EXHIBIT
10.2
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SUNTRUST
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Security Agreement
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This Security
Agreement dated as of August 22, 2008, made by Debut Broadcasting
Mississippi, Inc. (the "Owner") in favor of SunTrust Bank, its
present and future affiliates and their successors and assigns
(collectively, "SunTrust") provides:
Security
Agreement, In order to induce SunTrust from time to time to enter
into agreements with and to extend or continue to extend credit to
Debut Broadcasting Mississippi, Inc. (and any one or more and any
combination if more than one, the 'Borrower") and in consideration
of any credit so extended, the Owner (which may include the
Borrower) hereby grants, sells, assigns, transfers and conveys to
SunTrust, a security interest in the collateral described below,
whether now existing or hereafter acquired, and all proceeds,
products, rents and profits thereof and all revenues from the right
to use the collateral as described below to secure the prompt
payment and performance of any and all liabilities, obligations,
agreements and undertakings of Borrower to SunTrust (and, in
addition, all liabilities, obligations, agreements and undertakings
of Owner, or any one or more of them, to SunTrust if Owner
and
Borrower are
not the same person or entity) in any amount, whether now existing
or hereafter arising, including those owed by Borrower or Owner to
others and acquired by SunTrust through purchase, assignment or
otherwise, however created, evidenced or arising, whether
individually or jointly with others, and whether absolute or
contingent, direct or indirect, as maker, endorser, guarantor,
surety or otherwise, liquidated or unliquidated, matured or
unmatured, whether or not secured by other collateral, and
including, without limitation, (a) all obligations to perform or
forebear from performing any acts, (b) all overdrafts on deposits
or accounts maintained by Borrower or Owner with SunTrust, and (c)
all liabilities, obligations, agreements and undertakings of
Borrower or Owner to SunTrust pursuant to any interest rate hedge
agreement or other derivative transaction agreement or any foreign
exchange contract or any application or other agreement requesting
SunTrust to issue any letter of credit including, without
limitation, the obligation of Borrower or Owner to reimburse
SunTrust for all amounts funded by SunTrust pursuant to any such
letter of credit and (d) all costs of collection and protection of
SunTrust's rights, including attorneys' fees allowed by law (in the
amount of 15% of the principal and interest secured hereby if this
Security Agreement is governed by the laws of Georgia), whether
such collection of protection occurs prior to, during, or after any
bankruptcy proceedings filed by or against any Obligor (as such
term is defined below) (all the foregoing being hereinafter
collectively referred to as the "Obligations")
Collateral. As used in this Security Agreement, the term
"Collateral" shall mean the property described below, whether now
existing or hereafter acquired. All assets of Owner, as more
particularly described herein, and including but not limited to,
all Accounts, Inventory, furniture, fixtures and Equipment, goods,
deposit accounts, instruments, documents, commercial tort claims,
letter of credit rights, investment property, chattel paper and
General Intangibles (as all such terms are used herein and in the
Uniform Commercial Code).
Owner
Representations and Warranties. The Owner represents and warrants to SunTrust as
follows:
This Security
Agreement has been duly executed and delivered by Owner,
constitutes a valid and legally binding obligation of Owner and is
enforceable in accordance with its terms against Owner. Owner
represents and warrants to SunTrust that it has rights in all of
the Collateral and/or has the power to transfer rights in all of
the Collateral. The execution, delivery and performance of this
Security Agreement, the grant of the security interest in the
Collateral and the consummation of the transactions contemplated
will not, with or without the giving of notice of the lapse of
time, (a) violate any material law applicable to Owner, (b) violate
any judgment, writ, injunction or order of any court or
governmental body or officer applicable to Owner, (c) violate or
result in the breach of any material agreement to which Owner is a
party or by which any of Owner's properties, including the
Collateral, is bound, nor (d) violate any restriction on the
transfer of any of the Collateral;
No consent,
approval, license, permit or other authorization of any third party
or any governmental body or officer is required for the valid and
lawful execution and delivery of this Security Agreement, the
creation and perfection of SunTrust's security interest in the
Collateral or the valid and lawful exercise by SunTrust of remedies
available to it under this Security Agreement or applicable
law.
