AMENDED AND RESTATED
SECURITY AGREEMENT
AMENDED AND RESTATED SECURITY AGREEMENT, dated as of
_____ __, 20__, among __________________, a _____________________ corporation
( A ____ @ ), _______________________________, a ____________________ limited
liability company ( A __________________ @ ; and are
sometimes collectively referred to herein as the A Borrowers @ and
individually as a A Borrower @ ), ________________, a ________________
corporation, _________________, a ________________ corporation,
__________________, a ________________ corporation, , a
________________ corporation, , a ________________ corporation,
___________________, a ________________ corporation and __________________., a
________________ limited liability company (collectively, the A Subsidiaries @ );
(Borrowers and Subsidiaries are sometimes collectively referred to herein as
A Grantors @ and individually as a A Grantor @ ), and , a
________________ corporation, individually and in its capacity as Agent for
lenders from time to time parties to the Credit Agreement (defned below)
( A Lenders @ ).
W I T N E S S T H :
WHEREAS, , certain of the Subsidiaries, Lenders and
Agent are parties to that certain Credit Agreement, dated as of _________ __,
20___ (as amended, the A Existing Credit Agreement @ );
WHEREAS, _______ and certain of the Subsidiaries executed that
certain Security Agreement, dated as of _______ ___, 20___, in favor of Agent
(the A Existing Security Agreement @ ), to secure all obligations of _______
under the Existing Credit Agreement and all Loan Documents (as defned
therein);
WHEREAS, Borrowers, Lenders and Agent are amending and
restating the Existing Credit Agreement pursuant to the terms of that
certain Amended and Restated Credit Agreement dated as of the date
hereof by and among Borrowers, the other Grantors, Lenders and Agent
(including all annexes, exhibits and schedules thereto, as from time to time
amended, restated, supplemented or otherwise modifed, the A Credit
Agreement @ );
WHEREAS, in order to induce Agent and Lenders to enter into
the Credit Agreement and other Loan Documents and to induce Lenders to
make the Loans and to incur Letter of Credit Obligations as provided for in
the Credit Agreement, Grantors have agreed to grant a continuing Lien on
the Collateral (as hereinafter defned) to secure the Obligations;
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WHEREAS, it is a condition precedent to the obligations of
Lenders and Agent under the Credit Agreement that Grantors amend and
restate the Existing Security Agreement, and Grantors desire to satisfy such
condition precedent;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained and for other good and valuable consideration,
the receipt and sufciency of which are hereby acknowledged, the parties
hereto agree that the Existing Security Agreement is hereby amended and
restated as follows:
. DEFINED TERMS . All capitalized terms used but not otherwise defined herein have the
meanings given to them in the Credit Agreement or in Annex A thereto. All other terms
contained in this Security Agreement, unless the context indicates otherwise, have the meanings
provided for by the Code to the extent the same are used or defined therein.
GRANT OF LIEN .
To secure the prompt and complete payment, performance and observance
of all of the Obligations, each Grantor hereby grants, assigns, conveys, mortgages, pledges,
hypothecates and transfers to Agent, for itself and the benefit of Lenders, a Lien upon all of its
right, title and interest in, to and under all personal property and other assets, whether now
owned by or owing to, or hereafter acquired by or arising in favor of such Grantor (including
under any trade names, styles or derivations thereof), and whether owned or consigned by or to,
or leased from or to, such Grantor, and regardless of where located (all of which being
hereinafter collectively referred to as the A Collateral @ ), including:
all Accounts;
all Chattel Paper;
all Documents;
all General Intangibles (including payment intangibles and Software);
all Goods (including Inventory, Equipment and Fixtures);
all Instruments;
all Investment Property (including, without limitation, all shares of
common stock of __________________, owned by ________________);
all Deposit Accounts, of any Grantor, including all Blocked Accounts,
Concentration Accounts, Disbursement Accounts, and all other bank accounts and all deposits
therein;
all money, cash or cash equivalents of any Grantor;
all Supporting Obligations and Letter-of-Credit Rights of any Grantor;
and
to the extent not otherwise included, all Proceeds (including Proceeds of
all licenses issued by the Federal Communications Commission ( A FCC Licenses @ ), tort claims,
insurance claims and other rights to payments not otherwise included in the foregoing and
products of the foregoing and all accessions to, substitutions and replacements for, and rents and
profits of, each of the foregoing.
In addition, to secure the prompt and complete payment, performance and
observance of the Obligations and in order to induce Agent and Lenders as aforesaid, each
Grantor hereby grants to Agent, for itself and the benefit of Lenders, a right of setoff against the
property of such Grantor held by Agent or any Lender exercisable following the occurrence and
during the continuance of an Event of Default, consisting of property described above in Section
2(a) now or hereafter in the possession or custody of or in transit to Agent or any Lender, for
any purpose, including safekeeping, collection or pledge, for the account of such Grantor, or as
to which such Grantor may have any right or power.
AGENT = S AND LENDERS = RIGHTS; LIMITATIONS ON
AGENT = S AND LENDERS = OBLIGATIONS .
It is expressly agreed by Grantors that, anything herein to the contrary
notwithstanding, each Grantor shall remain liable under each of its Contracts and each of its
Licenses to observe and perform all the conditions and obligations to be observed and performed
by it thereunder (subject to the terms, conditions and limitations thereof). Neither Agent nor any
Lender shall have any obligation or liability under any Contract or License by reason of or
arising out of this Security Agreement or the granting herein of a Lien thereon or the receipt by
Agent or any Lender of any payment relating to any Contract or License pursuant hereto.
