Exhibit 10.35
SUBSIDIARY SECURITY AGREEMENT
(BLAYA, INC.)
SECURITY AGREEMENT, dated as of September 11, 1998, made by BLAYA,
INC., a Delaware corporation (the "GRANTOR"), in favor of CANADIAN IMPERIAL BANK
OF COMMERCE, as agent (in such capacity, the "AGENT") for the several banks and
other financial institutions (the "LENDERS") from time to time parties to the
Credit Agreement, dated as of July 8, 1998 (as amended, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT"), among RADIO UNICA
HOLDINGS CORP., a Delaware corporation (the "PARENT"), RADIO UNICA CORP., a
Delaware corporation (the "BORROWER"), the Lenders and the Agent.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make Loans to the Borrower upon the terms and subject to the
conditions set forth therein, to be evidenced by the Notes issued by the
Borrower thereunder; and
WHEREAS, the Grantor has guaranteed the obligations of the Borrower
described above pursuant to the Guarantee, dated as of September 11, 1998,
executed by the Grantor (as amended, supplemented or otherwise modified from
time to time, the "GUARANTEE"); and
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their respective Loans to the Borrower under the Credit Agreement that
the Grantor shall have executed and delivered this Security Agreement to the
Agent for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
Agent and the Lenders to enter into the Credit Agreement and the Lenders to make
their respective Loans to the Borrower under the Credit Agreement, the Grantor
hereby agrees with the Agent, for the ratable benefit of the Lenders, as
follows:
1. DEFINED TERMS. Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein are used herein as defined therein. The
following terms which are defined in the Uniform Commercial Code in effect in
the State of New York on the date hereof are used herein as defined therein:
Accounts, Chattel Paper, Documents, Equipment, Farm Products, General
Intangibles, Instruments, Inventory, Investment Property and Proceeds. The
following terms shall have the following meanings:
"CODE" shall mean the Uniform Commercial Code as from time to time in
effect in the State of New York.
"COLLATERAL" shall have the meaning assigned to it in SECTION 2.
"CONTRACTS" shall mean all contracts executed from time to time by the
Grantor, including, without limitation, with respect to an Account, in each
case, as the same may from time to time be amended, supplemented or
otherwise modified, including, without limitation, (i) all rights of the
Grantor to receive moneys due and to become due to it thereunder or in
connection therewith, (ii) all rights of the Grantor to damages arising out
of, or for, breach or default in respect thereof and (iii) all rights of
the Grantor to perform and to exercise all remedies thereunder.
"GUARANTEE OBLIGATIONS" shall mean all obligations of the Grantor
under the Guarantee including, without limitation, in respect of the
Obligations (as defined in the Credit Agreement) to the extent set forth in
the Guarantee.
"SECURITY AGREEMENT" means this Security Agreement, as amended,
supplemented or otherwise modified from time to time.
2. GRANT OF SECURITY INTEREST. As collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Guarantee Obligations, the
Grantor hereby grants to the Agent for the ratable benefit of the Lenders a
security interest in all the following property now owned or at any time
hereafter acquired by the Grantor or in which the Grantor now has or at any time
in the future may acquire any right, title or interest in (collectively, the
"COLLATERAL"):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Contracts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property; and
-2-
(x) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing;
PROVIDED that nothing contained herein shall create a collateral assignment with
respect to or a security interest in (A) any Contract if the grant of such
collateral is (or is determined by non-appealable adjudication of a court or
other dispute resolution tribunal to be) expressly prohibited by the terms of
such Contract, (B) with respect to any other Collateral which is subject to a
Lien permitted under Section 6.3 of the Credit Agreement or (C) any license,
permit or other governmental authorization which by its terms is not assignable.
3. RIGHTS OF AGENT AND LENDERS; LIMITATIONS ON AGENT'S AND LENDERS'
OBLIGATIONS.
(a) GRANTOR REMAINS LIABLE UNDER ACCOUNTS AND CONTRACTS. Anything
herein to the contrary notwithstanding, the Grantor shall remain liable under
each of the Accounts and Contracts to observe and perform all the conditions and
obligations to be observed and performed by it thereunder, all in accordance
with the terms of any agreement giving rise to each such Account and in
accordance with and pursuant to the terms and provisions of each such Contract.
