Exhibit 10.4
EXECUTION VERSION
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of November 9, 2005 (the "Agreement"), by
and between Canadian Traffic Network ULC, an Alberta business corporation (the
"Obligor"), and Metro Networks Communications, Inc., a Maryland corporation (the
"Noteholder").
The Obligor and the Noteholder are parties to that certain senior note
purchase agreement, dated as of November 9, 2005 (as modified and supplemented
and in effect from time to time, the "Senior Note Purchase Agreement").
To induce said Noteholder to enter into the Senior Note Purchase
Agreement and to accept the Senior Note, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Obligor has agreed to grant a security interest in the Collateral (as
hereinafter defined) as security for the Secured Obligations (as so defined).
Accordingly, the parties hereto agree as follows:
Section 1. Definitions.
(a) Terms defined in the Senior Note Purchase Agreement are used
herein as defined therein.
(b) Terms used herein that are defined in the UCC, as of the date of
this Agreement, shall have the meanings currently defined as specified in
the UCC, including, without limitation, "Accounts", "Chattel Paper",
"Deposit Accounts", "Document", "Electronic Chattel Paper", "Equipment",
"Financial Assets", "Fixture", "General Intangible", "Goods", "Instrument",
"Inventory", "Investment Property", "Letter-of-Credit Right", "Payment
Intangible", "Proceeds" and "Software".
(c) In addition, as used herein:
"Collateral" has the meaning assigned to such term in Section 3.
"Copyright Collateral" means all Copyrights, whether now owned or
hereafter acquired by the Obligor.
"Copyrights" means all copyrights, copyright registrations and
applications for copyright registrations, including, without limitation, all
renewals and extensions thereof, the right to recover for all past, present and
future infringements thereof, and all other rights of any kind whatsoever
accruing thereunder or pertaining thereto.
"Excluded Collateral" has the meaning assigned to such term in Section
3.
"Intellectual Property" means, collectively, all Copyright Collateral,
all Patent Collateral and all Trademark Collateral, together with (a) all
inventions, processes, production
methods, proprietary information, know-how and trade secrets; (b) all licenses
or user or other agreements granted to the Obligor with respect to any of the
foregoing, in each case whether now or hereafter owned or used including,
without limitation, the licenses or other agreements with respect to the
Copyright Collateral, the Patent Collateral or the Trademark Collateral; (c) all
information, customer lists, identification of suppliers, data, plans,
blueprints, specifications, designs, drawings, recorded knowledge, surveys,
engineering reports, test reports, manuals, materials standards, processing
standards, performance standards, catalogs, computer and automatic machinery
software and programs; (d) all field repair data, sales data and other
information relating to sales or service of products now or hereafter
manufactured; (e) all accounting information and all media in which or on which
any information or knowledge or data or records may be recorded or stored and
all computer programs used for the compilation or printout of such information,
knowledge, records or data; (f) all licenses, consents, permits, variances,
certifications and approvals of governmental agencies now or hereafter held by
the Obligor; and (g) all causes of action, claims and warranties now or
hereafter owned or acquired by the Obligor in respect of any of the items listed
above.
"Issuers" means, collectively, (a) the respective corporations,
partnerships or other entities identified on Annex 3 under the caption "Issuer"
and (b) any other entity that shall at any time be a subsidiary of the Obligor.
"Motor Vehicles" means motor vehicles, tractors, trailers and other
like property, whether or not the title thereto is governed by a certificate of
title or ownership.
"Patent Collateral" means all Patents, whether now owned or hereafter
acquired by the Obligor.
"Patents" means all patents and patent applications, including,
without limitation, the inventions and improvements described and claimed
therein together with the reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, all income, royalties, damages and
payments now or hereafter due and/or payable under and with respect thereto,
including, without limitation, damages and payments for past or future
infringements thereof, the right to ▇▇▇ for past, present and future
infringements thereof, and all rights corresponding thereto throughout the
world.
"Pledged Stock" has the meaning assigned to such term in Section 3(k).
"Secured Obligations" means, collectively, the principal of and
interest on the Senior Note and all other amounts whatsoever now or hereafter
from time to time owing by the Obligor to the Secured Party under the Senior
Note Purchase Agreement and the Senior Note, and all present and future
obligations of the Obligor under the Senior Note Purchase Agreement and the
other Loan Documents.
"Secured Party" means the Noteholder. For purposes hereof, it is
understood that any Secured Obligations to any Person arising under an agreement
entered into at a time such Person (or an affiliate thereof) is a Noteholder
shall continue to constitute Secured Obligations, notwithstanding that such
Person (or its affiliate) has ceased to be a Noteholder at the time a claim is
to be made in respect of such Secured Obligations.
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"Stock Collateral" has the meaning assigned to such term in Section
3(k)(ii).
"Trademark Collateral" means all Trademarks, whether now owned or
hereafter acquired by the Obligor. Notwithstanding the foregoing, the Trademark
Collateral does not and shall not include any Trademark that would be rendered
invalid, abandoned, void or unenforceable by reason of its being included as
part of the Trademark Collateral.