Neither Agent nor any Lender shall be required or obligated in any manner to perform or fulfill
any of the obligations of any Grantor under or pursuant to any Contract or License, or to make
any payment, or to make any inquiry as to the nature or the sufficiency of any payment received
by it or the sufficiency of any performance by any party under any Contract or License, or to
present or file any claims, or to take any action to collect or enforce any performance or the
payment of any amounts which may have been assigned to it or to which it may be entitled at
any time or times.
Agent may at any time with respect to Accounts subject to set-offs in
excess of $25,000 arising under the Contract giving rise to the same Account or contra accounts
CH_DOCS\35251.1 [W97]
in excess of $25,000 without prior notice to any Grantor, notify the Account Debtors of such
Accounts that Agent has a security interest therein, and that payments shall be made directly to
Agent. Agent may at any time after an Event of Default has occurred and is continuing without
prior notice to any Grantor, notify Account Debtors and other Persons obligated on the
Collateral that Agent has a security interest therein, and that payments shall be made directly to
Agent. Upon the request of Agent at any time after an Event of Default has occurred and is
continuing, each Grantor shall so notify Account Debtors and other Persons obligated on
Collateral. Once any such notice has been given to any Account Debtor or other Person
obligated on the Collateral, the affected Grantor shall not give any contrary instructions to such
Account Debtor or other Person without Agent = s prior written consent.
Upon prior notice to Grantors, Agent may at any time in Agent = s own
name, in the name of a nominee of Agent or in the name of any Grantor communicate (by mail,
telephone, facsimile or otherwise) with Account Debtors, parties to Contracts and obligors in
respect of Instruments to verify with such Persons, to Agent = s satisfaction, the existence,
amount terms of, and any other matter relating to, Accounts, payment intangibles, Instruments or
Chattel Paper. If a Designated Default or Event of Default shall have occurred and be
continuing, each Grantor, at its own expense, shall cause the independent certified public
accountants then engaged by such Grantor to prepare and deliver to Agent and each Lender at
any time and from time to time promptly upon Agent = s request the following reports with
respect to each Grantor: (i) a reconciliation of all Accounts; (ii) an aging of all Accounts; (iii)
trial balances; and (iv) a test verification of such Accounts as Agent may request.
REPRESENTATIONS AND WARRANTIES . Each Grantor represents
and warrants that:
Each Grantor has rights in and the power to transfer each item of the
Collateral upon which it purports to grant a Lien hereunder free and clear of any and all Liens
other than Permitted Encumbrances or other Liens permitted under the Credit Agreement.
No effective security agreement, financing statement, equivalent security
or Lien instrument or continuation statement covering all or any part of the Collateral is on file
or of record in any public office, except such as may have been filed (i) by any Grantor in favor
of Agent pursuant to this Security Agreement or the other Loan Documents and (ii) in
connection with any other Permitted Encumbrances or other Liens permitted under the Credit
Agreement.
This Security Agreement is effective to create a valid and continuing Lien
on and, upon the filing of the appropriate financing statements listed on Schedule I hereto, a
perfected Lien in favor of Agent, for itself and the benefit of Lenders, on the Collateral with
respect to which a Lien may be perfected by filing pursuant to the Code and such Lien is prior to
all other Liens, except Permitted Encumbrances or other Liens permitted under the Credit
Agreement that would be prior to Liens in favor of Agent for the benefit of Agent and Lenders
as a matter of law, and is enforceable as such as against any and all creditors of and purchasers
from any Grantor (other than purchasers and lessees of Inventory in the ordinary course of
business and non-exclusive licensees of General Intangibles in the ordinary course of business).
All action by any Grantor necessary or desirable to protect and perfect such Lien on each item of
the Collateral has been duly taken except as otherwise permitted by the Credit Agreement.
Schedule II hereto lists all Instruments, Letter of Credit Rights and Chattel
Paper of each Grantor in excess of $15,000 individually and $50,000 in the aggregate. All
action by any Grantor necessary or desirable to protect and perfect the Lien of Agent on each
item set forth on Schedule II (including the delivery of all originals thereof to Agent and the
legending of all Chattel Paper as required by Section 5(b) hereof) has been duly taken. The Lien
of Agent, for the benefit of Agent and Lenders, on the Collateral listed on Schedule II hereto is
prior to all other Liens, except Permitted Encumbrances that would be prior to the Liens in favor
of Agent as a matter of law, and is enforceable as such against any and all creditors of and
purchasers from any Grantor.
Each Grantor = s name as it appears in official filings in the state of its
incorporation or other organization, the type of entity of each Grantor (including corporation,
partnership, limited partnership or limited liability company), organizational identification
number issued by each Grantor = s state of incorporation or organization or a statement that no
such number has been issued, each Grantor = s state of organization or incorporation, the location
of each Grantor = s chief executive office, principal place of business, offices, all warehouses and
premises where Collateral with an aggregate value of $25,000 or more is stored or located, and
the locations of its books and records concerning the Collateral are set forth on Schedule III - A ,
Schedule III - B, Schedule III - C , Schedule III - D , Schedule III - E , Schedule III - F, Schedule III - G ,
Schedule III - H , and Schedule III - I respectively, hereto. Each Grantor has only one state of
incorporation or organization.
