EXHIBIT 10.2
EXECUTION COPY
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GUARANTEE AND COLLATERAL AGREEMENT
dated as of
July 14, 2005
among
CUMULUS MEDIA INC.,
the Subsidiaries of Cumulus Media Inc.
identified herein,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
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Table of Contents
Page
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ARTICLE I
Definitions
SECTION 1.01 Credit Agreement........................................................................... 1
SECTION 1.02 Other Defined Terms........................................................................ 1
ARTICLE II
Guarantee
SECTION 2.01 Guarantee.................................................................................. 5
SECTION 2.02 Guarantee of Payment....................................................................... 5
SECTION 2.03 No Limitations............................................................................. 5
SECTION 2.04 Reinstatement.............................................................................. 6
SECTION 2.05 Agreement To Pay; Subrogation.............................................................. 6
SECTION 2.06 Information................................................................................ 6
SECTION 2.07 Limitation on Guarantees................................................................... 7
ARTICLE III
Pledge of Securities
SECTION 3.01 Pledge..................................................................................... 7
SECTION 3.02 Delivery of the Pledged Collateral......................................................... 7
SECTION 3.03 Representations, Warranties and Covenants.................................................. 8
SECTION 3.04 Certification of Limited Liability Company and Limited Partnership Interests............... 9
SECTION 3.05 Registration in Nominee Name; Denominations................................................ 9
SECTION 3.06 Voting Rights; Dividends and Interest...................................................... 9
ARTICLE IV
Security Interests in Personal Property
SECTION 4.01 Security Interest......................................................................... 11
SECTION 4.02 Representations and Warranties............................................................ 13
SECTION 4.03 Covenants................................................................................. 15
SECTION 4.04 Other Actions............................................................................. 18
SECTION 4.05 Covenants Regarding Patent, Trademark and Copyright Collateral............................ 20
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ARTICLE V
Remedies
SECTION 5.01 Remedies Upon Default..................................................................... 22
SECTION 5.02 Application of Proceeds................................................................... 24
SECTION 5.03 Grant of License to Use Intellectual Property............................................. 25
SECTION 5.04 Securities Act............................................................................ 25
ARTICLE VI
Indemnity, Subrogation and Subordination
SECTION 6.01 Indemnity and Subrogation................................................................. 26
SECTION 6.02 Contribution and Subrogation.............................................................. 26
SECTION 6.03 Subordination............................................................................. 26
ARTICLE VII
Miscellaneous
SECTION 7.01 Notices................................................................................... 27
SECTION 7.02 Security Interest Absolute................................................................ 27
SECTION 7.03 Survival of Agreement..................................................................... 27
SECTION 7.04 Binding Effect; Several Agreement......................................................... 27
SECTION 7.05 Successors and Assigns.................................................................... 28
SECTION 7.06 Administrative Agent's Fees and Expenses; Indemnification................................. 28
SECTION 7.07 Administrative Agent Appointed Attorney-in-Fact........................................... 29
SECTION 7.08 Applicable Law............................................................................ 29
SECTION 7.09 Waivers; Amendment........................................................................ 29
SECTION 7.10 WAIVER OF JURY TRIAL...................................................................... 30
SECTION 7.11 Severability.............................................................................. 30
SECTION 7.12 Counterparts.............................................................................. 30
SECTION 7.13 Headings.................................................................................. 31
SECTION 7.14 Jurisdiction; Consent to Service of Process............................................... 31
SECTION 7.15 Termination or Release.................................................................... 31
SECTION 7.16 Additional Subsidiaries................................................................... 32
SECTION 7.17 Right of Setoff........................................................................... 32
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SCHEDULES:
Schedule I -- Subsidiary Parties
Schedule II -- Capital Stock; Debt Securities
Schedule III -- Intellectual Property
Schedule IV -- Insurance Requirements
EXHIBITS:
Exhibit I -- Form of Supplement
Exhibit II -- Form of Perfection Certificate
GUARANTEE AND COLLATERAL AGREEMENT dated as of July 14,
2005, among CUMULUS MEDIA INC., the Subsidiaries of Cumulus
Media Inc. identified herein and JPMORGAN CHASE BANK, N.A., as
Administrative Agent.
Reference is made to the Credit Agreement dated as of July 14, 2005
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Cumulus Media Inc. (the "Borrower"), the Lenders party
thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. The Lenders have
agreed to extend credit to the Borrower subject to the terms and conditions set
forth in the Credit Agreement. The obligations of the Lenders to extend such
credit are conditioned upon, among other things, the execution and delivery of
this Agreement. The Subsidiary Parties are affiliates of the Borrower, will
derive substantial benefits from the extension of credit to the Borrower
pursuant to the Credit Agreement and are willing to execute and deliver this
Agreement in order to induce the Lenders to extend such credit. Accordingly, the
parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Credit Agreement. (a) Capitalized terms used in this
Agreement and not otherwise defined herein have the meanings specified in the
Credit Agreement. All terms defined in the New York UCC (as defined herein) and
not defined in this Agreement have the meanings specified therein; the term
"instrument" shall have the meaning specified in Article 9 of the New York UCC.
(b) The rules of construction specified in Section 1.03 of the
Credit Agreement also apply to this Agreement.
SECTION 1.02 Other Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"Account Debtor" means any Person who is or who may become obligated
to any Grantor under, with respect to or on account of an Account.
"Article 9 Collateral" has the meaning assigned to such term in
Section 4.01.
"Collateral" means Article 9 Collateral and Pledged Collateral.
"Copyright License" means any written agreement, now or hereafter in
effect, granting any right to any third party under any copyright now or
hereafter owned by any Grantor or that such Grantor otherwise has the right to
license, or granting any
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right to any Grantor under any copyright now or hereafter owned by any third
party, and all rights of such Grantor under any such agreement.
"Copyrights" means all of the following now owned or hereafter
acquired by any Grantor: (a) all copyright rights in any work subject to the
copyright laws of the United States or any other country, whether as author,
assignee, transferee or otherwise, and (b) all registrations and applications
for registration of any such copyright in the United States or any other
country, including registrations, recordings, supplemental registrations and
pending applications for registration in the United States Copyright Office,
including those listed on Schedule III.
"Credit Agreement" has the meaning assigned to such term in the
preliminary statement of this Agreement.
"Federal Securities Laws" has the meaning assigned to such term in
Section 5.04.
"General Intangibles" means all choses in action and causes of
action and all other intangible personal property of any Grantor of every kind
and nature (other than Accounts) now owned or hereafter acquired by any Grantor,
including corporate or other business records, indemnification claims, contract
rights (including rights under leases, whether entered into as lessor or lessee,
Hedging Agreements and other agreements), Intellectual Property, goodwill,
registrations, franchises, tax refund claims and any letter of credit,
guarantee, claim, security interest or other security held by or granted to any
Grantor to secure payment by an Account Debtor of any of the Accounts.
"Grantors" means the Borrower and the Subsidiary Parties.
"Guarantors" means the Subsidiary Parties.
"Intellectual Property" means all intellectual and similar property
of every kind and nature now owned or hereafter acquired by any Grantor,
including inventions, designs, Patents, Copyrights, Licenses, Trademarks, trade
secrets, confidential or proprietary technical and business information,
know-how, show-how or other data or information, software and databases and all
embodiments or fixations thereof and related documentation, registrations and
franchises, and all additions, improvements and accessions to, and books and
records describing or used in connection with, any of the foregoing.
"License" means any Patent License, Trademark License, Copyright
License or other license or sublicense agreement to which any Grantor is a
party, including those listed on Schedule III.
"Loan Document Obligations" means (a) the due and punctual payment
by the Borrower of (i) the principal of and interest (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the Loans, when and as due, whether at maturity, by acceleration,
upon one or more dates set for prepayment
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or otherwise, (ii) each payment required to be made by the Borrower under the
Credit Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement of disbursements, interest thereon and
obligations to provide cash collateral, and (iii) all other monetary obligations
of the Borrower to any of the Secured Parties under the Credit Agreement and
each of the other Loan Documents, including obligations to pay fees, expense and
reimbursement obligations and indemnification obligations, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), (b) the due and punctual performance of all other
obligations of the Borrower under or pursuant to the Credit Agreement and each
of the other Loan Documents, and (c) the due and punctual payment and
performance of all the monetary obligations of each other Loan Party under or
pursuant to this Agreement and each of the other Loan Documents.
"New York UCC" means the Uniform Commercial Code as from time to
time in effect in the State of New York.
"Obligations" means (a) Loan Document Obligations and (b) the due
and punctual payment and performance of all obligations of each Loan Party under
each Hedging Agreement that (i) is in effect on the Effective Date with a
counterparty that is a Lender or an Affiliate of a Lender as of the Effective
Date or (ii) is entered into after the Effective Date with any counterparty that
is a Lender or an Affiliate of a Lender at the time such Hedging Agreement is
entered into.
"Patent License" means any written agreement, now or hereafter in
effect, granting to any third party any right to make, use or sell any invention
on which a patent, now or hereafter owned by any Grantor or that any Grantor
otherwise has the right to license, is in existence, or granting to any Grantor
any right to make, use or sell any invention on which a patent, now or hereafter
owned by any third party, is in existence, and all rights of any Grantor under
any such agreement.
"Patents" means all of the following now owned or hereafter acquired
by any Grantor: (a) all letters patent of the United States or the equivalent
thereof in any other country, all registrations and recordings thereof, and all
applications for letters patent of the United States or the equivalent thereof
in any other country, including registrations, recordings and pending
applications in the United States Patent and Trademark Office or any similar
offices in any other country, including those listed on Schedule III, and (b)
all reissues, continuations, divisions, continuations-in-part, renewals or
extensions thereof, and the inventions disclosed or claimed therein, including
the right to make, use and/or sell the inventions disclosed or claimed therein.
"Perfection Certificate" means a certificate substantially in the
form of Exhibit II, completed and supplemented with the schedules and
attachments contemplated thereby, and duly executed by a Financial Officer and
the chief legal officer of the Borrower.
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"Pledged Collateral" has the meaning assigned to such term in
Section 3.01.
"Pledged Debt Securities" has the meaning assigned to such term in
Section 3.01.
"Pledged Securities" means any promissory notes, stock certificates
or other securities now or hereafter included in the Pledged Collateral,
including all certificates, instruments or other documents representing or
evidencing any Pledged Collateral.
"Pledged Stock" has the meaning assigned to such term in Section
3.01.
"Proceeds" has the meaning specified in Section 9-102 of the New
York UCC.
"Secured Parties" means (a) the Lenders, (b) the Administrative
Agent, (c) the Issuing Bank, (d) each counterparty to any Hedging Agreement with
a Loan Party the obligations under which constitute Obligations, (e) the
beneficiaries of each indemnification obligation undertaken by any Loan Party
under any Loan Document and (f) the successors and assigns of each of the
foregoing.
"Security Interest" has the meaning assigned to such term in Section
4.01.
"Subsidiary Parties" means (a) the Subsidiaries identified on
Schedule I and (b) each other Subsidiary that becomes a party to this Agreement
as contemplated by Section 7.16.
"Trademark License" means any written agreement, now or hereafter in
effect, granting to any third party any right to use any trademark now or
hereafter owned by any Grantor or that any Grantor otherwise has the right to
license, or granting to any Grantor any right to use any trademark now or
hereafter owned by any third party, and all rights of any Grantor under any such
agreement.
"Trademarks" means all of the following now owned or hereafter
acquired by any Grantor: (a) all trademarks, service marks, trade names,
corporate names, company names, business names, fictitious business names, trade
styles, trade dress, logos, other source or business identifiers, designs and
general intangibles of like nature, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all registration and
recording applications filed in connection therewith, including registrations
and registration applications in the United States Patent and Trademark Office
or any similar offices in any State of the United States or any other country or
any political subdivision thereof, and all extensions or renewals thereof,
including those listed on Schedule III, (b) all goodwill associated therewith or
symbolized thereby and (c) all other assets, rights and interests that uniquely
reflect or embody such goodwill.
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ARTICLE II
Guarantee
SECTION 2.01 Guarantee. Each Guarantor unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not
merely as a surety, the due and punctual payment and performance of the
Obligations. Each Guarantor further agrees that the Obligations may be extended
or renewed, in whole or in part, without notice to or further assent from it,
and that it will remain bound upon its guarantee notwithstanding any extension
or renewal of any Obligation. Each of the Guarantors waives presentment to,
demand of payment from and protest to the Borrower or any other Loan Party of
any of the Obligations, and also waives notice of acceptance of its guarantee
and notice of protest for nonpayment.
SECTION 2.02 Guarantee of Payment. Each of the Guarantors further
agrees that its guarantee hereunder constitutes a guarantee of payment when due
and not of collection, and waives any right to require that any resort be had by
the Administrative Agent or any other Secured Party to any security held for the
payment of the Obligations or to any balance of any deposit account or credit on
the books of the Administrative Agent or any other Secured Party in favor of the
Borrower or any other Person.
SECTION 2.03 No Limitations (a) Except for termination of a
Guarantor's obligations hereunder as expressly provided in Section 7.15, the
obligations of each Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject
to any defense or set-off, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of
each Guarantor hereunder shall not be discharged or impaired or otherwise
affected by (i) the failure of the Administrative Agent or any other Secured
Party to assert any claim or demand or to enforce any right or remedy under the
provisions of any Loan Document or otherwise; (ii) any rescission, waiver,
amendment or modification of, or any release from any of the terms or provisions
of, any Loan Document or any other agreement, including with respect to any
other Guarantor under this Agreement; (in each case, except to the extent
expressly provided for in any such rescission, waiver, amendment or
modification); (iii) the release of any security held by the Administrative
Agent or any other Secured Party for the Obligations or any of them; (iv) any
default, failure or delay, wilful or otherwise, in the performance of the
Obligations; or (v) any other act or omission that may or might in any manner or
to any extent vary the risk of any Guarantor or otherwise operate as a discharge
of any Guarantor as a matter of law or equity (other than to the extent of any
payment in full in cash of all of the Obligations). Each Guarantor expressly
authorizes the Secured Parties to take and hold security for the payment and
performance of the Obligations, to exchange, waive or release any or all such
security (with or without consideration), to enforce or apply such security and
direct the order and manner of any sale thereof in their sole discretion or to
release or substitute any one or more other guarantors or obligors
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upon or in respect of the Obligations, all without affecting the obligations of
any Guarantor hereunder.
(b) To the fullest extent permitted by applicable law, each
Guarantor waives any defense based on or arising out of any defense of the
Borrower or any other Loan Party or the unenforceability of the Obligations or
any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower or any other Loan Party, other than to the extent of
any payment in full in cash of all the Obligations. The Administrative Agent and
the other Secured Parties may, at their election, foreclose on any security held
by one or more of them by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure, compromise or adjust any
part of the Obligations, make any other accommodation with the Borrower or any
other Loan Party or exercise any other right or remedy available to them against
the Borrower or any other Loan Party, without affecting or impairing in any way
the liability of any Guarantor hereunder except to the extent the Obligations
have been paid in full in cash. To the fullest extent permitted by applicable
law, each Guarantor waives any defense arising out of any such election even
though such election would otherwise operate, pursuant to applicable law, to
impair or to extinguish any right of reimbursement or subrogation or other right
or remedy of such Guarantor against the Borrower or any other Loan Party, as the
case may be, or any security.
SECTION 2.04 Reinstatement. Each of the Guarantors agrees that its
guarantee hereunder shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by the Administrative Agent or any other
Secured Party upon the bankruptcy or reorganization of the Borrower, any other
Loan Party or otherwise.
SECTION 2.05 Agreement To Pay; Subrogation. In furtherance of the
foregoing and not in limitation of any other right that the Administrative Agent
or any other Secured Party has at law or in equity against any Guarantor by
virtue hereof, upon the failure of the Borrower or any other Loan Party to pay
any Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the Administrative
Agent for distribution to the applicable Secured Parties in cash the amount of
such unpaid Obligation. Upon payment by any Guarantor of any sums to the
Administrative Agent as provided above, all rights of such Guarantor against the
Borrower or any other Guarantor arising as a result thereof by way of right of
subrogation, contribution, reimbursement, indemnity or otherwise shall in all
respects be subject to Article VI.
SECTION 2.06 Information. Each Guarantor assumes all responsibility
for being and keeping itself informed of the Borrower's and each other Loan
Party's financial condition and assets, and of all other circumstances bearing
upon the risk of nonpayment of the Obligations and the nature, scope and extent
of the risks that such Guarantor assumes and incurs hereunder, and agrees that
none of the Administrative Agent or the other Secured Parties will have any duty
to advise such Guarantor of information known to it or any of them regarding
such circumstances or risks.
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SECTION 2.07 Limitation on Guarantees. All waivers and agreements
under this Article II are made by each Guarantor in its capacity as a guarantor
of the Obligations, and do not apply to any rights any Guarantor may hold
directly by virtue of its status as a Borrower or as a Grantor, subject to any
waivers or agreements given in its capacity as a Borrower or Grantor, as
applicable.
ARTICLE III
Pledge of Securities
SECTION 3.01 Pledge. As security for the payment or performance, as
the case may be, in full of the Obligations, each Grantor hereby assigns and
pledges to the Administrative Agent, its successors and assigns, for the ratable
benefit of the Secured Parties, and hereby grants to the Administrative Agent,
its successors and assigns, for the benefit of the Secured Parties, a security
interest in, all of such Grantor's right, title and interest in, to and under
(a) the shares of capital stock and other Equity Interests owned by it and
listed on Schedule II and any other Equity Interests of any Subsidiary obtained
in the future by such Grantor and the certificates representing all such Equity
Interests (the "Pledged Stock"); provided that the Pledged Stock shall not
include more than 65% of the issued and outstanding voting Equity Interests of
any Foreign Subsidiary; (b)(i) the debt securities listed opposite the name of
such Grantor on Schedule II, (ii) any debt securities in the future issued to
such Grantor by the Borrower or any Subsidiary and (iii) the promissory notes
and any other instruments, if any, evidencing such debt securities (the "Pledged
Debt Securities"); (c) all other property that may be delivered to and held by
the Administrative Agent pursuant to the terms of this Section 3.01; (d) subject
to Section 3.06, all payments of principal or interest, dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of, in exchange for or upon the conversion of,
and all other Proceeds received in respect of, the securities referred to in
clauses (a) and (b) above; (e) subject to Section 3.06, all rights and
privileges of such Grantor with respect to the securities and other property
referred to in clauses (a), (b), (c) and (d) above; and (f) all Proceeds of any
of the foregoing (the items referred to in clauses (a) through (f) above being
collectively referred to as the "Pledged Collateral").
TO HAVE AND TO HOLD the Pledged Collateral, together with all right,
title, interest, powers, privileges and preferences pertaining or incidental
thereto, unto the Administrative Agent, its successors and assigns, for the
ratable benefit of the Secured Parties, forever; subject, however, to the terms,
covenants and conditions hereinafter set forth.
SECTION 3.02 Delivery of the Pledged Collateral. (a) Each Grantor
agrees promptly to deliver or cause to be delivered to the Administrative Agent
any and all Pledged Securities.
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(b) Upon delivery to the Administrative Agent, (i) any Pledged
Securities shall be accompanied by stock powers duly executed in blank or other
instruments of transfer satisfactory to the Administrative Agent and by such
other instruments and documents as the Administrative Agent may reasonably
request and (ii) all other property comprising part of the Pledged Collateral
shall be accompanied by proper instruments of assignment duly executed by the
applicable Grantor and such other instruments or documents as the Administrative
Agent may reasonably request. Each delivery of Pledged Securities shall be
accompanied by a schedule describing the securities, which schedule shall be
attached hereto as a supplement to Schedule II and made a part hereof; provided
that failure to attach any such schedule hereto shall not affect the validity of
such pledge of such Pledged Securities. Each schedule so delivered shall
supplement any prior schedules so delivered.
SECTION 3.03 Representations, Warranties and Covenants. The Grantors
jointly and severally represent, warrant and covenant to and with the
Administrative Agent, for the ratable benefit of the Secured Parties, that:
(a) Schedule II correctly sets forth the percentage of the issued
and outstanding shares of each class of the Equity Interests of the issuer
thereof represented by such Pledged Stock and includes all Equity
Interests, debt securities and promissory notes required to be pledged
hereunder in order to satisfy the Collateral and Guarantee Requirement;
(b) the Pledged Stock and Pledged Debt Securities have been duly and
validly authorized and issued by the issuers thereof and (i) in the case
of Pledged Stock, are fully paid and nonassessable and (ii) in the case of
Pledged Debt Securities, are legal, valid and binding obligations of the
issuers thereof;
(c) except for the security interests granted hereunder, each of the
Grantors (i) is and, subject to any transfers made in compliance with the
Credit Agreement, will continue to be the direct owner, beneficially and
of record, of the Pledged Securities indicated on Schedule II as owned by
such Grantor, (ii) holds the same free and clear of all Liens, other than
Liens created by this Agreement, Permitted Encumbrances and transfers made
in compliance with the Credit Agreement, (iii) will make no assignment,
pledge, hypothecation or transfer of, or create or permit to exist any
security interest in or other Lien on, the Pledged Collateral, other than
Liens created by this Agreement, Permitted Encumbrances and transfers made
in compliance with the Credit Agreement, and (iv) will defend its title or
interest hereto or therein against any and all Liens (other than the Liens
created by this Agreement and Permitted Encumbrances) however arising, of
all Persons;
(d) except for restrictions and limitations imposed by (i) the Loan
Documents or securities laws generally and (ii) Liens permitted by the
Credit Agreement, the Pledged Collateral is and will continue to be freely
transferable and assignable, and none of the Pledged Collateral is or will
be subject to any option, right of first refusal, shareholders agreement,
charter or by-law provisions
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or contractual restriction of any nature that might prohibit, impair,
delay or otherwise affect the pledge of such Pledged Collateral hereunder,
the sale or disposition thereof pursuant hereto or the exercise by the
Administrative Agent of rights and remedies hereunder;
(e) each of the Grantors has the power and authority to pledge the
Pledged Collateral pledged by it hereunder in the manner hereby done or
contemplated;
(f) no consent or approval of any Governmental Authority, any
securities exchange or any other Person was or is necessary to the
validity of the pledge effected hereby (other than such as have been
obtained and are in full force and effect);
(g) by virtue of the execution and delivery by the Grantors of this
Agreement, when any Pledged Securities are delivered to the Administrative
Agent in accordance with this Agreement, the Administrative Agent will
obtain a legal, valid and perfected first priority lien upon and security
interest in such Pledged Securities as security for the payment and
performance of the Obligations; and
(h) the pledge effected hereby is effective to vest in the
Administrative Agent, for the ratable benefit of the Secured Parties, the
rights of the Administrative Agent in the Pledged Collateral as set forth
herein.
