMINATION OF SECURITY INTERESTS. This Agreement and the
security interests granted hereunder shall terminate when all amounts due and
owing on account of, and all obligations and liabilities of the Debtors in
respect of, the Secured Obligations shall have been fully, irrevocably and
indefeasibly performed, satisfied and paid in cash, but only if the Banks shall
then have no obligation or commitment to make further loans to the Borrower
under the Loan Agreement. Upon the termination of the Secured Party's security
interest in any Collateral, the Secured Party shall reassign and deliver to each
Debtor, without recourse or representation, against such Debtor's receipt and at
such Debtor's expense, such Debtor's Collateral, all cash proceeds therefrom and
all Related Documents relating thereto then held by the Secured Party. Upon
such termination, at the request of such Debtor and at its expense, the Secured
Party shall execute and deliver to such Debtor termination statements with
respect to financing statements filed hereunder. Notwithstanding the foregoing,
this Agreement shall continue to be effective or be reinstated and relate back
to such time as though this Agreement had always been in effect, as the case may
be, if at any time any amount received by the Secured Party or any Bank in
respect of the Secured Obligations is rescinded or must otherwise be restored or
returned by the Secured Party or any Bank upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of any Debtor or the Borrower or upon
the appointment of any intervenor or conservator of, or trustee or similar
official for any Debtor or the Borrower or any substantial part of its
properties, or otherwise, all as though such payments had not been made.
12. MISCELLANEOUS.
12.1 CERTAIN REGULATORY REQUIREMENTS.
(a) The Debtors shall take all action that the Secured Party may
reasonably request in the exercise of its rights and remedies hereunder, which
includes the right to require the Debtors after the occurrence and during the
continuance of an Event of Default to transfer or assign the FCC
- 20 -
Licenses to any party or parties. In furtherance of this right, the Debtors
shall, upon the occurrence and during the continuance of an Event of Default,
(i) cooperate fully with the Secured Party in obtaining all approvals and
consents from the FCC that the Secured Party may deem necessary or advisable to
accomplish any such transfer or assignment of the FCC Licenses and (ii) prepare,
execute and file with the FCC any application, request for consent, certificate
or instrument that the Secured Party may deem necessary or advisable to
accomplish any such transfer or assignment of the FCC Licenses. If a Debtor
fails to execute such applications, requests for consent, certificates or
instruments, the clerk of any court that has jurisdiction over this Agreement
may execute and file the same on behalf of such Debtor. To enforce the
provisions of this Section, the Secured Party is authorized to request the
consent or approval of the FCC to a voluntary or an involuntary transfer of
control of any Debtor.
(b) Notwithstanding anything to the contrary contained in this
Agreement:
(i) the Secured Party shall not take any action hereunder
that would constitute or result in any transfer of control of the FCC Licenses
or any Debtor without obtaining all necessary FCC approvals. The Secured Party
and the Banks shall be entitled to rely on the advice of FCC counsel selected by
the Secured Party to determine whether FCC approval is required, and
(ii) the Secured Party shall not foreclose on, sell,
transfer or otherwise dispose of, or exercise any right to control the FCC
Licenses as provided herein or take any other action that would affect the
operational, voting, or other control of any Debtor, unless such action is taken
in accordance with the provisions of the Communications Act of 1934, as from
time to time amended, and the rules, regulations and policies of the FCC.
(c) The Debtors acknowledge that the approval of the FCC to the
assignment of the FCC Licenses or the transfer of control of the Debtors is
integral to the Secured Party's realization of the value of the Collateral,
including the FCC Licenses, that there is no adequate remedy at law for failure
by the Debtors to comply with the provisions of this Section and that such
failure could not be adequately compensated by damages. Therefor, the Debtors
agree that the provisions of this Section may be specifically enforced.
