FORM OF SECURITY AGREEMENT
SECURITY AGREEMENT (the "Security Agreement"), dated as of October 29,
1997, by and between Connecticut Bank of Commerce, a Connecticut bank and trust
company (the "Bank") and Charter Communications International, Inc., a Nevada
corporation(the "Grantor").
RECITALS
WHEREAS, in order to induce the Bank to enter into the Purchase and Sale
Agreement ("Purchase Agreement") and the Equipment Lease Agreement ("Lease
Agreement") with the Grantor, the Bank has required that the Grantor
concurrently enter into this Security Agreement and provide the Bank with the
first priority security interest in certain collateral as set forth hereinafter;
and
WHEREAS, the parties hereto wish to set forth the terms and conditions of
the Grantor's grant of a security interest in certain collateral to the Bank.
NOW, THEREFORE, for value received and in consideration of the mutual
representations, warranties, covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. SECURITY INTEREST.
1.1 Grant of Security Interest. The Grantor hereby grants to the Bank
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a continuing security interest in, lien on, and assignment of, and right of set
off against (collectively, the "Security Interest"), all of such Grantor's
right, title and interest in, to and under the following (collectively, the
"Collateral"): (i) all currently existing and hereafter arising accounts,
contract rights and all other forms of obligations owing to Grantor arising out
of the sale or lease of goods or the rendition of services by Grantor,
irrespective of whether earned by performance, and any and all credit insurance,
guaranties or security therefor, including all documentation, invoices or other
writings evidencing any of the foregoing (collectively, "Receivables")
(excluding Receivables purchased by the Bank, from time to time hereafter, but
including the Grantor's residual interest in purchased and all other
Receivables); (ii) the machinery, machine tools, motors, equipment, furniture,
furnishings, fixtures, vehicles (including motor vehicles and trailers), tools,
parts, goods, wherever located, described on Exhibit A attached hereto and made
a part hereof (collectively, "Equipment");and (iii) the proceeds and products,
whether tangible or intangible, of any of the foregoing, including proceeds of
insurance covering any or all of the foregoing, and any and all receivables,
general intangibles, negotiable collateral, equipment, inventory, money, deposit
accounts or other tangible or intangible property resulting from the sale,
exchange, collection or other disposition of any of the foregoing, or any
portion thereof or interest therein, and the proceeds thereof.
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The Bank shall have a first priority security interest in and lien
on all of the Collateral except for Grantor's Receivables in which the Bank or
its assignee will have a first priority security interest in the Grantor's
Receivables pursuant to the terms of a Receivable Purchase Facility Agreement
and a Receivable Purchase Agreement, each by and between the Debtor as seller
and the Secured Party as buyer (collectively, the "Receivable Purchase
Agreements"). The Bank shall have all of the rights of a secured party with
respect to the Collateral under the UCC and the other laws of the States of
Connecticut, Georgia and Texas as well as under the laws of other applicable
States and jurisdictions.
1.2 The Obligations. The Security Interest in the Collateral
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granted hereby is to secure the prompt, complete payment and performance of all
of the Grantor's obligations under the Lease Agreement, including, but not
limited to, its obligations to pay rent and all other amounts payable
thereunder, and any and all extensions, modifications and renewals thereof and
the performance of all terms, conditions, covenants and agreements contained in
this Security Agreement as well as any other obligations or liabilities of the
Grantor to the Secured Party under any other agreement, whether direct or
indirect, absolute or contingent, due or to become due and whether now existing
or hereafter arising and howsoever evidenced or acquired, whether joint or
several (collectively, the "Obligations").
All of the Obligations shall be secured by the Collateral. The Bank may,
in its reasonable credit decision, (i) exchange, waive, or release any of the
Collateral, (ii) apply Collateral and direct the order or manner of sale thereof
as the Bank may determine, and (iii) settle, compromise, collect or otherwise
liquidate any Collateral in any manner, all without affecting the Obligations or
the Bank's right to take any other action with respect to any other Collateral.
SECTION 2. GENERAL COVENANTS.
2.1 Perfection and Protection of Security Interest; Landlord Waivers.
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The Grantor shall, at its expense, perform all reasonable steps requested by
the Bank at any time to perfect, maintain, protect, and enforce the Security
Interest. On the Closing Date, the Grantor shall execute and deliver, and cause
to be filed such financing or security statements, agreements, mortgages, deeds
of trust or other filings, in form and substance satisfactory to the Bank and
its counsel, evidencing the Bank's Security Interest in the Collateral under
applicable law. So long as this Agreement is in effect and until all
Obligations have been fully satisfied, the Security Interest shall continue in
full force and effect in all Collateral. For any of the Grantor' leased premises
in which a material portion of the Collateral is located or stored, the Grantor,
if requested by the Bank, shall obtain, as soon as practicable following the
Closing Date, landlord waivers in form and substance satisfactory to the Bank
and its counsel.
2.2 Performance by Secured Party; Right to Perform or Cure. The Bank
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may, in its discretion and at any time, for the Grantor' account and expense,
pay any amount or do any act required of the Grantor hereunder or reasonably
requested by the Bank to preserve, protect, maintain or enforce the Obligations,
the Collateral or the Security Interest and which the Grantors fail to pay or
do. All payments that the Bank makes under this Section 2.2 and all
out-of-pocket costs and expenses that the Bank pays or incurs in connection with
any action taken by it hereunder, together with reasonable attorneys' fees and
other costs, shall be secured by the Collateral, and upon an Event of Default
(as defined in Section 5.1 hereof) shall bear interest at a per annum interest
rate of the Wall Street Journal Prime Rate plus 10 percent. Any payment made or
other action taken by the Bank under this Section 2.2 shall be without
prejudice to any right to assert an Event of Default hereunder and to proceed
thereafter as herein provided.
2.3 Power of Attorney. The Grantor hereby appoints the Bank and the
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Bank's designees as the Grantor's attorney, with power, upon an Event of
Default: (a) to endorse the Grantor's names on any document of title relating to
any Collateral; and (b) to do all things necessary to carry out this Agreement.
The Grantor hereby ratifies and approves all acts of such attorney. Neither the
Bank nor the attorney will be liable for any acts or omissions or for any error
of judgment or mistake of fact or law. This power, being coupled with an
interest, is irrevocable until this Agreement has been terminated and the
Obligations have been fully satisfied.
2.4 Access and Examination. The Bank may at all reasonable times (and
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at any time when an Event of Default exists) have access to examine, audit, make
extracts from and inspect the Grantor's records, files, and books of account and
the Collateral and to discuss the Grantor's affairs with the Grantor's officers
and management. The Bank may, at any time when an Event of Default exists, and
at the Grantor's expense, make copies of Grantor's financial books and records,
or require the Grantor to deliver such copies to the Bank. The Bank may,
without expense to the Bank, use such of the Grantor's personnel, supplies, and
premises as may be reasonably necessary for maintaining or enforcing the
Security Interest.
2.5 Books and Records. The Grantor shall maintain, at all times,
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correct and complete books, records and accounts in which complete, correct and
timely entries are made of its transactions in accordance with generally
accepted accounting principles ("GAAP") consistent with those applied in the
preparation of such Grantor's annual financial statements. The Grantor shall,
by means of appropriate entries, reflect in such accounts and in all financial
statements the Loans, all in accordance with GAAP. The Grantor shall maintain
at all times books and records pertaining to the Collateral in such detail, form
and scope as the Bank shall reasonably require.
2.6 Financial and Other Information. The Grantor shall promptly
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furnish to the Bank all such financial information as the Bank shall reasonably
request, and notify its auditors and accountants that the Bank is authorized to
obtain such information directly from them.
2.7 Notices to Bank. The Grantor shall notify the Bank in writing of
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the following matters and deliver any information or notices described therein
at the following times:
(a) Immediately after becoming aware thereof, any Event of Default.