SECTION 3.04 Certification of Limited Liability Company and Limited
Partnership Interests. Each interest in any limited liability company or limited
partnership controlled by any Grantor and pledged hereunder shall be represented
by a certificate, shall be a "security" within the meaning of Article 8 of the
New York UCC and shall be governed by Article 8 of the New York UCC.
SECTION 3.05 Registration in Nominee Name; Denominations. The
Administrative Agent, on behalf of the Secured Parties, shall have the right (in
its sole and absolute discretion) to hold the Pledged Securities in its own name
as pledgee, the name of its nominee (as pledgee or as sub-agent) or the name of
the applicable Grantor, endorsed or assigned in blank or in favor of the
Administrative Agent. Each Grantor will promptly give to the Administrative
Agent copies of any notices or other communications received by it with respect
to Pledged Securities registered in the name of such Grantor. The Administrative
Agent shall at all times have the right to exchange the certificates
representing Pledged Securities for certificates of smaller or larger
denominations for any purpose consistent with this Agreement.
SECTION 3.06 Voting Rights; Dividends and Interest (a) Unless and
until an Event of Default shall have occurred and be continuing and the
Administrative Agent shall have notified the Grantors that their rights under
this Section are being suspended:
(i) Each Grantor shall be entitled to exercise any and all voting
and/or other consensual rights and powers inuring to an owner of Pledged
Securities or
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any part thereof for any purpose consistent with the terms of this
Agreement, the Credit Agreement and the other Loan Documents; provided
that such rights and powers shall not be exercised in any manner that
could materially and adversely affect the rights inuring to a holder of
any Pledged Securities or the rights and remedies of any of the
Administrative Agent or the other Secured Parties under this Agreement or
the Credit Agreement or any other Loan Document or the ability of the
Secured Parties to exercise the same.
(ii) The Administrative Agent shall execute and deliver to each
Grantor, or cause to be executed and delivered to such Grantor, all such
proxies, powers of attorney and other instruments as such Grantor may
reasonably request for the purpose of enabling such Grantor to exercise
the voting and/or consensual rights and powers it is entitled to exercise
pursuant to subparagraph (i) above.
(iii) Each Grantor shall be entitled to receive and retain any and
all dividends, interest, principal and other distributions paid on or
distributed in respect of the Pledged Securities to the extent and only to
the extent that such dividends, interest, principal and other
distributions are permitted by, and otherwise paid or distributed in
accordance with, the terms and conditions of the Credit Agreement, the
other Loan Documents and applicable laws; provided that -------- any
noncash dividends, interest, principal or other distributions that would
constitute Pledged Stock or Pledged Debt Securities, whether resulting
from a subdivision, combination or reclassification of the outstanding
Equity Interests of the issuer of any Pledged Securities or received in
exchange for Pledged Securities or any part thereof, or in redemption
thereof, or as a result of any merger, consolidation, acquisition or other
exchange of assets to which such issuer may be a party or otherwise, shall
be and become part of the Pledged Collateral, and, if received by any
Grantor, shall not be commingled by such Grantor with any of its other
funds or property but shall be held separate and apart therefrom, shall be
held in trust for the benefit of the Administrative Agent and shall be
forthwith delivered to the Administrative Agent in the same form as so
received (with any necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of
Default, after the Administrative Agent shall have notified the Grantors of the
suspension of their rights under paragraph (a)(iii) of this Section 3.06, all
rights of any Grantor to dividends, interest, principal or other distributions
that such Grantor is authorized to receive pursuant to paragraph (a)(iii) of
this Section 3.06 shall cease, and all such rights shall thereupon become vested
in the Administrative Agent, which shall have the sole and exclusive right and
authority to receive and retain such dividends, interest, principal or other
distributions. All dividends, interest, principal or other distributions
received by any Grantor contrary to the provisions of this Section 3.06 shall be
held in trust for the benefit of the Administrative Agent, shall be segregated
from other property or funds of such Grantor and shall be forthwith delivered to
the Administrative Agent upon demand in the same form as so received (with any
necessary endorsement). Any and all money and other property paid over to or
received by the Administrative Agent pursuant to the provisions of this
paragraph (b) shall be retained by the Administrative Agent in an
11
account to be established by the Administrative Agent upon receipt of such money
or other property and shall be applied in accordance with the provisions of
Section 5.02. After all Events of Default have been cured or waived and the
applicable Grantor or Grantors have delivered to the Administrative Agent
certificates to that effect, the Administrative Agent shall repay to each
Grantor (without interest) all dividends, interest, principal or other
distributions that such Grantor would otherwise be permitted to retain pursuant
to the terms of paragraph (a)(iii) of this Section 3.06 and that remain in such
account.
(c) Upon the occurrence and during the continuance of an Event of
Default, after the Administrative Agent shall have notified the Grantors of the
suspension of their rights under paragraph (a)(i) of this Section 3.06, then all
rights of any Grantor to exercise the voting and consensual rights and powers it
is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.06, and
the obligations of the Administrative Agent under paragraph (a)(ii) of this
Section 3.06, shall cease, and all such rights shall thereupon become vested in
the Administrative Agent, which shall have the sole and exclusive right and
authority to exercise such voting and consensual rights and powers; provided
that, unless otherwise directed by the Required Lenders, the Administrative
Agent shall have the right from time to time following and during the
continuance of an Event of Default to permit the Grantors to exercise such
rights.
(d) Any notice given by the Administrative Agent to the Grantors
suspending their rights under paragraph (a) of this Section 3.06 (i) may be
given by telephone if promptly confirmed in writing, (ii) may be given to one or
more of the Grantors at the same or different times and (iii) may suspend the
rights of the Grantors under paragraph (a)(i) or paragraph (a)(iii) in part
without suspending all such rights (as specified by the Administrative Agent in
its sole and absolute discretion) and without waiving or otherwise affecting the
Administrative Agent's rights to give additional notices from time to time
suspending other rights so long as an Event of Default has occurred and is
continuing.
ARTICLE IV
Security Interests in Personal Property
SECTION 4.01 Security Interest. (a) As security for the payment or
performance, as the case may be, in full of the Obligations, each Grantor hereby
pledges and grants to the Administrative Agent, its successors and assigns, for
the ratable benefit of the Secured Parties, and hereby grants to the
Administrative Agent, its successors and assigns, for the ratable benefit of the
Secured Parties, a security interest (the "Security Interest") in all right,
title or interest in or to any and all of the following assets and properties
now owned or at any time hereafter acquired by such Grantor or in which such
Grantor now has or at any time in the future may acquire any right, title or
interest (collectively, the "Article 9 Collateral"):
12
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) all Fixtures;
(xi) Letter-of-credit rights;
(xii) all books and records pertaining to the Article 9 Collateral;
and
(xiii) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing and all collateral security and
guarantees given by any Person with respect to any of the foregoing.
Notwithstanding the foregoing, the term "Article 9 Collateral" shall not include
any Investment Property consisting of issued and outstanding voting Equity
Interests of any Foreign Subsidiary to the extent exceeding 65% of such voting
Equity Interests of such Foreign Subsidiary.
(b) Each Grantor hereby irrevocably authorizes the Administrative
Agent at any time and from time to time to file in any relevant jurisdiction any
initial financing statements (including fixture filings) with respect to the
Article 9 Collateral or any part thereof and amendments thereto (i) indicate the
Collateral as all assets of such Grantor or words of similar effect as being of
an equal or lesser scope or with greater detail, and (ii) contain the
information required by Article 9 of the Uniform Commercial Code of each
applicable jurisdiction for the filing of any financing statement or amendment,
including (a) whether such Grantor is an organization, the type of organization
and any organizational identification number issued to such Grantor and (b) in
the case of a financing statement filed as a fixture filing or covering Article
9 Collateral constituting minerals or the like to be extracted or timber to be
cut, a sufficient description of the real property to which such Article 9
Collateral relates. Each Grantor agrees to provide such information to the
Administrative Agent promptly upon request.
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Each Grantor also ratifies its authorization for the Administrative
Agent to file in any relevant jurisdiction any initial financing statements or
amendments thereto if filed prior to the date hereof.
The Administrative Agent is further authorized to file with the
United States Patent and Trademark Office or United States Copyright Office (or
any successor office or any similar office in any other country) such documents
as may be necessary or advisable for the purpose of perfecting, confirming,
continuing, enforcing or protecting the Security Interest granted by each
Grantor, without the signature of any Grantor, and naming any Grantor or the
Grantors as debtors and the Administrative Agent as secured party.
(c) The Security Interest is granted as security only and shall not
subject the Administrative Agent or any other Secured Party to, or in any way
alter or modify, any obligation or liability of any Grantor with respect to or
arising out of the Article 9 Collateral.
SECTION 4.02 Representations and Warranties. The Grantors jointly
and severally represent and warrant to the Administrative Agent and the Secured
Parties that:
(a) Each Grantor has good and valid rights in and title to the
Article 9 Collateral with respect to which it has purported to grant a
Security Interest hereunder and has full power and authority to grant to
the Administrative Agent the Security Interest in such Article 9
Collateral pursuant hereto and to execute, deliver and perform its
obligations in accordance with the terms of this Agreement, without the
consent or approval of any other Person other than any consent or approval
that has been obtained.
(b) The Perfection Certificate has been duly prepared, completed and
executed and the information set forth therein, including the exact legal
name of each Grantor, is correct and complete as of the Effective Date.
The Uniform Commercial Code financing statements (including fixture
filings, as applicable) or other appropriate filings, recordings or
registrations prepared by the Administrative Agent based upon the
information provided to the Administrative Agent in the Perfection
Certificate for filing in each governmental, municipal or other office
specified in [Schedule 5] to the Perfection Certificate (or specified by
notice from the Borrower to the Administrative Agent after the Effective
Date in the case of filings, recordings or registrations required by
Section 5.03(a) or 5.12 of the Credit Agreement), which are all the
filings, recordings and registrations (other than filings required to be
made in the United States Patent and Trademark Office and the United
States Copyright Office in order to perfect the Security Interest in
Article ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Patents, Trademarks and
Copyrights) that are necessary to publish notice of and protect the
validity of and to establish a legal, valid and perfected security
interest in favor of the Administrative Agent (for the benefit of the
Secured Parties) in respect of all Article 9 Collateral in which the
Security Interest may be perfected by filing,
14
recording or registration in the United States (or any political
subdivision thereof) and its territories and possessions, and no further
or subsequent filing, refiling, recording, rerecording, registration or
reregistration is necessary in any such jurisdiction, except as provided
under applicable law with respect to the filing of continuation
statements. Each Grantor represents and warrants that a fully executed
agreement in the form hereof and containing a description of all Article 9
Collateral consisting of Intellectual Property with respect to United
States Patents and United States registered Trademarks (and Trademarks for
which United States registration applications are pending) and United
States registered Copyrights has been delivered to the Administrative
Agent for recording by the United States Patent and Trademark Office and
the United States Copyright Office pursuant to 35 U.S.C. Section 261, 15
U.S.C. Section 1060 or 17 U.S.C. Section 205 and the regulations
thereunder, as applicable, to protect the validity of and to establish a
legal, valid and perfected security interest in favor of the
Administrative Agent (for the benefit of the Secured Parties) in respect
of all Article 9 Collateral consisting of Patents, Trademarks and
Copyrights in which a security interest may be perfected by filing,
recording or registration in the United States (or any political
subdivision thereof) and its territories and possessions, and no further
or subsequent filing, refiling, recording, rerecording, registration or
reregistration is necessary (other than such actions as are necessary to
perfect the Security Interest with respect to any Article 9 Collateral
consisting of Patents, Trademarks and Copyrights (or registration or
application for registration thereof) acquired or developed after the date
hereof).
(c) The Security Interest constitutes (i) a legal and valid security
interest in all the Article 9 Collateral securing the payment and
performance of the Obligations, (ii) subject to the filings described in
Section 4.02(b), a perfected security interest in all Article 9 Collateral
in which a security interest may be perfected by filing, recording or
registering a financing statement or analogous document in the United
States (or any political subdivision thereof) and its territories and
possessions pursuant to the Uniform Commercial Code and (iii) a security
interest that shall be perfected in all Article 9 Collateral in which a
security interest may be perfected upon the receipt and recording of this
Agreement with the United States Patent and Trademark Office and the
United States Copyright Office, as applicable. The Security Interest is
and shall be prior to any other Lien on any of the Article 9 Collateral,
other than Permitted Encumbrances that have priority as a matter of law
and Liens expressly permitted to be prior to the Security Interest
pursuant to clause (c), (d) or (e) of Section 6.02 of the Credit
Agreement, as applicable.
(d) The Article 9 Collateral is owned by the Grantors free and clear
of any Lien, other than Permitted Encumbrances and Liens expressly
permitted pursuant to clause (c), (d) or (e) of Section 6.02 of the Credit
Agreement. None of the Grantors has filed or consented to the filing of
(i) any financing statement or analogous document under the Uniform
Commercial Code or any other applicable laws covering any Article 9
Collateral, (ii) any assignment in which any Grantor assigns any
Collateral or any security agreement or similar instrument covering
15
any Article 9 Collateral with the United States Patent and Trademark
Office or the United States Copyright Office or (iii) any assignment in
which any Grantor assigns any Article 9 Collateral or any security
agreement or similar instrument covering any Article 9 Collateral with any
foreign governmental, municipal or other office, which financing statement
or analogous document, assignment, security agreement or similar
instrument is still in effect, except, in each case, for Permitted
Encumbrances and Liens expressly permitted pursuant to clause (c), (d) or
(e) of Section 6.02 of the Credit Agreement. None of the Grantors hold any
commercial tort claim as of the Effective Date except as indicated on the
Perfection Certificate.
SECTION 4.03 Covenants. (a) Each Grantor agrees to maintain, at its
own cost and expense, such complete and accurate records with respect to the
Article 9 Collateral owned by it as is consistent with its current practices and
in accordance with such prudent and standard practices used in industries that
are the same as or similar to those in which such Grantor is engaged, but in any
event to include complete accounting records indicating all payments and
proceeds received with respect to any part of the Article 9 Collateral, and, at
such time or times as the Administrative Agent may reasonably request, promptly
to prepare and deliver to the Administrative Agent a duly certified schedule or
schedules in form and detail satisfactory to the Administrative Agent showing
the identity, amount and location of any and all Article 9 Collateral.
(b) Each Grantor shall, at its own expense, take any and all actions
necessary to defend title to the Article 9 Collateral against all Persons and to
defend the Security Interest of the Administrative Agent in the Article 9
Collateral and the priority thereof against any Lien not expressly permitted
pursuant to clause (c), (d) or (e) of Section 6.02 of the Credit Agreement.
(c) Each Grantor agrees, at its own expense, to execute,
acknowledge, deliver and cause to be duly filed all such further instruments and
documents and take all such actions as the Administrative Agent may from time to
time request to better assure, preserve, protect and perfect the Security
Interest and the rights and remedies created hereby, including the payment of
any fees and taxes required in connection with the execution and delivery of
this Agreement, the granting of the Security Interest and the filing of any
financing statements (including fixture filings) or other documents in
connection herewith or therewith. If any amount payable under or in connection
with any of the Article 9 Collateral shall be or become evidenced by any
promissory note or other instrument, such note or instrument shall be
immediately pledged and delivered to the Administrative Agent, duly endorsed in
a manner satisfactory to the Administrative Agent.
Without limiting the generality of the foregoing, each Grantor
hereby authorizes the Administrative Agent, with prompt notice thereof to the
Grantors, to supplement this Agreement by supplementing Schedule III or adding
additional schedules hereto to specifically identify any asset or item that
constitutes Copyrights, Licenses, Patents or Trademarks; provided that any
Grantor shall have the right, exercisable within 10 days after it has been
notified by the Administrative Agent of the specific
16
identification of such Collateral, to advise the Administrative Agent in writing
of any inaccuracy of the representations and warranties made by such Grantor
hereunder with respect to such Collateral. Each Grantor agrees that it will use
its commercially reasonable best efforts to take such action as shall be
necessary in order that all representations and warranties hereunder shall be
true and correct with respect to such Article 9 Collateral within 30 days after
the date it has been notified by the Administrative Agent of the specific
identification of such Article 9 Collateral.
(d) The Administrative Agent and such Persons as the Administrative
Agent may reasonably designate shall have the right, at the Grantors' own cost
and expense, to inspect the Article 9 Collateral, all records related thereto
(and to make extracts and copies from such records) and the premises upon which
any of the Article 9 Collateral is located, to discuss the Grantors' affairs
with the officers of the Grantors and their independent accountants and to
verify under reasonable procedures, in accordance with Section 5.03 of the
Credit Agreement, the validity, amount, quality, quantity, value, condition and
status of, or any other matter relating to, the Article 9 Collateral, including,
in the case of Accounts or Article 9 Collateral in the possession of any third
person and to the extent that a Default or Event of Default has occurred and is
continuing, by contacting Account Debtors or the third person possessing such
Article 9 Collateral for the purpose of making such a verification. The
Administrative Agent shall have the absolute right to share any information it
gains from such inspection or verification with any Secured Party.
(e) At its option, the Administrative Agent may discharge past due
taxes, assessments, charges, fees, Liens, security interests or other
encumbrances at any time levied or placed on the Collateral and not permitted
pursuant to Section 6.02 of the Credit Agreement, and may pay for the
maintenance and preservation of the Article 9 Collateral to the extent any
Grantor fails to do so as required by the Credit Agreement or this Agreement,
and each Grantor jointly and severally agrees to reimburse the Administrative
Agent promptly on demand for any payment made or any expense incurred by the
Administrative Agent pursuant to the foregoing authorization; provided, however,
that nothing in this paragraph shall be interpreted as excusing any Grantor from
the performance of, or imposing any obligation on the Administrative Agent or
any Secured Party to cure or perform, any covenants or other promises of any
Grantor with respect to taxes, assessments, charges, fees, Liens, security
interests or other encumbrances and maintenance as set forth herein or in the
other Loan Documents.
(f) If at any time any Grantor shall take a security interest in any
property of an Account Debtor or any other Person to secure payment and
performance of an Account, such Grantor shall promptly assign such security
interest to the Administrative Agent. Such assignment need not be filed of
public record unless necessary to continue the perfected status of the security
interest against creditors of and transferees from the Account Debtor or other
Person granting the security interest.
(g) Each Grantor shall remain liable to observe and perform all the
conditions and obligations to be observed and performed by it under each
contract, agreement or instrument relating to the Article 9 Collateral, all in
accordance with the
17
terms and conditions thereof, and each Grantor jointly and severally agrees to
indemnify and hold harmless the Administrative Agent and the Secured Parties
from and against any and all liability for such performance.
(h) None of the Grantors shall make or permit to be made an
assignment, pledge or hypothecation of the Article 9 Collateral or shall grant
any other Lien in respect of the Article 9 Collateral, except as permitted by
the Credit Agreement. None of the Grantors shall make or permit to be made any
transfer of the Article 9 Collateral and each Grantor shall remain at all times
in possession of the Article 9 Collateral owned by it, except that (i) Inventory
may be sold in the ordinary course of business or as otherwise permitted by the
Credit Agreement and (ii) unless and until the Administrative Agent shall notify
the Grantors that an Event of Default shall have occurred and be continuing and
that during the continuance thereof the Grantors shall not sell, convey, lease,
assign, transfer or otherwise dispose of any Article 9 Collateral (which notice
may be given by telephone if promptly confirmed in writing), the Grantors may
use and dispose of the Article 9 Collateral in any lawful manner not
inconsistent with the provisions of this Agreement, the Credit Agreement or any
other Loan Document. Without limiting the generality of the foregoing, each
Grantor agrees that it shall not permit any Inventory to be in the possession or
control of any warehouseman, bailee, agent or processor at any time unless such
warehouseman, bailee, agent or processor shall have been notified of the
Security Interest and shall have acknowledged in writing, in form and substance
satisfactory to the Administrative Agent, that such bailee or processor holds
the Inventory for the benefit of the Administrative Agent subject to the
Security Interest and shall act upon the instructions of the Administrative
Agent without further consent from the Grantor, and that such warehouseman,
bailee, agent or processor further agrees to waive and release any Lien held by
it with respect to such Inventory, whether arising by operation of law or
otherwise.
(i) None of the Grantors will, without the Administrative Agent's
prior written consent, grant any extension of the time of payment of any
Accounts included in the Article 9 Collateral, compromise, compound or settle
the same for less than the full amount thereof, release, wholly or partly, any
Person liable for the payment thereof or allow any credit or discount whatsoever
thereon, other than extensions, credits, discounts, compromises or settlements
granted or made in the ordinary course of business and consistent with its
current practices and in accordance with such prudent and standard practice used
in industries that are the same as or similar to those in which such Grantor is
engaged.
(j) The Grantors, at their own expense, shall maintain or cause to
be maintained insurance covering physical loss or damage to the Inventory and
Equipment in accordance with the requirements set forth in Schedule IV hereto
and Section 5.07 of the Credit Agreement. Each Grantor irrevocably makes,
constitutes and appoints the Administrative Agent (and all officers, employees
or agents designated by the Administrative Agent) as such Grantor's true and
lawful agent (and attorney-in-fact) for the purpose, during the continuance of
an Event of Default, of making, settling and adjusting claims in respect of
Article 9 Collateral under policies of insurance, endorsing the name of such
Grantor on any check, draft, instrument or other item of payment for the
18
proceeds of such policies of insurance and for making all determinations and
decisions with respect thereto. In the event that any Grantor at any time or
times shall fail to obtain or maintain any of the policies of insurance required
hereby or to pay any premium in whole or part relating thereto, the
Administrative Agent may, without waiving or releasing any obligation or
liability of the Grantors hereunder or any Event of Default, in its sole
discretion, obtain and maintain such policies of insurance and pay such premium
and take any other actions with respect thereto as the Administrative Agent
deems advisable. All sums disbursed by the Administrative Agent in connection
with this paragraph, including reasonable attorneys' fees, court costs, expenses
and other charges relating thereto, shall be payable, upon demand, by the
Grantors to the Administrative Agent and shall be additional Obligations secured
hereby.
(k) Each Grantor shall maintain, in form and manner reasonably
satisfactory to the Administrative Agent, records of its Chattel Paper and its
books, records and documents evidencing or pertaining thereto.
SECTION 4.04 Other Actions. In order to further insure the
attachment, perfection and priority of, and the ability of the Administrative
Agent to enforce, the Security Interest, each Grantor agrees, in each case at
such Grantor's own expense, to take the following actions with respect to the
following Article 9 Collateral:
(a) Instruments. If any Grantor shall at any time hold or acquire
any Instruments, such Grantor shall forthwith endorse, assign and deliver
the same to the Administrative Agent, accompanied by such instruments of
transfer or assignment duly executed in blank as the Administrative Agent
may from time to time reasonably request.
(b) Deposit Accounts. For each deposit account that any Grantor at
any time opens or maintains, such Grantor shall either (i) cause the
depositary bank to agree to comply at any time with instructions from the
Administrative Agent to such depositary bank directing the disposition of
funds from time to time credited to such deposit account, without further
consent of such Grantor or any other Person, pursuant to an agreement in a
form satisfactory to the Administrative Agent, or (ii) arrange for the
Administrative Agent to become the customer of the depositary bank with
respect to the deposit account, with the Grantor being permitted, only
with the consent of the Administrative Agent, to exercise rights to
withdraw funds from such deposit account; provided that, with respect to
any such account existing on the date hereof, -------- the agreement
required by clause (i) of this paragraph (b) shall be entered into no
later than 60 days after the date hereof. The Administrative Agent agrees
with each Grantor that the Administrative Agent shall not give any such
instructions or withhold any withdrawal rights from any Grantor, unless an
Event of Default has occurred and is continuing, or, after giving effect
to any withdrawal, would occur. The provisions of this paragraph shall not
apply to (A) any deposit account for which any Grantor, the depositary
bank and the Administrative Agent have entered into a cash collateral
agreement specially negotiated among such Grantor, the depositary bank and
the Administrative Agent for the specific purpose set forth therein, (B)
deposit
19
accounts for which the Administrative Agent is the depositary and (C) any
deposit account the aggregate value of which is less than $5,000,000.
(c) Investment Property. Except to the extent otherwise provided in
Article III, if any Grantor shall at any time hold or acquire any
certificated securities, such Grantor shall forthwith endorse, assign and
deliver the same to the Administrative Agent, accompanied by such
instruments of transfer or assignment duly executed in blank as the
Administrative Agent may from time to time specify. If any securities now
or hereafter acquired by any Grantor are uncertificated and are issued to
such Grantor or its nominee directly by the issuer thereof, such Grantor
shall immediately notify the Administrative Agent thereof and, at the
Administrative Agent's request and option, pursuant to an agreement in
form and substance reasonably satisfactory to the Administrative Agent,
either (i) cause the issuer to agree to comply with instructions from the
Administrative Agent as to such securities, without further consent of any
Grantor or such nominee, or (ii) arrange for the Administrative Agent to
become the registered owner of the securities. If any securities, whether
certificated or uncertificated, or other investment property now or
hereafter acquired by any Grantor are held by such Grantor or its nominee
through a securities intermediary or commodity intermediary, such Grantor
shall immediately notify the Administrative Agent thereof and, at the
Administrative Agent's request and option, pursuant to an agreement in
form and substance reasonably satisfactory to the Administrative Agent,
either (i) cause such securities intermediary or (as the case may be)
commodity intermediary to agree to comply with entitlement orders or other
instructions from the Administrative Agent to such securities intermediary
as to such security entitlements, or (as the case may be) to apply any
value distributed on account of any commodity contract as directed by the
Administrative Agent to such commodity intermediary, in each case without
further consent of any Grantor or such nominee, or (ii) in the case of
Financial Assets or other Investment Property held through a securities
intermediary, arrange for the Administrative Agent to become the
entitlement holder with respect to such investment property, with the
Grantor being permitted, only with the consent of the Administrative
Agent, to exercise rights to withdraw or otherwise deal with such
investment property; provided that, with respect to any such securities
existing on the date hereof, the agreement required by this
sentence shall be entered into no later than 60 days after the date
hereof. The Administrative Agent agrees with each of the Grantors that the
Administrative Agent shall not give any such entitlement orders or
instructions or directions to any such issuer, securities intermediary or
commodity intermediary, and shall not withhold its consent to the exercise
of any withdrawal or dealing rights by any Grantor, unless an Event of
Default has occurred and is continuing, or, after giving effect to any
such investment and withdrawal rights, would occur. The provisions of this
paragraph shall not apply to any financial assets credited to a securities
account for which (A) the Administrative Agent is the securities
intermediary or (B) the aggregate value of the financial assets in such
securities account is less than $5,000,000.
20
(d) Electronic Chattel Paper and Transferable Records. If any
Grantor at any time holds or acquires an interest in any electronic
chattel paper or any "transferable record", as that term is defined in
Section 201 of the Federal Electronic Signatures in Global and National
Commerce Act, or in Section 16 of the Uniform Electronic Transactions Act
as in effect in any relevant jurisdiction, such Grantor shall promptly
notify the Administrative Agent thereof and, at the request of the
Administrative Agent, shall take such action as the Administrative Agent
may reasonably request to vest in the Administrative Agent control under
New York UCC Section 9-105 of such electronic chattel paper or under
Section 201 of the Federal Electronic Signatures in Global and National
Commerce Act or, as the case may be, Section 16 of the Uniform Electronic
Transactions Act, as in effect in such jurisdiction. The Administrative
Agent agrees with such Grantor that the Administrative Agent will arrange,
pursuant to procedures reasonably satisfactory to the Administrative Agent
and so long as such procedures will not result in the Administrative
Agent's loss of control, for the Grantor to make alterations to the
electronic Chattel Paper or transferable record permitted under New York
UCC Section 9-105 or, as the case may be, Section 201 of the Federal
Electronic Signatures in Global and National Commerce Act or Section 16 of
the Uniform Electronic Transactions Act for a party in control to allow
without loss of control, unless an Event of Default has occurred and is
continuing or would occur after taking into account any action by such
Grantor with respect to such electronic chattel paper or transferable
record.
(e) Letter-of-Credit Rights. If any Grantor is at any time a
beneficiary under a letter of credit now or hereafter issued in favor of
such Grantor, such Grantor shall promptly notify the Administrative Agent
thereof and, at the request and option of the Administrative Agent, such
Grantor shall, pursuant to an agreement in form and substance reasonably
satisfactory to the Administrative Agent, either (i) arrange for the
issuer and any confirmer of such letter of credit to consent to an
assignment to the Administrative Agent of the proceeds of any drawing
under the letter of credit or (ii) arrange for the Administrative Agent to
become the transferee beneficiary of the letter of credit, with the
Administrative Agent agreeing, in each case, that the proceeds of any
drawing under the letter of credit are to be paid to the applicable
Grantor unless an Event of Default has occurred or is continuing.
(f) Commercial Tort Claims. If any Grantor shall at any time hold or
acquire a commercial tort claim in an amount reasonably estimated to
exceed $5,000,000, the Grantor shall promptly notify the Administrative
Agent thereof in a writing signed by such Grantor including a summary
description of such claim and grant to the Administrative Agent in such
writing a security interest therein and in the proceeds thereof, all upon
the terms of this Agreement, with such writing to be in form and substance
reasonably satisfactory to the Administrative Agent.
SECTION 4.05 Covenants Regarding Patent, Trademark and Copyright
Collateral. (a) Each Grantor agrees that it will not, and will not permit any of
its
21
licensees to, do any act, or omit do to any act (and will exercise commercially
reasonable efforts to prevent its licensees from doing any act as omitting to do
any act), whereby any Patent that is material to the conduct of such Grantor's
business becomes invalidated or dedicated to the public, and agrees that it
shall continue to ▇▇▇▇ any products covered by a Patent with the relevant patent
number as necessary and sufficient to establish and preserve its rights under
applicable patent laws.
(b) Each Grantor (either itself or through its licensees or its
sublicensees) will, for each Trademark material to the conduct of such Grantor's
business, (i) maintain such Trademark in full force free from any claim of
abandonment or invalidity for non-use, (ii) maintain the quality of products and
services offered under such Trademark, (iii) display such Trademark with notice
of Federal or foreign registration to the extent necessary and sufficient to
establish and preserve its maximum rights under applicable law and (iv) not
knowingly use or knowingly permit the use of such Trademark in violation of any
third party rights.
(c) Each Grantor (either itself or through its licensees or
sublicensees) will, for each work covered by a material Copyright, continue to
publish, reproduce, display, adopt and distribute the work with appropriate
copyright notice as necessary and sufficient to establish and preserve its
maximum rights under applicable copyright laws.
(d) Each Grantor shall notify the Administrative Agent promptly if
it knows or has reason to know that any Patent, Trademark or Copyright material
to the conduct of its business may become abandoned, lost or dedicated to the
public, or of any materially adverse determination or development (including the
institution of, or any such determination or development in, any proceeding in
the United States Patent and Trademark Office, United States Copyright Office or
any court or similar office of any country) regarding such Grantor's ownership
of any such Patent, Trademark or Copyright, its right to register the same, or
its right to keep and maintain the same.
(e) In no event shall any Grantor, either itself or through any
agent, employee, licensee or designee, file an application for any Patent,
Trademark or Copyright (or for the registration of any Trademark or Copyright)
with the United States Patent and Trademark Office, United States Copyright
Office or any office or agency in any political subdivision of the United States
or in any other country or any political subdivision thereof, unless it promptly
informs the Administrative Agent thereof, and, upon request of the
Administrative Agent, executes and delivers any and all agreements, instruments,
documents and papers as the Administrative Agent may reasonably request to
evidence the Administrative Agent's security interest in such Patent, Trademark
or Copyright, and each Grantor hereby appoints the Administrative Agent as its
attorney-in-fact to execute and file such writings for the foregoing purposes,
all acts of such attorney being hereby ratified and confirmed; such power, being
coupled with an interest, is irrevocable.
(f) Each Grantor will take all necessary steps that are consistent
with the practice in any proceeding before the United States Patent and
Trademark Office, United States Copyright Office or any office or agency in any
political subdivision of the United
22
States or in any other country or any political subdivision thereof, to maintain
and pursue each material application relating to the Patents, Trademarks and/or
Copyrights (and to obtain the relevant grant or registration) and to maintain
each issued Patent and each registration of the Trademarks and Copyrights that
is material to the conduct of any Grantor's business, including timely filings
of applications for renewal, affidavits of use, affidavits of incontestability
and payment of maintenance fees, and, consistent with good business judgment, to
initiate opposition, interference and cancelation proceedings against third
parties.
(g) In the event that any Grantor has reason to believe that any
Article 9 Collateral consisting of a Patent, Trademark or Copyright material to
the conduct of any Grantor's business has been or is about to be infringed,
misappropriated or diluted by a third party, such Grantor promptly shall notify
the Administrative Agent and shall, if consistent with good business judgment,
promptly ▇▇▇ for infringement, misappropriation or dilution and to recover any
and all damages for such infringement, misappropriation or dilution, and take
such other actions as are appropriate under the circumstances to protect such
Article 9 Collateral.
(h) Upon and during the continuance of an Event of Default, each
Grantor shall use its commercially reasonable best efforts to obtain all
requisite consents or approvals by the licensor of each Copyright License,
Patent License or Trademark License to effect the assignment of all such
Grantor's right, title and interest thereunder to the Administrative Agent or
its designee.
ARTICLE V
Remedies
s SECTION 5.01 Remedies Upon Default. Upon the occurrence and during
the continuance of an Event of Default, each Grantor agrees to deliver each item
of Collateral to the Administrative Agent on demand, and it is agreed that the
Administrative Agent shall have the right to take any of or all the following
actions at the same or different times: (a) with respect to any Article 9
Collateral consisting of Intellectual Property, on demand, to cause the Security
Interest to become an assignment, transfer and conveyance of any of or all such
Article 9 Collateral by the applicable Grantors to the Administrative Agent, or
to license or sublicense, whether general, special or otherwise, and whether on
an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the
world on such terms and conditions and in such manner as the Administrative
Agent shall determine (other than in violation of any then-existing licensing
arrangements to the extent that waivers thereof cannot be obtained), and (b)
with or without legal process and with or without prior notice or demand for
performance, to take possession of the Article 9 Collateral and without
liability for trespass to enter any premises where the Article 9 Collateral may
be located for the purpose of taking possession of or removing the Article 9
Collateral and, generally, to exercise any and all rights afforded to a secured
party under the Uniform Commercial
23
Code or other applicable law. Without limiting the generality of the foregoing,
each Grantor agrees that the Administrative Agent shall have the right, subject
to the mandatory requirements of applicable law, to sell or otherwise dispose of
all or any part of the Collateral at a public or private sale or at any broker's
board or on any securities exchange, for cash, upon credit or for future
delivery as the Administrative Agent shall deem appropriate. The Administrative
Agent shall be authorized at any such sale of securities (if it deems it
advisable to do so) to restrict the prospective bidders or purchasers to Persons
who will represent and agree that they are purchasing the Collateral for their
own account for investment and not with a view to the distribution or sale
thereof, and upon consummation of any such sale the Administrative Agent shall
have the right to assign, transfer and deliver to the purchaser or purchasers
thereof the Collateral so sold. Each such purchaser at any sale of the
Collateral shall hold the property sold absolutely, free from any claim or right
on the part of any Grantor, and each Grantor hereby waives (to the extent
permitted by law) all rights of redemption, stay and appraisal which such
Grantor now has or may at any time in the future have under any rule of law or
statute now existing or hereafter enacted.
The Administrative Agent shall give the applicable Grantors 10 days'
written notice (which each Grantor agrees is reasonable notice within the
meaning of Section 9-611 of the New York UCC or its equivalent in other
jurisdictions) of the Administrative Agent's intention to make any sale of
Collateral. Such notice, in the case of a public sale, shall state the time and
place for such sale and, in the case of a sale at a broker's board or on a
securities exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Collateral, or portion thereof, will first be
offered for sale at such board or exchange. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or places
as the Administrative Agent may fix and state in the notice (if any) of such
sale. At any such sale, the Collateral , or portion thereof, to be sold may be
sold in one lot as an entirety or in separate parcels, as the Administrative
Agent may (in its sole and absolute discretion) determine. The Administrative
Agent shall not be obligated to make any sale of any Collateral if it shall
determine not to do so, regardless of the fact that notice of sale of such
Collateral shall have been given. The Administrative Agent may, without notice
or publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned. In case any sale of all or any part of the
Collateral is made on credit or for future delivery, the Collateral so sold may
be retained by the Administrative Agent until the sale price is paid by the
purchaser or purchasers thereof, but the Administrative Agent shall not incur
any liability in case any such purchaser or purchasers shall fail to take up and
pay for the Collateral so sold and, in case of any such failure, such Collateral
may be sold again upon like notice. At any public (or, to the extent permitted
by law, private) sale made pursuant to this Agreement, any Secured Party may bid
for or purchase, free (to the extent permitted by law) from any right of
redemption, stay, valuation or appraisal on the part of any Grantor (all said
rights being also hereby waived and released to the extent permitted by law),
the Collateral or any part thereof offered for sale and may (with the consent of
the Administrative Agent) make payment on account thereof by using any
Obligation then due and payable to such Secured Party from any Grantor as a
credit
24
against the purchase price, and such Secured Party may, upon compliance with the
terms of sale, hold, retain and dispose of such property without further
accountability to any Grantor therefor. For purposes hereof, a written agreement
to purchase the Collateral or any portion thereof shall be treated as a sale
thereof; the Administrative Agent shall be free to carry out such sale pursuant
to such agreement and no Grantor shall be entitled to the return of the
Collateral or any portion thereof subject thereto, notwithstanding the fact that
after the Administrative Agent shall have entered into such an agreement all
Events of Default shall have been remedied and the Obligations paid in full. As
an alternative to exercising the power of sale herein conferred upon it, the
Administrative Agent may proceed by a suit or suits at law or in equity to
foreclose this Agreement and to sell the Collateral or any portion thereof
pursuant to a judgment or decree of a court or courts having competent
jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale
pursuant to the provisions of this Section 5.01 shall be deemed to conform to
the commercially reasonable standards as provided in Section 9-610(b) of the New
York UCC or its equivalent in other jurisdictions.
SECTION 5.02 Application of Proceeds. The Administrative Agent shall
apply the proceeds of any collection or sale of Collateral, including any
Collateral consisting of cash, as follows:
FIRST, to the payment of all costs and expenses incurred by the
Administrative Agent in connection with such collection or sale or
otherwise in connection with this Agreement, any other Loan Document or
any of the Obligations, including all court costs and the reasonable fees
and expenses of its agents and legal counsel, the repayment of all
advances made by the Administrative Agent hereunder or under any other
Loan Document on behalf of any Grantor and any other costs or expenses
incurred in connection with the exercise of any right or remedy hereunder
or under any other Loan Document;
SECOND, to the payment in full of the Obligations (the amounts so
applied to be distributed among the Secured Parties pro rata in accordance
with the amounts of the Obligations owed to them on the date of any such
distribution); and
THIRD, to the Grantors, their successors or assigns, or as a court
of competent jurisdiction may otherwise direct.
The Administrative Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of Collateral by the Administrative Agent (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the Administrative Agent or of the officer making the sale shall
be a sufficient discharge to the purchaser or purchasers of the Collateral so
sold and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the Administrative
Agent or such officer or be answerable in any way for the misapplication
thereof.
25
SECTION 5.03 Grant of License to Use Intellectual Property. For the
purpose of enabling the Administrative Agent to exercise rights and remedies
under this Agreement at such time as the Administrative Agent shall be lawfully
entitled to exercise such rights and remedies, each Grantor hereby grants to the
Administrative Agent an irrevocable, nonexclusive license (exercisable without
payment of royalty or other compensation to the Grantors) to use, license or
sublicense any of the Article 9 Collateral consisting of Intellectual Property
now owned or hereafter acquired by such Grantor, and wherever the same may be
located, and including in such license reasonable 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. The use of such
license by the Administrative Agent may be exercised, at the option of the
Administrative Agent, upon the occurrence and during the continuation of an
Event of Default; provided that any license, sublicense or other transaction
entered into by the Administrative Agent in accordance herewith shall be binding
upon the Grantors notwithstanding any subsequent cure of an Event of Default.
SECTION 5.04 Securities Act. In view of the position of the Grantors
in relation to the Pledged Collateral, or because of other current or future
circumstances, a question may arise under the Securities Act of 1933, as now or
hereafter in effect, or any similar statute hereafter enacted analogous in
purpose or effect (such Act and any such similar statute as from time to time in
effect being called the "Federal Securities Laws") with respect to any
disposition of the Pledged Collateral permitted hereunder. Each Grantor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Administrative Agent if the Administrative
Agent were to attempt to dispose of all or any part of the Pledged Collateral,
and might also limit the extent to which or the manner in which any subsequent
transferee of any Pledged Collateral could dispose of the same. Similarly, there
may be other legal restrictions or limitations affecting the Administrative
Agent in any attempt to dispose of all or part of the Pledged Collateral under
applicable Blue Sky or other state securities laws or similar laws analogous in
purpose or effect. Each Grantor recognizes that in light of such restrictions
and limitations the Administrative Agent may, with respect to any sale of the
Pledged Collateral, limit the purchasers to those who will agree, among other
things, to acquire such Pledged Collateral for their own account, for
investment, and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that in light of such restrictions and
limitations, the Administrative Agent, in its sole and absolute discretion (a)
may proceed to make such a sale whether or not a registration statement for the
purpose of registering such Pledged Collateral or part thereof shall have been
filed under the Federal Securities Laws and (b) may approach and negotiate with
a single potential purchaser to effect such sale. Each Grantor acknowledges and
agrees that any such sale might result in prices and other terms less favorable
to the seller than if such sale were a public sale without such restrictions. In
the event of any such sale, the Administrative Agent shall incur no
responsibility or liability for selling all or any part of the Pledged
Collateral at a price that the Administrative Agent, in its sole and absolute
discretion, may in good ▇▇▇▇▇ ▇▇▇▇ reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid or
if more than a single purchaser were approached. The provisions of this Section
5.04 will apply notwithstanding the existence
26
of a public or private market upon which the quotations or sales prices may
exceed substantially the price at which the Administrative Agent sells.
ARTICLE VI
Indemnity, Subrogation and Subordination
SECTION 6.01 Indemnity and Subrogation. In addition to all such
rights of indemnity and subrogation as the Guarantors may have under applicable
law (but subject to Section 6.03), the Borrower agrees that (a) in the event a
payment of an Obligation shall be made by any Guarantor under this Agreement in
respect of any Obligation, the Borrower shall indemnify such Guarantor for the
full amount of such payment and such Guarantor shall be subrogated to the rights
of the Person to whom such payment shall have been made to the extent of such
payment and (b) in the event any assets of any Guarantor shall be sold pursuant
to this Agreement or any other Security Document to satisfy in whole or in part
an Obligation, the Borrower shall indemnify such Guarantor in an amount equal to
the greater of the book value or the fair market value of the assets so sold.
SECTION 6.02 Contribution and Subrogation. Each Guarantor (a
"Contributing Guarantor") agrees (subject to Section 6.03) that, in the event a
payment shall be made by any other Guarantor hereunder in respect of any
Obligation or assets of any other Guarantor shall be sold pursuant to any
Security Document to satisfy any Obligation owed to any Secured Party and such
other Guarantor (the "Claiming Guarantor") shall not have been fully indemnified
by the Borrower as provided in Section 6.01, the Contributing Guarantor shall
indemnify the Claiming Guarantor in an amount equal to the amount of such
payment or the greater of the book value or the fair market value of such
assets, as the case may be, in each case multiplied by a fraction of which the
numerator shall be the net worth of the Contributing Guarantor on the date
hereof and the denominator shall be the aggregate net worth of all the
Guarantors on the date hereof (or, in the case of any Guarantor becoming a party
hereto pursuant to Section 7.16, the date of the supplement hereto executed and
delivered by such Guarantor). Any Contributing Guarantor making any payment to a
Claiming Guarantor pursuant to this Section 6.02 shall be subrogated to the
rights of such Claiming Guarantor under Section 6.01 to the extent of such
payment.
SECTION 6.03 Subordination. (a) Notwithstanding any provision of
this Agreement to the contrary, all rights of the Guarantors under Sections 6.01
and 6.02 and all other rights of indemnity, contribution or subrogation under
applicable law or otherwise shall be fully subordinated to the indefeasible
payment in full in cash of the Obligations. No failure on the part of the
Borrower or any Guarantor to make the payments required by Sections 6.01 and
6.02 (or any other payments required under applicable law or otherwise) shall in
any respect limit the obligations and liabilities of any Guarantor with respect
to its obligations hereunder, and each Guarantor shall remain liable for the
full amount of the obligations of such Guarantor hereunder.
27
(b) Each of the Guarantors hereby agrees that all Indebtedness and
other monetary obligations owed by it to any other Guarantor or any Subsidiary
shall be fully subordinated to the indefeasible payment in full in cash of the
Obligations.
ARTICLE VII
Miscellaneous
SECTION 7.01 Notices. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in Section 9.01 of the Credit Agreement. All communications and notices
hereunder to any Subsidiary Party shall be given to it in care of the Borrower
as provided in Section 9.01 of the Credit Agreement.
SECTION 7.02 Security Interest Absolute. All rights of the
Administrative Agent hereunder, the Security Interest, the grant of a security
interest in the Pledged Collateral and all obligations of each Grantor and
Guarantor hereunder shall be absolute and unconditional irrespective of (a) any
lack of validity or enforceability of the Credit Agreement, any other Loan
Document, any agreement with respect to any of the Obligations or any other
agreement or instrument relating to any of the foregoing, (b) any change in the
time, manner or place of payment of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to any departure
from the Credit Agreement, any other Loan Document or any other agreement or
instrument, (c) any exchange, release or non-perfection of any Lien on other
collateral, or any release or amendment or waiver of or consent under or
departure from any guarantee, securing or guaranteeing all or any of the
Obligations, or (d) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, any Grantor or Guarantor in respect of
the Obligations or this Agreement.
SECTION 7.03 Survival of Agreement. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments prepared or delivered in connection
with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the Lenders and shall survive the
execution and delivery of the Loan Documents and the making of any Loans and
issuance of any Letters of Credit, regardless of any investigation made by any
Lender or on its behalf and notwithstanding that the Administrative Agent, the
Issuing Bank or any Lender may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended under
the Credit Agreement, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under any Loan Document is outstanding and unpaid or any Letter of
Credit is outstanding and so long as the Commitments have not expired or
terminated.
SECTION 7.04 Binding Effect; Several Agreement. This Agreement shall
become effective as to any Loan Party when a counterpart hereof executed on
behalf
28
of such Loan Party shall have been delivered to the Administrative Agent and a
counterpart hereof shall have been executed on behalf of the Administrative
Agent, and thereafter shall be binding upon such Loan Party and the
Administrative Agent and their respective permitted successors and assigns, and
shall inure to the benefit of such Loan Party, the Administrative Agent and the
other Secured Parties and their respective successors and assigns, except that
no Loan Party shall have the right to assign or transfer its rights or
obligations hereunder or any interest herein or in the Collateral (and any such
assignment or transfer shall be void) except as expressly contemplated by this
Agreement or the Credit Agreement. This Agreement shall be construed as a
separate agreement with respect to each Loan Party and may be amended, modified,
supplemented, waived or released with respect to any Loan Party without the
approval of any other Loan Party and without affecting the obligations of any
other Loan Party hereunder.
SECTION 7.05 Successors and Assigns. Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the permitted successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of any Grantor or the Administrative Agent that
are contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.
SECTION 7.06 Administrative Agent's Fees and Expenses;
Indemnification. (a) The parties hereto agree that the Administrative Agent
shall be entitled to reimbursement of its expenses incurred hereunder as
provided in Section 9.03 of the Credit Agreement.
(b) Without limitation of its indemnification obligations under the
other Loan Documents, each Grantor jointly and severally agrees to indemnify the
Administrative Agent and the other Indemnitees (as defined in Section 9.03 of
the Credit Agreement) against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of any counsel for any Indemnitee, incurred by
or asserted against any Indemnitee arising out of, in connection with, or as a
result of, the execution, delivery or performance of this Agreement or any
claim, litigation, investigation or proceeding relating hereto, or to the
Collateral, whether or not any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c) Any such amounts payable as provided hereunder shall be
additional Obligations secured hereby and by the other Security Documents. The
provisions of this Section 7.06 shall remain operative and in full force and
effect regardless of the termination of this Agreement or any other Loan
Document, the consummation of the transactions contemplated hereby, the
repayment of any of the Obligations, the invalidity or unenforceability of any
term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent or any
29
other Secured Party. All amounts due under this Section 7.06 shall be payable on
written demand therefor.
SECTION 7.07 Administrative Agent Appointed Attorney-in-Fact. Each
Grantor hereby appoints the Administrative Agent the attorney-in-fact of such
Grantor for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any instrument that the Administrative Agent may
deem necessary or advisable to accomplish the purposes hereof, which appointment
is irrevocable and coupled with an interest. Without limiting the generality of
the foregoing, the Administrative Agent shall have the right, upon the
occurrence and during the continuance of an Event of Default, with full power of
substitution either in the Administrative Agent's name or in the name of such
Grantor (a) to receive, endorse, assign and/or deliver any and all notes,
acceptances, checks, drafts, money orders or other evidences of payment relating
to the Collateral or any part thereof; (b) to demand, collect, receive payment
of, give receipt for and give discharges and releases of all or any of the
Article 9 Collateral; (c) to ask for, demand, ▇▇▇ for, collect, receive and give
acquittance for any and all moneys due or to become due under and by virtue of
any Pledged Collateral; (d) to sign the name of any Grantor on any invoice or
▇▇▇▇ of lading relating to any of the Article 9 Collateral; (e) to send
verifications of Accounts Receivable to any Account Debtor; (f) to commence and
prosecute any and all suits, actions or proceedings at law or in equity in any
court of competent jurisdiction to collect or otherwise realize on all or any of
the Collateral or to enforce any rights in respect of any Collateral; (g) to
settle, compromise, compound, adjust or defend any actions, suits or proceedings
relating to all or any of the Collateral; (h) to notify, or to require any
Grantor to notify, Account Debtors to make payment directly to the
Administrative Agent; and (i) to use, sell, assign, transfer, pledge, make any
agreement with respect to or otherwise deal with all or any of the Collateral,
and to do all other acts and things necessary to carry out the purposes of this
Agreement, as fully and completely as though the Administrative Agent were the
absolute owner of the Collateral for all purposes; provided, that nothing herein
contained shall be construed as requiring or obligating the Administrative Agent
to make any commitment or to make any inquiry as to the nature or sufficiency of
any payment received by the Administrative Agent, or to present or file any
claim or notice, or to take any action with respect to the Collateral or any
part thereof or the moneys due or to become due in respect thereof or any
property covered thereby. The Administrative Agent and the other Secured Parties
shall be accountable only for amounts actually received as a result of the
exercise of the powers granted to them herein, and neither they nor their
officers, directors, employees or agents shall be responsible to any Grantor for
any act or failure to act hereunder, except for their own gross negligence or
wilful misconduct.
SECTION 7.08 APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.09 Waivers; Amendment. (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall
30
any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent, the Issuing Bank and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default at the time. No
notice or demand on any Loan Party in any case shall entitle any Loan Party to
any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Administrative Agent and the Loan Party or Loan Parties with
respect to which such waiver, amendment or modification is to apply, subject to
any consent required in accordance with Section 9.02 of the Credit Agreement.
SECTION 7.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 7.11 Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 7.12 Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute a single contract (subject to Section 7.04), and shall
become effective as
31
provided in Section 7.04. Delivery of an executed signature page to this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 7.13 Headings. Article and Section headings used herein are
for the purpose of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
SECTION 7.14 Jurisdiction; Consent to Service of Process. (a) Each
of the Loan Parties hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of the Supreme Court of the
State of New York sitting in New York County and of the United States District
Court of the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to any Loan
Document, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or
any other Loan Document shall affect any right that the Administrative Agent,
the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against any
Grantor or Guarantor or its properties in the courts of any jurisdiction.
(b) Each of the Loan Parties hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (a) of this Section. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 7.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 7.15 Termination or Release. (a) This Agreement, the
Guarantees made herein, the Security Interest and all other security interests
granted hereby shall terminate when all the Loan Document Obligations have been
indefeasibly paid in full and the Lenders have no further commitment to lend
under the Credit Agreement, the LC Exposure has been reduced to zero and the
Issuing Bank has no further obligations to issue Letters of Credit under the
Credit Agreement.
(b) A Subsidiary Party shall automatically be released from its
obligations hereunder and the Security Interest in the Collateral of such
Subsidiary Party shall be
32
automatically released upon the consummation of any transaction permitted by the
Credit Agreement as a result of which such Subsidiary Party ceases to be a
Subsidiary of the Borrower; provided that the Required Lenders shall have
consented to such transaction (to the extent required by the Credit Agreement)
and the terms of such consent did not provide otherwise.
(c) Upon any sale or other transfer by any Grantor of any Collateral
that is permitted under the Credit Agreement to any Person that is not a
Grantor, or, upon the effectiveness of any written consent to the release of the
security interest granted hereby in any Collateral pursuant to Section 9.02 of
the Credit Agreement, the security interest in such Collateral shall be
automatically released.
(d) In connection with any termination or release pursuant to
paragraph (a), (b) or (c), the Administrative Agent shall execute and deliver to
any Grantor at such Grantor's expense, all documents that such Grantor shall
reasonably request to evidence such termination or release. Any execution and
delivery of documents pursuant to this Section 7.15 shall be without recourse to
or warranty by the Administrative Agent.
SECTION 7.16 Additional Subsidiaries. Pursuant to Section 5.12 of
the Credit Agreement, each Subsidiary Loan Party that was not in existence or
not a Subsidiary on the date of the Credit Agreement is required to enter in
this Agreement as a Subsidiary Party. Upon execution and delivery by the
Administrative Agent and a Subsidiary of an instrument in the form of Exhibit I
hereto, such Subsidiary shall become a Subsidiary Party hereunder with the same
force and effect as if originally named as a Subsidiary Party herein. The
execution and delivery of any such instrument shall not require the consent of
any other Loan Party hereunder. The rights and obligations of each Loan Party
hereunder shall remain in full force and effect notwithstanding the addition of
any new Loan Party as a party to this Agreement.
SECTION 7.17 Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of any
Subsidiary Party against any of and all the obligations of such Subsidiary Party
now or hereafter existing under this agreement owed to such Lender, irrespective
of whether or not such Lender shall have made any demand under this Agreement
and although such obligations may be unmatured. The rights of each Lender under
this Section are in addition to other rights and remedies (including other
rights of setoff) which such Lender may have.
33
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first written above.
CUMULUS MEDIA INC.,
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Chief Executive Officer
34
CUMULUS Broadcasting LLC,
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Chief Executive Officer
35
CUMULUS licensing LLC,
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Chief Executive Officer
36
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT I
to the Guarantee and
Collateral Agreement
SUPPLEMENT NO. __ dated as of , to the Guarantee and
Collateral Agreement dated as of July 14, 2005, among CUMULUS
MEDIA INC., an Illinois corporation (the "Borrower"), each
subsidiary of the Borrower listed on Schedule I thereto (each
such subsidiary individually a "Subsidiary Loan Party" and
collectively, the "Subsidiary Loan Parties"; the Subsidiary
Loan Parties and the Borrower are referred to collectively
herein as the "Loan Parties") and JPMORGAN CHASE BANK, N.A.,
("JPMCB"), as Administrative Agent (in such capacity, the
"Administrative Agent") for the Secured Parties (as defined
herein).