- 21 -
12.2 RIGHT OF THE SECURED PARTY TO DEAL WITH COLLATERAL DOCUMENTS,
ETC. The Secured Party and the Banks may deal in any manner with any Collateral
Document to which any Debtor is not a party in accordance with or as permitted
by the terms thereof (as may be amended from time to time), subject in all cases
to such approval or agreement by the parties thereto as may be required by the
terms of such documents, without notice to or the consent of such Debtor,
including, without limitation, in the following manner:
(a) to modify, supplement or otherwise change any terms of the
Notes, the Loan Agreement or any other Collateral Document; to grant any
extension or renewal of the Notes or any other Collateral Document; to grant any
other waiver or indulgence with respect to the Notes, the Loan Agreement or any
other Collateral Document and to effect any release, compromise or settlement
with respect to the Notes, the Loan Agreement or any other Collateral Document;
(b) to waive rights or to enter into any agreement of
forbearance with respect to the Loan Agreement, the Notes or any other
Collateral Document, or with respect to all or any part of any other security
for the Secured Obligations and to change the terms of such waiver or agreement
of forbearance;
(c) to consent to the substitution, exchange or release of all
or any part of any other security (other than the Collateral) at any time and
from time to time held by the Secured Party as security or surety for the
Secured Obligations and, in the case of a substitution or exchange, whether or
not the new security received by the Secured Party shall be of the same or of a
different character or value from the security surrender; and
(d) to create, or advance additional funds creating, additional
obligations and liabilities secured hereby whether pursuant to the Loan
Agreement or otherwise.
No action which the Secured Party may take or fail to take in accordance with or
permitted by any Collateral Document to which any Debtor is not a party (as any
of the foregoing may be amended from time to time) pursuant to the foregoing
powers shall operate to release any of the Collateral, terminate or modify the
terms of this Agreement or impose any liability on the Secured Party.
12.3 MODIFICATION. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of
- 22 -
the Debtors and the Secured Party. No waiver of any single breach or default
under this Agreement shall be deemed a waiver of any other breach or default.
12.4 SUCCESSORS AND ASSIGNS. Subject to the limitations upon the
sale, lease, transfer or other disposition of the Collateral by the Debtors set
forth herein and in the Loan Agreement, all of the covenants, conditions and
agreements herein contained shall be binding upon the Debtors and their
successors and assigns; PROVIDED, HOWEVER, that no Debtor may assign or transfer
any of its rights or obligations hereunder without the prior written consent of
all of the Banks and the Secured Party. This Agreement shall inure to the
benefit of the permitted successors and assigns of the Secured Party and the
Banks, and, in the event of any transfer or assignment of rights by the Secured
party or the Banks, the rights and privileges herein conferred upon the Secured
Party or the Banks shall automatically extend to and be vested in such permitted
transferee or assignee, all subject to the terms and conditions hereof.
12.5 GOVERNING LAW. THIS AGREEMENT AND THE DUTIES, RIGHTS, POWERS AND
REMEDIES OF THE PARTIES HERETO SHALL BE CONSTRUED IN ACCORDANCE WITH, AND
GOVERNED BY, THE LAWS OF THE STATE OF OHIO WITHOUT REGARD TO THE CONFLICTS OF
LAW PROVISIONS THEREOF, EXCEPT TO THE EXTENT THAT THE LOCAL LAW OF ANY
JURISDICTION WHERE ANY COLLATERAL IS LOCATED GOVERNS THE GRANT, PERFECTION OR
ENFORCEMENT OF THE SECURITY INTERESTS AND LIENS GRANTED PURSUANT TO THIS
AGREEMENT. THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY DISCUSSED BY THE
DEBTORS AND THE SECURED PARTY ON BEHALF OF THE BANKS AND SHALL BE SUBJECT TO NO
EXCEPTIONS. EACH DEBTOR HAS MADE THIS CHOICE OF GOVERNING LAW KNOWINGLY AND
WILLINGLY AND UPON CONSULTATION WITH ITS COUNSEL. NEITHER THE SECURED PARTY NOR
ANY DEBTOR HAS AGREED WITH OR REPRESENTED TO THE OTHER THAT THE PROVISIONS OF
THIS SECTION WILL NOT BE FULLY ENTERED IN ALL INSTANCES.