With respect to the Accounts, except as specifically disclosed in the most
recent Collateral Report delivered to Agent or with respect to Accounts in an aggregate amount
not to exceed $100,000 (i) they represent bona fide sales of Inventory or rendering of services to
Account Debtors in the ordinary course of each Grantor = s business and are not evidenced by a
judgment, Instrument or Chattel Paper; (ii) there are no setoffs, claims or disputes existing or
asserted with respect thereto and no Grantor has made any agreement with any Account Debtor
for any extension of time for the payment thereof, any compromise or settlement for less than
the full amount thereof, any release of any Account Debtor from liability therefor, or any
deduction therefrom except a discount, allowance, compromise or settlement allowed by such
Grantor in the ordinary course of its business for prompt payment and disclosed to Agent; (iii) to
each Grantor = s knowledge, there are no facts, events or occurrences which in any way impair
the validity or enforceability thereof or could reasonably be expected to reduce the amount
payable thereunder as shown on any Grantor = s books and records and any invoices, statements
and Collateral Reports delivered to Agent and Lenders with respect thereto; (iv) no Grantor has
received any notice of proceedings or actions which are threatened or pending against any
Account Debtor which might result in any adverse change in such Account Debtor = s financial
condition; and (v) no Grantor has knowledge that any Account Debtor is unable generally to pay
its debts as they become due. Further with respect to the Accounts (x) the amounts shown on all
invoices, statements and Collateral Reports which may be delivered to the Agent with respect
thereto are actually and absolutely owing to such Grantor as indicated thereon and are not in any
way contingent; (y) after an Activation Notice is delivered to the Relationship Banks, no
payments shall be made thereon except payments immediately delivered to the applicable
Blocked Accounts or the Agent as required pursuant to the terms of Annex C to the Credit
Agreement; and (z) to each Grantor = s knowledge, all Account Debtors have the capacity to
contract.
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As of the Closing Date, no Grantor has any commercial tort claim rights.
COVENANTS . Each Grantor covenants and agrees with Agent, for the
benefit of Agent and Lenders, that from and after the date of this Security Agreement and until
the Termination Date:
Further Assurances: Pledge of Instruments; Chattel Paper .
At any time and from time to time, upon the written request of Agent and
at the sole expense of Grantors, each Grantor shall promptly and duly execute and deliver any
and all such further instruments and documents and take such further actions as Agent may
reasonably deem desirable to obtain the full benefits of this Security Agreement and of the rights
and powers herein granted, including (A) using its reasonable best efforts to secure all consents
and approvals necessary or appropriate for the assignment to or for the benefit of Agent of any
License or Contract held by such Grantor and to enforce the security interests granted hereunder;
and (B) filing any financing or continuation statements under the Code with respect to the Liens
granted hereunder or under any other Loan Document as to those jurisdictions that are not
Uniform Commercial Code jurisdictions.
Unless Agent shall otherwise consent in writing (which consent may be
revoked), each Grantor shall deliver to Agent all Collateral consisting of negotiable Documents,
certificated securities, Chattel Paper and Instruments in excess of $15,000 individually and
$50,000 in the aggregate (in each case, accompanied by stock powers, allonges or other
instruments of transfer executed in blank) promptly after such Credit Party receives the same;
provided, however , that Hornell Radio, Inc. is the record and beneficial owner of the shares of
stock listed in of Schedule III-C hereto and shall, if requested by the Agent, deliver such shares
of stock in its possession accompanied by duly executed instruments of transfer or assignment in
blank to Agent on the Closing Date.
If required by the terms of the Credit Agreement and not waived by Agent
in writing (which waiver may be revoked), each Grantor shall obtain authenticated Control
Letters from each issuer of uncertificated securities, securities intermediary, or commodities
intermediary issuing or holding any financial assets or commodities to or for any Grantor.
In accordance with Annex C to the Credit Agreement, each Grantor shall
obtain a blocked account, lockbox or similar agreement with each bank or financial institution
holding a Deposit Account for such Grantor.
Each Grantor that is or becomes the beneficiary of a letter of credit shall
promptly, and in any event within two (2) Business Days after becoming a beneficiary, notify
Agent thereof and enter into a tri - party agreement with Agent and the issuer and/or confirmation
bank with respect to Letter-of-Credit Rights assigning such Letter-of-Credit Rights to Agent and
directing all payments thereunder to the Collection Account, all in form and substance
reasonably satisfactory to Agent.
Each Grantor shall take all steps necessary to grant the Agent control of
all electronic chattel paper in accordance with the Code.
Each Grantor hereby irrevocably authorizes the Agent at any time and
from time to time to file in any filing office in any jurisdiction any initial financing statements
and amendments thereto that (a) indicate the Collateral (i) as all assets of such Grantor or words
of similar effect, regardless of whether any particular asset comprised in the Collateral falls
within the scope of Article 9 of the Code or such jurisdiction, or (ii) as being of an equal or
lesser scope or with greater detail, and (b) contain any other information required by part 5 of
Article 9 of the Code for the sufficiency or filing office acceptance of any financing statement or
amendment, including (i) whether such Grantor is an organization, the type of organization and
any organization identification number and federal tax identification number issued to such
Grantor, and (ii) in the case of a financing statement filed as a fixture filing or indicating
Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property
to which the Collateral relates. Each Grantor agrees to furnish any such information to the
Agent promptly upon request. Each Grantor also ratifies its authorization for the Agent to have
filed in any jurisdiction any initial financing statements or amendments thereto if filed prior to
the date hereof.
Notwithstanding anything in this Section 5(a) to the contrary, the Grantors shall
not have to perform any of the above obligations for Collateral which does not exceed $100,000
in the aggregate at any one time.
