GUARANTEE AGREEMENT dated as of May 5, 2006, among CMP SUSQUEHANNA RADIO HOLDINGS CORP., CMP SUSQUEHANNA CORP., THE SUBSIDIARIES OF CMP SUSQUEHANNA CORP. IDENTIFIED HEREIN and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent
EXHIBIT 10.2
dated as of
May 5, 2006,
among
CMP SUSQUEHANNA RADIO HOLDINGS CORP.,
CMP SUSQUEHANNA CORP.,
THE SUBSIDIARIES OF CMP SUSQUEHANNA CORP.
IDENTIFIED HEREIN
IDENTIFIED HEREIN
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
Table of Contents
| Page | ||||||||
| ARTICLE I Definitions | 2 | |||||||
| Section 1.01. | Credit Agreement | 2 | ||||||
| Section 1.02. | Other Defined Terms | 3 | ||||||
| ARTICLE II Guarantee | 3 | |||||||
| Section 2.01. | Guarantee | 3 | ||||||
| Section 2.02. | Guarantee of Payment | 4 | ||||||
| Section 2.03. | No Limitations | 4 | ||||||
| Section 2.04. | Reinstatement | 5 | ||||||
| Section 2.05. | Agreement To Pay; Subrogation | 5 | ||||||
| Section 2.06. | Information | 5 | ||||||
| ARTICLE III Indemnity, Subrogation and Subordination | 5 | |||||||
| Section 3.01. | Indemnity and Subrogation | 5 | ||||||
| Section 3.02. | Contribution and Subrogation | 6 | ||||||
| Section 3.03. | Subordination | 7 | ||||||
| ARTICLE IV Miscellaneous | 7 | |||||||
| Section 4.01. | Notices | 7 | ||||||
| Section 4.02. | Waivers; Amendment | 7 | ||||||
| Section 4.03. | Administrative Agent’s Fees and Expenses; Indemnification | 8 | ||||||
| Section 4.04. | Successors and Assigns | 9 | ||||||
| Section 4.05. | Survival of Agreement | 9 | ||||||
| Section 4.06. | Counterparts; Effectiveness; Several Agreement | 9 | ||||||
| Section 4.07. | Severability | 10 | ||||||
| Section 4.08. | Right of Set-Off | 10 | ||||||
| Section 4.09. | Governing Law; Jurisdiction; Consent to Service of Process | 10 | ||||||
| Section 4.10. | WAIVER OF JURY TRIAL | 11 | ||||||
| Section 4.11. | Headings | 11 | ||||||
| Section 4.12. | Obligations Absolute | 11 | ||||||
| Section 4.13. | Termination or Release | 12 | ||||||
| Section 4.14. | Additional Restricted Subsidiaries | 12 | ||||||
| Section 4.15. | Recourse | 13 | ||||||
| Section 4.16. | Limitation on Guaranteed Obligations | 13 | ||||||
| SCHEDULES | ||||||||
| Schedule 1 | - Subsidiary Roles | |||||||
| EXHIBITS | ||||||||
| Exhibit 1 | - Form of Guarantee Supplement | |||||||
GUARANTEE AGREEMENT dated as of May 5, 2006 among CMP SUSQUEHANNA RADIO HOLDINGS CORP.
(“Holdings”), CMP SUSQUEHANNA CORP. (the “Borrower”), the Subsidiaries of the
Borrower identified herein and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent.
Reference is made to the Credit Agreement dated as of May 5, 2006 (as amended, restated,
supplemented and/or otherwise modified from time to time, the “Credit Agreement”), among
the Borrower, Holdings, Deutsche Bank Trust Company Americas, as Administrative Agent, Swing Line
Lender and an L/C Issuer, each Lender from time to time party thereto, UBS Securities LLC, as
Syndication Agent, and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxx Sachs Credit
Partners L.P., as Co-Documentation Agents.
The Lenders have agreed to extend credit to the Borrower subject to the terms and conditions
set forth in the Credit Agreement, the Hedge Banks have agreed to enter into and/or maintain one or
more Secured Hedge Agreements on the terms and conditions set forth therein and the Cash Management
Banks have agreed to provide and/or maintain Cash Management Services on the terms and conditions
agreed upon by the Borrower or the respective Restricted Subsidiary and such Cash Management Bank.
The obligations of the Lenders to extend such credit, the obligation of the Hedge Banks to enter
into and/or maintain such Secured Hedge Agreements and the obligation of the Cash Management Banks
to provide and/or maintain Cash Management Services are, in each case, conditioned upon, among
other things, the execution and delivery of this Agreement by each Guarantor. Holdings, the
Borrower and the Subsidiary Parties are affiliates of one another, will derive substantial benefits
from (i) the extensions of credit to the Borrower pursuant to the Credit Agreement, (ii) the
entering into and/or maintaining by the Hedge Banks of Secured Hedge Agreements with the Borrower
and/or one or more of its Restricted Subsidiaries and (iii) the providing and/or maintaining of
Cash Management Services by the Cash Management Banks to the Borrower and/or one or more of its
Restricted Subsidiaries, and are willing to execute and deliver this Agreement in order to induce
the Lenders to extend such credit, the Hedge Banks to enter into and/or maintain such Secured Hedge
Agreements and the Cash Management Banks to provide and/or maintain such Cash Management Services.
