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Exhibit 10.45
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GUARANTEE AND COLLATERAL AGREEMENT
made by
SPANISH BROADCASTING SYSTEM, INC.
and certain of its Subsidiaries
in favor of
LEHMAN COMMERCIAL PAPER INC.
as Administrative Agent
Dated as of July 6, 2000
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TABLE OF CONTENTS
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SECTION 1. DEFINED TERMS...............................................................................1
1.1. Definitions.....................................................................................1
1.2. Other Definitional Provisions...................................................................7
SECTION 2. GUARANTEE...................................................................................7
2.1. Guarantee.......................................................................................7
2.2. Right of Contribution...........................................................................8
2.3. Subrogation.....................................................................................8
2.4. Amendments, etc. with respect to the Borrower Obligations.......................................9
2.5. Guarantee Absolute and Unconditional............................................................9
2.6. Reinstatement..................................................................................10
2.7. Payments.......................................................................................10
SECTION 3. GRANT OF SECURITY INTEREST.................................................................10
SECTION 4. REPRESENTATIONS AND WARRANTIES.............................................................12
4.1. Representations in Credit Agreement............................................................12
4.2. Title; No Other Liens..........................................................................12
4.3. Perfected First Priority Liens.................................................................12
4.4. Chief Executive Office.........................................................................12
4.5. Inventory, Equipment and Books and Records.....................................................12
4.6. Farm Products..................................................................................13
4.7. Investment Property............................................................................13
4.8. Receivables....................................................................................13
SECTION 5. COVENANTS..................................................................................13
5.1. Covenants in Credit Agreement..................................................................13
5.2. Delivery and Control of Instruments, Chattel Paper and Investment Property.....................13
5.3. Maintenance of Insurance.......................................................................14
5.4. Maintenance of Perfected Security Interest; Further Documentation..............................14
5.5. Changes in Locations, Name, etc. ..............................................................15
5.6. Investment Property............................................................................15
5.7. Intellectual Property..........................................................................16
SECTION 6. REMEDIAL PROVISIONS........................................................................19
6.1. Default........................................................................................19
6.2. Remedies Upon Default..........................................................................19
6.3. Waivers by Grantors............................................................................20
6.4. Standard of Care...............................................................................20
6.5. Application of Proceeds........................................................................21
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6.6. Surplus, Deficiency............................................................................21
6.7. Information Related to the Collateral..........................................................21
SECTION 7. THE ADMINISTRATIVE AGENT...................................................................22
7.1. Administrative Agent's Appointment as Attorney-in-Fact, etc. ..................................22
7.2. Duty of Administrative Agent...................................................................24
7.3. Execution of Financing Statements..............................................................24
7.4. Authority of Administrative Agent..............................................................25
SECTION 8. MISCELLANEOUS..............................................................................25
8.1. Amendments in Writing..........................................................................25
8.2. Notices........................................................................................25
8.3. No Waiver by Course of Conduct; Cumulative Remedies............................................25
8.4. Enforcement Expenses; Indemnification..........................................................26
8.5. Successors and Assigns.........................................................................26
8.6. Set-Off........................................................................................26
8.7. Counterparts...................................................................................27
8.8. Severability...................................................................................27
8.9. Section Headings...............................................................................27
8.10. Integration....................................................................................27
8.11. GOVERNING LAW..................................................................................27
8.12. Submission To Jurisdiction; Waivers............................................................27
8.13. Acknowledgments................................................................................28
8.14. Additional Grantors............................................................................28
8.15. Releases.......................................................................................28
8.16. WAIVER OF JURY TRIAL...........................................................................29
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FORM OF
GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of July 6, 2000,
made by each of the signatories hereto (together with any other entity that may
become a party hereto as provided herein, the "Grantors"), in favor of LEHMAN
COMMERCIAL PAPER INC., as Administrative Agent (in such capacity, the
"Administrative Agent") for (i) the banks and other financial institutions or
entities (the "Lenders") from time to time parties to the Credit Agreement,
dated as of July 6, 2000 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among Spanish Broadcasting System, Inc.,
a Delaware corporation (the "Borrower"), the Lenders and the Administrative
Agent, and (ii) the other Secured Parties (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make extensions of credit to the Borrower upon the terms and
subject to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of
companies that includes each other Grantor;
WHEREAS, the proceeds of the extensions of credit under the
Credit Agreement will be used in part to enable the Borrower to make valuable
transfers to one or more of the other Grantors in connection with the operation
of their respective businesses;
WHEREAS, the Borrower and the other Grantors are engaged in
related businesses, and each Grantor will derive substantial direct and indirect
benefit from the making of the extensions of credit under the Credit Agreement;
and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective extensions of credit to the Borrower under the
Credit Agreement that the Grantors shall have executed and delivered this
Agreement to the Administrative Agent for the ratable benefit of the Secured
Parties;
NOW, THEREFORE, in consideration of the premises and to induce
the Administrative Agent and the Lenders to enter into the Credit Agreement and
to induce the Lenders to make their respective extensions of credit to the
Borrower thereunder, each Grantor hereby agrees with the Administrative Agent,
for the ratable benefit of the Secured Parties, as follows:
SECTION 1. DEFINED TERMS
1.1. Definitions. (a) Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit
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Agreement, and the following terms which are defined in the Uniform Commercial
Code in effect in the State of New York on the date hereof are used herein as so
defined: Accounts, Certificated Security, Chattel Paper, Commodity Account,
Commodity Contract, Commodity Intermediary, Documents, Entitlement Order,
Equipment, Farm Products, Financial Asset, Fixtures, Goods, Instruments,
Inventory, Securities Account, Securities Intermediary, Security, Security
Entitlement and Uncertificated Security.
(b) The following terms shall have the following meanings:
"Agreement": this Guarantee and Collateral Agreement, as the
same may be amended, supplemented, replaced or otherwise modified from
time to time.
"Arranger": Lehman Brothers Inc., in its capacity as sole lead
arranger and book running manager.
"Borrower Obligations": the collective reference to the
Obligations (as defined in the Credit Agreement).
"Collateral": as defined in Section 3.
"Copyright Licenses": any written agreement naming any Grantor
as licensor or licensee (including, without limitation, those listed in
Schedule 6), granting any right under any Copyright, including, without
limitation, the grant of rights to manufacture, distribute, exploit and
sell materials derived from any Copyright.
"Copyrights": (i) all copyrights, whether or not the underlying
works of authorship have been published, and all works of authorship and
other intellectual property rights therein, all copyrights of works
based on, incorporated in, derived from or relating to works covered by
such copyrights, all right, title and interest to make and exploit all
derivative works based on or adopted from works covered by such
copyrights, and all copyright registrations and copyright applications,
and any renewals or extensions thereof, including, without limitation,
each registration and application identified in Schedule 6, (ii) the
rights to print, publish and distribute any of the foregoing, (iii) the
right to sue or otherwise recover for any and all past, present and
future infringements and misappropriations thereof, (iv) all income,
royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments
under all Copyright Licenses entered into in connection therewith, and
damages and payments for past, present or future infringements thereof),
and (v) all other rights of any kind whatsoever accruing thereunder or
pertaining thereto.
"Deposit Account": as defined in the Uniform Commercial Code of
any applicable jurisdiction and, in any event, including, without
limitation, any demand, time, savings, passbook or like account
maintained with a depositary institution.
"Excluded Assets": collectively, (a) FCC Licenses, but only if
and to the extent that, and only for as long as, the grant of a security
interest therein is prohibited (notwithstanding the intention of the
holder to grant such security interest to the fullest
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extent lawful) under the laws of the United States and (b) any Lease,
any intellectual property license agreement under which any Grantor is
the licensee, and any other agreement under which any Grantor is
entitled to the performance of any obligation other than the payment of
money, to the extent that, and so long as, the grant by such Grantor of
a security interest pursuant to this Agreement in its right, title and
interest therein (i) is prohibited by the terms of such Lease, license
agreement or other agreement without the consent of any other party
thereto (other than the Borrower or any of its Subsidiaries), (ii) would
give any other party (other than the Borrower or any of its
Subsidiaries) to such Lease, license agreement or other agreement the
right to terminate its obligations thereunder, or (iii) is permitted
only upon obtaining consents from the other parties thereto (other than
the Borrower and any of its Subsidiaries) which have not been obtained;
provided, that no Receivable, no money or other amounts due or to become
due under any Lease, license agreement or other agreement described in
clause (b) of this definition, and no Proceeds from any Disposition of
any Property described in clauses (a) or (b) of this definition, shall
be an Excluded Asset.
"Excluded Foreign Subsidiary": any Foreign Subsidiary in respect
of which either (i) the pledge of all of the Capital Stock of such
Subsidiary as Collateral or (ii) the guaranteeing by such Subsidiary of
the Obligations, would, in the good faith judgment of the Borrower,
result in adverse tax consequences to the Borrower; provided, however,
that (a) a Foreign Subsidiary that is treated as a pass-through entity
for United States federal income tax purposes shall not be an Excluded
Foreign Subsidiary while so treated and (b) SBS Puerto Rico shall not be
an Excluded Foreign Subsidiary.
"Excluded Foreign Subsidiary Voting Stock": the voting Capital
Stock of any Excluded Foreign Subsidiary.
"FCC Licenses": any licenses, permits and authorizations issued
by the Federal Communications Commission for the operation of stations.
"Foreign Subsidiary": any Subsidiary organized under the laws of
any jurisdiction other than any state of the United States of America or
the District of Columbia.
"General Intangibles": all "general intangibles" as such term is
defined in Section 9-106 of the Uniform Commercial Code in effect in the
State of New York on the date hereof and, in any event, including,
without limitation, with respect to any Grantor, all contracts,
agreements, instruments and indentures and all licenses and permits
issued by Governmental Authorities in any form, and portions thereof, to
which such Grantor is a party or under which such Grantor has any right,
title or interest or to which such Grantor or any property of such
Grantor is subject, as the same may from time to time be amended,
supplemented, replaced or otherwise modified, including, without
limitation, (i) all rights of such Grantor to receive moneys due and to
become due to it thereunder or in connection therewith, (ii) all rights
of such Grantor to receive proceeds of any insurance, indemnity,
warranty or guaranty with respect thereto, (iii) all rights of such
Grantor to damages arising thereunder, (iv) all rights of such Grantor
to receive any tax refunds, and (v) all rights of such Grantor to
terminate and to perform, compel
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performance and to exercise all remedies thereunder, in each case to the
extent the grant by such Grantor of a security interest pursuant to this
Agreement in its right, title and interest in such contract, agreement,
instrument, indenture, license or permit is not prohibited by such
contract, agreement, instrument, indenture, license or permit without
the consent of any other party thereto (other than any of its
Subsidiaries), would not give any other party (other than any of its
Subsidiaries) to such contract, agreement, instrument, indenture,
license or permit the right to terminate its obligations thereunder, or
is permitted with consent if all necessary consents to such grant of a
security interest have been obtained from the other parties thereto
(other than any of its Subsidiaries); provided, that the foregoing
limitation shall not affect, limit, restrict or impair the grant by such
Grantor of a security interest pursuant to this Agreement in any
Receivable or any money or other amounts due or to become due under any
such contract, agreement, instrument, indenture, license or permit, or
in the Proceeds from the Disposition of any such contract, agreement,
instrument, indenture, license or permit.
"Guarantor Obligations": with respect to any Guarantor, all
obligations and liabilities of such Guarantor which may arise under or
in connection with this Agreement (including, without limitation,
Section 2) or any other Loan Document to which such Guarantor is a
party, in each case whether on account of guarantee obligations,
reimbursement obligations, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and disbursements of
counsel to any Secured Party that are required to be paid by such
Guarantor pursuant to the terms of this Agreement or any other Loan
Document).
"Guarantors": the collective reference to each Grantor other
than the Borrower.
"Hedge Agreements": as to any Person, all interest rate swaps,
caps or collar agreements or similar arrangements entered into by such
Person providing for protection against fluctuations in interest rates
or currency exchange rates or the exchange of nominal interest
obligations, either generally or under specific contingencies.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including the Copyrights, the Copyright Licenses, the Patents, the
Patent Licenses, the Trademarks, the Trademark Licenses, the Trade
Secrets and the Trade Secret Licenses, and all rights to sue at law or
in equity for any infringement or other impairment thereof, including
the right to receive all proceeds and damages therefrom.
"Intercompany Note": any promissory note evidencing loans made
by any Grantor to any of its Subsidiaries.
"Investment Property": the collective reference to (i) all
"investment property" as such term is defined in Section 9-115 of the
Uniform Commercial Code in effect in the State of New York on the date
hereof including, without limitation, all Certificated Securities and
Uncertificated Securities, all Security Entitlements, all Securities
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Accounts, all Commodity Contracts and all Commodity Accounts (other than
any Excluded Foreign Subsidiary Voting Stock excluded from the
definition of "Pledged Stock"), (ii) security entitlements, in the case
of any United States Treasury book-entry securities, as defined in 31
C.F.R. section 357.2, or, in the case of any United States federal
agency book-entry securities, as defined in the corresponding United
States federal regulations governing such book-entry securities, and
(iii) whether or not constituting "investment property" as so defined,
all Pledged Notes, all Pledged Stock, all Pledged Security Entitlements
and all Pledged Commodity Contracts.
"Issuers": the collective reference to each issuer of a Pledged
Security.
"Lease": any lease of real or personal property under which any
Grantor is the lessee.
"New York UCC": the Uniform Commercial Code as from time to time
in effect in the State of New York.
"Obligations": (i) in the case of the Borrower, the Borrower
Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations.
"Patent License": all agreements, whether written or oral,
providing for the grant by or to any Grantor of any right to
manufacture, use or sell any invention covered in whole or in part by a
Patent, including, without limitation, any of the foregoing referred to
in Schedule 6.
"Patents": (i) all patents, patent applications and patentable
inventions, including, without limitation, each patent and patent
application identified in Schedule 6, (ii) all inventions and
improvements described and claimed therein, (iii) the right to sue or
otherwise recover for any and all past, present and future infringements
and misappropriations thereof, (iv) all income, royalties, damages and
other payments now and hereafter due and/or payable with respect thereto
(including, without limitation, payments under all Patent Licenses
entered into in connection therewith, and damages and payments for past,
present or future infringement thereof), and (v) all reissues,
divisions, continuations, continuations-in-art, substitutes, renewals,
and extensions thereof, all improvements thereon and all other rights of
any kind whatsoever accruing thereunder or pertaining thereto.
"Pledged Commodity Contracts": all commodity contracts listed on
Schedule 2 and all other commodity contracts to which any Grantor is
party from time to time.
"Pledged Debt Securities": the debt securities listed on
Schedule 2, together with any other certificates, options, rights or
security entitlements of any nature whatsoever in respect of the debt
securities of any Person that may be issued or granted to, or held by,
any Grantor while this Agreement is in effect.
"Pledged Notes": all promissory notes listed on Schedule 2, all
Intercompany Notes at any time issued to any Grantor and all other
promissory notes issued to or held
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by any Grantor (other than promissory notes in an aggregate principal
amount not to exceed $250,000 at any time outstanding issued in
connection with extensions of trade credit by any Grantor in the
ordinary course of business).
"Pledged Securities": the collective reference to the Pledged
Debt Securities, the Pledged Notes and the Pledged Stock.
"Pledged Security Entitlements": all security entitlements with
respect to the financial assets listed on Schedule 2 and all other
security entitlements of any Grantor.
"Pledged Stock": the shares of Capital Stock listed on Schedule
2, together with any other shares, stock certificates, options, rights
or security entitlements of any nature whatsoever in respect of the
Capital Stock of any Person that may be issued or granted to, or held
by, any Grantor while this Agreement is in effect; provided that in no
event shall more than 66% of the total outstanding Excluded Foreign
Subsidiary Voting Stock of any Excluded Foreign Subsidiary be required
to be pledged hereunder.
"Proceeds": all "proceeds" as such term is defined in Section
9-306(1) of the Uniform Commercial Code in effect in the State of New
York on the date hereof and, in any event, shall include, without
limitation, all dividends or other income from the Pledged Securities,
collections thereon or distributions or payments with respect thereto.
"Receivable": any right to payment on account of any obligation
that could create any right to receive money, whether or not such right
is evidenced by an Instrument or Chattel Paper and whether or not it has
been earned by performance (including, without limitation, any Account).
"SBS Puerto Rico": Spanish Broadcasting System of Puerto Rico,
Inc., a Puerto Rico corporation.
"Secured Parties": collectively, the Arranger, the Agents, the
Lenders and, with respect to any Specified Hedge Agreement, any
affiliate of any Lender party thereto that has agreed to be bound by the
provisions of Section 7.2 hereof as if it were a party hereto and by the
provisions of Section 9 of the Credit Agreement as if it were a Lender
party thereto and each Indemnitee.
"Securities Act": the Securities Act of 1933, as amended.
"Trademark License": any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to use any
Trademark, including, without limitation, any of the foregoing referred
to in Schedule 6.
