Exhibit 4.3
PLEDGE AND SECURITY AGREEMENT
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PLEDGE AND SECURITY AGREEMENT, dated as of March 12, 1997,
between KDSM, INC., a Maryland corporation (the "Company") and First Union
National Bank of Maryland, as collateral agent (in such capacity, the
"Collateral Agent"), for First Union National Bank of Maryland, as Debenture
Trustee (together with any successor thereto in such capacity, the "Debenture
Trustee") under the Indenture (as defined herein) for the benefit of the holders
(the "Debentureholders") of the Company's 11 5/8% Senior Debentures due 2009
(the "Debentures") to be issued under the Indenture.
W I T N E S E T H:
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WHEREAS, the Company, Xxxxxxxx Broadcast Group, Inc.
("Xxxxxxxx") and the Debenture Trustee have, as of the date hereof, entered into
the Indenture, dated as of the date hereof (as the same may be amended, modified
or supplemented from time to time, the "Indenture"), pursuant to which the
Company will issue the Debentures; and
WHEREAS, the Company has agreed to secure the Company's
obligations under the Debentures and the Indenture by pledging to the Collateral
Agent, for the equal and ratable benefit of the Debentureholders, the Collateral
(as defined below).
NOW, THEREFORE, the parties hereby agree as follows:
Section 1. Definitions. (a) Generally. Unless otherwise
defined herein, terms defined in the Indenture are used herein as defined
therein. Terms not expressly defined herein or in the Indenture but which are
defined in the UCC shall have the same meanings herein as in the UCC.
(b) Other Terms. In addition, the following terms shall have
the meanings ascribed to them below or in the Sections of this Agreement
indicated below:
"Affiliate" means, with respect to any specified Person, (i)
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person, (ii) any other
Person that owns, directly or indirectly, 5% or more of such Person's Equity
Interests (as defined in the Indenture) or any officer or director of any such
Person or other Person or, with respect to any natural Person, any Person having
a relationship with such Person or other Person by blood, marriage or adoption
not more remote than first cousin or (iii) any other Person 10% or more of the
voting Equity Interests of which are beneficially owned or held directly or
indirectly by such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person directly or indirectly,
whether through ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Affiliated Debentureholders" shall mean Debentureholders that
are Affiliates of Xxxxxxxx or its direct and indirect subsidiaries.
"Articles Supplementary" means the operative document pursuant
to which the Series C Preferred Stock was issued.
"Collateral" shall have the meaning ascribed thereto in
Section 3 hereof.
"Collateral Documents" shall mean this Agreement and any
related UCC financing statements, if any, and similar instruments delivered
pursuant hereto.
"Debentureholders" shall have the meaning ascribed thereto in
the preamble.
"Debentures" shall have the meaning ascribed thereto in the
preamble.
"Default" shall mean an Event of Default not cured within the
applicable grace periods as set forth in Article V of the Indenture.
"Enforcement Event" shall have the meaning ascribed thereto in
Section 5.03 hereof.
"Event of Default" shall mean an Event of Default as defined
in Article V of the Indenture.
"Financing Documents" shall mean any agreements or instruments
entered into by the Company governing its obligations under the Debentures and
the Indenture.
"Investments" shall have the meaning ascribed thereto in
Section 4.10 hereof.
"Lien" shall mean any mortgage, charge, pledge, lien
(statutory or otherwise), privilege security interest, hypothecation or other
encumbrance upon or with respect to the Collateral.
"Like Amount" means (i) with respect to a redemption of Series
C Preferred Stock, shares of Series C Preferred Stock
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having an aggregate Liquidation Amount equal to the principal amount of
Debentures to be contemporaneously redeemed in accordance with the Indenture and
(ii) with respect to a distribution of Debentures to Holders of Preferred
Securities in connection with a Tax Event, Debentures having a principal amount
equal to the aggregate Liquidation Value of the Preferred Securities of the
holder to whom such Debentures are distributed.
"Liquidation Value" of the Preferred Securities shall have the
meaning set forth in the Trust Agreement.
"Liquidation Amount" shall have the meaning set forth in the
Articles Supplementary.
"Majority Debentureholders" shall mean, at any time,
Debentureholders holding at least a majority in aggregate principal amount of
the Debentures then Outstanding.
"Majority Preferred Securities Holders" shall mean, at any
time, Holders of at least a majority of the aggregate Liquidation Value of the
Preferred Securities.
"Notice of Default" shall have the meaning ascribed thereto in
Section 5.01 hereof.
"Outstanding", when used with respect to Preferred Securities,
the Debentures or the Series C Preferred Stock (the "Securities"), means as of
the date of determination, all Securities theretofore authenticated and
delivered under the applicable operative agreement, except:
(a) Securities theretofore cancelled by the applicable trustee
or transfer agent, as the case may be, or delivered to the applicable trustee or
transfer agent for cancellation;
(b) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited with the
applicable trustee or transfer agent or any Paying Agent (other than the Company
or any Affiliate thereof) in trust or set aside and segregated in trust by the
Company or such Affiliate (if the Company or such Affiliate shall act as the
Paying Agent) for the Holders; provided that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to the
applicable operative agreement or provision therefor reasonably satisfactory to
the applicable trustee or transfer agent, as the case may be, has been made;
(c) Debentures, except to the extent provided in Sections 402
and 403, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article Four of the Indenture; and
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(d) Securities have been authenticated and delivered pursuant
to the applicable operative agreement, other than any such Securities in respect
of which there shall have been presented to the applicable trustee or transfer
agent proof reasonably satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands the Securities are valid obligations of the
Company; provided, however, that in determining whether the Holders of the
requisite principal amount or Liquidation Value or Liquidation Amount, as the
case may be, of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company, Xxxxxxxx, or any other obligor upon the Securities or any
Affiliate of the Company, Xxxxxxxx, or such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
applicable trustee or transfer agent, as the case may be, shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which the applicable trustee or transfer agent, as
the case may be, knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as outstanding if
the pledgee establishes to the reasonable satisfaction of the applicable trustee
or transfer agent, as the case may be, the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Company, Xxxxxxxx or
any other obligor upon the Securities or any Affiliate of the Company, Xxxxxxxx
or such other obligor.
"Person" shall mean any individual, corporation, company,
voluntary association, partnership, joint venture, trust, unincorporated
organization or government (or any agency, instrumentality or political
subdivision thereof).
"Pledged Stock" shall have the meaning ascribed thereto in
Section 3(b) hereof.
"Pledgor" shall mean the Company.
"Preferred Securities" shall have the meaning set forth in the
Trust Agreement.
"Property Trustee" means First Union National Bank of
Maryland, the property trustee of the Trust.
"Representative" of any Secured Party, shall mean in relation
to any Debenture holder, the Debenture Trustee.
"Secured Obligations" shall mean in the case of the Company,
any and all obligations of the Company to the Debenture Trustee and the
Debentureholders under or in connection with the Debentures, the Indenture and
the Collateral Documents.