A. Reference is made to the Credit Agreement dated as of July 14,
2005 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, the lenders from time to time party
thereto (the "Lenders"), and the Administrative Agent.
B. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement and the
Collateral Agreement referred to therein.
C. The Loan Parties have entered into the Collateral Agreement in
order to induce the Lenders to make Loans and the Issuing Bank to issue Letters
of Credit. Section 7.16 of Collateral Agreement provides that additional
Subsidiaries of the Borrower may become Subsidiary Parties under the Collateral
Agreement by execution and delivery of an instrument in the form of this
Supplement. The undersigned Subsidiary (the "New Subsidiary") is executing this
Supplement in accordance with the requirements of the Credit Agreement to become
a Subsidiary Party under the Collateral Agreement in order to induce the Lenders
to make additional Loans and the Issuing Bank to issue additional Letters of
Credit and as consideration for Loans previously made and Letters of Credit
previously issued.
Accordingly, the Administrative Agent and the New Subsidiary agree
as follows:
SECTION 1. In accordance with Section 7.16 of the Guarantee and
Collateral Agreement, the New Subsidiary by its signature below becomes a
Subsidiary Party (and accordingly, becomes a Grantor and a Guarantor) under the
Collateral Agreement with the same force and effect as if originally named
therein as a Subsidiary Party and the New Subsidiary hereby (a) agrees to all
the terms and provisions of the Collateral Agreement applicable to it as a
Subsidiary Party thereunder and (b) represents and warrants that the
representations and warranties made by it as a Subsidiary Party thereunder are
true and correct on and as of the date hereof. In furtherance of the foregoing,
the New Subsidiary, as security for the payment and performance in full of the
2
Obligations (as defined in the Collateral Agreement), does hereby create and
grant to the Administrative Agent, its successors and assigns, for the ratable
benefit of the Secured Parties, their successors and assigns, a security
interest in and lien on all of the New Subsidiary's right, title and interest in
and to the Collateral (as defined in the Collateral Agreement) of the New
Subsidiary. Each reference to a "Guarantor" and a "Grantor" in the Collateral
Agreement shall be deemed to include the New Subsidiary. The Collateral
Agreement is hereby incorporated herein by reference.
SECTION 2. The New Subsidiary represents and warrants to the
Administrative Agent and the other Secured Parties that this Supplement has been
duly authorized, executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when (a) the
Administrative Agent shall have received a counterpart of this Supplement that
bears the signature of the New Subsidiary and (b) the Administrative Agent has
executed a counterpart hereof. Delivery of an executed signature page to this
Supplement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Supplement.
SECTION 4. The New Subsidiary hereby represents and warrants that
(a) set forth on Schedule I attached hereto is a true and correct schedule of
the location of any and all Collateral of the New Subsidiary and (b) set forth
under its signature hereto, is the true and correct legal name of the New
Subsidiary, its jurisdiction of formation and the location of its chief
executive office.
SECTION 5. Except as expressly supplemented hereby, the Collateral
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and in the Collateral Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision in a particular jurisdiction shall not in and of itself affect the
validity of such provision in any other jurisdiction). The parties hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 8. All communications and notices hereunder shall be in
writing and given as provided in Section 7.01 of the Collateral Agreement. All
3
communications and notices hereunder to the New Subsidiary shall be given to it
at the address set forth under its signature below.
SECTION 9. The New Subsidiary agrees to reimburse the Administrative
Agent for its reasonable out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, other charges and disbursements of
counsel for the Administrative Agent.
4
IN WITNESS WHEREOF, the New Subsidiary and the Administrative Agent
have duly executed this Supplement to the Guarantee and Collateral Agreement as
of the day and year first above written.
[Name of New Subsidiary],
By
________________________________
Name:
Title:
Legal Name:
Jurisdiction of
Formation:
Location of Chief Executive
Office:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent,
By
________________________________
Name:
Title:
SCHEDULE I
to Supplement No.___
to the Guarantee and
Collateral Agreement
LOCATION OF COLLATERAL
Description Location
----------- --------
SCHEDULE II
to Supplement No.
to the Guarantee and
Collateral Agreement
Pledged Securities of the New Subsidiary
EQUITY INTERESTS
Number and
Number of Registered Class of Percentage
Issuer Certificate Owner Equity Interests of Equity Interests
------ ----------- ---------- ---------------- -------------------
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
------ ----------- ------------ -------------
INTELLECTUAL PROPERTY
EXHIBIT II
to the Guarantee and
Collateral Agreement
PERFECTION CERTIFICATE
Reference is made to the Credit Agreement dated as of July 14, 2005 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Cumulus Media Inc., the lenders from time to time party
thereto (the "Lenders") and JPMorgan Chase Bank, N.A., as Administrative Agent
(the "Administrative Agent"). Capitalized terms used but not defined herein have
the meanings assigned in the Credit Agreement or the Collateral Agreement
referred to therein, as applicable.
The undersigned, a Financial Officer and a Legal Officer, respectively, of
the Borrower, hereby certify to the Administrative Agent and each other Secured
Party as follows:
1. Names. (a) The exact legal name of each Grantor, as such name appears in its
respective certificate of formation, is as follows:
(b) Set forth below is each other legal name each Grantor has had in the past
five years, together with the date of the relevant change:
(c) Except as set forth in Schedule 1 hereto, no Grantor has changed its
identity or corporate structure in any way within the past five years. Changes
in identity or corporate structure would include mergers, consolidations and
acquisitions, as well as any change in the form, nature or jurisdiction of
corporate organization. If any such change has occurred, include in Schedule 1
the information required by Sections 1 and 2 of this certificate as to each
acquiree or constituent party to a merger or consolidation.
(d) The following is a list of all other names (including trade names or similar
appellations) used by each Grantor or any of its divisions or other business
units in connection with the conduct of its business or the ownership of its
properties at any time during the past five years:
(e) Set forth below is the organizational identification number, if any, issued
by the jurisdiction of formation of each Grantor that is a registered
organization:
(f) Set forth below is the Federal Taxpayer Identification Number of each
Grantor:
2. Current Locations. (a) The chief executive office of each Grantor is located
at the address set forth opposite its name below:
Grantor Mailing Address County State
------- --------------- ------ -----
(b) Set forth below opposite the name of each Grantor are all locations where
such Grantor maintains any books or records relating to any Accounts Receivable
or General
2
Intangibles (with each location at which Chattel Paper, if any, is kept being
indicated by an "*"):
Grantor Mailing Address County State
------- --------------- ------ -----
(c) The jurisdiction of formation of each Grantor that is a registered
organization is set forth opposite its name below:
Grantor Jurisdiction
------- ------------
(d) Set forth below opposite the name of each Grantor are all the locations
where such Grantor maintains any Inventory or Equipment or other Collateral not
identified above:
Grantor Mailing Address County State
------- --------------- ------ -----
(e) Set forth below opposite the name of each Grantor are all the places of
business of such Grantor not identified in paragraph (a), (b), (c) or (d) above:
Grantor Mailing Address County State
------- --------------- ------ -----
(f) Set forth below opposite the name of each Grantor are the names and
addresses of all Persons other than such Grantor that have possession of any of
the Collateral of such Grantor:
Grantor Mailing Address County State
------- --------------- ------ -----
3. Unusual Transactions. All Accounts have been originated by the Grantors and
all Inventory has been acquired by the Grantors in the ordinary course of
business.
4. File Search Reports. File search reports have been obtained from each Uniform
Commercial Code filing office identified with respect to such Grantor in Section
2 hereof, and such search reports reflect no liens against any of the Collateral
other than those permitted under the Credit Agreement.
5. UCC Filings. UCC financing statements in substantially the form of Schedule 5
hereto have been prepared for filing in the proper Uniform Commercial Code
filing office in the jurisdiction in which each Grantor is located and, to the
extent any of the Collateral is comprised of fixtures, timber to be cut or
as-extracted collateral from the wellhead or minehead, in the proper local
jurisdiction, in each case as set forth with respect to such Grantor in Section
2 hereof.
6. Schedule of Filings. Attached hereto as Schedule 6 is a schedule setting
forth, with respect to the filings described in Section 5 above, each filing and
the filing office in which such filing is to be made.
3
7. Stock Ownership and other Equity Interests. Attached hereto as Schedule 7 is
a true and correct list of all the issued and outstanding stock, partnership
interests, limited liability company membership interests or other equity
interests owned by the Borrower and each Subsidiary. Also set forth on Schedule
7 is each equity investment of the Borrower or any Subsidiary that represents
50% or less of the equity of the entity in which such investment was made.
8. Debt Instruments. Attached hereto as Schedule 8 is a true and correct list of
all instruments, including any promissory notes, and other evidence of
indebtedness held by the Borrower and each Subsidiary that are required to be
pledged to satisfy the Collateral and Guarantee Requirement, including all
intercompany notes between the Borrower and each Subsidiary of the Borrower and
each Subsidiary of the Borrower and each other such Subsidiary.
9. Advances. Attached hereto as Schedule 9 is (a) a true and correct list of all
advances made by the Borrower to any Subsidiary of the Borrower or made by any
Subsidiary of the Borrower to the Borrower or to any other Subsidiary of the
Borrowers (other than those identified on Schedule 8), which advances will be on
and after the date hereof evidenced by one or more intercompany notes pledged to
the Administrative Agent under the Pledge Agreement and (b) a true and correct
list of all unpaid intercompany transfers of goods sold and delivered by or to
the Borrower or any Subsidiary of the Borrower.
10. Mortgage Filings. Attached hereto as Schedule 10 is a schedule setting
forth, with respect to each Mortgaged Property, (a) the exact name of the Person
that owns such property as such name appears in its certificate of incorporation
or other organizational document, (b) if different from the name identified
pursuant to clause (a), the exact name of the current record owner of such
property reflected in the records of the filing office for such property
identified pursuant to the following clause and (c) the filing office in which a
Mortgage with respect to such property must be filed or recorded in order for
the Administrative Agent to obtain a perfected security interest therein.
11. Intellectual Property. Attached hereto as Schedule 11(A) in proper form for
filing with the United States Patent and Trademark Office is a schedule setting
forth all of each Grantor's Patents, Patent Licenses, Trademarks and Trademark
Licenses, including the name of the registered owner and the registration number
of each Patent, Patent License, Trademark and Trademark License owned by any
Grantor. Attached hereto as Schedule 11(B) in proper form for filing with the
United States Copyright Office is a schedule setting forth all of each Grantor's
Copyrights and Copyright Licenses, including the name of the registered owner
and the registration number of each Copyright or Copyright License owned by any
Grantor.
12. Commercial Tort Claims. Attached hereto as Schedule 12 is a true and correct
list of commercial tort claims in excess of $5,000,000 held by any Grantor,
including a brief description thereof.
4
13. Deposit Accounts. Attached hereto as Schedule 13 is a true and correct list
of deposit accounts maintained by each Grantor, including the name and address
of the depositary institution, the type of account, and the account number.
IN WITNESS WHEREOF, the undersigned have duly executed this certificate on this
14th day of July, 2005.
CUMULUS MEDIA INC.,
By
__________________________
Name:
Title:
