EXHIBIT 4.08
BORROWER SECURITY AGREEMENT
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BORROWER SECURITY AGREEMENT (as the same may be amended, supplemented or
otherwise modified from time to time, this "Agreement"), dated as of September
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25, 1997, by and between SALEM COMMUNICATIONS CORPORATION, a California
corporation (the "Borrower"), and THE BANK OF NEW YORK (the "Administrative
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Agent"), in its capacity as Administrative Agent for the Lenders under the
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Credit Agreement referred to below and the Rate Protection Lenders as defined
therein.
RECITALS
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I. Reference is made to the Credit Agreement, dated as of the date
hereof, by and among the Borrower, the Lenders party thereto, the Administrative
Agent, and Bank of America NT&SA, as Documentation Agent (as the same may be
amended, supplemented or otherwise modified from time to time, the "Credit
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Agreement").
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II. It is a condition precedent to the making of all loans and all other
extensions of credit under the Credit Agreement that the Borrower shall have
executed and delivered this Agreement.
Therefore, in consideration of the Recitals, the terms and conditions
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower and the
Administrative Agent hereby agree as follows:
1. Defined Terms
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(a) Capitalized terms used herein which are not otherwise defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
(b) When used in this Agreement, the following capitalized terms shall
have the respective meanings ascribed thereto as follows:
"Collateral": as defined in section 2.
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"Equity Interest": (i) with respect to a corporation, the capital
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stock thereof, (ii) with respect to a partnership, a partnership interest
therein, all rights of a partner in such partnership, whether arising under the
partnership agreement of such partnership or otherwise; (iii) with respect to a
limited liability company, a membership interest therein, all rights of a member
of such limited liability company, whether arising under the limited liability
company agreement of such limited liability company or otherwise; (iv) with
respect to any other firm, association, trust, business enterprise or other
entity, any equity interest therein, any interest therein which entitles the
holder thereof to share in the revenue, income, earnings or losses thereof or to
vote or otherwise participate in any election of one or more members of the
Managing Person thereof, and (v) all warrants and options in respect of any of
the foregoing and all other securities which are convertible or exchangeable
therefor.
"Event of Default": as defined in section 6.
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"Financing Statements": the UCC financing statements executed by
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the Borrower and delivered pursuant to the Credit Agreement.
"Grants of Security Interests": collectively, the Grant of
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Security Interest (Patents) and the Grant of Security Interest (Trademarks), in
the form of Annexes B-1 and B-2 hereto, respectively, in each case appropriately
completed and signed by the Borrower.
"NYUCC": the UCC as in effect in the State of New York on the
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date hereof.
"Obligations": all of the obligations and liabilities of the
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Borrower under the Loan Documents and under each Interest Rate Protection
Arrangement entered into by the Borrower with a Rate Protection Lender, in each
case whether fixed, contingent, now existing or hereafter arising, created,
assumed, incurred or acquired, as such obligations and liabilities may be
amended, increased, modified, renewed, refinanced by the Administrative Agent
and the Lenders, refunded or extended from time to time.
"Office Location": as defined in section 3(a).
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"Patents": all patents issued under the laws of the United
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States of America and all patent applications filed with the United States
Patent and Trademark Office, and all of the rights associated with each of the
foregoing.
"Proceeds": as defined in the NYUCC, together with (i) all
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dividends, distributions and income on and in respect of all of the Securities
and Instruments and all other rights and benefits in respect thereof, and
(ii) with respect to the Patents and Trademarks, all renewals thereof, all
proceeds of infringement suits, all rights to ▇▇▇ for infringement, all license
royalties, all reissues, divisions, continuations, extensions and continuations-
in-part thereof.
"Rate Protection Lenders": collectively, the Lenders and any
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affiliates of the Lenders which from time to time enter or have entered into
Interest Rate Protection Arrangements with the Borrower.
"Registrations": (i) patents issued under the laws of the United
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States of America, (ii) patent applications filed with the United States Patent
and Trademark Office, and (iii) all registered trademarks.
"Trademarks": (i) all rights under the laws of the United States
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of America, and each State thereof, to trademarks, together with all
registrations thereof, applications therefor and all of the rights associated
therewith, and (ii) the goodwill of the Borrower's business symbolized by
registered trademarks.
"Transaction Statement": a transaction statement in the form of
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Annex A hereto.
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"UCC": with respect to any jurisdiction, Articles 1, 8 and 9 of
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the Uniform Commercial Code as from time to time in effect in such jurisdiction.
(c) When used in this Agreement, the following capitalized terms shall
have the respective meanings ascribed thereto in the NYUCC: "Account",
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"Certificated Security", "Chattel Paper", "Document", "Equipment", "Fixture",
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"General Intangible", "Instrument", "Inventory", "Issuer", "Secured Party",
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"Security", "Security Interest" and "Uncertificated Security".
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2. Grant of Security Interest
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To secure the prompt and complete payment, observance and performance
of the Obligations, the Borrower hereby grants to the Administrative Agent, for
its benefit and the ratable benefit of the Lenders, the Issuing Bank and the
Rate Protection Lenders, a Security Interest in and to all of the Borrower's
right, title and interest in and to all: Accounts, Chattel Paper, Documents,
Equipment, Fixtures, General Intangibles, Instruments, including, without
limitation, Instruments evidencing intercompany Indebtedness, Inventory,
Patents, Trademarks, Equity Interests in each Person which now is or may
hereafter become a Subsidiary of the Borrower, whether or not evidenced by a
Security, and all Proceeds of all of the foregoing, in each case whether now
owned or existing or hereafter arising or acquired, and including, without
limitation, all licenses, approvals, permits and other authorizations issued by
the FCC, including the Proceeds of any sale or other disposition thereof, in
each case to the extent that a security interest therein is not prohibited by
law, provided that to the extent that a security interest therein is now so
prohibited and to the extent that such security interest at any time hereafter
shall no longer be so prohibited, then such security interest shall
automatically and without any further action attach and become fully effective
at that time (giving effect to any retroactive effect to any change in
applicable law or regulation) (collectively, the "Collateral").
