Exhibit 10.15
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PLEDGE AGREEMENT
made by
CCH I, LLC
in favor of
THE BANK OF NEW YORK TRUST COMPANY, NA,
as Collateral Agent
Dated as of September 28, 2005
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TABLE OF CONTENTS
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SECTION 1. DEFINED TERMS.............................................................1
1.1 Definitions..............................................................1
1.2 Other Definitional Provisions............................................3
SECTION 2. GRANT OF SECURITY INTEREST................................................3
2.1 Collateral...............................................................3
SECTION 3. REPRESENTATIONS AND WARRANTIES............................................3
3.1 Title; No Other Liens....................................................3
3.2 Perfected Liens..........................................................3
3.3 Jurisdiction of Organization.............................................4
3.4 Pledged LLC Interests....................................................4
SECTION 4. COVENANTS.................................................................4
4.1 Maintenance of Perfected Security Interest; Further Documentation........4
4.2 Changes in Locations, Name, etc..........................................5
4.3 Pledged LLC Interests....................................................5
SECTION 5. PARI PASSU SECURED INDEBTEDNESS...........................................6
5.1 Additional Secured Obligations...........................................6
SECTION 6. REMEDIAL PROVISIONS.......................................................6
6.1 Remedies.................................................................6
6.2 Deficiency...............................................................7
6.3 Control by Majority......................................................7
SECTION 7. THE COLLATERAL AGENT......................................................8
7.1 Collateral Agent's Appointment as Attorney-in-Fact, etc..................8
7.2 Duty of Collateral Agent.................................................8
7.3 Financing Statements.....................................................9
7.4 Authority of Collateral Agent............................................9
7.5 Limitation on Duty of Trustee in Respect of Collateral...................9
7.6 Reliance................................................................10
7.7 Consultation with Counsel, Etc..........................................10
SECTION 8. MISCELLANEOUS............................................................10
8.1 Amendments in Writing...................................................10
8.2 Notices.................................................................10
8.3 No Waiver by Course of Conduct; Cumulative Remedies.....................10
8.4 Enforcement Expenses; Indemnification...................................11
8.5 Successors and Assigns..................................................11
8.6 Counterparts............................................................11
8.7 Severability............................................................12
8.8 Section Headings........................................................12
8.9 Integration.............................................................12
8.10 GOVERNING LAW...........................................................12
8.11 Submission to Jurisdiction; Waivers.....................................12
8.12 Acknowledgments.........................................................13
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8.13 Release.................................................................13
8.14 WAIVER OF JURY TRIAL....................................................14
ANNEXES
Annex 1 Form of Issuer's Acknowledgment and Consent
Annex 2 Form of Acknowledgement
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PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of September 28, 2005, made by CCH I, LLC, a
Delaware limited liability company (the "Grantor"), in favor of THE BANK OF NEW
YORK TRUST COMPANY, NA, as collateral agent (in such capacity, the "Collateral
Agent") for the holders (the "Holders") from time to time of the Notes (as
defined below) and any holders of Pari Passu Secured Indebtedness (as defined in
the Indenture), pursuant to the Indenture, dated as of the date hereof (as
amended, supplemented or otherwise modified from time to time, the "Indenture"),
among the Grantor, CCH I Capital Corp. ("Capital Corp.") and The Bank of New
York Trust Company, NA, as Trustee.
W I T N E S S E T H:
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WHEREAS, the Grantor and Capital Corp. have issued 11% Senior Secured
Notes due 2015 pursuant to the Indenture (collectively, the "Notes"); and
WHEREAS, it is a condition precedent to the purchase of Notes by the
Holders that the Grantor shall have executed and delivered this Agreement to the
Collateral Agent for the benefit of the Secured Parties.
NOW, THEREFORE, in consideration of the above premises, the parties hereto
hereby agree as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions
(a) Unless otherwise defined herein, terms defined in the Indenture and
used herein shall have the meanings given to them in the Indenture, and the term
Certificated Security is used herein as defined in the Applicable UCC.