"Trademarks" means all trade names, trademarks and service marks,
logos, trademark and service ▇▇▇▇ registrations, and applications for trademark
and service ▇▇▇▇ registrations, including, without limitation, all renewals of
trademark and service ▇▇▇▇ registrations, all rights corresponding thereto
throughout the world, the right to recover for all past, present and future
infringements thereof, all other rights of any kind whatsoever accruing
thereunder or pertaining thereto, together, in each case, with the product lines
and goodwill of the business connected with the use of, and symbolized by, each
such trade name, trademark and service ▇▇▇▇.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York.
Section 2. Representations and Warranties. The Obligor represents and
warrants to the Secured Party that:
(a) Title and Priority. The Obligor is the sole beneficial owner of
the Collateral in which it purports to grant a security interest pursuant
to Section 3, and no Lien exists upon such Collateral, except for the
security interest in favor of the Secured Party created pursuant hereto.
The security interest created pursuant hereto constitutes a valid and
perfected security interest in the Collateral in which the Obligor purports
to grant a security interest pursuant to Section 3.
(b) Names, Etc. (i) The full and correct legal name, type of
organization, jurisdiction of organization, organizational ID number (if
applicable) and mailing address of the Obligor as of the date hereof is
correctly set forth in Annex 1. Annex 1 correctly specifies (i) the place
of business of the Obligor or, if the Obligor has more than one place of
business, the location of the chief executive office of the Obligor, and
(ii) each location where Goods of the Obligor are located (other than Motor
Vehicles constituting Equipment and Goods in transit).
(c) Changes in Circumstances. The Obligor has not (i) within the
period of four months prior to the date hereof, changed its location (as
defined in Section 9-307 of the UCC), (ii) except as specified in Annex 1,
heretofore changed its name, or (iii) except as specified in Annex 2,
heretofore become a "new debtor" (as defined in Section 9-102(a)(56) of the
UCC) with respect to a currently effective security agreement previously
entered into by any other Person.
(d) Pledged Stock. The Pledged Stock identified in Annex 3 is, and all
other Pledged Stock in which the Obligor shall hereafter grant a security
interest pursuant to Section 3 will be, duly authorized, validly existing,
fully paid and non-assessable and none of such Pledged Stock is or will be
subject to any contractual restriction, or any
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restriction under the charter or by-laws of the respective Issuer of such
Pledged Stock, upon the transfer of such Pledged Stock (except for any such
restriction contained herein). The Pledged Stock identified in Annex 3
constitutes all of the issued and outstanding shares of capital stock of
any class of the Issuers beneficially owned by the Obligor on the date
hereof (whether or not registered in the name of the Obligor) and Annex 3
correctly identifies, as at the date hereof, the respective Issuers of such
Pledged Stock, the respective class and par value of the shares
constituting such Pledged Stock and the respective number of shares (and
registered owners thereof) represented by each such certificate.
(e) Intellectual Property. Except pursuant to licenses and other user
agreements entered into by the Obligor in the ordinary course of business
that are listed in Annex 4, the Obligor owns and possesses the right to
use, and has done nothing to authorize or enable any other Person to use,
any Copyright, Patent or Trademark, and all registrations are valid and in
full force and effect; and except as may be set forth in Annex 4, the
Obligor owns and possesses the right to use all Copyrights, Patents and
Trademarks. Annex 4 sets forth a complete and correct list of all licenses
and other user agreements included in the Intellectual Property on the date
hereof. To the Obligor's knowledge, (i) except as set forth in Annex 4,
there is no violation by others of any right of the Obligor with respect to
any Copyright, Patent or Trademark, and (ii) the Obligor is not infringing
in any respect upon any Copyright, Patent or Trademark of any other Person;
and no proceedings have been instituted or are pending against the Obligor
or, to the Obligor's knowledge, threatened, and no claim against the
Obligor has been received by the Obligor, alleging any such violation,
except as may be set forth in Annex 4. The Obligor does not own any
Trademarks registered in the United States of America or Canada to which
the last sentence of the definition of Trademark Collateral applies.
(f) Fair Labor Standards Act. Any Goods now or hereafter produced by
the Obligor or any of its subsidiaries included in the Collateral have been
and will be produced in compliance with the requirements of the Fair Labor
Standards Act, as amended.
