EXHIBIT 10.3
SECURITY AGREEMENT
This SECURITY AGREEMENT (the "Security Agreement"), dated as of July 2,
1998, among INTEREP NATIONAL RADIO SALES, INC., (the "Company"), MCGAVREN GUILD,
INC., D&R RADIO, INC., CBS RADIO SALES, INC., ALLIED RADIO PARTNERS, INC.,
CABALLERO SPANISH MEDIA L.L.C. AND CLEAR CHANNEL RADIO, LLC (collectively, and
together with the Company, the "Securing Parties"), and BANKBOSTON, N.A., as
administrative agent (the "Agent") for the Lenders from time to time parties to
the Credit Agreement (as defined below).
WHEREAS, pursuant to a certain Revolving Line of Credit Agreement, dated as
of the date hereof (as amended, restated, modified and supplemented and in
effect from time to time, the "Credit Agreement"), among the Securing Parties,
the Lenders, the Agent, and SUMMIT BANK, as documentation agent, the Lenders
have agreed to make certain loans to the Securing Parties, each of which will
derive benefit, directly and indirectly, from such loans;
WHEREAS, it is a condition precedent to the agreement of the Lenders to
make loans under the Credit Agreement that each of the Securing Parties shall
have executed and delivered to the Agent certain Security Documents, including,
without limitation, this Security Agreement; and
WHEREAS, this Security Agreement is given by the Securing Parties in favor
of the Agent and the Lenders to secure the payment and performance of all of the
Secured Obligations (as hereinafter defined).
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows.
Section 1. Certain Definitions. As used herein, the following terms shall
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have the following meanings:
"Collateral" shall mean:
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(i) all personal property and fixtures of each of the Securing Parties,
whether now or hereafter existing or now owned or hereafter acquired by any
Securing Party and whether the same is now contemplated, anticipated or
foreseeable, and wherever located, of every kind and description, tangible or
intangible, including without limitation, the following, to the extent now owned
or hereafter acquired by such Securing Party:
(a) all goods (which shall mean and include all inventory, merchandise,
raw materials, supplies, work in process, finished goods, and other
tangible personal property held for processing, sale or lease or
furnished or to be furnished under contracts of service or used or
consumed in any Securing Parties' business) as well as all goods in
transit, all returned or rejected goods, and all documents which
represent any of the foregoing;
(b) all accounts (which shall mean and include all accounts receivable,
notes, drafts, acceptances and other instruments representing or
evidencing a right to payment for goods sold or leased or for services
rendered whether or not earned by performance) and all books, records,
ledgers, print-outs, file materials and other papers relating thereto;
(c) all equipment, machinery, tools, dies, molds, furniture, furnishings,
fixtures and all tangible personal property similar to any of the
foregoing;
(d) all general intangibles, including, without limitation, tradenames,
customer lists, goodwill, computer programs, computer records,
computer software, computer data, trade secrets, intellectual
property, trademarks (and all goodwill connected with and symbolized
by such trademarks), patents, licenses, ledger sheets, files, records,
and data processing records relating to any accounts;
(e) all chattel paper of every kind and description, including additions
thereto and substitutions therefor;
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(f) all rights to payment of money arising under contracts (whether
written or oral or otherwise), including, without limitation, amounts
due from affiliates, all tax refunds of every kind and nature
including loss carryback refunds, insurance policies and proceeds,
factoring agreements, all rights to deposits or advance payments and
all rights to receive surplus funds, if any, which are payable to any
Securing Party following the termination of any employee pension plan;
(g) all documents, documents of title, and instruments (whether negotiable
or non-negotiable);
(h) all Investment Property (as such term is defined in the Uniform
Commercial Code as enacted in the Commonwealth of Massachusetts);
(i) all liens, guaranties and securities for any of the foregoing; and
(j) all products of, accessions to, and proceeds of any of the foregoing.
provided, however, the Collateral shall not include the Borrowers' rights, title
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or interest in or to the Contracts (as that term is defined in the Credit
Agreement); provided, further, however, that the Collateral shall include all of
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the Borrowers' rights, title or interest in or to any or all proceeds or rights
to payment arising under or relating to such Contracts.
All of such property in (a) through (j) above is collectively referred to
as the "Collateral".
