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SUBSIDIARY TRADEMARK SECURITY AGREEMENT
This Subsidiary Trademark Security Agreement (herein
"Agreement"), dated as of February __, 1996, is made by JACOR BROADCASTING OF
TAMPA BAY, INC., a Florida corporation, JACOR BROADCASTING OF ATLANTA, INC., a
Georgia corporation, JACOR BROADCASTING CORPORATION, an Ohio corporation and
JACOR BROADCASTING OF FLORIDA INC., a Florida corporation (each a "Grantor" and
collectively the "Grantors"), 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), the L/C Providers
(as defined in the Credit Agreement) and the Interest Rate Providers (as defined
in the Credit Agreement) (in such capacity, together with its successors and
assigns, "Agent").
RECITALS
WHEREAS, Jacor Communications, Inc., an Ohio corporation, has
entered into that certain Credit Agreement dated as of the date hereof with
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,
restated, replaced or restated from time to time, the "Credit Agreement"); and
WHEREAS, as a condition to Agent, the Banks and the Co-Agents
entering into the Credit Agreement, each of the Grantors 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, the
Co-Agents, 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, 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 a "Subsidiary 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 terms shall have
the following meaning:
"Obligations" means, as to each Guarantor, all obligations of such
Guarantor under the Subsidiary Guaranty executed by such Guarantor including,
without limitation, all obligations of such Guarantor pursuant to Section 1 of
such Subsidiary Guaranty.
"Trademarks" means, collectively, all right, title and interest of
each of the Grantors 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 of the Obligations when due, each of the
Grantors hereby grants, mortgages and pledges to Agent, for the benefit of the
Agent, the Banks, the Co-Agents, any L/C Providers
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and any Interest Rate Providers equally and ratably in proportion to the
Obligations owing at any time to any of them, a security interest in all of each
of the Grantor'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. Each of the Grantors agrees that it will not
grant any license in respect of any of the Trademarks 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 any of the Grantors
in connection with any license or license agreement presently in effect or
hereafter entered into by any of the Grantors licensing the use of the
Trademarks.
3. Representations and Warranties. Each of the Grantors 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 United States registered Trademarks now
owned or held by the Grantors, (b) 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 to the best of Grantor's knowledge, Trademark is valid and
enforceable in the jurisdictions and in the manner in which they are currently
used; (c) to the best of each of the Grantor's knowledge, no claim has been made
that the use by any of the Grantors of any Trademark violates the rights of any
third person and (d) each of the Grantors is the legal and beneficial owner of
the applicable 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 such Trademarks listed on Schedule I
hereto are standing in the name of the applicable Grantor.
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4. New Trademarks. If any of the Grantors shall obtain rights to
any new Trademarks, the provisions of Section 2 above shall automatically apply
thereto, and if any of the Grantors adopts or acquires any new United States
registered Trademark, it shall promptly give to Agent written notice thereof.
Each of the Grantors hereby authorizes Agent to modify this Agreement
unilaterally (i) by amending Schedule I to include any new United States
registered Trademarks acquired by any of the Grantors 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, each of the Grantors
agrees to execute and deliver all documents and instruments reasonably requested
by Agent to accomplish the foregoing.
5. License. Each of the Grantors hereby grants to Agent a
nonexclusive license, exercisable after the occurrence and during the
continuance of a Default or 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 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 each of the Grantor's rights
thereunder and with respect thereto and without any liability for royalties or
other related charges from Agent to the Grantors. 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 Grantors under such Trademarks. Each
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Grantor 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 any of the Citicasters L/C Documents, as the case may be, which
rights and remedies are incorporated herein as though set forth in full.
Notwithstanding the foregoing, the rights of any L/C Provider upon the
occurrence and continuance of a default under any of the Citicasters L/C
Documents shall be subject to the provisions of any intercreditor agreement in
effect from time to time.
