PLEDGE AGREEMENT made by CCO Holdings, LLC in favor of Bank of America, N.A., as Collateral Agent Dated as of March 6, 2007
Exhibit
10.4
made
by
CCO
Holdings, LLC
in
favor
of
Bank
of
America, N.A.,
as
Collateral Agent
Dated
as
of March 6, 2007
TABLE
OF
CONTENTS
Page
| SECTION I. DEFINED TERMS |
1
|
||
| Section 1.1 | Definitions |
1
|
|
| Section 1.2 |
Other
Definitional Provisions
|
3
|
|
| SECTION 2. GRANT OF SECURITY INTEREST |
3
|
||
| Section 2.1 |
Collateral
|
3
|
| SECTION 3. REPRESENTATIONS AND WARRANTIES |
4
|
||
|
|
|||
| Section 3.1 |
Title;
No Other Liens
|
4
|
|
| Section 3.2 |
Perfected
Liens
|
4
|
|
| Section 3.3 | Jurisdiction of Organization |
4
|
|
| Section 3.4 | Pledged LLC Interests |
4
|
|
| SECTION 4. COVENANTS |
5
|
||
| Section 4.1 | Maintenance of Perfect Security Interest; Further Documentation |
5
|
|
| Section 4.2 | Changes in Locations, Name, etc |
5
|
|
| Section 4.3 | Pledged LLC Interests |
6
|
|
| SECTION 5. PARI PASSU SECURED INDEBTEDNESS |
6
|
||
| Section 5.1 | Additional Secured Obligations |
6
|
|
| SECTION 6. REMEDIAL PROVISIONS |
7
|
||
| Section 6.1 |
Remedies
|
7
|
|
| Section 6.2 |
Proceeds
to be Turned Over to Collateral Agent
|
8
|
|
| Section 6.3 | Code and Other Remedies |
8
|
|
| Section 6.4 | Application of Proceeds from Collateral |
8
|
|
| Section 6.5 | Deficiency |
9
|
|
| Section 6.6 | Control by Majority |
9
|
|
| SECTION 7. THE COLLATERAL AGENT |
10
|
||
| Section 7.1 | Collateral Agent's Appointment as Attorney-in-Fact, etc |
10
|
|
| Section 7.2 | Duty of Collateral Agent |
10
|
|
| Section 7.3 | Financing Statements |
10
|
|
| Section 7.4 | Authority of Collateral Agent |
11
|
|
| Section 7.5 | Limitation on Duty of Collateral Agent in Respect of Collateral |
11
|
|
| Section 7.6 | Reliance |
11
|
|
| Section 7.7 | Consultation with Counsel, Etc |
12
|
|
| Section 7.8 | Successor Collateral Agent |
12
|
| SECTION 8. MISCELLANEOUS |
12
|
||
| Section 8.1 | Amendments in Writing |
12
|
|
| Section 8.2 | Notices |
13
|
|
| Section 8.3 | No Waiver by Course of Conduct; Cumulative Remedies |
13
|
|
| Section 8.4 | Enforcement Expenses; Indemnification |
13
|
|
| Section 8.5 | Successors and Assigns |
13
|
|
| Section 8.6 | Counterparts |
14
|
|
| Section 8.7 | Severablility |
14
|
|
| Section 8.8 | Section Headers |
14
|
-i-
Page
| Section 8.9 | Integration |
14
|
|
| Section 8.10 | GOVERNING LAW |
14
|
|
| Section 8.11 | Submission to Jurisdiction; Waivers |
14
|
|
| Section 8.12 | Acknowledgments |
15
|
|
| Section 8.13 | Release |
15
|
|
| Section 8.14 | WAIVER OF JURY TRIAL |
16
|
|
| Section 8.15 | Intercreditor Agreement |
16
|
ANNEXES
Annex
1 Form
of
Issuer’s Acknowledgment and Consent
Annex
2 Form
of
Acknowledgement
-ii-
PLEDGE
AGREEMENT, dated as of March 6, 2007, made by CCO Holdings, LLC, a Delaware
limited liability company (the “Grantor”),
in
favor of BANK OF AMERICA, N.A., as collateral agent (in such capacity, the
“Collateral
Agent”)
for
the Secured Parties (as defined below).
