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RETURN TO:
Xxxxxxxxx X. Xxxxxxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
DEED TO SECURE DEBT AND SECURITY AGREEMENT
THIS DEED TO SECURE DEBT AND SECURITY AGREEMENT (hereinafter
referred to as this "Deed") made and entered into this___day of
February, 1996, by and between JACOR BROADCASTING OF ATLANTA, INC., a Georgia
corporation, having a mailing address in care of Jacor Communications, Inc.,
1300 PNC Center, 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, Attn: R.
Xxxxxxxxxxx Xxxxx (hereinafter referred to as "Grantor"), and BANQUE PARIBAS,
having a mailing address at 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxx Xxxxxx (hereinafter referred to as "Grantee"),
as Agent for the Banks, the Co-Agents and the Interest Rate Providers as those
terms are defined in that certain Credit Agreement (the "Credit Agreement")
dated as of February__, 1996, among Jacor Communications, Inc., Agent
and each of The First National Bank of Boston and Bank of America Illinois, as
Co- Agents. All capitalized terms not otherwise defined herein shall be defined
as set forth in the Credit Agreement.
W I T N E S S E T H:
That for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other valuable consideration, the receipt and sufficiency
whereof are hereby acknowledged, and in order to secure the indebtedness and
other obligations of Grantor hereinafter set forth, Grantor does hereby grant,
bargain, sell, convey, assign, transfer and set over unto Grantee and the
successors and assigns of Grantee all of the following described land and
interests in land, estates, easements, rights, improvements, property, fixtures,
equipment, furniture,
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furnishings, appliances and appurtenances (hereinafter collectively referred to
as the "Premises"):
(a) All that tract or parcel of land and easements more particularly described
in Exhibit "A" attached hereto and by this reference made a part hereof
(hereinafter referred to as the "Land").
(b) All buildings, structures and improvements of every nature whatsoever now or
hereafter situated on the Land, and all gas and electric fixtures, radiators,
heaters, engines and machinery, boilers, ranges, elevators and motors, plumbing
and heating fixtures, carpeting and other floor coverings, fire extinguishers
and any other safety equipment required by governmental regulation or law,
washers, dryers, water heaters, mirrors, mantels, air conditioning apparatus,
refrigerating plants, refrigerators, cooking apparatus and appurtenances, window
screens, awnings and storm sashes, which are or shall be attached to said
buildings, structures or improvements and all other furnishings, furniture,
fixtures, machinery, equipment, appliances, building supplies and materials and
other items used or intended to be used in the construction of any buildings or
improvements, books and records, chattels, inventory, accounts, farm products,
consumer goods, general intangibles and personal property of every kind and
nature whatsoever now or hereafter owned by Grantor and located in, on or about,
or used or intended to be used with or in connection with the use, operation or
enjoyment of the Premises (excluding, however, licenses and permits issued by
the FCC, as hereinafter defined, to the extent that it is unlawful to grant a
security interest in or security title to any such licenses and permits or to
the extent that the grant of any such security interest in any such license or
permit would result in the forfeiture of any such license or permit or a default
under any such license or permit), including all extensions, additions,
improvements, betterments, after-acquired property, renewals, replacements and
substitutions, or proceeds from a permitted sale of any of the foregoing, and
all the right, title and interest of Grantor in any such furnishings, furniture,
fixtures, machinery, equipment, appliances and
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personal property subject to or covered by any prior security agreement,
conditional sales contract, chattel mortgage or similar lien or claim, together
with the benefit of any deposits or payments now or hereafter made by Grantor or
on behalf of Grantor, all tradenames, trademarks, servicemarks, logos and
goodwill related thereto which in any way now or hereafter belong, relate or
appertain to the Premises, or any part thereof or are now or hereafter acquired
by Grantor and all inventory, accounts, chattel paper, documents, equipment,
fixtures, farm products, consumer goods and general intangibles constituting
proceeds acquired with cash proceeds of any of the property described
hereinabove, all of which are hereby declared and shall be deemed to be fixtures
and accessions to the Land and a part of the Premises as between the parties
hereto and all persons claiming by, through or under them, and which shall be
deemed to be a portion of the security for the indebtedness herein described and
to be secured by this Deed. The location of the above described collateral is
also the location of the Land.
(c) All easements, rights-of-way, strips and gores of land, vaults, streets,
ways, alleys, passages, sewer rights, waters, water courses, water rights and
powers, minerals, flowers, shrubs, crops, trees, timber and other emblements now
or hereafter located on the Land or under or above the same or any part or
parcel thereof, and all estates, rights, titles, interests, privileges,
liberties, tenements, hereditaments and appurtenances, reversion and reversions,
remainder and remainders, whatsoever, in any way belonging, relating or
appertaining to the Premises or any part thereof, or which hereafter shall in
any way belong, relate or be appurtenant thereto, whether now owned or hereafter
acquired by Grantor.
(d) All income, rents, issues, profits and revenues of the Premises from time to
time accruing (including without limitation all payments under leases or
tenancies,
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proceeds of insurance, condemnation payments, tenant security deposits whether
held by Grantor or in a trust account, and escrow funds), and all the estate,
right, title, interest, premises, possession, claim and demand whatsoever at
law, as well as in equity, of Grantor of, in and to the same; reserving only the
right to Grantor to collect and apply the same (other than insurance proceeds
and condemnation payments) so long as no Event of Default (as hereinafter
defined) exists.
(e) Any and all sales contracts, now existing or hereafter to be signed by
Grantor, for all or any portion of the Premises.
TO HAVE AND TO HOLD the Premises and all parts, rights, members
and appurtenances thereof, to the use, benefit and behalf of Grantee and the
successors and assigns of Grantee, IN FEE SIMPLE forever; and Grantor covenants
that Grantor is lawfully seized and possessed of the Premises as aforesaid, and
has good right to convey the same, that the same is unencumbered except for
matters of record, and that Grantor does warrant and will forever defend the
title thereto against the claims of all persons whomsoever, except as to those
matters of record.
This conveyance is intended to operate and is to be construed
as a deed passing the title to the Premises to Grantee and is made under those
provisions of the existing laws of the State of Georgia relating to deeds to
secure debt, and not as a mortgage, and is given to secure the following
described indebtedness:
(a) The obligations of Grantor arising under or defined in that certain
Subsidiary Guaranty (the "Guaranty") of even date herewith made by the
Guarantors (as defined in the Guaranty) in favor of Grantee and all extensions
and renewals thereof, all amendments thereto and all obligations of Grantor
under the other Loan Documents. All
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references to the Guaranty shall mean the Guaranty and any amendments made
thereto from time to time;
(b) Any and all additional advances made by Grantee to protect or preserve the
Premises or the lien hereof on the Premises, or for Taxes (as hereinafter
defined) or insurance premiums as hereinafter provided (whether or not the
original Grantor remains the owner of the Premises at the time of such
advances); and
(c) Any and all other indebtedness, however incurred, which may now or hereafter
be due and owing from Grantor to Grantee, now existing or hereafter coming into
existence, however and whenever incurred or evidenced, whether express or
implied, direct or indirect, absolute or contingent, or due or to become due,
and all renewals, modifications, consolidations and extensions thereof (all of
the foregoing described in paragraphs (a), (b) and (c) being collectively
referred to as the "Obligations").
Should the Obligations be paid according to the tenor and
effect thereof when the same shall become due and payable, then this Deed shall
be cancelled and surrendered.
Grantor hereby further covenants and agrees with Grantee as
follows:
ARTICLE I
1.1 Payment of Obligations. Grantor will pay, or cause to be paid, the
Obligations when due.
1.2 Taxes, Liens, and Other Charges.
(a) Taxes. Grantor will pay, or cause to be paid before they become delinquent:
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All of the following (hereinafter collectively called the
"Taxes"): all taxes, assessments and governmental charges and levies upon it or
its income, profits or property, except those which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves
have been set aside in accordance with Generally Accepted Accounting Principles.
(b) On the first day of each month while there exists any one or more Events of
Default, a deposit with Grantee equal to one-twelfth of the annual charges, as
estimated by Grantee, for the Taxes and premiums for insurance required under
Section 1.3, below. Such amount shall be held by or on behalf of Grantee and
shall be applied to pay such Taxes and premiums when the same become due.
Grantee shall not be required to pay any interest or earnings on such sums.
Grantor hereby pledges all such sums as additional collateral for the
Obligations. If the amount held by Grantee is not sufficient to pay the Taxes
and premiums when due, Grantor shall, promptly upon request of Grantee, pay to
Grantee any amount necessary to make up such deficiency.
(c) If Grantee is not establishing an escrow for Taxes, then within 20 days
after demand therefor, Grantor shall deliver to Grantee the original, or a
photostatic copy, of the official receipt evidencing payment of Taxes or other
proof of payment satisfactory to Grantee. Notwithstanding the provisions of
Section 1.2(a), any tax or special assessment which is a lien on the Premises
may be paid in installments provided that each installment is paid on or prior
to the date when the same is due without the imposition of any penalty.
(d) Except as otherwise permitted in the Credit Agreement, Grantor will not
suffer any mechanic's, materialman's, laborer's, statutory or other lien to be
created and to remain outstanding upon all or any part of the Premises.
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1.3 Insurance.
(a) Grantor will maintain with financially sound and reputable insurance
companies insurance on the Premises, including fixtures and all personal
property owned by Grantor and used in the operation of the Premises, in
accordance with Section 6.6 of the Credit Agreement, subject to the following
terms and conditions:
(i) Such insurance shall contain a provision requiring that the coverage
evidenced thereby shall not be terminated or materially modified without 30
days' prior written notice to Grantee. If Grantor fails to carry any insurance
required to be carried by Grantor under the terms of this Deed, Grantee, at its
option, may procure and maintain such insurance and Grantor will promptly
reimburse Grantee for any premiums paid by Grantee for such insurance. The
originals or appropriate certificates of all policies of insurance required to
be carried under this Deed, bearing notations evidencing the payment of premiums
or accompanied by other evidence satisfactory to Grantee of such payment, shall
be delivered to Grantee concurrently with the execution and delivery hereof.
Grantor shall deliver to Grantee a new policy (or certificate, in the case of
insurance for which only certificates have been previously furnished) bearing
such notation or accompanied by such other evidence as replacement for any
expiring policy at least 30 days before the date of such expiration.
(ii) All policies of insurance required by this Section 1.3 shall contain a
lender's loss payee endorsement in favor of Grantee and a waiver of insurer's
right of subrogation against funds paid under the lender's loss payee
endorsement. In case of a loss payable under such insurance for damage to or
destruction of the Premises, the right to adjust all claims under such insurance
policies (jointly with Grantor), and the application of the proceeds of any such
claim, are assigned to Grantee.
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Grantor hereby assigns to Grantee all amounts recoverable under any such policy.
Except as may be otherwise provided in tenant leases approved by the Grantee,
the amount collected by Grantee, at the option of Grantee, may be used in any
one or more of the following ways: (i) applied to the payment of any sums then
in default to Grantee hereunder; (ii) used to fulfill any of the covenants
contained herein which Grantor has failed to fulfill, as Grantee may determine;
(iii) unless the insurer denies liability to any insured, used to restore the
Premises to a condition satisfactory to Grantee on such terms and conditions as
Grantee may determine; (iv) released to Grantor; and (v) applied upon the
Obligations if the Obligations are then matured. Provided that there is no
continuing Event of Default hereunder, in the event of casualty causing less
than $100,000 in damage, the insurance proceeds will be disbursed to Grantor for
repair or restoration of the Premises. Grantee is hereby irrevocably appointed
by Grantor as attorney-in-fact of Grantor to assign any policy in the event of
the foreclosure of this Deed or other extinguishment of the Obligations, and
Grantor shall have no right to reimbursement for premiums unearned at the time
of any such assignment.
(iii) In the event of a conflict between any provisions of Section 1.3 and the
terms of the Subsidiary Security Agreement, as defined in the Credit Agreement,
relating to insurance, the provision in the Subsidiary Security Agreement will
control.
1.4 Condemnation. All awards heretofore or hereafter made by any public or
quasi-public authority to the present and any subsequent owner of the Premises
by virtue of an exercise of the right of eminent domain by such authority,
including any award for a taking of title, possession or right of access to a
public way, or for any change of grade of streets affecting the Premises, are
hereby assigned to Grantee and Grantee, at its option, is hereby authorized,
directed and empowered to collect and receive
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the proceeds of any such award from the authorities making the same and to give
proper receipts and acquittances therefor, and, at Grantee's election, may use
such proceeds in any one or more of the following ways: (a) use the same or any
part thereof to fulfill any of the covenants contained herein which Grantor has
failed to fulfill, as Grantee may determine, (b) use the same or any part
thereof to replace or restore the Premises to a condition satisfactory to
Grantee, (c) apply the same against the Obligations if the Obligations are then
matured, or (d) release the same to Grantor. Grantee will have the right to
intervene and participate (jointly with Grantor) in any proceedings for and in
connection with any such taking. Upon request of Grantee, Grantor will make,
execute and deliver all assignments and other instruments sufficient for the
purpose of assigning all such awards to Grantee free, clear and discharged of
all encumbrances. Provided that there is no continuing Event of Default
hereunder, in the event of a taking by condemnation or eminent domain resulting
in an award of less than $100,000, the award will be disbursed to Grantor for
restoration of the Premises (to the extent required for such restoration).
1.5 Care of Premises.
(a) Grantor will do all things necessary to maintain, preserve, protect and keep
the Premises in good repair, working order and condition in accordance with
Section 6.8 of the Credit Agreement.
(b) Grantor will not remove or demolish nor alter the structural character of
any improvement located on the Land (other than tenant improvements or other
improvements minor in nature to Grantor's business operations) without the
written consent of Grantee, subject, however, to the provisions of Section
1.5(a).
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(c) If the Premises or any part thereof is damaged by fire or any other cause,
Grantor will give immediate written notice thereof to Grantee.
(d) Grantor will comply or cause compliance with all laws, rules, regulations,
orders, writs, judgments, injunctions, decrees or awards to which it may be
subject in accordance with Section 6.7 of the Credit Agreement.
(e) If all or any part of the Premises shall be damaged by fire or other
casualty, Grantor will promptly restore the Premises to the equivalent of its
original condition or other condition satisfactory to Grantee; and if a part of
the Premises shall be damaged through condemnation, Grantor will promptly
restore, repair or alter the remaining portions of the Premises in a manner
satisfactory to Grantee. Notwithstanding the foregoing, Grantor shall not be
obligated to so restore unless, in each instance, Grantee agrees to make
available to Grantor (pursuant to a procedure satisfactory to Grantee) any net
insurance or condemnation proceeds actually received by Grantee hereunder in
connection with such casualty loss or condemnation, to the extent such proceeds
are required to defray the expense of such restoration; provided, however, that
the insufficiency of any such insurance or condemnation proceeds to defray the
entire expense of restoration shall in no way relieve Grantor of its obligation
to restore. In the event all or any portion of the Premises shall be damaged or
destroyed by fire or other casualty or by condemnation, Grantor shall promptly
deposit with Grantee, to be held in an interest-bearing account with interest
payable to Grantor, a sum equal to the amount by which the estimated cost of the
restoration of the Premises (as determined by Grantee in its good-faith
judgment) exceeds the actual net insurance or condemnation proceeds received by
Grantee in connection with such damage or destruction.
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1.6 Leases and Other Agreements Affecting Premises.
(a) Assignment. Grantor hereby transfers and assigns to Grantee all present and
future leases of any part of the Premises where the gross annual rental of such
Premises equals or exceeds $50,000 (the "Leases"), all guarantees of any
lessee's performance thereunder, and all rents, income, revenues and profits
arising out of the Premises, all as further security for the payment of the
Obligations. The rights assigned hereunder include but are not limited to all of
Grantor's rights (a) to make material modifications of the Leases; (b) to
terminate or to accept the surrender thereof; (c) to waive or release the
lessees from the observance or performance by the lessees of any material
covenant or condition of the Leases; and (d) to give any consent to any
assignment of the Leases or any sublease of any part of the Premises.
(b) Duties of Grantor. Grantor will observe and perform all covenants and
conditions to be observed or performed by the lessor under the Leases and
enforce the observance and performance of the Leases by the lessees. Grantor
will not cancel, surrender, terminate, or materially alter, amend or modify any
Leases, release any party liable thereunder or consent to the assignment of the
interests of any lessees without the prior written consent of Grantee which
consent will not be unreasonably withheld; and Grantee will be deemed to have
consented to any such items if Grantee fails to object thereto within 5 days of
receipt of a written request for Grantee's consent.
(c) Rights of Grantee. If Grantor fails to observe or perform any covenant or
condition to be observed or performed by Grantor under any of the Leases,
Grantee, without obligation to do so and without releasing Grantor from its
obligation to do so, may upon 10 days' prior written notice to Grantee, perform
such covenant or condition and, to the extent that Grantee incurs any
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costs or pays any monies in connection therewith, including any costs or
expenses of litigation, the costs and expenses will be due on demand and will be
included in the indebtedness secured hereby and will bear interest from the
incurring or payment thereof at the rate equal to four percent (4%) per annum in
excess of the Eurodollar Base Rate but not less than eighteen percent (18%) per
annum and not more than the highest rate permitted by applicable law (the
"Default Rate").
(d) Indemnification. Grantee will not be obligated to perform or discharge any
obligation or duty of Grantor under any of the Leases, and the acceptance of
this Assignment does not constitute an assumption of any such obligation or
duty. Grantee will not be deemed to have any responsibility for the control,
care, management or repair of the Premises or any responsibility or liability
for any negligence in the management, operation, upkeep, repair or control of
the Premises resulting in loss, injury or death to any lessee, licensee,
employee, stranger or other person. Grantor will indemnify and hold Grantee
harmless against all liabilities, losses and damages that Grantee may incur
under the Leases or under or by reason of this assignment except for Grantee's
grossly negligent acts or liabilities, losses and damages arising out of
Grantee's possession or control of the Premises.
(e) Rent. Provided that no Event of Default exists, Grantor will have the right
to collect all rents under any Lease, provided that upon the occurrence and
continuance of an Event of Default, Grantee may take such actions with respect
to the Leases and the rents, issues and profits (including the notification to
lessees to make rent payments directly to Grantee) from the Premises, as
permitted by law or in equity, including, but not limited to, the remedies set
forth in Article II, below.
(f) Contracts. Grantor shall not enter into any contract for the management of
the Premises or appoint a rental
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agent for the Premises without the prior written consent of Grantee.
1.7 Environmental Matters. Grantor hereby makes the same representations and
warranties to Grantee as to itself and the Premises as are set forth in Section
5.8 of the Credit Agreement as to the Company and the Subsidiaries and the
property owned or leased by any of them, and Grantor hereby agrees to indemnify
Grantee as to Environmental Claims in accordance with Section 9.7 of the Credit
Agreement.
1.8 Security Agreement.
(a) This instrument is intended to be a security agreement pursuant to the
Uniform Commercial Code for any of the items specified above as part of the
Premises which may be subject to a security interest pursuant to the applicable
version of the Uniform Commercial Code, and Grantor hereby grants the Grantee a
security interest in and a security title to such items.
(b) Filings. Grantor agrees to execute and deliver to the Grantee upon request,
any financing statements, as well as extensions, renewals and amendments
thereof, in such form as the Grantee may require to perfect a security interest
with respect to said items. Grantor shall pay all costs of filing such financing
statements and any extensions, renewals, amendments and releases thereof, and
shall pay all reasonable costs and expenses of any record searches for financing
statements the Grantee may require.
(c) Other Liens. Without the prior written consent of Grantee, Grantor shall not
create or suffer to be created any Lien in, of or on any of the property or
assets of Grantor except for Liens permitted under Section 6.17 of the Credit
Agreement and except for purchase money security interests in or leases of
equipment. Grantor shall
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keep its books, records and documents concerning the
Premises available for inspection in accordance with Section 6.9 of the Credit
Agreement.
(d) Contracts. Grantor will observe and perform all covenants and conditions to
be performed by Grantor under any contracts which are included within the
Premises, will enforce such contracts, will not materially modify such
contracts, terminate such contracts or release parties thereto without consent
of the Grantee and will not assign or encumber its interest therein. The
assignment and grant of a security interest in the Premises does not constitute
an assumption by the Grantee of an obligation or duty thereunder.
(e) Remedies. Upon the occurrence and continuance of any Event of Default,
Grantee shall have the remedies of a secured party under the Uniform Commercial
Code and, at Grantee's option, may also invoke the remedies provided in this
instrument, the Loan Documents and under applicable law. In exercising any of
said remedies, Grantee may proceed against the items of real property and any
items of personal property specified above as part of the Premises separately or
together and in any order whatsoever, without in any way affecting the
availability of Grantee's remedies under the Uniform Commercial Code or of the
remedies in this instrument. Taking possession of any of the Premises and the
performance of the obligations of Grantor thereunder will not operate to cure or
waive any default or prohibit the taking of any other action by Grantee under
any instrument or at law or in equity to enforce the payment of the Obligations
or to realize upon any other security or guarantee therefor. Grantee may, so far
as Grantor can give authority therefor, enter upon any premises on which the
Premises or the books and records relating to the Premises are located and take
possession of and remove the same therefrom. Grantor waives all claims for
damages by reason of any seizure, repossession, retention or sale of the
Premises
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under the terms hereof. Any requirement of reasonable notice, if necessary, will
be met if such notice is given in accordance with Section 3.7 at least 10 days
before the time of the sale or other disposition of the Premises. The net
proceeds arising from the disposition of the Premises, after deducting Grantee's
expenses, will be applied to the Obligations in the order determined by Grantee.
If any excess remains after the discharge of all for the Obligations and the
payment of all such expenses, it will be paid to Grantor.
(f) Conflicts. In the event of any conflict between this Section and the
Subsidiary Security Agreement (as defined in the Credit Agreement) the provision
in the Subsidiary Security Agreement shall control.
(g) Corporate Existence. Grantor warrants that (i) Grantor's (that is,
"Debtor's") name, identity or corporate structure and residence or principal
place of business are as set forth in Section 1.8(h) hereof; (ii) Grantor (that
is, "Debtor") has been using or operating under said name, identity or corporate
structure without change for the time period set forth in Section 1.8(h) hereof;
and (iii) the location of the collateral is upon the Land. Grantor covenants and
agrees that Grantor will furnish Grantee with notice of any change in the
matters addressed by clauses (i) or (iii) of this Section 1.8(g) within thirty
(30) days of the effective date of any such change and Grantor will promptly
execute any financing statements or other instruments deemed necessary by
Grantee to prevent any filed financing statement from becoming misleading or
losing its perfected status.
(h) Compliance with UCC. The information contained in this Section 1.8(h) is
provided in order that this Deed shall comply with the requirements of the
Uniform Commercial Code, as enacted in the State of Georgia.
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1.9 Expenses. Grantor will pay or reimburse Grantee, upon demand therefor, for
all reasonable attorney's fees, costs and expenses actually incurred by Grantee
in any suit, action, legal proceeding or dispute of any kind in which Grantee is
made a party or appears as party plaintiff or defendant, affecting the
Obligations, this Deed or the interest created herein, or the Premises,
including, but not limited to, the exercise of the power of sale contained in
this Deed, any condemnation action involving the Premises or any action to
protect the security hereof, but excepting therefrom any willful misconduct by
Grantee or any breach of this Deed by Grantee; and all such amounts paid by
Grantee shall be added to the indebtedness secured by the lien of this Deed.
1.10 Other Liens. It is agreed that the lien hereby created shall take
precedence over and be a prior lien to any other lien of any character whether
vendor's, materialmen's or mechanic's lien hereafter created on the Premises,
and in the event the proceeds of the Obligations secured hereby as set forth
herein are used to pay off and satisfy any liens heretofore existing on the
Premises other than Liens permitted under Section 6.17 of the Credit Agreement,
then Grantee is, and shall be, subrogated to all of the rights, liens and
remedies of the holders of the liens so satisfied.
1.11 Limit of Validity. If from any circumstances whatsoever fulfillment of any
provision of this Deed or of the Guaranty, at the time performance of such
provision shall be due, shall involve transcending the limit of validity
presently prescribed by any applicable usury statute or any other applicable
law, with regard to obligations of like character and amount, then ipso facto
the obligation to be fulfilled shall be reduced to the limit of such validity,
so that in no event shall any exaction be possible under this Deed or under the
Guaranty that is in excess of the current limit of such validity,
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but such obligation shall be fulfilled to the limit of such validity. The
provisions of this Section 1.11 shall control every other provision of this Deed
and of the Guaranty.
ARTICLE II
2.1 Events of Default. All of the Obligations shall become due, at the option of
Grantee, if any one or more of the following events (each an "Event of Default")
shall occur and be continuing beyond any applicable grace or notice period:
(a) Default (as defined therein) occurs under the Credit Agreement or a default
or Default (as defined therein) occurs under any other instrument now or
hereafter securing the Obligations; or
(b) The breach by Grantor of any covenant contained in Article I herein or any
representation or warranty made or deemed made by or on behalf of Grantor to
Grantee in Article I herein is materially false on the date as of which it was
made.
2.2 Acceleration of Maturity. If an Event of Default shall have occurred and is
continuing, then the Obligations shall, at the option of Grantee, immediately
become due and payable without notice or demand, time being of the essence of
this Deed; and no omission on the part of Grantee to exercise such option when
entitled to do so shall be construed as a waiver of such right.
2.3 Grantee's Right to Enter and Take Possession, Operate and Apply Revenues.
(a) If an Event of Default shall have occurred and is continuing, then Grantor,
upon demand of Grantee, shall forthwith surrender to Grantee the actual
possession of
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the Premises and to the extent permitted by law, Grantee itself, or by such
officers or agents as it may appoint, may enter and take possession of all the
Premises without the appointment of a receiver, or an application therefore, and
may exclude Grantor and its agents and employees wholly therefrom, and may have
joint access with Grantor to the books, papers and accounts of Grantor.
(b) If Grantor shall for any reason fail to surrender or deliver the Premises or
any part thereof after such demand by Grantee, Grantee may obtain a judgment or
decree conferring upon Grantee the right to immediate possession or requiring
Grantor to deliver immediate possession of the Premises to Grantee. Grantor will
pay to Grantee, upon demand, all expenses of obtaining such judgment or decree,
including reasonable compensation to Grantee, its attorneys and agents; and all
such expenses and compensation shall, until paid, be secured by the lien of this
Deed.
(c) Upon every such entering upon or taking of possession, Grantee may hold,
store, use, operate, manage and control the Premises and conduct the business
thereof, and from time to time (i) make all necessary and proper maintenance,
repairs, renewals, replacements, additions, betterments and improvements thereto
and thereon and purchase or otherwise acquire additional fixtures, personalty
and other property; (ii) insure or keep the Premises insured; (iii) manage and
operate the Premises and exercise all the rights and powers of Grantor to the
same extent as Grantor could in its own name or otherwise with respect to the
same; and (iv) enter into any and all agreements with respect to the exercise by
others of any of the powers herein granted Grantee, all as Grantee from time to
time may determine to be in its best interest. Grantee may collect and receive
all the rents, issues, profits and revenues from the Premises, including those
past due as well as those accruing thereafter, and, after deducting (aa) all
expenses of taking, holding, managing
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and operating the Premises (including compensation for the services of all
persons employed for such purposes); (bb) the cost of all such maintenance,
repairs, renewals, replacements, additions, betterments, improvements, purchases
and acquisitions; (cc) the cost of such insurance; (dd) such taxes, assessments
and other similar charges as Grantee may at its option pay; (ee) other proper
charges upon the Premises or any part thereof; and (ff) the reasonable
compensation, expenses and disbursements of the attorneys and agents of Grantee,
Grantee shall apply the remainder of the moneys and proceeds so received by
Grantee, to the payment of indebtedness secured hereby in such manner as it may
elect.
(d) Whenever all that is due under the Guaranty and under any of the terms,
covenants, conditions and agreements of this Deed, shall have been paid and all
events of Default made good, Grantee shall surrender possession of the Premises
to Grantor, its successors or assigns. The same right of taking possession,
however, shall exist if any subsequent Event of Default shall occur and be
continuing.
2.4 Performance by Grantee of Defaults by Grantor. If there shall occur an Event
of Default hereunder in the payment, performance or observance of any term,
covenant or condition of this Deed, Grantee may, at its option, pay, perform or
observe the same, and all payments made or costs or expenses incurred by Grantee
in connection therewith, shall be secured hereby and shall be, without demand,
immediately repaid by Grantor to Grantee with interest thereon as provided in
the Guaranty. Grantee shall determine in its reasonable judgment the necessity
for any such actions and of the amounts to be paid. Grantee is hereby empowered
to enter and to authorize others to enter upon the Premises or any part thereof
for the purpose of performing or observing any such defaulted term, covenant or
condition without thereby becoming
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liable to Grantor or any person in possession holding under Grantor.
2.5 Receiver. If an Event of Default shall have occurred and is continuing,
Grantee, upon application to a court of competent jurisdiction, shall be
entitled as a matter of strict right without notice and without regard to the
occupancy or value of any security for the Obligations or the solvency of any
party bound for its payment, to the appointment of a receiver to take possession
of and to operate the Premises and to collect and apply the rents, issues,
profits and revenues thereof. The receiver shall have all of the rights and
powers permitted under the laws of the State of Georgia. Grantor will pay to
Grantee upon demand all expenses, including receiver's fees, attorney's fees,
costs and agent's compensation, incurred pursuant to the provisions of this
Paragraph 2.05; and all such expenses shall be secured by this Deed.
2.6 Enforcement.
(a) If an Event of Default shall have occurred and is continuing, Grantee, at
its option, may sell the Premises or any part of the Premises at public sale or
sales before the door of the courthouse of the county in which the Premises or
any part of the Premises is situated, to the highest bidder for cash, in order
to pay the indebtednesses secured hereby and accrued interest thereon and
insurance premiums, liens, assessments, taxes and charges, including utility
charges, if any, with accrued interest thereon, and all expenses of the sale and
of all proceedings in connection therewith, including actual attorneys' fees, if
incurred, after advertising the time, place and terms of sale once a week for
four (4) weeks immediately preceding such sale (but without regard to the number
of days) in a newspaper in which Sheriff's sales are advertised in said county.
At any such public sale, Grantee may execute and deliver to the purchaser a
conveyance of the Premises or any part of the Premises in
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fee simple, with full warranties of title and to this end, Grantor hereby
constitutes and appoints Grantee the agent and attorney-in-fact of Grantor to
make such sale and conveyance, and thereby to divest Grantor of all right, title
or equity that Grantor may have in and to the Premises and to vest the same in
the purchaser or purchasers at such sale or sales, and all the acts and doings
of said agent and attorney-in-fact are hereby ratified and confirmed and any
recitals in said conveyance or conveyances as to facts essential to a valid sale
shall be binding upon Grantor. The aforesaid power of sale and the agency hereby
granted are coupled with an interest and are irrevocable by death or otherwise,
are granted as cumulative of the other remedies provided hereby or by law for
collection of the indebtednesses secured hereby and shall not be exhausted by
one exercise thereof but may be exercised until full payment of all
indebtednesses secured hereby.
(b) If an Event of Default shall have occurred and is continuing, Grantee may,
in addition to and not in abrogation of the rights covered under subparagraph
(a) of this Section 2.6, either with or without entry or taking possession as
herein provided or otherwise, proceed by a suit or suits in law or in equity or
by any other appropriate proceeding or remedy (i) to enforce payment of the
Guaranty or the performance of any term, covenant, condition or agreement of
this Deed or any other right, and (ii) to pursue any other remedy available to
it, all as Grantee shall determine most effectual for such purposes.
2.7 Purchase by Grantee. Upon any foreclosure sale, Grantee may bid for and
purchase the Premises and shall be entitled to apply all or any part of the
indebtedness secured hereby as a credit to the purchase price.
2.8 Application of Proceeds of Sale. In the event of a foreclosure sale of the
Premises, the proceeds of said sale shall be applied, first, to the expenses of
such
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sale and of all proceedings in connection therewith, including attorneys' fees,
then to insurance premiums, liens, assessments, taxes and charges including
utility charges advanced by Grantee, then to payment of the accrued interest on
the Obligations, then to the outstanding principal balance of the Obligations,
and finally the remainder, if any, shall be paid to Grantor.
2.9 Grantor as Tenant Holding Over. In the event of any such foreclosure sale by
Grantee, Grantor shall be deemed a tenant holding over and shall forthwith
deliver possession to the purchaser or purchasers at such sale or summarily
dispossessed according to provisions of law applicable to tenants holding over.
2.10 Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws.
Grantor agrees to the full extent permitted by law, that upon the occurrence of
an Event of Default on the part of Grantor hereunder, neither Grantor nor anyone
claiming through or under it shall or will set up, claim or seek to take
advantage of any appraisement, valuation, stay, extension, homestead, exemption
or redemption laws now or hereafter in force, in order to prevent or hinder the
enforcement or foreclosure of this Deed, or the absolute sale of the Premises,
or the final and absolute putting into possession thereof, immediately after
such sale, of the purchasers thereat, and Grantor, for itself and all who may at
any time claim through or under it, hereby waives to the full extent that it may
lawfully so do, the benefit of all such laws, and any and all right to have the
assets comprised in the security intended to be created hereby marshalled upon
any foreclosure hereof.
2.11 Leases. Grantee, at its option, is authorized to foreclose this Deed
subject to the rights of any tenants of the Premises, and the failure to make
any such tenants parties to any such foreclosure proceedings and to foreclose
their rights will not be, nor be asserted to be by
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Grantor, a defense to any proceedings instituted by Grantee to collect the sums
secured hereby.
2.12 Discontinuance of Proceedings and Restoration of the Parties. In case
Grantee shall have proceeded to enforce any right, power or remedy under this
Deed by foreclosure, entry or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to Grantee, then and in every such case Grantor and Grantee shall be
restored to their former positions and rights hereunder, and all rights, powers
and remedies of Grantee shall continue as if no such proceeding had been taken.
2.13 Remedies Cumulative. No right, power or remedy conferred upon or reserved
to Grantee by this Deed is intended to be exclusive of any other right, power or
remedy, but each and every such right, power and remedy shall be cumulative and
concurrent and shall be in addition to any other right, power and remedy given
hereunder or now or hereafter existing at law or in equity or by statute.
2.14 Waiver.
(a) No delay or omission of Grantee or of any holder of the Guaranty to exercise
any right, power or remedy accruing upon the occurrence of an Event of Default
shall exhaust or impair any such right, power or remedy or shall be construed to
be a waiver of any such Default, or acquiescence therein; and every right, power
and remedy given by this Deed to Grantee may be exercised from time to time and
as often as may be deemed expedient by Grantee. No consent or waiver, expressed
or implied, by Grantee to or of any breach or Event of Default by Grantor in the
performance of the obligations thereof hereunder shall be deemed or construed to
be a consent or waiver to or of any other breach or Event of Default in the
performance of the same or any other obligations of Grantor
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hereunder. Failure on the part of Grantee to complain of any act or failure to
act or to declare an Event of Default, irrespective of how long such failure
continues, shall not constitute a waiver by Grantee of its rights hereunder or
impair any rights, powers or remedies consequent on any breach or Default by
Grantor.
(b) If Grantee (i) grants forbearance or an extension of time for the payment of
any sums secured hereby; (ii) takes other or additional security for the payment
of any sums secured hereby; (iii) waives or does not exercise any right granted
herein or in the Guaranty; (iv) releases any part of the Premises from the lien
of this Deed or otherwise changes any of the terms, covenants, conditions or
agreements of the Guaranty or this Deed (provided, that the written agreement of
Grantor to any such change shall first have been obtained); (v) consents to the
filing of any map, plat or replat affecting the Premises; (vi) consents to the
granting of any easement or other right affecting the Premises; or (vii) makes
or consents to any agreement subordinating the lien hereof, any such act or
omission shall not release, discharge, modify, change or affect the original
liability under the Guaranty, this Deed or any other obligation of Grantor or
any subsequent purchaser of the Premises or any part thereof, or any maker,
co-signer, endorser, surety or guarantor; nor shall any such act or omission
preclude Grantee from exercising any right, power or privilege herein granted or
intended to be granted upon the occurrence of an Event of Default then made or
any subsequent Default; nor, except as otherwise expressly provided in an
instrument or instruments executed by Grantee, shall the lien or security title
of this Deed be altered thereby. In the event of the sale or transfer by
operation of law or otherwise of all or any part of the Premises, Grantee,
without notice, is hereby authorized and empowered to deal with any such vendee
or transferee with reference to the Premises or the indebtedness secured hereby,
or with reference to any of the terms, covenants, conditions or
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agreements hereof, as fully and to the same extent as it might deal with the
original parties hereto and without in any way releasing or discharging any
liabilities, obligations or undertakings.
2.15 Suits to Protect the Premises. Grantee shall have power (a) to institute
and maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Premises by any acts which may be unlawful or in violation of
this Deed, with notice of commencement of such suits and proceedings to be given
by Grantee to Grantor, (b) to preserve or protect its interest in the Premises
and in the rents, issues, profits and revenues arising therefrom, and (c) to
restrain the enforcement of or compliance with any legislation or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid, if the enforcement of or compliance with such enactment, rule or order
would impair the security hereunder or be prejudicial to the interest of
Grantee.
2.16 Grantee May File Proofs of Claim. In the case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other proceedings affecting Grantor, its creditors or its property, Grantee, to
the extent permitted by law, shall be entitled to file such proofs of claim and
other documents as may be necessary or advisable in order to have the claims of
Grantee allowed in such proceedings for the entire amount due and payable by
Grantor under this Deed at the date of the institution of such proceedings and
for any additional amount which may become due and payable by Grantor hereunder
after such date.
2.17 WAIVER OF GRANTOR'S RIGHTS. BY EXECUTION OF THIS DEED AND BY INITIALING
THIS SECTION 2.17, GRANTOR EXPRESSLY: ACKNOWLEDGES THE RIGHT TO ACCELERATE THE
OBLIGATIONS EVIDENCED BY THE GUARANTY AND THE POWER OF ATTORNEY GIVEN HEREIN TO
GRANTEE TO SELL THE PREMISES BY NONJUDICIAL
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FORECLOSURE UPON DEFAULT BY GRANTOR WITHOUT ANY JUDICIAL HEARING AND WITHOUT ANY
NOTICE OTHER THAN SUCH NOTICE (IF ANY) AS IS SPECIFICALLY REQUIRED TO BE GIVEN
UNDER THE PROVISIONS OF THIS DEED OR BY LAW; WAIVES ANY AND ALL RIGHTS WHICH
GRANTOR MAY HAVE UNDER THE CONSTITUTION OF THE UNITED STATES (INCLUDING THE
FIFTH AND FOURTEENTH AMENDMENTS THEREOF), THE VARIOUS PROVISIONS OF THE
CONSTITUTIONS FOR THE SEVERAL STATES, OR BY REASON OF ANY OTHER APPLICABLE LAW,
TO NOTICE AND TO JUDICIAL HEARING PRIOR TO THE EXERCISE BY GRANTEE OF ANY RIGHT
OR REMEDY HEREIN PROVIDED TO GRANTEE, EXCEPT SUCH NOTICE (IF ANY) AS IS
SPECIFICALLY REQUIRED TO BE PROVIDED IN THIS DEED OR BY LAW; ACKNOWLEDGES THAT
GRANTOR HAS READ THIS DEED AND ANY AND ALL QUESTIONS REGARDING THE LEGAL EFFECT
OF THIS DEED AND ITS PROVISIONS HAVE BEEN EXPLAINED FULLY TO GRANTOR AND GRANTOR
HAS CONSULTED WITH COUNSEL OF GRANTOR'S CHOICE PRIOR TO EXECUTING THIS DEED; AND
ACKNOWLEDGES THAT ALL WAIVERS OF THE AFORESAID RIGHTS OF GRANTOR HAVE BEEN MADE
KNOWINGLY, INTENTIONALLY AND WILLINGLY BY GRANTOR AS PART OF A BARGAINED-FOR
LOAN TRANSACTION
INITIALED BY GRANTOR:
---------------
ARTICLE III
3.1 Successors and Assigns. This Deed shall inure to the benefit of and be
binding upon Grantor and Grantee and their respective heirs, executors, legal
representatives, successors and assigns. Whenever a reference is made in this
Deed to Grantor or Grantee such reference shall be deemed to include a reference
to the heirs, executors, legal representatives, successors and assigns of
Grantor or Grantee.
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3.2 Terminology. All personal pronouns used in this Deed whether used in the
masculine, feminine or neuter gender, shall include all other genders; the
singular shall include the plural, and vice versa. Titles and Articles are for
convenience only and neither limit nor amplify the provisions of this Deed
itself, and all references herein to Articles, Paragraphs or subparagraphs
thereof, shall refer to the corresponding Articles, Paragraphs or subparagraphs
thereof, of this Deed unless specific reference is made to such Articles,
Paragraphs or subparagraphs thereof of another document or instrument.
3.3 Severability. If any provision of this Deed or the application thereof to
any person or circumstance shall be invalid or unenforceable to any extent, the
remainder of this Deed and the application of such provisions to other persons
or circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
3.4 Other Liens. It is agreed that the lien hereby created shall take precedence
over and be a prior lien to any other lien of any character whether vendor's,
materialmen's or mechanic's lien hereafter created on the Premises, and in the
event the proceeds of the Indebtedness secured hereby as set forth herein are
used to pay off and satisfy any liens heretofore existing on the Premises (other
than Liens permitted under Section 6.7 of the Credit Agreement), then Grantee
is, and shall be, subrogated to all of the rights, liens and remedies of the
holders of the lien so satisfied.
3.5 Applicable Law. This Deed shall be interpreted, construed and enforced
according to the laws of the State of Illinois. Notwithstanding the foregoing,
the internal laws of the State of Georgia shall govern the conveyancing,
encumbrancing, lien priority and validity of this Deed and procedures with
respect to the foreclosure hereof.
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3.6 FCC Consents. Notwithstanding anything to the contrary contained herein or
any other agreement, instrument or document executed by one or more of the
Grantor and other parties and delivered to Grantee, Grantee will not take, or
cause to be taken, any action pursuant to the Deed, which would constitute or
result in any assignment of license or any change of control of the Grantor, if
such assignment of license or change of control would require, under then
existing law, the prior approval of the Federal Communications Commission
("FCC") without first obtaining such prior approval of the FCC. The Grantor
agrees to take any action which Grantee may reasonably request in order to
obtain from the FCC such approval as may be necessary to enable Grantee to
exercise and enjoy the full rights and benefits granted to the holder of the
Indebtedness secured by this Deed, and each other agreement, instrument and
document delivered to Grantee in connection therewith, including specifically,
at the cost and expense of the Grantor, the use of its best efforts to assist in
obtaining approval of the FCC for any action or transaction contemplated by this
Deed for which such approval is or shall be required by law and specifically,
without limitation, upon request, to prepare, sign and file with the FCC the
assignor's or transferor's portion of any application or applications for
consent to the assignment of license or transfer of control necessary or
appropriate under the FCC's rules and regulations for approval of (a) any sale
or sales of all or any part of the Premises by or on behalf of Grantee, or (b)
any assumption by Grantee of voting or management rights with respect to all or
any part of the Premises effected in accordance with the terms of this Deed.
3.7 Notices, Demands and Requests. All notices, demands and requests given or
required to be given by either party hereto to the other party shall be in
writing and shall be deemed to have been properly given if sent by
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certified mail, postage prepaid, return receipt requested, addressed as follows:
To Grantor at: Jacor Broadcasting of Atlanta, Inc.
c/o Jacor Communications, Inc.
1300 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: R. Xxxxxxxxxxx Xxxxx
Copy to: Xxxxxx X. X'Xxxxxxx, Xx., Esq.
Xxxxxxx Head & Xxxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxxx 00000
To Grantee at: Banque Paribas
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Xxxx Xxxxxx
Copy to: Xxxxxxx X. Xxxxxxxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
or to such other address as Grantor or Grantee may from time to time designate
by ten (10) days' prior written notice.
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IN WITNESS WHEREOF, Grantor has executed this Deed under seal,
as of the___day of February, 1996.
GRANTOR:
Signed, sealed and delivered
by Grantor in the
presence of:
JACOR BROADCASTING OF
ATLANTA, INC., a Georgia
corporation
By:
------------------------------ ------------------------
Unofficial Witness Name:
Title:
-----------------------------
NOTARY PUBLIC
Commission Expiration Date:
ATTEST:
-----------------------
Name: [CORPORATE SEAL]
Title:
[NOTARIAL SEAL]
31
EXHIBIT A
ALL THAT TRACT OR PARCEL OF LAND, together with all improvements located
thereon, lying and being in the City of Atlanta, and in Land Lots 178 and 179 of
the 14th District of Xxxxxx County, Georgia, and being more particularly bounded
and described as follows:
BEGINNING AT A POINT marked by a rebar set at the intersection of the southern
margin of the right-of-way of Xxxxxxx Road (50-foot right-of-way) with the east
line of Land Xxx 000 xx xxx 00xx Xxxxxxxx xx Xxxxxx Xxxxxx, Xxxxxxx; THENCE
South along the east line of Land Xxx 000 Xxxxx 00 degrees 03 minutes 45 seconds
East a distance of 774.75 feet to a railroad iron found; THENCE South 89 degrees
48 minutes 30 seconds West a distance of 1,235.26 feet to a point marked by a
rebar set; THENCE North 89 degrees 57 minutes 51 seconds West a distance of
568.04 feet to a point marked by a rebar set; THENCE North 02 degrees 20 minutes
09 seconds East a distance of 684.86 feet to a point marked by a rebar set on
the southern margin of the right-of-way of Xxxxxxx Road; THENCE easterly along
the southern margin of the right-of-way of Xxxxxxx Road, and following the
curvature thereof, a distance of 84.77 feet to a point; THENCE easterly along
the southern margin of the right-of-way of Xxxxxxx Road North 89 degrees 23
minutes 03 seconds East a distance of 202.25 feet to a point; THENCE easterly
along the southern margin of the right-of-way of Xxxxxxx Road, and following the
curvature thereof, a distance of 205.26 feet to point; THENCE easterly and
northeasterly along the southern and southeastern margin of the right-of-way of
Xxxxxxx Road, and following the curvature thereof, a distance of 188.48 feet to
a point; THENCE northeasterly along the southeastern margin of the right-of-way
of Xxxxxxx Road North 48 degrees 03 minutes 39 seconds East a distance of 499.92
feet to a point; THENCE northeasterly along the southeastern margin of the
right-of-way of Xxxxxxx Road, and following the curvature thereof, a distance of
78.73 feet to a point; THENCE northeasterly, easterly and southeasterly along
the southeastern, southern and southwestern margin of the right-of-way of
Xxxxxxx Road, and following the curvature thereof, a distance of 217.95 feet to
a point; THENCE southeasterly along the southwestern margin of the right-of-way
of Xxxxxxx Road, and following the curvature thereof, a
distance of 91.54 feet to a point; THENCE southeasterly along the southwestern
margin of the right-of-way
A-1
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of Xxxxxxx Road, and following the curvature thereof, a distance of 134.33 feet
to a point; THENCE southeasterly along the southwestern margin of the
right-of-way of Xxxxxxx Road South 35 degrees 12 minutes 13 seconds East a
distance of 200.18 feet to a point; THENCE southeasterly and easterly along the
southwestern and southern margin of the right-of-way of Xxxxxxx Road, and
following the curvature thereof, a distance of 205.26 feet to the POINT OF
BEGINNING; the aforesaid parcel being shown and delineated on plat of survey
dated June 8, 1989, made for JACOR Broadcasting of Atlanta, Inc., a Georgia
corporation, made by Xxxxxxx X. XxXxxxx, Georgia Registered Land Surveyor No.
1711, Xxxxxxx & Associates, Inc., Forest Park, Georgia, which plat is recorded
in Plat Book 163, Page 32, Xxxxxx County, Georgia Superior Court records, and
which plat is incorporated herein by reference thereto; the aforesaid parcel
containing 36.687 acres according to the aforesaid plat.
A-2
