SECURITIES PLEDGE AGREEMENT
(BORROWER)
THIS SECURITIES PLEDGE AGREEMENT (this "Pledge Agreement") is made and
entered into as of January 28, 2000 by CONE ▇▇▇▇▇ CORPORATION, a North Carolina
corporation (the "Pledgor"), in favor of WILMINGTON TRUST COMPANY as General
Collateral Agent (in such capacity, the "General Collateral Agent") under that
certain General Collateral Agency Agreement of even date herewith among The
Prudential Insurance Company of America, as holder of the Senior Notes (the
"Senior Note Holder"), SunTrust Bank ("SunTrust") and Atlantic Financial Group,
Ltd. ("Atlantic Financial"), as creditors of the Senior Lease Obligations
(together, the "Senior Lease Creditor"), ▇▇▇▇▇▇ Guaranty Trust Company of New
York, as counterparty of the ▇▇▇▇▇▇ Swap Agreement ("▇▇▇▇▇▇") and Bank of
America, N.A., as Agent (in such capacity, the "Revolving Credit Agent") for
each of the Lenders now or hereafter party to the Credit Agreement (as defined
in the Intercreditor Agreement (as defined below)), and the General Collateral
Agent pursuant to which the General Collateral Agent serves as collateral agent
for the benefit of the Senior Note Holder, SunTrust, Atlantic Financial, the
Revolving Credit Agent, the Lenders, ▇▇▇▇▇▇, the Bond Trustee for the benefit of
the Debenture Holders and all other Senior Creditors at any time existing and
agreed to by BANK OF AMERICA, N.A., as Designated Collateral Subagent (in such
capacity the "Designated Collateral Subagent"). The General Collateral Agent and
all the Senior Creditors are collectively referred to herein as the "General
Secured Parties." All capitalized terms used but not otherwise defined herein
shall have the respective meanings assigned thereto in the Intercreditor
Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the Pledgor is indebted to certain of the Senior Creditors
pursuant to the Loan Documents, the Senior Debentures, the Senior Notes, the
▇▇▇▇▇▇ Swap Agreement and the Senior Lease Documents, as applicable; and
WHEREAS, as collateral security for the payment and performance of all
General Senior Obligations, the Pledgor is willing to pledge and grant to the
General Collateral Agent for the benefit of the General Secured Parties a
security interest in (i) 65% of the Voting Securities of each of its Material
Direct Foreign Subsidiaries (to the extent 65% of such Voting Securities is
owned by the Pledgor and, if less than such 65% is so owned, then 100% of such
lesser amount) and 100% of the non-voting Subsidiary Securities of each such
Direct Foreign Subsidiary, and (ii) 100% of the Subsidiary Securities of all
Domestic Subsidiaries, in each case under (i) and (ii), whether now existing or
hereafter created or acquired (collectively, the "Pledged Interests"), and
certain related property, including without limitation the Pledged Interests
more particularly described on Schedule I hereto (such Subsidiaries, together
with all other Subsidiaries whose Subsidiary Securities may be required to be
subject to this Pledge Agreement from time to time, are hereinafter referred to
collectively as the "Pledged Subsidiaries"); and
WHEREAS, each of the Senior Note Holder, the Senior Lease Creditor,
▇▇▇▇▇▇, the General Collateral Agent, the Priority Collateral Agent, the
Designated Collateral Subagent and
the Revolving Credit Agent for itself and on
behalf of the Lenders have entered into the Intercreditor Agreement dated as of
the date hereof for their mutual benefit, the benefit of those Persons for whom
they respectively serve as agent, as applicable, and the benefit of the
Debenture Holders, which Intercreditor Agreement provides, among other terms, as
to the allocation of proceeds derived from any remedial actions undertaken
pursuant to the terms of this Pledge Agreement; and
WHEREAS, pursuant to the General Collateral Agency Agreement, the
General Collateral Agent is authorized to delegate certain actions it would
otherwise undertake and certain responsibilities and obligations thereof
pursuant to the terms of this Pledge Agreement to any Senior Creditor party to
the General Collateral Agency Agreement and the General Collateral Agent has so
authorized and appointed the Designated Collateral Subagent and the Designated
Collateral Subagent, by its execution and delivery of this Pledge Agreement,
accepts such authorization and appointment as to those express matters herein
for which it is responsible; and
NOW, THEREFORE, in order to induce the Lenders to enter into the Loan
Documents and to induce the other General Secured Parties to make and maintain
the extensions of credit evidenced by the Senior Notes, the Senior Debentures
and the Senior Lease Documents, and in consideration of the premises and the
mutual covenants contained herein, the parties hereto agree as follows:
1. PLEDGE OF PLEDGED INTERESTS; OTHER COLLATERAL.
(a) As collateral security for the payment and performance by
the Pledgor of all now or hereafter existing General Senior
Obligations, and the prompt payment and performance when due of its
obligations and liabilities hereunder, and the payment, performance and
satisfaction of all Guarantor's Obligations (as defined in the Credit
Agreement)(collectively the "Secured Obligations"), the Pledgor hereby
grants, pledges and collaterally assigns to the General Collateral
Agent for the benefit of the General Secured Parties a first priority
security interest in all of the following items of property in which it
now has or may at any time hereafter acquire an interest, and
wheresoever located:
(i) the Pledged Interests; and
(ii) all cash, securities, dividends, options, rights,
and other property at any time and from time to time (x)
declared or distributed in respect of or in exchange for or on
conversion of any Pledged Interest, or (y) by its or their
terms exchangeable or exercisable for or convertible into any
Pledged Interest; and
(iii) all other property hereafter delivered to the
General Collateral Agent in substitution for or as an addition
to any of the foregoing, and all certificates and instruments
representing or evidencing such property, all security
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entitlements constituting any Pledged Interest, and all
securities accounts to which may at any time be credited any
or all of the Pledged Interests; and
(iv) all proceeds of any of the foregoing.
All such Pledged Interests, certificates, instruments, cash,
securities, interests, dividends, rights and other property referred to
in clauses (i) through (iv) of this Section 1 are herein collectively
referred to as the "Collateral."
(b) Subject to Section 10(a), the Pledgor agrees to deliver
all certificates, instruments or other documents representing any
Collateral to the General Collateral Agent, or upon its request to the
Designated Collateral Subagent at such location as the General
Collateral Agent or upon its request the Designated Collateral Agent
shall from time to time designate by written notice pursuant to Section
23 for its custody at all times until termination of this Pledge
Agreement, together with such instruments of assignment and transfer as
requested by the General Collateral Agent or by the Designated
Collateral Subagent.
