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JACOR COMMUNICATIONS, INC. PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (the "Pledge Agreement") is executed as
of February ___, 1996 by and between Jacor Communications, Inc. (the "Company")
and Banque Paribas, as agent (the "Agent") for itself, the Co-Agents, the Banks
under the Credit Agreement hereafter referred to, any L/C Providers (as defined
in the Credit Agreement) and any Interest Rate Providers (as defined in the
Credit Agreement).
WHEREAS, the Company entered into that certain Credit
Agreement dated as of the date hereof with the Banks (as defined therein), the
Co-Agents (as defined therein) and Banque Paribas, as agent (the "Agent") for
itself, the Co-Agents and the Banks (as modified, supplemented, amended,
extended, supplemented or restated from time to time, the "Credit Agreement");
WHEREAS, the Credit Agreement requires the Company to enter
into certain Rate Hedging Agreements (as defined in the Credit Agreement) with
Interest Rate Providers;
WHEREAS, the execution and delivery of the Pledge Agreement is
a condition precedent to the availability of credit under the Credit Agreement;
NOW THEREFORE, in order to induce the Agent, the Co-Agents,
the Banks, any L/C Providers and any Interest Rate Providers to enter into the
Credit Agreement, the Citicasters L/C Documents and Rate Hedging Agreements,
respectively, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
W I T N E S S E T H:
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1. Defined Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to such terms in the Credit
Agreement.
2. Pledge and Security Interest. In order to secure the full and
complete payment and performance by the Company of the Obligations when due, the
Company hereby pledges and grants to the Agent for the benefit of the Agent, the
Co-Agents, the Banks, any L/C Providers and any Interest Rate Providers, equally
and ratably in proportion to the total Obligation owing at any time to the
Agent, the Co- Agents, the Banks, any L/C Providers and any Interest Rate
Providers, a continuing lien and security interest in (a) all of the outstanding
shares of capital stock of each Subsidiary currently or hereafter owned by the
Company (the "Pledged Stock"), (b) any securities, dividends or other
distributions and any other right or property at any time and from time to time
receivable or otherwise distributed in respect of or in exchange for any or all
of the Pledged Stock and any other property substituted or exchanged therefor,
(c) all of the Intercompany Demand Notes described in Schedule I hereto,
including any amendment, modification, renewal or replacement of any such
Intercompany Demand Note, and all of the Intercompany Acquisition Notes as may
be in existence from time to time, including any amendment, modification,
renewal or replacement of any such Intercompany Acquisition Note (such
Intercompany Demand Notes, Intercompany Acquisition Notes and amendments,
modifications, renewals or replacements, the "Pledged Notes"), (d) the
Intercompany Security Agreements described in Schedule II hereto and all
financing statements relating thereto, including any amendment, modification,
renewal or replacement of any such Intercompany Security Agreements and
financing statements (the "Pledged Security Agreements") and (e) any and all
proceeds (including, without limitation, "proceeds" as defined in the Uniform
Commercial Code as in effect from time to time in the State of Illinois) of, and
substitutions and replacements for, the
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foregoing (all of the property and rights described in the foregoing clauses (a)
through (e) being herein collectively called the "Collateral").
3. Deposit of Pledged Notes and Certificates for Pledged Stock. The
Company shall deliver to the Agent, for the equal and ratable benefit of the
Agent, the Co-Agents, the Banks, any L/C Providers and any Interest Rate
Providers, concurrently with the execution of this Pledge Agreement the
certificates representing the Pledged Stock, endorsed in blank or accompanied by
appropriate instruments of transfer or assignments in blank, and the Pledged
Notes, duly endorsed in blank. The Agent shall not have any duty to assure that
all certificates representing the Pledged Stock or instruments representing the
Pledged Notes have been delivered to it or any obligation whatsoever with
respect to the care, custody or protection of any certificates or instruments
which may be delivered to it except only to exercise the same care in physically
safekeeping such certificates or instruments as it would exercise in the
ordinary course of its own business. Neither the Agent, any Co-Agent, any Bank,
any L/C Provider nor any Interest Rate Provider shall be obligated to preserve
or protect any rights with respect to the Pledged Stock or Pledged Notes or to
receive or give any notice with respect thereto whether or not the Agent, any
Co-Agent, any Bank, any L/C Provider or any Interest Rate Provider is deemed to
have knowledge of such matters.
4. Representations and Warranties. The Company represents and warrants
to the Agent, each Co-Agent, each Bank, each L/C Provider and each Interest Rate
Provider as of the date of each pledge and delivery hereunder that:
(a) Existence and Standing. As of the date hereof, each of the
Company and the Subsidiaries is duly incorporated, validly existing and in good
standing
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under the laws of its jurisdiction of incorporation and has all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted.
(b) Authorization, Validity and Enforceability. The execution
and delivery by the Company of this Pledge Agreement have been duly authorized
by proper corporate proceedings, and this Pledge Agreement constitutes a legal,
valid and binding obligation of the Company and creates a security interest
which is enforceable against the Company in accordance with its terms in respect
of all now owned and hereafter acquired Collateral, except as enforceability may
be limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally and general principles of equity. All of the
shares of the Pledged Stock are duly authorized, validly issued, fully paid and
nonassessable.
(c) Transferability; Title Matters. The Collateral is free and
clear of all liens, options, warrants, puts, calls, or other rights of third
persons, and restrictions, other than (i) those liens arising under this Pledge
Agreement, and (ii) restrictions on transferability imposed by applicable state
and Federal securities laws or which may arise as a result of the Company being
subject to the Communications Act of 1934, as amended, and the rules and
regulations of the FCC thereunder. The Company agrees to warrant and defend
title to and ownership of the Pledged Stock and the lien created by this Pledge
Agreement against the claims of all Persons and maintain and preserve such lien
at all times during the term of this Pledge Agreement. Upon the delivery to the
Agent of the Pledged Stock, the Pledged Notes and the Pledged Security
Agreements, the security interests in the Pledged Stock, the Pledged Notes and
the Pledged Security Agreements granted to the Agent hereunder will constitute
perfected security interests therein superior and prior to all Liens other than
Liens permitted by Section 6.17 of the Credit Agreement.
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(d) Ownership of Pledged Stock; Pledged Notes; Pledged
Security Agreements. The Company is the holder of record and the sole beneficial
owner of 100% of the issued and outstanding voting capital stock of each
Subsidiary (other than any Excluded Subsidiary and any Subsidiary whose capital
stock has been pledged to the Agent pursuant to a Subsidiary Pledge Agreement).
The capital stock of each Subsidiary (other than Excluded Subsidiaries) owned by
the Company on the Closing Date is identified on Schedule III hereto. The
Company has furnished to the Agent the true, genuine executed originals of each
of the Pledged Notes, properly endorsed to the order of the Agent, and original
counterparts of the Pledged Security Agreements, and none of the same has been
amended, modified or altered and each of the foregoing remains in full force and
effect in accordance with its terms. The Pledged Notes and Pledged Security
Agreements are each genuine, legally valid, binding and enforceable obligations
of the maker thereof or debtor or pledgor thereunder and are not in default. The
Collateral is not subject to any credits or offsets not shown by proper
endorsement thereon.
(e) Title and Power to Pledge the Collat- eral. The Company
has good and marketable title to the Collateral and has all requisite rights,
power, and authority to execute, deliver and comply with the terms of this
Pledge Agreement and to pledge and deliver the Collateral to the Agent pursuant
hereto. Except as provided in Section 5.3 of the Credit Agreement, no material
authorization, consent or approval of, and no notice to or filing with, any
person or government agency (other than as specified in Section 7 hereof) is
required in connection with the execution, delivery and performance of this
Pledge Agreement which has not been obtained.
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5. Covenants. So long as any Obligation remains outstanding, the
Company covenants and agrees with the Agent, the Co-Agents, the Banks, any L/C
Provid- ers and any Interest Rate Providers as follows:
(a) Pledge and Additional Stock. If the Company shall at any
time acquire any additional shares of the capital stock of any class of the
Pledged Stock or any Subsidiary of the Company, whether such acquisition shall
be by purchase, exchange, reclassification, dividend, or otherwise, the Company
shall, to the extent doing so would not violate applicable law, forthwith (and
without the necessity for any request or demand by the Agent, any Co-Agent, any
Bank, any L/C Provider or any Interest Rate Provider) deliver the certificates
representing such shares to the Agent, in the same manner as described in
Section 3 hereof.
(b) Applications, Approvals and Consents. The Company will, at
its expense, promptly execute and deliver, or cause the execution and delivery
of, all applications, certificates, instruments, registration statements, and
all other documents and papers the Agent may reasonably request in connection
with the obtaining of any consent, approval, registration, qualification, or
authorization of the FCC or of any other Person necessary or appropriate for the
effective exercise of any rights under this Pledge Agreement. Without limiting
the generality of the foregoing, the Company agrees that in the event the Agent
on behalf of the Agent, the Co-Agents, the Banks, any L/C Providers and any
Interest Rate Providers shall exercise its right to sell, transfer, or otherwise
dispose of or take any other action in connection with any of the Collateral
pursuant to this Pledge Agreement, the Company shall execute and deliver all
applications, certificates, and other documents the Agent may reasonably request
and shall otherwise promptly, fully, and diligently cooperate with the Agent and
any other necessary Persons, in making any application for
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the prior consent or approval of the FCC or any other Person to the exercise by
the Agent, the Co-Agents, the Banks, any L/C Providers or any Interest Rate
Providers of any of such rights relating to all or any part of the Collateral.
Furthermore, because the Company agrees that the Agent's, the Co-Agents', the
Banks', any L/C Provider's and any Interest Rate Provider's remedy at law for
failure of the Company to comply with the provisions of this Section 5(b) would
be inadequate and that such failure would not be adequately compensable in
damages, the Company agrees that the covenants of this Section 5(b) may be
specifically enforced.
(c) Security Interest and Lien. Except as otherwise permitted
by the terms of the Credit Agreement, the Company will preserve, warrant, and
defend the lien created hereby in the Collateral against the claims of all
Persons whomsoever; will not at any time sell, assign, transfer, or otherwise
dispose of its right, title and interest in and to any of the Collateral except
as permitted under the Credit Agreement; will not at any time, directly or
indirectly, create, assume, or suffer to exist any lien, warrant, put, option,
or other rights of third Persons and restrictions, other than the liens created
by this Pledge Agreement, in and to the Collateral or any part thereof; and will
not do or suffer any matter or thing whereby the lien created by this Pledge
Agreement in and to the Collateral might or could be impaired.
(d) Further Assurances. The Company, at its expense, shall
from time to time execute and deliver to the Agent all such other assignments,
certificates, supplemental documents, and financing statements, and shall do all
other acts or things as the Agent may reasonably request in order to more fully
create, evidence, perfect, continue, and preserve the priority of the lien
herein created or to otherwise obtain the full benefits of this Pledge
Agreement.
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(e) Amendment and Termination. The Company will not and will
not permit the Subsidiaries to amend or terminate the Intercompany Security
Agreement (as defined in the Credit Agreement) (except upon the prior written
consent of the Agent and the Banks in accordance with Section 8.2 of the Credit
Agreement).
(f) Additional Undertakings. The Company:
(i) will not, without the prior written consent of
the Agent, enter into any agreement amending, supplementing or waiving
any provision of any Pledged Note (including any underlying instrument
pursuant to which such Pledged Note is issued) or compromising or
releasing or extending the time for payment of any obligation of the
maker thereof; and
(ii) will refrain from taking any actions under the
Intercompany Security Agreement, including, without limitation, actions
to foreclose upon any Collateral (as defined in the Intercompany
Security Agreement) and actions with respect to the release or
substitution of any Collateral (as defined in the Intercompany Security
Agreement). The Company acknowledges that all of its rights under the
Intercompany Security Agreement, including, without limitation, all
rights to make decisions regarding the exercise of such rights and
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the taking or refraining from taking of any actions, have been
assigned to the Agent pursuant to this Pledge Agreement, and
the Company agrees that, until payment in full of the
Obligations, and the irrevocable termination of the
Commitments and the termination of the Credit Agreement, all
such rights shall be exercisable only by the Agent. The
Company hereby (x) agrees that all such decisions shall be
conclusive and binding on it and (y) waives any and all claims
against the Agent, each Co-Agent and each Bank in respect of
any such decision, exercise, action or inaction.
6. Rights of Company, Agent, Co-Agents, the Banks,
the L/C Providers and Interest Rate Providers.
(a) Exercise of Stockholder Rights.
(i) Subject to the provisions of Section 7 hereof,
unless and until a Default shall occur and be continuing or a
default under any of the Citicasters L/C Documents shall occur
and be continuing, the Company shall be entitled to receive
all cash dividends or other distributions on the Pledged Stock
(if and to the extent such dividends or distributions are
permitted by the terms of the Credit Agreement) except (A)
distributions made in capital stock on the Pledged Stock
resulting from
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stock dividends on or subdivision, combination, or reclassification of
the outstanding capital stock of any corporation or as a result of any
merger, consolidation, acquisition or other exchange of assets of any
corporation; and (B) all sums paid on any Pledged Stock upon
liquidation or dissolution or reduction of capital, repurchase,
retirement, or redemption. All such sums, dividends, distributions,
proceeds, or property described in the immediately preceding clauses
(A) and (B) shall, if received by any Person other than the Agent, be
held in trust for the benefit of the Agent, the Co-Agents, the Banks,
any L/C Providers and any Interest Rate Providers and shall forthwith
be delivered to the Agent for the benefit of the Agent, the Co-Agents,
the Banks, any L/C Providers and any Interest Rate Providers
(accompanied by proper instruments or assignment and/or stock and/or
bond powers executed by the Company in accordance with the Agent's
instructions) to be held subject to the terms of this Pledge Agreement.
Upon the occurrence of a Default or a default under any of the
Citicasters L/C Documents, the Agent, for the benefit of the Agent, the
Co-Agents, the Banks, any L/C Providers and any Interest Rate
Providers, shall be entitled
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to receive all payments of whatever kind made upon or with respect to
any Collateral. The relative rights of the Agent, the Co-Agents, the
Banks, any L/C Providers and any Interest Rate Providers to receive
such payments shall be in proportion to the relative amounts of all
Obligations owing to the Agent, any Co-Agent, any Bank, any L/C
Providers and any Interest Rate Providers and the aggregate amount of
all Obligations then outstanding.
(ii) Unless a Default has occurred and is continuing or unless
a default under the Citicasters L/C Documents has occurred and is
continuing, the Company shall have the sole and exclusive right to vote
and give consents with respect to all the Collateral and to consent to,
ratify, or waive notice of any and all meetings. Subject to Section 6
hereof, and subject to compliance with applicable law, (i) upon the
occurrence and during the continuance of a Default, the Agent, on
behalf of the Agent, the Co-Agents, the Banks, any L/C Providers and
any Interest Rate Providers, shall have the right, or (ii) upon the
occurrence and during the continuance of a default under any Citicaster
L/C Document, the Agent, on behalf of
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the Agent and the L/C Providers, shall, subject to the provisions of
any intercreditor agreements in effect from time to time, (A) to
consent in advance to any vote proposed to be cast by the Company with
respect to any merger, consolidation, liquidation or reorganization of
any Subsidiary (but in no event with respect to any election of
directors) and, in connection therewith, to join in and become a party
to any plan of recapitalization, reorganization, or readjustment
(whether voluntary or involuntary) as shall seem desirable to the
Agent, on behalf of the Agent, the Co-Agents, the Banks, any L/C
Providers and any Interest Rate Providers, or the Agent, on behalf of
the Agent and any L/C Providers, as the case may be, to protect or
further their interests in respect of the Collateral, (B) to deposit
the Collateral under any such plan, and (C) to make any exchange,
substitution, cancellation, or surrender of the Collateral required by
any such plan and to take such action with respect to the Collateral as
may be required by any such plan or for the accomplishment thereof; and
no such disposition, exchange, substitution, cancellation, or surrender
shall be deemed to constitute a release of the Collateral from the lien
of this Pledge Agreement.
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(b) Upon the occurrence and during the continuance of a
Default or a default under any of the Citicasters L/C Documents,
subject to compliance with applicable law, and in the case of a default
under any of the Citicasters L/C Documents, subject to the provisions
of any intercreditor agreement in effect from time to time, the Agent,
on behalf of the Agent, the Co-Agents, the Banks, any L/C Providers and
any Interest Rate Providers, may, subject to Section 7 hereof, sell,
without recourse to judicial proceedings, with the right to bid for and
buy, the Collateral or any part thereof, upon ten days' notice (which
notice is agreed to be reasonable notice for the purposes hereof) to
the Company of the time and place of sale, for cash, upon credit or for
future delivery, at the Banks' option and in the Banks' complete
discretion in the case of a Default, or at the L/C Providers' option
and in the L/C Providers' complete discretion in the case of a default
under any of the Citicasters L/C Documents:
(i) At public sale, including a sale at any broker's
board or exchange;
(ii) At private sale in any commercially reasonable
manner which will not require the Collateral, or any part
thereof, to be registered in accordance with the Securities
Act of 1933, as amended, or the rules and regulations
promulgated thereunder, or any other law or regulation. The
Agent, the Co-Agents, the Banks and the L/C Providers are also
hereby authorized, but not obligated, to take such actions,
give such notices, obtain such consents, and do such other
things as they may deem required or ap-
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propriate in the event of sale or disposition of any of the
Collateral, and the Company agrees that neither the Agent, any
Co-Agent, any Bank, any L/C Provider nor any Interest Rate
Provider shall be liable or accountable to the Company for any
discount allowed by reason of the fact that such Collateral is
sold in compliance with any applicable limitation or
restriction of any governmental regulatory authority or
official. The Company understands that the Agent, on behalf of
the Banks, any L/C Providers and any Interest Rate Providers,
may in its discretion approach a restricted number of
potential purchasers and that a sale under such circumstances
may yield a lower price for the Collateral, or any portion
thereof, than would otherwise be obtainable if the same were
registered and sold in the open market. The Company agrees
that in the event the Agent shall so sell the Collateral, or
any portion thereof, at such private sale or sales, the Agent,
the Co-Agents, the Banks, any L/C Providers and any Interest
Rate Providers shall have the right to rely upon the advice
and opinion of any Person who regularly deals in or evaluates
stock of the type constituting the Collateral as to the price
obtainable in a commercially reasonable
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manner upon such a private sale thereof.
In the case of any sale by the Agent on behalf of the Agent,
the Co-Agents, the Banks, any L/C Providers and any Interest Rate Providers of
the Collateral on credit or for future delivery, the Collateral sold may be
retained by the Agent until the selling price is paid by the purchaser, but
neither the Agent, any Co-Agent, any Bank, any L/C Providers nor any Interest
Rate Provider shall incur liability in case of failure of the purchaser to take
up and pay for the Collateral so sold.
In connection with the sale of any of the Collateral, the
Agent, the Co-Agents, the L/C Providers and the Banks are authorized, but not
obligated, to limit prospective purchasers to the extent deemed necessary or
desirable by the Agent, the Co-Agents, the L/C Providers and the Banks to render
such sale exempt from the registration requirements of the Securities Act of
1933, as amended, and any applicable state securities laws. In the event that,
in the opinion of the Agent, the Co-Agents, the L/C Providers and the Banks, it
is necessary or advisable to have such securities registered under the
provisions of such Act, or any similar law relating to the registration of
securities, the Company agrees, at its own expense, to (i) execute and deliver
all such instruments and documents, and to do or cause to be done such other
acts and things, as may be necessary or, in the opinion of the Agent, advisable
to register such securities under the provisions of such Act or any applicable
similar law relating to the registration of securities, and the Company will use
its best efforts to cause the registration statement relating thereto to become
effective and to remain effective for such period as the Agent shall reasonably
request, and to make all amendments thereof and/or to the related prospectus
which, in the opinion of the Agent, are necessary or desirable, all in
conformity with the requirements of
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such Act and the rules and regulations of the Securities and Exchange Commission
applicable thereto; (ii) use its best efforts to qualify such securities under
state "blue sky" or securities laws, all as reasonably requested by the Agent;
(iii) at the request of the Agent, indemnify and hold harmless the Banks, the
Agent, the Co-Agents, any L/C Providers, any Interest Rate Providers, any
underwriters, and employees, officers, agents, attorneys, and accountants
(collectively, the "Indemnified Parties") from and against any loss, liability,
claim, damage, and expense (including, without limitation, reasonable fees of
counsel incurred in connection therewith) under such Act or otherwise, insofar
as such loss, liability, claim, damage, or expense arises out of or is based
upon any untrue statement or alleged untrue statement of any material fact
furnished by the Company contained in any registration statement under which
such securities were registered under such Act or other securities laws, any
preliminary prospectus or final prospectus contained therein, or arise out of or
are based upon any omission or alleged omission by the Company to state therein
a material fact required to be stated or necessary to make the statements
therein not misleading, such indemnification to remain operative regardless of
any investigation made by or on behalf of any Indemnified Party; provided,
however, that the Company shall not be liable in any case to the extent that any
such loss, liability, claim, damage, or expense arises out of or is based upon
an untrue statement or alleged untrue statement or an omission or an alleged
omission made in reliance upon and in conformity with written information
furnished to the Company by an Indemnified Party specifically for use in such
registration statement or preliminary or final prospectus; (iv) cause each such
issuer to make available to its security holders, as soon as practicable, an
earnings statement that will satisfy the provisions of Section 11(a) of such
Act; and (v) do or cause to be done all such other acts and things as may be
necessary to
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make such sale of the Collateral or any part thereof valid and binding and in
compliance with applicable law.
(c) Other Rights after a Default. Sub- ject to Section 7 hereof, (i)
upon the occurrence and during the continuance of a Default, the Agent, on
behalf of the Agent, the Co-Agents, the Banks and any Interest Rate Providers,
may and (ii) upon the occurrence and during the continuance of a default under
any Citicasters L/C Documents, the Agent, on behalf of the Agent and the L/C
Providers may, subject to the provisions of any intercreditor agreement in
effect from time to time, exercise any and all rights available to secured
parties under the Uniform Commercial Code as enacted in the State of Illinois or
other applicable jurisdiction, as amended, in addition to any and all other
rights afforded at law, in equity, or otherwise.
(d) Application of Proceeds. The Agent shall apply the proceeds of the
Collateral, including the proceeds of any sales or other disposition of the
Collateral, or any part thereof, under this Section 6, in the following order
unless a court of competent jurisdiction shall otherwise direct:
(i) FIRST, to payment of all reasonable costs and expenses of
the Agent incurred in connection with the collection and enforcement of
the Obligations or of the security interest granted pursuant to this
Pledge Agreement;
(ii) SECOND, to payment of that portion of the Obligations
constituting accrued and unpaid interest, fees and other amounts (other
than principal), pro rata amongst each Bank, the Agent, each Co-Agent
and each L/C Provider in accordance
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with the proportion which the accrued interest, fees and other amounts
(other than principal) constituting Obligations owing to each such
Bank, Agent, Co-Agent and L/C Provider bears to the aggregate amount of
accrued interest, fees and other amounts (other than principal)
constituting Obligations owing to all of the Banks, the Agent, the
Co-Agents and L/C Providers;
(iii) THIRD, to payment of the principal of the Obligations
owing to the Banks, any Bank, any L/C Providers or any Interest Rate
Providers, pro rata amongst the Banks, any L/C Providers and any
Interest Rate Providers in accordance with the proportion that the
principal of the Obligations owing to each such Bank, such L/C Provider
or Interest Rate Provider bears to the aggregate amount of principal of
the Obligations owing to all of the Banks, any L/C Providers and any
Interest Rate Providers; and
(iv) FOURTH, the balance, if any, after all of the Obligations
have been satisfied, shall be remitted to the Company.
(e) Governance. All rights and remedies available to the
Agent, the Co-Agents, the Banks, the Interest Rate Providers and the
L/C Providers with respect to the grant, foreclosure and enforcement of
the security interest and lien granted hereby and with respect to any
action permitted hereunder may be exercised
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solely by the Agent acting with the written concurrence of the Required
Banks.
7. Control; Limitation of Rights.
(a) Notwithstanding anything herein to the contrary, this
Pledge Agreement, the other Loan Documents, the Citicasters L/C
Documents and the transactions contemplated hereby and thereby (i) do
not and will not constitute, create, or have the effect of constituting
or creating, directly or indirectly, actual or practical ownership of
any Subsidiary by the Agent, the Co-Agents, the Banks, any L/C
Providers or any Interest Rate Providers, or control, affirmative or
negative, direct or indirect, by the Agent, the Co-Agents, the Banks,
any L/C Providers or any Interest Rate Providers over the management or
any other aspect of the operation of any Subsidiary, which ownership
and control remain exclusively and at all times in such Subsidiary and
the Company, and (ii) do not and will not constitute the transfer,
assignment, or disposition in any manner, voluntarily or involuntarily,
directly or indirectly, of any license at any time issued by the FCC to
any Subsidiary ("License"), or the transfer of control of any such
Subsidiary within the meaning of Section 310 of the Communications Act
of 1934, as amended.
(b) Notwithstanding any other provision of this Pledge
Agreement, any foreclosure on, sale, transfer or other disposition of,
or the exercise of any right to vote or consent with respect to, any of
the Collateral as provided herein or any other action taken or proposed
to be taken by the Agent, the Co-Agents, the Banks, the L/C Providers
and Interest Rate Providers hereunder which would affect the
operational, voting, or other control of any Subsidiary, shall be
pursuant to Section 310 of the Communications Act of 1934, as amended,
to any applicable state laws and to the applicable rules and
regulations thereunder and, if and to the
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extent required thereby, subject to the prior approval of the FCC.
(c) Subject to Section 7(e) hereof, if a Default shall have
occurred and be continuing or a default under the Citicasters L/C
Documents shall have occurred and be continuing, the Company shall take
any action which the Agent, on behalf of the Agent, the Co-Agents, the
Banks, any L/C Providers and any Interest Rate Providers, may
reasonably request in order to transfer and assign to the Agent, or to
such one or more third parties as the Agent may designate, or to a
combination of the foregoing, each License. To enforce the provisions
of this Section 7, the Agent is empowered to request the appointment of
a receiver from any court of competent jurisdiction. Such receiver
shall be instructed to seek from the FCC an involuntary transfer of
control of each such License for the purpose of seeking a bona fide
purchaser to whom control will ultimately be transferred. The Company
hereby agrees to authorize such an involuntary transfer of control upon
the request of the receiver so appointed and, if the Company shall
refuse to authorize the transfer, the Company's approval may be
required by the court. Upon the occurrence and continuance of a Default
or a default under any of the Citicasters L/C Documents, the Company
shall further use its best efforts to assist in obtaining approval of
the FCC, if required, for any action or transactions contemplated by
this Pledge Agreement including, without limitation, the preparation,
execution and filing with the FCC of the assignor's or transferor's
portion of any application or applications for consent to the
assignment of any License or transfer of control necessary or
appropriate under the FCC's rules and regulations for approval of the
transfer or assignment of any portion of the Collateral, together with
any License.
(d) The Company acknowledges that the assignment or transfer
of each License is integral to the
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Agent's, the Co-Agents', the Banks', any L/C Provider's and any Interest Rate
Provider's realization of the value of the Collateral, that there is no adequate
remedy at law for failure by the Company to comply with the provisions of this
Section 7 and that such failure would not be adequately compensable in damages,
and therefore agrees that the agreements contained in this Section 7 may be
specifically enforced.
(e) Notwithstanding anything to the contrary contained in this
Pledge Agreement or in any other Loan Document, neither the Agent, any Co-Agent,
any Bank, any L/C Provider nor shall any Interest Rate Provider shall, without
first obtaining the approval of the FCC, take any action pursuant to this Pledge
Agreement which would constitute or result in any assignment of a License or any
change of control of any License or any Subsidiary if such assignment or change
in control would require, under then existing law (including the written rules
and regulations promulgated by the FCC), the prior approval of the FCC.
8. Miscellaneous.
(a) Term. This Pledge Agreement and the lien arising hereunder
(i) shall become effective as of the date hereof upon the execution hereof, and
(ii) shall continue in force until no Obligations to the Agent, the Co-Agents,
the Banks, any L/C Providers or any Interest Rate Providers shall be outstanding
and the Commitments shall have been terminated. If no Obligations remain
outstanding and the Commitments have been terminated, the Agent, at the request
and sole expense of the Company, shall execute and deliver such documents and
instruments as may be necessary to evidence such termination and release.
(b) Releases; Partial Releases. Any cash dividends received by
the Company in accordance with the
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terms of Section 6(a)(i) hereof, and all distributions received by the Company
upon the merger or liquidation of the Subsidiaries with or into the Company in
accordance with Section 6.12 of the Credit Agreement, shall be deemed released
from the lien of this Pledge Agreement and shall be held by the Company (or any
transferee of the Company) free and clear of the lien created by this Pledge
Agreement, provided, however, that all distributions so received by the Company
upon any such merger or liquidation of the Subsidiaries shall become and remain
subject to the lien created by the Company Security Agreement upon the terms set
forth therein. Upon termination of this Pledge Agreement in accordance with the
provisions of Section 8(a) hereof, the Agent, the CoAgents, the Banks, any L/C
Providers and any Interest Rate Providers shall, at the Company's request and
expense and subject to the foregoing sentence, execute such release as the
Company may reasonably request, in form and upon terms acceptable to the Agent,
the Co-Agents, the Banks, any L/C Providers and any Interest Rate Providers in
all respects, and shall, without any representations, warranties or recourse of
any kind whatsoever (other than the representation and warranty that such
property is free and clear of Liens created by the Agent, the Co-Agents, the
Banks, any L/C Providers or any Interest Rate Providers), deliver all
certificates representing the Pledged Stock and other property held in respect
thereof hereunder which is in the Agent's possession, together with all stock
powers or other instruments of transfer reasonably required to effect delivery
to the Company.
(c) Waivers. Except to the extent ex- pressly otherwise
provided herein or in any Loan Document, the Company waives, to the extent
permitted by applicable law, (i) any right to require either the Agent, any
Co-Agent, any Bank, any L/C Provider or any Interest Rate Provider to proceed
against any other person, to exhaust their rights in any other collateral,
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or to pursue any other right which either the Agent, any Co-Agent, any Bank, any
L/C Provider or any Interest Rate Provider may have, (ii) with respect to the
Obligations, presentment and demand for payment, protest, notice of protest and
non-payment, and notice of the intention to accelerate, and (iii) all rights of
marshalling in respect of any and all of the Collateral.
(d) Financing Statement. The Agent, on behalf of the Agent,
the Co-Agents, the Banks, any L/C Providers and any Interest Rate Providers,
shall be entitled at any time to file this Pledge Agreement or a carbon,
photographic, or other reproduction of this Pledge Agreement, as a financing
statement, but the failure of the Agent to do so shall not impair the validity
or enforceability of this Pledge Agreement.
(e) Amendments. This Pledge Agreement may be amended only by
an instrument in writing executed jointly by the Company and the Agent, with the
consent of the Required Banks and supplemented only by documents delivered or to
be delivered in accordance with the express terms hereof, provided, however,
that any release of all or any substantial portion of the Collateral from the
lien created hereby shall be effective only if approved in accordance with
Section 8.2 of the Credit Agreement.
(f) GOVERNING LAW. THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH THE PROVISIONS OF, THE INTERNAL LAWS (AND NOT
THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS.
(g) Parties Bound; Assignment. This Pledge Agreement shall be
binding on the Company and its successors and assigns and shall inure to the
benefit of the Agent, the Co-Agents, the Banks, any L/C Providers and any
Interest Rate Providers and their respective successors and assigns.
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(h) Notices. Any notice required or per- mitted to be given
under this Pledge Agreement shall be in writing and may be, and shall be deemed,
given, if mailed, three days after the date when deposited in the United States
mail, postage prepaid, or if by telegraph or telex, when delivered to the
appropriate office for transmission, charges prepaid, or if by personal delivery
or by telecopy, when received, addressed to the Company (with copies to Xxxxx X.
Xxxxxxxxx, Esq., Xxxxxxxxx & Xxxxxxxxxxx, Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000, provided, however, that the failure to provide any such
copy shall not affect the validity or sufficiency of any such notice), to the
Agent at the address indicated below its signature hereto, to the Co-Agents and
the Banks at the addresses indicated below their respective signatures to the
Credit Agreement, to any L/C Providers at the addresses provided to the Company
and the Agent in writing by such L/C Providers and to any Interest Rate
Providers at the addresses provided to the Company and the Agent in writing by
such Interest Rate Providers. Each of the Company, the Agent, the Banks, any L/C
Providers and any Interest Rate Providers may change the address for service of
notice upon it by a notice in writing to the other parties hereto.
(i) Counterparts. This Pledge Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this Pledge Agreement by
signing any such counterpart. This Pledge Agreement shall be effective when it
has been executed by the Company and the Agent.
(j) Loan Document. This Pledge Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
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(k) Section Captions. Section captions used in this Pledge
Agreement are for convenience of reference only and shall not affect the
construction of this Pledge Agreement.
(l) Severability. Wherever possible each provision of this
Pledge Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Pledge Agreement shall
be prohibited by or invalid under such law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Pledge
Agreement.
9. The Agent. Banque Paribas has been appointed Agent of the Co-Agents,
the Banks, any L/C Provider and any Interest Rate Providers hereunder pursuant
to Article X of the Credit Agreement, and the Agent has agreed to act (and any
successor Agent shall act) as such hereunder only on the express conditions
contained in such Article X. Any successor Agent appointed pursuant to Article X
of the Credit Agreement shall be entitled to all the rights, interests and
benefits of the Agent hereunder.
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IN WITNESS WHEREOF, the undersigned have executed this Pledge
Agreement as of the date first above written.
JACOR COMMUNICATIONS, INC.
By:________________________________
Title:_____________________________
By:________________________________
Title:_____________________________
1300 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: President
BANQUE PARIBAS,
as Agent
By:________________________________
Title:_____________________________
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
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SCHEDULE "I"
(See Section 2 of Pledge Agreement)
LIST OF INTERCOMPANY DEMAND NOTES
I. Second Consolidated Amended and Restated Intercompa-
ny Demand Notes dated February 20, 1996 and payable
to the order of Jacor Communications, Inc. from:
a) Jacor Broadcasting of Atlanta, Inc.;
b) Jacor Broadcasting of Colorado, Inc.;
c) Jacor Broadcasting of Florida, Inc.;
d) Jacor Broadcasting of Knoxville, Inc.;
e) Jacor Broadcasting of Tampa Bay, Inc.; and
f) Jacor Broadcasting Corporation.
II. Consolidated Amended and Restated Intercompany
Demand Note dated February 20, 1996 and payable to
the order of Jacor Communications, Inc. from:
a) Georgia Network Equipment, Inc.;
b) Broadcast Finance, Inc.; and
c) Chesapeake Securities, Inc.
III. Intercompany Demand Note dated as of February 20,
1996 and payable to the order of Jacor Communica-
tions, Inc. from:
a) Jacor Broadcasting of St. Louis, Inc.; and
b) OIA Broadcasting L.L.C.
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SCHEDULE "II"
(See Section 2 of Pledge Agreement)
LIST OF INTERCOMPANY SECURITY AGREEMENTS
Second Amended and Restated Intercompany Security Agreement executed by each of
the following parties:
1. Jacor Communications, Inc.;
2. Jacor Broadcasting of Atlanta, Inc.;
3. Jacor Broadcasting of Colorado, Inc.;
4. Jacor Broadcasting of Florida, Inc.;
5. Jacor Broadcasting of Knoxville, Inc.;
6. Jacor Broadcasting of Tampa Bay, Inc.;
7. Jacor Cable, Inc.;
8. Jacor Broadcasting Corporation; and
9. Georgia Network Equipment, Inc.
10. Broadcast Finance, Inc.
11. Chesapeake Securities, Inc.
12. OIA Broadcasting L.L.C.
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SCHEDULE "III"
(See Section 3.11 of Security Agreement)
LIST OF PLEDGED SECURITIES
A. STOCKS:
Certificate Number
Issuer Number of Shares
------ ----------- ---------
Jacor Broadcasting of Florida, Inc. 1 500
Jacor Broadcasting of Atlanta, Inc. 2 500
Jacor Broadcasting of Knoxville, Inc. 1 100
Jacor Broadcasting of Colorado, Inc. 3 100
Jacor Broadcasting of Tampa Bay, Inc. 2 100
Jacor Broadcasting of St. Louis, Inc. 1 100
Jacor Cable, Inc. 1 100
Jacor Broadcasting Corporation 1 100
Broadcast Finance, Inc. 1 100
Chesapeake Securities, Inc. 1 100
Georgia Network Equipment, Inc. [ ] 500
OIA Broadcasting L.L.C. N/A N/A
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