EX-10.2






Exhibit 10.2




INTERCREDITOR AGREEMENT




          This INTERCREDITOR AGREEMENT, dated as of March 26, 2009, is entered into by and among CMP
SUSQUEHANNA RADIO HOLDINGS CORP., a Delaware corporation (“Holdings”), CMP SUSQUEHANNA
CORP., a Delaware corporation (the “Borrower”), each other Grantor (as hereinafter defined)
from time to time party hereto, DEUTSCHE BANK TRUST COMPANY AMERICAS, in its capacity as collateral
agent under the First-Lien Credit Documents (as defined below) (together with its successors and
assigns in such capacity from time to time, the “First-Lien Collateral Agent”), and WELLS
FARGO BANK, NATIONAL ASSOCIATION, in its capacity as collateral agent under the Second-Lien
Subordinated Notes Documents (as defined below) (together with its successors and assigns in such
capacity from time to time, the “Second-Lien Collateral Agent”). Capitalized terms used
herein but not otherwise defined herein have the meanings set forth in Section 1 below.



RECITALS




          WHEREAS, Holdings, the Borrower, the First-Lien Lenders party thereto from time to time, and
Deutsche Bank Trust Company Americas, as administrative agent (in such capacity and together with
any successors and assigns in such capacity, the “First-Lien Administrative Agent”), are
party to that certain Credit Agreement, dated as of May 5, 2006 (as amended, restated,
supplemented, modified and/or Refinanced from time to time, the “First-Lien Credit
Agreement”), providing for the making of term and revolving loans to the Borrower, and the
issuance of, and participation in, letters of credit for the account of the Borrower, all as
provided therein;



          WHEREAS, on March 9, 2009, the Borrower commenced an exchange offer and solicitation of
consents (the “Exchange Offer”) pursuant to which it sought to exchange $187.6 million
aggregate principal amount of 9-7/8% senior subordinated unsecured notes due 2014 for up to $15.0
million initial aggregate principal amount of Variable Rate Senior Subordinated Secured Second Lien
Notes due 2014 (as amended, restated, supplemented, modified and/or Refinanced from time to time,
the “Second-Lien Subordinated Notes”), as well as preferred stock and warrants;



          WHEREAS, on March 26, 2009, the early exchange premium deadline for the Exchange Offer expired
and Second-Lien Subordinated Notes were issued to those parties who consented to the Exchange Offer
prior to such deadline, pursuant to that certain Indenture (as amended, restated, supplemented,
modified and/or Refinanced from time to time, the “Second-Lien Subordinated Notes
Indenture”), dated as of March 26, 2009, among the Borrower, the Subsidiary Guarantors
thereunder, and Wells Fargo Bank, N.A., as Indenture Trustee (in such capacity, and together with
any successors and assigns in such capacity, the “Second-Lien Subordinated Notes Trustee”);



          WHEREAS, the obligations of the Borrower and the other Grantors under the First-Lien Documents
are secured by substantially all the assets of the Borrower and the other Grantors, respectively,
pursuant to the terms of the First-Lien Security Documents;









 



 


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          WHEREAS, the obligations of the Borrower and the other Grantors under the Second-Lien
Subordinated Notes Documents will be secured by substantially all the assets of the Borrower and
the other Grantors, respectively, pursuant to the terms of the Second-Lien Subordinated Security
Documents;



          WHEREAS, the offering memorandum with respect to the Exchange Offer, among other things,
contemplated that the First-Lien Collateral Agent and the Second-Lien Collateral Agent would set
forth their respective rights and remedies with respect to the Collateral in an intercreditor
agreement;



          WHEREAS, the Borrower and the other Grantors may, from time to time, incur additional secured
debt which the Borrower and the First-Lien Collateral Agent may agree may share a first-priority
security interest in the Collateral in accordance with the First-Lien Credit Documents in existence
at the time of such incurrence;



          NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and obligations herein
set forth and for other good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:



          SECTION 1. Definitions.



          1.1 Defined Terms. As used in this Agreement, the following terms shall have the
following meanings:



          “Agreement” means this Intercreditor Agreement, as amended, restated, renewed,
extended, supplemented and/or otherwise modified from time to time in accordance with the terms
hereof.



          “Bankruptcy Code” means title 11 of the United States Code entitled “Bankruptcy,” as
now and hereafter in effect, or any successor statute.



          “Bankruptcy Law” means the Bankruptcy Code and any similar federal, state or foreign
law for the relief of debtors.



          “Borrower” has the meaning set forth in the first paragraph of this Agreement.



          “Business Day” means a day other than a Saturday, Sunday or other day on which banking
institutions are authorized or required by law or other government action to close in the State of
New York.



          “Cash Collateral” has the meaning set forth in Section 363(a) of the Bankruptcy Code.



          “Cash Management Bank” means any First-Lien Lender or affiliate of a First-Lien Lender
providing Cash Management Services to Holdings, the Borrower or any Restricted Subsidiary (as
defined in the First-Lien Credit Agreement).









 



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     “Cash Management Obligations” means all obligations owing by Holdings, the Borrower or
any Restricted Subsidiary (as defined in the First-Lien Credit Agreement) to any Cash Management
Bank in respect of any Cash Management Services (including, without limitation, indemnities, fees
and interest thereon and all interest and fees that accrue on or after the commencement of any
Insolvency or Liquidation Proceeding at the rate provided for in the respective documents governing
the Cash Management Services, whether or not a claim for post-petition interest or fees is allowed
in any such Insolvency or Liquidation Proceeding), now existing or hereafter incurred under,
arising out of or in connection with such Cash Management Services, and the due performance and
compliance by Holdings, the Borrower and each Grantor with the terms, conditions and agreements of
such Cash Management Services.



     “Cash Management Services” means treasury, depository and/or cash management services
or any automated clearing house transfer services.



     “Collateral” means all of the assets and property of any Grantor, whether real,
personal or mixed, constituting First-Lien Collateral and/or Second-Lien Collateral.



     “Collateral Agent” means, as the context requires, collectively, the First-Lien
Collateral Agent and the Second-Lien Collateral Agent.



     “Comparable Second-Lien Subordinated Security Document” means, in relation to any
Shared Collateral subject to any Lien created under any First-Lien Security Document, that
Second-Lien Subordinated Security Document which creates a Lien on the same Shared Collateral,
granted by the same Grantor.



     “Creditors” means, collectively, the First-Lien Creditors and the Second-Lien
Creditors.



     “Defaulting Creditor” has the meaning set forth in Section 5.7(d) hereof.



     “Discharge of First-Lien Credit Agreement Obligations” means, except to the extent
otherwise provided in Section 5.6 hereof (and subject to Section 6.5 hereof), (a) payment in full
in cash of the principal of and interest (including interest accruing on or after the commencement
of any Insolvency or Liquidation Proceeding at the rate provided for in the respective First-Lien
Credit Documents, whether or not such interest would be allowed in such Insolvency or Liquidation
Proceeding) and premium, if any, on all Indebtedness outstanding under the First-Lien Credit
Documents, (b) payment in full in cash of all other First-Lien Obligations (other than Hedging
Obligations and Cash Management Obligations) that are due and payable or otherwise accrued and
owing at or prior to the time such principal and interest are paid, (c) termination (without any
prior demand for payment thereunder having been made or, if made, with such demand having been
fully reimbursed in cash) or cash collateralization (in an amount and manner, and on terms,
satisfactory to the First-Lien Collateral Agent) of all letters of credit issued by any First-Lien
Creditor and (d) termination of all other commitments of the First-Lien Creditors under the
First-Lien Credit Documents.



     “Discharge of First-Lien Obligations” means, except to the extent otherwise provided
in Section 5.6 hereof (and subject to Section 6.5 hereof), (a) payment in full in cash of









 



Page 4

the
principal of and interest (including interest accruing on or after the commencement of any
Insolvency or Liquidation Proceeding at the rate provided for in the respective First-Lien
Document, whether or not such interest would be allowed in any such Insolvency or Liquidation
Proceeding) and premium, if any, on all Indebtedness outstanding under the First-Lien Documents,
(b) payment in full in cash of all other First-Lien Obligations that are due and payable or
otherwise accrued and owing at or prior to the time such principal, interest and premium are paid,
(c) termination (without any prior demand for payment thereunder having been made or, if made, with
such demand having been fully reimbursed in cash) or cash collateralization (in an amount and
manner, and on terms, satisfactory to the First-Lien Collateral Agent) of all letters of credit,
Secured Hedge Agreements and Cash Management Services issued or entered into, as the case may be,
by any First-Lien Creditor and (d) termination of all other commitments of the First-Lien Creditors
under the First-Lien Credit Documents.




          “Disposition” has the meaning set forth in Section 5.1(a)(ii) hereof.



          “Eligible Purchaser” has the meaning set forth in Section 5.7(a) hereof.



          “Equity Interests” means, with respect to any Person, all of the shares, interests,
rights, participations or other equivalents (however designated) of capital stock of (or other
ownership or profit interests or units in) such Person and all of the warrants, options or other
rights for the purchase, acquisition or exchange from such Person of any of the foregoing
(including through convertible securities).



          “Exchange Offer” has the meaning set forth in the recitals hereto.



          “Excluded Collateral” means all Equity Interests of the Borrower and its Subsidiaries,
debt securities (including intercompany notes) held by Holdings, the Borrower and each Subsidiary
Guarantor, all leased and owned real property of Holdings, the Borrower and each Subsidiary
Guarantor and all other “Excluded Property” (or comparable term) under, and as defined in, the
Second-Lien Subordinated Notes Documents (as in effect on the date hereof).



          “First-Lien Administrative Agent” has the meaning set forth in the recitals hereto.



          “First-Lien Collateral” means all of the assets and property of any Grantor, whether
real, personal or mixed, with respect to which a Lien is granted (or purported to be granted) as
security for any First-Lien Obligations.



          “First-Lien Collateral Agent” has the meaning provided in the first paragraph of this
Agreement.



          “First-Lien Credit Agreement” has the meaning set forth in the recitals hereto.



          “First-Lien Credit Documents” means the First-Lien Credit Agreement and the other Loan
Documents (as defined in the First-Lien Credit Agreement) and each of the other agreements,
documents and instruments providing for or evidencing any other First-Lien Obligation and any other
document or instrument executed or delivered at any time in connection with any First-Lien
Obligation (including any intercreditor or joinder agreement among holders









 



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of First-Lien
Obligations but excluding Secured Hedge Agreements and the documents governing the Cash Management
Obligations), to the extent such are effective at the relevant
time, as each may be amended, modified, restated, supplemented, replaced and/or Refinanced
from time to time.



          “First-Lien Creditors” means, at any relevant time, the holders of First-Lien
Obligations at such time, including, without limitation, the First-Lien Lenders, the Hedge Banks,
the Cash Management Banks, the First-Lien Collateral Agent, the First-Lien Administrative Agent and
the other agents and arrangers under the First-Lien Credit Agreement.



          “First-Lien Documents” means and includes the First-Lien Credit Documents, the Secured
Hedge Agreements entered into with one or more Hedge Banks and the documents governing the Cash
Management Obligations.



          “First-Lien Guarantors” means Holdings, the Borrower and any Subsidiary Guarantor
under the First Lien Credit Agreement.



          “First-Lien Lenders” means the “Lenders” under, and as defined in, the First-Lien
Credit Agreement; provided that the term “First-Lien Lender” shall in any event also
include each letter of credit issuer and each swingline lender under the First-Lien Credit
Agreement.



          “First-Lien Obligations” means (i) all Obligations outstanding under the First-Lien
Credit Agreement and the other First-Lien Credit Documents, (ii) all Hedging Obligations and (iii)
all Cash Management Obligations. “First-Lien Obligations” shall in any event include: (a)
all interest accrued or accruing (or which would, absent commencement of an Insolvency or
Liquidation Proceeding (and the effect of provisions such as Section 502(b)(2) of the Bankruptcy
Code), accrue) on or after the commencement of an Insolvency or Liquidation Proceeding in
accordance with the rate specified in the relevant First-Lien Document, whether or not the claim
for such interest is allowed as a claim in such Insolvency or Liquidation Proceeding, (b) any and
all fees and expenses (including attorneys’ and/or financial consultants’ fees and expenses)
incurred by the First-Lien Collateral Agent, the First-Lien Administrative Agent and the First-Lien
Creditors on or after the commencement of an Insolvency or Liquidation Proceeding, whether or not
the claim for fees and expenses is allowed under Section 506(b) of the Bankruptcy Code or any other
provision of the Bankruptcy Code or Bankruptcy Law as a claim in such Insolvency or Liquidation
Proceeding, and (c) all obligations and liabilities of each Grantor under each First-Lien Document
to which it is a party which, but for the automatic stay under Section 362(a) of the Bankruptcy
Code, would become due.



          “First-Lien Required Lenders” means the “Required Lenders” under, and as defined in,
the First-Lien Credit Agreement.



          “First-Lien Security Agreement” means the Security Agreement, dated as of May 5, 2006,
among the Borrower, the other Grantors from time to time party thereto and the First-Lien
Collateral Agent, as the same may be amended, supplemented, restated, modified and/or Refinanced
from time to time.









 



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          “First-Lien Security Documents” means the First-Lien Security Agreement, each Mortgage
encumbering a Mortgaged Property (each as defined in the First-Lien Credit Agreement) and any other
agreement, document, mortgage or instrument pursuant to which a Lien is granted (or purported to be
granted) securing any First-Lien Obligations or under which
rights or remedies with respect to such Liens are governed, as the same may be amended,
supplemented, restated, modified and/or Refinanced from time to time.



          “Governmental Authority” means the government of the United States of America or any
other nation, or of any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government (including any supranational bodies such as the European Union or the
European Central Bank).



          “Grantors” means Holdings, the Borrower and each of the Subsidiary Guarantors that
have executed and delivered, or may from time to time hereafter execute and deliver, a First-Lien
Security Document or a Second-Lien Subordinated Security Document.



          “Hedge Bank” means any Person that is a First-Lien Lender or an affiliate of a
First-Lien Creditor at the time it enters into a Secured Hedge Agreement, in its capacity as a
party thereto, and such Person’s successors and assigns.



          “Hedging Obligations” means (i) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations (including obligations which, but
for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due) and
liabilities (including, without limitation, indemnities, fees and interest thereon and all interest
and fees that accrue on or after the commencement of any Insolvency or Liquidation Proceeding at
the rate provided for in the respective Secured Hedge Agreement, whether or not a claim for
post-petition interest or fees is allowed in any such Insolvency or Liquidation Proceeding) of each
Grantor owing to the Hedge Banks, now existing or hereafter incurred under, arising out of or in
connection with each Secured Hedge Agreement (including all such obligations and indebtedness under
any guarantee of any such Secured Hedge Agreement to which each Grantor is a party) and (ii) the
due performance and compliance by each Grantor with the terms, conditions and agreements of each
Secured Hedge Agreement.



          “Indebtedness” means and includes all Obligations that constitute “Indebtedness”
within the meaning of the First-Lien Credit Agreement or the Second-Lien Subordinated Notes
Indenture.



          “Insolvency or Liquidation Proceeding” means (a) any voluntary or involuntary case or
proceeding under the Bankruptcy Code with respect to any Grantor, (b) any other voluntary or
involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding with respect to any Grantor or with
respect to a material portion of its respective assets, (c) any liquidation, dissolution,
reorganization or winding up of any Grantor, whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy or (d) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of any Grantor.









 



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          “Letters of Credit” means “Letters of Credit” under, and as defined in, the First-Lien
Credit Agreement.



          “Lien” means any mortgage, pledge, security interest, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge preference, priority or other
security interest or agreement, or preferential payment of any kind or nature whatsoever
(including, without limitation, any agreement to give any of the foregoing, any conditional sale or
other title retention agreement, any easement, right of way or other encumbrance on title to real
property, any financing or similar statement or notice filed under the UCC or any other similar
recording or notice statute, and any Capitalized Lease (as defined in the First-Lien Credit
Agreement) having substantially the same effect as any of the foregoing).



          “Loans” means “Loans” under, and as defined in, the First-Lien Credit Agreement.



          “New Agent” has the meaning set forth in Section 5.6 hereof.



          “Obligations” means any and all obligations (including guaranty obligations) with
respect to the payment and performance of (a) any principal of or interest or premium on any
indebtedness, including any reimbursement obligation in respect of any letter of credit, or any
other liability, including interest or any premium that accrues on or after the commencement of any
Insolvency or Liquidation Proceeding of any Grantor at the rate provided for in the respective
documentation, whether or not a claim for post-petition interest or premium is allowed in any such
Insolvency or Liquidation Proceeding, (b) any fees, indemnification obligations, expense
reimbursement obligations or other liabilities payable under the documentation governing any
indebtedness (including, without limitation, the retaking, holding, selling or otherwise disposing
of or realizing on the Collateral), (c) any obligation to post cash collateral in respect of
letters of credit or any other obligations, and (d) all performance obligations under the
documentation governing any indebtedness.



          “Other First-Lien Obligations” shall mean the Hedging Obligations and the Cash
Management Obligations.



          “Parity Lien Debt” means any additional notes and any other Indebtedness having
substantially identical terms as the Second-Lien Subordinated Notes (other than issue date, issue
price, interest rate, yield and redemption terms) and issued under an indenture substantially
identical to the Second-Lien Subordinated Notes Indenture and any Indebtedness that refinances or
refunds (or successive refinancing and refunding) such additional notes and other Indebtedness, and
all Obligations with respect to such additional notes and other Indebtedness; provided,
however, that such Indebtedness may (a) have a stated maturity date that is equal to or
longer than the Second-Lien Subordinated Notes, (b) contain terms and covenants that are less than
restrictive than the terms and covenants under the Second-Lien Subordinated Notes and (c) contain
terms and covenants that are more restrictive than the terms and covenants under the Second-Lien
Subordinated Notes, so long as prior to or substantially simultaneously with the issuance of any
such Indebtedness, the Second-Lien Subordinated Notes and the Second-Lien Subordinated Notes
Indenture are amended to contain any more such restrictive terms and covenants; and
provided, further that for purposes of this Agreement, “Parity Lien Debt” will









 



Page 8



only
constitute “Parity Lien Debt” if the incurrence of the same is subordinated in right of payment to
the First-Lien Obligations on the same terms as the Second-Lien Subordinated Notes
and is otherwise permitted to be incurred pursuant to the terms of the First-Lien Documents
and the Second-Lien Subordinated Notes Documents.



          “Person” means any natural person, individual, partnership, joint venture, firm,
corporation, association, limited liability company, trust or other enterprise, or any Governmental
Authority or other entity.



          “Pledged Collateral” means (a) the “Pledged Collateral” under, and as
defined in, the First-Lien Security Agreement, and (b) any other Collateral in the possession of
the First-Lien Collateral Agent (or its agents or bailees), to the extent that possession thereof
is taken to perfect a Lien thereon under the Uniform Commercial Code or other applicable local law.



          “Post-Petition Financing” has the meaning set forth in Section 6.1 hereof.



          “Priority Lien” has the meaning set forth in Section 5.1(c) hereof.



          “Recovery” has the meaning set forth in Section 6.5 hereof.



          “Refinance” means, in respect of any indebtedness, to refinance, extend, renew,
defease, amend, modify, supplement, restructure, replace, refund or repay, or to issue other
indebtedness, in exchange or replacement for, such indebtedness. “Refinanced” and
“Refinancing” shall have correlative meanings.



          “Remedial Action” has the meaning set forth in Section 5.1(a)(i) hereof.



          “Required First-Lien Creditors” means (i) at all times prior to the occurrence of the
Discharge of First-Lien Credit Agreement Obligations, the First-Lien Required Lenders (or, to the
extent required by the First-Lien Credit Agreement, each of the First-Lien Lenders), and (ii) at
all times after the occurrence of the Discharge of First-Lien Credit Agreement Obligations, the
holders of at least the majority of the then outstanding Other First-Lien Obligations (determined
by the First-Lien Collateral Agent in such reasonable manner as is acceptable to it).



          “Second-Lien Collateral” means all of the assets of any Grantor, whether real,
personal or mixed, with respect to which a Lien is granted (or purported to be granted) as security
for any Second-Lien Subordinated Obligations, which, for the avoidance of doubt, does not include
any Excluded Collateral.



          “Second-Lien Collateral Agent” has the meaning set forth in the first paragraph of
this Agreement.



          “Second-Lien Creditors” means, at any relevant time, the holders of Second-Lien
Subordinated Obligations at such time, including, without limitation, the Second-Lien Noteholders,
the Second-Lien Collateral Agent, Second-Lien Subordinated Notes Trustee and any other agents under
the Second-Lien Subordinated Notes Indenture.









 



Page 9


          “Second-Lien Noteholders” means the “Holders” under, and as defined in, the
Second-Lien Subordinated Notes Indenture.



          “Second-Lien Subordinated Obligations” means all Obligations outstanding under the
Second-Lien Subordinated Notes Indenture and the other Second-Lien Subordinated Notes Documents.
“Second-Lien Subordinated Obligations” shall in any event include: (a) all interest
accrued or accruing (or which would, absent commencement of an Insolvency or Liquidation Proceeding
(and the effect of provisions such as Section 502(b)(2) of the Bankruptcy Code), accrue) on or
after commencement of an Insolvency or Liquidation Proceeding in accordance with the rate specified
in the relevant Second-Lien Subordinated Notes Document whether or not the claim for such interest
is allowed as a claim in such Insolvency or Liquidation Proceeding, (b) any and all fees and
expenses (including attorneys’ and/or financial consultants’ fees and expenses) incurred by the
Second-Lien Collateral Agent and the Second-Lien Creditors on or after the commencement of an
Insolvency or Liquidation Proceeding, whether or not the claim for fees and expenses is allowed
under Section 506(b) of the Bankruptcy Code or any other provision of the Bankruptcy Code or
Bankruptcy Law as a claim in such Insolvency or Liquidation Proceeding, and (c) all obligations and
liabilities of each Grantor under each Second-Lien Subordinated Notes Document to which it is a
party which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become
due.



          “Second-Lien Subordinated Notes” has the meaning set forth in the recitals hereto.



          “Second-Lien Subordinated Notes Documents” means the Second-Lien Subordinated Notes
Indenture, the Second-Lien Subordinated Security Agreement and each of the other agreements,
documents and instruments providing for or evidencing any other Second-Lien Subordinated
Obligation, and any other document or instrument executed or delivered at any time in connection
with any Second-Lien Subordinated Obligation, to the extent such are effective at the relevant
time, as the same may be amended, restated, supplemented, modified and/or Refinanced from time to
time.



          “Second-Lien Subordinated Notes Indenture” has the meaning set forth in the recitals
hereto.



          “Second-Lien Subordinated Notes Trustee” has the meaning set forth in the recitals
hereto.



          “Second-Lien Subordinated Security Agreement” means the Security Agreement, dated as
of March 26, 2009, among the Borrower, the other Grantors from time to time party thereto and the
Second-Lien Collateral Agent, as the same may be amended, restated, supplemented, modified and/or
Refinanced from time to time.



          “Second-Lien Subordinated Security Documents” means the Second-Lien Subordinated
Security Agreement and any other agreement, document, mortgage or instrument pursuant to which a
Lien is granted (or purported to be granted) securing any Second-Lien Subordinated Obligations or
under which rights or remedies with respect to such Liens are









 



Page 10



governed, as the same may be amended,
restated, supplemented, modified and/or Refinanced from time to time.



          “Secured Hedge Agreements” means and includes each Swap Contract permitted under the
First-Lien Credit Agreement that is entered into by and between the Borrower, any First-Lien
Guarantor or any Restricted Subsidiary (as defined in the First-Lien Credit Agreement) and any
Hedge Bank.



          “Security Documents” means, collectively, the First-Lien Security Documents and the
Second-Lien Subordinated Security Documents.



          “Shared Collateral” means all Collateral other than Excluded Collateral.



          “Subsidiary” of any Person means and includes (i) any corporation more than 50% of
whose stock of any class or classes having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of whether or not at the time stock of
any class or classes of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or more Subsidiaries
of such Person and (ii) any partnership, limited liability company, association, joint venture or
other entity (other than a corporation) in which such Person and/or one or more Subsidiaries of
such Person has more than a 50% equity interest at the time.



          “Subsidiary Guarantors” means each Subsidiary of the Borrower which enters into a
guaranty of any First-Lien Obligations or Second-Lien Subordinated Obligations.



          “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement, including any
such obligations or liabilities under any such master agreement.



          “Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as from
time to time in effect in the relevant jurisdiction.



          1.2 Terms Generally. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without









 



Page 11



limitation.” The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended, supplemented, restated
or otherwise modified, (b) any reference herein to any Person shall be construed to include such
Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of
similar import, shall be construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to Exhibits or Sections shall be construed
to refer to Exhibits or Sections of this Agreement, (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights, (f) terms defined
in the UCC but not otherwise defined herein shall have the same meanings herein as are assigned
thereto in the UCC, (g) a reference to any law means such law as amended, modified, codified,
replaced or re-enacted, in whole or in part, and in effect on the date hereof, including rules,
regulations, enforcement procedures and any interpretations promulgated thereunder, and (h)
references to Sections or clauses shall refer to those portions of this Agreement, and any
references to a clause shall, unless otherwise identified, refer to the appropriate clause within
the same Section in which such reference occurs.



          SECTION 2. Priority of Liens.



          2.1 Subordination; Etc. Notwithstanding the date, manner or order of grant,
attachment or perfection of any Liens securing the Second-Lien Subordinated Obligations granted on
the Collateral or of any Liens securing the First-Lien Obligations granted on the Collateral and
notwithstanding any provision of the UCC, any other applicable law, this Agreement, the First-Lien
Documents or the Second-Lien Subordinated Notes Documents to the contrary, or any other
circumstance whatsoever (including any non-perfection of any Lien purporting to secure the
First-Lien Obligations and/or Second-Lien Subordinated Obligations), the Second-Lien Collateral
Agent, on behalf of itself and the Second-Lien Creditors, and each other Second-Lien Creditor (by
its acceptance of the benefits of the Second-Lien Subordinated Notes Documents) hereby agrees that:
(a) any Lien on the Collateral securing any First-Lien Obligations now or hereafter held by or on
behalf of the First-Lien Collateral Agent or any First-Lien Creditor or any agent or trustee
therefor, regardless of how acquired, whether by grant, possession, statute, operation of law,
subrogation or otherwise, shall be senior in all respects and prior to any Lien on the Collateral
securing any of the Second-Lien Subordinated Obligations; (b) any Lien on the Collateral now or
hereafter held by or on behalf of the Second-Lien Collateral Agent, any Second-Lien Creditor or any
agent or trustee therefor regardless of how acquired, whether by grant, possession, statute,
operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all
Liens on the Collateral securing any First-Lien Obligations, and (c) it will not take or cause to
be taken any action the purpose or effect of which is, or could be, to make any Lien securing the
Second-Lien Subordinated Obligations pari passu with, or to give the Second-Lien
Collateral Agent or Second-Lien Creditors any preference or priority relative to, any Lien securing
the First-Lien Obligations with respect to the Collateral or any part thereof. All Liens on the
Collateral securing any First-Lien









 



Page 12



Obligations shall be and remain senior in all respects and prior
to all Liens on the Collateral securing any Second-Lien Subordinated Obligations for all purposes,
whether or not such Liens securing any First-Lien Obligations are subordinated to any Lien securing
any other obligation of the Borrower, any other Grantor or any other Person. The parties hereto
acknowledge and agree that it is their intent that (i) the First-Lien Obligations (and the security
therefor) constitute a separate and distinct class (and separate and distinct claims) from the
Second-Lien Subordinated Obligations
(and the security therefor) and (ii) the grant of Liens securing payment and performance of
the First-Lien Obligations and the grant of Liens securing payment and performance of the
Second-Lien Subordinated Obligations create two separate and distinct Liens with each such Lien
securing only the corresponding Obligations.



          2.2 Prohibition on Contesting Liens. Each of the Second-Lien Collateral Agent, for
itself and on behalf of each Second-Lien Creditor, and the First-Lien Collateral Agent, for itself
and on behalf of each First-Lien Creditor, agrees that it shall not (and hereby waives any right
to) contest or support any other Person in contesting, in any proceeding (including any Insolvency
or Liquidation Proceeding), (i) the validity or enforceability of any Security Document or any
Obligation thereunder, (ii) the validity, perfection, priority or enforceability of the Liens,
mortgages, assignments and security interests granted pursuant to the Security Documents with
respect to the First-Lien Obligations or the Second-Lien Subordinated Obligations or (iii) the
relative rights and duties of the holders of the First-Lien Obligations and the Second-Lien
Subordinated Obligations granted and/or established in this Agreement or any other Security
Document with respect to such Liens, mortgages, assignments, and security interests; provided that
nothing in this Agreement shall be construed to prevent or impair the rights of the First-Lien
Collateral Agent or any First-Lien Creditor to enforce this Agreement, including the priority of
the Liens securing the First-Lien Obligations as provided in Section 2.1 hereof.



          2.3 No New Liens. So long as the Discharge of First-Lien Obligations has not
occurred, the parties hereto agree that the Borrower shall not, and shall not permit any other
Grantor to, grant or permit any additional Liens, or take any action to perfect any additional
Liens, on any asset or property to secure any Second-Lien Subordinated Obligation unless it has
also granted or contemporaneously grants a Lien on such asset or property to secure the First-Lien
Obligations and has taken all actions to perfect such Liens. To the extent that the foregoing
provisions are not complied with for any reason, without limiting any other rights and remedies
available to the First-Lien Collateral Agent and/or the other First-Lien Creditors, the Second-Lien
Collateral Agent, on behalf of itself and the other Second-Lien Creditors, and each other
Second-Lien Creditor (by its acceptance of the benefits of the Second-Lien Subordinated Notes
Documents), agrees that any amounts received by or distributed to any of them pursuant to or as a
result of Liens granted in contravention of this Section 2.3 shall be subject to Section 4.2
hereof.



          2.4 Similar Liens and Agreements. The parties hereto agree that it is their intention
that the Second-Lien Collateral shall not be more expansive than the First-Lien Collateral, and
shall not include any Excluded Collateral. In furtherance of the foregoing and of Section 8.9
hereof, the Second-Lien Collateral Agent and the other Second-Lien Creditors agree, subject to the
other provisions of this Agreement:




     (i) upon request by the First-Lien Collateral Agent, to cooperate in good faith (and
to direct their counsel to cooperate in good faith) from time to time in order to









 



Page 13



determine
the specific items included in the Second-Lien Collateral and the steps taken to perfect the
Liens thereon and the identity of the respective parties obligated under the Second-Lien
Subordinated Notes Documents; and




     (ii) that the guarantors for the First-Lien Obligations and the Second-Lien
Subordinated Obligations shall be identical.



          SECTION 3. Enforcement.



          3.1 Exercise of Remedies. (a) So long as the Discharge of First-Lien Obligations has
not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or
against the Borrower or any other Grantor: (i) the Second-Lien Collateral Agent and the other
Second-Lien Creditors will not exercise or seek to exercise any rights or remedies (including
setoff) with respect to any Collateral (including, without limitation, the exercise of any right
under any lockbox agreement, control account agreement, landlord waiver or bailee’s letter or
similar agreement or arrangement to which the Second-Lien Collateral Agent or any Second-Lien
Creditor is a party) or institute or commence, or join with any Person in commencing, any action or
proceeding with respect to such rights or remedies (including any action of foreclosure,
enforcement, collection or execution and any Insolvency or Liquidation Proceeding), and will not
contest, protest or object to any foreclosure proceeding or action brought by the First-Lien
Collateral Agent or any other First-Lien Creditor or any other exercise by the First-Lien
Collateral Agent or any other First-Lien Creditor, of any rights and remedies relating to the
Collateral under the First-Lien Credit Documents or otherwise, or object to the forbearance by the
First-Lien Collateral Agent or the other First-Lien Creditors from bringing or pursuing any
foreclosure proceeding or action or any other exercise of any rights or remedies relating to the
Collateral; and (ii) the First-Lien Collateral Agent shall have the exclusive right, and the
Required First-Lien Creditors shall have the exclusive right to instruct the First-Lien Collateral
Agent, to enforce rights, exercise remedies (including setoff and the right to credit bid their
debt) and make determinations regarding the release, disposition, or restrictions with respect to
the Collateral without any consultation with or the consent of the Second-Lien Collateral Agent or
any other Second-Lien Creditor, all as though the Second-Lien Subordinated Obligations did not
exist; provided, that, (A) in any Insolvency or Liquidation Proceeding commenced by or
against the Borrower or any other Grantor, the Second-Lien Collateral Agent may file a claim or
statement of interest with respect to the Second-Lien Subordinated Obligations, (B) the Second-Lien
Collateral Agent may take any action (not adverse to the prior Liens on the Collateral securing the
First-Lien Obligations, or the rights of the First-Lien Collateral Agent or the other First-Lien
Creditors to exercise remedies in respect thereof) in order to preserve or protect its Lien on the
Shared Collateral in a manner not otherwise inconsistent with the terms of this Agreement, and (C)
the Second-Lien Creditors shall be entitled to file any necessary responsive or defensive pleading
in opposition to any motion, claim, adversary proceeding or other pleading made by any Person
objecting to or otherwise seeking the disallowance of the claims of the Second-Lien Creditors,
including any claim secured by the Shared Collateral, if any, in each case in a manner not
otherwise inconsistent with the terms of this Agreement. In exercising rights and remedies with
respect to the Collateral, the First-Lien Collateral Agent and the other First-Lien Creditors may
enforce the provisions of the First-Lien Credit Documents and exercise remedies thereunder, all in
such
order and in such









 



Page 14



manner as they may determine in the exercise of their sole discretion. Such
exercise and enforcement shall include the rights of an agent appointed by them to sell or
otherwise dispose of Collateral upon foreclosure, to incur expenses in connection with such sale or
disposition, and to exercise all the rights and remedies of a secured creditor under the Uniform
Commercial Code of
any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable
jurisdiction.



          (b) The Second-Lien Collateral Agent, on behalf of itself and the Second-Lien Creditors,
agrees that it will not take or receive any Collateral or any proceeds of Collateral in connection
with the exercise of any right or remedy (including setoff) with respect to any Collateral, unless
and until the Discharge of First-Lien Obligations has occurred. Without limiting the generality of
the foregoing, unless and until the Discharge of First-Lien Obligations has occurred, the sole
right of the Second-Lien Collateral Agent and the other Second-Lien Creditors with respect to the
Collateral is to hold a Lien on the Shared Collateral pursuant to the Second-Lien Subordinated
Security Documents for the period and to the extent granted therein and to receive a share of the
proceeds thereof, if any, after the Discharge of First-Lien Obligations has occurred in accordance
with the terms of the Second-Lien Subordinated Notes Documents and applicable law (it being
understood that at no time shall the Second-Lien Collateral Agent and the other Second-Lien
Creditors have any rights with respect to the Excluded Collateral).



          (c) The Second-Lien Collateral Agent, for itself and on behalf of the Second-Lien Creditors,
and each other Second-Lien Creditor (by its acceptance of the benefits of the Second-Lien
Subordinated Notes Documents), (i) agrees that the Second-Lien Collateral Agent and the other
Second-Lien Creditors will not take any action that would hinder, delay, limit or prohibit any
exercise of remedies under the First-Lien Credit Documents, including any collection, sale, lease,
exchange, transfer or other disposition of the Collateral, whether by foreclosure or otherwise, or
that would limit, invalidate, avoid or set aside any Lien or Security Document or subordinate the
priority of the First-Lien Obligations to the Second-Lien Subordinated Obligations or grant the
Liens securing the Second-Lien Subordinated Obligations equal ranking to the Liens securing the
First-Lien Obligations and (ii) hereby waives any and all rights it or the Second-Lien Creditors
may have as a junior lien creditor or otherwise (whether arising under the UCC or under any other
law) to object to the manner in which the First-Lien Collateral Agent or the other First-Lien
Creditors seek to enforce or collect the First-Lien Obligations or the Liens granted in any of the
First-Lien Collateral, regardless of whether any action or failure to act by or on behalf of the
First-Lien Collateral Agent or First-Lien Creditors is adverse to the interest of the Second-Lien
Creditors.



          (d) The Second-Lien Collateral Agent hereby acknowledges and agrees that no covenant,
agreement or restriction contained in the Second-Lien Subordinated Security Documents or any other
Second-Lien Subordinated Notes Document shall be deemed to restrict in any way the rights and
remedies of the First-Lien Collateral Agent or the other First-Lien Creditors with respect to the
Collateral as set forth in this Agreement and the First-Lien Documents.



          (e) The Second-Lien Collateral Agent, for itself and on behalf of the Second-Lien Creditors,
and each Second-Lien Creditor (by its acceptance of the benefits of the Second-









 



Page 15



Lien Subordinated
Notes Documents) agrees that the Second-Lien Collateral Agent and the other Second-Lien Creditors
will not, without the prior written consent of the Required First-Lien Creditors (or the First-Lien
Collateral Agent at their direction or with their consent), issue any payment blockage or similar
notice with respect to any obligations that are subordinated in right
of payment to any First-Lien Obligations before the Discharge of First-Lien Credit Agreement
Obligations has occurred.



          3.2 Actions Upon Breach. (a) If any Second-Lien Creditor, contrary to this
Agreement, commences or participates in any action or proceeding against any Grantor or the
Collateral, any First-Lien Creditor may intervene and interpose as a defense or dilatory plea the
making of this Agreement, in its name or in the name of such Grantor.



          (b) Should any Second-Lien Creditor, contrary to this Agreement, in any way take, attempt to
or threaten to take any action with respect to the Collateral (including, without limitation, any
attempt to realize upon or enforce any remedy with respect to this Agreement), or take any other
action in violation of this Agreement or fail to take any action required by this Agreement, the
First-Lien Collateral Agent or any other First-Lien Creditor (in its own name or in the name of the
relevant Grantor), with the prior written consent of the First-Lien Collateral Agent, (i) may
obtain relief against such Second-Lien Creditor by injunction, specific performance and/or other
appropriate equitable relief, it being understood and agreed by the Second-Lien Collateral Agent on
behalf of each Second-Lien Creditor that (x) the First-Lien Creditors’ damages from its actions may
at that time be difficult to ascertain and may be irreparable, and (y) each Second-Lien Creditor
waives any defense that the First-Lien Creditors cannot demonstrate damage and/or be made whole by
the awarding of damages, and (ii) shall be entitled to damages, as well as reimbursement for all
reasonable and documented costs and expenses incurred in connection with any action to enforce the
provisions of this Agreement.



          SECTION 4. Payments.



          4.1 Application of Proceeds. So long as the Discharge of First-Lien Obligations has
not occurred, any proceeds of any Collateral pursuant to the enforcement of any Security Document
or the exercise of any remedial provision thereunder, together with all other proceeds received by
any Creditor (including all funds received in respect of post-petition interest or fees and
expenses) as a result of any such enforcement or the exercise of any such remedial provision or as
a result of any distribution of or in respect of any Collateral (whether or not expressly
characterized as such) upon or in any Insolvency or Liquidation Proceeding with respect to any
Grantor, or the application of any Collateral (or proceeds thereof) to the payment thereof or any
distribution of Collateral (or proceeds thereof) upon the liquidation or dissolution of any
Grantor, shall be applied by the First-Lien Collateral Agent to the First-Lien Obligations in such
order as specified in the relevant First-Lien Security Document (it being understood that any
payment of the fees and expenses of the Second-Lien Collateral Agent shall not constitute a
distribution of or in respect of Collateral for purposes of this Agreement, provided,
however, that this understanding does not constitute and may not be construed as an
agreement or consent of the First-Lien Collateral Agent or any of the First-Lien Creditors to the
payment of the Second-Lien Collateral Agent’s fees or expenses in any respects). Upon the
Discharge of First-Lien




 











 


Page 16

Obligations, the First-Lien Collateral Agent shall deliver to the Second-Lien Collateral Agent
any proceeds of Shared Collateral held by it in the same form as received, with any necessary
endorsements or as a court of competent jurisdiction may otherwise direct, to be applied by the
Second-Lien Collateral Agent to the Second-Lien Subordinated Obligations in such order as specified
in the Second-Lien Subordinated Security Documents.




          4.2 Payments Over. Until such time as the Discharge of First-Lien Obligations has
occurred, any Collateral or proceeds thereof (together with assets or proceeds subject to Liens
referred to in the final sentence of Section 2.3 hereof) (or any distribution in respect of the
Collateral, whether or not expressly characterized as such) received by the Second-Lien Collateral
Agent or any other Second-Lien Creditors in connection with the exercise of any right or remedy
(including setoff) relating to the Collateral or that is otherwise inconsistent with this Agreement
shall be segregated and held in trust and forthwith paid over to the First-Lien Collateral Agent
for the benefit of the First-Lien Creditors in the same form as received, with any necessary
endorsements or as a court of competent jurisdiction may otherwise direct. The First-Lien
Collateral Agent is hereby authorized to make any such endorsements as agent for the Second-Lien
Collateral Agent or any such other Second-Lien Creditors. This authorization is coupled with an
interest and is irrevocable until such time as this Agreement is terminated in accordance with its
terms.




          SECTION 5. Other Agreements.




          5.1 Releases.




          (a) If, in connection with:




               (i) the exercise of the First-Lien Collateral Agent’s remedies in respect of the Collateral
provided for in Section 3.1 hereof, including any sale, lease, exchange, transfer or other
disposition of any such Collateral (any of the foregoing, a “Remedial Action”);



               (ii) any sale, lease, exchange, transfer or other disposition (any of the foregoing, a
“Disposition”) of any Collateral permitted under the terms of the First-Lien Credit
Documents (whether or not an “event of default” thereunder or under any Second-Lien Subordinated
Notes Document has occurred and is continuing); or



               (iii) any agreement (not contravening the First-Lien Credit Documents) between the First-Lien
Collateral Agent and the Borrower or any other Grantor (x) to release the First-Lien Collateral
Agent’s Lien on any portion of the Collateral or (y) to release any Grantor from its obligations
under its guaranty of the First-Lien Obligations;


there occurs the release by the First-Lien Collateral Agent, acting on its own or at the direction
of the Required First-Lien Creditors, of any of its Liens on any part of the Collateral, or of any
Grantor from its obligations under its guaranty of the First-Lien Obligations, then the Liens, if
any, of the Second-Lien Collateral Agent, for itself and for the benefit of the other Second-Lien
Creditors, on such Collateral, and the obligations of such Grantor under its guaranty of the
Second-Lien Subordinated Obligations, shall be automatically, unconditionally and simultaneously
released, and, upon receipt of notice in writing, the Second-Lien Collateral







 



Page 17


Agent, for itself or on behalf of any such Second-Lien Creditors, promptly shall execute and
deliver to the First-Lien Collateral Agent or such Grantor such termination statements, releases
and other documents as the First-Lien Collateral Agent or such Grantor may request, and which the
Grantor has provided to the Second-Lien Collateral Agent, to effectively confirm such release;
provided however that if a payment default then exists under the Second-Lien
Subordinated Notes Indenture and the Discharge of First-Lien Obligations occurs concurrently with
any such release, the Second-Lien Collateral Agent (on behalf of the Second-Lien Creditors) shall
be entitled to receive the residual cash or cash equivalents (if any) remaining after giving effect
to such release and the Discharge of First-Lien Obligations to the extent otherwise required
pursuant to the terms of the Second-Lien Subordinated Notes Documents.




          (b) Until the Discharge of First-Lien Obligations occurs, the Second-Lien Collateral Agent,
for itself and on behalf of the Second-Lien Creditors, hereby irrevocably constitutes and appoints
the First-Lien Collateral Agent and any officer or agent of the First-Lien Collateral Agent, with
full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of the Second-Lien Collateral Agent or such other Second-Lien
Creditor or in the First-Lien Collateral Agent’s own name, from time to time in the First-Lien
Collateral Agent’s discretion, for the purpose of carrying out the terms of this Section 5.1, to
take any and all appropriate action and to execute any and all documents and instruments which may
be necessary or desirable to accomplish the purposes of this Section 5.1, including any
endorsements or other instruments of transfer or release.




          (c) If, prior to the Discharge of First-Lien Obligations, a subordination of the First-Lien
Collateral Agent’s Lien on any Shared Collateral is permitted (or in good faith believed by the
First-Lien Collateral Agent to be permitted) under the First-Lien Credit Agreement to another Lien
permitted under the First-Lien Credit Agreement (a “Priority Lien”), then the First-Lien
Collateral Agent is authorized to execute and deliver a subordination agreement with respect
thereto in form and substance satisfactory to it, and the Second-Lien Collateral Agent, for itself
and on behalf of the Second-Lien Creditors, shall promptly execute and deliver to the First-Lien
Collateral Agent or the relevant Grantor an identical subordination agreement subordinating the
Liens of the Second-Lien Collateral Agent for the benefit of the Second-Lien Creditors to such
Priority Lien.




          5.2 Insurance. Unless and until the Discharge of First-Lien Obligations has occurred,
the First-Lien Collateral Agent (acting at the direction of the Required First-Lien Creditors)
shall have the sole and exclusive right, subject to the rights of the Grantors under the First-Lien
Credit Documents, to adjust settlement for any insurance policy covering the Collateral in the
event of any loss thereunder and to approve any award granted in any condemnation or similar
proceeding (or any deed in lieu of condemnation) affecting the Collateral. Unless and until the
Discharge of First-Lien Obligations has occurred, and subject to the rights of the Grantors under
the First-Lien Security Documents, all proceeds of any such policy and any such award (or any
payments with respect to a deed in lieu of condemnation) in respect to the Collateral shall be paid
to the First-Lien Collateral Agent for the benefit of the First-Lien Creditors pursuant to the
terms of the First-Lien Credit Documents (including, without limitation, for purposes of cash
collateralization of commitments, letters of credit and Secured Hedge Agreements) and, after the
Discharge of First-Lien Obligations has occurred, to the









 



Page 18


Second-Lien Collateral Agent for the benefit of the Second-Lien Creditors (in respect of any
Shared Collateral) to the extent required under the Second-Lien Subordinated Security Documents and
then, to the extent no Second-Lien Subordinated Obligations are outstanding, to the owner of the
subject property, to such other Person as may be entitled thereto or as a court of competent
jurisdiction may otherwise direct. If the Second-Lien Collateral Agent or any other Second-Lien
Creditor shall, at any time, receive from the insurer any proceeds of any such insurance policy or
any such award or payment in contravention of this Agreement, it shall pay such proceeds over to
the First-Lien Collateral Agent in accordance with the terms of Section 4.2 of this Agreement.
Unless and until the Discharge of First-Lien Obligations has occurred, the First-Lien Collateral
Agent will have the sole and exclusive right to be named an additional insured and loss payee under
any such insurance policy.




          5.3 Amendments to Second-Lien Subordinated Notes Documents. (a) Without the prior
written consent of the First-Lien Collateral Agent (acting at the direction of the Required
First-Lien Creditors), no Second-Lien Subordinated Notes Document may be amended, restated,
supplemented, modified and/or Refinanced or entered into to the extent such amendment, supplement,
restatement, modification and/or Refinancing, or the terms of any new Second-Lien Subordinated
Notes Document, would contravene the provisions of this Agreement, the First-Lien Credit Agreement
or any other First-Lien Credit Document (it being understood that the Second-Lien Collateral Agent
and the Second-Lien Subordinated Notes Trustee may rely upon an opinion of counsel to the Borrower
to make any determination as to whether the requirements of this Section 5.3 have been complied
with). The Borrower, each other Grantor and the Second-Lien Collateral Agent each agree that each
Second-Lien Subordinated Security Document shall include the following language (or language to
similar effect approved by the First-Lien Collateral Agent):





“Notwithstanding anything herein to the contrary, the lien and security interest
granted to the Second-Lien Collateral Agent pursuant to this Agreement and the
exercise of any right or remedy by the Second-Lien Collateral Agent hereunder are
subject to the provisions of the Intercreditor Agreement, dated as of March 26, 2009
(as amended, restated, supplemented or otherwise modified from time to time in
accordance with the terms thereof, the “Intercreditor Agreement”), among CMP
Susquehanna Radio Holdings Corp., CMP Susquehanna Corp., the other Grantors from
time to time party thereto, Deutsche Bank Trust Company Americas, in its capacity as
the initial First-Lien Collateral Agent, and Wells Fargo Bank, National Association,
in its capacity as the initial Second-Lien Collateral Agent thereunder. In the
event of any conflict between the terms of the Intercreditor Agreement and this
Agreement, the terms of the Intercreditor Agreement shall govern and control.”


In addition, each of the Borrower, each other Grantor and the Second-Lien Collateral Agent each
agree that each Second-Lien Security Document covering any Shared Collateral constituting real
property shall contain such other language as the First-Lien Collateral Agent may reasonably
request to reflect the subordination of such Second-Lien Security Document to the First-Lien
Security Document covering such Shared Collateral.










 



Page 19




          (b) In the event the First-Lien Collateral Agent or the other First-Lien Creditors and the
relevant Grantor(s) enter into any amendment, restatement, waiver or consent in respect of any of
the First-Lien Security Documents for the purpose of adding to, or deleting from, or waiving or
consenting to any departures from any provisions of, any First-Lien Security Document or changing
in any manner the rights of the First-Lien Collateral Agent, the other First-Lien Creditors, the
Borrower or any other Grantor thereunder, then such amendment, restatement, waiver or consent shall
apply automatically to any comparable provision of the Comparable Second-Lien Subordinated Security
Document without the consent of the Second-Lien Collateral Agent or the other Second-Lien Creditors
and without any action by the Second-Lien Collateral Agent, the Borrower or any other Grantor,
provided, that (A) no such amendment, restatement, waiver or consent shall have the effect
of (i) removing assets subject to the Lien of the Second-Lien Subordinated Security Documents,
except to the extent that a release of such Lien is permitted or required by Section 5.1 of this
Agreement, or (ii) imposing additional duties on the Second-Lien Collateral Agent without its
consent, and (B) written notice of such amendment, restatement, waiver or consent shall have been
given to the Second-Lien Collateral Agent (although the failure to give any such notice shall in no
way affect the effectiveness of any such amendment, waiver or consent).




          (c) The Second-Lien Subordinated Obligations may be Refinanced, in whole or in part, without
the consent of the First-Lien Collateral Agent or any of the First-Lien Creditors, all without
affecting the Lien priorities provided for herein or the other provisions hereof; provided,
that (A) any such Refinancing shall be permitted pursuant to the terms of the First-Lien Credit
Documents, (B) the aggregate principal amount of the Refinancing Indebtedness shall not exceed the
aggregate principal amount of the Second-Lien Subordinated Obligations then being Refinanced plus
accrued interest, fees and other amounts outstanding in respect thereof, and the cash yield or cash
interest on the Refinanced Indebtedness shall be at then current market rates, (C) the Refinanced
Indebtedness shall be secured and guaranteed only to the same extent securing the Second-Lien
Subordinated Obligations on the date of such Refinancing and (D) the terms of any such Refinanced
Indebtedness shall not (i) result in an earlier maturity date or decreased weighted average life
thereof, (ii) change any event of default or condition to an event of default with respect thereto
(other than to eliminate any such event of default or increase any grace period related thereto) or
add any event of default, (iii) add any mandatory prepayments thereto, (iv) change the lien
subordination provisions thereof (or of any guaranty thereof) or (v) make any other amendment
thereof or change thereto, if the effect of such other amendment or change, together with all other
amendments or changes made, is to increase materially the obligations of the obligors thereunder or
to confer any additional rights on the Second-Lien Creditors or other holders of Indebtedness (or a
representative on their behalf) under the Second-Lien Subordinated Notes Documents or any document
governing such Refinanced Indebtedness that would be adverse to the Borrower and each Subsidiary
Guarantor under the First-Lien Credit Documents or any First-Lien Creditor.




          5.4 Rights As Unsecured Creditors. Except as otherwise set forth in this Agreement,
the Second-Lien Collateral Agent and the other Second-Lien Creditors may exercise rights and
remedies as unsecured creditors against Holdings, the Borrower or any other Grantor that has
guaranteed the Second-Lien Subordinated Obligations in accordance with the terms of the Second-Lien
Subordinated Notes Documents, the First-Lien Documents and applicable law.










 



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Except as otherwise set forth in this Agreement (and subject in any event to the subordination
provisions in the Second-Lien Subordinated Notes Indenture and the other Second-Lien Subordinated
Notes Documents), nothing in this Agreement shall prohibit the receipt by the Second-Lien
Collateral Agent or any other Second-Lien Creditor of the required payments of interest and
principal on the Second-Lien Subordinated Obligations, so long as such receipt is not the direct or
indirect result of the exercise by the Second-Lien Collateral Agent or any other Second-Lien
Creditor of rights or remedies as a secured creditor (including setoff) or enforcement in
contravention of this Agreement of any Lien held by any of them. In the event the Second-Lien
Collateral Agent or any other Second-Lien Creditor becomes a judgment lien creditor in respect of
Collateral as a result of any enforcement of its rights, such judgment lien shall be subordinated
to the Liens securing First-Lien Obligations on the same basis as the other Liens securing the
Second-Lien Subordinated Obligations are so subordinated to such Liens securing First-Lien
Obligations under this Agreement. Nothing in this Agreement impairs or otherwise adversely affects
any rights or remedies the First-Lien Collateral Agent or the other First-Lien Creditors may have
with respect to the First-Lien Collateral. Each of the parties hereto hereby acknowledges and
agrees that the rights of the Second-Lien Creditors to (i) receive payments of principal, interest
and other amounts owing in respect of the Second-Lien Subordinated Obligations and (ii) exercise
rights and remedies as creditors against the Borrower or any other Grantor that has guaranteed the
Second-Lien Subordinated Obligations are further subject to the subordination provisions set forth
in the Second-Lien Subordinated Notes Indenture and the other Second-Lien Subordinated Notes
Documents.




          5.5 Bailee for Perfection. (a) The First-Lien Collateral Agent agrees to acquire,
and acknowledges it holds, the Pledged Collateral or other Collateral in its possession or control
(or in the possession or control of its agents or bailees) on behalf of itself and the Second-Lien
Collateral Agent (it being understood that with respect to the Second-Lien Collateral Agent, it
holds solely the Pledged Collateral or other Collateral constituting Shared Collateral) and, in
each case, any assignee, solely for the purpose of perfecting the security interest granted under
the First-Lien Credit Documents and the Second-Lien Subordinated Notes Documents, subject to the
terms and conditions of this Section 5.5.




          (b) Until the Discharge of First-Lien Obligations has occurred, the First-Lien Collateral
Agent shall be entitled to deal with the Pledged Collateral in accordance with the terms of the
First-Lien Credit Documents as if the Liens of the Second-Lien Collateral Agent under the
Second-Lien Subordinated Security Documents did not exist. The rights of the Second-Lien
Collateral Agent shall at all times be subject to the terms of this Agreement and to the First-Lien
Collateral Agent’s rights under the First-Lien Credit Documents.




          (c) The First-Lien Collateral Agent shall have no obligation whatsoever to the First-Lien
Creditors and the Second-Lien Collateral Agent or any Second-Lien Creditor to assure that the
Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of
any Person except as expressly set forth in this Section 5.5. The duties or responsibilities of
the First-Lien Collateral Agent under this Section 5.5 shall be limited solely to holding the
Pledged Collateral as bailee in accordance with this Section 5.5.




          (d) The First-Lien Collateral Agent, acting pursuant to this Section 5.5, shall not have by
reason of the First-Lien Security Documents, the Second-Lien Subordinated Security








 



Page 21


Documents, this Agreement or any other document, a fiduciary relationship in respect of the
First-Lien Creditors, the Second-Lien Collateral Agent or any other Second-Lien Creditor.


          (e) Upon the Discharge of First-Lien Obligations, the First-Lien Collateral Agent shall
deliver the remaining Pledged Collateral (if any) (or proceeds thereof) together with any necessary
endorsements, first, to the Second-Lien Collateral Agent (solely to the extent such Pledged
Collateral constitutes Shared Collateral), if any Second-Lien Subordinated Obligations remain
outstanding, and second, to the Borrower or the relevant Grantor if no First-Lien
Obligations or Second-Lien Subordinated Obligations remain outstanding (in each case, so as to
allow such Person to obtain control of such Pledged Collateral). The First-Lien Collateral Agent
further agrees to take all other action reasonably requested by such Person in connection with such
Person’s obtaining a first-priority interest in the Collateral or as a court of competent
jurisdiction may otherwise direct.


          5.6 When Discharge of First-Lien Obligations Deemed to Not Have Occurred. If at any
time after the Discharge of First-Lien Obligations has occurred, the Borrower immediately
thereafter enters into any Refinancing of any First-Lien Credit Document evidencing a First-Lien
Obligation, then such Discharge of First-Lien Obligations shall automatically be deemed not to have
occurred for all purposes of this Agreement, and the obligations under such Refinanced First-Lien
Credit Document shall automatically be treated as First-Lien Obligations for all purposes of this
Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set
forth herein, and the first-lien collateral agent under such First-Lien Credit Documents shall be
the First-Lien Collateral Agent for all purposes of this Agreement. Upon receipt of a notice in
writing stating that the Borrower has entered into a new First-Lien Credit Document (which notice
shall include the identity of the new agent, such agent, the “New Agent”), the Second-Lien
Collateral Agent shall promptly enter into such documents and agreements (including amendments or
supplements to this Agreement) as the Borrower or such New Agent may reasonably request in order to
provide to the New Agent the rights contemplated hereby, in each case consistent in all material
respects with the terms of this Agreement.


          5.7 Option to Purchase First-Lien Debt


. (a)  Without prejudice to the enforcement of remedies by the First-Lien Creditors, any Person or
Persons (in each case who must meet all eligibility standards contained in all relevant First-Lien
Credit Documents) at any time or from time to time designated by the holders of more than 50% in
aggregate outstanding principal amount of the Second-Lien Subordinated Obligations as being
entitled to exercise all default purchase options as to the Second-Lien Obligations then
outstanding (an “Eligible Purchaser”) shall have the right to purchase by way of assignment
(and shall thereby also assume all commitments and duties of the First-Lien Creditors), at any time
during the exercise period described in clause (c) below of this Section 5.7, all, but not less
than all, of the First-Lien Obligations (other than the First-Lien Obligations of a Defaulting
Creditor), including all principal of and accrued and unpaid interest and fees on and all
prepayment or acceleration penalties and premiums in respect of all First-Lien Obligations
outstanding at the time of purchase; provided that at the time of (and as a condition to)
any purchase pursuant to this Section 5.7, all commitments pursuant to any then outstanding
First-Lien Credit Agreement shall have terminated, and all Secured Hedge Agreements constituting
First-Lien Documents and







 



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Cash Management Services entered into with any First-Lien Creditor shall also have been terminated
in accordance with their terms. Any purchase pursuant to this Section 5.7(a) shall be made as
follows:





     (1) for (x) a purchase price equal to the sum of (A) in the case of all loans, advances
or other similar extensions of credit that constitute First-Lien Obligations (including
unreimbursed amounts drawn in respect of Letters of Credit, but excluding the undrawn amount
of then outstanding Letters of Credit), the greater of (I) 100% and (II) the then current
market-based price, of the principal amount thereof and all accrued and unpaid interest
thereon through the date of purchase (without regard, however, to any acceleration
prepayment penalties or premiums other than customary breakage costs), (B) in the case of
any Secured Hedge Agreement, the aggregate amount then owing to each Hedge Bank thereunder
pursuant to the terms of the respective Secured Hedge Agreement, including without
limitation all amounts owing to such Hedge Bank as a result of the termination (or early
termination) thereof, (C) in the case of any Cash Management Services, the aggregate amount
then owing to each Cash Management Bank providing such Cash Management Services pursuant to
the terms of the respective documents governing such Cash Management Services, including
without limitation all amounts owing to such Cash Management Bank as a result of the
termination (or early termination) thereof, plus (D) all accrued and unpaid fees, expenses,
indemnities and other amounts through the date of purchase; and (y) an obligation on the
part of the respective Eligible Purchasers (which shall be expressly provided in the
assignment documentation described below) to (i) reimburse each issuing lender (or any
First-Lien Creditor required to pay same) for all amounts thereafter drawn with respect to
any Letters of Credit constituting First-Lien Obligations which remain outstanding after the
date of any purchase pursuant to this Section 5.7, together with all facing fees and other
amounts which may at any future time be owing to the respective issuing lender with respect
to such Letters of Credit, and (ii) pay over to the First-Lien Creditors any amounts
recovered by such Eligible Purchasers on account of any acceleration prepayment premiums or
penalties with respect to the First-Lien Obligations;




     (2) with the purchase price described in preceding clause (a)(1)(x) payable in cash on
the date of purchase against transfer to the respective Eligible Purchaser or Eligible
Purchasers (without recourse and without any representation or warranty whatsoever, whether
as to the enforceability of any First-Lien Obligation or the validity, enforceability,
perfection, priority or sufficiency of any Lien securing, or guarantee or other supporting
obligation for, any First-Lien Obligation or as to any other matter whatsoever, except the
representation and warranty that the transferor owns free and clear of all Liens and
encumbrances (other than participation interests not prohibited by the First-Lien Credit
Agreement, in which case the purchase price described in preceding clause (a)(1)(x) shall be
appropriately adjusted so that the Eligible Purchaser or Eligible Purchasers do not pay
amounts represented by any participation interest which remains in effect), and has the
right to convey, whatever claims and interests it may have in respect of the First-Lien
Obligations); provided that the purchase price in respect of any outstanding Letter
of Credit that remains undrawn on the date of purchase shall be payable in cash as and when
such Letter of Credit is drawn upon (i) first, from the cash









 



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collateral account described in clause (a)(3) below, until the amounts contained
therein have been exhausted, and (ii) thereafter, directly by the respective Eligible
Purchaser or Eligible Purchasers;




     (3) with such purchase accompanied by a deposit of cash collateral under the sole
dominion and control of the First-Lien Collateral Agent or its designee in an amount equal
to 110% of the sum of the aggregate undrawn amount of all then outstanding Letters of Credit
pursuant to the First-Lien Credit Documents and the aggregate facing and similar fees which
will accrue thereon through the stated maturity of the Letters of Credit (assuming no
drawings thereon before stated maturity), as security for the respective Eligible
Purchaser’s or Eligible Purchasers’ obligation to pay amounts as provided in preceding
clause (a)(1)(y), it being understood and agreed that (x) at the time any facing or similar
fees are owing to an issuer with respect to any Letter of Credit, the First-Lien Collateral
Agent may apply amounts deposited with it as described above to pay same and (y) upon any
drawing under any Letter of Credit, the First-Lien Collateral Agent shall apply amounts
deposited with it as described above to repay the respective unpaid drawing. After giving
effect to any payment made as described above in this clause (3), those amounts (if any)
then on deposit with the First-Lien Collateral Agent as described in this clause (3) which
exceed 110% of the sum of the aggregate undrawn amount of all then outstanding Letters of
Credit and the aggregate facing and similar fees (to the respective issuers) which will
accrue thereon through the stated maturity of the then outstanding Letters of Credit
(assuming no drawings thereon before stated maturity), shall be returned to the respective
Eligible Purchaser or Eligible Purchasers (as their interests appear). Furthermore, at such
time as all Letters of Credit have been cancelled, expired or been fully drawn, as the case
may be, and after all applications described above have been made, any excess cash
collateral deposited as described above in this clause (3) (and not previously applied or
released as provided above) shall be returned to the respective Eligible Purchaser or
Eligible Purchasers, as their interests appear;




     (4) with the purchase price described in preceding clause (a)(1)(x) accompanied by a
waiver by the Second-Lien Collateral Agent (on behalf of itself and the other Second-Lien
Creditors) of all claims arising out of this Agreement and the transactions contemplated
hereby as a result of exercising the purchase option contemplated by this Section 5.7;




     (5) with all amounts payable to the various First-Lien Creditors in respect of the
assignments described above to be distributed to them by the First-Lien Collateral Agent in
accordance with their respective holdings of the various First-Lien Obligations; and




     (6) with such purchase to be made pursuant to assignment documentation in form and
substance reasonably satisfactory to, and prepared by counsel for, the First-Lien Collateral
Agent (with the cost of such counsel to be paid by the Grantors or, if the Grantors do not
make such payment, by the respective Eligible Purchaser or Eligible Purchasers, who shall
have the right to obtain reimbursement of same from the Grantors); it being understood and
agreed that the First-Lien Collateral Agent and each other First-Lien Creditor shall retain
all rights to indemnification as provided in the relevant First-









 



Page 24



Lien Credit Documents for all periods prior to any assignment by them pursuant to the
provisions of this Section 5.7. The relevant assignment documentation shall also provide
that, if for any reason (other than the gross negligence or willful misconduct of the
First-Lien Collateral Agent (as determined by a court of competent jurisdiction in a final
and non-appealable judgment)), the amount of cash collateral held by the First-Lien
Collateral Agent or its designee pursuant to preceding clause (a)(3) is at any time less
than the full amounts owing with respect to any Letter of Credit described above (including
facing and similar fees) then the respective Eligible Purchaser or Eligible Purchasers shall
promptly reimburse the First-Lien Collateral Agent (who shall pay the respective issuing
bank) the amount of deficiency.



          (b) The right to exercise the purchase option described in Section 5.7(a) above shall be
exercisable and legally enforceable upon at least seven Business Days’ prior written notice of
exercise (which notice, once given, shall be irrevocable and fully binding on the respective
Eligible Purchaser or Eligible Purchasers) given to the First-Lien Collateral Agent by an Eligible
Purchaser. Neither the First-Lien Collateral Agent nor any other First-Lien Creditor shall have
any disclosure obligation to any Eligible Purchaser, the Second-Lien Collateral Agent or any other
Second-Lien Creditor in connection with any exercise of such purchase option.




          (c) The right to purchase the First-Lien Obligations as described in this Section 5.7 may be
exercised (by giving the irrevocable written notice described in preceding clause (b)) during the
period that (1) begins on the date occurring three Business Days after the first to occur of (x)
the date of the acceleration of the final maturity of the Loans under the First-Lien Credit
Agreement, (y) the occurrence of the final maturity of the Loans under the First-Lien Credit
Agreement or (z) the occurrence of an Insolvency or Liquidation Proceeding with respect to the
Borrower which constitutes an event of default under the First-Lien Credit Agreement (in each case,
so long as the acceleration, failure to pay amounts due at final maturity or such Insolvency or
Liquidation Proceeding constituting an event of default has not been rescinded or cured within such
three Business Day period, and so long as any unpaid amounts constituting First-Lien Obligations
remain owing); provided that if there is any failure to meet the condition described in the proviso
of preceding clause (a) hereof, the aforementioned date shall be extended until the first date upon
which such condition is satisfied, and (2) ends on the 30thth day after the start of the
period described in clause (1) above.




          (d) The obligations of the First-Lien Creditors to sell their respective First-Lien
Obligations under this Section 5.7 are several and not joint and several. To the extent any
First-Lien Creditor (a “Defaulting Creditor”) breaches its obligation to sell its
First-Lien Obligations under this Section 5.7, nothing in this Section 5.7 shall be deemed to
require the First-Lien Collateral Agent or any other First-Lien Creditor to purchase such
Defaulting Creditor’s First-Lien Obligations for resale to the holders of Second-Lien Subordinated
Obligations and in all cases, the First-Lien Collateral Agent and each First-Lien Creditor
complying with the terms of this Section 5.7 shall not be deemed to be in default of this Agreement
or otherwise be deemed liable for any action or inaction of any Defaulting Creditor;
provided that nothing in this clause (d) shall require any Eligible Purchaser to purchase
less than all of the First-Lien Obligations.










 



Page 25




          (e) Each Grantor irrevocably consents to any assignment effected to one or more Eligible
Purchasers pursuant to this Section 5.7 (so long as they meet all eligibility standards contained
in all relevant First-Lien Credit Documents, other than obtaining the consent of any Grantor to an
assignment to the extent required by such First-Lien Credit Documents) for purposes of all
First-Lien Credit Documents and hereby agrees that no further consent from such Grantor shall be
required.




          SECTION 6. Insolvency or Liquidation Proceedings.




          6.1 Finance and Sale Issues. (a) Until the Discharge of the First-Lien Obligations
has occurred, if the Borrower or any other Grantor shall be subject to any Insolvency or
Liquidation Proceeding and the First-Lien Collateral Agent (acting at the direction of the Required
First-Lien Creditors) shall desire to permit the use of Cash Collateral on which the First-Lien
Collateral Agent or any other creditor of the Borrower or any other Grantor has a Lien or agrees,
along with the Required First-Lien Creditors, to permit the Borrower or any other Grantor to obtain
post-petition financing (including on a priming basis), whether from the First-Lien Creditors or
any other third party under Section 362, 363 or 364 of the Bankruptcy Code or any other Bankruptcy
Law (each, a “Post-Petition Financing”), then the Second-Lien Collateral Agent, on behalf
of itself and the Second-Lien Creditors, and each Second-Lien Creditor (by its acceptance of the
benefits of the Second-Lien Subordinated Notes Documents), agrees that it will not oppose or raise
any objection to or contest (or join with or support any third party opposing, objecting to or
contesting), such use of Cash Collateral or Post-Petition Financing and will not request adequate
protection or any other relief in connection therewith that is inconsistent with Section 6.3
(except as expressly agreed in writing by the First-Lien Collateral Agent) and, to the extent the
Liens securing the First-Lien Obligations are subordinated to or pari passu with
such Post-Petition Financing incurred in compliance with this Section 6.1, the Liens of the
Second-Lien Creditors on the Collateral shall be deemed to be subordinated, without any further
action on the part of any person or entity, to the Liens securing such Post-Petition Financing (and
all Obligations relating thereto), and the Liens securing the Second-Lien Subordinated Obligations
shall have the same priority with respect to the Collateral relative to the Liens securing the
First-Lien Obligations as if such Post-Petition Financing had not occurred; provided that
the First-Lien Collateral Agent and the First-Lien Creditors acknowledge and agree that the
Second-Lien Collateral Agent and the Second-Lien Creditors shall retain the right to raise any
objection to the Post-Petition Financing that could be raised by any unsecured creditor of the
Borrower, so long as such objections are not based on the Second-Lien Creditors’ status as secured
creditors.




          (b) Until the Discharge of the First-Lien Obligations has occurred, the Second-Lien Collateral
Agent, on behalf of itself and the Second-Lien Creditors, and each Second-Lien Creditor (by its
acceptance of the benefits of the Second-Lien Subordinated Notes Documents), agrees that it will
raise no objection to, oppose or contest (or join with or support any third party opposing,
objecting to or contesting), a sale or other disposition of any Collateral free and clear of its
Liens or other claims under Section 363 of the Bankruptcy Code if the First-Lien Creditors have
consented to such sale or disposition of such assets; provided, that notwithstanding the
foregoing, the Second-Lien Collateral Agent, on behalf of itself and the other Second-Lien
Creditors, may raise objections to any such disposition of Collateral that could be raised by any
creditor of the Borrower whose claims were not secured by any Liens on









 



Page 26


the Collateral, so long as such objections are not based on the Second-Lien Creditors’ status
as secured creditors.




          6.2 Relief from the Automatic Stay. Until the Discharge of First-Lien Obligations has
occurred, the Second-Lien Collateral Agent, on behalf of itself and the Second-Lien Creditors, and
each Second-Lien Creditor (by its acceptance of the benefits of the Second-Lien Subordinated Notes
Documents), agrees that none of them shall seek relief, pursuant to Section 362(d) of the
Bankruptcy Code or otherwise, from the automatic stay of Section 362(a) of the Bankruptcy Code or
from any other stay in any Insolvency or Liquidation Proceeding in respect of the Collateral,
without the prior written consent of the First-Lien Collateral Agent, unless a motion for adequate
protection permitted under Section 6.3 has been denied by the Bankruptcy Court.




          6.3 Adequate Protection. (a) The Second-Lien Collateral Agent, on behalf of itself
and the Second-Lien Creditors, and each Second-Lien Creditor (by its acceptance of the benefits of
the Second-Lien Subordinated Notes Documents), agrees that none of them shall (i) oppose, object to
or contest (or join with or support any third party opposing, objecting to or contesting) (a) any
request by the First-Lien Collateral Agent or the other First-Lien Creditors for adequate
protection in any Insolvency or Liquidation Proceeding (or any granting of such request) or (b) any
objection by the First-Lien Collateral Agent or the other First-Lien Creditors to any motion,
relief, action or proceeding based on the First-Lien Collateral Agent or the other First-Lien
Creditors claiming a lack of adequate protection or (ii) seek or accept any form of adequate
protection under any of Sections 362, 363 and/or 364 of the Bankruptcy Code with respect to the
Collateral, except as expressly provided in this Section 6.3.




          (b) In any Insolvency or Liquidation Proceeding:




               (i) if the First-Lien Creditors (or any subset thereof) are granted adequate protection in the
form of additional collateral in connection with any use of Cash Collateral or Post-Petition
Financing, then the Second-Lien Collateral Agent, on behalf of itself or any of the other
Second-Lien Creditors, may seek or request adequate protection in the form of a Lien on such
additional collateral, which Lien will be subordinated to the Liens securing the First-Lien
Obligations, such use of Cash Collateral and/or any Post-Petition Financing (and all Obligations
relating thereto) on the same basis as the other Liens securing the Second-Lien Subordinated
Obligations are so subordinated to the First-Lien Obligations under this Agreement, the First-Lien
Security Documents and the Second-Lien Subordinated Security Documents; and



               (ii) the Second-Lien Collateral Agent and the other Second-Lien Creditors shall only be
permitted to seek adequate protection with respect to their rights in the Collateral in any
Insolvency or Liquidation Proceeding in the form of (A) additional collateral, including
replacement Liens on post-petition collateral, provided, that, as adequate protection for
the First-Lien Obligations, the First-Lien Collateral Agent, on behalf of the First-Lien Creditors,
is also granted a security interest in and Lien upon such additional collateral, which is senior
and prior to the security interest and Lien granted to the Second-Lien Collateral Agent and/or the
Second-Lien Creditors; (B) replacement Liens on the Collateral, provided, that, as adequate
protection for the First-Lien Obligations, the First-Lien Collateral Agent, on behalf of the First-









 



Page 27



Lien Creditors, is also granted a security interest in and replacement Lien upon such
additional collateral, which is senior and prior to the security interest and Lien granted to the
Second-Lien Collateral Agent and/or the Second-Lien Creditors; and (C) an administrative expense
claim, provided, that, as adequate protection for the First-Lien Obligations, the
First-Lien Collateral Agent, on behalf of the First-Lien Creditors, is also granted an
administrative expense claim that is senior and prior to the administrative expense claim granted
to the Second-Lien Collateral Agent and/or the Second-Lien Creditors; and provided,
further, that unless the Discharge of First-Lien Obligations has occurred prior to, or
occurs on, the effective date of any plan of reorganization, any adequate protection payments that
may otherwise be payable to the Second-Lien Collateral Agent or any Second-Lien Creditors in
respect of any of the foregoing shall be paid to the First-Lien Collateral Agent for the benefit of
the First-Lien Creditors for application to the First-Lien Obligations.



          6.4 No Waiver; Voting Rights; Reorganization Securities. (a) Nothing contained
herein shall prohibit or in any way limit the First-Lien Collateral Agent or any First-Lien
Creditor from objecting on any basis in any Insolvency or Liquidation Proceeding or otherwise to
any action taken by the Second-Lien Collateral Agent or any other Second-Lien Creditor, including
the seeking by the Second-Lien Collateral Agent or any other Second-Lien Creditor of adequate
protection on terms inconsistent with Section 6.3 or the assertion by the Second-Lien Collateral
Agent or any other Second-Lien Creditor of any of its rights and remedies under the Second-Lien
Subordinated Notes Documents or otherwise.




          (b) In any Insolvency or Liquidation Proceeding, neither the Second-Lien Collateral Agent nor
any other Second-Lien Creditor shall (i) oppose or object to the proposed treatment of First-Lien
Obligations or the relative treatment of the First-Lien Obligations to the Second-Lien Subordinated
Obligations in any plan of reorganization or disclosure statement, or join with or support any
third party in doing so, to the extent the terms of such plan or disclosure statement comply with
the following clause (ii) and are otherwise consistent with the rights of the First-Lien Creditors
under this Agreement or (ii) support any plan of reorganization or disclosure statement of any
Grantor unless (x) such plan provides for the payment in full in cash of all First-Lien Obligations
(including all post-petition interest, fees and expenses as provided in Section 6.6 hereof) on the
effective date of such plan of reorganization, or (y) such plan provides on account of the
First-Lien Obligations for the retention by the First-Lien Collateral Agent, for the benefit of the
First-Lien Creditors, of the Liens on the Collateral securing the First-Lien Obligations, and on
all proceeds thereof, and such plan also provides that any Liens retained by, or granted to, the
Second-Lien Collateral Agent are only on assets or property securing the First-Lien Obligations and
shall have the same relative priority with respect to the Collateral or other assets or property,
respectively, as provided in this Agreement with respect to the Collateral, and to the extent such
plan provides for deferred cash payments, or for the distribution of any other property of any kind
or nature, on account of the First-Lien Obligations or the Second-Lien Subordinated Obligations,
such plan provides that any such deferred cash payments or other distributions in respect of the
Second-Lien Subordinated Obligations shall be delivered to the First-Lien Collateral Agent and
distributed in accordance with the priorities provided in Sections 4.1(a) and 5.4 hereof.
Notwithstanding the foregoing, the Second-Lien Creditors shall remain entitled to vote their claims
in any such Insolvency or Liquidation Proceeding.










 



Page 28




          (c) If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized
debtor secured by Liens upon any property of the reorganized debtor are distributed pursuant to a
plan of reorganization or similar dispositive restructuring plan, the Second-Lien Creditors may
receive Junior Permitted Securities (as defined in the Second-Lien Subordinated Notes Indenture) to
the extent permitted in the Second-Lien Subordinated Notes Indenture.




          6.5 Preference Issues. If any First-Lien Creditor is required in any Insolvency or
Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Borrower or
any other Grantor any amount (a “Recovery”), then the First-Lien Obligations shall be
reinstated to the extent of such Recovery and the First-Lien Creditors shall be entitled to a
reinstatement of First-Lien Obligations with respect to all such recovered amounts. If this
Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in
full force and effect, and such prior termination shall not diminish, release, discharge, impair or
otherwise affect the obligations of the parties hereto from such date of reinstatement. Any
amounts received by the Second-Lien Collateral Agent or any Second-Lien Creditor on account of the
Second-Lien Subordinated Obligations after the termination of this Agreement shall, in the event of
a reinstatement of this Agreement pursuant to this Section 6.5, be held in trust for and paid over
to the First-Lien Collateral Agent for the benefit of the First-Lien Creditors, for application to
the reinstated First-Lien Obligations. This Section 6.5 shall survive termination of this
Agreement.




          6.6 Post-Petition Interest. (a) Neither the Second-Lien Collateral Agent nor any
other Second-Lien Creditor shall oppose or seek to challenge any claim by the First-Lien Collateral
Agent or any other First-Lien Creditor for allowance in any Insolvency or Liquidation Proceeding of
First-Lien Obligations consisting of post-petition interest, fees or expenses to the extent of the
value of the Liens securing the First-Lien Obligations (it being understood and agreed that such
value shall be determined without regard to the existences of any Liens securing the Second-Lien
Subordinated Obligations). Regardless of whether any such claim for post-petition interest, fees
or expenses is allowed or allowable, and without limiting the generality of the other provisions of
this Agreement, this Agreement is expressly intended to include and does include the “rule of
explicitness” in that this Agreement expressly entitles the First-Lien Creditors, and is intended
to provide the First-Lien Creditors with the right, to receive payment of all post-petition
interest, fees or expenses through distributions made pursuant to the provisions of this Agreement
even though such interest, fees and expenses are not allowed or allowable against the bankruptcy
estate of the Borrower or any other Grantor under Section 502(b)(2) or Section 506(b) of the
Bankruptcy Code or under any other provision of the Bankruptcy Code or any other Bankruptcy
Law. 




          (b) Without limiting the foregoing, it is the intention of the parties hereto that (and to the
maximum extent permitted by law the parties hereto agree that) the First-Lien Obligations (and the
security therefor) constitute a separate and distinct class (and separate and distinct claims) from
the Second-Lien Subordinated Obligations (and the security therefor).




          6.7 Waiver. The Second-Lien Collateral Agent, for itself and on behalf of the other
Second-Lien Creditors, waives any claim it may hereafter have against any First-Lien Creditor
arising out of the election by any First-Lien Creditor of the application to the claims of any
First-Lien Creditor of Section 1111(b)(2) of the Bankruptcy Code, and/or out of any Cash









 



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Collateral or Post-Petition Financing arrangement or out of any grant of a security interest
in connection with the Collateral in any Insolvency or Liquidation Proceeding.




          6.8 Limitations. So long as the Discharge of First-Lien Obligations has not occurred,
without the express written consent of the First-Lien Collateral Agent, none of the Second-Lien
Creditors shall (or shall join with or support any third party making, opposing, objecting or
contesting, as the case may be), in any Insolvency or Liquidation Proceeding involving any Grantor,
(i) make an election for application to its claims of Section 1111(b)(2) of the Bankruptcy Code,
(ii) oppose, object to or contest the determination of the extent of any Liens held by any of the
First-Lien Creditors or the value of any claims of First-Lien Creditors under Section 506(a) of the
Bankruptcy Code or (iii) oppose, object to or contest the payment to the First-Lien Creditors of
interest, fees or expenses under Section 506(b) of the Bankruptcy Code.




          SECTION 7. Reliance; Waivers; Etc.




          7.1 Reliance. Other than any reliance on the terms of this Agreement, the First-Lien
Collateral Agent, on behalf of itself and the First-Lien Creditors under the First-Lien Documents,
acknowledges that it and the other First-Lien Creditors have, independently and without reliance on
the Second-Lien Collateral Agent or any other Second-Lien Creditors, and based on documents and
information deemed by them appropriate, made their own credit analysis and decision to enter into
such First-Lien Documents and be bound by the terms of this Agreement and they will continue to
make their own credit decision in taking or not taking any action under any First-Lien Document or
this Agreement. The Second-Lien Collateral Agent, on behalf of itself and the Second-Lien
Creditors, acknowledges that it and the other Second-Lien Creditors have, independently and without
reliance on the First-Lien Collateral Agent or any other First-Lien Creditor, and based on
documents and information deemed by them appropriate, made their own analysis and decision to enter
into each of the Second-Lien Subordinated Notes Documents and be bound by the terms of this
Agreement and they will continue to make their own decision in taking or not taking any action
under the Second-Lien Subordinated Notes Documents or this Agreement.




          7.2 No Warranties or Liability. The First-Lien Collateral Agent, on behalf of itself
and the First-Lien Creditors under the First-Lien Documents, acknowledges and agrees that each of
the Second-Lien Collateral Agent and the other Second-Lien Creditors have made no express or
implied representation or warranty, including with respect to the execution, validity, legality,
completeness, collectibility or enforceability of any of the Second-Lien Subordinated Notes
Documents, the ownership of any Shared Collateral or the perfection or priority of any Liens
thereon. The Second-Lien Collateral Agent, on behalf of itself and the Second-Lien Creditors,
acknowledges and agrees that each of the First-Lien Collateral Agent and the First-Lien Creditors
have made no express or implied representation or warranty, including with respect to the
execution, validity, legality, completeness, collectibility or enforceability of any of the
First-Lien Documents, the ownership of any Collateral or the perfection or priority of any Liens
thereon. The First-Lien Creditors will be entitled to manage and supervise their respective loans
and extensions of credit under their respective First-Lien Documents in accordance with law and as
they may otherwise, in their sole discretion, deem appropriate. The First-Lien Collateral Agent
and the First-Lien Creditors shall have no duty to the Second-Lien Collateral









 



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Agent or any of the Second-Lien Creditors, to act or refrain from acting in a manner which
allows, or results in, the occurrence or continuance of an event of default or default under any
agreements with the Borrower or any other Grantor (including under the First-Lien Documents),
regardless of any knowledge thereof which they may have or be charged with.




          7.3 No Waiver of Lien Priorities. (a) No right of the First-Lien Creditors, the
First-Lien Collateral Agent or any of them to enforce any provision of this Agreement or any
First-Lien Document shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Borrower or any other Grantor or by any act or failure to act by any
First-Lien Creditor or the First-Lien Collateral Agent, or by any noncompliance by any Person with
the terms, provisions and covenants of this Agreement, any of the First-Lien Documents or any of
the Second-Lien Subordinated Notes Documents, regardless of any knowledge thereof which the
First-Lien Collateral Agent or the First-Lien Creditors, or any of them, may have or be otherwise
charged with.




          (b) Without in any way limiting the generality of the foregoing paragraph (but subject to the
rights of the Borrower and the other Grantors under the First-Lien Documents), the First-Lien
Creditors, the First-Lien Collateral Agent and any of them may, at any time and from time to time
in accordance with the First-Lien Documents and/or applicable law, without the consent of, or
notice to, the Second-Lien Collateral Agent or any other Second-Lien Creditor, without incurring
any liabilities to the Second-Lien Collateral Agent or any other Second-Lien Creditor and without
impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if
any right of subrogation or other right or remedy of the Second-Lien Collateral Agent or any
Second-Lien Creditors is affected, impaired or extinguished thereby) do any one or more of the
following:





          (i) make loans and advances to any Grantor or issue, guaranty or obtain letters of
credit for account of any Grantor or otherwise extend credit to any Grantor, in any amount
and on any terms, whether pursuant to a commitment or as a discretionary advance and whether
or not any default or event of default or failure of condition is then continuing;




          (ii) change the manner, place or terms of payment or change or extend the time of
payment of, or amend, renew, exchange, increase or alter, the terms of any of the First-Lien
Obligations or any Lien on any First-Lien Collateral or guaranty thereof or any liability of
the Borrower or any other Grantor, or any liability incurred directly or indirectly in
respect thereof (including any increase in or extension of the First-Lien Obligations,
without any restriction as to the amount, tenor or terms of any such increase or extension)
or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens
held by the First-Lien Collateral Agent or any of the First-Lien Creditors, the First-Lien
Obligations or any of the First-Lien Documents;




          (iii) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with
in any manner and in any order any part of the First-Lien Collateral or any liability of the
Borrower or any other Grantor to the First-Lien Creditors or the First-Lien Collateral
Agent, or any liability incurred directly or indirectly in respect thereof;




 











 





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          (iv) settle or compromise any First-Lien Obligation or any other liability of the
Borrower or any other Grantor or any security therefor or any liability incurred directly or
indirectly in respect thereof and apply any sums by whomsoever paid and however realized to
any liability (including the First-Lien Obligations) in any manner or order;




          (v) exercise or delay in or refrain from exercising any right or remedy against the
Borrower or any other Grantor or any other Person or with respect to any security, elect any
remedy and otherwise deal freely with the Borrower, any other Grantor or any First-Lien
Collateral and any security and any guarantor or any liability of the Borrower or any other
Grantor to the First-Lien Creditors or any liability incurred directly or indirectly in
respect thereof; and




          (vi) release or discharge any First-Lien Obligation or any guaranty thereof or any
agreement or obligation of any Grantor or any other person or entity with respect thereto.



          (c) The Second-Lien Collateral Agent, on behalf of itself and the Second-Lien Creditors, and
each other Second-Lien Creditor (by its acceptance of the benefits of the Second-Lien Subordinated
Notes Documents), agrees not to assert and hereby waives, to the fullest extent permitted by law,
any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any
marshalling, appraisal, valuation or other similar right that may otherwise be available under
applicable law with respect to the Collateral or any other similar rights a junior secured creditor
may have under applicable law.




          7.4 Waiver of Liability; Indemnity. (a) The Second-Lien Collateral Agent, on behalf
of itself and the Second-Lien Creditors, also agrees that the First-Lien Creditors and the
First-Lien Collateral Agent shall have no liability to the Second-Lien Collateral Agent or any
other Second-Lien Creditors, and the Second-Lien Collateral Agent, on behalf of itself and the
Second-Lien Creditors, hereby waives any claim against any First-Lien Creditor or the First-Lien
Collateral Agent, arising out of any and all actions which the First-Lien Creditors or the
First-Lien Collateral Agent may take or permit or omit to take with respect to: (i) the First-Lien
Documents (including, without limitation, any failure to perfect or obtain perfected security
interests in the First-Lien Collateral), (ii) the collection of the First-Lien Obligations or (iii)
the foreclosure upon, or sale, liquidation or other disposition of, any First-Lien Collateral. The
Second-Lien Collateral Agent, on behalf of itself and the Second-Lien Creditors, agrees that the
First-Lien Creditors and the First-Lien Collateral Agent have no duty, express or implied,
fiduciary or otherwise, to them in respect of the maintenance or preservation of the First-Lien
Collateral, the First-Lien Obligations or otherwise. Neither the First-Lien Collateral Agent nor
any other First-Lien Creditor nor any of their respective directors, officers, employees or agents
will be liable for failure to demand, collect or realize upon any of the Collateral or for any
delay in doing so, or will be under any obligation to sell or otherwise dispose of any Collateral
upon the request of the Borrower or any other Grantor or upon the request of the Second-Lien
Collateral Agent, any other holder of Second-Lien Subordinated Obligations or any other Person or
to take any other action whatsoever with regard to the Collateral or any part thereof. Without
limiting the foregoing, each Second-Lien Creditor by accepting the benefits of the Second-Lien
Subordinated Notes Documents agrees that neither the First-Lien Collateral Agent nor any other





 









 








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First-Lien Creditor (in directing the Collateral Agent to take any action with respect to the
Collateral) shall have any duty or obligation to realize first upon any type of Collateral or to
sell, dispose of or otherwise liquidate all or any portion of the Collateral in any manner,
including as a result of the application of the principles of marshaling or otherwise, that would
maximize the return to any class of Creditors holding Obligations of any type (whether First-Lien
Obligations or Second-Lien Subordinated Obligations), notwithstanding that the order and timing of
any such realization, sale, disposition or liquidation may affect the amount of proceeds actually
received by such class of Creditors from such realization, sale, disposition or liquidation.




          (b) With respect to its share of the Obligations, Deutsche Bank Trust Company Americas
(“DBTCA”) shall have and may exercise the same rights and powers hereunder as, and shall be
subject to the same obligations and liabilities as and to the extent set forth herein for, any
other Creditor, all as if DBTCA were not the First-Lien Collateral Agent. The term “Creditors” or
any similar term shall, unless the context clearly otherwise indicates, include DBTCA in its
individual capacity as a Creditor. DBTCA and its affiliates may lend money to, and generally
engage in any kind of business with, the Grantors or any of their Affiliates as if DBTCA were not
acting as the First-Lien Collateral Agent and without any duty to account therefor to any other
Creditor.




          7.5 Obligations Unconditional. All rights, interests, agreements and obligations of
the First-Lien Collateral Agent and the other First-Lien Creditors and the Second-Lien Collateral
Agent and the other Second-Lien Creditors, respectively, hereunder (including the Lien priorities
established hereby) shall remain in full force and effect irrespective of:





          (a) any lack of validity or enforceability of any First-Lien Document or any
Second-Lien Subordinated Notes Document;




          (b) any change in the time, manner or place of payment of, or in any other terms of,
all or any of the First-Lien Obligations or Second-Lien Subordinated Obligations, or any
amendment or waiver or other modification, including any increase in the amount thereof,
whether by course of conduct or otherwise, of the terms of any First-Lien Document or any
Second-Lien Subordinated Notes Document;




          (c) any exchange of any security interest in any Collateral or any other collateral, or
any amendment, waiver or other modification, whether in writing or by course of conduct or
otherwise, of all or any of the First-Lien Obligations or Second-Lien Subordinated
Obligations or any guarantee thereof;




          (d) the commencement of any Insolvency or Liquidation Proceeding in respect of the
Borrower or any other Grantor; or




          (e) any other circumstances which otherwise might constitute a defense available to, or
a discharge of, the Borrower or any other Grantor in respect of the First-Lien Obligations,
or of the Second-Lien Collateral Agent or any Second-Lien Creditor in respect of this
Agreement.



 









 





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          SECTION 8. Miscellaneous.




          8.1 Conflicts. In the event of any conflict between the provisions of this Agreement
and the provisions of the First-Lien Documents or the Second-Lien Subordinated Notes Documents, the
provisions of this Agreement shall govern and control.




          8.2 Effectiveness; Continuing Nature of this Agreement; Severability. This Agreement
shall become effective when executed and delivered by the parties hereto. This is a continuing
agreement of lien subordination and the First-Lien Creditors may continue, at any time and without
notice to the Second-Lien Collateral Agent or any other Second-Lien Creditor, to extend credit and
other financial accommodations and lend monies to or for the benefit of the Borrower or any other
Grantor constituting First-Lien Obligations in reliance hereon. The Second-Lien Collateral Agent,
on behalf of itself and the other Second-Lien Creditors, hereby agrees that it will not attempt,
directly or indirectly, whether by judicial proceedings or otherwise, to challenge the
enforceability of any provision of this Agreement, and waives any right it may have under
applicable law to revoke this Agreement or any of the provisions of this Agreement. The terms of
this Agreement shall survive, and shall continue in full force and effect, in any Insolvency or
Liquidation Proceeding. Without limiting the generality of the foregoing, this Agreement is
intended to constitute and shall be deemed to constitute a “subordination agreement” within the
meaning of Section 510(a) of the Bankruptcy Code and is intended to be and shall be interpreted to
be enforceable to the maximum extent permitted pursuant to applicable non-bankruptcy law. Any
provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall not
invalidate the remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
All references to the Borrower or any other Grantor shall include the Borrower or such Grantor as
debtor and debtor-in-possession and any receiver or trustee for the Borrower or any other Grantor
(as the case may be) in any Insolvency or Liquidation Proceeding. This Agreement shall terminate
and be of no further force and effect, (i) with respect to the Second-Lien Collateral Agent, the
other Second-Lien Creditors and the Second-Lien Subordinated Obligations, upon the later of (1) the
date upon which the obligations under the Second-Lien Subordinated Notes Documents terminate if
there are no other Second-Lien Subordinated Obligations outstanding on such date and (2) if there
are other Second-Lien Subordinated Obligations outstanding on such date, the date upon which such
Second-Lien Subordinated Obligations terminate and (ii) with respect to the First-Lien Collateral
Agent, the other First-Lien Creditors and the First-Lien Obligations, the date of the Discharge of
First-Lien Obligations, subject to the rights of the First-Lien Creditors under Section 6.5 of this
Agreement.




          8.3 Amendments; Waivers. (a) No amendment, modification or waiver of any of the
provisions of this Agreement by the Second-Lien Collateral Agent or the First-Lien Collateral Agent
shall be made unless the same shall be in writing signed on behalf of each party hereto;
provided that (x) the First-Lien Collateral Agent (at the direction of the Required
First-Lien Creditors) may, without the written consent of any other Creditor, agree to
modifications of this Agreement for the purpose of securing additional extensions of credit
(including pursuant to the First-Lien Credit Agreement or any Refinancing or extension thereof) and
adding new creditors as “First-Lien Creditors” and “Creditors” hereunder, so long as such
extensions (and




 









 





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resulting additions) do not otherwise give rise to a violation of the express terms of the
First-Lien Credit Agreement, (y) additional Grantors may be added as parties hereto in accordance
with the provisions of Section 8.18 of this Agreement, and (z) without limitation of Section 5.3,
at the sole request and expense of the Borrower, and (i) without the consent of the Second-Lien
Collateral Agent, this Agreement may be modified or amended (A) to add other parties (or any
authorized agent thereof or trustee therefore) holding Parity Lien Debt that are incurred in
compliance with the First-Lien Documents and the Second-Lien Subordinated Notes Documents and (B)
to establish that (1) the Liens on the Second-Lien Collateral securing such Parity Lien Debt shall
be pari passu hereunder with the Liens on such Second-Lien Collateral securing the
Second-Lien Subordinated Obligations and junior and subordinated to the Liens on any such Shared
Collateral securing the First-Lien Obligations and (2) any Parity Lien Debt is expressly subject to
the payment subordination provisions of the Second-Lien Subordinated Notes Indenture. Any such
additional party and each party hereto shall be entitled to rely upon a certificate delivered by an
officer of the Borrower certifying that any Parity Lien Debt was issued or borrowed in compliance
with the First-Lien Documents and the Second-Lien Subordinated Notes Documents. Any amendment of
this Agreement that is proposed to be effected without the consent of the Second-Lien Collateral
Agent as permitted by the proviso to the second preceding sentence shall be submitted to the
Second-Lien Collateral Agent for its review at least five (5) Business Days prior to the proposed
effectiveness of such amendment.




          (b) Each waiver of the terms of this Agreement, if any, shall be a waiver only with respect to
the specific instance involved and shall not impair the rights of the parties making such waiver or
the obligations of the other parties to such party in any other respect or at any other time.
Notwithstanding the foregoing, no Grantor shall have any right to consent to or approve any
amendment, modification or waiver of any provision of this Agreement except to the extent the
liabilities, duties or obligations of such Grantor are increased or expanded, as the case may be,
as a result of such amendment, modification or waiver.




          8.4 Information Concerning Financial Condition of the Borrower and its Subsidiaries.
The First-Lien Collateral Agent and the First-Lien Creditors, on the one hand, and the other
Second-Lien Creditors, on the other hand, shall each be responsible for keeping themselves informed
of (a) the financial condition of the Borrower and its Subsidiaries and all endorsers and/or
guarantors of the First-Lien Obligations or the Second-Lien Subordinated Obligations and (b) all
other circumstances bearing upon the risk of nonpayment of the First-Lien Obligations or the
Second-Lien Subordinated Obligations. The First-Lien Collateral Agent and the other First-Lien
Creditors shall have no duty to advise the Second-Lien Collateral Agent or any other Second-Lien
Creditor of information known to it or them regarding such condition or any such circumstances or
otherwise. In the event the First-Lien Collateral Agent or any of the other First-Lien Creditors,
in its or their sole discretion, undertakes at any time or from time to time to provide any such
information to the Second-Lien Collateral Agent or any other Second-Lien Creditor, it or they shall
be under no obligation (w) to make, and the First-Lien Collateral Agent and the other First-Lien
Creditors shall not make, any express or implied representation or warranty, including with respect
to the accuracy, completeness, truthfulness or validity of any such information so provided, (x) to
provide any additional information or to provide any such information on any subsequent occasion,
(y) to undertake any investigation or (z) to disclose any information which, pursuant to accepted
or reasonable commercial finance




 









 





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practices, such party wishes to maintain confidential or is otherwise required to maintain
confidential.




          8.5 Subrogation. Subject to the Discharge of First-Lien Obligations, with respect to
the value of any payments or distributions in cash, property or other assets that the Second-Lien
Creditors or Second-Lien Collateral Agent pay over to the First-Lien Collateral Agent or any of the
other First-Lien Creditors under the terms of this Agreement, the Second-Lien Collateral Agent and
the other Second-Lien Creditors shall be subrogated to the rights of the First-Lien Collateral
Agent and such other First-Lien Creditors; provided that, the Second-Lien Collateral Agent,
on behalf of itself and the Second-Lien Creditors, hereby agrees not to assert or enforce all such
rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of
First-Lien Obligations has occurred. Each of the Borrower and each other Grantor acknowledges and
agrees that, the value of any payments or distributions in cash, property or other assets received
by the Second-Lien Collateral Agent or the other Second-Lien Creditors and paid over to the
First-Lien Collateral Agent or the other First-Lien Creditors pursuant to, and applied in
accordance with, this Agreement, shall not relieve or reduce any of the Obligations owed by the
Borrower or any other Grantor under the Second-Lien Subordinated Notes Documents.




          8.6 Application of Payments; Consent to Certain Changes. All payments received by the
First-Lien Collateral Agent or the other First-Lien Creditors may be applied, reversed and
reapplied, in whole or in part, to such part of the First-Lien Obligations as the First-Lien
Creditors, in their sole discretion, deem appropriate. The Second-Lien Collateral Agent, on behalf
of itself and the Second-Lien Creditors, assents to any extension or postponement of the time of
payment of the First-Lien Obligations or any part thereof and to any other indulgence with respect
thereto, to any substitution, exchange or, subject to the terms of Section 5.1(a) hereof, release
of any security constituting Shared Collateral which may at any time secure any part of the
First-Lien Obligations and to the addition or release of any other Person primarily or secondarily
liable therefor; provided, that the parties hereto agree that (x) the Borrower shall not,
and shall not permit any other Grantor to, substitute or exchange any security constituting Shared
Collateral under this Section 8.6, unless it has also granted or contemporaneously grants a Lien on
such substituted or exchanged asset or property to secure the Second-Lien Subordinated Obligations
and has taken all actions to perfect such new Liens, and (y) in furtherance of Section 2.4(ii)
hereof, with respect to any Person added or released as a guarantor pursuant to this Section 8.6,
the parties will enter into such documentation as is necessary to ensure that the guarantors for
the First-Lien Obligations and the Second-Lien Subordinated Obligations shall be identical.




          8.7 SUBMISSION TO JURISDICTION; WAIVERS. (a) THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
SITTING IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK 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 FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE




 









 





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PARTIES HERETO 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 COURT OR, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE 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 MANNER PROVIDED BY LAW.




          (b) THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY OBJECTION WHICH EACH MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY COURT REFERRED TO IN
SECTION 8.7(a) HEREOF. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.




          (c) EACH PARTY HERETO HEREBY IRREVOCABLY 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 OR ANY OF 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 PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PERSON 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, THE FIRST-LIEN DOCUMENTS AND THE SECOND-LIEN SUBORDINATED NOTES DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.




          8.8 Notices. All notices to the Second-Lien Creditors and the First-Lien Creditors
permitted or required under this Agreement may be sent to the Second-Lien Collateral Agent and the
First-Lien Collateral Agent, respectively. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given shall be in writing and may
be personally served, electronically mailed or sent by courier service or U.S. mail and shall be
deemed to have been given when delivered in person or by courier service, upon receipt of
electronic mail or four Business Days after deposit in the U.S. mail (registered or certified, with
postage prepaid and properly addressed). For the purposes hereof, the addresses of the parties
hereto shall be as set forth below each party’s name on the signature pages hereto, or, as to each
party, at such other address as may be designated by such party in a written notice to all of the
other parties.




          8.9 Further Assurances. Each of the First-Lien Collateral Agent, on behalf of itself
and the First-Lien Creditors under the First-Lien Documents, the Second-Lien Collateral




 









 





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Agent, on behalf of itself and the Second-Lien Creditors, the Borrower and each other Grantor,
agrees that each of them shall take such further action and shall execute and deliver such
additional documents and instruments (in recordable form, if requested) as the First-Lien
Collateral Agent or the Second-Lien Collateral Agent may reasonably request to effectuate the terms
of and the lien priorities contemplated by this Agreement. Each Second-Lien Creditor, by its
acceptance of the benefits of the Second-Lien Subordinated Notes Documents, agrees to be bound by
the agreements herein made by it and the Second-Lien Collateral Agent, on its behalf.




          8.10 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICTS OF
LAW PRINCIPLES.




          8.11 Binding on Successors and Assigns. This Agreement shall be binding upon the
First-Lien Collateral Agent, the other First-Lien Creditors, the Second-Lien Collateral Agent, the
other Second-Lien Creditors, the Grantors and their respective successors and assigns;
provided that no Grantor may assign any of its rights or obligations under this Agreement
without the prior written consent of the First-Lien Collateral Agent and the Second-Lien Collateral
Agent.




          8.12 Specific Performance. Each of the First-Lien Collateral Agent and the
Second-Lien Collateral Agent may demand specific performance of this Agreement. Each of the
First-Lien Collateral Agent, on behalf of itself and the First-Lien Creditors under the First-Lien
Documents, and the Second-Lien Collateral Agent, on behalf of itself and the Second-Lien Creditors,
hereby irrevocably waives any defense based on the adequacy of a remedy at law and any other
defense which might be asserted to bar the remedy of specific performance in any action which may
be brought by the First-Lien Collateral Agent or the Second-Lien Collateral Agent, as the case may
be.




          8.13 Headings. Section headings in this Agreement are included herein for convenience
of reference only and shall not constitute a part of this Agreement for any other purpose or be
given any substantive effect.




          8.14 Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto in different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. Delivery of an executed counterpart
of a signature page of this Agreement or any document or instrument delivered in connection
herewith by telecopy shall be effective as delivery of a manually executed counterpart of this
Agreement or such other document or instrument, as applicable.




          8.15 Authorization. By its signature, each Person executing this Agreement on behalf
of a party hereto represents and warrants to the other parties hereto that it is duly authorized to
execute this Agreement. Each Second-Lien Creditor, by its acceptance of the benefits of the
Second-Lien Subordinated Notes Documents, agrees to be bound by the agreements made herein.




 









 








 Page 38




          8.16 No Third Party Beneficiaries; Effect of Agreement. This Agreement and the rights
and benefits hereof shall inure to the benefit of each of the First-Lien Collateral Agent, the
Second-Lien Collateral Agent and their respective successors and assigns and shall inure to the
benefit of each of the First-Lien Creditors and the Second-Lien Creditors. No other Person shall
have or be entitled to assert rights or benefits hereunder. Nothing in this Agreement shall
impair, as between each of the Grantors and the First-Lien Collateral Agent and the First-Lien
Creditors, on the one hand, and each of the Grantors and the Second-Lien Collateral and the
Second-Lien Creditors, on the other hand, the obligations of each Grantor to pay principal,
interest, fees and other amounts as provided in the First-Lien Documents and the Second-Lien
Subordinated Notes Documents, respectively.




          8.17 Provisions Solely to Define Relative Rights. The provisions of this Agreement
are and are intended solely for the purpose of defining the relative rights of the First-Lien
Creditors, on the one hand, and the Second-Lien Creditors, on the other hand. None of the
Borrower, any other Grantor or any other creditor thereof shall have any rights hereunder. Nothing
in this Agreement is intended to or shall impair the obligations of the Borrower or any other
Grantor, which are absolute and unconditional, to pay the First-Lien Obligations and the
Second-Lien Subordinated Obligations as and when the same shall become due and payable in
accordance with the terms of the First-Lien Documents and the Second-Lien Subordinated Notes
Documents, respectively.




          8.18 Grantors; Additional Grantors. It is understood and agreed that the Borrower and
each other Grantor on the date of this Agreement shall constitute the original Grantors party
hereto. The original Grantors hereby covenant and agree to cause each Subsidiary of the Borrower
which becomes a Subsidiary Guarantor after the date hereof to contemporaneously become a party
hereto (as a Grantor) by executing and delivering a counterpart hereof to the First-Lien Collateral
Agent or by executing and delivering a joinder or assumption agreement in form and substance
reasonably satisfactory to the First-Lien Collateral Agent. The parties hereto further agree that,
notwithstanding any failure to take the actions required by the immediately preceding sentence,
each Person which becomes a Subsidiary Guarantor at any time (and any security granted by any such
Person) shall be subject to the provisions hereof as fully as if same constituted a Grantor party
hereto and had complied with the requirements of the immediately preceding sentence.




 









 








 Page 39




          8.19 Subordination. Each party hereto acknowledges and agrees that the Second-Lien
Subordination Obligations are subject to the payment subordination provisions contained in the
Second-Lien Subordinated Notes Indenture and the other Second-Lien Subordinated Notes Documents,
and nothing herein shall be construed in any way to limit the applicability and enforceability of
such provisions, or the duties and obligations of the Second-Lien Creditors, and the rights and
privileges of the First-Lien Creditors, thereunder.




          8.20 The Second-Lien Subordinated Notes Trustee and the Second-Lien Collateral Agent.
(a) The Grantors hereby acknowledge that, solely as between the Grantors, the Second-Lien
Collateral Agent and the Second-Lien Subordinated Notes Trustee, all of the rights, privileges,
protections, indemnities and immunities afforded the Second-Lien Subordinated Notes Trustee and the
Second-Lien Collateral Agent under the Second-Lien Subordinated Notes Indenture and the Second-Lien
Subordinated Notes Security Documents are hereby incorporated herein by reference as if set forth
herein in full. This Section 8.20 shall not be binding upon, or impair in any respect, any rights
or obligations of the First-Lien Collateral Agent or any First-Lien Creditor.




          (b) Each party hereto hereby acknowledges and agrees that the Second-Lien Collateral Agent is
entering into this Agreement solely in its capacity under the Second-Lien Subordinated Notes
Documents and not in its individual capacity.




          (c) The Second-Lien Subordinated Notes Trustee and the Second-Lien Collateral Agent shall not
be deemed to owe any fiduciary duty to the First-Lien Collateral Trustee or the other First-Lien
Creditors. With respect to the First-Lien Trustee and the other First-Lien Creditors, each of the
Second-Lien Subordinated Notes Trustee and the Second-Lien Collateral Agent undertakes to perform
or to observe only such of its covenants and obligations as are specifically set forth in this
Agreement and no implied covenants or obligations with respect to the First-Lien Collateral Trustee
or the other First-Lien Creditors shall be read into this Agreement against the Second-Lien
Subordinated Notes Trustee or the Second-Lien Collateral Agent.




          (d) The provisions of this Section 8.20 shall survive the termination of this Agreement.




*      *      *





 









 




IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.


	 	 	 	 	 	 	 
	 	 	First-Lien Collateral Agent	 	 
	 
	 	 	 	 	 	 
	Notice Address:	 	DEUTSCHE BANK TRUST COMPANY AMERICAS,	 	 
	 	 	in its capacity as First-Lien Collateral Agent	 	 
	60 Wall Street	 	 	 	 	 	 
	New York, New York 10005
	 	By:	 	/s/ Susan L. LeFevre	 	 
	Attention:   Susan L. LeFevre
	 	 	 	 

Name:  Susan L. LeFevre
	 	 
	Telephone:  (212) 250-6114
	 	 	 	Title:  Managing Director	 	 
	Telecopier:   (212) 797-5690
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	By:	 	/s/ Keith C. Braun	 	 
	 
	 	 	 	 

Name:  Keith C. Braun
	 	 
	 
	 	 	 	Title:  Managing Director	 	 




 








 





	 	 	 	 	 	 	 
	 	 	Second-Lien Collateral Agent	 	 
	 
	 	 	 	 	 	 
	Notice Address:	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,	 	 
	Wells Fargo Bank, N.A.	 	in its capacity as Second-Lien Collateral Agent	 	 
	Corporate Trust Services
	 	 	 	 	 	 
	625 Marquette Avenue South
	 	 	 	 	 	 
	Mac N9311-110

	 	 	 	 	 	 
	Minneapolis, Minnesota  55479

	 	 	 	 

	 	 
	Attention:  CMP Susquehanna Account

	 	By: 	 	/s/
Lynn M. Steiner	 	 
	Manager
	 	 	 	Name: Lynn M. Steiner	 	 
	Telephone: (262) 361-4376
	 	 	 	Title: Vice President	 	 
	Telecopier: (612) 667-9825
	 	 	 	 	 	 






SIGNATURE PAGE TO THE CMP SUSQUEHANNA CORP. INTERCREDITOR AGREEMENT




 









 




	 	 	 	 	 	 	 
	c/o Cumulus Media Partners, LLC	 	CMP SUSQUEHANNA CORP., as Borrower	 	 
	3280 Peachtree Road N.W.
	 		 	 	 	 
	Suite 2300
	 	By:	 	/s/ Lewis W. Dickey, Jr.	 	 
	Atlanta, Georgia 30305
	 	 	 	 

Name: Lewis W. Dickey, Jr.
	 	 
	Attention: Chief Financial Officer
	 	 	 	Title: Chairman, President and	 	 
	Telephone: (404) 949-0700
	 	 	 	          Chief Executive Officer	 	 
	Fax: (404) 949-0700
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	c/o Cumulus Media Partners, LLC	 	CMP SUSQUEHANNA RADIO HOLDINGS, CORP.,	 	 
	3280 Peachtree Road N.W.
	 		 	 	 	 
	Suite 2300
	 	By:	 	/s/ Lewis W. Dickey, Jr.	 	 
	Atlanta, Georgia 30305
	 	 	 	 

Name: Lewis W. Dickey, Jr.
	 	 
	Attention: Chief Financial Officer
	 	 	 	Title: Chairman, President and	 	 
	Fax: (404) 949-0700
	 	 	 	          Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	c/o Cumulus Media Partners, LLC	 	SUSQUEHANNA PFALTZGRAFF CO.	 	 
	3280 Peachtree Road N.W.	 	SUSQUEHANNA MEDIA CO.	 	 
	Suite 2300	 	SUSQUEHANNA RADIO CORP.	 	 
	Atlanta, Georgia 30305	 	RADIO METROPLEX, INC.	 	 
	Attention: Chief Financial Officer	 	KPLX LICO, INC.	 	 
	Telephone: (404) 949-0700	 	KLIF BROADCASTING, INC.	 	 
	Fax: (404) 949-0700	 	KLIF LICO, INC.	 	 
	 	 	CMP KC CORP.	 	 
	 	 	CMP HOUSTON-KC, LLC.	 	 
	 
	 	 	 	 	 	 
	 
	 	By:	 	/s/ Lewis W. Dickey, Jr.	 	 
	 
	 	 	 	 

Name: Lewis W. Dickey, Jr.
	 	 
	 
	 	 	 	Title: Chairman, President and	 	 
	 
	 	 	 	          Chief Executive Officer of each of the
above entities	 	 





SIGNATURE PAGE TO THE CMP SUSQUEHANNA CORP. INTERCREDITOR AGREEMENT