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"Secured Party" shall mean any Debentureholder from time to
time.
"Series C Preferred Stock" means the 2,062,000 shares of
Xxxxxxxx'x Series C Preferred Stock, par value $.01 per share.
"Stock Collateral" shall have the meaning ascribed thereto in
Section 3(c) hereof.
"Subsidiary" of any Person means any Person a majority of the
equity ownership or the Voting Stock of which is at the time owned, directly or
indirectly, by such Person or by one or more other Subsidiaries of such Person,
or by such Person and one or more other Subsidiaries.
"Temporary Cash Investments" means (i) any evidence of
Indebtedness, maturing not more than one year after the date of acquisition,
issued by the United States of America, or an instrumentality or agency thereof
and guaranteed fully as to principal, premium, if any, and interest by the
United States of America, (ii) any certificate of deposit, maturing not more
than one year after the date of acquisition, issued by, or time deposit of, a
commercial banking institution (including the Debenture Trustee) that is a
member of the Federal Reserve System and that has combined capital and surplus
and undivided profits of not less than $500,000,000, whose debt has a rating, at
the time as of which any investment therein is made, of "P-1" (or higher)
according to Xxxxx'x Investors Service, Inc. ("Moody's") or any successor rating
agency or "A-1" (or higher) according to Standard & Poor's Corporation ("S&P")
or any successor rating agency, (iii) commercial paper, maturing not more than
one year after the date of acquisition, issued by a corporation (other than an
Affiliate or Subsidiary of Xxxxxxxx) organized and existing under the laws of
the United States of America with a rating, at the time as of which any
investment therein is made, of "P-1" (or higher) according to Moody's or "A-1"
(or higher) according to S&P and (iv) any money market deposit accounts issued
or offered by a domestic commercial bank (including the Debenture Trustee)
having capital and surplus in excess of $500,000,000.
"Trust" means Xxxxxxxx Capital, a Delaware business trust
formed pursuant to the Trust Agreement.
"Trust Agreement" means the Amended and Restated Trust
Agreement, dated as of March 12, 1997, among the Company, as Depositor, First
Union National Bank of Maryland, as property trustee, First Union Bank of
Delaware, as Delaware trustee and the administrative trustees named therein.
"UCC" shall mean the Uniform Commercial Code as in effect in
the State of New York from time to time.
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"Voting Stock" means stock of the class or classes pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of a corporation (irrespective of whether at the time stock of any
other class or classes shall have or might have voting power by reason of the
happening of any contingency).
Section 2. Representations and Warranties. The Company
represents and warrants to, and agrees with, the Secured Parties that:
(a) the Company is the sole beneficial owner of the
Collateral, and no Lien, directly or indirectly, exists or will exist upon any
of the Collateral at any time (and no right or option to acquire the same,
directly or indirectly, exists or will exist in favor of any other Person),
except for the pledge and security interest in favor of the Collateral Agent for
the benefit of the Secured Parties created or provided for herein, which pledge
and security interest constitutes a first priority perfected pledge of, and
security interest in and to, all of the Collateral;
(b) the Company has all requisite corporate power and
authority to execute, deliver and perform their obligations under this Agreement
and to grant the security interest granted hereby in the Collateral to the
Collateral Agent for the equal and ratable benefit of the Secured Parties, and
all of the transactions contemplated hereby have been duly authorized by all
necessary corporate action of the Company;
(c) the execution, delivery and performance hereof by the
Company, including the pledge of, and the grant of a security interest in, the
Collateral by the Company in the manner and for the purpose contemplated by this
Agreement, do not and will not result in any breach or violation of any of the
terms or provisions of any of the charters or bylaws of the Company and do not
and will not conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default or result in the creation or imposition
of any Lien upon any property or assets of the Company under (1) any contract,
indenture, mortgage, deed of trust, loan or credit agreement, bond, debenture,
note, lease or other agreement or instrument to which the Company or Xxxxxxxx is
a party or by which it may be bound or to which any of its properties or assets
is subject, other than (A) the Liens created pursuant to this Agreement, (B)
conflicts, defaults, breaches or violations which have been cured or waived or
(C) conflicts, defaults, breaches or violations that would not have a material
adverse effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company, and its Subsidiaries considered as
one enterprise, (2) any existing applicable law, statute, rule or regulation or
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(3) any judgment, order, writ or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its properties or operations;
(d) this Agreement constitutes the valid and legally binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except as enforcement, may be limited by bankruptcy, insolvency,
reorganization, fraudulent transfer, fraudulent conveyance or other similar laws
relating to or affecting creditors, rights generally or by general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law);
(e) no financing statement or security agreement covering any
of the Collateral is now on file in any public office, other than such financing
statements and security agreements in favor of the Collateral Agent for the
ratable benefit of the Secured Parties hereunder;
(f) no registration, recordation or filing with, or consent or
approval of, any governmental body, agency or official or any other Person is
required in connection with the authorization, execution, delivery or
performance of this Agreement by the Company or necessary for the enforcement of
the security interest in the Collateral granted hereby by the Company, other
than the filing of financing statements and other filings in favor of the
Collateral Agent for the ratable benefit of the Secured Parties hereunder which
filings will have been recorded prior to the execution of this Agreement if
required and appropriate for the Secured Parties to obtain a first priority
perfected pledge of, or security interest in and to, all of the Collateral;
(g) any officer, agent or representative acting for or on
behalf of the Company in connection with this Agreement or any aspect hereof, or
entering into or executing this Agreement on behalf of the Company, has been
duly authorized to do so, and is fully empowered to act for and represent the
Company, in connection with this Agreement and all matters related thereto or in
connection therewith;
(h) the Pledged Stock evidenced by the certificate identified
in Annex 1 hereto is, and all other Pledged Stock will be, duly authorized,
validly issued, fully paid and nonassessable, and none of such Pledged Stock is
or will be subject to any contractual restriction, or any restriction under the
charters or bylaws of the issuer of such Pledged Stock, upon the transfer of
such Pledged Stock (except for any such restrictions contained herein or in the
Indenture);
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(i) the Pledged Stock evidenced by the certificates identified
in Annex 1 hereto constitutes all of the issued and outstanding Series C
Preferred Stock beneficially owned by the Company on the date hereof, whether or
not registered in the name of the Company and said Annex 1 correctly lists all
the Pledged Stock as of the date hereof and identifies the respective class and
par value of the shares comprising such Pledged Stock and the respective number
of shares (and registered owner thereof) evidenced by each such certificate; and
(j) by virtue of the execution and delivery by the Company of
this Agreement and the delivery by the Company of the certificates, instruments
or other documents representing or evidencing the Pledged Stock to the
Collateral Agent, in each case in accordance with this Agreement, assuming
continuing possession by the Collateral Agent of such certificates, instruments
and other documents, the Collateral Agent will obtain and have a valid and
perfected Lien upon and security interest under the UCC in such Pledged Stock as
security for the repayment of the Secured Obligations, prior to any other Liens
thereon and security interests therein.
