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<PAGE>
EXHIBIT 10.50
EXHIBIT A
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GUARANTEE AND COLLATERAL AGREEMENT
made by
CLEARWIRE CORPORATION
and certain of its Subsidiaries
in favor of
MORGAN STANLEY SENIOR FUNDING, INC.,
as Administrative Agent
Dated as of August 21, 2006
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TABLE OF CONTENTS
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Page
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SECTION 1. DEFINED
TERMS................................................ 1
1.1 Definitions..................................................
1
1.2 Other Definitional Provisions................................
5
SECTION 2.
GUARANTEE.................................................... 6
2.1 Guarantee....................................................
6
2.2 Right of Contribution........................................
6
2.3 No Subrogation...............................................
7
2.4 Amendments, etc. with respect to the Borrower Obligations....
7
2.5 Guarantee Absolute and Unconditional.........................
7
2.6 Reinstatement................................................
8
2.7 Payments.....................................................
8
SECTION 3. GRANT OF SECURITY
INTEREST................................... 8
SECTION 4. REPRESENTATIONS AND
WARRANTIES............................... 9
4.1 Representations in Credit Agreement..........................
9
4.2 Title; No Other Liens........................................
9
4.3 Perfected First Priority Liens...............................
10
4.4 Jurisdiction of Organization; Chief Executive Office.........
10
4.5 Investment Property..........................................
10
4.6 Receivables..................................................
10
4.7 Intellectual Property........................................
10
SECTION 5.
COVENANTS................................................... 11
5.1 Covenants in Credit Agreement................................
11
5.2 Maintenance of Insurance.....................................
11
5.3 Payment of Obligations.......................................
11
5.4 Maintenance of Perfected Security Interest; Further
Documentation................................................
12
5.5 Changes in Name, etc.........................................
12
5.6 Notices......................................................
12
5.7 Investment Property..........................................
12
5.8 Receivables..................................................
14
5.9 Intellectual Property........................................
14
SECTION 6. REMEDIAL
PROVISIONS.......................................... 15
6.1 Certain Matters Relating to Receivables......................
15
6.2 Communications with Obligors; Grantors Remain Liable.........
16
6.3 Pledged Stock................................................
16
6.4 Proceeds to be Turned Over To Administrative Agent...........
17
6.5 Application of Proceeds......................................
17
6.6 Code and Other Remedies......................................
18
6.7 Registration Rights..........................................
18
6.8 Deficiency...................................................
19
SECTION 7. THE ADMINISTRATIVE
AGENT..................................... 19
7.1 Administrative Agent's Appointment as Attorney-in-Fact, etc..
19
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7.2 Duty of Administrative Agent.................................
21
7.3 Execution of Financing Statements............................
21
7.4 Authority of Administrative Agent............................
21
SECTION 8.
MISCELLANEOUS................................................
22
8.1 Amendments in Writing........................................
22
8.2 Notices......................................................
22
8.3 No Waiver by Course of Conduct; Cumulative Remedies..........
22
8.4 Enforcement Expenses; Indemnification........................
22
8.5 FCC Compliance...............................................
22
8.6 Successors and Assigns.......................................
24
8.7 Set-Off......................................................
24
8.8 Counterparts.................................................
24
8.9 Severability.................................................
24
8.10 Section Headings.............................................
25
8.11 Integration..................................................
25
8.12 GOVERNING LAW................................................
25
8.13 Submission To Jurisdiction; Waivers..........................
25
8.14 Acknowledgements.............................................
25
8.15 Additional Guarantors/Grantors...............................
26
8.16 Releases.....................................................
26
8.17 WAIVER OF JURY TRIAL.........................................
26
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SCHEDULES
Schedule 1 Notice Addresses
Schedule 2 Pledged Stock
Schedule 3 Perfection Matters
Schedule 4 Jurisdictions of Organization and Chief Executive
Offices
Schedule 5 Intellectual Property
ANNEXES
Annex I Acknowledgment and Consent
Annex II Assumption Agreement
ii
<PAGE>
GUARANTEE AND COLLATERAL AGREEMENT
GUARANTEE AND COLLATERAL AGREEMENT, dated as of August 21, 2006,
made
by Clearwire Corporation (the "Borrower") and each of the other
signatories
hereto (together with any other entity that may become a party
hereto as
provided herein, the "Guarantors"), in favor of Morgan Stanley
Senior Funding,
Inc., as Administrative Agent (in such capacity, the
"Administrative Agent") for
the banks and other financial institutions or entities (the
"Lenders") from time
to time parties to the Credit Agreement, dated as of August 21,
2006 (as
amended, restated, supplemented or otherwise modified from time to
time, the
"Credit Agreement"), among the Borrower, the Lenders and the
Administrative
Agent.
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally
agreed to make Loans to the Borrower upon the terms and subject to
the
conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of
companies
that includes each Guarantor;
WHEREAS, the proceeds of the Loans under the Credit Agreement will
be
used in part to enable the Borrower to make valuable transfers to
one or more of
the Guarantors in connection with the operation of their respective
businesses;
WHEREAS, the Borrower and the Guarantors are engaged in related
businesses, and each Guarantor will derive substantial direct and
indirect
benefit from the making of the Loans under the Credit Agreement;
and
WHEREAS, it is a condition precedent to the obligation of the
Lenders
to make their respective Loans to the Borrower under the Credit
Agreement that
the Borrower and the Guarantors shall have executed and delivered
this Agreement
to the Administrative Agent for the ratable benefit of the Secured
Parties;
NOW, THEREFORE, in consideration of the premises and to induce
the
Administrative Agent and the Lenders to enter into the Credit
Agreement and to
induce the Lenders to make their respective Loans to the Borrower
thereunder,
each of the Borrower and each Guarantor hereby agrees with the
Administrative
Agent, for the ratable benefit of the Secured Parties, as
follows:
SECTION 1. DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms defined
in the
Credit Agreement and used herein shall have the meanings given to
them in the
Credit Agreement, and the following terms are used herein as
defined in the New
York UCC: Accounts, Certificated Security, Chattel Paper,
Documents, Equipment,
Farm Products, General Intangibles, Goods, Instruments,
Inventory,
Letter-of-Credit Rights, Payment Intangibles and Supporting
Obligations.
(b) The following terms shall have the following meanings:
"Agreement": this Guarantee and Collateral Agreement, as the same
may
be amended, supplemented or otherwise modified from time to
time.
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2
"Borrower Credit Agreement Obligations": the collective reference
to
the unpaid principal of and interest on the Loans and all other
obligations and
liabilities of the Borrower (including, without limitation,
interest accruing at
the then applicable rate provided in the Credit Agreement after the
maturity of
the Loans and interest accruing at the then applicable rate
provided in the
Credit Agreement after the filing of any petition in bankruptcy, or
the
commencement of any insolvency, reorganization or like proceeding,
relating to
the Borrower, whether or not a claim for post-filing or
post-petition interest
is allowed in such proceeding) to the Administrative Agent or any
Lender,
whether direct or indirect, absolute or contingent, due or to
become due, or now
existing or hereafter incurred, which may arise under the Credit
Agreement, this
Agreement, the other Loan Documents or any other document made,
delivered or
given in connection therewith, in each case whether on account of
principal,
interest, reimbursement obligations, fees, indemnities, costs,
expenses or
otherwise (including, without limitation, all fees and
disbursements of counsel
to the Administrative Agent or to the Lenders that are required to
be paid by
the Borrower pursuant to the terms of any of the foregoing
agreements).
"Borrower Swap Agreement Obligations": the collective reference to
all
obligations and liabilities of the Borrower (including, without
limitation,
interest accruing at the then applicable rate provided in any
Specified Swap
Agreement after the filing of any petition in bankruptcy, or the
commencement of
any insolvency, reorganization or like proceeding, relating to the
Borrower,
whether or not a claim for post-filing or post-petition interest is
allowed in
such proceeding) to any Qualified Counterparty, whether direct or
indirect,
absolute or contingent, due or to become due, or now existing or
hereafter
incurred, which may arise under any Specified Swap Agreement or any
other
document made, delivered or given in connection therewith, in each
case whether
on account of principal, interest, reimbursement obligations, fees,
indemnities,
costs, expenses or otherwise (including, without limitation, all
fees and
disbursements of counsel to the relevant Qualified Counterparty
that are
required to be paid by the Borrower pursuant to the terms of any
Specified Swap
Agreement).
"Borrower Obligations": the collective reference to (i) the
Borrower
Credit Agreement Obligations, (ii) the Borrower Swap Agreement
Obligations, but
only to the extent that, and only so long as, the Borrower Credit
Agreement
Obligations are secured and guaranteed pursuant hereto, and (iii)
all other
obligations and liabilities of the Borrower, whether direct or
indirect,
absolute or contingent, due or to become due, or now existing or
hereafter
incurred, which may arise under this Agreement (including, without
limitation,
all fees and disbursements of counsel to the Administrative Agent
or to the
Lenders that are required to be paid by the Borrower pursuant to
the terms of
this Agreement).
"Collateral": as defined in Section 3.
"Collateral Account": any collateral account established by the
Administrative Agent as provided in Section 6.1 or 6.4.
"Copyrights": (i) all copyrights arising under the laws of the
United
States, any other country or any political subdivision thereof,
whether
registered or unregistered and whether published or unpublished,
all
registrations and recordings thereof, and all applications in
connection
therewith, including, without limitation, all registrations,
recordings and
applications in the United States Copyright Office listed in
Schedule 5, and
(ii) the right to obtain all renewals thereof.
"Copyright Licenses": any written agreement naming any Grantor
as
licensor or licensee (including, without limitation, those
agreements listed in
Schedule 5), granting any right under any Copyright, including,
without
limitation, the grant of rights to distribute and reproduce
materials derived
from any Copyright.
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3
"Deposit Account": as defined in the Uniform Commercial Code of
any
applicable jurisdiction and, in any event, including, without
limitation, any
demand, time, savings, passbook or like account maintained with a
depositary
institution.
"Excluded Assets": (A) any application for registration of a
Trademark
filed in the United States Patent and Trademark Office on an
intent-to-use basis
to the extent that the grant of a security interest in any such
Trademark
application would adversely affect the validity or enforceability
or result in
cancellation of such Trademark application, provided, however, that
such
Trademark applications shall be considered Collateral upon the
filing of a
Statement of Use or an Amendment to Allege Use has been filed and
accepted in
the United States Patent and Trademark Office, (B) the Capital
Stock of
Clearwire 1, Clearwire International, Fixed Wireless Holdings,
LLC,
a________________limited liability company and NextNet, or any
Subsidiary of any
thereof, in each case pledged pursuant to that certain Securities
Purchase
Agreement between the Borrower, the Guarantors and the Buyers (as
listed on the
Schedule of Buyers) or pursuant to the Promissory Note, Warrants
and Indenture
of the Borrower dated August 5, 2005 or Promissory Notes and
Warrants of the
Borrower dated February 16, 2006, except in each case to the extent
required to
be pledged hereunder pursuant to paragraph (b), (c) or (d) of
Section 6.9 of the
Credit Agreement; (C) purchased personal property and other
telecommunications
equipment located in Canada pledged pursuant to the Credit
Agreement, Security
Agreement and Moveable Hypothec Agreement each between the Borrower
and Bell
Canada and dated July 19, 2005 or pursuant to the Amendment to such
Credit
Agreement dated February__________, 2006, in each case to the
extent that and
for so long as the terms of such Agreement would prohibit the
granting of a
security interest in such property to the Administrative Agent
hereunder; (D)
any leasehold in real property; (E) any property, including any
contract,
General Intangible, Copyright License, Patent License or Trademark
License,
Copyrights, Patent or Trademarks, in each case to the extent the
grant by the
relevant Grantor of a security interest pursuant to this Agreement
in such
Grantor's right, title and interest in such property (i) is
prohibited by any
contract, agreement, instrument, indenture or Requirement of Law of
any
Governmental Authority governing such property, (ii) would give any
other party
to such contract, agreement, instrument or indenture the right to
terminate its
obligations thereunder, (iii) is permitted only with the consent of
another
party (including, without limitation, consent of any Governmental
Authority), if
such consent has not been obtained or (iv) is limited by the
Communications Act
of 1934, as amended, and the rules, regulations, and policies
promulgated
thereunder by the Federal Communications Commission, including (A)
restrictions
on granting security interests in FCC License Rights, as discussed
more fully in
Section 8.5, and (B) the prior approval of the FCC, as discussed
more fully in
Section 8.5 (provided, that none of the following shall be Excluded
Assets: (1)
any Receivable or any money or other amounts due or to become due
under any such
contract, agreement, instrument or indenture set out in the
foregoing clauses
(i) through (iv) and (2) in the case of the preceding clause (iv),
any proceeds
of FCC Licenses or Spectrum Leases, and the right to receive all
monies,
consideration and proceeds derived from or in connection with the
sale,
assignment, transfer, or other disposition of the FCC Licenses or
Spectrum
Leases, and the right to exercise rights and actions against the
lessor,
licensor or other party to the Spectrum Lease); (F) property
subject to Liens
permitted under Section 7.2(2)(D) of the Credit Agreement to the
extent any
agreement governing purchase money Liens or Capital Lease
Obligations with
respect to such property contains a negative pledge clause that
prohibits a
grant by the relevant Grantor of a security interest pursuant to
this Agreement
in such Grantor's right, title and interest in such property; (G)
Vehicles; (H)
Capital Stock and assets of Unrestricted Subsidiaries; and (I) any
assets of the
Borrower other than Pledged Stock, but only to the extent that
either (x) the
Borrower is prohibited by the terms of the Existing Notes Indenture
or any
Restrictive Refinancing from granting a security interest to the
Administrative
Agent hereunder in such assets other than Pledged Stock or (y) if
the preceding
clause (x) does not apply, the Borrower shall not have granted a
security
interest to any other party in such assets other than Pledged Stock
to secure
any other present or future Indebtedness.
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4
"Foreign Subsidiary": any Subsidiary organized under the laws of
any
jurisdiction outside the United States of America.
"Foreign Subsidiary Voting Stock": the voting Capital Stock of
any
Foreign Subsidiary.
"Grantors": the collective reference to (i) the Borrower, (ii)
each
Guarantor other than Clearwire 1 and its Subsidiaries and (iii) any
other Person
that becomes a party hereto as a Grantor pursuant to Section
8.15.
"Guarantor Obligations": with respect to any Guarantor, all
obligations and liabilities of such Guarantor which may arise under
or in
connection with this Agreement (including, without limitation,
Section 2) or any
other Loan Document, any Specified Swap Agreement (to the extent
such
obligations or liabilities are owing to any Qualified Counterparty)
to which
such Guarantor is a party, in each case whether on account of
guarantee
obligations, reimbursement obligations, fees, indemnities, costs,
expenses or
otherwise (including, without limitation, all fees and
disbursements of counsel
to the Administrative Agent or to the Lenders that are required to
be paid by
such Guarantor pursuant to the terms of this Agreement or any other
Loan
Document).
"Intellectual Property": the collective reference to all
rights,
priorities and privileges relating to intellectual property,
whether arising
under United States, multinational or foreign laws or otherwise,
including,
without limitation, the Copyrights, the Copyright Licenses, the
Patents, the
Patent Licenses, the Trademarks and the Trademark Licenses, and all
rights to
sue at law or in equity for any infringement or other impairment
thereof,
including the right to receive all proceeds and damages
therefrom.
"Investment Property": the collective reference to (i) all
"investment
property" as such term is defined in Section 9-102(a)(49) of the
New York UCC
(other than any Foreign Subsidiary Voting Stock excluded from the
definition of
"Pledged Stock") and (ii) whether or not constituting "investment
property" as
so defined, all Pledged Stock.
"Issuers": the collective reference to each issuer of any
Pledged
Stock.
"New York UCC": the Uniform Commercial Code as from time to time
in
effect in the State of New York.
"Obligations": (i) in the case of the Borrower, the Borrower
Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations.
"Patents": (i) all letters patent of the United States, any
other
country or any political subdivision thereof, and all reissues and
extensions
thereof, including, without limitation, any letters patent of the
United States
listed in Schedule 5, (ii) all applications for letters patent of
the United
States or any other country and all divisions, continuations
and
continuations-in-part thereof, including, without limitation, any
applications
for letters patent of the United States listed in Schedule 5, and
(iii) all
rights to obtain any reissues or extensions of the foregoing.
"Patent License": all agreements, whether written or oral,
providing
for the grant by or to any Grantor of any right to manufacture, use
or sell any
invention covered in whole or in part by a Patent, including,
without
limitation, any of the foregoing referred to in Schedule 5.
"Pledged Stock": the shares of Capital Stock listed on Schedule
2,
together with any other shares, stock certificates, options or
rights of any
nature whatsoever in respect of the Capital Stock
<PAGE>
5
of any Person (other than Excluded Assets) that may be issued or
granted to, or
held by, any Grantor while this Agreement is in effect and that is
required to
be pledged pursuant to Section 6.9 of the Credit Agreement;
provided that (i) in
the case of the Borrower only, Pledged Stock shall be limited to
the Capital
Stock (and any shares, stock certificates, options or rights of any
nature
whatsoever in respect thereof) of the Borrower's Subsidiaries (any
Capital Stock
of any Person other than such Subsidiaries, "Non-Subsidiary Stock")
to the
extent that either (x) the Borrower is prohibited by the terms of
the Existing
Notes Indenture or any Restrictive Refinancing from granting a
security interest
to the Administrative Agent hereunder in Non-Subsidiary Stock or
(y) if the
preceding clause (x) does not apply, the Borrower shall not have
granted a
security interest to any other party in Non-Subsidiary Stock to
secure any other
present or future Indebtedness and (ii) in no event shall more than
65% of the
total outstanding Foreign Subsidiary Voting Stock of any Foreign
Subsidiary be
required to be pledged hereunder.
"Proceeds": all "proceeds" as such term is defined in Section
9-102(a)(64) of the Uniform Commercial Code in effect in the State
of New York
on the date hereof and, in any event, including, without
limitation, all
dividends or other income from the Investment Property, collections
thereon or
distributions or payments with respect thereto.
"Qualified Counterparty": with respect to any Specified Swap
Agreement, any counterparty thereto that, at the time such
Specified Swap
Agreement was entered into, was a Lender or an affiliate of a
Lender.
"Receivable": any right to payment for goods sold or leased or
for
services rendered, whether or not such right is evidenced by an
Instrument or
Chattel Paper and whether or not it has been earned by performance
(including,
without limitation, any Account).
"Secured Parties": the collective reference to the
Administrative
Agent, the Lenders and any other Qualified Counterparty to which
Borrower
Obligations or Guarantor Obligations, as applicable, are owed.
"Securities Act": the Securities Act of 1933, as amended.
"Trademarks": (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade
styles, service
marks, logos and other source or business identifiers, and all
goodwill
associated therewith, all registrations and recordings thereof, and
all
applications in connection therewith, whether in the United States
Patent and
Trademark Office or in any similar office or agency of the United
States, any
State thereof or any other country or any political subdivision
thereof, or
otherwise, and all common-law rights related thereto, including,
without
limitation, any registrations and applications in respect of the
foregoing in
the United States Patent and Trademark Office listed in Schedule 5,
and (ii) the
right to obtain all renewals thereof.
"Trademark License": any agreement, whether written or oral,
providing
for the grant by or to any Grantor of any right to use any
Trademark, including,
without limitation, any of the foregoing agreements listed in
Schedule 5.
"Vehicles": all cars, trucks, trailers, construction and earth
moving
equipment and other vehicles covered by a certificate of title law
of any state
and, in any event including, without limitation, all tires and
other
appurtenances to any of the foregoing.
1.2 Other Definitional Provisions. (a) The words "hereof,"
"herein",
"hereto" and "hereunder" and words of similar import when used in
this Agreement
shall refer to this Agreement as a
<PAGE>
6
whole and not to any particular provision of this Agreement, and
Section and
Schedule references are to this Agreement unless otherwise
specified.
(b) The meanings given to terms defined herein shall be equally
applicable
to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or
any
part thereof, when used in relation to a Grantor, shall refer to
such Grantor's
Collateral or the relevant part thereof.
SECTION 2. GUARANTEE
2.1 Guarantee. (a) The Guarantors hereby, jointly and
severally,
unconditionally and irrevocably, guarantee to the Administrative
Agent, for the
ratable benefit of the Secured Parties and their respective
successors,
indorsees, transferees and assigns, the prompt and complete payment
and
performance by the Borrower when due (whether at the stated
maturity, by
acceleration or otherwise) of the Borrower Obligations.
(b) Anything herein or in any other Loan Document to the
contrary
notwithstanding, the maximum liability of each Guarantor hereunder
and under the
other Loan Documents shall in no event exceed the amount which can
be guaranteed
by such Guarantor under applicable federal and state laws relating
to the
insolvency of debtors (after giving effect to the right of
contribution
established in Section 2.2).
(c) Each Guarantor agrees that the Borrower Obligations may at any
time and
from time to time exceed the amount of the liability of such
Guarantor hereunder
without impairing the guarantee contained in this Section 2 or
affecting the
rights and remedies of the Administrative Agent or any Lender
hereunder.
(d) The guarantee contained in this Section 2 shall remain in full
force
and effect until all the Borrower Obligations and the obligations
of each
Guarantor under the guarantee contained in this Section 2 shall
have been
satisfied by payment in full (other than contingent indemnity
obligations not
due and payable).
(e) No payment made by the Borrower, any of the Guarantors, any
other
guarantor or any other Person or received or collected by the
Administrative
Agent or any Lender from the Borrower, any of the Guarantors, any
other
guarantor or any other Person by virtue of any action or proceeding
or any
set-off or appropriation or application at any time or from time to
time in
reduction of or in payment of the Borrower Obligations shall be
deemed to
modify, reduce, release or otherwise affect the liability of any
Guarantor
hereunder which shall, notwithstanding any such payment (other than
any payment
made by such Guarantor in respect of the Borrower Obligations or
any payment
received or collected from such Guarantor in respect of the
Borrower
Obligations), remain liable for the Borrower Obligations up to the
maximum
liability of such Guarantor hereunder until the Borrower
Obligations are paid in
full (other than contingent indemnity obligations not due and
payable).
2.2 Right of Contribution. Each Guarantor hereby agrees that to the
extent
that a Guarantor shall have paid more than its proportionate share
of any
payment made hereunder, such Guarantor shall be entitled to seek
and receive
contribution from and against any other Guarantor hereunder which
has not paid
its proportionate share of such payment. Each Guarantor's right of
contribution
shall be subject to the terms and conditions of Section 2.3. The
provisions of
this Section 2.2 shall in no respect limit the obligations and
liabilities of
any Guarantor to the Administrative Agent and the Lenders, and
each
<PAGE>
7
Guarantor shall remain liable to the Administrative Agent and the
Lenders for
the full amount guaranteed by such Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any
Guarantor
hereunder or any set-off or application of funds of any Guarantor
by the
Administrative Agent or any Lender, no Guarantor shall be entitled
to be
subrogated to any of the rights of the Administrative Agent or any
Lender
against the Borrower or any other Guarantor or any collateral
security or
guarantee or right of offset held by the Administrative Agent or
any Lender for
the payment of the Borrower Obligations, nor shall any Guarantor
seek or be
entitled to seek any contribution or reimbursement from the
Borrower or any
other Guarantor in respect of payments made by such Guarantor
hereunder, until
all amounts owing to the Administrative Agent and the Lenders by
the Borrower on
account of the Borrower Obligations are paid in full (other than
contingent
indemnity obligations not due and payable). If any amount shall be
paid to any
Guarantor on account of such subrogation rights at any time when
all of the
Borrower Obligations shall not have been paid in full (other than
contingent
indemnity obligations not due and payable), such amount shall be
held by such
Guarantor in trust for the Administrative Agent and the Lenders,
segregated from
other funds of such Guarantor, and shall, forthwith upon receipt by
such
Guarantor, be turned over to the Administrative Agent in the exact
form received
by such Guarantor (duly indorsed by such Guarantor to the
Administrative Agent,
if required), to be applied against the Borrower Obligations,
whether matured or
unmatured, in such order as the Administrative Agent may
determine.
2.4 Amendments, etc. with respect to the Borrower Obligations.
Each
Guarantor shall remain obligated hereunder notwithstanding that,
without any
reservation of rights against any Guarantor and without notice to
or further
assent by any Guarantor, any demand for payment of any of the
Borrower
Obligations made by the Administrative Agent or any Lender may be
rescinded by
the Administrative Agent or such Lender and any of the Borrower
Obligations
continued, and the Borrower Obligations, or the liability of any
other Person
upon or for any part thereof, or any collateral security or
guarantee therefor
or right of offset with respect thereto, may, from time to time, in
whole or in
part, be renewed, extended, amended, modified, accelerated,
compromised, waived,
surrendered or released by the Administrative Agent or any Lender,
and the
Credit Agreement and the other Loan Documents and any other
documents executed
and delivered in connection therewith may be amended, modified,
supplemented or
terminated, in whole or in part, as the Administrative Agent (or
the Required
Lenders or all Lenders, as the case may be) may deem advisable from
time to
time, and any collateral security, guarantee or right of offset at
any time held
by the Administrative Agent or any Lender for the payment of the
Borrower
Obligations may be sold, exchanged, waived, surrendered or
released, in each
case, in accordance with the Loan Documents. Neither the
Administrative Agent
nor any Lender shall have any obligation to protect, secure,
perfect or insure
any Lien at any time held by it as security for the Borrower
Obligations or for
the guarantee contained in this Section 2 or any property subject
thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives, to
the
extent permitted by law and except as otherwise provided for
herein, any and all
notice of the creation, renewal, extension or accrual of any of the
Borrower
Obligations and notice of or proof of reliance by the
Administrative Agent or
any Lender upon the guarantee contained in this Section 2 or
acceptance of the
guarantee contained in this Section 2; the Borrower Obligations,
and any of
them, shall conclusively be deemed to have been created, contracted
or incurred,
or renewed, extended, amended or waived, in reliance upon the
guarantee
contained in this Section 2; and all dealings between the Borrower
and any of
the Guarantors, on the one hand, and the Administrative Agent and
the Lenders,
on the other hand, likewise shall be conclusively presumed to have
been had or
consummated in reliance upon the guarantee contained in this
Section 2. Each
Guarantor waives, to the extent permitted by law and except as
otherwise
provided for herein, diligence, presentment, protest, demand for
payment and
notice of default or nonpayment to or upon the Borrower or any of
the Guarantors
with respect to the Borrower Obligations. Each Guarantor
understands and agrees
that the guarantee contained in this Section 2 shall be construed
as a
continuing,
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8
absolute and unconditional guarantee of payment without regard to
(a) the
validity or enforceability of the Credit Agreement or any other
Loan Document,
any of the Borrower Obligations or any other collateral security
therefor or
guarantee or right of offset with respect thereto at any time or
from time to
time held by the Administrative Agent or any Lender, (b) any
defense, set-off or
counterclaim (other than a defense of payment or performance or
fraud) which may
at any time be available to or be asserted by the Borrower or any
other Person
against the Administrative Agent or any Lender, or (c) any other
circumstance
whatsoever (with or without notice to or knowledge of the Borrower
or such
Guarantor) which constitutes, or might be construed to constitute,
an equitable
or legal discharge of the Borrower for the Borrower Obligations, or
of such
Guarantor under the guarantee contained in this Section 2, in
bankruptcy or in
any other instance. When making any demand hereunder or otherwise
pursuing its
rights and remedies hereunder against any Guarantor, the
Administrative Agent or
any Lender may, but shall be under no obligation to and each
Guarantor waives
any right to require the Administrative Agent or any Lender to,
make a similar
demand on or otherwise pursue such rights and remedies as it may
have against
the Borrower, any other Guarantor or any other Person or against
any collateral
security or guarantee for the Borrower Obligations or against any
assets of the
Borrower or any Guarantor or any right of offset with respect
thereto, and any
failure by the Administrative Agent or any Lender to make any such
demand, to
pursue such other rights or remedies or to collect any payments
from the
Borrower, any other Guarantor or any other Person or to realize
upon any such
collateral security or guarantee or assets or to exercise any such
right of
offset, or any release of the Borrower, any other Guarantor or any
other Person
or any such collateral security, guarantee or right of offset,
shall not relieve
any Guarantor of any obligation or liability hereunder, and shall
not impair or
affect the rights and remedies, whether express, implied or
available as a
matter of law, of the Administrative Agent or any Lender against
any Guarantor.