W
I T
N E S S E T H:
WHEREAS,
the Grantor, Bank of America, N.A., as administrative agent (in such capacity,
the “Administrative
Agent”)
and
the other parties thereto are concurrently with the execution hereof entering
into the Credit Agreement (as amended, amended and restated or otherwise
modified from time to time, the “Credit
Agreement”),
dated
as of the date hereof; and
WHEREAS,
it is a condition precedent to the initial borrowings under the Credit Agreement
that the Grantor enter into this Agreement in order to secure the Secured
Obligations.
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 Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement, 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.
“Bankruptcy
Code”
means
the United States Bankruptcy Code (11 U.S.C. §101 et seq.), as amended from time
to time.
“Collateral”:
as
defined in Section 2.1.
“Event
of Default”:
as
defined in the Credit Agreement and also including any “event of default” as
defined in any Pari Passu Secured Indebtedness Document.
“Grantor”:
as
defined in the preamble.
“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.
“Intercreditor
Agreement”:
as
defined in the Credit Agreement and also including any other intercreditor
agreement entered into by the Collateral Agent in accordance with the terms
of
the Credit Agreement in order to subordinate the Lien securing the Secured
Obligations to the Liens on the Collateral securing any other obligations of
Grantor.
“Issuer”:
Charter Communications Operating, 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”
means
any Indebtedness (including pursuant to any Guarantee) which is designated
as
Pari Passu Secured Indebtedness in accordance with the procedures set forth
in
Section 5.1.
“Pari
Passu Secured Indebtedness Documents”
means
any documents entered into in connection with the incurrence of Pari Passu
Secured Indebtedness.
“Permitted
Collateral Liens”
as
defined in Section 3.1.
“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.
-2-
“Post-Petition
Interest”means
any interest or entitlement to fees or expenses or other charges that accrues
after the commencement of any Insolvency Proceeding or Liquidation, whether
or
not allowed or allowable in any such Insolvency Proceeding or
Liquidation.
“Prior
Lien Indebtedness”
means
all Indebtedness that is secured by a Lien that is permitted to rank prior
to
the Lien of this Agreement pursuant to the terms of this Agreement.
“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
Indebtedness Documents”:
the
collective reference to the Loan Documents and any Pari Passu Secured
Indebtedness Documents.
“Secured
Obligations”:
the
collective reference to all principal of and interest (including without
limitation any Post-Petition Interest) and premium (if any) on all indebtedness
under, and all fees expenses and other amounts (including costs and
indemnification obligations) payable from time to time pursuant to (i) the
Credit Agreement and the Loans (including any Incremental Loans), this Agreement
and any other document made, delivered or given in connection with any of the
foregoing and (ii) each other Pari Passu Secured Indebtedness Document and
any
loans, notes or other extensions of credit thereunder.
“Secured
Parties”:
the
Administrative Agent, the Collateral Agent, the Lenders and any other holders
of
Secured Obligations.
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.”
(c) References
to any agreement shall be to such agreement as amended, amended and restated
or
otherwise modified from time to time.
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
-3-
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 and the Lenders to enter into the Credit Agreement, 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, except
for
Liens not prohibited by the Credit Agreement (“Permitted
Collateral 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 and except for other filings with respect
to
Permitted Collateral Liens.
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 Permitted Collateral Liens.
3.3 Jurisdiction
of Organization.
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.
-4-
(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 Collateral
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 security interest (subject
to
Permitted Collateral Liens) with the priority required by the Credit Agreement
and shall defend such security interest against the claims and demands of all
Persons whomsoever (other than the holders of Permitted Collateral
Liens).