Section 3. The Collateral. For valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and (i) to induce (A)
the record and beneficial Debentureholders to purchase the Debentures, and (B)
the Debenture Trustee to undertake its obligations under the Indenture, and (ii)
as collateral security for the prompt payment in full when due (whether at
stated maturity, by acceleration or otherwise) of the Secured Obligations, the
Company hereby pledges and grants to the Collateral Agent, for the equal and
ratable benefit of the Secured Parties as hereinafter provided, a pledge of, and
security interest in, and agrees and acknowledges that the Collateral Agent, for
the equal and ratable benefit of the Secured Parties, has, and shall continue to
have, a pledge of, and security interest in, all of the Company's right, title
and interest in the following property, whether now owned by the Company or
hereafter acquired, whether now existing or hereafter coming into existence, and
wherever located (all being collectively referred to herein as the
"Collateral"):
(a) all the issued and outstanding Series C Preferred Stock of
Xxxxxxxx evidenced by the certificate identified in Annex I hereto, now owned by
the Company, together with, in each case, the certificates evidencing the same
(the "Existing Pledged Stock");
(b) without affecting the obligations of the Company under any
provision prohibiting such action hereunder or under any Financing Documents in
the event of any consolidation or merger in which Xxxxxxxx is not the surviving
corporation, all shares of each class of the Capital Stock of the successor
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corporation into which the Series C Preferred Stock is converted as a result of
such consolidation or merger (the "Successor Stock" and together with the
Existing Pledged Stock, the "Pledged Stock");
(c) all shares or securities representing a dividend on any of
the Pledged Stock or resulting from a stock split, revision, reclassification or
other like change of the Pledged Stock or otherwise received in exchange
therefor, and any subscription warrants, rights or options issued to the holders
of, or otherwise in respect of, the Pledged Stock (the Pledged Stock, together
with all other certificates, shares or securities, as may, from time to time,
being pledged hereunder pursuant to clauses (a) and (b) above and this clause
(c) being herein collectively called the "Stock Collateral"); and
(d) all uncertificated securities, moneys or property
representing a dividend on any of the Stock Collateral, or representing a
distribution or return of capital upon or in respect of the Stock Collateral, or
otherwise received in exchange therefor.
Section 4. Covenants; Remedies; Indemnification. In
furtherance of the pledge of the Collateral and the grant of the security
interest herein pursuant to Section 3 hereof, the Company hereby agrees with the
Collateral Agent as follows:
4.01 Delivery and Other Perfection. The Company shall (and in
the case of clause (c)(2) of this Section 4.01, does):
(a) cause the Collateral consisting of Stock Collateral or the
products, proceeds, and accessions thereof which are also Stock Collateral to be
evidenced by certificates to the fullest extent possible and delivered, together
with stock powers duly executed in blank, to and held in the possession of the
Collateral Agent (the Series C Preferred Stock will not be deposited with The
Depository Trust Company but will be issued in registered certificated form and
held in the possession of the Collateral Agent).
(b) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that may be
necessary or desirable (in the reasonable judgment of the Collateral Agent) to
create, preserve, perfect or validate any security interest granted pursuant
hereto or to enable the Collateral Agent to exercise and enforce its rights
hereunder with respect to such security interest, including, without limitation,
during the continuance of a Event of Default, causing any or all of the Stock
Collateral to be transferred of record into the name of the Collateral Agent or
its nominee (and the Collateral Agent agrees that if any Stock Collateral is
transferred into its name or the name of its
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nominee, the Collateral Agent will thereafter promptly give to the Company
copies of any notices and communications received by it with respect to the
Stock Collateral);
(c) notwithstanding clause (b) of this Section 4.01, (1)
authorize the Collateral Agent, in cooperation with the Company, to file, in
jurisdictions where this authorization will be given effect, a financing
statement signed only by the Collateral Agent covering the Collateral, if
appropriate, (2) hereby appoint the Collateral Agent as its attorney-in-fact to
sign and file any such financing statements (including any copies of this
Agreement) covering the Collateral, if appropriate, (3) at the request of the
Collateral Agent, join the Collateral Agent in executing such documents referred
to in clause (b) of this Section 4.01, and (4) pay the costs of filing or
recording any such documents, in all public offices at any time and from time to
time, whenever filing or recording of any such documents is reasonably deemed by
the Collateral Agent to be necessary or desirable; provided that nothing
contained in this clause (c) shall be construed to relieve the Company from
obligations described in clause (b) of this Section 4.01;
(d) give the Collateral Agent at least 20 days' prior notice
of any proposed change in the address set forth in Section 6.04 hereto;
(e) take all action reasonably necessary or appropriate by a
debtor to maintain and preserve all security interests granted hereunder in the
Collateral at all times as valid, subsisting and perfected as to all the
property affected and covered thereby and to maintain the priority and validity
of the security interest granted hereunder for such Collateral as against the
rights, claims and interests of all other persons;
(f) not, and shall not permit any of its Subsidiaries to, take
or omit to take any action which would have the result of adversely affecting or
impairing the security interests with respect to the Collateral in contravention
of this Pledge and Security Agreement, except as required by applicable law, and
the Company shall not (and shall cause its Subsidiaries not to) grant to, or
suffer to exist in favor of, any Person, any interest whatsoever in the
Collateral except as permitted by the Collateral Documents or the Pledge and
Security Agreement. The Company will not, and will not permit any of its
Subsidiaries to, enter into any agreement (other than this Pledge and Security
Agreement) or instrument that by its terms expressly requires that the proceeds
received from the sale of any Collateral by the Company be applied to repay,
redeem or otherwise retire any Indebtedness of any Person other than the
Debentures.
(g) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise xxxx such books and
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records in such manner as the Collateral Agent may reasonably require in order
to reflect the security interest granted by this Agreement;
(h) take all actions and do all things reasonably necessary or
appropriate to defend its right, title and interest in and to the Collateral
against all actions and proceedings arising from any adverse claims and demands
of all Persons at any time claiming the same or any interest therein, and take
all actions reasonably required or appropriate so that, at all times, the
Collateral will be and remain free of all such adverse claims and demands;
(i) permit representatives of the Collateral Agent, upon
reasonable notice, at any time during normal business hours to inspect and make
abstracts from its books and records pertaining to the Collateral, and permit
such representatives to be present at the Company's place of business to receive
copies of all communications and remittances relating to the Collateral, and
upon the request of the Collateral Agent during the continuance of a Default
forward copies of any notices or communications received by the Company with
respect to the Collateral, all in such manner as the Collateral Agent may
reasonably require; and
4.02 Other Financing Statements and Liens. The Company shall
not file or suffer to be on file, or authorize or permit to be filed or to be on
file, in any jurisdiction, any financing statement or like instrument with
respect to the Collateral in which the Collateral Agent is not named as the sole
secured party for the benefit of the Secured Parties without the prior written
consent of the Collateral Agent.