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3. Representations and Warranties
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The Borrower hereby represents and warrants to the Administrative
Agent as follows:
(a) Chief Executive Office. As of the date hereof, the Borrower's
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place of business or, if the Borrower has more than one place of business, its
chief executive office, is, and has been continuously for the immediately
preceding 5 month period, located at the address set forth for notices to the
Borrower contained in the Credit Agreement (the "Office Location"). The
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Borrower has not changed its legal name during the six year period immediately
preceding the date hereof.
(b) Information. As of the date hereof, all of the information set
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forth on each of the Schedules hereto is true, complete and correct.
(c) Security Interest. This Agreement, together with the delivery to
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the Administrative Agent of the Certificated Securities constituting Collateral
and the continuous possession thereof by the Administrative Agent in the State
of New York, creates a continuing "enforceable" Security Interest in the
Collateral in favor of the Administrative Agent. Upon (i) the presentation for
filing of the Financing Statements at
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the respective offices listed thereon together with the appropriate filing fee
therefor, (ii) the delivery to the Administrative Agent of the Instruments
constituting the Collateral, and (iii) the registration, in accordance with
Article 8 of the NYUCC, of the Security Interest granted hereby on the books of
each Person which is an Issuer of an Uncertificated Security constituting the
Collateral, and (iv) the filing of the Grants of Security Interests in the
United States Patent and Trademark Office with respect to Patents,
Registrations, and Trademarks, (A) such Security Interest shall be perfected,
and (B) assuming that the Administrative Agent has acted in "good faith and
without notice of any adverse claim" within the meaning of Article 8 of the
NYUCC, the Administrative Agent shall be a "bona fide purchaser", within the
meaning of such Article, with respect to the Collateral consisting of
Securities.
(d) Absence of Liens. There are no Liens upon the Collateral
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other than Permitted Liens, if any.
(e) Equity Interests. The Equity Interests listed on Schedule 3(e)
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hereto constitute, as of the date hereof, all of the Equity Interests in each
Subsidiary in which the Borrower has any right, title or interest, and each such
Equity Interest issued by a corporate Issuer has been duly authorized, validly
issued and fully paid for, and is non-assessable. As of the Effective Date,
except as set forth on Schedule 3(e), (i) no Subsidiary of the Borrower has
issued any securities convertible into, or options or warrants for, any common
or preferred equity securities thereof and (ii) there are no agreements, voting
trusts or understandings binding upon the Borrower or any of its Subsidiaries
with respect to the voting securities of any of such Subsidiary or affecting in
any manner the sale, pledge, assignment or other disposition thereof, including
any right of first refusal, option, redemption, call or other right with respect
thereto, whether similar or dissimilar to any of the foregoing.
(f) Chattel Paper, Documents and Instruments. The Chattel Paper,
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Documents and Instruments listed on Schedule 3(f) hereto constitute, as of the
date hereof, all of the Chattel Paper, Documents and Instruments which
constitute the Collateral, and, to the best of the Borrower's knowledge, all
such Chattel Paper, Documents and Instruments have been duly authorized, issued
and delivered, and constitute the legal, valid, binding and enforceable
obligations of the respective makers thereof.
(g) Accounts. As of the date hereof, all records concerning any
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Account constituting the Collateral are located at its Office Location, and no
such Account is evidenced by a promissory note or other instrument.
(h) Equipment and Inventory. Except for Equipment and Inventory in
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transit with common carriers, the Borrower has exclusive possession and control
of all Equipment and Inventory constituting the Collateral, all of which is as
of the date hereof and has been continuously for the 5 month period immediately
preceding the date hereof, located at one or more of the places listed on
Schedule 3(h) hereto.
(i) Patents and Trademarks. The Borrower has no Registrations relating
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to Patents other than those listed on Schedule 3(i) hereto, and each such
Registration is subsisting and is not invalid or unenforceable, in whole or in
part , except to the extent that the unenforceability thereof could not
reasonably be expected to have a material adverse effect on the value of the
Patents taken as a whole. The Borrower has no
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Registrations relating to Trademarks other than those listed on Schedule 3(i)
hereto, and each such Registration is subsisting and has not been adjudged
invalid or unenforceable, in whole or in part , except to the extent that the
unenforceability thereof could not reasonably be expected to have a material
adverse effect on the value of the Trademarks taken as a whole. To the best of
the Borrower's knowledge, each Patent and Trademark constituting Collateral is
valid and enforceable. Except for Permitted Liens, the Borrower is the sole and
exclusive owner of the entire and unencumbered right, title and interest in and
to each of the Patents and Trademarks constituting Collateral, free and clear of
all Liens. To the best of the Borrower's knowledge, no claim has been made that
the use of any Patent or Trademark violates the rights of any third person. The
Borrower has used consistent standards of quality in its manufacture of products
sold under the Patents and Trademarks.
4. Covenants of the Borrower
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The Borrower hereby covenants with the Administrative Agent as
follows:
(a) Chief Executive Office. The Borrower shall maintain its place of
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business, or if the Borrower has more than one place of business, its chief
executive office, at the Office Location or at such other location in respect of
which (A) the Borrower shall have provided the Administrative Agent with prior
written notice thereof, and (B) UCC financing statements (or amendments
thereto), in form and substance reasonably satisfactory to the Administrative
Agent, shall have been filed within two months of such change.
(b) Further Assurances. The Borrower shall, at its own expense,
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promptly execute and deliver all certificates, documents, instruments, financing
and continuation statements and amendments thereto, notices and other
agreements, and take all further action, that the Administrative Agent may
reasonably request from time to time, in order to perfect and protect the
Security Interest granted hereby or to enable the Administrative Agent to
exercise and enforce its rights and remedies hereunder with respect to the
Collateral. The Borrower hereby irrevocably appoints the Administrative Agent
as the Borrower's true and lawful attorney-in-fact, in the name, place and stead
of the Borrower, to perform on behalf of the Borrower any and all obligations of
the Borrower under this Agreement, and the Borrower agrees that the power of
attorney herein granted constitutes a power coupled with an interest, provided,
however, that the Administrative Agent shall have no obligation to perform any
such obligation and such performance shall be at the sole cost and expense of
the Borrower. If the Borrower fails to comply with any of its obligations
hereunder, the Administrative Agent may do so in the Borrower's name or in the
Administrative Agent's name, but at the Borrower's expense, and the Borrower
hereby agrees to reimburse the Administrative Agent in full for all reasonable
expenses, including reasonable attorney's fees, incurred by the Administrative
Agent in connection therewith.
(c) Information. The Borrower at its own expense shall furnish to the
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Administrative Agent such information, reports, statements and schedules with
respect to the Collateral as the Administrative Agent may reasonably request
from time to time.
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(d) Defense of Collateral. The Borrower at its own expense shall
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defend the Collateral against all claims of any kind or nature (other than
Permitted Liens, if any) of all Persons at any time claiming the same or any
interest therein adverse to the interests of the Administrative Agent, the
Issuing Bank, any Rate Protection Lender or any Lender, and the Borrower shall
not cause, permit or suffer to exist any Lien upon the Collateral other than
Permitted Liens, if any.
(e) Uncertificated Securities. The Borrower shall cause each Person
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which is an Issuer of an Uncertificated Security constituting Collateral (i) to
register the Security Interest granted hereby upon the books of such Person in
accordance with Article 8 of the NYUCC, and (ii) to issue to the Administrative
Agent an initial Transaction Statement and issue to the Administrative Agent
subsequent Transaction Statements in accordance with Section 8-408 of the UCC in
effect in the State of New York.
(f) Delivery of Pledged Collateral. Each Certificated Security
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representing an Equity Interest in a Person which is or shall become a
Subsidiary of the Borrower shall be promptly delivered to the Administrative
Agent, to be held by the Administrative Agent pursuant hereto, in suitable form
for transfer by delivery or accompanied by duly executed documents of transfer
or assignment in blank, all in form and substance satisfactory to the
Administrative Agent. The Borrower agrees that until so delivered, each such
Certificated Security shall be held by the Borrower in trust for the benefit of
the Administrative Agent and be segregated from the other Property of the
Borrower.
(g) Chattel Paper, Documents and Instruments. All of the Instruments,
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Documents and Chattel Paper now or hereafter owned by or in the possession of
the Borrower which constitute Collateral (other than checks received in the
ordinary course of collection) shall be promptly delivered to the Administrative
Agent, to be held by the Administrative Agent pursuant hereto, in suitable form
for transfer by delivery or accompanied by duly executed documents of transfer
or assignment in blank, all in form and substance reasonably satisfactory to the
Administrative Agent. The Borrower agrees that, with respect to all items of
the Collateral which it is or shall hereafter be obligated to deliver to the
Administrative Agent, until so delivered such items shall be held by the
Borrower in trust for the benefit of the Administrative Agent and be segregated
from the other Property of the Borrower.
(h) Accounts. Except as otherwise provided in this section 4(h), the
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Borrower shall continue to collect in accordance with its customary practice, at
its own expense, all amounts due or to become due to the Borrower in respect of
the Borrower's Accounts and, prior to the occurrence of an Event of Default, the
Borrower shall have the right to adjust, settle or compromise the amount or
payment of any such Account, all in accordance with its customary practices. In
connection with such collections, the Borrower may take and, at the direction of
the Administrative Agent at any time that an Event of Default shall have
occurred and be continuing shall take, such action as the Borrower or the
Administrative Agent may reasonably deem necessary or advisable to enforce
collection of such Accounts.
(i) Equipment and Inventory. The Borrower shall keep the Equipment and
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Inventory constituting Collateral at the places listed on Schedule 3(h)
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hereto, and at such other places located within the United States in respect of
which (i) the Borrower shall have provided the Administrative Agent with prior
written notice, and (ii) UCC financing statements (or amendments thereto), in
form and substance satisfactory to the Administrative Agent, shall have been
filed within two months of such change. The Borrower shall promptly furnish to
the Administrative Agent a statement respecting any material loss or damage to
any of the Equipment or Inventory constituting Collateral except to the extent
that such loss or damage shall be insured pursuant to policies required to be
maintained pursuant to the Credit Agreement.
(j) Patents and Trademarks. The Borrower will continue to use for the
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duration of this Agreement, consistent standards of quality in its manufacture
of products sold under the Patents and Trademarks constituting Collateral. The
Borrower shall give to the Administrative Agent prompt written notice thereof in
the event that the Borrower shall obtain any right to any new Patent or
Trademark or to any reissue, division, continuation, renewal, extension, or
continuation-in-part of any Patent or Trademark. The Borrower shall prosecute
diligently any applications of the Patents and Trademarks constituting
Collateral pending as of the date of this Agreement or thereafter, and preserve
and maintain all rights in applications of Patents and Trademarks constituting
Collateral consistent with past practice, including the payment of all
maintenance fees , except to the extent the failure so to preserve or maintain
such rights could not reasonably be expected to have a material adverse effect
on either (i) the value of the Patents taken as a whole, or (ii) the value of
the Trademarks taken as a whole. The Borrower shall not abandon any right to
file an application or any pending application for any Patent or Trademark
unless the failure so to do could not reasonably be expected to have a material
adverse effect on either (i) the value of the Patents taken as a whole, or
(ii) the value of the Trademarks taken as a whole. The Borrower agrees that it
will not enter into any agreement, including a license agreement, with respect
to any Patent or Trademark which is inconsistent with the Borrower's past
practices of licensing Patents or Trademarks as the case may be. The Borrower
hereby grants to the Administrative Agent the right to visit the Borrower's
plants and facilities which manufacture, inspect or store products sold under
any of the Patents and Trademarks, and to inspect the products and quality
control records relating thereto at reasonable times during regular business
hours upon reasonable prior notice.
5. Other Agreements of the Borrower
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(a) No Duty to Preserve. Except as otherwise required by law, the
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Borrower agrees that, with respect to the Collateral, neither the Administrative
Agent, the Issuing Bank, any Rate Protection Lender nor any Lender has any
obligation to preserve rights against prior or third parties.
(b) Administrative Agent's Duty With Respect to Collateral. The
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Administrative Agent's only duty with respect to the Collateral delivered to it
shall be to use reasonable care in the custody and preservation of the
Collateral, and the Borrower agrees that if the Administrative Agent accords the
Collateral substantially the same kind of care as it accords its own Property,
such care shall conclusively be deemed reasonable. In the event that all or any
part of the Certificated Securities or Instruments constituting the Collateral
are lost, destroyed or wrongfully taken while such Certificated Securities or
Instruments are in the possession of the Administrative Agent, the Borrower
agrees that it will use its best efforts to cause the delivery of new
Certificated Securities or Instruments
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in place of the lost, destroyed or wrongfully taken Certificated Securities or
Instruments upon request therefor by the Administrative Agent, without the
necessity of any indemnity bond or other security, other than the Administrative
Agent's agreement of indemnity upon usual and customary terms therefor. Anything
herein to the contrary notwithstanding, the Administrative Agent shall not be
under any duty to send notices, perform services, exercise any rights of
collection, enforcement, conversion or exchange, vote, pay for insurance, taxes
or other charges or take any action of any kind in connection with the
management of the Collateral.
(c) Liability of Borrower under Contracts and Agreements Included in
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the Collateral. Anything herein to the contrary notwithstanding, (i) the
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Borrower shall remain liable under the contracts and agreements included in the
Collateral to the extent set forth therein to perform all of its duties and
obligations thereunder to the same extent as if this Agreement had not been
executed, (ii) the exercise by the Administrative Agent, the Issuing Bank, any
Rate Protection Lender or any Lender of any of its rights hereunder shall not
release the Borrower from any of its duties or obligations under any such
contract or agreement, (iii) neither the Administrative Agent, the Issuing Bank,
any Rate Protection Lender nor any Lender shall have any obligation or
liability, including indemnification obligations, under any such contract or
agreement by reason of this Agreement, nor shall the Administrative Agent, the
Issuing Bank, any Rate Protection Lender or any Lender be obligated to perform
any of the obligations or duties of the Borrower thereunder, to make any
payment, to make any inquiry as to the nature or sufficiency of any payment
received by the Borrower or the sufficiency of any performance by any party
under any such contract or agreement or to take any action to collect or enforce
any claim for payment assigned hereunder, and (iv) neither the Administrative
Agent, the Issuing Bank, any Rate Protection Lender nor any Lender shall be
under any duty to send notices, perform services, exercise any rights of
collection, enforcement, conversion or exchange, vote, pay for insurance, taxes
or other charges or take any action of any kind in connection with the
management of the Collateral.
6. Events of Default
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Each of the following shall constitute an "Event of Default":
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(a) If the Borrower shall fail to observe or perform any term,
covenant or agreement contained in this Agreement; or
(b) The occurrence and continuance of an Event of Default under, and
as such term is defined in, the Credit Agreement.
7. Remedies
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(a) Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, the Administrative Agent may:
(i) exercise any and all rights and remedies (A) granted to a
Secured Party by the UCC in effect in the State of New York or otherwise
allowed at law, and (B) otherwise provided by this Agreement, and
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(ii) dispose of the Collateral as it may choose, so long as every
aspect of the disposition including the method, manner, time, place and
terms are commercially reasonable, and the Borrower agrees that, without
limitation, the following are each commercially reasonable: (A) the
Administrative Agent shall not in any event be required to give more than
10 days' prior notice to the Borrower of any such disposition, (B) any
place within the City of New York or the Counties of Nassau, Suffolk, and
Westchester may be designated by the Administrative Agent for disposition,
and (C) the Administrative Agent may adjourn any public or private sale
from time to time by announcement at the time and place fixed therefor, and
such sale may, without further notice, be made at the time and place to
which it was so adjourned.
(b) The Borrower acknowledges and agrees that the Administrative Agent
may elect, with respect to the offer or sale of any or all of the Equity
Interests constituting the Collateral, to conduct such offer and sale in such a
manner as to avoid the need for registration or qualification of such Equity
Interests or the offer and sale thereof under any Federal or state securities
laws and that the Administrative Agent is authorized to comply with any
limitation or restriction in connection with such sale as counsel may advise the
Administrative Agent is reasonably necessary in order to avoid any violation of
applicable law, compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to Persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Equity Interests, or in order to obtain any required approval of
the sale or of the purchaser by any Governmental Authority. The Borrower
further acknowledges and agrees that any such transaction may be at prices and
on terms less favorable than those which may be obtained through a public sale
and not subject to such restrictions and agrees that, notwithstanding the
foregoing, the Administrative Agent is under no obligation to conduct any such
public sale and may elect to impose any or all of the foregoing restrictions, or
any other restrictions which may be reasonably necessary in order to avoid any
such registration or qualification, at its sole discretion or with the consent
or direction of the Required Lenders, and that any such offer and sale so
conducted shall be deemed to have been made in a commercially reasonable manner.