(b) The following terms shall have the following meanings:
"Acknowledgment": as defined in Section 5.1.
"Agreement": this Pledge Agreement, as the same may be amended,
supplemented, restated or otherwise modified from time to time.
"Applicable UCC": the Uniform Commercial Code as from time to time in
effect in the State of New York; provided, however, that, at any time, if by
reason of mandatory provisions of law, any or all of the perfection or priority
of the Collateral Agent's and the Secured Parties' security interest in any item
or portion of the Collateral is governed by the Uniform Commercial Code as in
effect in a jurisdiction other than the State of New York, the term "Applicable
UCC" shall mean the Uniform Commercial Code as in effect, at such time, in such
other jurisdiction for purposes of the provisions hereof relating to such
perfection or priority and for purposes of definitions relating to such
provisions.
"Collateral": as defined in Section 2.1.
"Grantor": as defined in the preamble.
"Indenture Documents": the Indenture, the Notes, this Agreement, or any
other document made, delivered or given in connection with any of the foregoing.
"Insolvency Proceeding or Liquidation" means (i) any voluntary or
involuntary case or proceeding under the Bankruptcy Code with respect to the
Grantor, (ii) any other voluntary or involuntary insolvency, reorganization or
bankruptcy case or proceeding, or any receivership, liquidation, reorganization
or other similar case or proceeding with respect to the Grantor or with respect
to a material portion of its assets, (iii) any liquidation, dissolution,
reorganization or winding up of the Grantor, whether voluntary or involuntary
and whether or not involving insolvency or bankruptcy, and whether or not
involving any judicial or other proceeding, or (iv) any general assignment for
the benefit of creditors or any other marshalling of assets and liabilities of
the Grantor.
"Issuer": CCH II, LLC, a Delaware limited liability company.
"Pari Passu Representative" means, in the case of any Pari Passu Secured
Indebtedness, the collateral agent, agent or representative of the holders of
such Pari Passu Secured Indebtedness who maintains the transfer register for
such Pari Passu Secured Indebtedness and is appointed as a collateral agent,
agent or representative (for purposes related to the administration of the
security documents) pursuant to the indenture, credit agreement or other
agreement governing such Pari Passu Secured Indebtedness, together with its
successors in such capacity.
"Pari Passu Secured Indebtedness Documents" means any documents entered
into in connection with the incurrence of Pari Passu Secured Indebtedness.
"Pledged LLC Interests": in each case, whether now existing or hereafter
acquired, all of the Grantor's right, title and interest in and to the Equity
Interests of the Issuer, from time to time outstanding.
"Proceeds": all "proceeds" as such term is defined in Section 9-102(a)(64)
of the Applicable UCC and, in any event, shall include, without limitation, all
dividends, distributions or other income from the Pledged LLC Interests,
collections thereon or distributions or payments with respect thereto.
"Secured Obligations": the collective reference to (i) all Obligations of
the Grantor and Capital Corp. relating to the Notes, the Indenture, this
Agreement and any other document made, delivered or given in connection with any
of the foregoing and (ii) all Obligations relating to Pari Passu Secured
Indebtedness that have been designated as Secured Obligations pursuant to
Section 5.1.
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1.2 Other Definitional Provisions
(a) The words "hereof," "herein", "hereto" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section
references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms. The term "including" means
"including without limitation."
SECTION 2. GRANT OF SECURITY INTEREST
2.1 Collateral.
The Grantor hereby grants to the Collateral Agent, for the benefit of the
Secured Parties, a security interest in all of the following property now owned
or at any time hereafter acquired by the Grantor or in which the Grantor now has
or at any time in the future may acquire any right, title or interest
(collectively, the "Collateral"), as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Secured Obligations: all Pledged LLC Interests
and all Proceeds thereof.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Collateral Agent to enter into the Indenture and to induce
the Holders to purchase the Notes, the Grantor hereby represents and warrants to
the Collateral Agent and each other Secured Party that:
3.1 Title; No Other Liens.
Except for the security interest granted to the Collateral Agent for the
benefit of the Secured Parties pursuant to this Agreement, the Grantor owns each
item of the Collateral free and clear of any and all Liens or claims of others
(subject to Permitted Liens). No financing statement or other public notice with
respect to all or any part of the Collateral is on file or of record in any
public office, except such as have been filed in favor of the Collateral Agent,
for the benefit of the Secured Parties, pursuant to this Agreement.
