EXHIBIT 10.9
SECURITY AGREEMENT
made by
NEXSTAR FINANCE, L.L.C.
NEXSTAR BROADCASTING GROUP, L.L.C.
NEXSTAR BROADCASTING OF ABILENE, INC.
NEXSTAR BROADCASTING OF BEAUMONT/ PORT XXXXXX, INC.
NEXSTAR BROADCASTING OF CHAMPAIGN, INC.
ERC HOLDINGS, INC.
NEXSTAR BROADCASTING OF ERIE, INC.
NEXSTAR BROADCASTING OF JOPLIN, INC.
NEXSTAR BROADCASTING OF LOUISIANA, INC.
NEXSTAR BROADCASTING OF MIDLAND-ODESSA, INC.
NEXSTAR MIDWEST HOLDINGS, INC.
NEXSTAR BROADCASTING OF NORTHEASTERN PENNSYLVANIA, INC.
NEXSTAR BROADCASTING OF PEORIA, INC.
NEXSTAR BROADCASTING OF ROCHESTER, INC.
NEXSTAR BROADCASTING OF WICHITA FALLS, INC.
NEXSTAR FINANCE HOLDINGS, INC.
NEXSTAR FINANCE HOLDINGS, L.L.C.
NEXSTAR BROADCASTING OF ABILENE, L.L.C.
NEXSTAR BROADCASTING OF BEAUMONT/ PORT XXXXXX, L.L.C.
NEXSTAR BROADCASTING OF CHAMPAIGN, L.L.C.
ENTERTAINMENT REALTY CORPORATION
NEXSTAR BROADCASTING OF ERIE, L.L.C.
NEXSTAR BROADCASTING OF JOPLIN, L.L.C.
NEXSTAR BROADCASTING OF LOUISIANA, L.L.C.
NEXSTAR BROADCASTING OF MIDLAND-ODESSA, L.L.C.
NEXSTAR BROADCASTING OF THE MIDWEST, INC.
NEXSTAR BROADCASTING GROUP, INC.
NEXSTAR BROADCASTING OF NORTHEASTERN PENNSYLVANIA, L.L.C.
NEXSTAR FINANCE, INC.
NEXSTAR BROADCASTING OF PEORIA, L.L.C.
NEXSTAR BROADCASTING OF ROCHESTER, L.L.C.
NEXSTAR BROADCASTING OF WICHITA FALLS, L.L.C.
in favor of
BANK OF AMERICA, N.A.,
as Collateral Agent
Dated as of January 12, 2001
SECURITY AGREEMENT
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THIS SECURITY AGREEMENT (this "Agreement") is made and entered into
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effective as of January 12, 2001 by and among Nexstar Broadcasting Group,
L.L.C., a Delaware limited liability company (the "Parent"), and the direct or
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indirect subsidiaries of the Parent from time to time parties hereto (each, a
"Grantor" and, together with the other signatories hereto and such other
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entities from time to time parties hereto pursuant to Section 10.14 hereof,
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collectively, the "Grantors") in favor of Bank of America, N.A., as Collateral
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Agent (in such capacity, the "Collateral Agent").
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RECITALS:
A. Nexstar Finance, L.L.C., a Delaware limited liability company (the
"Borrower"), is a party to that certain Credit Agreement, dated as of even date
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herewith (as the same may be amended, supplemented or otherwise modified from
time to time, including, without limitation, all extensions, renewals,
restatements, rearrangements and refundings thereof, the "Credit Agreement"),
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among the Borrower, the Parent, certain Subsidiaries of the Parent from time to
time parties thereto, the several financial institutions from time to time
parties thereto (the "Banks"), Bank of America, N.A. as Administrative Agent for
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the Banks (in such capacity and together with its successors in such capacity in
such capacity, the "Administrative Agent"), Barclays Bank PLC as Syndication
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Agent and First Union National Bank as Documentation Agent, pursuant to which
the Banks have severally agreed to make loans to the Borrower, and Bank of
America, N.A. (the "Issuing Bank" and, together with the Banks, the
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Administrative Agent and the Collateral Agent, collectively, the "Bank
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Creditors") has agreed to issue letters of credit for the account of, the
Borrower, upon the terms and conditions set forth therein. Capitalized terms
used but not defined herein have the meanings assigned to such terms in such
Credit Agreement.
B. The Borrower may also from time to time be party to one or more Interest
Rate Protection Agreements with any Bank or an Affiliate of any Bank (even if
any such Bank ceases to be a Bank under the Credit Agreement for any reason),
and their successors and assigns, if any (collectively, the "Interest Rate
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Protection Creditors") providing for protection against fluctuations in interest
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rates.
C. Each Grantor (other than the Borrower) has guaranteed the obligations
and liabilities of the Borrower under the Loan Documents and the Interest Rate
Protection Agreements pursuant to Guaranty Agreements, dated as of even date
herewith (collectively, the "Nexstar Guaranties"), made by such Grantors to and
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in favor of the Guaranteed Parties (as defined therein).
D. Each Grantor has also guaranteed certain obligations and liabilities of
Bastet Broadcasting, Inc. ("Bastet") and Mission Broadcasting of Wichita Falls,
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Inc. ("Mission Wichita Falls") and, together with Bastet, collectively, the
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"Bastet/Mission Borrowers") pursuant to a Guaranty Agreement, dated as of even
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date herewith (the "Bastet/Mission Guaranty"), made by such Grantor to and in
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favor of the Guaranteed Parties (as defined therein, herein called the
"Bastet/Mission Creditors"), which obligations and liabilities arise in
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connection with (i) that
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certain Credit Agreement, dated as of even date herewith (as the same may be
amended, supplemented or otherwise modified from time to time, including,
without limitation, all extensions, renewals, restatements, rearrangements and
refundings thereof, the "Bastet/Mission Credit Agreement"), among the
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Bastet/Mission Borrowers, the several financial institutions from time to time
parties thereto, Bank of America, N.A. as Administrative Agent, Barclays Bank
PLC as Syndication Agent and First Union National Bank as Documentation Agent,
and (ii) certain interest rate protection agreements.
E. Each Grantor has further guaranteed certain obliations and liabilities
of Xxxxx X. Xxxx, an individual residing in Tarrant County, Texas ("Sook")
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pursuant to a Guaranty Agreement, dated as of January 5, 1998 (the "Management
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Loan Guaranty"), made by such Grantors to and in favor of Bank of America, N.A.
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(f/k/a Bank of America National Trust and Savings Association and hereinafter
referred to as the "Management Loan Creditor"), which obligations and
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liabilities arise in connection with that certain Loan Agreement, dated as of
January 5, 1998 (as amended by that certain Amendment No. 1 to Individual Loan
Agreement dated as of January 12, 1998, that certain Amendment No. 2 to
Individual Loan Agreement dated as of August 12, 1998, and as the same may be
further amended, supplemented or otherwise modified from time to time,
including, without limitation, all extensions, renewals, restatements,
rearrangements and refundings thereof, the "Management Loan Agreement"), between
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Sook and the Management Loan Creditor. The Management Loan Creditor, the Bank
Creditors, the Interest Rate Protection Creditors, the Bastet/Mission Guaranteed
Parties and the Pledgee are hereinafter from time to time collectively referred
to as the "Secured Creditors".
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F. It is a condition precedent to each of the above-described extensions of
credit that are to be made on or after the date hereof that the Grantors execute
and deliver this Agreement in favor of the Collateral Agent.
G. Accordingly, each Grantor desires to execute this Agreement in order to
satisfy each such condition.
NOW, THEREFORE, in consideration of the benefits accruing to each Grantor,
the receipt and sufficiency of which are hereby acknowledged, each Grantor
hereby makes the following representations and warranties to the Collateral
Agent for the benefit of the Secured Creditors and hereby covenants and agrees
with the Collateral Agent for the benefit of the Secured Creditors as follows:
ARTICLE I.
DEFINITIONS
The following terms have the meanings herein specified unless the context
otherwise requires. Such definitions shall be equally applicable to the
singular and plural forms of the terms defined. Unless otherwise defined herein
or in the Credit Agreement, terms in this Agreement that are defined in Article
9 of the Uniform Commercial Code in the State of New York (as in effect from
time to time, the "UCC") are used herein as defined therein.
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"Accounts" has the meaning provided in Article 9 of the UCC, and in
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any event shall include, but shall not be limited to, (a) all of such
Grantor's rights to payment for goods sold, leased or licensed or services
performed by such Grantor, (b) all amounts owed to such Grantor for the
licensing of intellectual property rights, (c) rights evidenced by an
account, note, contract, security agreement, chattel paper, electronic
chattel paper or other evidence of indebtedness or security, (d) all
security pledged, assigned, hypothecated or granted to or held by such
Grantor to secure the foregoing; (e) all of such Grantor's right, title and
interest in and to any goods, the sale of which gave rise thereto; (f) all
guarantees, endorsements and indemnifications on, or of, any of the
foregoing; (g) all powers of attorney for the execution of any evidence of
indebtedness or security or other writing in connection therewith; (h) all
books, records, ledger cards, and invoices relating thereto; (i) all
evidences of the filing of financing statements and other statements and
the registration of other instruments in connection therewith and
amendments thereto, notices to other creditors or secured parties and
certificates from filing or other registration officers; (j) all credit
information, reports and memoranda relating thereto and (k) all other
writings related in any way to the foregoing.
"Cash Collateral Account" means a noninterest-bearing Cash Collateral
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account maintained with, and in the sole dominion and control of, the
Collateral Agent for the benefit of the Secured Creditors.
"Chattel Paper" has the meaning provided in Article 9 of the UCC.
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"Class" means each class of the Secured Creditors, i.e., whether (i)
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the Bank Creditors as holders of the Loan Document Obligations (as defined
in Section 2.2(a)), or (ii) the Interest Rate Protection Creditors as
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holders of the Interest Rate Protection Obligations (as defined in Section
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2.2(a)), or (iii) the Management Loan Creditor, as holder of the Management
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Loan Guaranty Obligations (as defined in Section 2.2(a)) or (iv) the
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Bastet/Mission Creditors, as holders of the Bastet/Mission Guaranty
Obligations (as defined in Section 2.2(a)).
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"Contract Rights" means all rights of any Grantor (including, without
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limitation, all Accounts) under any Contract.
"Contracts" means all contracts between any Grantor and one or more
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additional parties (including, without limitation, (a) each partnership
agreement or limited liability company agreement to which such Grantor is a
party, (b) each time brokerage agreement, agreement for the sale of
commercial time, joint sales agreement, shared services agreement, local
marketing agreement or option agreement to which such Grantor is a party
and (c) any Interest Rate Protection Agreement to which such Grantor is a
party), but excluding FCC Licenses and any other contract, license or lease
to the extent that the terms thereof prohibit the assignment of, or
granting of a security interest in, such licenses or leases (it being
understood and agreed that, notwithstanding the foregoing, all Accounts due
or to become due pursuant to any such excluded contract, license or lease
shall be subject to the security interests created by this Agreement).
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"Copyrights" means any United States copyright which any Grantor now
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or hereafter has title, including any registration of any copyright in the
United States Copyright Office, as well as any application for a United
States copyright registration now or hereafter made with the United States
Copyright Office by any Grantor.
"Default" means any event which, with notice or lapse of time, or
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both, would constitute an Event of Default.
"Deposit Accounts" has the meaning provided in Article 9 of the UCC,
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and in any event shall include, but shall not be limited to, the Cash
Collateral Account and all demand, time, checking, savings, passbook or
other accounts maintained with any banks or similar institutions.
"Documents" has the meaning provided in Article 9 of the UCC.
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"Equipment" has the meaning provided in Article 9 of the UCC, and in
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any event shall include, but shall not be limited to, all machinery,
equipment, furnishings and movable trade fixtures now or hereafter owned by
any Grantor and any and all additions, substitutions and replacements of
any of the foregoing, wherever located, together with all attachments,
components, parts, equipment and accessories installed thereon or affixed
thereto.
"Event of Default" means any Event of Default under, and as defined
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in, the Credit Agreement and shall in any event, without limitation,
include any payment default in respect of any of the Obligations after the
expiration of any applicable grace period.
"FCC License" means each license from and authorization by the Federal
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Communication Commission to any Grantor as is necessary to operate its
Stations as they are currently operated.
"General Intangibles" has the meaning provided in Article 9 of the
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UCC, and in any event shall include, but shall not be limited to, all
payment intangibles and all of the relevant Grantor's claims, rights,
powers, privileges, authority, options, security interests, liens and
remedies under any partnership agreement or limited liability company
agreement to which such Grantor is a party or with respect to any limited
liability company or partnership of which such Grantor is a member, partner
or in which the Grantor otherwise owns an interest.
"Instrument" has the meaning provided in Article 9 of the UCC.
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"Inventory" has the meaning provided in Article 9 of the UCC, and
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shall in any event include, but shall not be limited to, all merchandise,
goods and inventory, and all additions, substitutions and replacements
thereof, wherever located, together with all goods, supplies, incidentals,
packaging materials, labels, materials and any other items used or usable
in manufacturing, processing, packaging or shipping same, in all stages of
production -- from raw materials through work-in-process to finished goods
-- and all products and proceeds of whatever sort and wherever located and
any portion thereof
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which may be returned, rejected, reclaimed or repossessed by the Collateral
Agent from any Grantor's customers, now or hereafter owned by any Grantor.
"Investment Property" has the meaning provided in Article 9 of the
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UCC, and in any event shall include, but shall not be limited to, all
securities (whether certificated or uncertificated), security entitlements,
securities accounts, commodity contracts and commodity accounts.
"Letter-of-Credit Rights" has the meaning provided in Article 9 of the
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UCC, and in any event shall include, but shall not be limited to, all
rights to payment or performance under any letters of credit, whether or
not the beneficiary has demanded or is at the time entitled to demand
payment or performance.
"Marks" means any trademarks and service marks now held or hereafter
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acquired by any Grantor which are registered in the United States Patent
and Trademark Office or in any similar office or agency of the United
States or any state thereof or any political subdivision thereof and any
application for such trademarks and service marks, as well as any
unregistered marks used by any Grantor in the United States and trade
dress, including logos, designs, trade names, company names, business
names, fictitious business names and other business identifiers in
connection with which any of these registered or unregistered marks are
used in the United States.
"Patent" means any United States patent to which a Grantor now or
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hereafter has title, including any divisions, continuations, reissues,
reexaminations, extensions and renewals thereof, as well as any application
for a United States patent now or hereafter made by a Grantor.
"Proceeds" has the meaning provided in Article 9 of the UCC, and in
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any event shall include, but shall not be limited to, (a) any and all
proceeds of any insurance, indemnity, warranty or guaranty payable to the
Collateral Agent or any Grantor from time to time with respect to any of
the Security Agreement Collateral; (b) any and all payments (in any form
whatsoever) made or due and payable to any Grantor from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Security Agreement Collateral by any
Governmental Authority (or any person acting under color of Governmental
Authority); (c) any and all proceeds derived from or in connection with the
sale, transfer or other disposition of any FCC License; and (d) any and all
other amounts from time to time paid or payable under or in connection with
any of the Security Agreement Collateral.