Neither the Agent nor any Lender shall have any obligation or liability under
any Account (or any agreement giving rise thereto) or under any Contract by
reason of or arising out of this Security Agreement or the receipt by the Agent
or any such Lender of any payment relating to such Account or Contract pursuant
hereto, nor shall the Agent or any Lender be obligated in any manner to perform
any of the obligations of the Grantor under or pursuant to any Account (or any
agreement giving rise thereto) or under or pursuant to any Contract, to make any
payment, to make any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any party under
any Account (or any agreement giving rise thereto) or under any Contract, to
present or file any claim, to take any action to enforce any performance or to
collect the payment of any amounts which may have been assigned to it or to
which it may be entitled at any time or times.
(b) NOTICE TO ACCOUNT DEBTORS AND CONTRACTING PARTIES. At any time
after the occurrence and during the continuance of an Event of Default, the
Agent shall have the right upon written notice to the Grantor of its intention
to do so, to notify account debtors or obligors on the Accounts and parties to
the Contracts that the Accounts and the Contracts have been assigned to the
Agent for the ratable benefit of the Lenders and that payments due or to become
due to the Grantor in respect thereof shall be made directly to the Agent and,
upon such notification, and at the expense of the Grantor, to enforce collection
of any such Accounts. At any time after the occurrence and during the
continuance of an Event of Default, the Agent may, at any time, in its own name
or in the name of the Lenders or the Grantor communicate with account debtors on
the Accounts and parties to the Contracts to verify with them to its
satisfaction the existence, amount and terms of any Accounts or Contracts.
(c) COLLECTIONS ON ACCOUNTS. The Agent hereby authorizes the Grantor
to collect the Accounts and the Agent may curtail or terminate said authority at
any time upon the occurrence and during the continuance of an Event of Default.
If required by the Agent at any
-3-
time after the occurrence and during the continuance of an Event of Default, any
payments of Accounts, when collected by the Grantor, shall be forthwith (and, in
any event, within two Business Days) deposited by the Grantor in the exact form
received, duly endorsed by the Grantor to the Agent if required, in a special
collateral account maintained by the Agent, subject to withdrawal by the Agent
for the account of the Lenders only, as hereinafter provided, and, until so
turned over, shall be held by the Grantor in trust for the Agent and the
Lenders, segregated from other funds of the Grantor. Each deposit of any such
Proceeds shall be accompanied by a report identifying in reasonable detail the
nature and source of the payments included in the deposit. All Proceeds
constituting collections of Accounts while held by the Agent (or by the Grantor
in trust for the Agent and the Lenders) shall continue to be collateral security
for all the Guarantee Obligations and shall not constitute payment thereof until
applied as hereinafter provided. At such intervals as may be agreed upon by the
Grantor and the Agent, or, if an Event of Default shall have occurred and be
continuing, at any time at the Agent's election, the Agent shall apply all or
any part of the funds on deposit in said special collateral account on account
of the Guarantee Obligations in such order as the Agent may elect, and any part
of such funds which the Agent elects not so to apply and deems not required as
collateral security for the obligations shall be paid over from time to time by
the Agent to the Grantor or to whomsoever may lawfully be entitled to receive
the same. Upon the occurrence of an Event of Default that is continuing, at the
Agent's request, the Grantor shall deliver to the Agent all original and other
documents evidencing, and relating to, the agreements and transactions which
gave rise to the Accounts, including, without limitation, all original orders,
invoices and shipping receipts.
(d) ANALYSIS OF ACCOUNTS. The Agent shall have the right to make
test verifications of the Accounts in any manner and through any medium that it
reasonably considers advisable, and the Grantor shall furnish all such
assistance and information as the Agent may require in connection therewith;
PROVIDED that the Agent shall use its reasonable efforts to minimize any
disruption of the Grantor's business resulting from such verifications. At any
time and from time to time if the Agent concludes in its reasonable judgment,
based upon its evaluation of the general creditworthiness of the Grantor, that
such examination is required, and so requests, the Grantor shall, at the
Grantor's expense if at any time after the occurrence and during the continuance
of an Event of Default, and otherwise at the Agent's expense, cause independent
public accountants or other parties that are not Affiliates of the Grantor and
are satisfactory to the Agent to furnish to the Agent reports showing
reconciliations, aging and test verifications of, and trial balances for, the
Accounts.