Accordingly, in consideration of the foregoing and other benefits accruing to each Guarantor,
the receipt and sufficiency of which are hereby acknowledged, each Guarantor hereby makes the
following representations and warranties to the Administrative Agent for the benefit of the Secured
Parties and hereby covenants and agrees with each other Guarantor and the Administrative Agent for
the benefit of the Secured Parties as follows:
ARTICLE I
Definitions
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.
(b) The rules of construction specified in Article I of the Credit Agreement also apply to
this Agreement.
Section 1.02. Other Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
“Agreement” means this Guarantee Agreement.
“Credit Agreement” has the meaning assigned to such term in the preliminary statement
of this Agreement.
“FCC” means the Federal Communications Commission.
“Guarantee Agreement Supplement” means an instrument substantially in the form of
Exhibit I hereto.
“Guaranteed Obligations” mean the “Obligations” as defined in the Credit Agreement.
“Guaranteed Party” means Holdings, the Borrower, each Subsidiary Guarantor and each
Restricted Subsidiary of the Borrower party to any Secured Hedge Agreement.
“Guarantor” means each of Holdings, the Borrower and each Subsidiary Party.
“Secured Credit Document” shall mean each Loan Document, each Secured Hedge Agreement
and any agreement evidencing any Cash Management Obligation.
“Secured Parties” means, collectively, the Administrative Agent, the Colateral Agent,
the Lenders, the Hedge Banks the Cash Management Banks, the Supplemental Administrative Agent and
each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to
Section 9.01(c) of the Credit Agreement.
“Subsidiary Parties” means (a) the Restricted Subsidiaries identified on Schedule I
and (b) each other Restricted Subsidiary that becomes a party to this Agreement as a Subsidiary
Party after the Closing Date.
ARTICLE II
Guarantee
Section 2.01. Guarantee. Each Guarantor irrevocably, absolutely and unconditionally
guarantees, jointly with the other Guarantors and severally, as a primary obligor and not merely as
a surety, the due and punctual payment and performance of the Guaranteed Obligations, in each case,
whether such Guaranteed Obligations are now existing or hereafter incurred under, arising out of or
in connection with any Secured Credit Document. Each of the Guarantors further agrees that the
Guaranteed Obligations may be extended, increased or renewed, in whole or in part, without notice
to, or further assent from such Guarantor, and that such Guarantor will remain bound upon its
guarantee notwithstanding any extension, increase or renewal of any Guaranteed Obligation. Each of
the Guarantors waives presentment to, demand of payment from, and protest to, the applicable
Guaranteed Party or any
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other Loan Party of any of the Guaranteed Obligations, and also waives
notice of acceptance of its guarantee and notice of protest for nonpayment.
Section 2.02. Guarantee of Payment. Each of the Guarantors further agrees that its
guarantee hereunder constitutes a guarantee of payment when due and not of collection, and waives
any right to require that any resort be had by the Administrative Agent or any other Secured Party
to any security held for the payment of the Guaranteed Obligations, or to any balance of any
deposit account or credit on the books of the Administrative Agent or any other Secured Party in
favor of any Guaranteed Party or any other Person.
Section 2.03. No Limitations. (a) Except for termination of a Guarantor’s
obligations hereunder as expressly provided in Section 4.13, the obligations of each Guarantor
hereunder shall not be subject to any reduction, limitation, impairment or termination for any
reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Guaranteed Obligations, or otherwise.
Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall
not be discharged or impaired or otherwise affected by (i) the failure of the Administrative Agent
or any other Secured Party to assert any claim or demand or to enforce any right or remedy under
the provisions of any Secured Credit Document or otherwise; (ii) any rescission, waiver, amendment
or modification of, or any release from any of the terms or provisions of, any Secured Credit
Document or any other agreement, including with respect to any other Guarantor under this
Agreement; (iii) the release of any security held by the Collateral Agent (as defined in the
Security Agreement) or any other Secured Party for the Guaranteed Obligations; (iv) any default,
failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations; or (v)
any other act or omission that may or might in any manner or to any extent vary the risk of any
Guarantor or otherwise operate as a discharge of any Guarantor as a matter of law or equity (other
than the indefeasible payment in full in cash of all the Guaranteed Obligations). Each Guarantor
expressly authorizes the applicable Secured Parties to take and hold security for the payment and
performance of the Guaranteed Obligations, to exchange, waive or release any or all such security
(with or without consideration), to enforce or apply such security and direct the order and manner
of any sale thereof in their sole discretion or to release or substitute any one or more other
guarantors or obligors upon or in respect of the Guaranteed Obligations all without affecting the
obligations of any Guarantor hereunder.