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 any of the Grantors
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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
Providers over the management or any other aspect of the operation of any of
Grantors, which ownership and control remains exclusively and at all times in
the Company and each Grantor, 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 any of the Grantors ("License"), or the transfer of control of any of
the Grantors 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 any of
the Grantors, 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 or a default
under any of the Citicasters L/C Documents shall have occurred and be
continuing, the applicable Grantor shall take any action which the Agent, on
behalf of the Agent, the Co-Agents, the Banks, the L/C Providers and the
Interest Rate Providers 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
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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
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. Each of the Grantors 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 a default under
any of the Citicasters L/C Documents, the applicable Grantor 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) Each of the Grantors 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 such
Grantor 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 Pro-
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vider, 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 control of
any License of any of the Grantors 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. Actions Not Releases; Waiver of Defenses. The lien hereunder
and each of the Grantor's obligations and the Agent's, the Co-Agents', any L/C
Provider's, any Interest Rate Provider's and the Banks' rights hereunder shall
not be released, diminished, impaired, or adversely affected by the occurrence
of any one or more of the following events: (i) the taking or accepting of any
other security or assurance at any time existing in connection with any or all
of the Obligations; (ii) any release, surrender, exchange, subordination or loss
of any security or assurance at any time existing in connection with any or all
of the Obligations; (iii) the modification of, amendment to, or waiver or
compliance with any terms of any Loan Document; (iv) the insolvency, bankruptcy,
or lack of corporate power of any party at any time liable for the payment of
any or all of the Obligations, whether now existing or hereafter occurring; (v)
any renewal, extension, or rearrangement of the payment of any or all of the
Obligations, either with or without notice to or consent of the applicable
Grantor in accordance with any Loan Document, or any adjustment, indulgence,
forbearance, or compromise that may be granted or given by the Agent, any
Co-Agent, any L/C Provider, any Interest Rate Provider or any Bank to the
applicable Grantor or the Company; (vi) any neglect, delay, omission, failure,
or refusal of the Agent, any Co-Agent, any L/C Provider, any Interest Rate
Provider or any Bank to take or prosecute any action in connection with any
other agreement, document, guaranty, or instrument evidencing, securing, or
assuring the payment of all or any of the
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Obligations; (vii) any failure of the Agent, any Co-Agent, any Bank, any L/C
Provider or any Interest Rate Provider to notify the applicable Grantor of any
renewal, extension, or assignment of the Obligations or any part thereof, or the
release of any security, or of any other action taken or refrained from being
taken by the Agent, any Co-Agent, any L/C Provider, any Interest Rate Provider
or any Bank against the Company or the applicable Grantor or any new agreement
among the Agent, any Co-Agent, any L/C Provider, any Interest Rate Provider or
any Bank [shall be required to give the Grantor] (or any combination thereof),
it being understood that neither the Agent, any Co-Agent, any L/C Provider, any
Bank nor any Interest Rate Provider shall be required to give any Grantor any
notice of any kind under any circumstances whatsoever, except as required under
applicable law, with respect to or in connection with the Obligations,
including, without limitation, notice of acceptance of this Agreement or any
Collateral ever delivered to or for the account of the Agent, the Co-Agents, any
L/C Providers, any Interest Rate Providers or the Banks hereunder; (viii) the
illegality, invalidity, or unenforceability of all or any part of the
Obligations against any party obligated with respect thereto by reason of the
fact that the Obligations, or the interest paid or payable with respect thereto,
exceeds the amount permitted by law, the act of creating the Obligations, or any
part thereof, is ultra xxxxx, or the officers creating same acted in excess of
their authority, or for any other reason; or (ix) any payment by any party
obligated with respect thereto is held to constitute a preference under
applicable laws or for any other reason the Agent, any Co-Agent, any L/C
Provider, any Interest Rate Provider or any Bank is required to refund such
payment or pay the amount thereof to someone else. Each of the Grantors
expressly waives any and all defenses now or hereafter arising or asserted by
reason of (i) any disability or other defense of any of the Company or any
Subsidiary with respect to the Obligations, (ii) the unenforceability or
invalidity
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of any security or guaranty for the Obligations or the lack of perfection or
continuing perfection or failure of priority of any security for the
Obligations, (iii) the cessation for any cause whatsoever of the liability of
any of the Company or any Subsidiary (other than by reason of the full payment
and performance of all Obligations), (iv) any failure of the Agent to marshal
assets in favor of the Grantor or any other Person, (v) any failure of the Agent
to give notice of sale or other disposition to the applicable Grantor or any
defect in any notice that may be given in connection with any sale or
disposition, (vi) any act or omission of the Agent, any Co-Agent, any L/C
Provider, any Interest Rate Provider or any Bank or others that directly or
indirectly results in or aids the discharge or release of any of the Company or
any Subsidiary or the Obligations or any other security or guaranty therefor by
operation of law or otherwise, (vii) any law which provides that the obligation
of a surety or guarantor must neither be larger in amount nor in other respects
more burdensome than that of the principal or which reduces a surety's or
guarantor's obligation in proportion to the principal obligations, or (viii) any
other circumstance which might otherwise constitute a defense available to, or a
discharge of, the Grantors, all whether or not such Grantor shall have had
notice or knowledge of any act or omission referred to in the foregoing clauses
(i) through (viii) of this paragraph. Each of the Grantors expressly waives all
setoffs and counterclaims and all presentments, demands for payment or
performance, notices of nonpayment or nonperformance, protests, notices of
protest, notices of dishonor and all other notices or demands of any kind or
nature whatsoever with respect to the Obligations, and all notices of acceptance
of this Security Agreement or of the existence, creation or incurring of new or
additional Obligations.