4. REPRESENTATIONS AND WARRANTIES. The Grantor hereby represents
and warrants that:
(a) TITLE; NO OTHER LIENS. Except as permitted under Section 6.3 of
the Credit Agreement, the Grantor owns each item of the Collateral free and
clear of any and all Liens or claims of others. Except as permitted under
Section 6.3 of the Credit Agreement no security agreement, financing statement
or other public notice with respect to all or any part of the Collateral is on
file or of record in any public office, except such as may have been filed in
favor of the Agent, for the ratable benefit of the Lenders, pursuant to this
Security Agreement.
-4-
(b) PERFECTED FIRST PRIORITY LIENS. Except as permitted under
Section 6.3 of the Credit Agreement the Liens granted pursuant to this Security
Agreement will, upon the filing of appropriate financing statements, constitute
perfected Liens on the Collateral in favor of the Agent, for the ratable benefit
of the Lenders, which are prior to all other Liens on the Collateral created by
the Grantor and in existence on the date hereof and which are enforceable as
such against all creditors of and purchasers from the Grantor and against any
owner or purchaser of the real property where any of the Equipment is located
and any present or future creditor obtaining a Lien on such real property,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditor's rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
(c) ACCOUNTS. The amount represented by the Grantor to the Lenders
from time to time as owing by each account debtor or by all account debtors in
respect of the Accounts will at such time be the correct amount actually owing
by such account debtor or debtors thereunder. No amount payable to the Grantor
under or in connection with any Account is evidenced by any Instrument or
Chattel Paper which has not been delivered to the Agent. The place where the
Grantor keeps its records concerning the Accounts is ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
(d) MATERIAL AGREEMENT. Except as set forth in Schedule 3.4 to the
Credit Agreement, no consent of any party (other than the Grantor) to any
Material Agreement is required, or purports to be required, in connection with
the execution, delivery and performance of this Security Agreement. Each
Material Agreement is in full force and effect and constitutes a valid and
legally enforceable obligation of the parties thereto, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditor's rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law). No consent or authorization of, filing with or other act by or in
respect of any Governmental Authority is required in connection with the
execution, delivery, performance, validity or enforceability of any of the
Material Agreements by any party thereto other than those which have been duly
obtained, made or performed, are in full force and effect and do not subject the
scope of any such Material Agreement to any material adverse limitation, either
specific or general in nature. Neither the Grantor nor to the best of the
Grantor's knowledge any other party to any Material Agreement is in default in
the performance or observance of any of the terms thereof. The Grantor has
fully performed in all material respects all its obligations under each of the
Material Agreements. The right, title and interest of the Grantor in, to and
under each Material Agreement are not subject to any defense, offset,
counterclaim or claim which would materially adversely affect the value of such
Material Agreement as Collateral, nor have any of the foregoing been asserted or
alleged against the Grantor as to any Material Agreement. The Grantor has
delivered to the Agent a complete and correct copy of each Material Agreement,
including all amendments, supplements and other modifications thereto and will
deliver any other Contract which the Agent may request. No amount payable to
the Grantor under or in connection with any Material Agreement is evidenced by
any Instrument or Chattel Paper which has not been delivered to the Agent.
-5-
(e) INVENTORY AND EQUIPMENT. Except as permitted in Section 5(p),
the Inventory and the Equipment are kept at the locations listed on Schedule I
hereto.
(f) CHIEF EXECUTIVE OFFICE. Except as permitted in Section 5(p), the
Grantor's chief executive office and chief place of business is located at ▇▇▇▇
▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
(g) FARM PRODUCTS. None of the Collateral constitutes, or is the
Proceeds of, Farm Products.
(i) INVESTMENT PROPERTY. The Investment Property, other than
accounts invested in cash equivalents and other than shares of capital stock of
the Grantor's Subsidiaries, consists of the items set forth on Annex A.
5. COVENANTS. The Grantor covenants and agrees with the Agent and
the Lenders that, from and after the date of this Security Agreement until the
Guarantee Obligations are paid in full and the Commitments are terminated:
(a) FURTHER DOCUMENTATION; PLEDGE OF INSTRUMENTS AND CHATTEL PAPER.
At any time and from time to time, upon the written request of the Agent, and at
the sole expense of the Grantor, the Grantor will promptly and duly execute and
deliver such further instruments and documents and take such further action as
the Agent may reasonably request for the purpose of obtaining or preserving the
full benefits of this Security Agreement and of the rights and powers herein
granted, including, without limitation, the filing of any financing or
continuation statements under the Uniform Commercial Code in effect in any
jurisdiction with respect to the Liens created hereby. The Grantor also hereby
authorizes the Agent to file any such financing or continuation statement
without the signature of the Grantor to the extent permitted by applicable law.
A carbon, photographic or other reproduction of this Security Agreement shall be
sufficient as a financing statement for filing in any jurisdiction. If any
amount payable under or in connection with any of the Collateral shall be or
become evidenced by any Instrument or Chattel Paper, such Instrument or Chattel
Paper shall be immediately delivered to the Agent, duly endorsed in a manner
satisfactory to the Agent, to be held as Collateral pursuant to this Security
Agreement.
(b) INDEMNIFICATION. The Grantor agrees to pay, and to save the
Agent and the Lenders harmless from, any and all liabilities, costs and expenses
(including, without limitation, legal fees and expenses) (i) with respect to, or
resulting from, any delay in paying any and all excise, sales or other taxes
which may be payable or determined to be payable with respect to any of the
Collateral, (ii) with respect to, or resulting from, any delay in complying with
any Requirement of Law applicable to any of the Collateral or (iii) in
connection with any of the transactions contemplated by this Security Agreement,
except resulting from the Agent's or any Lender's gross negligence or willful
misconduct. In any suit, proceeding or action brought by the Agent or any
Lender under any Account or Contract for any sum owing thereunder, or to enforce
any provisions of any Account or Contract, the Grantor will save, indemnify and
keep the Agent
-6-
and such Lender harmless from and against all expense, loss or damage suffered
by reason of any defense, setoff, counterclaim, recoupment or reduction or
liability whatsoever of the account debtor or obligor thereunder, arising out of
a breach by the Grantor of any obligation thereunder or arising out of any other
agreement, indebtedness or liability at any time owing to or in favor of such
account debtor or obligor or its successors from the Grantor, except resulting
from the Agent's or any Lender's gross negligence or willful misconduct.
(c) MAINTENANCE OF RECORDS. The Grantor will keep and maintain at
its own cost and expense satisfactory and complete records of the Collateral,
including, without limitation, a record of all payments received and all credits
granted with respect to the Accounts. The Grantor will ▇▇▇▇ its books and
records pertaining to the Collateral to evidence this Security Agreement and the
security interests granted hereby in such manner as the Agent may request. For
the Agent's and the Lenders' further security, the Agent, for the ratable
benefit of the Lenders, shall have a security interest in all the Grantor's
books and records pertaining to the Collateral, and the Grantor shall, during
the continuance of a Default under Section 7.1(a) or Section 7.1(c) as it
relates to Section 6.1, turn over copies of such books and records and during
the continuation of an Event of Default turn over any such books and records, in
each case, to the Agent or to its representatives during normal business hours
at the request of the Agent.
(d) RIGHT OF INSPECTION. The Agent and the Lenders shall after
reasonable notice to the Grantor be permitted to visit and inspect any of the
properties of the Grantor and examine and make abstracts from any books and
records of the Grantor at any reasonable time and as often as may reasonably be
desired, and the Grantor agrees to render to the Agent and the Lenders, at the
Grantor's cost and expense, such clerical and other assistance as may be
reasonably requested with regard thereto. The Agent and the Lenders and their
respective representatives shall after reasonable notice to the Grantor be
permitted to visit any of the properties of the Grantor where any of the
Inventory or Equipment is located at any reasonable time and as often as may
reasonably be desired, for the purpose of inspecting the Inventory or Equipment,
observing its use or otherwise protecting its interests therein. Each such
visitation and inspection (a) by or on behalf of any Lender shall be at such
Lender's expense and (b) by or on behalf of the Agent following the occurrence
and during the continuance of any Default or Event of Default shall be at the
Grantor's expense.
(e) COMPLIANCE WITH LAWS. The Grantor will comply in all material
respects with all Requirements of Law applicable to the Collateral or any part
thereof or to the operation of the Grantor's business; except to the extent that
failure to do so could not reasonably by expected to have a Material Adverse
Effect.