(a) Maintenance of Records . Grantors shall keep and maintain, at their own cost and
expense, satisfactory and complete records of the Collateral, including a record of any and all
payments received and any and all credits granted with respect to the Collateral and all other
dealings with the Collateral. Grantors shall mark their books and records pertaining to the
Collateral to evidence this Security Agreement and the Liens granted hereby to the extent and in
the manner requested by the Agent. If any Grantor retains possession of any Chattel Paper or
Instruments with Agent = s consent, upon the request of the Agent, such Chattel Paper and
Instruments shall be marked with the following legend: A This writing and the obligations
evidenced or secured hereby are subject to the security interest of ______________________, as
Agent, for the benefit of Agent and certain Lenders. @
Covenants Regarding Patent, Trademark and Copyright Collateral . In no
event shall any Grantor, either itself or through any agent, employee, licensee or designee, file
an application for the registration of any Patent, Trademark or Copyright with the United States
Patent and Trademark Office, the United States Copyright Office or any similar office or agency
without promptly giving Agent written notice thereof, and, upon request of Agent, Grantor shall
execute and deliver any and all Patent Security Agreements, Copyright Security Agreements or
Trademark Security Agreements as Agent may request to evidence Agent = s Lien on such
Patent, Trademark or Copyright, and the General Intangibles of such Grantor relating thereto or
represented thereby.
Indemnification . In any suit, proceeding or action brought by Agent or
any Lender relating to any Collateral for any sum owing with respect thereto or to enforce any
rights or claims with respect thereto, each Grantor will save, indemnify and keep Agent and
Lenders harmless from and against all expense (including reasonable attorneys = fees and
CH_DOCS\35251.1 [W97]
expenses), loss or damage suffered by reason of any defense, setoff, counterclaim, recoupment
or reduction of liability whatsoever of the Account Debtor or other Person obligated on the
Collateral, arising out of a breach by any Grantor of any obligation thereunder or arising out of
any other agreement, indebtedness or liability at any time owing to, or in favor of, such obligor
or its successors from such Grantor, except in the case of Agent or any Lender, to the extent
such expense, loss, or damage is attributable solely to the gross negligence or willful misconduct
of Agent or such Lender as finally determined by a court of competent jurisdiction. All such
obligations of Grantors shall be and remain enforceable against and only against Grantors and
shall not be enforceable against Agent or any Lender.
Compliance with Terms of Accounts, etc. In all material respects, each
Grantor will perform and comply with all obligations in respect of the Collateral and all other
agreements to which it is a party or by which it is bound relating to the Collateral (subject to the
terms, conditions and limitations of such agreements) except where such failure to perform or
noncompliance could not reasonably be expected to have a Material Adverse Effect.
Limitation on Liens on Collateral . No Grantor will create, permit or
suffer to exist, and each Grantor will defend the Collateral against, and take such other action as
is necessary to remove, any Lien on the Collateral except Permitted Encumbrances or other
Liens permitted under the Credit Agreement, and will defend the right, title and interest of Agent
and Lenders in and to any of such Grantor = s rights under the Collateral against the claims and
demands of all Persons whomsoever (other than claims and demands permitted by the Credit
Agreement).
Limitations on Disposition. No Grantor will sell, license, lease, transfer
or otherwise dispose of any of the Collateral, or attempt or contract to do so, except as permitted
by the Credit Agreement.
Further Identification of Collateral . Grantors will, if so requested by
Agent, furnish to Agent, as often as Agent requests, statements and schedules further identifying
and describing the Collateral and such other reports in connection with the Collateral as Agent
may reasonably request, all in such detail as Agent may specify.
Notices . Grantors will advise Agent promptly, in reasonable detail, (i) of
any Lien (other than Permitted Encumbrances or other Liens permitted under the Credit
Agreement) or claim made or asserted against any of the Collateral, and (ii) of the occurrence of
any other event which would have a material adverse effect on the aggregate value of the
Collateral or on the Liens created hereunder or under any other Loan Document.
Good Standing Certificates . Not less frequently than once during each
calendar year, each Grantor shall, unless Agent shall otherwise consent, provide to Agent a
certificate of good standing from its state of incorporation or organization.
No Reincorporation . Without limiting the prohibitions on mergers
involving the Grantors contained in the Credit Agreement, no Grantor shall reincorporate or
reorganize itself under the laws of any jurisdiction other than the jurisdiction in which it is
incorporated or organized as of the date hereof without the prior written consent of Agent.
Terminations; Amendments Not Authorized . Each Grantor acknowledges
that it is not authorized to file any financing statement, amendment, clarification statement or
termination statement with respect to any financing statement filed in favor of the Agent without
the prior written consent of Agent and agrees that it will not do so without the prior written
consent of Agent, subject to such Grantor's rights under Section 9-509(d)(2) of the Code.
Authorized Terminations . Agent will promptly deliver to each Grantor
for filing or authorize each Grantor to prepare and file termination statements and releases in
accordance with Section 11.2(f) of the Credit Agreement.
AGENT = S APPOINTMENT AS ATTORNEY-IN-FACT .
On the Closing Date each Grantor shall execute and deliver to Agent a power of
attorney (the A Power of Attorney @ ) substantially in the form attached hereto as Exhibit A . The
power of attorney granted pursuant to the Power of Attorney is a power coupled with an interest
and shall be irrevocable until the Termination Date. The powers conferred on Agent, for the
benefit of Agent and Lenders, under the Power of Attorney are solely to protect Agent = s
interests (for the benefit of Agent and Lenders) in the Collateral and shall not impose any duty
upon Agent or any Lender to exercise any such powers. Agent agrees that (a) except for the
powers granted in clause (h) of the Power of Attorney, it shall not exercise any power or
authority granted under the Power of Attorney unless an Event of Default has occurred and is
continuing, (b) Agent shall account for any moneys received by Agent in respect of any
foreclosure on or disposition of Collateral pursuant to the Power of Attorney provided that none
of Agent or any Lender shall have any duty as to any Collateral, and Agent and Lenders shall be
accountable only for amounts that they actually receive as a result of the exercise of such
powers, and (c) Agent shall not be authorized to execute on behalf of any Grantor any document,
instrument or application to be filed with or submitted to the FCC except to the extent, if any,
permitted by the rules and regulations of the FCC. NONE OF AGENT, LENDERS OR THEIR
RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR
REPRESENTATIVES SHALL BE RESPONSIBLE TO ANY GRANTOR FOR ANY ACT OR
FAILURE TO ACT UNDER ANY POWER OF ATTORNEY OR OTHERWISE, EXCEPT IN
RESPECT OF DAMAGES IN AN AMOUNT ATTRIBUTABLE SOLELY TO THEIR OWN
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AS FINALLY DETERMINED BY A
COURT OF COMPETENT JURISDICTION, NOR FOR ANY PUNITIVE, EXEMPLARY,
INDIRECT OR CONSEQUENTIAL DAMAGES.
CH_DOCS\35251.1 [W97]
. REMEDIES: RIGHTS UPON DEFAULT .
In addition to all other rights and remedies granted to it under this
Security Agreement, the Credit Agreement, the other Loan Documents and under any other
instrument or agreement securing, evidencing or relating to any of the Obligations, if any Event
of Default shall have occurred and be continuing, Agent may exercise all rights and remedies of
a secured party under the Code. Without limiting the generality of the foregoing, each Grantor
expressly agrees that if any such event exists and is continuing, Agent, without demand of
performance or other demand, advertisement or notice of any kind (except the notice specified
below of time and place of public or private sale) to or upon such Grantor or any other Person
(all and each of which demands, advertisements and notices are hereby expressly waived to the
maximum extent permitted by the Code and other applicable law), may forthwith enter upon the
premises of such Grantor where any Collateral is located through self-help, without judicial
process, without first obtaining a final judgment or giving such Grantor or any other Person
notice and opportunity for a hearing on Agent = s claim or action and may collect, receive,
assemble, process, appropriate and realize upon the Collateral, or any part thereof, and may
forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise
dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more
parcels at a public or private arms-length sale or sales, at any exchange at such prices as it may
deem acceptable, for cash or on credit or for future delivery without assumption of any credit
risk. Agent or any Lender shall have the right upon any such public sale or sales and, to the
extent permitted by law, upon any such private sale or sales, to purchase for the benefit of Agent
and Lenders, the whole or any part of said Collateral so sold, free of any right or equity of
redemption, which equity of redemption each Grantor hereby releases. Such sales may be
adjourned and continued from time to time with or without notice. Agent shall have the right to
conduct such sales on any Grantor = s premises or elsewhere and shall have the right to use any
Grantor = s premises without charge for such time or times as Agent deems necessary or
advisable.
If any Event of Default shall have occurred and be continued, each
Grantor further agrees, at Agent = s request, to assemble the Collateral and make it available to
Agent at a place or places designated by Agent which are reasonably convenient to Agent and
such Grantor, whether at such Grantor = s premises or elsewhere. Until Agent is able to effect a
sale, lease, or other disposition of Collateral, Agent shall have the right to hold or use Collateral,
or any part thereof, to the extent that it deems appropriate for the purpose of preserving
Collateral or its value or for any other purpose deemed appropriate by Agent. Agent shall have
no obligation to any Grantor to maintain or preserve the rights of such Grantor as against third
parties with respect to Collateral while Collateral is in the possession of Agent. Agent may, if it
so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to
enforce any of Agent = s remedies (for the benefit of Agent and Lenders), with respect to such
appointment without prior notice or hearing as to such appointment. Agent shall apply the net
proceeds of any such collection, recovery, receipt, appropriation, realization or sale to the
Obligations as provided in the Credit Agreement, and only after so paying over such net
proceeds, and after the payment by Agent of any other amount required by any provision of law,
need Agent account for the surplus, if any, to any Grantor. To the maximum extent permitted by
applicable law, each Grantor waives all claims, damages, and demands against Agent or any
Lender arising out of the repossession, retention or sale of the Collateral except to the extent that
any such claims, damages and demands results from the gross negligence or willful misconduct
of Agent or such Lender as finally determined by a court of competent jurisdiction. Each
Grantor agrees that ten (10) days prior notice by Agent of the time and place of any public sale
or of the time after which a private sale may take place is reasonable notification of such
matters. Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition
of the Collateral are insufficient to pay all Obligations, including any attorneys = fees and other
expenses incurred by Agent or any Lender to collect such deficiency.
Except as otherwise specifically provided herein, each Grantor hereby
waives presentment, demand, protest or any notice (to the maximum extent permitted by
applicable law) of any kind in connection with this Security Agreement or any Collateral.