10. Waiver of Subrogation. Each of the Grantors hereby irrevocably
waives any claim or other rights
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which it may now or hereafter acquire against the Company or any of the Grantors
that arise from the existence, payment, performance or enforcement of any of the
Grantor's obligations under this Agreement or any other Loan Document, including
any right of subrogation, reimbursement, exoneration, or indemnification, any
right to participate in any claim or remedy of the Agent, any Co-Agent, any L/C
Provider, any Interest Rate Providers or any Bank against the Company or the
applicable Grantor or any collateral which the Agent now has or hereafter
acquires, whether or not such claim, remedy or right arises in equity, or under
contract, statute or common law, including the right to take or receive from the
Company or the applicable Grantor, directly or indirectly, in cash or other
property or by set-off or in any manner, payment or security on account of such
claim or other rights. If any amount shall be paid to any Grantor in violation
of the preceding sentence and the Obligations shall not have been paid in cash
in full and the Commitments have not been terminated, such amount shall be
deemed to have been paid to such Grantor for the benefit of, and held in trust
for, the Agent, the Co-Agents, the L/C Providers, the Interest Rate Providers
and the Banks, and shall forthwith be paid to the Agent to be credited and
applied upon the Obligations, whether matured or unmatured. Each of the Grantors
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by the Credit Agreement and that the waiver
set forth in this Section is knowingly made in contemplation of such benefits.
11. WAIVER OF JURY TRIAL. EACH OF THE GRANTORS 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 GRANTORS AND THE AGENT
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION
FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCE-
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MENT 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, each of the Grantors has caused its duly
authorized officer to execute this Agreement as of the day and year first
written above.
JACOR BROADCASTING OF TAMPA
BAY, INC., a Florida
corporation
By:
-----------------------------
Its:
-------------------------
JACOR BROADCASTING OF ATLANTA,
INC., a Georgia corporation,
By:
-----------------------------
Its:
-------------------------
JACOR BROADCASTING CORPORATION,
an Ohio corporation
By:
-----------------------------
Its:
-------------------------
JACOR BROADCASTING OF FLORIDA,
INC., a Florida corporation
ACCEPTED AND AGREED AS OF
THE DATE FIRST ABOVE WRITTEN:
BANQUE PARIBAS, as Agent
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By:
-------------------------
Its:
---------------------
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STATE OF_________________ )
) ss:
COUNTY OF________________ )
On February __, 1996, before me, the undersigned, a notary public
in and for said state and county, personally appeared __________________,
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
_____________________________________, on behalf of JACOR BROADCASTING OF TAMPA
BAY, INC., a Florida 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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STATE OF__________________ )
) ss:
COUNTY OF_________________ )
On February __, 1996, before me, the undersigned, a notary public
in and for said state and county, personally appeared __________________,
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
_____________________________________, on behalf of JACOR BROADCASTING OF
ATLANTA, INC., a Georgia 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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STATE OF__________________ )
) ss:
COUNTY OF_________________ )
On February __, 1996, before me, the undersigned, a notary public
in and for said state and county, personally appeared __________________,
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
_____________________________________, on behalf of JACOR BROADCASTING
CORPORATION, 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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STATE OF__________________ )
) ss:
COUNTY OF_________________ )
On February __, 1996, before me, the undersigned, a notary public
in and for said state and county, personally appeared __________________,
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
_____________________________________, on behalf of JACOR BROADCASTING OF
FLORIDA, INC., a Florida 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
--------- ------------ ------------
If You Miss a 1,839,687 Jacor Broadcasting of
Day You Miss a 6/14/94 Atlanta, Inc.
Lot
The Big One 1,837,073 Jacor Broadcasting
5/17/94 Corporation
Aunt Xxxxxxx 1,839,681 Jacor Broadcasting of
6/14/94 Florida, Inc.
Atlanta's First 1,831,582 Jacor Broadcasting of
4/19/94 Atlanta, Inc.
The Power Pig 1,625,242 Jacor Broadcasting of
11/27/90 Tampa Bay, Inc.