Section 3. Collateral. As collateral security for the prompt payment in
full when due (whether at stated maturity, by acceleration or otherwise) of the
Secured Obligations, whether now existing or hereafter from time to time
arising, the Obligor hereby grants to the Secured Party as hereinafter provided,
a security interest in all of the Obligor's right, title and interest in, to and
under the following property, assets and revenues, whether now owned by the
Obligor or hereafter acquired and whether now existing or hereafter coming into
existence (all of the property, assets and revenues described in this Section 3,
except for the Excluded Collateral, being collectively referred to herein as the
"Collateral"):
(a) all Accounts;
(b) all Deposit Accounts;
(c) all Instruments;
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(d) all Documents;
(e) all Chattel Paper (whether tangible or electronic);
(f) all Inventory;
(g) all Equipment;
(h) all insurance claims and proceeds;
(i) all Goods not covered by the preceding clauses of this Section 3;
(j) all Letter-of-Credit Rights;
(k) the shares of stock of each Issuer identified in Annex 3 and all
other shares of capital stock of whatever class of each Issuer, now or
hereafter owned by the Obligor, and all certificates evidencing the same
(collectively, the "Pledged Stock"), together with, in each case:
(i) all shares, securities, moneys or property representing
a dividend on any of the Pledged Stock, or representing a
distribution or return of capital upon or in respect of the
Pledged Stock, or resulting from a split-up, revision,
reclassification or other like change of the Pledged Stock or
otherwise received in exchange therefor, and any subscription
warrants, rights or options issued to the holders of, or
otherwise in respect of, the Pledged Stock, and
(ii) without affecting the obligations of the Obligor under
any provision prohibiting such action hereunder, in the event of
any consolidation or merger in which an Issuer is not the
surviving corporation, all shares of each class of the capital
stock of the successor corporation (unless such successor
corporation is the Obligor itself) formed by or resulting from
such consolidation or merger (the Pledged Stock, together with
all other certificates, shares, securities, properties or moneys
as may from time to time be pledged hereunder pursuant to this
clause (ii) and clause (i) above being herein collectively called
the "Stock Collateral");
(l) all Investment Property and Financial Assets not covered by clause
(k) of this Section 3;
(m) all Intellectual Property;
(n) all Payment Intangibles, Software and all other General
Intangibles whatsoever not covered by the preceding clauses of this Section
3;
(o) all commercial tort claims, as defined in Section 9-102(a)(13) of
the UCC;
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(p) all other tangible and intangible personal property whatsoever of
the Obligor; and
(q) all Proceeds; products, offspring, accessions, rents, profits,
income, benefits, substitutions and replacements of and to any of the
Collateral and, to the extent related to any Collateral, all books,
correspondence, credit files, records, invoices and other papers (including
without limitation all tapes, cards, computer runs and other papers and
documents in the possession or under the control of the Obligor or any
computer bureau or service company from time to time acting for the
Obligor).
Notwithstanding anything in this Agreement to the contrary, in no
event shall the Collateral include, and no Obligor shall be deemed to have
granted a security interest in:
(a) any helicopters whether now owned or hereafter acquired by the
Obligor that are financed by an unrelated third-party (collectively, "Excluded
Collateral"); and
(b) any right under any franchise, lease, license or other contract or
agreement constituting a General Intangible, but only to the extent that the
granting of a security interest therein or an assignment thereof would violate
any applicable law or any enforceable provision of such lease, license or other
contract or agreement, as applicable, provided that to the extent such security
interest at any time hereafter shall no longer be prohibited by law, and/or
immediately upon such provision no longer being enforceable, as the case may be,
the Collateral shall automatically and without any further action include, and
the Obligor shall be deemed to have granted automatically and without any
further action a security interest in, such right as if such law had never
existed or such provision had never been enforceable, as the case may be.
If so requested in writing by the Noteholder, the Collateral shall
also include Fixtures of the Obligor, except to the extent that subjecting such
Fixtures to the Lien hereof would violate the Obligor's obligations to a Person
having an interest in the real property to which the Fixture is affixed. The
Obligor will make reasonable efforts to obtain any necessary consents to the
Lien hereof from all such Persons. The parties agree that if any helicopters are
added to, or released from, the Excluded Collateral, the parties shall take all
such actions necessary, including filing the appropriate financing statements,
to reflect such changes.
Section 4. Further Assurances: Remedies. In furtherance of the grant of the
pledge and security interest pursuant to Section 3, the Obligor hereby agrees
with the Secured Party as follows:
4.01 Delivery and Other Perfection. The Obligor shall:
(a) deliver to the Noteholder any and all Instruments constituting
part of the Collateral in which the Obligor purports to grant a security
interest hereunder, endorsed and/or accompanied by such instruments of
assignment and transfer in such form and substance as the Noteholder may
request; provided, that so long as no Event of Default shall have occurred
and be continuing, the Obligor may retain for collection in the ordinary
course any Instruments received by the Obligor in the ordinary course of
its business and the Noteholder shall, promptly upon request of the
Obligor, make appropriate arrangements for making any Instrument pledged by
the Obligor available to
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the Obligor for purposes of presentation, collection or renewal (any such
arrangement to be effected, to the extent deemed appropriate by the
Noteholder, against trust receipt or like document);
(b) give, execute, deliver, file, record, authorize or obtain all such
financing statements, notices, instruments, documents, agreements or
consents or other papers as may be necessary or desirable in the judgment
of the Noteholder to create, preserve, perfect or validate the security
interest granted pursuant hereto or to enable the Noteholder to exercise
and enforce its rights hereunder with respect to such pledge and security
interest, including, without limitation, causing any or all of the Stock
Collateral to be transferred of record into the name of the Noteholder or
its nominee (and the Noteholder agrees that if any Stock Collateral is
transferred into its name or the name of its nominee, the Noteholder will
thereafter give to the Obligor copies of any notices and communications
received by it with respect to the Stock Collateral pledged by the Obligor
hereunder), provided that notices to account debtors in respect of any
Accounts, Chattel Paper or General Intangibles and to obligors on
Instruments shall be subject to the provisions of clause (c) below;
(c) upon the occurrence and during the continuance of any Event of
Default, upon request of the Noteholder, promptly notify (and the Obligor
hereby authorizes the Noteholder so to notify) each account debtor in
respect of any Accounts, Chattel Paper, Instruments or General Intangibles
of the Obligor that constitute Collateral that such Collateral has been
assigned to the Noteholder hereunder, and that any payments due or to
become due in respect thereof are to be made directly to the Noteholder;
and
(d) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise ▇▇▇▇ such books and records in such
manner as the Noteholder may require in order to reflect the security
interests granted by this Agreement.