"Refinanced Credit Facility" means that certain Second Amended and
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Restated Credit Agreement dated as of June 1, 1999, among Nexstar
Broadcasting Group, Inc., Nexstar Broadcasting of Wichita Falls, L.P.,
Entertainment Realty Corporation, Nexstar Broadcasting of Northeastern
Pennsylvania, L.P., Nexstar Broadcasting of Joplin, L.P., Nexstar
Broadcasting of Erie, L.P., Nexstar Broadcasting of Beaumont/Port Arthur,
L.P., Nexstar Broadcasting of the Midwest, Inc., Nexstar Broadcasting of
Rochester, L.L.C., Nexstar Broadcasting of Abilene, L.L.C., as Borrowers,
Nexstar Broadcasting Group, L.L.C., as Guarantor, various banks, Bank of
America, N.A. as Administrative Agent and
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Issuing Bank, First Union National Bank, as Syndication Agent and
BankBoston, N.A., as Documentation Agent.
"Requisite Creditors" means (i) with respect to the Loan Document
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Obligations, the holders of more than 50% of all such obligations
outstanding from time to time under the Loan Documents, (ii) with respect
to the Interest Rate Protection Obligations, the holders of more than 50%
of all such obligations outstanding from time to time under the Interest
Rate Protection Agreements, (iii) with respect to the Management Loan
Guaranty Obligations, the Management Loan Creditor, and (iv) with respect
to the Bastet/Mission Guaranty Obligations, the holders of more than 50% of
the Bastet/Mission Guaranty Obligations.
"Trade Secret Rights" means all material trade secrets and proprietary
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information necessary to operate the business of each Grantor.
ARTICLE II.
SECURITY INTEREST
2.1. Grant of Security Interest.
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(a) As security for the prompt and complete payment and performance
when due of all of the Obligations (as defined in Section 2.2 below), each
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Grantor does hereby collaterally assign and transfer unto the Collateral
Agent, and does hereby grant to the Collateral Agent for the benefit of the
Secured Creditors, a continuing security interest of first priority in
(subject only to Permitted Liens) all of the right, title and interest of
such Grantor in, to and under any personal property that such Grantor may
now own or hereafter acquire, including, but not limited to the following:
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Inventory;
(iv) all Equipment;
(v) all Instruments;
(vi) all Investment Property;
(vii) all Documents;
(viii) all Deposit Accounts (including, without limitation, the
Cash Collateral Account) and any monies, securities and instruments
deposited or required to be deposited therein;
(ix) all Contracts, together with any Contract Rights arising
thereunder;
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(x) all Letter of Credit Rights
(xi) all General Intangibles;
(xii) all Marks, together with the registrations and right to
all renewals thereof, and the goodwill of the business of such Grantor
symbolized by the Marks;
(xiii) all Patents and Copyrights, and all reissues, renewals or
extensions thereof;
(xiv) all computer programs and any intellectual property rights
therein and all other proprietary information of such Grantor,
including, but not limited to, Trade Secret Rights,
(xv) all of such Grantor's rights in, to or under, or relating
to, any FCC License; provided, however, that the Security Agreement
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Collateral (as defined below) does not include at any time any FCC
License to the extent, but only to the extent, that such Grantor is
prohibited at that time from granting a security interest therein
pursuant to the Communications Act of 1934, as amended, and the rules,
regulations and policies promulgated thereunder, but includes, to the
maximum extent permitted by law, all rights incident or appurtenant to
any such FCC License and the rights to receive all proceeds derived
from or in connection with the sale, assignment or transfer of any FCC
License;
(xvi) all insurance policies and supporting obligations with
regard to any of the foregoing; and
(xvii) all Proceeds and products of any and all of the foregoing
(all of the property subject to the grant of security interest in this
Section 2.1 being herein collectively referred to as the "Security
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Agreement Collateral").
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(b) It is expressly agreed and acknowledged that the security
interests of the Collateral Agent under this Agreement extend to all
Security Agreement Collateral which any Grantor may acquire at any time
during the continuation of this Agreement.
2.2. Security for Obligations. This Agreement is made by each Grantor for
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the benefit of the Secured Creditors to secure:
(a) the full and prompt payment and performance when due, whether at
stated maturity, by acceleration or otherwise, of (i) all obligations
(including obligations which, but for the automatic stay under Section
362(a) of the Bankruptcy Code, would become due) and liabilities of such
Grantor to the Bank Creditors, now existing or hereafter incurred under,
arising out of or in connection with any Loan Document to which such
Grantor is a party and due performance and compliance by such Grantor with
the terms of each such Loan Document to which such Grantor is a party (the
"Loan Document Obligations"), (ii) all obligations (including obligations
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which, but for the automatic stay under Section 362(a) of the Bankruptcy
Code, would become due) and liabilities of such
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Grantor to the Interest Rate Protection Creditors, now existing or
hereafter incurred under, arising out of or in connection with the Interest
Rate Protection Agreements, including all obligations of such Grantor under
any Guaranty in respect of the Interest Rate Protection Agreements (the
"Interest Rate Protection Obligations"), (iii) all obligations (including
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obligations which, but for the automatic stay under Section 362(a) of the
Bankruptcy Code, would become due) and liabilities of such Grantor to the
Management Loan Creditor, now existing or hereinafter incurred under,
arising out of or in connection with the Management Loan Guaranty (the
"Management Loan Guaranty Obligations"); and (iv) all obligations
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(including obligations which, but for the automatic stay under Section
362(a) of the Bankruptcy Code, would become due) and liabilities of such
Grantor to the Bastet/Mission Creditors, now existing and hereafter
incurred under, arising out of or in connection with the Bastet/Mission
Guaranty (the "Bastet/Mission Guaranty Obligations");
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(b) any and all sums advanced by the Collateral Agent in order to
preserve the Security Agreement Collateral or preserve its security
interest in the Security Agreement Collateral;
(c) in the event of any proceeding for the collection or enforcement
of any indebtedness, obligations, or liabilities referred to in clauses (a)
and (b) above, so long as an Event of Default (such term, as used in this
Agreement shall in any event include, without limitation, any payment
default (after the expiration of any applicable grace period) of any
Obligations (as defined below) shall have occurred and be continuing, the
reasonable expenses of retaking, holding, preparing for sale or lease,
selling or otherwise disposing or realizing on the Pledged Collateral, or
of any exercise by the Collateral Agent of its rights hereunder, together
with reasonable attorneys' fees and court costs; and
(d) all amounts paid by any Secured Creditor to which such Secured
Creditor has the right to reimbursement under Article IX of this Agreement;
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all such obligations, liabilities, sums and expenses set forth in clauses (a)
through (d) of this Section 2.2 being collectively called the "Obligations", it
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being acknowledged and agreed that the Obligations shall include extensions of
credit described above, whether outstanding on the date of this Agreement or
extended from time to time after the date of this Agreement.
2.3. Power of Attorney. Each Grantor hereby constitutes and appoints the
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Collateral Agent its true and lawful attorney-in-fact, irrevocably, with full
power after the occurrence of and during the continuance of an Event of Default
(in the name of such Grantor or otherwise) to act, require, demand, receive,
compound and give acquittance for any and all monies and claims for monies due
or to become due to such Grantor under or arising out of the Security Agreement
Collateral, to endorse any checks or other instruments or orders in connection
therewith and to file any claims or take any action or institute any proceedings
which the Collateral Agent may deem to be necessary or advisable in the
premises, which appointment as attorney is coupled with an interest.
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ARTICLE III.
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Grantor represents, warrants and covenants, which representations,
warranties and covenants shall survive execution and delivery of this Agreement,
as follows:
3.1. Necessary Filings. All filings, registrations and recordings
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necessary or appropriate to create, preserve, protect and perfect the security
interest granted by each Grantor to the Collateral Agent hereby in respect of
the Security Agreement Collateral have been accomplished and the security
interest granted to the Collateral Agent pursuant to this Agreement in and to
the Security Agreement Collateral constitutes a perfected security interest
therein superior and prior to the rights of all other Persons therein and
subject to no other Liens (other than Permitted Liens) and is entitled to all
the rights, priorities and benefits afforded by the Uniform Commercial Code or
other relevant law as enacted in any relevant jurisdiction to perfected security
interests, in each case to the extent that the Security Agreement Collateral
consists of the type of property in which a security interest may be perfected
by filing a financing statement under the Uniform Commercial Code as enacted in
any relevant jurisdiction or in the United States Patent and Trademark Office or
United States Copyright Office.
3.2. No Liens. The Grantors are, and as to the Security Agreement
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Collateral acquired by them from time to time after the date hereof, such
Grantors will be, the owners of all Security Agreement Collateral free from any
Lien, security interest, encumbrance or other right, title or interest of any
Person (other than Permitted Liens), and each Grantor shall defend the Security
Agreement Collateral against all claims and demands of all Persons at any time
claiming the same or any interest therein adverse to the Collateral Agent.
3.3. Other Financing Statements. As of the date hereof, there is no
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financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) on file or of record in any relevant jurisdiction
covering or purporting to cover any interest of any kind in the Security
Agreement Collateral (other than financing statements filed in respect of
Permitted Liens and financing statements in favor of Bank of America, N.A. as
Collateral Agent in connection with the Refinanced Credit Facility) and so long
as the Aggregate Commitment has not been terminated or any Loan remains
outstanding or any of the Obligations remain unpaid or any Interest Rate
Protection Agreement or Letter of Credit remains in effect or any obligations
are owed with respect thereto, or any obligations under the Management Loan
Guaranty or under the Bastet/Mission Guaranty remain outstanding, such Grantor
will not execute or authorize to be filed in any public office any financing
statement (or similar statement or instrument of registration under the law of
any jurisdiction) or statements relating to the Security Agreement Collateral,
except financing statements filed or to be filed in respect of and covering the
security interests granted hereby by such Grantor or in respect of Permitted
Liens or financing statements in favor of Bank of America, N.A. as Collateral
Agent in connection with the Refinanced Credit Facility.
3.4. Chief Executive Office; Records. The chief executive office of each
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Grantor is located, as of the date hereof, at the address indicated on Schedule
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A hereto for such Grantor. Such Grantor will not move its chief executive
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office except to such new location as such
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Grantor may establish in accordance with the last sentence of this Section 3.4.
The originals of all documents evidencing all Accounts and Contract Rights and
Trade Secret Rights of such Grantor and the only original books of account and
records of such Grantor relating thereto are, and will continue to be, kept at
such chief executive office, at such other locations shown on Schedule A hereto
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or at such new locations as such Grantor may establish in accordance with the
last sentence of this Section 3.4. All Accounts and Contract Rights of such
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Grantor are, and will continue to be, maintained at, and controlled and directed
(including, without limitation, for general accounting purposes) from, the
office locations described above. No Grantor shall establish new locations for
such offices until (a) it shall have given to the Collateral Agent not less than
30 days prior written notice of its intention so to do, clearly describing such
new location and providing such other information in connection therewith as the
Collateral Agent may reasonably request, (b) with respect to such new location,
it shall have taken all action necessary to maintain the security interest of
the Collateral Agent in the Security Agreement Collateral intended to be granted
and perfected hereby at all times fully perfected and in full force and effect,
(c) at the reasonable request of the Collateral Agent, it shall have furnished
an opinion of counsel in form and substance reasonably acceptable to the
Collateral Agent to the effect that all financing or continuation statements and
amendments or supplements thereto have been filed in the appropriate filing
office or offices, and all other actions (including, without limitation, the
payment of all filing fees and taxes, if any, payable in connection with such
filings) have been taken, in order to perfect (and maintain the perfection and
priority of) the security interest granted hereby and (d) the Collateral Agent
shall have received evidence that all other actions (including, without
limitation, the payment of all filing fees and taxes, if any, payable in
connection with such filings) have been taken, in order to perfect (and maintain
the perfection and priority of) the security interest granted hereby.
3.5. Location of Inventory and Equipment. All Inventory and Equipment held
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on the date hereof by each Grantor is located at one of the locations shown on
Schedule B hereto. Each Grantor agrees that all Inventory and Equipment now
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held or subsequently acquired by it shall be kept at (or shall be in transit to)
any one of the locations shown on Schedule B hereto or such new location as such
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Grantor may establish in accordance with the last sentence of this Section 3.5.
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Any Grantor may establish a new location for Inventory and Equipment only if (a)
it shall have given to the Collateral Agent not less than 30 days prior written
notice of its intention so to do, clearly describing such new location and
providing such other information in connection therewith as the Collateral Agent
may reasonably request, (b) with respect to such new location, it shall have
taken all action necessary to maintain the security interest of the Collateral
Agent in the Security Agreement Collateral intended to be granted hereby at all
times fully perfected and in full force and effect, (c) at the reasonable
request of the Collateral Agent, it shall have furnished an opinion of counsel
in form and substance reasonably acceptable to the Collateral Agent to the
effect that all financing or continuation statements and amendments or
supplements thereto necessary to perfect (and maintain the perfection of) the
security interest granted hereby have been filed in the appropriate filing
office or offices, and (d) the Collateral Agent shall have received evidence
that all other actions (including, without limitation, the payment of all filing
fees and taxes, if any, payable in connection with such filings) have been
taken, necessary in order to perfect (and maintain the perfection and priority
of) the security interest granted hereby.
3.6. Recourse. This Agreement is made with full recourse to each Grantor
--------
and pursuant to and upon all the warranties, representations, covenants and
agreements on the part of
10
such Grantor contained herein, in the other Loan Documents, in the Interest Rate
Protection Agreements and otherwise in writing in connection herewith or
therewith.
3.7. Trade Names; Change of Name. As of the date hereof, no Grantor has or
---------------------------
operates in any jurisdiction under, and in the preceding 12 months has not had
or has not operated in any jurisdiction under, any trade names, fictitious names
or other names (including, without limitation, any names of divisions or
operations) except its legal name and such other trade, fictitious or other
names as are listed in Schedule C hereto. No Grantor shall change its legal
----------
name or assume or operate in any jurisdiction under any trade, fictitious or
other name in any manner which might make any financing statement or
continuation statement filed in connection therewith seriously misleading within
the meaning of Section 9-402(7) (or any analogous provision) of the UCC except
those names listed on Schedule C hereto and new names (including, without
----------
limitation, any names of divisions or operations) established in accordance with
the last sentence of this Section 3.7. No Grantor shall assume or operate in
-----------
any jurisdiction under any new trade, fictitious or other name that would make
any financing statement, or continuation statement filed in connection
therewith, seriously misleading within the meaning of Section 9-402(7) (or
analogous provision) of the UCC until (a) it shall have given to the Collateral
Agent not less than 30 days prior written notice of its intention so to do,
clearly describing such new name and the jurisdictions in which such new name
shall be used and providing such other information in connection therewith as
the Collateral Agent may reasonably request, (b) with respect to such new name,
it shall have taken all action necessary to maintain the security interest of
the Collateral Agent in the Security Agreement Collateral intended to be granted
hereby at all times fully perfected and in full force and effect and (c) at the
reasonable request of the Collateral Agent, it shall have furnished an opinion
of counsel in form and substance reasonably acceptable to the Collateral Agent
to the effect that all financing or continuation statements and amendments or
supplements thereto have been filed in the appropriate filing office or offices,
and all other necessary actions (including, without limitation, the payment of
all filing fees and taxes, if any, payable in connection with such filings) have
been taken, in order to perfect (and maintain the perfection and priority of)
the security interest granted hereby.
ARTICLE IV.
SPECIAL PROVISIONS CONCERNING
ACCOUNTS; CONTRACT RIGHTS; INSTRUMENTS
4.1. Additional Representations and Warranties. As of the time when each
-----------------------------------------
of its Accounts arises, each Grantor shall be deemed to have represented and
warranted that such Receivable, and, to the knowledge of the Grantor, all
records, papers and documents relating thereto (if any) are genuine and in all
respects what they purport to be, and that all papers and documents (if any)
relating thereto, to the knowledge of such Grantor, (a) will represent the
genuine, legal, valid and binding obligation of the account debtor evidencing
indebtedness unpaid and owed by the respective account debtor arising out of the
performance of labor or services or the sale or lease and delivery of the
merchandise listed therein, or both, (b) will be the only original writings
evidencing and embodying such obligation of the account debtor named therein
(other than copies created for general accounting purposes), (c) will evidence
true and valid obligations, enforceable in accordance with their respective
terms, except as enforceability
11
may be limited by applicable bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally or by equitable principles of
general applicability and (d) will be in compliance and will conform in all
material respects with all applicable federal, state and local laws and
applicable laws of any relevant foreign jurisdiction.
4.2. Maintenance of Records. Each Grantor will keep and maintain, at its
----------------------
own cost and expense, accurate records of its Accounts and Contracts, including,
but not limited to, the originals of all documentation (including each Contract)
with respect thereto, records of all payments received, all credits granted
thereon, all merchandise returned and all other dealings therewith, and such
Grantor, will make the same available on such Grantor's premises to the
Collateral Agent for inspection, at such Grantor's own cost and expense, at any
and all reasonable times upon prior notice to an authorized officer of such
Grantor; provided however, if no Event of Default has occurred and is then
continuing, the Collateral Agent shall give such Grantor prior written notice of
any such inspection. Upon the occurrence and during the continuance of an Event
of Default and upon the request of the Collateral Agent, such Grantor shall, at
its own cost and expense, deliver all tangible evidence of its Accounts and
Contract Rights (including, without limitation, all documents evidencing the
Accounts and all Contracts) and such books and records to the Collateral Agent
or to its representatives (copies of which evidence and books and records may be
retained by such Grantor). Upon the occurrence and during the continuance of an
Event of Default, if the Collateral Agent so directs, such Grantor shall legend,
in form and manner reasonably satisfactory to the Collateral Agent, such
tangible evidence of the Accounts and the Contracts, as well as books, records
and documents of such Grantor evidencing or pertaining to such Accounts and
Contracts with an appropriate reference to the fact that such Accounts and
Contracts have been assigned to the Collateral Agent and that the Collateral
Agent has a security interest therein.
4.3. Direction to Account Debtors; Contracting Parties; etc. Upon the
------------------------------------------------------
occurrence and during the continuance of an Event of Default, and if the
Collateral Agent so directs any Grantor, to the extent permitted by applicable
law, such Grantor agrees (a) to cause all payments on account of the Accounts
and Contracts to be made directly to the Cash Collateral Account, (b) that the
Collateral Agent may, at its option, directly notify the obligors with respect
to any Accounts and/or under any Contracts to make payments with respect thereto
as provided in the preceding clause (a), and (c) that the Collateral Agent may
enforce collection of any such Accounts and Contracts and may adjust, settle or
compromise the amount of payment thereof, in the same manner and to the same
extent as such Grantor. Without notice to or assent by any Grantor, the
Collateral Agent may apply any or all amounts then in, or thereafter deposited
in, the Cash Collateral Account which application shall be effected in the
manner provided in Section 8.4 of this Agreement. The reasonable costs and
-----------
expenses (including attorneys' fees) of collection, whether incurred by any
Grantor or the Collateral Agent, shall be borne by such Grantor. The Collateral
Agent shall deliver a copy of each notice referred to in the preceding clause
(b) to the relevant Grantor; provided, that the failure by the Collateral Agent
--------
to so notify such Grantor shall not affect the effectiveness of such notice or
the other rights of the Collateral Agent created by this Section 4.3.
-----------
4.4. Modification of Terms; etc. No Grantor shall rescind or cancel any
--------------------------
indebtedness evidenced by any Receivable or under any Contract, or modify in any
material respect any term relating to such indebtedness or make any material
adjustment with respect thereto, or extend or
12
renew the same, or compromise or settle any material dispute, claim, suit or
legal proceeding relating thereto, or sell any Receivable or Contract, or
interest therein, without the prior written consent of the Collateral Agent,
except (a) as permitted by Section 4.5 hereof and (b) so long as no Event of
-----------
Default is then in existence in respect of which the Collateral Agent has given
notice that this exception is no longer applicable, such Grantor may modify,
make adjustments with respect to, extend or renew any Contracts in the ordinary
course of business. Each Grantor will duly fulfill all obligations on its part
to be fulfilled under or in connection with the Accounts and Contracts and will
do nothing to impair the rights of the Collateral Agent in the Accounts or
Contracts.
4.5. Collection. Each Grantor shall endeavor in accordance with reasonable
----------
business practices to cause to be collected from the account debtor named in
each of its Accounts or obligor under any Contract, as and when due (including,
without limitation, amounts, services or products which are delinquent, such
amounts, services or products to be collected in accordance with generally
accepted lawful collection procedures) any and all amounts owing under or on
account of such Receivable or Contract, and apply forthwith upon receipt thereof
all such amounts as are so collected to the outstanding balance of such
Receivable or under such Contract, except that, unless an Event of Default has
occurred and is continuing, such Grantor may allow in the ordinary course of
business as adjustments to amounts owing under its Accounts and Contracts (a) an
extension or renewal of the time or times of payment, or settlement for less
than the total unpaid balance, which such Grantor finds appropriate in
accordance with its reasonable business judgment and (b) a refund or credit due
as a result of returned or damaged merchandise or improperly performed services
or for other reasons which such Grantor finds appropriate in accordance with its
reasonable business judgment. The reasonable costs and expenses (including,
without limitation, attorneys' fees) of collection, whether incurred by such
Grantor or the Collateral Agent, shall be borne by such Grantor.
4.6. Instruments. If any Grantor owns or acquires any Instrument
-----------
constituting Security Agreement Collateral, such Grantor will within ten
Business Days notify the Collateral Agent thereof, and upon request by the
Collateral Agent will promptly deliver such Instrument to the Collateral Agent
appropriately endorsed to the order of the Collateral Agent as further security
hereunder.
4.7. Further Actions. Each Grantor will, at its own expense, make,
---------------
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such further
steps relating to its Accounts, Contracts, Instruments and other property or
rights covered by the security interest hereby granted, as the Collateral Agent
may reasonably require to give effect to the purposes of this Agreement.
ARTICLE V.
SPECIAL PROVISIONS CONCERNING MARKS
5.1. Additional Representations and Warranties. Each Grantor represents
-----------------------------------------
and warrants that it is the true and lawful owner of, or otherwise has the right
to use, the Marks listed
13
in Schedule D hereto and that said listed Marks include all the United States
----------
federal registrations or applications registered in the United States Patent and
Trademark Office that such Grantor now owns. Each Grantor represents and
warrants that it owns or is licensed to use or is not prohibited from using all
Marks that it uses. Each Grantor further warrants that it is aware of no third-
party claim that any aspect of such Grantor's present or contemplated business
operations infringes or will infringe any Xxxx or trade name. Each Grantor
represents and warrants that it is the beneficial and record owner of all United
States registrations and applications listed in Schedule D hereto for such
----------
Grantor and that said registrations are valid and subsisting, have not been
canceled and that such Grantor is not aware of any third-party claim that any of
said registrations are invalid or unenforceable or is not aware that there is
any reason that any of said applications will not pass to registration. Each
Grantor hereby grants to the Collateral Agent an absolute power of attorney to
sign, upon the occurrence and during the continuance of an Event of Default, any
document which may be required by the United States Patent and Trademark Office
in order to effect an absolute assignment of all right, title and interest in
each Xxxx and associated goodwill and record the same.
5.2. Licenses and Assignments. Except as otherwise permitted by the Credit
------------------------
Agreement and other than the license agreements listed on Schedule E hereto,
----------
each Grantor hereby agrees not to divest itself of any right under Xxxx other
than in the ordinary course of business absent prior written approval of the
Collateral Agent.
5.3. Infringements. Each Grantor agrees, promptly upon learning thereof,
-------------
to notify the Collateral Agent in writing of the name and address of, and to
furnish such pertinent information that may be available with respect to, any
party who such Grantor believes to be infringing or diluting or otherwise
violating in any material respect any of such Grantor's rights in and to any
Xxxx, or with respect to any party claiming that such Grantor's use of any Xxxx
violates in any material respect any property right of that party. Each Grantor
further agrees, if consistent with good business practice and unless otherwise
directed by the Collateral Agent, diligently to prosecute any Person infringing
any Xxxx in a manner in accordance with its reasonable business practices.
5.4. Preservation of Marks. Each Grantor agrees to use its Marks in
---------------------
interstate commerce during the time in which this Agreement is in effect,
sufficiently to preserve such Marks (and any registrations thereto) as
trademarks or service marks registered under the laws of the United States,
provided, that, to the extent permitted by the Credit Agreement, no Grantor
--------
shall be obligated to preserve any Xxxx in the event such Grantor determines, in
its reasonable business judgment, that the preservation of such Xxxx is no
longer necessary or desirable in the conduct of its business.
5.5. Maintenance of Registration. Each Grantor shall, at its own expense,
---------------------------
diligently process all documents required by the Trademark Act of 1946, 15
U.S.C. (S)(S) 1051 et seq. to maintain trademark registrations, including, but
not limited to, affidavits of use and applications for renewals of registration
in the United States Patent and Trademark Office for all of its registered Marks
pursuant to 15 U.S.C. (S)(S) 1058(a), 1059 and 1065, and shall pay all fees and
disbursements in connection therewith, and shall not abandon any such filing of
affidavit of use or any such application of renewal prior to the exhaustion of
all judicial remedies without prior written consent of the Collateral Agent,
provided that no Grantor shall be obligated to maintain
--------
14
any Xxxx in the event that such Grantor determines, in its reasonable business
judgment, that the maintenance of such Xxxx is no longer necessary or desirable
in the conduct of its business. Each Grantor agrees to notify the Collateral
Agent three months prior to the dates on which the affidavits of use or the
application for renewal registration are due with respect to any registered Xxxx
that the affidavits of use are being processed or abandoned as the case may be.
5.6. Future Registered Marks. If any Xxxx registration issues hereafter to
-----------------------
any Grantor as a result of any application now or hereafter pending before the
United States Patent and Trademark Office, within 30 days of receipt of such
certificate, such Grantor shall deliver to the Collateral Agent a copy of such
certificate, and a grant of security in such Xxxx to the Collateral Agent,
confirming the grant thereof hereunder, the form of such confirmatory grant to
be satisfactory to the Collateral Agent hereunder, the form of such grant of
security to be substantially the same as the form hereof or in such other form
as may be reasonably satisfactory to the Collateral Agent.
5.7. Remedies. If an Event of Default shall occur and be continuing, the
--------
Collateral Agent may, by written notice to the relevant Grantor, take any or all
of the following actions: (a) declare the entire right, title and interest of
such Grantor in and to each of the Marks and the goodwill of the business
associated therewith, together with all trademark rights and rights of
protection to the same, vested, in which event such rights, title and interest
shall immediately vest, in the Collateral Agent for the benefit of the Secured
Creditors pursuant to the grant of security interest in trademarks in the form
of Annex A hereto, executed by such Grantor and filed promptly after the date
-------
hereof, pursuant to which all of such Grantor's right, title and interest in and
to the marks are assigned to the Collateral Agent for the benefit of the Secured
Creditors; (b) take and use or sell the Marks and the goodwill of such Grantor's
business symbolized by the Marks and the right to carry on the business and use
the assets of such Grantor in connection with which the Marks have been used;
and (c) direct such Grantor to refrain, in which event such Grantor shall
refrain, from using the Marks in any manner whatsoever, directly or indirectly,
and, if requested by the Collateral Agent, change such Grantor's corporate name
to eliminate therefrom any use of any Xxxx and execute such other and further
documents that the Collateral Agent may request to further confirm this and to
transfer ownership of the Marks and registrations and any pending trademark
application in the United States Patent and Trademark Office or any equivalent
government agency or office in any foreign jurisdiction to the Collateral Agent.
ARTICLE VI.
SPECIAL PROVISIONS CONCERNING
PATENTS AND COPYRIGHTS
6.1. Additional Representations and Warranties. Each Grantor represents
-----------------------------------------
and warrants that it is the true and lawful owner of all rights in (a) all Trade
Secret Rights, (b) the Patents listed in Schedule F hereto and (c) the
----------
Copyrights listed in Schedule G hereto, that said Patents constitute all the
----------
United States patents and applications for patents that such Grantor now owns or
is licensed to use and that said Copyrights constitute all the United States
registered copyrights that such Grantor now owns. Each Grantor represents and
warrants that it owns or is licensed to use all Patents and Copyrights that it
now owns or uses. Each Grantor further
15
warrants that it has no knowledge of any third-party claim that any aspect of
such Grantor's present or contemplated business operations infringes or will
infringe any patent or any copyright or misappropriates any trade secret or
proprietary information.
6.2. Licenses and Assignments. Except as otherwise permitted by the Credit
------------------------
Agreement and other than the license agreements listed on Schedule E hereto and
----------
any extensions or renewals thereof, each Grantor hereby agrees not to divest
itself of any right under any Patent or Copyright other than in the ordinary
course of business absent prior written approval of the Collateral Agent.
6.3. Infringements. Each Grantor agrees, promptly upon learning thereof,
-------------
to furnish the Collateral Agent in writing with all pertinent information
available to such Grantor with respect to any infringement, contributing
infringement or active inducement to infringe any Grantor's rights in any Patent
or Copyright, or with respect to any claim that practice of any Patent or
Copyright violates any property right of a third party or with respect to any
misappropriation of any Trade Secret Rights or any claim that the practice of a
Trade Secret Right violates any property right of a third party. Each Grantor
further agrees, consistent with good business practice and absent direction of
the Collateral Agent to the contrary, diligently to prosecute any Person
infringing any Patent or Copyright or misappropriating any Trade Secret Right in
accordance with commercially reasonable business practices.
6.4. Maintenance of Patents. At its own expense, each Grantor shall make
----------------------
timely payment of all post-issuance fees required pursuant to 35 U.S.C. (S) 41
to maintain in force rights under each of its material Patents.
6.5. Prosecution of Patent Application. At its own expense, each Grantor
---------------------------------
shall diligently prosecute all applications for United States Patents listed on
Schedule F hereto and shall not abandon any such application prior to exhaustion
----------
of all reasonable administrative and judicial remedies, absent written consent
of the Collateral Agent, provided that, to the extent permitted by the Credit
--------
Agreement, no Grantor shall be obligated to prosecute any application in the
event such Grantor determines, in its reasonable business judgment, that the
prosecuting of such application is no longer necessary or desirable in the
conduct of its business.