3.2 Perfected Liens.
Upon the filing of financing statements in proper form for filing in the
office of the Secretary of State of Delaware, the security interest granted
pursuant to this Agreement, (a) will constitute a valid perfected security
interest in all of the Collateral in favor of the Collateral Agent, for the
benefit of the Secured Parties, as collateral security for the Secured
Obligations and (b) will be prior to all other Liens on the Collateral in
existence on the date hereof except for Liens not prohibited by the Indenture.
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3.3 Jurisdiction of Organization.
On the date hereof, the Grantor's jurisdiction of organization is the
State of Delaware. The Grantor has furnished to the Collateral Agent a certified
certificate of formation and long-form good standing certificate from the State
of Delaware as of a date which is recent to the date hereof.
3.4 Pledged LLC Interests.
(a) The Pledged LLC Interests constitute all the issued and outstanding
shares of all classes of the Equity Interests of the Issuer.
(b) The Pledged LLC Interests have been duly and validly issued.
(c) None of the Pledged LLC Interests constitutes a security under Section
8-103 of the Applicable UCC or the corresponding code or statute of any other
applicable jurisdiction.
(d) The Grantor is the record and beneficial owner of the Pledged LLC
Interests, free of any and all Liens or options in favor of, or claims of, any
other Person, except the security interest created by this Agreement (subject to
Permitted Liens).
SECTION 4. COVENANTS
The Grantor covenants and agrees that, from and after the date of this
Agreement until the Secured Obligations shall have been paid in full or the
relevant Collateral has been released in accordance with Section 8.13:
4.1 Maintenance of Perfected Security Interest; Further Documentation.
(a) The Grantor shall take all reasonable and necessary actions to
maintain the security interest created by this Agreement as a perfected first
priority security interest (subject to Permitted Liens) and shall defend such
security interest against the claims and demands of all Persons whomsoever.
(b) The Grantor will furnish to the Collateral Agent and the Holders from
time to time, as reasonably requested by the Collateral Agent, statements and
schedules further identifying and describing the assets and property of the
Grantor constituting, or intended to constitute Collateral.
(c) At any time and from time to time, at the sole expense of the Grantor,
the Grantor will promptly and duly execute and deliver, and have recorded, such
further instruments and documents and take such further actions as may be
necessary or as the Collateral Agent may reasonably request for the purpose of
obtaining or preserving the full benefits of this Agreement and of the rights
and powers herein granted, including, without limitation, filing any financing
or continuation statements under the Uniform Commercial Code (or other similar
laws) in effect in any jurisdiction with respect to the security interests
created hereby.
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4.2 Changes in Locations, Name, etc.
The Grantor will not:
(a) change its jurisdiction of organization from that referred to in
Section 3.3; or
(b) change its name to such an extent that any financing statement
filed in connection with this Agreement would become seriously misleading;
unless, within 30 days of the taking of any such actions, the Grantor delivers
to the Collateral Agent notice of such change and all documents necessary to
maintain the validity, perfection and priority of the security interests
provided for herein.
4.3 Pledged LLC Interests.
(a) If any Collateral shall be or become evidenced by a certificated
security or if the Grantor shall become entitled to receive or shall receive any
certificate (including, without limitation, any certificate representing a
dividend or a distribution in connection with any reclassification, increase or
reduction of capital or any certificate issued in connection with any
reorganization), option or rights in respect of the Equity Interests of the
Issuer, whether in addition to, in substitution of, as a conversion of, or in
exchange for, any of the Pledged LLC Interests, or otherwise in respect thereof,
the Grantor shall accept the same as the agent of the Collateral Agent and the
other Secured Parties, hold the same in trust for the Collateral Agent and the
other Secured Parties, and, with respect to any certificated security, deliver
the same forthwith to the Collateral Agent in the exact form received, duly
indorsed by the Grantor to the Collateral Agent, together with an undated power
covering such certificated security duly executed in blank by the Grantor, to be
held by the Collateral Agent, subject to the terms hereof, as additional
collateral security for the Secured Obligations.