(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 of any other Guaranteed Party or the
unenforceability of the Guaranteed Obligations or any part thereof from any cause,
or the cessation from any cause of the liability of the Borrower or any other Guaranteed
Party, other than the indefeasible payment in full in cash of all the Guaranteed Obligations. The
Administrative Agent and the other Secured Parties may in accordance with the terms of the
Collateral Documents and subject to any required prior approval of the FCC, 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 Guaranteed Obligations make any other accommodation with the Borrower or any other Guaranteed
Party or exercise any other right or remedy available to them against the Borrower or any other
Guaranteed Party, without affecting or impairing in any way the liability
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of any Guarantor
hereunder except to the extent the Guaranteed Obligations have been fully and indefeasibly 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 operates, 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 Guaranteed Party, as the case may be, or any security.
Section 2.04. Reinstatement. Each of the Guarantors agrees that its guarantee
hereunder shall continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Guaranteed 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 or any other Guaranteed Party or otherwise.
Section 2.05. Agreement To Pay; Subrogation. In furtherance of the foregoing and not
in limitation of any other right that the Administrative Agent or any other Secured Party has at
law or in equity against any Guarantor by virtue hereof, upon the failure of the Borrower or any
other Guaranteed Party to pay any Guaranteed Obligation when and as the same shall become due,
whether at maturity, by acceleration, after notice of prepayment or otherwise, each Guarantor
hereby promises to and will forthwith pay, or cause to be paid, to the Administrative Agent for
distribution to the applicable Secured Parties in cash the amount of such unpaid Guaranteed
Obligation. Upon payment by any Guarantor of any sums to the Administrative Agent as provided
above, all rights of such Guarantor against the Borrower or any other Guaranteed Party arising as a
result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise
shall in all respects be subject to Article III.
Section 2.06. Information. Each Guarantor assumes all responsibility for being and
keeping itself informed of the Borrower’s and each other Guaranteed Party’s financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs
hereunder, and agrees that none of the Administrative Agent or the other Secured Parties will have
any duty to advise such Guarantor of information known to it or any of them regarding such
circumstances or risks.
ARTICLE III
Indemnity, Subrogation and Subordination
Section 3.01. Indemnity and Subrogation. In addition to all such rights of indemnity
and subrogation as the Guarantors may have under applicable law (but subject to Section 3.03), each
Guaranteed Party agrees that in the event a payment shall be made by any Guarantor under this
Agreement on account of any Obligation owed directly by such Guaranteed Party (i.e., other
than any obligation arising under this Agreement), such Guaranteed Party shall indemnify such
Guarantor for the full amount of such payment and such Guarantor shall be subrogated to the rights
of the Person to whom such payment shall have been made to the extent of such payment.
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Section 3.02. Contribution and Subrogation. At any time a payment by any Subsidiary
Party in respect of the Guaranteed Obligations is made under this Agreement that shall not have
been fully indemnified as provided in Section 3.01, the right of contribution of each Subsidiary
Party against each other Subsidiary Party shall be determined as provided in the immediately
succeeding sentence, with the right of contribution of each Subsidiary Party to be revised and
restated as of each date on which an unreimbursed payment (a “Relevant Payment”) is made on
the Guaranteed Obligations under this Agreement. At any time that a Relevant Payment is made by a
Subsidiary Party that results in the aggregate payments made by such Subsidiary Party in respect of
the Guaranteed Obligations to and including the date of the Relevant Payment exceeding such
Subsidiary Party’s Contribution Percentage (as defined below) of the aggregate payments made by all
Subsidiary Parties in respect of the Guaranteed Obligations to and including the date of the
Relevant Payment (such excess, the “Aggregate Excess Amount”), each such Subsidiary Party
shall have a right of contribution against each other Subsidiary Party who has made payments in
respect of the Guaranteed Obligations to and including the date of the Relevant Payment in an
aggregate amount less than such other Subsidiary Party’s Contribution Percentage of the aggregate
payments made to and including the date of the Relevant Payment by all Subsidiary Parties in
respect of the Guaranteed Obligations (the aggregate amount of such deficit, the “Aggregate
Deficit Amount”) in an amount equal to (x) a fraction the numerator of which is the Aggregate
Excess Amount of such Subsidiary Party and the denominator of which is the Aggregate Excess Amount
of all Subsidiary Parties multiplied by (y) the Aggregate Deficit Amount of such other Subsidiary
Party. A Subsidiary Party’s right of contribution pursuant to the preceding sentences shall arise
at the time of each computation, subject to adjustment to the time of each computation;
provided that all contribution rights of such Subsidiary Party shall be subject to Section
3.03. As used in this Section 3.02: (i) each Subsidiary Party’s “Contribution Percentage”
shall mean the percentage obtained by dividing (x) the Adjusted Net Worth (as defined below) of
such Subsidiary Party by (y) the aggregate Adjusted Net Worth of all Subsidiary Parties; (ii) the
“Adjusted Net Worth” of each Subsidiary Party shall mean the greater of (x) the Net Worth
(as defined below) of such Subsidiary Party and (y) zero; and (iii) the “Net Worth” of each
Subsidiary Party shall mean the amount by which the fair saleable value of such Subsidiary Party’s
assets on the date of any Relevant Payment exceeds its existing debts and
other liabilities (including contingent liabilities, but without giving effect to any
Guaranteed Obligations arising under this Agreement or any guaranteed obligations arising under any
guaranty of the Senior Subordinated Notes or any Permitted Refinancing thereof) on such date.
