SECURITY AGREEMENT Dated as of September 26, 2008 among THE MCCLATCHY COMPANY and Each Other Grantor From Time to Time Party Hereto and BANK OF AMERICA, N.A, as Administrative Agent
Exhibit
10.2
Dated as
of September 26, 2008
among
THE
MCCLATCHY COMPANY
and
Each
Other Grantor
From Time
to Time Party Hereto
and
BANK OF
AMERICA, N.A,
as
Administrative Agent
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1
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Section
1.1
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Definitions………………………………………………………………….…………………………………………………………………....
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1
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Section
1.2
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Certain
Other
Terms………………………………………………………..…………………………………………………………………...
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4
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ARTICLE
II GRANT OF SECURITY
TRUST………………………………………..................…………………………………………………………………...........
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5
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Section
2.1
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Collateral………………………………………………………………………………………………………………………………………....
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5
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Section
2.2
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Grant
of Security Interest in
Collateral…………………………………….………………………………………………………………….
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6
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ARTICLE
III
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REPRESENTATION
AND
WARRANTIES……………………………..……………………………………………………………...........
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6
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Section
3.1
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Title;
No Other
Liens……………………………………………...............…………………………………………………………………....
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6
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Section
3.2
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Perfection
and
Priority…………………………………………………….…………………………………………………………………....
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6
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Section
3.3
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Jurisdiction
of Organization; Chief Executive
Office………………………………………………………………………………………..
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7
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Section
3.4
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Pledged
Debt Instruments, Pledged Investment
Property…………………..……………………………………………………………...
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7
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Section
3.5
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Instruments
and Tangible Chattel Paper Former
Accounts……..................………………………………………………………………
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7
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Section
3.6
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Intellectual
Property………………………………………………………...…………………………………………………………………..
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7
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Section
3.7
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Commercial
Tort
Claims………………………………………………………………………………………………………………………...
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8
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Section
3.8
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Enforcement………………………………………………………………...…………………………………………………………………...
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8
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Section
3.9
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Representations
and Warranties of the Credit
Agreement………................………………………………………………………………
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8
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ARTICLE
IV COVENANTS…………………………………………………………..................………………………………………………………………….............
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8
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Section
4.1
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Maintenance
of Perfected Security Interest; Further Documentation and
Consents………………………………………………………………………………………………………………………………………....
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8
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Section
4.2
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Changes
in Locations, Name,
Etc………………………………………….………………………………………………………………….
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8
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Section
4.3
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Pledged
Debt Instruments (a)Delivery of Pledged Debt
Instruments………………………………………………………......................
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9
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Section
4.4
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Delivery
of Instruments and Tangible Chattel Paper and Control of Investment
Property, Letter-of-Credit Rights and Electronic Chattel
Paper………………………………………………………………………..…………………………………………………………...
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9
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Section
4.5
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Intellectual
Property………………………………………………………..…………………………………………………………………...
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10
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Section
4.6
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Notices……………………………………………………………………..………………………………………………………………….....
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11
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Section
4.7
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Notice
of Commercial Tort
Claims………………………………………..…………………………………………………………………....
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11
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ARTICLE
V REMDIAL
PROVISIONS…………………………………………………………………………………………………………………………….............
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12
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Section
5.1
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Code
and Other
Remedies………………………………………………….…………………………………………………………………..
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12
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Section
5.2
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Accounts
and Payments in Respect of General
Intangibles………………...……………………………………………………………..
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14
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Section
5.3
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Pledged
Debt
Instruments…………………………………………………..…………………………………………………………………
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15
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Section
5.4
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Proceeds
to be Turned over to and Held by Administrative
Agent………...…………………………………………………………….
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16
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Section
5.5
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Sale
of Pledged Debt
Instruments………………………………………….…………………………………………………………………
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16
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Section
5.6
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Deficiency………………………………………………………………….………………………………………………………………….....
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16
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ARTICLE
VI THE ADMINISTRATIVE
AGENT……………………………………………….……………………………………………………………...................
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17
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Section
6.1
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Administrative
Agent’s Appointment as
Attorney-in-Fact………………….…………………………………………………………….
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17
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Section
6.2
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Authorization
to File Financing
Statements………………………………..…………………………………………………………….......
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18
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Section
6.3
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Authority
of Administrative
Agent……………………………………………………………………………………………………….......
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18
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Section
6.4
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Duty;
Obligations and
Liabilities…………………………………………..………………………………………………………………….
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18
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Section
6.5
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Reinstatement……………………………………………………………….…………………………………………………………………..
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19
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Section
6.6
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Release
of
Collateral………………………………………………………..…………………………………………………………………...
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19
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Section
6.7
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Independent
Obligations………………………………………………………………………………………………………………………
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20
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Section
6.8
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No
Waiver by Course of
Conduct…………………………………………..…………………………………………………………….......
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20
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Section
6.9
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Amendments,
Waivers in
Writing……………………………….................………………………………………………………………....
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20
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Section
6.10
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Additional
Grantors; Additional Pledged Investment
Property…................……………………………………………………………...
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20
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Section
6.11
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Notices……………………………………………………………………...…………………………………………………………………....
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20
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Section
6.12
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Successors
and
Assigns…………………………………………………….………………………………………………………………....
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21
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Section
6.13
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Counterparts………………………………………………………………..…………………………………………………………………...
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21
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Section
6.14
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Severability……………………………………………………………………………………………………………………………………....
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21
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Section
6.15
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Governing
Law Jurisdiction,
Etc…………………………………………...………………………………………………………………….
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21
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ANNEXES
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Annex
1
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Form
of Pledge Amendment
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Annex
2
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Form
of Joinder Agreement
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Annex
3
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Form
of Intellectual Property Security
Agreement
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SECURITY
AGREEMENT, dated as of September 26, 2008, by The McClatchy Company, a Delaware
corporation (the “Borrower”), and each of the other entities listed on the
signature pages hereof or that becomes a party hereto pursuant to Section 7.6
hereof (together with Borrower, the “Grantors”), in favor
of Bank of America, N.A. (“BofA”), as
Administrative Agent (in such capacity, together with its successors and
permitted assigns, the “Administrative
Agent”) for the Lenders and as Swing Line Lender and L/C Issuer and each
other Secured Party (as defined below).
W I T N E
S S E T H:
WHEREAS,
pursuant to the Credit Agreement dated as of June 27, 2006 as amended by
Amendment No. 1 to Credit Agreement, dated as of March 28, 2007,
Amendment No. 2 to Credit Agreement, dated as of July 19, 2007,
Amendment No. 3 to Credit Agreement, dated as of March 28, 2008 and
Amendment No. 4 to Credit Agreement, dated as of the date hereof (“Amendment
No. 4”) (as the same may be modified from time to time, the “Credit Agreement”)
among the Borrower, the Lenders from time to time party thereto, and BofA, as
Administrative Agent for the Lenders and as Swing Line Lender and L/C Issuer,
the Lenders, the Swing Line Lender and the L/C Issuer have severally agreed to
make extensions of credit to the Borrower upon the terms and subject to the
conditions set forth therein;
WHEREAS,
each Grantor will derive substantial direct and indirect benefits 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, the Swing Line
Lender and the L/C Issuer to enter into Amendment No. 4 that the Grantors
shall have executed and delivered this Agreement to the Administrative
Agent;
NOW,
THEREFORE, in consideration of the premises and to induce the Lenders, the Swing
Line Lender, the L/C Issuer and the Administrative Agent to enter into Amendment
No. 4 and to induce the Lenders, the Swing Line Lender and the L/C Issuer
to make their respective extensions of credit to the Borrower under the Credit
Agreement, each Grantor hereby agrees with the Administrative Agent as
follows:
ARTICLE
I
DEFINED
TERMS
Section
1.1 Definitions. (a) Capital
terms used herein without definition are used as defined in the Credit
Agreement.
(b) The
following terms have the meanings given to them in the UCC and terms used herein
without definition that are defined in the UCC have the meanings given to them
in the UCC (such meanings to be equally applicable to both the singular and
plural forms of the terms defined): “account”, “account debtor”,
“certificated
security”, “chattel paper”,
“commercial tort
claim”, “deposit account”,
“electronic chattel
paper”, “equipment”, “general intangible”,
“goods”, “instruments”, “inventory”, “investment property”,
“letter-of-credit
right”, “proceeds”, “record”, “securities account”,
“security”,
“supporting
obligation” and “tangible chattel
paper”.
(c) The
following terms shall have the following meanings:
“Agreement” means this
Security Agreement.
“Applicable IP Office”
means the United States Patent and Trademark Office, the United States Copyright
Office or any similar office or agency within or outside the United
States.
“Cash Collateral
Account” means a deposit account or securities account subject, in each
instance, to a Control Agreement, other than accounts established to cash
collateralize L/C Borrowings.
“Collateral” has the
meaning specified in Section 2.1
hereof.
“Controlled Securities
Account” means each securities account (including all financial assets
held therein and all certificates and instruments, if any, representing or
evidencing such financial assets) that is the subject of an effective Control
Agreement.
“Contractual
Obligation” means, as to any Person, any provision of any security issued
by such Person as of any agreement, including, contract, indenture, mortgage,
deed of trust or other instrument, document or agreement to which such Person is
a party or by which it or any of its Property is bound.
“Control Agreement”
means a tri-party deposit account, securities account or commodities account
control agreement by and among the applicable Loan Party, the Administrative
Agent, and the depository or securities intermediary, and each in form and
substance reasonably satisfactory in all respects to the Administrative Agent
and in any event providing the Administrative Agent with “control” of such
account within the meaning of Articles 8 and 9 of the UCC.
“Copyrights” means all
rights, title and interests (and all related IP Ancillary Rights) arising under
any Requirement of Law in or relating to copyrights and all mask work, database
and design rights, whether or not registered or published, all registrations and
recordations thereof and all applications in connection therewith.
“Excluded Property”
means, collectively, (i) Stock and Stock Equivalents in any Subsidiary of
the Borrower, (ii) any Indebtedness owed to any Grantor by any Subsidiary
of the Borrower, (iii) any land, buildings, machinery, equipment, and leasehold
interests and improvements in respect of the foregoing of the Borrower and its
Subsidiaries which would be reflected on a consolidated balance sheet of the
Borrower and its Subsidiaries prepared in accordance with GAAP, (iv) any permit
or license or any Contractual Obligation entered into by any Grantor (A) that
prohibits or requires the consent of any Person other than the Borrower and its
Affiliates which has not been obtained as a condition to the creation by such
Grantor of a Lien on any right, title or interest in such permit, license or
Contractual Obligation or (B) to the extent that any Requirement of Law
applicable thereto prohibits the creation of a Lien thereon, but only, with
respect to the prohibition in (A) and (B), to the extent, and for as long as,
such prohibition is not terminated or rendered unenforceable or otherwise deemed
ineffective by the UCC or any other Requirement of Law, (v) Property owned
by any Grantor that is subject to a purchase money Lien or a Capital Lease
permitted under the Credit Agreement if the Contractual Obligation pursuant to
which such Lien is granted (or in the document providing for such Capital Lease)
prohibits or requires the consent of any Person other than the Borrower and its
Affiliates which has not been obtained as a condition to the creation of any
other Lien on such item of Property and (vi) any “intent to use” Trademark
applications for which a statement of use has not been filed (but only until
such statement is filed); provided, however, “Excluded Property”
shall not include any proceeds, products, substitutions or replacements of
Excluded Property (unless such proceeds, products, substitutions or replacements
would otherwise constitute Excluded Property).
“Intellectual
Property” means all rights, title and interests in or relating to
intellectual property and industrial property arising under any Requirement of
Law and all IP Ancillary Rights relating thereto, including all Copyrights,
Patents, Trademarks, Internet domain names, Trade Secrets and IP
Licenses.
“Internet Domain Name”
means all right, title and interest (and all related IP Ancillary Rights)
arising under any Requirement of Law in or relating to Internet domain
names.
“IP Ancillary Rights”
means with respect to any other Intellectual Property, as applicable, all
foreign counterparts to, and all divisionals, reversions, continuations,
continuations-in-part, reissues, reexaminations, renewals and extensions of,
such Intellectual Property and all income, royalties, proceeds and Liabilities
at any time due or payable or asserted under or with respect to any of the
foregoing or otherwise with respect to such Intellectual Property, including all
rights to ▇▇▇ or recover at law or in equity for any past, present or future
infringement, misappropriation, dilution, violation or other impairment thereof,
and, in each case, all rights to obtain any other IP Ancillary
Right.
“IP License” means all
Contractual Obligations (and all related IP Ancillary Rights), whether written
or oral, granting any right, title and interest in or relating to any
Intellectual Property.
“Liabilities” means
all claims, actions, suits, judgments, damages, losses, liability, obligations,
responsibilities, fines, penalties, sanctions, costs, fees, taxes, commissions,
charges, disbursements and expenses, in each case of any kind or nature
(including interest accrued thereon or as a result thereto and fees, charges and
disbursements of financial, legal and other advisors and consultants), whether
joint or several, whether or not indirect, contingent, consequential, actual,
punitive, treble or otherwise.
“Material Intellectual
Property” means Intellectual Property that is owned by or licensed to a
Grantor and material to the conduct of any Grantor’s business.
“Patents” means all
rights, title and interests (and all related IP Ancillary Rights) arising under
any Requirement of Law in or relating to letters patent and applications
therefor.
“Permits” means, with
respect to any Person, any permit, approval, authorization, license,
registration, certificate, concession, grant, franchise, variance or permission
from, and any other Contractual Obligations with, any Governmental Authority, in
each case whether or not having the force of law and applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is subject.
“Pledged Debt
Instruments” means all right, title and interest of any Grantor in
instruments evidencing any Indebtedness owed to such Grantor (exclusive of any
Excluded Property) or other obligations, and any distribution of property made
on, in respect of or in exchange for the foregoing from time to time, including
all Indebtedness described on Schedule 3 to the Amendment Disclosure Letter,
issued by the obligors named therein.
“Pledged Investment
Property” means any investment property of any Grantor (exclusive of any
Excluded Property), and any distribution of property made on, in respect of or
in exchange for the foregoing from time to time, other than any Pledged Debt
Instruments.
“Property” means any
interest in any kind of property or asset, whether real, personal or mixed, and
whether tangible or intangible.
“Requirement of Law”
means, as to any Person, any law (statutory or common), ordinance, treaty, rule,
regulation, order, policy, other legal requirement or determination of an
arbitrator or of a Governmental Authority, in each case applicable to or binding
upon such Person or any of its Property or to which such Person or any of its
Property is subject.
“Secured Parties”
means the Administrative Agent, the Lenders and any Lender or Affiliate party to
a Swap Contract, treasury management or cash management agreement described in
Section 2.2 hereof.
“Software” means
(a) all computer programs, including source code and object code versions,
(b) all data, databases and compilations of data, whether machine readable
or otherwise, and (c) all documentation, training materials and
configurations related to any of the foregoing.
“Stock” means all
shares of capital stock (whether denominated as common stock or preferred
stock), equity interests, beneficial, partnership or membership interests, joint
venture interests, participations or other ownership or profits interests in or
equivalents (regardless of how designated) of or in a Person (other than an
individual), whether voting or non-voting.
“Stock Equivalents”
means all securities convertible into an exchangeable for Stock or any other
Stock Equivalent and all warrants, options or other rights to purchase,
subscribe for or otherwise acquire any Stock or any other Stock Equivalent,
whether or not presently convertible, exchangeable or exercisable.
“Trade Secrets” means
all right, title and interest (and all related IP Ancillary Rights) arising
under any Requirement of Law in or relating to trade secrets.
“Trademark” means all
rights, title and interests (and all related IP Ancillary Rights) arising under
any Requirement of Law in or relating to trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers and, in each case,
all goodwill associated therewith, all registrations and recordations thereof
and all applications in connection therewith.
“UCC” means the
Uniform Commercial Code as from time to time in effect in the State of New York;
provided, however, that, in the
event that, by reason of mandatory provisions of any applicable Requirement of
Law, any of the attachment, perfection or priority of the Administrative Agent’s
or any other Secured Party’s security interest in any Collateral is governed by
the Uniform Commercial Code of a jurisdiction other than the State of New York,
“UCC” shall
mean the Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such attachment, perfection or
priority and for purposes of the definitions related to or otherwise used in
such provisions.
Section
1.2 Certain Other
Terms. (a) The meanings given to terms defined
herein shall be equally applicable to both the singular and plural forms of such
terms. The terms “herein”, “hereof” and similar terms refer to this
Agreement as a whole and not to any particular Article, Section or clause
in this Agreement. References herein to an Annex, Article,
Section or clause refer to the appropriate Annex to, or Article,
Section or clause in this Agreement. Where the context requires,
provisions relating to any Collateral when used in relation to a Grantor shall
refer to such Grantor’s Collateral or any relevant part thereof.
(b) Other Interpretive
Provisions.
(i) Defined
Terms. Unless otherwise specified herein or therein, all terms
defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto.
(ii) The
Agreement. The words “hereof”, “herein”, “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.
(iii) Certain Common
Terms. The term “including” is not limiting and means
“including without limitation.”
(iv) Performance;
Time. Whenever any performance obligation hereunder (other
than a payment obligation) shall be stated to be due or required to be satisfied
on a day other than a Business Day, such performance shall be made or satisfied
on the next succeeding Business Day. In the computation of periods of
time from a specified date to a later specified date, the word “from” means
“from and including”; the words “to” and “until” each mean “to but excluding”,
and the word “through” means “to and including.” If any provision of
this Agreement refers to any action taken or to be taken by any Person, or which
such Person is prohibited from taking, such provision shall be interpreted to
encompass any and all means, direct or indirect, of taking, or not taking, such
action.
(v) Contracts. Unless
otherwise expressly provided herein, references to agreements and other
contractual instruments, including this Agreement and the other Loan Documents,
shall be deemed to include all subsequent amendments, thereto, restatements and
substitutions thereof and other modifications and supplements thereto which are
in effect from time to time, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan Document.
(vi) Laws. References
to any statute or regulation are to be construed as including all statutory and
regulatory provisions related thereto or consolidating, amending, replacing,
supplementing or interpreting the statute or regulation.
ARTICLE
II
GRANT OF
SECURITY INTEREST
Section
2.1 Collateral. For
the purposes of this Agreement, all of the following property now owned or at
any time hereafter acquired by a Grantor or in which a Grantor now has or at any
time in the future may acquire any right, title or interests is
collectively referred to as the “Collateral”:
(a) all
accounts, chattel paper, deposit accounts, documents (as defined in the UCC),
general intangibles, instruments, inventory, investment property, letter of
credit rights and any supporting obligations related to any of the
foregoing;
(b) the
commercial tort claims described on Schedule 1 to the Amendment Disclosure
Letter and on any supplement thereto received by the Administrative Agent
pursuant to Section 4.7
hereof;
(c) all books
and records pertaining to the other property described in this Section 2.1;
(d) all
property of such Grantor held by any Secured Party, including all property of
every description, in the custody of or in transit to such Secured Party for any
purpose, including safekeeping, collection or pledge, for the account of such
Grantor or as to which such Grantor may have any right or power, including but
not limited to cash;
(e) all other
goods and personal property of such Grantor, whether tangible or intangible and
wherever located; and
(f) to the
extent not otherwise included, all proceeds of the foregoing;
Notwithstanding
the foregoing, the term “Collateral” does not include any Excluded Property;
provided, further, that if and
when any property shall cease to be Excluded Property, a Lien on and security in
such property shall be deemed granted therein
Section
2.2 Grant of Security Interest
in Collateral. Each Grantor, as collateral security for the
prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of the Obligations of the Borrower and
of such Grantor plus all of the obligations of the Borrower or any of its
Subsidiaries under any and all Swap Contracts between the Borrower and any
Lender or Affiliate of a Lender (or any Person that was a Lender or Affiliate of
a Lender at the time such Swap Contract was executed) that hedge interest rate
exposure for Indebtedness, plus all of the obligations of the Borrower or any of
its Subsidiaries under any and all treasury or cash management services
(including, without limitation, purchase cards) between the Borrower and any
Lender or an Affiliate of a Lender (or any Person that was a Lender or Affiliate
of a Lender at the time such services agreement was executed) (the “Secured
Obligations”), hereby mortgages, pledges and hypothecates to the
Administrative Agent for the benefit of the Secured Parties, and grants to the
Administrative Agent for the benefit of the Secured Parties a Lien on and
security interest in, all of its right, title and interest in, to and under
the Collateral of such Grantor.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
To induce
the Lenders, the Swing Line Lender, the L/C Issuer and the Administrative Agent
to amend the Credit Agreement and to make Loans thereunder, each Grantor hereby
represents and warrants each of the following to the Administrative Agent, the
Lenders, the Swing Line Lender, the L/C Issuer and the other Secured
Parties:
Section
3.1 Title; No Other
Liens. Except for the Lien granted to the Administrative Agent
pursuant to this Agreement and other Permitted Liens under any Loan Document
(including Section 3.2),
such Grantor owns each item of the Collateral free and clear of any and all
Liens or claims of others.