(f) COMPLIANCE WITH TERMS OF CONTRACTS. The Grantor will perform and
comply in all material respects with all its obligations under the Contracts and
all its other Contractual Obligations relating to the Collateral except to the
extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect.
(g) PAYMENT OF OBLIGATIONS. The Grantor will pay promptly when due
all taxes, assessments and governmental charges or levies imposed upon the
Collateral or in respect
-7-
of its income or profits therefrom, as well as all claims of any kind
(including, without limitation, claims for labor, materials and supplies)
against or with respect to the Collateral, except that no such charge need be
paid if (i) the validity thereof is being contested in good faith by appropriate
proceedings, (ii) such proceedings do not involve any material danger of the
sale, forfeiture or loss of any of the Collateral or any interest therein and
(iii) such charge is adequately reserved against on the Grantor's books in
accordance with GAAP.
(h) LIMITATION ON LIENS ON COLLATERAL. The Grantor will not create,
incur or permit to exist, will defend the Collateral against, and will take such
other action as is necessary to remove, any Lien or claim on or to the
Collateral, other than the Liens created hereby and other than as permitted
pursuant to Section 6.3 of the Credit Agreement, and will defend the right,
title and interest of the Agent and the Lenders in and to any of the Collateral
against the claims and demands of all Persons whomsoever.
(i) LIMITATIONS ON DISPOSITIONS OF COLLATERAL. The Grantor will not
sell, transfer, lease or otherwise dispose of any of the Collateral, or attempt,
offer or contract to do so except as permitted pursuant to Section 6.6 of the
Credit Agreement.
(k) LIMITATIONS ON DISCOUNTS, COMPROMISES, EXTENSIONS OF ACCOUNTS.
Other than in the ordinary course of business, the Grantor will not grant any
extension of the time of payment of any of the Accounts, compromise, compound or
settle the same for less than the full amount thereof, release, wholly or
partially, any Person liable for the payment thereof, or allow any credit or
discount whatsoever thereon.
(l) MAINTENANCE OF EQUIPMENT. The Grantor will maintain each item of
Equipment in good operating condition, ordinary wear and tear and immaterial
impairments of value and damage by the elements excepted, and will provide all
maintenance, service and repairs necessary for such purpose.
(n) FURTHER IDENTIFICATION OF COLLATERAL. The Grantor will furnish
to the Agent and the Lenders from time to time statements and schedules further
identifying and describing the Collateral and such other reports in connection
with the Collateral as the Agent may request, all in reasonable detail.
(o) NOTICES. The Grantor will advise the Agent and the Lenders
promptly, in reasonable detail, at their respective addresses set forth in the
Credit Agreement, (i) of any Lien (other than Liens created hereby or permitted
under the Credit Agreement) on, or claim asserted against, any of the Collateral
and (ii) of the occurrence of any other event which could reasonably be expected
to have a material adverse effect on the aggregate value of the Collateral or on
the Liens created hereunder.
(p) CHANGES IN LOCATIONS, NAME, ETC. Unless the Grantor gives 30
days' prior written notice to the Agent, the Grantor will not (i) change the
location of its chief executive office/chief place of business from that
specified in SECTION 4(F) or remove its books and records from the location
specified in SECTION 4(C), (ii) permit any of the Inventory or Equipment to be
-8-
kept at a location other than those listed on Schedule I hereto or (iii) change
its name, identity or corporate structure to such an extent that any financing
statement filed by the Agent in connection with this Security Agreement would
become seriously misleading.