Notwithstanding anything to the contrary contained above, any Subsidiary Party that is released
from this Agreement pursuant to Section 4.13 hereof shall thereafter have no contribution
obligations, or rights, pursuant to this Section 3.02, and at the time of any such release, if the
released Subsidiary Party had an Aggregate Excess Amount or an Aggregate Deficit Amount, same shall
be deemed reduced to $0, and the contribution rights and obligations of the remaining Subsidiary
Parties shall be recalculated on the respective date of release (as otherwise provided above) based
on the payments made hereunder by the remaining Subsidiary Parties. Each of the Subsidiary Parties
recognizes and acknowledges that the rights to contribution arising hereunder shall constitute an
asset in favor of the party entitled to such contribution. In this connection, each Subsidiary
Party has the right to waive its contribution right against any other Subsidiary Party to the
extent that after giving effect to such waiver such Subsidiary Party would remain solvent, in the
determination of the Required Lenders.
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Section 3.03. Subordination. Notwithstanding any provision of this Agreement to the
contrary, all rights of the Guarantors under Sections 3.01 and 3.02 and all other rights of
indemnity, contribution or subrogation under applicable law or otherwise shall be fully
subordinated to the indefeasible payment in full in cash of the Guaranteed Obligations; provided,
that if any amount shall be paid to such Guarantor on account of such subrogation rights at any
time prior to the irrevocable payment in full in cash of all the Guaranteed Obligations, such
amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to
the Administrative Agent to be credited and applied against the Guaranteed Obligations, whether
matured or unmatured, in accordance with Section 8.04 of the Credit Agreement. No failure on the
part of the Borrower or any Guarantor to make the payments required by Sections 3.01 and 3.02 (or
any other payments required under applicable law or otherwise) shall in any respect limit the
obligations and liabilities of any Guarantor with respect to its obligations hereunder, and each
Guarantor shall remain liable for the full amount of the obligations of such Guarantor hereunder.
ARTICLE IV
Miscellaneous
Section 4.01. Notices. All communications and notices hereunder shall (except as
otherwise expressly permitted herein) be in writing and given as provided in Section 10.02 of the
Credit Agreement. All communications and notices hereunder to any Subsidiary Party shall be given
to it in care of the Borrower as provided in Section 10.02 of the Credit Agreement.
Section 4.02. Waivers; Amendment. (a) No failure or delay by the Administrative
Agent, any L/C Issuer or any Lender in exercising any right or power hereunder or under any other
Secured Credit Document shall operate as a waiver thereof, nor shall any single or partial exercise
of any such right or power, or any abandonment or discontinuance of steps to enforce such a right
or power, preclude any other or further exercise thereof or the exercise of any other right or
power. The rights and remedies of the Secured Parties hereunder and under the other Secured Credit
Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise
have. No waiver of any provision of this Agreement or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of
this Section 4.02, and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the foregoing, the making
of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default,
regardless of whether the Administrative Agent, any Lender or any L/C Issuer may have had notice or
knowledge of such Default at the time. No notice or demand on any Loan Party in any case shall
entitle any Loan Party to any other or further notice or demand in similar or other circumstances.
(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 10.01 of the Credit Agreement.
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(c) Each Guarantor hereby acknowledges and affirms that it understands that to the extent the
Guaranteed Obligations are secured by real property located in the State of California, such
Guarantor shall be liable for the full amount of the liability hereunder notwithstanding
foreclosure on such real property by trustee sale or any other reason impairing such Guarantor’s or
any Secured Party’s right to proceed against the Borrower or any other guarantor of the Guaranteed
Obligations.
(d) Each Guarantor hereby waives, to the fullest extent permitted by applicable law, all
rights and benefits under Sections 580a, 580b, 580d and 726 of the California Code of Civil
Procedure. Each Guarantor hereby further waives, to the fullest extent permitted by applicable
law, without limiting the generality of the foregoing or any other provision hereof, all rights and
benefits which might otherwise be available to such Guarantor under Sections 2809, 2810, 2815,
2819, 2821, 2839, 2845, 2846, 2847, 2848, 2849, 2850, 2899 and 3433 of the California Civil Code.
(e) Each Guarantor waives its rights of subrogation and reimbursement and any other rights and
defenses available to such Guarantor by reason of Sections 2787 to 2855, inclusive, of the
California Civil Code, including, without limitation, (1) any defenses such Guarantor may have to
this Guaranty by reason of an election of remedies by the Secured Parties and (2) any rights or
defenses such Guarantor may have by reason of protection afforded to the Borrower pursuant to the
antideficiency or other laws of California limiting or discharging the Borrower’s indebtedness,
including, without limitation, Section 580a, 580b, 580d and 726 of the
California Code of Civil Procedure. In furtherance of such provisions, each Guarantor hereby
waives all rights and defenses arising out of an election of remedies of the Secured Parties, even
though that election of remedies, such as a nonjudicial foreclosure destroys such Guarantor’s
rights of subrogation and reimbursement against a Borrower by the operation of Section 580d of the
California Code of Civil Procedure or otherwise.
(f) Each Guarantor warrants and agrees that each of the waivers set forth above is made with
full knowledge of its significance and consequences and that if any of such waivers are determined
to be contrary to any applicable law or public policy, such waivers shall be effective only to the
maximum extent permitted by law.
Section 4.03. Administrative Agent’s Fees and Expenses; Indemnification. (a) The
parties hereto agree that the Administrative Agent shall be entitled to reimbursement of its
expenses incurred hereunder as provided in Section 10.04 of the Credit Agreement.
(b) Without limitation of its indemnification obligations under the other Secured Credit
Documents, each Guarantor jointly and severally agrees to indemnify the Administrative Agent and
the other Indemnitees (as defined in Section 10.05 of the Credit Agreement) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses,
including the reasonable 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, performance or enforcement of this Agreement or any claim, litigation,
investigation or proceeding relating to any of the foregoing agreements or instruments contemplated
hereby, whether or not any
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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 resulted from the gross negligence or wilful misconduct of such
Indemnitee or of any Affiliate, director, officer, employee, counsel, agent or attorney-in-fact of
such Indemnitee.
(c) Any such amounts payable as provided hereunder shall be additional Guaranteed Obligations
secured by the Collateral Documents. The provisions of this Section 4.03 shall remain operative
and in full force and effect regardless of the termination of this Agreement or any other Secured
Credit Document, the consummation of the transactions contemplated hereby, the repayment of any of
the Guaranteed Obligations, the invalidity or unenforceability of any term or provision of this
Agreement or any other Secured Credit Document, or any investigation made by or on behalf of the
Administrative Agent or any other Secured Party. All amounts due under this Section 4.03 shall be
payable within ten days of written demand therefor.
Section 4.04. Successors and Assigns. Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the permitted successors and
assigns of such party; and all covenants, promises and agreements by or on behalf of any Guarantor
or the Administrative Agent that are contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns.
Section 4.05. Survival of Agreement. All covenants, agreements, representations and
warranties made by the Guaranteed Parties in the Secured Credit Documents and in the certificates
or other instruments prepared or delivered in connection with or pursuant to this Agreement or any
other Secured Credit Document shall be considered to have been relied upon by the relevant Secured
Parties and shall survive the execution and delivery of the relevant Secured Credit Documents and
the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made
by any Secured Party or on its behalf and notwithstanding that the Administrative Agent, any L/C
Issuer, any Lender or any other Secured Party may have had notice or knowledge of any Default or
default under any other Secured Credit Document or any incorrect representation or warranty at the
time any credit is extended under any Secured Credit Document, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any fee or any other
amount payable under any Loan Document is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not expired or terminated.
Section 4.06. Counterparts; Effectiveness; Several Agreement. This Agreement may be
executed in counterparts, each of which shall constitute an original but all of which when taken
together shall constitute a single contract. Delivery of an executed signature page to this
Agreement by facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Agreement. This Agreement shall become effective as to any Loan Party when a
counterpart hereof executed on behalf of such Loan Party shall have been delivered to the
Administrative Agent and a counterpart hereof shall have been executed on behalf of the
Administrative Agent, and thereafter shall be binding upon such Loan Party and the Administrative
Agent and their respective permitted successors and assigns, and shall inure to the benefit of such
Loan Party, the Administrative Agent and the other Secured Parties and their respective successors
and assigns, except that no Loan Party shall have the right to assign or
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transfer its rights or
obligations hereunder or any interest herein (and any such assignment or transfer shall be void)
except as expressly contemplated by this Agreement or the Credit Agreement. This Agreement shall
be construed as a separate agreement with respect to each Loan Party and may be amended, modified,
supplemented, waived or released with respect to any Loan Party without the approval of any other
Loan Party and without affecting the obligations of any other Loan Party hereunder.
Section 4.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The
parties shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of the
invalid, illegal or unenforceable provisions.
Section 4.08. Right of Set-Off. In addition to any rights and remedies of the Lenders
provided by Law, upon the occurrence and during the continuance of any Event of Default, each
Lender and its Affiliates is authorized at any time and from time to time, without prior notice to
the Borrower or any other Guaranteed Party, any such notice being waived by the Borrower and each
other Guaranteed Party to the fullest extent permitted by applicable Law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at any time held by,
and other Indebtedness at any time owing by, such Lender and its Affiliates to or for the credit or
the account of the respective Loan Parties against any and all obligations owing to such Lender and
its Affiliates hereunder, now or hereafter existing, irrespective of whether or not such Lender or
Affiliate shall have made demand under this Agreement and although such obligations may be
contingent or unmatured or denominated in a currency different from that of the applicable deposit
or Indebtedness. Each Lender agrees promptly to notify the Borrower and the Administrative Agent
after any such set off and application made by such Lender; provided, that the failure to
give such notice shall not affect the validity of such setoff and application. The rights of each
Lender under this Section 4.08 are in addition to other rights and remedies (including other rights
of setoff) that such Lender may have.