The Owner is
and will continue to be the absolute owner of the Collateral and
there are no other liens or security interests affecting the
Collateral other than the security interest granted in this
Security Agreement except those previously disclosed to SunTrust in
writing by the Owner: if the Owner is acting in the capacity of
trustee, administrator or executor of an estate, such fact shall be
disclosed and evidence of capacity shall be provided to SunTrust;
Debut Broadcasting Mississippi, Inc. is a corporation duly
organized and existing under the laws of the state of Mississippi,
with Organizational Identification Number 913639, is duly qualified
and in good standing as a foreign corporation in every jurisdiction
where such qualification is necessary; the execution and
performance of this Security Agreement have been duly authorized by
action of its Board of Directors, no action of its shareholders
being necessary; the execution and performance of this Security
Agreement will not violate or contravene any provisions of law or
regulation or its Articles of Incorporation, Shareholder Agreement,
By-Laws or other agreements to which it is a party or by which it
is bound; and no consent or approval of any governmental agency or
authority is required in making or performing the obligations
under, this Security Agreement;
The Owner will
maintain the Collateral in the following location(s):
1209 16th Avenue S , Ste 200,
Nashville, TN 37212. The Collateral shall not be moved from
the location(s) without the prior written consent of SunTrust;
Business books and records of Debut Broadcasting Mississippi, Inc
are maintained at 1209 16th Avenue S., Ste 200, Nashville, TN
37212; The Collateral is and will be used or bought for use
primarily for the following purpose: business or commercial
purposes; and All information supplied and statements made to
SunTrust in any financial statement or application are true,
correct, complete, valid and genuine in all material
respects.
Choice
of Law. Owner agrees
that certain material events and occurrences relating to this
Agreement bear a reasonable relationship to the laws of Tennessee
This Agreement shall be governed by the laws of Tennessee and,
unless applicable law provides otherwise, In the event of any legal
proceeding arising out of or related to this Agreement, the Owner
consents to the jurisdiction and venue of any court located in
Tennessee Unless otherwise specified, Uniform Commercial Code" as
used herein shall refer to the Uniform
Commercial Code
of Tennessee, both current and as it may be amended or revised from
time to time in the future
Covenants.
The Owner shall
furnish to SunTrust such financial and business information and
reports in form and content satisfactory to SunTrust as and when
SunTrust may from time to time require
The Corporate
Collateral Owner shall maintain its corporate existence in good
standing and shall not consolidate or merge with or
acquire the
stock of any other corporation without the prior written consent of
SunTrust; the Owner shall, at the request of SunTrust,
qualify as a
foreign corporation and obtain all requisite licenses and permits
in each jurisdiction where the Owner does business.
The Owner shall
notify SunTrust in writing at least 30 days prior to any change of
Its name or structure or change in Its jurisdiction of
registration/organization, principal place of business or chief
executive office.
The Owner shall
maintain all of the Collateral in good condition and repair
SunTrust shall have the right to inspect the Collateral at any
reasonable time and shall have the right to obtain such appraisals,
reappraisals, appraisal updates or environmental inspections as
SunTrust, in its sole discretion, may deem necessary from time to
time Owner will not use or permit any person or entity to use the
Collateral (a) in any manner inconsistent with the provisions of
this Security Agreement; or (b) in violation of any policy of
insurance issued with respect to the Collateral; or (c) in
violation of any local, state or federal law or regulation,
including but not limited to any such law or regulation pertaining
to the protection of the environment or the protection of the
health or safety of persons or animals, and any such law or
regulation pertaining to the control of drugs, narcotics or other
controlled substances Unless the description of the Collateral set
forth above indicates the Collateral shall be attached as a fixture
to real property, Owner shall not, without the express prior
written consent of SunTrust, cause or permit all or any part of the
Collateral to be affixed to real property so as to become a fixture
as that term is defined or interpreted in the state in which the
Collateral is at any time located.
The Owner will
defend the Collateral against the claims and demands of all
parties. The Owner will not pledge or grant any security interest
in any of the Collateral to any person or entity except SunTrust,
or permit any lien or encumbrance to attach to any of the
Collateral, or any levy to be made on the Collateral, or any
financing statement (except financing statements In favor of
SunTrust) to be on file against the Collateral.
Owner hereby
constitutes and appoints any officer or employee of SunTrust as its
true and lawful attorney-in-,fact (a) to transfer the Collateral
into SunTrust's name or the name of its nominee, but SunTrust's
failure to do so shall not be interpreted to be a waiver of any
interest, and (b) to do and perform all other acts and things
necessary, proper and requisite to carry out the intent of this
Security Agreement The power herein granted shall be deemed to be
coupled with an interest and may not be revoked until the
Obligations have been paid in full, including all expenses payable
by Owner.
The Owner
agrees to pay on demand all legal expenses and reasonable
attorneys' fees (in the amount of 15% of the principal and interest
secured hereby if this agreement is governed by the laws of
Georgia), as permitted by applicable law, any appraisal fees and
all expenses incurred or paid by SunTrust in protecting and
enforcing the rights of SunTrust under this Security Agreement,
including SunTrust's right to take possession of the Collateral and
its proceeds, and to hold, prepare for sale, sell and dispose of
the Collateral.
This Security
Agreement shall be a continuing agreement and shall remain in full
force and effect irrespective of any interruptions in the business
relations of the Borrower with SunTrust and shall apply to any
ultimate balance which shall remain due by the Borrower to
SunTrust; provided, however, that the Owner may by written notice
terminate this Security Agreement with respect to all Obligations
of the Borrower incurred or contracted by the Borrower or acquired
by SunTrust after the date on which such notice is personally
delivered to or mailed via registered mail and accepted by the
Borrower's lending officer.
Blanket
Security Interest. Owner acknowledges and agrees that this Security
Agreement and any financing statement filed in connection with this
Security Agreement is intended to cover and does cover all assets
of the Owner, wherever located, whether now owned or subsequently
acquired or arising, and all proceeds and products thereof and
includes, but is not limited to all of the Owner's (a) Accounts,
insurance refund claims and all other insurance claims and
proceeds, tax refund claims, license fees. rents, contract rights,
Instruments, certificates of deposit, documents, tangible chattel
paper, electronic chattel paper, promissory notes, drafts,
acceptances and other forms of obligations and receivables, whether
or not earned by performance; (b) Inventory; (c) Equipment; (d)
General Intangibles; (e) Demand, time, savings, passbook and other
deposit accounts of the Owner with all banks, credit unions,
savings and loan associations and other financial institutions
which are now owned or hereafter acquired by the Owner or in which
the Owner now has or hereafter acquires any right, title or
interest (Deposit Accounts); and (f) Commercial tort claims, letter
of credit rights, awards and other payments in respect of any
taking and all insurance proceeds in respect of any of the
foregoing, and all monies and claims for money due and to become
due to Owner under all its Accounts, contract rights, leases and
General Intangibles, all investment property and financial assets,
all as said terms are defined in the Uniform Commercial
Code.
Accounts
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a.
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The Owner
warrants that each and every Account, now owned or hereafter
acquired, is a bona fide existing obligation, valid and enforceable
against the account debtor, for goods sold or leased and delivered
or services rendered in the ordinary course of business; it is
subject to no dispute, defense or offset; the Owner has good title
to the Account and has full right and power to grant SunTrust a
security interest in the Accounts and the Owner will immediately
notify SunTrust of any Account to which these warranties are or
become untrue; the Owner agrees that it will not permit any return
of merchandise, the sale of which gave rise to any of the Accounts,
except in the usual and regular course of business;
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b.
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The Owner shall
maintain complete and accurate books of accounts and records, and
its principal books and records, including all records concerning
Accounts shall be kept and maintained at the place(s) specified
above The Owner shall not move such books and records without
giving SunTrust at least 30 days prior written notice. All
accounting records and financial reports furnished to SunTrust
shall be maintained and prepared in accordance with generally
accepted accounting principles consistently applied It Is
specifically agreed that SunTrust shall have and the Owner hereby
grants to SunTrust a security interest in all books of accounts and
records of the Owner and shall have access to them at any time for
inspection, verification, examination and audit;
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c.
