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JACOR COMMUNICATIONS, INC.
TRADEMARK SECURITY AGREEMENT
This Trademark Security Agreement (herein "Agreement"), dated
as of February __, 1996, is made by JACOR COMMUNICATIONS, INC., an Ohio
corporation (the "Company"), located at 1300 PNC Center, 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000, in favor of BANQUE PARIBAS, located at 000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, as Agent, for the benefit of itself, the
Banks (as defined below), the Co-Agents (as defined below), any L/C Providers
(as defined in the Credit Agreement) and any Interest Rate Providers (as
defined in the Credit Agreement) (in such capacity, together with its
successors and assigns, the "Agent").
RECITALS
WHEREAS, the Company has entered into that certain Credit
Agreement dated as of the date hereof with the Agent, the banks party thereto
from time to time (the "Banks") and the Co-Agents (as defined therein) (as the
same may be amended, modified, supplemented, replaced or restated from time to
time, the "Credit Agreement"); and
WHEREAS, as a condition to the Agent, the Banks, the
Co-Agents, any L/C Providers and any Interest Rate Providers entering into the
Credit Agreement, the Citicasters L/C Documents and Rate Hedging Agreements,
respectively, the Company is required to enter into this Agreement and to grant
to Agent, for the benefit of itself, the Banks, the Co-Agents, the L/C
Providers and the Interest Rate Providers, a security interest in the
Trademarks (as hereinafter defined), all under the terms and conditions set
forth in this Agreement.
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AGREEMENT
NOW, THEREFORE, in order to induce Agent, the Banks and the
Co-Agents to enter into the Credit Agreement, and for other good and valuable
consideration, the receipt and adequacy of which hereby is acknowledged, the
parties hereby agree as follows:
1. Definitions. This Agreement is the "Company Trademark
Agreement" referred to in the Credit Agreement. Terms defined in the Credit
Agreement and not otherwise defined in this Agreement shall have the meanings
defined for those terms in the Credit Agreement. The following term shall have
the following meaning:
"Trademarks" means, collectively, all right, title and
interest of the Company in and to its now owned and hereafter acquired
trademarks, service marks, trade names, business identifiers, logos and any and
all registrations and applications for any of the foregoing, including, but not
limited to, those indicated on Schedule I hereto, incorporated herein by this
reference, together with the goodwill of the businesses symbolized by each of
the foregoing.
2. Grant of Security Interest in Trademarks. To secure the
full and complete payment and performance by the Company of the Obligations
when due, the Company hereby grants, mortgages and pledges to the Agent, for
the benefit of the Agent, the Banks, the Co-Agents, any L/C Providers and any
Interest Rate Providers equally and ratably in proportion to the total Obliga-
tions owing at such time to any of them, a security interest in all of the
Company's right, title and interest in and to the Trademarks. The security
interest granted hereby is a present right and is not subject to any condition
precedent to attachment. The Company agrees that it will not grant any license
in respect of any of the Trademarks
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without the prior written consent of Agent, except licenses entered into in the
ordinary course of business and consistent with past practices. Nothing herein
contained shall impose any liability on Agent for any acts or omissions of the
Company in connection with any license or license agreement presently in effect
or hereafter entered into by the Company licensing the use of the Trademarks.
3. Representations and Warranties. The Company represents
and warrants to the Agent, for the benefit of itself, the Banks, the Co-Agents,
any L/C Providers and any Interest Rate Providers, that (a) the Trademarks
listed on Schedule I include all of the material United States registered
Trademarks now owned or held by the Company; (b) no Subsidiary of Borrower owns
any material United States registered Trademarks except as listed on Schedule I
to the Subsidiary Trademark Agreement; (c) the items identified in Schedule I
hereto are in good standing and have not been adjudged invalid or
unenforceable, in whole or in part, and each Trademark is valid and enforceable
in the jurisdictions and in the manner in which they are currently used; (d) to
the best of the Company's knowledge, no claim has been made that the use by the
Company of any Trademark violates the rights of any third person; and (e) the
Company is the legal and beneficial owner of the Trademarks, free and clear of
all Liens (other than the Liens created by the Collateral Documents or
permitted by Section 6.17 of the Credit Agreement), and all registrations for
the Trademarks listed on Schedule I hereto are standing in the name of the
Company.
4. New Trademarks. If the Company shall obtain rights to any
new Trademarks, the provisions of Section 2 above shall automatically apply
thereto, and if the Company or any Subsidiary adopts or acquires any new
material United States registered Trademark, it shall promptly give to Agent
written notice thereof.
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The Company hereby authorizes Agent to modify this Agreement unilaterally (i)
by amending Schedule I to include any new United States registered Trademarks
acquired by the Company and (ii) by filing in such governmental office as Agent
may deem necessary or desirable, in addition to and not in substitution for
this Agreement, a supplemental trademark security agreement or a duplicate
original of this Agreement containing, on Schedule I thereto, such new
Trademarks and to supplement or replace any UCC filings or recordation in the
United States Patent and Trademark Office or any other filing or recordation
made to perfect the security interest granted hereunder. If Agent is unable to
unilaterally accomplish (i) or (ii) above, the Company agrees to execute and
deliver all documents and instruments reasonably requested by Agent to
accomplish the foregoing. If any Subsidiary of the Company (other than a
Subsidiary then party to a Subsidiary Trademark Agreement) shall obtain rights
to any Trademark, it shall promptly cause each such Subsidiary to execute and
deliver to the Agent, on behalf of itself, the Banks, the Co-Agents, any L/C
Provider and any Interest Rate Provider, a Subsidiary Trademark Agreement.
5. License. The Company hereby grants to the Agent a
nonexclusive license, exercisable after the occurrence and during the
continuance of a Default or exercisable after the occurrence and during the
continuance of a default under any of the Citicasters L/C Documents, to use the
Trademarks in connection with the Agent's exercise of its rights and remedies
under Section 6 or pursuant to any other Loan Document. The Agent's use of the
Trademarks pursuant to this Section 5 shall be coextensive with the Company's
rights thereunder and with respect thereto and without any liability for
royalties or other related charges from Agent to the Company. In operating
under such license, the Agent agrees that the goods and services offered under
the Trademarks shall be of a quality substantially consistent with those
theretofore offered by the Company under such Trademarks. The
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Company shall have the right to inspect, upon reasonable intervals and with
reasonable notice, the business conducted by or on behalf of Agent under this
license for purposes of monitoring compliance with the aforesaid quality
standard.
6. Default Remedies. Upon the occurrence and during the
continuance of a Default or a default under any of the Citicasters L/C
Documents, the Agent shall have, in addition to all rights and remedies
provided for by law or in equity, all rights and remedies of a secured party
under the Uniform Commercial Code as in effect in any jurisdiction where
enforcement hereof is sought, and all rights and remedies provided in any other
Loan Document or Citicasters L/C Documents, as the case may be, which rights
and remedies are incorporated herein as though set forth in full.
7. Incorporation by Reference of Certain Provisions. This
Agreement is delivered pursuant to the Credit Agreement and shall be
interpreted consistently therewith. Any provision in the Credit Agreement or
in any other Loan Document that is of general applicability to the Loan
Documents shall be and hereby is incorporated by reference in this Agreement as
though set forth in full.
8. Control; Limitation of Rights.
(a) Notwithstanding anything herein to the contrary,
this Agreement, the other Loan Documents and the transactions contemplated
hereby and thereby (i) do not and will not constitute, create, or have the
effect of constituting or creating, directly or indirectly, actual or practical
ownership of the Company by the Agent, the Co-Agents, the L/C Providers, the
Interest Rate Providers or the Banks, or control, affirmative or negative,
direct or indirect, by the Agent, the Co-Agents, the Banks, the L/C Providers
or the Interest Rate
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Providers over the management or any other aspect of the operation of the
Company, which ownership and control remains exclusively and at all times in
the Company, and (ii) except for the grant of a security interest hereunder to
the extent permitted by law, do not and will not constitute the transfer,
assignment, or disposition in any manner, voluntarily or involuntarily,
directly or indirectly, of any license at any time issued by the FCC to the
Company ("License"), or the transfer of control of the Company within the
meaning of Section 310 of the Communications Act of 1934, as amended.
(b) Notwithstanding any other provision of this
Agreement, any foreclosure on, sale, transfer or other disposition of, or the
exercise of any right to vote or consent with respect to, any of the Collateral
as provided herein or any other action taken or proposed to be taken by the
Agent, the Co-Agents, the L/C Providers, the Interest Rate Providers and the
Banks hereunder which would affect the operational, voting, or other control of
the Company, shall be pursuant to Section 310 of the Communications Act of
1934, as amended, to any applicable state laws and to the applicable rules and
regulations thereunder and, if and to the extent required thereby, subject to
the prior approval of the FCC.
