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Exhibit 10.4
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this "Pledge Agreement") is made and entered
into as of May 15, 1998 by TRI-STATE OUTDOOR MEDIA GROUP, INC., a Kansas
corporation (the "Pledgor"), having its principal office at 0000 Xxxxxxx 00
Xxxxx, Xxxxxx, Xxxxxxx 00000, IBJ XXXXXXXX BANK & TRUST COMPANY, a New York
banking corporation, having an office at Xxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, as trustee (the "Trustee") for the holders from time to time (the
"Holders") of the Notes (as defined herein) issued by the Pledgor under the
Indenture referred to below and IBJ XXXXXXXX BANK & TRUST COMPANY, as securities
intermediary (the "Tri-State Securities Intermediary").
W I T N E S S E T H
WHEREAS, the Pledgor and the Trustee have entered into that certain
indenture dated as of the date hereof (as amended, restated, supplemented or
otherwise modified from time to time, the "Indenture"), pursuant to which the
Pledgor is issuing on the date hereof $100,000,000 in aggregate principal amount
of 11% Senior Notes due 2008 (and along with such notes that may from time to
time be issued in substitution therefor, the "Notes"); and
WHEREAS, the Pledgor has agreed, pursuant to the Indenture, to (i)
purchase or cause the purchase of the Pledged Securities (as defined herein) in
an amount that will be sufficient upon receipt of scheduled interest and
principal payments in respect thereof to provide for the payment of the first
two scheduled interest payments due on the Notes and (ii) place such Pledged
Securities (or cause them to be placed) in an account maintained by the Trustee
with the Tri-State Securities Intermediary for the benefit of Holders of the
Notes; and
WHEREAS, to secure the obligations of the Pledgor under the
Indenture and the Notes to pay in full each of the first two scheduled interest
payments on the Notes and to secure repayment of the principal, premium (if any)
and interest on the Notes in the event that the Notes become due and payable
prior to such time as the first two scheduled interest payments thereon shall
have been paid in full (collectively, the "Obligations"), the Pledgor has agreed
(i) to purchase United States Treasury securities in an amount sufficient, in
the written opinion of a nationally recognized firm of independent public
accountants selected by the Pledgor and delivered to the Trustee, upon receipt
of scheduled interest and principal payments of such securities, to provide for
payment in full of each of the first two scheduled interest payments due on the
Notes (ii) to pledge to the Trustee for its benefit and the ratable benefit of
the Holders of the Notes, a security interest in the Pledged Securities (as
defined herein) and related collateral and (iii) to execute and deliver this
Pledge Agreement in order to secure the payment and performance by the Pledgor
of all the Obligations; and
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WHEREAS, the Trustee has opened an account (the "Escrow Account")
with the Tri-State Securities Intermediary, at its office at Xxx Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Account No._______, in the name of IBJ Xxxxxxxx Bank &
Trust Company, as Trustee, for its benefit and the benefit of the Holders of the
Notes (along with such notes that may from time to time be issued in
substitution therefor), with respect to which the Trustee is the sole
entitlement holder and which is under the sole dominion and control of the
Trustee but subject to the terms of this Pledge Agreement. Capitalized terms
used herein and not otherwise defined herein shall have the meanings given to
such terms in the Indenture. Unless otherwise defined herein or in the
Indenture, terms used in Articles 8 or 9 of the Uniform Commercial Code as in
effect in the State of New York (the "UCC") and as used in 31 CFR 357.2 are used
herein as therein defined.
NOW, THEREFORE, in consideration of the mutual promises herein
contained and in order to induce the Holders of the Notes to purchase the Notes,
the Pledgor hereby agrees with the Trustee, for the benefit of the Trustee and
for the ratable benefit of the Holders of the Notes, as follows:
SECTION 1. Pledge and Grant of Security Interest. As security for
the prompt and complete payment and performance when due of the Obligations
(whether at the stated maturity or otherwise), the Pledgor hereby pledges to the
Trustee for its benefit and for the ratable benefit of the Holders of the Notes,
and grants to the Trustee for its benefit and for the ratable benefit of the
Holders of the Notes, a continuing first priority security interest in and to
all of the Pledgor's right, title and interest in, to and under the following
(wherever located), whether investment property, financial assets, general
intangibles, other rights, interests, claims and remedies or proceeds or
otherwise (collectively, the "Pledged Collateral"): (a) the United States
Treasury securities identified by CUSIP Number in Exhibit A to this Pledge
Agreement (the "Pledged Securities"), (b) any and all applicable Security
Entitlements to the Pledged Securities, (c) the Escrow Account and all funds,
certificates, instruments, assets and investment property, if any, from time to
time carried therein or credited thereto or representing or evidencing the
Escrow Account (d) any and all related accounts in which Security Entitlements
to the Pledged Securities are carried and (e) all proceeds of any and all of the
Pledged Collateral (including, without limitation, proceeds that constitute
property of the types described in clauses (a) - (d) of this Section 1).
SECTION 2. Security for Obligation. This Pledge Agreement secures
the prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of all the Obligations.
SECTION 3. Delivery of Pledged Securities; Escrow Account; Interest.
(a) The Pledged Securities shall be pledged and transferred to the Trustee and
the Trustee shall become the holder of a Security Entitlement to the Pledged
Securities through action by the
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Tri-State Securities Intermediary, as confirmed (in writing or electronically or
otherwise in accordance with standard industry practice) to the Trustee by the
Tri-State Securities Intermediary (i) indicating by book-entry that the Pledged
Securities and all Security Entitlements thereto have been credited to the
Escrow Account in the name of the Trustee, or (ii) acquiring the Pledged
Securities or a Security Entitlement thereto for the Trustee and accepting the
same for credit to the Escrow Account.
(b) Prior to or concurrently with the execution and delivery hereof
and prior to the transfer to the Trustee of the Pledged Securities (or
acquisition by the Trustee of any Security Entitlement thereto) as provided in
subsection (a) of this Section 3, the Trustee shall establish with the Tri-State
Securities Intermediary the Escrow Account on the books of the Tri-State
Securities Intermediary as a Securities Account segregated from all other
custodial or collateral accounts, such Escrow Account to be maintained at the
offices of the Tri-State Securities Intermediary at Xxx Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, 00000 and the Tri-State Securities Intermediary shall maintain a
Securities Account at the Federal Reserve Bank of New York ("FRBNY"). Upon
transfer of the Pledged Securities to the Tri-State Securities Intermediary (or
the Tri-State Securities Intermediary's acquisition of the Security Entitlements
thereto), as confirmed to the Tri-State Securities Intermediary by FRBNY or
another securities intermediary, the Tri-State Securities Intermediary shall
make appropriate book entries indicating that the Pledged Securities and/or such
Security Entitlements have been credited to the Escrow Account in the name of
the Trustee.