"Trademarks": (i) all trademarks, service marks, trade names,
corporate names, company names, business names, trade dress, trade
styles, logos, or other indicia of origin or source identification,
trademark and service mark registrations, and applications for trademark
or service mark registrations and any renewals thereof, including,
without limitation, each registration and application identified in
Schedule 6, (ii) the right to sue
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or otherwise recover for any and all past, present and future
infringements and misappropriations thereof, (iii) all income,
royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments
under all Trademark Licenses entered into in connection therewith, and
damages and payments for past, present or future infringements thereof),
and (iv) all other rights of any kind whatsoever accruing thereunder or
pertaining thereto, together in each case with the goodwill of the
business connected with the use of, and symbolized by, each of the
above.
"Trade Secret License": any agreement, whether written or oral,
providing for the grant by or to any Grantor of any right to use any
Trade Secret, including, without limitation, any of the foregoing
referred to in Schedule 6.
"Trade Secrets": (i) all trade secrets and all confidential and
proprietary information, including know-how, trade secrets,
manufacturing and production processes and techniques, inventions,
research and development information, technical data, financial,
marketing and business data, pricing and cost information, business and
marketing plans, and customer and supplier lists and information,
including, without limitation, any of the foregoing referred to in
Schedule 6, (ii) the right to sue or otherwise recover for any and all
past, present and future infringements and misappropriations thereof,
(iii) all income, royalties, damages and other payments now and
hereafter due and/or payable with respect thereto (including, without
limitation, payments under all licenses entered into in connection
therewith, and damages and payments for past, present or future
infringements thereof), and (iv) all other rights of any kind whatsoever
of such Grantor accruing thereunder or pertaining thereto.
1.2. Other Definitional Provisions. (a) The words "hereof",
"herein", "hereto" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section and Schedule references are to this
Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the
Collateral or any part thereof, when used in relation to a Grantor, shall refer
to such Grantor's Collateral or the relevant part thereof.
(d) The expressions "payment in full," "paid in full" and
any other similar terms or phrases when used herein with respect to the Borrower
Obligations shall mean the payment in full, in immediately available funds, of
all of the Borrower Obligations.
SECTION 2. GUARANTEE
2.1. Guarantee. (a) Each of the Guarantors hereby, jointly
and severally, unconditionally and irrevocably, guarantees to the Administrative
Agent, for the ratable benefit
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of the Secured Parties and their respective successors, indorsees, transferees
and assigns, the prompt and complete payment and performance by the Borrower
when due (whether at the stated maturity, by acceleration or otherwise) of the
Borrower Obligations.
(b) Anything herein or in any other Loan Document to the
contrary notwithstanding, the maximum liability of each Guarantor hereunder and
under the other Loan Documents shall in no event exceed the amount which can be
guaranteed by such Guarantor under applicable federal, state and other laws
relating to the insolvency of debtors (after giving effect to the right of
contribution established in Section 2.2).
(c) Each Guarantor agrees that the Borrower Obligations may
at any time and from time to time exceed the amount of the liability of such
Guarantor hereunder without impairing the guarantee contained in this Section 2
or affecting the rights and remedies of any Secured Party hereunder.
(d) The guarantee contained in this Section 2 shall remain
in full force and effect until all the Borrower Obligations and Guarantor
Obligations shall have been satisfied by payment in full, no Letter of Credit
shall be outstanding and the Commitments shall be terminated or have expired,
notwithstanding that from time to time during the term of the Credit Agreement
the Borrower may be free from any Borrower Obligations.
(e) No payment made by the Borrower, any of the Guarantors,
any other guarantor or any other Person or received or collected by any Secured
Party from the Borrower, any of the Guarantors, any other guarantor or any other
Person by virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in payment of
the Borrower Obligations shall be deemed to modify, reduce, release or otherwise
affect the liability of any Guarantor hereunder which shall, notwithstanding any
such payment (other than any payment made by such Guarantor in respect of the
Borrower Obligations or any payment received or collected from such Guarantor in
respect of the Borrower Obligations), remain liable for the Borrower Obligations
up to the maximum liability of such Guarantor hereunder until the Borrower
Obligations (other than Obligations in respect of any Specified Hedge Agreement)
are paid in full, no Letter of Credit shall be outstanding and the Commitments
are terminated or have expired.
2.2. Right of Contribution. Each Guarantor hereby agrees that
to the extent that a Guarantor shall have paid more than its proportionate share
of any payment made hereunder, such Guarantor shall be entitled to seek and
receive contribution from and against any other Guarantor hereunder which has
not paid its proportionate share of such payment. Each Guarantor's right of
contribution shall be subject to the terms and conditions of Section 2.3. The
provisions of this Section 2.2 shall in no respect limit the obligations and
liabilities of any Guarantor to the Secured Parties and each Guarantor shall
remain liable to the Secured Parties for the full amount guaranteed by such
Guarantor hereunder.
2.3. Subrogation. Notwithstanding any payment made by any
Guarantor hereunder or any set-off or application of funds of any Guarantor by
any Secured Party, no Guarantor shall be entitled to be subrogated to any of the
rights of any Secured Party against the
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Borrower or any other Guarantor or Grantor or any collateral security or
guarantee or right of offset held by any Secured Party for the payment of the
Borrower Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Borrower or any other Guarantor or
Grantor in respect of payments made by such Guarantor hereunder, until all
amounts owing to the Secured Parties by the Borrower on account of the Borrower
Obligations (other than Obligations in respect of any Specified Hedge Agreement)
are paid in full, no Letter of Credit shall be outstanding and the Commitments
are terminated or have expired. If any amount shall be paid to any Guarantor on
account of such subrogation rights at any time when all of the Borrower
Obligations (other than Obligations in respect of any Specified Hedge Agreement)
shall not have been paid in full, any Letter of Credit is outstanding or the
Commitments remain in effect, such amount shall be held by such Guarantor in
trust for the Secured Parties, segregated from other funds of such Guarantor,
and shall, forthwith upon receipt by such Guarantor, be turned over to the
Administrative Agent in the exact form received by such Guarantor (duly endorsed
by such Guarantor to the Administrative Agent, if required), to be applied
against the Borrower Obligations, whether matured or unmatured, in such order as
the Administrative Agent may determine.
2.4. Amendments, etc. with respect to the Borrower
Obligations. Each Guarantor shall remain obligated hereunder notwithstanding
that, without any reservation of rights against any Guarantor and without notice
to or further assent by any Guarantor, any demand for payment of any of the
Borrower Obligations made by any Secured Party may be rescinded by such Secured
Party and any of the Borrower Obligations continued, and the Borrower
Obligations, or the liability of any other Person upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
any Secured Party, and the Credit Agreement and the other Loan Documents and any
other documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Administrative
Agent (or the requisite Lenders under the Credit Agreement or all Lenders, as
the case may be) may deem advisable from time to time, and any collateral
security, guarantee or right of offset at any time held by any Secured Party for
the payment of the Borrower Obligations may be sold, exchanged, waived,
surrendered or released. No Secured Party shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Borrower Obligations or for the guarantee contained in this Section 2 or any
property subject thereto.
2.5. Guarantee Absolute and Unconditional. Each Guarantor
waives any and all notice of the creation, renewal, extension or accrual of any
of the Borrower Obligations and notice of or proof of reliance by any Secured
Party upon the guarantee contained in this Section 2 or acceptance of the
guarantee contained in this Section 2; the Borrower Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon the guarantee
contained in this Section 2; and all dealings between the Borrower and any of
the Guarantors, on the one hand, and the Secured Parties, on the other hand,
likewise shall be conclusively presumed to have been had or consummated in
reliance upon the guarantee contained in this Section 2. Each Guarantor waives
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Borrower or any of the Guarantors with respect to the
Borrower Obligations. Each
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Guarantor understands and agrees that the guarantee contained in this Section 2
shall be construed as a continuing, absolute and unconditional guarantee of
payment and performance without regard to (a) the validity or enforceability of
the Credit Agreement or any other Loan Document, any of the Borrower Obligations
or any other collateral security therefor or guarantee or right of offset with
respect thereto at any time or from time to time held by any Secured Party, (b)
any defense, set-off or counterclaim (other than a defense of payment or
performance hereunder) which may at any time be available to or be asserted by
the Borrower or any other Person against any Secured Party, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the Borrower
or such Guarantor) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Borrower for the Borrower Obligations, or of
such Guarantor under the guarantee contained in this Section 2, in bankruptcy or
in any other instance. When making any demand hereunder or otherwise pursuing
its rights and remedies hereunder against any Guarantor, any Secured Party may,
but shall be under no obligation to, make a similar demand on or otherwise
pursue such rights and remedies as it may have against the Borrower, any other
Guarantor or any other Person or against any collateral security or guarantee
for the Borrower Obligations or any right of offset with respect thereto, and
any failure by any Secured Party to make any such demand, to pursue such other
rights or remedies or to collect any payments from the Borrower, any other
Guarantor or any other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release of the
Borrower, any other Guarantor or any other Person or any such collateral
security, guarantee or right of offset, shall not relieve any Guarantor of any
obligation or liability hereunder, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law, of any
Secured Party against any Guarantor. For the purposes hereof "demand" shall
include the commencement and continuance of any legal proceedings.
2.6. Reinstatement. The guarantee contained in this Section 2
shall continue to be effective, or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any of the Borrower Obligations is
rescinded or must otherwise be restored or returned by any Secured Party upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
2.7. Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Administrative Agent without set-off or
counterclaim in Dollars in immediately available funds at the office of the
Administrative Agent located at the Payment Office specified in the Credit
Agreement.
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the Administrative
Agent, and hereby grants to the Administrative Agent, for the ratable benefit of
the Secured Parties, a security interest in and mortgage on, all of the
following property 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 "Collateral"), as collateral
security for the
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prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of such Grantor's Obligations,:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents;
(e) all Equipment;
(f) all Fixtures;
(g) all General Intangibles;
(h) all Instruments;
(i) all Intellectual Property;
(j) all Inventory;
(k) all Investment Property;
(l) all Leases;
(m) all Goods and other property not otherwise described
above;
(n) all bank accounts, all funds held therein and all
certificates and instruments, if any, from time to time representing or
evidencing such bank accounts;
(o) all books and records pertaining to the Collateral; and
(p) 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, none of the Excluded Assets
shall, to the extent and for so long as they are Excluded Assets, constitute
Collateral. If at any time, by reason of any change in law or the receipt of any
required consent or otherwise, (i) any FCC License that was an Excluded Asset
ceases to meet the conditions set forth in clause (a) of the definition of
"Excluded Assets" found in Section 1.1 of this Agreement or (ii) any Lease,
license agreement or other agreement that was an Excluded Asset ceases to meet
the conditions set forth in the definition of "Excluded Assets" found in Section
1.1 of this Agreement, then such FCC License, Lease, license agreement or other
agreement shall immediately and automatically cease to be an Excluded Asset and
the security interest herein granted shall immediately and automatically attach
thereto without necessity of any further act or deed by any Grantor.
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SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Arranger, the Administrative Agent, the
Syndication Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the Borrower
thereunder, each Grantor hereby represents and warrants to the Secured Parties
that:
4.1. Representations in Credit Agreement In the case of each
Guarantor, the representations and warranties set forth in Section 4 of the
Credit Agreement as they relate to such Guarantor or to the Loan Documents to
which such Guarantor is a party, each of which is hereby incorporated herein by
reference, are true and correct in all material respects, and the Secured
Parties shall be entitled to rely on each of them as if they were fully set
forth herein, provided that each reference in each such representation and
warranty to the Borrower's knowledge shall, for the purposes of this Section
4.l, be deemed to be a reference to such Guarantor's knowledge.
4.2. Title; No Other Liens. Except for the security interest
granted to the Administrative Agent for the ratable benefit of the Secured
Parties pursuant to this Agreement and the other Liens permitted to exist on the
Collateral by the Credit Agreement, such Grantor owns its interest in each item
of the Collateral granted by it free and clear of any and all Liens or claims of
others. No financing statement or other public notice with respect to all or any
part of the Collateral is on file or of record in any public office, except such
as have been filed in favor of the Administrative Agent, for the ratable benefit
of the Secured Parties, pursuant to this Agreement or as are permitted by the
Credit Agreement.
4.3. Perfected First Priority Liens. Except with respect to
assets which in the aggregate do not have a value exceeding $200,000, the
security interests granted pursuant to this Agreement (a) upon completion of the
filings and other actions specified on Schedule 3 (which, in the case of all
filings and other documents referred to on said Schedule, have been delivered to
the Administrative Agent in completed and duly executed form) will constitute
valid perfected security interests in all of the Collateral in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, as
collateral security for such Grantor's Obligations, enforceable in accordance
with the terms hereof against all creditors of such Grantor and (b) are prior to
all other Liens on the Collateral in existence on the date hereof except for (i)
unrecorded Liens permitted by the Credit Agreement which have priority over the
Liens on the Collateral by operation of law and (ii) Liens described on Schedule
7.
4.4. Chief Executive Office. On the date hereof, such
Grantor's jurisdiction of organization and the location of such Grantor's chief
executive office or sole place of business are specified on Schedule 4.
4.5. Inventory, Equipment and Books and Records. On the date
hereof, the Inventory and the Equipment (other than mobile goods) and the books
and records pertaining to the Collateral are kept at the locations listed on
Schedule 5.
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4.6. Farm Products. None of the Collateral constitutes, or is
the Proceeds of, Farm Products.
4.7. Investment Property. (a) The shares of Pledged Stock
pledged by such Grantor hereunder constitute all of the issued and outstanding
shares of all classes of the Capital Stock of each Issuer owned by such Grantor
or, in the case of Excluded Foreign Subsidiary Voting Stock, if less, 66% of the
outstanding Excluded Foreign Subsidiary Voting Stock of each relevant Issuer.
(b) All the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable.
(c) The terms of any uncertificated limited liability
company interests and partnership interests included in the Pledged Stock
expressly provide that they are securities governed by Article 8 of the Uniform
Commercial Code in effect from time to time in the "issuer's jurisdiction" of
each Issuer thereof (as such term is defined in the Uniform Commercial Code in
effect in such jurisdiction).
(d) Such Grantor is the record and beneficial owner of, and
has good and marketable title to, the Pledged Stock and Pledged Notes pledged by
it hereunder, free of any and all Liens or options in favor of, or claims of,
any other Person, except the security interest created by this Agreement.
4.8. Receivables. No amount exceeding $250,000 and payable
to such Grantor under or in connection with any Receivable is evidenced by any
Instrument or Chattel Paper which has not been delivered to the Administrative
Agent.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Secured Parties that,
from and after the date of this Agreement until the Obligations (other than
Obligations in respect of any Specified Hedge Agreement) shall have been paid in
full, no Letter of Credit shall be outstanding and the Commitments shall have
terminated or expired:
5.1. Covenants in Credit Agreement. Each Guarantor shall
take, or shall refrain from taking, as the case may be, each action that is
necessary to be taken or not taken, as the case may be, so that no Default or
Event of Default is caused by the failure to take such action or to refrain from
taking such action by such Guarantor or any of its Subsidiaries.
5.2. Delivery and Control of Instruments, Chattel Paper and
Investment Property. (a) If an aggregate principal amount of the Collateral
exceeding $250,000 shall be or become evidenced or represented by any
Instrument, Certificated Security or Chattel Paper, such Instrument,
Certificated Security or Chattel Paper shall be immediately delivered to the
Administrative Agent, duly endorsed in a manner satisfactory to the
Administrative Agent, to be held as Collateral pursuant to this Agreement.
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(b) If any of the Collateral shall be or become evidenced or
represented by an Uncertificated Security, such Grantor shall cause the Issuer
thereof either (i) to register the Administrative Agent as the registered owner
of such Uncertificated Security, upon original issue or registration of transfer
or (ii) to agree in writing with such Grantor and the Administrative Agent that
such Issuer will comply with instructions with respect to such Uncertificated
Security originated by the Administrative Agent without further consent of such
Grantor, such agreement to be in substantially the form of Exhibit B.
(c) If any of the Collateral shall be or become evidenced or
represented by a Security Entitlement, such Grantor shall cause the Securities
Intermediary with respect to such Security Entitlement either (i) to identify in
its records the Administrative Agent as having such Security Entitlement against
such Securities Intermediary or (ii) to agree in writing with such Grantor and
the Administrative Agent that such Securities intermediary will comply with
Entitlement Orders originated by the Administrative Agent without further
consent of such Grantor, such agreement to be in substantially the form of
Exhibit C.
(d) If any of the Collateral shall be or become evidenced or
represented by a Commodity Contract, such Grantor shall cause the Commodity
Intermediary with respect to such Commodity Contract to agree in writing with
such Grantor and the Administrative Agent that such Commodity Intermediary will
apply any value distributed on account of such Commodity Contract as directed by
the Administrative Agent without further consent of such Grantor, such agreement
to be in substantially the form of Exhibit D.
(e) If any of the Collateral shall be or become evidenced or
represented by or held in a Securities Account or a Commodity Account, such
Grantor shall, in the case of a Securities Account, comply with subsection (c)
of this Section 5.2 with respect to all Security Entitlements carried in such
Securities Account and, in the case of a Commodity Account, comply with
subsection (d) of this Section 5.2 with respect to all Commodity Contracts
carried in such Commodity Account.
5.3. Maintenance of Insurance. Such Grantor will maintain
insurance as required pursuant to Section 6.5 of Credit Agreement.