(c) Subject to Section 8(e), if a Default shall have
occurred and be continuing or a default under any of the Citicasters L/C
Documents shall have occurred and be continuing, the Company shall take any
action which the Agent, on behalf of the Agent, the Co-Agents, the L/C
Providers, the Interest Rate Providers and the Banks, may reasonably request in
order to transfer and assign to the Agent, or to such one or more third parties
as the Agent may designate, or to a combination of the foregoing, each License.
To enforce the provisions of this Section 8 the Agent is empowered to request
the appointment of a receiver from any court of competent jurisdiction. Such
receiver shall be instructed to seek
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from the FCC an involuntary transfer of control of each such License for the
purpose of seeking a bona fide purchaser to whom control will ultimately be
transferred. The Company hereby agrees to authorize such an involuntary
transfer of control upon the request of the receiver so appointed and, if the
Company shall refuse to authorize the transfer, its approval may be required by
the court. Upon the occurrence and continuance of a Default or the occurrence
and continuance of a default under any of the Citicasters L/C Documents, the
Company shall further use its best efforts to assist in obtaining approval of
the FCC, if required, for any action or transactions contemplated by this
Agreement including, without limitation, the preparation, execution and filing
with the FCC of the assignor's or transferor's portion of any application or
applications for consent to the assignment of any License or transfer of
control necessary or appropriate under the FCC's rules and regulations for
approval of the transfer or assignment of any portion of the Trademarks,
together with any License.
(d) The Company acknowledges that the assignment or
transfer of each License is integral to the Agent's, the Co-Agents', the L/C
Provider's, the Interest Rate Provider's and the Banks' realization of the
value of the Trademarks, that there is no adequate remedy at law for failure by
the Company to comply with the provisions of this Section 8 and that such
failure would not be adequately compensable in damages, and therefore agrees
that the agreements contained in this Section 8 may be specifically enforced.
(e) Notwithstanding anything to the contrary
contained in this Agreement or in any other Loan Document, neither the Agent,
any Co-Agent, any L/C Provider, any Interest Rate Provider nor any Bank shall,
without first obtaining the approval of the FCC, take any action pursuant to
this Agreement which would constitute or result in any assignment of a License
or any change of
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control of any License or the Company if such assignment or change in control
would require, under then existing law (including the written rules and
regulations promulgated by the FCC), the prior approval of the FCC.
9. WAIVER OF JURY TRIAL. EACH OF THE COMPANY AND THE AGENT
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH OF THE COMPANY AND THE AGENT
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION
FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
AGENT, THE CO-AGENTS, THE BANKS, ANY L/C PROVIDERS AND ANY INTEREST RATE
PROVIDERS TO ENTER INTO THE CREDIT AGREEMENT, THE CITICASTERS L/C DOCUMENTS AND
RATE HEDGING AGREEMENTS, RESPECTIVELY.
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IN WITNESS WHEREOF, the Company has caused its duly authorized
officers to execute and deliver this Agreement as of the day and year first
written above.
JACOR COMMUNICATIONS, INC.,
an Ohio corporation
By:___________________________
Its:_______________________
By:___________________________
Its:_______________________
ACCEPTED AND AGREED AS OF
THE DATE FIRST ABOVE WRITTEN:
BANQUE PARIBAS, as Agent
By:________________________
Its:____________________
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STATE OF ILLINOIS)
) ss:
COUNTY OF XXXX )
On February __, 1996, before me, the undersigned, a notary
public in and for said state and county, personally appeared _______________
and _______________, personally known to me (or proved to me on the basis of
satisfactory evidence), to be the persons who executed the within instrument as
the _______________ and the ________________, respectively, on behalf of JACOR
COMMUNICATIONS, INC., an Ohio corporation, the corporation therein named, and
acknowledged to me that the corporation executed the within instrument pursuant
to its bylaws or a resolution of its board of directors.
WITNESS MY HAND AND OFFICIAL SEAL.
(NOTARIAL STAMP OR SEAL)
______________________
Notary Public
My Commission Expires:
______________________
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SCHEDULE I TO
TRADEMARK SECURITY AGREEMENT
Registration
Trademark No. and Date Record Owner
--------- ------------ ------------
Jacor 1,617,984 Jacor Communications, Inc.
10/16/90
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