(b) The
Grantor will furnish to the Collateral Agent 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.
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.
-5-
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; provided, that the Grantor shall not be required to deliver
any such certificated security to the Collateral Agent to the extent such
certificated security is required to be delivered to the representative for
any
holders of Prior Lien Indebtedness.
(b) Without
delivery of all certificates representing any equity interests in the Issuer
to
the extent required by clause (a) above, 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 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 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 additional Indebtedness as “Pari Passu
Secured Indebtedness” for the purposes hereof by delivering to the Collateral
Agent (i) an Officer’s Certificate that (A) identifies such Indebtedness
and the material financial terms thereof, (B) states that the obligations
thereunder are designated as “Pari Passu Secured
-6-
Indebtedness”
for the purposes hereof and (C) states that such Indebtedness is permitted
pursuant to the terms of the Secured Indebtedness Documents to be secured
on a
pari passu basis with the other Secured Obligations, 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”).
SECTION
6. REMEDIAL
PROVISIONS
6.1 Remedies.
(a) Unless
an
Event of Default shall have occurred and be continuing and the Collateral Agent
shall have given written notice to the Grantor of the Collateral Agent’s intent
to exercise its corresponding rights pursuant to Section 6.1(b), the Grantor
shall be permitted to receive all cash dividends paid in respect of the Pledged
LLC Interests and to exercise all voting and organizational rights with respect
to the Pledged LLC Interests; provided,
however,
that no
vote shall be cast or right exercised or other action taken which, in the
Collateral Agent’s reasonable judgment, would impair the Collateral or which
would be inconsistent with or result in any violation of any provision of the
Credit Agreement, this Agreement or any other Secured Indebtedness
Document.
(b) Subject
to any rights of holders of Prior Lien Indebtedness, if an Event of Default
shall occur and be continuing and the Collateral Agent shall give written notice
of its intent to exercise such rights to the relevant Grantor or Grantors,
(i)
the Collateral Agent shall have the right to receive any and all cash dividends,
payments or other Proceeds paid in respect of the Pledged LLC Interests and
make
application thereof to the Secured Obligations in the order specified in Section
6.4, and (ii) any or all of the Pledged LLC Interests shall be registered in
the
name of the Collateral Agent or its nominee, and the Collateral Agent or its
nominee may thereafter exercise (x) all voting, organizational and other rights
pertaining to such Pledged LLC Interests at any meeting of shareholders of
the
Issuer or otherwise and (y) any and all rights of conversion, exchange and
subscription and any other rights, privileges or options pertaining to such
Pledged LLC Interests as if it were the absolute owner thereof (including,
without limitation, the right to exchange at its discretion any and all of
the
Pledged LLC Interests upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the organizational structure
of
the Issuer, or upon the exercise by the Grantor or the Collateral Agent of
any
right, privilege or option pertaining to such Pledged LLC Interests, and in
connection therewith, the right to deposit and deliver any and all of the
Pledged LLC Interests with any committee, depositary, transfer agent, registrar
or other designated agency upon such terms and conditions as the Collateral
Agent may determine), all without liability except to account for property
actually received by it, but the Collateral Agent shall have no duty to the
Grantor to exercise any such right, privilege or option and shall not be
responsible for any failure to do so or delay in so doing.
(c) The
Grantor hereby authorizes and instructs the Issuer to (i) comply with any
instruction received by it from the Collateral Agent in writing that (x) states
that an Event of Default has occurred and is continuing and (y) is otherwise
in
accordance with the terms of this Agreement, without any other or further
instructions from the Grantor, and the Grantor agrees
-7-
that
the
Issuer shall be fully protected in so complying, and (ii) to the extent required
by clause (b) above, pay any dividends or other payments with respect to
the
Pledged LLC Interests directly to the Collateral Agent.
