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CHESAPEAKE SECURITIES, INC.
PRIMARY PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (the "Primary Pledge Agreement") is executed as
of February ___, 1996, by and between Chesapeake Securities, Inc. (the
"Company") and Banque Paribas, as agent (the "Agent") for itself, the Co-Agents
and the Banks under the Credit Agreement referred to hereafter, any L/C
Providers (as defined in the Credit Agreement) and any Interest Rate Providers
(as defined in the Credit Agreement).
W I T N E S S E T H:
WHEREAS, Jacor Communications, Inc. ("Jacor") is entering into that
certain Credit Agreement dated as of the date hereof with the Banks (as defined
therein), the Co-Agents (as defined therein) and the Agent (as modified,
supplemented, amended, extended, supplemented or restated from time to time, the
"Credit Agreement");
WHEREAS, the Credit Agreement requires Jacor to enter into certain Rate
Hedging Agreements (as defined in the Credit Agreement) with Interest Rate
Providers;
WHEREAS, the Company is a wholly-owned subsidiary of Jacor;
WHEREAS, the Company expects to realize substantial direct and indirect
benefits as a result of Jacor entering into the Credit Agreement and the Rate
Hedging Agreements; and
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WHEREAS, execution and delivery of this Primary Pledge Agreement is a
condition precedent to the availability of credit under the Credit Agreement;
NOW THEREFORE, in consideration of the foregoing and of the direct and
indirect benefits to be received by the Company, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to such terms in the Credit
Agreement. The following term shall have the following meaning:
"Obligations" means, as to each Guarantor, all obligations of such
Guarantor under the Subsidiary Guaranty executed by such Guarantor including,
without limitation, all obligations of such Guarantor pursuant to Section 1 of
such Subsidiary Guaranty.
2. Pledge and Security Interest; Deposit of Certificates for Pledged
Stock.
(a) Pledge and Security Interest. In order to secure the full and
complete payment and performance 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 the Interest Rate Providers, equally and ratably in
proportion to the total Obligations owing at any time to the Agent, the
Co-Agents, the Banks, any L/C Providers and the Interest Rate Providers, a
continuing lien and security interest in (a) all of the outstanding shares of
capital stock of each Subsidiary of the Company 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 in respect of or in
exchange for any or all of the Pledged Stock and any
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other property substituted or exchanged therefor and (c) 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 foregoing (all of the property and
rights described in the foregoing clauses (a) through (c) being herein
collectively called the "Collateral");
(b) The Company shall deliver to the Agent concurrently with the
execution of this Primary Pledge Agreement the certificates representing the
Pledged Stock, endorsed in blank or accompanied by appropriate instruments of
transfer or assignments in blank, for the equal and ratable benefit of the
Agent, the Co- Agents, the Banks, any L/C Providers and the Interest Rate
Providers. The Agent shall not have any duty to assure that all certificates
representing the Pledged Stock have been delivered to it or any obligation
whatsoever with respect to the care, custody or protection of any certificates
which may be delivered to it except only to exercise the same care in physically
safekeeping such certificates 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 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.
3. 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, the Company is
duly incorporated, validly
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existing and in good standing 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 Enforce- ability. The execution and
delivery by the Company of this Primary Pledge Agreement have been duly
authorized by proper corporate proceedings, and this Primary 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 by general
principles of equity. All of the shares of the Pledged Stock are duly
authorized, validly issued, fully paid and non-assessable.
(c) Transferability of Pledged Stock; Title Matters. The Pledged
Stock 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 Primary 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 Primary Pledge Agreement against the claims of all Persons and
maintain and preserve such lien at all times during the terms of this Primary
Pledge Agreement. Upon the delivery to the Agent of the Pledged Stock the
security interest in the Pledged Stock granted to the Agent hereunder will
constitute a perfected security interest therein superior and prior to
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all Liens other than Liens permitted by Section 6.17 of the Credit Agreement.
(d) Ownership of Pledged Stock. The Company is the holder of record
and the sole beneficial owner of 100% of the issued and outstanding voting
capital of each Subsidiary of the Company.
(e) Title and Power to Pledge the Pledged Stock. The Company has
good and marketable title to the Pledged Stock and has all requisite rights,
power, and authority to execute, deliver and comply with the terms of this
Primary 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 6 hereof) is
required in connection with the execution, delivery and performance of this
Primary Pledge Agreement which has not been obtained.
4. Covenants. So long as any Obligations remain outstanding, the
Company covenants and agrees with the Agent, the Co-Agents, the Banks, any L/C
Providers 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 of 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 2 hereof.
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(b) Applications, Approval 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 Primary 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 Provider
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 Primary 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
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 Provider 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', each L/C Provid- er's and each Interest Rate Provider's remedy at law
for failure of the Company to comply with the provisions of this Section 4(b)
would be inadequate and that such failure would not be adequately compensable in
damages, the Company agrees that the covenants of this Section 4(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
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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; 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 Primary 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 Primary 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 Primary Pledge
Agreement.
(e) Indebtedness; etc. The Company will not permit any Subsidiary of
the Company to incur any Indebtedness or permit any Liens (other than under the
Subsidiary Security Agreement, dated as of the date hereof, as amended) to exist
in respect of any such Subsidiary's assets except as permitted by the Credit
Agreement.
5. Rights of Company, Agent, Co-Agents, the Banks, any L/C Providers
and any Interest Rate Providers.
(a) Exercise of Stockholder Rights.
(i) Subject to the provisions of Section 6 hereof, unless and
until a Default shall occur and be continuing or a default under any of the
L/C
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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 stock dividends on or
subdivision, combination, or re- classification or the outstanding capital
stock or 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, 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 Primary Pled-
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ge Agreement. Upon the occurrence of a Default, 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 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 Provider and any Interest Rate Provider 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. 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 any
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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, shall have, subject to Section 6 hereof, the right, (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, 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 plan or for the accomplishment
thereof; and no such disposition, exchange, substitution, cancellation, or
surrender shall be deemed to constitute a release of the Col-
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lateral from the lien of this Primary Pledge Agreement.
(b) Right of Sale after Default. 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 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 6 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. Each of
the Agent, the Co- Agents, the Banks, the Interest Rate Providers and the
L/C Providers are also hereby authorized, but not obligated, to take such
actions, give
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such notices, obtain such consents, and do such other things as they may
deem required or appropriate 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 Agent,
the Co-Agents, the Banks, any L/C Providers and any Interest Rate
Providers, may in its discretion approach a restricted number of potential
purchasers and that 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
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in or evaluates stock of the type constituting the Collateral as to the
price obtainable in a commercially reasonable 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 Provider 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 Banks and the L/C Providers are authorized, but not
obligated, to limit prospective purchasers to the extent deemed necessary
or desirable by the Agent, the Co-Agents, the Banks and the L/C Providers
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
Banks and the L/C Providers, 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
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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 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 Co-Agents, the Agent, any L/C Providers, any
Interest Rate Provider and 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
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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 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 6 hereof, upon
the occurrence and during the continuance of a Default or a default under any of
the Citicasters L/C Documents (and in the case of such a default, subject to 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 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 of other disposition of the
Collateral, or any part thereof, under this Section 5, 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 Primary
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
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Bank, the Agent, each Co-Agent and each L/C Provider in accordance 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 each
L/C Providers;
(iii) THIRD, to payment of the principal of the Obligations
owing to the Banks, any Bank, any L/C Provider or any Interest Rate
Provider, 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, 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 and the L/C Providers with respect to the grant,
foreclosure and enforcement of the security interest and lien granted
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hereby and with respect to any action permitted hereunder (i) may, in the case
of a Default, be exercised solely by the Agent acting with the concurrence of
the Required Banks and (ii) may, in the case of a default under any of the
Citicasters L/C Documents, subject to any intercreditor agreement in effect from
time to time, be exercised solely by the Agent acting with the concurrence of
the L/C Providers.
6. Control; Limitation of Rights.
(a) Notwithstanding anything herein to the contrary, this Primary
Pledge Agreement, the other Loan 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 Primary 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 the Interest
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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 extent required
thereby, subject to the prior approval of the FCC.
(c) Subject to Section 6(e) hereof, if a Default shall have occurred
and be continuing or if a default under any of 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 6, 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 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 Primary 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
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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 Agent's, the Co-Agents', the Banks', each L/C
Provider's and each Interest Rate Providers' 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 6 and that such failure would not
be adequately compensable in damages, and therefore agrees that the agreements
contained in this Section 6 may be specifically enforced.
(e) Notwithstanding anything to the contrary contained in this
Primary Pledge Agreement or in any other Loan Document, neither the Agent, any
Co-Agent, any Bank, any L/C Provider nor any Interest Rate Provider shall,
without first obtaining the approval of the FCC, take any action pursuant to
this Primary 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.
7. Miscellaneous.
(a) Term. This Primary 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
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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 terms of Section 5(a)(i) hereof, shall be deemed
released from the lien of this Primary Pledge Agreement and shall be held by the
Company (or any transferee of the Company) free and clear of the lien created by
this Primary Pledge Agreement. Upon termination of this Primary Pledge Agreement
in accordance with the provisions of Section 7(a) hereof, the Agent, the
Co-Agents, 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 deliver, 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), 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, 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,
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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. The Company expressly waives any
and all defenses now or hereafter arising or asserted by reason of (a) any
disability or other defense of any of the Company or any other Person with
respect to the Obligations, (b) the unenforceability or invalidity of any
security or guaranty for the Obligations or the lack of perfection or continuing
perfection or failure of priority of any security for the Obligations, (c) the
cessation for any cause whatsoever of the liability of any of the Company or any
other Person (other than by reason of the full payment and performance of all
Obligations), (d) any failure of the Agent to marshal assets in favor of any
Person, (e) any failure of the Agent to give notice of sale or other disposition
to any Person or any defect in any notice that may be given in connection with
any sale or disposition, (f) any act or omission of the Agent, any Co-Agent, any
Bank, any L/C Provider or any Interest Rate Provider or others that directly or
indirectly results in or aids the discharge or release of any of the Company or
any other Person of the Obligations or any other security or guaranty therefor
by operation of Law or otherwise, (g) any law which provides that the obligation
of a surety or guarantor must neither be larger in amount nor in other respects
more burdensome than that of the principal or which reduces a surety's or
guarantor's obligation in proportion to the principal obligations or (h) any
other circumstance which might otherwise constitute a defense available to, or a
discharge of, the Company, whether or not the Company shall have had notice or
knowledge of any act or omission referred to in the foregoing clauses (a)
through (h) of this paragraph. The Company expressly waives all setoffs and
counterclaims and all presentments, demands for payment or performance, notices
of nonpayment or nonperformance, protests, notices of protest, notices of
dishonor and all other notices or de-
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mands of any kind or nature whatsoever with respect to the Obligations, and all
notices of acceptance of this Primary Pledge Agreement or of the existence,
creation or incurring of new or additional Obligations.
(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 Primary Pledge Agreement or a carbon,
photographic, or other reproduction of this Primary Pledge Agreement, as a
financing statement, but the failure of the Agent to do so shall not impair the
validity or enforceability of this Primary Pledge Agreement.
(e) Amendments. This Primary 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 PRIMARY 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 Primary 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 permitted to be given under this
Primary 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 a copy to ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 Co-Agents, 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) Waiver of Subrogation. The Company hereby irrevocably waives any
claim or other rights which it may now or hereafter acquire against Jacor or any
other Person that arise from the existence, payment, performance or enforcement
of the Company's obligations under this Primary Pledge Agreement or any other
Loan Document, including any right of subrogation, reimbursement, exoneration,
or indemnification, any right to participate in any claim or remedy of the
Agent, any Co- Agent, any Bank, any L/C Provider or any Interest Rate Provider
against Jacor or any other Person or any collateral which the Agent now has or
hereafter acquires, whether or not such claim, remedy or right arises in
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equity, or under contract, statute or common law, including the right to take or
receive from Jacor or any other Person, directly or indirectly, in cash or other
property or by set-off or in any manner, payment or security on account of such
claim or other rights. If any amount shall be paid to the Company in violation
of the preceding sentence and the Obligations shall not have been paid in cash
in full and the Commitments have not been terminated, such amount shall be
deemed to have been paid to the Company for the benefit of, and held in trust
for, the Agent, the Co-Agents, the Banks, any L/C Providers and any Interest
Rate Providers, and shall forthwith be paid to the Agent to be credited and
applied upon the Obligations, whether matured or unmatured. The Company
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by the Credit Agreement and the Rate Hedging
Agreements and that the waiver set forth in this Section is knowingly made in
contemplation of such benefits.
(j) Counterparts. This Primary 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 Primary Pledge
Agreement by signing any such counterpart. This Primary Pledge Agreement shall
be effective when it has been executed by the Company and the Agent.
(k) Loan Document. This Primary 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.
(l) Section Captions. Section captions used in this Primary Pledge
Agreement are for convenience of reference only and shall not affect the
construction of this Primary Pledge Agreement.
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(m) Severability. Wherever possible each provision of this Primary
Pledge Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Primary 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
Primary Pledge Agreement.
(n) WAIVER OF JURY TRIAL. EACH OF THE AGENT AND THE COMPANY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS PRIMARY PLEDGE AGREEMENT. COMPANY ACKNOWLEDGES AND
AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION
AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT, THE CO-AGENTS,
THE BANKS, ANY L/C PROVIDERS AND ANY INTEREST RATE PROVIDERS ENTERING INTO THE
CREDIT AGREEMENT, THE CITICASTERS L/C DOCUMENTS AND ANY RATE HEDGING AGREEMENTS,
RESPECTIVELY.
8. 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 Primary Pledge
Agreement as of the date first above written.
CHESAPEAKE SECURITIES, INC.
By:
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Title:
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1300 PNC Center
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: President
BANQUE PARIBAS,
as Agent
By:
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Title:
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