(b) Without delivery of all certificates representing any equity interests
in the Issuer, the Grantor will not, and will not permit the Issuer to, amend
the Issuer's certificate of formation or operating agreement to provide that any
Equity Interests in the Issuer constitute a security under Section 8-103 of the
Applicable UCC or the corresponding code or statute of any other applicable
jurisdiction.
(c) The Grantor shall cause the Issuer to execute and deliver on the date
hereof the Issuer's Acknowledgment and Consent in the form of Annex 1 hereto.
(d) Notwithstanding anything herein to the contrary, the Grantor shall be
entitled to (i) receive, retain and dispose of, free of the Lien of this
Agreement, in its absolute discretion the proceeds of all Restricted Payments
and Investments received by the Grantor, and (ii) make Restricted Payments and
Investments with its funds free of the Lien of this Agreement, and engage in
other transactions in respect of its assets (including Collateral), in each case
to the extent otherwise permissible under the Indenture Documents or the Pari
Passu Secured Indebtedness Documents, provided that (A) any distribution in
respect of Collateral resulting from any Insolvency Proceeding or Liquidation
shall be subject to Section 6.1(b), and (B) the
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proceeds of any sale or other disposition of the Equity Interests of the Issuer
shall constitute Collateral hereunder.
SECTION 5. PARI PASSU SECURED INDEBTEDNESS
5.1 Additional Secured Obligations.
The Grantor may from time to time designate Pari Passu Secured
Indebtedness as additional Secured Obligations for the purposes hereof by
delivering to the Collateral Agent (i) an Officer's Certificate that (A)
identifies such Pari Passu Secured Indebtedness and the material terms thereof
and (B) states that the obligations thereunder are designated as Secured
Obligations for the purposes hereof, and (ii) an acknowledgment from the holders
of such Pari Passu Secured Indebtedness (or a Pari Passu Representative acting
on their behalf) in the form of Annex 2 hereto (the "Acknowledgment"); provided
that any Additional Notes shall be Secured Obligations without complying with
this Section 5.1.
SECTION 6. REMEDIAL PROVISIONS
6.1 Remedies.
(a) Notwithstanding anything to the contrary in this Agreement, the
Indenture Documents, the Pari Passu Secured Indebtedness Documents or applicable
law, the Collateral Agent and each other Secured Party (whether before or after,
or during the continuance of, a Default or Event of Default) shall:
(i) have no authority to exercise any voting rights with respect to
the Collateral or receive any dividends or other distributions with
respect thereto (all of which shall be the right of the Grantor), except
for distributions in respect of Collateral resulting from any Insolvency
Proceeding or Liquidation;
(ii) except as provided by Section 6.1(b) below, whether before,
during or after any Insolvency Proceeding or Liquidation, be prohibited
from commencing judicial or non-judicial foreclosure, enforcement,
execution, levy or collection proceedings with respect to, seeking to have
a trustee, receiver, liquidator or similar official appointed for or over
any Collateral, attempting any actions to take possession of any
Collateral (except pursuant to Section 4.3), enforcing or exercising (or
seeking to enforce or exercise) any right, remedy or power (including any
right of setoff) with respect to, or otherwise taking any action to
realize upon, the Collateral, including without limitation (A) any right
to dispose of the Collateral or any other right available to a secured
creditor after default under Article 9 of the Applicable UCC and (B) any
other default remedy under applicable law; and
(iii) be prohibited from seeking relief from the automatic stay or
from any other stay in any Insolvency Proceeding or Liquidation, in each
case, with respect to any Collateral.