(c) To the extent permitted by law, the Borrower hereby expressly
waives and covenants not to assert any appraisement, valuation, stay, extension,
redemption or similar laws, now or at any time hereafter in force, which might
delay, prevent or otherwise impede the performance or enforcement of this
Agreement.
(d) Notwithstanding anything to the contrary contained in this
Agreement, any other Loan Document or in any other agreement, instrument or
document executed by the Borrower and delivered to the Administrative Agent, the
Issuing Bank or any Lender, neither the Administrative Agent, the Issuing Bank
nor any Lender will take any action pursuant to this Agreement, any other Loan
Document or any other document referred to above which would constitute or
result in any assignment of any license, approval, permit, certificate or other
authorization issued by the FCC or any change of control of the Borrower or any
Subsidiary if such assignment or change of control would require, under then
existing law, the prior approval of the FCC without first obtaining such prior
approval of the FCC. Upon the occurrence of an Event of Default or at any
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time during the continuance thereof, the Borrower waives, to the extent
permitted by law, any right it may have to oppose, and agrees to take any action
that the Administrative Agent may reasonably request in order to obtain from the
FCC, such approval as may be necessary to enable the Administrative Agent, the
Issuing Bank and the Lenders to exercise and enjoy the full rights and benefits
granted to the Administrative Agent, the Issuing Bank and the Lenders by this
Agreement, the other Loan Documents and the other documents referred to above,
including specifically, at the cost and expense of the Borrower, the use of
commercially reasonable efforts to assist in obtaining approval of the FCC for
any action or transaction contemplated by this Agreement for which such approval
is or shall be required by law, and specifically, without limitation, upon
request, to prepare, sign and file with the FCC the assignor's or transferor's
portion of any application or applications for consent to the assignment of
license or transfer of control necessary or appropriate under the FCC's rules
and regulations for approval of (a) any sale or other disposition of the
Collateral by or on behalf of the Administrative Agent, or (b) any assumption by
the Administrative Agent of voting rights in the Collateral effected in
accordance with the terms of this Agreement. It is understood and agreed that
all foreclosure and related actions will be made in accordance with the
Communications Act and applicable regulations and published policies and
decisions of the FCC pertaining to such foreclosure and related actions.
8. Voting
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Notwithstanding anything to the contrary contained in this Agreement,
the Borrower shall have the right to vote all Securities and General Intangibles
constituting the Collateral and receive and retain all dividends and
distributions thereon until such time, if any, as an Event of Default shall have
occurred and be continuing and the Administrative Agent shall have notified the
Borrower that the Administrative Agent shall have elected to terminate the
rights of the Borrower under this section, at which time the Administrative
Agent shall then be vested with the right to vote all Securities constituting
the Collateral and receive and retain all dividends and distributions thereon,
until such time as such Event of Default is cured or waived.
9. Notices
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All notices and other communications provided for or otherwise
required hereunder or in connection herewith shall be given in the manner and to
the addresses set forth in section 11.2 of the Credit Agreement.
10. Termination
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On any date upon which (i) the Lenders shall no longer have any
obligation to make Loans, (ii) the Issuing Bank shall no longer have (A) any
obligation to issue Letters of Credit and (B) any obligations under the Letters
of Credit theretofor issued, and (iii) the Obligations shall have been paid in
full in cash, the outstanding principal balance of the Loans together with all
accrued interest thereon, all of the Reimbursement Obligations and all other
sums then due and owing under the Loan Documents, the Liens granted hereby shall
cease and the Administrative Agent shall, at the Borrower's expense (A) execute
and deliver all UCC Termination Statements and other documents necessary to
terminate the Liens granted hereby that the Borrower shall have reasonably
requested,
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and (B) return to the Borrower all Collateral that shall remain in the
possession of the Administrative Agent at such time.
11. Relationship to Credit Agreement
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This Agreement is the "Borrower Security Agreement" under, and as such
term is defined in, the Credit Agreement, and is subject to, and should be
construed in accordance with, the provisions thereof. Each of the
Administrative Agent and the Borrower acknowledges that certain provisions of
the Credit Agreement, including, without limitation, sections 1.2 (Principles of
Construction), 11.1 (Amendments and Waivers), 11.3 (No Waiver; Cumulative
Remedies), 11.4 (Survival of Representations and Warranties), 11.7 (Successors
and Assigns), 11.8 (Counterparts), 11.9 (Adjustments; Set-off), 11.12 (Governing
Law), 11.13 (Headings), 11.14 (Severability), 11.15 (Integration), 11.16
(Limitation of Liability), 11.17 (Consent to Jurisdiction), 11.18 (Service of
Process), 11.19 (No Limitation on Service or Suit) and 11.20 (WAIVER OF TRIAL BY
JURY) thereof, are made applicable to this Agreement and all such provisions are
incorporated by reference herein as if fully set forth herein.
- 11 -
IN EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Borrower Security
Agreement to be duly executed on its behalf.
SALEM COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Title: Executive Vice President
---------------------------
THE BANK OF NEW YORK, as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Title:
---------------------------
- 12 -
SCHEDULE 3(e)
TO BORROWER SECURITY AGREEMENT
SCHEDULE 3 (e) TO THE BORROWER SECURITY AGREEMENT
DATED AS OF SEPTEMBER 25, 1997
LIST OF EQUITY INTERESTS
------------------------
PERCENTAGE OF
NUMBER OF CERT. OUTSTANDING
ISSUER CLASS SHARES NUMBER SHARES
------ ----- ------ ------ ------
ATEP Radio, Inc. Common 100 0001 100%
Beltway Media Partners NA (1) NA 100%
Bison Media, Inc. Common 1,000 0002 100%
▇▇▇▇▇ Broadcasting, Inc. Common 1,000 0001 100%
Common Ground Broadcasting, Common 1,000 0002 100%
Inc.
Golden Gate Broadcasting Co., Common 1,000 0003 100%
Inc.
Inland Radio, Inc. Common 200 0004 100%
Inspiration Media of Texas, Inc. Common 1,000 0001 100%
Inspiration Media, Inc. Common 100 0001 100%
New England Continental Media, Common 1,000 A-006 100%
Inc.
New Inspiration Broadcasting Common 30,600 0003 100%
Co., Inc.
Oasis Radio, Inc. Common 1,960 0005 100%
Pennsylvania Media Associates, Common 1,000 0001 100%
Inc.
Radio 1210, Inc. Common 100 0006 100%
Salem Communications Common 100 0001 100%
Corporation, a Delaware
corporation
Salem Media Corporation Common 10,000 0003 100%
Salem Media of California, Inc. Common 1 0003 100%
Salem Media of Colorado, Inc. Common 1,000 0001 100%
Salem Media of Louisiana, Inc. Common 200 0003 100%
Salem Media of Ohio, Inc. Common 100 0006 100%
Salem Media of Oregon, Inc. Common 100 0003 100%
Salem Media of Pennsylvania, Common 100 0001 100%
Inc.
Salem Media of Texas, Inc. Common 1,000 0001 100%
Salem Music Network, Inc. Common 1,000 0001 100%
Salem Radio Network Common 200 0005 100%
Incorporated
Salem Radio Representatives, Common 1,000 0003 100%
Inc.
South Texas Broadcasting, Inc. Common 1,000 0001 100%
SRN News Network, Inc. Common 1,000 0001 100%
Vista Broadcasting, Inc. Common 1,000 0001 100%
NOTE 1: All listed entities are corporations except Beltway Media Partners,
which is a general partnership. Salem Communications Corporation,
New Inspiration Broadcasting Co., Inc. and Golden Gate Broadcasting
Co., Inc. are the sole partners of Beltway Media Partners, as
follows:
New Inspiration Broadcasting Co., Inc. 45% ownership interest
Golden Gate Broadcasting Co., Inc. 40% ownership interest
Salem Communications Corporation 15% ownership interest
NOTE 2: The chief executive office of all entities is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
NOTE 3: All shares are nonassessable except for shares issued in
Massachusetts, where shares are subject to assessments for unpaid
services and wage claims. The applicable statute is Section 35 of
the Massachusetts General Corporation Law.
SCHEDULE 3(f)
TO BORROWER SECURITY AGREEMENT
Schedule 3(f) to the Borrower Security Agreement
Dated as of September 25, 1997
LIST OF CHATTEL PAPER, DOCUMENTS AND INSTRUMENTS
------------------------------------------------
Promissory Note, dated February 12, 1992, in the original
principal amount of $20,000,000, made by Beltway Media Partners to
Salem Communications Corporation, New Inspiration Broadcasting
Company, Inc. and Golden Gate Broadcasting Company, Inc.
SCHEDULE 3(h)
TO BORROWER SECURITY AGREEMENT
Schedule 3(h) to the Borrower Security Agreement
Dated as of September 25, 1997
ADDRESSES FOR EQUIPMENT AND INVENTORY LOCATIONS
-----------------------------------------------
ENTITY STUDIO/OFFICE LOCATION TRANSMITTER LOCATION
------ ---------------------- --------------------
Salem Communications ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇/▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SCHEDULE 3(i)
TO BORROWER SECURITY AGREEMENT
SCHEDULE 3(i) TO THE BORROWER SECURITY AGREEMENT
DATED AS OF SEPTEMBER 25, 1997
LIST OF REGISTRATIONS
---------------------
A. Patents
-------
None.
B. Trademarks
----------
None.
C. Servicemarks
------------
1. "Salem Communications Corporation" - Reg. No. 1,996,372
2. Salem Logo - Reg. No. 1,940,452
ANNEX A TO THE BORROWER SECURITY AGREEMENT
DATED AS OF SEPTEMBER 25, 1997
FORM OF TRANSACTION STATEMENT
-----------------------------
THIS STATEMENT IS MERELY A RECORD OF THE RIGHTS OF THE ADDRESSEE AS OF THE
TIME OF ITS ISSUANCE. DELIVERY OF THIS STATEMENT, OF ITSELF, CONFERS NO RIGHT
ON THE RECIPIENT. THIS STATEMENT IS NEITHER A NEGOTIABLE INSTRUMENT NOR A
SECURITY.
[DATE]
The Bank of New York, as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned, _________________ (the "Issuer"), hereby acknowledges
------
receipt of the Borrower Security Agreement (as the same may be amended,
supplemented or otherwise modified from time to time, the "Agreement"), dated as
---------
of September 25, 1997, by and between SALEM COMMUNICATIONS CORPORATION (the
"Borrower") and THE BANK OF NEW YORK, as Administrative Agent (in such capacity,
---------
the "Administrative Agent"), and (i) consents to the terms thereof and (ii)
--------------------
confirms that a pledge of the right, title and interest in the security referred
to below has been registered in the books and records of the Issuer in the name
of the Administrative Agent, as set forth below. This Transaction Statement is
issued under Section 8-408 of the New York State Uniform Commercial Code.