5.4. Maintenance of Perfected Security Interest; Further
Documentation. (a) Such Grantor shall maintain the security interest created by
this Agreement as a perfected security interest having at least the priority
described in Section 4.3 and shall defend such security interest against the
claims and demands of all Persons whomsoever.
(b) Such Grantor will furnish to the Secured Parties from
time to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the assets and property of
such Grantor as the Administrative Agent may reasonably request, all in
reasonable detail.
(c) At any time and from time to time, upon the written
request of the Administrative Agent, and at the sole expense of such Grantor,
such Grantor will promptly and duly execute and deliver, and have recorded, such
further instruments and documents and take
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such further actions as the Administrative Agent may reasonably request for the
purpose of obtaining or preserving the full benefits of this Agreement and of
the rights and powers herein granted, including, without limitation, (i) the
filing of any financing or continuation statements under the Uniform Commercial
Code (or other similar laws) in effect in any jurisdiction with respect to the
security interests created hereby and (ii) in the case of Investment Property,
Deposit Accounts and any other relevant Collateral, taking any actions necessary
to enable the Administrative Agent to obtain "control" (within the meaning of
the applicable Uniform Commercial Code) with respect thereto (or, in the case of
Deposit Accounts, taking sole dominion and control thereof).
5.5. Changes in Locations, Name, etc. Such Grantor will not,
except upon 15 days' prior written notice to the Administrative Agent and
delivery to the Administrative Agent of (a) all additional executed financing
statements and other documents reasonably requested by the Administrative Agent
to maintain the validity, perfection and priority of the security interests
provided for herein and (b) if applicable, a written supplement to Schedule 5
showing any additional location at which Inventory or Equipment (other than
mobile goods) or books and records pertaining to the Collateral shall be kept:
(i) permit any of the Inventory or Equipment (other than
mobile goods) or books and records pertaining to the Collateral to be kept at a
location other than those listed on Schedule 5;
(ii) change its jurisdiction of organization or the location
of its chief executive office or sole place of business from that referred to in
Section 4.4; or
(iii) change its name, identity or structure to such an extent
that any financing statement filed by the Administrative Agent in connection
with this Agreement would become misleading.
5.6. Investment Property. (a) If such Grantor shall receive
any stock or other ownership certificate (including, without limitation, any
certificate representing a stock dividend or a distribution in connection with
any reclassification, increase or reduction of capital or any certificate issued
in connection with any reorganization), option or rights in respect of the
Capital Stock of any Issuer, whether in addition to, in substitution of, as a
conversion of, or in exchange for, any shares of or other ownership interests in
the Pledged Stock, or otherwise in respect thereof, such Grantor shall accept
the same as the agent of the Secured Parties, hold the same in trust for the
Secured Parties and deliver the same forthwith to the Administrative Agent in
the exact form received, duly endorsed by such Grantor to the Administrative
Agent, if required, together with an undated stock power covering such
certificate duly executed in blank by such Grantor and with, if the
Administrative Agent so requests, signature guaranteed, to be held by the
Administrative Agent, subject to the terms hereof, as additional collateral
security for the Obligations. Any sums paid upon or in respect of the Pledged
Securities upon the liquidation or dissolution of any Issuer shall be paid over
to the Administrative Agent to be held by it hereunder as additional collateral
security for the Obligations, and in case any distribution of capital shall be
made on or in respect of the Pledged Securities or any property shall be
distributed upon or with respect to the Pledged Securities pursuant to the
recapitalization or reclassification of the capital
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of any Issuer or pursuant to the reorganization thereof, the property so
distributed shall, unless otherwise subject to a perfected security interest in
favor of the Administrative Agent, be delivered to the Administrative Agent to
be held by it hereunder as additional collateral security for the Obligations.
If any sums of money or property so paid or distributed in respect of the
Pledged Securities shall be received by such Grantor, such Grantor shall, until
such money or property is paid or delivered to the Administrative Agent, hold
such money or property in trust for the Secured Parties, segregated from other
funds of such Grantor, as additional collateral security for the Obligations.
(b) Without the prior written consent of the Administrative
Agent, such Grantor will not (i) sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, any of the Investment Property
or Proceeds thereof or any interest therein (except pursuant to a transaction
permitted by the Credit Agreement), (ii) create, incur or permit to exist any
Lien or option in favor of, or any claim of any Person with respect to, any of
the Investment Property or Proceeds thereof, or any interest therein, except for
the security interests created by this Agreement or (iii) enter into any
agreement or undertaking restricting the foreclosure of the Administrative
Agent's security interest in any of the Investment Property or Proceeds thereof
or any interest therein.
(c) In the case of each Grantor which is an Issuer, such
Issuer agrees that (i) it will be bound by the terms of this Agreement relating
to the Pledged Securities issued by it and will comply with such terms insofar
as such terms are applicable to it, (ii) it will notify the Administrative Agent
promptly in writing of the occurrence of any of the events described in Section
5.6(a) with respect to the Pledged Securities issued by it and (iii) the terms
of Section 6.3(c) shall apply to it, mutatis mutandis, with respect to all
actions that may be required of it with respect to the Pledged Securities issued
by it.
5.7. Intellectual Property. Except in any respect that would
not materially impair the right, power, authority and ability of the Grantors to
use their intellectual property as necessary or convenient for the profitable
conduct of their businesses and would not reasonably be expected to have a
Material Adverse Effect:
(a) Such Grantor (either itself or through licensees) will
(i) continue to use each material Trademark on each and every trademark class of
goods applicable to its current line as reflected in its current catalogs,
brochures and price lists in order to maintain such Trademark in full force free
from any claim of abandonment for non-use, (ii) maintain as in the past the
quality of products and services offered under such Trademark and take all
necessary steps to ensure that all licensed users of such Trademark maintain as
in the past such quality, (iii) use such Trademark with the appropriate notice
of registration and all other notices and legends required by applicable
Requirements of Law, (iv) not adopt or use any mark which is confusingly similar
or a colorable imitation of such Trademark unless the Administrative Agent, for
the ratable benefit of the Secured Parties, shall obtain a perfected security
interest in such mark pursuant to this Agreement and the Intellectual Property
Security Agreement, and (v) not (and not permit any licensee or sublicensee
thereof to) do any act or knowingly omit to do any act whereby such Trademark
may become invalidated or impaired in any way.
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(b) Such Grantor (either itself or through licensees) will
not do any act, or omit to do any act, whereby any material Patent may become
forfeited, abandoned or dedicated to the public.
(c) Such Grantor (either itself or through licensees) (i)
will employ each material Copyright and (ii) will not (and will not permit any
licensee or sublicensee thereof to) do any act or knowingly omit to do any act
whereby any material portion of the Copyrights may become invalidated or
otherwise impaired. Such Grantor will not (either itself or through licensees)
do any act whereby any material portion of the Copyrights may fall into the
public domain.
(d) Such Grantor (either itself or through licensees) will
not do any act that knowingly uses any material Intellectual Property to
infringe the intellectual property rights of any other Person.
(e) Such Grantor (either itself or through licensees) will
use proper statutory notice in connection with the use of each material Patent,
Trademark and Copyright included in the Intellectual Property.
(f) Such Grantor will notify the Secured Parties immediately
if it knows, or has reason to know, that any application or registration
relating to any material Intellectual Property may become forfeited, abandoned
or dedicated to the public, or of any adverse determination or development
(including, without limitation, the institution of, or any such determination or
development in, any proceeding in the United States Patent and Trademark Office,
the United States Copyright Office or any court or tribunal in any country)
regarding such Grantor's ownership of, or the validity of, any material
Intellectual Property or such Grantor's right to register the same or to own and
maintain the same.
(g) Whenever such Grantor, either by itself or through any
agent, employee, licensee or designee, shall file an application for the
registration of any Intellectual Property with the United States Patent and
Trademark Office, the United States Copyright Office or any similar office or
agency in any other country or any political subdivision thereof, such Grantor
shall report such filing to the Administrative Agent within five Business Days
after the last day of the fiscal quarter in which such filing occurs. Upon
request of the Administrative Agent, such Grantor shall execute and deliver, and
have recorded, any and all agreements, instruments, documents, and papers as the
Administrative Agent may request to evidence the Secured Parties' security
interest in any Copyright, Patent, Trademark or other Intellectual Property and
the goodwill and general intangibles of such Grantor relating thereto or
represented thereby.
(h) Such Grantor will take all reasonable and necessary
steps, including, without limitation, in any proceeding before the United States
Patent and Trademark Office, the United States Copyright Office or any similar
office or agency in any other country or any political subdivision thereof, to
maintain and pursue each application (and to obtain the relevant registration)
and to maintain each registration of material Intellectual Property, including,
without limitation, the payment of required fees and taxes, the filing of
responses to office actions issued by the United States Patent and Trademark
Office and the United States Copyright
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Office, the filing of applications for renewal or extension, the filing of
affidavits of use and affidavits of incontestability, the filing of divisional,
continuation, continuation-in-part, reissue, and renewal applications or
extensions, the payment of maintenance fees, and the participation in
interference, reexamination, opposition, cancellation, infringement and
misappropriation proceedings.
(i) Such Grantor (either itself or through licensees) will
not, without the prior written consent of the Administrative Agent, discontinue
use of or otherwise abandon any Intellectual Property, or abandon any right to
file an application for letters patent, trademark, or copyright, unless such
Grantor shall have previously determined that such use or the pursuit or
maintenance of such Intellectual Property is no longer desirable in the conduct
of such Grantor's business and that the loss thereof could not reasonably be
expected to have a Material Adverse Effect and, in which case, such Grantor
shall give prompt notice of any such abandonment to the Administrative Agent in
accordance herewith.
(j) In the event that any material Intellectual Property is
infringed, misappropriated or diluted by a third party, such Grantor shall (i)
take such actions as such Grantor shall reasonably deem appropriate under the
circumstances to protect such Intellectual Property and (ii) if such
Intellectual Property is of material economic value, promptly notify the
Administrative Agent after it learns thereof and sue for infringement,
misappropriation or dilution, to seek injunctive relief where appropriate and to
recover any and all damages for such infringement, misappropriation or dilution.
(k) Such Grantor agrees that, should it obtain an ownership
interest in any item of intellectual property which is not now a part of the
Intellectual Property Collateral (the "After-Acquired Intellectual Property"),
(i) the provisions of Section 3 shall automatically apply thereto, (ii) any such
After-Acquired Intellectual Property, and in the case of trademarks, the
goodwill of the business connected therewith or symbolized thereby, shall
automatically become part of the Intellectual Property Collateral, (iii) it
shall give prompt (and, in any event within 15 days after the date of such
acquisition) written notice thereof to the Administrative Agent in accordance
herewith, and (iv) it shall provide the Administrative Agent promptly (and, in
any event within 15 days after the date of such acquisition) with an amended
Schedule 6 hereto and amended schedules to the Intellectual Property Security
Agreement reflecting the acquisition of such After-Acquired Intellectual
Property. Such Grantor authorizes the Administrative Agent to modify this
Agreement by amending Schedule 6 hereto and to modify the schedules to the
Intellectual Property Security Agreement if such Grantor fails to provide the
Administrative Agent with satisfactory amended schedules hereto or thereto
within the time period required hereunder (and will cooperate with the
Administrative Agent in effecting any such amendment) to include any
After-Acquired Intellectual Property which becomes part of the Intellectual
Property Collateral under this Section, and to record any such modified
agreement with the United States Patent and Trademark Office, the United States
Copyright Office, or any other applicable Governmental Authority.
(l) Such Grantor agrees to execute an Intellectual Property
Security Agreement with respect to its Intellectual Property in substantially
the form of Exhibit A in order to record the security interest granted herein to
the Administrative Agent for the ratable benefit of
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the Secured Parties with the United States Patent and Trademark Office, the
United States Copyright Office, and any other applicable Governmental Authority.
SECTION 6. REMEDIAL PROVISIONS
6.1. Default. Grantors shall be in default under this
Agreement (a) whenever any Event of Default has occurred and is continuing (and
each of the Grantors shall thereupon be in default hereunder without regard to
whether or to what degree any Grantor individually may have caused, participated
in, or had any knowledge of the occurrence of such Event of Default) and (b) at
all times after the Loans have become due and payable, whether at maturity, upon
acceleration pursuant to the Credit Agreement or otherwise.
6.2. Remedies Upon Default. At any time when any Grantor is
in default under this Agreement as set forth in Section 6.1, the Administrative
Agent may exercise and enforce, in any order, (i) each and all of the rights and
remedies available to a secured party upon default under the Uniform Commercial
Code or other applicable law, (ii) each and all of the rights and remedies
available to it under the Credit Agreement or any other Loan Document and (iii)
each and all of the following rights and remedies:
(a) Collection Rights. Without notice to any Grantor or any
other Loan Party, the Administrative Agent may notify any or all account debtors
and obligors on any Accounts, Instruments or other Claims constituting
Collateral of the Administrative Agent's security interests therein and may
direct, demand and enforce payment thereof directly to the Administrative Agent.
(b) Taking Possession. The Administrative Agent may (i)
enter upon any and all premises owned or leased by any Grantor where Collateral
is located (or believed by the Administrative Agent to be located), with or (to
the fullest extent permitted by law) without judicial process and without any
obligation to pay rent, (ii) prior to the disposition of the Collateral, store,
process, repair or recondition the Collateral or otherwise prepare the
Collateral for disposition in any manner to the extent the Administrative Agent
deems appropriate, (iii) take possession of any Grantor's premises or place
custodians in exclusive control thereof, remain on such premises and use the
same and any Grantor's equipment for the purpose of completing any work in
process or otherwise preparing the Collateral for sale or selling or otherwise
transferring the Collateral, (iv) take possession of all items of Collateral
that are not then in its possession, either upon such premises or by removal
from such premises, and (v) require any Grantor or the Person in possession
thereof to deliver such Collateral to the Administrative Agent at one or more
locations designated by the Administrative Agent and reasonably convenient to it
and each Grantor owning an interest therein.
(c) Foreclosure. The Administrative Agent may sell, lease,
license or otherwise dispose of or transfer any or all of the Collateral or any
part thereof in one or more parcels at public sale or in private sale or
transaction, on any exchange or market or at the Administrative Agent's offices
or on any Grantor's premises or at any other location, for cash, on credit or
for future delivery, and may enter into all contracts necessary or appropriate
in connection therewith, without any notice whatsoever unless required by law.
Where permitted
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by law, one or more of the Secured Parties may be the purchasers at any such
sale and in such event, if such bid is made by all of the Lenders or otherwise
whenever a credit bid is expressly permitted under the Credit Agreement or
approved in writing by the Administrative Agent and the Required Lenders, the
Secured Parties bidding at such sale may bid part or all of the Obligations
owing to them without necessity of any cash payment on account of the purchase
price, even though any other purchaser at such sale is required to bid a
purchase price payable in cash. Each Grantor agrees that at least 10 calendar
days' written notice to such Grantor of the time and place of any public sale of
Collateral owned by it (or, to the extent such Grantor is entitled by law to
notice thereof, the public sale of any other Collateral), or the time after
which any private sale of Collateral owned by it (or, to the extent such Grantor
is entitled by law to notice thereof, the private sale of any other Collateral)
is to be made, shall be commercially reasonable. For purposes of such notice, to
the fullest extent permitted by law (i) each Grantor waives notice of any sale
of Collateral owned by any other Grantor and (ii) each Grantor agrees that
notice given to the Borrower shall constitute notice given to such Grantor. The
giving of notice of any such sale or other disposition shall not obligate the
Administrative Agent to proceed with the sale or disposition, and any such sale
or disposition may be postponed or adjourned from time to time, without further
notice.
(d) Use of Intellectual Property. The Administrative Agent
may, on a royalty-free basis, use and license use of any trademark, trade name,
trade style, copyright, patent or technical knowledge or process owned, held or
used by any Grantor in respect of any Collateral as to which any right or remedy
of the Administrative Agent is exercised or enforced.
In addition, the Administrative Agent may exercise and enforce such rights and
remedies for collection as may be available to it by law or agreement.
6.3. Waivers by Grantors. Each Grantor hereby irrevocably
waives (a) all rights of redemption from any foreclosure sale, (b) the benefit
of all valuation, appraisal, exemption and moratorium laws, (c) to the fullest
extent permitted by law, all rights to notice or a hearing prior to the exercise
by the Administrative Agent of its right to take possession of any Collateral,
whether by self-help or by legal process and any right to object to the
Administrative Agent taking possession of any Collateral by self-help, and (d)
if the Administrative Agent seeks to obtain possession of any Collateral by
replevin, claim and delivery, attachment, levy or other legal process, (i) any
notice or demand for possession prior to the commencement of legal proceedings,
(ii) the posting of any bond or security in any such proceedings, and (iii) any
requirement that the Administrative Agent retain possession and not dispose of
any Collateral until after a trial or final judgment in such proceedings.
6.4. Standard of Care. The powers conferred on the
Administrative Agent hereunder are solely to protect its interest in the
Collateral and shall not impose any duty upon it to exercise any such powers.
Except for the exercise of reasonable care in the custody of any Collateral in
its possession and the accounting for moneys actually received by it hereunder,
the Administrative Agent shall have no duty as to any Collateral or as to the
taking of any necessary steps to preserve rights against prior parties or to
protect, preserve, vote or exercise any rights pertaining to any Collateral. The
Administrative Agent shall be deemed to have exercised reasonable care in the
custody and preservation of Collateral in its possession if such Collateral is
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accorded treatment substantially equal to that which the Administrative Agent
accords its own property or if it selects, with reasonable care, a custodian to
hold such Collateral on its behalf.
6.5. Application of Proceeds. Except as expressly provided
elsewhere in this Agreement, all proceeds received by the Administrative Agent
in respect of any sale of, collection from, or other realization upon all or any
part of the Collateral may, in the discretion of the Administrative Agent, be
held by the Administrative Agent as Collateral for, or then, or at any other
time thereafter, applied in full or in part by the Administrative Agent against,
the Obligations in the following order of priority:
FIRST: To the payment of all reasonable costs and expenses of
such sale, collection or other realization, including reasonable
compensation to the Administrative Agent and its agents and counsel, and
all other reasonable expenses, liabilities and advances made or incurred
by the Administrative Agent in connection therewith, and all amounts for
which the Administrative Agent is entitled to indemnification hereunder
and all reasonable advances made by the Administrative Agent hereunder
for the account of any Grantor, and to the payment of all reasonable
costs and expenses paid or incurred by the Administrative Agent in
connection with the exercise of any right or remedy hereunder, all in
accordance with Section 8.4;
SECOND: To the payment of all other Obligations (for the ratable
benefit of the holders thereof) then due and payable; and
THIRD: To the payment to or upon the order of the Grantor
entitled thereto, or to whomsoever may be lawfully entitled to receive
the same or as a court of competent jurisdiction may direct, of any
surplus then remaining from such proceeds.
6.6. Surplus, Deficiency. Any surplus proceeds of any sale or
other disposition by the Administrative Agent of any Collateral remaining after
discharge of the Credit Agreement and after all Obligations are paid in full and
in cash shall be paid over to the Grantor entitled thereto, or to whomever may
be lawfully entitled to receive such surplus or as a court of competent
jurisdiction may direct, but prior to discharge of the Credit Agreement, such
surplus proceeds may be retained by the Administrative Agent and held as
Collateral until discharge of the Credit Agreement. The Borrower and each
Guarantor shall be and remain liable for any deficiency.
6.7. Information Related to the Collateral. If, during the
continuance of an Event of Default, the Administrative Agent determines to sell
or otherwise transfer any Collateral, each Grantor shall, and shall cause any
Person controlled by it to, furnish to the Administrative Agent all information
the Administrative Agent may request that pertains or could pertain to the value
or condition of the Collateral or that would or might facilitate such sale or
transfer. The Administrative Agent shall have the right, notwithstanding any
confidentiality obligation or agreement otherwise binding upon it, freely to
disclose such information, and any and all other information (including
confidential information) pertaining in any manner to the Collateral or the
assets, liabilities, results of operations, business or prospects of any Secured
Parties, freely to any Person that the Administrative Agent in good faith
believes to be a potential
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or prospective purchaser in such sale or transfer, without liability for any
disclosure, dissemination or use that may be made as to such information by any
such Person.
6.8 Sale Exempt from Registration. The Administrative Agent
shall be entitled at any such sale or other transfer, if it deems it advisable
to do so, to restrict the prospective bidders or purchasers to Persons who will
provide assurances satisfactory to the Administrative Agent that the Collateral
may be offered and sold to them without registration under the Securities Act of
1933, as amended, and without registration or qualification under any other
applicable state or federal law. Upon the 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. The Administrative Agent
may solicit offers to buy the Collateral, or any part of it, from a limited
number of investors deemed by the Administrative Agent, in its good faith
judgment or in good faith reliance upon advice of its counsel, to meet the
requirements to purchase securities under Regulation D promulgated under the
Securities Act of 1933 as then in effect (or any other regulation of similar
import). If the Administrative Agent solicits such offers from such investors,
then the acceptance by the Administrative Agent of the highest offer obtained
from any of them shall be deemed to be a commercially reasonable method of
disposition of the Collateral
6.9 Rights and Remedies Cumulative. The rights provided for
in this Agreement and the other Loan Documents are cumulative and are not
exclusive of any other rights, powers or privileges or remedies provided by law
or in equity, or under any other instrument, document or agreement. The
Administrative Agent may exercise and enforce each right and remedy available to
it either before or concurrently with or after, and independently of, any
exercise or enforcement of any other right or remedy of the Administrative Agent
or any Secured Party against any Person or property. All such rights and
remedies shall be cumulative, and no one of them shall exclude or preclude any
other.
6.10 No Direct Enforcement by Secured Parties. The
Administrative Agent may freely exercise and enforce any and all of its rights
and remedies hereunder, for the benefit of the Secured Parties. No Secured
Party, other than the Administrative Agent, shall have any independent right to
collect, take possession of, foreclose against or otherwise enforce the security
interests granted hereby.
SECTION 7. THE ADMINISTRATIVE AGENT
7.1. Administrative Agent's Appointment as Attorney-in-Fact,
etc. (a) Each Grantor hereby irrevocably constitutes and appoints the
Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Grantor and in the name of
such Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be necessary or desirable to accomplish
the purposes of this Agreement, and, without limiting the generality of the
foregoing, each Grantor hereby gives the Administrative Agent the power and
right, on behalf of such Grantor, without notice to or assent by such Grantor,
to do any or all of the following:
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(i) in the name of such Grantor or its own name, or
otherwise, take possession of and endorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of
moneys due under any Receivable or with respect to any other Collateral
and file any claim or take any other action or proceeding in any court
of law or equity or otherwise deemed appropriate by the Administrative
Agent for the purpose of collecting any and all such moneys due under
any Receivable or with respect to any other Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute and
deliver, and have recorded, any and all agreements, instruments,
documents and papers as the Administrative Agent may request to evidence
the Secured Parties' security interest in such Intellectual Property and
the goodwill and general intangibles of such Grantor relating thereto or
represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of the
premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in
Section 6, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral; and
(v) (1) direct any party liable for any payment under any of
the Collateral to make payment of any and all moneys due or to become
due thereunder directly to the Administrative Agent or as the
Administrative Agent shall direct; (2) ask or demand for, collect, and
receive payment of and receipt for, any and all moneys, claims and other
amounts due or to become due at any time in respect of or arising out of
any Collateral; (3) sign and endorse any invoices, freight or express
bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications, notices and other documents in
connection with any of the Collateral; (4) commence and prosecute any
suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any portion thereof
and to enforce any other right in respect of any Collateral; (5) defend
any suit, action or proceeding brought against such Grantor with respect
to any Collateral; (6) settle, compromise or adjust any such suit,
action or proceeding and, in connection therewith, give such discharges
or releases as the Administrative Agent may deem appropriate; (7) assign
any Copyright, Patent or Trademark (along with the goodwill of the
business to which any such Copyright, Patent or Trademark pertains),
throughout the world for such term or terms, on such conditions, and in
such manner, as the Administrative Agent shall in its sole discretion
determine; and (8) generally, sell, transfer, pledge and make any
agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though the Administrative Agent were the
absolute owner thereof for all purposes, and do, at the Administrative
Agent's option and such Grantor's expense, at any time, or from time to
time, all acts and things which the Administrative Agent deems necessary
to protect, preserve or realize upon the Collateral and the Secured
Parties' security interests therein
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and to effect the intent of this Agreement, all as fully and effectively
as such Grantor might do.
Anything in this Section 7.1(a) to the contrary notwithstanding,
the Administrative Agent agrees that it will not exercise any rights under the
power of attorney provided for in this Section 7.1(a) unless an Event of Default
shall have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of
its agreements contained herein, the Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the Administrative Agent incurred in
connection with actions undertaken as provided in this Section 7.1, together
with interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due Base Rate Loans under the Credit
Agreement, from the date of payment by the Administrative Agent to the date
reimbursed by the relevant Grantor, shall be payable by such Grantor to the
Administrative Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys
shall lawfully do or cause to be done by virtue hereof. All powers,
authorizations and agencies contained in this Agreement are coupled with an
interest and are irrevocable until this Agreement is terminated and the security
interests created hereby are released.
7.2. Duty of Administrative Agent. The Administrative Agent's
sole duty with respect to the custody, safekeeping and physical preservation of
the Collateral in its possession, under Section 9-207 of the New York UCC or
otherwise, shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. Neither the
Administrative Agent, nor any other Secured Party nor any of their respective
officers, directors, partners, employees, agents, attorneys and other advisors,
attorneys-in-fact or affiliates shall be liable for failure to demand, collect
or realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Secured Parties hereunder are solely to protect the Secured
Parties' interests in the Collateral and shall not impose any duty upon any
Secured Party to exercise any such powers. The Secured Parties shall be
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
partners, employees, agents, attorneys and other advisors, attorneys-in-fact or
affiliates shall be responsible to any Grantor for any act or failure to act
hereunder, except to the extent that any such act or failure to act is found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted solely from their own gross negligence or willful misconduct.
7.3. Execution of Financing Statements. Pursuant to Section
9-402 of the New York UCC and any other applicable law, each Grantor authorizes
the Administrative Agent to file or record financing statements and other filing
or recording documents or instruments with
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respect to the Collateral without the signature of such Grantor in such form and
in such offices as the Administrative Agent reasonably determines appropriate to
perfect or maintain the perfection of the security interests of the
Administrative Agent under this Agreement. A photographic or other reproduction
of this Agreement shall be sufficient as a financing statement or other filing
or recording document or instrument for filing or recording in any jurisdiction.
7.4. Authority of Administrative Agent. Each Grantor
acknowledges that the rights and responsibilities of the Administrative Agent
under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any option,
voting right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the Administrative
Agent and the other Secured Parties, be governed by the Credit Agreement and by
such other agreements with respect thereto as may exist from time to time among
them, but, as between the Administrative Agent and the Grantors, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Secured Parties with full and valid authority so to act or refrain from
acting, and no Grantor shall be under any obligation, or entitlement, to make
any inquiry respecting such authority.
SECTION 8. MISCELLANEOUS
8.1. Amendments in Writing. None of the terms or provisions
of this Agreement may be waived, amended, supplemented or otherwise modified
except by a written instrument executed by each affected Grantor and the
Administrative Agent, provided that any provision of this Agreement imposing
obligations on any Grantor may be waived by the Administrative Agent in a
written instrument executed by the Administrative Agent in accordance with
Section 10.1 of the Credit Agreement.
8.2. Notices. All notices, requests and demands to or upon
the Administrative Agent or any Grantor hereunder shall be effected in the
manner provided for in Section 10.2 of the Credit Agreement; provided that any
such notice, request or demand to or upon any Guarantor shall be addressed to
such Guarantor at its notice address set forth on Schedule 1.
8.3. No Waiver by Course of Conduct; Cumulative Remedies. No
Secured Party shall by any act (except by a written instrument pursuant to
Section 8.1), delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any Default or Event of
Default. No failure to exercise, nor any delay in exercising, on the part of any
Secured Party, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by any Secured Party of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which such Secured Party would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
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8.4. Enforcement Expenses; Indemnification. (a) Each Grantor
agrees to pay or reimburse each Secured Party for all its costs and expenses
incurred in collecting against such Grantor under the guarantee contained in
Section 2 or otherwise enforcing or preserving any rights under this Agreement
and the other Loan Documents to which such Grantor is a party, including,
without limitation, the fees and disbursements of counsel (including the
allocated fees and expenses of in-house counsel) to each Secured Party and of
counsel to the Administrative Agent.
(b) Each Grantor agrees to pay, and to save the Secured
Parties harmless from, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement to the extent the Borrower
would be required to do so pursuant to Section 10.5 of the Credit Agreement.
(c) The agreements in this Section shall survive repayment
of the Obligations and all other amounts payable under the Credit Agreement and
the other Loan Documents.
(d) Each Grantor agrees that the provisions of Section 2.20
of the Credit Agreement are hereby incorporated herein by reference, mutatis
mutandis, and each Secured Party shall be entitled to rely on each of them as if
they were fully set forth herein.
8.5. Successors and Assigns. This Agreement shall be binding
upon the successors and assigns of each Grantor and shall inure to the benefit
of the Secured Parties and their successors and assigns; provided that no
Grantor may assign, transfer or delegate any of its rights or obligations under
this Agreement without the prior written consent of the Administrative Agent.
8.6. Set-Off. Each Grantor hereby irrevocably authorizes each
Secured Party at any time and from time to time while an Event of Default shall
have occurred and be continuing, without notice to such Grantor or any other
Grantor, any such notice being expressly waived by each Grantor, to set-off and
appropriate and apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Secured
Party to or for the credit or the account of such Grantor, or any part thereof
in such amounts as such Secured Party may elect, against and on account of the
obligations and liabilities of such Grantor to such Secured Party hereunder and
claims of every nature and description of such Secured Party against such
Grantor, in any currency, whether arising hereunder, under the Credit Agreement,
any other Loan Document or otherwise, as such Secured Party may elect, whether
or not any Secured Party has made any demand for payment and although such
obligations, liabilities and claims may be contingent or unmatured. Each Secured
Party shall notify such Grantor promptly of any such set-off and the application
made by such Secured Party of the proceeds thereof, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of each Secured Party under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
which such Secured Party may have.
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8.7. Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
8.8. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
8.9. Section Headings. The Section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
8.10. Integration. This Agreement and the other Loan Documents
represent the agreement of the Grantors, the Administrative Agent and the other
Secured Parties with respect to the subject matter hereof and thereof, and there
are no promises, undertakings, representations or warranties by any Secured
Party relative to subject matter hereof and thereof not expressly set forth or
referred to herein or in the other Loan Documents.
8.11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8.12. Submission To Jurisdiction; Waivers. Each Grantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action
or proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Grantor at its address referred to in Section 8.2 or at
such other address of which the Administrative Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
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(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
8.13. Acknowledgments. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents to which
it is a party;
(b) no Secured Party has any fiduciary relationship with or
duty to any Grantor arising out of or in connection with this Agreement or any
of the other Loan Documents, and the relationship between the Grantors, on the
one hand, and the Secured Parties, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Secured Parties or among the Grantors and the Secured Parties.
8.14. Additional Grantors. Each Subsidiary of the Borrower
that is required to become a party to this Agreement pursuant to Section 6.10 of
the Credit Agreement shall become a Grantor for all purposes of this Agreement
upon execution and delivery by such Subsidiary of an Assumption Agreement in the
form of Annex 1 hereto.
8.15. Releases. (a) Notwithstanding anything to the contrary
contained in the Credit Agreement, herein or in any other Loan Document, upon
request of the Borrower in connection with any Disposition of Property permitted
by the Loan Documents, the Administrative Agent shall (without notice to or vote
or consent of any Lender, or any affiliate of any Lender that is a party to any
Specified Hedge Agreement) take such actions as shall be required to release its
security interest in any Collateral being Disposed of in such Disposition, and
to release any guarantee obligations of any Person being Disposed of in such
Disposition, to the extent necessary to permit consummation of such Disposition
in accordance with the Loan Documents, provided that the Borrower shall have
delivered to the Administrative Agent, at least five Business Days prior to the
date of the proposed release, a written request for release identifying the
relevant Collateral being Disposed of in such Disposition and the terms of such
Disposition in reasonable detail, including the date thereof, the price thereof
and any estimated expenses in connection therewith, together with a
certification by the Borrower stating that such transaction is in compliance
with the Credit Agreement and the other Loan Documents and that the proceeds of
such Disposition will be applied in accordance with the Credit Agreement and the
other Loan Documents.
(b) If any of the Collateral shall be Disposed of by any
Grantor in a transaction permitted by the Credit Agreement, then the
Administrative Agent, at the request and sole expense of such Grantor, shall
execute and deliver to such Grantor all releases or other documents reasonably
necessary or desirable for the release of the Liens created hereby on such
Collateral. At the request and sole expense of the Borrower, a Subsidiary
Guarantor shall be released from its obligations hereunder in the event that all
the Capital Stock of such Subsidiary
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Guarantor shall be Disposed of in a transaction permitted by the Credit
Agreement; provided that the Borrower shall have delivered to the Administrative
Agent, at least ten Business Days prior to the date of the proposed release, a
written request for release identifying the relevant Subsidiary Guarantor and
the terms of the Disposition in reasonable detail, including the price thereof
and any expenses in connection therewith, together with a certification by the
Borrower stating that such transaction is in compliance with the Credit
Agreement and the other Loan Documents and that the Proceeds of such Disposition
will be applied in accordance therewith.
8.16. WAIVER OF JURY TRIAL. EACH GRANTOR HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, each of the undersigned has caused this
Guarantee and Collateral Agreement to be duly executed and delivered as of the
date first above written.
SPANISH BROADCASTING SYSTEM, INC., a Delaware corporation
SPANISH BROADCASTING SYSTEM FINANCE CORPORATION, a Delaware corporation
SPANISH BROADCASTING SYSTEM OF GREATER MIAMI, INC.
SPANISH BROADCASTING SYSTEM OF ILLINOIS, INC.
SPANISH BROADCASTING SYSTEM, INC., a New Jersey corporation
SPANISH BROADCASTING SYSTEM OF SAN ANTONIO, INC.