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(b) The Secured Parties shall be entitled to receive the Collateral or any
Proceeds thereof before any other creditors at such time as such Collateral or
Proceeds are paid over to the creditors of the Grantor in connection with any
Insolvency Proceeding or Liquidation or in connection with any exercise of
remedies by any other creditor of the Grantor. The Collateral Agent shall apply
such Collateral or Proceeds in the following order:
First: to the Collateral Agent, its agents and its attorneys for
amounts due under Section 8.4 hereof or under any Indenture Document or
Pari Passu Secured Indebtedness Document;
Second: to the respective Pari Passu Representatives for application
to the Secured Obligations equally and ratably as provided in the
Indenture Documents and Pari Passu Indebtedness Documents, until all
Secured Obligations have been paid in full in cash or the cash amount held
by the Pari Passu Representatives in respect of all Secured Obligations is
sufficient to pay all Secured Obligations in full in cash; and
Third: any surplus remaining after the payment or distribution in
full of the cash or other property as described in the preceding clauses
will be paid or distributed to the Grantor, its successors or assigns, or
as a court of competent jurisdiction may direct.
"Equally and ratably" means the method of determining what proportion of
funds or other property should be held for, or distributed to, each of the
Secured Parties where the funds and property shall be allocated and distributed
to each Secured Party ratably in the proportion that (a) the amount of
outstanding Secured Obligations owed (at the time the determination is made) to
such Secured Party bears to (b) the aggregate amount of outstanding Secured
Obligations owed (at the time the determination is made) to all Secured Parties.
To the extent permitted by applicable law, the Grantor waives all claims,
damages and demands it may acquire against the Collateral Agent or any Holder
arising out of the exercise by them of any rights hereunder.
6.2 Deficiency.
The Grantor shall remain liable for any deficiency if the proceeds of any
sale or other disposition of the Collateral are insufficient to pay its Secured
Obligations and the fees and disbursements of any attorneys employed by the
Collateral Agent to collect such deficiency, to the extent such fees and
disbursements are reimbursable under Section 8.4.
6.3 Control by Majority.
Subject to Section 6.1, holders of a majority in aggregate principal
amount of the then outstanding Secured Obligations may direct the time, method
and place of conducting any proceeding for exercising any right or remedy
available to the Collateral Agent under this Agreement. However, the Collateral
Agent may refuse to follow any direction that conflicts with law or this
Agreement or that the Collateral Agent determines may be prejudicial to the
rights of any other holder of Secured Obligations or that may involve the
Collateral Agent in personal liability. Prior to taking any action under this
Agreement, the Collateral Agent shall be entitled
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to indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
SECTION 7. THE COLLATERAL AGENT
7.1 Collateral Agent's Appointment as Attorney-in-Fact, etc.
(a) The Grantor hereby irrevocably constitutes and appoints the Collateral
Agent and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of the Grantor and in the name of the Grantor or in its own
name, for the purpose of carrying out the terms of this Agreement, to take any
and all appropriate action and to execute any and all documents and instruments,
in each case after prior notice to the Grantor, which may be necessary or
desirable to accomplish the purposes of this Agreement and to cause performance
or compliance, with any agreement of the Grantor contained herein, if the
Grantor fails to perform or comply with any of its agreements contained herein.
(b) The expenses of the Collateral Agent and its agents or attorneys
incurred in connection with actions undertaken as provided in this Section 7.1,
together with interest thereon at a rate per annum equal to the highest rate per
annum at which interest would then be payable on the Notes, from the date of
payment by the Collateral Agent to the date reimbursed by the Grantor, shall be
payable by the Grantor to the Collateral Agent on demand.
(c) All powers, authorizations and agencies contained in this Agreement
are coupled with an interest and are irrevocable until this Agreement is
terminated and the security interests created hereby are released.