To the extent that applicable law imposes duties on the Agent to exercise
remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is
not commercially unreasonable for the Agent, following the occurrence and during the
continuation of an Event of Default (i) to fail to incur expenses reasonably deemed significant by
the Agent to prepare Collateral for disposition or otherwise to complete raw material or work in
process into finished goods or other finished products for disposition, (ii) to fail to obtain third
party consents for access to Collateral to be disposed of, or to obtain or, if not required by other
law, to fail to obtain governmental or third party consents for the collection or disposition of
Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against
Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse
claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other
Persons obligated on Collateral directly or through the use of collection agencies and other
collection specialists, (v) to advertise dispositions of Collateral through publications or media of
general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other
Persons, whether or not in the same business as the Grantor, for expressions of interest in
acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers
to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature,
(viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of
the types included in the Collateral or that have the reasonable capacity of doing so, or that
match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail
markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi)
to purchase insurance or credit enhancements to insure the Agent against risks of loss, collection
or disposition of Collateral or to provide to the Agent a guaranteed return from the collection or
disposition of Collateral, or (xii) to the extent deemed appropriate by the Agent, to obtain the
services of other brokers, investment bankers, consultants and other professionals to assist the
Agent in the collection or disposition of any of the Collateral. Each Grantor acknowledges that
the purpose of this Section 7(c) is to provide non-exhaustive indications of what actions or
omissions by the Agent would not be commercially unreasonable in the Agent's exercise of
remedies against the Collateral and that other actions or omissions by the Agent shall not be
deemed commercially unreasonable solely on account of not being indicated in this Section 7(c) .
Without limitation upon the foregoing, nothing contained in this Section 7(c) shall be construed
to grant any rights to any Grantor or to impose any duties on Agent that would not have been
granted or imposed by this Security Agreement or by applicable law in the absence of this
Section 7(c) .
Neither the Agent nor the Lenders shall be required to make any demand
upon, or pursue or exhaust any of their rights or remedies against, any Grantor, any other
CH_DOCS\35251.1 [W97]
obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or
to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any
direct or indirect guarantee thereof. Neither the Agent nor the Lenders shall be required to
marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any
such guarantee in any particular order, and all of its and their rights hereunder or under any other
Loan Document shall be cumulative. To the extent it may lawfully do so, each Grantor
absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants
not to assert against the Agent or any Lender, any valuation, stay, appraisement, extension,
redemption or similar laws and any and all rights or defenses it may have as a surety now or
hereafter existing which, but for this provision, might be applicable to the sale of any Collateral
made under the judgment, order or decree of any court, or privately under the power of sale
conferred by this Security Agreement, or otherwise.
GRANT OF LICENSE TO USE INTELLECTUAL PROPERTY
COLLATERAL . For the purpose of enabling Agent to exercise rights and remedies under
Section 7 hereof (including, without limiting the terms of Section 7 hereof, in order to take
possession of, hold, preserve, process, assemble, prepare for sale, market for sale, sell or
otherwise dispose of Collateral) at such time as Agent shall be lawfully entitled to exercise such
rights and remedies following the occurrence and during the continuance of an Event of Default,
each Grantor hereby grants to Agent, for the benefit of Agent and Lenders, an irrevocable,
nonexclusive license (exercisable without payment of royalty or other compensation to such
Grantor) to use, license or sublicense until the Termination Date any Intellectual Property now
owned or hereafter acquired by such Grantor, and wherever the same may be located, and
including in such license access to all media in which any of the licensed items may be recorded
or stored and to all computer software and programs used for the compilation or printout thereof
(but subject to any limitation on such Grantor = s right to grant such licenses or sublicenses as set
forth in the terms of the licenses governing such Intellectual Property).
LIMITATION ON AGENT = S AND LENDERS = DUTY IN RESPECT
OF COLLATERAL . Agent and each Lender shall use reasonable care with respect to the
Collateral in its possession or under its control. Neither Agent nor any Lender shall have any
other duty as to any Collateral in its possession or control or in the possession or control of any
agent or nominee of Agent or such Lender, or any income thereon or as to the preservation of
rights against prior parties or any other rights pertaining thereto.
REINSTATEMENT . This Security Agreement shall remain in full force
and effect and continue to be effective should any petition be filed by or against any Grantor for
liquidation or reorganization, should any Grantor become insolvent or make an assignment for
the benefit of any creditor or creditors or should a receiver or trustee be appointed for all or any
significant part of any Grantor = s assets, and shall continue to be effective or be reinstated, as
the case may be, if at any time payment and performance of the Obligations, or any part thereof,
is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee of the Obligations, whether as a A voidable preference, @ A fraudulent
conveyance, @ or otherwise, all as though such payment or performance had not been made. In
the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the
Obligations shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
NOTICES . Except as otherwise provided herein, whenever it is provided
herein that any notice, demand, request, consent, approval, declaration or other communication
shall or may be given to or served upon any of the parties by any other party, or whenever any of
the parties desires to give and serve upon any other party any communication with respect to this
Security Agreement, each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and shall be given in the manner, and deemed received, as
provided for in the Credit Agreement.
SEVERABILITY . Whenever possible, each provision of this Security
Agreement shall be interpreted in a manner as to be effective and valid under applicable law, but
if any provision of this Security Agreement shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of this Security
Agreement. This Security Agreement is to be read, construed and applied together with the
Credit Agreement and the other Loan Documents which, taken together, set forth the complete
understanding and agreement of Agent, Lenders and Grantors with respect to the matters
referred to herein and therein.