(c) The Trustee shall, in accordance with all applicable laws, have
sole dominion and control (including "control" as defined in UCC Section
9-115(1)(e)) over the Escrow Account and any investment property held therein or
credited thereto, and it shall be a term and condition of the Escrow Account and
the Pledgor irrevocably instructs the Trustee, notwithstanding any other term or
condition to the contrary herein or in any other agreement, that no Pledged
Collateral shall be released to or for the account of, or withdrawn by or for
the account of, the Pledgor or any other Person except as expressly provided in
this Pledge Agreement.
(d) The Trustee shall, in accordance with and subject to all
applicable laws, be the sole entitlement holder of, and have the sole power to
originate "Entitlement Orders" (as defined in UCC Section 8-102(a)(8)) with
respect to the Escrow Account and all Pledged Securities, Securities
Entitlements and other investment property held therein, and the Trustee shall
have the right to issue such Entitlement Orders with respect to the Escrow
Account and all assets and properties from time to time carried in the Escrow
Account, including such securities, Security Entitlements and other "Financial
Assets" (as defined in UCC Section 8- 102(a)(9)) without further consent of the
Pledgor or any other Person (except, to the extent required under the Indenture,
of the Holders), and no Pledged Collateral shall be released to or
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for the account of, or withdrawn by or for the account of, the Pledgor or any
other Person except as expressly provided in this Pledge Agreement.
(e) All Pledged Collateral shall be retained in the Escrow Account
pending disbursement pursuant to the terms hereof.
(f) Concurrently with the execution and delivery of this Pledge
Agreement the Trustee and the Tri-State Securities Intermediary are delivering
to the Pledgor and to Prudential Securities Incorporated and First Chicago
Capital Markets, Inc., as the initial purchasers of the Notes, a duly executed
certificate, in the form of Exhibit A hereto, of an officer of the Trustee,
confirming the Trustee's establishment and maintenance of the Escrow Account and
its receipt and holding of the Pledged Securities or a Security Entitlement
thereto and the crediting of the Pledged Securities or such Security Entitlement
to the Escrow Account, all in accordance with this Pledge Agreement.
(g) Concurrently with the execution and delivery of this Pledge
Agreement, the Pledgor shall deliver to the Trustee financing statements, to be
filed under the UCC of the States of New York, Georgia and Kansas covering the
Pledged Collateral described in this Pledge Agreement.
(h) Concurrently with the execution and delivery of this Pledge
Agreement, the Pledgor shall deliver to the Trustee an opinion of a nationally
recognized firm of independent public accountants, selected by the Pledgor,
substantially in the form of Exhibit B hereto.
SECTION 4. Disbursements. (a) At least three Business Days prior to
the due date of any of the first two scheduled interest payments on the Notes,
the Pledgor may, pursuant to written instructions given by the Pledgor to the
Trustee (a "Company Order"), direct the Trustee to release from the Escrow
Account and pay to the Holders of the Notes on behalf of the Issuer proceeds
sufficient to provide for payment in full of such interest then due on the
Notes. Upon receipt of a Company Order, the Trustee will provide for the payment
of the interest on the Notes in accordance with the Company Order and the
payment provisions of the Indenture to the Holders of the Notes from (and to the
extent of) proceeds of the Pledged Securities in the Escrow Account. Nothing in
this Section 4 shall affect the Trustee's rights to apply the Pledged Collateral
to the payments of amounts due on the Notes upon acceleration thereof.
(b) (i) The Pledgor may, at is option, make any of the first two
scheduled interest payments on the Notes or a portion of any such interest
payments from a source of funds other than the Escrow Account ("Other Funds").
Any Other Funds to be used to make any interest payment shall be delivered to
the Trustee, in immediately available funds, prior to 10:00
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a.m. (New York City time) on such interest payment date. In such case, at least
three Business Days prior to the due date of each of the first two scheduled
interest payments on the Notes, the Pledgor shall give the Trustee notice (by
Company Order) as to whether such interest payment will be made pursuant to
Section 4(b) and the respective amounts of interest that will be paid from the
Escrow Account and from Other Funds. If the Pledgor intends to pay a portion of
any of the first two scheduled interest payments, the Pledgor (by Company Order)
shall direct the Trustee to release from the Escrow Account and pay to the
Holders of the Notes proceeds, which together with the Other Funds, will be
sufficient to provide for payment in full of such interest then due on the
Notes. Upon receipt of such Company Order, the Trustee will release funds in an
amount which, together with the Other Funds, will be sufficient to provide for
the payment in full of the interest on the Notes in accordance with such Company
Order and the payment provisions of the Indenture to the Holders of the Notes
from (and to the extent of) proceeds of the Pledged Securities in the Escrow
Account
(ii) If the Pledgor makes any of the first two interest
payments or a portion of any such interest payments from Other Funds, the
Pledgor may, after payment in full of such interest payment, direct the Trustee
pursuant to a Company Order to release to the Pledgor or to another party at the
direction of the Pledgor (the "Pledgor's Designee") proceeds from the Escrow
Account in an amount less than or equal to the amount of Other Funds applied to
such interest payment. Upon receipt by the Trustee of such Company Order and
provided the Trustee has received such interest payment, if no Default or Event
of Default (as defined in the Indenture) shall have occurred and be continuing,
the Trustee shall pay over to the Pledgor or the Pledgor's Designee, as the case
may be, the requested amount from proceeds in the Escrow Account as soon as
practicable.
(c) If at any time the principal of and interest on the Pledged
Securities exceeds 100% of the amount sufficient, in the written opinion of a
nationally recognized firm of independent accountants selected by the Pledgor
and delivered to the Trustee, to provide for payment in full of the remaining
first two scheduled interest payments due on all of the outstanding Notes, the
Pledgor may direct the Trustee to release any such excess amount to the Pledgor
or to any Pledgor's Designee. Upon receipt of a Company Order (which shall
include a certificate from such nationally recognized firm of independent
accountants stating the amount by which the Pledged Securities exceed the amount
required to be held in the Escrow Account), and if no Default or Event of
Default (as defined in the Indenture) shall have occurred and be continuing, the
Trustee shall pay over to the Pledgor or the Pledgor's Designee, as the case may
be, any such excess amount.
(d) Upon payment in full of the first two scheduled interest
payments on the Notes, and provided that (i) no Default or Event of Default (as
defined in the Indenture) shall have occurred and be continuing, and (ii) the
Notes shall not have become due and payable prior to the payment in full of the
first two scheduled interest payments on the Notes (unless
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thereupon all principal, interest and premium, if any, on the Notes have been
paid in full), then the security interest in the Pledged Collateral evidenced by
this Pledge Agreement will automatically terminate and be of no further force
and effect and the Pledged Collateral shall promptly be paid over and
transferred to the Pledgor. Furthermore, upon the release of any Pledged
Collateral from the Escrow Account in accordance with the terms of this Pledge
Agreement, whether upon release of Pledged Collateral to Holders as payment of
interest or otherwise, the security interest evidenced by this Pledge Agreement
in such released Pledged Collateral will automatically terminate and be of no
further force and effect.
(e) If a Company Order as described in either Section 4(a) or 4(b)
is not given at least three Business Days prior to either of the first two
scheduled interest payment dates on the Notes or if any Other Funds specified in
such notice have not been so delivered as required by Section 4(b), the Trustee
will act pursuant to Section 4(a) above with respect to such interest payment
date as if it had received a Company Order pursuant thereto for the payment in
full of the interest then due from the Escrow Account.
(f) The Trustee shall liquidate Pledged Collateral in the Escrow
Account (pursuant to written instructions from Pledgor or, if no written
instructions are provided, then the Trustee shall liquidate the Pledged
Securities or any other Pledged Collateral in the Escrow Account in the order of
their maturities, or by any other method the Trustee deems appropriate) in order
to make any scheduled payment of interest unless there are sufficient available
funds in the Escrow Account on such interest payment date.
(g) Nothing contained in Section 1, Section 3, this Section 4,
Section 11 or any other provision of this Pledge Agreement shall (i) afford the
Pledgor any right to issue Entitlement Orders with respect to any Security
Entitlement to the Pledged Securities, the Escrow Account or any Securities
Account in which any such Security Entitlement may be carried or (ii) except as
otherwise specified under this Agreement (or required by applicable law) give
rise to any other rights of the Pledgor with respect to the Pledged Securities,
any Security Entitlement thereto, the Escrow Account or any Securities Account
in which any such Security Entitlement may be carried (except as expressly
provided in Sections 4(a), (b) and (c) hereof).
SECTION 5. Representations and Warranties. The Pledgor hereby
represents and warrants that, as of the date hereof:
(a) The execution and delivery by the Pledgor of, and the
performance by the Pledgor of its obligations under, this Pledge Agreement
will not contravene any provision of applicable law or statute or the
organization documents of the Pledgor or any material agreement or other
material instrument binding upon the Pledgor or any of its subsidiaries or
any judgment, order or decree of any governmental body, agency or
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court having jurisdiction over the Pledgor or any of its subsidiaries, or
result in the creation or imposition of any Lien on any assets of the
Pledgor, except for the security interests granted under this Pledge
Agreement; no consent, approval, authorization or order of, or
qualification with, or other action by, any governmental or regulatory
body or agency or any third party is required (i) for the execution,
delivery or performance by the Pledgor of this Pledge Agreement, (ii) for
the grant by the Pledgor of the security interest granted hereby or for
the pledge by the Pledgor of the Pledged Collateral pursuant to this
Pledge Agreement, (iii) for the perfection and maintenance of the pledge
and security interest created hereby (including the first-priority nature
of such pledge and security interest, assuming compliance by the Tri-State
Securities Intermediary with all obligations contained in this Pledge
Agreement) or (iv) except for any such consents, approvals, authorizations
or orders required to be obtained by the Trustee (or the Holders) for
reasons other than the consummation of this transaction, for the exercise
by the Trustee of the rights provided for in this Pledge Agreement or the
remedies in respect of the Pledged Collateral pursuant to this Pledge
Agreement.
(b) Immediately before depositing the Pledged Securities into the
Escrow Account, the Pledgor is the legal and beneficial owner of the
Pledged Collateral free and clear of any Lien or claims of any person or
entity (except for the security interests granted under this Pledge
Agreement). No financing statement or other instrument similar in effect
covering the Pledgor's interest in the Pledged Securities is on file in
any public office, other than any financing statements filed pursuant to
this Pledge Agreement.
(c) This Pledge Agreement has been duly authorized, validly executed
and delivered by the Pledgor and assuming the due authorization, execution
and delivery thereof by the Trustee, constitutes a valid and binding
agreement of the Pledgor, enforceable against the Pledgor in accordance
with its terms, except as (i) the enforceability hereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, preference, reorganization,
moratorium or similar laws now or hereafter in effect relating to or
affecting creditors' rights or remedies generally, (ii) the availability
of equitable remedies may be limited by equitable principles of general
applicability, (iii) the exculpation provisions and rights to
indemnification hereunder may be limited by U.S. federal and state
securities laws and public policy considerations and (iv) the waiver of
rights and defenses contained in Section 11(c), Section 15.11 and Section
15.15 hereof may be limited by applicable law.
(d) Upon the transfer to the Trustee of the Pledged Securities and
the acquisition by the Trustee of a Security Entitlement thereto in
accordance with Section 3, and the compliance by the Tri-State Securities
Intermediary with the provisions of this Pledge Agreement, the pledge of
and grant of a security interest in the Pledged
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Collateral securing the payment of the Obligations for the benefit of the
Trustee and the Holders of the Notes will constitute a valid first
priority perfected security interest in such Pledged Collateral,
enforceable as such against all creditors of the Pledgor (and any persons
purporting to purchase any of the Pledged Collateral from the Pledgor) and
all filings and actions (other than the transfer to the Trustee of the
Pledged Securities) necessary or desirable to perfect and protect such
security interest have been duly taken.
(e) There are no legal or governmental proceedings pending or, to
the best of the Pledgor's knowledge, threatened to which the Pledgor is a
party or to which any of the properties of the Pledgor is subject that
would materially adversely affect the power or ability of the Pledgor to
perform its obligations under this Pledge Agreement or to consummate the
transactions contemplated hereby.
(f) The pledge of the Pledged Collateral pursuant to this Pledge
Agreement is not prohibited by law or governmental regulation (including,
without limitation, Regulations G, T, U and X of the Board of Governors of
the Federal Reserve System) applicable to the Pledgor.
(g) No Event of Default (as defined herein) exists.
SECTION 6. Further Assurances. The Pledgor will, promptly upon
request by the Trustee, execute and deliver or cause to be executed and
delivered, or use its reasonable best efforts to procure, all assignments,
instruments and other documents, all in form and substance reasonably
satisfactory to the Trustee, execute and deliver to the Trustee any instruments
requested by the Trustee and take any other actions that are necessary or
desirable, to perfect, continue the perfection of, or protect the first priority
of the Trustee's security interest in and to the Pledged Collateral, to protect
the Pledged Collateral against the rights, claims, or interests of third persons
(other than any such rights, claims or interests created by or arising through
the Trustee pursuant to this Pledge Agreement or the Indenture), to enable the
Trustee to enforce its rights and remedies hereunder, or to effect the purposes
of this Pledge Agreement. A photocopy or other reproduction of this Agreement or
any financing statement covering the Pledged Collateral or any part thereof
shall be sufficient as a financing statement where permitted by law. The Pledgor
will promptly pay all reasonable costs incurred in connection with any of the
foregoing. The Pledgor also agrees to take all actions that are reasonably
necessary to perfect or continue the perfection of, or to protect the first
priority of, the Trustee's security interest in and to the Pledged Collateral,
including the filing of all necessary financing and continuation statements, and
to protect the Pledged Collateral against the rights, claims or interests of
third persons (other than any such rights, claims or interests created by or
arising through the Trustee pursuant to this Pledge Agreement or the Indenture).
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SECTION 7. Covenants. The Pledgor covenants and agrees with the
Trustee and the Holders of the Notes that from and after the date of this Pledge
Agreement until the payment in full in cash of the Obligations:
(a) that (i) it will not (and will not purport to) sell or otherwise
dispose of, or grant any option or warrant with respect to, any of the
Pledged Collateral or its beneficial interest therein, and (ii) it will
not create or permit to exist any Lien or other adverse interest in or
with respect to its beneficial interest in any of the Pledged Collateral
(except for the security interests granted under this Pledge Agreement)
and at all times will be the sole beneficial owner of the Pledged
Collateral; and
(b) that it will not (i) enter into any agreement or understanding
that restricts or inhibits or purports to restrict or inhibit the
Trustee's rights or remedies hereunder, including, without limitation, the
Trustee's right to sell or otherwise dispose of the Pledged Collateral or
(ii) fail to pay or discharge any tax, assessment or levy of any nature
with respect to its beneficial interest in the Pledged Collateral not
later than five days prior to the date of any proposed sale under any
judgment, writ or warrant of attachment with respect to such beneficial
interest.
SECTION 8. Power of Attorney. Upon the occurrence of an Event of
Default, in addition to all of the powers granted to the Trustee pursuant to the
Indenture, the Pledgor hereby appoints and constitutes the Trustee as the
Pledgor's attorney-in-fact, with full authority in the place and stead of the
Pledgor and in the name of the Pledgor or otherwise, from time to time in the
Trustee's discretion, to take any action and to execute any instrument that the
Trustee may deem necessary or advisable to accomplish the purposes of this
Pledge Agreement, including, without limitation, the following powers: (a)
collection of proceeds of any Pledged Collateral; (b) conveyance of any item of
Pledged Collateral to any purchaser thereof; (c) giving of any notices or
recording of any Liens under Section 6 hereof; and (d) paying or discharging
taxes or Liens levied or placed upon the Pledged Collateral, the legality or
validity thereof and the amounts necessary to discharge the same to be
determined by the Trustee in its sole reasonable discretion, such payments made
by the Trustee to become part of the Obligations of the Pledgor to the Trustee,
due and payable immediately upon demand. The Trustee's authority under this
Section 8 shall include, without limitation, the authority to endorse and
negotiate any checks or instruments representing proceeds of Pledged Collateral
in the name of the Pledgor, execute and give receipt for any certificate of
ownership or any document constituting Pledged Collateral, transfer title to any
item of Pledged Collateral, sign the Pledgor's name on all financing statements
(to the extent permitted by applicable law) or any other documents deemed
necessary or appropriate by the Trustee to preserve, protect or perfect the
security interest in the Pledged Collateral and to file the same, prepare, file
and sign the Pledgor's name on any notice of Lien, and to take any other actions
arising from or incident to the powers granted to the Trustee in this Pledge
Agreement. This power of
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attorney is coupled with an interest and is irrevocable by the Pledgor.
Notwithstanding anything to the contrary stated herein, the Trustee has no duty
or obligation to exercise any of the powers stated in this Section 8.
SECTION 9. No Assumption of Duties; Reasonable Care. The rights and
powers granted to the Trustee and the Tri-State Securities Intermediary
hereunder are being granted in order to preserve, perfect and protect the
security interest of the Trustee for its benefit and the ratable benefit of the
Holders of the Notes in and to the Pledged Collateral granted hereby and shall
not be interpreted to, and shall not impose any duties on the Trustee or the
Tri-State Securities Intermediary in connection therewith other than those
expressly provided herein or imposed under applicable law. Except as provided by
applicable law or by the Indenture, the Trustee shall be deemed to have
exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if the Pledged Collateral is accorded treatment
substantially equal to that which the Trustee accords similar property held by
the Trustee for similar accounts, it being understood that the Trustee in its
capacity as such shall not have any responsibility for (a) ascertaining or
taking action with respect to calls, conversions, exchanges, maturities or other
matters relative to any Pledged Collateral, whether or not the Trustee has or is
deemed to have knowledge of such matters or (b) investing or reinvesting any of
the Pledged Collateral or any loss on any investment.
SECTION 10. Indemnity. The Pledgor shall indemnify, hold harmless
and defend the Trustee and the Tri-State Securities Intermediary and their
directors, officers, agents and employees from and against any and all claims,
actions, obligations, liabilities and expenses, including reasonable defense
costs, reasonable investigative fees and costs and reasonable legal fees and
expenses and damages arising from the Trustee's or the Tri-State Securities
Intermediary's performance under this Pledge Agreement, except to the extent
that such claim, action, obligation, liability or expense is directly
attributable to the gross negligence or wilful misconduct of such indemnified
person. Notwithstanding the foregoing, each of the Trustee and the Tri-State
Securities Intermediary shall have the right to defend itself with respect to
any action described in the immediately preceding sentence, and the Pledgor
shall pay their reasonable costs and expenses, including the costs and expenses
of their attorney, except to the extent that it is determined that such action
was attributable to the gross negligence or wilful misconduct of either the
Trustee or the Tri-State Securities Intermediary.
SECTION 11. Remedies Upon Event of Default. If any Event of Default
under the Indenture (any such Event of Default being referred to in this Pledge
Agreement as an "Event of Default") shall have occurred and be continuing:
(a) The Trustee and the Holders of the Notes shall have, in addition
to all other rights given by law or by this Pledge Agreement or the
Indenture, all of the rights and remedies with respect to the Pledged
Collateral of a secured party under the UCC.
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In addition, with respect to any Pledged Collateral that shall then be in
or shall thereafter come into the possession or custody of the Trustee,
the Trustee may sell or cause the same to be sold at any broker's board or
at public or private sale, in one or more sales or lots, at such price or
prices as the Trustee may deem best, for cash or on credit or for future
delivery, without assumption of any credit risk. The purchaser of any or
all Pledged Collateral so sold shall thereafter hold the same absolutely,
free from any claim, encumbrance or right of any kind whatsoever created
by or through the Pledgor. Unless any of the Pledged Collateral threatens,
in the reasonable judgment of the Trustee, to decline speedily in value or
is or becomes of a type sold on a recognized market, the Trustee will give
the Pledgor reasonable notice of the time and place of any public sale
thereof, or of the time after which any private sale or other intended
disposition is to be made. To the extent permitted by applicable law, any
sale of the Pledged Collateral conducted in conformity with reasonable
commercial practices of banks, insurance companies, commercial finance
companies, or other financial institutions disposing of property similar
to the Pledged Collateral shall be deemed to be commercially reasonable.
Any requirements of reasonable notice shall be met if such notice is
mailed to the Pledgor as provided in Section 15.1 hereof at least 10 days
before the time of the sale or disposition. The Trustee or any Holder of
Notes may, in its own name or in the name of a designee or nominee, buy
any of the Pledged Collateral at any public sale and, if permitted by
applicable law, at any private sale. All expenses (including court costs
and reasonable attorneys' fees, expenses and disbursements) of, or
incident to, the enforcement of any of the provisions hereof shall be
recoverable from the proceeds of the sale or other disposition of the
Pledged Collateral.
(b) All cash proceeds received by the Trustee in respect of any sale
of, collection from, or other realization upon all or any part of the
Pledged Collateral may, in the discretion of the Trustee, be held by the
Trustee as collateral for, and/or then or at any time thereafter applied
(after payment of any amounts payable to the Trustee pursuant to Section
12) in whole or in part by the Trustee for the ratable benefit of the
Holders of the Notes, against all or any part of the Obligations, in such
order as the Trustee shall elect. Any surplus of such cash or cash
proceeds held by the Trustee and remaining after payment in full of all
the Obligations shall be paid over to the Pledgor or to whomsoever may be
lawfully entitled to receive such surplus.
(c) The Pledgor further agrees to use its reasonable best efforts to
do or cause to be done all such other acts as may be necessary to make
such sale or sales of all or any portion of the Pledged Collateral
pursuant to this Section 11 valid and binding and in compliance with any
and all other applicable requirements of law. The Pledgor further agrees
that a breach of any of the covenants contained in this Section 11 will
cause irreparable injury to the Trustee and the Holders of the Notes, that
the
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Trustee and the Holders of the Notes have no adequate remedy at law in
respect of such breach and, as a consequence, that each and every covenant
contained in this Section 11 shall be specifically enforceable against the
Pledgor, and the Pledgor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants
except for a defense that no Event of Default has occurred.
(d) The Trustee may, without notice to the Pledgor except as
required by law and at any time or from time to time, charge, set-off and
otherwise apply all or any part of the Obligations against the Escrow
Account or any part thereof.
SECTION 12. Expenses. The Pledgor will upon demand pay to the
Trustee the amount of any and all reasonable expenses, including, without
limitation, the reasonable fees, expenses and disbursements of its counsel,
experts and agents retained by the Trustee that the Trustee may incur in
connection with (a) the review, negotiation and administration of this Pledge
Agreement, (b) the custody or preservation of, or the sale of, collection from,
or other realization upon, any of the Pledged Collateral, (c) the exercise or
enforcement of any of the rights of the Trustee and the Holders of the Notes
hereunder or (d) the failure by the Pledgor to perform or observe any of the
provisions hereof.
SECTION 13. Security Interest Absolute. All rights of the Trustee
and the Holders of the Notes, the security interests hereunder, and all
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of the Indenture, the
Notes or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or
waiver of, or any consent to, any departure from the Indenture;
(c) any taking, exchange, surrender, release or non-perfection of
any other collateral; or any taking, release or amendment or waiver from
any guaranty for all or any of the Obligations;
(d) any change, restructuring or termination of the corporate
structure or the existence of the Pledgor; or
(e) to the extent permitted by applicable law, any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, the Pledgor in respect of the Obligations or of this Pledge
Agreement.
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SECTION 14. Tri-State Securities Intermediary's Representations,
Warranties and Covenants. The Tri-State Securities Intermediary represents and
warrants that it is as of the date hereof, and it agrees that for so long as it
maintains the Escrow Account and acts as securities intermediary pursuant to
this Pledge Agreement it shall be a "Securities Intermediary" (as defined in the
UCC and in 31 C.F.R. Section 357.2) and shall be eligible to maintain, and does
maintain, a Participant's Securities Account (as defined in 31 C.F.R.
Section 357.2) in the name of the Tri-State Securities Intermediary with the
FRBNY (a "FRBNY Member Securities Account"). In furtherance of the foregoing,
the Tri-State Securities Intermediary hereby:
(a) represents and warrants that it is a corporation that in the
ordinary course of its business maintains Securities Accounts for others
and is acting in that capacity hereunder and with respect to the Escrow
Account;
(b) represents and warrants that it maintains the FRBNY Member
Securities Account with the FRBNY and that the United Stated Treasury
securities constituting the Pledged Securities transferred to the
Tri-State Securities Intermediary pursuant to Section 3(b) have been
credited to the FRBNY Member Securities Account;
(c) agrees that the Escrow Account shall be an account to which
Financial Assets may be credited, and the Tri-State Securities
Intermediary undertakes to treat the Trustee as the sole person entitled
to exercise rights that comprise (and entitled to the benefits of) such
Financial Assets, and entitled to exercise the rights of an entitlement
holder and control in the manner contemplated by the UCC, and further
agrees to identify the Trustee in the records of the Tri-State Securities
Intermediary as the sole person having a Securities Entitlement against
the Tri-State Securities Intermediary with respect to the Escrow Account
and all Financial Assets credited thereto;
(d) hereby represents that it has not granted, and covenants that so
long as it acts as Tri-State Securities Intermediary hereunder it shall
not grant, control (including without limitation, "control" as defined in
UCC Section 9-115(1)(e)) over or with respect to any Pledged Collateral
credited to the Escrow Account from time to time to any other Person other
than the Trustee;
(e) covenants that in its capacity as Tri-State Securities
Intermediary hereunder and with respect to the Escrow Account, it shall
not take any action inconsistent with, and represents and covenants that
it is not and so long as this Pledge Agreement remains in effect will not
become party to any agreement, the terms of which are inconsistent with
the provisions of this Pledge Agreement;
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(f) agrees, with the other parties to this Pledge Agreement, that
any item of property credited to the Escrow Account shall be treated as a
Financial Asset;
(g) agrees, with the other parties to this Pledge Agreement, so long
as it serves as Tri-State Securities Intermediary pursuant to this Pledge
Agreement, to maintain the Escrow Account as a Securities Account and
maintain appropriate books and records in respect thereof in accordance
with its usual procedures applicable to its role as Securities
Intermediary;
(h) agrees, with the other parties to this Pledge Agreement, that
the Tri-State Securities Intermediary's jurisdiction, for purposes of UCC
Section 8-110(e) and 31 C.F.R. 357.11(b) as it pertains to this Pledge
Agreement, the Escrow Account and Security Entitlements relating thereto,
shall be the State of New York.
SECTION 15. Miscellaneous Provisions.
Section 15.1. Notices. Any notice or communication given hereunder
shall be sufficiently given if in writing and delivered in person or mailed by
first class mail, commercial courier service or telecopier communication,
addressed as follows:
if to the Pledgor:
Tri-State Outdoor Media Group, Inc.
0000 Xxxxxxx 00 Xxxxx
Xxxxxx, Xxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Chief Financial Officer
if to the Trustee:
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 0000
Fax: 000-000-0000
Attention: Corporate Finance Department
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if to the Tri-State Securities Intermediary:
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 0000
Fax: 000-000-0000
Attention: Corporate Finance Department
Section 15.2. No Adverse Interpretation of Other Agreements. This
Pledge Agreement may not be used to interpret another pledge, security or debt
agreement of the Pledgor or any subsidiary thereof. No such pledge, security or
debt agreement (other than the Indenture) may be used to interpret this Pledge
Agreement.
Section 15.3. Severability. The provisions of this Pledge Agreement
are severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Pledge Agreement in any jurisdiction.
Section 15.4. Headings. The headings in this Pledge Agreement have
been inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 15.5. Counterpart Originals. This Pledge Agreement may be
signed in two or more counterparts, each of which shall be deemed an original,
but all of which shall together constitute one and the same agreement.
Section 15.6. Benefits of Pledge Agreement. Nothing in this Pledge
Agreement, express or implied, shall give to any person, other than the parties
hereto and their successors hereunder, and the Holders of the Notes, any benefit
or any legal or equitable right, remedy or claim under this Pledge Agreement.
Section 15.7. Amendments, Waivers and Consents. Any amendment or
waiver of any provision of this Pledge Agreement and any consent to any
departure by the Pledgor from any provision of this Pledge Agreement shall be
effective only if made or duly given in compliance with all of the terms and
provisions of the Indenture, and neither the Trustee nor any Holder of Notes
shall be deemed, by any act, delay, indulgence, omission or otherwise, to have
waived any right or remedy hereunder or to have acquiesced in any Default or
Event of Default (as defined herein) or in any breach of any of the terms and
conditions hereof. Consistent with the foregoing, this Pledge Agreement may be
amended, its provisions may be
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waived and departures from its provisions may be consented to by action of the
Pledgor and the Trustee, and (if applicable) the Holders of the Notes, as
provided in the Indenture, and no such amendment, waiver or consent shall
require any action or approval by the Initial Purchasers. Failure of the Trustee
or any Holder of Notes to exercise, or delay in exercising, any right, power or
privilege hereunder shall not preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. A waiver by the Trustee or
any Holder of Notes of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy that the Trustee or such Holder
of Notes would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any rights or remedies provided by law.
Section 15.8. Interpretation of Agreement. All terms not defined
herein or in the Indenture shall have the meaning set forth in the UCC or 31
C.F.R. 357.2, except where the context otherwise requires. Acceptance of or
acquiescence in a course of performance rendered under this Pledge Agreement
shall not be relevant to determine the meaning of this Pledge Agreement even
though the accepting or acquiescing party had knowledge of the nature of the
performance and opportunity for objection.
Section 15.9. Continuing Security Interest; Termination. (a) This
Pledge Agreement shall create a continuing security interest in and to the
Pledged Collateral and shall, unless otherwise provided in this Pledge
Agreement, remain in full force and effect until the payment in full in cash of
the Obligations. This Pledge Agreement shall be binding upon the Pledgor, its
transferees, successors and assigns, and shall inure, together with the rights
and remedies of the Trustee hereunder, to the benefit of the Trustee, the
Holders of the Notes and their respective successors, transferees and assigns.
(b) This Pledge Agreement (other than the Pledgor's obligations
under Sections 10 and 12) shall terminate upon the payment in full in cash of
the Obligations or if the Company shall become obligated under the Indenture to
redeem all of the outstanding Notes and such Notes shall have been redeemed or
upon the release of the Pledged Collateral pursuant to the provisions of
paragraph 4(d). At such time, the Trustee shall, pursuant to a Company Order,
reassign and redeliver to the Pledgor all of the Pledged Collateral hereunder
that has not been sold, disposed of, retained or applied by the Trustee in
accordance with the terms of this Pledge Agreement and the Indenture and take
all actions that are necessary to release the security interest created by this
Pledge Agreement in and to the Pledged Collateral, including the execution and
delivery of all termination statements necessary to terminate any financing or
continuation statements filed with respect to the Pledged Collateral. Such
reassignment and redelivery shall be without warranty by or recourse to the
Trustee in its capacity as such, except as to the absence of any Liens on the
Pledged Collateral created by or arising through the Trustee, and shall be at
the reasonable expense of the Pledgor.
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Section 15.10. Survival of Representations and Covenants. All
representations, warranties and covenants of the Pledgor contained herein shall
survive the execution and delivery of this Pledge Agreement, and shall terminate
only upon the termination of this Pledge Agreement.
Section 15.11. Waivers. The Pledgor waives presentment and demand
for payment of any of the Obligations, protest and notice of dishonor or default
with respect to any of the Obligations, and all other notices to which the
Pledgor might otherwise be entitled, except as otherwise expressly provided
herein or in the Indenture.
Section 15.12. Authority of the Trustee and the Tri-State Securities
Intermediary. (a) The Trustee and the Tri-State Securities Intermediary shall
have the right to exercise all powers hereunder that are specifically granted to
the Trustee and the Tri-State Securities Intermediary, respectively, by the
terms hereof, together with such powers as are reasonably incident hereto. Each
of the Trustee and the Tri-State Securities Intermediary may perform any of its
duties hereunder or in connection with the Pledged Collateral by or through
agents or employees and shall be entitled to retain counsel and to act in
reliance upon the advice of counsel concerning all such matters. Except as
otherwise expressly provided in this Pledge Agreement or the Indenture, none of
the Trustee, the Tri-State Securities Intermediary or any director, officer,
employee, attorney or agent of the Trustee or the Tri-State Securities
Intermediary shall be liable to the Pledgor for any action taken or omitted to
be taken by the Trustee or the Tri-State Securities Intermediary, in its
capacity as Trustee or the Tri-State Securities Intermediary, hereunder, except
for its own gross negligence or willful misconduct, and neither the Trustee nor
the Tri-State Securities Intermediary shall be responsible for the validity,
effectiveness or sufficiency hereof or of any document or security furnished
pursuant hereto. Each of the Trustee and the Tri-State Securities Intermediary
and their directors, officers, employees, attorneys and agents may conclusively
rely on any communication, instrument or document believed by it or them to be
genuine and correct and to have been signed or sent by the proper person or
persons.
(b) The Pledgor acknowledges that the rights and responsibilities of
the Trustee under this Pledge Agreement with respect to any action taken by the
Trustee or the exercise or non-exercise by the Trustee of any option, right,
request, judgment or other right or remedy provided for herein or resulting or
arising out of this Pledge Agreement shall, as between the Trustee and the
Holders of the Notes, be governed by the Indenture and by such other agreements
with respect thereto as may exist from time to time among them, but, as between
the Trustee and the Pledgor, the Trustee shall be conclusively presumed to be
acting as agent for the Holders of the Notes with full and valid authority so to
act or refrain from acting, and the Pledgor shall not be obligated or entitled
to make any inquiry respecting such authority.
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(c) The Trustee and the Tri-State Securities Intermediary undertake
to perform such duties and only such duties as are specifically set forth in
this Pledge Agreement, and no implied covenants or obligations shall be read
into this Pledge Agreement against the Trustee or the Tri-State Securities
Intermediary.
(d) No provision of this Pledge Agreement shall require the Trustee
or the Tri-State Securities Intermediary to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights and powers.
(e) The Trustee and the Tri-State Securities Intermediary may
consult with counsel of its selection and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(f) The Trustee and the Tri-State Securities Intermediary may
execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys and the Trustee and the
Tri-State Securities Intermediary shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 15.13. Final Expression. This Pledge Agreement, together
with the Indenture and any other agreement executed in connection herewith, is
intended by the parties as a final expression of this Pledge Agreement and is
intended as a complete and exclusive statement of the terms and conditions
thereof.
Section 15.14. Rights of Holders of the Notes. No Holder of Notes
shall have any independent rights hereunder other than those rights granted to
individual Holders of the Notes pursuant to Section 508 of the Indenture;
provided that nothing in this subsection shall limit any rights granted to the
Trustee under the Notes or the Indenture.
Section 15.15. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL; WAIVER OF DAMAGES. (a) THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. ANY DISPUTE
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO, THE RELATIONSHIP
ESTABLISHED BETWEEN THE PLEDGOR, THE TRUSTEE AND THE HOLDERS OF THE NOTES IN
CONNECTION WITH THIS PLEDGE AGREEMENT AND WHETHER ARISING IN CONTRACT, TORT,
EQUITY OR OTHERWISE, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. NOTWITHSTANDING THE FOREGOING, THE MATTERS
IDENTIFIED IN 31 C.F.R.
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PART 357, 61 FED. REG. 43626 (AUG. 23, 1996) SHALL BE GOVERNED SOLELY BY
THE LAWS SPECIFIED THEREIN.
(b) THE PLEDGOR HEREBY APPOINTS CT CORPORATION SYSTEM, 0000
XXXXXXXX, XXX XXXX, XXX XXXX 00000 AS ITS AGENT FOR SERVICE OF PROCESS IN ANY
SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS PLEDGE AGREEMENT AND FOR ACTIONS
BROUGHT UNDER U.S. FEDERAL OR STATE SECURITIES LAWS BROUGHT IN ANY FEDERAL OR
STATE COURT LOCATED IN THE CITY OF NEW YORK AND AGREES TO SUBMIT TO THE
JURISDICTION OF ANY SUCH COURT.
(c) THE PLEDGOR AGREES THAT THE TRUSTEE SHALL, IN ITS CAPACITY AS
TRUSTEE OR IN THE NAME AND ON BEHALF OF ANY HOLDER OF NOTES, HAVE THE RIGHT, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST THE PLEDGOR OR THE
PLEDGED COLLATERAL IN A COURT IN ANY LOCATION REASONABLY SELECTED IN GOOD FAITH
(AND HAVING PERSONAL OR IN REM JURISDICTION OVER THE PLEDGOR OR THE PLEDGED
COLLATERAL, AS THE CASE MAY BE) TO ENABLE THE TRUSTEE TO REALIZE ON SUCH PLEDGED
COLLATERAL, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
THE TRUSTEE. THE PLEDGOR AGREES THAT IT WILL NOT ASSERT ANY COUNTERCLAIMS, SET
OFFS OR CROSSCLAIMS IN ANY PROCEEDING BROUGHT BY THE TRUSTEE TO REALIZE ON SUCH
PROPERTY OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE TRUSTEE,
EXCEPT FOR SUCH COUNTERCLAIMS, SET OFFS OR CROSSCLAIMS WHICH, IF NOT ASSERTED IN
ANY SUCH PROCEEDING, COULD NOT OTHERWISE BE BROUGHT OR ASSERTED. THE PLEDGOR
WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN THE CITY
OF NEW YORK ONCE THE TRUSTEE HAS COMMENCED A PROCEEDING DESCRIBED IN THIS
PARAGRAPH INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS.
(d) THE PLEDGOR AGREES THAT NEITHER ANY HOLDER OF NOTES NOR (EXCEPT
AS OTHERWISE PROVIDED IN THIS PLEDGE AGREEMENT OR THE INDENTURE) THE TRUSTEE NOR
THE TRI-STATE SECURITIES INTERMEDIARY SHALL HAVE ANY LIABILITY TO THE PLEDGOR
(WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY THE
PLEDGOR IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO, THE
TRANSACTIONS CONTEMPLATED AND THE RELATIONSHIP ESTABLISHED BY THIS PLEDGE
AGREEMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH,
UNLESS IT IS DETERMINED
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BY A FINAL AND NONAPPEALABLE JUDGMENT OF A COURT THAT IS BINDING ON THE TRUSTEE,
THE TRI-STATE SECURITIES INTERMEDIARY OR SUCH HOLDER OF NOTES, AS THE CASE MAY
BE, THAT SUCH LOSSES WERE THE RESULT OF ACTS OR OMISSIONS ON THE PART OF THE
TRUSTEE, THE TRI-STATE SECURITIES INTERMEDIARY OR SUCH HOLDERS OF NOTES, AS THE
CASE MAY BE, CONSTITUTING BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(e) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLEDGOR WAIVES
THE POSTING OF ANY BOND OTHERWISE REQUIRED OF THE TRUSTEE OR ANY HOLDER OF NOTES
IN CONNECTION WITH ANY JUDICIAL PROCESS OR PROCEEDING TO ENFORCE ANY JUDGMENT OR
OTHER COURT ORDER PERTAINING TO THIS PLEDGE AGREEMENT OR ANY RELATED AGREEMENT
OR DOCUMENT ENTERED IN FAVOR OF THE TRUSTEE OR ANY HOLDER OF NOTES, OR TO
ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER OR PRELIMINARY OR
PERMANENT INJUNCTION, THIS PLEDGE AGREEMENT OR ANY RELATED AGREEMENT OR DOCUMENT
BETWEEN THE PLEDGOR ON THE ONE HAND AND THE TRUSTEE AND/OR THE HOLDERS OF THE
NOTES ON THE OTHER HAND.
[The remainder of this page left intentionally blank.]
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IN WITNESS WHEREOF, the Pledgor, the Trustee and the Tri-State
Securities Intermediary have each caused this Pledge Agreement to be duly
executed and delivered as of the date first above written.
Pledgor:
TRI-STATE OUTDOOR MEDIA GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx
____________________________________
Name: Xxxxxxx X. Xxxxx
Title: President
Chief Executive Officer
Trustee:
IBJ XXXXXXXX BANK & TRUST COMPANY
By: /s/ Xxxxxxx Xxxxxxx
____________________________________
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
Tri-State Securities Intermediary:
IBJ XXXXXXXX BANK & TRUST COMPANY
By: /s/ Xxxxxxx Xxxxxxx
____________________________________
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
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OFFICERS' CERTIFICATE
Pursuant to Section 3(f) of the Pledge Agreement (the "Pledge
Agreement") dated as of May 15, 1998 between Tri-State Outdoor Media Group, Inc.
(the "Pledgor") and IBJ Xxxxxxxx Bank & Trust Company, trustee (the "Trustee")
for the holders of the 11% Senior Notes due 2008 (the "Notes") of the Pledgor,
and IBJ Xxxxxxxx Bank & Trust Company, as securities intermediary (the
"Tri-State Securities Intermediary"), the undersigned officer of the Trustee, on
behalf of the Trustee, and the undersigned officer of the Tri-State Securities
Intermediary, on behalf of the Tri-State Securities Intermediary, make the
following certifications to the Pledgor and the initial purchasers of the Notes.
Capitalized terms used and not defined in this Certificate have the meanings set
forth or referred to in the Pledge Agreement.
1. Substantially contemporaneously with the execution and delivery
of this Certificate, the Trustee has established with the Tri-State Securities
Intermediary, as Securities Intermediary, the Escrow Account in the name of the
Trustee and for the benefit of the Trustee and the Holders of the Notes. The
Tri-State Securities Intermediary has acquired a Security Entitlement to the
United States Treasury securities identified in Exhibit A to this Certificate
(the "Pledged Securities") from the FRBNY and holds a Security Entitlement
thereto in the FRBNY Member Security Account. The Tri-State Securities
Intermediary has made appropriate book entries in its records establishing that
the Pledged Securities and the Trustee's Securities Entitlement thereto have
been credited to and are held in the Escrow Account for the benefit of the
Trustee and the ratable benefit of the Holders of the Notes.
2. The Trustee has established and maintained and will maintain the
Escrow Account with the Tri-State Securities Intermediary and all Securities
Entitlements and other positions carried in the Escrow Account solely in its
capacity as Trustee, and the Trustee and the Tri-State Securities Intermediary
have not asserted and will not assert any claim to or interest in the Escrow
Account or any such Securities Entitlements or other positions except in such
capacity.
3. The Trustee and the Tri-State Securities Intermediary have
acquired their Security Entitlements to the Pledged Securities for value and
without notice of any adverse claim thereto. Without limiting the generality of
the foregoing, the Pledged Securities are not and the Tri-State Securities
Intermediary's and the Trustee's Security Entitlements to the Pledged Securities
are not, to their knowledge, subject to any Lien granted by either of them in
favor of any Securities Intermediary (including, without limitation, the FRBNY)
through which the Trustee derives its Security Entitlement to the Pledged
Securities.
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4. Neither the Tri-State Securities Intermediary nor the Trustee has
caused or permitted the Pledged Securities or any Security Entitlement thereto
to become subject to any Lien created by or arising through either of the
Trustee or the Tri-State Securities Intermediary.
IN WITNESS WHEREOF, the undersigned officers have executed this
Certificate on behalf of the Trustee and the Tri-State Securities Intermediary,
respectively, this 20th day of May, 1998.
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee
By: /s/ Xxxxxxx Xxxxxxx
______________________________
Name: Xxxxxxx Xxxxxxx
Title: AVP
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Tri-State Securities Intermediary
By: /s/ Xxxxxxx Xxxxxxx
______________________________
Name: Xxxxxxx Xxxxxxx
Title: AVP
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EXHIBIT A
PLEDGED SECURITIES
Schedule of U.S. Government Obligations
Pledged under the Pledge Agreement
Principal
Security CUSIP No. Amount Maturity Cost at Closing
-------- --------- ---------- -------- ---------------
Xxxxxx Xxxxxx 000000XX0X $5,348,000 November 15,1998 $5,209,647.24
Xxxxxxxx Xxxxx
Xxxxxx
Xxxxxx Xxxxxx 000000XX0X $5,500,000 May 15, 1999 $5,210,150.00
Treasury Strip
Coupon
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EXHIBIT B
ACCOUNTANT'S CERTIFICATE
26
RIDER TO THE PLEDGE AGREEMENT
Schedule II
PLEDGED SECURITIES YIELD MATURITY PURCHASE PRICE ACCRUED CASH FLOW TOTAL INTEREST NET
DATE INTEREST AVAILABLE PAYMENT CASH
(1) (2) (3) FLOW
(4)
------------------------------------------------------------------------------------------------------------------------------------
US Treasury Notes Strip 5.463% 11/15/98 $5,209,647.24 $138,352.76 $ 5,348,000.00 $5,348,000.00 $ 5,347,222.22 $777.78
Coupons
US Treasury Strip Coupons 5.642% 5/15/99 $5,210,150.00 $289,850.00 $ 5,500,000.00 $5,500,777.78 $ 5,500,000.00 $777.78
$10,848,000.00 $10,847,222.22
-------------- --------------
(1) Coupon interest is calculated assuming a 180-day semi-annual period and a
360-day year.
(2) Total Available for each period is equal to the Cash Flow for the period
plus Net Cash Flow from the previous period.
(3) See Schedule I attached hereto
(4) Net Cash Flow for each period is equal to Total Available for the period
less the Interest Payment for each period.