12.6 ENFORCEMENT. EACH DEBTOR (A) HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE STATE COURTS OF THE STATE OF OHIO AND TO THE JURISDICTION OF
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, FOR THE
PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF OR BASED UPON
THIS AGREEMENT OR THE SUBJECT MATTER HEREOF BROUGHT BY THE AGENT OR THE BANKS OR
THEIR SUCCESSORS OR ASSIGNS AND (B) HEREBY WAIVES, AND AGREES NOT TO ASSERT, BY
WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR
PROCEEDING, ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF
THE ABOVE-NAMED COURTS, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR
EXECUTION, THAT THE SUIT, ACTION OR PROCEEDING IS
- 23 -
BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR
PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT OR THE SUBJECT MATTER HEREOF MAY
NOT BE ENFORCED IN OR BY SUCH COURT, AND (C) HEREBY WAIVES AND AGREES NOT TO
SEEK ANY REVIEW BY ANY COURT OF ANY OTHER JURISDICTION WHICH MAY BE CALLED UPON
TO GRANT AN ENFORCEMENT OF THE JUDGMENT OF ANY SUCH OHIO STATE OR FEDERAL COURT.
EACH DEBTOR HEREBY CONSENTS TO SERVICE OF PROCESS BY REGISTERED MAIL AT THE
ADDRESS TO WHICH NOTICES ARE TO BE GIVEN. EACH DEBTOR AGREES THAT ITS
SUBMISSION TO JURISDICTION AND ITS CONSENT TO SERVICE OF PROCESS BY MAIL IS MADE
FOR THE EXPRESS BENEFIT OF THE AGENT AND THE BANKS. FINAL JUDGMENT AGAINST EACH
DEBTOR IN ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT, ACTION OR PROCEEDING ON THE JUDGMENT, OR IN ANY OTHER
MANNER PROVIDED BY OR PURSUANT TO THE LAWS OF SUCH OTHER JURISDICTION; PROVIDED,
HOWEVER, THAT THE AGENT OR THE BANKS MAY AT THEIR OPTION BRING SUIT, OR
INSTITUTE OTHER JUDICIAL PROCEEDINGS, AGAINST EACH DEBTOR OR ANY OF ITS ASSETS
IN ANY XXXXX XX XXXXXXX XXXXX XX XXX XXXXXX XXXXXX OR OF ANY COUNTRY OR PLACE
WHERE SUCH DEBTOR, OR SUCH ASSETS, MAY BE FOUND.
12.7 JURY TRIAL WAIVER. EACH DEBTOR AND THE SECURED PARTY WAIVES
IRREVOCABLY, TO THE EXTENT PERMITTED BY LAW, ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN THE SECURED PARTY OR ANY BANK AND SUCH DEBTOR ARISING OUT OF,
IN CONNECTION WITH, RELATING TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR THE NOTES OR OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS RELATED HERETO. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-
ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH DEBTOR AND THE
SECURED PARTY ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER
INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN
ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER
IN THEIR RELATED FUTURE DEALINGS. EACH DEBTOR AND THE SECURED PARTY FURTHER
WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL,
AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (UNLESS EXPRESSLY MODIFIED IN
WRITING BY ALL PARIES HERETO), AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS. IN THE EVENT OF LITIGATION, THIS
- 24 -
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
12.8 NOTICES. All notices, demands and requests required or
permitted to be given under the provisions of this Agreement shall be in writing
and shall be deemed to have been duly delivered and received if given in
accordance with the provisions of the Loan Agreement.
12.9 SEPARABILITY. If any one or more of the provisions contained in
this Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of all remaining provisions shall not in
any way be affected or impaired. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
12.10 AGENT. The parties hereby acknowledge and reaffirm that the
Secured Party has been designated to act as agent for the Banks. All rights and
remedies of the Secured Party hereunder may be exercised by the Secured Party on
behalf of, and as agent for, the Banks. The Banks may, pursuant to the terms of
the Loan Agreement, appoint a successor agent, who shall, upon appointment,
succeed to all the rights and obligations of the Secured Party hereunder. Each
Debtor acknowledges that the rights of the Secured Party hereunder are for the
benefit of each Bank, and that, upon the termination of the appointment of an
agent under the Loan Agreement and the failure of the Banks to appoint a
successor agent thereunder, the rights of the Secured Party under the covenants,
conditions and agreements hereof shall inure to the benefit of the Banks. At
any time or times, in order to comply with any legal requirement in any
jurisdiction, the Secured Party may in good faith appoint one or more other
Persons, either to act as co-agent or co-agents, jointly with the Secured Party,
or to act as separate agent or agents on behalf of the Secured Party and the
holders of the Secured Obligations, with such power and authority as may be
necessary for the effectual operation of the provisions hereof and may be
specified in the instrument of appointment (which may, in the discretion of the
Secured Party, include provisions for the protection of such co-agent or
separate agent similar to the provisions herein).
- 25 -
12.11 SECTION HEADINGS. The section headings contained herein are for
reference purposes only and shall not in any way affect the meaning and
interpretation of this Agreement.
12.12 PRONOUNS. Any pronoun used herein shall be construed in the
person, number and gender which is appropriate in the context.
12.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
12.14 JOINDER. Upon the execution and delivery after the date hereof
by any new or additional Subsidiary of an instrument in the form of ANNEX 1
attached hereto, such Subsidiary shall become a Debtor hereunder with the same
force and effect as if originally named as a Debtor hereunder. The rights and
obligations of each Debtor hereunder shall remain in full force and effect,
notwithstanding the addition of any such new or additional Subsidiary as a party
to this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Subsidiary
Security Agreement on the day and year first above written.
SECURED PARTY:
KEYBANK NATIONAL ASSOCIATION,
as Agent
By: /s/ Xxxxx X. Xxxxxx
________________________________
Name : Xxxxx X. Xxxxxx
Title: Assistant Vice President
DEBTORS:
THE ALBANY HERALD PUBLISHING COMPANY, INC
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
XXXX KENTUCKY TELEVISION, INC.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
XXXX REAL ESTATE & DEVELOPMENT COMPANY
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
XXXX TELEVISION MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
S-1
XXXX TRANSPORTATION COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
KTVE-TV, INC.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
PORTA-PHONE PAGING, INC.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
PORTA-PHONE PAGING LICENSEE CORP.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
THE ROCKDALE CITIZEN PUBLISHING COMPANY
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
THE SOUTHWEST GEORGIA SHOPPER, INC.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
S-2
WALB LICENSEE CORP.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
WALB-TV, INC.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
WCTV LICENSEE CORP.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
WCTV OPERATING CORP.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
WJHG LICENSEE CORP.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
WJHG-TV, INC.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
S-3
WKYT LICENSEE CORP.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
WRDW LICENSEE CORP.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
WRDW-TV, INC.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
WVLT LICENSEE CORP.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
WVLT-TV, INC.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
WYMT LICENSEE CORP.
By: /s/ Xxxxxx X. Xxxxxx
___________________________
Name: Xxxxxx X. Xxxxxx
Its : Secretary
S-4
SCHEDULE A
LIST OF REGISTERED COPYRIGHTS, PATENTS AND TRADEMARKS
None
SCHEDULE B
LIST OF JURISDICTIONS IN WHICH ANY COLLATERAL IS LOCATED
Entity County
------ ------
The Albany Herald Publishing Xxxxxxxxx County, Georgia
Company, Inc.
000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxx Kentucky Television, Inc. Xxxxxxxxx County, Georgia
[ADDRESS] Fayette County, Kentucky
_________________________ Franklin County, Kentucky
_________________________ Perry County, Kentucky
_________________________ Xxxxx County, Kentucky
Xxxx Real Estate & Development Xxxxxxxxx County, Georgia
Company
000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxx Television Management, Xxxxxxxxx County, Georgia
Inc.
000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxx Transportation Company, Xxxxxxxxx County, Georgia
Inc.