6.3 Code
and Other Remedies.
If an
Event of Default shall occur and be continuing, the Collateral Agent, on behalf
of the Lenders, may exercise, in addition to all other rights and remedies
granted to them in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Obligations, all rights and remedies
of
a secured party under the Applicable UCC or any other applicable law. Without
limiting the generality of the foregoing, the Collateral Agent, without demand
of performance or other demand, presentment, protest, advertisement or notice
of
any kind (except any notice required by law referred to below) to or upon the
Grantor or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or
any
part thereof, and/or may forthwith sell, lease, assign, give option or options
to purchase, or otherwise dispose of and deliver the Collateral or any part
thereof (or contract to do any of the foregoing), in one or more parcels at
public or, to the extent permitted by law, private sale or sales, at any
exchange, broker’s board or office of the Collateral Agent or any other Secured
Party or elsewhere upon such terms and conditions as it may deem advisable
and
at such prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Collateral Agent or any other Secured
Party shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption in the Grantor, which right or equity is hereby waived and released.
To the extent permitted by applicable law, the Grantor waives all claims,
damages and demands it may acquire against the Collateral Agent or any Secured
Party arising out of the exercise by them of any rights hereunder. If any notice
of a proposed sale or other disposition of Collateral shall be required by
law,
such notice shall be deemed reasonable and proper if given at least 10 days
before such sale or other disposition.
6.4 Application
of Proceeds from Collateral.
Subject
to the rights of any holders of Prior Lien Indebtedness under the Applicable
UCC
or otherwise, the Collateral Agent
-8-
shall
apply any Collateral or Proceeds received following any exercise of remedies
by
the Collateral Agent or pursuant to any Insolvency of Liquidation Proceeding
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 Secured Indebtedness Document;
Second:
pro
rata
to the
Administrative Agent and each Pari Passu Representatives (based on the amount
of
Secured Obligations outstanding under the Credit Agreement and the other Secured
Indebtedness Documents) for application to the Secured Obligations in the manner
provided in the Loan Documents and Pari Passu Indebtedness Documents, as
applicable, until all Secured Obligations have been paid in full in cash or
the
cash amount held by the Administrative Agent and 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.
To
the
extent permitted by applicable law, the Grantor waives all claims, damages
and
demands it may acquire against the Collateral Agent or any Secured Party arising
out of the exercise by them of any rights hereunder.
6.5 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.
6.6 Control
by Majority.
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 to
indemnification satisfactory to it in its sole discretion against all losses
and
expenses caused by taking or not taking such action.
-9-
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 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.
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.
-10-
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 Lenders, be governed by the Credit
Agreement 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 Collateral Agent 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.
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 other Secured Indebtedness 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
-11-
document
or communication furnished to it under this Agreement or the Loan 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 Secured Indebtedness 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.
7.8 Successor
Collateral Agent.
The
Collateral Agent may resign as Collateral Agent upon 30 days’ notice to the
Lenders, each Pari Passu Representative and the Grantor. If the Collateral
Agent
shall resign as Collateral Agent under this Agreement, then the holders of
a
majority of Secured Obligations shall appoint from among the Lenders or the
Pari
Passu Representatives a successor agent for the Secured Parties, which successor
agent shall (unless an Event of Default under Section 8(a), Section 8(b),
Section 8(g) or Section 8(h) under the Credit Agreement (or any corresponding
Event of Default under any other Secured Indebtedness Document) with respect
to
the Grantor shall have occurred and be continuing) be subject to approval by
the
Grantor (which approval shall not be unreasonably withheld or delayed),
whereupon such successor agent shall succeed to the rights, powers and duties
of
the Collateral Agent, and the term “Collateral Agent” shall mean such successor
agent effective upon such appointment and approval, and the former Collateral
Agent’s rights, powers and duties as Collateral Agent shall be terminated,
without any other or further act or deed on the part of such former Collateral
Agent or any of the parties to this Agreement or any holders of Secured
Obligations. If no successor agent has accepted appointment as Collateral Agent
by the date that is 30 days following a retiring Collateral Agent’s notice of
resignation, the retiring Collateral Agent’s resignation shall nevertheless
thereupon become effective, and the Secured Parties shall assume and perform
all
of the duties of the Collateral Agent hereunder until such time, if any, as
the
holders of a majority of the Secured Obligations appoint a successor agent
as
provided for above. After any retiring Collateral Agent’s resignation as
Collateral Agent, the provisions of this Section 7 shall inure to its benefit
as
to any actions taken or omitted to be taken by it while it was Collateral Agent
under this Agreement.