6.6. Other Patents and Copyrights. Within 30 days of the acquisition or
----------------------------
issuance of a United States Patent, registration of a Copyright, or acquisition
of a registered Copyright, or filing of an application for a United States
Patent or Copyright, the relevant Grantor shall deliver to the Collateral Agent
a copy of said Copyright or certificate of registration of, or application
therefor, said Patents, as the case may be, with an assignment for security as
to such Patent or Copyright, as the case may be, to the Collateral Agent and at
the expense of such Grantor, confirming the assignment for security, the form of
such assignment for security to be substantially the same as the form hereof or
in such other form as may be reasonably satisfactory to the Collateral Agent.
6.7. Remedies. If an Event of Default shall occur and be continuing, the
--------
Collateral Agent may, by written notice to the relevant Grantor, take any or all
of the following actions: (a) declare the entire right, title and interest of
such Grantor in each of the Patents and Copyrights vested, in which event such
right, title and interest shall immediately vest in the Collateral Agent
16
for the benefit of the Secured Creditors, pursuant to the assignment of security
interest in patents in the form of Annex A hereto, and the assignment of
-------
security interest in copyrights in the form of Annex B hereto, in each case,
-------
executed by such Grantor and filed promptly after the date hereof, pursuant to
which all of such Grantor's right, title and interest to such Patents and
Copyrights are assigned to the Collateral Agent for the benefit of the Secured
Creditors; (b) take and practice or sell the Patents and Copyrights; and (c)
direct such Grantor to refrain, in which event such Grantor shall refrain, from
practicing the Patents and Copyrights, directly or indirectly, and such Grantor
shall execute such other and further documents as the Collateral Agent may
request further to confirm this and to transfer ownership of the Patents and
Copyrights to the Collateral Agent for the benefit of the Secured Creditors.
ARTICLE VII.
PROVISIONS CONCERNING ALL SECURITY AGREEMENT COLLATERAL
7.1. Protection of Collateral Agent's Security. No Grantor will do
-----------------------------------------
anything to impair the rights of the Collateral Agent in the Security Agreement
Collateral. Each Grantor will at all times keep its Inventory and Equipment
insured in favor of the Collateral Agent, at such Grantor's own expense to the
extent and in the manner provided in the Credit Agreement; all policies or
certificates with respect to such insurance shall be endorsed to the Collateral
Agent's satisfaction for the benefit of the Collateral Agent (including, without
limitation, by naming the Collateral Agent as loss payee) and deposited with the
Collateral Agent. If any Grantor shall fail to insure its Inventory to the
extent required by the Credit Agreement, or if any Grantor shall fail to so
endorse and deposit all policies or certificates with respect thereto, the
Collateral Agent shall have the right (but shall be under no obligation) to
procure such insurance and such Grantor agrees to reimburse the Collateral Agent
for all costs and expenses of procuring such insurance. The Collateral Agent
may apply any proceeds in accordance with Section 8.4 hereof or in accordance
-----------
with the Credit Agreement. Each Grantor assumes all liability and
responsibility in connection with the Security Agreement Collateral acquired by
it and the liability of such Grantor to pay its Obligations shall in no way be
affected or diminished by reason of the fact that such Security Agreement
Collateral may be lost, destroyed, stolen, damaged or for any reason whatsoever
unavailable to such Grantor.
7.2. Warehouse Receipts Non-Negotiable. Each Grantor agrees that if any
---------------------------------
warehouse receipt or receipt in the nature of a warehouse receipt is issued with
respect to any of its Inventory, such warehouse receipt or receipt in the nature
thereof shall not be "negotiable" (as such term is used in Section 7-104 of the
----------
Uniform Commercial Code as in effect in any relevant jurisdiction or under other
relevant law).
7.3. Further Actions. Each Grantor will, at its own expense, make,
---------------
execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from
time to time such lists, descriptions and designations of its Security Agreement
Collateral, warehouse receipts, receipts in the nature of warehouse receipts,
bills of lading, documents of title, vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, reports and other assurances or instruments and take
such further steps relating to the Security Agreement Collateral and other
property or rights covered by the security
17
interest hereby granted, which the Collateral Agent deems reasonably appropriate
to perfect, preserve or protect its security interest in the Security Agreement
Collateral.
7.4. Financing Statements. Each Grantor agrees to execute and deliver to
--------------------
the Collateral Agent such financing statements, in form reasonably acceptable to
the Collateral Agent, as the Collateral Agent may from time to time reasonably
request or as are necessary or desirable in the opinion of the Collateral Agent
to establish and maintain a valid, enforceable, first-priority, perfected
security interest (subject to Permitted Liens) in the Security Agreement
Collateral as provided herein and the other rights and security contemplated
hereby, all in accordance with the Uniform Commercial Code as enacted in any and
all relevant jurisdictions or any other relevant law. Each Grantor will pay any
applicable filing fees and related expenses. Each Grantor authorizes the
Collateral Agent to file any such financing statements without the signature of
such Grantor.
ARTICLE VIII.
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
8.1. Remedies, Obtaining the Security Agreement Collateral Upon Default.
------------------------------------------------------------------
Each Grantor agrees that, if any Event of Default shall have occurred and be
continuing, then and in every such case, subject to any mandatory requirements
of applicable law then in effect, the Collateral Agent, in addition to any
rights now or hereafter existing under applicable law, shall have all rights as
a secured creditor under the Uniform Commercial Code in all relevant
jurisdictions and may:
(a) personally, or by agents or attorneys, immediately take
possession of the Security Agreement Collateral or any part thereof, from
such Grantor or any other Person who then has possession of any part
thereof, with or without notice or process of law, and for that purpose may
enter upon such Grantor's premises where any of the Security Agreement
Collateral is located and remove the same and use in connection with such
removal any and all servic es, supplies, aids and other facilities of such
Grantor;
(b) instruct the obligor or obligors on any agreement, instrument or
other obligation (including, without limitation, the Accounts) constituting
the Security Agreement Collateral to make any payment required by the terms
of such agreement or instrument directly to the Collateral Agent;
(c) withdraw all monies, securities and other instruments in the Cash
Collateral Account for application to the Obligations in accordance with
Section 8.4;
-----------
(d) sell, assign or otherwise liquidate, or direct such Grantor to
sell, assign or otherwise liquidate, any or all of the Security Agreement
Collateral or any part thereof in accordance with Section 8.2 and take
-----------
possession of the proceeds of any such sale or liquidation;
(e) take possession of the Security Agreement Collateral, or any part
thereof, by directing such Grantor in writing to deliver the same to the
Collateral Agent at any
18
place or places designated by the Collateral Agent, in which event such
Grantor shall at its own expense:
(i) forthwith cause the same to be moved to the place or
places so designated by the Collateral Agent and there delivered to
the Collateral Agent,
(ii) store and keep any Security Agreement Collateral so
delivered to the Collateral Agent at such place or places pending
further action by the Collateral Agent as provided in Section 8.2, and
-----------
(iii) while the Security Agreement Collateral shall be so stored
and kept, provide such guards and maintenance services as shall be
necessary to protect the same and to preserve and maintain it in good
condition; and
(f) license or sublicense, whether on an exclusive or nonexclusive
basis, any Marks, Patents or Copyrights included in the Security Agreement
Collateral for such term and on such conditions and in such manner as the
Collateral Agent shall in its sole judgment determine (taking into account
such provisions as may be necessary to protect and preserve such Marks,
Patents or Copyrights);
it being understood that such Grantor's obligation to so deliver the Security
Agreement Collateral is of the essence of this Agreement and that, accordingly,
upon application to a court of equity having jurisdiction, the Collateral Agent
shall be entitled to a decree requiring specific performance by such Grantor of
said obligation.
8.2. Remedies, Disposition of the Security Agreement Collateral. Upon the
----------------------------------------------------------
occurrence and during the continuance of an Event of Default, any Security
Agreement Collateral repossessed by the Collateral Agent under or pursuant to
Section 8.1 and any other Security Agreement Collateral whether or not so
-----------
repossessed by the Collateral Agent may be sold, assigned, leased, licensed or
otherwise disposed of under one or more contracts or as an entirety, and without
the necessity of gathering at the place of sale the property to be sold, and in
general in such manner, at such time or times, at such place or places and on
such terms as the Collateral Agent may, in compliance with any mandatory
requirements of applicable law, determine to be commercially reasonable. Any of
the Security Agreement Collateral may be sold, leased, licensed or otherwise
disposed of, in the condition in which the same existed when taken by the
Collateral Agent or after any overhaul or repair (at the expense of the relevant
Grantor) which the Collateral Agent shall determine to be commercially
reasonable. Any such disposition which shall be a private sale or other private
proceedings permitted by such requirements shall be made upon not less than 10
days written notice to the relevant Grantor specifying the time at which such
disposition is to be made and the intended sale price or other consideration
therefor and shall be subject, for the 10 days after the receipt of such notice,
to the right of the relevant Grantor or any nominee of such Grantor to acquire
the Security Agreement Collateral involved at a price or for such other
consideration at least equal to the intended sale price or other consideration
so specified. Any such disposition which shall be a public sale permitted by
such requirements shall be made upon not less than 10 days written notice to the
relevant Grantor specifying the time and place of such sale. To the extent
permitted by any such requirement of law, the Collateral Agent, on behalf of the
Secured Creditors, may bid for and
19
become the purchaser of the Security Agreement Collateral or any item thereof
offered for sale in accordance with this Section 8.2 without accountability to
-----------
the relevant Grantor. If, under mandatory requirements of applicable law, the
Collateral Agent shall be required to make disposition of the Security Agreement
Collateral within a period of time which does not permit the giving of notice to
the relevant Grantor as hereinabove specified, the Collateral Agent need give
such Grantor only such notice of disposition as shall be reasonably practicable
in view of such mandatory requirements of applicable law. Each Grantor agrees to
do or cause to be done all such other acts and things as may be reasonably
necessary to make such sale or sales of all or any portion of the Security
Agreement Collateral valid and binding and in compliance with all applicable
laws, regulations, orders, writs, injunctions, decrees or awards of any and all
courts, arbitrators or governmental instrumentalities, domestic or foreign,
having jurisdiction over any such sale or sales, all at such Grantor's expense.
8.3. WAIVER OF CLAIMS. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT,
----------------
EACH GRANTOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE
AND JUDICIAL HEARING IN CONNECTION WITH THE COLLATERAL AGENT'S TAKING POSSESSION
OR THE COLLATERAL AGENT'S DISPOSITION OF ANY OF THE SECURITY AGREEMENT
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING
FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH SUCH GRANTOR
WOULD OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES
OR OF ANY STATE, AND EACH GRANTOR HEREBY FURTHER WAIVES, TO THE EXTENT PERMITTED
BY LAW:
(a) all damages occasioned by such taking of possession except any
damages which are the direct result of the Collateral Agent's gross
negligence or willful misconduct;
(b) all other requirements as to the time, place and terms of sale or
other requirements with respect to the enforcement of the Collateral
Agent's rights hereunder; and
(c) all rights of redemption, appraisement, valuation, stay,
extension or moratorium now or hereafter in force under any applicable law
in order to prevent or delay the enforcement of this Agreement or the
absolute sale of the Security Agreement Collateral or any portion thereof,
and each Grantor, for itself and all who may claim under it, insofar as it
or they now or hereafter lawfully may, hereby waives the benefit of all
such laws.
Any sale of, or the grant of options to purchase, or any other realization upon,
any Security Agreement Collateral shall operate to divest all right, title,
interest, claim and demand, either at law or in equity, of the relevant Grantor
therein and thereto, and shall be a perpetual bar both at law and in equity
against such Grantor and against any and all Persons claiming or attempting to
claim the Security Agreement Collateral so sold, optioned or realized upon, or
any part thereof, from, through and under such Grantor.
20
8.4. Application of Proceeds.
-----------------------
(a) All monies collected by the Collateral Agent (or, to the extent
any Pledge Agreement or any Mortgage requires proceeds of Security
Agreement Collateral under such Security Documents to be applied in
accordance with the provisions of this Agreement, the Collateral Agent or
Mortgagee under such other Security Document) upon any sale or other
disposition of the Security Agreement Collateral, together with all other
monies received by the Collateral Agent hereunder, shall be applied as
follows:
(i) first, to the payment of all Obligations owing to the
Collateral Agent of the type described in clauses (b) and (c) of the
definition of "Obligations" contained in Section 2.2 hereof;
----------- -----------
(ii) second, to the extent proceeds remain after the
application pursuant to the preceding clause (i), an amount equal to
the outstanding Primary Obligations shall be paid to the Secured
Creditors as provided in Section 8.4(e), with each Secured Creditor
--------------
receiving an amount equal to such outstanding Primary Obligations (as
defined in paragraph (b) below) or, if the proceeds are insufficient
to pay in full all such Primary Obligations, its Pro Rata Share (as
defined in paragraph (b) below) of the amount remaining to be
distributed;
(iii) third, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) and (ii), an amount
equal to the outstanding Secondary Obligations shall be paid to the
Secured Creditors as provided in Section 8.4(e), with each Secured
--------------
Creditor receiving an amount equal to its outstanding Secondary
Obligations or, if the proceeds are insufficient to pay in full all
such Secondary Obligations, its Pro Rata Share of the amount remaining
to be distributed; and
(iv) fourth, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) through (iii),
inclusive, and following the termination of this Agreement pursuant to
Section 10.10 hereof, to the relevant Grantor or to whomever may be
-------------
lawfully entitled to receive such surplus.
(b) For purposes of this Agreement, (i) "Pro Rata Share" shall mean,
--------------
when calculating a Secured Creditor's portion of any distribution or
amount, that amount (expressed as a percentage) equal to a fraction, the
numerator of which is the then unpaid amount of such Secured Creditor's
Primary Obligations or Secondary Obligations, as the case may be, and the
denominator of which is the then outstanding amount of all Primary
Obligations or Secondary Obligations, as the case may be, (ii) "Primary
-------
Obligations" shall mean (w) in the case of the Loan Document Obligations,
-----------
all principal of, and interest on, all Loans, all Letter of Credit
Obligations (together with all interest accrued thereon) and all fees
payable pursuant to the Loan Documents, (x) in the case of the Interest
Rate Protection Obligations, all amounts due under the Interest Rate
Protection Agreements (other than indemnities, fees (including, without
limitation, attorneys' fees) and similar obligations and liabilities), (y)
all obligations and liabilities of each Grantor to the Management Loan
Creditor, now existing or hereinafter incurred under, arising out of
21
or in connection with the Management Loan Guaranty and (z) all obligations
and liabilities of each Grantor to the Bastet/Mission Creditors, now
existing and hereafter incurred under, arising out of or in connection with
the Bastet/Mission Guaranty and (iii) "Secondary Obligations" shall mean
---------------------
all Obligations other than Primary Obligations.
(c) When payments to the Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under
this Section 8.4 only) (i) first, to their Primary Obligations and (ii)
-----------
second, to their Secondary Obligations. If any payment to any Secured
Creditor of its Pro Rata Share of any distribution would result in
overpayment to such Secured Creditor, such excess amount shall instead be
distributed in respect of the unpaid Primary Obligations or Secondary
Obligations, as the case may be, of the other Secured Creditors, with each
Secured Creditor whose Primary Obligations or Secondary Obligations, as the
case may be, have not been paid in full to receive an amount equal to such
excess amount multiplied by a fraction, the numerator of which is the
unpaid Primary Obligations or Secondary Obligations, as the case may be, of
such Secured Creditor and the denominator of which is the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of all Secured
Creditors entitled to such distribution.