ALARCON HOLDINGS, INC.
SPANISH BROADCASTING SYSTEM OF CALIFORNIA, INC.
SPANISH BROADCASTING SYSTEM OF PUERTO RICO, INC., a Delaware corporation
SPANISH BROADCASTING SYSTEM OF FLORIDA, INC.
SBS OF GREATER NEW YORK, INC.
SBS FUNDING, INC.
SPANISH BROADCASTING SYSTEM OF PUERTO RICO, INC., a Puerto Rico corporation
SPANISH BROADCASTING SYSTEM NETWORK, INC.
SBS PROMOTIONS, INC.
WRMA LICENSING, INC.
WXDJ LICENSING, INC.
WLEY LICENSING, INC.
WSKQ LICENSING, INC.
KLEY LICENSING, INC.
WCMQ LICENSING, INC.
KLAX LICENSING, INC.
WPAT LICENSING, INC.
WCMA LICENSING, INC.
WEGM LICENSING, INC.
WMEG LICENSING, INC.
By: /s/ Joseph A. Garcia
------------------------------------
Name:
Title: Vice President and/or Chief Financial Officer
of each Loan Party
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Schedule 1
NOTICE ADDRESSES OF GUARANTORS
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Schedule 2
DESCRIPTION OF PLEDGED INVESTMENT PROPERTY
PLEDGED STOCK:
Issuer's Jurisdiction
Under New York UCC
Issuer Section 9-103(b)(c) Class of Stock Stock Certificate No. Percentage of Shares No. of Shares
- ------------ ---------------------- ---------------- ---------------------- ---------------------- ---------------
PLEDGED NOTES:
Issuer Payee Principal Amount
- ------------------------ ------------------------- ------------------------------
2-1
36
PLEDGED DEBT SECURITIES:
Issuer's Jurisdiction
Under New York UCC
Issuer Section 9-103(b)(c) Payee Principal Amount
- ----------------------- ---------------------------- --------- -----------------------
PLEDGED SECURITY ENTITLEMENTS:
Securities Securities Intermediary's
Issuer of Description of Intermediary Securities Account Jurisdiction Under New York
Financial Asset Financial Asset (Name and Address) (Number and Location) UCC Section 9-103(6)(d)
- -------------------- ------------------ ---------------------- ----------------------- ------------------------------
2-2
37
PLEDGED COMMODITY CONTRACTS:
Commodity Intermediary's
Description of Commodity Intermediary Commodity Account Jurisdiction Under New York
Commodity Contract (Name and Address) (Number and Location) UCC Section 9-103(6)(e)
- ------------------------------ ----------------------------- --------------------------- -----------------------------------
2-3
38
Schedule 3
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings
[List each office where a financing statement is to be filed]
Copyright, Patent and Trademark Filings
[List all filings]
Actions with respect to Investment Property
[Describe all actions required to obtain "control" of Investment Property]
Other Actions
[Describe other actions to be taken]
3-1
39
Schedule 4
LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Grantor Location
------- --------
4-1
40
Schedule 5
LOCATION OF INVENTORY AND EQUIPMENT
Grantor Locations
------- ---------
5-1
41
Schedule 6
COPYRIGHTS
PATENTS
TRADEMARKS
TRADE SECRETS
INTELLECTUAL PROPERTY LICENSES
OTHER INTELLECTUAL PROPERTY
6-1
42
Schedule 7
EXISTING PRIOR LIENS
7-1
43
Exhibit A to
Guarantee and Collateral Agreement
FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT
This INTELLECTUAL PROPERTY SECURITY AGREEMENT, dated as of July
6, 2000 (as amended, supplemented or otherwise modified from time to time, the
"Intellectual Property Security Agreement"), is made by each of the signatories
hereto (collectively, the "Grantors") in favor of Lehman Commercial Paper Inc.,
as administrative agent (in such capacity, the "Administrative Agent") for the
Secured Parties (as defined in the Credit Agreement referred to below).
WHEREAS, Spanish Broadcasting System, Inc., a Delaware
corporation (the "Borrower") has entered into a Credit Agreement, dated as of
July 6, 2000 (as amended, supplemented, replaced or otherwise modified from time
to time, the "Credit Agreement"), with the lenders from time to time party
thereto (the "Lenders") and the Administrative Agent. Capitalized terms used and
not defined herein have the meanings given such terms in the Credit Agreement.
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective extensions of credit to the Borrower under the
Credit Agreement that the Grantors shall have executed and delivered that
certain Guarantee and Collateral Agreement, dated as of July 6, 2000, in favor
of the Administrative Agent (as amended, supplemented, replaced or otherwise
modified from time to time, the "Guarantee and Collateral Agreement").
WHEREAS, under the terms of the Guarantee and Collateral
Agreement, the Grantors have granted a security interest in certain Property,
including, without limitation, certain Intellectual Property of the Grantors to
the Administrative Agent for the ratable benefit of the Secured Parties, and
have agreed as a condition thereof to execute this Intellectual Property
Security Agreement for recording with the United States Patent and Trademark
Office, the United States Copyright Office, and other applicable Governmental
Authorities.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Grantors agree as follows:
SECTION 1. Grant of Security. Each Grantor hereby grants to the
Administrative Agent for the ratable benefit of the Secured Parties a security
interest in and to all of such Grantor's right, title and interest in and to the
following (the "Intellectual Property Collateral"), as collateral security for
the prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of such Grantor's Obligations:
(a) (i) all trademarks, service marks, trade names, corporate
names, company names, business names, trade dress, trade styles, logos, or other
indicia of origin or source identification, trademark and service mark
registrations, and applications for trademark or service mark registrations and
any new renewals thereof, including, without limitation, each registration and
application identified in Schedule 1, (ii) the right to sue or otherwise recover
for any and all
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past, present and future infringements and misappropriations thereof, (iii) all
income, royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments under all
licenses entered into in connection therewith, and damages and payments for
past, present or future infringements thereof), and (iv) all other rights of any
kind whatsoever of such Grantor accruing thereunder or pertaining thereto,
together in each case with the goodwill of the business connected with the use
of, and symbolized by, each of the above (collectively, the "Trademarks");
(b) (i) all patents, patent applications and patentable
inventions, including, without limitation, each patent and patent application
identified in Schedule 1, (ii) all inventions and improvements described and
claimed therein, (iii) the right to sue or otherwise recover for any and all
past, present and future infringements and misappropriations thereof, (iv) all
income, royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments under all
licenses entered into in connection therewith, and damages and payments for
past, present or future infringements thereof), and (v) all reissues, divisions,
continuations, continuations-in-art, substitutes, renewals, and extensions
thereof, all improvements thereon and all other rights of any kind whatsoever of
such Grantor accruing thereunder or pertaining thereto (collectively, the
"Patents");
(c) (i) all copyrights, whether or not the underlying works of
authorship have been published, and all works of authorship and other
intellectual property rights therein, all copyrights of works based on,
incorporated in, derived from or relating to works covered by such copyrights,
all right, title and interest to make and exploit all derivative works based on
or adopted from works covered by such copyrights, and all copyright
registrations and copyright applications, and any renewals or extensions
thereof, including, without limitation, each registration and application
identified in Schedule 1, (ii) the rights to print, publish and distribute any
of the foregoing, (iv) the right to sue or otherwise recover for any and all
past, present and future infringements and misappropriations thereof, (iv) all
income, royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments under all
licenses entered into in connection therewith, and damages and payments for
past, present or future infringements thereof), and (v) all other rights of any
kind whatsoever of such Grantor accruing thereunder or pertaining thereto
("Copyrights");
(d) (i) all trade secrets and all confidential and proprietary
information, including know-how, trade secrets, manufacturing and production
processes and techniques, inventions, research and development information,
technical data, financial, marketing and business data, pricing and cost
information, business and marketing plans, and customer and supplier lists and
information, including, without limitation, any of the foregoing identified in
Schedule 1, (ii) the right to sue or otherwise recover for any and all past,
present and future infringements and misappropriations thereof, (iii) all
income, royalties, damages and other payments now and hereafter due and/or
payable with respect thereto (including, without limitation, payments under all
licenses entered into in connection therewith, and damages and payments for
past, present or future infringements thereof), and (iv) all other rights of any
kind whatsoever of such Grantor accruing thereunder or pertaining thereto
(collectively, the "Trade Secrets");
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45
(e) (i) all licenses or agreements, whether written or oral,
providing for the grant by or to any Grantor of: (A) any right to use any
Trademark or Trade Secret, (B) any right to manufacture, use or sell any
invention covered in whole or in part by a Patent, and (C) any right under any
Copyright including, without limitation, the grant of rights to manufacture,
distribute, exploit and sell materials derived from any Copyright including,
without limitation, any of the foregoing identified in Schedule 1, (ii) the
right to sue or otherwise recover for any and all past, present and future
infringements and misappropriations of any of the foregoing, (iii) all income,
royalties, damages and other payments now and hereafter due and/or payable with
respect thereto (including, without limitation, payments under all licenses
entered into in connection therewith, and damages and payments for past, present
or future infringements thereof), and (iv) all other rights of any kind
whatsoever of such Grantor accruing thereunder or pertaining thereto; and
(f) any and all proceeds of the foregoing.
SECTION 2. Recordation. Each Grantor authorizes and requests that
the Register of Copyrights, the Commissioner of Patents and Trademarks and any
other applicable government officer record this Intellectual Property Security
Agreement.
SECTION 3. Execution in Counterparts. This Agreement may be
executed in any number of counterparts (including by telecopy), each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
SECTION 4. Governing Law. This Intellectual Property Security
Agreement shall be governed by, and construed and interpreted in accordance
with, the law of the State of New York.
SECTION 5. Conflict Provision. This Intellectual Property
Security Agreement has been entered into in conjunction with the provisions of
the Guarantee and Collateral Agreement and the Credit Agreement. The rights and
remedies of each party hereto with respect to the security interest granted
herein are without prejudice to, and are in addition to those set forth in the
Guarantee and Collateral Agreement and the Credit Agreement, all terms and
provisions of which are incorporated herein by reference. In the event that any
provisions of this Intellectual Property Security Agreement are in conflict with
the Guarantee and Collateral Agreement or the Credit Agreement, the provisions
of the Guarantee and Collateral Agreement or the Credit Agreement shall govern.
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IN WITNESS WHEREOF, each of the undersigned has caused this
Intellectual Property Security Agreement to be duly executed and delivered as of
the date first above written.
[NAME OF GRANTOR]
By:
--------------------------------------
Name:
Title:
4
47
Schedule 1
COPYRIGHTS
PATENTS
TRADEMARKS
TRADE SECRETS
INTELLECTUAL PROPERTY LICENSES
48
Exhibit B to
Guarantee and Collateral Agreement
FORM OF CONTROL AGREEMENT
This CONTROL AGREEMENT (as amended, supplemented or otherwise
modified from time to time, the "Control Agreement") dated as of July 6, 2000,
is made by and among _______________, a __________ corporation (the "Grantor"),
Lehman Commercial Paper Inc., as administrative agent (in such capacity, the
"Administrative Agent") for the Secured Parties (as defined in the Guarantee and
Collateral Agreement referred to below), and ____________, a ____________
corporation (the "Issuer").
WHEREAS, the Grantor has granted to the Administrative Agent for
the benefit of the Secured Parties a security interest in the uncertificated
securities of the Issuer owned by the Grantor from time to time (collectively,
the "Pledged Securities"), and all additions thereto and substitutions and
proceeds thereof (collectively, with the Pledged Securities, the "Collateral")
pursuant to a Guarantee and Collateral Agreement, dated as of July 6, 2000 (as
amended, supplemented, replaced or otherwise modified from time to time, the
"Guarantee and Collateral Agreement"), among the Grantor and the other persons
party thereto as grantors in favor of the Administrative Agent.
WHEREAS, the following terms which are defined in Articles 8 and
9 of the Uniform Commercial Code in effect in the State of New York on the date
hereof (the "UCC") are used herein as so defined: Adverse Claim, Control,
Instruction, Proceeds and Uncertificated Security.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Notice of Security Interest. The Grantor, the
Administrative Agent and the Issuer are entering into this Control Agreement to
perfect, and to confirm the priority of, the Administrative Agent's security
interest in the Collateral. The Issuer acknowledges that this Control Agreement
constitutes written notification to the Issuer of the Administrative Agent's
security interest in the Collateral. The Issuer agrees to promptly make all
necessary entries or notations in its books and records to reflect the
Administrative Agent's security interest in the Collateral and, upon request by
the Administrative Agent, to register the Administrative Agent as the registered
owner of any or all of the Pledged Securities. The Issuer acknowledges that the
Administrative Agent has control over the Collateral.
SECTION 2. Collateral. The Issuer hereby represents and warrants
to, and agrees with the Grantor and the Administrative Agent that (i) the terms
of any limited liability company interests or partnership interests included in
the Collateral from time to time shall expressly provide that they are
securities governed by Article 8 of the Uniform Commercial Code in effect from
time to time in the State of [__________], (ii) the Pledged Securities are
uncertificated securities, (iii) the issuer's jurisdiction is, and during the
term of this Control Agreement shall remain, the State of [____________], (iv)
Schedule 1 contains a true and
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49
complete description of the Pledged Securities as of the date hereof and (v)
except for the claims and interests of the Administrative Agent and the Grantor
in the Collateral, the Issuer does not known of any claim to or security
interest or other interest in the Collateral.
SECTION 3. Control. The Issuer hereby agrees, upon written
direction from the Administrative Agent and without further consent from the
Grantor, (a) to comply with all instructions and directions of any kind
originated by the Administrative Agent concerning the Collateral, to liquidate
or otherwise dispose of the Collateral as and to the extent directed by the
Administrative Agent and to pay over to the Administrative Agent all proceeds
without any setoff or deduction, and (b) except as otherwise directed by the
Administrative Agent, not to comply with the instructions or directions of any
kind originated by the Grantor or any other person.
SECTION 4. Other Agreements. The Issuer shall notify promptly the
Administrative Agent and the Grantor if any other person asserts any lien,
encumbrance, claim (including any adverse claim) or security interest in or
against any of the Collateral. In the event of any conflict between the
provisions of this Control Agreement and any other agreement governing the
Pledged Securities or the Collateral, the provisions of this Control Agreement
shall control.
SECTION 5. Protection of Issuer. The Issuer may rely and shall be
protected in acting upon any notice, instruction or other communication that it
reasonably believes to be genuine and authorized.
SECTION 6. Termination. This Control Agreement shall terminate
automatically upon receipt by the Issuer of written notice executed by the
Administrative Agent that (i) all of the obligations secured by the Collateral
have been paid in full in immediately available funds, or (ii) all of the
Collateral has been released, whichever is sooner, and the Issuer shall
thereafter be relieved of all duties and obligations hereunder.
SECTION 7. Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three days after being deposited
in the mail, postage prepaid, or, in the case of telecopy notice, when received,
to the Grantor's and the Administrative Agent's addresses as set forth in the
Guarantee and Collateral Agreement, and to the Issuer's address as set forth
below, or to such other address as any party may give to the others in writing
for such purpose:
[Name of Issuer]
[Address of Issuer]
Attention:
-------------------
Telephone: ( ) -
----- ----- -----------
Telecopy: ( ) -
----- ----- -----------
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50
SECTION 8. Amendments in Writing. None of the terms or provisions
of this Control Agreement may be waived, amended, supplemented or otherwise
modified except by a written instrument executed by the parties hereto.
SECTION 9. Entire Agreement. This Control Agreement and the
Guarantee and Collateral Agreement constitute the entire agreement and supersede
all other prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
SECTION 10.Execution in Counterparts. This Control Agreement may
be executed in any number of counterparts (including by telecopy), each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
SECTION 11.Successors and Assigns. This Control Agreement will
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Grantor may not assign,
transfer or delegate any of its rights or obligations under this Control
Agreement without the prior written consent of the Administrative Agent.
SECTION 12.Governing Law and Jurisdiction. This Control
Agreement has been delivered to and accepted by the Administrative Agent and
will be deemed to be made in the State of New York. THIS CONTROL AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK. Each of the parties hereto submits for itself and its
property in any legal action or proceeding relating to this Control Agreement,
or for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof.
SECTION 13.WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS CONTROL AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.
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51
IN WITNESS WHEREOF, each of the undersigned has caused this
Control Agreement to be duly executed and delivered as of the date first above
written.
[NAME OF GRANTOR]
By:
--------------------------------------
Name:
Title:
LEHMAN COMMERCIAL PAPER INC., as
Administrative Agent
By:
--------------------------------------
Name:
Title:
[NAME OF ISSUER]
By:
--------------------------------------
Name:
Title:
4
52
Exhibit C to
Guarantee and Collateral Agreement
FORM OF CONTROL AGREEMENT
This CONTROL AGREEMENT (as amended, supplemented or otherwise
modified from time to time, the "Control Agreement") dated as of July 6, 2000,
is made by and among _______________, a __________ corporation (the "Grantor"),
Lehman Commercial Paper Inc., as administrative agent (in such capacity, the
"Administrative Agent") for the Secured Parties (as defined in the Guarantee and
Collateral Agreement referred to below), and ____________, a ____________
corporation (the "Broker").
WHEREAS, the Broker maintains for the Grantor a securities
account, Account No. _________________ (the "Pledged Account"), in the name of
the Grantor.
WHEREAS, the Grantor has granted to the Administrative Agent for
the benefit of the Secured Parties a security interest in the Pledged Account,
the financial assets and any free credit balance carried therein, all security
entitlements with respect thereto, and all additions thereto and substitutions
and proceeds thereof (collectively, the "Collateral") pursuant to a Guarantee
and Collateral Agreement, dated as of July 6, 2000 (as amended, supplemented,
replaced or otherwise modified from time to time, the "Guarantee and Collateral
Agreement"), among the Grantor and the other persons party thereto as grantors
in favor of the Administrative Agent.
WHEREAS, the following terms which are defined in Articles 8 and
9 of the Uniform Commercial Code in effect in the State of New York on the date
hereof (the "UCC") are used herein as so defined: Adverse Claim, Commodity
Account, Commodity Contract, Control, Entitlement Order, Financial Asset,
Instruction, Investment Property, Proceeds, Securities Account, Securities
Intermediary, Securities Intermediary's Jurisdiction and Security Entitlement.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Notice of Security Interest. The Grantor, the
Administrative Agent and the Broker are entering into this Control Agreement to
perfect, and to confirm the priority of, the Administrative Agent's security
interest in the Collateral. The Broker acknowledges that this Control Agreement
constitutes written notification to the Broker of the Administrative Agent's
security interest in the Collateral. The Broker agrees to promptly make all
necessary entries or notations in its books and records to reflect the
Administrative Agent's security interest in the Collateral. The Broker
acknowledges that the Administrative Agent has control over the Pledged Account,
all financial assets contained therein from time to time, and all security
entitlements with respect thereto.
SECTION 2. Collateral; Pledged Account. (a) The Grantor hereby
represents and warrants to, and agrees with the Administrative Agent and the
Broker that, all investment
1
53
property (other than any commodity contract or commodity account) held by the
Broker for the Grantor is and shall be credited to the Pledged Account.
(b) The Broker hereby represents and warrants to, and agrees with
the Grantor and the Administrative Agent that (i) the Broker is a securities
intermediary with respect to the Grantor and the Pledged Account is a securities
account, (ii) all assets, property and items from time to time carried in the
Pledged Account, including, without limitation, any investment property, are,
and will continue to be, financial assets, (iii) the securities intermediary's
jurisdiction is, and during the term of this Control Agreement shall remain, the
State of New York, (iv) Schedule 1 contains a true and complete statement of the
Pledged Account and the financial assets carried therein and any free credit
balance therein as of the date hereof, (v) no financial asset included in the
Collateral is registered in the name of, payable to the order of, or specially
indorsed to, the Grantor, which has not been indorsed to the Broker or in blank,
and (vi) the Pledged Account is and shall remain a cash account, and the Broker
will not extend, directly or indirectly, any "purpose credit" (within the
meaning of such term under Regulation T of the Board of Governors of the Federal
Reserve System of the United States) to the Grantor in respect of the Pledged
Account.
(c) The Administrative Agent hereby instructs the Broker, and the
Broker hereby confirms and agrees that, unless the Administrative Agent shall
otherwise direct the Broker in writing, the investment property (other than any
commodity contract or commodity account) from time to time held by the Broker
for the Grantor shall be credited only to, and carried only in, the Pledged
Account.
SECTION 3. Control. The Broker hereby agrees, upon written
direction from the Administrative Agent and without further consent from the
Grantor, (a) to comply with all instructions, entitlement orders and directions
of any kind originated by the Administrative Agent concerning the Collateral, to
liquidate or otherwise dispose of the Collateral as and to the extent directed
by the Administrative Agent and to pay over to the Administrative Agent all
proceeds without any setoff or deduction, and (b) except as otherwise directed
by the Administrative Agent, not to comply with the instructions, entitlement
orders or directions of any kind originated by the Grantor or any other person.
SECTION 4. Other Agreements; Termination; Successor Brokers. The
Broker shall simultaneously send to the Administrative Agent copies of all
notices given and statements rendered pursuant to the Pledged Account. The
Broker shall notify promptly the Administrative Agent and the Grantor if any
other person asserts any lien, encumbrance, claim (including any adverse claim)
or security interest in or against any of the Collateral. As long as the
Guarantee and Collateral Agreement remains in effect, neither the Grantor nor
the Broker shall terminate the Pledged Account without thirty (30) days' prior
written notice to the other party and the Administrative Agent. In the event of
any conflict between the provisions of this Control Agreement and any other
agreement governing the Pledged Account or the Collateral, the provisions of
this Control Agreement shall control. In the event the Broker no longer serves
as Broker for the Collateral, the Pledged Account and the financial assets
carried therein shall be transferred to a successor broker or custodian
satisfactory to the Administrative Agent, provided, that prior to such transfer,
such successor broker or custodian shall execute an agreement that is
2
54
substantially in the form of this Control Agreement or is otherwise in form and
substance satisfactory to the Administrative Agent.
SECTION 5. Protection of Broker. The Broker may rely and shall be
protected in acting upon any notice, instruction or other communication that it
reasonably believes to be genuine and authorized.
SECTION 6. Termination. This Control Agreement shall terminate
automatically upon receipt by the Broker of written notice executed by the
Administrative Agent that (i) all of the obligations secured by the Collateral
have been paid in full in immediately available funds, or (ii) all of the
Collateral has been released, whichever is sooner, and the Broker shall
thereafter be relieved of all duties and obligations hereunder.
SECTION 7. Waiver; Priority of Administrative Agent's Interests.
Other than with respect to its fees and customary commissions with respect to
the Pledged Account, the Broker hereby waives its right to set off any
obligations of the Grantor to the Broker against any or all of the Collateral,
and hereby agrees that any and all liens, encumbrances, claims or security
interests which the Broker may have against the Collateral, either now or in the
future in connection with the Pledged Account are and shall be subordinate and
junior to the prior payment in full in immediately available funds of all
obligations of the Grantor now or hereafter existing under the Credit Agreement,
the Guarantee and Collateral Agreement, and all other documents related thereto,
whether for principal, interest (including, without limitation, interest as
provided in the Credit Agreement, whether or not such interest accrues after the
filing of such petition for purposes of the federal Bankruptcy Code or is an
allowed claim in such proceeding), indemnities, fees, premiums, expenses or
otherwise. Except for the foregoing and claims and interests of the
Administrative Agent and the Grantor in the Collateral, the Broker does not know
of any claim to or security interest or other interest in the Collateral.
SECTION 8. Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three days after being deposited
in the mail, postage prepaid, or, in the case of telecopy notice, when received,
to the Grantor's and the Administrative Agent's addresses as set forth in the
Guarantee and Collateral Agreement, and to the Broker's address as set forth
below, or to such other address as any party may give to the others in writing
for such purpose:
[Name of Broker]
[Address of Broker]
Attention:
-------------------
Telephone: ( ) -
----- ----- -----------
Telecopy: ( ) -
----- ----- -----------
SECTION 9. Amendments in Writing. None of the terms or provisions
of this Control Agreement may be waived, amended, supplemented or otherwise
modified except by a written instrument executed by the parties hereto.
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55
SECTION 10. Entire Agreement. This Control Agreement and the
Guarantee and Collateral Agreement constitute the entire agreement and supersede
all other prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
SECTION 11. Execution in Counterparts. This Control Agreement may
be executed in any number of counterparts (including by telecopy), each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
SECTION 12. Successors and Assigns. This Control Agreement will
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Grantor may not assign,
transfer or delegate any of its rights or obligations under this Control
Agreement without the prior written consent of the Administrative Agent.
SECTION 13. Governing Law and Jurisdiction. This Control
Agreement has been delivered to and accepted by the Administrative Agent and
will be deemed to be made in the State of New York. THIS CONTROL AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK. Each of the parties hereto submits for itself and its
property in any legal action or proceeding relating to this Control Agreement,
or for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof.
SECTION 14. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS CONTROL AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.
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56
IN WITNESS WHEREOF, each of the undersigned has caused this
Control Agreement to be duly executed and delivered as of the date first above
written.
[NAME OF GRANTOR]
By:
--------------------------------------
Name:
Title:
LEHMAN COMMERCIAL PAPER INC., as
Administrative Agent
By:
--------------------------------------
Name:
Title:
[NAME OF BROKER]
By:
--------------------------------------
Name:
Title:
5
57
Exhibit D to
Guarantee and Collateral Agreement
FORM OF CONTROL AGREEMENT
This CONTROL AGREEMENT (as amended, supplemented or otherwise
modified from time to time, the "Control Agreement") dated as of July 6, 2000,
is made by and among _______________, a __________ corporation (the "Grantor"),
Lehman Commercial Paper Inc., as administrative agent (in such capacity, the
"Administrative Agent") for the Secured Parties (as defined in the Guarantee and
Collateral Agreement referred to below), and ____________, a ____________
corporation (the "Broker").
WHEREAS, the Broker maintains for the Grantor a commodity
account, Account No. _________________ (the "Pledged Account"), in the name of
the Grantor.
WHEREAS, the Grantor has granted to the Administrative Agent for
the benefit of the Secured Parties a security interest in the Pledged Account,
the commodity contracts and any free credit balance carried therein, and all
additions thereto and substitutions and proceeds thereof (collectively, the
"Collateral") pursuant to a Guarantee and Collateral Agreement, dated as of July
6, 2000 (as amended, supplemented, replaced or otherwise modified from time to
time, the "Guarantee and Collateral Agreement"), among the Grantor and the other
persons party thereto as grantors in favor of the Administrative Agent.
WHEREAS, the following terms which are defined in Articles 8 and
9 of the Uniform Commercial Code in effect in the State of New York on the date
hereof (the "UCC") are used herein as so defined: Commodity Account, Commodity
Contract, Commodity Intermediary's Jurisdiction, Control and Proceeds.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Notice of Security Interest. The Grantor, the
Administrative Agent and the Broker are entering into this Control Agreement to
perfect, and to confirm the priority of, the Administrative Agent's security
interest in the Collateral. The Broker acknowledges that this Control Agreement
constitutes written notification to the Broker of the Administrative Agent's
security interest in the Collateral. The Broker agrees to promptly make all
necessary entries or notations in its books and records to reflect the
Administrative Agent's security interest in the Collateral. The Broker
acknowledges that the Administrative Agent has control over the Pledged Account
and all commodity contracts and any free credit balance carried therein from
time to time.
SECTION 2. Collateral; Pledged Account. (a) The Grantor hereby
represents and warrants to, and agrees with the Administrative Agent and the
Broker that, all commodity contracts carried by the Broker on its books for the
Grantor are and shall be credited to the Pledged Account.
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58
(b) The Broker hereby represents and warrants to, and agrees with
the Grantor and the Administrative Agent that (i) the Broker is a commodity
intermediary with respect to the Grantor and the Pledged Account is a commodity
account, (ii) the commodity intermediary's jurisdiction is, and during the term
of this Control Agreement shall remain, the State of New York, (iii) Schedule 1
contains a true and complete statement of the Pledged Account and the commodity
contracts and any free credit balance carried therein as of the date hereof, and
(iv) the Pledged Account is and shall remain a cash account, and the Broker will
not extend, directly or indirectly, any "purpose credit" (within the meaning of
such term under Regulation T of the Board of Governors of the Federal Reserve
System of the United States) to the Grantor in respect of the Pledged Account.
(c) The Administrative Agent hereby instructs the Broker, and the
Broker hereby confirms and agrees that, unless the Administrative Agent shall
otherwise direct the Broker in writing, all commodity contracts carried by the
Broker on its books for the Grantor shall be credited only to, and carried only
in, the Pledged Account.
SECTION 3. Control. The Broker hereby agrees, upon written
direction from the Administrative Agent and without further consent from the
Grantor, (a) to apply any value distributed on account of the commodity
contracts carried in the Pledged Account as directed by the Administrative
Agent, to liquidate or otherwise dispose of the Collateral as and to the extent
directed by the Administrative Agent and to pay over to the Administrative Agent
all proceeds and other value therefrom or otherwise distributed with respect
thereto without any setoff or deduction, and (b) except as otherwise directed by
the Administrative Agent, not to apply any value distributed on account of any
commodity contract carried in the Pledged Account as directed by the Grantor or
any other person.
SECTION 4. Other Agreements; Termination; Successor Brokers. The
Broker shall simultaneously send to the Administrative Agent copies of all
notices given and statements rendered pursuant to the Pledged Account. The
Broker shall notify promptly the Administrative Agent and the Grantor if any
other person asserts any lien, encumbrance, claim or security interest in or
against any of the Collateral. As long as the Guarantee and Collateral Agreement
remains in effect, neither the Grantor nor the Broker shall terminate the
Pledged Account without thirty (30) days' prior written notice to the other
party and the Administrative Agent. In the event of any conflict between the
provisions of this Control Agreement and any other agreement governing the
Pledged Account or the Collateral, the provisions of this Control Agreement
shall control. In the event the Broker no longer serves as Broker for the
Collateral, the Pledged Account, the commodity contracts and any free credit
balance carried therein shall be transferred to a successor broker, custodian or
futures commission merchant satisfactory to the Administrative Agent, provided,
that prior to such transfer, such successor broker, custodian or futures
commission merchant shall execute an agreement that is substantially in the form
of this Control Agreement or is otherwise in form and substance satisfactory to
the Administrative Agent.
SECTION 5. Protection of Broker. The Broker may rely and shall be
protected in acting upon any notice, instruction or other communication that it
reasonably believes to be genuine and authorized.
2
59
SECTION 6. Termination. This Control Agreement shall terminate
automatically upon receipt by the Broker of written notice executed by the
Administrative Agent that (i) all of the obligations secured by the Collateral
have been paid in full in immediately available funds, or (ii) all of the
Collateral has been released, whichever is sooner, and the Broker shall
thereafter be relieved of all duties and obligations hereunder.
SECTION 7. Waiver; Priority of Administrative Agent's Interests.
Other than with respect to its fees and customary commissions with respect to
the Pledged Account, the Broker hereby waives its right to set off any
obligations of the Grantor to the Broker against any or all of the Collateral,
and hereby agrees that any and all liens, encumbrances, claims or security
interests which the Broker may have against the Collateral, either now or in the
future in connection with the Pledged Account are and shall be subordinate and
junior to the prior payment in full in immediately available funds of all
obligations of the Grantor now or hereafter existing under the Credit Agreement,
the Guarantee and Collateral Agreement, and all other documents related thereto,
whether for principal, interest (including, without limitation, interest as
provided in the Credit Agreement, whether or not such interest accrues after the
filing of such petition for purposes of the federal Bankruptcy Code or is an
allowed claim in such proceeding), indemnities, fees, premiums, expenses or
otherwise. Except for the foregoing and claims and interests of the
Administrative Agent and the Grantor in the Collateral, the Broker does not know
of any claim to or security interest or other interest in the Collateral.
SECTION 8. Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three days after being deposited
in the mail, postage prepaid, or, in the case of telecopy notice, when received,
to the Grantor's and the Administrative Agent's addresses as set forth in the
Guarantee and Collateral Agreement, and to the Broker's address as set forth
below, or to such other address as any party may give to the others in writing
for such purpose:
[Name of Broker]
[Address of Broker]
Attention:
-------------------
Telephone: ( ) -
----- ----- -----------
Telecopy: ( ) -
----- ----- -----------
SECTION 9. Amendments in Writing. None of the terms or provisions
of this Control Agreement may be waived, amended, supplemented or otherwise
modified except by a written instrument executed by the parties hereto.
SECTION 10. Entire Agreement. This Control Agreement and the
Guarantee and Collateral Agreement constitute the entire agreement and supersede
all other prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
SECTION 11. Execution in Counterparts. This Control Agreement may
be executed in any number of counterparts (including by telecopy), each of which
when so executed
3
60
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
SECTION 12. Successors and Assigns. This Control Agreement will
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Grantor may not assign,
transfer or delegate any of its rights or obligations under this Control
Agreement without the prior written consent of the Administrative Agent.
SECTION 13. Governing Law and Jurisdiction. This Control
Agreement has been delivered to and accepted by the Administrative Agent and
will be deemed to be made in the State of New York. THIS CONTROL AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK. Each of the parties hereto submits for itself and its
property in any legal action or proceeding relating to this Control Agreement,
or for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof.
SECTION 14. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS CONTROL AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.
4
61
IN WITNESS WHEREOF, each of the undersigned has caused this
Control Agreement to be duly executed and delivered as of the date first above
written.
[NAME OF GRANTOR]
By:
--------------------------------------
Name:
Title:
LEHMAN COMMERCIAL PAPER INC., as
Administrative Agent
By:
--------------------------------------
Name:
Title:
[NAME OF BROKER]
By:
--------------------------------------
Name:
Title:
5
62
Annex 1 to
Guarantee and Collateral Agreement
ASSUMPTION AGREEMENT, dated as of ____________, 200__, made by
______________________, a _______________ corporation (the "Additional
Grantor"), in favor of Lehman Commercial Paper Inc., as administrative agent (in
such capacity, the "Administrative Agent") for (i) the lenders (the "Lenders")
party to the Credit Agreement referred to below, and (ii) the other Secured
Parties (as defined in the Guarantee and Collateral Agreement (as hereinafter
defined)). All capitalized terms not defined herein shall have the meaning
ascribed to them in such Credit Agreement.