|
17531489
|
Security
Agreement
|
6
Such
Grantor (a) is the record and beneficial owner of the Collateral pledged by
it hereunder constituting instruments or certificates and (b) has rights in
or the power to transfer each other item of Collateral in which a Lien is
granted by it hereunder, free and clear of any other Lien, other than Permitted
Liens.
Section
3.2 Perfection and
Priority. Except to the extent perfection with respect to an
item of Collateral is not required under Article IV, the
security interest granted pursuant to this Agreement constitutes a valid and
continuing perfected security interest in favor of the Administrative Agent in
all Collateral subject, for the following Collateral, to the occurrence of the
following: (i) in the case of all Collateral in which a security
interest may be perfected by filing a financing statement under the UCC, the
filing of properly completed financing statements covering the Collateral with
the applicable filing office in the jurisdiction of formation or incorporation
of each Loan Party, (ii) with respect to any deposit account or securities
account, the execution of Control Agreements, (iii) in the case of all
Copyrights, Trademarks and Patents for which UCC filings are insufficient, all
appropriate filings having been made with the United States Copyright Office or
the United States Patent and Trademark Office, as applicable, (iv) in the
case of letter-of-credit rights that are not supporting obligations of
Collateral, the execution of a Contractual Obligation granting control to the
Administrative Agent over such letter-of-credit rights and (v) in the case
of electronic chattel paper, the completion of all steps necessary to grant
control to the Administrative Agent over such electronic chattel
paper. Such security interest shall be prior to all other Liens on
the Collateral except for Permitted Liens.
Section
3.3 Jurisdiction of
Organization; Chief Executive Office. Such Grantor’s
jurisdiction of organization, legal name and organizational identification
number, if any, and the location of such Grantor’s chief executive office or
sole place of business, in each case as of the date hereof, is specified on
Schedule 2 to the Amendment Disclosure Letter.
Section
3.4 Pledged Debt Instruments,
Pledged Investment Property. As of the Closing Date, all
Pledged Investment Property consisting of instruments and certificates has been
delivered to the Administrative Agent, to the extent delivery is required by
Section 4.3(a) hereof.
Section
3.5 Instruments and Tangible
Chattel Paper Formerly Accounts. No amount payable to such
Grantor under or in connection with any account is evidenced by any instrument
or tangible chattel paper that has not been delivered to the Administrative
Agent, properly endorsed for transfer, to the extent delivery is required by
Section 4.4(a).
Section
3.6 Intellectual
Property. (a) Schedule 4 to the Amendment
Disclosure Letter sets forth a true and complete list of the following
Intellectual Property such Grantor owns, licenses or otherwise has the right to
use: (i) Intellectual Property that is registered or subject to
applications for registration, and (ii) Internet Domain Names, separately
identifying that owned and licensed to such Grantor and including for each of
the foregoing items (1) the owner, (2) the title, (3) the jurisdiction in which
such item has been registered or otherwise arises or in which an application for
registration has been filed, and (4) as applicable, the registration or
application number and registration or application date.
(b) On the
Closing Date, all Material Intellectual Property owned by such Grantor is valid,
in full force and effect, subsisting, unexpired and enforceable, and no Material
Intellectual Property has been abandoned, except where any failure to be in full
force and effect, subsisting and unexpired and enforceable or any such
abandonment, could not reasonably be expected to have a Material Adverse
Effect. The consummation by each Grantor of the transactions
contemplated by the Loan Document, do not cause any breach or default of any
material IP License or impair the ownership, use, validity or enforceability of,
or any rights of such Grantor in, any Material Intellectual
Property. There are no
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pending
(or, to the knowledge of such Grantor, threatened in writing) actions,
investigations, suits, proceedings, audits, claims, demands, orders or disputes
challenging the ownership, use, validity, enforceability of, or such Grantor’s
rights in, any Material Intellectual Property of such Grantor, except to the
extent the same could not reasonably be expected to have a Material Adverse
Effect. To such Grantor’s knowledge, no Person has been or is
infringing, misappropriating, diluting, violating or otherwise impairing any
Intellectual Property of such Grantor, except to the extent the same could not
reasonably be expected to have a Material Adverse Effect. Such
Grantor, and to such Grantor’s knowledge each other party thereto, is not in
breach or default of any material IP License, except to the extent the same
could not reasonably be expected to have a Material Adverse Effect.
Section
3.7 Commercial Tort
Claims. The only commercial tort claims of any Grantor
existing on the date hereof (regardless of whether the amount, defendant or
other material facts can be determined and regardless of whether such commercial
tort claim has been asserted, threatened or has otherwise been made known to the
obligee thereof or whether litigation has been commenced for such claims) are
those listed on Schedule 1 to the Amendment Disclosure Letter, which sets
forth such commercial tort claims to the extent the damages being sought exceed
$100,000 in the aggregate for all such commercial tort claims of all Grantors
and which sets forth such information separately for each Grantor.
Section
3.8 Enforcement. No
Permit, notice to or filing with any Governmental Authority or any other Person
or any consent from any Person is required for the exercise by the
Administrative Agent of its rights (including voting rights) provided for in
this Agreement or the enforcement of remedies in respect of the Collateral
pursuant to this Agreement, including the transfer of any Collateral, except as
may be required in connection with the disposition of any portion of the Pledged
Debt Instruments or Pledged Investment Property by laws affecting the offering
and sale of securities generally or any approvals that may be required to be
obtained from any bailees or landlords to collect the Collateral.
Section
3.9 Representations and
Warranties of the Credit Agreement. The representations and
warranties as to such Grantor and its Subsidiaries made in Article V
(Representations and Warranties) of the Credit Agreement are true and correct on
each date as required by Section 4.02 of the Credit Agreement.
ARTICLE
IV
COVENANTS
Each
Grantor agrees with the Administrative Agent to the following, as long as any
Obligation or Commitment remains outstanding (other than contingent
indemnification Obligations to the extent no claim giving rise thereto has been
asserted):
Section
4.1 Maintenance of Perfected
Security Interest; Further Documentation and
Consents. (a) Generally. Such
Grantor shall (i) not use or permit any Collateral to be used unlawfully or
in violation of any provision of any Loan Document, any Requirement of Law or
any policy of insurance covering the Collateral and (ii) not enter into any
Contractual Obligation or undertaking restricting the right or ability of such
Grantor or the Administrative Agent to sell, assign, convey or transfer any
Collateral if such restriction would reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
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(b) Except
the extent that an item of Collateral is permitted not to be perfected pursuant
to this Article
IV, such Grantor shall maintain the security interest created by this
Agreement as a perfected security interest having at least the priority
described in Section 3.2 and
shall defend such security interest and such priority against the claims and
demands of all Persons.
(c) Such
Grantor shall furnish to the Administrative Agent from time to time statements
and schedules further identifying and describing the Collateral and such other
documents in connection with the Collateral as the Administrative Agent may
reasonably request, all in reasonable detail and in form and substance
satisfactory to the Administrative Agent.
(d) At any
time and from time to time, upon the written request of the Administrative
Agent, such Grantor shall, for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
(i) promptly and duly execute and deliver, and have recorded, such further
documents, including an authorization to file (or, as applicable, the filing) of
any financing statement or amendment under the UCC (or other filings under
similar Requirements of Law) in effect in any jurisdiction with respect to the
security interest created hereby and (ii) take such further action as the
Administrative Agent may reasonably request, including executing and delivering
any Control Agreements with respect to deposit accounts and securities accounts,
provided that no
Grantor shall be required to obtain a Control Agreement with respect to a
deposit account or securities account having a balance of less than $100,000, so
long as the aggregate amount of the balances of all such deposit accounts and
securities accounts that are not subject to a Control Agreement does not exceed
$500,000.
Section
4.2 Changes in Locations, Name,
Etc. (a) Except with prior notice to the
Administrative Agent and delivery to the Administrative Agent of all documents
reasonably requested by the Administrative Agent to maintain the validity,
perfection and priority of the security interests provided for herein, such
Grantor shall not do any of the following:
(i) change
its jurisdiction of organization from that referred to in Section 3.3;
or
(ii) change
its legal name or organizational identification number, if any, or corporation,
limited liability company, partnership or other organizational
structure.
(b) At the
time of delivery of each Compliance Certificate under Section 6.02(a) of the
Credit Agreement, shall furnish to the Administrative Agent an updated Schedule
2 to the Amendment Disclosure Letter, covering the information specified in
Section
3.3.