(d) Each of the Secured Creditors agrees and acknowledges that if the
Bank Creditors are to receive a distribution on account of undrawn amounts
with respect to Letters of Credit issued (or deemed issued) under the
Credit Agreement (which shall only occur after all outstanding Loans and
Letter of Credit Obligations with respect to such Letters of Credit have
been paid in full), such amounts shall be paid to the Administrative Agent
under the Credit Agreement and held by it, for the equal and ratable
benefit of the Bank Creditors, as cash security for the repayment of
Obligations owing to the Bank Creditors as such. If any amounts are held
as cash security pursuant to the immediately preceding sentence, then upon
the termination of all outstanding Letters of Credit, and after the
application of all such cash security to the repayment of all Obligations
owing to the Bank Creditors after giving effect to the termination of all
such Letters of Credit, if there remains any excess cash, such excess cash
shall be returned by the Administrative Agent to the Collateral Agent for
distribution in accordance with Section 8.4(a) hereof.
--------------
(e) Except as set forth in Section 8.4(d) hereof, all payments
--------------
required to be made hereunder shall be made (i) if to the Bank Creditors,
to the Administrative Agent under the Credit Agreement for the account of
the Bank Creditors, and (ii) if to the other Secured Creditors, to the
trustee, paying agent or other similar representative (each a
"Representative") for the other Secured Creditors or, in the absence of
--------------
such a Representative, directly to the other Secured Creditors.
(f) For purposes of applying payments received in accordance with
this Section 8.4, (i) the Collateral Agent shall determine the unpaid
-----------
Primary Obligations and the other Loan Document Obligations owed to the
Bank Creditors and (ii) the Collateral Agent may rely on (x) any Interest
Rate Protection Creditor to determine the unpaid Primary Obligations and
other Interest Rate Protection Obligations owed to such Interest Rate
Protection Creditor, (y) any Bastet/Mission Creditor to determine the
unpaid
22
Primary Obligations and other Bastet/Mission Guaranty Obligations owed to
such Bastet/Mission Creditor and (z) the Management Loan Creditor to
determine the unpaid Primary Obligations and other Management Loan Guaranty
Obligations owed to the Management Loan Creditor.
(g) It is understood and agreed that the Grantors shall remain
jointly and severally liable to the extent of any deficiency between the
amount of the proceeds of the Security Agreement Collateral hereunder and
the aggregate amount of the sums referred to in clauses (i) through (iii),
inclusive, of Section 8.4(a).
--------------
8.5. Remedies Cumulative. Each and every right, power and remedy hereby
-------------------
specifically given to the Collateral Agent shall be in addition to every other
right, power and remedy specifically given under this Agreement, the Interest
Rate Protection Agreements, the other Loan Documents, the Management Loan
Guaranty or the Bastet/Mission Guaranty now or hereafter existing at law or in
equity, or by statute, and each and every right, power and remedy whether
specifically herein given or otherwise existing may be exercised from time to
time or simultaneously and as often and in such order as may be deemed expedient
by the Collateral Agent. All such rights, powers and remedies shall be
cumulative, and the exercise or the beginning of exercise of one shall not be
deemed a waiver of the right to exercise of any other or others. No delay or
omission of the Collateral Agent in the exercise of any such right, power or
remedy and no renewal or extension of any of the Obligations and no course of
dealing between any Grantor and the Collateral Agent or any holder of any of the
Obligations shall impair any such right, power or remedy or shall be construed
to be a waiver of any Default or Event of Default or an acquiescence therein. In
the event that the Collateral Agent shall bring any suit to enforce any of its
rights hereunder and shall be entitled to judgment, then in such suit the
Collateral Agent may recover reasonable expenses, including attorneys' fees, and
the amounts thereof shall be included in such judgment.
8.6. Discontinuance of Proceedings. In case the Collateral Agent shall
-----------------------------
have instituted any proceeding to enforce any right, power or remedy under this
Agreement by foreclosure, sale, entry or otherwise, and such proceeding shall
have been discontinued or abandoned for any reason or shall have been determined
adversely to the Collateral Agent, then and in every such case the relevant
Grantor, the Collateral Agent and the holders of any of the Obligations shall be
restored to their former positions and rights hereunder with respect to the
Security Agreement Collateral subject to the security interest created under
this Agreement, and all rights, remedies and powers of the Collateral Agent
shall continue as if no such proceeding had been instituted.
ARTICLE IX.
INDEMNITY
9.1. Indemnity.
---------
(a) Each Grantor jointly and severally agrees to indemnify,
reimburse and hold the Collateral Agent, each other Secured Creditor and
their respective successors, assigns, employees, agents and servants
(hereinafter in this Section 9.1, referred to individually as an
-----------
"Indemnitee," and collectively as "Indemnitees") harmless from any
---------- -----------
23
and all liabilities, obligations, losses, damages, injuries, penalties,
claims, demands, actions, suits, judgments and any and all costs and
expenses (including reasonable attorneys' fees and expenses) (for the
purposes of this Section 9.1, the foregoing are collectively called
-----------
"expenses") of whatsoever kind and nature imposed on, asserted against or
--------
incurred by any of the Indemnitees in any way relating to or arising out of
this Agreement, or in any other way connected with the enforcement of any
of the terms of, or the preservation of any rights hereunder or in any way
relating to or arising out of the manufacture, ownership, ordering,
purchase, delivery, control, acceptance, lease, licensing, financing,
possession, operation, condition, sale, return or other disposition, or use
of the Security Agreement Collateral (including, without limitation, latent
or other defects, whether or not discoverable), the violation of the laws
of any governmental body or unit, or any tort (including, without
limitation, claims arising or imposed under the doctrine of strict
liability, or for or on account of injury to or the death of any Person
(including any Indemnitee), or property damage), or contract claim;
provided that no Indemnitee shall be indemnified pursuant to this
--------
Section 9.1(a) for losses, damages or liabilities to the extent caused by
--------------
the gross negligence or willful misconduct of such Indemnitee. Each Grantor
agrees that upon written notice by any Indemnitee of the assertion of such
a liability, obligation, loss, damage, penalty, claim, demand, action, suit
or judgment, such Grantor shall assume full responsibility for the defense
thereof. Each Indemnitee agrees to use its best efforts to promptly notify
such Grantor of any such assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of Section 9.1(a), each Grantor
--------------
jointly and severally agrees to pay, or reimburse the Collateral Agent for
(if the Collateral Agent shall have incurred fees, costs or expenses
because such Grantor shall have failed to comply with its obligations under
this Agreement or any Loan Document), any and all reasonable fees, costs
and expenses of whatever kind or nature incurred in connection with the
creation, preservation or protection of the Collateral Agent's Liens on,
and security interest in, the Security Agreement Collateral, including,
without limitation, all fees and taxes in connection with the recording or
filing of instruments and documents in public offices, payment or discharge
of any taxes or Liens upon or in respect of the Security Agreement
Collateral, premiums for insurance with respect to the Security Agreement
Collateral and all other reasonable fees, costs and expenses in connection
with protecting, maintaining or preserving the Security Agreement
Collateral and the Collateral Agent's interest therein, whether through
judicial proceedings or otherwise, or in defending or prosecuting any
actions, suits or proceedings arising out of or relating to the Security
Agreement Collateral.
(c) Without limiting the application of Section 9.1(a) or (b), each
-------------- ---
Grantor agrees to pay, indemnify and hold each Indemnitee harmless from and
against any loss, costs, damages and expenses which such Indemnitee may
suffer, expend or incur in consequence of or growing out of any
misrepresentation by such Grantor in this Agreement, any Interest Rate
Protection Agreement, any other Loan Document, the Management Loan Guaranty
or the Bastet/Mission Guaranty or in any writing contemplated by or made or
delivered pursuant to or in connection with this Agreement, any Interest
Rate Protection Agreement or any other Loan Document, the Management Loan
Guaranty or the Bastet/Mission Guaranty.
24
(d) If and to the extent that the obligations of any Grantor under
this Section 9.1 are unenforceable for any reason, such Grantor hereby
-----------
agrees to make the maximum contribution to the payment and satisfaction of
such obligations which is permissible under applicable law.
9.2. Indemnity Obligations Secured by Security Agreement Collateral;
---------------------------------------------------------------
Survival. Any amounts paid by any Indemnitee, as to which such Indemnitee has
--------
the right to reimbursement, shall constitute Obligations secured by the Security
Agreement Collateral. The indemnity obligations of each Grantor contained in
this Article IX shall continue in full force and effect notwithstanding the full
----------
payment of all the Loans incurred under the Credit Agreement, the termination of
all Interest Rate Protection Agreements, the Management Loan Guaranty and the
Bastet/Mission Guaranty and the payment of all other Obligations and
notwithstanding the discharge thereof.
ARTICLE X.
MISCELLANEOUS
10.1. Notices. All notices, requests and other communications hereunder
--------
shall be in writing (including, unless the context expressly otherwise provides,
facsimile transmission) and mailed, transmitted by facsimile, or delivered:
(a) if to any Grantor, to the address or facsimile number on the
applicable signature page hereof;
(b) if to the Collateral Agent, at:
Bank of America, N.A.
000 Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000;
(c) if to any Bank (other than the Collateral Agent), at such
address or facsimile number as such Bank shall have specified in the Credit
Agreement;
(d) if to any Interest Rate Protection Creditor, at such address or
facsimile number as such Interest Rate Protection Creditor shall have
specified in writing to each Grantor and the Collateral Agent;
25
(e) if to the Management Loan Creditor, at:
Bank of America, N.A.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: 212) 000-0000;
(f) if to any Bastet/Mission Creditor, at such address or facsimile
number as such Bastet/Mission Creditor shall have specified in writing to
each Grantor and the Collateral Agent; or
(g) at such address or facsimile number as shall have been furnished
in writing by any Person described above to the party giving such notice or
making such request or other communication hereunder.
10.2. Waiver; Amendment.
-----------------
(a) No amendment or waiver of any provision of this Agreement, nor
consent to any departure by any Grantor herefrom, shall in any event be
effective unless the same shall be in writing and signed by the Collateral
Agent (with the consent of the Majority Banks or, to the extent required by
Section 11.01(a)(vii) of the Credit Agreement, with the consent of each of
the Banks), and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided
--------
however, that no such change, waiver, modification or variance shall be
-------
made to Section 8.4 hereof or this Section 10.2 without the consent of each
----------- ------------
Secured Creditor adversely affected thereby, and provided further, that any
----------------
change, waiver, modification or variance affecting the rights and benefits
of a single Class of Secured Creditors (and not all Secured Creditors in a
like or similar manner) shall require the written consent of the Requisite
Creditors of such Class of Secured Creditors.
(b) No delay on the part of the Collateral Agent in exercising any
of its rights, remedies, powers and privileges hereunder or partial or
single exercise thereof, shall constitute a waiver thereof. No notice to or
demand on any Grantor in any case shall entitle it to any other or further
notice or demand in similar or other circumstances or constitute a waiver
of any of the rights of the Collateral Agent to any other or further action
in any circumstances without notice or demand.
10.3. Obligations Absolute. The obligations of each Grantor hereunder shall
--------------------
remain in full force and effect without regard to, and shall not be impaired by,
(a) any bankruptcy, insolvency, reorganization, arrangement, readjustment,
composition, liquidation or the like of such Grantor; (b) any exercise or non-
exercise, or any waiver of, any right, remedy, power or privilege under or in
respect of this Agreement, the Credit Agreement, any other Loan Document or any
Interest Rate Protection Agreement, the Management Loan Guaranty or the
Bastet/Mission Guaranty, except as specifically set forth in a waiver granted
pursuant to Section 10.2 hereof; or (c) any amendment to, or modification of,
------------
any Loan Document or any Interest
26
Rate Protection Agreement or any security for any of the Obligations, the
Management Loan Guaranty, or the Bastet/Mission Guaranty, whether or not such
Grantor shall have notice or knowledge of any of the foregoing. The rights and
remedies of the Collateral Agent herein provided are cumulative and not
exclusive of any rights or remedies which the Collateral Agent would otherwise
have.
10.4. Successors and Assigns. This Agreement shall be binding upon each
----------------------
Grantor and its respective successors and assigns and shall inure to the benefit
of the Collateral Agent and its successors and assigns, provided that no Grantor
may transfer or assign any or all of its rights or obligations hereunder without
the written consent of the Collateral Agent. All agreements, statements,
representations and warranties made by such Grantor herein or in any certificate
or other instrument delivered by each Grantor or on its behalf under this
Agreement shall be considered to have been relied upon by the Secured Creditors
and shall survive the execution and delivery of this Agreement, the other Loan
Documents and the Interest Rate Protection Agreements, regardless of any
investigation made by the Secured Creditors or on their behalf.
10.5. Headings Descriptive. The headings of the several sections of this
--------------------
Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.
10.6. Severability. Any provision of this Agreement which is prohibited
------------
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.7. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
-------------
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK.
10.8. Grantor's Duties. It is expressly agreed, anything herein contained
----------------
to the contrary notwithstanding, that each Grantor shall remain liable to
perform all of the obligations, if any, of such Grantor with respect to the
Security Agreement Collateral, and the Collateral Agent shall not have any
obligations or liabilities with respect to any Security Agreement Collateral by
reason of or arising out of this Agreement, nor shall the Collateral Agent be
required or obligated in any manner to perform or fulfill any of the obligations
of each Grantor under or with respect to any Security Agreement Collateral,
except to the extent directly resulting from the Collateral Agent's gross
negligence or willful misconduct.
10.9. Actions Requiring FCC Approval.
------------------------------
(a) Notwithstanding anything contrary contained in this Agreement,
or any of the documents executed pursuant hereto, the Collateral Agent will
not take any action pursuant to this Agreement, or any such documents,
which would constitute or result in any assignment of any FCC License or
any transfer of control of the holder of any FCC License if such assignment
of such license or such transfer of control would require under
27
then-existing law (including the Communications Act and the written rules,
regulations and policies promulgated by the FCC), the prior approval of the
FCC, without first obtaining such approval. In connection with this Section
-------
10.9, the Collateral Agent shall be entitled to rely in good faith upon an
----
opinion of outside FCC counsel of the Collateral Agent's choice with
respect to such assignment or transfer, whether or not the advice rendered
is ultimately determined to have been accurate. To the extent that such an
opinion is requested, a copy of such opinion shall be delivered to each
Grantor.
(b) If an Event of Default shall have occurred, each Grantor shall
take any action which the Collateral Agent may request in the exercise of
its rights and remedies under this Agreement in order to transfer or assign
the Security Agreement Collateral to the Collateral Agent or to such one or
more third parties as the Collateral Agent may designate, or to a
combination of the foregoing. To enforce the provisions of this Section
-------
10.9, the Collateral Agent is empowered to seek from the FCC and any other
----
Governmental Authority, to the extent required, consent to or approval of
any involuntary transfer of control of any entity whose Security Agreement
Collateral is subject to this Agreement for the purpose of seeking a bona
fide purchaser to whom control will ultimately be transferred. Each
Grantor agrees to cooperate with any such purchaser and with the Collateral
Agent in the preparation, execution and filing of any forms and providing
any information that may be necessary or helpful in obtaining the FCC's
consent to the assignment to such purchaser of the Security Agreement
Collateral. Each Grantor hereby agrees to consent to any such involuntary
transfer of control upon the request of the Collateral Agent after and
during the continuation of an Event of Default and, without limiting any
rights of the Collateral Agent under this Agreement, to authorize the
Collateral Agent to nominate a trustee or receiver to assume control of the
Security Agreement Collateral, subject only to required judicial, FCC or
other consent required by any Governmental Authority, in order to
effectuate the transactions contemplated in this Section 10.9. Such
------------
trustee or receiver shall have all the rights and powers as provided to it
by law or court order, or to the Collateral Agent under this Agreement.
Each Grantor shall cooperate fully in obtaining the consent of the FCC and
the approval or consent of each other Governmental Authority required to
effectuate the foregoing.
(c) Each Grantor shall use its best efforts to assist in obtaining
the consent or approval of the FCC and any other Governmental Authority, if
required, for any action or transactions contemplated by this Agreement,
including, without limitation, the preparation, execution and filing with
the FCC of the transferor's or Grantor's portion of any application or
applications for consent to the transfer of control or assignment necessary
or appropriate under the FCC's rules and regulations for approval of the
transfer or assignment of any portion of the Security Agreement Collateral.
Anything herein to the contrary notwithstanding, no Grantor shall be
obligated to sign any such document which such Grantor has reasonable cause
to believe contains any inaccuracy or to make any statements concerning the
qualifications of any transferee or assignee.
(d) Each Grantor hereby acknowledges and agrees that the Security
Agreement Collateral is a unique asset and that a violation of such
Grantor's covenant to cooperate with respect to any regulatory consents
would result in irreparable harm to the
28
Collateral Agent for which monetary damages are not readily ascertainable.
Each Grantor further agrees that, because of the unique nature of its
undertakings in this Section 10.9, the same may be specifically enforced,
------------
and it hereby waives, and agrees to waive, any claim or defense that the
Collateral Agent would have an adequate remedy at law for the breach of
such undertakings.
(e) Without limiting the obligations of any Grantor hereunder in
any respect, each Grantor further agrees that if such Grantor, upon or
after the occurrence of an Event of Default, should fail or refuse for any
reason whatsoever, without limitation, including any refusal pursuant to
Section 10.9(c) to execute any application necessary or appropriate to
---------------
obtain any governmental consent necessary or appropriate for the exercise
of any right of the Collateral Agent hereunder, such Grantor agrees that
such application may be executed on such Grantor's behalf by the clerk of
court or other representative of any court or other forum of competent
jurisdiction without notice to such Grantor pursuant to an order of such
court or forum.
10.10. Termination; Release.
---------------------
(a) After the Lien Termination Date (as defined below), this
Agreement shall terminate, and the Collateral Agent, at the request and
expense of the relevant Grantor, will execute and deliver to such Grantor
such instrument or instruments (including Uniform Commercial Code
termination statements on Form UCC-3) acknowledging the satisfaction and
termination of this Agreement as reasonably requested by such Grantor, and
will duly assign, transfer and deliver to such Grantor (without recourse
and without any representation or warranty) such of the Security Agreement
Collateral as may be in the possession of the Collateral Agent and has not
theretofore been sold or otherwise applied or released pursuant to this
Agreement. As used in this Agreement, "Lien Termination Date" shall mean
---------------------
the date upon which (i) all Obligations under the Credit Agreement and the
other Loan Documents (other than indemnities for which no request for
payment has been made) have been paid in full and all Letters of Credit and
commitments thereunder have been terminated and the obligations of the
Grantors under the Management Loan Guaranty and the Bastet/Mission Guaranty
have terminated in accordance or (ii) the Collateral Agent and, to the
extent required by Section 11.01(a)(vii) of the Credit Agreement, each of
the Banks shall have released all of the Security Agreement Collateral.
(b) In the event that any part of the Security Agreement Collateral
is sold in connection with a sale permitted by Section 8.03 of the Credit
Agreement or otherwise released at the direction of the Majority Banks (or
all Banks if required by Section 11.01(a)(vii) of the Credit Agreement) and
the proceeds of such sale or sales or from such release are applied in
accordance with the provisions of Section 2.07 of the Credit Agreement or
such direction, to the extent required to be so applied, such Security
Agreement Collateral will be sold free and clear of the Liens created by
this Agreement and the Collateral Agent, at the request and expense of the
respective Grantor, will duly assign, transfer and deliver to such Grantor
(without recourse and without any representation or warranty) such of the
Security Agreement Collateral as is then being (or
29
has been) so sold or released and has not theretofore been released
pursuant to this Agreement.
(c) At any time that any Grantor desires that the Collateral Agent
take any action to acknowledge or give effect to any release of Security
Agreement Collateral pursuant to the foregoing Section 10.10(a) or (b) it
---------------- ---
shall deliver to the Collateral Agent a certificate signed by an authorized
officer stating that the release of such Security Agreement Collateral is
permitted pursuant to Section 10.10(a) or (b). Upon any release of
---------------- ---
Security Agreement Collateral pursuant to Section 10.10(a) or (b), none of
---------------- ---
the Secured Creditors shall have any continuing right or interest in such
Security Agreement Collateral, or, if the release is pursuant to Section
-------
10.10(a), the proceeds thereof.
--------
(d) The Collateral Agent shall have no liability whatsoever to any
Secured Creditor as a result of any release of any Security Agreement
Collateral by it in accordance with this Section 10.10.
-------------
10.11. Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterpart
originals executed by all the parties hereto shall be delivered to the
Collateral Agent, and a copy thereof shall be furnished to the Borrower or any
Grantor promptly upon request therefor.
10.12. The Collateral Agent. The Collateral Agent will hold in accordance
--------------------
with this Agreement all items of the Security Agreement Collateral at any time
received under this Agreement. It is expressly understood and agreed by the
parties hereto and each Secured Creditor that the obligations of the Collateral
Agent as holder of the Security Agreement Collateral and interests therein and
with respect to the disposition thereof, and otherwise under this Agreement, are
only those expressly set forth in this Agreement. The Collateral Agent shall
act hereunder on the terms and conditions set forth in Article X of the Credit
---------
Agreement.
10.13. Decisions Relating to Exercise of Remedies.
------------------------------------------
(a) Notwithstanding anything to the contrary contained in this
Agreement, the Credit Agreement and the other Loan Documents, or any
Interest Rate Protection Agreement, or the Management Loan Guaranty or the
Bastet/Mission Guaranty, the Collateral Agent may, and at the request of
the Majority Banks shall, exercise or refrain from exercising, all rights
and remedies hereunder and provided by law, which remedies are cumulative
and not exclusive.
(b) By acceptance of the benefit of the security interests granted
pursuant to this Agreement in the Security Agreement Collateral, the
Interest Rate Protection Creditors, the Management Loan Creditor and the
Bastet/Mission Creditors hereby acknowledge that they have no rights to
direct the Collateral Agent to act or refrain from acting with respect to
the Security Agreement Collateral, and hereby acknowledge that the
Collateral Agent shall hold the Security Agreement Collateral (to the
extent such Security Agreement Collateral is evidenced by certificates,
notes or other instruments
30
delivered to it) for itself and the pro rata benefit of the Secured
Creditors, subject to the terms and conditions hereof, solely for the
purpose of providing them with a pari passu security interest in the
---- -----
Security Agreement Collateral (subject to the terms and conditions set
forth herein). In any proceeding under the Bankruptcy Code or any other
federal or state bankruptcy, insolvency, receivership or similar law and
prior to any vote in any such proceeding, the Interest Rate Protection
Creditors, the Management Loan Creditor and the Bastet/Mission Creditors
shall abstain from any such vote which is taken on a committee of secured
creditors or otherwise affects the disposition of the Security Agreement
Collateral.
10.14. Joinder.
(a) Each Grantor shall cause each of its Subsidiaries that may from
time to time be formed and that is not already a party hereto to become a
"Grantor" hereunder by executing and delivering to the Collateral Agent a
Joinder to Security Agreement substantially the form of Annex C hereto.
-------
Any such Subsidiary shall thereafter be deemed a "Grantor" for all purposes
under this Agreement.
(b) Each Grantor further agrees to take such actions as the
Collateral Agent reasonably deems necessary or desirable to effect the
foregoing and to permit the Collateral Agent to exercise any of its rights
and remedies hereunder, and agrees to provide an opinion of counsel
reasonably satisfactory to the Collateral Agent with respect to the
validity and perfection of any security interest granted hereunder, any
such Subsidiary that is to become a party hereto and such other matters as
may be reasonably requested by the Collateral Agent, in each case promptly
upon request of the Collateral Agent
[Remainder of page intentionally left blank; signature pages follow]
31
IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement
to be duly executed and delivered as of the date first above written.
GRANTORS:
NEXSTAR FINANCE, L.L.C.
NEXSTAR BROADCASTING GROUP, L.L.C.
NEXSTAR BROADCASTING OF ABILENE, INC.
NEXSTAR BROADCASTING OF BEAUMONT/ PORT XXXXXX, INC.
NEXSTAR BROADCASTING OF CHAMPAIGN, INC.
ERC HOLDINGS, INC.
NEXSTAR BROADCASTING OF ERIE, INC.
NEXSTAR BROADCASTING OF JOPLIN, INC.
NEXSTAR BROADCASTING OF LOUISIANA, INC.
NEXSTAR BROADCASTING OF MIDLAND-ODESSA, INC.
NEXSTAR MIDWEST HOLDINGS, INC.
NEXSTAR BROADCASTING OF NORTHEASTERN PENNSYLVANIA, INC.
NEXSTAR BROADCASTING OF PEORIA, INC.
NEXSTAR BROADCASTING OF ROCHESTER, INC.
NEXSTAR BROADCASTING OF WICHITA FALLS, INC.
NEXSTAR FINANCE HOLDINGS, INC.
NEXSTAR FINANCE HOLDINGS, L.L.C.
NEXSTAR BROADCASTING OF ABILENE, L.L.C.
NEXSTAR BROADCASTING OF BEAUMONT/ PORT XXXXXX, L.L.C.
NEXSTAR BROADCASTING OF CHAMPAIGN, L.L.C.
ENTERTAINMENT REALTY CORPORATION
NEXSTAR BROADCASTING OF ERIE, L.L.C.
NEXSTAR BROADCASTING OF JOPLIN, L.L.C.
NEXSTAR BROADCASTING OF LOUISIANA, L.L.C.
NEXSTAR BROADCASTING OF MIDLAND-ODESSA, L.L.C.
NEXSTAR BROADCASTING OF THE MIDWEST, INC.
NEXSTAR BROADCASTING GROUP, INC.
NEXSTAR BROADCASTING OF NORTHEASTERN PENNSYLVANIA, L.L.C.
NEXSTAR FINANCE, INC.
NEXSTAR BROADCASTING OF PEORIA, L.L.C.
NEXSTAR BROADCASTING OF ROCHESTER, L.L.C.
NEXSTAR BROADCASTING OF WICHITA FALLS, L.L.C.
By: /s/ Xxxxx Xxxx
------------------------------------------
Title: President of
------------------------
each of the above-named entities
Address of all Grantors:
200 Abington Executive Park, Xxxxx 000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
[Security Agreement Signature Page]
Collateral Agent:
BANK OF AMERICA, N.A.,
as Collateral Agent
By: /s/ Xxxxxxx Xxxxx
-------------------
Title: Vice President
[Security Agreement Signature Page]
SCHEDULE A
----------
SCHEDULE OF CHIEF EXECUTIVE OFFICES
AND OTHER RECORD LOCATIONS
--------------------------
--------------------------------------------------------------------------------
Grantor Chief Executive Office Other Locations
------- ---------------------- ---------------
--------------------------------------------------------------------------------
NEXSTAR FINANCE, L.L.C. 200 Abington Executive Park None
Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx Xxxx.
GROUP, L.L.C Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR FINANCE, INC. 000 Xxxxxxxx Xxxxxxxxx Xxxx Xxxx.
Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR FINANCE 000 Xxxxxxxx Xxxxxxxxx Xxxx Xxxx
HOLDINGS, INC. Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR FINANCE 200 Abington Executive Park None
HOLDINGS, L.L.C. Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx Xxxx
GROUP, INC. Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 200 Abington Executive Park c/o KTAB
OF ABILENE, INC. Suite 201 0000 Xxxxx 00xx Xxxxxx
Xxxxxx Xxxxxx, XX 00000 Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx x/x XXXX
XX XXXXXXXX/XXXX Xxxxx 000 2900-17th Street
XXXXXX, INC. Xxxxxx Xxxxxx, XX 00000 Xxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx c/o WCIA
OF CHAMPAIGN, INC. Xxxxx 000 000 Xxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
ERC HOLDINGS, INC. 000 Xxxxxxxx Xxxxxxxxx Xxxx Xxxx.
Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx c/o WJET
OF ERIE, INC. Xxxxx 000 0000 xxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000 Xxxx, XX 00000
--------------------------------------------------------------------------------
c/o WFXP
0000 Xxxxx Xxxxxx
Xxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 200 Abington Executive Park c/o KSNF
OF JOPLIN, INC. Xxxxx 000 0000 Xxxxxxxxx
Xxxxxx Xxxxxx, XX 00000 Xxxxxx, XX 00000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 200 Abington Executive Park c/o KTAL
OF LOUISIANA, INC. Xxxxx 000 0000 X. Xxxxxx
Xxxxxx Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx x/x XXXX
XX XXXXXXX-XXXXXX, INC. Xxxxx 000 0000 XxXxxxx Xxxx.
Xxxxxx Xxxxxx, XX 00000 Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx c/o WTWO
OF THE MIDWEST, INC. Suite 201 00000 X. X.X. Xxxxxxx 00
Xxxxxx Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
c/o KQTV
00xx xxx Xxxxxx
Xx. Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx x/x XXXX
XX XXXXXXXXXXXX Xxxxx 000 409 Lackawanna Avenue
PENNSYLVANIA, INC. Xxxxxx Xxxxxx, XX 00000 Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx x/x XXXX
XX XXXXXX, INC. Suite 201 0000 X. Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000 Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx x/x XXXX
XX XXXXXXXXX, INC. Xxxxx 000 000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx c/o KFDX
OF WICHITA FALLS, INC. Xxxxx 000 0000 Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxx, XX 00000 Xxxxxxx Xxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx c/o KTAB
OF ABILENE, L.L.C. Suite 201 0000 Xxxxx 00xx Xxxxxx
Xxxxxx Xxxxxx, XX 00000 Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx x/x XXXX
XX XXXXXXXX/XXXX Xxxxx 000 0000-00xx Xxxxxx
XXXXXX, X.X.X. Xxxxxx Xxxxxx, XX 00000 Xxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx c/o WCIA
OF CHAMPAIGN, L.L.C. Suite 201 000 Xxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
ENTERTAINMENT REALTY 000 Xxxxxxxx Xxxxxxxxx Xxxx Xxxx.
CORPORATION Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx c/o WJET
OF ERIE, L.L.C. Suite 201 0000 Xxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000 Xxxx, XX 00000
--------------------------------------------------------------------------------
c/o WFXP
0000 Xxxxx Xxxxxx
Xxxx, XX 00000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 200 Abington Executive Park x/x XXXX
XX XXXXXX, X.X.X. Xxxxx 000 0000 Xxxxxxxxx
Clarks Summit, PA 18411 Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx c/o KTAL
OF LOUISIANA, L.L.C. Xxxxx 000 0000 X. Xxxxxx
Xxxxxx Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx x/x XXXX
XX XXXXXXX-XXXXXX, Xxxxx 000 3200 XxXxxxx Blvd.