7.2 Duty of Collateral Agent.
The Collateral Agent's sole duty with respect to the custody, safekeeping
and physical preservation of the Collateral in its possession, under Section
9-207 of the Applicable UCC or otherwise, shall be to deal with it in the same
manner as the Collateral Agent deals with similar property for its own account.
Neither the Collateral Agent, any Secured Party nor any of their respective
officers, directors, employees or agents shall be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or
shall be under any obligation to sell or otherwise dispose of any Collateral
upon the request of the Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the Collateral Agent and the Secured Parties hereunder are solely
to protect the Collateral Agent's and the other Secured Parties' interests in
the Collateral and shall not impose any duty upon the Collateral Agent or any
other Secured Party to exercise any such powers. The Collateral Agent and the
other Secured Parties shall be accountable only for amounts that they actually
receive as a result of the exercise of such powers, and neither they nor any of
their officers, directors, employees or agents shall be responsible to the
Grantor for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct.
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7.3 Financing Statements.
Pursuant to any applicable law, the Grantor authorizes the Collateral
Agent to file or record financing statements and other filing or recording
documents or instruments with respect to the Collateral without the signature of
the Grantor in such form and in such offices as necessary to perfect the
security interests of the Collateral Agent under this Agreement.
7.4 Authority of Collateral Agent.
The Grantor acknowledges that the rights and responsibilities of the
Collateral Agent under this Agreement with respect to any action taken by the
Collateral Agent or the exercise or non-exercise by the Collateral Agent of any
right or remedy provided for herein or resulting or arising out of this
Agreement shall, as between the Collateral Agent and the Holders, be governed by
the Indenture and by such other agreements with respect thereto as may exist
from time to time among them, but, as between the Collateral Agent and the
Grantor, the Collateral Agent shall be conclusively presumed to be acting as
agent for the Secured Parties with full and valid authority so to act or refrain
from acting, and the Grantor shall not be under any obligation, or entitlement,
to make any inquiry respecting such authority.
7.5 Limitation on Duty of Trustee in Respect of Collateral.
Beyond the exercise of reasonable care in the custody thereof, the
Collateral Agent shall have no duty as to any Collateral in its possession or
control or in the possession or control of any agent or bailee or any income
thereon or as to preservation of rights against prior parties or any other
rights pertaining thereto and the Collateral Agent shall not be responsible for
filing any financing or continuation statements or recording any documents or
instruments in any public office at any time or times or otherwise perfecting or
maintaining the perfection of any security interest in the Collateral. The
Collateral Agent shall be deemed to have exercised reasonable care in the
custody of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which it accords its own property and
shall not be liable or responsible for any loss or diminution in the value of
any of the Collateral, by reason of the act or omission of any carrier,
forwarding agency or other agent or bailee selected by the Collateral Agent in
good faith.
The Collateral Agent shall not be responsible for the existence,
genuineness or value of any of any of the Collateral or for the validity,
perfection, priority or enforceability of the Liens in any of the Collateral,
whether impaired by operation of law or by reason of any of any action or
omission to act on its part hereunder, except to the extent such action or
omission constitutes gross negligence, bad faith or willful misconduct on the
part of the Collateral Agent, for the validity or sufficiency of the Collateral
or any agreement or assignment contained therein, for the validity of the title
of the Company to the Collateral, for insuring the Collateral or for the payment
of taxes, charges, assessments or Liens upon the Collateral or otherwise as to
the maintenance of the Collateral.
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7.6 Reliance.
The Collateral Agent shall be entitled to act upon any notice,
certificate, instrument, demand, request, direction, instruction, waiver,
receipt, consent, agreement or other document or communication furnished under
this Agreement or the Indenture Documents which it in good faith believes, and
on its face appears to be genuine, and it shall be entitled to rely conclusively
upon the due execution, validity and effectiveness, and the truth and
acceptability, of any provisions contained therein. The Collateral Agent shall
not have any responsibility to make any investigation into the facts or matters
stated in any notice, certificate, instrument, demand, request, direction,
instruction, waiver, receipt, consent, agreement or other document or
communication furnished to it under this Agreement or the Indenture Documents or
in connection with the transactions contemplated herein or therein.
7.7 Consultation with Counsel, Etc.
The Collateral Agent may consult with, and obtain advice from, legal
counsel, accountants and other experts selected by it, in connection with the
performance of its duties under this Agreement or the other Indenture Documents
and it shall incur no liability and shall be fully protected in acting in good
faith in accordance with the written opinion and advice of such counsel,
accountants and other experts. The Collateral Agent shall not be responsible for
the acts or omissions of any counsel, accountants and other experts selected by
it with due care and in good faith and without gross negligence or willful
misconduct.
SECTION 8. MISCELLANEOUS
8.1 Amendments in Writing.
None of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except as provided in the Indenture Documents
and the Pari Passu Secured Indebtedness Documents.
8.2 Notices.
All notices, requests and demands hereunder shall be effected in the
manner provided for in Section 12.02 of the Indenture; provided that any such
notice, request or demand to or upon any holder of Pari Passu Secured
Indebtedness (other than the Holders and the Collateral Agent) shall be
addressed to such holder at its notice address set forth in the Acknowledgment.
8.3 No Waiver by Course of Conduct; Cumulative Remedies.
Neither the Collateral Agent nor any other Secured Party shall by any act
(except by a written instrument pursuant to Section 8.1), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder. No
failure to exercise, nor any delay in exercising, on the part of the Collateral
Agent or any Secured Party, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right, power
or
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privilege hereunder shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. A waiver by the Collateral
Agent or any other Secured Party of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the
Collateral Agent or such Secured Party would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
8.4 Enforcement Expenses; Indemnification.
(a) The Grantor agrees to pay or reimburse the Collateral Agent for all
its costs and expenses incurred in enforcing or preserving any rights under this
Agreement, including, without limitation, the fees and disbursements of one firm
of counsel (together with any special and local counsel) to the Collateral
Agent.
(b) The Grantor agrees to pay, and to save the Collateral Agent and the
other Secured Parties harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or other
taxes which may be payable or determined to be payable with respect to any of
the Collateral.
(c) The Grantor agrees to pay, and to save the Collateral Agent harmless
from, any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement to the extent the Grantor would be required to
do so pursuant to Section 7.07 of the Indenture.
(d) The agreements in this Section 8.4 shall survive repayment of the
Secured Obligations and all other amounts payable under the Indenture, the other
Indenture Documents and the Pari Passu Secured Indebtedness Documents.
8.5 Successors and Assigns.
This Agreement shall be binding upon the successors and assigns of the
Grantor and shall inure to the benefit of the Collateral Agent and the other
Secured Parties and their successors and assigns; provided that the Grantor may
not assign, transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of the Collateral Agent.
8.6 Counterparts.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
Delivery of an executed signature page of this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof.
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8.7 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 unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8.8 Section Headings.
The Section headings used in this Agreement are for convenience of
reference only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
8.9 Integration.
This Agreement and the other Indenture Documents represent the agreement
of the Grantor, the Collateral Agent and the Holders with respect to the subject
matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Collateral Agent or any Holder relative to
the subject matter hereof and thereof not expressly set forth or referred to
herein or in the other Indenture Documents.
8.10 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8.11 Submission to Jurisdiction; Waivers.
The Grantor hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Indenture Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts
of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Grantor at its address referred to in Section 12.02 of the Indenture or at
such other address of which the Collateral Agent shall have been notified
pursuant thereto;
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(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential
damages.
8.12 Acknowledgments.
The Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Indenture Documents to which it
is a party;
(b) neither the Collateral Agent nor any Secured Party has any
fiduciary relationship with or duty to the Grantor arising out of or in
connection with this Agreement or any of the other Indenture Documents,
and the relationship between the Grantor, on the one hand, and the
Collateral Agent and Secured Parties, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Indenture
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Secured Parties or among the Grantor and the Secured
Parties.
8.13 Release.
(a) At such time as the Notes and the other Secured Obligations shall have
been paid in full, the Collateral shall be released from the Liens created
hereby, and this Agreement and all obligations (other than those expressly
stated to survive such termination) of the Collateral Agent and the Grantor
hereunder shall terminate, all without delivery of any instrument or performance
of any act by any party, and all rights to the Collateral shall revert to the
Grantor. At the request and sole expense of the Grantor, following any such
termination, the Collateral Agent shall deliver to the Grantor any Collateral
held by the Collateral Agent hereunder, and execute and deliver to the Grantor
such documents as the Grantor shall reasonably request to evidence such
termination.
(b) any of the Collateral shall be released in accordance with Section
10.03 of the Indenture and the applicable provisions of the Pari Passu Secured
Indebtedness Documents, then the Collateral Agent, at the request and sole
expense of the Grantor, shall execute and deliver to the Grantor all releases or
other documents reasonably necessary or desirable for the release of the Liens
created hereby on such Collateral.
(c) Upon any sale or disposition of Collateral permitted pursuant to the
terms of the Indenture and the Pari Passu Secured Indebtedness Documents, the
Lien in favor of the Collateral Agent and the other Secured Parties with respect
to such Collateral shall be automatically and unconditionally released with no
further consent or action of any Person, but
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subject to the continuing lien on the Proceeds of such sale or disposition. At
such time the Grantor shall execute all documents and take all actions necessary
or requested by the Collateral Agent to grant to the Secured Parties a perfected
security interest in the Proceeds of such sale or disposition.
(d) To the extent applicable, the Grantor shall cause TIA ss. 314(d),
relating to the release of property subject to the Lien of the this Agreement,
to be complied with.
8.14 WAIVER OF JURY TRIAL.
THE GRANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, each of the undersigned has caused this Pledge
Agreement to be duly executed and delivered as of the date first above written.
CCH I, LLC, as Grantor
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: SVP Treasury & Finance
THE BANK OF NEW YORK TRUST
COMPANY, NA, as Collateral Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
ANNEX 1
ISSUER'S ACKNOWLEDGMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Pledge
Agreement, dated as of September 28, 2005 (as the same may be further amended,
amended and restated, supplemented or otherwise modified from time to time, the
"Agreement"), made by CCH I, LLC, a Delaware limited liability company for the
benefit of The Bank of New York Trust Company, NA, as Collateral Agent. The
undersigned agrees for the benefit of the Collateral Agent and the Holders as
follows:
1. The undersigned will be bound by the terms of the Agreement and will
comply with such terms insofar as such terms are applicable to the undersigned.
2. The undersigned will notify the Collateral Agent promptly in writing of
the occurrence of any of the events described in Section 4.3(a) of the
Agreement.
CCH II, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: SVP Treasury & Finance
Address for Notices:
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Fax:
ANNEX 2
[Form of Acknowledgment]
The Bank of New York Trust Company, NA, as Collateral Agent
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
Reference is made to the Pledge Agreement (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Pledge
Agreement"; capitalized terms used but not otherwise defined herein shall have
the meanings assigned to such terms in the Pledge Agreement), dated as of
September 28, 2005 (the "Pledge Agreement"), made by CCH I, LLC, a Delaware
limited liability company (the "Grantor"), and The Bank of New York Trust
Company, NA, as collateral agent (in such capacity and together with any
successors in such capacity, the "Collateral Agent"). By executing and
delivering this acknowledgment the undersigned hereby (i) agrees to be bound by
all the terms and provisions of the Pledge Agreement and to comply with such
terms and provisions insofar as such terms and provisions are applicable to the
undersigned and (ii) appoints the Collateral Agent as its collateral agent under
the Pledge Agreement. Any notices under the Pledge Agreement can be sent to the
undersigned at its address set forth below.
This acknowledgment shall be construed in accordance with and governed by
the laws of the State of New York.
-------------------------------------
Date:_____________
Address for Notices:
Acknowledged and agreed:
The Bank of New York Trust Company, NA, as Collateral Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President