EXHIBIT (d)(13)
COMPANY PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of _____, ____ made by CITADEL
BROADCASTING COMPANY, a Nevada corporation (the "PLEDGOR"), in favor of THE
CHASE MANHATTAN BANK ("CHASE"), as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT") for the lenders (the "LENDERS") parties to the Credit
Agreement, dated as of _______, 2001, (as amended, supplemented or otherwise
modified from time to time, the "CREDIT AGREEMENT"), among the Pledgor, FLCC
ACQUISITION CORP. ("ACQUISITION CO."), a Nevada corporation to be merged into
CITADEL COMMUNICATIONS CORPORATION, a Nevada corporation ("CITADEL
COMMUNICATIONS"), FLCC HOLDINGS, INC., a Delaware corporation ("HOLDCO"), the
Administrative Agent, the Lenders and The Bank of Nova Scotia and First Union
National Bank as the syndication agents (in such capacity collectively, the
"SYNDICATION AGENTS").
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to make loans to, and the Issuing Lenders have agreed to issue
certain letters of credit for the account of the Pledgor upon the terms and
subject to the conditions set forth therein;
WHEREAS, the Pledgor is the legal and beneficial owner of the shares
of Pledged Stock (as hereinafter defined) issued by the Persons named under the
caption "Issuer" on Schedules I and II hereto;
WHEREAS, the Pledgor is the legal and beneficial owner of the rights
in the LLC Collateral (as hereinafter defined) issued by the Persons named under
the caption "LLC" on Schedule III hereto;
WHEREAS, the Pledgor is the legal and beneficial owner of the
Note Collateral (as hereinafter defined); and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective loans to, and the Issuing Lenders to issue
certain letters of credit for the account of the Pledgor under the Credit
Agreement that the Pledgor shall have executed and delivered this Pledge
Agreement to the Administrative Agent for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders to make their respective loans to, and the Issuing Lenders to issue
certain letters of credit for the account of, the Pledgor under the Credit
Agreement, the Pledgor hereby agrees with the Administrative Agent, for the
ratable benefit of the Lenders, as follows:
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1. DEFINED TERMS. Unless otherwise defined herein, terms that are
defined in the Credit Agreement and used herein are so used as so defined; and
the following terms which are defined in the Uniform Commercial Code in effect
in the State of New York on the date hereof are used herein as so defined:
Accounts, Chattel Paper, General Intangibles and Instruments; and the following
terms shall have the following meanings:
"CODE": the Uniform Commercial Code from time to time in effect in
the State of New York.
"COLLATERAL": the collective reference to the LLC Collateral, the
Note Collateral and the Pledged Stock, and all Proceeds thereof.
"ISSUER": with respect to any Pledged Stock, the Issuers from time
to time listed on Schedules I and II hereto as the issuer of such Pledged Stock.
"LLC": a limited liability company listed on Schedule III as the
issuer of membership interests pledged as LLC Collateral hereunder.
"LLC COLLATERAL": all of the following property now owned or at any
time hereafter acquired by the Pledgor or in which the Pledgor now has or from
time to time may have any right, title or interest:
(a) its membership interest in each LLC and all of its rights as a
member under the limited liability company agreement of such LLC
(including, without limitation, all of its right, title and interest as a
member to participate in the operation and management of such LLC and all
of its right, title and interest as a member to property, assets,
membership interest and distributions under the limited liability company
agreement of such LLC);
(b) all Accounts arising out of its membership interest in each LLC
and the limited liability company agreement of such LLC;
(c) all General Intangibles arising out of its membership interest
in each LLC and the limited liability company agreement of such LLC;
(d) all present and future rights of the Pledgor to receive any
payment of money or other distribution or payment from each LLC on account
of its membership interest in such LLC and its rights as a member under
the limited liability company agreement of such LLC;
(e) any other property of each LLC to which the Pledgor now or in
the future may be entitled in its capacity as a member of such LLC by way
of distribution, return of capital or otherwise; and
(f) to the extent not otherwise included above, all Proceeds of any
and all of the foregoing, including, without limitation, whatever is
received upon any collection, exchange, sale or other disposition of any
of the LLC Collateral, and any property into which any of the LLC
Collateral is converted, whether cash or noncash proceeds, and any
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and all other amounts paid or payable under or in connection with any of
the LLC Collateral.
"NOTE COLLATERAL": all Pledged Notes and any collateral security for
any Pledged Note and which are required to be pledged to the Administrative
Agent under the Credit Agreement.