Section
4.3 Pledged Debt
Instruments (a) Delivery of Pledged Debt
Instruments. Such Grantor shall (i) deliver to the
Administrative Agent, in suitable form for transfer and in form and substance
satisfactory to the Administrative Agent, (A) all Pledged Debt Instruments
and (B) all certificates and instruments evidencing Pledged Investment
Property, in each case, having a value in excess of $100,000, so long as the
aggregate value of all such certificates and instruments not delivered to the
Administrative Agent shall not exceed $500,000, and (ii) during the
continuance of an Event of Default, maintain all other Pledged Investment
Property in a Controlled Securities Account. Notwithstanding the
foregoing, with the written consent of the Administrative Agent, such Grantor
may maintain possession of Pledged Debt Instruments and all certificates and
instruments evidencing Pledged Investment Property that is in the process of
liquidation or that is being processed for subsequent delivery to the
Administrative Agent.
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(b) Event of
Default. During the continuance of an Event of Default, the
Administrative Agent shall have the right, at any time in its discretion and
without notice to the Grantor, in connection with the exercise of remedies, to
(i) transfer to or to register in its name or in the name of its nominees
any Pledged Debt Instruments or any Pledged Investment Property and
(ii) exchange any certificate or instrument representing or evidencing any
Pledged Debt Instruments or any Pledged Investment Property for certificates or
instruments of smaller or larger denominations.
(c) Cash Distributions with
respect to Pledged Debt Instruments. Except as provided in
Article V and subject to the limitations set forth in the Credit Agreement, such
Grantor shall be entitled to receive all cash distributions paid in respect of
the Pledged Debt Instruments.
Section
4.4 Delivery of Instruments and
Tangible Chattel Paper and Control of Investment Property, Letter-of-Credit
Rights and Electronic Chattel Paper. (a) If any
amount in excess of $100,000 payable under or in connection with any Collateral
owned by such Grantor shall be or become evidenced by an instrument or tangible
chattel paper other than such instrument delivered in accordance with Section 4.3(a)
and in the possession of the Administrative Agent, such Grantor shall ▇▇▇▇ all
such instruments and tangible chattel paper with the following
legend: “This writing and the obligations evidenced or secured hereby
are subject to the security interest of Bank of America, N.A., as Administrative
Agent” and, at the request of the Administrative Agent, shall immediately
deliver such instrument or tangible chattel paper to the Administrative Agent,
duly indorsed in a manner satisfactory to the Administrative Agent.
(b) Except in
connection with any investment property over which the Administrative Agent’s
Lien is not required to be prior to all other Liens thereon pursuant to Section 3.2, such
Grantor shall not grant “control” (within the
meaning of such term under Article 9-106 of the UCC) over any investment
property to any Person other than the Administrative Agent.
(c) If such
Grantor is or becomes the beneficiary of a letter of credit that is (i) not
a supporting obligation of any Collateral and (ii) in excess of $100,000,
such Grantor shall promptly, and in any event within 2 Business Days after
becoming a beneficiary, notify the Administrative Agent thereof and enter into a
Contractual Obligation with the Administrative Agent, the issuer of such letter
of credit or any nominated person with respect to the letter-of-credit rights
under such letter of credit. Such Contractual Obligation shall assign
such letter-of-credit rights to the Administrative Agent and such assignment
shall be sufficient to grant control for the purposes of Section 9-107 of
the UCC (or any similar section under any equivalent UCC). The
provisions of the Contractual Obligation shall be in form and substance
reasonably satisfactory to the Administrative Agent.
(d) If any
amount in excess of $100,000 payable under or in connection with any Collateral
owned by such Grantor shall be or become evidenced by electronic chattel paper,
such Grantor shall take all steps necessary to grant the Administrative Agent
control of all such electronic chattel paper for the purposes of
Section 9-105 of the UCC (or any similar section under any equivalent UCC)
and all “transferable
records” as defined in each of the Uniform Electronic Transactions Act
and the Electronic Signatures in Global and National Commerce Act.
Section
4.5 Intellectual
Property. (a) At the time of delivery of each
Compliance Certificate under Section 6.02(a) of the Credit Agreement, such
Grantor shall notify the Administrative Agent of any change to Schedule 4 to the
Amendment Disclosure Letter for such Grantor, and provide to the
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Administrative
Agent the short-form intellectual property agreements and assignments as
described in this Section 4.5 and
other documents that the Administrative Agent reasonably requests with respect
thereto.
(b) Such
Grantor shall (and shall cause all its licensees to) (i) (1) continue to
use each Trademark included in the Material Intellectual Property in order to
maintain such Trademark in full force and effect with respect to each class of
goods for which such Trademark is currently used, free from any claim of
abandonment for non-use, (2) maintain at least the same standards of quality of
products and services offered under such Trademark as are currently maintained,
(3) use such Trademark with the appropriate notice of registration and all other
notices and legends required by applicable Requirements of Law, (4) not adopt or
use any other Trademark that is confusingly similar or a colorable imitation of
such Trademark unless the Administrative Agent shall obtain a perfected security
interest in such other Trademark pursuant to this Agreement and (ii) not do
any act or omit to do any act whereby (w) such Trademark (or any goodwill
associated therewith) may become destroyed, invalidated, impaired or harmed in
any way, (x) any Patent included in the Material Intellectual Property may
become forfeited, misused, unenforceable, abandoned or dedicated to the public,
(y) any portion of the Copyrights included in the Material Intellectual
Property may become invalidated, otherwise impaired or fall into the public
domain or (z) any Trade Secret that is Material Intellectual Property may become
publicly available or otherwise unprotectable; provided that any inadvertent
failure to comply with this Section 4.5(b) that
could not reasonably be expected to have a Material Adverse Effect shall not be
a breach hereof.
(c) Such
Grantor shall notify the Administrative Agent immediately if it knows, or has
reason to know, that any application or registration relating to any Material
Intellectual Property may become forfeited, misused, unenforceable, abandoned or
dedicated to the public, or of any adverse determination or development
regarding the validity or enforceability or such Grantor’s ownership of,
interest in, right to use, register, own or maintain any Material Intellectual
Property (including the institution of, or any such determination or development
in, any proceeding relating to the foregoing in any Applicable IP
Office). Such Grantor shall take all actions that are necessary or
reasonably requested by the Administrative Agent to maintain and pursue each
application (and to obtain the relevant registration or recordation) and to
maintain each registration and recordation included in the Material Intellectual
Property.
(d) In the
event that any Material Intellectual Property of such Grantor is or has been
infringed, misappropriated, violated, diluted or otherwise impaired by a third
party, such Grantor shall take such action as it reasonably deems appropriate
under the circumstances in response thereto.
(e) Such
Grantor shall execute and deliver to the Administrative Agent in form and
substance reasonably acceptable to the Administrative Agent and suitable for
filing in the Applicable IP Office the short-form intellectual property security
agreements in the form attached hereto as Annex 3 for all Copyrights,
Trademarks, Patents and IP Licenses of such Grantor.
Section
4.6 Notices. Such
Grantor shall promptly notify the Administrative Agent in writing of its
acquisition of any interest hereafter in property that is of a type where a
security interest or lien must be or may be registered, recorded or filed under,
or notice thereof given under, any federal statute or regulation.
Section
4.7 Notice of Commercial Tort
Claims. Such Grantor agrees that, if it shall acquire any
interest in any commercial tort claim (whether from another Person or because
such commercial tort claim shall have come into existence) in which the damages
being sought, when added to the damages being sought in all other commercial
torts claims of all Grantors, exceed $100,000, (i) such Grantor shall,
immediately upon such acquisition, deliver to the Administrative Agent, in each
case in form and
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substance
satisfactory to the Administrative Agent, a notice of the existence and nature
of such commercial tort claim and a supplement to Schedule 1 to the
Amendment Disclosure Letter containing a specific description of such commercial
tort claim, (ii) Section 2.1
shall apply to such commercial tort claim and (iii) such Grantor shall
execute and deliver to the Administrative Agent, in each case in form and
substance satisfactory to the Administrative Agent, any document, and take all
other action, deemed by the Administrative Agent to be reasonably necessary or
appropriate for the Administrative Agent to obtain, on behalf of the Lenders, a
perfected security interest having at least the priority set forth in Section 3.2 in
all such commercial tort claims. Any supplement to Schedule 1 to
the Amendment Disclosure Letter delivered pursuant to this Section 4.7
shall, after the receipt thereof by the Administrative Agent, become part of
Schedule 1 to the Amendment Disclosure Letter for all purposes hereunder
other than in respect of representations and warranties made prior to the date
of such receipt.
ARTICLE
V
REMEDIAL
PROVISIONS
Section
5.1 Code and Other
Remedies. (a) UCC
Remedies. During the continuance of an Event of Default, the
Administrative Agent may exercise, in addition to all other rights and remedies
granted to it in this Agreement and in any other instrument or agreement
securing, evidencing or relating to any Secured Obligation, all rights and
remedies of a secured party under the UCC or any other applicable
law.
(b) Disposition of
Collateral. Without limiting the generality of the foregoing,
the Administrative Agent may, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon any Grantor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), during the continuance of any Event of Default (personally or through
its agents or attorneys), (i) enter upon the premises where any Collateral
is located, without any obligation to pay rent, through self-help, without
judicial process, without first obtaining a final judgment or giving any Grantor
or any other Person notice or opportunity for a hearing on the Administrative
Agent’s claim or action, (ii) collect, receive, appropriate and realize
upon any Collateral and (iii) sell, assign, convey, transfer, grant option
or options to purchase and deliver any Collateral (enter into Contractual
Obligations to do any of the foregoing), in one or more parcels at public or
private sale or sales, at any exchange, broker’s board or office of any Secured
Party or elsewhere upon such terms and conditions as it may deem advisable and
at such prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Administrative Agent shall
have the right, upon any such public sale or sales and, to the extent permitted
by the UCC and other applicable Requirements of Law, upon any such private sale,
to purchase the whole or any part of the Collateral so sold, free of any right
or equity of redemption of any Grantor, which right or equity is hereby waived
and released.
