SUNTRUST Security Agreement
EXHIBIT
10.2
SUNTRUST
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This
Security Agreement dated as of August 22, 2008, made by Debut Broadcasting
Mississippi, Inc. (the "Owner") in favor of SunTrust Bank, its present and
future affiliates and their successors and assigns (collectively, "SunTrust")
provides:
Security
Agreement, In order to induce SunTrust from time to time to enter into
agreements with and to extend or continue to extend credit
to
Debut Broadcasting Mississippi, Inc. (and any one or more and any combination
if
more than one, the 'Borrower") and in consideration
of any credit so extended, the Owner (which may include the Borrower) hereby
grants, sells, assigns, transfers and conveys
to SunTrust, a security interest in the collateral described below, whether
now
existing or hereafter acquired, and all proceeds, products,
rents and profits thereof and all revenues from the right to use the collateral
as described below to secure the prompt payment
and performance of any and all liabilities, obligations, agreements and
undertakings of Borrower to SunTrust (and, in addition,
all liabilities, obligations, agreements and undertakings of Owner, or any
one
or more of them, to SunTrust if Owner and
Borrower
are not the same person or entity) in any amount, whether now existing or
hereafter arising, including those owed by Borrower
or Owner to others and acquired by SunTrust through purchase, assignment
or
otherwise, however created, evidenced or arising,
whether individually or jointly with others, and whether absolute or contingent,
direct or indirect, as maker, endorser, guarantor, surety or otherwise,
liquidated or unliquidated, matured or unmatured, whether or not secured
by
other collateral, and including, without
limitation, (a) all obligations to perform or forebear from performing any
acts,
(b) all overdrafts on deposits or accounts maintained
by Borrower or Owner with SunTrust, and (c) all liabilities, obligations,
agreements and undertakings of Borrower or Owner to
SunTrust pursuant to any interest rate hedge agreement or other derivative
transaction agreement or any foreign exchange contract or any application
or
other agreement requesting SunTrust to issue any letter of credit including,
without limitation, the obligation of Borrower
or Owner to reimburse SunTrust for all amounts funded by SunTrust pursuant
to
any such letter of credit and (d) all costs of collection
and protection of SunTrust's rights, including attorneys' fees allowed by
law
(in the amount of 15% of the principal and interest
secured hereby if this Security Agreement is governed by the laws of Georgia),
whether such collection of protection occurs prior
to,
during, or after any bankruptcy proceedings filed by or against any Obligor
(as
such term is defined below) (all the foregoing being
hereinafter collectively referred to as the "Obligations")
Collateral.
As used
in this Security Agreement, the term "Collateral" shall mean the property
described below, whether now existing or hereafter acquired. All
assets of Owner, as more particularly described herein, and including but
not
limited to, all Accounts, Inventory, furniture, fixtures and Equipment, goods,
deposit accounts, instruments, documents, commercial tort claims, letter
of
credit rights, investment property, chattel paper and General Intangibles
(as
all such terms are used herein and in the Uniform Commercial Code).
Owner
Representations and Warranties.
The
Owner represents and warrants to SunTrust as follows:
This
Security Agreement has been duly executed and delivered by Owner, constitutes
a
valid and legally binding obligation of Owner and is enforceable in accordance
with its terms against Owner. Owner represents and warrants to SunTrust that
it
has rights in all of the Collateral and/or has the power to transfer rights
in
all of the Collateral. The execution, delivery and performance of this Security
Agreement, the grant of the security interest in the Collateral and the
consummation of the transactions contemplated will not, with or without the
giving of notice of the lapse of time, (a) violate any material law applicable
to Owner, (b) violate any judgment, writ, injunction
or order of any court or governmental body or officer applicable to Owner,
(c)
violate or result in the breach of any material agreement to which Owner
is a
party or by which any of Owner's properties, including the Collateral, is
bound,
nor (d) violate any restriction
on the transfer of any of the Collateral;
No
consent, approval, license, permit or other authorization of any third party
or
any governmental body or officer is required for the valid
and
lawful execution and delivery of this Security Agreement, the creation and
perfection of SunTrust's security interest in the Collateral
or the valid and lawful exercise by SunTrust of remedies available to it
under
this Security Agreement or applicable law.
The
Owner
is and will continue to be the absolute owner of the Collateral and there
are no
other liens or security interests affecting the Collateral other than the
security interest granted in this Security Agreement except those previously
disclosed to SunTrust in writing by the Owner: if the Owner is acting in
the
capacity of trustee, administrator or executor of an estate, such fact shall
be
disclosed and evidence of capacity shall be provided to SunTrust; Debut
Broadcasting Mississippi, Inc. is a corporation duly organized and existing
under the laws of the state of Mississippi, with Organizational
Identification Number 913639, is duly qualified and in good standing as a
foreign corporation in every jurisdiction where such qualification is necessary;
the execution and performance of this Security Agreement have been duly
authorized by action of its Board of Directors, no action of its shareholders
being necessary; the execution and performance of this Security Agreement
will
not violate or contravene any provisions of law or regulation or its Articles
of
Incorporation, Shareholder Agreement, By-Laws or other agreements
to which it is a party or by which it is bound; and no consent or approval
of
any governmental agency or authority is required
in making or performing the obligations under, this Security Agreement;
The
Owner
will maintain the Collateral in the following location(s): 0000
00xx
Xxxxxx X , Xxx 000, Xxxxxxxxx, XX 00000.