000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Porta-Phone Paging, Inc. Bay County, Florida
[ADDRESS] Xxxx County, Florida
_________________________ Houston County, Alabama
_________________________ Muscogee County, Georgia
_________________________ Xxxx County, Xxxxxxx
Xxxxxx County, Xxxxxxx
Xxxxxxx County, Xxxxxxx
Xxxxx-Phone Paging Licensee Bay County, Florida
Corp. Xxxx County, Florida,
[ADDRESS] Xxxxxxxxx County, Georgia
_________________________ Houston County, Alabama
_________________________ Muscogee County, Georgia
_________________________ Xxxx County, Xxxxxxx
Xxxxxx County, Xxxxxxx
Xxxxxxx County, Georgia
Entity County
------ ------
The Rockdale Citizen Xxxxxxxxx County, Georgia
Publishing Company Rockdale County, Georgia
000 Xxxxx Xxxx Xxxxxx Xxxxxxxx Xxxxxx, Xxxxxxx
Xxxxxxx, XX 00000
The Southwest Georgia Shopper, Xxxxxxxxx County, Georgia
Inc. Xxxx County, Florida
[ADDRESS]
_________________________
_________________________
_________________________
WALB Licensee Corp. Xxxxxxxxx County, Georgia
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
WALB-TV, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxxxxx County, Georgia
WCTV Licensee Corp. Xxxx County, Florida
[ADDRESS] Xxxxxxxxx County, Georgia
_________________________ Xxxxxx County, Georgia
_________________________
_________________________
WCTV Operating Corp. Xxxx County, Florida
[ADDRESS] Xxxxxxxxx County, Georgia
_________________________ Xxxxxx County, Georgia
_________________________
_________________________
WJHG Licensee Corp. Bay County, Florida
8195 Front Beach Road Xxxxxxxxx County, Georgia
Xxxxxx Xxxx, XX 00000
WJHG-TV, Inc. Xxx Xxxxxx, Xxxxxxx
0000 Xxxxx Xxxxx Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx
Xxxxxx Xxxx, XX 00000
WKYT Licensee Corp. Fayette County, Kentucky
[ADDRESS] Perry County, Kentucky
_________________________ Franklin County, Kentucky
_________________________ Xxxxx County, Kentucky
_________________________ Xxxxxxxxx County, Georgia
S-2
Entity County
------ ------
WRDW Licensee Corp. Fayette County, Kentucky
[ADDRESS] Perry County, Kentucky
_________________________ Franklin County, Kentucky
_________________________ Xxxxx County, Kentucky
_________________________ Xxxxxxxxx County, Georgia
WRDW-TV, Inc. Xxxxxxxxx County, Georgia
[ADDRESS] Aiken County, South Carolina
_________________________
_________________________
_________________________
WKXT Licensee Corp. Xxxx County, Tennessee
0000 Xxxxxxxxx Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx
Xxxxxxxxx, XX 00000
WKXT-TV, Inc. Xxxx County, Tennessee
0000 Xxxxxxxxx Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx
Xxxxxxxxx, XX 00000
WYMT Licensee Corp. Xxxxx County, Kentucky
[ADDRESS] Xxxxxxxxx County, Georgia
_________________________
_________________________
_________________________
S-3
ANNEX 1
SUPPLEMENT NO. ___, dated as of ________________, to the Subsidiary
Security Agreement, dated as of September __, 1996 (the "AGREEMENT"), by and
among the Subsidiaries of Xxxx Communications Systems, Inc. and KeyBank National
Association, as agent (all capitalized terms used herein but not otherwise
defined herein shall have the meaning assigned to such terms in the Agreement as
the same may be hereafter amended or supplemented from time to time).
The undersigned (the "NEW DEBTOR") is a Subsidiary of the Borrower and
is executing this Supplement in accordance with the requirements of the Loan
Agreement and of the Agreement to become a Debtor under the Agreement as
additional consideration for any Loans previously made.
Accordingly, the New Debtor agrees as follows:
(a) In accordance with Section 12.14 of the Agreement, the New
Debtor by signing below hereby agrees to become a Debtor under the Agreement
with the same force and effect as if originally named therein as a Debtor, and
the New Debtor hereby agrees to all of the terms and conditions of the Agreement
applicable to it as a Debtor thereunder. Each reference to a "DEBTOR" or the
"DEBTORS" in the Agreement shall be deemed to include the New Debtor, and the
Agreement is hereby incorporated by this reference.
(b) This Supplement shall become effective upon the execution
hereof by the New Debtor and the delivery of this Supplement to the Agent.
(c) Except as expressly supplemented hereby, the Agreement shall
remain in full force and effect.
(d) This Supplement shall be governed by, and shall be construed
and enforced in accordance with, the laws of the State of Ohio without regard to
the conflicts of law principles thereof.
IN WITNESS WHEREOF, the New Debtor has signed and delivered this
Supplement to the Agreement as of the day and year first above written.
______________________________
S-4
By:________________________________
Name :_____________________________
Title:_____________________________
S-5