W I T N E S S E T H:
WHEREAS, Spanish Broadcasting System, Inc., a Delaware
corporation (the "Borrower"), the Lenders and the Administrative Agent have
entered into a Credit Agreement, dated as of July 6, 2000 (as amended,
supplemented, replaced or otherwise modified from time to time, the "Credit
Agreement");
WHEREAS, in connection with the Credit Agreement, the Borrower
and certain of its Affiliates (other than the Additional Grantor) have entered
into the Guarantee and Collateral Agreement, dated as of July 6, 2000 (as
amended, supplemented or otherwise modified from time to time, the "Guarantee
and Collateral Agreement") in favor of the Administrative Agent for the benefit
of the Secured Parties;
WHEREAS, the Credit Agreement requires the Additional Grantor to
become a party to the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and deliver
this Assumption Agreement in order to become a party to the Guarantee and
Collateral Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee and Collateral Agreement. By executing and
delivering this Assumption Agreement, the Additional Grantor, as provided in
Section 8.14 of the Guarantee and Collateral Agreement, hereby becomes a party
to the Guarantee and Collateral Agreement as a Grantor thereunder with the same
force and effect as if originally named therein as a Grantor and, without
limiting the generality of the foregoing, hereby expressly assumes all
obligations and liabilities of a Grantor thereunder. The information set forth
in Annex 1-A hereto is hereby added to the information set forth in the
Schedules to the Guarantee and Collateral Agreement. The Additional Grantor
hereby represents and warrants that each of the representations and warranties
contained in Section 4 of the Guarantee and Collateral Agreement is true and
correct on and as the date hereof (after giving effect to this Assumption
Agreement) as if made on and as of such date.
63
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By:
---------------------------------
Name:
Title:
2
64
Exhibit C
FORM OF LENDER ADDENDUM
Reference is made to the Credit Agreement, dated as of July 6,
2000 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among SPANISH BROADCASTING SYSTEM, INC., a Delaware
corporation, the lenders from time to time party thereto (the "Lenders"), and
Lehman Commercial Paper Inc. as Administrative Agent. Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
Upon execution and delivery of this Lender Addendum by the
parties hereto as provided in Section 10.17 of the Credit Agreement, the
undersigned hereby becomes a Lender thereunder having the Commitments set forth
in Schedule 1 hereto, effective as of the Closing Date.
THIS LENDER ADDENDUM SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
This Lender Addendum may be executed by one or more of the
parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page hereof by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Lender
Addendum to be duly executed and delivered by their proper and duly authorized
officers as of this ____ day of ____, ____
[NAME OF LENDER]
By:
--------------------------------
Name:
Title:
Accepted and agreed:
SPANISH BROADCASTING SYSTEM, INC.
By:
-------------------------------
Name:
Title:
65
LEHMAN COMMERCIAL PAPER INC., as
Administrative Agent
By:
-------------------------------
Name:
Title:
2
66
COMMITMENTS AND NOTICE ADDRESS
Name and Notice Revolving Term
Address of Lender Credit Commitment Loan Commitment
- -------------------------------- ---------------------------- ------------------------
67
EXHIBIT D
FORM OF NOTICE OF BORROWING
[Date]
Lehman Commercial Paper Inc.,
as Administrative Agent
3 World Financial Center
New York, New York 10285
Attention: [________]
SPANISH BROADCASTING SYSTEM, INC.
Ladies and Gentlemen:
Pursuant to Section 2.5 of that certain Credit Agreement, dated
as of July 6, 2000 (as amended, supplemented, replaced or otherwise modified
from time to time, the "Credit Agreement"; capitalized terms used but not
defined herein having the meanings given such terms in the Credit Agreement),
among Spanish Broadcasting System, Inc., a Delaware corporation (the
"Borrower"), each lender from time to time party thereto, and Lehman Commercial
Paper Inc., as administrative agent (the "Administrative Agent"), the Borrower
hereby gives the Administrative Agent irrevocable notice that the Borrower
hereby requests a Loan under the Credit Agreement, and in that connection sets
forth below the information relating to such Loan:
(1) The Business Day of the proposed Loan is _________ ___, ____.
(2) The Type of the proposed Loan is a [Base Rate Loan] [Eurodollar
Loan].
(3) The aggregate amount of the proposed Loan is $____________.
(4) The initial Interest Period for each Eurodollar Loan made as part of
the proposed Loan is ____ month[s].
The Borrower hereby certifies that the following statements are
true and correct on the date hereof, and will be true and correct on the date of
the proposed Loan:
(a) Each of the representations and warranties made by any Loan
Party in or pursuant to the Loan Documents is true and correct on and as of the
date hereof as if made on and as of the date hereof (except to the extent that
they relate expressly to an earlier date).
(b) No Default or Event of Default has occurred and is continuing
on the date hereof, or would result from the proposed Loan or the application of
the proceeds thereof.
68
The Borrower agrees that, if prior to the time of the proposed
Loan any of the foregoing certifications shall cease to be true and correct, the
Borrower shall forthwith notify the Administrative Agent thereof in writing (any
such notice, a "Non-Compliance Notice"). Except to the extent, if any, that
prior to the time of the proposed Loan, the Borrower shall deliver a
Non-Compliance Notice to the Administrative Agent, each of the foregoing
certifications shall be deemed to be made additionally on the date of the
proposed Loan as if made on such date.
Very truly yours,
SPANISH BROADCASTING SYSTEM, INC.
By:
------------------------------
Name:
Title:
69
EXHIBIT E
FORM OF SOLVENCY CERTIFICATE
This Solvency Certificate (this "Certificate") is delivered in
connection with that certain Credit Agreement, dated as of July 6, 2000 (as
amended, supplemented, replaced or otherwise modified from time to time, the
"Credit Agreement"), among Spanish Broadcasting System, Inc., a Delaware
corporation, as borrower (the "Borrower"), the lenders from time to time party
thereto, and Lehman Commercial Paper Inc., as administrative agent (in such
capacity, the "Administrative Agent"). Capitalized terms used but not defined
herein have the meanings given such terms in the Credit Agreement.
For purposes of this Certificate, "Transactions" means (i) the
fulfillment of all conditions to the making of Loans and the issuance of Letters
of Credit under the Credit Agreement and the funding of such Loans and Letters
of Credit, if any, on the Closing Date, (ii) the execution and delivery of the
Loan Documents, (iii) the repayment, if any, of outstanding Indebtedness on the
Closing Date and (iv) the payment of all fees, costs and expenses associated
with the foregoing.
I hereby certify as of the date hereof on behalf of the Loan
Parties as follows:
1. I am the duly qualified and acting Vice President and/or Chief
Financial Officer of each Loan Party and in such capacity am a senior financial
officer with responsibility for the management of the financial affairs of such
Loan Party and the preparation of financial statements of such Loan Party. I,
together with other officers of the Loan Parties, acted on behalf of each Loan
Party in connection with the negotiation and execution of the Credit Agreement
and the other Loan Documents to which any Loan Party is a party. In connection
with the following certifications, I have reviewed the financial statements of
the Loan Parties.
2. I have carefully reviewed the contents of this Certificate, and I
have conferred with counsel for the Loan Parties for the purpose of discussing
the meaning of its contents and the purpose for which it is to be used. I have
made such investigations and inquiries as I have deemed to be necessary and
prudent, and have reviewed the Credit Agreement, the Notes and the other Loan
Documents to which any Loan Party is a party. I am providing this certificate
solely in my capacity as an officer of each Loan Party.
3. The audited consolidated balance sheets of the Borrower and its
Subsidiaries as at September 26, 1999, September 27, 1998 and September 28,
1997, and the related consolidated statements of income and of cash flows for
the fiscal years ended on such dates, reported on by and accompanied by an
unqualified report from KPMG LLP, present fairly the consolidated financial
condition of the Borrower and its Subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
respective fiscal years then ended. All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein). After due inquiry, I
have concluded that the Borrower and its Subsidiaries do not have any material
Guarantee Obligations, contingent liabilities and liabilities for taxes, or any
long-term leases or unusual
70
forward or long-term commitments, including, without limitation, any interest
rate or foreign currency swap or exchange transaction or other obligation in
respect of derivatives, that are not reflected in the most recent financial
statements referred to in this paragraph. After due inquiry, I have concluded
that during the period from September 26, 1999 to and including the date hereof
there has been no Disposition, other than the contemplated Florida Keys Sale, by
the Borrower or any of its Subsidiaries of any material part of its business or
Property.
4. For purposes of delivering this Certificate, I have:
(a) consulted with counsel for the Loan Parties concerning, among
other matters, pending and threatened litigation, uninsured risks, guaranties of
obligations of other Persons and other contingent obligations and have included
as a liability in my conclusions my best judgment as to the maximum realistic
exposure of each Loan Party to liabilities which would not be included in
reserves otherwise reflected on the consolidated balance sheet of the Borrower
and its Subsidiaries as of September 26, 1999;
(b) consulted with the chief executive officer and controller of
each Loan Party and reviewed the financial statements of each Loan Party;
(c) consulted with, and reviewed reports prepared by the
accountants referred to in paragraph 3 above with respect to the financial
statements of the Loan Parties and their respective assets and liabilities; and
(d) made such other investigations and inquiries as I have deemed
appropriate and have taken into account the nature of the particular business
anticipated to be conducted by the Loan Parties after consummation of the
Transactions.
Based upon the foregoing, I have reached the following
conclusions:
(A) No Loan Party is now, and the consummation of the
Transactions will not render any Loan Party, "insolvent" as defined below. I
understand that in this context, "insolvent" means that the present fair salable
value of assets of each Loan Party is less than the amount that will be required
to pay its probable liability on its existing debts as they become absolute and
matured. I have assumed that in this context "fair salable value" means the
price available upon the sale of such assets by a willing seller to a willing
buyer, where material information as to the asset and the market for such asset
is known to both, and where the sale is executed with commercially reasonable
promptness. I also understand that (i) the term "debts" includes any liability
on a "claim", and (ii) "claim" means any (x) right to payment, whether or not
such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured or (y) right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured.
(B) No Loan Party will incur, and no Loan Party intended to incur
or believed that it would incur, debts beyond its ability to pay as they mature
as a result of the consummation
71
of the Transactions. I have concluded that the realization of the current assets
in the ordinary course of business of each Loan Party will be sufficient to pay
recurring current debt, short-term debt and long-term debt service of such Loan
Party as such debts mature and that the cash flow and cash resources (including
earnings plus non-cash charges to earnings and, to the extent permitted under
the Credit Agreement, the disposition of assets held for sale) of such Loan
Party will be sufficient to provide cash necessary to repay indebtedness and
liabilities of such Loan Party (including, in the case of the Borrower, the
indebtedness and liabilities of the Borrower under the Credit Agreement, the
Notes and any outstanding Letters of Credit) as such debts and liabilities
mature.
(C) The consummation of the Transactions will not leave any Loan
Party with property remaining in its hands constituting "unreasonably small
capital." I have assumed for purposes of reaching this conclusion that
"unreasonably small capital" depends upon the nature of the particular business
or businesses conducted or to be conducted, and I have reached my conclusion
based on the needs and anticipated needs for capital of the businesses conducted
or anticipated to be conducted by each Loan Party in light of the Projections
and available credit capacity.
(D) No Loan Party has executed the Credit Agreement, the Notes,
any Letters of Credit, any other Loan Documents, in each case, to which such
Loan Party is a party or made any transfer or incurred any obligations in
connection with the Transactions, with actual intent to hinder, delay or defraud
either present or future creditors.
I understand that the Secured Parties are relying on the truth
and accuracy of the foregoing in connection with each extension of credit to the
Borrower pursuant to the Credit Agreement and the other Loan Documents.
I represent the foregoing information to be, to the best of my
knowledge and belief, after diligent inquiry, true, correct and complete and
execute this Solvency Certificate as the Vice President and/or Chief Financial
Officer of each Loan Party as of the ___ day of _______, ____.
[SIGNATURE PAGE FOLLOWS]
72
IN WITNESS WHEREOF, the undersigned has duly executed this
Solvency Certificate as of the date first written above.
SPANISH BROADCASTING SYSTEM, INC., a Delaware corporation
SPANISH BROADCASTING SYSTEM FINANCE CORPORATION, a Delaware corporation
SPANISH BROADCASTING SYSTEM OF GREATER MIAMI, INC.
SPANISH BROADCASTING SYSTEM OF ILLINOIS, INC.
SPANISH BROADCASTING SYSTEM, INC., a New Jersey corporation
SPANISH BROADCASTING SYSTEM OF SAN ANTONIO, INC.
ALARCON HOLDINGS, INC.
SPANISH BROADCASTING SYSTEM OF CALIFORNIA, INC.
SPANISH BROADCASTING SYSTEM OF PUERTO RICO, INC., a Delaware corporation
SPANISH BROADCASTING SYSTEM OF FLORIDA, INC.
SBS OF GREATER NEW YORK, INC.
SBS FUNDING, INC.
SPANISH BROADCASTING SYSTEM OF PUERTO RICO, INC., a Puerto Rico corporation
SPANISH BROADCASTING SYSTEM NETWORK, INC.
SBS PROMOTIONS, INC.
WRMA LICENSING, INC.
WXDJ LICENSING, INC.
WLEY LICENSING, INC.
WSKQ LICENSING, INC.
KLEY LICENSING, INC.
WCMQ LICENSING, INC.
KLAX LICENSING, INC.
WPAT LICENSING, INC.
WCMA LICENSING, INC.
WEGM LICENSING, INC.
WMEG LICENSING, INC.
By:
----------------------------
Name:
Title: Vice President and/or Chief Financial Officer
of each Loan Party
73
EXHIBIT F-1
FORM OF TERM NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO
BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE
RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.
$____________ New York, New York
_____________, ____
FOR VALUE RECEIVED, the undersigned, SPANISH BROADCASTING SYSTEM,
INC., a Delaware corporation (the "Borrower"), hereby unconditionally promises
to pay to ___________ (the "Lender") or its registered assigns at the Payment
Office specified in the Credit Agreement (as hereinafter defined) in lawful
money of the United States and in immediately available funds, the principal
amount of (a) ________________________ DOLLARS ($________), or, if less, (b) the
unpaid principal amount of the Term Loan outstanding to the Lender made pursuant
to Section 2.1 of the Credit Agreement. The principal amount shall be paid in
the amounts and on the dates specified in Section 2.3 of the Credit Agreement.
The Borrower further agrees to pay interest in like money at such office on the
unpaid principal amount hereof from time to time outstanding at the rates and on
the dates specified in Section 2.15 of the Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of the Term
Loan and the date and amount of each payment or prepayment of principal with
respect thereto, each conversion of all or a portion thereof to another Type,
each continuation of all or a portion thereof as the same Type and, in the case
of Eurodollar Loans, the length of each Interest Period with respect thereto.
Each such endorsement shall constitute prima facie evidence of the accuracy of
the information endorsed. The failure to make any such endorsement or any error
in any such endorsement shall not affect the obligations of the Borrower in
respect of the Term Loan.
This Note (a) is one of the Term Notes referred to in the Credit
Agreement dated as of July 6, 2000 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
Lender, the lenders from time to time party thereto, and Lehman Commercial Paper
Inc., as Administrative Agent, (b) is subject to the provisions of the Credit
Agreement and (c) is subject to optional and mandatory prepayment in whole or in
part as provided in the Credit Agreement. This Note is secured and guaranteed as
provided in the Loan Documents. Reference is hereby made to the Loan Documents
for a description of the properties and assets in which a security interest has
been granted, the nature and extent of the security and the guarantees, the
terms and conditions upon which the security
74
interests and each guarantee were granted and the rights of the holder of this
Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default,
all principal and all accrued interest then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN
THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN
ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 10.6 OF THE
CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SPANISH BROADCASTING SYSTEM, INC.
By:
--------------------------------
Name:
Title:
2
75
Schedule A
to Term Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
- ---------------- ------------------ -------------------- ----------------------- --------------------------
AMOUNT OF PRINCIPAL AMOUNT OF BASE RATE
AMOUNT OF BASE AMOUNT CONVERTED OF BASE RATE LOANS LOANS CONVERTED TO
DATE RATE LOANS TO BASE RATE LOANS REPAID EURODOLLAR LOANS
- ---------------- ------------------ -------------------- ----------------------- --------------------------
- ---------------- ------------------ -------------------- ----------------------- --------------------------
- ---------------- ------------------ -------------------- ----------------------- --------------------------
- ---------------- ------------------ -------------------- ----------------------- --------------------------
- ---------------- ------------------ -------------------- ----------------------- --------------------------
- ---------------- ------------------ -------------------- ----------------------- --------------------------
- ---------------- ------------------ -------------------- ----------------------- --------------------------
- ---------------- ------------------ -------------------- ----------------------- --------------------------
- ---------------- ------------------ -------------------- ----------------------- --------------------------
- ---------------- ------------------ -------------------- ----------------------- --------------------------
- ---------------- ------------------ -------------------- ----------------------- --------------------------
- ---------------- ------------------ -------------------- ----------------------- --------------------------
- ---------------- ------------------ -------------------- ----------------------- --------------------------
- --------------------- ------------------
UNPAID PRINCIPAL
BALANCE OF BASE
RATE LOANS NOTATION MADE BY
- --------------------- ------------------
- --------------------- ------------------
- --------------------- ------------------
- --------------------- ------------------
- --------------------- ------------------
- --------------------- ------------------
- --------------------- ------------------
- --------------------- ------------------
- --------------------- ------------------
- --------------------- ------------------
- --------------------- ------------------
- --------------------- ------------------
76
Schedule B
to Term Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
AMOUNT INTEREST PERIOD
AMOUNT OF CONVERTED TO AND EURODOLLAR AMOUNT OF PRINCIPAL AMOUNT OF BASE RATE
EURODOLLAR EURODOLLAR RATE WITH RESPECT OF EURODOLLAR LOANS LOANS CONVERTED TO
DATE LOANS LOANS THERETO REPAID EURODOLLAR LOANS
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ----------------------- -------------
UNPAID PRINCIPAL
BALANCE NOTATION
OF EURODOLLAR LOANS MADE BY
- ----------------------- -------------
- ----------------------- -------------
- ----------------------- -------------
- ----------------------- -------------
- ----------------------- -------------
- ----------------------- -------------
- ----------------------- -------------
- ----------------------- -------------
- ----------------------- -------------
- ----------------------- -------------
- ----------------------- -------------
- ----------------------- -------------
- ----------------------- -------------
77
EXHIBIT F-2
FORM OF REVOLVING CREDIT NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO
BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE
RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.
$___________ New York, New York
____________, ____
FOR VALUE RECEIVED, the undersigned, SPANISH BROADCASTING SYSTEM,
INC., a Delaware corporation (the "Borrower"), hereby unconditionally promises
to pay to _______________________ (the "Lender") or its registered assigns at
the Payment Office specified in the Credit Agreement (as hereinafter defined) in
lawful money of the United States and in immediately available funds, on the
Revolving Credit Termination Date the principal amount of (a) ____________
DOLLARS ($_______), or, if less, (b) the aggregate unpaid principal amount of
all Revolving Credit Loans outstanding to the Lender made pursuant to Section
2.4 of the Credit Agreement. The Borrower further agrees to pay interest in like
money at such Payment Office on the unpaid principal amount hereof from time to
time outstanding at the rates and on the dates specified in Section 2.15 of the
Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of each
Revolving Credit Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed. The failure to make any such endorsement
or any error in any such endorsement shall not affect the obligations of the
Borrower in respect of any Revolving Credit Loan.
This Note (a) is one of the Revolving Credit Notes referred to in
the Credit Agreement dated as of July 6, 2000 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the Lender, the lenders from time to time party thereto, and Lehman
Commercial Paper Inc., as Administrative Agent, (b) is subject to the provisions
of the Credit Agreement and (c) is subject to optional and mandatory prepayment
in whole or in part as provided in the Credit Agreement. This Note is secured
and guaranteed as provided in the Loan Documents. Reference is hereby made to
the Loan Documents for a description of the properties and assets in which a
security interest has been granted, the nature and extent of the security and
the guarantees, the terms and conditions upon which the security interests and
each guarantee were granted and the rights of the holder of this Note in respect
thereof.
78
Upon the occurrence of any one or more of the Events of Default,
all principal and all accrued interest then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN
THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN
ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 10.6 OF THE
CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF TILE STATE OF NEW YORK.
SPANISH BROADCASTING SYSTEM, INC.
By:
--------------------------------
Name:
Title:
2
79
Schedule A
to Revolving Credit Note
LOANS, CONVERSIONS AND REPAYMENTS OF BASE RATE LOANS
- ---------------- ------------------ -------------------- -----------------------
AMOUNT OF PRINCIPAL
AMOUNT OF BASE AMOUNT CONVERTED OF BASE RATE LOANS
DATE RATE LOANS TO BASE RATE LOANS REPAID
- ---------------- ------------------ -------------------- -----------------------
- ---------------- ------------------ -------------------- -----------------------
- ---------------- ------------------ -------------------- -----------------------
- ---------------- ------------------ -------------------- -----------------------
- ---------------- ------------------ -------------------- -----------------------
- ---------------- ------------------ -------------------- -----------------------
- ---------------- ------------------ -------------------- -----------------------
- ---------------- ------------------ -------------------- -----------------------
- ---------------- ------------------ -------------------- -----------------------
- ---------------- ------------------ -------------------- -----------------------
- ---------------- ------------------ -------------------- -----------------------
- ---------------- ------------------ -------------------- -----------------------
- ---------------- ------------------ -------------------- -----------------------
- -------------------------- --------------------- ------------------
AMOUNT OF BASE RATE UNPAID PRINCIPAL
LOANS CONVERTED TO BALANCE OF BASE
EURODOLLAR LOANS RATE LOANS NOTATION MADE BY
- -------------------------- --------------------- ------------------
- -------------------------- --------------------- ------------------
- -------------------------- --------------------- ------------------
- -------------------------- --------------------- ------------------
- -------------------------- --------------------- ------------------
- -------------------------- --------------------- ------------------
- -------------------------- --------------------- ------------------
- -------------------------- --------------------- ------------------
- -------------------------- --------------------- ------------------
- -------------------------- --------------------- ------------------
- -------------------------- --------------------- ------------------
- -------------------------- --------------------- ------------------
- -------------------------- --------------------- ------------------
80
Schedule B
to Revolving Credit Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
AMOUNT INTEREST PERIOD AMOUNT OF
AMOUNT OF CONVERTED TO AND EURODOLLAR AMOUNT OF PRINCIPAL EURODOLLAR
EURODOLLAR EURODOLLAR RATE WITH RESPECT OF EURODOLLAR LOANS LOANS CONVERTED TO
DATE LOANS LOANS THERETO REPAID BASE RATE LOANS
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
- ------------ ---------------- ---------------- ------------------- ---------------------- --------------------
----------------------- -------------
UNPAID PRINCIPAL
BALANCE OF EURODOLLAR NOTATION
LOANS MADE BY
----------------------- -------------
----------------------- -------------
----------------------- -------------
----------------------- -------------
----------------------- -------------
----------------------- -------------
----------------------- -------------
----------------------- -------------
----------------------- -------------
----------------------- -------------
----------------------- -------------
----------------------- -------------
----------------------- -------------
81
EXHIBIT F-3
FORM OF SWING LINE NOTE
THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT
IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO
BELOW. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE
RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT TO THE
TERMS OF SUCH CREDIT AGREEMENT.
$___________ New York, New York
____________, ____
FOR VALUE RECEIVED, the undersigned, SPANISH BROADCASTING SYSTEM,
INC., a Delaware corporation (the "Borrower"), hereby unconditionally promises
to pay to LEHMAN COMMERCIAL PAPER INC. (the "Swing Line Lender") or its
registered assigns at the Payment Office specified in the Credit Agreement (as
hereinafter defined) in lawful money of the United States and in immediately
available funds, on the Revolving Credit Termination Date the principal amount
of (a) ___________ DOLLARS ($_______________), or, if less, (b) the aggregate
unpaid principal amount of all Swing Line Loans outstanding to the Swing Line
Lender made pursuant to Section 2.6 of the Credit Agreement, as hereinafter
defined. The Borrower further agrees to pay interest in like money at such
office on the unpaid principal amount hereof from time to time outstanding at
the rates and on the dates specified in Section 2.15 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date and amount of each Swing Line
Loan made pursuant to the Credit Agreement and the date and amount of each
payment or prepayment of principal thereof. Each such endorsement shall
constitute prima facie evidence of the accuracy of the information endorsed. The
failure to make any such endorsement or any error in any such endorsement shall
not affect the obligations of the Borrower in respect of any Swing Line Loan.
This Note (a) is [one of] the Swing Line Note[s] referred to in
the Credit Agreement dated as of July 6, 2000 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the Swing Line Lender, the lenders from time to time party thereto,
and Lehman Commercial Paper Inc., as Administrative Agent, (b) is subject to the
provisions of the Credit Agreement and (c) is subject to optional and mandatory
prepayment in whole or in part as provided in the Credit Agreement. This Note is
secured and guaranteed as provided in the Loan Documents. Reference is hereby
made to the Loan Documents for a description of the properties and assets in
which a security interest has been granted, the nature and extent of the
security and the guarantees, the terms and conditions upon which the security
interests and each guarantee were granted and the rights of the holder of this
Note in respect thereof.
82
Upon the occurrence of any one or more of the Events of Default,
all principal and all accrued interest then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable, all as provided
in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN
THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN
ACCORDANCE WITH THE REGISTRATION AND OTHER PROVISIONS OF SECTION 10.6 OF THE
CREDIT AGREEMENT.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SPANISH BROADCASTING SYSTEM, INC.
By:
--------------------------------
Name:
Title:
2
83
Schedule A
to Swing Line Note
LOANS AND REPAYMENTS OF LOANS
- ------------------- -------------------------- ----------------------------
AMOUNT OF AMOUNT OF PRINCIPAL OF
DATE SWING LINE LOANS SWING LINE LOANS REPAID
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ------------------- -------------------------- ----------------------------
- ----------------------------------- ---------------------
UNPAID PRINCIPAL BALANCE OF
SWING LINE LOANS NOTATION MADE BY
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
- ----------------------------------- ---------------------
84
EXHIBIT G
FORM OF EXEMPTION CERTIFICATE
Reference is made to the Credit Agreement, dated as of July 6,
2000 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement") among SPANISH BROADCASTING SYSTEM, INC., a Delaware
corporation (the "Borrower"), the lenders from time to time party to the Credit
Agreement (the "Lenders"), and LEHMAN COMMERCIAL PAPER INC., as administrative
agent (in such capacity, the "Administrative Agent"). Capitalized terms used
herein that are not defined herein shall have the meanings ascribed to them in
the Credit Agreement. __________________ (the "Non-U.S. Lender") is providing
this certificate pursuant to Section 2.20(f) of the Credit Agreement. The
Non-U.S. Lender hereby represents and warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner
of the Loans or the obligations evidenced by Note(s) in respect of which it is
providing this certificate.
2. The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code"). In
this regard, the
Non-U.S. Lender further represents and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or
other legal requirements as a bank in any jurisdiction; and
(b) the Non-U.S. Lender has not been treated as a bank for
purposes of any tax, securities law or other filing or submission
made to any Governmental Authority, any application made to a
rating agency or qualification for any exemption from tax,
securities law or other legal requirements;
3. The Non-U.S. Lender is not a 10-percent shareholder of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code; and
4. The Non-U.S. Lender is not a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code.
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate.
[NAME OF NON-U.S. LENDER]
By:
--------------------------------
Name:
Title:
Date:
-----------------------------
85
EXHIBIT H
FORM OF CLOSING CERTIFICATE
Pursuant to subsection 5.l(i) of the Credit Agreement dated as of
July 6, 2000 (the "Credit Agreement"; terms defined therein being used herein as
therein defined), among SPANISH BROADCASTING SYSTEM, INC., a Delaware
corporation (the "Borrower"), the lenders from time to time party to the Credit
Agreement (the "Lenders"), and LEHMAN COMMERCIAL PAPER INC., as administrative
agent (in such capacity, the "Administrative Agent"), the undersigned [INSERT
TITLE OF OFFICER] of [INSERT NAME OF COMPANY] (the "Company") hereby certifies
as follows:
1. The representations and warranties of the Company set forth
in each of the Loan Documents to which it is a party or which are contained in
any certificate furnished by or on behalf of the Company pursuant to any of the
Loan Documents to which it is a party are true and correct in all material
respects on and as of the date hereof with the same effect as if made on the
date hereof, except for representations and warranties expressly stated to
relate to a specific earlier date, in which case such representations and
warranties were true and correct in all material respects as of such earlier
date.
2. ____________________ is the duly elected and qualified
Corporate Secretary of the Company and the signature set forth for such officer
below is such officer's true and genuine signature.
3. No Default or Event of Default has occurred and is continuing
as of the date hereof or after giving effect to the Loans to be made on the date
hereof. [Borrower only]
4. The conditions precedent set forth in Section 5.1 of the
Credit Agreement were satisfied as of the Closing Date except as set forth on
Schedule I hereto.
[Borrower only]
The undersigned Corporate Secretary of the Company certifies as
follows:
5. There are no liquidation or dissolution proceedings pending
or to my knowledge threatened against the Company, nor has any other event
occurred adversely affecting or threatening the continued corporate existence of
the Company.
6. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of its
organization.
7. Attached hereto as Annex 1 is a true and complete copy of
resolutions duly adopted by the Board of Directors of the Company on
__________________; such resolutions have not in any way been amended, modified,
revoked or rescinded, have been in full force and effect since their adoption to
and including the date hereof and are now in full force and effect [and are the
only corporate proceedings of the Company now in force relating to or affecting
the matters referred to therein.]
86
8. Attached hereto as Annex 2 is a true and complete copy of the
By-Laws of the Company as in effect on the date hereof.
9. Attached hereto as Annex 3 is a true and complete copy of the
Certificate of Incorporation of the Company as in effect on the date hereof, and
such certificate has not been amended, repealed, modified or restated.
10. The following persons are now duly elected and qualified
officers of the Company holding the offices indicated next to their respective
names below, and such officers have held such offices with the Company at all
times since the date indicated next to their respective titles to and including
the date hereof, and the signatures appearing opposite their respective names
below are the true and genuine signatures of such officers, and each of such
officers is duly authorized to execute and deliver on behalf of the Company each
of the Loan Documents to which it is a party and any certificate or other
document to be delivered by the Company pursuant to the Loan Documents to which
it is a party:
Name Office Date Signature
---- ------ ---- ---------
IN WITNESS WHEREOF, the undersigned have hereunto set our names
as of the date set forth below.
- ------------------------------------ ------------------------------------
Name: Name:
Title: Title:
Date:
----------------, ----
2
87
SCHEDULE I
[Waived Conditions Precedent]
3
88
EXHIBIT J
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of July 6,
2000 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among SPANISH BROADCASTING SYSTEM, INC., a Delaware
corporation (the "Borrower"), the lenders from time to time party thereto (the
"Lenders"), and Lehman Commercial Paper Inc., as administrative agent (in such
capacity, the "Administrative Agent"). Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
The Assignor identified on Schedule 1 hereto (the "Assignor") and
the Assignee identified on Schedule 1 hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), the interest described in Schedule 1
hereto (the "Assigned Interest") in and to the Assignor's rights and obligations
under the Credit Agreement with respect to those credit facilities contained in
the Credit Agreement as are set forth on Schedule 1 hereto (individually, an
"Assigned Facility" collectively, the "Assigned Facilities"), in a principal
amount for each Assigned Facility as set forth on Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan Document or any
other instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being assigned by
it hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, any of its Subsidiaries or
any other obligor or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches any Notes held
by it evidencing the Assigned Facilities and (i) requests that the
Administrative Agent, upon request by the Assignee, exchange the attached Notes
for a new Note or Notes payable to the Assignee and (ii) if the Assignor has
retained any interest in the Assigned Facility, requests that the Administrative
Agent exchange the attached Notes for a new Note or Notes payable to the
Assignor, in each case in amounts which reflect the assignment being made hereby
(and after giving effect to any other assignments which have become effective on
the Effective Date).
89
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to Section 4.1 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (c) agrees
that it will, independently and without reliance upon the Assignor, the Agents
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement, the other Loan Documents or any
other instrument or document furnished pursuant hereto or thereto; (d) appoints
and authorizes the Agents to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto as are delegated to the Agents by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its terms
all the obligations which by the terms of the Credit Agreement are required to
be performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to Section
2.20(f) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be
the Effective Date of Assignment described in Schedule 1 hereto (the "Effective
Date"). Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agent for acceptance by it and recording by the
Administrative Agent pursuant to the Credit Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) [to the Assignor for amounts which have accrued to the Effective Date
and to the Assignee for amounts which have accrued subsequent to the Effective
Date] [to the Assignee whether such amounts have accrued prior to the Effective
Date or accrue subsequent to the Effective Date. The Assignor and the Assignee
shall make all appropriate adjustments in payments by the Agent for periods
prior to the Effective Date or with respect to the making of this assignment
directly between themselves.]
6. From and after the Effective Date, (a) the Assignee shall be
a party to the Credit Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Lender thereunder and under
the other Loan Documents and shall be bound by the provisions thereof and (b)
the Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
2
90
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written by
their respective duly authorized officers on Schedule 1 hereto.
3
91
Schedule I
to Assignment and Acceptance
Name of Assignor:
----------------------------------------------
Name of Assignee:
----------------------------------------------
Effective Date of Assignment:
----------------------------------
Credit Facility Principal Amount
Assigned Assigned Commitment Percentage Assigned
- ----------------------------- ---------------------------- ---------------------------------
$---------- ---.----------%
[Name of Assignee] [Name of Assignor]
By: By:
--------------------------------------- ----------------------------
Title: Title:
92
Accepted: Consented To:
LEHMAN COMMERCIAL PAPER SPANISH BROADCASTING SYSTEM,
INC. INC.
By: By:
--------------------------------------- --------------------------
Title: Title:
2