(c) The Pledgor agrees to execute and deliver, or cause to be
executed and delivered by other Persons, at Pledgor's expense, all
share certificates, documents, instruments, agreements, financing
statements (and amendments thereto and continuations thereof),
assignments, control agreements, or other writings as the General
Collateral Agent or the Designated Collateral Subagent may request from
time to time to carry out the terms of this Pledge Agreement or to
protect or enforce the General Collateral Agent's Lien and security
interest in the Collateral hereunder granted to the General Collateral
Agent for the benefit of the General Secured Parties and further agrees
to do and cause to be done upon the request of the General Collateral
Agent or the Designated Collateral Subagent, at Pledgor's expense, all
things determined by the General Collateral Agent or by the Designated
Collateral Subagent to be necessary or advisable to perfect and keep in
full force and effect the Lien in the Collateral hereunder granted to
the General Collateral Agent for the benefit of the General Secured
Parties, including the prompt payment of all out-of-pocket fees and
expenses incurred in connection with any filings made to perfect or
continue the Lien and security interest in the Collateral hereunder
granted in favor of the General Collateral Agent for the benefit of the
General Secured Parties. The Pledgor hereby irrevocably authorizes each
of the General Collateral Agent and the Designated Collateral Subagent
to execute and file, with or if permitted by applicable law without the
signature of the Pledgor, all such financing statements and amendments
thereto and continuations thereof reflecting the Pledgor as "debtor"
and the General Collateral Agent as "secured party," as the General
Collateral Agent or the Designated Collateral Subagent may at any time
deem necessary or advisable to carry out the purposes of this Pledge
Agreement.
(d) All filing fees, advances, charges, costs and expenses,
including reasonable attorneys' fees, incurred or paid by the General
Collateral Agent or by the Designated Collateral Subagent or any
General Secured Party in exercising any right,
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power or remedy
conferred by this Pledge Agreement, or in the enforcement thereof,
shall become a part of the Secured Obligations secured hereunder and
shall be paid to the General Collateral Agent or to the Designated
Collateral Subagent or such General Secured Party, as applicable, by
the Pledgor immediately upon demand therefor, and any amounts not so
paid on demand (in addition to other rights and remedies resulting from
such nonpayment) shall bear interest from the date of demand until paid
in full at the Default Rate.
(e) The Pledgor agrees to register and cause to be registered
the interest of the General Collateral Agent, for the benefit of the
General Secured Parties, in the Collateral on its own books and records
and the registration books of each of the Pledged Subsidiaries.
2. STATUS OF PLEDGED INTERESTS. The Pledgor hereby represents,
warrants and covenants to the General Collateral Agent for the benefit of the
General Secured Parties that:
(a) All of the Pledged Interests are and shall at all times be
validly issued and outstanding, fully paid and nonassessable and
constitute (i) 65% of the issued and outstanding Voting Securities of
each Material Direct Foreign Subsidiary (to the extent 65% of such
Voting Securities is owned by the Pledgor, and, if less than such 65%
is so owned, then 100% of such lesser amount) and 100% of the
non-voting issued and outstanding Subsidiary Securities of each Direct
Foreign Subsidiary, and (ii) 100% of the issued and outstanding
Subsidiary Securities of all Domestic Subsidiaries) and are accurately
described on Schedule I. Schedule I may be updated by the Pledgor as
necessary from time to time.
(b) The Pledgor is and shall at all times be the sole
registered and record and beneficial owner of the Pledged Interests,
free and clear of all Liens, charges, equities, encumbrances and
restrictions on pledge or transfer (other than the pledge hereunder and
applicable restrictions pursuant to federal and state and applicable
foreign securities laws).
(c) At no time shall any Pledged Interests (i) be held or
maintained in the form of a security entitlement or credited to any
securities account and (ii) which constitute a "security" (or as to
which the related Pledged Subsidiary has elected to have treated as a
"security") under Article 8 of the Uniform Commercial Code of the State
of North Carolina or of any other jurisdiction whose laws may govern
(the "UCC") be maintained in the form of uncertificated securities.
With respect to Pledged Interests that are "securities" under the UCC,
or as to which the issuer has elected at any time to have such
interests treated as "securities" under the UCC, such Pledged Interests
are, and shall at all times be, represented by the share certificates
listed on Schedule I hereto, which share certificates, with stock
powers duly executed in blank by the Pledgor, have been delivered to
the General Collateral Agent or upon its request to the Designated
Collateral Subagent or are being delivered to the General Collateral
Agent or upon its request to the Designated Collateral Subagent
simultaneously herewith or, in the case of Additional
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Interests as
defined in Section 22, shall be delivered pursuant to Section 22. With
respect to Pledged Interests that are not "securities" under the UCC
and the issuer thereof has not elected to have such interests treated
as "securities" under the UCC, the Pledgor has simultaneously herewith
delivered to the General Collateral Agent or upon its request to the
Designated Collateral Subagent (or has previously delivered to the
General Collateral Agent or upon its request to the Designated
Collateral Subagent or, in the case of Additional Interests as defined
in Section 22, shall deliver pursuant to Section 22) a control
agreement (or appropriate amendments thereto) duly executed by the
Registrar of the applicable Pledged Subsidiary (the "Registrar"), in
form and substance acceptable to each of the General Collateral Agent
and to the Designated Collateral Subagent and in which the Registrar
(A) acknowledges that the Pledgor is at the date of such acknowledgment
the sole record, and to its knowledge, beneficial owner of the Pledged
Interests, (B) acknowledges the Lien in favor of the General Collateral
Agent for the benefit of the General Secured Parties conferred
hereunder and that such Lien will be reflected on the registry for such
Pledged Interests, (C) agrees that it will not consent to, effect,
acknowledge or register any transfer of such Pledged Interests nor
acknowledge or register any Lien in favor of any other Person on such
Pledged Interests, without the prior written consent of each of the
General Collateral Agent and the Designated Collateral Subagent in each
instance, until it receives notice from the General Collateral Agent or
from the Designated Collateral Subagent that all Liens on such
Collateral in favor of the General Secured Parties have been released
or terminated, and (D) agrees that upon receipt of notice from the
General Collateral Agent or from the Designated Collateral Subagent
that an Event of Default has occurred and is continuing and that the
Pledged Interests identified in such notice have been transferred to a
transferee (including any General Secured Party) identified in such
notice, it will duly record such transfer of such Pledged Interests on
the appropriate registry without requiring further consent from the
Pledgor and shall thereafter treat the transferee as the sole record
and beneficial owner of such Pledged Interests pending further
transfer, in each case notwithstanding any contrary instruction
received from the Pledgor. In addition, with respect to all Pledged
Interests, the Pledgor has simultaneously herewith delivered to the
General Collateral Agent or upon its request to the Designated
Collateral Subagent (or has previously delivered to the General
Collateral Agent or upon its request to the Designated Collateral
Subagent or, in the case of Additional Interests shall deliver pursuant
to Section 22) Uniform Commercial Code financing statements on Form
UCC-1 (or appropriate amendments thereto) duly executed by or on behalf
of the Pledgor as "debtor" and naming the General Collateral Agent for
the benefit of the General Secured Parties as "secured party," in form,
substance and number sufficient in the reasonable opinion of the
Designated Collateral Subagent to be filed in all UCC filing offices
and in all jurisdictions in which filing is necessary or advisable to
perfect in favor of the General Collateral Agent for the benefit of the
General Secured Parties the Lien on such Pledged Interests, together
with all required filing fees. Without limiting the foregoing
provisions of this Section 2(c), with respect to any Pledged Interests
issued by any Direct Foreign Subsidiary, Pledgor shall deliver or cause
to be delivered, (i) in addition to or in substitution for all or any
of the foregoing items, as the General Collateral Agent or the
Designated Collateral Subagent may elect, such other instruments,
certificates, agreements, notices, filings, and
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other documents, and
take or cause to be taken such other action, as the General Collateral
Agent or the Designated Collateral Subagent may determine to be
necessary or advisable under the laws of the jurisdiction of formation
of such Direct Foreign Subsidiary, to grant, perfect and protect as a
first priority lien in such Collateral in favor of the General
Collateral Agent for the benefit of the General Secured Parties, and
(ii) an opinion of counsel acceptable in form and substance to the
Designated Collateral Subagent issued by a law firm acceptable to the
Designated Collateral Subagent licensed to practice law in such foreign
jurisdiction, addressing with respect to such Pledged Interests the
matters described in Section 9.20(h)(iii) and (v) of the Credit
Agreement.