The Collateral
shall not be moved from the location(s) without the prior written consent
of
SunTrust; Business
books and records of Debut Broadcasting Mississippi, Inc are maintained at
0000
00xx Xxxxxx X., Xxx 000, Xxxxxxxxx, XX 00000;
The
Collateral is and will be used or bought for use primarily for the following
purpose: business or commercial purposes; and All
information supplied and statements made to SunTrust in any financial statement
or application are true, correct, complete, valid and genuine in all material
respects.
Choice
of Law.
Owner
agrees that certain material events and occurrences relating to this Agreement
bear a reasonable relationship to the laws of Tennessee This Agreement shall
be
governed by the laws of Tennessee and, unless applicable law provides otherwise,
In the event of any legal proceeding arising out of or related to this
Agreement, the Owner consents to the jurisdiction and venue of any court
located
in Tennessee Unless otherwise specified, Uniform Commercial Code" as used
herein
shall refer to the Uniform
Commercial
Code of Tennessee, both current and as it may be amended or revised from
time to
time in the future
Covenants.
The
Owner
shall furnish to SunTrust such financial and business information and reports
in
form and content satisfactory to SunTrust as and when SunTrust may from time
to
time require
The
Corporate Collateral Owner shall maintain its corporate existence in good
standing and shall not consolidate or merge with or
acquire
the stock of any other corporation without the prior written consent of
SunTrust; the Owner shall, at the request of SunTrust,
qualify
as a foreign corporation and obtain all requisite licenses and permits in
each
jurisdiction where the Owner does business.
The
Owner
shall notify SunTrust in writing at least 30 days prior to any change of
Its
name or structure or change in Its jurisdiction of registration/organization,
principal place of business or chief executive office.
The
Owner
shall maintain all of the Collateral in good condition and repair SunTrust
shall
have the right to inspect the Collateral at any reasonable time and shall
have
the right to obtain such appraisals, reappraisals, appraisal updates or
environmental inspections as SunTrust, in its sole discretion, may deem
necessary from time to time Owner will not use or permit any person or entity
to
use the Collateral (a) in any manner inconsistent with the provisions of
this
Security Agreement; or (b) in violation of any policy of insurance issued
with
respect to the Collateral; or (c) in violation of any local, state or federal
law or regulation, including but not limited to any such law or regulation
pertaining to the protection of the environment or the protection of the
health
or safety of persons or animals, and any such law or regulation pertaining
to
the control of drugs, narcotics or other controlled substances Unless the
description of the Collateral set forth above indicates the Collateral shall
be
attached as a fixture to real property, Owner shall not, without the
express
prior written consent of SunTrust, cause or permit all or any part of the
Collateral to be affixed to real property so as to become a fixture as that
term
is defined or interpreted in the state in which the Collateral is at any
time
located.
The
Owner
will defend the Collateral against the claims and demands of all parties.
The
Owner will not pledge or grant any security interest
in any of the Collateral to any person or entity except SunTrust, or permit
any
lien or encumbrance to attach to any of the Collateral,
or any levy to be made on the Collateral, or any financing statement (except
financing statements In favor of SunTrust) to be on file against the Collateral.
Owner
hereby constitutes and appoints any officer or employee of SunTrust as its
true
and lawful attorney-in-,fact (a) to transfer the Collateral into SunTrust's
name
or the name of its nominee, but SunTrust's failure to do so shall not be
interpreted to be a waiver of any interest, and (b) to do and perform all
other
acts and things necessary, proper and requisite to carry out the intent of
this
Security Agreement The power herein granted shall be deemed to be coupled
with
an interest and may not be revoked until the Obligations have been paid in
full,
including all expenses payable by Owner.
The
Owner
agrees to pay on demand all legal expenses and reasonable attorneys' fees
(in
the amount of 15% of the principal and interest
secured hereby if this agreement is governed by the laws of Georgia), as
permitted by applicable law, any appraisal fees and all
expenses incurred or paid by SunTrust in protecting and enforcing the rights
of
SunTrust under this Security Agreement, including SunTrust's
right to take possession of the Collateral and its proceeds, and to hold,
prepare for sale, sell and dispose of the Collateral.
This
Security Agreement shall be a continuing agreement and shall remain in full
force and effect irrespective of any interruptions in the
business relations of the Borrower with SunTrust and shall apply to any ultimate
balance which shall remain due by the Borrower to SunTrust; provided, however,
that the Owner may by written notice terminate this Security Agreement with
respect to all Obligations of the Borrower incurred or contracted by the
Borrower or acquired by SunTrust after the date on which such notice is
personally delivered
to or mailed via registered mail and accepted by the Borrower's lending officer.
Blanket
Security Interest.
Owner
acknowledges and agrees that this Security Agreement and any financing statement
filed in connection
with this Security Agreement is intended to cover and does cover all assets
of
the Owner, wherever located, whether now owned
or
subsequently acquired or arising, and all proceeds and products thereof and
includes, but is not limited to all of the Owner's (a)
Accounts, insurance refund claims and all other insurance claims and proceeds,
tax refund claims, license fees. rents, contract rights,
Instruments, certificates of deposit, documents, tangible chattel paper,
electronic chattel paper, promissory notes, drafts, acceptances
and other forms of obligations and receivables, whether or not earned by
performance; (b) Inventory; (c) Equipment; (d) General
Intangibles; (e) Demand, time, savings, passbook and other deposit accounts
of
the Owner with all banks, credit unions, savings
and loan associations and other financial institutions which are now owned
or
hereafter acquired by the Owner or in which the Owner
now
has or hereafter acquires any right, title or interest (Deposit Accounts);
and
(f) Commercial tort claims, letter of credit rights,
awards and other payments in respect of any taking and all insurance proceeds
in
respect of any of the foregoing, and all monies
and claims for money due and to become due to Owner under all its Accounts,
contract rights, leases and General Intangibles, all investment property
and
financial assets, all as said terms are defined in the Uniform Commercial
Code.
Accounts
a.
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The
Owner warrants that each and every Account, now owned or hereafter
acquired, is a bona fide existing obligation, valid and enforceable
against the account debtor, for goods sold or leased and delivered
or
services rendered in the ordinary course of business; it is subject
to no
dispute, defense or offset; the Owner has good title to the Account
and
has full right and power to grant SunTrust a security interest
in the
Accounts and the Owner will immediately notify SunTrust of any
Account to
which these warranties are or become untrue; the Owner agrees
that it will
not permit any return of merchandise, the sale of which gave
rise to any
of the Accounts, except in the usual and regular course of business;
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b.
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The
Owner shall maintain complete and accurate books of accounts
and records,
and its principal books and records, including all records concerning
Accounts shall be kept and maintained at the place(s) specified
above The
Owner shall not move such books and records without giving SunTrust
at
least 30 days prior written notice. All accounting records and
financial
reports furnished to SunTrust shall be maintained and prepared
in
accordance with generally accepted accounting principles consistently
applied It Is specifically agreed that SunTrust shall have and
the Owner
hereby grants to SunTrust a security interest in all books of
accounts and
records of the Owner and shall have access to them at any time
for
inspection, verification, examination and audit;
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c.
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The
Owner will prepare and deliver to SunTrust, at SunTrust's request
from
time to time, a listing and aging of all Accounts and any further
schedules or information with respect to Accounts that SunTrust
may
require;
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d.
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SunTrust
shall have the right at any time to notify account debtors of
its security
interest in the Accounts and supporting obligations and require
payments
to be made directly to SunTrust. The Owner hereby appoints SunTrust
and
any officer of SunTrust, as SunTrust may from time to time designate,
as
its attorneys-in-fact for the Owner, to sign and endorse in the
name of
the Owner, to give notice in the name of the Owner, and to perform
all
other actions necessary or desirable in the reasonable discretion
of
SunTrust to effect these provisions and carry out the intent
hereof, all
at the cost and expense of the Owner. The Owner hereby ratifies
and
approves all acts of such attorneys-in-fact and neither SunTrust
nor any
other such attorneys-in-fact will be liable for any acts of commission
or
omission nor for any error of judgment. This power being coupled
with an
interest is irrevocable so long as any Account of General Intangible
pledged to SunTrust remains unpaid and the Borrower has any unpaid
Obligations to SunTrust The costs of such collection and enforcement,
including attorneys' fees and out-of-pocket expenses, shall be
borne
solely by the Owner whether the same are incurred by SunTrust
or the
Owner;
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e.
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At
the option of SunTrust, all payments on the Accounts received
by the Owner
shall be remitted to SunTrust in their original form on the day
of
receipt; all notes, checks, drafts and other instruments so received
shall
be duly endorsed to the order of SunTrust. At SunTrust's election,
the
payments shall be deposited into a special deposit account ("Special
Account") maintained with SunTrust. SunTrust may designate with
each such
deposit the particular Account upon which payment was made The
Special
Account shall be hold by SunTrust as additional security for
the
Obligations. Prior to depositing payments on the Accounts into
the Special
Account, the Owner agrees that it will not commingle such payments
with
any of the Owner's funds or property, but will hold them separate
and
apart and in trust for SunTrust. SunTrust will have the power
to withdraw
funds from the Special Account. SunTrust may at any time and
from time to
time, in its sole discretion, apply any part of the funds in
the Special
Account to the Obligations whether or not the same is due. Upon
full and
final satisfaction of the Obligations (including without limitation
all
fees and expenses owing to SunTrust or its attorneys), plus termination
of
any commitment to extend additional funds, SunTrust will pay
to the Owner
any excess funds, whether received by SunTrust as a deposit in
the Special
Account or, as a direct payment on any of the Accounts;
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f.
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If
any of the Accounts arise out of contracts with the United States
or any
department, agency, or instrumentality thereof, the Owner will
immediately
notify SunTrust in writing and execute any instruments and take
any steps
required by SunTrust in order, that all moneys due and to become
due under
such contracts shall be assigned to SunTrust and in order that
proper
notice be given under the Federal Assignment of Claims Act;
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g.
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SunTrust
shall not be liable and shall suffer no loss on account of loss
or
depreciation of any Account due to acts or omissions of SunTrust
unless
SunTrust's conduct is willful and malicious, and SunTrust shall
have no
duty to take any action to preserve the Collateral or collect
Accounts;
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h.
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Upon
request by SunTrust, the Owner will note on its records concerning
the
Accounts, a notation of the security interest under this Security
Agreement, which notation must be satisfactory to SunTrust in
both form
and content;
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i.
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SunTrust
may enforce collection of any Account and supporting obligation
by suit or
otherwise and may surrender, release or exchange all or any part
thereof,
or compromise, extend or renew the same for any period. All monies
so
received by SunTrust may in SunTrust's sole discretion, be either
(i)
applied by SunTrust directly toward payment of all or any part
of the
Obligations, whether or not then due, in such order of application
as
SunTrust may determine; or (ii) deposited to the credit of Borrower
in an
account with SunTrust as security for payment of the Obligations
and
SunTrust may, from time to time, in its sole discretion, permit
Borrower
to use all or any part of the funds on deposit in said account
in the
normal course of business. Owner will promptly reimburse SunTrust
for all
expenses, including attorneys' fees and legal expenses, incurred
by
SunTrust in seeking to collect on or enforce collection of such
amounts;
and
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j.
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After
notice from SunTrust, Owner will forthwith, upon receipt, transmit
and
deliver to SunTrust, in the form received, all cash, checks,
drafts,
items, chattel paper and other instruments or writing for the
payment of
money (properly endorsed, where required, so that such items
may be
collected by Sun Trust) which may be received by Owner at any
time in full
or partial payment or otherwise as proceeds of any of the Accounts
After
such notice from SunTrust, Owner will not commingle any such
proceeds with
any other of its funds or property, but will hold them separate
and apart
from Owner's own funds or property and in express trust for SunTrust
until
delivery is made to SunTrust; and
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k.
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To
protect SunTrust's rights hereunder, Owner hereby constitutes
any officer
or employee of SunTrust its true and lawful attorney-in-fact
with full
power of substitution to endorse or sign the name of Owner upon
any
invoice, freight or express xxxx, or xxxx of lading relating
to any
Accounts covered hereby and to notify the post office authorities
to
change the address for delivery of Owner's mail relating to the
Accounts
to an address designated by SunTrust and to receive, open, and
dispose of
all mail addressed to Owner relating to the Accounts and to do
and perform
all other acts and things necessary, proper and requisite to
carry out the
intent of this Security Agreement. This power shall be deemed
to be
coupled with an interest and may not be revoked by Owner Until
the
Obligations have been paid in
full.
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Inventory.
a.
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The
Owner agrees to maintain books and records pertaining to the
Inventory in
such detail, form and scope as SunTrust shall require. The Owner
shall
promptly advise SunTrust of any substantial changes relating
to the type
or quantity of the inventory or any event which would have a
material
effect on the value of the Inventory or on the security interest
granted
to SunTrust.
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b.
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If
the Inventory remains in the possession or control of any of
the Owner's
agents or processors, the Owner shall notify such agents or processors
of
SunTrust's security interest, and upon request, instruct them
to hold such
Inventory for SunTrust's account and subject to SunTrust's
instruction.
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c.
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The
Owner will prepare and deliver to SunTrust, at SunTrust's request
from
time to time, a listing of all Inventory and suchinformation
regarding the
Inventory as SunTrust may require.
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d.
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SunTrust
may require the Owner to assemble the Inventory and make it available
to
SunTrust at a place to be designated by SunTrust which is reasonably
convenient. SunTrust may take possession of the Inventory without
a court
order.
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e.
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Until
default hereunder, Owner may, unless otherwise provided in this
Security
Agreement, in the ordinary course of business, at its own expense,
sell,
lease or furnish under contract of service any of the Inventory
normally
held by Owner for such purpose.
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All
Collateral has been produced in compliance with the Fair Labor Standards
Act or
other applicable wage and employee law, rule, regulation or order, and
that no
existing or future liability shall occur as a result thereof. The Owner
may
contest, in good faith, the applicability of any such law, rule, regulation
or
order, including prosecuting any appeals, so long as SunTrust's interest
in the
Collateral, in the opinion of SunTrust, is not jeopardized as a result.
Insurance,
Taxes and Assessments.
The
Owner shall at all times keep insurable Collateral insured against any
and all
risks, including, without limitation, fire, and such other insurance,
including
but not limited to flood insurance, as may be required by SunTrust from
time to
time, and in such amounts as may be satisfactory to SunTrust. Insurance
may be
purchased from an insurer of the Owner's choice, except as otherwise
required by
law. All such insurance policies are to be made payable to SunTrust,
in the
event of loss, under a standard non-contributory "mortgagee", "lender",
or
"secured party" clause and shall contain a breach of warranty provision
acceptable to SunTrust which shall establish SunTrust's right to be paid
the
insurance proceeds irrespective of any action, inaction, breach of warranty
or
conditions, or negligence of Owner or any other person or entity with
respect to
such policies. All such insurance policies shall provide for a minimum
of thirty
days written notice to SunTrust prior to cancellation. Owner appoints
SunTrust
attorney-in fact to file claims under, any insurance policies, to receive,
receipt and give acquittance for any payments that may be payable to
Owner
thereunder, and to execute any and all endorsements, receipts, releases,
assignments, reassignments, or other documents that may be necessary
to effect
the collection, compromise or settlement of any claims under any such
insurance
policies, which power of attorney shall be deemed coupled with an interest
and
irrevocable so long as SunTrust has a security interest in any of the
Collateral
Owner shall provide proof of such insurance as requested by SunTrust.
The Owner
shall pay and discharge all taxes, assessments and charges of every kind
prior
to the date when such taxes, assessments or charges shall become delinquent
and
provide proof of such payments to SunTrust, upon request. However, nothing
contained in this Security Agreement shall require the Owner to pay any
such
taxes, assessments and charges so long as it shall contest its validity
in good
faith and shall post any bond or security required by SunTrust against
the
payment. Upon the failure of the Owner to purchase required insurance
or to pay
such required amounts, SunTrust, at its option, and at the Owner's expense,
may
obtain such insurance or pay such taxes, assessments, and charges. In
addition,
SunTrust may from time to time, in its sole discretion, perform any undertakings
of the Owner which the Owner shall fail to perform and take any other
action
which SunTrust deems necessary for the maintenance or preservation of
any of the
Collateral, Any amounts so paid shall be included in the Obligations
secured by
the Collateral. At SunTrust's request, the Owner agrees to promptly reimburse
SunTrust on demand for all such expenses incurred by SunTrust, together
with
interest thereon from the date paid by SunTrust at the highest rate payable
on
the Obligations. Any insurance obtained by SunTrust, at its option, may
be
single or dual interest, protecting its rights, rights of the Owner or
joint
rights. Any insurance obtained by SunTrust may provide, at its option,
that such
insurance will pay the lesser of the unpaid balance of the Obligations
or the
repair or replacement value of the Collateral SunTrust may use the proceeds
of
any insurance obtained by Owner or by SunTrust to repair or replace the
Collateral or if SunTrust elects to do so, to repay part or all of the
Obligations, whether or not then due, and in such order as SunTrust may
determine, and the Borrower will still be responsible to repay any remaining
unpaid balance of the Obligations. The whole or partial loss or destruction
of
all or any part of the Collateral shall not affect or impair the obligation
of
any person or entity liable under the Obligations.
Additional
Covenants and Agreements if Borrower Is Different than
Owner.
If
Borrower is different than Owner, then so long as any of the Obligations
remain
outstanding or so long as this Security Agreement shall remain in effect
Owner
covenants and agrees as follows: (a) Owner hereby expressly consents
to and
adopts any agreements which Borrower has entered into or will enter into
with
SunTrust regarding any of the Obligations or the Collateral; (b) Owner
hereby
agrees that the Collateral shall be subject to disposition in accordance
with
the terms and conditions of this Security Agreement and any agreements
executed
by Borrower in connection with any of the Obligations or the Collateral;
(c)
Owner will not be subrogated to SunTrust's rights to any other collateral
and
any proceeds thereof in which SunTrust holds a security interest to secure
payment of any of the Obligations; (d) Owner agrees that SunTrust may
at any
time and from time to lime, without notice to, or the consent of, Owner:
(i)
retain any of the Collateral in satisfaction of any of the Obligations
to the
extent permitted by applicable law, (ii) retain or obtain a security
interest or
lion in any property in addition to the Collateral
to secure payment or performance of any of the Obligations, (iii) allow
or cause
any Obligations to be incurred, (iv) retain or obtain persons or entities
that
are primarily or secondarily obligated upon any of the Obligations other
than
the Borrower, (v) extend or renew any of the Obligations for any period
(whether
or not longer than the original term), (vi) release, compromise or modify
any of
the Obligations, (vii) release, in whole or in part, any person or entity
primarily or secondarily obligated upon any of the Obligations or enter
into any
compromise with respect to the obligation of any such person or entity
relative
to any of the Obligations, (viii) release, with or without consideration,
SunTrust's security interest or lien in any property other than the Collateral
which may at any time secure payment or performance of any of the Obligations,
(ix) accept substitutions or exchanges for any property other than the
Collateral which may at any time secure payment or performance of any
of the
Obligations, (x) exercise its rights as a secured party and dispose of
the
Collateral without having first resorted to any property securing any
of the
Obligations other than the Collateral and without having first proceeded
against
or demanded payment from any person or entity primarily or secondarily
obligated
upon any of the Obligations; and (e) Owner specifically waives any and
all
rights pursuant to O.C.G.A. Sec. 10-7-24 or T.C A. Sec 00-00-000 et seq.
If this
Security Agreement is governed by the laws of Georgia or Tennessee, and
the same
or similar provision contained in the Uniform Commercial Code of any
other state
or states which may govern this Security Agreement.
Events
of Default.
As used
herein the term "Obligor" shall individually and collectively refer to
Borrower,
Owner and any other person or entity that is primarily or secondarily
liable
upon all or any part of the Obligations secured hereby and any person
of entity
that has conveyed or may hereafter convey any security interest of lien
to
SunTrust in any real or personal property to secure payment of all or
any part
of the Obligations. Unless prohibited by applicable law, an "Event of
Default"
shall occur hereunder upon the occurrence of any one or more of the following
events or conditions:
a.
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the
failure by any Obligor to pay when due, whether by acceleration
or
otherwise, any sum constituting all or any part of the
Obligations;
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b.
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the
failure of any Obligor to perform any covenant, promise or
obligation
contained in this Security Agreement, any document evidencing
any of the
Obligations, or any other agreement to which any Obligor
and SunTrust are
parties;
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c.
|
the
breach of any of any Obligor's representations or warranties
in this
Security Agreement or any other agreement with SunTrust;
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d.
|
the
failure of any Obligor to pay when due any amount owed to
any creditor
other than SunTrust under a written agreement
calling for the payment of money;
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e.
|
the
death, declaration of incompetency, dissolution, liquidation,
merger,
consolidation, termination or suspension of usual business
of any Obligor
or the sale or transfer by any Obligor of all or substantially
all of such
Obligor's assets other than in the ordinary course of business;
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f.
|
any
person or entity, or any group of related persons or entities,
shall have
or obtain legal or beneficial ownership of a majority of
the outstanding
voting securities or rights of any Obligor that is not a
natural person,
other than any person or entity, or any group of related
persons or
entities that has such majority ownership as of the date
of this Security
Agreement;
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g.
|
the
insolvency or inability to pay debts as they mature of any
Obligor, the
filing of any petition or the commencement of any proceeding
by an Obligor
for relief under any bankruptcy of insolvency law, or any
law relating to
the relief of debtors, readjustment of indebtedness, debtor
reorganization, or composition or extension of debt;
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h.
|
the
entry of a judgment or the issuance or service of any attachment,
levy or
garnishment against any Obligor or the property of any Obligor
or the
repossession or seizure of property of any Obligor;
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i.
|
any
deterioration or impairment of the Collateral or, any decline
or
depreciation in the value of the Collateral (whether actual
or reasonably
anticipated) which causes the Collateral in the judgment
of Sun Trust to
become unsatisfactory as to character or value;
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j.
|
a
determination by SunTrust that a material adverse change
in the financial
condition of any Obligor has occurred since the
date of this Security Agreement;
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k.
|
any
Obligor commits fraud or makes a material misrepresentation
at any time in
connection with this Security Agreement, the
Obligations or the Collateral;
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l.
|
the
Collateral or any part thereof is located for more than thirty
consecutive
days outside the state or states in which the Collateral
is to be located
pursuant to this Security Agreement or if the Collateral
or any part
hereof is removed from such state with the intent that it
will be located
outside such state for more than thirty days; or
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m.
|
any
other act or circumstance occurs or exists which leads SunTrust
to deem
itself insecure.
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Remedies
Upon Default; Acceleration of Obligations.
Unless
prohibited by applicable law, the Obligations secured hereby shall
automatically
and simultaneously mature and become due and payable, without notice
or demand,
upon the filing of any petition or the commencement of any proceeding
by an
Obligor for relief under any bankruptcy or insolvency law, or any
law relating
to the relief of debtors, readjustment of indebtedness, debtor reorganization,
or composition or extension of debt. Unless prohibited by applicable
law, upon
the occurrence of any one or more of the other Events of Default
describe above,
the Obligations secured hereby shall, at the option of SunTrust,
immediately
mature and become due and payable, without notice or demand if all
or any part
of the Obligations secured hereby are not paid as and when due and
payable,
whether by acceleration or otherwise, then SunTrust may, at its option,
without
notice or demand of any kind: (a) transfer all or any part of the
Collateral
into the name of SunTrust or its nominee, at Owner's expense, with
or without
disclosing that such Collateral is subject to SunTrust's security
interest; (b)
require the Owner to assemble the Collateral and make it available
to SunTrust
at a place to be designated by SunTrust which is reasonably convenient,
enter
upon premises upon which the Collateral is located and, to the extent
permitted
by law without legal process, take exclusive possession of the Collateral,
and
redeem the Collateral, or any part thereof (irrespective of redemption
penalty);
(c) appropriate and apply toward payment of such of the Obligations,
and in such
order of application, as SunTrust may from time to time elect, all
or any part
of any balances, credits, items or monies in any bank deposit or
deposit account
constituting a part of the Collateral; (d) sell the Collateral at
public or
private sale, either in whole or in part, and SunTrust may purchase
the
Collateral at any such public sale and at any private sale as permitted
by law.
Such sale shall result In the sale, conveyance and disposition of
all right,
title and interest of Owner in all or any part of the Collateral
which is the
subject of such a disposition. SunTrust is authorized as attorney-in-
fact for
Owner to sign and execute any transfer, conveyance or instrument
in writing that
may be necessary or desirable to effectuate any such disposition
of the
Collateral, which power shall be coupled with an interest; and (e)
exercise all
other rights of a secured party under the Uniform Commercial Code
and all other
rights under law or pursuant to this Security Agreement, all of which
shall be
cumulative If any notification of intended disposition of any Collateral
is
required by law, reasonable notification shall be deemed given if
written notice
is deposited in the US. Mail, first class or certified postage prepaid,
addressed to Owner and such other persons or entities as SunTrust
deems to be
appropriate, stating all items required by applicable statutes, including
the
time and place of any public sale, or the time and place of any public
sale or
the time after which any private sale or disposition is to be made,
at least ten
(10) days prior thereto. The proceeds of any disposition of the Collateral
shall
be applied in the following order (i) First, to pay all costs and
expenses
associated with the retaking, holding, preparation and disposition
of the
Collateral; (ii) Then to pay attorneys' fees; (iii) Next, to pay
all accrued but
unpaid interest upon the Obligations in such order as SunTrust may
determine at
its discretion; and (iv) Finally, to all unpaid principal outstanding
upon the
Obligations, whether or not due and payable, in such order as SunTrust
may
determine at its discretion. Any remaining surplus shall be paid
to Owner or
otherwise in accordance with law if the proceeds of such disposition
are
insufficient to pay the Obligations in full, Borrower and all other
persons or
entities liable thereon shall remain fully obligated to SunTrust
for the unpaid
balance thereof.
Execution
by More than One Party.
The term
"Owner" as used in this Security Agreement shall, if this instrument is
signed
by more than one party, mean the "Owner and each of them" and each shall
be
jointly and severally obligated and liable. If any party is a partnership
or
limited liability company, the agreements and obligations on the part of
the
Owner shall remain in force and applicable regardless of any changes in
the
parties composing the partnership or limited liability company and the
term
"Owner" shall include any altered or successive partnership or limited
liability
company and the predecessor partnership or limited liability company and
its
partners or members/managers shall not be released from any obligation
or
liability.
Waivers
by the Owner.
To the
extent permitted by applicable law, the Owner hereby waives (a) notice
of
acceptance of this Agreement and of any extensions or renewals of credit
by
SunTrust to the Borrower; (b) presentment and demand for payment of the
Obligations; (c) protest and notice of dishonor or default to the Owner
or to
any other party with respect to the Obligations; (d) all other notices
to which
the Owner might otherwise be entitled; and (e) if for business purposes,
the
benefit of the Homestead Exemption. To the extent permitted by applicable
law,
the Owner further waives any right to require that any action be brought
against
the Borrower or any other party, the right to require that resort be
had to any
security or to any balance of any deposit account or credit on the books
of
SunTrust in favor of the Borrower or any other party, the right to redeem
the
Collateral and to object to SunTrust's proposal to retain the Collateral
in
satisfaction of any of Obligations and any right to obtain injunctive
or other
relief relative to SunTrust's sale or other disposition of the Collateral
and to
recover losses caused by SunTrust's failure to approve or correct any
list of
Collateral provided to SunTrust for any purpose by any person or entity.
No
Obligation to Extend Credit.
This
Security Agreement shall not be construed to impose any obligation
on Sun Trust
to extend or continue to extend any credit at any time.
Indemnity.
The
Owner agrees to indemnify and hold harmless SunTrust, its subsidiaries,
affiliates, successors, and assigns and their respective agents, directors,
employees, and officers from and against any and all complaints, claims,
defenses, demands, actions, bills, causes of action (including, without
limitation, costs and attorneys' fees), and losses of every nature
and kind
whatsoever, which may be raised or sustained by any directors, officers,
employees, shareholders, creditors, regulators, successors in interest,
or
receivers of the Borrower or any third party as a result of or arising
out of.
directly or indirectly, SunTrust extending credit as evidenced by the
Obligations to the Borrower, and taking the Collateral as security
for the
Obligations, and the Owner agrees to be liable for any and all judgments
which
may be recovered in any such action, claim, proceeding, suit, or xxxx,
including
any compromise or settlement thereof, and defray any and all expenses,
including, without limitation, costs and attorneys' fees, that may
be incurred
in or by reason of such actions, claims, proceedings, suits, or bills
This
obligation to indemnify shall survive the payment of the Obligations
and the
satisfaction of this Security Agreement
Additional
Documentation.
The Bank
is authorized to file such financing statements and amendments as the
Bank deems
necessary to perfect, continue or assure its security interest in the
Collateral
and the Owner hereby ratifies any financing statement filed previously
by the
Bank,. The Owner will deliver such instruments of future assignment
or assurance
as the Bank may from time to time request to carry out the intent of
this
Security Agreement, and will join with the Bank in executing any documents
in
form satisfactory to the Bank, and pay any cost of filing the same,
including
all recordation, transfer and other taxes and fees, deemed advisable
by the
Bank.
Environmental
Requirements.
No part
of the Collateral has been, and never will be so long as this Security
Agreement
remains a lien on the Collateral, used for the generation, collection,
manufacture, storage, treatment, disposal, release or threatened release
of any
hazardous substance, as those terms are defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, 42
U.S.C., Section 9601, et seq ("CERCLA"), Superfund Amendments and
Reauthorization Act ("XXXX"), applicable state laws, or regulations
adopted
pursuant to either of the foregoing. The Owner agrees to comply with
any
federal, state or local law, statute, ordinance or regulation, court
or
administrative order or decree or private agreement regarding materials
which
require special handling in collection, storage, treatment or disposal
because
of their impact on the environment ("Environmental Requirements") The
Owner
agrees to indemnify and hold SunTrust harmless against any and all
claims,
losses and expenses resulting from a breach of this provision of this
Security
Agreement and the Owner will pay or reimburse SunTrust for all costs
and expense
for expert opinions or investigations required or requested by SunTrust
which,
In SunTrust's sole discretion, are necessary to ensure compliance with
this
provision of this Security Agreement. The obligation to indemnify shall
survive
the payment of the Obligations and the satisfaction of this Security
Agreement.
Successor
In Interest; SunTrust as Collateral Agent.
This
Security Agreement shall be binding upon the Owner, its successors
and assigns,
and the benefits hereof shall inure to SunTrust, its successors and
assigns.
SunTrust Bank shall serve as collateral agent on behalf of itself
and present
and future affiliates.
Miscellaneous.
(a) Each
and every power given herein is coupled with an interest and is irrevocable
by
death or otherwise. (b) The captions of the paragraphs of this Security
Agreement are for convenience only and shall not be deemed to constitute
a part
hereof or used in construing the intent of the parties. (c) If any
part of any
provision of this Security Agreement shall be invalid or unenforceable
under
applicable law, such part shall be ineffective to the extent of such
invalidity
only, without in any way affecting the remaining parts of such provision
or the
remaining provisions of this Security Agreement. (d) This Security
Agreement
shall not be modified or amended except in a writing signed by Owner
and
SunTrust. (e) All representations, warranties, covenants and agreements
contained heroin or made in writing by Owner in connection herewith
shall
survive the execution and delivery of this Security Agreement and
any and all
notes, other agreements, documents and writings relating to or arising
out of
any of the foregoing or any of the Obligations. (f) All rights and
remedies of
SunTrust expressed herein are in addition to all other rights and
remedies
possessed by SunTrust under applicable law or other agreements, including
rights
and remedies under any other agreement or instrument relating to
any of the
Obligations or any security therefor. (g) No waiver by SunTrust of
any of its
rights or remedies or of any default shall operate as a waiver of
any other
right or remedy or of any other default or of the same right or remedy
or of the
same default on a future occasion No delay or omission on the part
of SunTrust
in exercising any right or remedy shall operate as a waiver thereof,
and no
single or partial exercise by SunTrust of any right or remedy shall
preclude any
other or further exercise thereof or the exercise of any other right
or remedy.
No action of SunTrust permitted hereunder or under any agreement
or instrument
relating to any of the Obligations or any security therefor shall
impair or
affect the rights of SunTrust in and to the Collateral. (h) All terms
as defined
herein shall include both the plural and singular, where applicable.
(i) All
notices or communications given to Owner or SunTrust pursuant to
the terms of
this Security Agreement shall be in writing and given to Owner and
SunTrust at
the address set forth below. Unless otherwise specifically provided
herein to
the contrary, such written notices and communications shall be delivered
by hand
or overnight courier service, or mailed by first class mail, postage
prepaid,
addressed to the parties hereto at the addresses referred to herein
or to such
other addresses as either party may designate to the other party
by a written
notice given in accordance with the provisions of this Security Agreement.
Any
written notice delivered by hand or by overnight courier service
shall be deemed
given or received upon receipt. Any written notice delivered by U
S. Mall shall
be deemed given or received on the third (3rd) business day after
being
deposited in the U S. Mail. (j) SunTrust shall not be responsible
or liable for
its failure to give notice to Owner of any default In the payment
of any amounts
that might become due and owing with respect to the Collateral nor
shall
SunTrust be responsible or liable for Sun Trust's failure to collect
any amounts
payable with respect to the Collateral. (k) SunTrust shall be under
no
obligation to monitor the market value of any Collateral, to advise
the Owner of
such market value, or to take any action whatsoever to preserve the
value of any
Collateral by selling, exchanging or otherwise disposing of such
Collateral in
order to avoid any loss to the Owner resulting from a decline in
the market
value of such Collateral; and (l) SunTrust shall be under no obligation
to pay
any amounts owing with respect to any Collateral. (m) This Agreement
is in
addition to and not in replacement of any other agreement between
Owner and
SunTrust. (n) The term Owner shall include all persons signing below
as Owner
and the obligation of such Owners hereunder shall be their joint
and several
obligations.
WAIVER
OF JURY TRIAL.
OWNER
AND SUN T'RUSTHEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT EITHER
OF
THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT'TO,ANY LITIGATION, WHETHER IN
CONTRACT OR TORT, AT LAW OR IN EQUITY, BASED HEREON OR ARISING OUT OF, UNDER
OR
IN CONNECTION WITH THIS AGREEMENT AND ANY OTHER DOCUMENT' OR INSTRUMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS AGREEMENT, OR ANY COURSE
OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF
ANY PARTY HERETO THIS. PROVISION IS A MATERIAL INDUCEMENT FOR SUNTRUST ENTERING
INTO OR ACCEPTING THIS AGREEMENT„ FURTHER,
OWNER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF SUNTRUST, NOR
SUNTRUS'T'S COUNSEL,
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUNTRUSTWOULD NOT IN THE EVENT
OF
SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGH T TO JURY TRIAL PROVISION.
Addresses
for Purpose of Notice
Owner
Address: 0000 00xx Xxxxxx X., Xxx. 000, Xxxxxxxxx, XX 00000
SunTrust
Address: 000 Xxxxxxxxx
Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000
This
Security Agreement has been executed by the undersigned, under seal, as of
the
date first written above.
Debut
Broadcasting, Inc.
By:
/s/
Xxxxxx Xxxxxxxx
Xxxxxx
Xxxxxxxx, Chairman & President
And:
/s/
Xxxxxx Xxxxxx
Xxxxxx
Xxxxxx, CEO