(c) Management of the
Collateral. Each Grantor further agrees, that, during the
continuance of any Event of Default, (i) at the Administrative Agent’s
request, it shall assemble the Collateral and make it available to the
Administrative Agent at places that the Administrative Agent shall reasonably
select, whether at such Grantor’s premises or elsewhere, (ii) without
limiting the foregoing, the Administrative Agent also has the right to require
that each Grantor store and keep any Collateral pending further action by the
Administrative Agent and, while any such Collateral is so stored or kept,
provide such guards and maintenance services as shall be necessary to protect
the same and to preserve and maintain such Collateral in good condition,
(iii) until the Administrative Agent is able to sell, assign, convey or
transfer any Collateral, the Administrative Agent shall have the right to hold
or use such
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Collateral
to the extent that it deems appropriate for the purpose of preserving the
Collateral or its value or for any other purpose deemed appropriate by the
Administrative Agent and (iv) to the extent permitted by applicable law,
the Administrative Agent may, if it so elects, seek the appointment of a
receiver or keeper to take possession of any Collateral and to enforce any of
the Administrative Agent’s remedies (for the benefit of the Secured Parties),
with respect to such appointment without prior notice or hearing as to such
appointment. Except as required under the UCC, the Administrative
Agent shall not have any obligation to any Grantor to maintain or preserve the
rights of any Grantor as against third parties with respect to any Collateral
while such Collateral is in the possession of the Administrative
Agent.
(d) Application of
Proceeds. The Administrative Agent shall apply the cash
proceeds of any action taken by it pursuant to this Section 5.1,
after deducting all reasonable costs and expenses of every kind incurred in
connection therewith or incidental to the care or safekeeping of any Collateral
or in any way relating to the Collateral or the rights of the Administrative
Agent and any other Secured Party hereunder, including reasonable attorneys’
fees and disbursements, to the payment in whole or in part of the Secured
Obligations, as set forth in the Credit Agreement, and only after such
application and after the payment by the Administrative Agent of any other
amount required by any Requirement of Law, need the Administrative Agent account
for the surplus, if any, to any Grantor.
(e) Direct
Obligation. Neither the Administrative Agent nor any other
Secured Party shall be required to make any demand upon, or pursue or exhaust
any right or remedy against, any Grantor, any other Loan Party or any other
Person with respect to the payment of the Obligations or to pursue or exhaust
any right or remedy with respect to any Collateral therefor or any direct or
indirect guaranty thereof. All of the rights and remedies of the
Administrative Agent and any other Secured Party under any Loan Document shall
be cumulative, may be exercised individually or concurrently and not exclusive
of any other rights or remedies provided by any Requirement of
Law. To the extent it may lawfully do so, each Grantor absolutely and
irrevocably waives and relinquishes the benefit and advantage of, and covenants
not to assert against the Administrative Agent or any Lender, any valuation,
stay, appraisement, extension, redemption or similar laws and any and all rights
or defenses it may have as a surety, now or hereafter existing, arising out of
the exercise by them of any rights hereunder. If any notice of a
proposed sale or other disposition of any Collateral shall be required by law,
such notice shall be deemed reasonable and proper if given at least 10 days
before such sale or other disposition.
(f) Commercially
Reasonable. To the extent that applicable Requirements of Law
impose duties on the Administrative Agent to exercise remedies in a commercially
reasonable manner, each Grantor acknowledges and agrees that it is not
commercially unreasonable for the Administrative Agent to do any of the
following:
(i) fail to
incur significant costs, expenses or other Liabilities reasonably deemed as such
by the Administrative Agent to prepare any Collateral for disposition or
otherwise to complete raw material or work in process into finished goods or
other finished products for disposition;
(ii) fail to
obtain Permits, or other consents, for access to any Collateral to sell or for
the collection or sale of any Collateral, or, if not required by other
Requirements of Law, fail to obtain Permits or other consents for the collection
or disposition of any Collateral;
(iii) fail to
exercise remedies against account debtors or other Persons obligated on any
Collateral or to remove Liens on any Collateral or to remove any adverse claims
against any Collateral;
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(iv) advertise
dispositions of any Collateral through publications or media of general
circulation, whether or not such Collateral is of a specialized nature, or to
contact other Persons, whether or not in the same business as any Grantor, for
expressions of interest in acquiring any such Collateral;
(v) exercise
collection remedies against account debtors and other Persons obligated on any
Collateral, directly or through the use of collection agencies or other
collection specialists, hire one or more professional auctioneers to assist in
the disposition of any Collateral, whether or not such Collateral is of a
specialized nature, or, to the extent deemed appropriate by the Administrative
Agent, obtain the services of other brokers, investment bankers, consultants and
other professionals to assist the Administrative Agent in the collection or
disposition of any Collateral, or utilize Internet sites that provide for the
auction of assets of the types included in the Collateral or that have the
reasonable capacity of doing so, or that match buyers and sellers of assets to
dispose of any Collateral;
(vi) dispose
of assets in wholesale rather than retail markets;
(vii) disclaim
disposition warranties, such as title, possession or quiet enjoyment;
or
(viii) purchase
insurance or credit enhancements to insure the Administrative Agent against
risks of loss, collection or disposition of any Collateral or to provide to the
Administrative Agent a guaranteed return from the collection or disposition of
any Collateral.
Each
Grantor acknowledges that the purpose of this Section 5.1 is
to provide a non-exhaustive list of actions or omissions that are commercially
reasonable when exercising remedies against any Collateral and that other
actions or omissions by the Secured Parties shall not be deemed commercially
unreasonable solely on account of not being indicated in this Section 5.1. Without
limitation upon the foregoing, nothing contained in this Section 5.1
shall be construed to grant any rights to any Grantor or to impose any duties on
the Administrative Agent that would not have been granted or imposed by this
Agreement or by applicable Requirements of Law in the absence of this Section 5.1.
(g) IP
Licenses. For the purpose of enabling the Administrative Agent
to exercise rights and remedies under this Section 5.1
(including in order to take possession of, collect, receive, assemble, process,
appropriate, remove, realize upon, sell, assign, convey, transfer or grant
options to purchase any Collateral) at such time as the Administrative Agent
shall be lawfully entitled to exercise such rights and remedies, each Grantor
hereby grants to the Administrative Agent, for the benefit of the Secured
Parties, (i) an irrevocable, nonexclusive, worldwide license (exercisable
without payment of royalty or other compensation to such Grantor), including in
such license the right to sublicense, use and practice any Intellectual Property
now owned or hereafter acquired by such Grantor and access to all media in which
any of the licensed items may be recorded or stored and to all Software and
programs used for the compilation or printout thereof and (ii) an
irrevocable license (without payment of rent or other compensation to such
Grantor) to use, operate and occupy all real Property owned, operated, leased,
subleased or otherwise occupied by such Grantor.
Section
5.2 Accounts and Payments in
Respect of General Intangibles. (a) If required by
the Administrative Agent at any time during the continuance of an Event of
Default, any payment of accounts or payment in respect of general intangibles,
when collected by any Grantor, shall be promptly (and, in any event, within 2
Business Days) deposited by such Grantor in the exact form received, duly
indorsed
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by such
Grantor to the Administrative Agent, in a Cash Collateral Account, subject to
withdrawal by the Administrative Agent as provided in Section 5.4. Until
so turned over, such payment shall be held by such Grantor in trust for the
Administrative Agent, segregated from other funds of such
Grantor. Each such deposit of proceeds of accounts and payments in
respect of general intangibles shall be accompanied by a report identifying in
reasonable detail the nature and source of the payments included in the
deposit.
(b) At any
time during the continuance of an Event of Default:
(i) each
Grantor shall, upon the Administrative Agent’s request, deliver to the
Administrative Agent all original and other documents evidencing, and relating
to, the Contractual Obligations and transactions that gave rise to any account
or any payment in respect of general intangibles, including all original orders,
invoices and shipping receipts and notify account debtors that the accounts or
general intangibles have been collaterally assigned to the Administrative Agent
and that payments in respect thereof shall be made directly to the
Administrative Agent;
(ii) the
Administrative Agent may, without notice, at any time during the continuance of
an Event of Default, limit or terminate the authority of a Grantor to collect
its accounts or amounts due under general intangibles or any thereof and, in its
own name or in the name of others, communicate with account debtors to verify
with them to the Administrative Agent’s satisfaction the existence, amount and
terms of any account or amounts due under any general intangible. In
addition, the Administrative Agent may at any time enforce such Grantor’s rights
against such account debtors and obligors of general intangibles;
and
(iii) each
Grantor shall take all actions, deliver all documents and provide all
information necessary or reasonably requested by the Administrative Agent to
ensure any Internet Domain Name is registered.
(c) Anything
herein to the contrary notwithstanding, each Grantor shall remain liable under
each account and each payment in respect of general intangibles to observe and
perform all the conditions and obligations to be observed and performed by it
thereunder, all in accordance with the terms of any agreement giving rise
thereto. No Secured Party shall have any obligation or liability
under any agreement giving rise to an account or a payment in respect of a
general intangible by reason of or arising out of any Loan Document or the
receipt by any Secured Party of any payment relating thereto, nor shall any
Secured Party be obligated in any manner to perform any obligation of any
Grantor under or pursuant to any agreement giving rise to an account or a
payment in respect of a general intangible, to make any payment, to make any
inquiry as to the nature or the sufficiency of any payment received by it or as
to the sufficiency of any performance by any party thereunder, to present or
file any claim, to take any action to enforce any performance or to collect the
payment of any amounts that may have been assigned to it or to which it may be
entitled at any time or times.
Section
5.3 Pledged Debt
Instruments. (a) During the continuance of an Event of
Default, upon notice by the Administrative Agent to the relevant Grantor or
Grantors, the Administrative Agent or its nominee may exercise (A) any voting,
consent, or other right pertaining to the Pledged Debt Instruments at any
meeting of investor, creditors or lenders, as the case may be, of the relevant
issuer or issuers of Pledged Debt Instruments or otherwise and (B) any right of
conversion, exchange and subscription and any other right, privilege or option
pertaining to the Pledged Debt Instruments as if it were the absolute owner
thereof (including the right to deposit and deliver any Pledged Debt Instruments
with any committee, depositary, transfer agent, registrar or other designated
agency upon such terms and conditions as the Administrative Agent may
determine), all without liability except to account for
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property
actually received by it; provided, however, that the
Administrative Agent shall have no duty to any Grantor to exercise any such
right, privilege or option and shall not be responsible for any failure to do so
or delay in so doing.
(b) Authorization of
Issuers. Each Grantor hereby expressly irrevocably authorizes
and instructs, without any further instructions from such Grantor, each issuer
of any Pledged Debt Instrument pledged hereunder by such Grantor to
(i) comply with any instruction received by it from the Administrative
Agent in writing that states that an Event of Default is continuing and is
otherwise in accordance with the terms of this Agreement and each Grantor agrees
that such issuer shall be fully protected from Liabilities to such Grantor in so
complying and (ii) unless otherwise expressly permitted hereby or the
Credit Agreement, pay any distribution or make any other payment with respect to
the Pledged Debt Instrument directly to the Administrative Agent.
Section
5.4 Proceeds to be Turned over
to and Held by Administrative Agent. At any time during the
continuance of an Event of Default, all proceeds of any Collateral received by
any Grantor hereunder in cash or Cash Equivalents shall be held by such Grantor
in trust for the Administrative Agent and the other Secured Parties, segregated
from other funds of such Grantor, and shall, promptly upon receipt by any
Grantor, be turned over to the Administrative Agent in the exact form received
(with any necessary endorsement). All such proceeds of Collateral and
any other proceeds of any Collateral received by the Administrative Agent in
cash or Cash Equivalents shall be held by the Administrative Agent in a Cash
Collateral Account or a Controlled Securities Account until applied as provided
in the Credit Agreement.
Section
5.5 Sale of Pledged Debt
Instruments. (a) Each Grantor recognizes that the
Administrative Agent may be unable to effect a public sale of any Pledged Debt
Instruments by reason of certain prohibitions contained in the Securities Laws
and applicable state or foreign securities laws or otherwise or may determine
that a public sale is impracticable, not desirable or not commercially
reasonable and, accordingly, may resort to one or more private sales thereof to
a restricted group of purchasers that shall be obliged to agree, among other
things, to acquire such securities for their own account for investment and not
with a view to the distribution or resale thereof. Each Grantor
acknowledges and agrees that any such private sale may result in prices and
other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The
Administrative Agent shall be under no obligation to delay a sale of any Pledged
Debt Instruments for the period of time necessary to permit the issuer thereof
to register such securities for public sale under the Securities Laws or under
applicable state securities laws even if such issuer would agree to do
so.
(b) Each
Grantor agrees to use its best efforts to do or cause to be done all such other
acts as may be necessary to make such sale or sales of any portion of the
Pledged Investment Property pursuant to Section 5.1 and
this Section 5.5
valid and binding and in compliance with all applicable Requirements of
Law. Each Grantor further agrees that a breach of any covenant
contained herein will cause irreparable injury to the Administrative Agent and
other Secured Parties, that the Administrative Agent and the other Secured
Parties have no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained herein shall be specifically
enforceable against such Grantor, and such Grantor hereby waives and agrees not
to assert any defense against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred under the
Credit Agreement. Each Grantor waives any and all rights of
contribution or subrogation upon the sale or disposition of all or any portion
of the Collateral by Administrative Agent.
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Section
5.6 Deficiency. Each
Grantor shall remain liable for any deficiency if the proceeds of any sale or
other disposition of any Collateral are insufficient to pay the Secured
Obligations and the fees and disbursements of any attorney employed by the
Administrative Agent or any other Secured Party to collect such
deficiency.
ARTICLE
VI
THE
ADMINISTRATIVE AGENT
Section
6.1 Administrative Agent’s
Appointment as Attorney-in-Fact. (a) Each Grantor
hereby irrevocably constitutes and appoints the Administrative Agent and any
Related Party 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,
exercisable only while an Event of Default is continuing, for the purpose of
carrying out the terms of the Loan Documents, to take any appropriate action and
to execute any document or instrument that may be necessary or desirable to
accomplish the purposes of the Loan Documents, and, without limiting the
generality of the foregoing, each Grantor hereby gives the Administrative Agent
and its Related Parties the power and right, on behalf of such Grantor, without
notice to or assent by such Grantor, to the extent permitted by applicable law,
to do any of the following when an Event of Default shall be
continuing:
(i) in the
name of such Grantor, in its own name or otherwise, take possession of and
indorse and collect any check, draft, note, acceptance or other instrument for
the payment of moneys due under any account or general intangible 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 such moneys due under any
account or general intangible or with respect to any other Collateral whenever
payable;
(ii) in the
case of any Intellectual Property owned by or licensed to the Grantors, execute,
deliver and have recorded any document that the Administrative Agent may request
to evidence, effect, publicize or record the Administrative Agent’s 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 any
Collateral, effect any repair or pay any insurance called for by the terms of
the Credit Agreement (including all or any part of the premiums therefor and the
costs thereof);
(iv) execute,
in connection with any sale provided for in Section 5.1 or
Section 5.5, any
document to effect or otherwise necessary or appropriate in relation to evidence
the sale of any Collateral; or
(v) (A)
direct any party liable for any payment under any Collateral to make payment of
any moneys due or to become due thereunder directly to the Administrative Agent
or as the Administrative Agent shall direct, (B) ask or demand for, and collect
and receive payment of and receipt for, any moneys, claims and other amounts due
or to become due at any time in respect of or arising out of any Collateral, (C)
sign and indorse any invoice, freight or express
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▇▇▇▇,
▇▇▇▇ of lading, storage or warehouse receipt, draft against debtors, assignment,
verification, notice and other document in connection with any Collateral, (D)
commence and prosecute any suit, action or proceeding at law or in equity in any
court of competent jurisdiction to collect any Collateral and to enforce any
other right in respect of any Collateral, (E) defend any actions, suits,
proceedings, audits, claims, demands, orders or disputes brought against such
Grantor with respect to any Collateral, (F) settle, compromise or adjust
any such actions, suits, proceedings, audits, claims, demands, orders or
disputes and, in connection therewith, give such discharges or releases as the
Administrative Agent may deem appropriate, (G) assign any Intellectual Property
owned by the Grantors or any IP Licenses of the Grantors throughout the world on
such terms and conditions and in such manner as the Administrative Agent shall
in its sole discretion determine, including the execution and filing of any
document necessary to effectuate or record such assignment and (H) generally,
sell, assign, convey, transfer or ▇▇▇▇▇ ▇ ▇▇▇▇ on, make any Contractual
Obligation with respect to and otherwise deal with, any 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, at any time or
from time to time, all acts and things that the Administrative Agent deems
necessary to protect, preserve or realize upon any Collateral and the Secured
Parties’ security interests therein and to effect the intent of the Loan
Documents, all as fully and effectively as such Grantor might do.
(vi) If any
Grantor fails to perform or comply with any Contractual Obligation 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 Contractual Obligation.
(b) The
expenses of the Administrative Agent incurred in connection with actions
undertaken as provided in this Section 6.1,
together with interest thereon at the Default Rate, 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.
(c) Each
Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be
done by virtue of this Section 6.1. 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.
Section
6.2 Authorization to File
Financing Statements. Each Grantor authorizes the
Administrative Agent and its Related Parties, at any time and from time to time,
to file or record financing statements, amendments thereto, and other filing or
recording documents or instruments with respect to any Collateral in such form
and in such offices as the Administrative Agent reasonably determines
appropriate to perfect 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. Such Grantor also hereby ratifies its authorization for
the Administrative Agent to have filed any initial financing statement or
amendment thereto under the UCC (or other similar laws) in effect in any
jurisdiction if filed prior to the date hereof.
Section
6.3 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
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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 Administrative 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
6.4 Duty; Obligations and
Liabilities. (a) 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 shall be to deal with it in the same manner as the Administrative
Agent deals with similar property for its own account. The powers
conferred on the Administrative Agent hereunder are solely to protect the
Administrative Agent’s interest in the Collateral and shall not impose any duty
upon the Administrative Agent to exercise any such powers. The
Administrative Agent shall be accountable only for amounts that it receives as a
result of the exercise of such powers, and neither it nor any of its Related
Parties shall be responsible to any Grantor for any act or failure to act
hereunder, except for their own gross negligence or willful misconduct as
finally determined by a court of competent jurisdiction. In addition,
the Administrative Agent shall not be liable or responsible for any loss or
damage to any Collateral, or for any diminution in the value thereof, by reason
of the act or omission of any warehousemen, carrier, forwarding agency,
consignee or other bailee if such Person has been selected by the Administrative
Agent in good faith.
(b) Obligations and Liabilities
with respect to Collateral. No Secured Party and no Related
Party thereof shall be liable for failure to demand, collect or realize upon any
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 any
Collateral. The powers conferred on the Administrative Agent
hereunder shall not impose any duty upon any other Secured Party to exercise any
such powers. The other 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 respective officers, directors, employees or
Agents shall be responsible to any Grantor for any act or failure to act
hereunder, except for their own gross negligence or willful misconduct as
finally determined by a court of competent jurisdiction.
Section
6.5 Reinstatement. Each
Grantor agrees that, if any payment made by any Credit Party or other Person and
applied to the Secured Obligations is at any time annulled, avoided, set aside,
rescinded, invalidated, declared to be fraudulent or preferential or otherwise
required to be refunded or repaid, or the proceeds of any Collateral are
required to be returned by any Secured Party to such Credit Party, its estate,
trustee, receiver or any other party, including any Grantor, under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or repayment, any Lien or other Collateral securing
such liability shall be and remain in full force and effect, as fully as if such
payment had never been made. If, prior to any of the foregoing,
(a) any Lien or other Collateral securing such Grantor’s liability
hereunder shall have been released or terminated by virtue of the foregoing or
(b) any provision of the Guaranty hereunder shall have been terminated,
cancelled or surrendered, such Lien, other Collateral or provision shall be
reinstated in full force and effect and such prior release, termination,
cancellation or surrender shall not diminish, release, discharge, impair or
otherwise affect the obligations of any such Grantor in respect of any Lien or
other Collateral securing such obligation or the amount of such
payment.
Section
6.6 Release of
Collateral. Upon (A) termination of the Commitments, (B)
payment and satisfaction in full of all Loans, all L/C Borrowings and all other
Obligations under the Loan Documents, that the Administrative Agent has
theretofore been notified in writing by the holder of such Obligation are then
due and payable, and (C) deposit of cash collateral with respect to all
contingent
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Obligations
(or, in the case of any L/C Obligation, receipt by the Administrative Agent of a
back-up letter of credit) in amounts and on terms and conditions and with
parties satisfactory to the Administrative Agent and each Lender that is, or may
be, owed such Obligations, the Collateral shall be released from the Lien
created hereby and this Agreement and all obligations (other than those
expressly stated to survive such termination) of the Administrative Agent and
each Grantor hereunder shall terminate, all without delivery of any instrument
or performance of any act by any party, and all rights to the Collateral shall
revert to the Grantors. In addition, upon the occurrence of a
Disposition permitted under the Credit Agreement, any Collateral included in
such Disposition shall be released from the Lien created hereby. Each
Grantor is hereby authorized to file UCC amendments at such time evidencing the
termination of the Liens so released. At the request of any Grantor
following any such termination, the Administrative Agent shall deliver to such
Grantor any Collateral of such Grantor held by the Administrative Agent
hereunder and execute and deliver to such Grantor such documents as such Grantor
shall reasonably request to evidence such termination.
Section
6.7 Independent
Obligations. The obligations of each Grantor hereunder are
independent of and separate from the Secured Obligations and any
Guarantee. If any Secured Obligation or Guarantee is not paid when
due, or upon any Event of Default, the Administrative Agent may, at its sole
election, proceed directly and at once, without notice, against any Grantor and
any Collateral to collect and recover the full amount of any Secured Obligation
or Guarantee then due, without first proceeding against any other Grantor, any
other Loan Party or any other Collateral and without first joining any other
Grantor or any other Loan Party in any proceeding.
Section
6.8 No Waiver by Course of
Conduct. No Secured Party shall by any act (except by a
written instrument pursuant to Section 6.9),
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 that such Secured Party
would otherwise have on any future occasion.
Section
6.9 Amendments, Waivers in
Writing. None of the terms or provisions of this Agreement may
be waived, amended, supplemented or otherwise modified except in accordance with
Section 10.01 of the Credit Agreement; provided, however, that annexes
to this Agreement may be supplemented (but no existing provisions may be
modified and no Collateral may be released) through Pledge Amendments and
Joinder Agreements, in substantially the form of Annex 1 and Annex 2,
respectively, in each case duly executed by the Administrative Agent and each
Grantor directly affected thereby.
Section
6.10 Additional Grantors;
Additional Pledged Investment Property. (a) Joinder Agreements. If,
at the option of the Borrower or as required pursuant to Section 6.12 of
the Credit Agreement, the Borrower shall cause any Subsidiary that is not a
Grantor to become a Grantor hereunder, such Subsidiary shall execute and deliver
to the Administrative Agent a Joinder Agreement substantially in the form of
Annex 2 and shall thereafter for all purposes be a party hereto and have the
same rights, benefits and obligations as a Grantor party hereto on the Closing
Date.
(b) Pledge
Amendments. To the extent any Pledged Debt Instrument has not
been delivered as of the Closing Date, such Grantor shall deliver a pledge
amendment duly executed by the Grantor in
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substantially
the form of Annex 1 (each, a “Pledge
Amendment”). Such Grantor authorizes the Administrative Agent
to attach each Pledge Amendment to this Agreement.
Section
6.11 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 10.02 of
the Credit Agreement; provided, however, that any
such notice, request or demand to or upon any Grantor shall be addressed to the
Borrower’s notice address set forth in such Section 10.02.
Section
6.12 Successors and
Assigns. This Agreement shall be binding upon the successors
and assigns of each Grantor and shall inure to the benefit of each Secured Party
and their successors and assigns; provided, however, 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.
Section
6.13 Counterparts. This
Agreement may be executed in any number of counterparts and by different parties
in separate counterparts, 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. Signature pages may be detached from multiple separate
counterparts and attached to a single counterpart. Delivery of an
executed signature page of this Agreement by facsimile transmission shall be as
effective as delivery of a manually executed counterpart hereof.
Section
6.14 Severability. Any
provision of this Agreement being held illegal, invalid or unenforceable in any
jurisdiction shall not affect any part of such provision not held illegal,
invalid or unenforceable, any other provision of this Agreement or any part of
such provision in any other jurisdiction.
Section
6.15 Governing Law Jurisdiction,
Etc.
(a) GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO
JURISDICTION. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED
STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN
ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT,
ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE
BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
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(c) WAIVER OF
VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED
TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF
PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02 OF THE
CREDIT AGREEMENT. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF
ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.
[SIGNATURE
PAGES FOLLOW]
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IN
WITNESS WHEREOF, each of the undersigned has caused this Security Agreement to
be duly executed and delivered as of the date first above written.
THE
McCLATCHY COMPANY
as
Grantor
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By:
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Name:
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Title:
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McClatchy
Newspapers, Inc.
By:
Its:
East
Coast Newspapers, Inc.
By:
Its:
The News
and Observer Publishing Company
By:
Its:
Tacoma
News, Inc.
By:
Its:
San ▇▇▇▇
Obispo Tribune, LLC
By: The
McClatchy Company,
its Sole Member
By:
Its:
McClatchy
Management Services, Inc.
By:
Its:
Miami
Herald Media Company
By:
Its:
Macon
Telegraph Publishing Company
By:
Its:
Columbus
Ledger-Enquirer, Inc.
By:
Its:
Gulf
Publishing Company, Inc.
By:
Its:
The
Bradenton Herald, Inc.
By:
Its:
The Sun
Publishing Company, Inc.
By:
Its:
Nittany
Printing and Publishing Company
By:
Its:
The State
Media Company
By:
Its:
The
Charlotte Observer Publishing Company
By:
Its:
Wichita
Eagle and Beacon Publishing Company, Inc.
By:
Its:
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Pacific
Northwest Publishing Company, Inc.
By:
Its:
Lexington
H-L Services, Inc.
By:
Its:
Cypress
Media, Inc.
By:
Its:
Cypress
Media, LLC
By: Cypress
Media, Inc.,
its Sole Member
By:
Its:
Quad
County Publishing, Inc.
By:
Its:
Star-Telegram
Inc.
By:
Its:
McClatchy
U.S.A., Inc.
By:
Its:
Anchorage
Daily News, Inc.
By:
Its:
Aboard
Publishing, Inc.
By:
Its:
Keynoter
Publishing Company, Inc.
By:
Its:
Biscayne
Bay Publishing Inc.
By:
Its:
Keltatim
Publishing Company, Inc.
By:
Its:
HLB
Newspapers, Inc.
By:
Its:
▇▇▇’▇
Summit Journal, Incorporated
By:
Its:
▇▇▇▇▇▇
Publishing Company, Inc.
By:
Its:
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Cass
County Publishing Company
By:
Its:
Newsprint
Ventures, Inc.
By:
Its:
▇▇▇▇▇▇▇
Paper Company
By:
Its:
McClatchy
Interactive West
By:
Its:
Bellingham
Herald Publishing, LLC.
By: Pacific
Northwest Publishing, Inc.,
its Sole
Member
By:
Its:
Idaho
Statesman Publishing, LLC
By: Pacific
Northwest Publishing, Inc.,
its Sole
Member
By:
Its:
Olympian
Publishing, LLC
By: Pacific
Northwest Publishing, Inc.,
its Sole
Member
By:
Its:
McClatchy
Interactive, LLC
By:
Its:
Nor-Tex
Publishing, Inc.
By:
Its:
Mail
Advertising Corporation
By:
Its:
Olympic-Cascade
Publishing, Inc.
By:
Its:
McClatchy
Investment Company
By:
Its:
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ACCEPTED
AND AGREED
as of the
date first above written:
BANK OF
AMERICA, N.A.,
as
Administrative Agent
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By:
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Name:
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Title:
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ANNEX
1
TO
SECURITY
AGREEMENT
FORM OF
PLEDGE AMENDMENT
This
Pledge Amendment, dated as of _________, 20__, is delivered pursuant to
Section 6.9 of the Security Agreement, dated as of September [_ _], 2008,
by The McClatchy Company, each of the other parties named therein as a Grantor
or which subsequently becomes a Grantor thereunder, in favor of Bank of America,
N.A., as Administrative Agent (the “Security
Agreement”). Capitalized terms used herein without definition
are used as defined in the Security Agreement.
The
undersigned hereby agrees that this Pledge Amendment may be attached to the
Security Agreement and that the Pledged Debt Instruments listed on Annex 1-A to
this Pledge Amendment shall be and become part of the Collateral referred to in
the Security Agreement and shall secure all Obligations of the
undersigned.
The
undersigned hereby represents and warrants that each of the representations and
warranties contained in Sections 3.1, 3.2, 3.5 and 3.9 of the Security Agreement
is true and correct and as of the date hereof as if made on and as of such
date.
[GRANTOR]
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By:
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Name:
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Title:
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A1-1
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Annex
1-A
PLEDGED DEBT
INSTRUMENTS
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Issuer
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Description
of Debt
|
Certificate
No(s).
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Final
Maturity
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Principal
Amount
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ACKNOWLEDGED
AND AGREED
as of the
date first above written:
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BANK
OF AMERICA, N.A
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as
Administrative Agent
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By:
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Name:
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Title:
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A1-3
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ANNEX
2
TO
SECURITY
AGREEMENT
FORM OF
JOINDER AGREEMENT
This
JOINDER AGREEMENT, dated as of _________, 20__, is delivered pursuant
Section 6.9 of the Security Agreement, dated as of September [_ _], 2008,
by The McClatchy Company, each of the other parties named therein as a Grantor
or which subsequently becomes a Grantor thereunder, in favor of Bank of America,
N.A., as Administrative Agent (the “Security
Agreement”). Capitalized terms used herein without definition
are used as defined in the Security Agreement.
By
executing and delivering this Joinder Agreement, the undersigned, as provided in
Section 7.6 of the Security Agreement, hereby becomes a party to the
Security Agreement as a Grantor thereunder with the same force and effect as if
originally named as a Grantor therein and, without limiting the generality of
the foregoing, as collateral security for the prompt and complete payment and
performance when due (whether at stated maturity, by acceleration or otherwise)
of the Secured Obligations of the undersigned, hereby mortgages, pledges and
hypothecates to the Administrative Agent for the benefit of the Secured Parties,
and grants to the Administrative Agent for the benefit of the Secured Parties a
lien on and security interest in, all of its right, title and interest in, to
and under the Collateral of the undersigned and expressly assumes all
obligations and liabilities of a Grantor thereunder. The undersigned
hereby agrees to be bound as a Grantor for the purposes of the Security
Agreement.
The
information set forth in Annex 1-A is hereby
added to the information set forth in Schedules 1
through 5 to
the Amendment Disclosure Letter. By acknowledging and agreeing to
this Joinder Agreement, the undersigned hereby agree that this Joinder Agreement
may be attached to the Security Agreement and that the Pledged Debt Instruments
listed on Annex
1-A to this Joinder Amendment shall be and become part of the Collateral
referred to in the Security Agreement and shall secure all Secured Obligations
of the undersigned.
The
undersigned hereby represents and warrants that each of the representations and
warranties contained in Article III of the
Security Agreement applicable to it is true and correct on and as the date
hereof as if made on and as of such date.
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IN
WITNESS WHEREOF, THE UNDERSIGNED HAS CAUSED THIS JOINDER AGREEMENT TO BE DULY
EXECUTED AND DELIVERED AS OF THE DATE FIRST ABOVE WRITTEN.
[Additional
Grantor]
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By:
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Name:
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Title:
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ACKNOWLEDGED
AND AGREED
as of the
date first above written:
[EACH
GRANTOR PLEDGING
ADDITIONAL
COLLATERAL]
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By:
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Name:
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Title:
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BANK
OF AMERICA, N.A
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as
Administrative Agent
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By:
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Name:
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Title:
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ANNEX
3
TO
SECURITY
AGREEMENT
FORM OF
INTELLECTUAL PROPERTY SECURITY AGREEMENT1
THIS
[COPYRIGHT] [PATENT] [TRADEMARK] SECURITY AGREEMENT, dated as of ________, 20__,
is made by each of the entities listed on the signature pages hereof (each a
“Grantor” and,
collectively, the “Grantors”), in favor
of Bank of America, N.A. (“BofA”), as
Administrative Agent (in such capacity, together with its successors and
permitted assigns, the “Administrative
Agent”) for the Lenders and Swing Line Lender and as L/C Issuer (as
defined in the Credit Agreement referred to below) and the other Secured
Parties.
W I T N E
S S E T H:
WHEREAS,
pursuant to the Credit Agreement dated as of June 27, 2006 as amended by
Amendment No. 1 to Credit Agreement, dated as of March 28, 2007,
Amendment No. 2 to Credit Agreement, dated as of July 19, 2007,
Amendment No. 3 to Credit Agreement, dated as of March 28, 2008 and
Amendment No. 4 to Credit Agreement, dated as of the date hereof (“Amendment
No. 4”) (as the same may be modified from time to time, the “Credit Agreement”)
among the Borrower, the Lenders from time to time party thereto, and BofA, as
Administrative Agent for the Lenders and as Swing Line Lender and L/C Issuer,
the Lenders, the Swing Line Lender and the L/C Issuer have severally agreed to
make extensions of credit to the Borrower upon the terms and subject to the
conditions set forth therein;
WHEREAS,
each Grantor has agreed, pursuant to a Security Agreement of even date herewith
in favor of the Administrative Agent (the “Security Agreement”),
to guarantee the Obligations (as defined in the Credit Agreement) of the
Borrower; and
WHEREAS,
all of the Grantors are party to the Security Agreement pursuant to which the
Grantors are required to execute and deliver this [Copyright] [Patent]
[Trademark] Security Agreement;
NOW,
THEREFORE, in consideration of the premises and to induce the Lenders, as Swing
Line Lender and L/C Issuer and the Administrative Agent to enter into the Credit
Agreement and to induce the Lenders and as Swing Line Lender and L/C Issuer to
make their respective extensions of credit to the Borrower thereunder, each
Grantor hereby agrees with the Administrative Agent as follows:
Section
1. Defined
Terms. Capitalized terms used herein without definition are
used as defined in the Guaranty and Security Agreement.
Section
2. Grant of Security Interest
in [Copyright] [Trademark] [Patent] Collateral. Each Grantor,
as collateral security for the prompt and complete payment and performance when
due (whether at stated maturity, by acceleration or otherwise) of the Secured
Obligations of such Grantor, hereby mortgages, pledges and hypothecates to the
Administrative Agent for the benefit of the Secured Parties, and grants to the
Administrative Agent for the benefit of the Secured Parties a Lien on and
security interest in, all of its right, title and interest in, to and under
the following Collateral of such Grantor (the “[Copyright] [Patent]
[Trademark] Collateral”):
(a) [all of
its Copyrights and all IP Licenses providing for the grant by or to such Grantor
of any right under any Copyright, including, without limitation, those referred
to on Schedule 1
hereto;
(b) all
renewals, reversions and extensions of the foregoing; and
(c) all
income, royalties, proceeds and Liabilities at any time due or payable or
asserted under and with respect to any of the foregoing, including, without
limitation, all rights to ▇▇▇ and recover at law or in equity for any past,
present and future infringement, misappropriation, dilution, violation or other
impairment thereof.]
or
(a) [all
of its Patents and all IP Licenses providing for the grant by or to such Grantor
of any right under any Patent, including, without limitation, those referred to
on Schedule 1
hereto;
(b) all
reissues, reexaminations, continuations, continuations-in-part, divisionals,
renewals and extensions of the foregoing; and
(c) all
income, royalties, proceeds and Liabilities at any time due or payable or
asserted under and with respect to any of the foregoing, including, without
limitation, all rights to ▇▇▇ and recover at law or in equity for any past,
present and future infringement, misappropriation, dilution, violation or other
impairment thereof.]
or
(a) [all
of its Trademarks and all IP Licenses providing for the grant by or to such
Grantor of any right under any Trademark, including, without limitation, those
referred to on Schedule 1
hereto;
(b) all
renewals and extensions of the foregoing;
(c) all
goodwill of the business connected with the use of, and symbolized by, each such
Trademark; and
(d) all
income, royalties, proceeds and Liabilities at any time due or payable or
asserted under and with respect to any of the foregoing, including, without
limitation, all rights to ▇▇▇ and recover at law or in equity for any past,
present and future infringement, misappropriation, dilution, violation or other
impairment thereof.]
Section
3. Security
Agreement. The security interest granted pursuant to this
[Copyright] [Patent] [Trademark] Security Agreement is granted in conjunction
with the security interest granted to the Administrative Agent pursuant to the
Security Agreement and each Grantor hereby acknowledges and agrees that the
rights and remedies of the Administrative Agent with respect to the security
interest in the [Copyright] [Patent] [Trademark] Collateral made and granted
hereby are more fully set forth in the Security Agreement, the terms and
provisions of which are incorporated by reference herein as if fully set forth
herein.
Section
4. Grantor Remains
Liable. Each Grantor hereby agrees that, anything herein to
the contrary notwithstanding, such Grantor shall assume full and complete
responsibility for the prosecution, defense, enforcement or any other necessary
or desirable actions in connection with their [Copyrights] [Patents]
[Trademarks] and IP Licenses subject to a security interest
hereunder.
Section
5. Counterparts. This
[Copyright] [Patent] [Trademark] Security Agreement may be executed in any
number of counterparts and by different parties in separate counterparts, 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. Signature
pages may be detached from multiple separate counterparts and attached to a
single counterpart.
Section
6. Governing
Law. This [Copyright] [Patent] [Trademark] Security Agreement
and the rights and obligations of the parties hereto shall be governed by, and
construed and interpreted in accordance with, the law of the State of New
York.
[SIGNATURE
PAGES FOLLOW]
1 Separate
agreements should be executed relating to each Grantor’s respective Copyrights,
Patents, and Trademarks.
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IN
WITNESS WHEREOF, each Grantor has caused this [Copyright] [Patent] [Trademark]
Security Agreement to be executed and delivered by its duly authorized officer
as of the date first set forth above.
Very
truly yours,
[GRANTOR]
as
Grantor
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By:
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Name:
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Title:
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ACCEPTED
AND AGREED
as of the
date first above written:
|
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BANK
OF AMERICA, N.A.
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as
Administrative Agent
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By:
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Name:
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Title:
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ACKNOWLEDGMENT
OF GRANTOR
State
of )
) ss.
County
of )
On this
___ day of _________, 20__ before me personally appeared __________________,
proved to me on the basis of satisfactory evidence to be the person who executed
the foregoing instrument on behalf of ____________________, who being by me duly
sworn did depose and say that he is an authorized officer of said corporation,
that the said instrument was signed on behalf of said corporation as authorized
by its Board of Directors and that he acknowledged said instrument to be the
free act and deed of said corporation.
Notary Public
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SCHEDULE
I
TO
[COPYRIGHT]
[PATENT] [TRADEMARK] SECURITY AGREEMENT
[Copyright] [Patent]
[Trademark] Registrations
|
1.
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REGISTERED
[COPYRIGHTS] [PATENTS] [TRADEMARKS]
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[Include
Registration Number and Date]
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2.
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[COPYRIGHT]
[PATENT] [TRADEMARK] APPLICATIONS
|
[Include
Application Number and Date]
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3.
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IP
LICENSES
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[Include
complete legal description of agreement (name of agreement, parties and
date)].