4.02 Other Financing Statements and Liens. Except as otherwise contemplated
by the Loan Documents, without the prior written consent of the Noteholder, the
Obligor shall not (a) file or suffer to be on file, or authorize or permit to be
filed or to be on file, in any jurisdiction, any financing statement or like
instrument with respect to any of the Collateral in which the Noteholder is not
named as the sole secured party, or (b) cause or permit any Person other than
the Noteholder to have "control" (as defined in Section 9-105, 9-106 or 9-107 of
the UCC) of any Electronic Chattel Paper, Investment Property or
Letter-of-Credit Right constituting part of the Collateral.
4.03 Preservation of Rights. The Secured Party shall not be required to
take steps necessary to preserve any rights against prior parties to any of the
Collateral.
4.04 Special Provisions Relating to Certain Collateral.
(a) Stock Collateral.
(1) The Obligor will cause the Stock Collateral to constitute at
all times 100% of the total number of shares of each class of capital
stock of each Issuer then outstanding.
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(2) Subject to Section 4.04(a)(4) below, if any of the shares,
securities, moneys or property required to be pledged by the Obligor
under Section 3 are received by the Obligor, the Obligor shall
forthwith either (x) transfer and deliver to the Noteholder such
shares or securities so received by the Obligor (together with the
certificates for any such shares and securities duly endorsed in blank
or accompanied by undated stock powers duly executed in blank), all of
which thereafter shall be held by the Noteholder, pursuant to the
terms of this Agreement, as part of the Collateral or (y) take such
other action as the Noteholder shall deem necessary or appropriate to
duly record the Lien created hereunder in such shares or securities,
moneys or property in said Section 3.
(3) So long as no Event of Default shall have occurred and be
continuing, the Obligor shall have the right to exercise all voting,
consensual and other powers of ownership pertaining to the Stock
Collateral for all purposes not inconsistent with the terms of this
Agreement, the Senior Note Purchase Agreement or any other instrument
or agreement referred to herein or therein, provided that the Obligor
agrees that it will not vote the Stock Collateral in any manner that
is inconsistent with the terms of this Agreement, the Senior Note
Purchase Agreement or any such other instrument or agreement; and the
Noteholder shall execute and deliver to the Obligor or cause to be
executed and delivered to the Obligor all such proxies, powers of
attorney, dividend and other orders, and all such instruments, without
recourse, as the Obligor may reasonably request for the purpose of
enabling the Obligor to exercise the rights and powers that it is
entitled to exercise pursuant to this Section 4.04(a)(3).
(4) Unless and until an Event of Default has occurred and is
continuing, the Obligor shall be entitled to receive and retain any
and all dividends and distributions on the Stock Collateral.
(5) If any Event of Default shall have occurred, then so long as
such Event of Default shall continue, and whether or not the
Noteholder exercises any available right to declare any Secured
Obligation due and payable or seek or pursue any other relief or
remedy available to it under applicable law or under this Agreement,
the Senior Note Purchase Agreement or any other agreement relating to
such Secured Obligation, all dividends and other distributions on the
Stock Collateral shall be paid directly to the Noteholder and retained
by it as part of the Stock Collateral, subject to the terms of this
Agreement, and, if the Noteholder shall so request, the Obligor agrees
to execute and deliver to the Noteholder appropriate additional
dividend, distribution and other orders and documents to that end,
provided that if such Event of Default is cured, any such dividend or
distribution theretofore paid to the Noteholder shall, upon request of
the Obligor (except to the extent theretofore applied to the Secured
Obligations), be returned by the Noteholder to the Obligor.
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(b) Intellectual Property.
(1) For the purpose of enabling the Noteholder to exercise rights
and remedies under Section 4.05 at such time as the Noteholder shall
be lawfully entitled to exercise such rights and remedies, and for no
other purpose, the Obligor hereby grants to the Noteholder, to the
extent assignable, an irrevocable, non-exclusive license (exercisable
without payment of royalty or other compensation to the Obligor) to
use, assign, license or sublicense any of the Intellectual Property
now owned or hereafter acquired by the Obligor, wherever the same may
be located, including in such license reasonable access to all media
in which any of the licensed items may be recorded or stored and to
all computer programs used for the compilation or printout thereof.