"Secured Obligations" shall mean (i) the obligations of the Securing
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Parties under this Agreement (including, without limitation, the obligation of
the Securing Parties to repay any and all sums advanced by the Agent or any
Lender, at its or their option, in payment of taxes, assessments or other
charges and expenses, or to satisfy Liens, other than those created hereby, on
or in the Collateral or any part thereof) and (ii) the obligations of the
Securing Parties to pay, when due (whether at stated maturity, by acceleration
or otherwise), the principal of and interest on the Loans made and to be made to
the Securing Parties under
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the Credit Agreement and the Notes evidencing the same, and the commitment fees
and Agent's fees and all other amounts payable by any Securing Party to the
Agent and/or the Lenders thereunder.
Except as otherwise defined herein, all capitalized terms which are used in
this Agreement which are defined in the Credit Agreement shall have the
respective meanings assigned to such terms in the Credit Agreement.
Section 2. Grant of Security Interest. As security for the prompt
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payment, observance and performance when due (by acceleration or otherwise) of
the Secured Obligations, each of the Securing Parties hereby grants to the
Agent, for the ratable benefit of the Lenders, a continuing first priority
security interest in, a continuing lien upon and/or a right of set-off against
all of the Collateral.
Section 3. Representations, Warranties and Covenants of the Securing
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Parties.
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A. Perfection. At any time and from time to time, upon demand of the
Agent, each Securing Party will:
(1) Deliver and pledge (or cause to be delivered and pledged) to the
Agent, endorsed and/or accompanied by such further instruments of
assignment and transfer in such form and substance as the Agent may
reasonably request, any and all cash equivalents (other than balances in
bank accounts), instruments, securities, investments, documents and/or
chattel paper included in or evidencing or otherwise relating to the
Collateral owned or held by such Securing Party as the Agent may specify;
(2) Execute and deliver to the Agent a mortgage or mortgages
(satisfactory in form and substance to the Agent) creating Liens in favor
of the Agent securing the Secured Obligations on any real property
(including, without limitation, leasehold interests) of the Securing
Parties, or such portion thereof as may be specified by the Agent, and take
such action as may be necessary to duly file and/or record such Liens in
such public office or offices, and take such other actions (including using
reasonable efforts for a reasonable period of time to obtain consents and
acknowledgments of landlords and other third parties) as may be
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necessary or desirable (in the opinion of the Agent), in order for such
Liens to constitute valid and effective Liens on such real property as
security for the Secured Obligations, subject to no equal or prior Liens
(other than Permitted Liens and the other Liens permitted by, and subject
to, Section 8.12 of the Credit Agreement);
(3) To the extent any of the Collateral owned or held by such Securing
Party consists of property which constitutes fixtures under the laws of the
jurisdiction in which such property is located, use reasonable efforts for
a reasonable period of time to furnish or cause to be furnished to the
Agent valid and effective waivers of interest in such Collateral by all
landlords, lessors, mortgagees, co-owners, encumbrances or other parties in
interest with respect to the real property upon which such Collateral is
located;
(4) If and to the extent determined by the Agent, at the direction of
the Majority Lenders, to be desirable to protect the interests of the Agent
and the Lenders (and in any event with respect to Contracts only after a
Default or Event of Default and an acceleration by the Agent pursuant to
Article IX of the Credit Agreement), notify each obligor upon any credit or
other obligation included in the Collateral at any time owing to such
Securing Party, in such manner as the Agent may specify; and
(5) Permit representatives of the Agent or any Lender, during business
hours, to inspect the inventory and other properties constituting
Collateral of such Securing Party and to inspect and make abstracts from
its books and records pertaining to the Collateral, allow the Agent or any
Lender to speak with representatives or employees of such Securing Party,
and assist the Agent or such Lender's representative obtaining any
information requested by the Agent or such Lender.
B. Necessary Filings. With the exception of landlord consents and waivers
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and fixture filings. all filings, registrations and recordings necessary,
appropriate or reasonably requested by the Agent to create, preserve, protect
and perfect the security interest granted by the Securing Parties to the Agent
hereby in respect of the Collateral and required to be made on or before the
date hereof have been accomplished. The security interest granted to the Agent
for the benefit of the Lenders pursuant to this Security Agreement in and to the
Collateral constitutes and hereafter
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will constitute a perfected security interest therein, superior and prior to the
rights of all persons therein and subject to no other Liens except Liens which
are permitted by, and subject to, Section 8.12 of the Credit Agreement.
C. Insurance. Each of the Securing Parties will maintain insurance issued
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by responsible companies, satisfactory to the Agent, in such amounts and against
such risks as is response usually carried by owners of similar businesses and
properties in the same general areas in which such Securing Party operates;
provided, however, that, if any Event of Default or Default shall be continuing,
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the Securing Parties will insure the Collateral or will cause the Collateral
which is tangible property to be insured against such risks as the Agent, at the
direction of the Majority Lenders, may from time to time reasonably require,
such insurance to be in such forms and amounts and with such companies as may be
satisfactory to the Agent and the Majority Lenders. To the extent available from
applicable insurers, all policies of such insurance shall, unless otherwise
specified by the Agent, be written for the benefit of the Securing Parties and
the Agent (for its own benefit and that of the Lenders) as their interests may
appear and shall provide that such insurance may not be canceled by reason of
the act or neglect of any Securing Party and shall provide that the rights of
the Agent and Lenders are independent of any breach of condition by the named
insured, and all such policies or certificates evidencing the same, shall be
furnished to the Agent. Each Securing Party hereby assigns to the Agent as part
of the Collateral all returned or unearned premiums which may be due upon the
cancellation of any of such policies for any reason whatsoever and hereby
directs the insurer thereunder to pay to the Agent any amounts so due. Each
Securing Party will cause the carriers of its insurance to issue loss payee and
additional insured or mortgagee clauses in favor of the Agent with respect to
such insurance and to cause such carriers to give not less than ten days' prior
notice to the Agent of the cancellation or non-renewal of any of such policies.
D. Liens. The Securing Parties will not, without the prior written
consent of the Majority Lenders:
(1) Permit any of the Collateral to be levied upon under legal process
or be subject to any Lien of whatsoever nature (except for those created
hereby, Permitted Liens and other Liens to the
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extent permitted by, and subject to, Section 8.12 of the Credit Agreement)
unless promptly discharged; or
(2) Cause or permit anything to be done which may materially impair
the value of the Collateral (other than normal wear and tear with respect
to property and fixtures included in the Collateral and dispositions
permitted by Section 8.14 of the Credit Agreement) or the Liens granted
and/or intended to be granted hereby.
E. Notations. Each of the Securing Parties will keep and stamp or
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otherwise mark any and all documents and chattel paper and its individual books
and records relating to the Collateral in such manner as the Agent may
reasonably require.
F. Place of Business/Location of Collateral. Each of the Securing Parties
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represents and warrants to the Lenders that the chief executive office and
principal place of business of such Securing Party, and the place where such
Securing Party keeps all of its books and records, is specified in Schedule I
hereof. All tangible evidence and all receivables, contracts and general
intangibles of each Securing Party and the only original books of account and
records of such Securing Party relating thereto are, and will continue to be,
kept at such chief executive office and principal place of business, or at such
new location for such chief executive office and principal place of business as
such Securing Party may establish in accordance with the last sentence of this
Section F. All Collateral of each Securing Party is located at one of the
locations for such Securing Party listed on Schedule I hereof, and will remain
located at any one of such locations unless the Securing Party shall have given
the Agent at least 45 days prior written notice of its intention to remove
Collateral from such location clearly describing the proposed new location which
shall be in the United States of America. No Securing Party shall establish a
new location for its chief executive office and principal place of business nor
shall it change its corporate name or the name under which it is conducting
business, until (i) it shall have given to the Agent not less than 45 days prior
written notice of its intention to do so, clearly describing such new location
(which shall be in the United States of America) or name, and providing such
other information in connection therewith as the Agent may reasonably request,
and (ii) with respect to such new location or name, the Securing Parties shall
have taken all actions satisfactory to the Agent to maintain the perfection and
proof of the
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security interest of the Agent for the benefit of the Lenders in the Collateral
intended to be granted hereby, including, without limitation, obtaining waivers
of landlord's or warehouseman's liens with respect to such new location.
Section 4. Further Assurances, Etc. Each of the Securing Parties will,
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from time to time and at their own expense, promptly execute, acknowledge,
witness and deliver and file and/or record, or cause the execution,
acknowledgment, witnessing, and delivery and the filing and/or recordation of,
such specific and further assignments of Collateral and such other documents or
instruments, and shall take or cause to be taken such other action as the Agent
may reasonably request for the perfection against such Securing Party and all
third parties whomsoever of the Liens created hereby, or for the continuation
and protection thereof, and promptly furnish to the Agent evidence satisfactory
to the Agent of such action. Without limiting the generality of the foregoing,
each of the Securing Parties promptly upon the execution and delivery of this
Agreement, and at any time and from time to time thereafter upon the request of
the Agent, will execute, acknowledge, witness and deliver such financing and
continuation statements, notices, and additional security agreements, make such
notations on its records, and take such other action as the Agent may reasonably
request for the purpose of so perfecting, maintaining and protecting such Liens
and shall cause this Agreement, any amendment or supplement hereto or thereto
and each such financing and continuation statement, notice and additional
security agreements to be filed and/or recorded in such manner and in such
places as may be required by applicable law or as the Agent may reasonably
request for such purpose. After written notice to the Securing Parties, each of
the Securing Parties hereby authorizes the Agent to effect any filing and/or
recording which the Agent or the Majority Lenders has requested pursuant to this
Section 4 without the signature of such Securing Party, to the extent permitted
by applicable law. The Agent shall give the Securing Parties written notice
subsequent to any such filing and/or recording.
Section 5. Actions by Agent. The Agent may, at any time and from time to
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time, at its option, after having given notice of its intention to do so to the
Securing Parties, perform any act which is undertaken by any of the Securing
Parties to be performed by such Securing Party hereunder but which such Securing
Party shall have failed to perform, and the Agent may take any other action
which the Agent may deem necessary for the
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maintenance, preservation or protection of any of the Collateral or the security
interests therein, and the Agent is hereby irrevocably appointed attorney-in-
fact of each of the Securing Parties for this purpose. All moneys advanced by
the Agent in connection with any of the foregoing, together with interest
thereon at the highest rate then in effect pursuant to the Credit Agreement from
the date of such advance to the date of the repayment thereof, shall be repaid
by the Securing Parties to the Agent upon demand, and shall constitute
additional Secured Obligations secured hereby. The making of any such advance
by the Agent shall not, however, relieve any of the Securing Parties of
liability for any default hereunder until the full amount of all such moneys so
advanced and such interest thereon shall have been repaid by the Securing
Parties to the Agent and such default shall have otherwise been cured.
Section 6. Rights and Remedies Upon Default.
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A. Rights and Remedies Generally. Upon the occurrence and during the
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continuance of any Event of Default, the Agent shall have all the rights and
remedies of a secured party under the Massachusetts Uniform Commercial Code, or
other applicable law, including the power of sale upon notice, and all rights
provided herein, all of which rights and remedies shall, to the fullest extent
permitted by law, be cumulative, provided that the Agent shall not notify
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obligors on Contracts of the exercise of any right unless the Agent shall have
accelerated the Obligations pursuant to Article IX of the Credit Agreement.
B. Specific Rights and Remedies. Without limiting the generality of the
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foregoing:
(1) After an Event of Default shall have occurred and while it shall be
continuing, each of the Securing Parties will at the request of the Agent cause
all payments made under or in respect of accounts or other obligations owed to
such Securing Party to be paid directly to the Agent. The Agent shall hold all
such payments as additional Collateral hereunder. Neither the Agent nor any
Lender shall be liable to any Person for any incorrect or improper payment made
pursuant to this Section 6.B(1) in the absence of gross negligence or willful
misconduct.
(2) Each of the Securing Parties hereby constitutes the Agent its true and
lawful attorney, irrevocably and with full power of substitution, in the name of
such Securing Party or otherwise, upon the occurrence and
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during the continuance of any Event of Default, (i) to give notice at any time
to each account debtor or other obligor of the fact of assignment of the
respective account or other obligation under this Agreement, (ii) to demand,
receive, compromise, sue for, and give acquaintance for, any and all moneys and
claims for money due and to become due under or arising out of such accounts and
other obligations, (iii) to endorse any checks or other instruments or orders in
connection therewith, (iv) to file any claims or take any actions or institute
any proceedings which the Agent may deem to be necessary or advisable in its
sole and complete discretion and to compromise, litigate or settle the same and
(v) to take any other action which by the terms of this Agreement is to be taken
by such Securing Party.
(3) (a) Upon the occurrence and during the continuance of any Event of
Default, the Agent may do any one or more of the following acts:
(i) exercise all of the rights and remedies of a mortgagee and secured
party under the provisions of applicable law;
(ii) institute legal proceedings for the specific performance of any
covenant or agreement herein undertaken by each of the Securing Parties, or
for aid in the execution of any power or remedy herein granted;
(iii) institute legal proceedings to foreclose upon and against any of
the Liens created hereby;
(iv) institute legal proceedings for the sale, under a judgment or
decree of any court of competent jurisdiction, of any of the Collateral;
(v) institute legal proceedings for the appointment of a receiver or
receivers pending foreclosure hereunder or the sale of any of the
Collateral under the order of a court of competent jurisdiction or under
other legal process;
(vi) personally, or by agents or attorneys, enter into and upon any
premises wherein the Collateral or any part thereof may then be situated
and take possession of all or any part thereof or render it unusable; and,
without being responsible (except for gross negligence or willful
misconduct) for loss or damage, hold, store,
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and keep idle, or operate, lease, or otherwise use or permit the use of the
same or any part thereof, for such time and upon such terms as the Agent
may deem to be in the best interests of the Lenders, and demand, collect,
and retain all hire, earnings and all other sums due and to become due in
respect of the same from any party whomsoever, accounting only for net
earnings, if any, arising from such use, after charging against all
receipts from the use of the same and from any subsequent sale thereof, by
court proceedings or pursuant to clause (vii) of this Section 6.B(3)(a),
all reasonable costs and expenses of, and damages or losses by reason of,
such use and/or sale; and/or
(vii) personally, or by agents or attorneys, enter upon and into any
place wherein the same may then be located and take possession of any part
or all of the Collateral, with or without process of law and without being
responsible for loss or damage (except such as results from the Agent's
gross negligence or willful misconduct), and sell, lease or otherwise
dispose of all or any part of the same, free from any and all claims of any
of the Securing Parties at law, in equity, or otherwise, at one or more
public or private sales, in such place or places, at such time or times,
for cash or credit and upon such terms as the Agent or the Majority Lenders
may determine, with or without any previous demand or notice to any of the
Securing Parties or advertisement and demand, and any right or equity of
redemption otherwise required by law is hereby waived by each of the
Securing Parties to the fullest extent permitted by applicable law. The
power of sale hereunder shall not be exhausted by one or more sales, and
the Agent may from time to time adjourn any sale to be made pursuant to
this Section 6.
(b) If the Agent shall demand possession of the Collateral or any part
thereof pursuant hereto, each of the Securing Parties will, at its own expense,
forthwith cause the Collateral or any part thereof designated by the Agent to be
assembled and made available and/or delivered to the Agent at any place
designated by the Agent.
(c) In the event that any mandatory requirement of applicable law shall
obligate the Agent to give prior notice to any of the Securing Parties of any of
the foregoing acts, each of the Securing Parties agrees that a notice sent to
the Company in writing by certified U.S. mail, return receipt requested, at
least five days before the date of any such act, at the
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Company's address specified in Schedule 11.02 of the Credit Agreement (or such
other address as shall have been notified to the Agent in writing), shall be
deemed to be reasonable notice of such act and, specifically, reasonable
notification of the time and place of any public sale hereunder and reasonable
notification of the time after which any private sale or other intended
disposition to be made hereunder is to be made.
(d) The Agent shall apply the proceeds from the sale or other disposition
of the Collateral in accordance with the terms and provisions of the Credit
Agreement.
(e) No sale or other disposition of all or any part of the Collateral by
the Agent pursuant to this Section 6.B(3) shall be deemed to relieve any of the
Securing Parties of its obligations in respect of any Secured Obligations except
to the extent the proceeds thereof are finally and irrevocably applied by the
Agent to the payment of such Secured Obligations.
Section 7. Possession Until Default. Until an Event of Default shall
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occur, except as otherwise provided in this Agreement or in the other Security
Documents and other documents referred to herein, the Securing Parties will have
the right to the possession and enjoyment of the Collateral subject to and upon
the terms of this Agreement.
Section 8. Waiver bv Securing Parties. To the fullest extent it may
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lawfully so agree, each of the Securing Parties agrees that it will not at any
time insist upon, claim, plead, or take any benefit or advantage of any
appraisement, valuation. stay, extension, moratorium, redemption or similar law
now or hereafter in force in order to prevent, delay, or hinder the enforcement
hereof or the absolute sale of any part of the Collateral or the possession
thereof by any purchaser at any sale pursuant to Section 6.B(3) above; and each
of the Securing Parties, for itself and all who claim through it, as far as it
or they now or hereafter lawfully may do so, hereby waives the benefit of all
such laws, and all right to have the Collateral marshaled upon any foreclosure
hereof, and agrees that any court having jurisdiction to foreclose this
Agreement may order the sale of the Collateral as an entirety. Without limiting
the generality of the foregoing, upon the occurrence and during the continuance
of an Event of Default, each of the Securing Parties hereby: (i) authorizes the
Agent, in its sole discretion and without notice to or demand upon any of the
Securing Parties and without otherwise affecting the obligations of any of the
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Securing Parties hereunder or in respect of the Secured Obligations, from time
to time to take and hold other collateral (in addition to the Collateral) for
payment of the Secured Obligations, or any part thereof, and to exchange,
enforce or release such other collateral or any part thereof and to accept and
hold any endorsement or guarantee of payment of the Secured Obligations or any
part thereof and to release or substitute any endorser or guarantor or any other
Person granting security for or in any other way obligated upon any Secured
Obligations or any part thereof and/or to modify or terminate the terms of
subordination of any Indebtedness subordinated to any of the Secured
Obligations; and (ii) waives and releases any and all right to require the Agent
to collect any of the Secured Obligations from any specific item or items of the
Collateral, from any other Person liable as guarantor or in any other manner in
respect of any of the Secured Obligations or from any other collateral.
Section 9. Purchase By Agent or Lenders. At any public or private sale
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pursuant to Section 6.B(3) hereof, the Agent or any Lender or their respective
agents may to the extent permitted by applicable law bid for and purchase the
Collateral offered for sale, may make payment on account thereof as hereinafter
provided in this Section 9, and, upon compliance in full with the terms of such
sale, may hold, retain, and dispose of such property without further
accountability therefor to any of the Securing Parties or any other party. In
any such sale to the Agent or any Lender, the Agent or such Lender may, for the
purposes of making payment for the Collateral or any part thereof so purchased,
use any claim for the Secured Obligations then due and payable to it as a credit
against the purchase price.
Section 10. No Representation, Etc. Anything herein contained to the
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contrary notwithstanding, neither the Agent, nor any of the Lenders nor any of
their respective nominees or assignees shall have any obligation or liability by
reason of or arising out of this Agreement to make any inquiry as to the nature
or sufficiency of, to present or file any claim with respect to, or to take any
action to collect or enforce the payment of, any amounts to which it may be
entitled at any time or times by virtue of this Agreement. The Agent and the
Lenders make no representations or warranties with respect to the Collateral or
any part thereof, and the Agent and the Lenders shall not be chargeable with any
obligations or liabilities of any of the Securing Parties or any other Person
with respect thereto.
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Section 11. Remedies. Each right, power, and remedy herein specifically
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granted to the Agent or otherwise available to it shall be cumulative, and shall
be in addition to every other right, power and remedy herein specifically given
or now or hereafter existing at law, in equity or otherwise; and each right,
power and remedy, whether specifically granted herein or otherwise existing, may
be exercised at any time and from time to time as often and in such order as may
be deemed expedient by the Agent in its sole and complete discretion; and the
exercise or commencement of exercise of any right, power, or remedy shall not be
construed as a waiver of the right to exercise, at the same time or thereafter,
the same or any other right, power or remedy. No delay or omission by the Agent
in exercising any such right or power, or in pursuing any such remedy, shall
impair any such right, power or remedy or be construed to be a waiver of any
default on the part of any of the Securing Parties or an acquiescence therein.
No waiver by the Agent of any breach or default of or by any of the Securing
Parties hereunder shall be deemed to be a waiver of any other or similar,
previous or subsequent breach or default.
Section 12. Notices. All notices, requests and demands will be given to
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or made upon the respective parties hereto in writing (the term "in writing"
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shall include reference to communications by telex, telegram, cable or
telecopier provided the same are promptly confirmed by letter) in accordance
with Section 11.02 of the Credit Agreement or as to any party at such other
address as may be designated by it in a written notice to all other parties. All
notices, requests, consents and demands hereunder will be effective when
personally delivered or when duly deposited in the mails, delivered to the
telegraph office or telexed or telecopied, addressed as aforesaid.
Section 13. Amendments, Etc. This Agreement may not be amended or
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modified except by written agreement of the Securing Parties (or the Company on
their behalf pursuant to Section 16 hereof) and the Agent (at the direction of
the Majority Lenders), and no consent or waiver hereunder shall be valid unless
in writing and signed by the Person or Persons giving such consent or waiver;
provided, however, that any amendment or modification that releases all or a
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significant portion of the Collateral hereunder shall require the consent of
each of the Lenders.
Section 14. Indemnity. Each of the Securing Parties hereby agrees to
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assume liability for, and does hereby agree to indemnify, protect, save
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and keep harmless the Agent and the Lenders and each of their respective agents
and servants, from and against, any and all liabilities, obligations. losses.
damages, penalties, claims, actions, suits and reasonable costs and expenses
(including, without limitation, those referred to in clause (i) of Section
6.B(3) hereof), of whatsoever kind or nature, imposed on, incurred by or
asserted against the Agent, the Lenders, or their respective agents and
servants, in any way relating to or arising out of this Agreement, or the
manufacture, purchase, acceptance, rejection, ownership, delivery, lease,
possession, use, operation, condition. merchantability, fitness, sale, return or
other disposition of any Collateral (other than by reason of the respective
indemnitees' own gross negligence or willful misconduct). Without limiting the
generality of the foregoing, each of the Securing Parties hereby jointly and
severally agrees to reimburse the Agent and the Lenders for all costs,
liabilities or expenses reasonably incurred by them pursuant to any of the
duties hereby or thereby created or in the exercise of any duty, right, remedy
or power herein or therein imposed or conferred upon any of them (other than any
such costs, liabilities and expenses resulting from the Agent's or such Lender's
gross negligence or willful misconduct). The obligations of the Securing
Parties contained in this Section 14 shall survive the termination of this
Agreement and the discharge of the Securing Parties' other obligations under the
other Credit Documents.
Section 15. Miscellaneous.
---------- -------------
A. Successors. This Agreement shall be binding upon and shall inure to
----------
the benefit of each of the Securing Parties, the Agent and the Lenders and their
respective successors and assigns; provided, however, that none of the Securing
-------- -------
Parties may assign its rights or obligations hereunder without the prior written
consent of all of the Lenders.
B. Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
C. Governing Law. This Agreement shall be construed in accordance with
-------------
and governed by the law of The Commonwealth of Massachusetts.
16
D. Headings. The section headings used herein have been inserted for
--------
convenience of reference only and do not constitute matters to be considered in
interpreting this Agreement.
E. Assignments. Subject to the provisions of Section 11.06 of the Credit
-----------
Agreement, it is understood that the Lenders may from time to time assign their
rights in respect of the Secured Obligations. and the word "Lenders" when used
herein shall be deemed to mean the Lenders and their respective successors and
assignees.
F. Severability. Any provision of this Agreement which is prohibited or
------------
unenforceable in any in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or effecting the validity or
enforceability of such provision in any other jurisdiction.
G. Senior Indebtedness. The obligations of the Securing Parties hereunder
-------------------
shall constitute "Senior Indebtedness" and "Senior Debt" as such terms are
defined in all documents to which any Securing Party is a party.
Section 16. Securing Parties Other Than The Company. Each of the Securing
---------- ---------------------------------------
Parties (other than the Company, except for purposes of clause (iv) below)
hereby irrevocably; (i) appoints the Company its attorney-in-fact, with full
power and authority in the name and on behalf of such Securing Party or
otherwise, to amend, modify or waive any and all provisions of this Agreement
and to grant consents and give instructions hereunder; (ii) expressly ratifies,
consents to and adopts any and all agreements which the Company may hereafter
make with the Agent and/or any of the Lenders with respect to the Collateral
owned or held by such Securing Party: (iii) authorizes the Agent to deliver all
such Collateral to the Company or to make such other dispositions thereof as the
Company has instructed or may instruct and agrees that any and all such
agreements and instructions of the Company shall be applicable to such
Collateral exactly as if such Collateral were owned or held by the Company; and
(iv) to the fullest extent permitted by applicable law, waives any and all
notices of every kind to which such Securing Party might otherwise be entitled,
or of demand for payment or the payment of any Secured Obligations, or of the
presentment or dishonor of any instrument for the payment of money at any time
in connection with any
17
Secured Obligations, or of protest and/or non-payment thereof, or of any
exchange, sale, release or other handling or disposition of all or any such
Collateral, or otherwise. Without limiting the generality of the foregoing: (a)
none of the Securing Parties other than the Company shall have the right to
receive from the Agent any statement, report or other notice, to object to any
disposition or application of its Collateral, to obtain injunctive or other
relief by reason of the Agent's handling or disposition of such Collateral, or
to recover losses caused to such Securing Party by reason of the Agent's failure
to furnish to such Securing Party other than the Company any statement or other
information with respect to such Collateral or any other Collateral; and (b) no
agreement or consent of any Securing Party other than the Company shall be
required for any amendment or modification of this Agreement.
