EXHIBIT 10.3
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AMENDED AND RESTATED PLEDGE AGREEMENT
By
CONSOLIDATED COMMUNICATIONS HOLDINGS, INC.
CONSOLIDATED COMMUNICATIONS, INC.
CONSOLIDATED COMMUNICATIONS ACQUISITION TEXAS, INC.
the Subsidiary Guarantors named herein,
and
Each Other Grantor
From Time to Time Party Hereto,
as Pledgors,
and
CITICORP NORTH AMERICA, INC.,
as Collateral Agent
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Dated as of [ ], 2005
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TABLE OF CONTENTS
Page
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SECTION 1. Pledge.......................................................2
SECTION 2. Delivery of the Securities Collateral........................3
SECTION 3. Representations, Warranties and Covenants....................4
SECTION 4. Registration in Nominee Name; Denominations..................5
SECTION 5. Voting Rights; Dividends and Interest, etc...................5
SECTION 6. Remedies upon Default........................................6
SECTION 7. Application of Proceeds of Sale..............................8
SECTION 8. Collateral Agent Appointed Attorney-in-Fact..................8
SECTION 9. Waivers; Amendment...........................................9
SECTION 10. Securities Act, etc..........................................9
SECTION 11. Security Interest Absolute...................................9
SECTION 12. Termination or Release......................................10
SECTION 13. Notices.....................................................10
SECTION 14. Further Assurances..........................................10
SECTION 15. Binding Effect; Several Agreement; Assignment...............11
SECTION 16. Survival of Agreement; Severability.........................11
SECTION 17. GOVERNING LAW...............................................11
SECTION 18. Counterparts................................................11
SECTION 19. Rules of Interpretation.....................................12
SECTION 20. Jurisdiction; Consent to Service of Process.................12
SECTION 21. WAIVER OF JURY TRIAL........................................12
SECTION 22. Additional Pledgors.........................................12
SECTION 23. Execution of Financing Statements...........................13
SECTION 24. Non-U.S. Pledge Agreements..................................13
SCHEDULES
Schedule I Domestic Subsidiaries
Schedule II Pledged Stock and Debt Securities
Schedule III Required Consents
ANNEXES
Annex I Form of Supplement to Pledge Agreement
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PLEDGE AGREEMENT
AMENDED AND RESTATED PLEDGE AGREEMENT (as amended, amended and
restated, supplemented or otherwise modified from time to time, this
"Agreement") dated as of [ ], 2005, among CONSOLIDATED COMMUNICATIONS HOLDINGS,
INC. ("CCI Holdings"), a Delaware corporation, CONSOLIDATED COMMUNICATIONS, INC.
(the "CCI Borrower"), an Illinois corporation, CONSOLIDATED COMMUNICATIONS
ACQUISITION TEXAS, INC. (the "TXU Borrower" and together with the CCI Borrower,
the "Borrowers"), a Delaware corporation, each Subsidiary of either Borrower
listed on Schedule I hereto (collectively, together with each Subsidiary of
either Borrower that becomes a party hereto pursuant to Section 22 of this
Agreement, the "Subsidiary Guarantors" and, together with CCI Holdings and the
Borrowers, the "Pledgors," and each a "Pledgor") and CITICORP NORTH AMERICA,
INC., as collateral agent (in such capacity, and together with any successors in
such capacity, the "Collateral Agent") for the Secured Parties (as defined in
the Security Agreement (as hereinafter defined)).
R E C I T A L S
A. CCI Holdings, the Borrowers, CITICORP NORTH AMERICA, INC., as
Administrative Agent, CREDIT SUISSE FIRST BOSTON, acting through its Cayman
Islands branch ("CSFB") and DEUTSCHE BANK SECURITIES INC., as Co-Syndication
Agents, CSFB and CITIGROUP GLOBAL MARKETS INC. as Joint Lead Arrangers and Joint
Lead Bookrunnners, COBANK, ACB, as documentation agent and each lending
institution from time to time party thereto in their capacities as lenders, the
"Lenders") have, in connection with the execution and delivery of this
Agreement, entered into that certain Second Amended and Restated Credit
Agreement, dated as of February 23, 2005 (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
providing for the making of Loans to the Borrowers and the issuance of and
participations in Letters of Credit for the account of the Borrowers, pursuant
to, and upon the terms and subject to the conditions specified in, the Credit
Agreement.
B. The parties hereto are all parties to the Pledge Agreement (the
"Existing Pledge Agreement"), dated as of April 14, 2004, entered into in
connection with the Original Credit Agreement (as defined in the Credit
Agreement");
C. In connection with the execution of the Credit Agreement, the
parties wish to amend and restate the Existing Pledge Agreement pursuant to this
Agreement;
D. CCI Holdings and each Subsidiary of the Borrowers that is a
Subsidiary Guarantor have, pursuant to the Amended and Restated Guarantee
Agreement (the "Guarantee Agreement"), dated as of the date hereof, among other
things, unconditionally guaranteed the Guaranteed Obligations;
E. CCI Holdings, the Borrowers and each Subsidiary Guarantor will
receive substantial benefits from the execution, delivery and performance of the
obligations under the Credit Agreement and are, therefore, willing to enter into
this Agreement.
F. It is contemplated that, to the extent permitted by the Credit
Agreement, one or more of the Pledgors may enter into one or more Hedging
Agreements relating to the Loans with one or more Persons that were Lenders or
Affiliates of a Lender at the time such Hedging Agreements were entered into
(collectively, the "Hedging Exchangers").
G. Each Pledgor is or, as to Securities Collateral (as hereinafter
defined) acquired by such Pledgor after the date hereof will be, the legal
and/or beneficial owner of the Securities Collateral pledged by it hereunder.
H. Contemporaneously with the execution and delivery of this
Agreement, the Pledgors have executed and delivered to the Collateral Agent an
Amended and Restated Security Agreement dated as of the date hereof (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
"Security Agreement").
I. This Agreement is given by each Pledgor in favor of the
Collateral Agent for the benefit of the Secured Parties (as defined in the
Security Agreement) to secure the payment and performance of its Obligations (as
defined in the Security Agreement).
Capitalized terms used herein and not defined herein shall have
meanings assigned to such terms in the Credit Agreement and the terms "FCC,"
"PUC" and "UCC" have the meanings assigned to such terms in the Security
Agreement. Capitalized terms used herein and not defined herein or in the Credit
Agreement shall have the meanings given such terms in the UCC.
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Pledgor, the receipt and sufficiency of which are hereby
acknowledged, each Pledgor hereby makes the following representations and
warranties to the Collateral Agent for the benefit of the Secured Parties (and
each of their respective successors and assigns), and agrees as follows:
SECTION 1. Pledge. As security for the payment and performance, as
the case may be, in full of its Obligations, each Pledgor hereby transfers,
grants, bargains, sells, conveys, hypothecates, pledges, sets over and delivers
unto the Collateral Agent, and hereby grants to the Collateral Agent, for the
ratable benefit of the Secured Parties, a security interest, subject to
Permitted Liens in all of such Pledgor's right, title and interest in, to and
under (a) all the shares of capital stock and other Equity Interests owned by it
(including, without limitation, those listed on Schedule II hereto) and any
shares of capital stock and other Equity Interests obtained in the future by
such Pledgor and the certificates representing all such shares or interests
(collectively, the "Pledged Stock"); provided that the Pledged Stock shall not
include (i) more than 65% of the issued and outstanding shares of voting stock
of any Non-U.S. Subsidiary, (ii) to the extent that applicable law requires that
a Subsidiary of the Pledgor issue directors' qualifying shares, such qualifying
shares or (iii) any Excluded Property; (b)(i) all debt securities (including,
without limitation, those listed opposite the name of such Pledgor on Schedule
II hereto), and (ii) all debt securities in the future issued to the Pledgor,
together with all promissory notes and any other instruments evidencing such
debt securities (the "Pledged Debt Securities" and together with the Pledged
Stock, the "Pledged Securities"); (c) all other property that may be delivered
to and held by the Collateral Agent pursuant to the terms hereof; (d) subject to
Section 5, all payments of principal or interest, dividends, cash, instruments
and other property from time to time received, receivable or otherwise
distributed in respect of, in exchange for or upon the conversion of the
securities referred to in clauses (a) and (b) above; (e) subject to Section 5,
all rights and privileges of the Pledgor with respect to the securities and
other property referred to in clauses (a), (b), (c) and (d) above; and (f) all
proceeds of any and all of the foregoing (all the foregoing, collectively, the
"Securities Collateral").
Each Pledgor hereby affirms its prior grant of security interests
under the Existing Pledge Agreement in favor of the Collateral Agent for the
benefit of the Secured Parties. Without limiting the foregoing, it is expressly
understood and agreed that all security interests, assignments and liens granted
by the Pledgors in favor of the Collateral Agent for the benefit of the Secured
Parties in the Existing
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Pledge Agreement are not terminated hereby, but continue and remain in full
force and effect, subject to the terms and provisions hereof.
For purposes of the foregoing, the term "Excluded Property" shall
mean Special Property (as defined below) other than the following:
(a) the right to receive any payment of money (including, without
limitation, any rights referred to in Sections 9-406(d), 9-407(a),
9-408(a) or 9-409(a) of the UCC to the extent that sections of the UCC are
effective to limit the prohibitions which make such property "Special
Property"); and
(b) any proceeds, products, accessions, rents, profits, income,
benefits, substitutions or replacements of any Special Property (unless
such proceeds, products, accessions, rents, profits, income, benefits,
substitutions or replacements themselves would constitute Special
Property).
The term "Special Property" means any General Intangible held by any
Pledgor to the extent, and for so long as, any valid contract applicable to such
Property or Requirement of Law applicable thereto, validly prohibits the
creation of a Lien on such Property in favor of the Collateral Agent (and upon
the termination of such prohibition (howsoever occurring) such Property shall
cease to be "Special Property").
Upon delivery to the Collateral Agent, (a) any Pledged Securities
now or hereafter included in the Securities Collateral shall be accompanied by
stock powers duly executed in blank or other instruments of transfer
satisfactory to the Collateral Agent and by such other instruments and documents
as the Collateral Agent may reasonably request and (b) all other property
comprising part of the Securities Collateral shall be accompanied by proper
instruments of assignment duly executed by the applicable Pledgor and such other
instruments or documents as the Collateral Agent may reasonably request. Each
subsequent delivery of Pledged Securities shall be accompanied by a schedule
describing the securities then being pledged hereunder, which schedule shall be
attached hereto as a supplement to Schedule II and made a part hereof. Each
schedule so delivered shall supplement any prior schedules so delivered.
TO HAVE AND TO HOLD the Securities Collateral, together with all
right, title, interest, powers, privileges and preferences pertaining or
incidental thereto, unto the Collateral Agent, its successors and assigns, for
the benefit of the Secured Parties, forever; subject, however, to the terms,
covenants and conditions hereinafter set forth.
SECTION 2. Delivery of the Securities Collateral. (a) Each Pledgor
agrees promptly to deliver or cause to be delivered to the Collateral Agent any
and all Pledged Securities, and any and all certificates or other instruments or
documents representing the Securities Collateral.
(b) Each Pledgor will cause any Indebtedness for borrowed money owed
to such Pledgor by any Person which is evidenced by a duly executed promissory
note to be pledged and delivered to the Collateral Agent pursuant to the terms
hereof.
(c) If any Equity Interests now or hereafter acquired by any Pledgor
constituting Pledged Stock are uncertificated, such Pledgor shall immediately
notify the Collateral Agent thereof and shall use commercially reasonable
efforts to cause such Equity Interests to be certificated. If, after using
commercially reasonable efforts, such Pledgor is not able to have such Equity
Interests certificated, such Pledgor shall use commercially reasonable efforts
to, pursuant to an agreement in form and substance sat-
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isfactory to the Collateral Agent, either (a) grant "control" (within the
meaning of section 8-106(c)(2) of the UCC) of such Equity Interests, or (b)
arrange for the Collateral Agent to become the registered owner of such Equity
Interests.
SECTION 3. Representations, Warranties and Covenants. Each Pledgor
hereby represents, warrants and covenants, as to itself and the Securities
Collateral pledged by it hereunder, to and with the Collateral Agent that:
(a) the Pledged Stock represents that percentage as set forth on
Schedule II of the issued and outstanding shares of each class of the
capital stock or other Equity Interests of the issuer with respect
thereto;
(b) except for the security interest granted hereunder, such Pledgor
(i) is and will at all times continue to be the direct owner, beneficially
and of record, of the Pledged Securities indicated on Schedule II, (ii)
holds the same free and clear of all Liens other than Permitted Liens,
(iii) will make no assignment, pledge, hypothecation or transfer of, or
create or permit to exist any security interest in or other Lien on, the
Securities Collateral, other than to the extent permitted by the Credit
Agreement, and (iv) subject to Section 5, will cause any and all
Securities Collateral, whether for value paid by the Pledgor or otherwise,
to be forthwith deposited with the Collateral Agent and pledged or
assigned hereunder;
(c) such Pledgor (i) has the power and authority to pledge the
Securities Collateral in the manner hereby done or contemplated and (ii)
will defend its title or interest thereto or therein against any and all
Liens (other than the Lien created by this Agreement and Permitted Liens),
however arising, of all Persons whomsoever;
(d) neither the execution and delivery hereof by each Pledgor nor
the consummation of the transactions herein contemplated nor the
fulfillment of the terms hereof (i) violates the certificate or
incorporation, bylaws, operating agreement or other operative agreement of
such Pledgor or any issuer of Pledged Securities, (ii) violates the terms
of any material agreement, indenture, mortgage, deed of trust, equipment
lease, instrument or other document to which such Pledgor is a party, or
by which it is bound or to which any of its properties or assets are
subject, (iii) conflicts with any Requirement of Law applicable to any
such Pledgor or its property, or (iv) results in or requires the creation
or imposition of any Lien (other than the Lien contemplated hereby or by
any of the other Loan Documents) upon or with respect to any of the
property now owned or hereafter acquired by such Pledgor. Except as set
forth on Schedule III, no consent of any party (including, without
limitation, equityholders or creditors of such Pledgor) and no consent,
authorization, approval, license or other action by, and no notice to or
filing with, any Governmental Authority or regulatory body or other Person
(including the FCC and any PUC (each as defined in the Security Agreement)
is required (A) for the pledge by such Pledgor of the Pledged Securities
pledged by it pursuant to this Agreement or for the execution, delivery or
performance hereof by such Pledgor, (B) for the exercise by the Collateral
Agent of the voting or other rights provided for in this Agreement or (C)
for the exercise by the Collateral Agent of the remedies in respect of the
Securities Collateral pursuant to this Agreement. In the event that the
Collateral Agent desires to exercise any remedies, voting or consensual
rights or attorney-in-fact powers set forth in this Agreement and
determines it necessary to obtain any approvals or consents of any
Governmental Authority or any other Person therefor, then, upon the
reasonable request of the Collateral Agent, such Pledgor agrees to use its
commercially reasonable efforts to assist and aid the Collateral Agent to
obtain as soon as practicable any necessary approvals or consents for the
exercise of any such remedies, rights and powers;
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(e) by virtue of the execution and delivery of this Agreement, when
the Pledged Securities, certificates or other documents representing or
evidencing the Securities Collateral are delivered to the Collateral Agent
in accordance with this Agreement, the Collateral Agent will obtain a
valid and perfected first lien, subject to Permitted Liens, upon and
security interest in such Pledged Securities as security for the payment
and performance of the Obligations of each Pledgor;
(f) the pledge effected hereby is effective to vest in the
Collateral Agent, on behalf of the Secured Parties, the rights of the
Collateral Agent in the Securities Collateral as set forth herein;
(g) all of the Pledged Stock has been duly authorized and validly
issued and is fully paid and nonassessable;
(h) all of the Pledged Debt Securities have been duly authorized,
executed and delivered and are the enforceable obligations of the issuer
thereof;
(i) all information set forth herein relating to the Pledged
Securities is accurate and complete in all material respects as of the
date hereof; and
(j) the pledge of the Pledged Securities pursuant to this Agreement
does not violate Regulation U or X of the Federal Reserve Board or any
successor thereto as of the date hereof.
SECTION 4. Registration in Nominee Name; Denominations. The
Collateral Agent, on behalf of the Secured Parties, shall have the right (in its
sole and absolute discretion) to hold the Pledged Securities in its own name as
pledgee, the name of its nominee (as pledgee or as sub-agent) or the name of the
Pledgors, endorsed or assigned in blank or in favor of the Collateral Agent;
provided that the Collateral Agent shall not exercise such right unless and
until an Event of Default has occurred and is continuing. If an Event of Default
has occurred and is continuing, the Collateral Agent shall have the right to
exchange the certificates representing Pledged Securities for certificates of
smaller or larger denominations for any purpose consistent with this Agreement
to the extent permitted by the terms of the Pledged Securities.
SECTION 5. Voting Rights; Dividends and Interest, etc. (a) Subject
to Section 6(c) and (d), unless and until an Event of Default shall have
occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any and all voting
and/or other consensual rights and powers inuring to an owner of Pledged
Securities or any part thereof for any purpose consistent with the terms
of this Agreement, the Credit Agreement and the other Loan Documents;
provided, however, that such Pledgor will not be entitled to exercise such
rights if the result thereof would be contrary to the Credit Agreement;
(ii) The Collateral Agent shall execute and deliver to each Pledgor,
or cause to be executed and delivered to each Pledgor, all such proxies,
powers of attorney and other instruments as such Pledgor may reasonably
request for the purpose of enabling such Pledgor to exercise the voting
and/or consensual rights and powers it is entitled to exercise pursuant to
subparagraph (i) above and to receive the cash dividends it is entitled to
receive pursuant to subparagraph (iii) below; and
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(iii) Each Pledgor shall be entitled to receive and retain any and
all cash dividends, interest and principal paid on the Pledged Securities.
All noncash dividends, interest and principal, and all dividends, interest
and principal paid or payable in cash or otherwise in connection with a
partial or total liquidation or dissolution, return of capital, capital
surplus or paid-in surplus, and all other distributions (other than
distributions referred to in the preceding sentence) made on or in respect
of the Pledged Securities, whether paid or payable in cash or otherwise,
whether resulting from a subdivision, combination or reclassification of
the outstanding capital stock of the issuer of any Pledged Securities or
received in exchange for Pledged Securities or any part thereof, or in
redemption thereof, or as a result of any merger, consolidation,
acquisition or other exchange of assets to which such issuer may be a
party or otherwise, shall be and become part of the Securities Collateral.
(b) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to dividends, interest or principal that such
Pledgor is authorized to receive pursuant to paragraph (a)(iii) above shall
cease, and all such rights shall thereupon become vested in the Collateral
Agent, which shall have the sole and exclusive right and authority to receive
and retain such dividends, interest or principal. All dividends, interest or
principal received by the Pledgor contrary to the provisions of this Section 5
shall be held in trust for the benefit of the Collateral Agent, shall be
segregated from other property or funds of such Pledgor and shall be forthwith
delivered to the Collateral Agent upon demand in the same form as so received
(with any necessary endorsement). Any and all money and other property paid over
to or received by the Collateral Agent pursuant to the provisions of this
paragraph (b) shall be retained by the Collateral Agent in an account to be
established by the Collateral Agent upon receipt of such money or other property
and shall be applied in accordance with the provisions of Section 7. After all
Events of Default have been cured or waived, the Collateral Agent shall, within
five (5) Business Days after all such Events of Default have been cured or
waived, repay to each Pledgor all cash dividends, interest or principal (without
interest) that such Pledgor would otherwise be permitted to retain pursuant to
the terms of paragraph (a)(iii) above and which remain in such account.
(c) Subject to Section 6(c) and (d), upon the occurrence and during
the continuance of an Event of Default, all rights of any Pledgor to exercise
the voting and consensual rights and powers it is entitled to exercise pursuant
to paragraph (a)(i) of this Section 5, and the obligations of the Collateral
Agent under paragraph (a)(ii) of this Section 5, shall cease, and all such
rights shall thereupon become vested in the Collateral Agent, which shall have
the sole and exclusive right and authority to exercise such voting and
consensual rights and powers. After all Events of Default have been cured or
waived, such Pledgor will have the right to exercise the voting and consensual
rights and powers that it would otherwise be entitled to exercise pursuant to
the terms of paragraph (a)(i) above.
SECTION 6. Remedies upon Default. (a) Upon the occurrence and during
the continuance of an Event of Default, the Collateral Agent may sell or
otherwise dispose of the Securities Collateral, or any part thereof, at public
or private sale or at any broker's board or on any securities exchange, for
cash, upon credit or for future delivery as the Collateral Agent shall deem
appropriate. The Collateral Agent shall be authorized at any such sale (if it
deems it advisable to do so) to restrict the prospective bidders or purchasers
to Persons who will represent and agree that they are purchasing the Securities
Collateral for their own account for investment and not with a view to the
distribution or sale thereof, and upon consummation of any such sale the
Collateral Agent shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof the Securities Collateral so sold. Each such
purchaser at any such sale shall hold the property sold absolutely free from any
claim or right on the part of any Pledgor, and, to the extent permitted by
applicable law, the Pledgors hereby waive all rights of redemption, stay,
valuation and appraisal any Pledgor now has or may at any time in the future
have under any rule of law or statute now existing or hereafter enacted.
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(b) The Collateral Agent shall give a Pledgor ten (10) days' prior
written notice (which each Pledgor agrees is reasonable notice within the
meaning of Section 9-611 of the Uniform Commercial Code as in effect in the
State of New York or its equivalent in other jurisdictions (the "UCC")) of the
Collateral Agent's intention to make any sale of such Pledgor's Securities
Collateral. Such notice, in the case of a public sale, shall state the time and
place for such sale and, in the case of a sale at a broker's board or on a
securities exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Securities Collateral, or portion thereof, will
first be offered for sale at such board or exchange. Any such public sale shall
be held at such time or times within ordinary business hours and at such place
or places as the Collateral Agent may fix and state in the notice of such sale.
At any such sale, the Securities Collateral, or portion thereof, to be sold may
be sold in one lot as an entirety or in separate parcels, as the Collateral
Agent may (in its sole and absolute discretion) determine. The Collateral Agent
shall not be obligated to make any sale of any Securities Collateral if it shall
determine not to do so, regardless of the fact that notice of sale of such
Securities Collateral shall have been given. The Collateral Agent may, without
notice or publication, adjourn any public or private sale or cause the same to
be adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned. In case any sale of all or any part of the
Securities Collateral is made on credit or for future delivery, the Securities
Collateral so sold may be retained by the Collateral Agent until the sale price
is paid in full by the purchaser or purchasers thereof, but the Collateral Agent
shall not incur any liability in case any such purchaser or purchasers shall
fail to take up and pay for the Securities Collateral so sold and, in case of
any such failure, such Securities Collateral may be sold again upon like notice.
At any public (or, to the extent permitted by applicable law, private) sale made
pursuant to this Section 6, any Secured Party may bid for or purchase, free from
any right of redemption, stay, valuation or appraisal on the part of any Pledgor
(all said rights being also hereby waived and released), the Securities
Collateral or any part thereof offered for sale and may make payment on account
thereof by using any Obligation then due and payable to such Secured Party from
any Pledgor as a credit against the purchase price, and such Secured Party may,
upon compliance with the terms of sale, hold, retain and dispose of such
property without further accountability to any Pledgor therefor. For purposes
hereof, (a) a written agreement to purchase the Securities Collateral or any
portion thereof shall be treated as a sale thereof, (b) the Collateral Agent
shall be free to carry out such sale pursuant to such agreement and (c) no
Pledgor shall be entitled to the return of the Securities Collateral or any
portion thereof subject thereto, notwithstanding the fact that after the
Collateral Agent shall have entered into such an agreement all Events of Default
shall have been remedied and the Obligations paid in full. As an alternative to
exercising the power of sale herein conferred upon it, the Collateral Agent may
proceed by a suit or suits at law or in equity to foreclose upon the Securities
Collateral and to sell the Securities Collateral or any portion thereof pursuant
to a judgment or decree of a court or courts having competent jurisdiction or
pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the
provisions of this Section 6 shall be deemed to conform to the commercially
reasonable standards as provided in Section 9-611 of the UCC.
(c) Notwithstanding anything to the contrary in this Agreement, any
foreclosure on, sale, transfer or other disposition of, or the exercise or
relinquishment of any right to vote or consent with respect to, any of the
Securities Collateral by the Collateral Agent shall, to the extent required, be
in conformance with Sections 214 and 310(d) of the Communications Act of 1934,
as amended, and the applicable rules and regulations thereunder, and, if and
only to the extent required thereby, subject to the prior approval or notice to
and non-opposition of the FCC or any PUC.
(d) If an Event of Default shall have occurred and be continuing,
each Pledgor shall take any action which the Collateral Agent may reasonably
request in order to transfer or assign, or both, to the Collateral Agent, or to
such one or more third parties as the Collateral Agent may designate, or to a
combination of the foregoing, any Pledged Securities, subject to the prior
approval of the FCC or any PUC, if
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required. The Collateral Agent is empowered, to the extent permitted by
applicable Requirements of Law, to request the appointment of a receiver from
any court of competent jurisdiction. Such receiver may be instructed by Secured
Party to seek from the FCC or any PUC consent to an involuntary transfer of
control of the Pledgors or assignment, or both, of the Pledged Securities. Each
Pledgor hereby agrees to authorize such an involuntary transfer of control or
assignment, or both, upon the request of the receiver so appointed and, if any
Pledgor shall refuse to authorize the transfer, its approval may be required by
the court. Upon the occurrence and during the continuance of an Event of
Default, each Pledgor agrees to use its best efforts to assist in obtaining
approval of the FCC or any PUC and any other state regulatory bodies, if
required, for any action or transactions contemplated by this Agreement,
including, without limitation, the preparation, execution and filing with the
FCC or any PUC and any other state regulatory bodies of the assignor's or
transferor's portion of any application or applications for consent to the
assignment of any Securities Collateral or other authorization or transfer of
control necessary or appropriate under the rules and regulations of the FCC or
PUC or any other state regulatory body for approval or non-opposition of the
transfer or assignment of any portion of the Securities Collateral, together
with any FCC or PUC license, permit, certificate or other authorization.
(e) Each Pledgor acknowledges that the assignment or transfer of the
Securities Collateral is integral to Secured Parties ability to realize the
value of the Collateral, that there is no adequate remedy at law for failure by
any Pledgor to comply with the provisions of this Section 6 and that such
failure would not be adequately compensable in damages, and therefore agrees,
without limiting the right of the Collateral Agent to seek and obtain specific
performance of other obligations of the Pledgors contained in this Agreement,
that the agreements contained in this Section 6 may be specifically enforced.
SECTION 7. Application of Proceeds of Sale(i) . All Proceeds
received by the Collateral Agent in respect of any sale of, collection from or
other realization upon all or any part of the Collateral of any Pledgor pursuant
to the exercise by the Collateral Agent of its remedies, will be applied as set
forth in Section 5.02 of the Security Agreement.
SECTION 8. Collateral Agent Appointed Attorney-in-Fact. Each Pledgor
hereby appoints the Collateral Agent the attorney-in-fact of such Pledgor for
the purpose of carrying out the provisions of this Agreement and taking any
action and executing any instrument that the Collateral Agent may deem necessary
or advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest; provided that the Collateral Agent shall only take
any action pursuant to such appointment upon the occurrence and during the
continuation of an Event of Default. Without limiting the generality of the
foregoing, subject to the provisions of Section 6, the Collateral Agent shall
have the right, upon the occurrence and during the continuance of an Event of
Default, with full power of substitution either in the Collateral Agent's name
or in the name of such Pledgor, to ask for, demand, ▇▇▇ for, collect, receive
and give acquittance for any and all moneys due or to become due under and by
virtue of any Securities Collateral, to endorse checks, drafts, orders and other
instruments for the payment of money payable to the Pledgor representing any
interest or dividend or other distribution payable in respect of the Securities
Collateral or any part thereof or on account thereof and to give full discharge
for the same, to settle, compromise, prosecute or defend any action, claim or
proceeding with respect thereto, and to sell, assign, endorse, pledge, transfer
and to make any agreement respecting, or otherwise deal with, the same;
provided, however, that nothing herein contained shall be construed as requiring
or obligating the Collateral Agent to make any commitment or to make any inquiry
as to the nature or sufficiency of any payment received by the Collateral Agent,
or to present or file any claim or notice, or to take any action with respect to
the Securities Collateral or any part thereof or the moneys due or to become due
in respect thereof or any property covered thereby. The Collateral Agent and the
other Secured Parties shall be accountable only for amounts actually received as
a result of the exercise of the powers granted to them herein, and neither they
nor their officers, directors, employees or agents shall be responsible to any
-8-
Pledgor for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct.
SECTION 9. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Securities Collateral Agent
hereunder and of the other Secured Parties under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provisions of this Agreement or any other Loan
Document or consent to any departure by any Pledgor therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice to or demand on any Pledgor in any case
shall entitle such Pledgor or any other Pledgor to any other or further notice
or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Collateral Agent and the Pledgor or Pledgors with respect to which such
waiver, amendment or modification is to apply.
SECTION 10. Securities Act, etc. In view of the position of the
Pledgors in relation to the Pledged Securities, or because of other current or
future circumstances, a question may arise under the Securities Act of 1933, as
now or hereafter in effect, or any similar statute hereafter enacted analogous
in purpose or effect (such Act and any such similar statute as from time to time
in effect being called the "Federal Securities Laws") with respect to any
disposition of the Pledged Securities permitted hereunder. Each Pledgor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Collateral Agent if the Collateral Agent were
to attempt to dispose of all or any part of the Pledged Securities, and might
also limit the extent to which or the manner in which any subsequent transferee
of any Pledged Securities could dispose of the same. Similarly, there may be
other legal restrictions or limitations affecting the Collateral Agent in any
attempt to dispose of all or part of the Pledged Securities under applicable
Blue Sky or other state securities laws or similar laws analogous in purpose or
effect. Each Pledgor recognizes that in light of such restrictions and
limitations the Collateral Agent may, with respect to any sale of the Pledged
Securities, limit the purchasers to those who will agree, among other things, to
acquire such Pledged Securities for their own account, for investment, and not
with a view to the distribution or resale thereof. Each Pledgor acknowledges and
agrees that in light of such restrictions and limitations, the Collateral Agent,
in its sole and absolute discretion, (a) may proceed to make such a sale whether
or not a registration statement for the purpose of registering such Pledged
Securities or part thereof shall have been filed under the Federal Securities
Laws and (b) may approach and negotiate with a single potential purchaser to
effect such sale. Each Pledgor acknowledges and agrees that any such sale might
result in prices and other terms less favorable to the seller than if such sale
were a public sale without such restrictions. In the event of any such sale, the
Collateral Agent shall incur no responsibility or liability for selling all or
any part of the Pledged Securities at a price that the Collateral Agent, in its
sole and absolute discretion, may in good ▇▇▇▇▇ ▇▇▇▇ reasonable under the
circumstances, notwithstanding the possibility that a substantially higher price
might have been realized if the sale were deferred until after registration as
aforesaid or if more than a single purchaser were approached.
SECTION 11. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the grant of a security interest in the Securities Collateral
and all obligations of each Pledgor hereunder shall be absolute and
unconditional irrespective of (a) any lack of validity or enforceability of the
Credit Agreement any other Loan Document, any agreement with respect to any of
the Obligations of the
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Pledgors or any other agreement or instrument relating to any of the foregoing,
(b) any change in the time, manner or place of payment of, or in any other term
of, all or any of the Obligations of the Pledgors, or any other amendment or
waiver of or any consent to any departure from the Credit Agreement, any other
Loan Document or any other agreement or instrument relating to any of the
foregoing, (c) any exchange, release or nonperfection of any other Securities
Collateral, or any release or amendment or waiver of or consent to or departure
from any guaranty, for all or any of the Obligations of the Pledgors or (d) any
other circumstance that might otherwise constitute a defense available to, or a
discharge of, any Pledgor in respect of its Obligations or in respect of this
Agreement (other than the indefeasible payment in full of all the Obligations of
such Pledgor).
SECTION 12. Termination or Release. (a) This Agreement and the
security interests with respect to a Pledgor granted hereby (i) shall terminate
when all the Obligations of such Pledgor have been indefeasibly paid in full,
the Lenders have no further commitment to lend under the Credit Agreement or to
issue or participate in Letters of Credit and the LC Exposure has been reduced
to zero (at which time the Collateral Agent shall execute and deliver to each
Pledgor, at such Pledgor's expense, all UCC termination statements and similar
documents which such Pledgor shall reasonably request to evidence such
termination) and (ii) shall continue to be effective or shall be reinstated, as
the case may be, if at any time any payment in respect of any Obligation is
rescinded or must otherwise be restored by any Secured Party upon any bankruptcy
or reorganization of any Pledgor or otherwise. Any execution and delivery of
termination statements or documents pursuant to this Section 12(a) shall be
without recourse to or warranty by the Collateral Agent.
(b) Upon any sale or other transfer by any Pledgor of any Securities
Collateral that is permitted under each Loan Document to any Person that is not
a Pledgor, or upon the effectiveness of any written consent to the release of
the security interest granted hereby in any Securities Collateral pursuant to
Section 9.08 of the Credit Agreement, the security interest in such Securities
Collateral shall be automatically released. If the capital stock of a Pledgor is
sold, transferred or otherwise disposed of to a Person that is not an Affiliate
of either Borrower so that such Pledgor is no longer a Subsidiary of CCI
Holdings or either Borrower pursuant to a transaction permitted by Section 6.05
of the Credit Agreement and in accordance with the terms of each other Loan
Document, such Pledgor shall be released from its obligations under this
Agreement without further action.
(c) In connection with any termination or release pursuant to
paragraph (a) or (b), the Collateral Agent shall execute and deliver to any
Pledgor, at such Pledgor's expense, all documents that such Pledgor shall
reasonably request to evidence such termination or release. Any execution and
delivery of documents pursuant to this Section 12 shall be without recourse to
or warranty by the Collateral Agent.
SECTION 13. Notices. All communications and notices hereunder shall
be in writing and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to any Pledgor that is a Subsidiary
Guarantor shall be given to it in care of the Borrowers at their address
provided in the Credit Agreement.
SECTION 14. Further Assurances. Each Pledgor agrees to do such
further acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Collateral Agent may at any time
reasonably request in connection with the administration and enforcement of this
Agreement or with respect to the Securities Collateral or any part thereof or in
order better to assure and confirm unto the Collateral Agent its rights and
remedies hereunder.
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SECTION 15. Binding Effect; Several Agreement; Assignment. Whenever
in this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of any Pledgor that are
contained in this Agreement shall bind and inure to the benefit of its
successors and assigns. This Agreement shall become effective as to any Pledgor
when a counterpart hereof executed on behalf of such Pledgor shall have been
delivered to the Collateral Agent and a counterpart hereof shall have been
executed on behalf of the Collateral Agent, and thereafter shall be binding upon
such Pledgor and the Collateral Agent and their respective successors and
assigns, and shall inure to the benefit of such Pledgor, the Collateral Agent
and the other Secured Parties, and their respective successors and assigns,
except that no Pledgor shall have the right to assign its rights hereunder or
any interest herein or in the Securities Collateral (and any such attempted
assignment shall be void), except as expressly contemplated by this Agreement or
the other Loan Documents. This Agreement shall be construed as a separate
agreement with respect to each Pledgor and may be amended, modified,
supplemented, waived or released with respect to any Pledgor without the
approval of any other Pledgor and without affecting the obligations of any other
Pledgor hereunder.
SECTION 16. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by any Pledgor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Collateral Agent and the other Secured Parties and
shall survive the making by the Lenders of the Loans, and the Lenders' issuance
of and participations in Letters of Credit, regardless of any investigation made
by the Secured Parties or on their behalf, and shall continue in full force and
effect until this Agreement shall terminate.
(b) In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions. It is understood and agreed that this
Agreement shall create separate security interests in the Securities Collateral
securing the Obligations, as provided in Section 1, and that any determination
by any court with jurisdiction that the security interest securing any
Obligation or class of Obligations is invalid for any reason shall not in and of
itself invalidate the security interest securing any other Obligations
hereunder.
SECTION 17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 18. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute a single contract, and shall become effective
as provided in Section 15. Delivery of an executed counterpart of a signature
page to this Agreement by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Agreement. Upon
effectiveness of this Agreement, the Existing Pledge Agreement shall be of no
further force and effect, and the obligations of the Pledgors under the Existing
Pledge Agreement shall continue as obligations under this Agreement. Upon
effectiveness of this Agreement, the obligations of the Pledgors under the
Existing Pledge Agreement shall continue as amended and restated by this
Agreement.
-11-
SECTION 19. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement. Section headings used herein are for convenience of reference only,
are not part of this Agreement and are not to affect the construction of, or to
be taken into consideration in interpreting, this Agreement.
SECTION 20. Jurisdiction; Consent to Service of Process. (a) Each
Pledgor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that, to the extent permitted by applicable law, all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal court
referred to in paragraph (a) of this Section 20. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Collateral Agent or any other Secured Party may otherwise have to
bring any action or proceeding relating to this Agreement or the other Loan
Documents against any Pledgor or its properties in the courts of any
jurisdiction.
(b) Each Pledgor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents in any New York State or Federal court referred to in paragraph (a) of
this Section 20. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 13. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 21. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 21.
SECTION 22. Additional Pledgors. To the extent any Subsidiary of
either Borrower shall be required to become a Pledgor pursuant to Section 5.16
of the Credit Agreement, upon execution and delivery by the Collateral Agent and
such Subsidiary of an instrument in the form of Annex I hereto, such Subsidiary
shall become a Pledgor hereunder with the same force and effect as if originally
named as a Pledgor herein. The execution and delivery of any such instrument
shall not require the consent of any other Pledgor hereunder. The rights and
obligations of each Pledgor thereunder shall remain in full force and effect
notwithstanding the addition of any new Pledgor as a party to this Agreement.
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SECTION 23. Execution of Financing Statements. Pursuant to Section
9-509 of the UCC, each Pledgor authorizes the Collateral Agent to file financing
statements with respect to the Securities Collateral owned by it without the
signature of such Pledgor in such form and in such filing offices as the
Collateral Agent reasonably determines appropriate to perfect the security
interests of the Collateral Agent under this Agreement. A carbon, photographic
or other reproduction of this Agreement shall be sufficient as a financing
statement for filing in any jurisdiction.
SECTION 24. Non-U.S. Pledge Agreements. Without limiting any of the
rights, remedies, privileges or benefits provided hereunder to the Collateral
Agent for its benefit and the ratable benefit of the other Secured Parties, each
Pledgor and the Collateral Agent hereby agree that the terms and provisions of
this Pledge Agreement in respect of any Securities Collateral subject to the
pledge or other Lien of a Non-U.S. Pledge Agreement are, and shall be deemed to
be, supplemental and in addition to the rights, remedies, privileges and
benefits provided to the Collateral Agent and the other Secured Parties under
such Non-U.S. Pledge Agreement and under applicable law to the extent consistent
with applicable law; provided, that, in the event that the terms of this Pledge
Agreement conflict or are inconsistent with the applicable Non-U.S. Pledge
Agreement or applicable law governing such Non-U.S. Pledge Agreement, (i) to the
extent that the provisions of such Non-U.S. Pledge Agreement or applicable
foreign law are, under applicable foreign law, necessary for the creation,
perfection or priority of the security interests in the Securities Collateral
subject to such Non-U.S. Pledge Agreement, the terms of such Non-U.S. Pledge
Agreement or such applicable law shall be controlling and (ii) otherwise, the
terms hereof shall be controlling.
SIGNATURE PAGES FOLLOW
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
CONSOLIDATED COMMUNICATIONS HOLDINGS, INC.
By:
-----------------------------------------
Name:
Title:
CONSOLIDATED COMMUNICATIONS, INC.
By:
-----------------------------------------
Name:
Title:
CONSOLIDATED COMMUNICATIONS ACQUISITION TEXAS,
INC.
By:
-----------------------------------------
Name:
Title:
CONSOLIDATED COMMUNICATIONS MARKET RESPONSE,
INC.
By:
-----------------------------------------
Name:
Title:
CONSOLIDATED COMMUNICATIONS PUBLIC SERVICES,
INC.
By:
-----------------------------------------
Name:
Title:
S-1
CONSOLIDATED COMMUNICATIONS OPERATOR SERVICES,
INC.
By:
-----------------------------------------
Name:
Title:
CONSOLIDATED COMMUNICATIONS MOBILE SERVICES,
INC.
By:
-----------------------------------------
Name:
Title:
CONSOLIDATED COMMUNICATIONS BUSINESS SYSTEMS,
INC.
By:
-----------------------------------------
Name:
Title:
CONSOLIDATED COMMUNICATIONS NETWORK SERVICES,
INC.
By:
-----------------------------------------
Name:
Title:
CONSOLIDATED COMMUNICATIONS VENTURES COMPANY
By:
-----------------------------------------
Name:
Title:
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CONSOLIDATED COMMUNICATIONS SERVICES COMPANY
By:
-----------------------------------------
Name:
Title:
CONSOLIDATED COMMUNICATIONS TRANSPORT COMPANY
By:
-----------------------------------------
Name:
Title:
CONSOLIDATED COMMUNICATIONS TELECOM SERVICES OF
TEXAS COMPANY
By:
-----------------------------------------
Name:
Title:
CONSOLIDATED COMMUNICATIONS OF FORT BEND COMPANY
By:
-----------------------------------------
Name:
Title:
CONSOLIDATED COMMUNICATIONS OF TEXAS COMPANY
By:
-----------------------------------------
Name:
Title:
-▇▇-
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, INC.,
as Collateral Agent,
By:
-----------------------------------------
Name:
Title:
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Schedule I to the
Pledge Agreement
DOMESTIC SUBSIDIARIES
Name Address
-18-
Schedule II to the
Pledge Agreement
PLEDGED STOCK AND DEBT SECURITIES
PLEDGED STOCK
Number Number and
of Class of Shares/ Percentage
Issuer Certificate Registered Owner Type of Interest of Shares/Interests
------ ----------- ---------------- ---------------- -------------------
PLEDGED DEBT SECURITIES
Issuer Payee Principal Amount Date of Note Maturity Date
------ ----------- ---------------- ---------------- -------------------
Schedule III to the
Pledge Agreement
REQUIRED CONSENTS
Annex I to the
Pledge Agreement
SUPPLEMENT NO. [ ], dated as of [ ], to the AMENDED AND RESTATED
PLEDGE AGREEMENT (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Pledge Agreement") dated as of [ ], 2005, among
CONSOLIDATED COMMUNICATIONS HOLDINGS, INC. ("CCI Holdings"), a Delaware
corporation, CONSOLIDATED COMMUNICATIONS, INC. (the "CCI Borrower"), an Illinois
corporation, CONSOLIDATED COMMUNICATIONS ACQUISITION TEXAS INC. (the "TXU
Borrower" and together with the CCI Borrower, the "Borrowers"), a Delaware
corporation, each Subsidiary of either Borrower listed on Schedule I thereto
(collectively, together with each Subsidiary of either Borrower that becomes a
party thereto pursuant to Section 24 of the Pledge Agreement, the "Subsidiary
Guarantors" and, together with CCI Holdings and the Borrowers, the "Pledgors")
and CITICORP NORTH AMERICA, INC., as collateral agent (in such capacity, the
"Collateral Agent") for the Secured Parties (as defined in the Credit Agreement
(as defined in the Pledge Agreement)).
A. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
B. The Pledgors have entered into the Pledge Agreement in order to
induce the Lenders to make Loans. Pursuant to Section 5.16 of the Credit
Agreement, in the event that any Person becomes a 90% Subsidiary after the
Restatement Effective Date, the applicable Borrower will promptly notify the
Administrative Agent of that fact and cause such Subsidiary to execute and
deliver to the Administrative Agent a counterpart of the Pledge Agreement.
Section 22 of the Pledge Agreement provides that such Subsidiaries may become
Pledgors under the Pledge Agreement by execution and delivery of an instrument
in the form of this Supplement. The undersigned Subsidiary (the "New Pledgor")
is executing this Supplement in accordance with the requirements of the Credit
Agreement to become a Pledgor under the Pledge Agreement.
Accordingly, the Collateral Agent and the New Pledgor agree as
follows:
SECTION 1. In accordance with Section 22 of the Pledge Agreement,
the New Pledgor by its signature below becomes a Pledgor under the Pledge
Agreement with the same force and effect as if originally named therein as a
Pledgor and the New Pledgor hereby agrees (a) to all the terms and provisions of
the Pledge Agreement applicable to it as a Pledgor thereunder and (b) represents
and warrants that the representations and warranties made by it as a Pledgor
thereunder are true and correct on and as of the date hereof. In furtherance of
the foregoing, the New Pledgor, as security for the payment and performance in
full of the Obligations (as defined in the Pledge Agreement), does hereby create
and grant to the Collateral Agent, its successors and assigns, for the benefit
of the Secured Parties, their successors and assigns, a security interest in and
lien on all of the New Pledgor's right, title and interest in and to the
Securities Collateral (as defined in the Pledge Agreement) of the New Pledgor.
Each reference to a "Pledgor" in the Pledge Agreement shall be deemed to include
the New Pledgor. The Pledge Agreement is hereby incorporated herein by
reference.
SECTION 2. The New Pledgor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto and different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Pledgor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. The New Pledgor hereby represents and warrants that set
forth on Schedule I attached hereto is a true and correct schedule of all its
Pledged Securities.
SECTION 5. Except as expressly supplemented hereby, the Pledge
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and in the Pledge Agreement shall not in any way be affected or impaired
thereby (it being understood that the invalidity of a particular provision in a
particular jurisdiction shall not in and of itself affect the validity of such
provision in any other jurisdiction). The parties hereto shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be in
writing and given as provided in Section 13 of the Pledge Agreement. All
communications and notices hereunder to the New Pledgor shall be given to it at
the address set forth under its signature hereto.
SECTION 9. The New Pledgor agrees to reimburse the Collateral Agent
for its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
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IN WITNESS WHEREOF, the New Pledgor and the Collateral Agent have
duly executed this Supplement to the Pledge Agreement as of the day and year
first above written.
[NAME OF NEW PLEDGOR],
By:
-----------------------------------------
Name:
Title:
Address:
CITICORP NORTH AMERICA, INC.,
as Collateral Agent,
By:
-----------------------------------------
Name:
Title:
Address:
S-1
Schedule I to
Supplement No.
to the Pledge Agreement
Pledged Securities of the New Pledgor
PLEDGED STOCK
Number of Number and Percentage
Issuer Certificate Registered Owner Class of Shares of Shares
------ ----------- ---------------- ---------------- -------------------
PLEDGED DEBT SECURITIES
Issuer Payee Principal Amount Date of Note Maturity Date
------ ----------- ---------------- ---------------- -------------------