(b) Immediately after becoming aware thereof, assertion by the holder
of any debt of a Grantor in excess of $100,000 that a default exists with
respect thereto or that such Grantor is not in compliance with the terms
thereof; or the threat or commencement by such holder of any enforcement action
because of such asserted default or non-compliance.
(c) Immediately after becoming aware thereof, any material adverse
change in the Grantor's financial condition, property, business, prospects or
operations.
(d) Immediately after becoming aware thereof, any pending or threatened
action, suit, proceeding, or counterclaim by any person, or any pending or
threatened investigation by a public authority, which may materially and
adversely affect the Collateral, the Grantor's satisfaction of the Obligations,
the Bank's rights under the Lease Agreement or the Grantor's financial
condition.
(e) Immediately after becoming aware of any event, including any
violation of any law, statute, regulation, or ordinance of any public authority
applicable to the Grantor or its Properties, which may materially and adversely
affect the Collateral, the Grantor's satisfaction of the Obligations, the Bank's
rights under the Lease Agreement or the Grantor's financial condition.
(f) Any change in the Grantor's name, state, province or country of
incorporation or form of organization, at least thirty (30) days prior thereto.
Each notice given under this Section 2.7 shall describe the subject matter
thereof in reasonable detail, and shall set forth the action that such Grantor
has taken or proposes to take with respect thereto.
SECTION 3. GENERAL WARRANTIES AND REPRESENTATIONS.
The Grantor warrants and represents to the Bank:
3.1 Validity, and Enforceability of this Security Agreement and the
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Lease Agreement. The Grantor has the corporate power to execute, deliver and
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perform this Security Agreement and the Lease Agreement and all agreement and
documents pertaining thereto, to incur the Obligations, and to grant the
Security Interest. The Grantor has taken all necessary corporate action
(including, without limitation, obtaining any necessary shareholder approval or
consent) to execute, deliver and perform this Agreement and the Lease Agreement.
No consent, approval, or authorization of, or declaration or filing with, any
public authority, and no consent of any other person, is required in connection
with the Grantor's execution, delivery, and performance of this Security
Agreement and the Lease Agreement, except for those already duly obtained. Each
of this Security Agreement and the Lease Agreement has been duly executed and
delivered by the Grantor, and constitutes the legal, valid and binding
obligation of the Grantor, enforceable against the Grantor in accordance with
its terms. The Grantor's execution, delivery, and performance of this Security
Agreement and the Lease Agreement do not and will not conflict with, or
constitute a violation or breach of, or constitute a default under, or result in
the creation or imposition of any lien upon the property of the Grantor (except
as contemplated by this Security Agreement and the Lease Agreement) by reason of
the terms of (a) any contract, mortgage, lien, lease, agreement, indenture, or
instrument to which such Grantor is a party or which is binding upon such
Grantor, (b) any judgment, law, statute, rule or governmental regulation
applicable to such Grantor or (c) the Certificate or Articles of Incorporation
or By-Laws of such Grantor.
3.2 Validity and Priority of Security Interest. The provisions of this
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Security Agreement and the Lease Agreement create a legal and valid Security
Interest in the Collateral in the Bank's favor, and such Security Interest
constitutes a continuing lien on all the Collateral, having priority over all
other liens on the Collateral (other than the Grantor's Receivables), and
enforceable against the Grantor and all third parties.
3.3 Organization and Qualification. Grantor: (a) is duly incorporated
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and organized and validly existing in good standing under the laws of its
incorporation or organization; (b) is in good standing in all jurisdictions in
which qualification is necessary in order for it to own or lease its property
and conduct its business; and (c) has all requisite power and authority to
conduct its business and to own its property.
3.4 No Default. Except as disclosed in writing to the Bank prior to the
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date hereof, the Grantor is not in default with respect to payment of principal,
interest or other amounts due and payable with respect to any note, indenture,
loan agreement, mortgage, lease, deed, or other agreement to which the Grantor
is a party or bound, which default could materially and adversely affect the
Collateral, the Debtor's Obligations, the Bank's rights under the Lease
Agreement, or the Grantor's financial condition. For purposes of this provision,
a loan or extension of credit of in excess of $100,000 is deemed to be material
with regard to the Grantor's financial condition.
3.5 Litigation. Except as disclosed in writing to the Bank prior to
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the date hereof, to the best of the Grantor's knowledge, there is no threatened
action, suit, proceeding, or counterclaim by any person, or investigation by any
public authority, or any basis for any of the foregoing, which may materially
and adversely affect the Collateral, the Grantor's satisfaction of the
Obligations, the Bank's rights under the Loan Documents, or the Grantor's
Property, business, prospects, operations, or conditions (financial or
otherwise).
3.6 Title to Collateral; Permitted Liens. The Grantor has good and
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marketable title to the Collateral and the same is not now and shall not become
subject to any security interest, encumbrance, lien or claim of any third person
other than: (i) liens and security interests securing the Obligations or any
other obligation of the Grantor to the Secured Party, including, but not limited
to, the Receivable Purchase Agreements; (ii) liens for taxes, assessments or
similar charges either not yet due or being contested in good faith; (iii) liens
of mechanics, materialmen, warehousemen, carriers or other like liens arising in
the ordinary course and securing obligations not yet delinquent; (iv) purchase
money liens or purchase money security interests upon or in any property
acquired or held by the Grantor in the ordinary course of business to secure
indebtedness outstanding on the date hereof or permitted to be incurred
hereunder; (v) liens and security interests which, as of the date hereof, have
been disclosed to and approved by the Bank in writing; and (vi) those liens and
security interests which in the aggregate constitute an immaterial and
insignificant monetary amount with respect to the net value of the Grantor's
assets (collectively, the "Permitted Liens").
SECTION 4. AFFIRMATIVE AND NEGATIVE COVENANTS.
The Grantor covenants that, so long as any of the Obligations remain
outstanding or this Security Agreement is in effect:
4.1 Compliance with Law and Agreements. Grantor shall comply with the
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terms and provisions of this Security Agreement. In addition, such Grantor shall
comply with the terms and conditions of each material judgment, law, statute,
rule and governmental regulation applicable to it and each material contract,
mortgage, lien, lease, indenture, order, instrument, agreement, mortgage, lien,
lease, indenture, order, instrument, agreement or document to which it is a
party or by which it is bound, including, but not limited to, the Lease
Agreement.
4.2 Transactions Affecting Collateral or Obligations; Maintenance of
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Insurance. The Grantor shall not enter into any transaction which materially
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and adversely affects the Collateral or the Grantor's ability to repay the
Obligations. The Grantor shall maintain insurance in such amounts and covering
such risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the Grantor
operates and maintain such other insurance and coverages as may be required by
the Bank. All such insurance shall be in form and amount and with insurance
companies satisfactory to the Bank. With respect to insurance covering
Collateral in which the Bank has a Security Interest, at the Bank's request, the
Grantor shall name the Bank as loss payee pursuant to a loss payable endorsement
satisfactory to the Bank and shall not be altered or canceled except upon ten
Business Days' prior written notice to the Bank. Upon the Bank's request, the
Grantor shall furnish the Bank with the original policy or a binder of all such
insurance.
4.3 Corporate Existence and Good Standing. The Grantor shall maintain
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its corporate existence and its qualification and good standing in all states,
provinces or countries necessary to conduct its business and own its Property,
and shall obtain and maintain all licenses, permits, franchises and governmental
authorizations necessary to conduct its business and own its Property.
4.4 Maintenance of Collateral. The Grantor shall keep and maintain the
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Collateral free and clear of all levies, liens, encumbrances and security
interests, except for Permitted Liens (as defined in Section 3.6). The Grantor
shall properly care for, house, store and maintain the Collateral in good
condition, free of misuse, abuse and deterioration, other than normal wear and
tear. The Grantor shall also maintain and preserve Collateral in good and
working order and condition in accordance with the general practice of other
businesses of similar character and size, ordinary wear and tear excepted.
4.5 Location and Maintenance of Grantor's Equipment. The Grantor's
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Equipment shall at all times be in the Grantor's physical possession, shall not
be held for sale or lease (other than to the Bank) and shall be kept only at the
locations set forth on Schedule 1 hereof. The Grantor shall not secrete,
abandon, move or permit the removal of, the Equipment or any part thereof, from
the locations shown on Schedule 1 hereof, or permit to be removed any
accessories now or hereafter placed upon the equipment, without the express
prior written permission of the Bank. Upon the request of the Bank, the Grantor
shall immediately provide the Bank with a complete and accurate description of
the Equipment including, as applicable, the make, model, identification number
and serial number of each item of Equipment. The Grantor shall, at the Grantor's
sole cost and expense, keep and maintain the Equipment in a good state of repair
and shall not destroy, misuse, abuse, illegally use or be negligent in the care
of the Equipment or any part thereof. The Equipment is not now, and shall not at
any time hereafter, be so affixed to the real property on which it is located to
become a fixture or a part thereof. The Equipment is now and at all times
hereafter be and remain the personal property of the Grantor.
4.6 Further Assurances. The Grantor shall execute and deliver, or cause
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to be executed and delivered, to the Bank such documents and agreements, and
shall take or cause to be taken such actions, as the Bank may, from time to
time, reasonably require to carry out the terms and conditions of this Agreement
and the Lease Agreement.
SECTION 5. DEFAULT; REMEDIES.
5.1 Event of Default. It shall constitute an event of default ("Event
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of Default") if (i) an Event of Default occurs, as defined in the Lease
Agreement, or (ii) the Grantor breaches this Security Agreement and such breach
is not cured within thirty (30) days of written notice thereof from the Bank.
5.2 Remedies.
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(a) If an Event of Default exists, the Bank may, without notice to or
demand on the Grantor, do one or more of the following at any time or times and
in any order: (i) terminate the Lease Agreement; (ii) declare any or all
Obligations not payable on demand to be immediately due and payable; and (iii)
pursue its other rights and remedies under this Security Agreement or the Lease
Agreement and applicable law.
(b) If an Event of Default exists: (i) the Bank shall have, in
addition to all other rights and remedies of a secured party, all of the rights
and remedies of a secured party under the UCC and any other similar laws; (ii)
the Bank may, at any time, take possession of the Collateral and keep it on a
Grantor's premises, at no cost to the Bank or remove any part of its to such
other place or places as the Bank may desire, or such Grantor shall, upon the
Bank's demand, at such Grantor's cost, assemble the Collateral and make it
available to the Bank at a place reasonably convenient to the Bank; and (iii)
the Bank may sell and deliver any Collateral at public or private sales, for
cash, upon credit or otherwise, at such process and upon such terms as the Bank
deems advisable, in its sole discretion, and may, if the Bank deems it
reasonable, postpone or adjourn any sale of the Collateral by an announcement at
the time and place of sale or of such postponed or adjourned sale without giving
a new notice of sale. Without in any way requiring notice to be given in the
following manner, the Grantor agree that any notice by the Bank of sale,
disposition or other intended action hereunder or in connection herewith,
whether required by the UCC or otherwise, shall constitute reasonable notice to
the Grantor if such notice is mailed by registered or certified mail, return
receipt requested, postage prepaid, or is delivered personally against receipt,
at least five (5) days prior to such action to the Grantor's address specified
in or pursuant to this Agreement. If any Collateral is sold on terms other
than payment in full at the time of sale, no credit shall be given against the
Obligations until the Bank receives payment, and if the buyer defaults in
payment, the Bank may resell the Collateral without further notice to the
Grantor. In the event the Bank seeks to take possession of all or any portion
of the Collateral by judicial process, the Grantor irrevocably waives: (a) the
posting of any bond, surety or security with respect thereto which might
otherwise be required; (b) any demand for possession prior to the commencement
of any suit or action to recover the Collateral; and (c) any requirement that
the Bank retain possession and not dispose of any Collateral until after trial
or final judgment. The Grantor agrees that the Bank has no obligation to
preserve rights to the Collateral or marshal any Collateral for the benefit of
any person. The proceeds of sale shall be applied first to all expenses of
sale, including attorneys' fees, and second, in whatever order the Bank elects,
to all Obligations. The Bank will return any excess to the Grantor or such
other Person as shall be legally entitled thereto and the Grantor shall remain
jointly and severally liable for any deficiency.
(c) If an Event of Default occurs, the Grantor hereby waive all rights
to notice and hearing prior to the exercise by the Bank of the Bank's rights to
repossess the Collateral without judicial process or to re-levy, attach or levy
upon the Collateral without notice or hearing.
SECTION 6. MISCELLANEOUS.
6.1 No Waiver. Failure by the Bank to exercise any right, remedy or
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option under this Security Agreement or any present or future supplement
thereto, or in any other agreement between the Grantor and the Bank, or delay by
the Bank in exercising the same, will not operate as a waiver thereof. No
waiver by the Bank will be effective unless it is in writing, and then only to
the extent specifically stated. No waiver by the Bank on any occasion shall
affect or diminish the Bank's right thereafter to require strict performance by
the Grantor of any provision of this Security Agreement. The Bank's rights and
remedies under this Agreement will be cumulative and not exclusive of any other
right or remedy which the Bank may have.
6.2 Amendments and Waivers. No amendment or modification of any
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provision of this Security Agreement shall be effective without the written
agreement of the Bank and the Grantor, and no termination or waiver of any
provision of this Security Agreement, or consent to any departure by the Grantor
therefrom, shall in any event be effective without the written concurrence of
the Bank, which the Bank shall have the right to grant or withhold at its sole
discretion.
6.3 Recourse to Collateral. The rights and remedies of the Bank set
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forth in this Security Agreement are not intended to be exclusive. The Bank
shall have the right, in its sole discretion, to determine which rights and
remedies are to be exercised and in which order. The exercise of one right or
remedy shall not preclude the exercise of any others, all of which shall be
cumulative. The Bank may, without limitation, proceed directly against the
Grantor to collect the Obligations without prior recourse to the Collateral.
6.4 Severability. If any provision of this Security Agreement shall be
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prohibited or invalid, under applicable law, it shall be effective only to such
extent, without invalidating the remainder of this Agreement.
6.5 Governing Law; Choice of Forum; Service of Process; Jury Trial
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Waiver. (a) THIS SECURITY AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND
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LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE INTERNAL
LAWS (AS OPPOSED TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF
CONNECTICUT, EXCEPT TO THE EXTENT THAT THE PERFECTION OF THE SECURITY
INTERESTS GRANTED HEREIN, OR THE REMEDIES HEREUNDER IN
RESPECT OF ANY PARTICULAR COLLATERAL, ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF CONNECTICUT.
(b) SUBJECT ONLY TO THE EXCEPTION IN THE NEXT SENTENCE, THE GRANTOR AND
THE BANK HEREBY AGREE TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE STATE OF CONNECTICUT SITTING IN COUNTY
OF FAIRFILED AND WAIVE ANY OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS
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WITH RESPECT TO ANY ACTION INSTITUTED THEREIN, AND AGREE THAT ANY DISPUTE
CONCERNING THE RELATIONSHIP BETWEEN THE BANK AND THE GRANTOR OR THE CONDUCT
OF ANY PARTY IN CONNECTION WITH THIS SECURITY AGREEMENT OR OTHERWISE SHALL BE
HEARD ONLY IN THE COURTS DESCRIBED ABOVE. NOTWITHSTANDING THE FOREGOING, THE
BANK SHALL HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST THE
GRANTOR OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION THE BANK DEEMS
NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR OTHER SECURITY
FOR THE OBLIGATIONS.
(c) THE GRANTOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS
UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED
MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO THE GRANTOR AT ITS ADDRESS SET
FORTH IN SECTION 6.8 AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE
(5) DAYS AFTER THE SAME SHALL HAVE BEEN SO DEPOSITED IN THE MAILS.
(d) EACH OF THE GRANTOR AND THE BANK HEREBY WAIVES ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER
THIS SECURITY AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED
OR DELIVERED IN CONNECTICUT HEREWITH OR (ii) IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR EITHER OF THEM
IN RESPECT TO THIS SECURITY AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED, IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT OR OTHERWISE. EACH OF THE GRANTOR AND THE BANK
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT EITHER OF THEM
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
(e) NOTHING IN THIS SECTION 6.5 SHALL AFFECT THE RIGHTS OF THE
BANK TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE
RIGHTS OF THE BANK TO BRING ANY ACTION OR PROCEEDING AGAINST THE GRANTOR OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
6.6 Survival of Representations and Warranties. All of the Grantor's
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representations, and warranties contained in this Security Agreement shall
survive the execution, delivery, and acceptance thereof by the parties,
notwithstanding any investigation by the Bank or the Bank's agents.
6.7 Fees and Expenses. The Grantor shall pay to the Bank, on demand,
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all costs and expenses that the Bank pays or incurs in connection with the
negotiation, preparation, consummation, administration, enforcement, and
termination of this Security Agreement and the Lease Agreement.
6.8 Notices. Any notice, request, demand or other communication
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permitted or required to be given hereunder shall be in writing, shall be signed
by the party giving it, shall be sent to the addressee at the address or
facsimile number set forth hereinbelow (or at such address or facsimile number
as shall be designated hereunder by notice to the other parties and persons
receiving copies) and shall be deemed conclusively to have been given: (i) on
the day sent by facsimile; (ii) on the day following the day on which it is sent
by Federal Express or by any other reputable overnight courier service; (iii) on
the fifth day following the day sent by certified or registered mail, postage
prepaid and return receipt requested; or (iv) when received by the addressee, if
sent otherwise.
(a) If to the Bank:
J. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Senior Vice President
Connecticut Bank of Commerce
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
Fax. No. (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
Fax. No. (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Grantor:
▇▇▇ ▇▇▇▇▇▇▇
Chief Financial Officer
Charter Communications International, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
Fax. No. (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq.
Cushing, Morris, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ International Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
▇▇.▇▇. (▇▇▇) ▇▇▇-▇▇▇▇
Failure or delay in delivering copies of any notice, demand, request,
consent, approval, declaration or other communication to the persons designated
above to receive copies shall not adversely affect the effectiveness of such
notice, demand, request, consent, approval, declaration or other communication.
6.9 Indemnity. The Grantor agrees to (i) reimburse the Bank for any
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costs and expenses (including, without limitation, reasonable attorneys' fees
and paralegals' fees and expenses) incurred by the Bank in defending any suit
brought against it by the Grantor or any other person in connection with the
transactions contemplated by this Security Agreement or the Lease Agreement
(other than any suit in which such Grantor obtains a final judgment against the
Bank), and (ii) indemnify and hold the Bank and its officers, directors,
employees, attorneys and agents (collectively, the "Indemnitees") harmless from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever incurred by the Indemnitees, whether direct, indirect or
consequential, as a result of or arising from or relating to any proceeding by
any person, whether threatened or initiated, asserting any claim for legal or
equitable remedy against any Person under any statute or regulation (including,
without limitation, any federal, state or other applicable securities or
commercial laws) or under any common law or equitable cause or otherwise, in any
way arising from or in connection with the negotiation, preparation, execution,
delivery, enforcement, performance and administration of this Agreement or any
other document executed in connection herewith, provided that the Grantor shall
have no obligation hereunder with respect to indemnified liabilities arising
from the gross negligence or willful misconduct of any Indemnitee seeking such
indemnification. To the extent that the indemnity set forth in this Section 6.9
may be unenforceable because it is violative of any law or public policy, the
Grantor shall pay the maximum portion which he is permitted to pay under
applicable law. Any Indemnitee will promptly notify the Grantor of the
commencement of any legal proceeding which may give rise to any indemnified
liability under the foregoing indemnity and shall permit the Grantor to assume
the defense of such Indemnitee in any such proceeding in accordance with the
provisions of the next paragraph of this Section 6.9. The foregoing indemnity
shall survive the payment of the Obligations and the termination of this
Security Agreement. All of the foregoing fees, costs and expenses shall be part
of the Obligations, payable upon demand, and secured by the Collateral.
In the event any action, suit or proceeding is brought by a third party
against an Indemnitee, with respect to which the Grantor may have liability
under this Section 6.9, the action, suit or proceeding shall, upon the written
agreement of the Grantor that its is obligated to pay for the defense of such
action, suit or proceeding, be defended (including all proceedings on appeal or
for review which counsel for the defendant shall deem appropriate) and, unless
otherwise provided below, controlled by the Grantor. The Indemnitee shall have
the right to employ its own counsel in any such case, but the fees and expenses
of such counsel shall be at the expense of such Indemnitee unless (i) the
employment of such counsel shall have been authorized in writing by the Grantor
in connection with the defense of such action, suit or proceeding or (ii) the
Indemnitee shall have reasonably concluded that the Grantor is failing actively
and diligently to defend such action, suit or proceeding, in either of which
events the Grantor shall not have the right to direct the defense of such
action, suit or proceeding on behalf of the Indemnitee and that portion of any
fees and expenses of counsel related to matters covered by the indemnity
agreement contained herein shall be borne by the Grantor. In addition, if (x)
the Indemnitee shall have reasonably concluded that such action, suit or
proceeding involves to a significant extent matters beyond the scope of the
indemnity agreement contained in this Section 6.9 or (y) the Indemnitee shall
have reasonably concluded that there may be one or more legal defenses available
to the Indemnitee which are different from or additional to those available to
the Grantor, the Grantor shall not have the right to direct the defense of such
action, suit or proceeding on behalf of the Indemnitee. The Indemnitee shall be
kept fully informed of such action, suit or proceeding at all stages thereof
whether or not it is so represented. The Grantor shall make available to the
Indemnitee and its attorneys and accountants all books and records of the
Grantor relating to such proceedings or litigation, and the parties hereto agree
to render to each other such assistance as they may reasonably require of each
other in order to ensure the proper and adequate defense of any such action,
suit or proceeding.
The Grantor shall not make any settlement of any claims without the written
consent of the Indemnitee, which consent shall not be unreasonably withheld. No
Indemnitee shall make any settlement of any claims without the written consent
of the Grantor, which consent shall not be unreasonably withheld.
6.10 Binding Effect; Assignment. The provisions of this Security
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Agreement shall be binding upon and inure to the benefit of the respective
representatives, successors and assigns of the parties hereto; provided,
however, that no interest herein may be assigned by the Grantor without the
prior written consent of the Bank. The rights and benefits of the Bank
hereunder shall, if the Bank so agrees, inure to any party acquiring any
interest in the Obligations or any part thereof.
6.11 Counterparts; Facsimile Execution. This Security Agreement may be
----------------------------------
executed in any number of counterparts, each of which shall be an original, but
all of which shall together constitute one and the same agreement. Delivery of
an executed counterpart of this Security Agreement by facsimile shall be equally
as effective as delivery of any original executed counterpart of this Security
Agreement. Any party delivering an executed counterpart of this Security
Agreement by facsimile also shall deliver an original executed counterpart of
this Security Agreement, but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability and binding effect of
this Security Agreement.
6.12 Captions. The captions contained in this Security Agreement are for
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convenience only, are without substantive meaning and should not be construed to
modify, enlarge or restrict any provision.
IN WITNESS WHEREOF, the parties have entered into this Security Agreement
on the date first above written.
CONNECTICUT BANK OF COMMERCE
By:____________________________
Its:___________________________
CHARTER COMMUNICATIONS
INTERNATIONAL, INC.
By:____________________________
Its:___________________________