Exhibit 99.12
PLEDGE AGREEMENT
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PLEDGE AGREEMENT (as amended, modified, restated and/or supplemented
from time to time, this "Agreement"), dated as of December 21, 2004, between RCN
Corporation (the "Pledgor") and HSBC Bank USA, National Association, as
collateral agent (the "Third-Lien Collateral Agent" and together with any
successor collateral agent, the "Pledgee"), for the benefit of the Secured
Creditors (as defined below). Except as otherwise defined herein, all
capitalized terms used herein and defined in the Third-Lien Credit Agreement (as
defined below) shall be used herein as therein defined.
W I T N E S S E T H :
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WHEREAS, the Pledgor, the lenders from time to time party thereto (the
"Lenders"), HSBC Bank USA, National Association, as agent (together with any
successor agent, the "Third-Lien Administrative Agent"), have entered into an
Amended and Restated Term Loan and Credit Agreement, dated as of December 21,
2004 (as amended, modified, restated and/or supplemented from time to time, the
"Third-Lien Credit Agreement"), providing for the making of Third-Lien Loans to
the Pledgor, all as contemplated therein (the Lenders, the Third-Lien
Administrative Agent, the Third-Lien Collateral Agent and the Pledgee are herein
called the "Secured Creditors");
WHEREAS, it is a condition precedent to the making of Third-Lien Loans
to the Pledgor under the Third-Lien Credit Agreement that the Pledgor shall have
executed and delivered to the Pledgee this Agreement; and
WHEREAS, the Pledgor, various financial institutions from time to time
party thereto and Deutsche Bank AG Cayman Islands Branch, as administrative
agent and collateral agent (in such capacity, the "First-Lien Collateral
Agent"), have entered into a credit agreement, dated as of the date hereof (as
amended, restated, modified, extended, renewed, replaced, supplemented,
restructured and/or refinanced from time to time, the "First-Lien Credit
Agreement");
WHEREAS, the Assignor and HSBC Bank USA, National Association, as
trustee and collateral agent (in such capacity, together with any successors and
assigns, the "Second-Lien Collateral Agent"), have entered into that certain
Indenture, dated as of the date hereof (as amended, restated, supplemented,
modified and/or refinanced from time to time, the "Second-Lien Note Indenture")
pursuant to which the Borrower will issue its 7?% Convertible Second Lien Notes
due 2012;
WHEREAS, the Pledgor desires to execute this Agreement in order to
satisfy the condition described in the second preceding paragraph and to induce
the Lenders to make Third-Lien Loans to the Borrower; and
WHEREAS, the Pledgor is concurrently granting to (x) the First-Lien
Collateral Agent, for the benefit of the holders of obligations under the
First-Lien Credit Agreement, a first priority security interest in the
Collateral and (y) to the Second-Lien Collateral Agent, for the benefit of the
holders of obligations under the Second-Lien Note Indenture, a second priority
security interest in the Collateral (it being understood that the relative
rights and priorities of the grantees in respect of the Collateral are governed
by the Intercreditor Agreement, dated as of the date hereof (as amended,
restated, supplemented or otherwise modified from time to time, the
"Intercreditor Agreement"), among the Pledgor, the First-Lien Collateral Agent,
the Second-Lien Collateral Agent, the Third-Lien Collateral Agent and certain
other persons party or that may become party thereto from time to time);
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to the Pledgor, the receipt and sufficiency of which are hereby
acknowledged, the Pledgor hereby makes the following representations and
warranties to the Pledgee for the benefit of the Secured Creditors and hereby
covenants and agrees with the Pledgee for the benefit of the Secured Creditors
as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by the Pledgor
for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at stated maturity,
by acceleration or otherwise) of all obligations, liabilities and
indebtedness (including, without limitation, principal, premium, interest
(including, without limitation, all interest that accrues after the
commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency, reorganization or similar proceeding of the Pledgor
at the rate provided for in the respective documentation, whether or not a
claim for post-petition interest is allowed in any such proceeding), fees,
costs and indemnities) of the Pledgor owing to the Secured Creditors,
whether now existing or hereafter incurred under, arising out of, or in
connection with, the Third-Lien Credit Agreement and the other Credit
Documents to which the Pledgor is a party and the due performance and
compliance by the Pledgor with all of the terms, conditions and agreements
contained in the Third-Lien Credit Agreement and in such other Credit
Documents (all such obligations, liabilities and indebtedness under this
clause (i), entitled to the benefits of this Agreement being herein
collectively called the "Credit Document Obligations");
(ii) any and all sums advanced by the Pledgee or the Lenders in order
to preserve the Collateral (as hereinafter defined) or preserve its
security interest in the Collateral;
(iii) in the event of any proceeding for the collection or enforcement
of any indebtedness, obligations or liabilities of the Pledgor referred to
in clause (i) above, after an Event of Default shall have occurred and be
continuing, the reasonable expenses of retaking, holding, preparing for
sale or lease, selling or otherwise disposing of or realizing on the
Collateral, or of any exercise by the Pledgee of its rights hereunder,
together with reasonable attorneys' fees and court costs;
(iv) all amounts paid by any Indemnitee as to which such Indemnitee
has the right to reimbursement under Section 11 of this Agreement; and
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(v) all amounts owing to any Agent or any of its affiliates pursuant
to any of the Credit Documents in its capacity as such;
all such obligations, liabilities, indebtedness, sums and expenses set forth in
clauses (i) through (v) of this Section 1 being herein collectively called the
"Obligations", it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
2. DEFINITIONS. (a) Unless otherwise defined herein, all capitalized
terms used herein and defined in the Third-Lien Credit Agreement shall be used
herein as therein defined. Reference to singular terms shall include the plural
and vice versa.
(b) The following capitalized terms used herein shall have the
definitions specified below:
"Adverse Claim" shall have the meaning given such term in Section
8-102(a)(1) of the UCC.
"Agreement" shall have the meaning set forth in the first paragraph
hereof.
"Certificated Security" shall have the meaning given such term in
Section 8-102(a)(4) of the UCC.
"Clearing Corporation" shall have the meaning given such term in
Section 8-102(a)(5) of the UCC.
"Collateral" shall have the meaning set forth in Section 3.1 hereof.
"Collateral Accounts" shall mean any and all accounts established and
maintained by the Pledgee in the name of the Pledgor to which Collateral may be
credited.
"Credit Document Obligations" shall have the meaning set forth in
Section 1(i) hereof.
"Domestic Corporation" shall mean any corporation or similar entity
organized under the laws of the United States or any State or territory thereof
or the District of Columbia.
"Event of Default" shall mean any Event of Default under, and as
defined in, the Third-Lien Credit Agreement and shall in any event include,
without limitation, any payment default on any of the Obligations after the
expiration of any applicable grace period.
"Exempted Foreign Entity" shall mean any Foreign Corporation and any
limited liability company organized under the laws of a jurisdiction other than
the United States or any State or Territory thereof that, in any such case, is
treated as a corporation or an association taxable as a corporation for U.S.
Federal income tax purposes.
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"Financial Asset" shall have the meaning given such term in Section
8-102(a)(9) of the UCC.
"First-Lien Collateral Agent" has the meaning given such term in the
Recitals hereto.
"Foreign Corporation" shall mean any corporation or similar entity
organized under the laws of any jurisdiction other than the United States or any
State or territory thereof or the District of Columbia.
"Indemnitees" shall have the meaning set forth in Section 11 hereof.
"Instrument" shall have the meaning given such term in Section
9-102(a)(47) of the UCC.
"Intercreditor Agreement" has the meaning given such term in the
Recitals hereto.
"Investment Property" shall have the meaning given such term in Section
9-102(a)(49) of the UCC.
"Secured Creditors" shall have the meaning set forth in the recitals
hereto.
"Lenders" shall have the meaning set forth in the recitals hereto.
"Limited Liability Company Assets" shall mean all assets, whether
tangible or intangible and whether real, personal or mixed (including, without
limitation, all limited liability company capital and interest in other limited
liability companies), at any time owned by the Pledgor or represented by any
Limited Liability Company Interest.
"Limited Liability Company Interests" shall mean the entire limited
liability company membership interest at any time owned by the Pledgor in any
limited liability company.
"Location" of the Pledgor has the meaning given such term in Section
9-307 of the UCC.
"Non-Voting Equity Interests" shall mean all Equity Interests of any
Person which are not Voting Equity Interests.
"Notes" shall mean all promissory notes, including all intercompany
notes at any time issued to the Pledgor.
"Obligations" shall have the meaning set forth in Section 1 hereof.
"Partnership Assets" shall mean all assets, whether tangible or
intangible and whether real, personal or mixed (including, without limitation,
all partnership capital and interest in other partnerships), at any time owned
by the Pledgor or represented by any Partnership Interest.
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"Partnership Interest" shall mean the entire general partnership
interest or limited partnership interest at any time owned by the Pledgor in any
general partnership or limited partnership.
"Pledged Notes" shall mean all Notes at any time pledged or required to
be pledged hereunder.
"Pledgee" shall have the meaning set forth in the first paragraph
hereof.
"Pledgor" shall have the meaning set forth in the first paragraph
hereof.
"Proceeds" shall have the meaning given such term in Section
9-102(a)(64) of the UCC.
"Registered Organization" shall have the meaning given such term in
Section 9-102(a)(70) of the UCC.
"Required Lenders" shall have the meaning given such term in the
Third-Lien Credit Agreement.
"Third-Lien Credit Agreement" shall have the meaning set forth in the
recitals hereto.
"Second-Lien Collateral Agent" shall have the meaning provided in the
recitals of this Agreement.
"Second-Lien Note Indenture" shall have the meaning provided in the
recitals of this Agreement.
"Secured Creditors" shall have the meaning set forth in the recitals
hereto.
"Secured Debt Agreements" shall mean and includes this Agreement and
the other Credit Documents.
"Securities Account" shall have the meaning given such term in Section
8-501(a) of the UCC.
"Securities Act" shall mean the Securities Act of 1933, as amended, as
in effect from time to time.
"Securities Intermediary" shall have the meaning given such term in
Section 8-102(14) of the UCC. "Security" and "Securities" shall have the meaning
given such term in Section 8-102(a)(15) of the UCC and shall in any event also
include all Stock and all Notes.
"Security Entitlement" shall have the meaning given such term in
Section 8-102(a)(17) of the UCC.
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"Specified Default" shall have the meaning set forth in Section 5
hereof.
"Stock" shall mean all of the issued and outstanding shares of capital
stock or similar equity interests of any Domestic Corporation or Foreign
Corporation at any time owned by the Pledgor.
"Termination Date" shall have the meaning set forth in Section 20
hereof.
"Third-Lien Administrative Agent" shall have the meaning set forth in
the recitals hereto.
"Transmitting Utility" has the meaning given such term in Section
9-102(a)(80) of the UCC.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
of New York from time to time; provided that all references herein to specific
Sections or subsections of the UCC are references to such Sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect in
the State of New York on the date hereof.
"Uncertificated Security" shall have the meaning given such term in
Section 8-102(a)(18) of the UCC.
"Voting Equity Interests" of any Person shall mean all classes of
Equity Interests of such Person entitled to vote.
3. PLEDGE OF SECURITIES, ETC.
3.1 Pledge. To secure the Obligations now or hereafter owed or to be
performed by the Pledgor (but the rights and remedies between the First-Lien
Collateral Agent and the Second-Lien Collateral Agent are subject to the terms
of the Intercreditor Agreement), the Pledgor does hereby grant, pledge and
assign to the Pledgee for the benefit of the Secured Creditors, and does hereby
create a continuing security interest (subject to those Liens permitted to exist
with respect to the Collateral pursuant to the terms of all Secured Debt
Agreements then in effect) in favor of the Pledgee for the benefit of the
Secured Creditors in, all of its right, title and interest in and to the
following, whether now existing or hereafter from time to time acquired
(collectively, the "Collateral"):
(a) each of the Collateral Accounts (to the extent a security
interest therein is not created pursuant to the Security Agreement),
including any and all assets of whatever type or kind deposited by the
Pledgor in any such Collateral Account, whether now owned or hereafter
acquired, existing or arising, including, without limitation, all Financial
Assets, Investment Property, monies, checks, drafts, Instruments,
Securities or interests therein of any type or nature deposited or required
by the Third-Lien Credit Agreement or any other Secured Debt Agreement to
be deposited in such Collateral Account, and all investments and all
certificates and other Instruments (including depository receipts, if any)
from time to time representing or evidencing the same, and all dividends,
interest, distributions, cash and other property from time to time
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received, receivable or otherwise distributed in respect of or in exchange
for any or all of the foregoing;
(b) all Securities owned or held by the Pledgor from time to time and
all options and warrants owned by the Pledgor from time to time to purchase
Securities;
(c) all Limited Liability Company Interests owned by the Pledgor from
time to time and all of its right, title and interest in each limited
liability company to which each such Limited Liability Company Interest
relates, whether now existing or hereafter acquired, including, without
limitation, to the fullest extent permitted under the terms and provisions
of the documents and agreements governing such Limited Liability Company
Interests and applicable law:
(A) all its capital therein and its interest in all profits,
income, surpluses, losses, Limited Liability Company Assets and other
distributions to which the Pledgor shall at any time be entitled in
respect of such Limited Liability Company Interests;
(B) all other payments due or to become due to the Pledgor in
respect of Limited Liability Company Interests, whether under any
limited liability company agreement or otherwise, whether as
contractual obligations, damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
limited liability company agreement or operating agreement, or at law
or otherwise in respect of such Limited Liability Company Interests;
(D) all present and future claims, if any, of the Pledgor
against any such limited liability company for monies loaned or
advanced, for services rendered or otherwise;
(E) all of the Pledgor's rights under any limited liability
company agreement or operating agreement or at law to exercise and
enforce every right, power, remedy, authority, option and privilege of
the Pledgor relating to such Limited Liability Company Interests,
including any power to terminate, cancel or modify any such limited
liability company agreement or operating agreement, to execute any
instruments and to take any and all other action on behalf of and in
the name of any of the Pledgor in respect of such Limited Liability
Company Interests and any such limited liability company, to make
determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect or receipt for any of
the foregoing or for any Limited Liability Company Asset, to enforce or
execute any checks, or other instruments or orders, to file any claims
and to take any action in connection with any of the foregoing; and
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(F) all other property hereafter delivered in substitution for
or in addition to any of the foregoing, all certificates and
instruments representing or evidencing such other property and all
cash, securities, interest, dividends, rights and other property at any
time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all thereof;
(d) all Partnership Interests owned by the Pledgor from time to time
and all of its right, title and interest in each partnership to which each
such Partnership Interest relates, whether now existing or hereafter
acquired, including, without limitation, to the fullest extent permitted
under the terms and provisions of the documents and agreements governing
such Partnership Interests and applicable law:
(A) all its capital therein and its interest in all profits,
income, surpluses, losses, Partnership Assets and other distributions
to which the Pledgor shall at any time be entitled in respect of such
Partnership Interests;
(B) all other payments due or to become due to the Pledgor in
respect of Partnership Interests, whether under any partnership
agreement or otherwise, whether as contractual obligations, damages,
insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
partnership agreement or operating agreement, or at law or otherwise in
respect of such Partnership Interests;
(D) all present and future claims, if any, of the Pledgor
against any such partnership for monies loaned or advanced, for
services rendered or otherwise;
(E) all of the Pledgor's rights under any partnership agreement
or operating agreement or at law to exercise and enforce every right,
power, remedy, authority, option and privilege of the Pledgor relating
to such Partnership Interests, including any power to terminate, cancel
or modify any partnership agreement or operating agreement, to execute
any instruments and to take any and all other action on behalf of and
in the name of the Pledgor in respect of such Partnership Interests and
any such partnership, to make determinations, to exercise any election
(including, but not limited to, election of remedies) or option or to
give or receive any notice, consent, amendment, waiver or approval,
together with full power and authority to demand, receive, enforce,
collect or receipt for any of the foregoing or for any Partnership
Asset, to enforce or execute any checks, or other instruments or
orders, to file any claims and to take any action in connection with
any of the foregoing; and
(F) all other property hereafter delivered in substitution for
or in addition to any of the foregoing, all certificates and
instruments representing or evidencing such other property and all
cash, securities, interest, dividends, rights and other property at any
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time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all thereof;
(e) all Financial Assets and Investment Property owned by the Pledgor
from time to time;
(f) all Security Entitlements owned by the Pledgor from time to time
in any and all of the foregoing; and
(g) all Proceeds of any and all of the foregoing.
Notwithstanding anything to the contrary contained herein, the Pledgor shall not
be required at any time to pledge hereunder (x) to the extent such equity
interests are the property of the Pledgor, any limited liability company
interests of Starpower Communications, LLC for so long as the organizational
documents of such entity prohibits the granting of a security interest in such
limited liability company interests, (y) to the extent such equity interests are
the property of the Pledgor, any equity interests of Megacable, S.A. de C.V.,
MCM Holdings, S.A. de C.V. and Megacable Telecommunicaciones, S.A. de C.V. for
so long as the organizational documents of such entities prohibits the granting
of a security interest in such equity interests; provided that such security
interest shall attach immediately when such prohibition is no longer in effect
or (z) more than 65% of the Voting Equity Interest of any Foreign Corporation;
provided that the Pledgor shall be required to pledge hereunder 100% of any
Non-Voting Equity Interest at any time and from time to time acquired by the
Pledgor of any Foreign Corporation.
3.2 Procedures. (a) To the extent that the Pledgor at any time or
from time to time owns, acquires or obtains any right, title or interest in any
Collateral, such Collateral shall automatically (and without the taking of any
action by the Pledgor) be pledged pursuant to Section 3.1 of this Agreement and,
in addition thereto (but subject to the terms of the Intercreditor Agreement),
the Pledgor shall (to the extent provided below and not inconsistent with the
terms of the Intercreditor Agreement) take the following actions as set forth
below (as promptly as practicable and, in any event, within 10 days after it
obtains such Collateral) for the benefit of the Pledgee and the other Secured
Creditors:
(i) with respect to a Certificated Security (other than a
Certificated Security credited on the books of a Clearing Corporation or
Securities Intermediary), the Pledgor shall physically deliver such
Certificated Security to the Pledgee, endorsed to the Pledgee or endorsed
in blank;
(ii) with respect to an Uncertificated Security (other than an
Uncertificated Security credited on the books of a Clearing Corporation or
Securities Intermediary), the Pledgor shall cause the issuer of such
Uncertificated Security to duly authorize, execute, and deliver to the
Pledgee, an agreement for the benefit of the Pledgee and the other Secured
Creditors substantially in the form of Annex H hereto (appropriately
completed to the satisfaction of the Pledgee and with such modifications,
if any, as shall be satisfactory to the Pledgee) pursuant to which such
issuer agrees to comply with any and all instructions originated by the
Pledgee in accordance with this Agreement without further consent by the
registered owner and not to comply with instructions regarding such
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Uncertificated Security (and any Partnership Interests and Limited
Liability Company Interests issued by such issuer) originated by any other
Person other than a court of competent jurisdiction;
(iii) with respect to a Certificated Security, Uncertificated Security,
Partnership Interest or Limited Liability Company Interest credited on the
books of a Clearing Corporation or Securities Intermediary (including a
Federal Reserve Bank, Participants Trust Company or The Depository Trust
Company), the Pledgor shall promptly notify the Pledgee thereof and shall
promptly take (x) all actions required (i) to comply with the applicable
rules of such Clearing Corporation or Securities Intermediary and (ii) to
perfect the security interest of the Pledgee under applicable law
(including, in any event, under Sections 9-314(a), (b) and (c), 9-106 and
8-106(d) of the UCC) and (y) such other actions as the Pledgee deems
necessary or desirable to effect the foregoing;
(iv) with respect to a Partnership Interest or a Limited Liability
Company Interest (other than a Partnership Interest or Limited Liability
Company Interest credited on the books of a Clearing Corporation or
Securities Intermediary), (1) if such Partnership Interest or Limited
Liability Company Interest is represented by a certificate and is a
Security for purposes of the UCC, the procedure set forth in Section
3.2(a)(i) hereof, and (2) if such Partnership Interest or Limited Liability
Company Interest is not represented by a certificate or is not a Security
for purposes of the UCC, the procedure set forth in Section 3.2(a)(ii)
hereof;
(v) with respect to any Note, physical delivery of such Note to the
Pledgee, endorsed in blank, or, at the request of the Pledgee, endorsed to
the Pledgee; and
(vi) with respect to cash proceeds from any of the Collateral
described in Section 3.1 hereof, (i) establishment by the Pledgee of a cash
account in the name of the Pledgor over which the Pledgee shall have
"control" within the meaning of the UCC and at any time any Event of
Default is in existence no withdrawals or transfers may be made therefrom
by any Person except with the prior written consent of the Pledgee and (ii)
deposit of such cash in such cash account.
(b) In addition to the actions required to be taken pursuant to
Section 3.2(a) hereof, the Pledgor shall take the following additional actions
with respect to the Collateral:
(i) with respect to all Collateral of the Pledgor whereby or with
respect to which the Pledgee may obtain "control" thereof within the
meaning of Section 8-106 of the UCC (or under any provision of the UCC as
same may be amended or supplemented from time to time, or under the laws of
any relevant State other than the State of New York), the Pledgor shall
take all actions (to the extent not inconsistent with the Intercreditor
Agreement) so that "control" of such Collateral is obtained and at all
times held by the Pledgee; and
(ii) the Pledgor shall from time to time cause appropriate financing
statements (on appropriate forms) under the Uniform Commercial Code as in
effect in the various relevant States, covering all Collateral hereunder
(with the form of such financing statements to be satisfactory to the
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Pledgee), to be filed in the relevant filing offices so that at all times
the Pledgee's security interest in all Investment Property and other
Collateral which can be perfected by the filing of such financing
statements (in each case to the maximum extent perfection by filing may be
obtained under the laws of the relevant States, including, without
limitation, Section 9-312(a) of the UCC) is so perfected.
3.3 Subsequently Acquired Collateral. If the Pledgor shall acquire
(by purchase, stock dividend, distribution or otherwise) any additional
Collateral at any time or from time to time after the date hereof, (i) such
Collateral shall automatically (and without any further action being required to
be taken) be subject to the pledge and security interests created pursuant to
Section 3.1 hereof and, furthermore, the Pledgor will, to the extent not
inconsistent with the Intercreditor Agreement, thereafter take (or cause to be
taken) all action (as promptly as practicable and, in any event, within 10 days
after it obtains such Collateral) with respect to such Collateral in accordance
with the procedures set forth in Section 3.2 hereof and the Intercreditor
Agreement, and will, to the extent not inconsistent with the Intercreditor
Agreement, promptly thereafter deliver to the Pledgee (i) a certificate executed
by an authorized officer of the Pledgor describing such Collateral and
certifying that the same has been duly pledged in favor of the Pledgee (for the
benefit of the Secured Creditors) hereunder and (ii) supplements to Annexes A
through G hereto as are necessary to cause such Annexes to be complete and
accurate at such time. Notwithstanding the foregoing, the Pledgor shall not be
required to pledge hereunder the equity interests of any Exempted Foreign
Entity.
3.4 Transfer Taxes. Each pledge of Collateral under Section 3.1 or
Section 3.3 hereof shall be accompanied by any transfer tax stamps required in
connection with the pledge of such Collateral.
3.5 Certain Representations and Warranties Regarding the Collateral.
The Pledgor represents and warrants that on the date hereof: (i) each Subsidiary
of the Pledgor, and the direct ownership thereof, is listed in Annex B hereto;
(ii) the Stock (and any warrants or options to purchase Stock) held by the
Pledgor consists of the number and type of shares of the stock (or warrants or
options to purchase any stock) of the corporations as described in Annex C
hereto; (iii) such Stock referenced in clause (ii) of this paragraph constitutes
that percentage of the issued and outstanding capital stock of the issuing
corporation as is set forth in Annex C hereto; (iv) the Notes held by the
Pledgor consist of the promissory notes described in Annex D hereto where the
Pledgor is listed as the lender; (v) the Limited Liability Company Interests
held by the Pledgor consist of the number and type of interests of the Persons
described in Annex E hereto; (vi) each such Limited Liability Company Interest
referenced in clause (v) of this paragraph constitutes that percentage of the
issued and outstanding equity interest of the issuing Person as set forth in
Annex E hereto; (vii) the Partnership Interests held by the Pledgor consist of
the number and type of interests of the Persons described in Annex F hereto;
(viii) each such Partnership Interest referenced in clause (viii) of this
paragraph constitutes that percentage or portion of the entire partnership
interest of the Partnership as set forth in Annex F hereto; (ix) the exact
address of each chief executive office of the Pledgor is listed on Annex G
hereto; (x) the Pledgor has complied with the respective procedure set forth in
Section 3.2(a) hereof with respect to each item of Collateral described in
Annexes C through F hereto; and (xi) on the date hereof, the Pledgor owns no
other Securities, Stock, Notes, Limited Liability Company Interests or
Partnership Interests.
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4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. Subject to the
terms of the Intercreditor Agreement, the Pledgee shall have the right to
appoint one or more sub-agents for the purpose of retaining physical possession
of the Collateral, which may be held (in the discretion of the Pledgee) in the
name of the relevant Pledgor, endorsed or assigned in blank or in favor of the
Pledgee or any nominee or nominees of the Pledgee or a sub-agent appointed by
the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT OR SPECIFIED DEFAULT.
Unless and until there shall have occurred and be continuing any Event of
Default under the Third-Lien Credit Agreement or a Default under Section 7.01(b)
or 7.01(g) of the Third-Lien Credit Agreement (each such Default, a "Specified
Default"), the Pledgor shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Collateral owned by it, and to give
consents, waivers or ratifications in respect thereof; provided that, in each
case, no vote shall be cast or any consent, waiver or ratification given or any
action taken or omitted to be taken which would violate, result in a breach of
any covenant contained in, or be inconsistent with any of the terms of any
Secured Debt Agreement, or which could reasonably be expected to have the effect
of impairing the value of the Collateral or any part thereof or the position or
interests of the Pledgee or any other Secured Creditor in the Collateral, unless
expressly permitted by the terms of the Secured Debt Agreements. All such rights
of the Pledgor to vote and to give consents, waivers and ratifications shall
cease in case an Event of Default has occurred and is continuing, and Section 7
hereof shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Subject to the terms of the
Intercreditor Agreement, unless and until there shall have occurred and be
continuing an Event of Default, all cash dividends, cash distributions, cash
Proceeds and other cash amounts payable in respect of the Collateral shall be
paid to the Pledgor. The Pledgee shall be entitled to receive directly, and to
retain as part of the Collateral:
(i) all other or additional stock, notes, certificates, limited
liability company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash dividends other
than as set forth above) paid or distributed by way of dividend or
otherwise in respect of the Collateral;
(ii) all other or additional stock, notes, certificates, limited
liability company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash (although such
cash may be paid directly to the Pledgor so long as no Event of Default
then exists)) paid or distributed in respect of the Collateral by way of
stock-split, spin-off, split-up, reclassification, combination of shares or
similar rearrangement; and
(iii) all other or additional stock, notes, certificates, limited
liability company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash) which may be
paid in respect of the Collateral by reason of any consolidation, merger,
exchange of stock, conveyance of assets, liquidation or similar corporate
or other reorganization.
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Except as otherwise provided in the Intercreditor Agreement, nothing contained
in this Section 6 shall limit or restrict in any way the Pledgee's right to
receive the proceeds of the Collateral in any form in accordance with Section 3
of this Agreement. To the extent not inconsistent with the terms of the
Intercreditor Agreement, all dividends, distributions or other payments which
are received by the Pledgor contrary to the provisions of this Section 6 or
Section 7 hereof shall be received in trust for the benefit of the Pledgee,
shall be segregated from other property or funds of the Pledgor and shall be
forthwith paid over to the Pledgee as Collateral in the same form as so received
(with any necessary endorsement).
7. REMEDIES IN CASE OF AN EVENT OF DEFAULT OR A SPECIFIED DEFAULT.
(a) If there shall have occurred and be continuing an Event of Default, then and
in every such case, to the extent not inconsistent with the terms of the
Intercreditor Agreement, the Pledgee shall be entitled to exercise all of the
rights, powers and remedies (whether vested in it by this Agreement, any other
Secured Debt Agreement or by law) for the protection and enforcement of its
rights in respect of the Collateral, and the Pledgee shall be entitled to
exercise all the rights and remedies of a secured party under the UCC as in
effect in any relevant jurisdiction and also shall be entitled, without
limitation, to exercise the following rights, which the Pledgor hereby agrees to
be commercially reasonable:
(i) to receive all amounts payable in respect of the Collateral
otherwise payable under Section 6 hereof to the Pledgor;
(ii) to transfer all or any part of the Collateral into the Pledgee's
name or the name of its nominee or nominees;
(iii) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to collect upon
any Pledged Note (including, without limitation, to make any demand for
payment thereon);
(iv) to vote (and exercise all rights and powers in respect of voting)
all or any part of the Collateral (whether or not transferred into the name
of the Pledgee) and give all consents, waivers and ratifications in respect
of the Collateral and otherwise act with respect thereto as though it were
the outright owner thereof (the Pledgor hereby irrevocably constituting and
appointing the Pledgee the proxy and attorney-in-fact of the Pledgor, with
full power of substitution to do so);
(v) at any time and from time to time to sell, assign and deliver, or
grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement or, notice of intention to sell or of the time
or place of sale or adjournment thereof or to redeem or otherwise purchase
or dispose (all of which are hereby waived by the Pledgor), for cash, on
credit or for other property, for immediate or future delivery without any
assumption of credit risk, and for such price or prices and on such terms
as the Pledgee in its absolute discretion may determine, provided at least
10 days' written notice of the time and place of any such sale shall be
given to the Pledgor. The Pledgee shall not be obligated to make any such
sale of Collateral regardless of whether any such notice of sale has
theretofore been given. The Pledgor hereby waives and releases to the
fullest extent permitted by law any right or equity of redemption with
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respect to the Collateral, whether before or after sale hereunder, and all
rights, if any, of marshalling the Collateral and any other security or the
Obligations or otherwise. At any such sale, unless prohibited by applicable
law, the Pledgee on behalf of the Secured Creditors may bid for and
purchase all or any part of the Collateral so sold free from any such right
or equity of redemption. Neither the Pledgee nor any other Secured Creditor
shall be liable for failure to collect or realize upon any or all of the
Collateral or for any delay in so doing nor shall any of them be under any
obligation to take any action whatsoever with regard thereto; and
(vi) to set off any and all Collateral against any and all
Obligations, and to withdraw any and all cash or other Collateral from any
and all Collateral Accounts and to apply such cash and other Collateral to
the payment of any and all Obligations.
(b) If there shall have occurred and be continuing a Specified
Default, then and in every such case but subject to the terms of the
Intercreditor Agreement, the Pledgee shall be entitled to vote (and exercise all
rights and powers in respect of voting) all or any part of the Collateral
(whether or not transferred into the name of the Pledgee) and give all consents,
waivers and ratifications in respect of the Collateral and otherwise act with
respect thereto as though it were the outright owner thereof (the Pledgor hereby
irrevocably constituting and appointing the Pledgee the proxy and
attorney-in-fact of the Pledgor, with full power of substitution to do so).
8. REMEDIES, CUMULATIVE, ETC. Each and every right, power and remedy
of the Pledgee provided for in this Agreement or in any other Secured Debt
Agreement (including, without limitation, the Intercreditor Agreement), or now
or hereafter existing at law or in equity or by statute shall be cumulative and
concurrent and shall be in addition to every other such right, power or remedy.
The exercise or beginning of the exercise by the Pledgee or any other Secured
Creditor of any one or more of the rights, powers or remedies provided for in
this Agreement or any other Secured Debt Agreement (including, without
limitation, the Intercreditor Agreement) or now or hereafter existing at law or
in equity or by statute or otherwise shall not preclude the simultaneous or
later exercise by the Pledgee or any other Secured Creditor of all such other
rights, powers or remedies, and no failure or delay on the part of the Pledgee
or any other Secured Creditor to exercise any such right, power or remedy shall
operate as a waiver thereof. No notice to or demand on the Pledgor in any case
shall entitle it to any other or further notice or demand in similar or other
circumstances or constitute a waiver of any of the rights of the Pledgee or any
other Secured Creditor to any other or further action in any circumstances
without notice or demand. The Secured Creditors agree that this Agreement may be
enforced only by the action of the Pledgee, in each case, acting upon the
instructions of the Required Lenders, and that no other Secured Creditor shall
have any right individually to seek to enforce or to enforce this Agreement or
to realize upon the security to be granted hereby, it being understood and
agreed that such rights and remedies may be exercised by the Pledgee for the
benefit of the Secured Creditors upon the terms of this Agreement and the
Security Agreement.
9. APPLICATION OF PROCEEDS. (a) All monies collected by the Pledgee
upon any sale or other disposition of the Collateral pursuant to the terms of
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this Agreement, together with all other monies received by the Pledgee
hereunder, shall be applied in the manner provided in the Security Agreement.
(b) It is understood and agreed that the Pledgor shall remain liable
with respect to its Obligations to the extent of any deficiency between the
amount of the proceeds of the Collateral pledged by it hereunder and the
aggregate amount of such Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the
Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making such sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
11. INDEMNITY. The Pledgor agrees (i) to indemnify, reimburse and
hold harmless the Pledgee and each other Secured Creditor and their respective
successors, assigns, employees, agents and affiliates (individually an
"Indemnitee", and collectively, the "Indemnitees") from and against any and all
obligations, damages, injuries, penalties, claims, demands, losses, judgments
and liabilities (including, without limitation, liabilities for penalties) of
whatsoever kind or nature, and (ii) to reimburse each Indemnitee for all
reasonable costs, expenses and disbursements, including reasonable attorneys'
fees and expenses, in each case arising out of or resulting from this Agreement
or the exercise by any Indemnitee of any right or remedy granted to it hereunder
or under any other Secured Debt Agreement (but excluding any obligations,
damages, injuries, penalties, claims, demands, losses, judgments and liabilities
(including, without limitation, liabilities for penalties) or expenses of
whatsoever kind or nature to the extent incurred or arising by reason of gross
negligence or willful misconduct of such Indemnitee (as determined by a court of
competent jurisdiction in a final and non-appealable decision)). In no event
shall the Pledgee hereunder be liable, in the absence of gross negligence or
willful misconduct on its part (as determined by a court of competent
jurisdiction in a final and non-appealable decision), for any matter or thing in
connection with this Agreement other than to account for monies or other
property actually received by it in accordance with the terms hereof. If and to
the extent that the obligations of the Pledgor under this Section 11 are
unenforceable for any reason, the Pledgor hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law. The indemnity obligations of the Pledgor
contained in this Section 11 shall continue in full force and effect
notwithstanding the full payment of all the Third-Lien Notes issued under the
Third-Lien Credit Agreement and the payment of all other Obligations and
notwithstanding the discharge thereof.
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER. (a)
Nothing herein shall be construed to make the Pledgee or any other Secured
Creditor liable as a member of any limited liability company or as a partner of
any partnership and neither the Pledgee nor any other Secured Creditor by virtue
of this Agreement or otherwise (except as referred to in the following sentence)
shall have any of the duties, obligations or liabilities of a member of any
limited liability company or as a partner in any partnership. The parties hereto
expressly agree that, unless the Pledgee shall become the absolute owner of
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Collateral consisting of a Limited Liability Company Interest or a Partnership
Interest pursuant hereto, this Agreement shall not be construed as creating a
partnership or joint venture among the Pledgee, any other Secured Creditor, the
Pledgor and/or any other Person.
(b) Except as provided in the last sentence of paragraph (a) of this
Section 12, the Pledgee, by accepting this Agreement, does not intend to become
a member of any limited liability company or a partner of any partnership or
otherwise be deemed to be a co-venturer with respect to the Pledgor, any limited
liability company, partnership and/or any other Person either before or after an
Event of Default shall have occurred. The Pledgee shall have only those powers
set forth herein and the Secured Creditors shall assume none of the duties,
obligations or liabilities of a member of any limited liability company or as a
partner of any partnership or the Pledgor except as provided in the last
sentence of paragraph (a) of this Section 12.
(c) The Pledgee and the other Secured Creditors shall not be
obligated to perform or discharge any obligation of the Pledgor as a result of
the pledge hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all the
rights, powers, privileges and authority so created, shall not at any time or in
any event obligate the Pledgee or any other Secured Creditor to appear in or
defend any action or proceeding relating to the Collateral to which it is not a
party, or to take any action hereunder or thereunder, or to expend any money or
incur any expenses or perform or discharge any obligation, duty or liability
under the Collateral.
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) The Pledgor agrees
that it will join with the Pledgee in executing and, at the Pledgor's own
expense, file and refile under the UCC or other applicable law such financing
statements, continuation statements and other documents, in form reasonably
acceptable to the Pledgee, in such filing offices as may be reasonably necessary
or appropriate (to the extent not inconsistent with the Intercreditor Agreement)
and wherever required or permitted by law in order to perfect and preserve the
Pledgee's security interest in the Collateral hereunder and hereby authorizes
the Pledgee to file financing statements and amendments thereto relative to all
or any part of the Collateral (including, without limitation, (x) financing
statements which list the Collateral specifically and/or "all assets" as
collateral and (y) "in lieu of" financing statements) without the signature of
the Pledgor where permitted by law, and agrees to do such further acts and to
execute and deliver to the Pledgee such additional conveyances, assignments,
agreements and instruments as the Pledgee may reasonably require or deem
advisable to carry into effect the purposes of this Agreement or to further
assure and confirm unto the Pledgee its rights, powers and remedies hereunder or
thereunder.
(b) The Pledgor hereby constitutes and appoints the Pledgee its true
and lawful attorney-in-fact, irrevocably, with full authority in the place and
stead of the Pledgor and in the name of the Pledgor or otherwise, from time to
time after the occurrence and during the continuance of an Event of Default, in
the Pledgee's discretion, to act, require, demand, receive and give acquittance
for any and all monies and claims for monies due or to become due to the Pledgor
under or arising out of the Collateral, to endorse any checks or other
instruments or orders in connection therewith and to file any claims or take any
action or institute any proceedings and to execute any instrument which the
Pledgee may deem necessary or advisable to accomplish the purposes of this
Agreement, which appointment as attorney is coupled with an interest.
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14. THE PLEDGEE AS THIRD-LIEN COLLATERAL AGENT. Subject to the terms
of the Intercreditor Agreement, the Pledgee will hold in accordance with this
Agreement all items of the Collateral at any time received under this Agreement.
It is expressly understood, acknowledged and agreed by each Secured Creditor
that by accepting the benefits of this Agreement each such Secured Creditor
acknowledges and agrees that the obligations of the Pledgee as holder of the
Collateral and interests therein and with respect to the disposition thereof,
and otherwise under this Agreement, are only those expressly set forth in this
Agreement and in Article VIII of the Third-Lien Credit Agreement. The Pledgee
shall act hereunder on the terms and conditions set forth herein and in Article
VIII of the Third-Lien Credit Agreement (the provisions of which are
incorporated herein by reference). The Pledgee makes no representation as to the
validity or sufficiency of this Agreement.
15. TRANSFER BY THE PLEDGORS. Except as permitted (i) prior to the
date all Credit Document Obligations have been paid in full and all Commitments
under the Third-Lien Credit Agreement have been terminated, pursuant to the
Third-Lien Credit Agreement, and (ii) thereafter, pursuant to the other Secured
Debt Agreements, the Pledgor will not sell or otherwise dispose of, grant any
option with respect to, or mortgage, pledge or otherwise encumber any of the
Collateral or any interest therein.
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS. (a)
The Pledgor represents, warrants and covenants as to itself and each of its
Subsidiaries that:
(i) it is the legal, beneficial and record owner of, and has good and
marketable title to, all of its Collateral consisting of one or more
Securities, Partnership Interests and Limited Liability Company Interests
and that it has sufficient interest in all of its Collateral in which a
security interest is purported to be created hereunder for such security
interest to attach (subject, in each case, to no pledge, lien, mortgage,
hypothecation, security interest, charge, option, Adverse Claim or other
encumbrance whatsoever, except the liens and security interests created by
this Agreement or permitted under the Secured Debt Agreements);
(ii) it has full power, authority and legal right to pledge all the
Collateral pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and delivered
by the Pledgor and constitutes a legal, valid and binding obligation of the
Pledgor enforceable against the Pledgor in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by general equitable
principles (regardless of whether enforcement is sought in equity or at
law);
(iv) except to the extent already obtained or made, no consent of any
other party (including, without limitation, any stockholder, partner,
member or creditor of the Pledgor or any of its Subsidiaries) and no
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consent, license, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing or declaration with, any
governmental authority is required to be obtained by the Pledgor in
connection with (a) the execution, delivery or performance of this
Agreement by the Pledgor, (b) the validity or enforceability of this
Agreement against the Pledgor (except as set forth in clause (iii) above),
(c) the perfection or enforceability of the Pledgee's security interest in
the Pledgor's Collateral or (d) except for compliance with or as may be
required by applicable securities laws, the exercise by the Pledgee of any
of its rights or remedies provided herein;
(v) neither the execution, delivery or performance by the Pledgor of
this Agreement, or any other Secured Debt Agreement to which it is a party,
nor compliance by it with the terms and provisions hereof and thereof nor
the consummation of the transactions contemplated therein: (i) will
contravene any provision of any applicable law, statute, rule or
regulation, or any applicable order, writ, injunction or decree of any
court, arbitrator or governmental instrumentality, domestic or foreign,
applicable to the Pledgor; (ii) will conflict or be inconsistent with or
result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien (except
pursuant to the Security Documents) upon any of the properties or assets of
the Pledgor or any of its Subsidiaries pursuant to the terms of any
indenture, material lease, material mortgage, material deed of trust,
credit agreement, loan agreement or any other material agreement, contract
or other instrument to which the Pledgor or any of its Subsidiaries is a
party or is otherwise bound, or by which it or any of its properties or
assets is bound or to which it may be subject; or (iii) will violate any
provision of the certificate of incorporation, by-laws, certificate of
partnership, partnership agreement, certificate of formation or limited
liability company agreement (or equivalent organizational documents), as
the case may be, of the Pledgor or any of its Subsidiaries;
(vi) all of the Pledgor's Collateral (consisting of Securities,
Limited Liability Company Interests and Partnership Interests) has been
duly and validly issued, is fully paid and non-assessable and is subject to
no options to purchase or similar rights;
(vii) each of the Pledgor's Pledged Notes constitutes, or when executed
by the obligor thereof will constitute, the legal, valid and binding
obligation of such obligor, enforceable in accordance with its terms,
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by general equitable
principles (regardless of whether enforcement is sought in equity or at
law);
(viii) the pledge, collateral assignment and delivery to the Pledgee of
the Pledgor's Collateral consisting of Certificated Securities and Pledged
Notes pursuant to this Agreement creates a valid and perfected third
priority security interest in such Certificated Securities and Pledged
Notes (subject in priority to the Lien of the First-Lien Collateral Agent
and the Second-Lien Collateral Agent in accordance with the terms of the
Intercreditor Agreement), and the proceeds thereof, subject to no prior
Lien or encumbrance or to any agreement purporting to grant to any third
party a Lien or encumbrance on the property or assets of the Pledgor which
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would include the Securities (other than the liens and security interests
permitted under the Secured Debt Agreements then in effect) and the Pledgee
is entitled to all the rights, priorities and benefits afforded by the UCC
or other relevant law as enacted in any relevant jurisdiction to perfect
security interests in respect of such Collateral; and
(ix) "control" (as defined in Section 8-106 of the UCC) has been
obtained by the Pledgee over all of the Pledgor's Collateral consisting of
Securities (including, without limitation, Notes which are Securities) with
respect to which such "control" may be obtained pursuant to Section 8-106
of the UCC, except to the extent that the obligation of the applicable
Pledgor to provide the Pledgee with "control" of such Collateral has not
yet arisen under this Agreement; provided that in the case of the Pledgee
obtaining "control" over Collateral consisting of a Security Entitlement,
the Pledgor shall have taken all steps in its control so that the Pledgee
obtains "control" over such Security Entitlement.
(b) The Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Pledgor's Collateral
and the proceeds thereof against the claims and demands of all persons
whomsoever; and the Pledgor covenants and agrees that it will have like title to
and right to pledge any other property at any time hereafter pledged to the
Pledgee by the Pledgor as Collateral hereunder and will likewise defend the
right thereto and security interest therein of the Pledgee and the other Secured
Creditors.
(c) The Pledgor covenants and agrees that it will take no action
which would violate any of the terms of any Secured Debt Agreement.
(d) The Pledgor hereby authorizes the Third-Lien Collateral Agent to
make duplicate filings as if the Pledgor is a Transmitting Utility, or
alternatively, as if the Pledgor is a Person which is not a Transmitting
Utility.
17. LEGAL NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED
ORGANIZATION); JURISDICTION OF ORGANIZATION; LOCATION; ORGANIZATIONAL
IDENTIFICATION NUMBERS; CHANGES THERETO; ETC. The exact legal name of the
Pledgor, the type of organization of the Pledgor, whether or not the Pledgor is
a Registered Organization, the jurisdiction of organization of the Pledgor, the
Pledgor's Location, the organizational identification number (if any) of the
Pledgor is listed on Annex A hereto for the Pledgor. The Pledgor shall not
change its legal name, its type of organization, its status as a Registered
Organization (in the case of a Registered Organization), its jurisdiction of
organization, its Location, or its organizational identification number (if
any), except that any such changes shall be permitted (so long as not in
violation of the applicable requirements of the Secured Debt Agreements and so
long as same do not involve (x) a Registered Organization ceasing to constitute
same or (y) the Pledgor changing its jurisdiction of organization or Location
from the United States or a State thereof to a jurisdiction of organization or
Location, as the case may be, outside the United States or a State thereof) if
(i) it shall have given to the Third-Lien Collateral Agent not less than 15
days' prior written notice of each change to the information listed on Annex A
(as adjusted for any subsequent changes thereto previously made in accordance
with this sentence), together with a supplement to Annex A which shall correct
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all information contained therein for the Pledgor, and (ii) in connection with
the respective such change or changes, it shall have taken all action reasonably
necessary to maintain the security interests of the Third-Lien Collateral Agent
in the Collateral intended to be granted hereby at all times fully perfected and
in full force and effect; provided that such actions shall not violate the lien
priority or any other provisions contained in the Intercreditor Agreement. In
addition, to the extent that the Pledgor does not have an organizational
identification number on the date hereof and later obtains one, the Pledgor
shall promptly thereafter deliver a notification of the Third-Lien Collateral
Agent of such organizational identification number and shall take all actions
reasonably necessary to maintain the security interest of the Third-Lien
Collateral Agent in the Collateral intended to be granted hereby fully perfected
and in full force and effect; provided that such actions shall not violate the
lien priority or any other provisions contained in the Intercreditor Agreement.
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of the
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever (other than termination of this Agreement pursuant to
Section 20 hereof), including, without limitation:
(i) any renewal, extension, amendment or modification of, or addition
or supplement to or deletion from any Secured Debt Agreement (other than
this Agreement in accordance with its terms), or any other instrument or
agreement referred to therein, or any assignment or transfer of any
thereof;
(ii) any waiver, consent, extension, indulgence or other action or
inaction under or in respect of any such agreement or instrument including,
without limitation, this Agreement (other than a waiver, consent or
extension with respect to this Agreement in accordance with its terms);
(iii) any furnishing of any additional security to the Pledgee or its
assignee or any acceptance thereof or any release of any security by the
Pledgee or its assignee;
(iv) any limitation on any party's liability or obligations under any
such instrument or agreement or any invalidity or unenforceability, in
whole or in part, of any such instrument or agreement or any term thereof;
or
(v) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to
the Pledgor or any Subsidiary of the Pledgor, or any action taken with
respect to this Agreement by any trustee or receiver, or by any court, in
any such proceeding, whether or not the Pledgor shall have notice or
knowledge of any of the foregoing.
19. SALE OF COLLATERAL WITHOUT REGISTRATION. Subject to the terms of
the Intercreditor Agreement:
(a) If an Event of Default shall have occurred and be continuing and
the Pledgor shall have received from the Pledgee a written request or requests
that the Pledgor cause any registration, qualification or compliance under any
federal or state securities law or laws to be effected with respect to all or
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any part of the Collateral consisting of Securities, Limited Liability Company
Interests or Partnership Interests, the Pledgor as soon as practicable and at
its expense will use its best efforts to cause such registration to be effected
(and be kept effective) and will use its best efforts to cause such
qualification and compliance to be effected (and be kept effective) as may be so
requested and as would permit or facilitate the sale and distribution of such
Collateral consisting of Securities, Limited Liability Company Interests or
Partnership Interests, including, without limitation, registration under the
Securities Act, as then in effect (or any similar statute then in effect),
appropriate qualifications under applicable blue sky or other state securities
laws and appropriate compliance with any other governmental requirements;
provided, that the Pledgee shall furnish to the Pledgor such information
regarding the Pledgee as the Pledgor may request in writing and as shall be
required in connection with any such registration, qualification or compliance.
The Pledgor will cause the Pledgee to be kept reasonably advised in writing as
to the progress of each such registration, qualification or compliance and as to
the completion thereof, will furnish to the Pledgee such number of prospectuses,
offering circulars and other documents incident thereto as the Pledgee from time
to time may reasonably request, and will indemnify, to the extent permitted by
law, the Pledgee and all other Secured Creditors participating in the
distribution of such Collateral consisting of Securities, Limited Liability
Company Interests or Partnership Interests against all claims, losses, damages
and liabilities caused by any untrue statement (or alleged untrue statement) of
a material fact contained therein (or in any related registration statement,
notification or the like) or by any omission (or alleged omission) to state
therein (or in any related registration statement, notification or the like) a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same may have been caused by an
untrue statement or omission based upon information furnished in writing to the
Pledgor by the Pledgee or such other Secured Creditor expressly for use therein.
(b) If at any time when the Pledgee shall determine to exercise its
right to sell all or any part of the Collateral consisting of Securities,
Limited Liability Company Interests or Partnership Interests pursuant to Section
7 hereof, and such Collateral or the part thereof to be sold shall not, for any
reason whatsoever, be effectively registered under the Securities Act, as then
in effect, the Pledgee may, in its sole and absolute discretion, sell such
Collateral or part thereof by private sale in such manner and under such
circumstances as the Pledgee may deem necessary or advisable in order that such
sale may legally be effected without such registration. Without limiting the
generality of the foregoing, in any such event the Pledgee, in its sole and
absolute discretion (i) may proceed to make such private sale notwithstanding
that a registration statement for the purpose of registering such Collateral or
part thereof shall have been filed under such Securities Act, (ii) may approach
and negotiate with a single possible purchaser to effect such sale, and (iii)
may restrict such sale to a purchaser who will represent and agree that such
purchaser is purchasing for its own account, for investment, and not with a view
to the distribution or sale of such Collateral or part thereof. In the event of
any such sale, the Pledgee shall incur no responsibility or liability for
selling all or any part of the Collateral at a price which the Pledgee, in its
sole and absolute discretion, may in good βββββ ββββ reasonable under the
circumstances, notwithstanding the possibility that a substantially higher price
might be realized if the sale were deferred until the registration as aforesaid.
20. TERMINATION; RELEASE. (a) On the Termination Date (as defined
below), this Agreement shall terminate (provided that all indemnities set forth
herein including, without limitation, in Section 11 hereof shall survive any
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such termination) and the Pledgee, at the request and expense of the Pledgor,
will execute and deliver to the Pledgor a proper instrument or instruments
(including UCC termination statements) acknowledging the satisfaction and
termination of this Agreement (including, without limitation, UCC termination
statements and instruments of satisfaction, discharge and/or reconveyance), and
will duly release from the security interest created hereby and assign, transfer
and deliver to the Pledgor (without recourse and without any representation or
warranty) such of the Collateral as may be in the possession of the Pledgee and
as has not theretofore been sold or otherwise applied or released pursuant to
this Agreement, together with any moneys at the time held by the Pledgee or any
of its sub-agents hereunder and, with respect to any Collateral consisting of an
Uncertificated Security, a Partnership Interest or a Limited Liability Company
Interest (other than an Uncertificated Security, Partnership Interest or Limited
Liability Company Interest credited on the books of a Clearing Corporation or
Securities Intermediary), a termination of the agreement relating thereto
executed and delivered by the issuer of such Uncertificated Security pursuant to
Section 3.2(a)(ii) or by the respective partnership or limited liability company
pursuant to Section 3.2(a)(iv)(2). As used in this Agreement, "Termination Date"
shall mean the date upon which all Loans under the Third-Lien Credit Agreement
have been repaid in full and all other Obligations (other than indemnities
described in Section 11 hereof and described in Section 9.03 of the Third-Lien
Credit Agreement, and any other indemnities set forth in any other Security
Documents, in each case which are not then due and payable) then due and payable
have been paid in full.
(b) In the event that any part of the Collateral is sold or otherwise
disposed of (to a Person other than to a Pledgor) (x) at any time prior to the
time at which all Credit Document Obligations have been paid in full, in
connection with a sale or disposition permitted by the Third-Lien Credit
Agreement or is otherwise released at the direction of the Required Lenders (or
all the Lenders if required by Section 9.02(b) of the Third-Lien Credit
Agreement) or (y) at any time thereafter, to the extent permitted by the other
Secured Debt Agreements, and in the case of clauses (x) and (y), the proceeds of
such sale or disposition (or from such release) are applied in accordance with
the terms of the Third-Lien Credit Agreement or such other Secured Debt
Agreement, as the case may be, to the extent required to be so applied, the
Pledgee, at the request and expense of the Pledgor, will duly release from the
security interest created hereby (and will execute and deliver such
documentation, including termination or partial release statements and the like
in connection therewith) and assign, transfer and deliver to the Pledgor
(without recourse and without any representation or warranty) such of the
Collateral as is then being (or has been) so sold or released and as may be in
the possession of the Pledgee (or, in the case of Collateral held by any
sub-agent designated pursuant to Section 4 hereto, such sub-agent) and has not
theretofore been released pursuant to this Agreement.
(c) At any time that the Pledgor desires that Collateral be released
as provided in the foregoing Section 20(a) or (b), it shall deliver to the
Pledgee (and the relevant sub-agent, if any, designated pursuant to Section 4
hereof) a certificate signed by an authorized officer of the Pledgor stating
that the release of the respective Collateral is permitted pursuant to Section
20(a) or (b) hereof. If reasonably requested by the Pledgee (although the
Pledgee shall have no obligation to make any such request), the relevant Pledgor
shall furnish appropriate legal opinions (from counsel, reasonably acceptable to
the Pledgee) to the effect set forth in the immediately preceding sentence.
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(d) The Pledgee shall have no liability whatsoever to any other
Secured Creditor as the result of any release of Collateral by it in accordance
with (or which the Third-Lien Collateral Agent in the absence of gross
negligence and willful misconduct believes to be in accordance with) this
Section 20.
21. NOTICES, ETC. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be sent or delivered by mail, telegraph, telex, telecopy, cable or
courier service and all such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by courier, be effective
when deposited in the mails, delivered to the telegraph company, cable company
or overnight courier, as the case may be, or sent by telex or telecopier, except
that notices and communications to the Pledgee or the Pledgor shall not be
effective until received by the Pledgee or the Pledgor, as the case may be. All
notices and other communications shall be in writing and addressed as follows:
(a) if to the Pledgor, at its address set forth opposite its
signature below;
(b) if to the Pledgee, at:
HSBC Bank USA, National Association
Issuer Services
βββ βββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Attention: βββββ β. ββββββ
Telephone No.: (βββ) βββ-ββββ
Telecopier No.: (βββ) βββ-ββββ
(c) if to any Secured Creditor, either (x) to the Third-Lien
Administrative Agent, at the address of the Third-Lien Administrative Agent
specified in the Third-Lien Credit Agreement, or (y) at such address as
such Secured Creditor shall have specified in the Third-Lien Credit
Agreement;
or at such other address or addressed to such other individual as shall have
been furnished in writing by any Person described above to the party required to
give notice hereunder.
22. WAIVER; AMENDMENT. Except as contemplated by the Intercreditor
Agreement and as provided in Sections 30 and 32 hereof, none of the terms and
conditions of this Agreement may be changed, waived, modified or varied in any
manner whatsoever except in accordance with the requirements specified in the
Security Agreement.
23. SUCCESSORS AND ASSIGNS. This Agreement shall create a continuing
security interest in the Collateral and shall (i) remain in full force and
effect, subject to release and/or termination as set forth in Section 20, (ii)
be binding upon the Pledgor, its successors and assigns; provided, however, that
the Pledgor shall not assign any of its rights or obligations hereunder without
the prior written consent of the Pledgee (with the prior written consent of the
Required Lenders), and (iii) inure, together with the rights and remedies of the
Pledgee hereunder, to the benefit of the Pledgee, the other Secured Creditors
and their respective successors, transferees and assigns. All agreements,
statements, representations and warranties made by the Pledgor herein or in any
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certificate or other instrument delivered by the Pledgor or on its behalf under
this Agreement shall be considered to have been relied upon by the Secured
Creditors and shall survive the execution and delivery of this Agreement and the
other Secured Debt Agreements regardless of any investigation made by the
Secured Creditors or on their behalf.
24. HEADINGS DESCRIPTIVE. The headings of the several Sections of
this Agreement are inserted for convenience only and shall not in any way affect
the meaning or construction of any provision of this Agreement.
25. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF
THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN
EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH PLEDGOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS. EACH PLEDGOR HEREBY FURTHER IRREVOCABLY
WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH
PLEDGOR, AND AGREES NOT TO PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE
AFORESAID COURTS THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER SUCH
PLEDGOR. EACH PLEDGOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT
OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
ANY SUCH PLEDGOR AT ITS ADDRESS FOR NOTICES AS PROVIDED IN SECTION 21 ABOVE,
SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH PLEDGOR HEREBY
IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING
COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SUCH SERVICE OF
PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE
RIGHT OF THE PLEDGEE UNDER THIS AGREEMENT, OR ANY SECURED CREDITOR, TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST ANY PLEDGOR IN ANY OTHER JURISDICTION.
(b) EACH PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR
PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY
-24-
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
26. PLEDGOR'S DUTIES. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that the Pledgor shall remain liable
to perform all of the obligations, if any, assumed by it with respect to the
Collateral and the Pledgee shall not have any obligations or liabilities with
respect to any Collateral by reason of or arising out of this Agreement, except
for the safekeeping of Collateral actually in Pledgor's possession, nor shall
the Pledgee be required or obligated in any manner to perform or fulfill any of
the obligations of the Pledgor under or with respect to any Collateral.
27. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Pledgor and the
Pledgee.
28. SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or 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.
29. RECOURSE. This Agreement is made with full recourse to the
Pledgor and pursuant to and upon all the representations, warranties, covenants
and agreements on the part of the Pledgor contained herein and in the other
Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
30. LIMITED OBLIGATIONS. It is the desire and intent of the Pledgor
and the Secured Creditors that this Agreement shall be enforced against the
Pledgor to the fullest extent permissible under the laws applied in each
jurisdiction in which enforcement is sought.
31. LIMITED LIABILITY. Notwithstanding anything to the contrary
herein or in any other Secured Debt Agreement, the Third-Lien Collateral Agent
and Third-Lien Administrative Agent shall have no liability whatsoever to any
Person party to any Secured Debt Agreement or to any other Person (including,
without limitation, the Lenders) for failing to perfect or failing to maintain
perfection on any of the security interests granted hereby (including without
limitation, filing any financing statements or continuation statements).
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32. COMPLIANCE WITH LAWS. The Pledgor agrees to use commercially
reasonable efforts, including taking any action which the Pledgee and the
Secured Creditors may reasonably request, to assist in obtaining any required
consent or approval of the Federal Communications Commission (the "FCC") or any
other governmental or other authority for any sale or transfer of control of the
Collateral contemplated by the security documents pursuant to the exercise of
the rights and remedies of the Pledgee and the Secured Creditors thereunder,
including, upon request, to prepare, sign and file with the FCC the assignor's
or transferor's and licensee's portions of any applications required under the
rules of the FCC for consent to the assignment or transfer of control of any FCC
construction permit, license or other authorization.
The Pledgor further consents, subject to obtaining any necessary
approvals, to the assignment or transfer of control of any FCC or other
governmental construction permit, license, or other authorization to operate, to
a receiver, trustee, or similar official or to any purchaser of the Collateral
pursuant to any public or private sale, judicial sale, foreclosure, or exercise
of other remedies available to Pledgee and the Secured Creditors as permitted by
applicable law. Notwithstanding anything herein which may be construed to the
contrary, no action shall be taken by any of the Third-Lien Collateral Agent and
the Secured Creditors with respect to any license of the FCC unless and until
any applicable rules and regulations thereunder, requiring the consent to or
approval of such action by the FCC or any governmental or other authority, have
been satisfied.
33. CONFLICTS; INTERCREDITOR AGREEMENT. Notwithstanding anything
herein to the contrary, the lien and security interest granted to the Third-Lien
Collateral Agent pursuant to this Agreement and the exercise of any right or
remedy by the Third-Lien Collateral Agent hereunder are subject to the
provisions of the Intercreditor Agreement. In the event of any conflict between
the terms of the Intercreditor Agreement and this Agreement, the terms of the
Intercreditor Agreement shall govern and control.
* * * *
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IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
Address: RCN CORPORATION, as a Pledgor
βββ ββββββββ ββββββ
βββββββββ, ββ βββββ By: /s/ βββββββ β. βββββ
Tel: (βββ) βββ-ββββ ---------------------------------
Fax: (βββ) βββ-ββββ Name: βββββββ β. βββββ
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial
Officer
Accepted and Agreed to: Address:
HSBC BANK USA, NATIONAL ASSOCIATION, Issuer Services:
as Third-Lien Collateral Agent and Telephone: (βββ) βββ-ββββ
Agent and Pledgee Telecopier: (βββ) βββ-ββββ
Attention: βββββ β. ββββββ
Mailing Address:
By: /s/ βββββ β. ββββββ βββ βββββ ββββββ
---------------------------------- βββ ββββ, βββ ββββ βββββ
Name: βββββ β. ββββββ
Title: Vice President Delivery Address:
ββ ββββ ββββ ββββββ, ββββ βββββ
βββ ββββ, βββ ββββ βββββ
Table of Contents
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Page
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1. SECURITY FOR OBLIGATIONS .............................................. 2
2. DEFINITIONS ........................................................... 3
3. PLEDGE OF SECURITIES, ETC. ............................................ 6
3.1 Pledge .......................................................... 6
3.2 Procedures ...................................................... 9
3.3 Subsequently Acquired Collateral ................................ 11
3.4 Transfer Taxes .................................................. 11
3.5 Certain Representations and Warranties Regarding the Collateral . 11
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. ......................... 12
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT OR SPECIFIED DEFAULT .......... 12
6. DIVIDENDS AND OTHER DISTRIBUTIONS ..................................... 12
7. REMEDIES IN CASE OF AN EVENT OF DEFAULT OR A SPECIFIED DEFAULT ........ 13
8. REMEDIES, CUMULATIVE, ETC. ............................................ 14
9. APPLICATION OF PROCEEDS ............................................... 14
10. PURCHASERS OF COLLATERAL .............................................. 15
11. INDEMNITY ............................................................. 15
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER ............. 15
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY ................................. 16
14. THE PLEDGEE AS SECOND-LIEN COLLATERAL AGENT ........................... 17
15. TRANSFER BY THE PLEDGORS .............................................. 17
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS ............. 17
17. LEGAL NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED
ORGANIZATION); JURISDICTION OF ORGANIZATION; LOCATION;
ORGANIZATIONAL IDENTIFICATION NUMBERS; CHANGES THERETO; ETC. .......... 19
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. ................................... 20
i
Table of Contents
-----------------
(continued)
Page
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19. SALE OF COLLATERAL WITHOUT REGISTRATION ................................ 20
20. TERMINATION; RELEASE ................................................... 21
21. NOTICES, ETC. .......................................................... 23
22. WAIVER; AMENDMENT ...................................................... 23
23. SUCCESSORS AND ASSIGNS ................................................. 23
24. HEADINGS DESCRIPTIVE ................................................... 24
25. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE;
WAIVER OF JURY TRIAL ................................................... 24
26. PLEDGOR'S DUTIES ....................................................... 25
27. COUNTERPARTS ........................................................... 25
28. SEVERABILITY ........................................................... 25
29. RECOURSE ............................................................... 25
30. LIMITED OBLIGATIONS .................................................... 25
31. COMPLIANCE WITH LAWS ................................................... 26
32. CONFLICTS; INTERCREDITOR AGREEMENT ..................................... 26
ANNEX A - SCHEDULE OF LEGAL NAMES, TYPE OF ORGANIZATION,
JURISDICTION OF ORGANIZATION, LOCATION AND
ORGANIZATIONAL IDENTIFICATION NUMBERS
ANNEX B - SCHEDULE OF SUBSIDIARIES
ANNEX C - SCHEDULE OF STOCK
ANNEX D - SCHEDULE OF NOTES
ANNEX E - SCHEDULE OF LIMITED LIABILITY COMPANY INTERESTS
ANNEX F - SCHEDULE OF PARTNERSHIP INTERESTS
ANNEX G - SCHEDULE OF CHIEF EXECUTIVE OFFICES
ANNEX H - FORM OF AGREEMENT REGARDING UNCERTIFICATED
SECURITIES, LIMITED LIABILITY COMPANY INTERESTS
AND PARTNERSHIP INTERESTS
ii