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Exhibit 4(d)
PLEDGE AGREEMENT
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PLEDGE AGREEMENT, dated as of January 27, 2000, among: (1)
REGENT COMMUNICATIONS, INC., a Delaware corporation (hereinafter, together with
its successors in title and assigns, called the "PARENT Company"); (2) REGENT
BROADCASTING, INC., a Delaware corporation (hereinafter, together with its
successors in title and assigns, called the "BORROWER"); (3) the Subsidiaries of
the Parent Company and of the Borrower identified as such in ANNEX A hereto
(such Subsidiaries and all of the other Subsidiaries of the Parent Company or of
the Borrower from time to time party hereto or bound hereby being hereinafter,
together with their successors in title and assigns, called, collectively, the
"SUBSIDIARY GUARANTORS") (the Parent Company, the Borrower and each Subsidiary
Guarantor from time to time party to or otherwise bound by this Agreement being
hereinafter called, collectively, the "PLEDGORS" and, singly, a "PLEDGOR"); and
(4) FLEET NATIONAL BANK, as collateral agent for the benefit of the Secured
Creditors (as defined in the RECITALS hereto) (in such capacity, the "PLEDGEE").
RECITALS:
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A. The Parent Company, the Borrower, the several lenders from
time to time party thereto (collectively, the "LENDERS"), Fleet National Bank,
as Administrative Agent and Issuing Lender, Fleet Robertson Stephens Inc., as
Lead Arranger, and certain other Agents from time to time party thereto (the
Lenders, the Administrative Agent, the Issuing Lender, the Lead Arranger and
such other Agents being hereinafter called, collectively, the "LENDER
CREDITORS"), are party to the Credit Agreement, dated as of January 27, 2000,
providing for the making of Loans and other Credit Extensions, including the
issuance of, and participation in, Letters of Credit, all as contemplated
thereby.
B. The Borrower may from time to time become a party to one or
more Interest Rate Protection Agreements with any Lender or Affiliate of any
Lender (each such Lender or Affiliate thereof (even if such Lender ceases to be
a Lender under the Credit Agreement for any reason), and its successors and
assigns, being hereinafter called, collectively, the "OTHER CREDITORS", and,
together with the Lender Creditors, collectively, the "SECURED CREDITORS" and,
singly, a "SECURED CREDITOR").
C. The Parent Company has guaranteed all of the Obligations
and other liabilities of the Borrower and of each of the other Credit Parties
under the Loan Documents and Interest Rate Protection Agreements pursuant to
ARTICLE VII of the Credit Agreement.
D. The Subsidiary Guarantors have guaranteed all of the
Obligations of the Parent Company, the Borrower and each of the other Credit
Parties under the Loan Documents and Interest Rate Protection Agreements
pursuant to the Subsidiary Guaranty Agreement, dated as of even date herewith
(as amended, modified, extended, renewed, replaced, restated or supplemented and
in effect from time to time, the "SUBSIDIARY Guaranty"), entered into by the
Parent Company, the Borrower, the Subsidiary Guarantors identified as such in
ANNEX A hereto, and Fleet National Bank, as collateral agent for the benefit of
the Secured Creditors.
E. It is a condition precedent to each credit extension made
or to be made on or after the date hereof under the Credit Agreement, the other
Loan Documents and the Interest Rate Protection Agreements that the Pledgors
shall have executed and delivered this Agreement.
F. Each Pledgor will obtain direct or indirect benefits from
credit extensions made or to be made to the Borrower and other Credit Parties
under the Credit Agreement, the other Loan Documents and the Interest Rate
Protection Agreements, and, accordingly, each Pledgor desires to enter into this
Agreement in order to satisfy the condition precedent described in preceding
RECITAL E and to
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induce the Lenders to make credit extensions to the Borrower and other Credit
Parties under the Credit Agreement, the other Loan Documents and the Interest
Rate Protection Agreements.
NOW, THEREFORE, in consideration of the foregoing and the
direct or indirect benefits accruing to each Pledgor, the receipt and
sufficiency of which are hereby acknowledged, each Pledgor hereby, jointly and
severally, makes the following representations and warranties to the Pledgee for
the benefit of the Secured Creditors and hereby, jointly and severally,
covenants and agrees with the Pledgee for the benefit of the Secured Creditors
as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each
Pledgor for the benefit of the Secured Creditors in order to secure:
(a) the full and prompt payment when due (whether at stated
maturity, by acceleration or otherwise) of all of the Obligations (as
that term is defined in the Credit Agreement) and all of the other
obligations, liabilities and indebtedness (including, without
limitation, indemnities, fees and interest thereon) of each Pledgor and
of each other Credit Party to Lender Creditors, whether now existing or
from time to time hereafter created or incurred under, arising out of,
or in connection with the Credit Agreement or any of the other Loan
Documents, and the due performance by each Pledgor and by each other
Credit Party of all of the terms, conditions and agreements contained
in the Credit Agreement or in any of the other Loan Documents (all of
such Obligations and other obligations, liabilities and indebtedness
under this CLAUSE (a), except to the extent consisting of obligations
or indebtedness with respect to Interest Rate Protection Agreements,
being herein collectively called the "LOAN DOCUMENT OBLIGATIONS");
(b) the full and prompt payment when due (whether at stated
maturity, by acceleration or otherwise) of all of the obligations,
liabilities and indebtedness (including, without limitation,
indemnities, fees and interest thereon) of each Pledgor and of each
other Credit Party to the Other Creditors, whether now existing or from
time to time hereafter created or incurred under, arising out of, or in
connection with any of the Interest Rate Protection Agreements (whether
any such Interest Rate Protection Agreement is now in existence or is
at any time hereafter created or entered into), and the due performance
by each Pledgor and by each other Credit Party of all of the terms,
conditions and agreements contained in any of such Interest Rate
Protection Agreements (all of such obligations, liabilities and
indebtedness under this CLAUSE (b) being herein collectively called the
"OTHER OBLIGATIONS");
(c) the repayment or reimbursement of any and all sums from
time to time advanced by the Pledgee in order to preserve or protect
the Collateral (as hereinafter defined) or preserve or protect its
security interests and Liens therein;
(d) the payment or reimbursement of any and all reasonable
costs, expenses and fees of retaking, holding, preparing for Sale or
lease, selling or otherwise disposing of or realizing on all or any
part of the Collateral, or arising out of any exercise by the Pledgee
of any of its rights or remedies hereunder, including all reasonable
attorneys' fees and court costs; and
(e) the payment or reimbursement of all amounts paid by any
Indemnitee to which such Indemnitee has the right to reimbursement
under SECTION 11 of this Agreement.
All of such Obligations, obligations, liabilities, indebtedness, sums, costs,
expenses, fees and other amounts set forth in CLAUSES (a) through (e) of this
SECTION 1 being herein collectively called the "OBLIGATIONS", it being
acknowledged and agreed that the term "OBLIGATIONS" shall in any event include
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any and all Loans and other Credit Extensions, whether outstanding on the date
of this Agreement or made or extended at any time or from time to time after the
date of this Agreement.
2. DEFINITIONS. (a) Unless otherwise defined herein, all
capitalized terms used herein and defined in the Credit Agreement shall be used
herein as therein defined. Reference to singular terms shall include the plural
and VICE VERSA.
(b) The following capitalized terms used herein shall have the
definitions specified below:
"ADMINISTRATIVE AGENT" shall have the meaning given such term
in the Credit Agreement.
"ADVERSE CLAIM" shall have the meaning given such term in
Section 8-102(a)(1) of the UCC.
"AGREEMENT" shall mean this Pledge Agreement, as the same may
from time to time be amended, modified, extended, renewed, replaced, restated or
supplemented.
"BORROWER" shall have the meaning set forth in the PREAMBLE
hereto.
"CERTIFICATED SECURITY" shall have the meaning given such term
in Section 8-102(a)(4) of the UCC.
"CLEARING CORPORATION" shall have the meaning given such term
in Section 8-102(a)(5) of the UCC.
"COLLATERAL" shall have the meaning set forth in SECTION 3.1
hereof
"COLLATERAL ACCOUNTS" shall mean, in relation to any Pledgor,
any and all accounts established and maintained by the Pledgee in the name of
such Pledgor and to which any Collateral may from time to time be credited.
"CREDIT AGREEMENT" shall mean the Credit Agreement, dated as
of January 27, 2000, among the Parent Company the Borrower, several Persons
party thereto as Lenders thereunder, the Issuing Lender, the Lead Arranger, the
Administrative Agent, and the several other Persons party thereto as Agents
thereunder, providing for the making of Loans and other Credit Extensions to the
Borrower and the issuance of, and participation in, Letters of Credit for the
account of the Borrower, as the same may be amended, modified, extended,
renewed, replaced, restated, supplemented, restructured and/or refinanced from
time to time, and including any agreement extending the maturity of, refinancing
or restructuring all, or any portion of, the Indebtedness under such Credit
Agreement or any successor agreements; PROVIDED, HOWEVER, that with respect to
any agreement providing for the refinancing of any Indebtedness under the Credit
Agreement, such agreement shall only be treated as, or as a part of, the Credit
Agreement for purposes of this Agreement if (i) either (A) all of the
Obligations under the Credit Agreement being refinanced shall be paid in full at
the time of such refinancing, and all commitments under the refinanced Credit
Agreement shall have terminated in full, or (B) the Required Lenders shall have
consented in writing to the refinancing Indebtedness being treated, along with
their Indebtedness, as Indebtedness under the Credit Agreement, (ii) the
refinancing Indebtedness shall be permitted to be incurred under the Credit
Agreement being refinanced (if such Credit Agreement is to remain outstanding),
and (iii) a written notice to the effect that the refinancing Indebtedness is to
be treated as arising under the Credit
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Agreement shall be delivered by the Administrative Agent to the Borrower prior
to the implementation of such refinancing.
"DOMESTIC CORPORATION" shall have the meaning set forth in the
definition of the term "STOCK."
"EVENT OF DEFAULT" means (a) any Event of Default as that term
is defined in the Credit Agreement, (b) any payment default under any Interest
Rate Protection Agreement, and (c) in any event, any payment default in respect
of any of the Obligations that continues after the expiration of any applicable
grace period.
"FINANCIAL ASSET" shall have the meaning given such term in
Section 8-102(a)(9) of the UCC).
"FOREIGN CORPORATION" shall have the meaning set forth in the
definition of the term "STOCK."
"INDEMNITEES" shall have the meaning set forth in Section 11
hereof.
"INSTRUMENT" shall have the meaning given such term in Section
9-105(l)(1) of the UCC.
"INVESTMENT PROPERTY" shall have the meaning given in Section
9-115(l)(f) of the UCC.
"LENDER CREDITORS" shall have the meaning set forth in the
RECITALS hereto.
"LENDERS" shall have the meaning set forth in the RECITALS
hereto.
"LIMITED LIABILITY COMPANY ASSETS" shall mean all Property,
whether tangible or intangible, and whether real, personal or mixed (including,
without limitation, all limited liability company capital and interests in any
other limited liability company), at any time owned or represented by any
Limited Liability Company Interests.
"LIMITED LIABILITY COMPANY INTERESTS" shall mean all of the
limited liability company membership interests at any time or from time to time
owned or acquired by any Pledgor in any limited liability company.
"LOAN DOCUMENT OBLIGATIONS" shall have the meaning set forth
in SECTION 1 hereof.
"NON-VOTING STOCK" shall mean all Capital Stock of a Foreign
Corporation which is not Voting Stock.
"NOTES" shall mean, in relation to any Pledgor, all promissory
notes or other similar Instruments at any time issued to any Pledgor by the
Parent Company or by any Subsidiary of the Parent Company or of the Borrower.
"OBLIGATIONS" shall have the meaning set forth in SECTION 1
hereof.
"OTHER CREDITORS" shall have the meaning set forth in the
RECITALS hereto.
"OTHER OBLIGATIONS" shall have the meaning set forth in
SECTION 1 hereof.
"PARENT COMPANY" shall have the meaning set forth in the
PREAMBLE hereto.
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"PARTNERSHIP ASSETS" shall mean all Property, whether tangible
or intangible, and whether real, personal or mixed (including, without
limitation, all partnership capital and interests in any other partnership), at
any time owned or represented by any Partnership Interests.
"PARTNERSHIP INTERESTS" shall mean all of the general
partnership interests and all of the limited partnership interests at any time
or from time to time owned or acquired by any Pledgor in any general partnership
or limited partnership.
"PLEDGED NOTES" shall have the meaning set forth in SECTION
3.5 hereof.
"PLEDGEE" shall have the meaning set forth in the PREAMBLE
hereto.
"PLEDGOR" and "PLEDGORS" shall have the meanings set forth in
the PREAMBLE hereto.
"PROCEEDS" shall have the meaning given such term in Section
9-306(1) of the UCC.
"REQUIRED LENDERS" shall have the meaning given such term in
the Credit Agreement.
"SECURED CREDITORS" shall have the meaning set forth in the
RECITALS hereto.
"SECURED DEBT AGREEMENTS" shall have the meaning set forth in
SECTION 5 hereof.
"SECURITIES ACCOUNT" shall have the meaning given such term in
Section 8-501(a) of the UCC.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, as in effect from time to time.
"SECURITY" shall have the meaning given such term in Section
8-102(a)(15) of the UCC), and shall in any event include all Stock and Notes (to
the extent the same constitute "Securities" under Section 8-102(a)(15)).
"SECURITY ENTITLEMENT" shall have the meaning given such term
in SECTION 8-102(a)(17) of the UCC.
"SPECIFIED DEFAULT" shall have the meaning set forth in
SECTION 5 hereof.
"STOCK" shall mean (a) with respect to each corporation that
is incorporated under the laws of the United States or any State or territory
thereof (each, a "DOMESTIC CORPORATION"), all of the issued and outstanding
shares of Capital Stock and other Equity Interests of any Domestic Corporation
at any time owned or acquired by any Pledgor, and (b) with respect to each
corporation that is not a Domestic Corporation (each a "FOREIGN CORPORATION"),
all of the issued and outstanding shares of Capital Stock and other Equity
Interests of any Foreign Corporation at any time owned or acquired by any
Pledgor.
"SUBSIDIARY GUARANTOR" shall have the meaning set forth in the
PREAMBLE hereto.
"TERMINATION DATE" shall have the meaning set forth in SECTION
19(a) hereof.
"UCC" shall mean the Uniform Commercial Code as in effect in
the Commonwealth of Massachusetts from time to time.
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"UNCERTIFICATED SECURITY" shall have the meaning given such
term in Section 8-102(a)(18) of the UCC.
"VOTING STOCK" shall mean all classes of Capital Stock of any
Foreign Corporation entitled to vote.
3. PLEDGE AND GRANT OF SECURITY INTEREST, ETC.
3.1. PLEDGE. To secure the punctual payment and performance of
all and each and every part of the Obligations now or at any time hereafter owed
or to be paid or performed by each or any of the Credit Parties, each Pledgor
does hereby grant, pledge and assign to the Pledgee for the benefit of the
Secured Creditors, and does hereby create a continuing security interest and
Lien (subject to Liens from time to time permitted to exist with respect to any
Collateral pursuant to Secured Debt Agreements from time to time in effect) in
favor of the Pledgee for the benefit of the Secured Creditors in and upon, all
of the right, title and interest of such Pledgor in and to each of the
following, whether now existing or hereafter from time to time created, arising
or acquired (collectively, the "COLLATERAL"):
(a) each of the Collateral Accounts of such Pledgor, including
any and all of the Property of whatsoever type or kind from time to
time deposited by such Pledgor in each such Collateral Account, whether
such Property is now owned or existing or is hereafter created or
acquired, including, without limitation, all Financial Assets,
Investment Property, moneys, checks, drafts, Instruments, Securities or
interests therein of any type or nature deposited or required by the
Credit Agreement or by any of the other Secured Debt Agreements to be
deposited in such Collateral Account, and all Investments and all
certificates and other Instruments (including depository receipts, if
any) from time to time representing or evidencing the same, and all
dividends, interest, distributions, cash and other Property from time
to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of the foregoing;
(b) all Securities owned or acquired by such Pledgor from time
to time;
(c) all Limited Liability Company Interests owned or acquired
by such Pledgor from time to time (excluding those in any limited
liability company that is not a Subsidiary of the Parent Company or of
the Borrower to the extent (and only to the extent) that such Limited
Liability Company Interests may not be pledged hereunder without
violating the terms of the operating agreement or other Governing
Documents of such limited liability company), and all of its right,
title and interest in each limited liability company to which each of
such interests relates, whether now existing or hereafter created,
arising or acquired, including, without limitation:
(i) all of its capital therein and all of its
interest in all profits, losses, Limited Liability Company
Assets and other distributions to which such Pledgor shall at
any time be entitled in respect of such Limited Liability
Company Interests;
(ii) all other payments due or to become due to such
Pledgor in respect of such Limited Liability Company
Interests, whether under any limited liability company
agreement, other Governing Documents or otherwise, whether as
contractual obligations, damages, insurance proceeds or
otherwise;
(iii) all of its claims, rights, powers, privileges,
authority, options, security interests, Liens and remedies, if
any, under any limited liability company agreement,
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operating agreement or other Governing Documents, or at law,
or otherwise in respect of any such Limited Liability Company
Interests;
(iv) all present and future claims, if any, of such
Pledgor against any such limited liability company for moneys
loaned or advanced, for services rendered or otherwise;
(v) all of such Pledgor's rights under any limited
liability company agreement, operating agreement or other
Governing Documents, or at law, to exercise and enforce every
right, power, remedy, authority, option and privilege of such
Pledgor relating to such Limited Liability Company Interests,
including any power to terminate, cancel or modify any limited
liability company agreement, operating agreement or other
Governing Documents, to execute any Instruments and to take
any and all other action on behalf of and in the name of such
Pledgor in respect of such Limited Liability Company Interests
and any such limited liability company, to make
determinations, to exercise any election (including, but not
limited to, election of remedies) or option or to give or
receive any notice, consent, amendment, waiver or approval,
together with full power and authority to demand, receive,
enforce, collect or receipt for any of the foregoing or for
any Limited Liability Company Assets, to enforce or execute
any checks or other Instruments or orders, to file any claims
and to take any action in connection with any of the
foregoing; and
(vi) all other Property from time to time hereafter
delivered in substitution for or in addition to any of the
foregoing, all certificates and Instruments representing or
evidencing such other Property, and all cash, Securities,
interest, dividends, rights and other Property at any time and
from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all
thereof;
(d) all Partnership Interests owned or acquired by such
Pledgor from time to time (excluding those in any partnership that is
not a Subsidiary of the Parent Company or of Borrower to the extent
(and only to the extent) that such Partnership Interests may not be
pledged hereunder without violating the terms of the partnership
agreement or other Governing Documents of such partnership), and all of
its right, title and interest in each partnership to which each of such
interests relates, whether now existing or hereafter created, arising
or acquired, including, without limitation:
(i) all of its capital therein and all of its
interest in all profits, losses, Partnership Assets and other
distributions to which such Pledgor shall at any time be
entitled in respect of such Partnership Interests;
(ii) all other payments due or to become due to such
Pledgor in respect of such Partnership Interests, whether
under any partnership agreement, other Governing Documents or
otherwise, whether as contractual obligations, damages,
insurance proceeds or otherwise;
(iii) all of its claims, rights, powers, privileges,
authority, options, security interests, Liens and remedies, if
any, under any partnership agreement, operating agreement or
other Governing Documents, or at law, or otherwise in respect
of any such Partnership Interests;
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(iv) all present and future claims, if any, of such
Pledgor against any such partnership for moneys loaned or
advanced, for services rendered or otherwise;
(v) all of such Pledgor's rights under any
partnership agreement, operating agreement or other Governing
Documents, or at law, to exercise and enforce every right,
power, remedy, authority, option and privilege of such Pledgor
relating to such Partnership Interests, including any power to
terminate, cancel or modify any partnership agreement,
operating agreement or other Governing Documents, to execute
any Instruments and to take any and all other action on behalf
of and in the name of such Pledgor in respect of such
Partnership Interests and any such partnership, to make
determinations, to exercise any election (including, but not
limited to, election of remedies) or option or to give or
receive any notice, consent, amendment, waiver or approval,
together with full power and authority to demand, receive,
enforce, collect or receipt for any of the foregoing or for
any Partnership Assets, to enforce or execute any checks, or
other Instruments or orders, to file any claims and to take
any action in connection with any of the foregoing; and
(vi) all other Property from time to time hereafter
delivered in substitution for or in addition to any of the
foregoing, all certificates and Instruments representing or
evidencing such other Property, and all cash, Securities,
interest, dividends, rights and other Property at any time and
from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all
thereof;
(e) all Security Entitlements owned or acquired by such Pledgor from
time to time in any and all of the foregoing;
(f) all Financial Assets and Investment Property owned or acquired by
such Pledgor from time to time; and
(g) all Proceeds of any and all of the foregoing;
PROVIDED, HOWEVER, that (A) no Pledgor shall be required at any time to pledge
hereunder more than 65% of the Voting Stock of any Foreign Corporation, and (B)
each Pledgor shall in any event be required to pledge hereunder 100% of the
Non-Voting Stock of any Foreign Corporation at any time or from time to time
owned or acquired by such Pledgor.
3.2. PROCEDURES. (a) To the extent that any Pledgor at any
time or from time to time owns, acquires or obtains any right, title or interest
in any Collateral, such Collateral shall automatically (and without the taking
of any action by such Pledgor) be pledged and be subject to pledge pursuant to
SECTION 3.1 of this Agreement, and, in addition thereto, such Pledgor shall (to
the extent provided below) take the following actions and undertake the
following procedures as set forth below (as promptly as practicable and, in any
event, within 30 days after it first establishes ownership of or otherwise
acquires or obtains any right, title or interest in such Collateral) for the
benefit of the Pledgee and the other Secured Creditors:
(i) with respect to any Certificated Security (other than a
Certificated Security credited on the books of a Clearing Corporation),
such Pledgor shall physically deliver such Certificated Security to the
Pledgee, endorsed in blank (with signature guaranteed);
(ii) with respect to any Uncertificated Security (other than
an Uncertificated Security credited on the books of a Clearing
Corporation), such Pledgor shall cause the issuer of such
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Uncertificated Security to duly authorize and execute, and deliver to
the Pledgee, an agreement for the benefit of the Pledgee and the other
Secured Creditors substantially in the form of ANNEX G hereto
(appropriately completed to the reasonable satisfaction of the Pledgee
and with such modifications, if any, as shall be reasonably
satisfactory to the Pledgee) pursuant to which such issuer shall agree
to comply with any and all instructions originated by the Pledgee
without further consent by the registered owner and not to comply with
instructions regarding such Uncertificated Security (and any
Partnership Interests and Limited Liability Company Interests issued by
such issuer) originated by any other Person; it being understood that
the Pledgee will not so originate any instructions to any such issuer
unless an Event of Default has occurred and is continuing;
(iii) with respect to any Certificated Security,
Uncertificated Security, Partnership Interest or Limited Liability
Company Interest credited on the books of a Clearing Corporation
(including a Federal Reserve Bank, Participants Trust Company or The
Depository Trust Company), such Pledgor shall promptly notify the
Pledgee thereof and shall promptly take all actions (A) required (1) to
comply with the applicable rules of such Clearing Corporation, and (2)
to perfect the security interests of the Pledgee under Applicable Law
(including, in any event, under Sections 9-115 (4)(a) and (b), 9-115
(1)(e) and 8-106(d) of the UCC), and (B) as the Pledgee reasonably
deems necessary or desirable to effect the foregoing;
(iv) with respect to any Partnership Interests or any Limited
Liability Company Interests (other than any Partnership Interests or
Limited Liability Interests credited on the books of a Clearing
Corporation), (A) if such Partnership Interests or Limited Liability
Company Interests are represented by a certificate, such Pledgor shall
complete the procedures set forth in SECTION 3.2(a)(i), and (B) if such
Partnership Interests or Limited Liability Company Interests are not
represented by a certificate, such Pledgor shall complete the
procedures set forth in SECTION 3.2(a)(ii);
(v) with respect to any Note, such Pledgor shall physically
deliver such Note to the Pledgee, endorsed in blank (with signature
guaranteed); and
(vi) upon written request of the Pledgee while any Event of
Default shall be continuing, with respect to cash, (A) such Pledgor
shall establish with the Pledgee a cash account in the name of such
Pledgor over which the Pledgee shall have exclusive and absolute
control and dominion (and no withdrawals or transfers may be made
therefrom by any Person without the prior written consent of the
Pledgee), and (B) such Pledgor shall deposit such cash in such cash
account.
(b) In addition to the actions required to be taken pursuant
to PARAGRAPH (a) of this SECTION 3.2, each Pledgor shall take the following
additional actions with respect to the Securities and Collateral:
(i) with respect to all Collateral of such Pledgor with
respect to which the Pledgee may obtain "control" thereof within the
meaning of Section 8-106 of the UCC (or under any provision of the UCC
as same may be amended or supplemented from time to time, or under the
Applicable Laws of any relevant State), such Pledgor shall take all
actions as may be reasonably requested from time to time by the Pledgee
so that "control" of such Collateral is obtained and at all times held
by the Pledgee; and
(ii) such Pledgor shall from time to time cause appropriate
financing statements (on Form UCC-1 or other appropriate form) under
the Uniform Commercial Code as in effect in the
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various relevant States, on forms covering all Collateral hereunder
(with the form of such financing statements to be reasonably
satisfactory to the Pledgee), to be filed in the relevant filing
offices so that at all times the Pledgee has a security interest and
Lien in all Investment Property and other Collateral which is perfected
by the filing of such financing statements (in each case to the maximum
extent perfection by filing may be obtained under the Applicable Laws
of the relevant States, including, without limitation, Section
9-115(4)(b) of the UCC).
3.3. SUBSEQUENTLY ACQUIRED COLLATERAL. If any Pledgor shall
obtain or otherwise acquire (by purchase, merger, stock dividend, capital
contribution or otherwise) any additional Collateral at any time or from time to
time after the date hereof, such Collateral shall automatically (and without any
further action being required to be taken) be subject to the pledge and security
interests created pursuant to SECTION 3.1, and, furthermore, such Pledgor will
within 30 days thereafter take (or cause to be taken) all action with respect to
such Collateral in accordance with the procedures set forth in SECTION 3.2, and
will promptly thereafter deliver to the Pledgee (a) a certificate executed by a
principal executive officer of such Pledgor describing such Collateral and
certifying that the same has been duly pledged in favor of the Pledgee (for the
benefit of the Secured Creditors) hereunder, and (b) such supplements to ANNEXES
A through F hereto as are reasonably necessary to cause such Annexes to be
complete and accurate at such time.
3.4. TRANSFER TAXES. Each pledge of Collateral pursuant to
SECTION 3.1, SECTION 3.2 or SECTION 3.3 shall be accompanied by any transfer tax
stamps required in connection with the pledge of such Collateral.
3.5. DEFINITION OF PLEDGED NOTES. All Notes at any time
pledged or required to be pledged hereunder are hereinafter called the "PLEDGED
NOTES".
3.6. CERTAIN REPRESENTATIONS AND WARRANTIES REGARDING THE
COLLATERAL. Each Pledgor represents and warrants that: (a) each Subsidiary of
such Pledgor, and the direct ownership thereof, is identified in ANNEX A hereto;
(b) the Stock held by such Pledgor consists of the number and type of shares of
the Capital Stock and other Equity Interests of the corporations described in
ANNEX B hereto; (c) such Stock constitutes that percentage of the issued and
outstanding Capital Stock and other Equity Interests of the issuing corporation
as is set forth in ANNEX B hereto; (d) the Notes held by such Pledgor consist of
the promissory notes and other Instruments identified in ANNEX C hereto; (e) the
Limited Liability Company Interests held by such Pledgor consist of the number
and type of Equity Interests of the Persons described in ANNEX D hereto; (f)
each of such Limited Liability Company Interests constitutes that percentage or
portion of the issued and outstanding Equity Interests of the issuing Person as
set forth in ANNEX D hereto; (g) the Partnership Interests held by such Pledgor
consist of the number and type of Equity Interests of the Persons described in
ANNEX E hereto; (h) each of such Partnership Interests constitutes that
percentage or portion of the entire partnership interest of each partnership as
set forth in ANNEX E hereto; (i) such Pledgor has complied with the applicable
procedures set forth in SECTION 3.2(a) with respect to each item of Collateral
described in ANNEXES A through E hereto; and (j) such Pledgor owns no other
Securities, Limited Liability Company Interests or Partnership Interests.
4. APPOINTMENT OF SUB-AGENTS: ENDORSEMENTS. ETC. The Pledgee
shall have the right to appoint one or more sub-agents for the purpose of
retaining physical possession of the Collateral, which may be held (in the
discretion of the Pledgee) in the name of the relevant Pledgor, endorsed or
assigned in blank or in favor of the Pledgee or any nominee or nominees of the
Pledgee or a sub-agent appointed by the Pledgee.
11
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless there shall
be continuing any Event of Default or any Default under SECTION 10.1.6 or 10.1.7
of the Credit Agreement (each such Event of Default and such Default, a
"SPECIFIED DEFAULT"), each Pledgor shall be entitled to exercise any and all
voting rights attaching to any and all Collateral owned by it, and to give
consents, waivers or ratifications in respect thereof; PROVIDED, HOWEVER, that
no vote shall be cast or any consent, waiver or ratification given or any action
taken which would violate, result in breach of any covenant contained in, or be
inconsistent with, any of the terms of this Agreement, the Credit Agreement, any
of the other Loan Documents or any Interest Rate Protection Agreement
(collectively, the "SECURED DEBT AGREEMENTS"), or which would have the effect of
materially impairing the value of the Collateral or any material part thereof or
the position or interests of the Pledgee or any other Secured Creditor therein.
All such rights of a Pledgor to vote and to give consents, waivers and
ratifications with respect to all or any part of the Collateral owned by it
shall cease if (a) any Specified Default shall be continuing, and (b) the
Pledgee shall notify such Pledgor in writing of the Pledgee's decision to
exercise such rights with respect to all or (as the case may be) such part of
such Collateral.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless any Specified
Default shall be continuing, and except as otherwise provided by the Credit
Agreement or by the following sentences of this SECTION 6, all cash dividends,
cash distributions, cash Proceeds and other cash amounts payable in respect of
any Collateral owned by any Pledgor shall be paid to (and may be retained by)
such Pledgor. As contemplated and provided by SECTION 3.3 hereof, the Pledgee
shall be entitled to receive directly, and to retain as part of the Collateral:
(a) all other or additional Stock, Notes, Limited Liability
Company Interests, Partnership Interests, Instruments or other
Securities or Property (including, but not limited to, cash, except as
otherwise provided by the first sentence of this SECTION 6) paid or
distributed by way of dividend or otherwise in respect of the
Collateral;
(b) all other or additional Stock, Notes, Limited Liability
Company Interests, Partnership Interests, Instruments or other
Securities or Property (including, but not limited to, cash, except as
otherwise provided by the first sentence of this SECTION 6) paid or
distributed in respect of the Collateral by way of stock-split,
spin-off, split-up, reclassification, combination of shares or similar
rearrangement;
(c) all other or additional Stock, Notes, Limited Liability
Company Interests, Partnership Interests, Instruments or other
Securities or Property (including, but not limited to, cash, except as
otherwise provided by the first sentence of this SECTION 6) which may
be paid in respect of the Collateral by reason of any consolidation,
merger, exchange of stock, conveyance of assets, liquidation or similar
corporate or other reorganization; and
(d) if and as so requested by the Pledgee in writing during
the continuation of any Specified Default, all cash dividends, cash
distributions, cash Proceeds and other cash amounts paid or payable in
respect of all or any part of the Collateral.
All rights of any Pledgor to receive and to retain any cash dividends, cash
distributions, cash Proceeds or other cash amounts paid or payable in respect of
all or any part of the Collateral owned by it shall cease if (i) any Specified
Default shall be continuing, and (ii) the Pledgee shall notify the Borrower or
such Pledgor in writing of the Pledgee's decision to receive all or (as the case
may be) any part of such cash dividends or other such cash amounts. Nothing
contained in this SECTION 6 shall limit or restrict in any way the Pledgee's
right to receive the Proceeds of the Collateral in any form in accordance with
SECTION 3 of this Agreement. All dividends, distributions or other payments
which are received by any Pledgor contrary to the provisions of the Credit
Agreement or this SECTION 6 or SECTION 7 hereof shall be received
12
in trust for the benefit of the Pledgee and the other Secured Parties, shall be
segregated from other Property or funds of such Pledgor, and shall be forthwith
paid over to the Pledgee as Collateral in the same form as so received (with any
necessary endorsements).
7. REMEDIES IN CASE OF ANY SPECIFIED DEFAULT. If any Specified
Default shall be continuing, the Pledgee shall be entitled to exercise all of
the rights, powers and remedies (whether vested in it by this Agreement or by
any other Secured Debt Agreement or by law) for the protection and enforcement
of its rights and remedies in respect of the Collateral, including, without
limitation, all of the rights and remedies of a secured party upon default under
the Uniform Commercial Code of the Commonwealth of Massachusetts, and the
Pledgee shall be entitled, without limitation, to exercise any or all of the
following rights and remedies, which each Pledgor hereby irrevocably agrees to
be commercially reasonable:
(a) to receive all amounts (including cash) payable or
distributable in respect of the Collateral;
(b) to transfer all or any part of the Collateral into the
Pledgee's name or into the name of any of its nominees or into the name
of any of its sub-agents;
(c) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to collect
upon any Pledged Note (including, without limitation, to make any
demand for payment thereon);
(d) to vote all or any part of the Collateral (whether or not
transferred into the name of the Pledgee) and give all consents,
waivers and ratifications in respect of the Collateral and otherwise
act with respect thereto as though the Pledgee were the outright owner
thereof (subject to any applicable operating agreement, partnership
agreement or other Governing Document in the case of any Collateral
constituting Partnership Interests or Limited Liability Company
Interests) (each Pledgor hereby irrevocably constituting and appointing
the Pledgee the proxy and attorney-in-fact of such Pledgor, with full
power of substitution to do so);
(e) at any time or from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private Sale,
without demand of performance, advertisement or notice of intention to
sell or of the time or place of Sale or adjournment thereof or to
redeem or otherwise (all of which are hereby waived by each Pledgor),
for cash, on credit or for other Property, for immediate or future
delivery without any assumption of credit risk, and for such price or
prices and on such terms as the Pledgee in its absolute discretion may
determine; PROVIDED, HOWEVER, that at least 10 days' prior notice of
the time and place of any such Sale shall be given to such Pledgor. The
Pledgee shall not be obligated to make any such Sale of Collateral
regardless of whether any such notice of Sale has theretofore been
given. Each purchaser at any such Sale shall hold the Property so sold
absolutely free from any claim or right on the part of each Pledgor,
and each Pledgor hereby irrevocably waives and releases to the fullest
extent permitted by law any right or equity of redemption with respect
to the Collateral, whether before or after Sale hereunder, all rights,
if any, to require marshalling of the Collateral or any other security
for the Obligations or otherwise, and all rights, if any, of stay
and/or appraisal which such Pledgor now has or may at any time in the
future have under rule of law or statute now existing or hereafter
enacted. At any such Sale, unless prohibited by Applicable Law, the
Pledgee on behalf of all Secured Creditors (or certain of them) may bid
for and purchase (by bidding in Obligations or otherwise) all or any
part of the Collateral so sold free from any such right or equity of
redemption. Neither the Pledgee nor any other Secured Creditor shall be
liable for failure to collect or realize upon any or
13
all of the Collateral or for any delay in so doing nor shall any of
them be under any obligation to take any action whatsoever with regard
thereto; and
(f) to set-off all or any part of the Collateral against all
or any part of the Obligations, and to withdraw any and all cash or
other Collateral from any and all Collateral Accounts and to apply such
cash and other Collateral to the payment of any and all Obligations.
8. REMEDIES, ETC., CUMULATIVE. Each right, power and remedy of
the Pledgee provided for in this Agreement or in any other Secured Debt
Agreement, or now or hereafter existing at law or in equity or by statute, shall
be cumulative and concurrent and shall be in addition to each and every other
such right, power or remedy. The exercise or beginning of the exercise by the
Pledgee or any other Secured Creditor of any one or more of the rights, powers
or remedies provided for in this Agreement or any other Secured Debt Agreement
or now or hereafter existing at law or in equity or by statute or otherwise
shall not preclude the simultaneous or later exercise by the Pledgee or any
other Secured Creditor of any or all such other rights, powers or remedies, and
no failure or delay on the part of the Pledgee or any other Secured Creditor to
exercise any such right, power or remedy shall operate as a waiver thereof.
Unless otherwise required by the Loan Documents, no notice to or demand on any
Pledgor in any case shall entitle such Pledgor to any other or further notice or
demand in similar other circumstances or constitute a waiver of any of the
rights of the Pledgee or of any other Secured Creditor to take any other or
further action in any circumstances without demand or notice. The Secured
Creditors agree that this Agreement may be enforced only by the action of the
Pledgee, acting upon the instructions of the Required Lenders (or, after the
date on which all Loan Document Obligations shall have been paid in full, the
holders of at least a majority of the outstanding Other Obligations), and that
no other Secured Creditor shall have any right individually to seek to enforce
or to enforce this Agreement or to realize upon the security granted or to be
granted hereby, it being understood and agreed that such rights and remedies may
be exercised by the Pledgee or the holders of at least a majority of the
outstanding Other Obligations, as the case may be, for the benefit of the
Secured Creditors upon the terms of this Agreement and the other Secured Debt
Agreements.
9. APPLICATION OF PROCEEDS. (a) All moneys collected by the
Pledgee upon any Sale or other disposition of all or any part of the Collateral
pursuant to the terms of this Agreement, together with all other moneys from
time to time received by the Pledgee hereunder, shall be applied as follows:
(i) FIRST, to the payment of all of the Obligations owing to
the Pledgee of the type described in CLAUSES (c) and (d) of SECTION 1
hereof,
(ii) SECOND, to the extent proceeds remain after the
application pursuant to the preceding CLAUSE (i), an amount equal to
the outstanding Loan Document Obligations shall be paid to the Secured
Creditors, with each Secured Creditor receiving an amount equal to its
outstanding Loan Document Obligations or, if the proceeds are
insufficient to pay in full all of such Loan Document Obligations, its
Pro Rata Share of the amount remaining to be distributed;
(iii) THIRD, to the extent proceeds remain after the
application pursuant to the preceding CLAUSES (i) and (ii), an amount
equal to the outstanding Other Obligations shall be paid to the Secured
Creditors, with each Secured Creditor receiving an amount equal to its
outstanding Other Obligations or, if the proceeds are insufficient to
pay in full all of such Other Obligations, its Pro Rata Share of the
amount remaining to be distributed; and
(iv) FOURTH, to the extent proceeds remain after the
application pursuant to the preceding CLAUSES (i) through (iii),
inclusive, and following the termination of this Agreement
14
pursuant to SECTION 19 hereof, to the relevant Pledgor or to whomsoever
else may be lawfully entitled to receive such surplus.
(b) For purposes of this Agreement, the term "PRO RATA SHARE"
shall mean, when calculating a Secured Creditor's portion of any distribution or
amount, that amount (expressed as a percentage) equal to a fraction the
numerator of which is the then unpaid amount of such Secured Creditor's Loan
Document Obligations or Other Obligations, as the case may be, and the
denominator of which is the then outstanding aggregate amount of all Loan
Document Obligations or Other Obligations, as the case may be.
(c) If any payment to any Secured Creditor of its Pro Rata
Share of any distribution would result in overpayment to such Secured Creditor,
such excess amount shall instead be distributed PRO RATA amongst the other
Secured Creditors, FIRST, to pay outstanding Loan Document Obligations, and,
SECOND, to pay outstanding Other Obligations, all in accordance with SECTION
9(a) hereof.
(d) Each of the Secured Creditors agrees and acknowledges that
if the Lender Creditors are to receive a distribution on account of undrawn
amounts with respect to Letters of Credit issued under the Credit Agreement
(which shall occur only after all outstanding Loans and Letter of Credit
Borrowings with respect to such Letters of Credit have been paid in full), such
amounts shall be paid to the Administrative Agent under the Credit Agreement and
held by it, for the equal and ratable benefit of the Lender Creditors, as cash
collateral security for the repayment of Obligations owing to the Lender
Creditors as such. If any amounts are held as cash collateral security pursuant
to the immediately preceding sentence, then upon the termination of all
outstanding Letters of Credit, and after the application of all such cash
collateral security to the repayment of all Obligations owing to the Lender
Creditors after giving effect to the termination of all of such Letters of
Credit, if there remains any excess cash, such excess cash shall be returned by
the Administrative Agent to the Pledgee for distribution in accordance with
SECTION 9(a) hereof.
(e) Except as set forth in SECTION 9(d), all payments required
to be made hereunder shall be made (i) if to the Lender Creditors, to the
Administrative Agent under the Credit Agreement for the account of the Lender
Creditors, and (ii) if to the Other Creditors, to the trustee, paying agent or
other similar representative (each, a "REPRESENTATIVE") for the Other Creditors
or, in the absence of such a Representative, directly to the Other Creditors.
(f) For purposes of applying payments received in accordance
with this SECTION 9, (i) the Pledgee shall determine the outstanding unpaid Loan
Document Obligations owed to the Lender Creditors, and (ii) the Pledgee may rely
on any Other Creditor to determine the Other Obligations owed to such Other
Creditor.
(G) IT IS UNDERSTOOD AND AGREED THAT EACH PLEDGOR SHALL REMAIN
JOINTLY AND SEVERALLY LIABLE TO THE EXTENT OF ANY DEFICIENCY REMAINING AFTER THE
APPLICATION OF ALL OF THE PROCEEDS OF THE COLLATERAL HEREUNDER TO THE UNPAID
OBLIGATIONS AS PROVIDED BY SECTION 9(a) HEREOF.
10. PURCHASERS OF COLLATERAL. Upon any Sale of the Collateral
by the Pledgee hereunder (whether by virtue of the power of Sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making such Sale of the consideration paid or delivered pursuant to such
Sale shall be a sufficient discharge to the purchaser or purchasers of the
Collateral so sold, and such purchaser or purchasers shall not be obligated to
see to the application of all or any part of such consideration paid over or
delivered to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
15
11. INDEMNITY. Each Pledgor jointly and severally irrevocably
agrees (a) to indemnify and hold harmless the Pledgee, each other Secured
Creditor and their respective successors, assigns, employees, agents and
servants (individually, an "INDEMNITEE" and, collectively, the "INDEMNITEES") on
demand from and against any and all claims, demands, losses, judgments and
liabilities (including liabilities for penalties) of whatsoever kind or nature,
and (b) to reimburse each Indemnitee on demand for all reasonable costs and
expenses, including reasonable attorneys' fees, in each case arising out of or
resulting from this Agreement or the exercise by any Indemnitee of any right or
remedy granted to it hereunder or under any other Secured Debt Agreement (but
excluding any claims, demands, losses, judgments and liabilities (including
liabilities for penalties) or expenses of whatsoever kind or nature to the
extent incurred or arising by reason of gross negligence or willful misconduct
of such Indemnitee). In no event shall any Indemnitee hereunder be liable, in
the absence of gross negligence or willful misconduct on its part, for any
matter or thing in connection with this Agreement other than to account for
moneys or other Property actually received by it in accordance with the terms
hereof. If and to the extent that the obligations of any Pledgor under this
SECTION 11 are unenforceable for any reason, each such Pledgor hereby agrees to
make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under Applicable Law. The indemnity obligations
of each Pledgor contained in this SECTION 11 shall continue in full force and
effect notwithstanding the full payment of all of the Loans and other Credit
Extensions made under the Credit Agreement, the termination of all Interest Rate
Protection Agreements and Letters of Credit, and the payment of all of the other
Obligations, and notwithstanding the discharge thereof.
12. FURTHER ASSURANCES; POWERS OF ATTORNEY. (a) Each Pledgor
agrees that it will join with the Pledgee in executing and, at such Pledgor's
own cost and expense, file and refile under the Uniform Commercial Code such
financing statements, continuation statements and other documents in such
offices as the Pledgee (acting on its own or on the instructions of the Required
Lenders) may reasonably deem necessary or appropriate and wheresoever required
or permitted by law in order to perfect and preserve the Pledgee's security
interests in the Collateral hereunder and hereby authorizes the Pledgee to file
financing statements and amendments thereto relative to all or any part of the
Collateral without the signature of such Pledgor where permitted by law, and
agrees to do such further acts and things and to execute and deliver to the
Pledgee such additional conveyances, assignments, agreements and Instruments as
the Pledgee may reasonably require or deem advisable to carry into effect the
purposes of this Agreement or to further assure and confirm unto the Pledgee its
rights, powers and remedies hereunder or thereunder.
(b) Each Pledgor hereby irrevocably appoints the Pledgee such
Pledgor's attorney-in-fact, with full authority in the place and stead of such
Pledgor and in the name of such Pledgor or otherwise, from time to time during
the continuance of an Event of Default, in the Pledgee's discretion to take any
action and to execute any Instrument which the Pledgee may reasonably deem
necessary or advisable to accomplish the purposes of this Agreement.
13. THE PLEDGEE AS COLLATERAL AGENT. The Pledgee shall hold,
in accordance with this Agreement, all items of the Collateral at any time
received by the Pledgee under this Agreement. It is expressly understood and
agreed that the obligations of the Pledgee as holder of the Collateral and
interests therein and with respect to the disposition thereof, and otherwise
under this Agreement, are only those expressly set forth in this Agreement. The
Pledgee shall act hereunder on the terms and conditions set forth herein and in
ARTICLE XI of the Credit Agreement.
14. TRANSFER BY THE PLEDGORS. No Pledgor will sell or
otherwise dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber all or any part of the Collateral or any interest therein
(except, in each case, in accordance with or as otherwise permitted by the terms
of this Agreement, the Credit Agreement and the other Secured Debt Agreements).
16
15. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS.
(a) Each Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of, and has
good and marketable title to, all Collateral consisting of one or more
Securities and that it has sufficient interest in all Collateral in
which a security interest is purported to be created hereunder for such
security interest to attach (subject, in each case, to no pledge, Lien,
mortgage, hypothecation, security interest, charge, option, Adverse
Claim or any other encumbrance whatsoever, EXCEPT the Liens and
security interests created by this Agreement or otherwise permitted by
the terms of the Credit Agreement);
(ii) it has full power, authority and legal right to pledge
all of the Collateral pledged or to be pledged by it pursuant to this
Agreement;
(iii) this Agreement has been duly authorized, executed and
delivered by such Pledgor and constitutes a legal, valid and binding
obligation of such Pledgor enforceable against such Pledgor in
accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law) and principles of good faith
and fair dealing;
(iv) except to the extent already obtained or made, and except
as otherwise provided or otherwise described in SECTION 6.3 of the
Credit Agreement, no consent of any other party (including, without
limitation, any stockholder, member, partner or creditor of such
Pledgor or of any of its Subsidiaries), and no consent, license,
permit, approval or authorization of, exemption by, notice or report
to, or registration, filing or declaration with, any Governmental
Authority is required to be obtained by such Pledgor in connection with
(A) the execution, delivery or performance of this Agreement, (B) the
validity or enforceability of this Agreement, (C) the perfection or
enforceability of the Pledgee's security interests in the Collateral,
(D) except for compliance with or as may be required by applicable
securities laws, the exercise by the Pledgee of any of its rights or
remedies provided herein, or (E) except for compliance with or as may
required by any applicable partnership agreement, limited liability
company agreement or other Governing Document relating to any
partnership or limited liability company that is not a Wholly-Owned
Subsidiary of the Parent Company or of the Borrower, the exercise by
the Pledgee of any of its rights or remedies provided herein with
respect to the Partnership Interests or Limited Liability Company
Interests relating to such partnership or limited liability company;
(v) the execution, delivery and performance of this Agreement
will not violate any provision of any Applicable Law or of any order,
judgment, writ, award or decree of any court, arbitrator or other
Governmental Authority applicable to such Pledgor, or of the Governing
Documents of such Pledgor or of any Securities issued by such Pledgor
or by any of its Subsidiaries, or of any mortgage, deed of trust,
indenture, lease, loan agreement, credit agreement or other contract,
agreement or Instrument or undertaking to which such Pledgor or any of
its Subsidiaries is a party or which purports to be binding upon such
Pledgor or any of its Subsidiaries or upon any of their respective
Property and will not result in the creation or imposition of (or the
obligation to create or impose) any Lien on any of the Property of such
Pledgor or of any of its Subsidiaries (other than the Liens created by
the Collateral Documents);
(vi) all of the Collateral (consisting of Securities, Limited
Liability Company Interests or Partnership Interests) has been duly and
validly issued, is fully paid and nonassessable and is subject to no
options to purchase or other similar rights; PROVIDED, HOWEVER, that
17
Collateral consisting of Limited Liability Company Interests or
Partnership Interests may require further payments and/or assessments
in respect thereof in accordance with the partnership agreements,
limited liability company agreements or other Governing Documents
relating thereto or Applicable Law;
(vii) each of the Pledged Notes constitutes, or when executed
by the obligor thereof will constitute, the legal, valid and binding
obligation of such obligor, enforceable in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at
law) and principles of good faith and fair dealing;
(viii) the pledge, collateral assignment and delivery to the
Pledgee of the Collateral consisting of Certificated Securities
(together with Instruments of transfer therefor) pursuant to this
Agreement creates a valid and perfected first-priority security
interest in such Securities, and the Proceeds thereof, subject to no
prior Liens or encumbrances or to any agreement purporting to grant to
any third party any Lien or encumbrance on the Property of such Pledgor
which would include such Securities, and the Pledgee is entitled to all
of the rights, priorities and benefits afforded by the UCC or other
Applicable Law as enacted in any applicable jurisdiction to perfected
security interests in respect of such Collateral; and
(ix) "control" (as defined in Section 8-106 of the UCC) has
been obtained by the Pledgee over all Collateral consisting of
Securities (including Notes which are Securities) with respect to which
such "control" may be obtained pursuant to Section 8-106 of the UCC;
PROVIDED, HOWEVER, that, in the case of the Pledgee obtaining "control"
over Collateral consisting of a Security Entitlement, such Pledgor
shall have taken all steps in its control so that the Pledgee obtains
"control" over such Security Entitlement.
(b) Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Securities and the
Proceeds thereof against the claims and demands of all Persons whomsoever; and
each Pledgor covenants and agrees that it will have like title to and right to
pledge any other Property at any time hereafter pledged to the Pledgee as
Collateral hereunder and will likewise defend the right thereto and security
interests therein of the Pledgee and the other Secured Creditors.
16. CHIEF EXECUTIVE OFFICE; RECORDS. The chief executive
office of each Pledgor is located at the address specified in ANNEX F hereto.
Each Pledgor agrees that it will not move its chief executive office except to
such new location as such Pledgor may establish in accordance with the last two
sentences of this SECTION 16. The originals of all documents in the possession
of each Pledgor evidencing all Collateral, including, but not limited to, all
Limited Liability Company Interests and Partnership Interests, and the only
original books of account and records of such Pledgor relating thereto are, and
will continue to be, kept at its chief executive office at the location
specified in ANNEX F hereto, or at such new locations as such Pledgor may
establish in accordance with the last two sentences of this SECTION 16. All
Limited Liability Company Interests and Partnership Interests are, and will
continue to be, maintained at, and controlled and directed (including, without
limitation, for general accounting purposes) from, such chief executive office
location specified in ANNEX F hereto, or such new locations as the respective
Pledgor may establish in accordance with the last two sentences of this SECTION
16. No Pledgor shall establish a new location for such offices until (a) it
shall have given to the Pledgee not less than 60 days' prior written notice of
its intention so to do, clearly describing such new location and providing such
other information in connection therewith as the Pledgee may reasonably request,
and (b) with respect to such new location, it shall have taken all action,
satisfactory to the Pledgee, to maintain the
18
security interests of the Pledgee in the Collateral intended to be granted
hereby at all times fully perfected and in full force and effect. Promptly after
establishing a new location for such offices in accordance with the immediately
preceding sentence, the respective Pledgor shall deliver to the Pledgee a
supplement to ANNEX F hereto so as to cause such ANNEX F hereto to be complete
and accurate.
17. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. (a) The Obligations
of each Pledgor under this Agreement shall be absolute, unconditional and
irrevocable and shall remain in full force and effect without regard to, and
shall not be released, suspended, discharged, terminated or otherwise impaired
or affected by, any circumstance or occurrence whatsoever (other than
termination of this Agreement pursuant to SECTION 19 hereof), including, without
limitation:
(i) the dissolution, termination of existence, winding up,
bankruptcy, liquidation, insolvency, appointment of a receiver for all
or any part of the Property of, assignment for the benefit of creditors
by, or the commencement of any Insolvency Proceeding by or against, any
of the other Pledgors or any of the Subsidiaries of any of the
Pledgors;
(ii) the absorption, merger or consolidation of, or the
effectuation of any other change whatsoever in the name, ownership,
membership, constitution or place of organization or formation of, any
of the Pledgors or any of their Subsidiaries;
(iii) any extension or postponement of the time for the
payment of any of the Obligations of any of the Pledgors, the
acceptance of any partial payment thereon, any and all other
indulgences whatsoever by any of the Secured Creditors in respect of
any of the Obligations of any of the Pledgors, the taking, addition,
substitution or release, in whole or in part, at any time or times, of
any collateral or Liens securing any of the Obligations of any of the
Pledgors, or the addition, substitution or release, in whole or in
part, of any Person or Persons (including any of the Pledgors or
Subsidiary Guarantors) primarily or secondarily liable in respect of
any of the Obligations of any of the Pledgors;
(iv) any action or delay in acting or failure to act on the
part of any Secured Creditor under any of the Secured Debt Agreements
or in respect of any Obligations of any of the Pledgors or any
collateral or Liens securing any Obligations of any of the Pledgors or
otherwise, including (A) any action by any Secured Creditor to enforce
any of its rights, remedies or claims in respect of any collateral or
Liens securing any Obligations of any of the Pledgors, (B) any failure
by any Secured Creditor strictly or diligently to assert any rights or
to pursue any remedies or claims against any of the Pledgors or any
other Person or Persons under any of the Secured Debt Agreements or
provided by statute or at law or in equity, (C) any failure by the
Pledgee or by any other Secured Creditor to perfect or to preserve the
perfection or priority of any of its Liens securing any of the
Obligations of any of the Pledgors, or (D) any failure or refusal by
the Pledgee or by any other Secured Creditor to foreclose or to realize
upon any collateral or Liens securing any of the Obligations of any of
the Pledgors, or to take any action to enforce any of its rights,
remedies or claims under any Secured Debt Agreements;
(v) any modification or amendment of, or any supplement or
addition to, any of the Secured Debt Agreements;
(vi) any waiver, consent or other action or acquiescence by
the Pledgee or by any other Secured Creditor in respect of any default
by any of the Pledgors in its performance or observance of or
compliance with any term, covenant or condition contained in any of the
Secured Debt Agreements;
19
(vii) the existence or creation at any time or times on or
after the date of this Agreement of any claim, defense, right of
set-off or counterclaim of any nature whatsoever of any Pledgor against
any of the other Pledgors or Credit Parties or against any of the
Secured Creditors;
(viii) any incapacity or lack of authority of any Pledgor;
(ix) any of the Obligations of any of the Pledgors or any of
the Secured Debt Agreements or any provision of any thereof or any of
the Liens securing any of the Obligations of any of the Pledgors shall
at any time and for any reason whatsoever cease to be in full force or
effect with respect to any one or more of the Pledgors or shall be
declared null and void or illegal, invalid, unenforceable or
inadmissible in evidence in relation to any one or more of the
Pledgors, or any of the Obligations of any one or more of the Pledgors
or any Liens securing any of the Obligations of any one or more of the
Pledgors shall be subject to avoidance, or shall be avoided, as a
fraudulent transfer or fraudulent conveyance, whether prior to or after
the commencement of any Insolvency Proceedings; or
(x) the existence of any other condition or circumstance or
the occurrence of any other event or condition that might otherwise
constitute a legal or equitable discharge of or a suretyship defense to
performance by any Pledgor of any of its Obligations to any of the
Secured Creditors.
(b) EACH PLEDGOR HEREBY ABSOLUTELY, UNCONDITIONALLY AND
IRREVOCABLY WAIVES ALL SURETYSHIP AND OTHER SIMILAR DEFENSES TO PERFORMANCE BY
SUCH PLEDGOR OF ANY OF ITS OBLIGATIONS TO THE PLEDGEE OR TO ANY OF THE OTHER
SECURED CREDITORS.
(c) This Agreement shall be effective as to and shall be
enforceable by the Pledgee against each Pledgor from and after the execution and
delivery by such Pledgor of a counterpart of this Agreement. The agreements and
obligations of each Pledgor under this agreement are separate and independent
from and in addition to the agreements and Obligations of each other Pledgor
hereunder and shall be enforceable by the Pledgee against each Pledgor
notwithstanding (i) the failure of any other Pledgor to execute and deliver a
counterpart of this Agreement, (ii) the invalidity, unenforceability or
inadmissibility in evidence of this Agreement against any other Pledgor, (iii)
the release by the Pledgee of all or any of the other Pledgors from all or any
part of their Obligations under this Agreement, or the release by the Pledgee of
all or any part of the Collateral granted by all or any of the other Pledgors to
the Pledgee under this Agreement, or (iv) any waiver by the Pledgee of, or any
consent by the Pledgee to any departure from, any of the agreements or
Obligations of any other Pledgor hereunder on any occasion or occasions, or any
failure by the Pledgee to enforce any of the agreements or Obligations of any
other Pledgor hereunder on any occasion or occasions.
(d) Each of the Pledgors hereby absolutely, unconditionally
and irrevocably assents to and waives notice of, and waives any defenses that it
may otherwise have as a result of, any and all circumstances, occurrences and
other matters specified in CLAUSES (i) through (x) of PARAGRAPH (a) of this
SECTION 17.
18. SALE OF COLLATERAL WITHOUT REGISTRATION. If at any time
when the Pledgee shall determine to exercise its right to sell all or any part
of the Collateral consisting of Securities, Limited Liability Company Interests
or Partnership Interests pursuant to SECTION 7, and such Collateral or the part
thereof to be sold shall not, for any reason whatsoever, be effectively
registered under the Securities Act of 1933, as then in effect, the Pledgee may,
in its sole and absolute discretion, sell such Collateral or part thereof by
private Sale in such manner and under such circumstances as the
20
Pledgee may deem necessary or advisable in order that such Sale may legally be
effected without such registration. Without limiting the generality of the
foregoing, in any such event the Pledgee, in its sole and absolute discretion:
(a) may proceed to make such private Sale notwithstanding that a registration
statement for the purpose of registering such Collateral or part thereof shall
have been filed under such Securities Act; (b) may approach and negotiate with a
single possible purchaser to effect such Sale; and (c) may restrict such Sale to
a purchaser who will represent and agree that such purchaser is purchasing for
its own account, for investment, and not with a view to the distribution or Sale
of such Collateral or part thereof. In the event of any such Sale, the Pledgee
shall incur no responsibility or liability for selling all or any part of the
Collateral at a price which the Pledgee, in its sole and absolute discretion,
may in good faith deem reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might be realized if the Sale were
deferred until the registration as aforesaid.
19. TERMINATION; RELEASE. (a) On the Termination Date (as
defined below), this Agreement shall terminate (provided that all indemnities
set forth herein including, without limitation, in SECTION 11 hereof shall
survive any such termination), and the Pledgee, at the request and expense of
any Pledgor, will execute and deliver to such Pledgor a proper Instrument or
Instruments acknowledging the satisfaction and termination of this Agreement
(including, without limitation, UCC termination statements and Instruments of
satisfaction, discharge and/or reconveyance), and will duly assign, transfer and
deliver to such Pledgor (without recourse, and without any representation or
warranty) such of the Collateral as may be in the possession of the Pledgee and
as has not theretofore been sold or otherwise applied or released pursuant to
this Agreement, together with any moneys at the time held by the Pledgee or any
of its nominees or sub-agents hereunder, and, with respect to any Collateral
consisting of an Uncertificated Security (other than an Uncertificated Security
credited on the books of a Clearing Corporation), a Partnership Interest or a
Limited Liability Company Interest, a termination of the agreement relating
thereto executed and delivered by the issuer of such Uncertificated Security
pursuant to SECTION 3.2(a)(ii) or by the respective partnership or limited
liability company pursuant to SECTION 3.2(a)(iv). As used in this Agreement, the
term "TERMINATION DATE" shall mean the date upon which all of the Commitments,
the Letter of Credit Commitment, the Letters of Credit and all Interest Rate
Protection Agreements shall have terminated in full, no Notes are outstanding
(and all Loans shall have been paid in full), and all Obligations have been paid
in full and in cash.
(b) In the event that any part of the Collateral is sold or
otherwise disposed of (to a Person other than a Credit Party) (i) at any time
prior to the time at which all of the Loan Document Obligations have been paid
in full and all of the Commitments and Letters of Credit under the Credit
Agreement have been terminated, in connection with any Sale or disposition
permitted by SECTION 9.5 of the Credit Agreement or is otherwise released at the
direction of the Required Lenders (or all of the Lenders if required by SECTION
12.1 of the Credit Agreement), or (ii) at any time thereafter, to the extent
permitted by the other Secured Debt Agreements, and in the case of CLAUSES (i)
and (ii), the proceeds of such Sale or disposition (or from such release) are
applied in accordance with the terms of the Credit Agreement or such other
Secured Debt Agreement, as the case may be, to the extent required to be so
applied, the Pledgee, at the request and expense of such Pledgor, will duly
assign, transfer and deliver to such Pledgor (without recourse, and without any
representation or warranty) such of the Collateral as is then being (or has
been) so sold or released and as may be in possession of the Pledgee and has not
theretofore been released pursuant to this Agreement.
(c) At any time that any Pledgor desires that Collateral be
released as provided in the foregoing SECTION 19(a) or (b), it shall deliver to
the Pledgee a certificate signed by a principal executive officer of such
Pledgor stating that the release of the respective Collateral is permitted
pursuant to SECTION 19(a) or (b). If reasonably requested by the Pledgee
(although the Pledgee shall have no obligation to make any such request), the
relevant Pledgor shall furnish appropriate legal opinions (from counsel
reasonably acceptable to the Pledgee) to the effect set forth in the immediately
preceding sentence. The
21
Pledgee shall have no liability whatsoever to any Secured Creditor as the result
of any release of Collateral by it as permitted by this SECTION 19.
20. NOTICES, ETC. All notices and other communications
hereunder shall be in writing and shall be delivered or mailed by first-class
mail, postage prepaid, addressed:
(a) if to any Pledgor, at:
c/o Regent Communications, Inc.
50 East RiverCenter Boulevard
Suite 180
Covington, Kentucky 41011
Attention: Anthony A. Vasconcellos
(b) if to the Pledgee, at:
Fleet National Bank
100 Federal Street
Boston, Massachusetts 02110
Attention: Robert F. Milordi, Managing Director
(c) if to any Lender Creditor (other than the Pledgee), at
such address as such Lender Creditor shall have specified in the Credit
Agreement;
(d) if to any Other Creditor, at such address as such Other
Creditor shall have specified in writing to each of the Borrower and
the Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
21. THE PLEDGEE. The Pledgee will hold, directly or indirectly
in accordance with this Agreement, all items of the Collateral at any time
received by it under this Agreement. It is expressly understood and agreed that
the obligations of the Pledgee with respect to the Collateral, interests therein
and the disposition thereof, and otherwise under this Agreement, are only those
expressly set forth in the UCC and in this Agreement.
22. WAIVER; AMENDMENT. Except as contemplated in SECTION 25
hereof, none of the terms or conditions of this Agreement may be changed,
waived, discharged or terminated in any manner whatsoever unless such change,
waiver, discharge or termination is in writing duly signed by each Pledgor
directly and adversely affected thereby and by the Pledgee (with the consent of
(a) the Required Lenders (or, to the extent required by SECTION 12.1 of the
Credit Agreement, all of the Lenders) at all times prior to the time at which
all Loan Document Obligations have been paid in full and all of the Commitments
and Letters of Credit under the Credit Agreement have been terminated in full,
or (b) the holders of at least a majority of the outstanding Other Obligations
at all times after the time at which all Loan Document Obligations have been
paid in full and all of the Commitments and Letters of Credit under the Credit
Agreement have been terminated in full; PROVIDED, HOWEVER, that any change,
waiver, modification or variance affecting the rights and benefits of a single
Class (as defined below) of Secured Creditors (and not all Secured Creditors in
a like or similar manner) shall require the written consent of the Requisite
Creditors (as defined below) of such Class of Secured Creditors. For the purpose
of this Agreement, the term "CLASS" shall mean each class of Secured Creditors,
i.e., whether (i) the Lender Creditors as holders of the Loan Document
Obligations, or (ii) the Other Creditors as holders of the Other
22
Obligations. For the purpose of this Agreement, the term "REQUISITE CREDITORS"
of any Class shall mean each of (A) with respect to each of the Loan Document
Obligations, the Required Lenders, and (B) with respect to the Other
Obligations, the holders of at least a majority of all Other Obligations
outstanding from time to time.
23. MISCELLANEOUS. This Agreement shall create a continuing
security interest in the Collateral and shall (a) remain in full force and
effect, subject to release and/or termination as set forth in SECTION 19, (b) be
binding upon each Pledgor, its successors and assigns; PROVIDED, HOWEVER, that
no Pledgor shall assign any of its rights or obligations hereunder without the
prior written consent of the Pledgee (with the prior written consent of the
Required Lenders, or to the extent required by SECTION 12.1 of the Credit
Agreement, all of the Lenders), and (c) inure, together with the rights and
remedies of the Pledgee hereunder, to the benefit of the Pledgee, the other
Secured Parties and their respective successors, transferees and assigns. THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. The headings of the several
sections and subsections in this Agreement are for purposes of reference only
and shall not limit or define the meaning hereof. This Agreement may be executed
in any number of counterparts, each of which shall be an original, but all of
which together shall constitute but one instrument. In the event that any
provision of this Agreement shall prove to be invalid or unenforceable, such
provision shall be deemed to be severable from the other provisions of this
Agreement which shall remain binding on all of the parties hereto.
24. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
25. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of the Parent Company or of the Borrower that is required to execute
and deliver a counterpart of this Agreement pursuant to the Credit Agreement
shall automatically (without any action on the part of any party hereto) become
a Pledgor hereunder by executing a counterpart hereof and by delivering the same
to the Pledgee.
26. FULL RECOURSE. This Agreement is made with full recourse
to each of the Pledgors and pursuant to and upon all of the representations,
warranties, covenants and agreements on the part of each of the Pledgors
contained herein and in the other Secured Debt Agreements and otherwise in
writing in connection herewith or therewith.
27. LIMITED OBLIGATIONS OF SUBSIDIARY GUARANTORS. It is the
desire and intent of each of the Pledgors and the Secured Parties that this
Agreement shall be enforced against each Pledgor to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Notwithstanding anything to the contrary contained
herein, in furtherance of the foregoing, it is noted that the Obligations of
each Pledgor that is a Subsidiary Guarantor have been limited as provided in the
Subsidiary Guaranty.
28. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER.
(a) Nothing herein shall be construed to make the Pledgee or any other Secured
Creditor liable as a member of any limited liability company or partnership, and
neither the Pledgee nor any other Secured Creditor by virtue of this Agreement
or otherwise (except as referred to in the following sentence) shall have any of
the duties, obligations or liabilities of a member of any limited liability
company or partnership. The parties hereto expressly agree that, unless the
Pledgee shall become the
23
absolute owner pursuant hereto of Collateral consisting of Limited Liability
Company Interests or Partnership Interests, this Agreement shall not be
construed as creating a partnership or joint venture among the Pledgee, any
other Secured Creditor and/or any Pledgor.
(b) Except as provided in the last sentence of PARAGRAPH (a)
of this SECTION 28, the Pledgee, by becoming a party to this Agreement, did not
intend to become a member of any limited liability company or partnership or
otherwise intend to be a co-venturer with respect to any Pledgor or any limited
liability company or partnership either before or after an Event of Default
shall have occurred. The Pledgee shall have only those powers set forth herein,
and the Secured Creditors shall assume none of the duties, obligations or
liabilities of a member of any limited liability company or partnership or any
Pledgor, EXCEPT as and to the extent provided in the last sentence of PARAGRAPH
(a) of this SECTION 28.
(c) The Pledgee and the other Secured Creditors shall not be
obligated to perform or discharge any obligation of any Pledgor as a result of
any of the pledges hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all
the rights, powers, privileges and authority so created, shall not at any time
or in any event obligate the Pledgee or any other Secured Creditor to appear in
or defend any action or proceeding relating to the Collateral, or to take any
action hereunder or thereunder, or to expend any money or incur any expenses or
perform or discharge any obligation, duty or liability under the Collateral.
29. ACTIONS REQUIRING FCC APPROVAL.
(a) Notwithstanding anything to the contrary contained in this
Agreement, or any of the documents executed pursuant hereto, the Pledgee will
not take any action pursuant to this Agreement, or any such documents, which
would constitute or result in any assignment of any FCC Authorization or any
transfer of control of the holder of any FCC Authorization if such assignment of
such FCC Authorization or such transfer of control would require under
then-existing law (including the Communications Act and the written rules,
regulations and policies promulgated by the FCC), the prior approval of the FCC,
without first obtaining such approval. In connection with this SECTION 29, the
Pledgee shall be entitled to rely in good faith upon an opinion of outside FCC
counsel of the Pledgee's choice with respect to any such assignment or transfer,
whether or not the advice rendered is ultimately determined to have been
accurate.
(b) If any Material Event of Default shall have occurred, each
Pledgor shall take any action which the Pledgee may reasonably request in the
exercise of its rights and remedies under this Agreement in order to transfer or
assign all or any part of the Collateral to the Pledgee or to such one or more
third parties as the Pledgee may designate, or to a combination of the
foregoing. To enforce the provisions of this SECTION 29, the Pledgee is
empowered to seek from the FCC and any other Governmental Authority, to the
extent required, consent to or approval of any involuntary transfer of control
of any Person whose Collateral is subject to this Agreement for the purpose of
seeking a BONA FIDE purchaser to whom control will ultimately be transferred.
Each Pledgor agrees to cooperate with any such purchaser and with the Pledgee in
the preparation, execution and filing of any forms and providing any information
that may be necessary or helpful in obtaining the FCC's consent to the
assignment to such purchaser of such Collateral. Each Pledgor hereby irrevocably
agrees to consent to any such involuntary transfer of control upon the request
of the Pledgee after and during the continuation of any Material Event of
Default, and, without limiting any rights of the Pledgee under this Agreement,
to authorize the Pledgee to nominate a trustee or receiver to assume control of
the Collateral, subject only to required judicial, FCC or other consent required
by Governmental Authorities, in order to effectuate the transactions
contemplated in this Section 29. Such trustee or receiver shall have all of the
rights and powers as provided to it by law or court order, or to the Pledgee
under this Agreement. Each Pledgor shall
24
cooperate fully in obtaining the consent of the FCC and the approval or consent
of each other Governmental Authority required to effectuate the foregoing.
(c) Each Pledgor shall use its best efforts to assist in
obtaining the consent or approval of the FCC and any other Governmental
Authority, if required, for any action or transactions contemplated by this
Agreement, including, without limitation, the preparation, execution and filing
with the FCC of the transferor's or assignor's portion of any application or
applications for consent to the transfer of control or assignment necessary or
appropriate under the FCC's rules and regulations for approval of the transfer
or assignment of any portion of the Collateral.
(d) Each Pledgor hereby acknowledges and agrees that the
Collateral is a unique asset and that a violation of such Pledgor's covenant to
cooperate with respect to any regulatory consents will result in irreparable
harm to the Pledgee for which monetary damages are not readily ascertainable.
Each Pledgor further agrees that, because of the unique nature of its
undertaking in this SECTION 29, the same may be specifically enforced, and it
hereby waives, and agrees to waive, any claim or defense that the Pledgor would
have to an adequate remedy at law for the breach of this undertaking.
(e) Without limiting the obligations of any Pledgor hereunder
in any respect, each Pledgor further agrees that if such Pledgor, upon or after
the occurrence of any Material Event of Default, shall fail or refuse for any
reason whatsoever, including, without limitation, any refusal pursuant to
SECTION 29(c) to execute any application necessary or appropriate to obtain any
governmental consent necessary or appropriate for the exercise of any right of
the Pledgee hereunder, such Pledgor agrees that such application may be executed
on such Pledgor's behalf by the clerk of any competent jurisdiction without
notice to such Pledgor pursuant to court order.
30. EFFECTIVENESS. This Agreement shall become effective on
and as of the date hereof when the Pledgee, the Parent Company, the Borrower and
one or more Subsidiary Guarantors identified in ANNEX A hereto shall have signed
a counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of facsimile transmission) the same to the Pledgee.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
25
IN WITNESS WHEREOF, the parties hereto have caused this PLEDGE
AGREEMENT to be duly executed and delivered as of the date first above written.
The Parent Company:
------------------
REGENT COMMUNICATIONS, INC.
BY: /s/ Anthony A. Vasconcellos
----------------------------------------
NAME: Anthony A. Vasconcellos
TITLE: Vice President and
Chief Financial Officer
The Borrower:
-------------
REGENT BROADCASTING, INC.
BY: /s/ Anthony A. Vasconcellos
----------------------------------------
NAME: Anthony A. Vasconcellos
TITLE: Vice President and
Chief Financial Officer
The Subsidiary Guarantors:
--------------------------
REGENT BROADCASTING
MIDWEST, INC.
REGENT BROADCASTING OF
FLINT, INC.
REGENT LICENSEE OF FLINT, INC.
REGENT BROADCASTING OF
MANSFIELD, INC.
REGENT LICENSEE OF
MANSFIELD, INC.
BY: /s/ Anthony A. Vasconcellos
----------------------------------------
NAME: Anthony A. Vasconcellos
TITLE: Vice President and
Chief Financial Officer
(SIGNATURES CONTINUED ON NEXT PAGE)
26
The Subsidiary Guarantors:
--------------------------
REGENT BROADCASTING OF
EL PASO, INC.
REGENT LICENSEE OF EL PASO, INC.
REGENT BROADCASTING OF
ERIE, INC.
REGENT LICENSEE OF ERIE, INC.
REGENT BROADCASTING OF
LEXINGTON, INC.
REGENT LICENSEE OF
LEXINGTON, INC.
REGENT BROADCASTING OF
SAN DIEGO, INC.
REGENT LICENSEE OF
SAN DIEGO, INC.
REGENT BROADCASTING OF
SOUTH CAROLINA, INC.
REGENT LICENSEE OF
SOUTH CAROLINA, INC.
REGENT BROADCASTING OF
ST. CLOUD, INC.
REGENT LICENSEE OF
ST. CLOUD, INC.
REGENT BROADCASTING OF
UTICA/ROME, INC.
REGENT LICENSEE OF
UTICA/ROME, INC.
REGENT BROADCASTING OF
WATERTOWN, INC.
REGENT LICENSEE OF
WATERTOWN, INC.
BY: /s/ Anthony A. Vasconcellos
----------------------------------------
NAME: Anthony A. Vasconcellos
TITLE: Vice President and
Chief Financial Officer
(SIGNATURES CONTINUED ON NEXT PAGE)
27
The Subsidiary Guarantors:
--------------------------
REGENT BROADCASTING OF
WEST COAST, INC.
REGENT BROADCASTING OF
CHICO, INC.
REGENT LICENSEE OF CHICO, INC.
REGENT BROADCASTING OF
FLAGSTAFF, INC.
REGENT LICENSEE OF
FLAGSTAFF, INC.
REGENT BROADCASTING OF
KINGMAN, INC.
REGENT LICENSEE OF
KINGMAN, INC.
REGENT BROADCASTING OF
LAKE TAHOE, INC.
REGENT LICENSEE OF
LAKE TAHOE, INC.
REGENT BROADCASTING OF
PALMDALE, INC.
REGENT LICENSEE OF
PALMDALE, INC.
REGENT BROADCASTING OF
REDDING, INC.
REGENT LICENSEE OF
REDDING, INC.
REGENT BROADCASTING OF
VICTORVILLE, INC.
REGENT LICENSEE OF
VICTORVILLE, INC.
BY: /s/ Anthony A. Vasconcellos
-----------------------------------
NAME: Anthony A. Vasconcellos
TITLE: Vice President and
Chief Financial Officer
(SIGNATURES CONTINUED ON NEXT PAGE)
28
ADDRESS OF PLEDGORS:
--------------------
c/o Regent Communications, Inc.
50 East RiverCenter Boulevard
Suite 180
Covington, Kentucky 41011
Attention: Anthony A. Vasconcellos
Vice President and
Chief Financial Officer
Telephone:
Facsimile:
The Pledgee:
------------
FLEET NATIONAL BANK,
as Pledgee
By: /s/ Robert F. Milordi
Name: Robert F. Milordi
Title: Managing Director
ADDRESS OF PLEDGEE:
-------------------
100 Federal St.
Boston, Massachusetts 02110
Attention: Robert F. Milordi
Facsimile: (617) 434-3401
Telephone: (617) 434-8092