NO WAIVER; CUMULATIVE REMEDIES . Neither Agent nor any
Lender shall by any act, delay, omission or otherwise be deemed to have waived any of its rights
or remedies hereunder, and no waiver shall be valid unless in writing, signed by Agent and then
only to the extent therein set forth. A waiver by Agent of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which Agent would
otherwise have had on any future occasion. No failure to exercise nor any delay in exercising on
the part of Agent or any Lender, any right, power or privilege hereunder, shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or privilege hereunder
preclude any other or future exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies hereunder provided are cumulative and may be exercised
singly or concurrently, and are not exclusive of any rights and remedies provided by law. None
of the terms or provisions of this Security Agreement may be waived, altered, modified or
amended except by an instrument in writing, duly executed by Agent and Grantors.
LIMITATION BY LAW . All rights, remedies and powers provided in
this Security Agreement may be exercised only to the extent that the exercise thereof does not
violate any applicable provision of law, and all the provisions of this Security Agreement are
intended to be subject to all applicable mandatory provisions of law that may be controlling and
to be limited to the extent necessary so that they shall not render this Security Agreement
invalid, unenforceable, in whole or in part, or not entitled to be recorded, registered or filed
under the provisions of any applicable law.
TERMINATION OF THIS SECURITY AGREEMENT . Subject to
Section 10 hereof, this Security Agreement shall terminate upon the Termination Date.
SUCCESSORS AND ASSIGNS . This Security Agreement and all
obligations of Grantors hereunder shall be binding upon the successors and assigns of each
Grantor (including any debtor-in-possession on behalf of such Grantor) and shall, together with
the rights and remedies of Agent, for the benefit of Agent and Lenders, hereunder, inure to the
benefit of Agent and Lenders, all future holders of any instrument evidencing any of the
Obligations and their respective successors and assigns. No sales of participations, other sales,
assignments, transfers or other dispositions of any agreement governing or instrument
CH_DOCS\35251.1 [W97]
evidencing the Obligations or any portion thereof or interest therein shall in any manner impair
the Lien granted to Agent, for the benefit of Agent and Lenders, hereunder. No Grantor may
assign, sell, hypothecate or otherwise transfer any interest in or obligation under this Security
Agreement.
COUNTERPARTS . This Security Agreement may be authenticated in
any number of separate counterparts, each of which shall collectively and separately constitute
one agreement. This Security Agreement may be authenticated by manual signature, facsimile
or, if approved in writing by Agent, electronic means, all of which shall be equally valid.
GOVERNING LAW . EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED IN ANY OF THE LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING
ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS
SECURITY AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN THAT STATE, AND ANY APPLICABLE LAWS OF THE UNITED
STATES OF AMERICA. EACH GRANTOR HEREBY CONSENTS AND AGREES THAT
THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK COUNTY, CITY OF
NEW YORK, NEW YORK, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN GRANTORS, AGENT AND
LENDERS PERTAINING TO THIS SECURITY AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
SECURITY AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, PROVIDED ,
THAT AGENT, LENDERS AND GRANTORS ACKNOWLEDGE THAT ANY APPEALS
FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE
OF NEW YORK COUNTY, AND, PROVIDED, FURTHER , NOTHING IN THIS
AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE AGENT FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION
TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN
FAVOR OF AGENT. EACH GRANTOR EXPRESSLY SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY
SUCH COURT, AND EACH GRANTOR HEREBY WAIVES ANY OBJECTION WHICH IT
MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE
OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH
COURT. EACH GRANTOR HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR
SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER
PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO
SUCH GRANTOR AT THE ADDRESS SET FORTH ON ANNEX I TO THE CREDIT
AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED
UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER
DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID.
WAIVER OF JURY TRIAL . BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY
AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON
AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT DISPUTES
ARISING HEREUNDER OR RELATING HERETO BE RESOLVED BY A JUDGE
APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST
COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG AGENT,
LENDERS, AND GRANTORS ARISING OUT OF, CONNECTED WITH, RELATED TO,
OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED IN CONNECTION WITH,
THIS SECURITY AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED HERETO OR THERETO.
SECTION TITLES . The Section titles contained in this Security
Agreement are and shall be without substantive meaning or content of any kind whatsoever and
are not a part of the agreement between the parties hereto.
NO STRICT CONSTRUCTION . The parties hereto have participated
jointly in the negotiation and drafting of this Security Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Security Agreement shall be construed as if
drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any provisions of this Security
Agreement.
ADVICE OF COUNSEL . Each of the parties represents to each other
party hereto that it has discussed this Security Agreement and, specifically, the provisions of
Section 18 and Section 19 , with its counsel.
BENEFIT OF LENDERS . All Liens granted or contemplated hereby
shall be for the benefit of Agent, individually, and Lenders, and all proceeds or payments
realized from Collateral in accordance herewith shall be applied to the Obligations in accordance
with the terms of the Credit Agreement.
GOVERNMENT APPROVAL . Notwithstanding anything to the contrary contained herein, any
foreclosure on, sale, transfer or other disposition of any Collateral or any other action taken or
proposed to be taken hereunder that would affect the operational, voting, or other control of any
Grantor or affect the ownership of the FCC Licenses shall be pursuant the Communications
Laws and, if and to the extent required thereby, subject to the prior consent of the FCC and any
other applicable governmental authority. Notwithstanding anything to the contrary contained
herein, Agent and Lenders shall not take any action pursuant hereto that would constitute or
result in any assignment of the FCC Licenses or transfer of control of any Grantor if such
assignment or transfer of control would require, under then existing law (including the
Communications Laws), the prior approval of the FCC, without first obtaining such approval of
the FCC and notifying the FCC of the consummation of such assignment or transfer of control
(to the extent required to do so). Each Grantor agrees to take any action which the Agent may
request in order to obtain and enjoy the full rights and benefits granted to the Agent and Lenders
by this Agreement, including specifically, after the occurrence and during the continuance of an
Event of Default, the use of such Grantor = s best efforts to assist in obtaining any approval of
the FCC that is then required under the Communications Laws or under any other law for any
CH_DOCS\35251.1 [W97]
action or transaction contemplated by this Agreement.