L.L.C. Xxxxxx Xxxxxx, XX 00000 Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx x/x XXXX
XX XXX XXXXXXX, X.X.X. Xxxxx 000 00000 X. X.X. Xxxxxxx 00
Xxxxxx Xxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
c/o KQTV
00xx xxx Xxxxxx
Xx. Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx x/x XXXX
XX XXXXXXXXXXXX Xxxxx 000 409 Lackawanna Avenue
PENNSYLVANIA, L.L.C. Xxxxxx Xxxxxx, XX 00000 Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx x/x XXXX
XX XXXXXX, X.X.X. Xxxxx 000 0000 X.Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000 Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx x/x XXXX
XX XXXXXXXXX, X.X.X. Xxxxx 000 000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx x/x XXXX
XX XXXXXXX XXXXX, X.X.X. Xxxxx 000 0000 Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxx, XX 00000 Xxxxxxx Xxxxx, XX 00000
--------------------------------------------------------------------------------
SCHEDULE B
----------
SCHEDULE OF INVENTORY
AND EQUIPMENT LOCATIONS
-----------------------
--------------------------------------------------------------------------------
Grantor Location
------- --------
--------------------------------------------------------------------------------
NEXSTAR FINANCE, L.L.C. 000 Xxxxxxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx
GROUP, L.L.C. Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR FINANCE, INC. 000 Xxxxxxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING 000 Xxxxxxxx Xxxxxxxxx Xxxx
GROUP, INC. Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR FINANCE 000 Xxxxxxxx Xxxxxxxxx Xxxx
HOLDINGS, L.L.C Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR FINANCE 000 Xxxxxxxx Xxxxxxxxx Xxxx
HOLDINGS, INC. Xxxxx 000
Xxxxxx Xxxxxx,XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o KTAB
OF ABILENE, INC. 0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING x/x XXXX
XX XXXXXXXX/XXXX 0000-00xx Xxxxxx
XXXXXX, INC. Xxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o WCIA
OF CHAMPAIGN, INC. 000 Xxxxx Xxxx
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
ERC HOLDINGS, INC. 000 Xxxxxxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o WJET
OF ERIE, INC. 0000 Xxxxx Xxxxxx
Xxxx, XX 00000
--------------------------------------------------------------------------------
c/o WFXP
0000 Xxxxx Xxxxxx
Xxxx, XX 00000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o KSNF
OF JOPLIN, INC. 0000 Xxxxxxxxx
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o KTAL
OF LOUISIANA, INC. 0000 X. Xxxxxx
Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o KMID
OF MIDLAND-ODESSA, INC. 0000 XxXxxxx Xxxx.
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o WTWO
OF THE MIDWEST, INC. 00000 X. X.X. Xxxxxxx 00
Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
c/o KQTV
00xx xxx Xxxxxx
Xx. Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING x/x XXXX
XX XXXXXXXXXXXX 000 Xxxxxxxxxx Xxxxxx
XXXXXXXXXXXX, INC. Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o WMBD
OF PEORIA, INC. 0000 X. Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o WROC
OF ROCHESTER, INC. 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o KFDX
OF WICHITA FALLS, INC. 0000 Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o KTAB
OF ABILENE, L.L.C. 0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING x/x XXXX
XX XXXXXXXX/XXXX 0000-00xx Xxxxxx
XXXXXX, X.X.X. Xxxx Xxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o WCIA
OF CHAMPAIGN, L.L.C. 000 Xxxxx Xxxx
Xxxxxxxxx, Xx 00000
--------------------------------------------------------------------------------
ENTERTAINMENT REALTY 000 Xxxxxxxx Xxxxxxxxx Xxxx
CORPORATION Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o WJET
OF ERIE, L.L.C. 0000 Xxxxx Xxxxxx
Xxxx, XX 00000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
c/o WFXP
0000 Xxxxx Xxxxxx
Xxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o KSNF
OF JOPLIN, L.L.C. 0000 Xxxxxxxxx
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o KTAL
OF LOUISIANA, L.L.C. 0000 X. Xxxxxx
Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o KMID
OF MIDLAND-ODESSA, L.L.C. 0000 XxXxxxx Xxxx.
Xxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o WTWO
OF THE MIDWEST, L.L.C. 00000 X. X.X Xxxxxxx 00
Xxxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
c/o KQTV
00xx xxx Xxxxxx
Xx. Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o WBRE
OF NORTHEASTERN 409 Lackawanna Avenue
PENNSYLVANIA, L.L.C. Xxxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o WMBD
OF PEORIA, L.L.C. 0000 X. Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o WROC
OF ROCHESTER, L.L.C. 000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
--------------------------------------------------------------------------------
NEXSTAR BROADCASTING c/o KFDX
OF WICHITA FALLS, L.L.C. 0000 Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxx, XX 00000
--------------------------------------------------------------------------------
SCHEDULE C
----------
SCHEDULE OF TRADE FICTITIOUS AND OTHER NAMES
--------------------------------------------
-----------------------------------------------------------------------------
Grantor Other Name
------- ----------
-----------------------------------------------------------------------------
NEXSTAR FINANCE, L.L.C. None.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING None.
GROUP, L.L.C.
-----------------------------------------------------------------------------
NEXSTAR FINANCE None.
HOLDINGS, INC.
-----------------------------------------------------------------------------
NEXSTAR FINANCE None.
HOLDINGS, L.L.C.
-----------------------------------------------------------------------------
NEXSTAR FINANCE, INC. None.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING None.
GROUP, INC.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING None.
OF ABILENE, INC.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING Nexstar Broadcasting of Beaumont/Port
OF BEAUMONT/PORT Arthur LP, Inc.
XXXXXX, INC.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING None.
OF CHAMPAIGN, INC.
-----------------------------------------------------------------------------
ERC HOLDINGS, INC. None.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING Nexstar Broadcasting of Erie LP, Inc.
OF ERIE, INC.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING Nexstar Broadcasting of Xxxxxx XX, Inc.
OF JOPLIN, INC.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING None.
OF LOUISIANA, INC.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING None.
OF MIDLAND-ODESSA, INC.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING Fabri Development Corporation
OF THE MIDWEST, INC.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING Nexstar Broadcasting of Northeastern
OF NORTHEASTERN Pennsylvania LP, Inc.
PENNSYLVANIA, INC.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING None.
OF PEORIA, INC.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING None.
OF ROCHESTER, INC.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING Nexstar Broadcasting of Wichita Falls
OF WICHITA FALLS, INC. LP, Inc
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING KTAB - Station Call Letters
OF ABILENE, L.L.C.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING KBTV - Station Call Letters
OF BEAUMONT/PORT
XXXXXX, L.L.C.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING WCIA - Station Call Letters
OF CHAMPAIGN, L.L.C.
-----------------------------------------------------------------------------
ENTERTAINMENT REALTY None.
CORPORATION
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING WJET - Station Call Letters
OF ERIE, L.L.C. Nexstar Broadcasting of Erie, L.P.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING KSNF - Station Call Letters
OF JOPLIN, L.L.C. Nexstar Broadcasting Management, L.P.
Nexstar Broadcasting of Joplin, L.P.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING KTAL - Station Call Letters
OF LOUISIANA, L.L.C.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING KMID - Station Call Letters
OF MIDLAND-ODESSA,
L.L.C.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING WBRE - Station Call Letters
OF NORTHEASTERN Nexstar Broadcasting Group, L.P.
PENNSYLVANIA, L.L.C. Nexstar Broadcasting of Northeastern
Pennsylvania, L.P.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING WMBD - Station Call Letters
OF PEORIA, L.L.C.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING WROC - Station Call Letters
OF ROCHESTER, L.L.C.
-----------------------------------------------------------------------------
NEXSTAR BROADCASTING KFDX - Station Call Letters
OF WICHITA FALLS, L.L.C. Nexstar Broadcasting of Wichita Falls,
L.P.
-----------------------------------------------------------------------------
SCHEDULE D
----------
A. SCHEDULE OF U.S. TRADEMARK REGISTRATIONS
REGISTERED XXXX REGISTRATION NO. REGISTRATION DATE
----------------- ------------------ -------------------
B. SCHEDULE OF PENDING APPLICATIONS FOR U.S. TRADEMARK REGISTRATIONS ON THE
BASIS OF USE IN COMMERCE UNDER 17 U.S.C. (S) 1051(a)
XXXX SERIAL NO. FILING DATE
----------------- ------------------ -------------------
C. SCHEDULE OF PENDING APPLICATIONS FOR U.S. TRADEMARK REGISTRATIONS ON THE
BASIS OF INTENT TO USE THE XXXX IN COMMERCE UNDER 17 U.S.C. (S) 1051(b)
XXXX SERIAL NO. FILING DATE
----------------- ------------------ -------------------
Schedule D to Security Agreement
Page 1
SCHEDULE E
----------
SCHEDULE OF LICENSE AGREEMENTS AND ASSIGNMENTS
----------------------------------------------
Schedule E to Security Agreement
Page 1
SCHEDULE F
----------
SCHEDULE OF PATENTS AND APPLICATIONS
------------------------------------
Patent Number Date Issued Title
--------------- ------------- -------
Schedule F to Security Agreement
Page 1
SCHEDULE G
----------
SCHEDULE OF COPYRIGHTS AND APPLICATIONS
---------------------------------------
Schedule G to Security Agreement
Page 1
ANNEX A
-------
GRANT OF SECURITY INTEREST
IN UNITED STATES TRADEMARKS AND PATENTS
---------------------------------------
FOR GOOD AND VALUABLE CONSIDERATION, receipt and sufficiency of which are
hereby acknowledged, [Name of Grantor], a [corporation] [limited partnership]
[limited liability company] (the "Grantor") with principal offices at
-------
_____________, hereby assigns and grants to Bank of America, N.A., as Collateral
Agent, having an office at 000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000 (the "Grantee"),
-------
a security interest in (i) all of the Grantor's right, title and interest in and
to the United States trademarks, trademark registrations and trademark
applications (the "Marks") set forth on Schedule A attached hereto, (ii) all of
----- ----------
the Grantor's right, title and interest in and to the United States patents (the
"Patents") set forth on Schedule B attached hereto, in each case together with
------- ----------
(iii) all Proceeds (as such term is defined in the Security Agreement referred
to below) and products of the Marks and Patents, (iv) the goodwill of the
businesses with which the Marks are associated and (v) all causes of action
arising prior to or after the date hereof for infringement of any of the Marks
and Patents or unfair competition regarding the same.
THIS GRANT OF SECURITY INTEREST is made to secure the satisfactory
performance and payment of all the Obligations of the Grantor, as such term is
defined in the Security Agreement among the Grantor, the Grantee and the other
parties thereto, dated as of January 12, 2001 (as amended from time to time, the
"Security Agreement"). Upon the occurrence of the Lien Termination Date (as
------------------
defined in Section 10.10 of the Security Agreement), the Grantee shall, upon
such satisfaction, execute, acknowledge, and deliver to the Grantor an
instrument in writing releasing the security interest in the Marks and Patents
acquired under this Grant of Security Interest.
This Grant of Security Interest has been executed and delivered in
conjunction with the security interest granted to the Grantee under the Security
Agreement. The rights and remedies of the Grantee with respect to the security
interest granted herein are without prejudice to, and are in addition to those
set forth in the Security Agreement, all terms and provisions of which are
incorporated herein by reference. In the event that any provisions of this
Grant of Security Interest are deemed to conflict with the Security Agreement,
the provisions of the Security Agreement shall govern.
Annex A to Security Agreement
Page 1
IN WITNESS WHEREOF, the undersigned have executed this Grant of Security
Interest as of the _____ day of __________, ____.
[NAME OF GRANTOR], as Grantor
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
BANK OF AMERICA, N.A., as Collateral Agent
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
STATE OF _____________ )
) ss.:
COUNTY OF ____________ )
On this _____ day of __________, _____, before me personally came
____________, who, being by me duly sworn, did state as follows: that s/he is
__________ of the Grantor, that s/he is authorized to execute the foregoing
Grant of Security Interest on behalf of said [corporation] [limited liability
company] [limited partnership] and that s/he did so by authority of the Board of
Directors of said [corporation] [limited partnership] [limited liability
company].
_____________________________________________
Notary Public
STATE OF _____________ )
) ss.:
COUNTY OF ____________ )
On this _____ day of __________, _____, before me personally came
__________, who, being by me duly sworn, did state as follows: that s/he is
_______________ of Bank of America, N.A., that s/he is authorized to execute the
foregoing Grant of Security Interest on behalf of said corporation and that s/he
did so by authority of the Board of Directors of said corporation.
_____________________________________________
Notary Public
Annex A to Security Agreement
Page 2
SCHEDULE A
TO
GRANT OF SECURITY INTEREST IN UNITED STATES
TRADEMARKS AND PATENTS
XXXX REG. NO. REG. DATE
--------------------------- --------------------- ----------------------
Annex A to Security Agreement
Page 3
SCHEDULE B
TO
GRANT OF SECURITY INTEREST IN UNITED STATES
TRADEMARKS AND PATENTS
PATENT PATENT NO. ISSUE DATE
--------------------------- ----------------------- ---------------------
Annex A to Security Agreement
Page 4
ANNEX B
-------
GRANT OF SECURITY INTEREST
IN UNITED STATES COPYRIGHTS
---------------------------
WHEREAS, [Name of Grantor], a [corporation] [limited partnership] [limited
liability company] (the "Grantor"), having its chief executive office at
-------
__________, is the owner of all right, title and interest in and to the United
States copyrights and associated United States copyright registrations and
applications for registration set forth in Schedule A attached hereto;
----------
WHEREAS, BANK OF AMERICA, N.A., as Collateral Agent, having an office at
000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000 (the "Grantee"), desires to acquire a
-------
security interest in said copyrights and copyright registrations and
applications therefor; and
WHEREAS, the Grantor is willing to assign to the Grantor, and to grant to
the Grantee a security interest in and lien upon the copyrights and copyright
registrations and applications therefor described above.
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, and subject to the terms and conditions of the Security
Agreement, dated as of January __, 2001, made by the Grantor, the Grantee and
the other parties thereto (as amended from time to time, the "Security
--------
Agreement"), the Grantor hereby assigns to the Grantee, and grants to the
---------
Grantee a security interest in the copyrights and copyright registrations and
applications therefor set forth in Schedule A attached hereto.
----------
This Grant of Security Interest has been executed and delivered in
conjunction with the security interest granted to the Grantee under the Security
Agreement. The rights and remedies of the Grantee with respect to the security
interest granted herein are without prejudice to, and are in addition to those
set forth in the Security Agreement, all terms and provisions of which are
incorporated herein by reference. In the event that any provisions of this
Grant of Security Interest are deemed to conflict with the Security Agreement,
the provisions of the Security Agreement shall govern.