6. AGENT'S APPOINTMENT AS ATTORNEY-IN-FACT.
(a) POWERS. The Grantor hereby irrevocably constitutes and appoints
the Agent and any officer or agent thereof, with full power of substitution, as
its true and lawful attorney-in-fact with full irrevocable power and authority
in the place and stead of the Grantor and in the name of the Grantor or in its
own name, from time to time in the Agent's discretion, for the purpose of
carrying out the terms of this Security Agreement, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Security
Agreement, and, without limiting the generality of the foregoing, the Grantor
hereby gives the Agent the power and right, on behalf of the Grantor, without
notice to or assent by the Grantor, to do the following:
(i) in the case of any Account, at any time when the authority of
the Grantor to collect the Accounts has been curtailed or terminated
pursuant to the first sentence of Section 3(c), or in the case of any other
Collateral, at any time when any Event of Default shall have occurred and
is continuing, in the name of the Grantor or its own name, or otherwise, to
take possession of and endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
Account, Instrument, General Intangible or Contract or with respect to any
other Collateral and to file any claim or to take any other action or
proceeding in any court of law or equity or otherwise deemed appropriate by
the Agent for the purpose of collecting any and all such moneys due under
any Account, Instrument, General Intangible or Contract or with respect to
any other Collateral whenever payable;
(ii) upon the occurrence and during the continuance of any Event of
Default, to pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, to effect any repairs or any insurance
called for by the terms of this Security Agreement and to pay all or any
part of the premiums therefor and the costs thereof; and
(iii) upon the occurrence and during the continuance of any Event of
Default, (A) to direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Agent or as the Agent shall direct; (B) to ask
or demand for, collect, receive payment of and receipt for, any and all
moneys, claims and other amounts due or to become due at any time in
respect of or arising out of any Collateral; (C) to sign and endorse any
invoices, freight or express bills, bills of lading, storage or warehouse
receipts, drafts against debtors, assignments, verifications, notices and
other documents in connection with any of the Collateral; (D) to commence
and prosecute any suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect the Collateral or any thereof
and to enforce any other right in respect of any Collateral; (E) to defend
any suit, action or proceeding brought against the Grantor with respect to
any Collateral; (F) to settle,
-9-
compromise or adjust any suit, action or proceeding described in clause (E)
above and, in connection therewith, to give such discharges or releases as
the Agent may deem appropriate; and (G) generally, to sell, transfer,
pledge and make any agreement with respect to or otherwise deal with any of
the Collateral as fully and completely as though the Agent were the
absolute owner thereof for all purposes, and to do, at the Agent's option
and the Grantor's expense, at any time, or from time to time, all acts and
things which the Agent deems necessary to protect, preserve or realize upon
the Collateral and the Agent's and the Lenders' Liens thereon and to effect
the intent of this Security Agreement, all as fully and effectively as the
Grantor might do.
The Grantor hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable.
(b) OTHER POWERS. The Grantor also authorizes the Agent and the
Lenders, at any time and from time to time, to execute, in connection with the
sale provided for in this SECTION 6 or in SECTION 9 hereof, any endorsements,
assignments or other instruments of conveyance or transfer with respect to the
Collateral.
(c) NO DUTY ON AGENT OR LENDERS' PART. The powers conferred on
the Agent and the Lenders hereunder are solely to protect the Agent's and the
Lenders' interests in the Collateral and shall not impose any duty upon the
Agent or any Lender to exercise any such powers. The Agent and the Lenders
shall be accountable only for amounts that they actually receive as a result of
the exercise of such powers, and neither they nor any of their officers,
directors, employees or agents shall be responsible to the Grantor for any act
or failure to act hereunder, except for their own gross negligence or willful
misconduct.
7. PERFORMANCE BY AGENT OF GRANTOR'S OBLIGATIONS. If the Grantor
fails to perform or comply with any of its agreements contained herein and the
Agent, as provided for by the terms of this Security Agreement, shall itself
perform or comply, or otherwise cause performance or compliance, with such
agreement, the expenses of the Agent incurred in connection with such
performance or compliance, together with interest thereon at a rate per annum 2%
above the Alternate Base Rate, shall be payable by the Grantor to the Agent on
demand and shall constitute Guarantee Obligations secured hereby.
8. PROCEEDS. In addition to the rights of the Agent and the
Lenders specified in SECTION 3(C) with respect to payments of Accounts, it is
agreed that if an Event of Default shall occur and be continuing (a) upon
written notice by the Agent to the Grantor, all Proceeds received by the Grantor
consisting of cash, checks and other near-cash items shall be held by the
Grantor in trust for the Agent and the Lenders, segregated from other funds of
the Grantor, and, forthwith upon receipt by the Grantor, shall be turned over to
the Agent in the exact form received by the Grantor (duly endorsed by the
Grantor to the Agent, if required), and (b) any and all such Proceeds received
by the Agent (whether from the Grantor or otherwise) may, in the sole discretion
of the Agent, be held by the Agent for the ratable benefit of the Lenders as
collateral security for, and/or then or at any time thereafter may be applied by
the Agent against, the Guarantee Obligations (whether matured or unmatured),
such application to be in such order as
-10-
the Agent shall elect. Any balance of such Proceeds remaining after the
Guarantee Obligations shall have been paid in full and the Commitments shall
have been terminated shall be paid over to the Grantor or to whomsoever may be
lawfully entitled to receive the same.
9. REMEDIES. If an Event of Default shall occur and be
continuing, the Agent, on behalf of the Lenders, may exercise, in addition to
all other rights and remedies granted to them in this Security Agreement and in
any other instrument or agreement securing, evidencing or relating to the
Guarantee Obligations, all rights and remedies of a secured party under the
Code. Without limiting the generality of the foregoing, the Agent, without
demand of performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to below) to or
upon the Parent, the Borrower, the Grantor, any guarantor, or any other Person
(all and each of which demands, defenses, advertisements and notices being
hereby waived), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, assign, give option or options to purchase, or otherwise
dispose of and deliver the Collateral or any part thereof (or contract to do any
of the foregoing), in one or more parcels at public or private sale or sales, at
any exchange, broker's board or office of the Agent or any Lender or elsewhere
upon such terms and conditions as it may deem advisable and at such prices as it
may deem best, for cash or on credit or for future delivery without assumption
of any credit risk. The Agent or any Lender shall have the right upon any such
public sale or sales, and, to the extent permitted by law, upon any such private
sale or sales, to purchase the whole or any part of the Collateral so sold, free
of any right or equity of redemption in the Grantor, which right or equity is
hereby waived or released. The Grantor further agrees, at the Agent's request,
to assemble the Collateral and make it available to the Agent at such places as
the Agent shall reasonably select, whether at the Grantor's premises or
elsewhere. The Agent shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred therein or incidental to
the care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Agent and the Lenders hereunder, including,
without limitation, reasonable attorneys' fees and disbursements, to the payment
in whole or in part of the Guarantee Obligations, in such order as the Agent may
elect, and only after such application and after the payment by the Agent of any
other amount required by any provision of law, including, without limitation,
Section 9-504(i)(c) of the Code, need the Agent account for the surplus, if any,
to the Grantor. To the extent permitted by applicable law, the Grantor waives
all claims, damages and demands it may acquire against the Agent or any Lender
arising out of the exercise by them of any rights hereunder. If any notice of a
proposed sale or other disposition of Collateral shall be required by law, such
notice shall be deemed reasonable and proper if given at least 10 days before
such sale or other disposition. The Grantor shall remain liable for any
deficiency if the proceeds of any sale or other disposition of the Collateral
are insufficient to pay the Guarantee Obligations and the fees and disbursements
of any attorneys employed by the Agent or any Lender to collect such deficiency.
10. LIMITATION ON DUTIES REGARDING PRESERVATION OF COLLATERAL.
The Agent's sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section 9-207 of the
Code or otherwise, shall be to deal with it in the same manner as the Agent
deals with similar property for its own account. Neither the Agent, any
-11-
Lender, nor any of their respective directors, officers, employees or agents
shall be liable for failure to demand, collect or realize upon all or any part
of the Collateral or for any delay in doing so or shall be under any obligation
to sell or otherwise dispose of any Collateral upon the request of the Grantor
or otherwise.
11. FCC COMPLIANCE. Notwithstanding anything herein to the
contrary, but without limiting or waiving Grantor's obligations hereunder, the
Lenders' remedies hereunder are subject to the Communications Act of 1934, as
amended, and all applicable rules, regulations and policies of the FCC ("FCC
Law"), and the Agent and the lenders will not take any action pursuant to this
Agreement that would constitute or result in any assignment or transfer of
control of any FCC authorization held by Grantor if such assignment or transfer
of control would require under then existing FCC Law the prior approval of the
FCC, without first obtaining such approval of the FCC. Grantor agrees to take
any action which the Agent may reasonably request in order to cause the Agent
(on behalf of the Lenders) to obtain and enjoy the full rights and benefits
granted by this Agreement, including specifically, at the cost and expense of
Grantor, the use of its commercially reasonable best efforts to assist in
obtaining approval of the FCC or Governmental Authority for an action or
transaction contemplated by this Agreement which are then required by law, and
specifically, without limitation, upon request upon and during the continuance
of an Event of Default, to prepare, sign and file (or cause to be filed) with
the FCC or other Governmental Authority the assignor's, transferor's or
controlling person's portion of any application or applications for consent to
(i) the assignment of any FCC license or transfer or control thereof, (ii) any
sale or sales of property constituting any Collateral by the Agent or on behalf
of the Lenders, or (iii) any assumption by the Agent, the Lenders or their
designees of voting rights or management rights in property constituting any
Collateral effected in accordance with the terms of this Agreement or any other
Loan Document.