Section 4.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This
Agreement shall be construed in accordance with and governed by the law of the State of New York.
(b) Each of the Loan Parties hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York
sitting in New York City and of the United States District Court for the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any other Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other
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manner provided by law. Nothing in
this Agreement or any other Loan Document shall affect any right that the Administrative Agent, any
L/C Issuer, any Lender or any other Secured Party may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against any Guarantor, or its
properties in the courts of any jurisdiction.
(c) 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 (b) of this Section 4.09. 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.
(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 4.01. 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.
Section 4.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 4.10.
Section 4.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and are not to affect
the construction of, or to be taken into consideration in interpreting, this Agreement.
Section 4.12. Obligations Absolute. All rights of the Administrative Agent hereunder
and all obligations of each Guarantor hereunder shall be absolute and unconditional irrespective of
(a) any lack of validity or enforceability of the Credit Agreement, any other Loan Document, any
other Secured Hedge Agreement, any agreement with respect to any of the Guaranteed Obligations or
any other agreement or instrument relating to any of the foregoing, (b) any change in the time,
manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations,
or any other amendment or waiver of or any consent to any departure from the Credit Agreement, any
other Loan Document, any other Secured Hedge Agreement or any other agreement or instrument, (c)
any release or amendment or waiver of or consent under or departure from any guarantee guaranteeing
all or any portion of the Guaranteed
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Obligations or (d) any other circumstance that might otherwise
constitute a defense available to, or a discharge of, any Guarantor in respect of the Guaranteed
Obligations or this Agreement.
Section 4.13. Termination or Release. (a) This Agreement and the Guarantees made
herein shall terminate with respect to all Guaranteed Obligations when all the outstanding
Guaranteed Obligations have been indefeasibly paid in full and the Lenders have no further commitment to lend under the Credit
Agreement, the L/C Obligations have been reduced to zero and the L/C Issuers have no further
obligations to issue Letters of Credit under the Credit Agreement.
(b) A Subsidiary Party shall automatically be released from its obligations hereunder 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) In connection with any termination or release pursuant to paragraph (a) or (b), the
Administrative Agent shall execute and deliver to any Guarantor, at such Guarantor’s expense, all
documents that such Guarantor shall reasonably request to evidence such termination or release.
Any execution and delivery of documents pursuant to this Section 4.13 shall be without recourse to
or warranty by the Administrative Agent.
(d) At any time that the Borrower desires that the Administrative Agent take any of the
actions described in immediately preceding paragraph (c), it shall, upon request of the
Administrative Agent, deliver to the Administrative Agent an officer’s certificate certifying that
the release of the respective Subsidiary Party is permitted pursuant to paragraph (a) or (b). The
Administrative Agent shall have no liability whatsoever to any Secured Party as the result of any
release of any Subsidiary Party by it as permitted (or which the Administrative Agent in good faith
believes to be permitted) by this Section 4.13.
(e) Notwithstanding anything to the contrary set forth in this Agreement, each Cash Management
Bank and each Hedge Bank by the acceptance of the benefits under this Agreement hereby acknowledge
and agree that (i) the obligations of the Borrower or any Subsidiary under any Secured Hedge
Agreement and the Cash Management Obligations shall be guaranteed pursuant to this Agreement only
to the extent that, and for so long, the other Guaranteed Obligations are so guaranteed and (ii)
any release of a Guarantor effected in the manner permitted by this Agreement shall not require the
consent of any Hedge Bank or Cash Management Bank.
Section 4.14. Additional Restricted Subsidiaries. Pursuant to Section 6.11 of the
Credit Agreement, certain Restricted Subsidiaries of the Loan Parties that were not in existence or
not Restricted Subsidiaries on the date of the Credit Agreement are required to enter in this
Agreement as Subsidiary Parties upon becoming a Restricted Subsidiaries. Upon execution and
delivery by the Administrative Agent and a Restricted Subsidiary of a Guarantee Agreement
Supplement, such Restricted Subsidiary shall become a Subsidiary Party hereunder with the same
force and effect as if originally named as a Subsidiary Party herein. The execution and delivery
of any such instrument shall not require the consent of any other Loan Party hereunder.
-12-
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.
Section 4.15. Recourse. This Agreement is made with full recourse to each Guarantor and pursuant to and upon all the
warranties, representations, covenants and agreements on the part of such Guarantor contained
herein, in the Loan Documents and the other Secured Credit Documents and otherwise in writing in
connection herewith or therewith.
Section 4.16. Limitation on Guaranteed Obligations. Each Guarantor that is a
Subsidiary Party and each Secured Party (by its acceptance of the benefits of this Agreement)
hereby confirms that it is its intention that this Agreement not constitute a fraudulent transfer
or conveyance for purposes of any Debtor Relief Laws (including the Bankruptcy Code, the Uniform
Fraudulent Conveyance Act or any similar Federal or state law). To effectuate the foregoing
intention, each Guarantor that is a Subsidiary Party and each Secured Party (by its acceptance of
the benefits of this Agreement) hereby irrevocably agrees that the Guaranteed Obligations owing by
such Guarantor under this Agreement shall be limited to such amount as will, after giving effect to
such maximum amount and all other (contingent or otherwise) liabilities of such Guarantor that are
relevant under such Debtor Relief Laws (it being understood that it is the intention of the parties
to this Agreement and the parties to any guaranty of the Senior Subordinated Notes that, to the
maximum extent permitted under applicable laws, the liabilities in respect of the guarantees of the
Senior Subordinated Notes shall not be included for the foregoing purposes and that, if any
reduction is required to the amount guaranteed by any Guarantor hereunder and with respect to the
Senior Subordinated Notes that its guarantee of amounts owing in respect of the Senior Subordinated
Notes shall first be reduced) and after giving effect to any rights to contribution and/or
subrogation pursuant to any agreement providing for an equitable contribution and/or subrogation
among such Guarantor and the other Guarantors, result in the Guaranteed Obligations of such
Guarantor in respect of such maximum amount not constituting a fraudulent transfer or conveyance.
Notwithstanding the provisions of the two preceding sentences, as between the Secured Parties and
the holders of the Senior Subordinated Notes, it is agreed (and the provisions of the Senior
Subordinated Note Indenture so provide) that any diminution (whether pursuant to court decree or
otherwise) of any Guarantor’s obligation to make any distribution or payment pursuant to this
Agreement shall have no force or effect for purposes of the subordination provisions contained in
the Senior Subordinated Note Indenture, and that any payments received in respect of a Guarantor’s
obligations with respect to the Senior Subordinated Notes shall be turned over to the holders of
the “Senior Indebtedness” (as defined in the Senior Subordinated Note Indenture) (or obligations
which would have constituted Senior Indebtedness if same had not been reduced or disallowed) of
such Guarantor (which Senior Indebtedness shall be calculated as if there were no diminution
thereto pursuant to this Section 4.16 or for any other reason other than the indefeasible payment
in full in cash of the respective obligations which would otherwise have constituted Senior
Indebtedness) until all such Senior Indebtedness (or obligations which would have constituted
Senior Indebtedness if same had not been reduced or disallowed) has been indefeasibly paid in full
in cash.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.
| CMP SUSQUEHANNA RADIO HOLDINGS | ||
| CORP. | ||
| CMP SUSQUEHANNA CORP. | ||
| SUSQUEHANNA PFALTZGRAFF CO. | ||
| SUSQUEHANNA MEDIA CO. | ||
| SUSQUEHANNA RADIO CORP. | ||
| WSBA LICO, INC. | ||
| WVAE LICO, INC. | ||
| WNNX LICO, INC. | ||
| RADIO CINCINNATI, INC. | ||
| WRRM LICO, INC. | ||
| RADIO INDIANAPOLIS, INC. | ||
| WFMS LICO, INC. | ||
| INDIANAPOLIS RADIO LICENSE CO. | ||
| INDY LICO, INC. | ||
| RADIO METROPLEX, INC. | ||
| RADIO SAN FRANCISCO, INC. | ||
| KFFG LICO, INC. | ||
| KRBE BROADCASTING, INC. | ||
| KRBE RADIO, INC. | ||
| KRBE LICO, INC. | ||
| BAY AREA RADIO CORP. | ||
| KNBR INC. | ||
| KNBR LICO, INC. | ||
| KPLX LICO, INC. | ||
| KLIF BROADCASTING, INC. | ||
| XXXX XXXX, INC. | ||
| KPLX RADIO, INC. | ||
| KLIF RADIO, INC. | ||
| TEXAS STAR RADIO, INC. | ||
| SUNNYSIDE COMMUNICATIONS, INC. | ||
| S.C.I. BROADCASTING, INC. | ||
| SUSQUEHANNA RADIO SERVICES, INC. | ||
| SUSQUEHANNA LICENSE CO., LLC | ||
| KRBE LIMITED PARTNERSHIP | ||
| CMP KC CORP. | ||
| CMP HOUSTON-KC, LLC |
| By: | /s/ Xxxxx X. Xxxxxx, Xx. | |||
| Title: | Chairman, President, and Chief Financial Officer |
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent |
||||||
| By: | /s/ Xxxxx Le Fevre | |||||
| Title: Director | ||||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Title: Vice President | ||||||
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| KLIF BROADCASTING LIMITED PARTNERSHIP | ||||||
| By: | KLIF Radio, Inc., its General Partner | |||||
| By: | /s/ Xxxxx X. Xxxxxx, Xx. | |||||
| Name: Xxxxx X. Xxxxxx, Xx. | ||||||
| Title: Chairman, President
& Chief Executive Officer |
||||||
| KPLX LIMITED PARTNERSHIP | ||||||
| By: | KPLX Radio, Inc., its General Partner | |||||
| By: | /s/ Xxxxx X. Xxxxxx, Xx. | |||||
| Name: Xxxxx X. Xxxxxx, Xx. | ||||||
| Title: Chairman, President
& Chief Executive Officer |
||||||
| KRBE LIMITED PARTNERSHIP | ||||||
| By: | KRBE Radio, Inc., its General Partner | |||||
| By: | /s/ Xxxxx X. Xxxxxx, Xx. | |||||
| Name: Xxxxx X. Xxxxxx, Xx. | ||||||
| Title: Chairman, President
& Chief Executive Officer |
||||||
EXHIBIT I to the
Guarantee Agreement
Guarantee Agreement
SUPPLEMENT NO. ___dated as of [l], to the Guarantee Agreement dated as of May 5, 2006, among
CMP SUSQUEHANNA RADIO HOLDINGS CORP. (“Holdings”), CMP SUSQUEHANNA CORP. (the
“Borrower”), the Subsidiaries of the Borrower identified therein and DEUTSCHE BANK TRUST
COMPANY AMERICAS, as Administrative Agent.
A. Reference is made to (i) the Credit Agreement dated as of May 5, 2006 (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among
Holdings, the Borrower, Deutsche Bank Trust Company Americas, as Administrative Agent, Swing Line
Lender and an L/C Issuer, each Lender from time to time party thereto, (ii) each Secured Hedge
Agreement (as defined in the Credit Agreement) and (iii) the Cash Management Obligations (as
defined in the Credit Agreement).
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement and the Guarantee Agreement referred to therein.
C. The Guarantors have entered into the Guarantee Agreement in order to induce (x) the Lenders
to make Loans and the L/C Issuers to issue Letters of Credit, (y) the Hedge Banks to enter into
and/or maintain Secured Hedge Agreements and (z) the Cash Management Banks to provide Cash
Management Services. Section 4.14 of the Guarantee Agreement provides that additional Restricted
Subsidiaries of the Borrower may become Subsidiary Parties under the Guarantee Agreement by
execution and delivery of an instrument in the form of this Supplement. The undersigned Restricted
Subsidiary (the “New Subsidiary”) is executing this Supplement in accordance with the
requirements of the Credit Agreement to become a Subsidiary Party under the Guarantee Agreement in
order to induce the Lenders to make additional Loans and the L/C Issuers to issue additional
Letters of Credit and as consideration for Loans previously made and Letters of Credit previously
issued.
Accordingly, the Administrative Agent and the New Subsidiary agree as follows:
Section 1. In accordance with Section 4.14 of the Guarantee Agreement, the New
Subsidiary by its signature below becomes a Subsidiary Party and Guarantor under the Guarantee
Agreement with the same force and effect as if originally named therein as a Subsidiary Party and
the New Subsidiary hereby (a) agrees to all the terms and provisions of the Guarantee Agreement
applicable to it as a Subsidiary Party and Guarantor thereunder and (b) represents and warrants
that the representations and warranties made by it as a Guarantor thereunder are true and correct
on and as of the date hereof. Each reference to a “Guarantor” in the Guarantee Agreement shall be
deemed to include the New Subsidiary. The Guarantee Agreement is hereby incorporated herein by
reference.
Section 2. The New Subsidiary represents and warrants to the Administrative Agent and
the other Secured Parties that this Supplement has been duly authorized, executed and delivered by
it and constitutes its legal, valid and binding obligation, enforceable against it in accordance
with its terms.
Section 3. This Supplement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original, but all of
Exhibit I
Page 2
Page 2
which when taken together shall constitute a single contract. This Supplement shall become effective
when the Administrative Agent shall have received a counterpart of this Supplement that bears the
signature of the New Subsidiary and the Administrative Agent has executed a counterpart hereof.
Delivery of an executed signature page to this Supplement by facsimile transmission shall be as
effective as delivery of a manually signed counterpart of this Supplement.
Section 4. Except as expressly supplemented hereby, the Guarantee Agreement shall
remain in full force and effect.
Section 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
Section 6. In case any one or more of the provisions contained in this Supplement
should be held invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and in the Guarantee Agreement shall
not in any way be affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself affect the validity of
such provision in any other jurisdiction). The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
Section 7. All communications and notices hereunder shall be in writing and given as
provided in Section 4.01 of the Guarantee Agreement.
Section 8. The New Subsidiary agrees to reimburse the Administrative Agent for its
reasonable out-of-pocket expenses in connection with this Supplement, including the reasonable
fees, other charges and disbursements of counsel for the Administrative Agent.
IN WITNESS WHEREOF, the New Subsidiary and the Administrative Agent have duly executed this
Supplement to the Guarantee Agreement as of the day and year first above written.
| [NAME OF NEW SUBSIDIARY] | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| DEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative Agent |
||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