4.03 Preservation of Rights. The Collateral Agent shall not be
required to take steps necessary to preserve any rights against prior parties to
any of the Collateral.
4.04 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 5.01 hereof are
insufficient to cover the reasonable costs and reasonable expenses of such sale,
collection or other realization and the payment in full of the Secured
Obligations, the Company shall remain liable for any deficiency.
4.05 Other Rights and obligations of the Collateral Agent, and
the Debenture Trustee.
(a) In the event that any action taken by the Company or the
Collateral Agent with respect to the Collateral shall be subject to the
certification, documentary or other requirements of Section 314(d) of the Trust
Indenture Act relating to the release of Collateral from the security interest
hereunder, then
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the Collateral Agent shall cooperate with the Company to the extent necessary to
enable the Company to comply with such requirements.
(b) The Collateral Agent shall never be under any obligation
to collect, attempt to collect, protect or enforce the Collateral or any
security thereof, which the Company agrees and undertake to do at its expense,
but the Collateral Agent may do so in its discretion at any time after the
occurrence of an Event of Default and the delivery of a Notice of Default in
accordance with Section 5.01 (and so long as such Event of Default shall be
continuing), and at such time, the Collateral Agent shall have the right to take
any steps by judicial process or otherwise that it may deem proper to effect the
collection of all or any portion of the Collateral or to protect or to enforce
the Collateral or any security therefor. All reasonable expenses (including,
without limitation, reasonable attorneys' fees and expenses) incurred or paid by
the Collateral Agent in connection with or incident, to any such collection or
attempt to collect the Collateral or actions to protect or enforce the
Collateral or any security therefor shall be borne by the Company or reimbursed
by the Company to the Collateral Agent upon demand, subject to reasonable
documentation and demand. The proceeds received by the Collateral Agent as a
result of any such actions in collecting or enforcing or protecting the
Collateral shall be held by the Collateral Agent without liability for interest
thereon and shall (after the payment of costs and expenses) be applied by the
Collateral Agent toward payment of any of the Secured Obligations in accordance
with Section 5.04 below, provided that the Collateral Agent shall account for
and pay over to the Company any such proceeds remaining after payment in full of
the Secured Obligations then outstanding. All actions taken by the Collateral
Agent pursuant to this Section 4.05(b) shall be in a manner consistent with
Section 9-207 of the UCC (or any successor provision).
(c) In the event the Collateral Agent shall pay any taxes,
assessments, interests, costs, penalties or expenses incident to or in
connection with the collection of the Collateral or protection or enforcement of
the Collateral or any security therefor upon demand of the Collateral Agent, the
Company shall pay to the Collateral Agent the full amount thereof and so long as
the Collateral Agent shall be entitled to any such payment, this Agreement shall
operate as security therefor as fully and to the same extent as it operates as
security for payment of the Secured Obligations, and for the enforcement of such
repayment the Collateral Agent shall have every right and remedy provided for
the enforcement of the payment of the Secured Obligations.
(d) The Debenture Trustee shall have the power (but not the
obligation) to institute and to maintain such suits and
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proceedings as it may deem expedient (x) to prevent any impairment of the
Collateral by any act which may be unlawful, in violation of this Agreement, the
Indenture, any other Financing Document or the Trust Indenture Act, and (y) to
preserve and protect its interest and the interests of the Debentureholders in
the Collateral.
(e) The Company agrees to give notice to the Collateral Agent
in the event that the Company shall fail timely to perform any covenant
hereunder required to be performed by it hereunder. The Collateral Agent is
hereby authorized to take all action reasonably necessary to cause such covenant
to be performed. The Collateral Agent will give notice to the Debenture Trustee
of its receipt of any such notice from the Company or the Xxxxxxxx.
(f) The Collateral Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment substantially equal to that
which the Collateral Agent accords its own property. It being understood that
the Collateral Agent shall not have any responsibility for ascertaining or
taking action with respect to calls, conversions, exchanges, maturities, tenders
or other matters relating to the Collateral, whether or not the Collateral Agent
has or is deemed to have knowledge of such matters.
4.06 Voting Rights of Company. Notwithstanding any other
provision in this Agreement or any other agreements, so long as this Agreement
is in full force and effect and regardless whether or not an Event of Default
shall have occurred and be continuing, the Company, as holder of the Series C
Preferred Stock (a) shall not exercise any of its voting approval, consent,
waiver or any other voting rights attributable to the Series C Preferred Stock,
without, in each case, obtaining the prior approval of the Majority
Debentureholders; provided, that if such Debentures are held by the Trust, the
Company shall instead obtain prior approval of the Trust which is required to
obtain the prior approval of the Majority Preferred Securities Holders;
provided, further, however, that where a consent, waiver or exercise of rights
under the Series C Preferred Stock would require the consent of each holder of
the Series C Preferred Securities affected thereby, no such consent shall be
given by the Company without the prior written consent of each Holder of
Outstanding Debentures or Preferred Securities, as the case may be, and (b) in
the event that, under the terms of the Series C Preferred Stock, the holders of
the Series C Preferred Stock have the right to elect two directors to the board
of directors of Xxxxxxxx, the Company shall elect the nominees of the Majority
Debentureholders; provided, that if such Debentures are held by the Trust, the
Company shall elect the nominees of the Trust which is required to elect the
nominees of the Majority Preferred
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Securities Holders to fill those two board of director positions. The Company
shall not revoke any action previously authorized or approved by a vote of the
Preferred Securities, except pursuant to a subsequent vote of the Holders of the
Debentures or the Preferred Securities, as the case may be.
4.07 Change of Name. The Company shall not change its
corporate name, or the name under which it does business, from the name shown on
the signature pages hereto without at least 30 days' prior written notice to the
Collateral Agent and without filing such new or additional financing statements
or security documents, making such other filings and recordings and taking such
other actions as are necessary to maintain the security interest in the
Collateral granted hereby, and providing such additional opinions and documents
as the Collateral Agent shall reasonably deem necessary.
4.08 Private Sale. The Secured Parties shall incur no
liability as a result of the sale of the Collateral, or any part thereof, at any
private sale pursuant to Section 5.01 or 5.02 hereof conducted in a commercially
reasonable manner. The Company hereby waives any claims against the Secured
Parties arising by reason of the fact that the price at which the Collateral may
have been sold at such a private sale was less than the price which might have
been obtained at a public sale or was less than the aggregate amount of the
Secured Obligations, even if the Collateral Agent accepts the first offer
received and does not offer the Collateral to more than one offeree.