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 Loan Documents and the Pari
Passu Secured Indebtedness Documents.
-12-
8.2 Notices.
All
notices, requests and demands hereunder shall be effected in the manner provided
for in Section 10.2 of the Credit Agreement; provided
that any
such notice, request or demand to or upon any holder of Pari Passu Secured
Indebtedness (other than the Lenders 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 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 10.5 of the Credit Agreement.
(d) The
agreements in this Section 8.4 shall survive repayment of the Secured
Obligations and all other amounts payable under the 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
-13-
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.
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 Secured Indebtedness Documents represent the agreement
of the Grantor, the Collateral Agent and the Secured Parties with respect to
the
subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Collateral Agent or any Secured Party
relative to the subject matter hereof and thereof not expressly set forth or
referred to herein or in the other Secured Indebtedness 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 Secured Indebtedness 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
-14-
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 10.2 of the Credit Agreement or at such other address of which
the
Collateral Agent shall have been notified pursuant thereto;
(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 Secured Indebtedness 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 Secured Indebtedness 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 Secured Indebtedness 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 Loans and the other Secured Obligations (other than contingent
indemnification 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
-15-
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.
(b) The
Collateral shall also be released to the extent provided in Section 10.14 of
the
Credit Agreement and the applicable provisions of the Pari Passu Secured
Indebtedness Documents.
(c) In
connection with any release of Collateral pursuant to clauses (a) or (b) above,
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.
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.
8.15 Intercreditor
Agreement.
This
Agreement is subject to the terms of each Intercreditor Agreement. In the event
of any conflict between the terms of this Agreement and the terms of any
Intercreditor Agreement, the terms of the Intercreditor Agreement shall
control.
-16-
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
Operating, LLC, as Grantor
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Senior Vice President - Strategic Planning
BANK
OF
AMERICA, N.A., as Collateral Agent
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title:
Managing Director
ANNEX
1
ISSUER’S
ACKNOWLEDGMENT AND CONSENT
The
undersigned hereby acknowledges receipt of a copy of the Pledge Agreement,
dated
as of March 6, 2007 (as the same may be further amended, amended and restated,
supplemented or otherwise modified from time to time, the “Agreement”),
made
by CCO Holdings, LLC, a Delaware limited liability company for the benefit
of
Bank of America, N.A., as Collateral Agent. The undersigned agrees for the
benefit of the Collateral Agent and the Secured Parties 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.
CHARTER
COMMUNICATIONS OPERATING, LLC
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Senior Vice President - Strategic Planning
Address
for Notices:
c/o
Charter Communications Holdings, LLC
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Senior Vice President, Strategic
Planning
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
And
Attention:
General Counsel
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Email:
▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
ANNEX
2
[Form
of
Acknowledgment]
Bank
of
America, N.A., as Collateral Agent
Agency
Management
Street
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Mail
Code: TX1-149-14-11
City,
State ZIP Code: ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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 March 6, 2007
(the
“Pledge
Agreement”),
made
by CCO Holdings , LLC, a Delaware limited liability company (the “Grantor”),
and
Bank of America, N.A., 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:
Bank
of
America, N.A., as Collateral Agent
By: __________________________
Name:
Title: