GUARANTEE AND COLLATERAL AGREEMENT dated as of June 15, 2006 among CUMULUS MEDIA INC., the Subsidiaries of Cumulus Media Inc. identified herein, and BANK OF AMERICA, N.A., as Administrative Agent
Exhibit 10.1
dated as of
June 15, 2006
among
the Subsidiaries of Cumulus Media Inc.
identified herein,
and
BANK OF AMERICA, N.A., as Administrative Agent
ARTICLE I DEFINITIONS |
1 | |||
SECTION 1.01 Credit Agreement |
1 | |||
SECTION 1.02 Other Defined Terms |
1 | |||
ARTICLE II GUARANTEE |
4 | |||
SECTION 2.01 Guarantee |
4 | |||
SECTION 2.02 Guarantee of Payment |
4 | |||
SECTION 2.03 No Limitations |
5 | |||
SECTION 2.04 Reinstatement |
5 | |||
SECTION 2.05 Agreement To Pay; Subrogation |
6 | |||
SECTION 2.06 Information |
6 | |||
SECTION 2.07 Limitation on Guarantees |
6 | |||
ARTICLE III PLEDGE OF SECURITIES |
6 | |||
SECTION 3.01 Pledge |
6 | |||
SECTION 3.02 Delivery of the Pledged Collateral |
7 | |||
SECTION 3.03 Representations, Warranties and Covenants |
7 | |||
SECTION 3.04 Certification of Limited Liability Company and Limited Partnership
Interests |
8 | |||
SECTION 3.05 Registration in Nominee Name; Denominations |
8 | |||
SECTION 3.06 Voting Rights |
9 | |||
ARTICLE IV SECURITY INTERESTS IN PERSONAL PROPERTY |
10 | |||
SECTION 4.01 Security Interest |
10 | |||
SECTION 4.02 Representations and Warranties |
12 | |||
SECTION 4.03 Covenants |
13 | |||
SECTION 4.04 Other Actions |
16 | |||
SECTION 4.05 Covenants Regarding Patent, Trademark and Copyright Collateral |
18 | |||
ARTICLE V REMEDIES |
20 | |||
SECTION 5.01 Remedies Upon Default |
20 | |||
SECTION 5.02 Application of Proceeds |
22 | |||
SECTION 5.03 Grant of License to Use Intellectual Property |
22 | |||
SECTION 5.04 Securities Act |
22 | |||
ARTICLE VI INDEMNITY, SUBROGATION AND SUBORDINATION |
23 | |||
SECTION 6.01 Indemnity and Subrogation |
23 |
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SECTION 6.02 Contribution and Subrogation |
23 | |||
SECTION 6.03 Subordination |
24 | |||
ARTICLE VII MISCELLANEOUS |
24 | |||
SECTION 7.01 Notices |
24 | |||
SECTION 7.02 Security Interest Absolute |
24 | |||
SECTION 7.03 Survival of Agreement |
25 | |||
SECTION 7.04 Binding Effect; Several Agreement |
25 | |||
SECTION 7.05 Successors and Assigns |
25 | |||
SECTION 7.06 Administrative Agent’s Fees and Expenses; Indemnification |
25 | |||
SECTION 7.07 Administrative Agent Appointed Attorney-in-Fact |
26 | |||
SECTION 7.08 APPLICABLE LAW |
27 | |||
SECTION 7.09 Waivers; Amendment |
27 | |||
SECTION 7.10 WAIVER OF JURY TRIAL |
27 | |||
SECTION 7.11 Severability |
27 | |||
SECTION 7.12 Counterparts |
28 | |||
SECTION 7.13 Headings |
28 | |||
SECTION 7.14 Jurisdiction; Consent to Service of Process |
28 | |||
SECTION 7.15 Termination or Release |
28 | |||
SECTION 7.16 Additional Subsidiaries |
29 | |||
SECTION 7.17 Right of Setoff |
29 |
ii
SCHEDULES: |
Schedule I — Subsidiary Parties |
Schedule II — Capital Stock; Debt Securities |
Schedule III — Intellectual Property |
Schedule IV — Insurance Requirements |
EXHIBITS: |
Exhibit I — Form of Supplement |
Exhibit II — Form of Perfection Certificate |
iii
GUARANTEE AND COLLATERAL AGREEMENT dated as of June 15, 2006, among CUMULUS MEDIA INC., the
Subsidiaries of Cumulus Media Inc. identified herein and BANK OF AMERICA, N.A., as Administrative
Agent.
Reference is made to the Credit Agreement dated as of June 15, 2006 (as amended, supplemented
or otherwise modified from time to time, the “Credit Agreement”), among Cumulus Media Inc. (the
“Borrower”), the Lenders party thereto and Bank of America, N.A., as Administrative Agent. The
Lenders have agreed to extend credit to the Borrower subject to the terms and conditions set forth
in the Credit Agreement. The obligations of the Lenders to extend such credit are conditioned
upon, among other things, the execution and delivery of this Agreement. The Subsidiary Parties are
affiliates of the Borrower, will derive substantial benefits from the extension of credit to the
Borrower pursuant to the Credit Agreement and are willing to execute and deliver this Agreement in
order to induce the Lenders to extend such credit. Accordingly, the parties hereto agree as
follows:
ARTICLE I
SECTION 1.01 Credit Agreement. (a) Capitalized terms used in this Agreement and not otherwise
defined herein have the meanings specified in the Credit Agreement. All terms defined in the New
York UCC (as defined herein) and not defined in this Agreement have the meanings specified therein;
the term “instrument” shall have the meaning specified in Article 9 of the New York UCC.
(b) The rules of construction specified in Section 1.03 of the Credit Agreement also apply to
this Agreement.
“Account Debtor” means any Person who is or who may become obligated to any Grantor under,
with respect to or on account of an Account.
“Article 9 Collateral” has the meaning assigned to such term in Section 4.01.
“Collateral” means Article 9 Collateral and Pledged Collateral.
“Copyright License” means any written agreement, now or hereafter in effect, granting any
right to any third party under any copyright now or hereafter owned by any Grantor or that such
Grantor otherwise has the right to license, or granting any right to any Grantor under any
copyright now or hereafter owned by any third party, and all rights of such Grantor under any such
agreement.
“Copyrights” means all of the following now owned or hereafter acquired by any Grantor: (a)
all copyright rights in any work subject to the copyright laws of the United States or any other
country, whether as author, assignee, transferee or otherwise, and (b) all registrations and
applications for registration of any such copyright in the United States or any other country,
1
including registrations, recordings, supplemental registrations and pending applications for
registration in the United States Copyright Office, including those listed on Schedule III.
“Credit Agreement” has the meaning assigned to such term in the preliminary statement of this
Agreement.
“Federal Securities Laws” has the meaning assigned to such term in Section 5.04.
“General Intangibles” means all choses in action and causes of action and all other intangible
personal property of any Grantor of every kind and nature (other than Accounts) now owned or
hereafter acquired by any Grantor, including corporate or other business records, indemnification
claims, contract rights (including rights under leases, whether entered into as lessor or lessee,
Hedging Agreements and other agreements), Intellectual Property, goodwill, registrations,
franchises, tax refund claims and any letter of credit, guarantee, claim, security interest or
other security held by or granted to any Grantor to secure payment by an Account Debtor of any of
the Accounts.
“Grantors” means the Borrower and the Subsidiary Parties.
“Guarantors” means the Subsidiary Parties.
“Intellectual Property” means all intellectual and similar property of every kind and nature
now owned or hereafter acquired by any Grantor, including inventions, designs, Patents, Copyrights,
Licenses, Trademarks, trade secrets, confidential or proprietary technical and business
information, know-how, show-how or other data or information, software and databases and all
embodiments or fixations thereof and related documentation, registrations and franchises, and all
additions, improvements and accessions to, and books and records describing or used in connection
with, any of the foregoing.
“License” means any Patent License, Trademark License, Copyright License or other license or
sublicense agreement to which any Grantor is a party, including those listed on Schedule III.
“Loan Document Obligations” means (a) the due and punctual payment by the Borrower of (i) the
principal of and interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in
such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrower
under the Credit Agreement in respect of any Letter of Credit, when and as due, including payments
in respect of reimbursement of disbursements, interest thereon and obligations to provide cash
collateral, and (iii) all other monetary obligations of the Borrower to any of the Secured Parties
under the Credit Agreement and each of the other Loan Documents, including obligations to pay fees,
expense and reimbursement obligations and indemnification obligations, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), (b) the due and punctual performance of all other
obligations of the Borrower under or pursuant to the Credit Agreement and each of the other Loan
Documents, and (c) the due and
2
punctual payment and performance of all the monetary obligations of each other Loan Party
under or pursuant to this Agreement and each of the other Loan Documents.
“New York UCC” means the Uniform Commercial Code as from time to time in effect in the State
of New York.
“Obligations” means (a) Loan Document Obligations, (b) the due and punctual payment and
performance of all obligations of each Loan Party under each Hedging Agreement that (i) is in
effect on the Effective Date with a counterparty that is a Lender or an Affiliate of a Lender as of
the Effective Date or (ii) is entered into after the Effective Date with any counterparty that is a
Lender or an Affiliate of a Lender at the time such Hedging Agreement is entered into and (c) the
due and punctual payment and performance of all obligations of each Loan Party under each
arrangement for the delivery of treasury management services that (i) is in effect on the Effective
Date and maintained with a Lender or an Affiliate of a Lender as of the Effective Date or (ii) is
entered into after the Effective Date with any counterparty that is a Lender or an Affiliate of a
Lender at the time such arrangements are entered into.
“Patent License” means any written agreement, now or hereafter in effect, granting to any
third party any right to make, use or sell any invention on which a patent, now or hereafter owned
by any Grantor or that any Grantor otherwise has the right to license, is in existence, or granting
to any Grantor any right to make, use or sell any invention on which a patent, now or hereafter
owned by any third party, is in existence, and all rights of any Grantor under any such agreement.
“Patents” means all of the following now owned or hereafter acquired by any Grantor: (a) all
letters patent of the United States or the equivalent thereof in any other country, all
registrations and recordings thereof, and all applications for letters patent of the United States
or the equivalent thereof in any other country, including registrations, recordings and pending
applications in the United States Patent and Trademark Office or any similar offices in any other
country, including those listed on Schedule III, and (b) all reissues, continuations, divisions,
continuations-in-part, renewals or extensions thereof, and the inventions disclosed or claimed
therein, including the right to make, use and/or sell the inventions disclosed or claimed therein.
“Perfection Certificate” means a certificate substantially in the form of Exhibit II,
completed and supplemented with the schedules and attachments contemplated thereby, and duly
executed by a Financial Officer and the chief legal officer of the Borrower.
“Pledged Collateral” has the meaning assigned to such term in Section 3.01.
“Pledged Debt Securities” has the meaning assigned to such term in Section 3.01.
“Pledged Securities” means any promissory notes, stock certificates or other securities now or
hereafter included in the Pledged Collateral, including all certificates, instruments or other
documents representing or evidencing any Pledged Collateral.
“Pledged Stock” has the meaning assigned to such term in Section 3.01.
“Proceeds” has the meaning specified in Section 9-102 of the New York UCC.
3
“Secured Parties” means (a) the Lenders, (b) the Administrative Agent, (c) the Issuing Bank,
(d) each counterparty to any Hedging Agreement with a Loan Party the obligations under which
constitute Obligations, (e) each counterparty to or provider of any treasury management services
arrangement with a Loan Party the obligations under which constitutes Obligations, (f) the
beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan
Document and (g) the successors and assigns of each of the foregoing.
“Security Interest” has the meaning assigned to such term in Section 4.01.
“Subsidiary Parties” means (a) the Subsidiaries identified on Schedule I and (b) each other
Subsidiary that becomes a party to this Agreement as contemplated by Section 7.16.
“Trademark License” means any written agreement, now or hereafter in effect, granting to any
third party any right to use any trademark now or hereafter owned by any Grantor or that any
Grantor otherwise has the right to license, or granting to any Grantor any right to use any
trademark now or hereafter owned by any third party, and all rights of any Grantor under any such
agreement.
“Trademarks” means all of the following now owned or hereafter acquired by any Grantor: (a)
all trademarks, service marks, trade names, corporate names, company names, business names,
fictitious business names, trade styles, trade dress, logos, other source or business identifiers,
designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all registration and recording applications filed in
connection therewith, including registrations and registration applications in the United States
Patent and Trademark Office or any similar offices in any State of the United States or any other
country or any political subdivision thereof, and all extensions or renewals thereof, including
those listed on Schedule III, (b) all goodwill associated therewith or symbolized thereby and (c)
all other assets, rights and interests that uniquely reflect or embody such goodwill.
ARTICLE II
4
deposit account or credit on the books of the Administrative Agent or any other Secured Party in
favor of the Borrower or any other Person.
(b) To the fullest extent permitted by applicable law, each Guarantor waives any defense based
on or arising out of any defense of the Borrower or any other Loan Party or the unenforceability of
the Obligations or any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower or any other Loan Party, other than to the extent of any payment in full
in cash of all the Obligations. The Administrative Agent and the other Secured Parties may, at
their election, foreclose on any security held by one or more of them by one or more judicial or
nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or
adjust any part of the Obligations, make any other accommodation with the Borrower or any other
Loan Party or exercise any other right or remedy available to them against the Borrower or any
other Loan Party, without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the Obligations have been paid in full in cash. To the fullest
extent permitted by applicable law, each Guarantor waives any defense arising out of any such
election even though such election would otherwise operate, pursuant to applicable law, to impair
or to extinguish any right of reimbursement or subrogation or other right or remedy of such
Guarantor against the Borrower or any other Loan Party, as the case may be, or any security.
5
payment, or any part
thereof, of any Obligation is rescinded or must otherwise be restored by the Administrative Agent
or any other Secured Party upon the bankruptcy or reorganization of the Borrower, any other Loan
Party or otherwise.
ARTICLE III
6
held by the Administrative Agent pursuant to the terms of this Section 3.01; (d) subject to
Section 3.06, all payments of principal or interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in respect of, in exchange
for or upon the conversion of, and all other Proceeds received in respect of, the securities
referred to in clauses (a) and (b) above; (e) subject to Section 3.06, all rights and privileges of
such Grantor with respect to the securities and other property referred to in clauses (a), (b), (c)
and (d) above; and (f) all Proceeds of any of the foregoing (the items referred to in clauses (a)
through (f) above being collectively referred to as the “Pledged Collateral”).
Notwithstanding the foregoing, the term “Pledged Collateral” shall not include any Excluded
Borrower Stock.
TO HAVE AND TO HOLD the Pledged Collateral, together with all right, title, interest, powers,
privileges and preferences pertaining or incidental thereto, unto the Administrative Agent, its
successors and assigns, for the ratable benefit of the Secured Parties, forever; subject, however,
to the terms, covenants and conditions hereinafter set forth.
(b) Upon delivery to the Administrative Agent, (i) any Pledged Securities shall be accompanied
by stock powers duly executed in blank or other instruments of transfer satisfactory to the
Administrative Agent and by such other instruments and documents as the Administrative Agent may
reasonably request and (ii) all other property comprising part of the Pledged Collateral shall be
accompanied by proper instruments of assignment duly executed by the applicable Grantor and such
other instruments or documents as the Administrative Agent may reasonably request. Each delivery
of Pledged Securities shall be accompanied by a schedule describing the securities, which schedule
shall be attached hereto as a supplement to Schedule II and made a part hereof; provided that
failure to attach any such schedule hereto shall not affect the validity of such pledge of such
Pledged Securities. Each schedule so delivered shall supplement any prior schedules so delivered.
(a) Schedule II correctly sets forth the percentage of the issued and outstanding shares of
each class of the Equity Interests of the issuer thereof represented by such Pledged Stock and
includes all Equity Interests, debt securities and promissory notes required to be pledged
hereunder in order to satisfy the Collateral and Guarantee Requirement;
(b) the Pledged Stock and Pledged Debt Securities have been duly and validly authorized and
issued by the issuers thereof and (i) in the case of Pledged Stock, are fully paid
and nonassessable and (ii) in the case of Pledged Debt Securities, are legal, valid and
binding obligations of the issuers thereof;
7
(c) except for the security interests granted hereunder, each of the Grantors (i) is and,
subject to any transfers made in compliance with the Credit Agreement, will continue to be the
direct owner, beneficially and of record, of the Pledged Securities indicated on Schedule II as
owned by such Grantor, (ii) holds the same free and clear of all Liens, other than Liens created by
this Agreement, Permitted Encumbrances and transfers made in compliance with the Credit Agreement,
(iii) will make no assignment, pledge, hypothecation or transfer of, or create or permit to exist
any security interest in or other Lien on, the Pledged Collateral, other than Liens created by this
Agreement, Permitted Encumbrances and transfers made in compliance with the Credit Agreement, and
(iv) will defend its title or interest hereto or therein against any and all Liens (other than the
Liens created by this Agreement and Permitted Encumbrances) however arising, of all Persons;
(d) except for restrictions and limitations imposed by (i) the Loan Documents or securities
laws generally and (ii) Liens permitted by the Credit Agreement, the Pledged Collateral is and will
continue to be freely transferable and assignable, and none of the Pledged Collateral is or will be
subject to any option, right of first refusal, shareholders agreement, charter or by-law provisions
or contractual restriction of any nature that might prohibit, impair, delay or otherwise affect the
pledge of such Pledged Collateral hereunder, the sale or disposition thereof pursuant hereto or the
exercise by the Administrative Agent of rights and remedies hereunder;
(e) each of the Grantors has the power and authority to pledge the Pledged Collateral pledged
by it hereunder in the manner hereby done or contemplated;
(f) no consent or approval of any Governmental Authority, any securities exchange or any other
Person was or is necessary to the validity of the pledge effected hereby (other than such as have
been obtained and are in full force and effect);
(g) by virtue of the execution and delivery by the Grantors of this Agreement, when any
Pledged Securities are delivered to the Administrative Agent in accordance with this Agreement, the
Administrative Agent will obtain a legal, valid and perfected first priority lien upon and security
interest in such Pledged Securities as security for the payment and performance of the Obligations;
and
(h) the pledge effected hereby is effective to vest in the Administrative Agent, for the
ratable benefit of the Secured Parties, the rights of the Administrative Agent in the Pledged
Collateral as set forth herein.
SECTION 3.04 Certification of Limited Liability Company and Limited Partnership Interests.
Each interest in any limited liability company or limited partnership controlled by any Grantor and
pledged hereunder shall be represented by a certificate, shall be a “security” within the meaning
of Article 8 of the New York UCC and shall be governed by Article 8 of the New York UCC.
8
nominee (as pledgee or as sub-agent)
or the name of the applicable Grantor, endorsed or assigned in blank or in favor of the
Administrative Agent. Each Grantor will promptly give to the Administrative Agent copies of any
notices or other communications received by it with respect to Pledged Securities registered in the
name of such Grantor. The Administrative Agent shall at all times have the right to exchange the
certificates representing Pledged Securities for certificates of smaller or larger denominations
for any purpose consistent with this Agreement.
(i) Each Grantor shall be entitled to exercise any and all voting and/or other
consensual rights and powers inuring to an owner of Pledged Securities or any part thereof
for any purpose consistent with the terms of this Agreement, the Credit Agreement and the
other Loan Documents; provided that (except with respect to the Pledged Securities, if any,
set forth on Schedule 8 to the Perfection Certificate as of the Effective Date) such rights
and powers shall not be exercised in any manner that could materially and adversely affect
the rights inuring to a holder of any Pledged Securities or the rights and remedies of any
of the Administrative Agent or the other Secured Parties under this Agreement or the Credit
Agreement or any other Loan Document or the ability of the Secured Parties to exercise the
same.
(ii) The Administrative Agent shall execute and deliver to each Grantor, or cause to be
executed and delivered to such Grantor, all such proxies, powers of attorney and other
instruments as such Grantor may reasonably request for the purpose of enabling such Grantor
to exercise the voting and/or consensual rights and powers it is entitled to exercise
pursuant to subparagraph (i) above.
(iii) Each Grantor shall be entitled to receive and retain any and all dividends,
interest, principal and other distributions paid on or distributed in respect of the Pledged
Securities to the extent and only to the extent that such dividends, interest, principal and
other distributions are permitted by, and otherwise paid or distributed in accordance with,
the terms and conditions of the Credit Agreement, the other Loan Documents and applicable
laws; provided that any noncash dividends, interest, principal or other distributions that
would constitute Pledged Stock or Pledged Debt Securities, whether resulting from a
subdivision, combination or reclassification of the outstanding Equity Interests of the
issuer of any Pledged Securities or received in exchange for Pledged Securities or any part
thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition
or other exchange of assets to which such issuer may be a party or otherwise, shall be and
become part of the Pledged Collateral, and, if received by any Grantor, shall not be
commingled by such Grantor with any of its other funds or property but shall be held
separate and apart therefrom, shall be held in trust for the benefit of the Administrative
Agent and shall be forthwith delivered to the Administrative Agent in the same form as so
received (with any necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of Default, after the
Administrative Agent shall have notified the Grantors of the suspension of their rights under
9
paragraph (a)(iii) of this Section 3.06, all rights of any Grantor to dividends, interest,
principal or other distributions that such Grantor is authorized to receive pursuant to paragraph
(a)(iii) of this Section 3.06 shall cease, and all such rights shall thereupon become vested in the
Administrative Agent, which shall have the sole and exclusive right and authority to receive and
retain such dividends, interest, principal or other distributions. All dividends, interest,
principal or other distributions received by any Grantor contrary to the provisions of this Section
3.06 shall be held in trust for the benefit of the Administrative Agent, shall be segregated from
other property or funds of such Grantor and shall be forthwith delivered to the Administrative
Agent upon demand in the same form as so received (with any necessary endorsement). Any and all
money and other property paid over to or received by the Administrative Agent pursuant to the
provisions of this paragraph (b) shall be retained by the Administrative Agent in an account to be
established by the Administrative Agent upon receipt of such money or other property and shall be
applied in accordance with the provisions of Section 5.02. After all Events of Default have been
cured or waived and the applicable Grantor or Grantors have delivered to the Administrative Agent
certificates to that effect, the Administrative Agent shall repay to each Grantor (without
interest) all dividends, interest, principal or other distributions that such Grantor would
otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.06
and that remain in such account.
(c) Upon the occurrence and during the continuance of an Event of Default, after the
Administrative Agent shall have notified the Grantors of the suspension of their rights under
paragraph (a)(i) of this Section 3.06, then all rights of any Grantor to exercise the voting and
consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this
Section 3.06, and the obligations of the Administrative Agent under paragraph (a)(ii) of this
Section 3.06, shall cease, and all such rights shall thereupon become vested in the Administrative
Agent, which shall have the sole and exclusive right and authority to exercise such voting and
consensual rights and powers; provided that, unless otherwise directed by the Required Lenders, the
Administrative Agent shall have the right from time to time following and during the continuance of
an Event of Default to permit the Grantors to exercise such rights.
(d) Any notice given by the Administrative Agent to the Grantors suspending their rights under
paragraph (a) of this Section 3.06 (i) may be given by telephone if promptly confirmed in writing,
(ii) may be given to one or more of the Grantors at the same or different times and (iii) may
suspend the rights of the Grantors under paragraph (a)(i) or paragraph (a)(iii) in part without
suspending all such rights (as specified by the Administrative Agent in its sole and absolute
discretion) and without waiving or otherwise affecting the Administrative Agent’s rights to give
additional notices from time to time suspending other rights so long as an Event of Default has
occurred and is continuing.
ARTICLE IV
10
of the Secured Parties, a security interest (the “Security Interest”) in all right, title
or interest in or to any and all of the following assets and properties 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 “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) all Fixtures;
(xi) Letter-of-credit rights;
(xii) all books and records pertaining to the Article 9 Collateral; and
(xiii) to the extent not otherwise included, all Proceeds and products of any and all
of the foregoing and all collateral security and guarantees given by any Person with respect
to any of the foregoing.
Notwithstanding the foregoing, the term “Article 9 Collateral” shall not include (i) any Investment
Property consisting of issued and outstanding voting Equity Interests of any Foreign Subsidiary to
the extent exceeding 65% of such voting Equity Interests of such Foreign Subsidiary, (ii) any
Excluded Borrower Stock, or (iii) any Equity Interest of Cumulus Media Partners, LLC.
(b) Each Grantor hereby irrevocably authorizes the Administrative Agent at any time and from
time to time to file in any relevant jurisdiction any initial financing statements (including
fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments
thereto (i) indicate the Collateral as all assets of such Grantor or words of similar effect as
being of an equal or lesser scope or with greater detail, and (ii) contain the information required
by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any
financing statement or amendment, including (a) whether such Grantor is an
organization, the type of organization and any organizational identification number issued to
such Grantor and (b) in the case of a financing statement filed as a fixture filing or covering
11
Article 9 Collateral constituting minerals or the like to be extracted or timber to be cut, a
sufficient description of the real property to which such Article 9 Collateral relates. Each
Grantor agrees to provide such information to the Administrative Agent promptly upon request.
Each Grantor also ratifies its authorization for the Administrative Agent to file in any
relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the
date hereof.
The Administrative Agent is further authorized to file with the United States Patent and
Trademark Office or United States Copyright Office (or any successor office or any similar office
in any other country) such documents as may be necessary or advisable for the purpose of
perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each
Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors
and the Administrative Agent as secured party.
(a) Each Grantor has good and valid rights in and title to the Article 9 Collateral with
respect to which it has purported to grant a Security Interest hereunder and has full power and
authority to grant to the Administrative Agent the Security Interest in such Article 9 Collateral
pursuant hereto and to execute, deliver and perform its obligations in accordance with the terms of
this Agreement, without the consent or approval of any other Person other than any consent or
approval that has been obtained.
(b) The Perfection Certificate has been duly prepared, completed and executed and the
information set forth therein, including the exact legal name of each Grantor, is correct and
complete as of the Effective Date. The Uniform Commercial Code financing statements (including
fixture filings, as applicable) or other appropriate filings, recordings or registrations prepared
by the Administrative Agent based upon the information provided to the Administrative Agent in the
Perfection Certificate for filing in each governmental, municipal or other office specified in
Schedule 5 to the Perfection Certificate (or specified by notice from the Borrower to the
Administrative Agent after the Effective Date in the case of filings, recordings or registrations
required by Section 5.03(a) or 5.12 of the Credit Agreement), which are all the filings, recordings
and registrations (other than filings required to be made in the United States Patent and Trademark
Office and the United States Copyright Office in order to perfect the Security Interest in Article
0 Xxxxxxxxxx xxxxxxxxxx xx Xxxxxx Xxxxxx Patents, Trademarks and Copyrights) that are necessary to
publish notice of and protect the validity of and to establish a legal, valid and perfected
security interest in favor of the Administrative Agent (for the benefit of the Secured Parties) in
respect of all Article 9 Collateral in which the Security Interest may be perfected by filing,
recording or registration in the United States (or any political subdivision
thereof) and its territories and possessions, and no further or subsequent filing, refiling,
recording, rerecording, registration or reregistration is necessary in any such jurisdiction,
except
12
as provided under applicable law with respect to the filing of continuation statements.
Each Grantor represents and warrants that a fully executed agreement in the form hereof and
containing a description of all Article 9 Collateral consisting of Intellectual Property with
respect to United States Patents and United States registered Trademarks (and Trademarks for which
United States registration applications are pending) and United States registered Copyrights has
been delivered to the Administrative Agent for recording by the United States Patent and Trademark
Office and the United States Copyright Office pursuant to 35 U.S.C. Section 261, 15 U.S.C.
Section 1060 or 17 U.S.C. Section 205 and the regulations thereunder, as applicable, to protect
the validity of and to establish a legal, valid and perfected security interest in favor of the
Administrative Agent (for the benefit of the Secured Parties) in respect of all Article 9
Collateral consisting of Patents, Trademarks and Copyrights in which a security interest may be
perfected by filing, recording or registration in the United States (or any political subdivision
thereof) and its territories and possessions, and no further or subsequent filing, refiling,
recording, rerecording, registration or reregistration is necessary (other than such actions as are
necessary to perfect the Security Interest with respect to any Article 9 Collateral consisting of
Patents, Trademarks and Copyrights (or registration or application for registration thereof)
acquired or developed after the date hereof).
(c) The Security Interest constitutes (i) a legal and valid security interest in all the
Article 9 Collateral securing the payment and performance of the Obligations, (ii) subject to the
filings described in Section 4.02(b), a perfected security interest in all Article 9 Collateral in
which a security interest may be perfected by filing, recording or registering a financing
statement or analogous document in the United States (or any political subdivision thereof) and its
territories and possessions pursuant to the Uniform Commercial Code and (iii) a security interest
that shall be perfected in all Article 9 Collateral in which a security interest may be perfected
upon the receipt and recording of this Agreement with the United States Patent and Trademark Office
and the United States Copyright Office, as applicable. The Security Interest is and shall be prior
to any other Lien on any of the Article 9 Collateral, other than Permitted Encumbrances that have
priority as a matter of law and Liens expressly permitted to be prior to the Security Interest
pursuant to clause (c), (d) or (e) of Section 6.02 of the Credit Agreement, as applicable.
(d) The Article 9 Collateral is owned by the Grantors free and clear of any Lien, other than
Permitted Encumbrances and Liens expressly permitted pursuant to clause (c), (d) or (e) of Section
6.02 of the Credit Agreement. None of the Grantors has filed or consented to the filing of (i) any
financing statement or analogous document under the Uniform Commercial Code or any other applicable
laws covering any Article 9 Collateral, (ii) any assignment in which any Grantor assigns any
Collateral or any security agreement or similar instrument covering any Article 9 Collateral with
the United States Patent and Trademark Office or the United States Copyright Office or (iii) any
assignment in which any Grantor assigns any Article 9 Collateral or any security agreement or
similar instrument covering any Article 9 Collateral with any foreign governmental, municipal or
other office, which financing statement or analogous document, assignment, security agreement or
similar instrument is still in effect, except, in each case, for Permitted Encumbrances and Liens
expressly permitted pursuant to clause (c), (d) or (e) of
Section 6.02 of the Credit Agreement. None of the Grantors hold any commercial tort claim as
of the Effective Date except as indicated on the Perfection Certificate.
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(b) Each Grantor shall, at its own expense, take any and all actions necessary to defend title
to the Article 9 Collateral against all Persons and to defend the Security Interest of the
Administrative Agent in the Article 9 Collateral and the priority thereof against any Lien not
expressly permitted pursuant to clause (c), (d) or (e) of Section 6.02 of the Credit Agreement.
(c) Each Grantor agrees, at its own expense, to execute, acknowledge, deliver and cause to be
duly filed all such further instruments and documents and take all such actions as the
Administrative Agent may from time to time request to better assure, preserve, protect and perfect
the Security Interest and the rights and remedies created hereby, including the payment of any fees
and taxes required in connection with the execution and delivery of this Agreement, the granting of
the Security Interest and the filing of any financing statements (including fixture filings) or
other documents in connection herewith or therewith. If any amount payable under or in connection
with any of the Article 9 Collateral shall be or become evidenced by any promissory note or other
instrument, such note or instrument (except as of the Effective Date, those notes or instruments
set forth on Schedule 8 to the Perfection Certificate) shall be immediately pledged and delivered
to the Administrative Agent, duly endorsed in a manner satisfactory to the Administrative Agent.
Notwithstanding any provision herein to the contrary, the Grantors shall have 30 days from the
Agreement Date to deliver Schedule III to this Agreement and Schedules 10(A) and 10(B) of the
Perfection Certificate; provided that (i) the failure to deliver such schedules shall constitute an
Event of Default and (ii) such schedules shall contain all Intellectual Property of each Grantor
(except for Intellectual Property which, both individually and in the aggregate, does not have any
material value).
Without limiting the generality of the foregoing, each Grantor hereby authorizes the
Administrative Agent, with prompt notice thereof to the Grantors, to supplement this Agreement by
supplementing Schedule III or adding additional schedules hereto to specifically identify any asset
or item that constitutes Copyrights, Licenses, Patents or Trademarks; provided that any Grantor
shall have the right, exercisable within 10 days after it has been notified by the Administrative
Agent of the specific identification of such Collateral, to advise the Administrative Agent in
writing of any inaccuracy of the representations and warranties made by such Grantor hereunder with
respect to such Collateral. Each Grantor agrees that it will use its commercially reasonable best
efforts to take such action as shall be necessary in order that all representations and warranties
hereunder shall be true and correct with respect to such Article 9
Collateral within 30 days after the date it has been notified by the Administrative Agent of
the specific identification of such Article 9 Collateral.
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(d) The Administrative Agent and such Persons as the Administrative Agent may reasonably
designate shall have the right, at the Grantors’ own cost and expense, to inspect the Article 9
Collateral, all records related thereto (and to make extracts and copies from such records) and the
premises upon which any of the Article 9 Collateral is located, to discuss the Grantors’ affairs
with the officers of the Grantors and their independent accountants and to verify under reasonable
procedures, in accordance with Section 5.03 of the Credit Agreement, the validity, amount, quality,
quantity, value, condition and status of, or any other matter relating to, the Article 9
Collateral, including, in the case of Accounts or Article 9 Collateral in the possession of any
third person and to the extent that a Default or Event of Default has occurred and is continuing,
by contacting Account Debtors or the third person possessing such Article 9 Collateral for the
purpose of making such a verification. The Administrative Agent shall have the absolute right to
share any information it gains from such inspection or verification with any Secured Party.
(e) At its option, the Administrative Agent may discharge past due taxes, assessments,
charges, fees, Liens, security interests or other encumbrances at any time levied or placed on the
Collateral and not permitted pursuant to Section 6.02 of the Credit Agreement, and may pay for the
maintenance and preservation of the Article 9 Collateral to the extent any Grantor fails to do so
as required by the Credit Agreement or this Agreement, and each Grantor jointly and severally
agrees to reimburse the Administrative Agent promptly on demand for any payment made or any expense
incurred by the Administrative Agent pursuant to the foregoing authorization; provided, however,
that nothing in this paragraph shall be interpreted as excusing any Grantor from the performance
of, or imposing any obligation on the Administrative Agent or any Secured Party to cure or perform,
any covenants or other promises of any Grantor with respect to taxes, assessments, charges, fees,
Liens, security interests or other encumbrances and maintenance as set forth herein or in the other
Loan Documents.
(f) If at any time any Grantor shall take a security interest in any property of an Account
Debtor or any other Person to secure payment and performance of an Account, such Grantor shall
promptly assign such security interest to the Administrative Agent. Such assignment need not be
filed of public record unless necessary to continue the perfected status of the security interest
against creditors of and transferees from the Account Debtor or other Person granting the security
interest.
(g) Each Grantor shall remain liable to observe and perform all the conditions and obligations
to be observed and performed by it under each contract, agreement or instrument relating to the
Article 9 Collateral, all in accordance with the terms and conditions thereof, and each Grantor
jointly and severally agrees to indemnify and hold harmless the Administrative Agent and the
Secured Parties from and against any and all liability for such performance.
(h) None of the Grantors shall make or permit to be made an assignment, pledge or
hypothecation of the Article 9 Collateral or shall grant any other Lien in respect of the Article 9
Collateral, except as permitted by the Credit Agreement. None of the Grantors shall make or permit
to be made any transfer of the Article 9 Collateral and each Grantor shall remain at all
times in possession of the Article 9 Collateral owned by it, except that (i) Inventory may be
sold in the ordinary course of business or as otherwise permitted by the Credit Agreement and (ii)
unless and until the Administrative Agent shall notify the Grantors that an Event of Default shall
15
have occurred and be continuing and that during the continuance thereof the Grantors shall not
sell, convey, lease, assign, transfer or otherwise dispose of any Article 9 Collateral (which
notice may be given by telephone if promptly confirmed in writing), the Grantors may use and
dispose of the Article 9 Collateral in any lawful manner not inconsistent with the provisions of
this Agreement, the Credit Agreement or any other Loan Document. Without limiting the generality
of the foregoing, each Grantor agrees that it shall not permit any Inventory to be in the
possession or control of any warehouseman, bailee, agent or processor at any time unless such
warehouseman, bailee, agent or processor shall have been notified of the Security Interest and
shall have acknowledged in writing, in form and substance satisfactory to the Administrative Agent,
that such bailee or processor holds the Inventory for the benefit of the Administrative Agent
subject to the Security Interest and shall act upon the instructions of the Administrative Agent
without further consent from the Grantor, and that such warehouseman, bailee, agent or processor
further agrees to waive and release any Lien held by it with respect to such Inventory, whether
arising by operation of law or otherwise.
(i) None of the Grantors will, without the Administrative Agent’s prior written consent, grant
any extension of the time of payment of any Accounts included in the Article 9 Collateral,
compromise, compound or settle the same for less than the full amount thereof, release, wholly or
partly, any Person liable for the payment thereof or allow any credit or discount whatsoever
thereon, other than extensions, credits, discounts, compromises or settlements granted or made in
the ordinary course of business and consistent with its current practices and in accordance with
such prudent and standard practice used in industries that are the same as or similar to those in
which such Grantor is engaged or extensions, credits, discounts, compromises, settlements or
forgiveness granted in connection with the Article 9 Collateral set forth on Schedule 8 to the
Perfection Certificate as of the Effective Date.
(j) The Grantors, at their own expense, shall maintain or cause to be maintained insurance
covering physical loss or damage to the Inventory and Equipment in accordance with the requirements
set forth in Schedule IV hereto and Section 5.07 of the Credit Agreement. Each Grantor irrevocably
makes, constitutes and appoints the Administrative Agent (and all officers, employees or agents
designated by the Administrative Agent) as such Grantor’s true and lawful agent (and
attorney-in-fact) for the purpose, during the continuance of an Event of Default, of making,
settling and adjusting claims in respect of Article 9 Collateral under policies of insurance,
endorsing the name of such Grantor on any check, draft, instrument or other item of payment for the
proceeds of such policies of insurance and for making all determinations and decisions with respect
thereto. In the event that any Grantor at any time or times shall fail to obtain or maintain any
of the policies of insurance required hereby or to pay any premium in whole or part relating
thereto, the Administrative Agent may, without waiving or releasing any obligation or liability of
the Grantors hereunder or any Event of Default, in its sole discretion, obtain and maintain such
policies of insurance and pay such premium and take any other actions with respect thereto as the
Administrative Agent deems advisable. All sums disbursed by the Administrative Agent in connection
with this paragraph, including reasonable attorneys’ fees, court costs, expenses and other charges
relating thereto, shall be payable, upon demand, by the Grantors to the Administrative Agent and
shall be additional Obligations secured hereby.
16
(k) Each Grantor shall maintain, in form and manner reasonably satisfactory to the
Administrative Agent, records of its Chattel Paper and its books, records and documents evidencing
or pertaining thereto.
17
immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request
and option, pursuant to an agreement in form and substance reasonably satisfactory to the
Administrative Agent, either (i) cause such securities intermediary or (as the case may be)
commodity intermediary to agree to comply with entitlement orders or other instructions from the
Administrative Agent to such securities intermediary as to such security entitlements, or (as the
case may be) to apply any value distributed on account of any commodity contract as directed by the
Administrative Agent to such commodity intermediary, in each case without further consent of any
Grantor or such nominee, or (ii) in the case of Financial Assets or other Investment Property held
through a securities intermediary, arrange for the Administrative Agent to become the entitlement
holder with respect to such investment property, with the Grantor being permitted, only with the
consent of the Administrative Agent, to exercise rights to withdraw or otherwise deal with such
investment property. The Administrative Agent agrees with each of the Grantors that the
Administrative Agent shall not give any such entitlement orders or instructions or directions to
any such issuer, securities intermediary or commodity intermediary, and shall not withhold its
consent to the exercise of any withdrawal or dealing rights by any Grantor, unless an Event of
Default has occurred and is continuing, or, after giving effect to any such investment and
withdrawal rights, would occur. The provisions of this paragraph shall not apply to any financial
assets credited to a securities account for which (A) the Administrative Agent is the securities
intermediary or (B) unless an Event of Default has occurred and is continuing, the aggregate value
of the financial assets in such securities account is less than $5,000,000.
(d) Electronic Chattel Paper and Transferable Records. If any Grantor at any time holds or
acquires an interest in any electronic chattel paper or any “transferable record”, as that term is
defined in Section 201 of the Federal Electronic Signatures in Global and National Commerce Act, or
in Section 16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction,
such Grantor shall promptly notify the Administrative Agent thereof and, at the request of the
Administrative Agent, shall take such action as the Administrative Agent may reasonably request to
vest in the Administrative Agent control under New York UCC Section 9-105 of such electronic
chattel paper or under Section 201 of the Federal Electronic Signatures in Global and National
Commerce Act or, as the case may be, Section 16 of the Uniform Electronic Transactions Act, as in
effect in such jurisdiction. The Administrative Agent agrees with such Grantor that the
Administrative Agent will arrange, pursuant to procedures reasonably satisfactory to the
Administrative Agent and so long as such procedures will not result in the Administrative Agent’s
loss of control, for the Grantor to make alterations to the electronic Chattel Paper or
transferable record permitted under New York UCC Section 9-105 or, as the case may be, Section 201
of the Federal Electronic Signatures in Global and National Commerce Act or Section 16 of the
Uniform Electronic Transactions Act for a party in control to allow without loss of control, unless
an Event of Default has occurred and is continuing or would occur after taking into account any
action by such Grantor with respect to such electronic chattel paper or transferable record.
18
to consent to an assignment to the Administrative Agent of the proceeds of any drawing under
the letter of credit or (ii) arrange for the Administrative Agent to become the transferee
beneficiary of the letter of credit, with the Administrative Agent agreeing, in each case, that the
proceeds of any drawing under the letter of credit are to be paid to the applicable Grantor unless
an Event of Default has occurred or is continuing.
(b) Each Grantor (either itself or through its licensees or its sublicensees) will, for each
Trademark material to the conduct of such Grantor’s business, (i) maintain such Trademark in full
force free from any claim of abandonment or invalidity for nonuse, (ii) maintain the quality of
products and services offered under such Trademark, (iii) display such Trademark with notice of
Federal or foreign registration to the extent necessary and sufficient to establish and preserve
its maximum rights under applicable law and (iv) not knowingly use or knowingly permit the use of
such Trademark in violation of any third party rights.
(c) Each Grantor (either itself or through its licensees or sublicensees) will, for each work
covered by a material Copyright, continue to publish, reproduce, display, adopt and distribute the
work with appropriate copyright notice as necessary and sufficient to establish and preserve its
maximum rights under applicable copyright laws.
(d) Each Grantor shall notify the Administrative Agent promptly if it knows or has reason to
know that any Patent, Trademark or Copyright material to the conduct of its business may become
abandoned, lost or dedicated to the public, or of any materially adverse determination or
development (including the institution of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office, United States Copyright Office or any
court or similar office of any country) regarding such Grantor’s ownership of any such Patent,
Trademark or Copyright, its right to register the same, or its right to keep and maintain the same.
(e) In no event shall any Grantor, either itself or through any agent, employee, licensee or
designee, file an application for any Patent, Trademark or Copyright (or for the registration of
any Trademark or Copyright) with the United States Patent and Trademark Office, United States
Copyright Office or any office or agency in any political subdivision of the United
19
States or in any other country or any political subdivision thereof, unless it promptly
informs the Administrative Agent thereof, and, upon request of the Administrative Agent, executes
and delivers any and all agreements, instruments, documents and papers as the Administrative Agent
may reasonably request to evidence the Administrative Agent’s security interest in such Patent,
Trademark or Copyright, and each Grantor hereby appoints the Administrative Agent as its
attorney-in-fact to execute and file such writings for the foregoing purposes, all acts of such
attorney being hereby ratified and confirmed; such power, being coupled with an interest, is
irrevocable.
(f) Each Grantor will take all necessary steps that are consistent with the practice in any
proceeding before the United States Patent and Trademark Office, United States Copyright Office or
any office or agency in any political subdivision of the United States or in any other country or
any political subdivision thereof, to maintain and pursue each material application relating to the
Patents, Trademarks and/or Copyrights (and to obtain the relevant grant or registration) and to
maintain each issued Patent and each registration of the Trademarks and Copyrights that is material
to the conduct of any Grantor’s business, including timely filings of applications for renewal,
affidavits of use, affidavits of incontestability and payment of maintenance fees, and, consistent
with good business judgment, to initiate opposition, interference and cancellation proceedings
against third parties.
(h) Upon and during the continuance of an Event of Default, each Grantor shall use its
commercially reasonable best efforts to obtain all requisite consents or approvals by the licensor
of each Copyright License, Patent License or Trademark License to effect the assignment of all such
Grantor’s right, title and interest thereunder to the Administrative Agent or its designee.
ARTICLE V
20
as the Administrative Agent shall determine (other than in violation of any then-existing
licensing arrangements to the extent that waivers thereof cannot be obtained), and (b) with or
without legal process and with or without prior notice or demand for performance, to take
possession of the Article 9 Collateral and without liability for trespass to enter any premises
where the Article 9 Collateral may be located for the purpose of taking possession of or removing
the Article 9 Collateral and, generally, to exercise any and all rights afforded to a secured party
under the Uniform Commercial Code or other applicable law. Without limiting the generality of the
foregoing, each Grantor agrees that the Administrative Agent shall have the right, subject to the
mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the
Collateral at a public or private sale or at any broker’s board or on any securities exchange, for
cash, upon credit or for future delivery as the Administrative Agent shall deem appropriate. The
Administrative Agent shall be authorized at any such sale of securities (if it deems it advisable
to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree
that they are purchasing the Collateral for their own account for investment and not with a view to
the distribution or sale thereof, and upon consummation of any such sale the Administrative Agent
shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any sale of the Collateral shall hold the property sold
absolutely, free from any claim or right on the part of any Grantor, and each Grantor hereby waives
(to the extent permitted by law) all rights of redemption, stay and appraisal which such Grantor
now has or may at any time in the future have under any rule of law or statute now existing or
hereafter enacted.
The Administrative Agent shall give the applicable Grantors 10 days’ written notice (which
each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or
its equivalent in other jurisdictions) of the Administrative Agent’s intention to make any sale of
Collateral. Such notice, in the case of a public sale, shall state the time and place for such
sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the
board or exchange at which such sale is to be made and the day on which the Collateral, or portion
thereof, will first be offered for sale at such board or exchange. Any such public sale shall be
held at such time or times within ordinary business hours and at such place or places as the
Administrative Agent may fix and state in the notice (if any) of such sale. At any such sale, the
Collateral , or portion thereof, to be sold may be sold in one lot as an entirety or in separate
parcels, as the Administrative Agent may (in its sole and absolute discretion) determine. The
Administrative Agent shall not be obligated to make any sale of any Collateral if it shall
determine not to do so, regardless of the fact that notice of sale of such Collateral shall have
been given. The Administrative Agent 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 sale, and such sale may, without further notice, be made at the time and place to
which the same was so adjourned. In case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the Administrative Agent
until the sale price is paid by the purchaser or purchasers thereof, but the Administrative Agent
shall not incur any liability in case any such purchaser or purchasers shall fail to take up and
pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again
upon like notice. At any public (or, to the extent permitted by law, private) sale made pursuant
to this Agreement, any Secured Party may bid for or purchase, free (to the extent permitted by law)
from any right of redemption, stay, valuation or appraisal on the part of any Grantor (all said
rights being also hereby waived and released to the extent permitted by law),
21
the Collateral or any part thereof offered for sale and may (with the consent of the
Administrative Agent) make payment on account thereof by using any Obligation then due and payable
to such Secured Party from any Grantor as a credit against the purchase price, and such Secured
Party may, upon compliance with the terms of sale, hold, retain and dispose of such property
without further accountability to any Grantor therefor. For purposes hereof, a written agreement
to purchase the Collateral or any portion thereof shall be treated as a sale thereof; the
Administrative Agent shall be free to carry out such sale pursuant to such agreement and no Grantor
shall be entitled to the return of the Collateral or any portion thereof subject thereto,
notwithstanding the fact that after the Administrative Agent shall have entered into such an
agreement all Events of Default shall have been remedied and the Obligations paid in full. As an
alternative to exercising the power of sale herein conferred upon it, the Administrative Agent may
proceed by a suit or suits at law or in equity to foreclose this Agreement and to sell the
Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having
competent jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale
pursuant to the provisions of this Section 5.01 shall be deemed to conform to the commercially
reasonable standards as provided in Section 9-610(b) of the New York UCC or its equivalent in other
jurisdictions.
FIRST, to the payment of all costs and expenses incurred by the Administrative Agent in
connection with such collection or sale or otherwise in connection with this Agreement, any
other Loan Document or any of the Obligations, including all court costs and the reasonable
fees and expenses of its agents and legal counsel, the repayment of all advances made by the
Administrative Agent hereunder or under any other Loan Document on behalf of any Grantor and
any other costs or expenses incurred in connection with the exercise of any right or remedy
hereunder or under any other Loan Document;
SECOND, to the payment in full of the Obligations (the amounts so applied to be
distributed among the Secured Parties pro rata in accordance with the amounts of the
Obligations owed to them on the date of any such distribution); and
THIRD, to the Grantors, their successors or assigns, or as a court of competent
jurisdiction may otherwise direct.
The Administrative Agent shall have absolute discretion as to the time of application of any
such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral
by the Administrative Agent (including pursuant to a power of sale granted by statute or under a
judicial proceeding), the receipt of the Administrative Agent or of the officer making the sale
shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such
purchaser or purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Administrative Agent or such officer or be answerable in any way
for the misapplication thereof.
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23
ARTICLE VI
(b) Each of the Guarantors hereby agrees that all Indebtedness and other monetary obligations
owed by it to any other Guarantor or any Subsidiary shall be fully subordinated to the indefeasible
payment in full in cash of the Obligations.
ARTICLE VII
24
25
(b) Without limitation of its indemnification obligations under the other Loan Documents, each
Grantor jointly and severally agrees to indemnify the Administrative Agent and the other
Indemnitees (as defined in Section 9.03 of the Credit Agreement) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of, the execution, delivery or
performance of this Agreement or any claim, litigation, investigation or proceeding relating
hereto, or to the Collateral, whether or not any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of
such Indemnitee.
(c) Any such amounts payable as provided hereunder shall be additional Obligations secured
hereby and by the other Security Documents. The provisions of this Section 7.06 shall remain
operative and in full force and effect regardless of the termination of this Agreement or any other
Loan Document, the consummation of the transactions contemplated hereby, the repayment of any of
the Obligations, the invalidity or unenforceability of any term or provision of this Agreement or
any other Loan Document, or any investigation made by or on behalf of the Administrative Agent or
any other Secured Party. All amounts due under this Section 7.06 shall be payable on written
demand therefor.
26
prosecute any and all suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect or otherwise realize on all or any of the Collateral or to
enforce any rights in respect of any Collateral; (g) to settle, compromise, compound, adjust or
defend any actions, suits or proceedings relating to all or any of the Collateral; (h) to notify,
or to require any Grantor to notify, Account Debtors to make payment directly to the Administrative
Agent; and (i) to use, sell, assign, transfer, pledge, make any agreement with respect to or
otherwise deal with all or any of the Collateral, and to do all other acts and things necessary to
carry out the purposes of this Agreement, as fully and completely as though the Administrative
Agent were the absolute owner of the Collateral for all purposes; provided, that nothing herein
contained shall be construed as requiring or obligating the Administrative Agent to make any
commitment or to make any inquiry as to the nature or sufficiency of any payment received by the
Administrative Agent, or to present or file any claim or notice, or to take any action with respect
to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any
property covered thereby. The Administrative Agent and the other Secured Parties shall be
accountable only for amounts actually received as a result of the exercise of the powers granted to
them herein, and neither they nor their officers, directors, employees or agents shall be
responsible to any Grantor for any act or failure to act hereunder, except for their own gross
negligence or wilful misconduct.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the
Loan Party or Loan Parties with respect to which such waiver, amendment or modification is to
apply, subject to any consent required in accordance with Section 9.02 of the Credit Agreement.
27
28
(b) Each of the Loan Parties hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement
or any other Loan Document in any court referred to in paragraph (a) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 7.01. Nothing in this Agreement or any other Loan Document will
affect the right of any party to this Agreement to serve process in any other manner permitted by
law.
(b) A Subsidiary Party shall automatically be released from its obligations hereunder and the
Security Interest in the Collateral of such Subsidiary Party shall be automatically released upon
the consummation of any transaction permitted by the Credit Agreement as a result of which such
Subsidiary Party ceases to be a Subsidiary of the Borrower; provided that the Required Lenders
shall have consented to such transaction (to the extent required by the Credit Agreement) and the
terms of such consent did not provide otherwise.
(c) Upon any sale or other transfer by any Grantor of any Collateral that is permitted under
the Credit Agreement to any Person that is not a Grantor, or, upon the effectiveness of any written
consent to the release of the security interest granted hereby in any Collateral pursuant to
Section 9.02 of the Credit Agreement, the security interest in such Collateral shall be
automatically released.
(d) In connection with any termination or release pursuant to paragraph (a), (b) or (c), the
Administrative Agent shall execute and deliver to any Grantor at such Grantor’s expense, all
documents that such Grantor shall reasonably request to evidence such termination or release. Any
execution and delivery of documents pursuant to this Section 7.15 shall be without recourse to or
warranty by the Administrative Agent.
29
The rights and obligations of each Loan Party hereunder shall remain in full force and effect
notwithstanding the addition of any new Loan Party as a party to this Agreement.
30
CUMULUS MEDIA INC. | ||||||
By: | /s/ Xxxxxx X. Xxxxxxx | |||||
Name: Xxxxxx X. Xxxxxxx | ||||||
Title: Executive Vice President, Treasurer and | ||||||
Chief Financial Officer | ||||||
CUMULUS BROADCASTING LLC | ||||||
By: | /s/ Xxxxxx X. Xxxxxxx | |||||
Name: Xxxxxx X. Xxxxxxx | ||||||
Title: Executive Vice President, Treasurer and | ||||||
Chief Financial Officer | ||||||
CUMULUS LICENSING LLC | ||||||
By: | /s/ Xxxxxx X. Xxxxxxx | |||||
Name: Xxxxxx X. Xxxxxxx | ||||||
Title: Executive Vice President, Treasurer and | ||||||
Chief Financial Officer |
BANK OF AMERICA, N.A., as Administrative Agent |
||||||
By: | /s/ Xxxxxxxxxxx X. Xxx | |||||
Name: Xxxxxxxxxxx X. Xxx | ||||||
Title: Vice President |
SCHEDULE
I
to the Guarantee and
Collateral Agreement
to the Guarantee and
Collateral Agreement
SUBSIDIARY
PARTIES
Cumulus
Broadcasting LLC
Cumulus Licensing LLC
Cumulus Licensing LLC