4.09 Attorney-in-Fact. Without limiting any rights or powers
granted by this Agreement to the Collateral Agent while no Event of Default has
occurred and is continuing, the Collateral Agent is hereby appointed the
attorney-in-fact of the Company for the purpose, upon the occurrence and during
the continuance of any Event of Default, of carrying out the provisions of this
Section 4 and such acts as they may deem necessary or advisable to accomplish
the purposes hereof, which appointment as attorney-in-fact is irrevocable and
coupled with an interest. Without limiting the generality of the foregoing, so
long as the Collateral Agent shall be entitled under Sections 5 and 6 to make
collections in respect of the Collateral, the Collateral Agent shall have the
right and power to receive, endorse and collect all instruments made payable to
the order of the Company representing any dividend, payment, or other
distribution in respect of the Collateral or any part thereof and to give full
discharge for the same.
4.10 Investment of Cash. (a) Funds collected from
Distributions or otherwise by the Collateral Agent shall be invested by the
Collateral Agent from time to time in Temporary Cash Investments ("Investments")
if such Collateral Agent is not otherwise required to make payments with respect
to the
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Debentures. All Investments shall be made in the name of the Collateral Agent or
a nominee of the Collateral Agent and in a manner, determined by the Collateral
Agent in its reasonable discretion, that preserves the Collateral Agent's
perfected, first priority security interest in such Investments.
(b) The Collateral Agent shall have no obligation to invest
collected funds during the first night after their collection but shall do so as
soon as practicable but in no event later than 3 business days after collection.
(c) The Collateral Agent shall have no responsibility to the
Company for any loss or liability arising in respect of any investment in
Temporary Cash Investments made pursuant to this Agreement (including, without
limitation, as a result of the liquidation of any thereof before maturity),
except to the extent that such loss or liability arises from the Collateral
Agent's gross negligence or willful misconduct.
(d) The Company will pay or reimburse the Collateral Agent for
any and all out-of-pocket costs, expenses and liabilities of the Collateral
Agent incurred in connection with this Agreement, the maintenance and operation
of the Collateral and the investment of any cash held therein, including,
without limitation, any investment, brokerage or placement commissions and fees
incurred by the Collateral Agent in connection with the investment or
reinvestment of such cash.
4.11 Dispositions and Releases of Collateral. Acting in
accordance with Sections 5 and 6 hereof, the Collateral Agent will determine the
circumstances and manner in which the Collateral shall be disposed of,
including, without limitation, determining whether to release all or any portion
of the Collateral from the security interest granted hereby; provided, however,
in the event that all or a portion of the Series C Preferred Stock are to be
redeemed, the Collateral Agent shall, simultaneously with the receipt of cash as
payment for the redemption of shares of Series C Preferred Stock and
simultaneously with the redemption of a Like Amount of Debentures, release and
deliver to the Company such amount of the Pledged Stock as may be redeemed for
such cash payment; provided, that any release of such Pledged Stock shall comply
with the Trust Indenture Act to the extent required; provided, further, that in
no event shall the Company be required to pledge Pledged Stock having a
Liquidation Amount in excess of the outstanding principal amount of the
Debentures.
4.12 Expenses. The Company agrees to pay to the Collateral
Agent all out-of-pocket expenses (including reasonable expenses for legal
services of any kind) of, or incident to, the enforcement of any of the
provisions of this Agreement and the Financing Documents, or performance by the
Collateral Agent of
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any obligations of the Company or the Xxxxxxxx in respect of the Collateral
which the Company have failed or refused to perform, or any actual or attempted
sale, or any exchange, enforcement, collection, compromise or settlement in
respect of any of the Collateral, and for the care of the Collateral and
defending or asserting rights and claims of the Collateral Agent in respect
thereof, by litigation or otherwise, including expenses of insurance, and all
such expenses shall be Secured Obligations to the Collateral Agent secured under
Section 3 hereof.
4.13 Further Assurances. The Company agrees that it will, from
time to time upon the written request of the Collateral Agent, execute and
deliver such further documents and do such other acts and things as the
Collateral Agent may reasonably request in order fully to effect the purposes of
this Agreement.
4.14 Indemnification of Collateral Agent. The Company agrees
to indemnify the Collateral Agent from and against any and all liabilities,
obligations, losses, claims, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Collateral Agent in its capacity
as such in any way relating to or arising out of this Agreement or any Financing
Document, or any action taken or omitted to be taken by the Collateral Agent
hereunder or thereunder; provided, that the Company shall not be liable for any
portion of such liabilities, obligations, losses, claims, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements that have resulted
from the gross negligence, willful misconduct, or fraud of the Collateral Agent.
Such indemnification shall survive the termination of this Agreement and the
resignation or removal of the Collateral Agent.
4.15 Successor Agents. The Collateral Agent may resign at any
time by giving 30 days' prior written notice thereof to the Secured Parties (or,
as to any Secured Parties for which a Representative is acting, to such
Representative), with a copy of such notice to the Company. The Collateral Agent
may be removed at any time for cause by the Majority Debentureholders by written
notice thereof to the Collateral Agent and the other Secured Parties at least 10
business days prior to the effective date of such removal. Upon any such
resignation or removal, the Majority Debentureholders shall have the right to
appoint a successor to the Collateral Agent with the prior written consent of
the Company (which consent shall not be unreasonably withheld). If no successor
Collateral Agent shall have been so appointed by the Majority Debentureholders
or shall have accepted such appointment within 30 days after the notice of
resignation or notice of removal, as the case may be, then the resigning or
removed Collateral Agent may, on behalf of the Secured Parties with the prior
written consent of the Company (which consent
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shall not be unreasonably withheld), appoint a successor Collateral Agent. If
the resigning or removed Collateral Agent does not appoint a successor
Collateral Agent, the Company may appoint a successor Collateral Agent. Any
successor Collateral Agent shall be a commercial bank or trust company organized
or licensed under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $250,000,000. The
Collateral Agent may be, but is not required to be, the Debenture Trustee under
the Indenture. Upon the acceptance of its appointment as Collateral Agent, such
successor Collateral Agent shall thereupon succeed to and become vested with all
the rights and duties of the resigning or removed Collateral Agent, and the
resigning or removed Collateral Agent shall be discharged from its duties and
obligations hereunder (and under the other Financing Documents, if applicable).
After any resigning or removed Collateral Agent's resignation or removal
hereunder as Collateral Agent, the provisions of this Article shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was a
Collateral Agent.
4.16 Appointment of Co-Agents. At any time or times, in order
to comply with any legal requirement in any jurisdiction, the Collateral Agent
may appoint another bank or trust company or one or more other persons, either
to act as a co-agents, jointly with the Collateral Agent, or to act as a
separate agent or agents on behalf of the Secured Parties with such power and
authority to act under this Agreement as may be necessary for the effectual
operation of the provisions hereof and as may be specified in the instrument of
appointment.
4.17 Liability of Agents: Consultation with Experts. (a)
Neither the Collateral Agent nor any of its directors, officers, employees or
agents shall be liable for any action taken or omitted to be taken by any of
them hereunder or under any other Financing Document, except for its own gross
negligence or willful misconduct. Nothing in this Agreement or the other
Financing Documents shall be deemed to constitute the Collateral Agent a trustee
within the meaning of the Trust Indenture Act.
(b) The Collateral Agent may consult with legal counsel,
independent public accounts and any other experts selected by it. Neither the
Collateral Agent nor any of its directors, officers, employees or agents shall
be liable for any action taken or omitted to be taken by any of it in good faith
reliance upon the advice of such counsel, independent public accountants or
other experts selected by the Collateral Agent.
(c) The Collateral Agent shall be entitled to rely on any
notice, consent, certificate, statement or other document (including any
telegram, cable, telex, facsimile or telephone transmission) believed by it to
be genuine and correct and to have been signed and/or sent by the proper
Persons, and shall not
- 17 -
be liable for any of the consequences of such reliance. Without limiting any
obligation of any Secured Party or Representative to confirm in writing such
telephonic notice permitted by this Agreement, the Collateral Agent may act
without liability upon the basis of any telephonic notice believed in good faith
by it to be from an authorized officer of any Secured Party, any Representative
or any agent thereof prior to receipt of such written confirmation.
(d) As to any matters not expressly provided for herein or in
the other Financing Documents (including without limitation the timing and the
methods of realization upon the Collateral and amendments of the provisions
thereof), the Collateral Agent shall act or refrain from acting until it has
received instructions from the Debenture Trustee or the Majority
Debentureholders in its own discretion. The Collateral Agent shall not be
obligated to follow any such written directions to the extent that it shall
reasonably determine, based on the written opinion of its counsel, that such
directions are in conflict with any provision of any applicable law or
regulation or any Financing Document.
Section 5. Events of Default; Application of Proceeds;
Termination, Etc.
5.01 Events of Default. If an Event of Default shall have
occurred and be continuing, and the Majority Debentureholders (unless the
Debentures are held by the Trust, in which case the Majority Preferred
Securities Holders through the Property Trustee acting on behalf thereof may
also constitute the Majority Debentureholders) or the Debenture Trustee acting
on behalf thereof shall have delivered to the Collateral Agent and the Company a
written notice or notices of such Event of Default (a "Notice of Default"):
(i) The Collateral Agent may, by written notice to
the Company, direct the Company to and thereupon the Company
shall, receive all moneys, checks, notes, drafts and other
payments relating to or constituting proceeds of Collateral in
trust for the Collateral Agent for the benefit of the Secured
Parties, not commingle the same with any other property or
funds of the Company and Xxxxxxxx and, unless the Collateral
Agent shall have otherwise instructed the Company, promptly
deliver or cause to be delivered all such payments in the
exact form received, together with any necessary endorsements,
to the Collateral Agent or to such Person or Persons as the
Collateral Agent may designate.
(ii) The Collateral Agent may take possession
or control of any proceeds of the Collateral.
- 18 -
(iii) [The Collateral Agent may transfer any of
the Collateral into the name of the Collateral Agent or
its nominee.
(iv) The Collateral Agent shall have and may exercise
with respect to the Collateral and the Secured obligations any
or all of the rights and remedies of a secured party under the
UCC or under any other applicable law, and as otherwise
granted, to the extent lawful, herein or under any other
agreement now or hereafter in effect executed by the Company
in favor of the Collateral Agent, including, without
limitation, the right and power to sell, at public or private
sale or sales, or otherwise dispose of, or otherwise utilize
the Collateral and any part or parts thereof in any manner
authorized or permitted under the UCC after default by a
debtor, and to apply the proceeds thereof toward payment of
any costs and expenses and reasonable attorneys' fees and
expenses thereby incurred by the Collateral Agent and toward
payment of the Secured Obligations, in accordance herewith.
Specifically, and without limiting the foregoing, the
Collateral Agent shall have the right to take possession of
all or any part of the Collateral or any security therefor and
of all books, records, papers and documents of the Company and
Xxxxxxxx or in the Company's and Xxxxxxxx'x possession or
control relating to the Collateral which are not already in
the Collateral Agent's possession, and for such purpose may
enter upon any premises upon which any of the Collateral or
any security therefor or any of said books, records, papers
and documents are situated and remove the same therefrom
without any liability (other than as a result of gross
negligence, fraud or willful misconduct) for damages
occasioned by the reasonable exercise of such authority;
provided, that the Collateral Agent shall not remove and take
possession of any books and records which are required by
applicable law to be retained or maintained by the Company, in
which case the Company shall make copies of all such books and
records and deliver said copies to the Collateral Agent;
provided, further that the Collateral Agent shall make
available to the Company copies of any books, records, papers
and documents which it shall take possession of pursuant
hereto. To the extent permitted by the UCC, (x) the Company
expressly waives any notice of the sale or other disposition
of the Collateral and all other rights or remedies of the
Company or formalities prescribed by law relative to the sale
or disposition of the Collateral or exercise of any other
right or remedy of the Collateral Agent existing after default
hereunder; and (y) to the extent any such notice is required
and
- 19 -
cannot be waived, the Company agrees that if such notice is
given in the manner provided in Section 7.04 hereof (with a
copy to the Representative) at least five (5) business days
before the time of the sale or disposition, such notice shall
be deemed reasonable and shall fully satisfy any requirement
for the giving of said notice. The Collateral Agent shall not
be obligated to make any sale of Collateral regardless of any
notice of sale having been given. The Collateral Agent may
adjourn any public or private sale.
(v) Upon written notice by the Collateral Agent to
the Company, the Collateral Agent or its nominee or nominees
shall have the sole and exclusive right to exercise all voting
and consensual powers pertaining to the Collateral or any part
thereof and may exercise such powers in such manner as the
Collateral Agent may elect.
5.02 Special Provisions Relating to Stock Collateral. (a) So
long as no Event of Default shall have occurred and be continuing, the Company
shall have the right to the rights and powers of ownership (other than voting
rights as provided in Section 4.06 or as otherwise provided in this Agreement)
pertaining to its Stock Collateral for all purposes not inconsistent with the
terms of this Agreement, the Indenture or any other Financing Document; and the
Collateral Agent shall execute and deliver to such Pledgor or cause to be
executed and delivered to such Pledgor all such proxies, powers of attorney,
dividend and other orders and all such instruments, without recourse, as the
Pledgor may reasonably request for the purpose of enabling such Pledgor to
exercise the rights and powers which it is entitled to exercise pursuant to this
Section 5.02(a); provided, however, that any non-cash distributions (including
stock dividends) shall be delivered immediately to Collateral Agent as
additional Collateral. The foregoing shall not obligate any Pledgor to violate
any fiduciary duty owed to its stockholders or take any action in violation of
any state or federal law.
(b) If any Event of Default shall have occurred, then so long
as such Event of Default shall continue, and whether or not the Collateral Agent
exercises any available right to declare any Secured Obligation due and payable
or seeks or pursues any other relief or remedy available to it under applicable
law or under this Agreement, the Indenture or any other agreement relating to
such Secured Obligation, all dividends and other distributions on the Stock
Collateral shall be paid directly to the Collateral Agent and retained by it as
part of the Collateral, subject to the terms of this Agreement, and, if the
Collateral Agent shall so request in writing, the Company agrees to execute and
deliver to the Collateral Agent appropriate
- 20 -
instruments to that end; provided that if such Event of Default is cured, any
such cash dividend or distribution theretofore paid to the Collateral Agent
shall (except to the extent theretofore applied to the Secured Obligations) be
returned by the Collateral Agent to the Company.
(c) The Company hereby acknowledges that the sale by the
Collateral Agent of any Stock Collateral pursuant to the terms hereof in
compliance with the 1933 Act, as well as applicable "Blue Sky" or other state
securities laws, may require strict limitations as to the manner in which the
Collateral Agent or any subsequent transferee of the Stock Collateral may
dispose of the same. The Company understands that in order to protect the
Collateral Agent's interest it may be necessary to sell the Stock Collateral at
a price less than the maximum price attainable if a sale were delayed or were
made in another manner, such as a public offering registered under the 1933 Act.
The Company consents to sale in such a manner and agrees that the Collateral
Agent shall have no obligation, provided that the Collateral Agent conducts such
sale in accordance with applicable law, to obtain the maximum possible price for
the Stock Collateral.
(d) The Company agrees that, if an Event of Default shall have
occurred and be continuing and a Notice of Default shall have been delivered, if
for any reason the Collateral Agent desires to sell any of the Stock Collateral
at a public or private sale and in connection with such sale, in the reasonable
opinion of the Collateral Agent, no exemption from the registration provisions
of the 1933 Act is available, the Company will upon the written request of the
Collateral Agent:
(i) use its best efforts to cause such Stock
Collateral to be registered under the provisions of the 1933
Act, and to cause one or more registration statements relating
thereto to become effective and to remain effective for such
period as prospectuses are required by law or regulation to be
furnished with respect to the offering and sale of such Stock
Collateral, and to make all amendments and supplements such
Stock Collateral and to the related prospectus which, in the
reasonable opinion of the Collateral Agent, are necessary or
advisable, all in conformity with the requirements of the 1933
Act and the rules and regulations of the Securities and
Exchange Commission applicable thereto;
(ii) indemnify, defend and hold harmless the
Collateral Agent and any underwriter from and against all
liabilities, obligations, losses, claims, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever
- 21 -
(including the costs of investigation) which may be imposed
on, incurred by or asserted against the Collateral Agent or
any such underwriter insofar as such liabilities, obligations,
losses, claims, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements arise out of or are based
upon (A) any alleged untrue statement of a material fact
contained in any prospectus or registration statement (or any
amendment or supplement thereto) or in any notification or
offering circular or (B) any alleged omission to state a
material fact required to be stated therein or necessary to
make the statements in any thereof not misleading, except
insofar as the same may have been caused by any untrue
statement or omission based upon information furnished in
writing to either the Company by the Collateral Agent or, in
the case of any underwriter, by any underwriter, expressly for
use therein;
(iii) endeavor to qualify such Stock Collateral under
any applicable state securities or "Blue Sky" laws and to
obtain all necessary governmental approvals for the sale of
such Stock Collateral, as reasonably requested by the
Collateral Agent;
(iv) endeavor to cause each such issuer of such Stock
Collateral to enter into one or more underwriting agreements
in form and substance customary for similar transactions,
obtain customary legal opinions and accountants comfort
letters, and make available to its security holders, as soon
as practicable, an earnings statement (which need not be
audited) which will satisfy the provisions of Section 11(a) of
the 1933 Act and Rule 158 thereunder;
(v) bear all reasonable costs and reasonable
expenses of carrying out its respective obligations
under this Section 5.02(d); and
(vi) use reasonable efforts to do or cause to be done
all such other acts and things as may be reasonably necessary
to make such sale of Stock Collateral or any part thereof
valid and binding and in compliance with all applicable law.
The Company acknowledges that there is no adequate remedy at law for failure by
any of them to comply with the provisions of this Section 5.02 and that such
failure would not be adequately compensable in damages, and therefore each
agrees that its agreements contained in this Section 5.02 may be specifically
enforced.
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5.03 Payments. (a) If at any time the Collateral Agent shall
realize any cash or other property as a result of the exercise of any of its
rights and remedies under Section 5.01 or Section 5.02 (an "Enforcement Event"),
the Collateral Agent shall hold all such amounts as Collateral pending
distribution in
accordance with Section 5.04.
(b) All amounts held by the Collateral Agent in accordance
with Section 5.03(a) shall be subject to sharing in accordance herewith.
(c) Upon the occurrence of an Enforcement Event, the
Collateral Agent shall within a reasonable time thereafter distribute any
amounts held, realized or received by the Collateral Agent for the benefit of
the Secured Parties in accordance with Section 5.04.
5.04 Distributions. (a) All amounts to be distributed pursuant
to Section 5.03 shall be applied, in the following order of priority:
(i) to pay any fees and expenses due and owing to the
Collateral Agent according to the respective amounts due and
owing to such Person;
(ii) to indemnify the Collateral Agent in accordance
with Section 4.14;
(iii) to indemnify the Debenture Trustee in
accordance with the indemnification provisions set forth in
the Indenture;
(iv) to pay all interest due to the Debentureholders
that are not Affiliated Debentureholders under the Debentures
(provided that the Trust shall not be deemed an Affiliated
Debentureholder for this purpose);
(v) to pay any other fees, expenses, indemnities and
premiums outstanding under the Secured obligations, ratably
among the non-Affiliate Debentureholders;
(vi) to repay principal amounts outstanding under the
Secured Obligations ratably among the Debentureholders that
are not Affiliated Debentureholders (provided that the Trust
shall not be deemed an Affiliated Debentureholder for this
purpose);
(vii) to pay all interest, fees, expenses,
indemnities and premiums due to the Affiliated
Debentureholders under the Debentures;
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(viii) to repay Principal amounts outstanding under
the Secured Obligations, ratably among the Affiliated
Debentureholders; and
(ix) to pay all remaining amounts to the Company or
to their successors and assigns, or as directed by a court of
competent jurisdiction.
(b) The Collateral Agent's obligations under this Section 5.04
shall be satisfied upon the payment of such amounts to the Debenture Trustee for
the benefit of the Debentureholders, which Debenture Trustee is authorized to
receive such funds and make further distributions to the Debentureholders.
5.05 Assignees. (a) No provision of this Agreement shall
restrict in any manner the assignment, participation or other transfer in
accordance with the terms of the applicable Financing Documents by any Secured
Party of all or any part of its right, title or interest under any such
Financing Documents or the Indebtedness owing to it thereunder (including its
right, title and interest with respect to this Agreement and the other
Collateral Documents).