Section 17. Termination: Release. When all the Secured Obligations (other
---------- --------------------
than Secured Obligations in the nature of continuing indemnitees or expense
reimbursement obligations not yet due and payable) have been paid in full and
have been terminated and the Revolving Credit Commitments of each of the Lenders
to make any Loan under the Credit Agreement have expired, this Agreement shall
terminate. Upon termination of this Agreement or any release of Collateral in
accordance with the provisions of the Credit Agreement, the Agent shall, upon
the request and at the expense of the Company, forthwith assign, transfer and
deliver to the Company, against receipt and without recourse to or warranty by
the Agent or the Lenders, such of the Collateral to be released (in the case of
a release) as may be in possession of the Agent and which shall not have been
sold or otherwise applied pursuant to the terms hereof, in the order of and at
the expense of the Securing Parties, and proper instruments (including UCC
termination statements on Form UCC-3) acknowledging the termination of this
Agreement or the release of such Collateral, as the case may be.
Section 18. Credit Agreement Provisions. For purposes hereof, the
---------- ---------------------------
provisions of Sections 10.09, 11.03 and 11.04 of the Credit Agreement are hereby
incorporated, mutatis mutandis, as if set forth herein in fall. So long as any
------- ---------
Secured Obligations shall remain outstanding hereunder, such provisions. as so
incorporated, shall survive the payment in full of the Loans, and the
termination of the Credit Agreement.
18
Section 19. Future Advances. This Security Agreement shall secure payment
---------- ---------------
of any amounts advanced from time to time pursuant to the Credit Agreement.
The parties hereto have caused this Agreement to be duly executed as of the
day and year first above written.
INTEREP NATIONAL RADIO
SALES, INC.
By: /s/ Marc G. Guild
----------------------------------
Name: Mark G. Guild
Title: President, Marketing Division
MCGAVREN GUILD, INC.
By: /s/ William J. McEntee, Jr.
----------------------------------
Name: William J. McEntee, Jr.
Title: Vice President and
Chief Financial Officer
D&R RADIO, INC.
By: /s/ William J. McEntee, Jr.
----------------------------------
Name: William J. McEntee, Jr.
Title: Vice President and
Chief Financial Officer
CBS RADIO SALES, INC.
By: /s/ William J. McEntee, Jr.
----------------------------------
Name: William J. McEntee, Jr.
Title: Vice President and
Chief Financial Officer
19
ALLIED RADIO PARTNERS, INC.
By: /s/ William J. McEntee, Jr.
----------------------------------
Name: William J. McEntee, Jr.
Title: Vice President and
Chief Financial Officer
CABALLERO SPANISH MEDIA
L.L.C.
By: /s/ William J. McEntee, Jr.
----------------------------------
Name: William J. McEntee, Jr.
Title: Vice President and
Chief Financial Officer
CLEAR CHANNEL RADIO, LLC
By: /s/ William J. McEntee, Jr.
----------------------------------
Name: William J. McEntee, Jr.
Title: Vice President and
Chief Financial Officer
20
SCHEDULE 1
----------
PLACE OF BUSINESS LOCATION OF COLLATERAL
Securing Parties
- ----------------
Interep National Radio Sales, Inc.
McGavren Guild, Inc.
D & R Radio, Inc.
CBS Radio Sales, Inc.
Allied Radio Partners, Inc.
Caballero Spanish Media L.L.C.
Clear Channel Radio, LLC
Chief Executive Office and Principal Place of Business for All Securing Parties
- -------------------------------------------------------------------------------
100 Park Avenue, New York, NY 10017
Locations of Collateral
-----------------------
100 Park Avenue
New York, NY 10017
31 St. James Ave., Suite 809
Boston, MA 02116
10880 Wilshire Blvd, Suite 1215
Los Angeles, CA 90024
The Bellevue
200 Broad Street
Broad & Walnut Streets, 9th Fl.
Philadelphia, PA 19102
4800 S.W. Macadam Avenue, Suite 200
Portland. OR 97201
21
2505 Second Avenue, Suite 602
Seattle, WA 98121
Platinum Tower
400 Interstate North Parkway
Suite 400
Atlanta, GA 30339
205 North Michican Avenue, Suite 2015
Chicago, IL 60601
Travelers Tower 1
26555 Evergreen Road
Southfield, MI 48076
2090 Palm Beach Lakes Blvd.
West Palm Beach, FL 33409
60 South Sixth Street
Suite 3110
Minneapolis, MN 55402
1300 Coral Way, Suite 204
Miami, FL 33145
118 Broadway, Suite 617
San Antonio, TX 78205
505 Sansome Street, 2nd Floor
San Francisco, CA 94111
515 Olive Street, Suite 1507
St. Louis, MO 63101
5000 Quorum, Suite 700
Dallas, TX 75240-7509
3500 Maple Avenue, Suite 1320
Dallas, TX 75219