For the purposes hereof "demand" shall include the commencement and
continuance
of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 shall
continue
to be effective, or be reinstated, as the case may be, if at any
time payment,
or any part thereof, of any of the Borrower Obligations is
rescinded or must
otherwise be restored or returned by the Administrative Agent or
any Lender upon
the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the
Borrower or any Guarantor, or upon or as a result of the
appointment of a
receiver, intervenor or conservator of, or trustee or similar
officer for, the
Borrower or any Guarantor or any substantial part of its property,
or otherwise,
all as though such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that payments
hereunder will
be paid to the Administrative Agent without set-off or counterclaim
in Dollars
at the Funding Office.
SECTION 3. GRANT OF SECURITY INTEREST
Each Grantor hereby assigns and transfers to the Administrative
Agent,
and hereby grants to the Administrative Agent, for the ratable
benefit of the
Secured Parties, a security interest in, all of such Grantor's
right, title and
interest in the following property now owned or at any time
hereafter acquired
by such Grantor or in which such Grantor now has or at any time in
the future
may acquire any right, title or interest (collectively, the
"Collateral"), as
collateral security for the prompt and complete payment and
performance when due
(whether at the stated maturity, by acceleration or otherwise) of
such Grantor's
Obligations:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
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9
(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Intellectual Property;
(i) all Inventory;
(j) all Investment Property;
(k) all Letter-of-Credit Rights;
(l) all Goods;
(m) all books and records pertaining to the Collateral; and
(n) to the extent not otherwise included, all Proceeds and products
of any
and all of the foregoing, all Supporting Obligations in respect of
any of the
foregoing and all collateral security and guarantees given by any
Person with
respect to any of the foregoing;
(o) all FCC License Rights;
provided, that the Collateral shall not include the Excluded
Assets.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
the
Credit Agreement and to induce the Lenders to make their respective
extensions
of credit to the Borrower thereunder, each Grantor hereby
represents and
warrants to the Administrative Agent and each Lender that:
4.1 Representations in Credit Agreement. In the case of each
Guarantor, the
representations and warranties set forth in Section 4 of the Credit
Agreement as
they relate to such Guarantor or to the Loan Documents to which
such Guarantor
is a party, each of which is hereby incorporated herein by
reference, are true
and correct, and the Administrative Agent and each Lender shall be
entitled to
rely on each of them as if they were fully set forth herein,
provided that each
reference in each such representation and warranty to the
Borrower's knowledge
shall, for the purposes of this Section 4.1, be deemed to be a
reference to such
Guarantor's knowledge.
4.2 Title; No Other Liens. Except for the security interest granted
to the
Administrative Agent for the ratable benefit of the Secured Parties
pursuant to
this Agreement and the other Liens permitted to exist on the
Collateral by the
Credit Agreement, such Grantor owns each item of the Collateral
free and clear
of any and all Liens or claims of others. No financing statement or
other public
notice with respect to all or any part of the Collateral is on file
or of record
in any public office, except such as have been filed in favor of
the
Administrative Agent, for the ratable benefit of the Secured
Parties, pursuant
to this Agreement or as are permitted by the Credit Agreement. For
the avoidance
of doubt, it is understood and agreed that any Grantor may, as part
of its
business, grant licenses to third parties to use Intellectual
Property owned or
developed by a Grantor. For purposes of this Agreement and the
other
<PAGE>
10
Loan Documents, such licensing activity shall not constitute a
"Lien" on such
Intellectual Property. Each of the Administrative Agent and each
Lender
understands that any such licenses may be exclusive to the
applicable licensees,
and such exclusivity provisions may limit the ability of the
Administrative
Agent to utilize, sell, lease or transfer the related Intellectual
Property or
otherwise realize value from such Intellectual Property pursuant
hereto.
4.3 Perfected First Priority Liens. The security interests granted
pursuant
to this Agreement (a) upon completion of the filings and other
actions specified
on Schedule 3 (which, in the case of all filings and other
documents referred to
on said Schedule, have been delivered to the Administrative Agent
in completed
and duly executed form) within the time periods prescribed under
applicable law,
will constitute valid perfected security interests (to the extent
such matter is
governed by laws of the United States or a jurisdiction therein) in
all of the
Collateral (to the extent that a security interest therein may be
perfected by
the filing of Uniform Commercial Code financing statements and such
other
filings specified on Schedule 3) in favor of the Administrative
Agent, for the
ratable benefit of the Secured Parties, as collateral security for
such
Grantor's Obligations, enforceable in accordance with the terms
hereof against
all creditors of such Grantor and any Persons purporting to
purchase any
Collateral from such Grantor and (b) are prior to all other Liens
on the
Collateral in existence on the date hereof except to the extent
otherwise
permitted by the Credit Agreement.
4.4 Jurisdiction of Organization: Chief Executive Office. On the
date
hereof, such Grantor's jurisdiction of organization, identification
number from
the jurisdiction of organization (if any), and the location of such
Grantor's
chief executive office or sole place of business or principal
residence, as the
case may be, are specified on Schedule 4. Such Grantor has
furnished to the
Administrative Agent a certified charter, certificate of
incorporation or other
organization document and long-form good standing certificate as of
a date which
is recent to the date hereof.
4.5 Investment Property. (a) The shares of Pledged Stock pledged by
such
Grantor hereunder constitute all the issued and outstanding shares
of all
classes of the Capital Stock of each Issuer owned by such Grantor
or, in the
case of Foreign Subsidiary Voting Stock, if less, 65% of the
outstanding Foreign
Subsidiary Voting Stock of each relevant Issuer.
(b) All the shares of the Pledged Stock have been duly and validly
issued
and are fully paid and nonassessable.
(c) Such Grantor is the record and beneficial owner of, and has
good and
marketable title to, the Investment Property pledged by it
hereunder, free of
any and all Liens or options in favor of, or claims of, any other
Person, except
the security interest created by this Agreement.
4.6 Receivables. (a) As of the date hereof, none of the obligors on
any
Receivable is a Governmental Authority, except for Receivables
constituting not
more than 5% of the face amount of all Receivables.
(b) The amounts represented by such Grantor to the Lenders from
time to
time as owing to such Grantor in respect of the Receivables will at
such times
be accurate in all material respects.
4.7 Intellectual Property. (a) Schedule 5 lists all issuances,
registrations and applications in respect of Intellectual Property
owned by such
Grantor (other than the Borrower at any time to the extent the
Borrower is not
then required to pledge such Intellectual Property hereunder
pursuant to clause
(I) of the definition of "Excluded Assets") in its own name on the
date hereof.
<PAGE>
11
(b) On the date hereof, all Intellectual Property owned by such
Grantor
listed on Schedule 5 (i) is valid, subsisting, unexpired and
enforceable, has
not been abandoned and (ii) does not infringe any Intellectual
Property rights
of any other Person, except as could not reasonably be expected to
have a
Material Adverse Effect.
(c) Except as set forth in Schedule 5, on the date hereof, none of
the
Intellectual Property listed on Schedule 5 is the subject of any
Copyright
License, Trademark License or Patent License pursuant to which such
Grantor is
the licensor.
(d) No holding, decision or judgment has been rendered by any
Governmental
Authority which would limit, cancel or question the validity of, or
such
Grantor's rights in, any Intellectual Property listed on Schedule 5
in any
respect that could reasonably be expected to have a Material
Adverse Effect.
(e) No action or proceeding is pending, or, to the knowledge of
such
Grantor, threatened, on the date hereof (i) seeking to limit,
cancel or question
the validity of any material Intellectual Property listed on
Schedule 5 or such
Grantor's ownership interest therein, or (ii) which, if adversely
determined,
would have a Material Adverse Effect.
SECTION 5. COVENANTS
Each Grantor covenants and agrees with the Administrative Agent
and
the Lenders that, from and after the date of this Agreement until
the
Obligations shall have been paid in full (other than contingent
indemnity
obligations not due and payable):
5.1 Covenants in Credit Agreement. In the case of each Guarantor,
such
Guarantor shall take, or shall refrain from taking, as the case may
be, each
action that is necessary to be taken or not taken, as the case may
be, so that
no Default or Event of Default is caused
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