. IN WITNESS WHEREOF, each of the parties hereto has caused
this Amended and Restated Security Agreement to be executed and delivered by its duly
authorized officer as of the date first set forth above.
____________________________________
By:
Name:
Title:
By:
Name:
Title:
____________________________________
By:
Name:
Title:
____________________________________
By:
Name:
Title:
____________________________________
By:
Name:
Title:
____________________________________
By:
Name:
Title:
By:
Name:
Title:
____________________________________
By:
Name:
Title:
____________________________________
By:
Name:
Title:
, as Agent
By:
Name: ___________________
Title: Duly Authorized Signatory
SCHEDULE I
to
SECURITY AGREEMENT
FILING JURISDICTIONS
Grantor Jurisdictions Filing Information
1. ____________________ __________________ __________________________
2. ____________________ __________________ __________________________
3.
4.
5. ____________________ __________________ __________________________
6.
7. ____________________ __________________ __________________________
8 ____________________ __________________ __________________________
9.
SCHEDULE II
to
SECURITY AGREEMENT
INSTRUMENTS
CHATTEL PAPER
AND
LETTER OF CREDIT RIGHTS
None.
SCHEDULE III-A
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING_________ COMMUNICATIONS, INC. = S
COLLATERAL
I. Grantor = s ofcial name: .
II. Type of entity (e.g. corporation, partnership, business trust, limited
partnership, limited liability company): corporation
III. Organizational identifcation number issued by Grantor's state of
incorporation or organization or a statement that no such number has
been issued:
IV. State or Incorporation or Organization of ________________________:
Delaware
V. Chief Executive Ofce and principal place of business of
_______________________.:
__________________________
VI. Corporate Ofces of ___________________.:
__________________________
VII. Warehouses: None
VIII. Other Premises at which Collateral is Stored or Located: None
IX. Locations of Records Concerning Collateral:
_________________________
_________________________
[to be completed by Grantors]
SCHEDULE III-B
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING _______________________. = S COLLATERAL
I. Grantor = s ofcial name:
II. Type of entity (e.g. corporation, partnership, business trust, limited
partnership, limited liability company): corporation
III. Organizational identifcation number issued by Grantor's state of
incorporation or organization or a statement that no such number has
been issued: N/A
IV. State or Incorporation or Organization of :
V. Chief Executive Ofce and principal place of business of
______________________.:
____________________
VI. Corporate Ofces of _________________________:
__________________________
VII. Warehouses:
VIII. Other Premises at which Collateral is Stored or Located: None
IX. Locations of Records Concerning Collateral:
_________________________
_________________________
[to be completed by Grantors]
SCHEDULE III-C
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING ___________________. COLLATERAL
I. Grantor = s ofcial name:
II. Type of entity (e.g. corporation, partnership, business trust, limited
partnership, limited liability company): corporation
III. Organizational identifcation number issued by Grantor's state of
incorporation or organization or a statement that no such number has
been issued:
IV. State or Incorporation or Organization of______________.: _____________
V. Chief Executive Ofce and principal place of business of
__________________.:
______________________
______________________
VI. Corporate Ofces of ____________________:
________________________
VII. Warehouses: None
VIII. Other Premises at which Collateral is Stored or Located: None
IX. Locations of Records Concerning Collateral:
_____________________
_____________________
X. Pledged Shares of Stock:
[to be completed by Grantors]
SCHEDULE III-D
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING_________________________. COLLATERAL
I. Grantor = s ofcial name:
II. Type of entity (e.g. corporation, partnership, business trust, limited
partnership, limited liability company): corporation
III. Organizational identifcation number issued by Grantor's state of
incorporation or organization or a statement that no such number has
been issued:
IV. State or Incorporation or Organization: ____________
V. Chief Executive Ofce and principal place of business of
___________________:
_____________________
_____________________
VI. Corporate Ofces of _________________:
_____________________
VII. Warehouses: None
VIII. Other Premises at which Collateral is Stored or Located:
______________________
IX. Locations of Records Concerning Collateral:
______________________
[to be completed by Grantors]
SCHEDULE III-E
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING __________________COLLATERAL
I. Grantor = s ofcial name:
II. Type of entity (e.g. corporation, partnership, business trust, limited
partnership, limited liability company): Corporation
III. Organizational identifcation number issued by Grantor's state of
incorporation or organization or a statement that no such number has
been issued: ____________
IV. State or Incorporation or Organization:
V. Chief Executive Ofce and principal place of business of __________:
___________________
VI. Corporate Ofces of ___________________:
___________________
VII. Warehouses: None
VIII. Other Premises at which Collateral is Stored or Located: None
IX. Locations of Records Concerning Collateral:
___________________
___________________
[to be completed by Grantors]
SCHEDULE III-F
to
SECURITY AGREEMENT
SCHEDULE OF OFFICES, LOCATIONS OF COLLATERAL
AND RECORDS CONCERNING ____________________COLLATERAL
I. Grantor = s ofcial name: .
II. Type of entity (e.g. corporation, partnership, business trust, limited
partne