(d) It has full corporate power, legal right and lawful
authority to execute this Pledge Agreement and to pledge, assign and
transfer its Pledged Interests in the manner and form hereof.
(e) The pledge, assignment and delivery of its Pledged
Interests (along with undated stock powers executed in blank, financing
statements and control agreements) to the General Collateral Agent for
the benefit of the General Secured Parties pursuant to this Pledge
Agreement creates or continues, as applicable, a valid and perfected
first priority security interest in such Pledged Interests in favor of
the General Collateral Agent for the benefit of the General Secured
Parties, securing the payment of the Secured Obligations, assuming, in
the case of the Pledged Interests which constitute certificated
"securities" under the UCC, continuous and uninterrupted possession by
or on behalf of the General Collateral Agent.
(f) Except as otherwise expressly provided herein or in each
of the Transaction Documents, none of the Pledged Interests (nor any
interest therein or thereto) shall be sold, transferred or assigned
without the Designated Collateral Subagent's prior written consent,
which may be withheld for any reason.
(g) It shall at all times cause the Pledged Interests that
constitute "securities" (or as to which the issuer elects to have
treated as "securities") under the UCC to be represented by the
certificates now and hereafter delivered to the General Collateral
Agent in accordance with Sections 1, 2 and 22 hereof and that it shall
cause each of the Pledged Subsidiaries not to issue any Subsidiary
Securities, or securities convertible into, or exchangeable or
exercisable for, Subsidiary Securities, at any time during the term of
this Pledge Agreement unless the Pledged Interests of such Pledge
Subsidiary are issued solely to either (y) the Pledgor who shall
immediately comply with Sections 2 and 22 hereof with respect to such
property or (z) another Credit Party who shall immediately pledge such
additional Subsidiary Securities to the General Collateral Agent for
the benefit of the General Secured Parties on substantially identical
terms as are contained herein and deliver or cause to be delivered the
appropriate documents described in Section 2(c) hereof to the General
Collateral Agent and take such further actions as the General
Collateral Agent or the Designated Collateral Subagent may deem
necessary in order to perfect a first priority security interest in
such Subsidiary Securities.
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(h) Pledgor shall not cause, suffer or permit to occur a
change in the identity of any Registrar for any Pledged Interests
except upon giving not less than ten (10) days' prior written notice to
each of the General Collateral Agent and to the Designated Collateral
Subagent and providing evidence reasonably satisfactory to the
Designated Collateral Subagent (which shall include the written
acknowledgment of such new Registrar if the Designated Collateral
Subagent shall elect) of continuing compliance with the provisions of
Sections 1(e) and 2(c) hereof.
3. PRESERVATION AND PROTECTION OF COLLATERAL.
(a) Neither the General Collateral Agent nor the Designated
Collateral Subagent shall be under any duty or liability with respect
to the collection, protection or preservation of the Collateral, or
otherwise, beyond the use of reasonable care in the custody and
preservation thereof while in its possession.
(b) The Pledgor agrees to pay when due all taxes, charges,
Liens and assessments against the Collateral, unless being contested in
good faith by appropriate proceedings diligently conducted and against
which adequate reserves have been established in accordance with GAAP
applied on a Consistent Basis (as each capitalized term is defined in
the Credit Agreement) and evidenced to the satisfaction of the
Designated Collateral Subagent and provided that all enforcement
proceedings in the nature of levy or foreclosure are effectively
stayed. Upon the failure of the Pledgor to so pay or contest such
taxes, charges, Liens or assessments, or upon the failure of the
Pledgor to pay any amount pursuant to Section 1(c), the Designated
Collateral Subagent at its option may pay or contest any of them (the
Designated Collateral Subagent having the sole right to determine the
legality or validity and the amount necessary to discharge such taxes,
charges, Liens or assessments) but shall not have any obligation to
make any such payment or contest. All sums so disbursed by the
Designated Collateral Subagent, including reasonable attorneys' fees,
court costs, expenses and other charges related thereto, shall be
payable on demand by the Pledgor to the Designated Collateral Subagent
and shall be additional Secured Obligations secured by the Collateral,
and any amounts not so paid on demand (in addition to other rights and
remedies resulting from such nonpayment) shall bear interest from the
date of demand until paid in full at the Default Rate.
(c) The Pledgor hereby irrevocably authorizes each of the
General Collateral Agent and the Designated Collateral Subagent to file
(with, or to the extent permitted by applicable law, without the
signature of the Pledgor appearing thereon) financing statements
(including amendments thereto and continuations and copies thereof)
showing the Pledgor as "debtor" at such time or times and in all filing
offices as the General Collateral Agent may from time to time determine
to be necessary or advisable to perfect or protect the rights of the
General Collateral Agent and the General Secured Parties hereunder, or
otherwise to give effect to the transactions herein contemplated.