1. DESCRIPTION OF THE SECURITY: __________________________________.
2. NUMBER OF SHARES OR UNITS PLEDGED: ____________________________.
3. REGISTERED OWNER:
SALEM COMMUNICATIONS CORPORATION
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President/
Chief Financial Officer
Taxpayer ID# ____________.
4. REGISTERED PLEDGEE AND TAXPAYER IDENTIFICATION NUMBER (IF ANY):
The Bank of New York, as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:___________________________
___________________________
Taxpayer ID# ▇▇-▇▇▇▇▇▇▇
5. DATE OF REGISTRATION OF THE PLEDGE: The pledge described herein was
registered on ________, on the books and records of the Issuer.
6. NOTATION OF LIENS: There are no liens, restrictions or adverse claims as to
which the Issuer has a duty under Section 8-403(4) of the Uniform
Commercial Code (the "UCC") to which such security is or may be subject,
---
other than those set forth in the Loan Documents (as defined in that
certain Credit Agreement, dated as of ________, 1997, by and among the
Borrower, the Lenders party thereto and The Bank of New York, as
Administrative Agent and Bank of America NT & SA, as Documentation Agent,
as amended, supplemented or otherwise modified from time to time) or [LIST
APPLICABLE ORGANIZATIONAL DOCUMENTS].
The Issuer hereby agrees, at the request of the Administrative Agent
and at the expense of the Issuer, to register any further assignment or transfer
of the foregoing security effected in the manner contemplated by the Agreement
and promptly to furnish to the Administrative Agent and any such assignee or
transferee any statement contemplated by Section 8-408 of the UCC.
[NAME OF ISSUER]
By:
_______________________________________
Name:
_____________________________________
Title:
____________________________________
- 2 -
ANNEX B-1 TO THE BORROWER SECURITY AGREEMENT
DATED AS OF SEPTEMBER 25, 1997
FORM OF GRANT OF SECURITY INTEREST (PATENTS)
--------------------------------------------
SALEM COMMUNICATIONS CORPORATION, a California corporation (the
"Borrower"), is obligated to THE BANK OF NEW YORK, as Administrative Agent (the
---------
"Administrative Agent"), and has entered into a Borrower Security Agreement
--------------------
dated the date hereof (the "Agreement") with the Administrative Agent.
---------
Pursuant to the Agreement, the Borrower granted to the Administrative
Agent a security interest in all of the right, title and interest of the
Borrower in and to the letters patent or applications for letters patent, of the
United States, more particularly described on Schedule 1 (the "Patents")
-------
together with any reissue, continuation, continuation-in-part or extension
thereof, and all proceeds thereof, any and all causes of action which may exist
by reason of infringement thereof for the full term of the Patents (the
"Collateral"), to secure the prompt payment, performance and observance of the
-----------
Obligations (as defined in the Agreement).
For good and valuable consideration, the receipt of which is hereby
acknowledged, and for the purpose of recording the grant of the security
interest as aforesaid, the Borrower does hereby further assign to the
Administrative Agent, and grant to the Administrative Agent a security interest
in, the Collateral to secure the prompt payment, performance and observance of
the Obligations.
The Borrower does hereby further acknowledge and affirm that the
rights and remedies of the Administrative Agent with respect to the assignment
of and security interest in the Collateral made and granted hereby are set forth
in the Agreement, the terms and provisions of which are hereby incorporated
herein by reference as if fully set forth herein.
Upon the indefeasible cash payment in full of all Obligations (as such
term is defined in the Agreement), the Administrative Agent will take whatever
actions are necessary at the Borrower's expense to release or reconvey to
Borrower all right, title and interest of the Borrower in and to the Patents.
The Administrative Agent's address is: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇.
IN WITNESS WHEREOF, the Borrower has caused this Assignment to be duly
executed by its duly authorized officer as of the __ day of _____, _____.
SALEM COMMUNICATIONS CORPORATION
By:
______________________________________
Name:
____________________________________
Title:
___________________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this __ day of _____, ____, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that he resides at __________________; that he is the ________ of SALEM
COMMUNICATIONS CORPORATION, the corporation described in and which executed the
above instrument, and that he signed his name thereto by order of the board of
directors thereof.
____________________________
Notary Public
[Notary's Stamp]
- 3 -
Schedule 1
to
Grant of Security Interest (Patents)
Dated as of ______________
- 4 -
ANNEX B-2 TO THE BORROWER SECURITY AGREEMENT
DATED AS OF SEPTEMBER 25, 1997
FORM OF GRANT OF SECURITY INTEREST (TRADEMARKS)
-----------------------------------------------
SALEM COMMUNICATIONS CORPORATION, a California corporation (the
---------------------------------------------------------------
"Borrower"), is obligated to THE BANK OF NEW YORK, as Administrative Agent (the
---------
"Administrative Agent"), and has entered into a Borrower Security Agreement
--------------------
dated the date hereof (the "Agreement") with the Administrative Agent.
---------
Pursuant to the Agreement, the Borrower granted to the Administrative
Agent a security interest in all of the right, title and interest of the
Borrower in and to the trademarks listed on Schedule 1, which trademarks are
registered in the United States Patent and Trademark Office (the "Trademarks"),
----------
together with the goodwill of the business symbolized by the Trademarks and the
applications and registrations therefor, and all proceeds thereof, any and all
causes of action which may exist by reason of infringement thereof (the
"Collateral"), to secure the prompt payment, performance and observance of the
-----------
Obligations (as defined in the Agreement).
For good and valuable consideration, the receipt of which is hereby
acknowledged, and for the purpose of recording the grant of the security
interest as aforesaid, the Borrower does hereby further assign to the
Administrative Agent, and grant to the Administrative Agent a security interest
in, the Collateral to secure the prompt payment, performance and observance of
the Obligations.
