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Exhibit 10(u)
AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT ("Agreement") is entered
into as of September 10, 1997, by and between REGENT BROADCASTING OF SAN DIEGO,
INC., a Delaware corporation, and REGENT LICENSEE OF SAN DIEGO, INC., a
Delaware corporation, (collectively, the "COMPANY"), and Citicasters Co., an
Ohio corporation ("Citicasters"), amends and restates in its entirety that
certain SECURITY AGREEMENT, dated June 6, 1997, by and between the Company,
Regent Broadcasting of San Diego, Inc. and Regent Communications, Inc.
1. DEFINITIONS:
1.1. SPECIFIC DEFINITIONS. The following definitions shall apply:
"Accounts" means all accounts, contract rights, instruments,
documents, chattel paper, and all obligations in any form arising out of the
sale or lease of goods or the rendition of services by Company; all guaranties,
letters of credit and other security for any of the above; all merchandise
returned to or reclaimed by Company; and all books and records (including
computer programs, tapes and data processing software) evidencing an interest
in or relating to the above.
"Equipment" means all machinery, machine tools, equipment,
fixtures, office equipment, furniture, furnishings, motors, motor vehicles,
tools, dies, parts, jigs, goods (including, without limitation, each of the
items of equipment set forth on any schedule which is either now or in the
future attached to Citicasters' copy of this Agreement), and all attachments,
accessories, accessions, replacements, substitutions, additions and
improvements thereto, and all supplies used or useful in connection therewith.
"General Intangibles" means all general intangibles, choses
in action, causes of action, obligations or indebtedness owed to Company from
any source whatsoever, and all other intangible personal property of every kind
and nature (other than Accounts) including without limitation patents,
trademarks, trade names, service marks, copyrights and applications for any of
the above, and goodwill, trade secrets, licenses, franchises, rights under
agreements, tax refund claims, and all books and records including all computer
programs, disks, tapes, printouts, customer lists, credit files and other
business and financial records, and the equipment containing any such
information.
"Inventory" means any and all goods, supplies, wares,
merchandise and other tangible personal property, including raw materials, work
in process, supplies and components, and finished goods, whether held for sale
or lease, or furnished or to be furnished under any contract for service, and
also including products of and accessions to inventory, packing and shipping
materials, and all documents of title, whether negotiable or non-negotiable,
representing any of the foregoing.
"Lien" means any security interest, mortgage, pledge,
assignment, lien or other encumbrance of any kind, including interests of
vendors or lessors under conditional sale contracts or capital leases.
"Obligation(s)" means all loans, advances, indebtedness and
other obligations of the Company owed to Citicasters under the amended and
restated promissory note of the Company to Citicasters of even date herewith
(the "Amended and Restated Note"), and all expenses and
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attorney's fees incurred by Citicasters under this Agreement or any other
document or instrument related thereto.
1.2. OTHER DEFINITIONS. Capitalized terms not defined herein have the
meanings set forth in the Amended and Restated Note. All other undefined terms
shall have the meanings given to them in the Kentucky Uniform Commercial Code.
2. SECURITY
2.1. Security Interest of Citicasters. To induce Citicasters to issue
credit for the benefit of the Company and as security for all Obligations, the
Company hereby assigns to Citicasters Collateral and grants to Citicasters a
continuing first priority pledge and security interest in the following
property of the Company (the "Collateral"), whether now owned or existing or
hereafter acquired or arising and regardless of where it is located:
(a) all Accounts;
(b) all Inventory;
(c) all Equipment;
(d) all General Intangibles;
(e) all proceeds and products of Collateral and all additions
and accessions to, replacements of, insurance or condemnation proceeds of, and
documents covering Collateral, all tort or other claims against third parties
arising out of damage or destruction of Collateral, all property received
wholly or partly in trade or exchange for Collateral, all leases of Collateral
and all rents, revenues, issues, profits and proceeds arising from the sale,
lease, license, encumbrance, collection, or any other temporary or permanent
disposition, of the Collateral or any interest therein; and
(f) all instruments, documents, securities, money or other
property, owned by the Company or in which the Company has an interest, which
now or hereafter are at any time in the possession or control of Citicasters or
in transit by mail or carrier to or in the possession of any third party acting
on behalf of Citicasters, without regard to whether Citicasters received the
same in pledge, for safekeeping, as agent for collection or transmission or
otherwise or whether Citicasters had conditionally released the same.
2.2. REPRESENTATIONS IN SCHEDULE I. The Company represents and
warrants that the representations and warranties set forth in Schedule I, the
Specific Representations Schedule, are true and correct. Except as otherwise
permitted hereunder, the Company will not change its name, transfer its
executive offices or maintain records with respect to Accounts at any location
other than its present executive offices specified in that Schedule.
2.3. PROVISIONS CONCERNING ACCOUNTS. The Company represents and
warrants that each Account reflected in its books and records is, or will at
the time it arises be, owned by the Company free and clear of all Liens in
favor of any third party, will be a bona fide existing obligation created
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by the final sale and delivery of goods or the completed performance of
services by the Company in the ordinary course of its business, will be for a
liquidated amount maturing as stated in the supporting data covering such
transaction, and will not be subject to any known deduction, offset,
counterclaim, return privilege or other condition, except as reflected on the
Company's books and records.
2.4. PROVISIONS CONCERNING GENERAL INTANGIBLES. The Company represents
and warrants that the Company owns all of the General Intangibles in which the
Company grants Citicasters a Lien, free and clear of any Liens in favor of any
person other than Citicasters. The Company will preserve all patents,
trademarks, copyrights and the like which are necessary or useful for the
conduct of its business.
2.5. PROVISIONS CONCERNING INVENTORY. (a) The Specific Representations
Schedule is a true and correct list showing all places where the Company
maintains Inventory or has maintained Inventory at any time during the past
four months, including, without limitation, facilities leased and operated by
the Company and locations neither owned nor leased by the Company. No Inventory
will be removed from the current locations set forth in such Schedule or stored
at locations other than the current locations set forth in such Schedule,
except (i) for the purpose of sale in the ordinary course of the Company's
business or (ii) upon 30 days' written notice to Citicasters, to such other
locations as to which all action required to perfect and protect Citicasters's
lien in such Inventory has been taken. Inventory may be moved from one current
location set forth in such Schedule to another.
(b) The Company shall keep all Inventory in good order and
condition and shall maintain full, accurate and complete books and records with
respect to Inventory at all times.
(c) Except during the continuance of an Event of Default, the
Company may sell Inventory in the ordinary course of its business (which does
not include a transfer in full or partial satisfaction of indebtedness).
2.6. PROVISIONS CONCERNING EQUIPMENT. (a) The Company warrants
and represents that the Specific Representations Schedule shows all places
where any of the Company's Equipment is located or has been located at any time
during the past four months. The Company shall not permit any Equipment to be
located at any place other than (i) current locations set forth in the Specific
Representations Exhibit, and (ii) upon 30 days' prior written notice to
Citicasters, at such other locations as to which all action required to perfect
and protect Citicasters's Lien in such Equipment has been taken.
(b) The Company will keep and maintain the Equipment in its
present condition and repair, make all necessary replacements so that its value
and operating efficiency is maintained and preserved. The Company will promptly
immediately notify Citicasters of any material loss or damage to the
Collateral.
2.7. LIENS. The Company represents and warrants that the Company
has good and marketable title to the Collateral, and the Liens granted to
Citicasters in this Agreement are first priority Liens in the Collateral with
priority over the rights of every person other than the Company in the
Collateral. The Company is the owner of all personal property in its possession
or shown on
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its books and records, and all assets of the Company are owned free, clear and
unencumbered, except for the Lien of Citicasters and except for Liens imposed
by law which secure amounts not yet due and payable.
2.8. FURTHER ASSURANCES. (a) The Company will execute and
deliver to Citicasters at Citicasters's request all financing statements,
continuation statements and other documents that Citicasters may reasonably
request, in form satisfactory to Citicasters, to perfect and maintain perfected
Citicasters's security interest in the Collateral and to fully consummate all
transactions contemplated under this Agreement.
(b) If any Collateral, including proceeds, consists of a
letter of credit, advice of credit, instrument, money, negotiable documents,
chattel paper or similar property (collectively, "Negotiable Collateral") the
Company will, immediately upon receipt thereof, endorse and assign such
Negotiable Collateral over to Citicasters and deliver actual physical
possession of the Negotiable Collateral to Citicasters.
(c) Citicasters may inspect and verify the Company's books
and records at any time or times hereafter, during usual business hours, in
order to verify the amount or condition of the Collateral, or any other matter
relating to the Collateral or the Company's financial condition. After default,
the Company will promptly deliver to Citicasters copies of all books and
records reasonably requested by Citicasters.
2.9. REINSTATEMENT OF LIEN. If any payments made by the Company
or any other person on Obligations must be disgorged by Citicasters after
termination of this Agreement for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of the Company or such
other person), this Agreement and Citicasters's Liens granted hereunder will be
reinstated as to all disgorged payments as though such payment had not been
made, and the Company will sign and deliver to Citicasters all documents and
things necessary to reperfect all terminated Liens.
2.10. OTHER AMOUNTS DEEMED LOANS. If the Company fails to pay
any tax, assessment, government charge or levy or to maintain insurance within
the time permitted by this Agreement, or to discharge any Lien prohibited
hereby, or to comply with any other obligation, Citicasters may, but shall not
be required to, pay, satisfy, discharge or bond the same for the account of the
Company, and to the extent permitted by law and all monies so paid out shall be
secured by the Collateral.
2.11. COMPANY REMAINS LIABLE. The Company remains liable under
any contracts and agreements included in the Collateral to perform all of its
duties and obligations thereunder to the same extent as if this Agreement had
not been executed, and Citicasters will not have any obligation or liability
under such contracts and agreements by reason of this Agreement or otherwise.
3. EVENTS OF DEFAULT AND REMEDIES
3.1. EVENTS OF DEFAULT. Any of the following events shall be an
Event of Default:
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(a) any representation or warranty made herein by the Company is
materially incorrect when made or reaffirmed; or
(b) The Company fails to keep its assets insured as reasonably
required by Citicasters, or material uninsured damage to or loss, theft or
destruction of the Collateral occurs; or
(c) The Company fails to observe or perform any covenant,
condition or agreement herein, and such default continues for 30 days after
written notice thereof to the Company by Citicasters; or
(d) an Event of Default occurs under any of the Obligations,
under any document evidencing any part of the Obligations, or in the event of a
sale of the Collateral not deemed to be commercially reasonable by Citicasters
or the Panel (as that term is defined in the "Asset Purchase Agreement KCBQ"
dated April 16, 1997, as amended, between Citicasters and JS Communications,
Inc.).
3.2. REMEDIES. If any Event of Default shall occur and not be waived,
in addition to the remedies provided in the documents evidencing the
Obligations.
(a) Citicasters may resort to the rights and remedies of a
secured party under the Uniform Commercial Code including the right to enter
any premises of the Company, with or without legal process and take possession
of the Collateral and remove it and any records pertaining thereto and/or
remain on such premises and use it for the purpose of collecting, preparing and
disposing of the Collateral;
(b) Citicasters may dispose of the Collateral as is or at its
election may refurbish, repair, improve, process, finish, operate, demonstrate
and prepare for sale the Collateral, and may store, ship, reclaim, recover,
protect, advertise for sale or lease, and insure the Collateral; Citicasters
may use and operate Equipment of the Company in order to process or finish
Inventory included in the Collateral; if any Collateral consists of documents,
Citicasters may proceed either as to the documents or as to the goods
represented thereby; Citicasters's failure to take steps to preserve rights
against any parties or property shall not be deemed to be failure to exercise
reasonable care with respect to the Collateral;
(c) Citicasters may in its sole discretion pay, purchase,
contest or compromise any encumbrance, charge or lien which in the opinion of
Citicasters appears to be prior or superior to its Lien, and pay all expenses
incurred in connection therewith;
(d) Citicasters may sell the Collateral at public or private
sale, and the Company shall be credited with the net proceeds of such sale only
when they are actually received by Citicasters; any requirement of reasonable
notice of any disposition of the Collateral shall be satisfied if such notice
is sent to the Company, as provided in the Notices Section of this Agreement,
10 days prior to such disposition;
(e) The Company shall upon request of Citicasters assemble the
Collateral and any records pertaining thereto and make them available at a
place designated by Citicasters; and
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(f) Citicasters may use, in connection with any assembly or
disposition of the Collateral, any trademark, trade name, tradestyle,
copyright, patent right, trade secret or technical process used or utilized by
the Company.
3.3. CUMULATIVE REMEDIES. No remedy set forth herein is
exclusive of any other available remedy or remedies, but each is cumulative and
in addition to every other remedy given under this Agreement or any other
agreement or now or hereafter existing at law or in equity or by statute.
Citicasters may pursue its rights and remedies concurrently or in any sequence,
and no exercise of one right or remedy shall be deemed to be an election. If
the Company fails to comply with this Agreement, no remedy of law will provide
adequate relief to Citicasters, and Citicasters shall be entitled to temporary
and permanent injunctive relief without the necessity of proving actual
damages.
3.4. FEES AND EXPENSES. Upon a sale, lease or other disposition
of the Collateral, the proceeds shall be applied first to the reasonable
expenses of retaking, holding, storing, processing and preparing for sale,
selling and the like, and, to the extent permitted by law, to reasonable
attorneys' fees and legal expenses, and then to the satisfaction of the
Obligations secured by this Agreement. The Company shall not be liable for any
deficiency.
4. MISCELLANEOUS PROVISIONS
4.1. Notwithstanding anything to the contrary contained in this
Agreement, Citicasters will not take any action pursuant to this Agreement or
any of the other Obligations which would constitute (or result in) any
assignment of any licenses issued by the FCC or any transfer of control of the
Company if such assignment of licenses or transfer of control would require,
under then-existing law (including the written rules and regulations
promulgated by the FCC), the prior approval of the FCC, without first obtaining
such approval of the FCC.
4.2. The Company agrees to take (or cause to be taken) any
action which Citicasters may reasonably request in order to obtain and enjoy
the full rights and benefits granted to Citicasters by this Agreement,
including specifically, at the Company's own cost and expense, the Company's
best efforts (i) to assist in obtaining approval of the FCC for any action or
transaction contemplated by this Agreement which is then required by law, and
(ii) without limitation, upon request following the occurrence of a default
under this Agreement or the Obligations, to prepare, sign, and file with the
FCC (or cause to be prepared, signed, and filed with the FCC) any portion of
any application or applications for consent to the assignment of any FCC
licenses or transfer of control required to be signed by the Company and
necessary or appropriate under the FCC's rules and regulations for approval of
any sale or transfer of any of the ownership interests or assets of the Company
or any transfer of control over any FCC licenses.
4.3. MISCELLANEOUS. No delay or omission to exercise any right
shall impair any such right or be a waiver thereof, and a waiver on one
occasion shall be limited to that particular occasion. This Agreement may be
amended only in writing signed by the party against whom enforcement of the
amendment is sought. This Agreement may be executed in counterparts. If any
part of this Agreement is held invalid, the remainder of this Agreement shall
not be affected thereby.
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4.4. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the respective legal representatives, successors and
assigns of the parties hereto; however, the Company may not assign any of its
rights or delegate any of its obligations hereunder. Citicasters (and any
subsequent assignee) may transfer and assign this Agreement or may assign
partial interests or participations in the Obligations to other persons.
4.5. SUBSIDIARIES. If the Company has any Subsidiaries at any
time during the term of this Agreement, the term "Company" in each
representation, warranty and covenant herein shall mean "the Company and each
Subsidiary individually and in the aggregate," and the Company shall cause each
Subsidiary to be in compliance therewith.
4.6. NOTICES. Any notice required, permitted or contemplated
hereunder shall be in writing and addressed to the party to be notified at the
address set forth below or at such other address as each party may designate
for itself from time to time by notice hereunder, and shall be deemed validly
given (i) three (3) days following deposit in the U.S. mails, with proper
postage prepaid, or (ii) the next business day after such notice was delivered
to a regularly-scheduled overnight delivery carrier with delivery fees either
prepaid or an arrangement, satisfactory with such carrier, made for the payment
thereof, or (iii) upon receipt of notice given by telecopy, mailgram, telegram,
telex or personal delivery:
The Company: Regent Broadcasting of San Diego, Inc. and
Regent Licensee of San Diego, Inc.
Attn: Xxxxx Xxxxxx
00 Xxxx XxxxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
With a copy to: Xxxxxxx & Xxxx
Attn: Xxxx X. Xxxxxx, Esq.
2100 PNC Center
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Fax: (000) 000-0000]
Citicasters: Citicasters Co.
Attn: Xxxxx Xxxxxxxx, President
12th Floor
00 Xxxx XxxxxXxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
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With a copy to: Xxxxxxx, Head & Xxxxxxx
Attn: Xxxx X. Xxxxx, Esq.
0000 Xxxxx Xxxxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
4.7. GOVERNING LAW, JURISDICTION. This Agreement will be
governed by the domestic laws of the Commonwealth of Kentucky. The Company
agrees that the state and federal courts in Kenton County, Kentucky have
exclusive jurisdiction over all matters arising out of this Agreement, and that
service of process in any such proceeding shall be effective if mailed to the
Company at its address described in the Notices section of the documents
evidencing the Obligations. CITICASTERS AND THE COMPANY HEREBY WAIVE THE RIGHT
TO TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
IN WITNESS WHEREOF, the Company and Citicasters have executed this
Agreement by their duly authorized officers as of the date first above written.
REGENT BROADCASTING OF
SAN DIEGO, INC.
By: ________________________________
Its: ________________________________
REGENT LICENSEE OF SAN DIEGO, INC.
By: ________________________________
Its: ________________________________
CITICASTERS CO.
By: ________________________________
Its: ________________________________
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SCHEDULE I
to
Security Agreement
SPECIFIC REPRESENTATIONS
1. The exact legal name of Regent Licensee of San Diego, Inc.
("Regent") is:___________________________________________
_________________________________________________________.
2. Regent's federal Employer I.D. number is:_________________.
3. If Regent has changed its name since it was incorporated, its
past legal names were:____________________________________
__________________________________________________________.
4. Regent uses in its business and owns the following trade
names:____________________________________________________.
5. Regent has its chief executive office and principal place of
business at________________________________________________
___________________________________________________________
____________. This office is in________________ County.
Regent maintains all of its records with respect to its
Accounts at that address.
6. Regent also has places of business at:_____________________
___________________________________________________________.
7. No inventory, equipment or fixtures owned by Regent are
located at any other place, nor were they located at any other
place within the past four months, except at_______________.
8. In the past five years Regent has never maintained its chief
executive office or principal place of business or records
with respect to accounts, nor owned personal property, at any
locations except those set forth above and except_____________.
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1. The exact legal name of Regent Broadcasting of San Diego, Inc.
("Broadcasting") is:_____________________________________________
2. Broadcasting's federal Employer I.D. number is:___________________
.
3. If Broadcasting has changed its name since it was incorporated, its
past legal names were:_____________________________________________
___________________________________________________________________
4. Broadcasting uses in its business and owns the following trade names:
___________________________________________________________________
5. Broadcasting has its chief executive office and principal
place of business at_______________________________________________
______________________. This office is in_________________________
County. Broadcasting maintains all of its records with
respect to its Accounts at that address.
6. Broadcasting also has places of business at:_______________________
___________________________________________________________________
7. No inventory, equipment or fixtures owned by Broadcasting are located
at any other place, nor were they located at any other place,
within the past four months, except at_____________________________.
8. In the past five years Broadcasting has never maintained its
chief executive office or principal place of business or records with
respect to accounts, nor owned personal property, at any locations
except those set forth above and except____________________________ .
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