12. POWERS COUPLED WITH AN INTEREST. All authorizations and
agencies herein contained with respect to the Collateral are irrevocable and
powers coupled with an interest.
13. LIMITATION ON LINES OF BUSINESS. Nothing contained in this
Security Agreement shall be deemed or construed as modifying in any way the
restrictions on Grantor's activities as set forth in Section 6.14 of the Credit
Agreement.
14. SEVERABILITY. Any provision of this Security 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.
15. SECTION HEADINGS. The section headings used in this Security
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
16. NO WAIVER; CUMULATIVE REMEDIES. Neither the Agent nor any
Lender shall by any act (except by a written instrument pursuant to Section 17),
delay, indulgence,
-12-
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default or in any breach of any of
the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Agent or any Lender, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by the Agent or any Lender of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the Agent
or such Lender would otherwise have on any future occasion. The rights and
remedies herein provided are cumulative, may be exercised singly or concurrently
and are not exclusive of any rights or remedies provided by law.
17. WAIVERS AND AMENDMENTS; SUCCESSORS AND ASSIGNS. None of the
terms or provisions of this Security Agreement may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Grantor and the Agent; PROVIDED that any provision of this Security
Agreement may be waived by the Agent in a written letter or agreement executed
by the Agent or by telex or facsimile transmission from the Agent. This
Security Agreement shall be binding upon the successors and assigns of the
Grantor and shall inure to the benefit of the Agent and the Lenders and their
respective successors and assigns.
18. GOVERNING LAW. THIS SECURITY AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS SECURITY AGREEMENT SHALL BE GOVERNED BY,
AND BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, EXCEPT
FOR PERFECTION AND ENFORCEMENT OF SECURITY INTERESTS AND LIENS IN OTHER
JURISDICTIONS TO THE EXTENT THE LAW OF ANOTHER JURISDICTION IS MANDATORILY
APPLICABLE PURSUANT TO THE LAWS OF SUCH JURISDICTION.
19. NOTICES. Notices hereunder may be given by mail, by telex or
by facsimile transmission, addressed or transmitted to the Person to which it is
being given at such Person's address or transmission number set forth in the
Credit Agreement or the Guarantee, as the case may be, and shall be effective
(a) in the case of mail, three days after deposit in the postal system, first
class postage pre-paid and (b) in the case of telex or facsimile notices, when
sent. The Grantor may change its address and transmission number by written
notice to the Agent, and the Agent or any Lender may change its address and
transmission number by written notice to the Grantor and, in the case of any
Lender, to the Agent.
20. AUTHORITY OF AGENT. The Grantor acknowledges that the rights
and responsibilities of the Agent under this Security Agreement with respect to
any action taken by the Agent or the exercise or non-exercise by the Agent of
any option, right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Security Agreement shall, as between
the Agent and the Lenders, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Agent and the Grantor, the Agent shall be conclusively presumed
to be acting as
-13-
agent for the Lenders with full and valid authority so to act or refrain from
acting, and the Grantor shall not be under any obligation, or entitlement, to
make any inquiry respecting such authority.
21. COUNTERPARTS. This Security Agreement may be executed in
counterparts, and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
-14-
IN WITNESS WHEREOF, the Grantor and the Agent have caused this
Security Agreement to be duly executed and delivered as of the date first above
written.
BLAYA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
CANADIAN IMPERIAL BANK OF COMMERCE, as Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: EXECUTIVE DIRECTOR
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp., AS AGENT
SCHEDULE 1
TO SUBSIDIARY
SECURITY
AGREEMENT
BLAYA, INC.
LOCATION OF INVENTORY
---------------------
NONE.
LOCATION OF EQUIPMENT
---------------------
Houston, Texas
Pasadena, Texas
ANNEX A
TO SUBSIDIARY
SECURITY
AGREEMENT
BLAYA, INC.
LIST OF INVESTMENT PROPERTY
---------------------------
NONE