(2) Notwithstanding anything contained herein to the contrary, so
long as no Event of Default shall have occurred and be continuing, the
Obligor will be permitted to exploit, use, enjoy, protect, license,
sublicense, assign, sell, dispose of or take other actions with
respect to the Intellectual Property in the ordinary course of the
business of the Obligor. In furtherance of the foregoing, unless an
Event of Default shall have occurred and be continuing the Noteholder
shall from time to time, upon the request of the Obligor, execute and
deliver any instruments, certificates or other documents, in the form
so requested, that the Obligor shall have certified are appropriate
(in its judgment) to allow it to take any action permitted above
(including relinquishment of the license provided pursuant to clause
(1) immediately above as to any specific Intellectual Property).
Further, upon the payment in full of all of the Secured Obligations or
earlier expiration of this Agreement or release of the Collateral, the
Noteholder shall grant back to the Obligor the license granted
pursuant to clause (1) immediately above. The exercise of rights and
remedies under Section 4.05 by the Noteholder shall not terminate the
rights of the holders of any licenses or sublicenses theretofore
granted by the Obligor in accordance with the first sentence of this
clause (2).
(3) The Obligor will furnish to the Noteholder from time to time
(but, unless an Event of Default shall have occurred and be
continuing, no more frequently than quarterly) statements and
schedules further identifying and describing the Copyright Collateral,
the Patent Collateral and the Trademark Collateral, respectively, and
such other reports in connection with the Copyright Collateral, the
Patent Collateral and the Trademark Collateral as the Noteholder may
request, all in reasonable detail.
4.05 Events of Default, Etc. During the period, if any, during which an
Event of Default shall have occurred and be continuing:
(a) the Obligor shall, at the request of the Noteholder, assemble the
Collateral owned by it at such place or places, reasonably convenient to
both Noteholder and the Obligor, designated in the request;
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(b) the Noteholder may make any compromise or settlement deemed
desirable with respect to any of the Collateral and may extend the time of
payment, arrange for payment in installments, or otherwise modify the terms
of, any of the Collateral;
(c) the Noteholder shall have all of the rights and remedies with
respect to the Collateral of a secured party under the UCC (whether or not
such is in effect in the jurisdiction where the rights and remedies are
asserted) and such additional rights and remedies to which a secured party
is entitled under the laws in effect in any jurisdiction where any rights
and remedies hereunder may be asserted, including, without limitation, the
right, to the fullest extent permitted by applicable law, to exercise all
voting, consensual and other powers of ownership pertaining to the
Collateral as if the Noteholder was the sole and absolute owner thereof
(and the Obligor agrees to take all such action as may be appropriate to
give effect to such right);
(d) the Noteholder in its discretion may, in its name or in the name
of the Obligor or otherwise, demand, ▇▇▇ for, collect or receive any money
or property at any time payable or receivable on account of or in exchange
for any of the Collateral, but shall be under no obligation to do so; and
(e) the Noteholder may, with respect to the Collateral or any part
thereof that shall then be or shall thereafter come into the possession,
custody or control of the Noteholder or any of its agents, sell, lease,
assign or otherwise dispose of all or any part of such Collateral, at such
place or places as the Noteholder deems best, and for cash or for credit or
for future delivery (without thereby assuming any credit risk), at public
or private sale, without demand of performance or notice of intention to
effect any such disposition or of the time or place thereof (except such
notice as is required by applicable statute and cannot be waived, the
parties agreeing that ten (10) days prior notice is reasonable), and the
Secured Party or anyone else may be the purchaser, lessee, assignee or
recipient of any or all of the Collateral so disposed of at any public sale
(or, to the extent permitted by law, at any private sale) and thereafter
hold the same absolutely, free from any claim or right of whatsoever kind,
including any right or equity of redemption (statutory or otherwise), of
the Obligor, any such demand, notice and right or equity being hereby
expressly waived and released. In the event of any sale, assignment, or
other disposition of any of the Trademark Collateral, the goodwill
connected with and symbolized by the Trademark Collateral subject to such
disposition shall be included, and the Obligor shall supply to the
Noteholder or its designee, for inclusion in such sale, assignment or other
disposition, all Intellectual Property relating to such Trademark
Collateral. The Noteholder may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time
by announcement at the time and place fixed for the sale, and such sale may
be made at any time or place to which the sale may be so adjourned.
The Proceeds of each collection, sale or other disposition under this
Section 4.05, including by virtue of the exercise of the license granted to the
Noteholder in Section 4.04(b), shall be applied in the manner specified in
Section 4.09. The Obligor recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Noteholder may be compelled, with respect to any sale of
all or any part of
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the Collateral, to limit purchasers to those who will agree, among other things,
to acquire the Collateral for their own account, for investment and not with a
view to the distribution or resale thereof. The Obligor acknowledges that any
such private sales may be at prices and on terms less favorable to the
Noteholder than those obtainable through a public sale without such
restrictions, and, notwithstanding such circumstances, agrees that any such
private sale shall be deemed to have been made in a commercially reasonable
manner and that the Noteholder shall have no obligation to engage in public
sales and no obligation to delay the sale of any Collateral for the period of
time necessary to permit the respective Issuer or issuer thereof to register it
for public sale.
4.06 Deficiency. If the proceeds of sale, collection or other realization
of or upon the Collateral pursuant to Section 4.05 are insufficient to cover the
costs and expenses of such realization and the payment in full of the Secured
Obligations, the Obligor shall remain liable for any deficiency.
4.07 Locations; Names. Without at least thirty (30) days' prior written
notice to the Noteholder, the Obligor shall not change its location (as defined
in Section 9-307 of the UCC) or change its name from the name shown as its
current legal name on Annex 1, and the Obligor shall abide with Section 8.14 of
the Senior Note Purchase Agreement in connection therewith.
4.08 Private Sale. The Secured Party shall not incur any liability as a
result of the sale of the Collateral, or any part thereof, at any private sale
pursuant to Section 4.05 conducted in a commercially reasonable manner. The
Obligor hereby waives any claims against the Secured Party arising by reason of
the fact that the price at which the Collateral may have been sold at such a
private sale was less than the price that might have been obtained at a public
sale or was less than the aggregate amount of the Secured Obligations, even if
the Noteholder accepts the first offer received and does not offer the
Collateral to more than one offeree. The Noteholder's sole duty with respect to
the custody, safekeeping and physical preservation of the Collateral in its
possession, under Section 9-207 of the UCC or otherwise, shall be to deal with
it in the same manner as the Noteholder deals with similar property for its own
account. Neither the Noteholder nor any of its directors, officers, employees,
equity holders or agents shall be liable for failure to demand, collect or
realize upon all or any part of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of the Obligor or otherwise.
4.09 Application of Proceeds. Except as otherwise herein expressly provided
and except as provided below in this Section 4.09, the Proceeds of any
collection, sale or other realization of all or any part of the Collateral
pursuant hereto, and any other cash at the time held by the Noteholder under
this Section 4, shall be applied by the Noteholder:
First, to the payment of the costs and expenses of such collection,
sale or other realization, including out-of-pocket costs and expenses of
the Noteholder and the fees and expenses of its agents and counsel, and all
expenses incurred and advances made by the Noteholder in connection
therewith;
Next, to the payment in full of the Secured Obligations, in each case
equally and ratably in accordance with the respective amounts thereof then
due and owing or as the Noteholder holding the same may otherwise agree;
and
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Finally, to the payment to the Obligor, or its respective successors
or assigns, or as a court of competent jurisdiction may direct, of any
surplus then remaining.
4.10 Attorney-in-Fact. Without limiting any rights or powers granted by
this Agreement to the Noteholder, while no Event of Default has occurred and is
continuing, upon the occurrence and during the continuance of any Event of
Default, the Noteholder is hereby appointed the attorney-in-fact of the Obligor
for the purpose of carrying out the provisions of this Section 4 and taking any
action and executing any instruments that the Noteholder may deem necessary or
advisable to accomplish the purposes hereof, which appointment as
attorney-in-fact is irrevocable and coupled with an interest. Without limiting
the generality of the foregoing, so long as the Noteholder shall be entitled
under this Section 4 to make collections in respect of the Collateral, the
Noteholder shall have the right and power to receive, endorse and collect all
checks made payable to the order of the Obligor representing any dividend,
payment or other distribution in respect of the Collateral or any part thereof
and to give full discharge for the same.
4.11 Perfection. Prior to or concurrently with the execution and delivery
of this Agreement, the Obligor shall (i) file such financing statements and
other documents in such offices as the Noteholder may request to perfect the
security interests granted by Section 3 of this Agreement, (ii) deliver to the
Noteholder all certificates identified in Annex 3, accompanied by undated stock
powers duly executed in blank, (iii) execute and deliver such account control
agreements, including, without limitation, the Control Agreement, as the
Noteholder may request, and (iv) execute and deliver such short form assignments
or security agreements relating to Collateral consisting of the Intellectual
Property as the Noteholder may request. Without limiting the foregoing, the
Obligor consents that UCC financing statements may be filed describing the
Collateral as "all assets" or, "all personal property" of the Obligor (provided,
that no such description shall be deemed to modify the description of Collateral
set forth in Section 3).
4.12 Termination. When all Secured Obligations shall have been paid in full
this Agreement shall terminate, and the Noteholder shall forthwith cause to be
assigned, transferred and delivered, against receipt but without any recourse,
warranty or representation whatsoever, any remaining Collateral and money
received in respect thereof, to or on the order of the Obligor and to be
released and canceled all licenses and rights referred to in Section 4.04(b).
The Noteholder shall also execute and deliver to the Obligor upon such
termination such UCC termination statements and such other documentation as
shall be reasonably requested by the Obligor to effect the termination and
release of the Liens on the Collateral.
4.13 Further Assurances. The Obligor agrees that, from time to time upon
the written request of the Noteholder, the Obligor will execute and deliver such
further documents and do such other acts and things as the Noteholder may
request in order to fully to effect the purposes and intent of this Agreement.
Section 5. Covenants. The Obligor covenants and agrees with the Noteholder
that, from and after the date of this Security Agreement until the Obligations
are paid in full:
5.01 Indemnification. The Obligor agrees to pay, and to hold the Noteholder
harmless from, any and all liabilities, reasonable costs and expenses
(including, without limitation, legal
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fees and expenses) (i) with respect to, or resulting from, any delay in paying,
any and all excise, sales or other taxes which may be payable or determined to
be payable with respect to any of the Collateral, (ii) with respect to, or
resulting from, any delay in complying with any law, rule, regulation or order
of any court, arbitrator or governmental entity, jurisdiction or authority
applicable to any of the Collateral or (iii) in connection with any of the
transactions contemplated by this Agreement. In any suit, proceeding or action
brought by the Noteholder under any Account for any sum owing thereunder, or to
enforce any provisions of any Account, the Obligor will save, indemnify and keep
the Noteholder harmless from and against all expense, loss or damage suffered by
reason of any defense, setoff, counterclaim, recoupment or reduction or
liability whatsoever of the account debtor or obligor thereunder, arising out of
a breach by the Obligor of any obligation thereunder or arising out of any other
agreement, indebtedness or liability at any time owing to or in favor of such
account debtor or obligor or its successors from the Obligor. The foregoing
indemnification shall not apply to any liabilities, costs or expenses resulting
directly from the gross negligence, actual willful misconduct or bad faith of
the Noteholder.
5.02 Maintenance of Records. The Obligor will keep and maintain at its own
cost and expense, satisfactory and complete records of the Collateral, including
without limitation, a record of all payments received and all credits granted
with respect to the Accounts. For the Noteholder's further security, upon the
occurrence and during the continuance of an Event of Default, the Obligor shall
turn over any such books and records to the Noteholder or to its representatives
during normal business hours at the request of the Noteholder.
5.03 Right of Inspection. The Noteholder shall at all times have full and
free access during normal business hours, and upon prior notice, to all books of
record and account of the Obligor, and the Noteholder or its representatives may
examine the same, take extracts therefrom and make photocopies thereof, and the
Obligor agrees to render to the Noteholder, at the Obligor's cost and expense,
such clerical and other assistance as may be requested with regard thereto. The
Noteholder and its representatives shall at all times also have the right during
normal business hours, and upon prior notice, to enter into and upon any
premises where any of the Inventory or Equipment is located for the purpose of
inspecting the same or otherwise protecting their interests therein.
5.04 Compliance with Laws, etc. The Obligor will comply in all material
respects with all laws, rules, regulations and orders of any court, arbitrator
or governmental entity, jurisdiction or authority applicable to the Collateral
or any part thereof or to the operation of the Obligor's business; provided,
however, that the Obligor may contest any such law, rule, regulation or order in
any reasonable manner which shall not, in the sole opinion of the Noteholder,
adversely affect the Noteholder's rights or the priority of its Lien.
5.05 Payment of Obligations. The Obligor will pay promptly when due all
taxes, assessments and governmental charges or levies imposed upon the
Collateral or in respect of its income or profits therefrom, as well as all
claims of any kind (including, without limitation, claims for labor, materials
and supplies) against or with respect to the Collateral, except that no such
charge need be paid if (i) the validity thereof is being contested in good faith
by appropriate proceedings, (ii) such proceedings do not involve any material
danger of the sale, forfeiture or
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loss of any of the Collateral or any interest therein and (iii) such charge is
adequately reserved against on the Obligor's books in accordance with GAAP.
5.06 Limitations on Dispositions of Collateral. The Obligor will not sell,
transfer, lease or otherwise dispose of any of the Collateral, or attempt, offer
or contract to do so, except in the ordinary course of business and except for
sales of Collateral permitted by this Agreement.
5.07 Maintenance of Equipment. The Obligor will maintain each item of
Equipment in good operating condition, ordinary wear and tear and immaterial
impairments of value and damage by the elements excepted, and will provide all
maintenance, service and repairs necessary for such purpose.
5.08 Maintenance of Insurance. The Obligor will maintain, with financially
sound and reputable companies, insurance policies (i) insuring the Inventory,
Equipment and Motor Vehicles against loss by fire, explosion, theft and such
other casualties as may be satisfactory to the Noteholder and (ii) insuring the
Obligor and the Noteholder against liability for personal injury and property
damage relating to such Inventory, Equipment and Motor Vehicles, such policies
to be in such form and amounts and having such coverage as shall be reasonably
satisfactory to the Noteholder, with losses payable to the Obligor and the
Noteholder as their respective interests may appear. All such insurance shall
(i) provide that no termination, cancellation, material reduction in amount or
material change in coverage thereof shall be effective until at least thirty
(30) days after receipt by the Noteholder of written notice thereof, (ii) name
the Noteholder as an insured and (iii) be reasonably satisfactory in all other
respects to the Noteholder. From time to time upon the request of the
Noteholder, the Obligor shall deliver to the Noteholder insurance policies,
certificates or binders as the Noteholder may from time to time request.
5.09 Further Identification of Collateral. The Obligor will furnish to the
Noteholder from time to time statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as the Noteholder may request, all in reasonable detail.
Section 6. Miscellaneous.
