FORM OF PLEDGE AGREEMENT among RCN CORPORATION, CERTAIN SUBSIDIARIES OF RCN CORPORATION and DEUTSCHE BANK TRUST COMPANY AMERICAS, as FIRST-LIEN COLLATERAL AGENT
FORM
OF
PLEDGE AGREEMENT
among
RCN
CORPORATION,
CERTAIN
SUBSIDIARIES OF RCN CORPORATION
and
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
as
FIRST-LIEN COLLATERAL AGENT
Dated
as
of May 30, 2006
PLEDGE
AGREEMENT (as amended, modified, restated and/or supplemented from time to
time,
this “Agreement”),
dated
as of May 30, 2006, among each of the undersigned pledgors (each, a
“Pledgor”
and,
together with any other entity that becomes a pledgor hereunder pursuant to
Section 30 hereof, the “Pledgors”)
and
Deutsche Bank Trust Company Americas, as collateral agent (the “First-Lien
Collateral Agent”
and
together with any successor collateral agent, the “Pledgee”),
for
the benefit of the Secured Creditors referred to below. Except as otherwise
defined herein, all capitalized terms used herein and defined in the Credit
Agreement referred to below shall be used herein as therein
defined.
W
I T N E S
S E T H
:
WHEREAS,
RCN Corporation (the “Borrower”),
the
lenders from time to time party thereto (the “Lenders”),
and
Deutsche Bank Trust Company Americas, as administrative agent (together with
any
successor administrative agent, the “Administrative
Agent”),
have
entered into a First-Lien Credit Agreement, dated as of May 30, 2006 (as
amended, modified, restated and/or supplemented from time to time, the
“Credit
Agreement”),
providing for the making of Loans to, and the issuance of, and participation
in,
Letters of Credit for the account of, the Borrower, all as contemplated therein
(the Lenders, each Issuing Lender, the Administrative Agent, the First-Lien
Collateral Agent, each other Agent and the Pledgee are herein called the
“Lender
Creditors”);
WHEREAS,
the Borrower and/or one or more of its Subsidiaries may at any time and from
time to time enter into one or more Interest Rate Protection Agreements or
Other
Hedging Agreements with one or more Lenders or any affiliate thereof (each
such
Lender or affiliate, even if the respective Lender subsequently ceases to be
a
Lender under the Credit Agreement for any reason, together with such Lender’s or
affiliate’s successors and assigns, if any, collectively, the “Other
Creditors”
and,
together with the Lender Creditors, the “Secured
Creditors”);
WHEREAS,
pursuant to the Subsidiaries Guaranty, each Subsidiary Guarantor has jointly
and
severally guaranteed to the Secured Creditors the payment when due of all
Guaranteed Obligations as described therein;
WHEREAS,
it is a condition precedent to the making of Loans to the Borrower and the
issuance of, and participation in, Letters of Credit for the account of the
Borrower under the Credit Agreement and to the Other Creditors entering into
Interest Rate Protection Agreements and Other Hedging Agreements that each
Pledgor shall have executed and delivered to the Pledgee this Agreement;
and
WHEREAS,
each Pledgor will obtain benefits from the incurrence of Loans by the Borrower
and the issuance of, and participation in, Letters of Credit for the account
of
the Borrower under the Credit Agreement and the entering into by the Borrower
and/or one or more of its Subsidiaries of Interest Rate Protection Agreements
or
Other Hedging Agreements and, accordingly, desires to execute this Agreement
in
order to satisfy the condition described in the preceding paragraph and to
induce the Lenders to make Loans to the Borrower and issue, and/or participate
in, Letters of Credit for the account of the Borrower and the Other Creditors
to
enter into Interest Rate Protection Agreements or Other Hedging Agreements
with
the Borrower and/or one or more of its Subsidiaries;
NOW,
THEREFORE, in consideration of the foregoing and other benefits accru-ing to
each Pledgor, the receipt and sufficiency of which are hereby acknowledged,
each
Pledgor hereby makes the following representations and warranties to the Pledgee
for the benefit of the Secured Creditors and hereby 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
to
secure:
(i) the
full
and prompt payment when due (whether at stated maturity, by acceleration or
otherwise) of all obligations, liabilities and indebtedness (including, without
limita-tion, principal, premium, interest (including, without limitation, all
interest that accrues after the commencement of any case, proceeding or other
action relating to the bankruptcy, insolvency, reorganization or similar
proceeding of any Pledgor or any Subsidiary thereof at the rate provided for
in
the respective documentation, whether or not a claim for post-petition interest
is allowed in any such proceeding), reimbursement obligations under Letters
of
Credit, fees, costs and indemnities) of such Pledgor owing to the Lender
Creditors, whether now existing or here-after incurred under, arising out of,
or
in connection with, the Credit Agreement and the other Credit Documents to
which
such Pledgor is a party (including, in the case of each Pledgor that is a
Guarantor, all such obligations, liabilities and indebt-▇▇-▇▇▇▇ of such Pledgor
under its Guaranty) and the due per-formance and compliance by such Pledgor
with
all of the terms, conditions and agreements contained in the Credit Agreement
and in such other Credit Documents (all such obli-gations, liabilities and
indebtedness under this clause (i), except to the extent consisting of
obliga-tions, liabilities or indebted-ness with respect to Interest Rate
Protection Agreements or Other Hedging Agreements, entitled to the benefits
of
this Agreement being herein collec-tively called the “Credit
Document Obligations”);
(ii) the
full
and prompt payment when due (whether at stated maturity, by acceleration or
otherwise) of all obligations, liabilities and indebtedness (including, without
limitation, all interest that accrues after the commencement of any case,
proceeding or other action relating to the bankruptcy, insolvency,
reorganization or similar proceeding of any Pledgor at the rate provided for
in
the respective documentation, whether or not a claim for post-petition interest
is allowed in any such proceeding) owing by such Pledgor to the Other Creditors
now existing or hereafter incurred under, arising out of or in connection with
any Interest Rate Protection Agreement or Other Hedging Agreement, whether
such
Interest Rate Protection Agreement or Other Hedging Agreement is now in
existence or hereinafter arising (including, in the case of a Pledgor that
is a
Guarantor, all obligations, liabilities and indebtedness of such Pledgor under
its Guaranty in respect of the Interest Rate Protection Agreements and Other
Hedging Agreements), and the due performance and compliance by such Pledgor
with
all of the terms, conditions and agreements contained in each such Interest
Rate
Protection Agreement and Other Hedging Agreement (all such obligations,
liabilities and indebtedness under this clause (ii) being herein collectively
called the “Other
Obligations”);
provided
that if
at any time the aggregate notional amount of all outstanding Interest Rate
Protection Agreements and Other Hedging Agreements exceeds the Maximum Hedging
Obligations Notional Amount, then amounts owing with respect to such excess
shall not constitute Other Obligations hereunder; provided however
that, if
at the time of the entering into of any Interest Rate Protection Agreement
or
Other Hedging Agreement the respective Other Creditors obtained an officer’s
certificate of the Borrower or a representation by the Borrower that the
aggregate notional amount thereof when added to the aggregate notional amount
of
all other then outstanding Interest Rate Protection Agreements and Other Hedging
Agreements which constitute Other Obligations hereunder, shall not or would
not
exceed the Maximum Hedging Obligations Notional Amount, then such Interest
Rate
Protection Agreement or Other Hedging Agreement, as the case may be (and all
obligations thereunder as described above), shall constitute Other Obligations
for all purposes hereof notwithstanding the fact that the Maximum Hedging
Obligations Notional Amount has actually been exceeded;
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2
(iii) any
and
all sums advanced by the Pledgee in order to preserve the Collateral or preserve
its security interest in the Collateral;
(iv) in
the
event of any proceeding for the collection or enforcement of any indebted-ness,
obligations or liabilities of such Pledgor referred to in clauses (i) and (ii)
above, after an Event of Default shall have occurred and be continuing, the
reasonable expenses of retaking, holding, preparing for sale or lease, selling
or otherwise disposing of or realizing on the Collateral, or of any exercise
by
the Pledgee of its rights hereunder, together with reasonable attorneys’ fees
and court costs;
(v) all
amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement under Section 11 of this Agreement; and
(vi) all
amounts owing to any Agent or any of its affiliates pursuant to any of the
Credit Documents in its capacity as such;
all
such
obligations, liabilities, indebtedness, sums and expenses set forth in clauses
(i) through (vi) of this Section 1 being herein collectively called the
“Obligations”,
it
being acknowledged and agreed that the “Obligations” shall include extensions of
credit of the types described above, whether outstanding on the date of this
Agreement or extended 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 set forth in the recitals hereto.