The Borrower does hereby further acknowledge and affirm that the
rights and remedies of the Administrative Agent with respect to the assignment
of and security interest in the Collateral made and granted hereby are set forth
in the Agreement, the terms and provisions of which are hereby incorporated
herein by reference as if fully set forth herein.
Upon the indefeasible cash payment in full of all Obligations (as such
term is defined in the Agreement), the Administrative Agent will take whatever
actions are necessary at the Borrower's expense to release or reconvey to the
Borrower all right, title and interest of the Borrower in and to the Trademarks.
The Administrative Agent's address is: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇.
IN WITNESS WHEREOF, the Borrower has caused this Assignment to be duly
executed by its duly authorized officer as of the __ day of _____, ____.
SALEM COMMUNICATIONS CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
- 2 -
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this __ day of _____, _____, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that he resides at __________________; that he is the ________ of SALEM
COMMUNICATIONS CORPORATION, the corporation described in and which executed the
above instrument, and that he signed his name thereto by order of the board of
directors thereof.
____________________________
Notary Public
[Notary's Stamp]
- 3 -
Schedule 1
to
Grant of Security Interest (Trademarks)
Dated as of ____________
- 4 -
TRANSACTION STATEMENT
--------------------
THIS STATEMENT IS MERELY A RECORD OF THE RIGHTS OF THE ADDRESSEE AS OF THE
TIME OF ITS ISSUANCE. DELIVERY OF THIS STATEMENT, OF ITSELF, CONFERS NO RIGHT
ON THE RECIPIENT. THIS STATEMENT IS NEITHER A NEGOTIABLE INSTRUMENT NOR A
SECURITY.
September 25, 1997
The Bank of New York, as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned, Beltway Media Partners, a Virginia general partnership
(the "Issuer"), hereby acknowledges receipt of (a) the Borrower Security
------
Agreement (as the same may be amended, supplemented or otherwise modified from
time to time, the "Borrower Security Agreement"), dated as of September 25,
---------------------------
1997, by and between SALEM COMMUNICATIONS CORPORATION (the "Borrower") and THE
--------
BANK OF NEW YORK, as Administrative Agent (in such capacity, the "Administrative
--------------
Agent"), and (b) the Subsidiary Guaranty and Security Agreement (as the same may
-----
be amended, supplemented or otherwise modified from time to time, the
"Subsidiary Guaranty"), dated as of September 25, 1997, by and among the Persons
-------------------
party thereto, the Borrower and the Administrative Agent, and (i) consents to
the terms thereof and (ii) confirms that a pledge of the right, title and
interest in the security referred to below has been registered in the books and
records of the Issuer in the name of the Administrative Agent as set forth
below. This Transaction Statement is issued under Section 8-408 of the New York
State Uniform Commercial Code.
1. DESCRIPTION OF THE SECURITY: 100% of the General Partnership interests in
the Issuer.
2. NUMBER OF SHARES OR UNITS PLEDGED: N/A.
3. REGISTERED OWNER:
As to 15% of the General Partnership interests:
SALEM COMMUNICATIONS CORPORATION
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President/
Chief Financial Officer
Taxpayer ID# ▇▇-▇▇▇▇▇▇▇.
The Issuer hereby agrees, at the request of the Administrative Agent and
at the expense of the Issuer, to register any further assignment or transfer of
the foregoing security effected in the manner contemplated by the Borrower
Security Agreement and the Subsidiary Guaranty and promptly to furnish to the
Administrative Agent and any such assignee or transferee any statement
contemplated by Section 8-408 of the UCC.
SALEM COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
NEW INSPIRATION BROADCASTING
COMPANY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
GOLDEN GATE BROADCASTING COMPANY,
INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
The Issuer hereby agrees, at the request of the Administrative Agent and
at the expense of the Issuer, to register any further assignment or
transfer of the foregoing security effected in the manner contemplated
by the Borrower Security Agreement and the Subsidiary Guaranty and
promptly to furnish to the Administrative Agent and any such assignee or
transferee any statement contemplated by Section 8-408 of the UCC.
SALEM COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------
Title: Executive Vice President
------------------------
NEW INSPIRATION BROADCASTING
COMPANY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------
Title: Executive Vice President
------------------------
GOLDEN GATE BROADCASTING COMPANY,
INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------
Title: Executive Vice President
------------------------
As to 45% of the General Partnership interests:
NEW INSPIRATION BROADCASTING COMPANY, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President/
Chief Financial Officier
Taxpayer ID# ▇▇-▇▇▇▇▇▇▇.
As to 40% of the General Partnership interests:
GOLDEN GATE BROADCASTING COMPANY, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President/
Chief Financial Officer
Taxpayer ID# ▇▇-▇▇▇▇▇▇▇.
4. REGISTERED PLEDGEE AND TAXPAYER IDENTIFICATION NUMBER (IF ANY):
The Bank of New York, as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President
Taxpayer ID# ▇▇-▇▇▇▇▇▇▇
5. DATE OF REGISTRATION OF THE PLEDGE: The pledge described herein was
registered on September 25, 1997, on the books and records of the Issuer.
6. NOTATION OF LIENS: There are no liens, restrictions or adverse claims as
to which the Issuer has a duty under Section 8-403(4) of the Uniform
Commercial Code (the "UCC") to which such security is or may be subject,
---
other than those set forth in the Loan Documents (as defined in that
certain Credit Agreement, dated as of September 25, 1997, by and among
the Borrower, the Lenders party thereto, The Bank of New York, as
Administrative Agent, and Bank of America NT&SA, as Documentation Agent,
as amended, supplemented or otherwise modified from time to time).