Annex B to Security Agreement
Page 1
Executed at ___________, ________________, the ___ day of __________,
_____.
[NAME OF GRANTOR], as Grantor
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
BANK OF AMERICA, N.A., as Collateral Agent,
Grantee
By:__________________________________________
Name: _______________________________________
Title: ______________________________________
STATE OF _____________ )
) ss.:
COUNTY OF ____________ )
On this _____ day of __________, ____ before me personally came
______________, who being duly sworn, did depose and say that s/he is
_____________ of the Grantor, that s/he is authorized to execute the foregoing
Grant of Security Interest on behalf of said [corporation] [limited partnership]
[limited liability company] and that s/he did so by authority of the Board of
Directors of said [corporation] [limited partnership] [limited liability
company].
_____________________________________________
Notary Public
STATE OF _____________ )
) ss.:
COUNTY OF ____________ )
On this ___ day of __________, _______________________, before me
personally came ___________, who, being by me duly sworn, did state as follows:
that s/he is _________________ of Bank of America, N.A., that s/he is authorized
to execute the foregoing Grant of Security Interest on behalf of said
corporation and that s/he did so by authority of the Board of Directors of said
corporation.
_____________________________________________
Notary Public
Annex B to Security Agreement
Page 2
SCHEDULE A
TO
GRANT OF SECURITY INTEREST IN UNITED STATES COPYRIGHTS
U.S. COPYRIGHTS
---------------
REGISTRATION PUBLICATION COPYRIGHT
NUMBERS DATE TITLE
------------------------- -------------------- --------------------
Annex B to Security Agreement
Page 3
ANNEX C
-------
JOINDER TO SECURITY AGREEMENT
-----------------------------
THIS JOINDER TO SECURITY AGREEMENT, dated as of _________________, is
made by the undersigned pursuant to Section 10.14 of the Security Agreement
described below.
RECITALS:
A. Nexstar Broadcasting Group, L.L.C., a Delaware limited liability
company (the "Parent"), and the direct or indirect subsidiaries of the Parent
------
from time to time parties thereto have executed and delivered that certain
Security Agreement, dated as of January 12, 2001, in favor of Bank of America,
N.A., as Collateral Agent for the Secured Creditors described therein (as
amended, modified or supplemented from time to time and including this and any
other Joinders to Security Agreement executed from time to time, the
"Agreement"). Capitalized terms used but not defined herein have the meanings
---------
assigned to such terms therein.
B. Pursuant to Section 10.14 of the Agreement, each Grantor has agreed,
among other things, to cause each of its Subsidiaries that may from time to time
be formed and that is not already a party thereto to become a party to the
Agreement by executing and delivering to the Collateral Agent a Joinder to
Security Agreement.
C. The undersigned desires to execute and deliver this Joinder to
Security Agreement to satisfy such requirement.
NOW, THEREFORE, IT IS AGREED:
1. Joinder. By executing and delivering this Joinder to Security
-------
Agreement, the undersigned hereby becomes a party to the Agreement as a
"Grantor" thereunder, and hereby expressly and jointly and severally assumes all
-------
obligations and liabilities of a "Grantor" under the Agreement.
-------
2. Security Interest. To secure the Obligations, the undersigned hereby
-----------------
collaterally assign and transfer unto the Collateral Agent, and does hereby
grant to the Collateral Agent for the benefit of the Secured Creditors, a
continuing security interest of first priority in (subject only to Permitted
Liens) all of the right, title and interest of such Grantor in, to and under any
personal property that such Grantor may now own or hereafter acquire, including,
but not limited to the following:
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Inventory;
Annex C to Security Agreement
Page 1
(iv) all Equipment;
(v) all Instruments;
(vi) all Investment Property;
(vii) all Documents;
(viii) all Deposit Accounts (including, without limitation the Cash
Collateral Account) and any monies, securities and instruments
deposited or required to be deposited therein;
(ix) all Contracts, together with any Contract Rights arising
thereunder;
(x) all Letter of Credit Rights
(xi) all General Intangibles;
(xii) all Marks, together with the registrations and right to all
renewals thereof, and the goodwill of the business of such Grantor
symbolized by the Marks;
(xiii) all Patents and Copyrights, and all reissues, renewals or
extensions thereof;
(xiv) all computer programs and any intellectual property rights
therein and all other proprietary information of such Grantor,
including, but not limited to, Trade Secret Rights,
(xv) all of such Grantor's rights in, to or under, or relating
to, any FCC License; provided, however, that the Security Agreement
-------- -------
Collateral (as defined below) does not include at any time any FCC
License to the extent, but only to the extent, that such Grantor is
prohibited at that time from granting a security interest therein
pursuant to the Communications Act of 1934, as amended, and the rules,
regulations and policies promulgated thereunder, but includes, to the
maximum extent permitted by law, all rights incident or appurtenant to
any such FCC License and the rights to receive all proceeds derived
from or in connection with the sale, assignment or transfer of any FCC
License;
(xvi) all insurance policies and supporting obligations with
regard to any of the foregoing; and
(xvii) all Proceeds and products of any and all of the foregoing
(all of the property subject to the grant of security interest in this
Section 2 shall hereinafter be included in the definition of "Security
--------- --------
Agreement Collateral"; it being expressly agreed and acknowledged that
--------------------
the security interests of the Collateral Agent extend to all Security
Agreement Collateral which the undersigned may acquire at any time
during the continuation of the Agreement.
Annex C to Security Agreement
Page 2
3. Power of Attorney. The undersigned hereby constitutes and appoints the
-----------------
Collateral Agent its true and lawful attorney-in-fact, irrevocably, with full
power after the occurrence of and during the continuance of an Event of Default
(in the name of the undersigned or otherwise) to act, require, demand, receive,
compound and give acquittance for any and all monies and claims for monies due
or to become due to the undersigned under or arising out of the Security
Agreement Collateral, to endorse any checks or other instruments or orders in
connection therewith and to file any claims or take any action or institute any
proceedings which the Collateral Agent may deem to be necessary or advisable in
the premises, which appointment as attorney is coupled with an interest.
4. Representations, Warranties and Covenants. The undersigned represents,
-----------------------------------------
warrants and covenants, which representations, warranties and covenants shall
survive execution and delivery of this Joinder to Security Agreement, as
follows:
(a) Necessary Filings. All filings, registrations and recordings
-----------------
necessary or appropriate to create, preserve, protect and perfect the security
interest granted by the undersigned to the Collateral Agent hereby in respect of
the Security Agreement Collateral have been accomplished and the security
interest granted to the Collateral Agent pursuant to this Joinder to Security
Agreement in and to the Security Agreement Collateral constitutes a perfected
security interest therein superior and prior to the rights of all other Persons
therein and subject to no other Liens (other than Permitted Liens) and is
entitled to all the rights, priorities and benefits afforded by the Uniform
Commercial Code or other relevant law as enacted in any relevant jurisdiction to
perfected security interests, in each case to the extent that the Security
Agreement Collateral consists of the type of property in which a security
interest may be perfected by filing a financing statement under the Uniform
Commercial Code as enacted in any relevant jurisdiction or in the United States
Patent and Trademark Office or United States Copyright Office.
(b) No Liens. The undersigned is, and as to the Security Agreement
--------
Collateral acquired by it from time to time after the date hereof, the
undersigned will be, the owner of all Security Agreement Collateral free from
any Lien, security interest, encumbrance or other right, title or interest of
any Person (other than Permitted Liens), and the undersigned shall defend the
Security Agreement Collateral against all claims and demands of all Persons at
any time claiming the same or any interest therein adverse to the Collateral
Agent.
(c) Other Financing Statements. As of the date hereof, there is no
--------------------------
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) on file or of record in any relevant jurisdiction
covering or purporting to cover any interest of any kind in the Security
Agreement Collateral (other than financing statements filed in respect of
Permitted Liens) and so long as the Aggregate Commitment has not been terminated
or any Loan remains outstanding or any of the Obligations remain unpaid or any
Interest Rate Protection Agreement or Letter of Credit remains in effect or any
obligations are owed with respect thereto, or any obligations under the
Management Loan Guaranty or under the Bastet/Mission Guaranty remain
outstanding, the undersigned will not execute or authorize to be filed in any
public office any financing statement (or similar statement or instrument of
registration under the law of any
Annex C Security Agreement
Page 3
jurisdiction) or statements relating to the Security Agreement Collateral,
except financing statements filed or to be filed in respect of and covering the
security interests granted hereby by the undersigned or in respect of Permitted
Liens.
(d) Chief Executive Office; Records. The chief executive office of the
-------------------------------
undersigned is located, as of the date hereof, at the address indicated on
Schedule A hereto for the undersigned. The undersigned will not move its chief
----------
executive office except to such new location as the undersigned may establish in
accordance with the last sentence of Section 3.4 of the Agreement. The
originals of all documents evidencing all Accounts and Contract Rights and Trade
Secret Rights of the undersigned and the only original books of account and
records of the undersigned relating thereto are, and will continue to be, kept
at such chief executive office, at such other locations shown on Schedule A
----------
hereto or at such new locations as the undersigned may establish in accordance
with the last sentence of Section 3.4 of the Agreement. All Accounts and
Contract Rights of the undersigned are, and will continue to be, maintained at,
and controlled and directed (including, without limitation, for general
accounting purposes) from, the office locations described above.
(e) Location of Inventory and Equipment. All Inventory and Equipment held
-----------------------------------
on the date hereof by the undersigned is located at one of the locations shown
on Schedule B hereto. The undersigned agrees that all Inventory and Equipment
----------
now held or subsequently acquired by it shall be kept at (or shall be in transit
to) any one of the locations shown on Schedule B hereto or such new location as
----------
such Grantor may establish in accordance with the last sentence of Section 3.5
of the Agreement.
(f) Recourse. This Joinder to Security Agreement is made and the
--------
obligations and liabilities under the Agreement are assumed with full recourse
to the undersigned and pursuant to and upon all the warranties, representations,
covenants and agreements on the part of the undersigned contained herein and
therein, in the other Loan Documents, in the Interest Rate Protection Agreements
and otherwise in writing in connection herewith or therewith.
(g) Trade Names; Change of Name. As of the date hereof, the undersigned
---------------------------
does not have and does not operate in any jurisdiction under, and in the
preceding 12 months has not had or has not operated in any jurisdiction under,
any trade names, fictitious names or other names (including, without limitation,
any names of divisions or operations) except its legal name and such other
trade, fictitious or other names as are listed in Schedule C hereto. No Grantor
----------
shall change its legal name or assume or operate in any jurisdiction under any
trade, fictitious or other name in any manner which might make any financing
statement or continuation statement filed in connection therewith seriously
misleading within the meaning of Section 9-402(7) (or any analogous provision)
of the UCC except those names listed on Schedule C hereto and new names
----------
(including, without limitation, any names of divisions or operations)
established in accordance with the last sentence of Section 3.7 of the
Agreement.
(h) Marks. The undersigned represents and warrants that it is the true
-----
and lawful owner of, or otherwise has the right to use, the Marks listed in
Schedule D hereto and that said listed Marks include all the United States
----------
federal registrations or applications registered in the
Annex C Security Agreement
Page 4
United States Patent and Trademark Office that the undersigned now owns. The
undersigned represents and warrants that it owns or is licensed to use or is not
prohibited from using all Marks that it uses. The undersigned further warrants
that it is aware of no third-party claim that any aspect of the undersigned's
present or contemplated business operations infringes or will infringe any Xxxx
or trade name. The undersigned represents and warrants that it is the beneficial
and record owner of all United States registrations and applications listed in
Schedule D hereto for the undersigned and that said registrations are valid and
----------
subsisting, have not been canceled and that the undersigned is not aware of any
third-party claim that any of said registrations are invalid or unenforceable or
is not aware that there is any reason that any of said applications will not
pass to registration. The undersigned hereby grants to the Collateral Agent an
absolute power of attorney to sign, upon the occurrence and during the
continuance of an Event of Default, any document which may be required by the
United States Patent and Trademark Office in order to effect an absolute
assignment of all right, title and interest in each Xxxx and associated goodwill
and record the same.
(i) The undersigned represents and warrants that it is the true and
lawful owner of all rights in (i) all material trade secrets and proprietary
information necessary to operate the business of the undersigned, (ii) the
Patents listed in Schedule E hereto and (iii) the Copyrights listed in Schedule
---------- --------
F hereto, that said Patents constitute all the United States patents and
-
applications for patents that such Grantor now owns or is licensed to use and
that said Copyrights constitute all the United States registered copyrights that
such Grantor now owns. Each Grantor represents and warrants that it owns or is
licensed to use all Patents and Copyrights that it now owns or uses. Each
Grantor further warrants that it has no knowledge of any third-party claim that
any aspect of such Grantor's present or contemplated business operations
infringes or will infringe any patent or any copyright or misappropriates any
trade secret or proprietary information.
5. Notices. The notice address and facsimile number for the undersigned
-------
is set forth on the applicable signature page hereof.
6. Counterparts. This Joinder to Security Agreement may be signed in any
------------
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
7. Governing Law. THIS SUPPLEMENT SHALL BE DEEMED TO BE MADE UNDER, SHALL
-------------
BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK.
Annex C Security Agreement
Page 5
IN WITNESS WHEREOF, the undersigned has caused this Joinder to Security
Agreement to be duly executed and delivered as of the date first above written.
[NEW GRANTOR]
By:___________________________
Name:
Title:
Notice Address:
______________________________
______________________________
______________________________
______________________________
Facsimile (___) ______________
Annex C Security Agreement
Page 6
SCHEDULE A
TO
JOINDER TO SECURITY AGREEMENT
-----------------------------
CHIEF EXECUTIVE OFFICES AND OTHER RECORD LOCATIONS
Annex C Security Agreement
Page 7
SCHEDULE B
TO
JOINDER TO SECURITY AGREEMENT
-----------------------------
INVENTORY AND EQUIPMENT LOCATIONS
Annex C Security Agreement
Page 8
SCHEDULE C
TO
JOINDER TO SECURITY AGREEMENT
-----------------------------
TRADE, FICTITIOUS AND OTHER NAMES
Annex C Security Agreement
Page 9
SCHEDULE D
TO
JOINDER TO SECURITY AGREEMENT
-----------------------------
U.S. TRADEMARK REGISTRATIONS
REGISTERED XXXX REGISTRATION NO. REGISTRATION DATE
------------------------------- --------------------------- --------------------------
PENDING APPLICATIONS FOR U.S. TRADEMARK REGISTRATIONS ON THE BASIS OF USE
IN COMMERCE UNDER 17 U.S.C. (S) 1051(a)
XXXX SERIAL NO. FILING DATE
------------------------------- --------------------------- --------------------------
PENDING APPLICATIONS FOR U.S. TRADEMARK REGISTRATIONS ON THE BASIS OF
INTENT TO USE THE XXXX IN COMMERCE UNDER 17 U.S.C. (S) 1051(b)
XXXX SERIAL NO. FILING DATE
------------------------------- --------------------------- --------------------------
Annex C Security Agreement
Page 10
SCHEDULE E
TO
JOINDER TO SECURITY AGREEMENT
-----------------------------
PATENTS AND APPLICATIONS
Patent Number Date Issued Title
Annex C Security Agreement
Page 11
SCHEDULE F
TO
JOINDER TO SECURITY AGREEMENT
-----------------------------
COPYRIGHTS AND APPLICATIONS
Annex C Security Agreement
Page 11