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The Owner will
prepare and deliver to SunTrust, at SunTrust's request from time to
time, a listing and aging of all Accounts and any further schedules
or information with respect to Accounts that SunTrust may
require;
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d.
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SunTrust shall
have the right at any time to notify account debtors of its
security interest in the Accounts and supporting obligations and
require payments to be made directly to SunTrust. The Owner hereby
appoints SunTrust and any officer of SunTrust, as SunTrust may from
time to time designate, as its attorneys-in-fact for the Owner, to
sign and endorse in the name of the Owner, to give notice in the
name of the Owner, and to perform all other actions necessary or
desirable in the reasonable discretion of SunTrust to effect these
provisions and carry out the intent hereof, all at the cost and
expense of the Owner. The Owner hereby ratifies and approves all
acts of such attorneys-in-fact and neither SunTrust nor any other
such attorneys-in-fact will be liable for any acts of commission or
omission nor for any error of judgment. This power being coupled
with an interest is irrevocable so long as any Account of General
Intangible pledged to SunTrust remains unpaid and the Borrower has
any unpaid Obligations to SunTrust The costs of such collection and
enforcement, including attorneys' fees and out-of-pocket expenses,
shall be borne solely by the Owner whether the same are incurred by
SunTrust or the Owner;
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e.
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At the option
of SunTrust, all payments on the Accounts received by the Owner
shall be remitted to SunTrust in their original form on the day of
receipt; all notes, checks, drafts and other instruments so
received shall be duly endorsed to the order of SunTrust. At
SunTrust's election, the payments shall be deposited into a special
deposit account ("Special Account") maintained with SunTrust.
SunTrust may designate with each such deposit the particular
Account upon which payment was made The Special Account shall be
hold by SunTrust as additional security for the Obligations. Prior
to depositing payments on the Accounts into the Special Account,
the Owner agrees that it will not commingle such payments with any
of the Owner's funds or property, but will hold them separate and
apart and in trust for SunTrust. SunTrust will have the power to
withdraw funds from the Special Account. SunTrust may at any time
and from time to time, in its sole discretion, apply any part of
the funds in the Special Account to the Obligations whether or not
the same is due. Upon full and final satisfaction of the
Obligations (including without limitation all fees and expenses
owing to SunTrust or its attorneys), plus termination of any
commitment to extend additional funds, SunTrust will pay to the
Owner any excess funds, whether received by SunTrust as a deposit
in the Special Account or, as a direct payment on any of the
Accounts;
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f.
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If any of the
Accounts arise out of contracts with the United States or any
department, agency, or instrumentality thereof, the Owner will
immediately notify SunTrust in writing and execute any instruments
and take any steps required by SunTrust in order, that all moneys
due and to become due under such contracts shall be assigned to
SunTrust and in order that proper notice be given under the Federal
Assignment of Claims Act;
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g.
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SunTrust shall
not be liable and shall suffer no loss on account of loss or
depreciation of any Account due to acts or omissions of SunTrust
unless SunTrust's conduct is willful and malicious, and SunTrust
shall have no duty to take any action to preserve the Collateral or
collect Accounts;
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h.
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Upon request by
SunTrust, the Owner will note on its records concerning the
Accounts, a notation of the security interest under this Security
Agreement, which notation must be satisfactory to SunTrust in both
form and content;
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i.
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SunTrust may
enforce collection of any Account and supporting obligation by suit
or otherwise and may surrender, release or exchange all or any part
thereof, or compromise, extend or renew the same for any period.
All monies so received by SunTrust may in SunTrust's sole
discretion, be either (i) applied by SunTrust directly toward
payment of all or any part of the Obligations, whether or not then
due, in such order of application as SunTrust may determine; or
(ii) deposited to the credit of Borrower in an account with
SunTrust as security for payment of the Obligations and SunTrust
may, from time to time, in its sole discretion, permit Borrower to
use all or any part of the funds on deposit in said account in the
normal course of business. Owner will promptly re
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