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4. DEFAULT. Upon the occurrence and during the continuance of any Event
of Default, each of the General Collateral Agent and the Designated Collateral
Subagent is given full power and authority on behalf of the General Secured
Parties, then or at any time thereafter, to sell, assign, deliver or collect the
whole or any part of the Collateral, or any substitute therefor or any addition
thereto, in one or more sales, with or without any previous demands or demand of
performance or, to the extent permitted by law, notice or advertisement, in such
order as the General Collateral Agent or the Designated Collateral Subagent may
elect; and any such sale may be made either at public or private sale at the
General Collateral Agent's or the Designated Collateral Subagent's place of
business or elsewhere, either for cash or upon credit or for future delivery, at
such price or prices as the General Collateral Agent or the Designated
Collateral Subagent may reasonably deem fair; and any of the General Collateral
Agent, the Designated Collateral Subagent or any other General Secured Party may
be the purchaser of any or all Collateral so sold and hold the same thereafter
in its own right free from any claim of the Pledgor or right of redemption.
Demands of performance, advertisements and presence of property and sale and
notice of sale are hereby waived to the extent permissible by law. Any sale
hereunder may be conducted by an auctioneer or any officer or agent of the
General Collateral Agent or the Designated Collateral Subagent. Pledgor
recognizes that neither the General Collateral Agent nor the Designated
Collateral Subagent may be able to effect a public sale of certain of the
Collateral by reason of certain prohibitions contained in the Securities Act of
1933, as amended (the "Securities Act"), and applicable state law, and may be
otherwise delayed or adversely affected in effecting any sale by reason of
present or future restrictions thereon imposed by governmental authorities
("Affected Collateral"), and that as a consequence of such prohibitions and
restrictions either or both of the General Collateral Agent and the Designated
Collateral Subagent may be compelled (i) to resort to one or more private sales
to a restricted group of purchasers who will be obliged to agree, among other
things, to acquire the Affected Collateral for their own account, for investment
and not with a view to the distribution or resale thereof, or (ii) to seek
regulatory approval of any proposed sale or sales, or (iii) to limit the amount
of Affected Collateral sold to any Person or group. The Pledgor agrees and
acknowledges that private sales so made may be at prices and upon terms less
favorable to Pledgor than if such Affected Collateral was sold either at public
sales or at private sales not subject to other regulatory restrictions, and that
neither the General Collateral Agent nor the Designated Collateral Subagent has
any obligation to delay the sale of any of the Affected Collateral for the
period of time necessary to permit the Pledged Subsidiary to register or
otherwise qualify them under or exempt them from any applicable restriction,
even if such Pledged Subsidiary would agree to register or otherwise qualify or
exempt such Affected Collateral so as to permit a public sale under the
Securities Act or applicable state law. The Pledgor further agrees, to the
extent permitted by applicable law, that the use of private sales made under the
foregoing circumstances to dispose of the Affected Collateral shall be deemed to
be dispositions in a commercially reasonable manner. The Pledgor hereby
acknowledges that a ready market may not exist for the Pledged Interests if they
are not traded on a national securities exchange or quoted on an automated
quotation system and agrees and acknowledges that in such event the Pledged
Interests may be sold for an amount less than a pro rata share of the fair
market value of the Pledged Subsidiary's assets of the issuer of such Affected
Collateral minus its liabilities. In addition to the foregoing, the General
Secured Parties may exercise such other rights and
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remedies as may be available under the applicable Transaction Documents, at law
(including without limitation the UCC) or in equity.
5. PROCEEDS OF SALE. The proceeds of the sale of any of the Collateral
by the General Collateral Agent and all sums received or collected from or on
account of such Collateral by the General Collateral Agent shall be applied
ratably by the General Collateral Agent for the benefit of the General Secured
Parties in accordance with the terms of the Intercreditor Agreement.
6. PRESENTMENTS, DEMANDS AND NOTICES. Neither the General Collateral
Agent nor the Designated Collateral Subagent shall be under any duty or
obligation whatsoever to make or give any presentments, demands for
performances, notices of nonperformance, protests, notice of protest or notice
of dishonor in connection with any obligations or evidences of indebtedness held
thereby as collateral, or in connection with any obligations or evidences of
indebtedness which constitute in whole or in part the Secured Obligations
secured hereunder.
7. ATTORNEY-IN-FACT. The Pledgor hereby appoints the General Collateral
Agent and the Designated Collateral Subagent as the Pledgor's attorney-in-fact
for the purposes of carrying out the provisions of this Pledge Agreement and
taking any action and executing any instrument which the General Collateral
Agent or the Designated Collateral Subagent may deem necessary or advisable to
accomplish the purposes hereof, which appointment is irrevocable and coupled
with an interest; provided, that each of the General Collateral Agent and the
Designated Collateral Subagent shall have and may exercise rights under this
power of attorney only upon the occurrence and during the continuance of an
Event of Default. Without limiting the generality of the foregoing, upon the
occurrence and during the continuance of an Event of Default, each of the
General Collateral Agent and the Designated Collateral Subagent shall have the
right and power to receive, endorse and collect all checks and other orders for
the payment of money made payable to the Pledgor representing any dividend,
interest payment, principal payment or other distribution payable or
distributable in respect to the Collateral or any part thereof and to give full
discharge for the same.
8. REINSTATEMENT. The granting of a security interest in the Collateral
and the other provisions hereof shall continue to be effective or be reinstated,
as the case may be, if at any time any payment of any of the Secured Obligations
is rescinded or must otherwise be returned by any General Secured Party, whether
upon the insolvency, bankruptcy or reorganization of the Pledgor or any other
Credit Party or otherwise, all as though such payment had not been made. The
provisions of this Section 8 shall survive repayment of all of the Secured
Obligations and the termination or expiration of this Pledge Agreement in any
manner, including but not limited to termination upon occurrence of the Security
Termination Date.
9. WAIVER BY THE PLEDGOR. The Pledgor waives to the extent permitted by
applicable law (a) any right to require any General Secured Party, the General
Collateral Agent or the Designated Collateral Subagent or any other obligee of
the Secured Obligations to (x) proceed against any Person or entity, including
without limitation any Credit Party, (y) proceed against or exhaust any
Collateral or other collateral for the Secured Obligations, or (z) pursue any
other remedy in its power; (b) any defense arising by reason of any disability
or other defense of
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any other Person, or by reason of the cessation from any
cause whatsoever of the liability of any other Person or entity, (c) any right
of subrogation, (d) any right to enforce any remedy which any General Secured
Party or any other obligee of the Secured Obligations now has or may hereafter
have against any other Person and any benefit of and any right to participate in
any collateral or security whatsoever now or hereafter held by the General
Collateral Agent or the Designated Collateral Subagent for the benefit of the
General Secured Parties. The Pledgor authorizes each of the General Collateral
Agent and the Designated Collateral Subagent without notice (except notice
required by applicable law) or demand and without affecting its liability
hereunder or under the Loan Documents from time to time to: (i) take and hold
security, other than the Collateral herein described, for the payment of such
Secured Obligations or any part thereof, and exchange, enforce, waive and
release the Collateral herein described or any part thereof or any such other
security; and (ii) apply such Collateral or other security and direct the order
or manner of sale thereof as it may determine in its discretion or as directed
in writing by the Required Enforcement General Secured Parties.
Either of the General Collateral Agent or the Designated Collateral
Subagent may at any time deliver (without representation, recourse or warranty)
the Collateral or any part thereof to the Pledgor and the receipt thereof by the
Pledgor shall be a complete and full acquittance for the Collateral so
delivered, and the General Collateral Agent and the Designated Collateral
Subagent, as the case may be, shall thereafter be discharged from any liability
or responsibility therefor.
10. DIVIDENDS AND VOTING RIGHTS.
(a) All dividends and other distributions with respect to any
of the Pledged Interests shall be subject to the pledge hereunder,
provided, however, that cash dividends paid to the Pledgor as record
owner of the Pledged Interests, to the extent permitted by each
Transaction Document to be declared and paid, may be retained by the
Pledgor so long as no Event of Default shall have occurred and be
continuing, free from any Liens hereunder.
(b) So long as no Event of Default shall have occurred and be
continuing, the registration of the Collateral in the name of the
Pledgor as record and beneficial owner shall not be changed and the
Pledgor shall be entitled to exercise all voting and other rights and
powers pertaining to the Collateral for all purposes not inconsistent
with the terms hereof.
(c) Upon the occurrence and during the continuance of any
Event of Default, all rights of the Pledgor to receive and retain cash
dividends and other distributions upon the Collateral pursuant to
subsection (a) above shall cease and shall thereupon be vested in the
General Collateral Agent for the benefit of the General Secured
Parties, and the Pledgor shall, or shall cause, all such cash dividends
and other distributions with respect to the Pledged Interests to be
promptly delivered to the General Collateral Agent or upon its request
to the Designated Collateral Subagent (together, if the General
Collateral Agent or the Designated Collateral Subagent shall request,
with the documents described
10
in Sections 1(c) and 2(c) hereof or other
negotiable documents or instruments so distributed) to be held,
released or disposed of by it hereunder or, at the option of the
Designated Collateral Subagent or as directed in writing by the
Required Enforcement General Secured Parties, to be applied to the
Secured Obligations.
(d) Upon the occurrence and during the continuance of any
Event of Default, at the option of the General Collateral Agent or the
Designated Collateral Subagent or as directed in writing by the
Required Enforcement General Secured Parties, all rights of the Pledgor
to exercise the voting or consensual rights and powers which it is
authorized to exercise pursuant to subsection (b) above shall cease and
the General Collateral Agent may thereupon (but shall not be obligated
to), at its request or the request of the Designated Collateral
Subagent, cause such Collateral to be registered in the name of the
General Collateral Agent or the Designated Collateral Subagent or its
nominee or agent for the benefit of the General Secured Parties and/or
exercise such voting or consensual rights and powers as appertain to
ownership of such Collateral, and to that end the Pledgor hereby
appoints each of the General Collateral Agent and the Designated
Collateral Subagent as its proxy, with full power of substitution, to
vote and exercise all other rights as a shareholder with respect to
such Pledged Interests hereunder upon the occurrence and during the
continuance of any Event of Default, each of which proxy is coupled
with an interest and is irrevocable until the Security Termination
Date, and the Pledgor hereby agrees to provide such further proxies as
the General Collateral Agent or the Designated Collateral Subagent may
request; provided, however, that each of the General Collateral Agent
and the Designated Collateral Subagent in its discretion may from time
to time refrain from exercising, and shall not be obligated to
exercise, any such voting or consensual rights or such proxy.
11. CONTINUED POWERS. Until the Security Termination Date shall have
occurred, the power of sale and other rights, powers and remedies granted to
either or both of the General Collateral Agent and the Designated Collateral
Subagent for the benefit of the General Secured Parties hereunder shall continue
to exist and may be exercised by each of the General Collateral Agent and by the
Designated Collateral Subagent at any time and from time to time irrespective of
the fact that any of the Secured Obligations or any part thereof may have become
barred by any statute of limitations or that any part of the liability of the
Pledgor may have ceased.
12. OTHER RIGHTS. The rights, powers and remedies given to each of the
General Collateral Agent and to the Designated Collateral Subagent for the
benefit of the General Secured Parties by this Pledge Agreement shall be in
addition to all rights, powers and remedies given to either or both of the
General Collateral Agent and the Designated Collateral Subagent or any General
Secured Party under any Transaction Document or by virtue of any statute or rule
of law. Any forbearance or failure or delay by the General Collateral Agent or
the Designated Collateral Subagent or any General Secured Party in exercising
any right, power or remedy hereunder shall not be deemed to be a waiver of such
right, power or remedy, and any single or partial exercise of any right, power
or remedy hereunder shall not preclude the further exercise thereof; and every
right, power and remedy of the General Secured Parties shall continue in full
11
force and effect until such right, power or remedy is specifically waived in
accordance with the terms of the applicable Transaction Documents.
13. ANTI-MARSHALING PROVISIONS. Notwithstanding the existence of any
other security interest in the Collateral held by the General Collateral Agent
or the Designated Collateral Subagent, for the benefit of the General Secured
Parties, the Designated Collateral Subagent shall have the right to determine
the order in which any or all of the Collateral shall be subjected to the
remedies provided in this Pledge Agreement. The Pledgor hereby waives any and
all right to require the marshaling of assets in connection with the exercise of
any of the remedies permitted by applicable law or provided herein or in any
Transaction Document.
14. ENTIRE AGREEMENT. This Pledge Agreement, together with the other
General Security Instruments the Intercreditor Agreement, the General Collateral
Agency Agreement and the Transaction Documents, constitutes and expresses the
entire understanding between the parties hereto with respect to the subject
matter hereof, and supersedes all prior negotiations, agreements and
understandings, inducements, commitments or conditions, express or implied, oral
or written, except as herein contained. The express terms hereof control and
supersede any course of performance or usage of the trade inconsistent with any
of the terms hereof. Neither this Pledge Agreement nor any portion or provision
hereof may be changed, altered, modified, supplemented, discharged, canceled,
terminated, or amended orally or in any manner other than with the prior written
consent of the Required General Secured Parties.
15. FURTHER ASSURANCES. The Pledgor agrees at its own expense to do
such further acts and things, and to execute and deliver, and cause to be
executed and delivered as may be necessary or advisable to give effect thereto,
such additional conveyances, assignments, financing statements, control
agreements, documents, certificates, stock powers, agreements and instruments,
as the Designated Collateral Subagent may at any time reasonably request in
connection with the administration or enforcement of this Pledge Agreement or
related to the Collateral or any part thereof or in order better to assure and
confirm unto each of the General Collateral Agent and the Designated Collateral
Subagent their rights, powers and remedies for the benefit of the General
Secured Parties hereunder. The Pledgor hereby consents and agrees that the
Pledged Subsidiaries and their respective Registrars, and all other Persons,
shall be entitled to accept the provisions hereof as conclusive evidence of the
right of each of the General Collateral Agent and the Designated Collateral
Subagent, on behalf of the General Secured Parties, to exercise the rights,
privileges, and remedies hereunder with respect to the Collateral,
notwithstanding any other notice or direction to the contrary heretofore or
hereafter given by the Pledgor or any other Person to any of such Pledged
Subsidiaries or Registrars or other Persons.
16. BINDING AGREEMENT; ASSIGNMENT. This Pledge Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and inure to the
benefit of the parties hereto, and to their respective successors and assigns,
except that the Pledgor shall not be permitted to assign this Pledge Agreement
or any interest herein, or in the Collateral or any part thereof, or otherwise,
pledge, encumber or grant any option with respect to the Collateral, or any part
thereof, or any cash or property held by the General Collateral Agent as
Collateral under this Pledge Agreement. All references herein to the General
Collateral Agent and the Designated
12
Collateral Subagent and to the General
Secured Parties shall include any successor thereof or permitted assignee, and
any other obligees from time to time of the Secured Obligations.
17. SWAP AGREEMENTS. All obligations of the Pledgor under Swap
Agreements, as defined in the Credit Agreement, (which are not prohibited under
the terms of each of the Transaction Documents) to which any Lender or any
affiliate of any Lender is a party, shall be deemed to be Secured Obligations
secured hereby, and each Lender or affiliate of a Lender party to any such Swap
Agreement shall be deemed to be a General Secured Party hereunder with respect
to such Secured Obligations; provided, however, that such obligations shall
cease to be Secured Obligations at such time as such Person (or affiliate of
such Person) shall cease to be a "Lender" under the Credit Agreement.
18. SEVERABILITY. The provisions of this Pledge Agreement are
independent of and separable from each other. If any provision hereof shall for
any reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity or enforceability of any other provision hereof,
but this Pledge Agreement shall be construed as if such invalid or unenforceable
provision had never been contained herein.
19. COUNTERPARTS. This Pledge Agreement may be executed in any number
of counterparts each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Pledge Agreement
to produce or account for more than one such counterpart executed by the Pledgor
against whom enforcement is sought.
20. TERMINATION. Subject to the provisions of Section 8, this Pledge
Agreement and all obligations of the Pledgor hereunder (excluding those
obligations and liabilities that expressly survive such termination) shall
terminate without delivery of any instrument or performance of any act by any
party on the Security Termination Date. Upon such termination of this Pledge
Agreement, the General Collateral Agent or the Designated Collateral Subagent as
the case may be shall, at the sole expense of the Pledgor, promptly deliver to
the Pledgor the certificates evidencing its shares of Pledged Interests (and any
other property received as a dividend or distribution or otherwise in respect of
such Pledged Interests), together with any cash then constituting the Collateral
not then sold or otherwise disposed of in accordance with the provisions hereof,
and take such further actions at the request of the Pledgor as may be necessary
to effect the same.
21. INDEMNIFICATION. Without limitation of Section 13.9 of the Credit
Agreement or any other indemnification provision in any Transaction Document,
the Pledgor agrees to indemnify and hold harmless the General Collateral Agent,
the Designated Collateral Subagent and each General Secured Party and each of
their affiliates, and their respective officers, directors, employees, agents,
and advisors (each, an "Indemnified Party"), from and against any and all
claims, damages, losses, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys' fees) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation or proceeding or preparation of defense in
connection therewith) the Transaction Documents or General Security Instruments,
13
any of the transactions contemplated herein or therein or the actual or proposed
use of the proceeds of the Revolving Loans or other extension of credit under
the Transaction Documents, except to the extent such claim, damage, loss,
liability, cost, or expense is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such Indemnified Party's
gross negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 21
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Pledgor or any other Credit Party,
any of their respective directors, shareholders or creditors, or an Indemnified
Party or any other Person, or any Indemnified Party is otherwise a party thereto
and whether or not the transactions contemplated hereby are consummated. The
Pledgor agrees that no Indemnified Party shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to it, any of its
subsidiaries or affiliates, or any security holders or creditors thereof arising
out of, related to or in connection with the transactions contemplated herein or
in the other Transaction Documents or General Security Instruments, except to
the extent that such liability is found in a final non-appealable judgment by a
court of competent jurisdiction to have directly resulted from such Indemnified
Party's gross negligence or willful misconduct. The Pledgor agrees not to assert
any claim against any Indemnified Party, any of its affiliates, or any of their
respective directors, officers, employees, attorneys, agents, or advisers, on
any theory of liability, for special, indirect, consequential, or punitive
damages arising out of or otherwise relating to any of the Transaction Documents
or General Security Instruments, any of the transactions contemplated therein or
herein or the actual or proposed use of the proceeds of the Revolving Loans or
other extensions of credit under the Transaction Documents. The agreements in
this Section 21 shall survive repayment of all of the Secured Obligations and
the termination or expiration of this Pledge Agreement in any manner, including
but not limited to termination upon occurrence of the Security Termination Date.
22. ADDITIONAL INTERESTS. If the Pledgor shall at any time acquire or
hold any additional Pledged Interests, including any Pledged Interests issued by
any Subsidiary not listed on Schedule I hereto which are required to be subject
to a Lien pursuant to a Pledge Agreement by the terms hereof or of Article V or
any other provision of the Credit Agreement or of any term of any other
Transaction Document (any such shares being referred to herein as the
"Additional Interests"), the Pledgor shall deliver to the General Collateral
Agent or, upon its request, to the Designated Collateral Subagent for the
benefit of the General Secured Parties (i) a revised Schedule I hereto
reflecting the ownership and pledge of such Additional Interests and (ii) a
Pledge Agreement Supplement in the form of Exhibit A hereto with respect to such
Additional Interests duly completed and executed by the Pledgor and (iii) any
other document required in connection with such Additional Interests as
described in Section 2(c). The Pledgor shall comply with the requirements of
this Section 22 concurrently with the acquisition of any such Additional
Interests or, in the case of Additional Interests to which Section 9.20 of the
Credit Agreement applies, within the time period specified in Article V, Section
9.20 or elsewhere in the Credit Agreement with respect to such Additional
Interests; provided, however, that the failure to comply with the provisions of
this Section 22 shall not impair the Lien on Additional Interests conferred
hereunder.
14
23. NOTICES. Any notice required or permitted hereunder
shall be given (a) with respect to the Pledgor, at the address of the Pledgor
indicated in Section 13.2 of the Credit Agreement, (b) with respect to the
General Collateral Agent, to: Wilmington Trust Company, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Corporate Trust Administration,
Main Phone: (▇▇▇) ▇▇▇-▇▇▇▇, Main Fax: (▇▇▇) ▇▇▇-▇▇▇▇, and (c) with
respect to the Designated Collateral Subagent, at the Revolving Credit
Agent's address indicated in Section 13.2 of the Credit Agreement. All such
addresses may be modified, and all such notices shall be given and shall be
effective, as provided in Section 13.2 of the Credit Agreement.
24. RULES OF INTERPRETATION. The rules of interpretation contained in
Sections 1.2(c) through 1.2(l) of the Credit Agreement shall be applicable to
this Pledge Agreement and are hereby incorporated by reference. All
representations and warranties contained herein shall survive the delivery of
documents and any extension of credit referred to herein or secured hereby.
25. DIRECTION CONCERNING DELIVERY. Until the General Collateral
Agent provides notice otherwise, the General Collateral Agent hereby
directs that all items to be delivered to it pursuant to this Pledge
Agreement be delivered to the Designated Collateral Subagent on its behalf.
26. GOVERNING LAW; WAIVERS.
(A) THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA APPLICABLE
TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
(B) THE PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS PLEDGE AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY
BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF
MECKLENBURG, STATE OF NORTH CAROLINA, UNITED STATES OF AMERICA AND, BY
THE EXECUTION AND DELIVERY OF THIS PLEDGE AGREEMENT, EXPRESSLY WAIVES
ANY OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE
VENUE OR TO THE JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING,
AND IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(C) THE PLEDGOR AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE
15
PREPAID) TO THE ADDRESS OF THE PLEDGOR PROVIDED
IN SECTION 23 OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE
APPLICABLE LAWS IN EFFECT IN THE STATE OF NORTH CAROLINA.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE ANY GENERAL SECURED PARTY, THE GENERAL COLLATERAL AGENT OR THE
DESIGNATED COLLATERAL SUBAGENT FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS PLEDGE AGREEMENT IN THE
COURTS OF ANY PLACE WHERE THE PLEDGOR OR ANY OF THE PLEDGOR'S PROPERTY
OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY THE
APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE PLEDGOR HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO
THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER
COURT OR COURTS WHICH NOW OR HEREAFTER, BY REASON OF ITS PRESENT OR
FUTURE DOMICILE, OR OTHERWISE, MAY BE AVAILABLE UNDER APPLICABLE LAW.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS PLEDGE AGREEMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION WITH THE FOREGOING, EACH PARTY
HEREBY AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH
ACTION, SUIT OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY AND HEREBY IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY
SUCH ACTION, SUIT OR PROCEEDING.
(F) THE PLEDGOR HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY
HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO
THE TERMS HEREOF IS AN INCONVENIENT FORUM.
[SIGNATURES ON FOLLOWING PAGES]
16
IN WITNESS WHEREOF, the parties have duly executed this Pledge
Agreement on the day and year first written above.
PLEDGOR:
CONE ▇▇▇▇▇ CORPORATION
By:
______________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
DESIGNATED COLLATERAL SUBAGENT:
BANK OF AMERICA, N.A.
AS DESIGNATED COLLATERAL SUBAGENT
By:
______________________________________
Name:
____________________________________
Title:
___________________________________
SECURITIES PLEDGE AGREEMENT (BORROWER)
Signature Page 1 of 2
AGENT:
WILMINGTON TRUST COMPANY, as General
Collateral Agent for the General Secured
Parties
By:
________________________________________
Name:
______________________________________
Title:
_____________________________________
SECURITIES PLEDGE AGREEMENT (BORROWER)
Signature Page 2 of 2
SCHEDULE I
Name of Pledgor Name, Class or Type Total Amount Total Amount Total Amount Certificate Par Value (if Name and
--------------- ------ -------------- ------------- ------------- ------------- ------------ -------------- --------
Jurisdiction of Pledged of Class or of Class or Pledged Number (if applicable) Title of
------------- ----------- ------------ ------------ ------- ----------- ----------- --------
of Formation Interest Type of Type applicable) Registrar
------------- -------- -------- ----- ----------- ---------
and Type of Pledged Outstanding
----------- ------- -----------
Entity of Interests
--------- ---------
Pledged Authorized
------- ----------
Subsidiary
----------
EXHIBIT A
PLEDGE AGREEMENT SUPPLEMENT
THIS PLEDGE AGREEMENT SUPPLEMENT (as from time to time amended,
modified or restated, this " Supplement"), dated as of ______________ ___, ____
is made by and between CONE ▇▇▇▇▇ CORPORATION, a North Carolina corporation (the
"Pledgor"), and WILMINGTON TRUST COMPANY, as General Collateral Agent (in such
capacity, the "Collateral Agent") under that certain General Collateral Agency
Agreement dated as of January 28, 2000 among The Prudential Insurance Company of
America, as holder of the Senior Notes (together, the "Senior Note Holder"),
SunTrust Bank and Atlantic Financial Group, Ltd., as creditors of the Senior
Lease Obligations (the "Senior Lease Creditor"), ▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as counterparty of the ▇▇▇▇▇▇ Swap Agreement ("▇▇▇▇▇▇"), and BANK
OF AMERICA, N. A., a national banking association, as Agent (the "Revolving
Credit Agent") for each of the Lenders (as described in the Pledge Agreement
referred to below) now or hereafter party to the Credit Agreement (as defined in
the Pledge Agreement referred to below) pursuant to which the General Collateral
Agent serves as General Collateral Agent for the benefit of the Senior Note
Holder, the Senior Lease Creditor, ▇▇▇▇▇▇, the Revolving Credit Agent, the
Lenders, the Bond Trustee for the benefit of the Debenture Holders and all other
Senior Creditors at any time existing and agreed to by BANK OF AMERICA, N.A. as
Designated Collateral Subagent (the "Designated Collateral Subagent"). All
capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned thereto in the Pledge Agreement (as defined below).
WHEREAS, the Pledgor is required under the terms of the Credit
Agreement and that certain Securities Pledge Agreement dated as of January 28,
2000 by the Pledgor in favor of the General Collateral Agent for the benefit of
the General Secured Parties (as from time to time amended, modified,
supplemented or amended and restated, the "Pledge Agreement"), to cause certain
Pledged Interests held by it and listed on Annex A to this Supplement (the
"Additional Interests") to be specifically identified as subject to the Pledge
Agreement; and
WHEREAS, the Pledgor is indebted to certain of the Senior Creditors
pursuant to the Loan Documents, the Senior Debentures, the Senior Notes, the
▇▇▇▇▇▇ Swap Agreement, and the Senior Lease Documents, as applicable; and
WHEREAS, a material part of the consideration given in connection with
and as an inducement to the execution and delivery of the Credit Agreement by
the Lenders and to the maintenance of the extensions of credit evidenced by the
Senior Notes, the Senior Debentures and the Senior Lease Documents was the
obligation of the Pledgor to pledge to the General Collateral Agent for the
benefit of the General Secured Parties the Additional Interests, whether then
owned or subsequently acquired or created; and
WHEREAS, the Pledgor has acquired rights in the Additional Interests
and desires to pledge, and evidence its prior pledge, to the General Collateral
Agent for the benefit of the
A-1
General Secured Parties all of the Additional
Interests in accordance with the terms of the Credit Agreement and the Pledge
Agreement;
WHEREAS, each of the Senior Note Holder, the Senior Lease Creditor, the
Revolving Credit Agent for itself and on behalf the Lenders, ▇▇▇▇▇▇, the General
Collateral Agent, the General Collateral Agent have entered into the
Intercreditor Agreement dated as of January 28, 2000 for their mutual benefit,
the benefit of those Persons for whom they respectively serve as agent, as
applicable, and the benefit of the Debenture Holders, which Intercreditor
Agreement provides, among other terms, as to the allocation of proceeds derived
from any remedial actions undertaken pursuant to the terms of the Pledge
Agreement; and
WHEREAS, pursuant to the General Collateral Agency Agreement, the
General Collateral Agent is authorized to delegate certain actions it would
otherwise undertake and certain responsibilities and obligations thereof
pursuant to the terms of the Pledge Agreement to any Senior Creditor party to
the General Collateral Agency Agreement and the General Collateral Agent has so
authorized and appointed the Revolving Credit Agent (in such capacity, the
"Designated Collateral Subagent") and the Revolving Credit Agent, by its
execution and delivery of the Pledge Agreement, accepted such authorization and
appointment as to those express matters therein for which it was responsible;
NOW, THEREFORE, the Pledgor hereby agrees as follows with the General
Collateral Agent, for the benefit of the General Secured Parties:
The Pledgor hereby reaffirms and acknowledges the pledge and collateral
assignment to, and the grant of security interest in, the Additional Interests
contained in the Pledge Agreement and pledges and collaterally assigns to the
General Collateral Agent for the benefit of the General Secured Parties, and
grants to the General Collateral Agent for the benefit of the General Secured
Parties a first priority lien and security interest in, the Additional Interests
and all of the following:
(a) all cash, securities, dividends, rights, and other
property at any time and from time to time (x) declared or distributed
in respect of or in exchange for or on conversion of any or all of the
Additional Interests or (y) by its or their terms exchangeable or
exercisable for or convertible into any Additional Interest or other
Pledged Interest;
(b) all other property hereafter delivered to the General
Collateral Agent in substitution for or as an addition to any of the
foregoing, and all certificates and instruments representing or
evidencing such property, all security entitlements constituting
Additional Interests, and all securities accounts to which may at any
time be credited any or all of the Additional Interests; and
(c) all proceeds of any of the foregoing.
A-2
The Pledgor hereby acknowledges, agrees and confirms by its execution of this
Supplement that the Additional Interests constitute "Pledged Interests" under
and are subject to the Pledge Agreement, and the items of property referred to
in clauses (a) through (c) above (the "Additional Collateral") shall
collectively constitute "Collateral" under and are subject to the Pledge
Agreement. Each of the representations and warranties with respect to Pledged
Interests and Collateral contained in the Pledge Agreement is hereby made by the
Pledgor with respect to the Additional Interests and the Additional Collateral,
respectively. The Pledgor further represents and warrants that a true, correct
and complete revised Schedule I to the Pledge Agreement reflecting the
Additional Interests and all other Pledged Interests is attached hereto and
hereby incorporated by reference into the Pledge Agreement, and that all other
documents required to be furnished to the General Collateral Agent pursuant to
Section 2(c) of the Pledge Agreement in connection with the Additional
Collateral have been delivered or are being delivered simultaneously herewith to
the General Collateral Agent or the Designated Collateral Agent.
IN WITNESS WHEREOF, the Pledgor has caused this Supplement to be duly
executed by its authorized officer as of the day and year first above written.
PLEDGOR:
CONE ▇▇▇▇▇ CORPORATION
By:
_________________________________________
Name:
_______________________________________
Title:
______________________________________
Acknowledged and accepted:
WILMINGTON TRUST COMPANY,
as General Collateral Agent for the General Secured Parties
By:
______________________________
Name:
____________________________
Title:
___________________________
BANK OF AMERICA, N.A.
as Designated Collateral Subagent
By:
______________________________
Name:
____________________________
Title:
___________________________
A-3
ANNEX A
(to Pledge Agreement Supplement of __________ dated __________)
Additional Interests
Name of Pledgor Name, Class or Type Total Amount Total Amount Total Amount Certificate Par Value (if Name and
--------------- ------ -------------- ------------- ------------- -------------- ------------ -------------- --------
Jurisdiction of Additional of Class or of Class or Pledged Number (if applicable) Title of
------------- -------------- ------------ ------------ ------- ----------- ----------- --------
of Formation Interest Type of Type applicable) Registrar
------------- -------- -------- ----- ----------- ---------
and Type of Additional Outstanding
------------ ----------- -----------
Entity of Interests
---------- ---------
Pledged Authorized
-------- ----------
Subsidiary
----------
REVISED SCHEDULE I TO SECURITIES PLEDGE AGREEMENT
Date: __________
Name of Pledgor Name, Class or Type Total Amount Total Amount Total Amount Certificate Par Value (if Name and
--------------- ------ -------------- ------------- ------------- ------------- ------------ -------------- --------
Jurisdiction of Pledged of Class or of Class or Pledged Number (if applicable) Title of
------------- ----------- ------------ ------------ ------- ----------- ----------- --------
of Formation Interest Type of Type applicable) Registrar
------------- -------- -------- ----- ----------- ---------
and Type of Pledged Outstanding
----------- ------- -----------
Entity of Interests
--------- ---------
Pledged Authorized
------- ----------
Subsidiary
----------