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3
“Adverse
Claim”
shall
have the meaning given such term in Section 8-102(a)(1) of the UCC.
“Agreement”
shall
have the meaning set forth in the first paragraph hereof.
“Borrower”
shall
have the meaning set forth in the recitals 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 any and all accounts established and maintained by the Pledgee in the
name
of any Pledgor to which Collateral may be credited.
“Credit
Agreement”
shall
have the meaning set forth in the recitals hereto.
“Credit
Document Obligations”
shall
have the meaning set forth in Section 1(i) hereof.
“Domestic
Corporation”
shall
mean any corporation or similar entity organized under the laws of the United
States, any State or territory thereof or the District of Columbia.
“Event
of Default”
shall
mean any Event of Default under, and as defined in, the Credit Agreement and
shall in any event include, without limitation, any payment default on any
of
the Obligations after the expiration of any applicable grace
period.
“Exempted
Foreign Entity”
shall
mean any Foreign Corporation and any limited liability company organized under
the laws of a jurisdiction other than the United States or any State or
Territory thereof that, in any such case, is treated as a corporation or an
association taxable as a corporation for U.S. Federal income tax
purposes.
“Financial
Asset”
shall
have the meaning given such term in Section 8-102(a)(9) of the UCC.
“Foreign
Corporation”
shall
mean any corporation or similar entity organized under the laws of any
jurisdiction other than the United States, any State or territory thereof or
the
District of Columbia.
“Indemnitees”
shall
have the meaning set forth in Section 11 hereof.
“Instrument”
shall
have the meaning given such term in Section 9-102(a)(47) of the
UCC.
“Investment
Property”
shall
have the meaning given such term in Section 9-102(a)(49) of the
UCC.
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4
“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 assets, whether tangible or intang-ible and whether real, personal
or
mixed (including, without limitation, all limited liability com-pany capital
and
interest in other limited liability companies), at any time owned by any Pledgor
and represented by any Limited Liability Company Interest.
“Limited
Liability Company Interests”
shall
mean the entire limited liability company membership interest at any time owned
by any Pledgor in any limited liability company.
“Location”
of
any
Pledgor has the meaning given such term in Section 9-307 of the
UCC.
“Maximum
Hedging Obligations Notional Amount”
shall
mean an aggregate notional amount equal to $325,000,000.
“Non-Voting
Equity Interests”
shall
mean all Equity Interests of any Person which are not Voting Equity
Interests.
“Notes”
shall
mean all promissory notes, including all intercompany notes at any time issued
to any Pledgor.
“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(ii) hereof.
“Partnership
Assets”
shall
mean all assets, whether tangible or intangible and whether real, personal
or
mixed (including, without limitation, all partnership capital and interest
in
other partnerships), at any time owned by any Pledgor and represented by any
Partnership Interest.
“Partnership
Interest”
shall
mean the entire general partnership interest or limited partnership interest
at
any time owned by any Pledgor in any general partnership or limited
partnership.
“Pledged
Notes”
shall
mean all Notes at any time pledged or required to be pledged
hereunder.
“Pledgee”
shall
have the meaning set forth in the first paragraph hereof.
“Pledgor”
shall
have the meaning set forth in the first paragraph hereof.
“Proceeds”
shall
have the meaning given such term in Section 9-102(a)(64) of the
UCC.
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5
“Registered
Organization”
shall
have the meaning given such term in Section 9-102(a)(70) of the
UCC.
“Required
Secured Creditors”
shall
have the meaning provided in the Security Agreement.
“Secured
Creditors”
shall
have the meaning set forth in the recitals hereto.
“Secured
Debt Agreements”
shall
mean (x) this Agreement, (y) the other Credit Documents and (z) the Interest
Rate Protection Agreements and Other Hedging Agreements entered into with any
Other Creditors.
“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.
“Securities
Intermediary”
shall
have the meaning given such term in Section 8-102(14) of the UCC.
“Security”
shall
have the meaning given such term in Section 8-102(a)(15) of the UCC and shall
in
any event also include all Stock and all Notes.
“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 all of the issued and outstanding shares of capital stock or similar equity
interests of any Domestic Corporation or Foreign Corporation at any time owned
by any Pledgor.
“Termination
Date”
shall
have the meaning set forth in Section 20 hereof.
“Transmitting
Utility”
has
the
meaning given such term in Section 9-102(a)(80) of the UCC.
“UCC”
shall
mean the Uniform Commercial Code as in effect in the State of New York from
time to time; provided
that all
references herein to specific Sections or subsections of the UCC are references
to such Sections or subsections, as the case may be, of the Uniform Commercial
Code as in effect in the State of New York on the date hereof.
“Uncertificated
Security”
shall
have the meaning given such term in Section 8-102(a)(18) of the
UCC.
“Voting
Equity Interests”
of
any
Person shall mean all classes of Equity Interests of such Person entitled to
vote.
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3.
PLEDGE
OF
SECURITIES, ETC.
3.1
Pledge. To
secure the Obligations now or hereafter owed or to be performed by such Pledgor,
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
(subject only to those Liens permitted to exist with respect to the Collateral
pursuant to the terms of all Secured Debt Agreements then in effect) in favor
of
the Pledgee for the benefit of the Secured Creditors in, all of its right,
title
and interest in and to the following, whether now existing or hereafter from
time to time acquired (collectively, the “Collateral”):
(a) each
of
the Collateral Accounts (to the extent a security interest therein is not
created pursuant to the Security Agreement), including any and all assets of
whatever type or kind deposited by such Pledgor in any such Collateral Account,
whether now owned or hereafter acquired, existing or arising, including, without
limitation, all Financial Assets, Investment Property, monies, checks, drafts,
Instruments, Securities or interests therein of any type or nature deposited
or
required by the Credit Agreement or any other Secured Debt Agreement 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
represent-ing 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 held by such Pledgor from time to time and all options
and
warrants owned by such Pledgor from time to time to purchase
Securities;
(c) all
Limited Liability Company Interests owned by such Pledgor from time to time
and
all of its right, title and interest in each limited liability company to which
each such Limited Liability Company Interest relates, including,
without
limitation, to the fullest extent permitted under the terms and provisions
of
the documents and agreements governing such Limited Liability Company Interests
and applicable law:
(A) all
its
capital therein and its interest in all profits, income, surpluses, 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;
(B) all
other
payments due or to become due to such Pledgor in respect of Limited Liability
Company Interests, whether under any limited liability com-pany agreement or
otherwise, whether as contractual obligations, damages, insur-ance proceeds
or
otherwise;
(C) all
of
its claims, rights, powers, privileges, authority, options, secur-ity interests,
liens and remedies, if any, under any limited liability company agree-ment
or
operating agreement, or at law or otherwise in respect of such Limited Liability
Company Interests;
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(D) all
present and future claims, if any, of such Pledgor against any such limited
liability company for monies loaned or advanced, for services ren-dered or
otherwise;
(E) all
of
such Pledgor’s rights under any limited liability company agree-ment or
operating agreement 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 such limited liability company agreement or operating agreement, to execute
any instruments and to take any and all other action on behalf of and in the
name of any of such Pledgor in respect of such Limited Liability Company
Interests and any such limited liability company, to make determinations, to
exercise any election (includ-ing, 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 Asset,
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
(F) all
other
property hereafter delivered in substitution for or in addi-tion to any of
the
foregoing, all certificates and instruments representing or evi-denc-ing 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 by such Pledgor from time to time and all of its
right, title and interest in each partnership to which each such Partnership
Interest relates, including, without limitation, to the fullest extent permitted
under the terms and provisions of the documents and agreements governing such
Partnership Interests and applicable law:
(A) all
its
capital therein and its interest in all profits, income, surpluses, losses,
Partnership Assets and other distributions to which such Pledgor shall at any
time be entitled in respect of such Partnership Interests;
(B) all
other
payments due or to become due to such Pledgor in respect of Partnership
Interests, whether under any partnership agreement or otherwise, whether as
contractual obligations, damages, insurance proceeds or otherwise;
(C) all
of
its claims, rights, powers, privileges, authority, options, security interests,
liens and remedies, if any, under any partnership agreement or oper-at-ing
agreement, or at law or otherwise in respect of such Partnership
Interests;
(D) all
present and future claims, if any, of such Pledgor against any such partnership
for monies loaned or advanced, for services rendered or otherwise;
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(E) all
of
such Pledgor’s rights under any partnership agreement or operating agreement 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 or operating
agreement, 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 Asset, 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
(F) all
other
property 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
Financial Assets and Investment Property owned by such Pledgor from time to
time;
(f) all
Security Entitlements owned by such Pledgor from time to time in any and all
of
the foregoing; and
(g) all
Proceeds of any and all of the foregoing.
Notwithstanding
anything to the contrary contained herein, no Pledgor shall be required at
any
time to pledge hereunder more than 65% of the Voting Equity Interest of any
Foreign Corporation; provided
that
each Pledgor shall be required to pledge hereunder 100% of any Non-Voting Equity
Interest at any time and from time to time acquired by such Pledgor of any
Foreign Corporation.
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
auto-matically (and without the taking of any action by such Pledgor) be pledged
pursu-ant to Section 3.1 of this Agreement and, in addition thereto, such
Pledgor shall (to the extent provided below) take the following actions as
set
forth below (as promptly as practicable and, in any event, within 10 days after
it obtains such Collateral) for the benefit of the Pledgee and the other Secured
Creditors:
(i) with
respect to a Certificated Security (other than a Certificated Security credited
on the books of a Clearing Corporation or Securities Intermediary), such Pledgor
shall physically deliver such Certificated Security to the Pledgee, endorsed
to
the Pledgee or endorsed in blank;
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(ii) with
respect to an Uncertificated Security (other than an Uncertificated Security
credited on the books of a Clearing Corporation or Securities Intermediary),
such Pledgor shall cause the issuer of such Uncertificated Security to duly
authorize, 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
H
hereto (appropri-ately completed to the satisfaction of the Pledgee and with
such modifications, if any, as shall be satisfactory to the Pledgee) pursu-ant
to which such issuer agrees to comply with any and all instructions originated
by the Pledgee in accordance with this Agreement without further con-sent 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 other
than a court of competent jurisdiction;
(iii) with
respect to a Certificated Security, Uncertificated Security, Partnership
Interest or Limited Liability Company Interest credited on the books of a
Clearing Corporation or Securities Intermediary (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 (x) all
actions required (i) to comply with the applicable rules of such Clearing
Corporation or Securities Intermediary and (ii) to perfect the security interest
of the Pledgee under applicable law (including, in any event, under Sections
9-314(a), (b) and (c), 9-106 and 8-106(d) of the UCC) and (y) such other actions
as the Pledgee reasonably deems necessary or desirable to effect the
foregoing;
(iv) with
respect to a Partnership Interest or a Limited Liability Company Interest (other
than a Partnership Interest or Limited Liability Company Interest credited
on
the books of a Clearing Corporation or Securities Intermediary), (1) if such
Partnership Interest or Limited Liability Company Interest is represented by
a
certificate and is a Security for purposes of the UCC, the procedure set forth
in Section 3.2(a)(i) hereof, and (2) if such Partnership Interest or Limited
Liability Company Interest is not represented by a certificate or is not a
Security for purposes of the UCC, the procedure set forth in Section 3.2(a)(ii)
hereof;
(v) with
respect to any Note, physical delivery of such Note to the Pledgee, endorsed
in
blank, or, at the request of the Pledgee, endorsed to the Pledgee;
and
(vi) with
respect to cash proceeds from any of the Collateral described in Section 3.1
hereof, (i) establishment by the Pledgee of a cash account in the name of such
Pledgor over which the Pledgee shall have “control” within the meaning of the
UCC and at any time any Event of Default is in existence no withdrawals or
transfers may be made therefrom by any Person except with the prior written
consent of the Pledgee and (ii) deposit of such cash in such cash
account.
(b)
In
addition to the actions required to be taken pursuant to Section 3.2(a) hereof,
each Pledgor shall take the following additional actions with respect to the
Collateral:
(i) with
respect to all Collateral of such Pledgor whereby or 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 laws of any relevant State other than the State
of New York), 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
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(ii) each
Pledgor shall from time to time cause appropriate financing statements (on
appropriate forms) under the Uniform Commercial Code as in effect in the various
relevant States, covering all Collateral hereunder (with the form of such
financing statements to be satisfactory to the Pledgee), to be filed in the
rele-vant filing offices so that at all times the Pledgee’s security interest in
all Investment Property and other Collateral which can be perfected by the
filing of such financing statements (in each case to the maximum extent
perfection by filing may be obtained under the laws of the relevant States,
including, without limitation, Section 9-312(a) of the UCC) is so
perfected.
3.3
Subsequently
Acquired Collateral. If
any Pledgor shall acquire (by purchase, stock dividend, distribution or
otherwise) any additional Collateral at any time or from time to time after
the
date hereof, (i) 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 hereof and, furthermore, such Pledgor
will thereafter take (or cause to be taken) all action (as promptly as
practicable and, in any event, within 10 days after it obtains such Collateral)
with respect to such Collateral in accordance with the procedures set forth
in
Section 3.2 hereof, and will promptly thereafter deliver to the Pledgee (x)
a
certificate executed by an authorized 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 (y)
supple-ments to Annexes A through G hereto as are necessary to cause such
Annexes to be com-plete and accurate at such time. Notwithstanding the
foregoing, no Pledgor shall be required to pledge hereunder the equity interests
of any Exempted Foreign Entity.
3.4
Transfer
Taxes.
Each
pledge of Collateral under Section 3.1 or Section 3.3 hereof shall be
accompanied by any transfer tax stamps required in connection with the pledge
of
such Collateral.
3.5
Certain
Representations and Warranties Regarding the Collateral.
Each
Pledgor represents and warrants that on the date hereof: (i) each Subsidiary
of
such Pledgor, and the direct ownership thereof, is listed in Annex B hereto;
(ii) the Stock (and any warrants or options to purchase Stock) held by such
Pledgor consists of the number and type of shares of the stock (or warrants
or
options to purchase any stock) of the corporations as described in Annex C
hereto; (iii) such Stock referenced in clause (ii) of this paragraph constitutes
that percentage of the issued and outstanding capital stock of the issuing
corporation as is set forth in Annex C hereto; (iv) the Notes held by such
Pledgor con-sist of the promissory notes described in Annex D hereto where
such
Pledgor is listed as the lender; (v) the Limited Liability Company Interests
held by such Pledgor consist of the number and type of interests of the Persons
described in Annex E hereto; (vi) each such Limited Liability Company Interest
referenced in clause (v) of this paragraph constitutes that percentage of the
issued and outstanding equity interest of the issuing Person as set forth in
Annex E hereto; (vii) the Partnership Interests held by such Pledgor consist
of
the number and type of interests of the Persons described in Annex F hereto;
(viii) each such Partnership Interest referenced in clause (vii) of this
paragraph constitutes that percentage or portion of the entire partnership
interest of the Partnership as set forth in Annex F hereto; (ix) the exact
address of each chief executive office of such Pledgor is listed on Annex G
hereto; (x) the Pledgor has complied with the respec-tive procedure set forth
in
Section 3.2(a) hereof with respect to each item of Collateral described in
Annexes C through F hereto; and (xi) on the date hereof, such Pledgor owns
no
other Securities, Stock, Notes, Limited Liability Company Interests or
Partnership Interests.
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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.
5.
VOTING,
ETC., WHILE NO EVENT OF DEFAULT OR SPECIFIED DEFAULT.
Unless
and until there shall have occurred and be continuing any Event of Default
under
the Credit Agreement or a Default under Section 10.01 or 10.05 of the Credit
Agreement (each such Default, a “Specified
Default”),
each
Pledgor shall be entitled to exercise any and all voting and other consensual
rights pertaining to the Collateral owned by it, and to give consents, waivers
or ratifications in respect thereof; provided
that, in
each case, no vote shall be cast or any consent, waiver or ratification given
or
any action taken or omitted to be taken which would violate, result in a breach
of any covenant contained in, or be inconsistent with any of the terms of any
Secured Debt Agreement, or which could reasonably be expected to have the effect
of impairing the value of the Collateral or any part thereof or the position
or
interests of the Pledgee or any other Secured Creditor in the Collateral, unless
expressly permitted by the terms of the Secured Debt Agreements. All such rights
of each Pledgor to vote and to give consents, waivers and ratifications shall
cease in case an Event of Default has occurred and is continuing, and Section
7
hereof shall become applicable.
6.
DIVIDENDS
AND OTHER DISTRIBUTIONS.
Unless
and until there shall have occurred and be continuing an Event of Default,
all
cash dividends, cash distributions, cash Proceeds and other cash amounts payable
in respect of the Collateral shall be paid to the respective Pledgor. The
Pledgee shall be entitled to receive directly, and to retain as part of the
Collateral:
(i) all
other
or additional stock, notes, certificates, limited liability company interests,
partner-ship interests, instruments or other securities or property (including,
but not limited to, cash dividends other than as set forth above) paid or
distributed by way of dividend or otherwise in respect of the
Collateral;
(ii) all
other
or additional stock, notes, certificates, limited liability company interests,
partner-ship interests, instruments or other securities or property (including,
but not limited to, cash (although such cash may be paid directly to the
respective Pledgor so long as no Event of Default then exists)) paid or
distributed in respect of the Collateral by way of stock-split, spin-off,
split-up, reclassification, combination of shares or similar rearrangement;
and
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(iii) all
other
or additional stock, notes, certificates, limited liability company interests,
partner-ship interests, instruments or other securities or property (including,
but not limited to, cash) which may be paid in respect of the Colla-teral by
reason of any consolidation, merger, exchange of stock, conveyance of assets,
liquidation or similar corporate or other reorgani-zation.
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 this Section
6
or Section 7 hereof shall be received in trust for the benefit of the Pledgee,
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 endorsement).
7.
REMEDIES
IN CASE OF AN EVENT OF DEFAULT OR A SPECIFIED DEFAULT.
(a) If
there shall have occurred and be continuing an Event of Default, then and in
every such case, the Pledgee shall be entitled to exercise all of the rights,
powers and remedies (whether vested in it by this Agreement, any other Secured
Debt Agreement or by law) for the protection and enforce-ment of its rights
in
respect of the Collateral, and the Pledgee shall be entitled to exercise all
the
rights and remedies of a secured party under the UCC as in effect in any
relevant jurisdiction and also shall be entitled, without limitation, to
exercise the fol-lowing rights, which each Pledgor hereby agrees to be
commercially reasonable:
(i) to
receive all amounts payable in respect of the Collateral otherwise payable
under
Section 6 hereof to the respective Pledgor;
(ii) to
transfer all or any part of the Collateral into the Pledgee’s name or the name
of its nominee or nominees;
(iii) 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);
(iv) to
vote
(and exercise all rights and powers in respect of voting) 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 it were the outright owner thereof
(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);
(v) at
any
time and 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 purchase or dispose (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
at least
10 days’ written notice of the time and place of any such sale shall be given to
the respective 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 Pledgor hereby 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, and all rights, if any, of marshalling the
Collateral and any other security or the Obligations or otherwise. At any such
sale, unless prohibited by applicable law, the Pledgee on behalf of the Secured
Creditors may bid for and purchase 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 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
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13
(vi) to
set
off any and all Collateral against any and all 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.
(b) If
there
shall have occurred and be continuing a Specified Default, then and in every
such case, the Pledgee shall be entitled to vote (and exercise all rights and
powers in respect of voting) 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 it were the outright owner thereof (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).
8.
REMEDIES,
CUMULATIVE, ETC. Each
and
every 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 cumula-tive and concurrent and shall be in
addition to every other such right, power or remedy. The exercise or beginning
of the exer-cise 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 here-after 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 all such other rights, powers
or
remedies, and no failure or delay on the part of the Pledgee or any other
Secured Creditor to exer-cise any such right, power or remedy shall operate
as a
waiver thereof. No notice to or demand on any Pledgor in any case shall entitle
it to any other or further notice or demand in similar or other circumstances
or
constitute a waiver of any of the rights of the Pledgee or any other Secured
Creditor to any other or further action in any circumstances without notice
or
demand. The Secured Creditors agree that this Agreement may be enforced only
by
the action of the Pledgee, in each case, acting upon the instructions of the
Required Secured Creditors, 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 to be granted hereby, it being understood and agreed that
such
rights and remedies may be exercised by the Pledgee for the benefit of the
Secured Creditors upon the terms of this Agreement and the Security Agreement.
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9.
APPLICATION
OF PROCEEDS.
(a)
All
monies collected by the Pledgee upon any sale or other disposition of the
Collateral pursuant to the terms of this Agreement, together with all other
monies received by the Pledgee hereunder, shall be applied in the manner
provided in the Security Agreement.
(b) It
is
understood and agreed that each Pledgor shall remain jointly and severally
liable with respect to its Obligations to the extent of any deficiency between
the amount of the proceeds of the Collateral pledged by it hereunder and the
aggregate amount of such Obligations.
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 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
any
part of the purchase money paid over to the Pledgee or such officer or be
answerable in any way for the misapplication or nonapplication
thereof.
11.
INDEMNITY.
Each
Pledgor jointly and severally agrees (i) to indemnify, reimburse and hold
harmless the Pledgee and each other Secured Creditor and their respective
successors, assigns, employees, agents and affiliates (individually an
“Indemnitee”,
and
collectively, the “Indemnitees”)
from
and against any and all obligations, damages, injuries, penalties, claims,
demands, losses, judgments and liabilities (including, without limitation,
liabilities for penalties) of whatsoever kind or nature, and (ii) to reimburse
each Indemnitee for all reasonable costs, expenses and disbursements, including
reasonable attorneys’ fees and expenses, 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 obligations, damages, injuries, penalties, claims, demands,
losses, judgments and liabilities (including, without limitation, 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 (as determined by a court of competent jurisdiction in a final and
non-appealable decision)). In no event shall the Pledgee hereunder be liable,
in
the absence of gross negligence or willful misconduct on its part (as determined
by a court of competent jurisdiction in a final and non-appealable decision),
for any matter or thing in connection with this Agreement other than to account
for monies 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, such Pledgor hereby agrees
to
make the max-imum 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 the Obligations and the
termination of all Interest Rate Protection Agreements and Other Hedging
Agreements and Letters of Credit, and notwithstanding the discharge
thereof.
12.
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 as a partner of any
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 as a partner in any partnership. The parties hereto
expressly agree that, unless the Pledgee shall become the absolute owner of
Collateral consisting of a Limited Liability Company Interest or a Partnership
Interest pursuant hereto, this Agreement shall not be construed as creating
a
partnership or joint venture among the Pledgee, any other Secured Creditor,
any
Pledgor and/or any other Person.
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15
(b) Except
as
provided in the last sentence of paragraph (a) of this Section 12, the Pledgee,
by accepting this Agreement, did not intend to become a member of any limited
liability company or a partner of any partnership or otherwise be deemed to
be a
co-venturer with respect to any Pledgor, any limited liability company,
partnership and/or any other Person 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 as a partner of
any
partnership or any Pledgor except as provided in the last sentence of paragraph
(a) of this Section 12.
(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 the pledge 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 to which it is not a party,
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.
13.
FURTHER
ASSURANCES; POWER-OF-ATTORNEY.
(a)
Each
Pledgor shall, at its own expense, file and refile under the UCC or other
applicable law such financing statements, continuation statements and other
documents, in form reasonably acceptable to the Pledgee, in such filing offices
as the Pledgee (acting on its own or on the instructions of the Required Secured
Creditors) may reasonably deem necessary or appropriate and wherever required
or
permitted by law in order to perfect and preserve the Pledgee’s security
interest 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 (including, without limitation, financing statements which list
the
Collateral specifically and/or “all assets” as collateral) without the signature
of such Pledgor where permitted by law, and agrees to do such further acts
and
to execute and deliver to the Pledgee such additional convey-ances, assignments,
agreements and instruments as the Pledgee may rea-son-ably 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 constitutes and appoints the Pledgee its true and lawful
attorney-in-fact, irrevocably, with full authority in the place and stead of
such Pledgor and in the name of such Pledgor or otherwise, from time to time
after the occurrence and during the continuance of an Event of Default, in
the
Pledgee’s discretion, to act, require, demand, receive and give acquittance for
any and all monies and claims for monies due or to become due to such Pledgor
under or arising out of the Collateral, to endorse any checks or other
instruments or orders in connection therewith and to file any claims or take
any
action or institute any proceedings and to execute any instrument which the
Pledgee may deem necessary or advisable to accomplish the purposes of this
Agreement, which appointment as attorney is coupled with an
interest.
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14.
THE
PLEDGEE AS FIRST-LIEN COLLATERAL AGENT.
The
Pledgee will hold in accordance with this Agreement all items of the Collateral
at any time received under this Agreement. It is expressly understood,
acknowledged and agreed by each Secured Creditor that by accepting the benefits
of this Agreement each such Secured Creditor acknowledges and agrees 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 and in Section 12 of the Credit
Agreement. The Pledgee shall act hereunder on the terms and conditions set
forth
herein and in Section 12 of the Credit Agreement.
15.
TRANSFER
BY THE PLEDGORS.
Except
as permitted (i) prior to the date all Credit Document Obligations have been
paid in full and all Commitments under the Credit Agreement have been
terminated, pursuant to the Credit Agreement, and (ii) thereafter, pursuant
to
the other Secured Debt Agreements, no Pledgor will sell or other-wise dispose
of, grant any option with respect to, or mortgage, pledge or otherwise encumber
any of the Collateral or any interest therein.
16.
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE PLEDGORS.
(a) Each
Pledgor represents, warrants and covenants as to itself and each of its
Subsidiaries that:
(i) it
is the
legal, beneficial and record owner of, and has good and marketable title to,
all
of its Collateral consisting of one or more Securities, Partnership Interests
and Limited Liability Company Interests and that it has sufficient interest
in
all of its 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, hypothe-cation, security interest, charge, option,
Adverse Claim or other encumbrance whatsoever, except the liens and security
interests created by this Agreement or permitted under the Secured Debt
Agreements);
(ii) it
has
full power, authority and legal right to pledge all the Collateral 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
enforce-ability thereof may be limited by applicable bank-ruptcy, insolvency,
reorganization, ▇▇▇▇-torium or other similar laws affecting creditors’ rights
generally and by general equitable principles (regardless of whether enforcement
is sought in equity or at law);
(iv) except
to
the extent already obtained or made and except for filings of financing
statements on Form UCC-1 (which shall be made no later than 10 days following
the Initial Borrowing Date), no consent of any other party (in-cluding, without
limitation, any stockholder, partner, member or creditor of such Pledgor or
any
of its Subsidiaries) and no consent, license, permit, approval or
authori-za-tion of, exemption by, notice or report to, or registration, filing
or declaration with, any govern-mental authority is required to be obtained
by
such Pledgor in connection with (a) the execution, delivery or performance
of
this Agreement by such Pledgor, (b) the validity or enforceability of this
Agreement against such Pledgor, (c) the perfection or enforce-ability of the
Pledgee’s security interest in such Pledgor’s Collateral or (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;
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(v) neither
the execution, delivery or performance by such Pledgor of this Agreement, or
any
other Secured Debt Agreement to which it is a party, nor compliance by it with
the terms and provisions hereof and thereof nor the con-sum-mation of the
transactions contemplated therein: (i) will contravene any provi-sion of any
applicable law, statute, rule or regulation, or any applicable order, writ,
injunction or decree of any court, arbitrator or governmental instrumentality,
domestic or foreign, applicable to such Pledgor; (ii) will violate or result
in
any breach of any of the terms, covenants, conditions or provi-sions of, or
constitute a default under, or result in the creation or imposition of (or
the
obligation to create or impose) any Lien (except pursuant to the Security
Documents) upon any of the properties or assets of such Pledgor or any of its
Subsidiaries pur-suant to the terms of any indenture, material lease, material
mortgage, material deed of trust, credit agreement, loan agree-ment or any
other
material agreement, contract or other instrument to which such Pledgor or any
of
its Subsidiaries is a party or is otherwise bound, or by which it or any of
its
properties or assets is bound or to which it may be subject; or (iii) will
violate any provision of the certificate of incorporation, by-laws, certificate
of part-nership, partnership agreement, certificate of formation or limited
liability company agreement (or equivalent organizational documents), as the
case may be, of such Pledgor or any of its Subsidiaries;
(vi) all
of
such Pledgor’s Collateral (consisting of Securities, Limited Liability Company
Interests and Partnership Interests) has been duly and validly issued, is fully
paid and non-assessable and is subject to no options to purchase or similar
rights;
(vii) each
of
such Pledgor’s 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 affecting creditors’ rights
generally and by general equitable principles (regardless of whether enforcement
is sought in equity or at law);
(viii) the
pledge, collateral assignment and delivery to the Pledgee of such Pledgor’s
Collateral consisting of Certificated Securities and Pledged Notes pursuant
to
this Agreement creates a valid and per-fected first priority security interest
in such Certificated Securities and Pledged Notes, and the proceeds thereof,
subject to no prior Lien or encumbrance or to any agreement purporting to grant
to any third party a Lien or encumbrance on the property or assets of such
Pledgor which would include the Securities (other than the liens and security
interests permitted under the Secured Debt Agreements then in effect) and the
Pledgee is entitled to all the rights, priorities and benefits afforded by
the
UCC or other relevant law as enacted in any relevant jurisdiction to perfect
security interests in respect of such Collateral; and
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(ix) “control”
(as defined in Section 8-106 of the UCC) has been obtained by the Pledgee over
all of such Pledgor’s Collateral consisting of Securities (including, without
limitation, Notes which are Securities) with respect to which such “control” may
be obtained pursuant to Section 8-106 of the UCC, except to the extent that
the
obligation of the applicable Pledgor to provide the Pledgee with “control” of
such Collateral has not yet arisen under this Agreement; provided
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 such Pledgor’s Collateral 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 by such Pledgor
as
Collateral hereunder and will likewise defend the right thereto and security
interest therein of the Pledgee and the other Secured Creditors.
(c) Each
Pledgor covenants and agrees that it will take no action which would violate
any
of the terms of any Secured Debt Agreement.
(d) Each
Pledgor hereby authorizes the First-Lien Collateral Agent to make duplicate
filings as if such Pledgor is a Transmitting Utility, or alternatively, as
if
such Pledgor is a Person which is not a Transmitting Utility.
17.
LEGAL
NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED ORGANIZATION);
JURISDICTION OF ORGANIZATION; LOCATION; ORGANIZATIONAL IDENTIFICATION NUMBERS;
CHANGES THERETO; ETC. The
exact
legal name of each Pledgor, the type of organization of such Pledgor, whether
or
not such Pledgor is a Registered Organization, the jurisdiction of organization
of such Pledgor, such Pledgor’s Location and the organizational identification
number (if any) of each Pledgor is listed on Annex A hereto for such Pledgor.
No
Pledgor shall change its legal name, its type of organization, its status as
a
Registered Organization (in the case of a Registered Organization), its
jurisdiction of organi-zation, its Location, or its organizational
identification number (if any), except that any such changes shall be permitted
(so long as not in violation of the applicable requirements of the Secured
Debt
Agreements and so long as same do not involve (x) a Registered Organization
ceasing to constitute same or (y) any Pledgor changing its jurisdiction of
organization or Location from the United States or a State thereof to a
jurisdiction of organization or Location, as the case may be, outside the United
States or a State thereof) if (i) it shall have given to the Pledgee not less
than 15 days’ prior written notice of each change to the information listed on
Annex A (as adjusted for any subsequent changes thereto previously made in
accor-dance with this sentence), together with a supplement to Annex A which
shall correct all infor-ma-tion contained therein for such Pledgor, and (ii)
in
connection with the respective such change or changes, it shall have taken
all
action reasonably requested by the Pledgee to maintain the security interests
of
the Pledgee in the Collateral intended to be granted hereby at all times fully
perfected and in full force and effect. In addition, to the extent that any
Pledgor does not have an organizational identification number on the date hereof
and later obtains one, such Pledgor shall promptly thereafter deliver a
notification to the Pledgee of such organizational identification number and
shall take all actions reasonably satisfac-tory to the Pledgee to the extent
necessary to maintain the security interest of the Pledgee in the Collateral
intended to be granted hereby fully perfected and in full force and
effect.
Page
19
18.
PLEDGORS’
OBLIGATIONS ABSOLUTE, ETC. The
obligations of each Pledgor under this Agreement shall be absolute and
unconditional and shall remain in full force and effect without regard to,
and
shall not be released, suspended, discharged, terminated or otherwise affected
by, any circumstance or occurrence whatsoever (other than termination of this
Agreement pursuant to Section 20 hereof), including, without limitation:
(i)
any
renewal, extension, amendment or modification of, or addition or supplement
to
or deletion from, any Secured Debt Agreement (other than this Agreement in
accordance with its terms), or any other instrument or agreement referred to
therein, or any assignment or transfer of any thereof;
(ii) any
waiver, consent, extension, indulgence or other action or inaction under or
in
respect of any such agreement or instrument including, without limitation,
this
Agreement (other than a waiver, consent or extension with respect to this
Agreement in accordance with its terms);
(iii)
any
furnishing of any additional security to the Pledgee or its assignee or any
acceptance thereof or any release of any security by the Pledgee or its
assignee;
(iv) any
limitation on any party’s liability or obligations under any such instrument or
agreement or any invalidity or unenforceability, in whole or in part, of any
such instrument or agreement or any term thereof; or
(v) any
bankruptcy, insolvency, reorganization, composition, adjustment, dis-solu-tion,
liquidation or other like proceeding relating to any Pledgor or any Subsidiary
of any Pledgor, or any action taken with respect to this Agreement by any
trustee or receiver, or by any court, in any such proceeding, whether or not
such Pledgor shall have notice or knowledge of any of the
foregoing.
19.
SALE
OF
COLLATERAL WITHOUT REGISTRATION.
(a)
If an
Event of Default shall have occurred and be continuing and any Pledgor shall
have received from the Pledgee a written request or requests that such Pledgor
cause any registration, qualification or compliance under any federal or state
securities law or laws to be effected with respect to all or any part of the
Collateral consisting of Securities, Limited Liability Company Interests or
Partnership Interests, such Pledgor as soon as practicable and at its expense
will use its best efforts to cause such registration to be effected (and be
kept
effective) and will use its commercially reasonable efforts to cause such
qualification and compliance to be effected (and be kept effective) as may
be so
requested and as would permit or facilitate the sale and distribution of such
Collateral consisting of Securities, Limited Liability Company Interests or
Partnership Interests, including, without limitation, registration under the
Securities Act, as then in effect (or any similar statute then in effect),
appropriate qualifications under applicable blue sky or other state secur-ities
laws and appropriate compliance with any other governmental requirements;
provided,
that
the Pledgee shall furnish to such Pledgor such information regarding the Pledgee
as such Pledgor may request in writing and as shall be required in connection
with any such registration, qualification or compliance. Each Pledgor will
cause
the Pledgee to be kept reasonably advised in writing as to the progress of
each
such regis-tration, qualification or compliance and as to the completion
thereof, will furnish to the Pledgee such number of prospectuses, offering
circulars and other documents incident thereto as the Pledgee from time to
time
may reasonably request, and will indemnify, to the extent permitted by law,
the
Pledgee and all other Secured Creditors participating in the distribution of
such Collateral consisting of Securities, Limited Liability Company Interests
or
Partnership Interests against all claims, losses, damages and liabilities caused
by any untrue statement (or alleged untrue statement) of a material fact
contained therein (or in any related registra-tion statement, notification
or
the like) or by any omission (or alleged omission) to state therein (or in
any
related registration statement, notification or the like) a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same may have been caused by an untrue
statement or omission based upon information furnished in writing to such
Pledgor by the Pledgee or such other Secured Creditor expressly for use
therein.
Page
20
(b) 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 hereof, and such
Collateral or the part thereof to be sold shall not, for any reason whatsoever,
be effectively registered under the Securities Act, 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
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
(i) 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, (ii) may approach and negotiate
with
a single possible purchaser to effect such sale, and (iii) 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 ▇▇▇▇▇ ▇▇▇▇ reasonable under the circum-stances,
notwithstanding the possibility that a substantially higher price might be
realized if the sale were deferred until the registration as
aforesaid.
20.
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 such Pledgor, will execute and deliver to such Pledgor a proper
instrument or instruments (including UCC termination statements) 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 release from the security interest
created hereby and 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 sub-agents hereunder and,
with respect to any Collateral consisting of an Uncertificated Security, a
Partnership Interest or a Limited Liability Company Interest (other than an
Uncertificated Security, Partnership Interest or Limited Liability Company
Interest credited on the books of a Clearing Corporation or Securities
Intermediary), 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)(2). As used in this Agreement, “Termination
Date”
shall
mean the date upon which the Commitments under the Credit Agreement have been
terminated and all Interest Rate Protection Agreements and Other Hedging
Agreements entitled to the benefits of this Agreement have been terminated,
no
Letter of Credit or Note (as defined in the Credit Agreement) is outstanding
(and all Loans have been paid in full), all Letters of Credit have been
terminated, and all other Obligations (other than indemnities described in
Section 11 hereof and described in Section 12.06 of the Credit Agreement, and
any other indemnities set forth in any other Security Documents, in each case
which are not then due and payable) then due and payable have been paid in
full.
Page
21
(b) In
the
event that any part of the Collateral is sold or otherwise disposed of (to
a
Person other than a Credit Party) (x) at any time prior to the time at which
all
Credit Document Obligations have been paid in full and all Commitments and
Letters of Credit under the Credit Agreement have been terminated, in connection
with a sale or disposition permitted by Section 9.02 of the Credit Agreement
or
is otherwise released at the direction of the Required Lenders (or all the
Lenders if required by Section 13.12 of the Credit Agreement) or (y) at any
time
thereafter, to the extent permitted by the other Secured Debt Agreements, and
in
the case of clauses (x) and (y), 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 release from the security interest created hereby (and
will execute and deliver such documentation, including termination or partial
release statements and the like in connection therewith) and 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 the possession of the Pledgee (or, in the case of
Collateral held by any sub-agent designated pursuant to Section 4 hereto, such
sub-agent) and has not theretofore been released pursuant to this
Agreement.
(c) If
the
Borrower designates any of its Subsidiaries as a Unrestricted Subsidiary in
accordance with Section 8.17 of the Credit Agreement and such Subsidiary is
a
Pledgor, then, so long as on or prior to such time such Unrestricted Subsidiary
has been released from any and all Existing Second-Lien Security Documents
or,
if applicable, any and all security documentation related to any Permitted
Refinancing Indebtedness in respect of the Existing Second-Lien Notes, the
Pledgee, at the request and expense of the Borrower, shall release from the
security interest created hereby the Collateral granted, pledged or assigned
by
such Subsidiary hereunder (and will execute such documentation, including
termination or partial release statements and the like in connection therewith)
and shall assign, transfer and deliver to such Subsidiary (without recourse
and
without any representation or warranty) such Collateral as may be in the
possession of the Pledgee or any sub-agent designated pursuant to Section 4
and
has not theretofore been released pursuant to this agreement.
Page
22
(d) At
any
time that any Pledgor desires that Collateral be released as provided in the
foregoing Section 20(a), (b) or (c), it shall deliver to the Pledgee (and the
relevant sub-agent, if any, designated pursuant to Section 4 hereof) a
certificate signed by an authorized officer of such Pledgor stating that the
release of the respective Collateral is permitted pursuant to
Section 20(a), (b) or (c) hereof. 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.
(e) The
Pledgee shall have no liability whatsoever to any other Secured Creditor as
the
result of any release of Collateral by it in accordance with (or which the
Pledgee in the absence of gross negligence and willful misconduct believes
to be
in accordance with) this Section 20.
21.
NOTICES,
ETC. Except
as
otherwise specified herein, all notices, requests, demands or other
communications to or upon the respective parties hereto shall be sent or
delivered by mail, telegraph, telex, telecopy, cable or courier service and
all
such notices and communications shall, when mailed, telegraphed, telexed,
telecopied, or cabled or sent by courier, be effective when deposited in the
mails, delivered to the telegraph com-pany, cable company or over-night courier,
as the case may be, or sent by telex or telecopier, except that notices and
communications to the Pledgee or any Pledgor shall not be effective until
received by the Pledgee or such Pledgor, as the case may be. All notices and
other communications shall be in writing and addressed as follows:
| (a) |
if
to any Pledgor, at:
|
c/o
RCN
Corporation
▇▇▇
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇’▇▇▇▇, Treasurer
Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
RCN
Corporation
▇▇▇
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel
Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Page
23
| (b) |
if
to the Pledgee, at:
|
▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇▇▇▇▇▇
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier
No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if
to any
Lender Creditor, either (x) to the Administrative Agent, at the address of
the
Administrative Agent specified in the Credit Agreement, or (y) 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 the Pledgors and the Pledgee;
or
at
such other address or addressed to such other individual as shall have been
furnished in writing by any Person described above to the party required to
give
notice hereunder.
22.
WAIVER;
AMENDMENT.
Except
as provided in Sections 30 and 32 hereof, none of the terms and conditions
of
this Agreement may be changed, waived, modified or varied in any manner
whatsoever except in accordance with the requirements specified in the Security
Agreement.
23.
SUCCESSORS
AND ASSIGNS.
This
Agreement shall create a continuing security interest in the Collateral and
shall (i) remain in full force and effect, subject to release and/or termination
as set forth in Section 20, (ii) 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 Secured Creditors), and (iii) inure, together with the rights and
remedies of the Pledgee hereunder, to the benefit of the Pledgee, the other
Secured Creditors and their respective successors, transferees and assigns.
All
agreements, statements, representations and warranties made by each Pledgor
herein or in any certificate or other instrument delivered by such Pledgor
or on
its behalf under this Agreement shall be considered to have been relied upon
by
the Secured Creditors and shall survive the execution and delivery of this
Agreement and the other Secured Debt Agreements regardless of any investigation
made by the Secured Creditors or on their behalf.
24.
HEADINGS
DESCRIPTIVE.
The
headings of the several Sections of this Agreement are inserted for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Agreement.
25.
GOVERNING
LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.
(a)
THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER
CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF
THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE
LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH PLEDGOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF
ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION
OF
THE AFORESAID COURTS. EACH PLEDGOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM
THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH PLEDGOR, AND AGREES
NOT TO PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS
THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER SUCH PLEDGOR. EACH PLEDGOR
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY SUCH PLEDGOR
AT
ITS ADDRESS FOR NOTICES AS PROVIDED IN SECTION 21 ABOVE, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH PLEDGOR HEREBY IRREVOCABLY WAIVES
ANY
OBJEC-TION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES
NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COM-MENCED HEREUNDER OR UNDER
ANY OTHER CREDIT DOCUMENT THAT SUCH SERVICE OF PROCESS WAS IN ANY WAY INVALID
OR
INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE PLEDGEE UNDER THIS
AGREEMENT, OR ANY SECURED CREDITOR, TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
ANY PLEDGOR IN ANY OTHER JURISDICTION.
Page
24
(b) EACH
PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJEC-TION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT
ANY
SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(c) EACH
OF
THE PARTIES TO THIS AGREEMENT HEREBY IRREVO-CABLY WAIVES ALL RIGHT TO A TRIAL
BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY.
26.
PLEDGORS’
DUTIES.
It is
expressly agreed, anything herein contained to the contrary notwith-stand-ing,
that each Pledgor shall remain liable to perform all of the obligations, if
any,
assumed by it with respect to the Collateral and the Pledgee shall not have
any
obli-gations or liabilities with respect to any Collateral by reason of or
arising out of this Agreement, except for the safe-keep-ing of Collateral
actually in Pledgor’s possession, nor shall the Pledgee be required or obligated
in any manner to perform or fulfill any of the obligations of any Pledgor under
or with respect to any Collateral.
Page
25
27.
COUNTERPARTS.
This
Agreement may be executed in any number of counter-parts and by the different
parties hereto on separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together constitute
one
and the same instrument. A set of counterparts executed by all the parties
hereto shall be lodged with each Pledgor and the Pledgee.
28.
SEVERABILITY.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforce-ability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
29.
RECOURSE.
This
Agreement is made with full recourse to each Pledgor and pursuant to and upon
all the representations, warranties, covenants and agreements on the part of
such Pledgor contained herein and in the other Secured Debt Agreements and
otherwise in writing in connection herewith or therewith.
30.
ADDITIONAL
PLEDGORS.
It is
understood and agreed that any Subsidiary of the Borrower that is required
to
become a party to this Agreement after the date hereof pursuant to the
requirements of the Credit Agreement or any other Credit Document, shall become
a Pledgor hereunder by (x) executing a counterpart hereof and delivering same
to
the Pledgee or executing a joinder agreement and delivering same to the Pledgee,
in each case as may be requested by (and in form and substance satisfactory
to)
the Pledgee, (y) delivering supplements to Annexes A through G, hereto as are
necessary to cause such annexes to be complete and accurate with respect to
such
additional Pledgor on such date and (z) taking all actions as specified in
this
Agreement as would have been taken by such Pledgor had it been an original
party
to this Agreement, in each case with all documents required above to be
delivered to the Pledgee and with all documents and actions required above
to be
taken to the reasonable satisfaction of the Pledgee.
31.
LIMITED
OBLIGATIONS.
It is
the desire and intent of each Pledgor and the Secured Creditors that this
Agreement shall be enforced against each Pledgor to the fullest extent
permissible under the laws 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
constituting a Subsidiary Guarantor have been limited as provided in the
Subsidiaries Guaranty.
32.
RELEASE
OF PLEDGORS.
If at
any time all of the Equity Interests of any Pledgor owned by the Borrower or
any
of its Subsidiaries are sold (to a Person other than a Credit Party) in a
transaction permitted pursuant to the Credit Agreement (and which does not
violate the terms of any other Secured Debt Agreement then in effect), then
such
Pledgor shall be released as a Pledgor pursuant to this Agreement without any
further action hereunder (it being understood that the sale of all of the Equity
Interests in any Person that owns, directly or indirectly, all of the Equity
Interests in any Pledgor shall be deemed to be a sale of all of the Equity
Interests in such Pledgor for purposes of this Section), and the Pledgee is
authorized and directed to execute and deliver such instruments of release
as
are reasonably satisfactory to it. At any time that the Borrower desires that
a
Pledgor be released from this Agreement as provided in this Section 32, the
Borrower shall deliver to the Pledgee a certificate signed by a principal
executive officer of the Borrower stating that the release of such Pledgor
is
permitted pursuant to this Section 32. If requested by Pledgee (although the
Pledgee shall have no obligation to make any such request), the Borrower shall
furnish legal opinions (from counsel acceptable to the Pledgee) to the effect
set forth in the immediately preceding sentence. The Pledgee shall have no
liability whatsoever to any other Secured Creditor as a result of the release
of
any Pledgor by it in accordance with, or which it believes to be in accordance
with, this Section 32.
Page
26
33.
COMPLIANCE
WITH LAWS.
Each
Pledgor agrees, following the occurrence and during the continuance of an Event
of Default, to use commercially reasonable efforts, including taking any action
which the Pledgee and the Secured Creditors may reasonably request, to
assist in obtaining any required consent or approval of the Federal
Communications Commission (the “FCC”)
or any
other governmental or other authority for any sale or transfer of control of
the
Collateral contemplated by the security documents pursuant to the exercise
of
the rights and remedies of the Pledgee and the Secured Creditors thereunder,
including, upon request, to prepare, sign and file with the FCC the assignor’s
or transferor’s and licensee’s portions of any applications required under the
rules of the FCC for consent to the assignment or transfer of control of any
FCC
construction permit, license or other authorization.
Each
Pledgor further consents, subject to obtaining any necessary approvals,
following the occurrence and during the continuance of an Event of Default,
to
the assignment or transfer of control of any FCC or other governmental
construction permit, license, or other authorization to operate, to a receiver,
trustee, or similar official or to any purchaser of the Collateral pursuant
to
any public or private sale, judicial sale, foreclosure, or exercise of other
remedies available to Pledgee and the Secured Creditors as permitted by
applicable law. Notwithstanding anything herein which may be construed to the
contrary, no action shall be taken by any of the First-Lien Collateral Agent
and
the Secured Creditors with respect to any license of the FCC unless and until
any applicable rules and regulations thereunder, requiring the consent to or
approval of such action by the FCC or any governmental or other authority,
have
been satisfied.
*
* * *
Page
27
IN
WITNESS WHEREOF, each Pledgor and the Pledgee have caused this Agreement to
be
executed by their duly elected officers duly authorized as of the date first
above written.
|
RCN
CORPORATION
21ST
CENTURY TELECOM SERVICES, INC.
BRAINSTORM
NETWORKS, INC.
HOT
SPOTS PRODUCTIONS, INC.
ON
TV, INC.
RCN-BECOCOM,
INC.
RCN
CABLE TV OF CHICAGO, INC.
RCN
ENTERTAINMENT, INC.
RCN
FINANCE, LLC
By:
RCN Corporation, its managing
member
RCN
FINANCIAL MANAGEMENT, INC.
RCN
INTERNATIONAL HOLDINGS, INC.
RCN
INTERNET SERVICES, INC.
RCN
NEW YORK COMMUNICATIONS HOLDING COMPANY, INC.
RCN
NEW YORK COMMUNICATIONS,
LLC
By:
RCN New York Communications Holding Company, Inc., its managing
member
RCN
TELECOM SERVICES, INC.
RCN
TELECOM SERVICES OF ILLINOIS, LLC
By:
RCN Corporation, its managing
member
RCN
TELECOM SERVICES OF MASSACHUSETTS, INC.
RCN
TELECOM SERVICES OF PHILADELPHIA, INC.
RCN
TELECOM SERVICES OF VIRGINIA, INC.
RCN
TELECOM SERVICES OF WASHINGTON D.C., INC.
RFM
2, LLC
By:
RCN Corporation, its managing
member
RLH
PROPERTY CORPORATION
STARPOWER
COMMUNICATIONS, LLC
By:
RCN Telecom Services of Washington D.C., Inc., its managing
member
TEC
AIR, INC.
UNET
HOLDING, INC.,
as
Pledgors
|
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
|
Title:
EVP & Chief Financial
Officer
|
|||
(2)
|
Accepted
and Agreed to:
DEUTSCHE
BANK TRUST COMPANY
AMERICAS,
as First-Lien Collateral
Agent
and Pledgee
|
| By: | ||
| Name: | ||
|
Title:
|
| By: | ||
| Name: | ||
|
Title:
|
(3)