"PLEDGE AGREEMENT": this Pledge Agreement, as amended, supplemented
or otherwise modified from time to time.
"PLEDGED NOTES": all promissory notes made by a Subsidiary of the
Pledgor in favor of the Pledgor.
"PLEDGED STOCK": all of the shares of capital stock of the Issuers
listed on Schedules I and II hereto (but not more than 65% of all shares of each
class of capital stock of the Issuers listed on Schedule II hereto) now owned or
at any time hereafter acquired by the Pledgor or in which the Pledgor now has or
may from time to time acquire any right, title or interest, together with all
stock certificates, options or rights of any nature whatsoever that may be
issued or granted by the Issuer thereof to the Pledgor while this Pledge
Agreement is in effect.
"PROCEEDS": all "proceeds" as such term is defined in Section
9-306(1) of the Code on the date hereof and, in any event, shall include,
without limitation, all dividends or other income from the Pledged Stock, all
payments and other distributions and income with respect to any Pledged Notes,
and any and all collections on the foregoing or distributions with respect to
the foregoing.
2. PLEDGE; GRANT OF SECURITY INTEREST. The Pledgor hereby delivers
to the Administrative Agent, for the ratable benefit of the Lenders, all of the
Pledgor's right, title and interest in the Pledged Stock, the Pledged Notes and
the LLC Collateral and hereby transfers and grants to the Administrative Agent,
for the ratable benefit of the Lenders, a first security interest in all of the
Pledgor's right, title and interest in all of the Collateral, as collateral
security for the prompt and complete payment and performance when due (whether
at the stated maturity, by acceleration or otherwise) of the Obligations.
3. RIGHTS OF THE ADMINISTRATIVE AGENT; LIMITATIONS ON THE
ADMINISTRATIVE AGENT'S OBLIGATIONS. (a) Anything herein to the contrary
notwithstanding, the Pledgor shall remain liable under the limited liability
company agreement of each LLC to observe and perform all the conditions and
obligations to be observed and performed by it thereunder, all in accordance
with and pursuant to the terms and provisions thereof. Neither the
Administrative Agent nor any Lender shall have any obligation or liability by
reason of or arising out of this Agreement or the receipt by the Administrative
Agent of any payment relating to any Collateral pursuant hereto, nor shall the
Administrative Agent or any Lender be obligated in any manner to perform any of
the obligations of the Pledgor under or pursuant to the limited liability
company agreement of any LLC or any Account or General Intangible, to make any
payment, to make any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any party under
any thereof, to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts that may have been
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assigned to it or to which it may be entitled at any time or times. Nothing
contained in this Agreement shall be construed or interpreted (i) to transfer to
the Administrative Agent or any Lender any of the obligations of a member of
such LLC or (ii) to constitute the Administrative Agent or any Lender a member
of such LLC.
(b) PROCEEDS. The Administrative Agent hereby authorizes the Pledgor
to collect all Accounts arising out of the limited liability company agreement
of each LLC in respect of its membership interest in such LLC. If required by
the Administrative Agent in a written notice to the Pledgor at any time after
the occurrence and during the continuance of an Event of Default, such Accounts
and any Proceeds, when collected by the Pledgor, shall be forthwith deposited by
the Pledgor in the exact form received, duly indorsed by the Pledgor to the
Administrative Agent if required, in a special bank account maintained by the
Administrative Agent, subject to withdrawal by the Administrative Agent only,
and, until so turned over, shall be held by the Pledgor in trust for the
Administrative Agent, segregated from other funds of the Pledgor. Any funds held
in such special bank account which have not been withdrawn and applied by the
Administrative Agent to the Obligations, shall be returned to the Pledgor by the
Administrative Agent in the event that such Event of Default is cured or waived.
4. STOCK POWERS; ENDORSEMENTS. (a) Concurrently with the delivery to
the Administrative Agent of each certificate representing one or more shares of
Pledged Stock, the Pledgor shall deliver an undated stock power covering such
certificate, duly executed in blank by the Pledgor.
(b) Concurrently with the delivery to the Administrative Agent of
any Pledged Note, the Pledgor shall deliver an undated endorsement covering the
Pledged Note, duly executed in blank by the Pledgor.
5. REPRESENTATIONS AND WARRANTIES. The Pledgor represents and
warrants that:
(a) the shares of capital stock of each of the Issuers listed on
Schedules I and II hereto which are identified as Pledged Stock on said
Schedules I and II constitute (i) all of the issued and outstanding shares
of capital stock of the Issuers listed on Schedule I hereto which are
owned by the Pledgor; and (ii) all of the issued and outstanding shares of
capital stock of the Issuers listed on Schedule II hereto which are owned
by the Pledgor (but not in excess of 65% of the issued and outstanding
shares of all classes of the capital stock of such Issuers).
(b) all the shares of Pledged Stock have been duly and validly
issued and are fully paid and nonassessable;
(c) the Pledgor is the record and beneficial owner of, and has good
title to, the Collateral, free of any and all Liens or options in favor
of, or claims of, any other Person, except the Lien created by this Pledge
Agreement; and
(d) upon (i) delivery to the Administrative Agent of the stock
certificates evidencing the Pledged Stock, (ii) delivery to the
Administrative Agent of the Pledged Notes, together with the endorsement
thereof herein provided, (iii) the recording of the security interest of
the Administrative Agent by each LLC as contemplated by Exhibits A
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and B and (iv) filing of a Uniform Commercial Code Financing Statement in
the jurisdiction referred to in Section 5(c) covering the LLC Collateral
and the Note Collateral, the Lien granted pursuant to this Pledge
Agreement will constitute a valid, perfected first priority Lien on the
Collateral (except, with respect to Proceeds, only to the extent permitted
by Section 9-306 of the Code), enforceable as such against all creditors
of the Pledgor and any Persons purporting to purchase any Collateral from
the Pledgor except in each case as enforceability may be affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing. No security agreement, financing statement or other public
notice with respect to all or any part of the Collateral is on file or of
record in any public office, except (i) such as may have been filed in
favor of the Administrative Agent pursuant to this Agreement and (ii) such
as may be terminated upon filing of termination statements delivered to
the Administrative Agent at the Closing Date.
(e) The Pledgor's chief executive office and chief place of
business, and the place where the Pledgor keeps its records concerning the
Collateral, is located at City Center West, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ or such other location as the Pledgor
shall inform the Administrative Agent in accordance with subsection 6(e).
The Pledgor agrees that the foregoing representations and warranties
shall be deemed to have been made by it on each Borrowing Date by the Pledgor
under the Credit Agreement on and as of such Borrowing Date as though made
hereunder on and as of such Borrowing Date.
6. COVENANTS. The Pledgor covenants and agrees with the
Administrative Agent and the Lenders, that, from and after the date of this
Pledge Agreement until the Obligations are paid in full, no Letters of Credit
are outstanding or not fully cash collateralized and the Commitments are
terminated:
(a) If the Pledgor shall, as a result of its ownership of the
Collateral, become entitled to receive or shall receive any stock
certificate (including, without limitation, any certificate representing a
stock dividend or a distribution in connection with any reclassification,
increase or reduction of capital or any certificate issued in connection
with any reorganization), promissory note or other instrument, option or
rights, whether in addition to, in substitution of, as a conversion of, or
in exchange for any of the Collateral, or otherwise in respect thereof,
the Pledgor shall accept the same as the agent of the Administrative Agent
and the Lenders, hold the same in trust for the Administrative Agent and
the Lenders and deliver the same forthwith to the Administrative Agent in
the exact form received, duly indorsed by the Pledgor to the
Administrative Agent, if required, together with an undated stock power or
endorsement, as appropriate, covering such certificate, note or instrument
duly executed in blank by the Pledgor and with, if the Administrative
Agent so requests, signature guarantees, to be held by the Administrative
Agent, subject to the terms hereof, as additional collateral security for
the Obligations. Any sums paid upon or in respect of the Collateral upon
the
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liquidation or dissolution of any Issuer or LLC shall be paid over to the
Administrative Agent to be held by it hereunder as additional collateral
security for the Obligations, and, in case any distribution of capital
shall be made on or in respect of the Collateral or any property shall be
distributed upon or with respect to the Collateral pursuant to the
recapitalization or reclassification of the capital of such Issuer or LLC
or pursuant to the reorganization thereof, the property so distributed
shall be delivered to the Administrative Agent to be held by it hereunder
as additional collateral security for the Obligations. If any sums of
money or property so paid or distributed in respect of the Collateral
shall be received by the Pledgor, the Pledgor shall, until such money or
property is paid or delivered to the Administrative Agent, hold such money
or property in trust for the Lenders, segregated from other funds of the
Pledgor, as additional collateral security for the Obligations.
(b) Without the prior written consent of the Administrative Agent
and except as permitted by, or not prohibited under, the Credit Agreement,
the Pledgor will not (i) vote to enable, or take any other action to
permit, any Issuer or LLC to issue any stock, membership interests or
other equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any
stock or other equity securities of any nature of such Issuer or LLC, (ii)
sell, assign, transfer, exchange, or otherwise dispose of, or grant any
option with respect to, the Collateral, or (iii) create, incur or permit
to exist any Lien or option in favor of, or any claim of any Person with
respect to, any of the Collateral, or any interest therein, except for the
Lien provided for by this Pledge Agreement. The Pledgor will defend the
right, title and interest of the Administrative Agent and the Lenders in
and to the Collateral against the claims and demands of all Persons
whomsoever.
(c) At any time and from time to time, upon the written request of
the Administrative Agent, and at the sole expense of the Pledgor, the
Pledgor will promptly and duly execute and deliver such further
instruments and documents and take such further actions as the
Administrative Agent may reasonably request for the purposes of obtaining
or preserving the full benefits of this Pledge Agreement and of the rights
and powers herein granted. If any amount payable under or in connection
with any of the Collateral shall be or become evidenced by any promissory
note, other Instrument or Chattel Paper, such note, Instrument or Chattel
Paper shall be immediately delivered to the Administrative Agent, duly
endorsed in a manner satisfactory to the Administrative Agent, to be held
as Collateral pursuant to this Pledge Agreement.
(d) The Pledgor agrees to pay, and to save the Administrative Agent
and the Lenders harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or
other similar taxes which may be payable or determined to be payable with
respect to any of the Collateral or in connection with any of the
transactions contemplated by this Pledge Agreement.
(e) The Pledgor will not, unless it shall give 45 days' prior
written notice to such effect to the Administrative Agent, (i) change the
location of its chief executive office or chief place of business from
that specified in Section 5(e) hereof, or remove its books and records
from such location or (ii) change its name, identity or structure to such
an extent
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that any financing statements filed by the Administrative Agent in
connection with this Agreement would become misleading.
7. CASH DIVIDENDS; VOTING RIGHTS; INTEREST PAYMENTS. (a) Unless an
Event of Default shall have occurred and be continuing and the Administrative
Agent shall (unless such Event of Default is an Event of Default specified in
subsection 14(f) of the Credit Agreement, in which case no such notice need be
given) have given notice to the Pledgor of the Administrative Agent's intent to
exercise its rights pursuant to paragraph 8 below, the Pledgor shall be (i)
permitted to receive all cash dividends or distributions to the extent permitted
in the Credit Agreement in respect of the Pledged Stock and the LLC Collateral,
(ii) entitled to receive and retain any interest payments or other distributions
made in respect of the Pledged Notes in accordance with the terms of the Credit
Agreement, and (iii) permitted to exercise all voting, corporate, limited
liability company and other rights of ownership with respect to the Pledged
Stock, the LLC Collateral and the Pledged Notes, PROVIDED, HOWEVER, that no vote
shall be cast or corporate or limited liability company right exercised or other
action taken which, in the Administrative Agent's reasonable judgment, would
impair the Collateral or which would be inconsistent with or result in any
violation of any provision of the Credit Agreement or any of the other Credit
Documents.
(b) If an Event of Default shall have occurred and be continuing and
the Administrative Agent shall (unless such Event of Default is an Event of
Default specified in subsection 14(f) of the Credit Agreement, in which case no
such notice need be given) have given notice to the Pledgor of its intent to
exercise its rights pursuant to paragraph 8 below, (i) all dividends, interest
payments and other distributions (including cash) paid on or in respect of the
Pledged Stock, LLC Collateral and Pledged Notes shall be paid to and retained by
the Administrative Agent as Collateral hereunder (or if received by the Pledgor,
shall be held in trust by the Pledgor for the benefit of the Administrative
Agent and the Lenders and shall be forthwith delivered by it, and in the case of
the Pledged Notes, together with an appropriate undated endorsement duly
executed in blank), and (ii) all voting, corporate, limited liability company
and other rights pertaining to the Pledged Stock, LLC Collateral and the Pledged
Notes, if any, shall be exercised by the Administrative Agent.
8. RIGHTS OF THE LENDERS AND THE ADMINISTRATIVE AGENT. (a) If an
Event of Default shall occur and be continuing and the Administrative Agent
shall (unless such Event of Default is an Event of Default specified in
subsection 14(f) of the Credit Agreement, in which case no such notice need be
given) give notice of its intent to exercise its rights hereunder to the
Pledgor, (i) the Administrative Agent shall have the right to receive any and
all cash dividends, distributions and payments or other income paid in respect
of the Collateral and make application thereof to the Obligations in such order
as the Administrative Agent may determine and (ii) all shares of the Pledged
Stock, all rights in the LLC Collateral and the Note Collateral shall be
registered in the name of the Administrative Agent or its nominee, and the
Administrative Agent or its nominee may thereafter exercise (A) all voting,
corporate, member, creditor and other rights, powers and privileges pertaining
to such Collateral at any meeting of shareholders of any Issuer or members of an
LLC or otherwise, and (B) any and all rights of conversion, exchange,
subscription and any other rights, privileges or options pertaining to the
Collateral as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the
Collateral upon the merger, consolidation, reorganization, recapitalization or
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other fundamental change in the structure of any Issuer or LLC, or upon the
exercise by the Pledgor or the Administrative Agent of any right, privilege or
option pertaining to the Collateral, and in connection therewith, the right to
deposit and deliver any and all of the Collateral with any committee,
depositary, transfer agent, registrar or other designated agency upon such terms
and conditions as it may determine), all without liability except to account for
property actually received by it and except for its gross negligence or willful
misconduct, but the Administrative Agent shall have no duty to the Pledgor to
exercise any such right, privilege or option and shall not be responsible for
any failure to do so or delay in so doing.
(b) The rights of the Administrative Agent and the Lenders hereunder
shall not be conditioned or contingent upon the pursuit by the Administrative
Agent or any Lender of any right or remedy against any Issuer, any LLC or the
Pledgor or against any other Person which may be or become liable in respect of
all or any part of the Obligations or against any collateral security therefor,
guarantee therefor or right of set-off with respect thereto. Neither the
Administrative Agent nor any Lender shall be liable for any failure to demand,
collect or realize upon all or any part of the Collateral or for any delay in
doing so, nor shall the Administrative Agent be under any obligation to sell or
otherwise dispose of any Collateral upon the request of the Pledgor or any other
Person or to take any other action whatsoever with regard to the Collateral or
any part thereof.
9. REMEDIES. In the event that any portion of the Obligations has
been declared or becomes due and payable in accordance with the terms of the
Credit Agreement and such Obligations have not been paid in full, the
Administrative Agent, on behalf of the Lenders, may exercise, in addition to all
other rights and remedies granted in this Pledge Agreement and in any other
instrument or agreement securing, evidencing or relating to the Obligations, all
rights and remedies of a secured party under the Code. Without limiting the
generality of the foregoing, the Administrative Agent, without demand of
performance or other demand, presentment, protest, advertisement or notice of
any kind (except any notice required by law referred to below) to or upon the
Pledgor, any Issuer, any LLC or any other Person (all and each of which demands,
defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, assign, give option
or options to purchase or otherwise dispose of and deliver the Collateral or any
part thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, in the over-the-counter market, at any exchange
or broker's board or office of the Administrative Agent or any Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Administrative Agent, any Co-Agent or any
Lender shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption in the Pledgor, which right or equity is hereby waived or released.
The Administrative Agent shall hold any Proceeds hereunder for the benefit of
the Lenders as collateral security for the Obligations (whether matured or
unmatured), and/or the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, may then or at any time thereafter, in the
sole discretion of the Administrative Agent, be applied by the Administrative
Agent against the Obligations then due and owing in the following order of
priority:
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FIRST, to the payment of all reasonable costs and expenses of every
kind incurred by the Administrative Agent in connection with this Pledge
Agreement, any other Credit Document or any of the Obligations, including,
without limitation, (i) all costs incidental to the care or safekeeping of
any of the Collateral or in any way relating to the Collateral or the
rights of the Administrative Agent and the Lenders hereunder, (ii) court
costs, (iii) the reasonable fees and disbursements of legal counsel and
agents to the Administrative Agent, (iv) any other reasonable costs or
expenses incurred in connection with the exercise by the Administrative
Agent of any right or remedy under this Pledge Agreement or any other
Credit Document and (v) without duplication, any amounts which are
required by any provision of law, including, without limitation, Section
9-504(1)(c) of the Code, to be paid by the Administrative Agent;
SECOND, to the ratable satisfaction of all other Obligations; and
THIRD, to the Pledgor or its successors or assigns, or to whomsoever
may be lawfully entitled to receive the same.
To the extent permitted by applicable law, the Pledgor waives all claims,
damages and demands it may acquire against the Administrative Agent or any
Lender arising out of the lawful exercise by them of any rights hereunder. If
any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition.
10. REGISTRATION RIGHTS; PRIVATE SALES. (a) If the Administrative
Agent shall determine to exercise its right to sell any or all of the Collateral
pursuant to paragraph 9 hereof, and if in the opinion of the Administrative
Agent it is necessary or advisable to have the Collateral, or that portion
thereof to be sold, registered under the provisions of the Securities Act of
1933, as amended (the "SECURITIES ACT"), the Pledgor will cause each Issuer or
LLC whose stock or note or membership interest, as the case may be, is to be so
registered to (i) execute and deliver, and cause the directors and officers of
such Issuer or LLC or the Pledgor, as the case may be, to execute and deliver,
all such instruments and documents, and do or cause to be done all such other
acts as may be, in the opinion of the Administrative Agent, necessary or
advisable to register the Collateral, or that portion thereof to be sold, under
the provisions of the Securities Act, (ii) use its best efforts to cause the
registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering of
the Collateral or that portion thereof to be sold, and (iii) make all amendments
thereto and/or to the related prospectus that, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. The Pledgor agrees to
cause each Issuer and LLC to comply with the provisions of the securities or
"Blue Sky" laws of any and all jurisdictions that the Administrative Agent shall
designate and to make available to its security holders, as soon as practicable,
an earnings statement (which need not be audited) that will satisfy the
provisions of Section 11(a) of the Securities Act.
(b) The Pledgor recognizes that the Administrative Agent may be
unable to effect a public sale of any or all the Collateral by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise, and may be compelled to resort
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to one or more private sales thereof to a restricted group of purchasers that
will be obliged to agree, among other things, to acquire such securities for
their own account for investment and not with a view to the distribution or
resale thereof. The Pledgor acknowledges and agrees that any such private sale
may result in prices and other terms less favorable than if such sale were a
public sale and, notwithstanding such circumstances, agrees that any such
private sale shall be deemed to have been made in a commercially reasonable
manner. The Administrative Agent shall be under no obligation to delay a sale of
any of the Collateral for the period of time necessary to permit any Issuer or
LLC to register such securities for public sale under the Securities Act, or
under applicable state securities laws, even if such Issuer or LLC would agree
to do so.
(c) The Pledgor further agrees to use its 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 Collateral pursuant to this paragraph 10
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 paragraph 10 will cause irreparable injury to the
Administrative Agent and the Lenders, that the Administrative Agent and the
Lenders have no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this paragraph 10 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.
11. LIMITATION ON DUTIES REGARDING COLLATERAL. The Administrative
Agent's sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section 9-207 of the
Code or otherwise, shall be to deal with it in the same manner as the
Administrative Agent deals with similar securities and property for its own
account. Neither the Administrative Agent nor any Lender nor their respective
directors, officers, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so
(except to the extent the same constitutes gross negligence or willful
misconduct) or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of the Pledgor or otherwise.
12. POWERS COUPLED WITH AN INTEREST. All authorizations and agencies
herein contained with respect to the Collateral are irrevocable and powers
coupled with an interest.
13. SEVERABILITY. Any provision of this Pledge Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14. PARAGRAPH HEADINGS. The paragraph headings used in this Pledge
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
15. NO WAIVER; CUMULATIVE REMEDIES. Neither the Administrative Agent
nor any Lender shall by any act (except by a written instrument pursuant to
paragraph 16 hereof) be
11
deemed to have waived any right or remedy hereunder. No failure to exercise, nor
any delay in exercising, on the part of the Administrative Agent or any Lender
any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Administrative Agent or any Lender of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Administrative Agent or such Lender 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 other rights or remedies provided by law.
16. WAIVERS AND AMENDMENTS; SUCCESSORS AND ASSIGNS; GOVERNING LAW.
None of the terms or provisions of this Pledge Agreement may be amended,
supplemented or otherwise modified except by a written instrument executed by
the Pledgor and the Administrative Agent, PROVIDED that any provision of this
Pledge Agreement may be waived by the Administrative Agent in a letter or
agreement executed by the Administrative Agent or by telex or facsimile
transmission from the Administrative Agent. This Pledge Agreement shall be
binding upon the successors and assigns of the Pledgor and shall inure to the
benefit of the Administrative Agent and the Lenders and their respective
successors and assigns. THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
17. NOTICES. Notices by the Administrative Agent may be given by
mail, by facsimile transmission, addressed or transmitted to the Issuers and
LLCs at their addresses or transmission numbers set forth in Schedule IV hereto
and to the Pledgor at the address or transmission number set forth in subsection
16.2 of the Credit Agreement. Such notice shall be effective (a) in the case of
mail, three Business Days after deposit in the postal system, first class
postage pre-paid, and (b) in the case of facsimile notices, when receipt is
confirmed. The Pledgor and the Issuers and LLCs may change their respective
addresses and transmission numbers by written notice to the Administrative
Agent.
18. IRREVOCABLE AUTHORIZATION AND INSTRUCTION TO ISSUERS. The
Pledgor hereby authorizes and instructs the Issuers and LLCs to comply with any
instruction received by it from the Administrative Agent in writing that (a)
states that an Event of Default has occurred and is continuing and (b) is
otherwise in accordance with the terms of this Pledge Agreement, without any
other or further instructions from the Pledgor, and the Pledgor agrees that the
Issuers and LLCs shall be fully protected in so complying.
19. AUTHORITY OF ADMINISTRATIVE AGENT. The Pledgor acknowledges that
the rights and responsibilities of the Administrative Agent under this Pledge
Agreement with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Pledge Agreement shall, as between the
Administrative Agent and the Lenders, be governed by the Credit Agreement and by
such other agreements with respect thereto as may exist from time to time among
them, but, as between the Administrative Agent and the Pledgor, the
Administrative Agent shall be conclusively presumed to be acting as agent for
the Lenders with full and valid authority so to act or refrain from acting,
12
and neither the Pledgor nor the Issuers or LLCs shall be under any obligation,
or entitlement, to make any inquiry respecting such authority.
20. APPROVALS. Any provision contained herein to the contrary
notwithstanding, no action shall be taken hereunder by the Administrative Agent
and the Lenders with respect to the Collateral unless and until all applicable
requirements of the Federal Communications Commission (the "FCC"), if any, under
the Communications Act of 1934, as amended, and the rules and regulations
thereunder and thereof have in the reasonable judgment of the Administrative
Agent been fully satisfied to the extent necessary to take such action and there
have been obtained such consents, approvals and authorizations, as may be
required to be obtained from the FCC under the terms of any franchise, license
or similar operating right held by the Pledgor in order to take such action. It
is the intention of the parties hereto that the pledge in favor of the
Administrative Agent and the Lenders of the Collateral, the grant of a security
interest to the Administrative Agent and the Lenders in the Collateral, and all
rights and remedies by the Administrative Agent and the Lenders with respect to
the Collateral, shall in all relevant aspects be subject to and governed by said
statutes, rules and regulations and that nothing in this Agreement shall be
construed to diminish the control exercised by the Pledgor, except in accordance
with the provisions of such statutory requirements and rules and regulations. By
its acceptance of this Agreement, the Administrative Agent and the Lenders agree
they will not take any action pursuant to this Agreement which constitutes or
results in any assignment of a license or franchise or any change of control
over the communications properties owned and operated by the Pledgor, if such
assignment of license or franchise or change of control would, under then
existing law or under any franchise, require the prior approval of a
Governmental Authority, without first obtaining such approval. Upon the exercise
by the Administrative Agent and the Lenders of any power, right, privilege or
remedy pursuant to this Agreement which requires any consent, approval,
recording, qualification or authorization of any Governmental Authority, the
Pledgor will execute and deliver, or will cause the execution and delivery of,
all applications, certificates, instruments and other documents and papers that
the Administrative Agent and the Lenders may reasonably require in order for
such governmental consent, approval, recording, qualification or authorization
to be obtained. The Pledgor agrees to use its best efforts to cause such
governmental consents, approvals, recordings, qualifications and authorizations
to be forthcoming.
13
IN WITNESS WHEREOF, the undersigned has caused this Pledge Agreement
to be duly executed and delivered as of the date first above written.
CITADEL BROADCASTING COMPANY
By:____________________________
Title:
ACKNOWLEDGEMENT AND CONSENT
The undersigned Issuers referred to in the foregoing Company Pledge
Agreement hereby acknowledge receipt of a copy thereof and agree to be bound
thereby and to comply with the terms thereof insofar as such terms are
applicable to it. The undersigned Issuers agree to notify the Administrative
Agent promptly in writing of the occurrence of any of the events described in
paragraph 6(a) of the Company Pledge Agreement. The undersigned Issuers further
agree that the terms of paragraph 10(c) of the Company Pledge Agreement shall
apply to them, MUTATIS MUTANDIS, with respect to all actions that may be
required of them under or pursuant to or arising out of paragraph 10 of the
Company Pledge Agreement.
[______________________________________]
[______________________________________]
By:
---------------------------------------
Title:
ACKNOWLEDGEMENT AND CONSENT
The undersigned limited liability companies (the "LLCs") referred to
in the foregoing Company Pledge Agreement, hereby acknowledge receipt of a copy
thereof and agree to be bound thereby and to comply with the terms thereof
insofar as such terms are applicable to it.
The LLCs also agree, if an Event of Default shall have occurred and
be continuing, at the request of the Administrative Agent delivered in writing
to the LLCs and the Pledgor, to make all payments due to Pledgor in its capacity
as a member of each LLC, to The Chase Manhattan Bank, as Administrative Agent,
until notified by the Administrative Agent that all Obligations have been paid
in full, no Letters of Credit are outstanding or not fully cash collateralized
and the Commitments are terminated or that the Event of Default is no longer
continuing. The LLCs further agree that the Administrative Agent will not have
any of the obligations of a member of any of the LLCs.
_____ __, ____
[LIST OF LLCS]
By:________________________________
Name:
Title:
Exhibit A to
Company Pledge
Agreement
_____ __, 200__
__________________, LLC
[address]
Gentlemen:
Citadel Broadcasting Company ("Pledgor") hereby instructs
____________________, LLC to register the pledge of its membership interest in
________________, LLC in favor of The Chase Manhattan Bank, as Administrative
Agent, pursuant to the Company Pledge Agreement, dated as of ________, ____,
between Pledgor and The Chase Manhattan Bank, as Administrative Agent.
Very truly yours,
CITADEL BROADCASTING COMPANY
By ___________________________
Title:
cc: The Chase Manhattan Bank, as Administrative Agent
Exhibit B to
Company Pledge
Agreement___
______ __, 200_
To: The Chase Manhattan Bank,
as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
This statement is to advise you that a pledge of the following
uncertificated security has been registered in the name of The Chase
Manhattan Bank, as Administrative Agent, as follows:
1. UNCERTIFICATED SECURITY:
The entire membership interest owned by Citadel Broadcasting
Company, in the undersigned limited liability company.
2. REGISTERED OWNER:
3. REGISTERED PLEDGEE:
The Chase Manhattan Bank,
as Administrative Agent
Taxpayer Identification Number: __________
4. There are no liens or restrictions of the undersigned limited
liability company and no adverse claims to which such uncertificated security is
or may be subject known to the undersigned limited liability company except as
set forth in the Company Pledge Agreement dated as of ___ __, 2001, between
Citadel Broadcasting Company and The Chase Manhattan Bank, as Administrative
Agent.
5. The pledge was registered on ___ __, ____.
THIS STATEMENT IS MERELY A RECORD OF THE RIGHTS OF THE ADDRESSEE
AS OF THE TIME OF ITS ISSUANCE. DELIVERY OF THIS STATEMENT, OF ITSELF,
CONFERS NO RIGHTS ON THE RECIPIENT. THIS STATEMENT IS NEITHER A NEGOTIABLE
INSTRUMENT NOR A SECURITY.
Very truly yours,
____________________, LLC
By: _____________
Title:
SCHEDULE I
to Company
Pledge Agreement
DESCRIPTION OF PLEDGED STOCK (DOMESTIC SUBSIDIARIES)
Percentage
of
Total No. Number of Outstanding
Stock of Shares Shares
Class of Certificate Outstanding Owned by Owned by
Issuer Stock No. Shares the Pledgor the Pledgor
------ ----- --- ------ ----------- -----------
SCHEDULE II
To Company
Pledge Agreement
DESCRIPTION OF PLEDGED STOCK (FOREIGN SUBSIDIARIES)
Percentage
of
Total No. Number of Outstanding
Stock of Shares Shares
Class of Certificate Outstanding Owned by Owned by
Issuer Stock No. Shares the Pledgor the Pledgor
------ ----- --- ------ ----------- -----------
SCHEDULE III
to Company
Pledge Agreement
LIST OF LLCS
SCHEDULE IV
To Company
Pledge Agreement
ADDRESSES OF ISSUERS AND LLCS