6.01 Notices. Notices hereunder shall be deemed to have been received (i)
upon delivery, if delivered in person, or (ii) on the next Business Day after
dispatch, if sent by nationally recognized, overnight courier. Notices sent by
facsimile transmission shall be deemed to have been received on the date sent if
a Business Day (or, if not sent on a Business Day, on the next Business Day
after the date sent by telecopy), provided that the sender has a confirmed
receipt. Notices sent by registered or certified mail, postage prepaid shall be
deemed to have been received on the fifth Business Day following the mailing
thereof. The addresses for such communications shall be (i) with respect to the
Obligor, addressed to Canadian Traffic Network ULC, Atria III, ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇,
Facsimile No.: n/a, with a copy to Global Traffic Canada, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇,
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇ and (ii) with respect to the Secured Party,
addressed to Metro Networks Communications, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
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Attention: EVP, Business Affairs and Business Development, Facsimile No: (212)
641-2154, with a copy to the General Counsel, Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇, or
to such other address or facsimile number as any such party shall designate in
writing to the other.
6.02 No Waiver. No failure on the part of the Secured Party to exercise,
and no course of dealing with respect to, and no delay in exercising, any right,
power or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise by the Secured Party of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies herein are cumulative and are not
exclusive of any remedies provided by law.
6.03 Amendments, Etc. The terms of this Agreement may be waived, altered or
amended only by an instrument in writing duly executed by the Obligor and the
Secured Party, and any such amendment or waiver shall be binding upon them.
6.04 Expenses. The Obligor agrees to reimburse the Secured Party for all
out-of-pocket costs and expenses incurred by it (including, without limitation,
the fees and expenses of legal counsel) in connection with (i) any default and
any enforcement or collection proceeding resulting from an Event of Default,
including, without limitation, all manner of participation in or other
involvement with (w) performance by the Noteholder of any obligations of the
Obligor in respect of the Collateral that the Obligor has failed or refused to
perform, (x) bankruptcy, insolvency, receivership, foreclosure, winding up or
liquidation proceedings, or any actual or attempted sale, or any exchange,
enforcement, collection, compromise or settlement in respect of any of the
Collateral, and for the care of the Collateral and defending or asserting rights
and claims of the Noteholder in respect thereof, by litigation or otherwise,
including expenses of insurance, (y) judicial or regulatory proceedings and (z)
workout, restructuring or other negotiations or proceedings (whether or not the
workout, restructuring or transaction contemplated thereby is consummated) and
(ii) the enforcement of this Section 6.04, and all such costs and expenses shall
be Secured Obligations entitled to the benefits of the collateral security
provided pursuant to Section 3.
6.05 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the respective successors and assigns of the Obligor and the
Secured Party (provided, however, that the Obligor shall not assign or transfer
its rights or obligations hereunder without the prior written consent of the
Noteholder).
6.06 Counterparts. This Agreement and any amendments, waivers, consents or
supplements may be executed in counterparts and by different parties hereto in
separate counterparts, including by facsimile, each of which when so executed
and delivered shall be deemed an original, but all of which together shall
constitute one and the same instrument.
6.07 Governing Law. This Agreement shall be governed by, and shall be
construed and enforced in accordance with, the laws of State of New York,
without regard to the principles of conflicts of laws.
6.08 Captions. The captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
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6.09 Agents and Attorneys-in-Fact. The Noteholder may employ agents and
attorneys-in-fact in connection herewith and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
in good faith.
6.10 Severability. If any provision hereof is invalid and unenforceable in
any jurisdiction, then, to the fullest extent permitted by law, (a) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in favor of the Secured Party in order to carry out
the intentions of the parties hereto as nearly as may be possible and (b) the
invalidity or unenforceability of any provision hereof in any jurisdiction shall
not affect the validity or enforceability of such provision in any other
jurisdiction.
[Remainder of page is intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed and delivered as of the day and year first above
written.
CANADIAN TRAFFIC NETWORK ULC,
an Alberta business corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇ III
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇ III
----------------------------------
Title: Director
---------------------------------
METRO NETWORKS COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: EVP
---------------------------------
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ANNEX 1
FILING DETAILS
JURISDICTION
TYPE OF OF ORGANIZATIONAL PLACES OF BUSINESS & FORMER LEGAL NAME
LEGAL NAME ORGANIZATION ORGANIZATION ID NUMBER MAILING ADDRESS LOCATIONS OF GOODS (IF ANY)
---------------- ------------ ------------ -------------- --------------- -------------------- -----------------
Canadian Traffic Business Alberta, 2011800097 Atria III See mailing address n/a
Network ULC organization Canada ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
ANNEX 2
"NEW DEBTOR" EVENTS
Description of Event Date of Event
-------------------- -------------
N/A
ANNEX 3
PLEDGED STOCK
REGISTERED CLASS AND NUMBER
ISSUER CERTIFICATE NO. OWNER/OBLIGOR PAR VALUE OF SHARES
------ --------------- ------------- --------- ---------
N/A
ANNEX 4
LIST OF INTELLECTUAL PROPERTY
CONTRACTS, LICENSES AND OTHER AGREEMENTS
N/A