5.06 Termination, Etc. When all Secured Obligations shall have
been paid in full or (ii) the Company shall have deposited or caused to be
deposited in trust with the Debenture Trustee and/or such other Representative
an amount or amounts in United States dollars sufficient to pay and discharge
all of the Secured Obligations, in each case, in a manner sufficient to
discharge all of such Secured Obligations in accordance with the Indenture, this
Agreement shall terminate, and the Collateral Agent shall forthwith cause to be
assigned, transferred and delivered, against receipt but without any recourse,
warranty and representation whatsoever, any remaining Collateral and money
received in respect thereof, to or on the order of the Company. The Collateral
Agent shall also execute and deliver to the Company upon such termination such
UCC termination statements and such other documentation and take such other
actions as shall be reasonably requested by the Company to effect the
termination and release of the Liens on the Collateral.
Section 6. Miscellaneous.
6.01 Obligations Hereunder Not Affected. All rights and
interests of the Collateral Agent, the Secured Parties and the Debenture Trustee
hereunder, and all agreements and obligations of each such Person under this
Agreement, shall, to the extent permitted by law, remain in full force and
effect irrespective of:
- 24 -
(i) any lack of validity or enforceability of
any Financing Document, any Collateral Document or any
other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of
payment of, the security for, or in any other term of, all or
any of the Secured Obligations, or any other extension,
renewal, amendment, waiver, refinancing, replacement or
restructuring of or any consent to departure from any
Financing Document or any Collateral Document;
(iii) any exchange, release or non-perfection of any of
the Collateral or any release or amendment or waiver of or
consent to departure from any guaranty, for all or any of
the Secured Obligations; or
(iv) any other circumstances that might otherwise
constitute a defense available to or a discharge of, the
Company a creditor or a secured creditor.
This Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Secured Obligations is rescinded or
must otherwise be returned by the Collateral Agent, or any other Person upon the
insolvency, bankruptcy or reorganization of the Company, the Xxxxxxxx or
otherwise, all as though such payment had not been made.
6.02 No Waiver. No failure on the part of the Collateral Agent
or any of its agents to exercise, and no course of dealing with respect to, and
no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Collateral Agent
or any of its agents of any right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
6.03 GOVERNING LAW, THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK,
6.04 Notices. All notices, requests, consents, demands and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand, sent by a recognized nationwide courier
service, sent by certified or registered mail, postage prepaid and return
receipt requested, or sent by facsimile with a confirmation copy simultaneously
delivered or sent by one of the foregoing means, and shall be addressed (i) if
to Xxxxxxxx or the Company, at the
- 25 -
office of the Xxxxxxxx at 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxx X. Xxxxx, President, with a copy to Xxxxxx & Xxxxxxxx, P.A.,
000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X.
Xxxxxx, Esq. and a copy to Xxxxxx, Xxxxxx & Xxxxxxxxx, 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxxx, Esq.; (ii) if to
the Collateral Agent, at the office of the Debenture Trustee at 000 Xxxx Xxxx
Xxxxxx, 0xx xxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxxx Xxxxxxx. The
Collateral Agent shall deliver a copy of each notice document received by it
pursuant to this section to the Debenture Trustee at its address provided to the
Collateral Agent. All notices shall be deemed to have been given at the time of
delivery thereof to any officer or employee of the Person entitled to receive
such notice at the address of such Person for purposes of this Section 6.04 or,
if mailed, at the completion of the fifth full day following the time of such
mailing thereof to such address, as the case may be.
6.05 Amendments and Waivers. (a) Subject to paragraph (b)
below, any provision of this Agreement may be amended or waived if, and only if,
(i) such amendment or waiver is in writing and signed by the Company and the
Collateral Agent, (ii) the Collateral Agent receives an opinion of counsel to
the Company to the effect that the amendment or waiver complies with the
provisions of this Agreement and (iii) pursuant to Section 4.06, is consented to
in writing by the Majority Debentureholders, unless the Debentures are held by
the Trust, in which case, such amendment or waiver is instead consented to by
the Trust (which is required to obtain written consent from the Majority
Preferred Securities Holders) (or such higher requisite percentage if the
subject waiver or amendment would require such higher requisite percentage if
such waiver or amendment was to be made under the Indenture).
(b) Notwithstanding subsection (a) above, any provision of
this Agreement may be amended or waived if such amendment or waiver is in
writing, is signed by the Company and the Collateral Agent and is for any of the
following purposes:
(i) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein;
(ii) to add to the covenants of the Company for the
benefit of the Secured Parties, or to surrender any right or
power herein conferred upon the Company, as applicable;
(iii) pledge additional assets or property or rights
therein as Collateral for the benefit of the Secured Parties;
- 26 -
(iv) to cure any ambiguity herein, or to correct or
supplement any provision herein which may be defective or
inconsistent with any other provision herein or in any other
Financing Document;
(v) to comply with the requirements of the Securities
and Exchange Commission in order to effect or maintain the
qualification under the Trust Indenture Act of the Indenture;
(vi) to evidence and provide the acceptance of the
appointment of a successor to a Collateral Agent hereunder;
(vii) to confirm, as further assurance, any pledge or
security interest created or to be created hereunder; and
(viii) to include any other provisions with respect
to matters or questions arising hereunder, or any other
amendment or waiver hereto or hereof, provided, that, in each
case, such provisions, amendment or waiver shall not adversely
affect the interests of the Secured Parties.
6.06 Trust Indenture Act. Subject to the limitations contained
in the Indenture if any provision of this Agreement limits, qualifies or
conflicts with the duties imposed by any provisions of the Trust Indenture Act,
such provisions of the Trust Indenture Act shall control if the Trust Indenture
Act is applicable to this Agreement.
6.07 Standard of Conduct. In exercising any voting rights of
the Series C Preferred Stock in accordance with the terms of this Agreement, the
Company shall exercise such rights according to a fiduciary standard of care and
trust for the benefits of the parties that the counterparties of the obligations
of the Company contained in Section 4.06.
6.08 Counterparts. This Agreement may be executed in any
number of counterparts, all of which together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
6.09 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Secured Parties in
order to carry out the intentions of the parties hereto as nearly as may be
possible and (ii) the invalidity or unenforceability of any
- 27 -
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
6.10 Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation of any provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
THE COMPANY
------------
KDSM, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: President
THE COLLATERAL AGENT
FIRST UNION NATIONAL BANK OF
MARYLAND
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title:
Acknowledgment:
Xxxxxxxx hereby acknowledges that the Company is granting a first priority
security interest in the Series C Preferred Stock to the Collateral Agent for
the benefit of the Secured Parties.
XXXXXXXX BROADCAST GROUP, INC.
By: /s/ Xxxxx X. Xxx
-----------------------------------
Name: Xxxxx X. Xxx
Title: Chief Financial Officer
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ANNEX 1
PLEDGED STOCK
Certificate No. 1 representing 2,062,000 shares of Series C Preferred Stock of
Xxxxxxxx Broadcast Group, Inc.
