Exhibit 10.4
FORM OF AMENDED AND RESTATED PLEDGE AGREEMENT
This AMENDED AND RESTATED PLEDGE AGREEMENT (this "Pledge Agreement"),
dated as of February ____, 1997 but effective as of December 18, 1996, is
among XXXXX CABLE MANAGEMENT COMPANY, INC., a Connecticut corporation (the
"Class A Pledgor"), MEDIA/COMMUNICATIONS PARTNERS LIMITED PARTNERSHIP, a
Delaware limited partnership ("M/C Partners"), CHESTNUT STREET PARTNERS,
INC., a Massachusetts corporation ("Chestnut Street Partners"), MILK STREET
PARTNERS, INC., a Massachusetts corporation ("Milk Street Partners"), TA
INVESTORS, a Massachusetts general partnership ("TA Investors"), NORTHEAST
VENTURES II, a Connecticut general partnership ("Northeast Ventures II"),
ALLSTATE INSURANCE COMPANY, an Illinois insurance company ("Allstate") (M/C
Partners, Chestnut Street Partners, Milk Street Partners, TA Investors and
Allstate sometimes hereinafter are referred to individually as a "Class B
Pledgor" and collectively as the "Class B Pledgors"), FLEET NATIONAL BANK, a
national banking association ("Fleet"), not in its individual capacity, but
as (i) trustee (Fleet, in such capacity, hereinafter is referred to as
"Trustee") for the holders (the "Holders") of all 15% Senior Subordinated
Pay-in-Kind Debentures due March 18, 2002 issued pursuant to that certain
Indenture of even date herewith between Xxxxx Cable Communications, Inc., as
Issuer, and Trustee, and (ii) depositary for the Class C Stock issued for the
benefit of the Holders pursuant to that certain Deposit Agreement dated as of
December 18, 1996 among Xxxxx Cable Communications, Inc., as Issuer,
Depositary and Trustee (Fleet, in such capacity, hereinafter is referred to
as "Depositary") (Fleet, in its separate capacities as Trustee and
Depositary, sometimes hereinafter is referred to as the "Class C Pledgor,"
and the Class A Pledgor, the Class B Pledgors and the Class C Pledgor
sometimes hereinafter are referred to individually as a "Pledgor" and
collectively as "Pledgors"), and FINOVA CAPITAL CORPORATION, a Delaware
corporation ("Pledgee"), in its individual capacity and as agent for all
Lenders (as defined in Section 1 below).
Preliminary Statement:
X. Xxxxx Cable Communications, Inc., a Texas corporation ("Borrower"),
and Pledgee have entered into a Loan Agreement dated as of December 18, 1996
(as the same may be amended, modified, supplemented or restated from time to
time, the "Loan Agreement"), pursuant to which Lenders made loans and other
financial accommodations (collectively, the "Loans") to Borrower, subject to
the terms and conditions set forth in the Loan Agreement.
B. Each Pledgor owns the number of shares of the issued and
outstanding capital stock of Borrower set forth opposite such Pledgor's name
on Exhibit A attached hereto and, accordingly, each Pledgor has a direct
financial interest in Pledgee making the Loans.
C. As a condition precedent to the obligations of Lenders to disburse
the initial Loans, Trustee, the Class A Pledgor, the Class B Pledgors and
Pledgee entered into that certain Pledge Agreement dated as of December 18,
1996 (the "Original Pledge Agreement").
D. The parties to the Original Pledge Agreement have agreed to execute
and deliver this Pledge Agreement to Pledgee in substitution of the Original
Pledge Agreement so that Fleet may execute this Pledge Agreement in its
separate capacities as Trustee and Depositary.
NOW, THEREFORE, in order to induce Lenders to continue making the Loans,
and for other good and valuable consideration, the receipt and sufficiency of
which hereby are acknowledged, each Pledgor and Pledgee hereby agree as
follows:
1. Definitions. All capitalized terms used but not elsewhere defined
in this Pledge Agreement shall have the respective meanings ascribed to such
terms in the Loan Agreement. The following terms shall have the following
meanings in this Pledge Agreement:
Collateral: the Securities and all dividends, distributions,
other amounts, additional securities of Borrower, or any successor in
interest to Borrower, and other Property to which any Pledgor or
any successor in interest to any Pledgor (with or without additional
consideration) is or becomes entitled by virtue of the ownership by
such Pledgor of any of the Securities or as the result of any
corporate reorganization, merger, consolidation, stock split, stock
dividend, distribution, conversion, preemptive right or otherwise,
and the proceeds thereof.
Securities: the shares of the issued and outstanding capital
stock of Borrower described in Exhibit A hereto together with duly
executed assignments separate from certificate satisfactory to
Pledgee attached thereto.
2. Pledge of Collateral. To secure payment and performance of
Borrower's Obligations, each Pledgor hereby pledges, assigns and grants to
Pledgee a security interest in all of such Pledgor's right, title and
interest in and to (i) the Securities owned by such Pledgor and (ii) all
other items of Collateral now owned or hereafter acquired by such Pledgor.
3. Representations, Warranties and Covenants. Each Pledgor hereby
represents, warrants and covenants to Pledgee that with respect to the
Collateral pledged by such Pledgor to Pledgee on the date hereof, (i) such
Collateral represents 100% of the issued and outstanding capital stock and
warrants, options and other rights to purchase or acquire capital stock of
Borrower owned by such Pledgor, (ii) in the case of the Class C Pledgor, such
Pledgor is the legal owner of such Collateral and, in the case of the Class A
Pledgor and the Class B Pledgors, such Pledgor is the legal and beneficial,
owner of such Collateral, (iii) except for the first Lien on the Collateral
granted to Pledgee hereby, such Pledgor has not created or granted any other
Lien on the Collateral, (iv) to the best of its knowledge, no authorization,
approval or other action by, or notice to or filing with, any Governmental
Body by such Pledgor is required for the pledge by such Pledgor of such
Collateral pursuant to the terms of this Pledge Agreement, and (v) until all
of Borrower's Obligations have been paid and performed in full, such Pledgor
will not create or permit to exist any Lien upon or with respect to such
Collateral, except for the Lien thereon granted to Pledgee by this Pledge
Agreement. Each Pledgor further represents and warrants to Pledgee that the
location of such Pledgor's chief executive office and the address and
telecopy number of such Pledgor for notice purposes is set forth on Exhibit B
hereto.
4. Additional Securities; Stock Splits; Stock Dividends.
4.1 Additional Securities. Each Pledgor agrees that in the event
that such Pledgor, by virtue of the ownership by such Pledgor of its
portion of the Collateral, now is, or hereafter becomes, entitled (with or
without additional consideration) to other or additional securities of
Borrower or any successor thereto as the result of any corporate
reorganization, merger, consolidation, stock split, stock dividend,
conversion or preemptive right or otherwise, such Pledgor shall:
4.1.1 Delivery. Cause the issuer of such additional securities
to deliver to Pledgee all certificates and other documents, if any,
evidencing the ownership by such Pledgor of such additional securities
and hereby authorizes and empowers Pledgee to demand the same from
such issuer, and agrees if such certificates and other documents are
delivered to such Pledgor, to take possession thereof in trust for
Pledgee;
4.1.2 Assignments Separate From Certificate; UCC Financing
Statements. Deliver to Pledgee (i) an assignment separate from
certificate with respect to such securities, executed in blank by such
Pledgor, and (ii) such UCC financing statements executed by such
Pledgor as Pledgee reasonably may request to perfect Pledgee's
security interest in such additional securities;
4.1.3 Representations and Warranties. Deliver to Pledgee a
certificate, executed by such Pledgor and dated the date such
additional securities are issued to such Pledgor, as to the truth and
correctness on such date of the representations and warranties set
forth in Section 3 hereof; and
4.1.4 Additional Documents. Deliver to Pledgee such other
certificates, forms and other instruments as Pledgee reasonably may
request in connection with the pledge of such additional securities to
Pledgor.
4.2 Additional Collateral. Each Pledgor agrees that such additional
securities shall constitute a portion of the Collateral and be subject to
this Pledge Agreement in the same manner and to the same extent as the
Securities pledged hereby to Pledgee on the date hereof.
5. Voting Power; Distributions. Unless and until an Event of Default
shall have occurred and be continuing, Pledgee shall have delivered notice to
each Pledgor of Pledgee's intention to exercise any of its rights under
Section 6.2 hereof and Borrower's Obligations have been accelerated, and
thereafter until any required consent of the FCC and/or other applicable
Governmental Body is obtained, each Pledgor shall be entitled to exercise all
voting powers in all corporate matters pertaining to the Collateral or
otherwise, for any purpose not inconsistent with, or in violation of, the
provisions of any of the Loan Instruments. Except as otherwise provided in
the Loan Agreement, unless and until all of Borrower's Obligations have been
performed and paid in full, no Pledgor shall be entitled to receive any
dividends or distributions with respect to any portion of the Collateral. If
any such dividends or distributions are received by any Pledgor
in violation of the terms of this Section 5, such dividends or distributions
shall be (i) held in trust by such Pledgor on behalf of Pledgee, (ii) turned
over to Pledgee by such Pledgor immediately upon receipt thereof and (iii)
deemed to constitute a portion of the Collateral pledged by such Pledgor to
Pledgee hereunder.
6. Default and Remedies.
6.1 Occurrence. The occurrence of an Event of Default under the
Loan Agreement shall constitute an Event of Default hereunder.
6.2 Remedies. If an Event of Default shall occur and be continuing
and Borrower's Obligations are accelerated, Pledgee, at its option and upon
notice to each Pledgor of its intention to do so, may:
6.2.1 Registration. After any required consent of the FCC
and/or any other applicable Governmental Body is obtained, cause the
Collateral to be registered in its name or in the name of its nominee;
6.2.2 Voting Power. After any required consent of the FCC
and/or other applicable Governmental Body is obtained, exercise all
voting powers pertaining to the Collateral and otherwise act with
respect thereto as though Pledgee were the owner thereof;
6.2.3 Distributions. Receive all dividends and other
distributions of any kind whatsoever on all or any part of the
Collateral;
6.2.4 Collection; Conversion. Exercise any and all rights of
collection, conversion or exchange, and any and all other rights,
privileges, options or powers of any Pledgor pertaining or relating to
the Collateral;
6.2.5 Sale of Collateral. To the extent permitted by
applicable law and subject to any applicable state or federal
securities laws, sell, assign and deliver the whole, or from time to
time, any part of the Collateral at any broker's board or at any
private sale or at public auction, with or without demand for
performance or advertisement of the time or place of sale or
adjournment thereof or otherwise, and free from any right of
redemption (all of which hereby expressly are waived by each Pledgor)
for cash, for credit or for other property, for immediate or future
delivery, and for such price and on such terms as Pledgee in its sole
discretion may determine; and
6.2.6 Other Remedies. To the extent permitted by applicable
law exercise any other remedy specifically granted under this Pledge
Agreement or now or hereafter existing in equity, or at law, by
virtue of statute or otherwise.
With respect to the actions described in each of subsections 6.2.2 and
6.2.4 above, each Pledgor hereby irrevocably constitutes and appoints
Pledgee its proxy and attorney-in-fact
with full power of substitution and acknowledges that the constitution
and appointment of such proxy and attorney-in-fact are coupled with an
interest and are irrevocable.
6.3 Agreement to Sell Collateral. For the purposes of this Section 6,
to the extent permitted by applicable law an agreement to sell all or any
part of the Collateral shall be treated as a sale thereof and Pledgee shall
be free to carry out such sale pursuant to such agreement, and no Pledgor
shall be entitled to the return of any of the same subject thereto,
notwithstanding the fact that after Pledgee shall have entered into such an
agreement, all Events of Default hereunder may have been remedied or all of
Borrower's Obligations may have been paid and/or performed in full.
6.4 Pledgee May Bid. At any sale made pursuant to Section 6.2 above,
to the extent permitted by applicable law Pledgee may bid for and purchase,
free from any right of equity or redemption on the part of any Pledgor (the
same hereby being waived and released by each Pledgor), any part or all of
the Collateral that is offered for sale, and Pledgee, upon compliance with
the terms of sale, may hold, retain and dispose of such Collateral without
further accountability therefor.
6.5 Proceeds of Sale. The proceeds of any sale of the whole or any
part of the Collateral and any other monies at the time held by Pledgee
under the provisions of this Pledge Agreement shall be applied in
accordance with the terms of Section 8.4 of the Loan Agreement.
6.6 No Duty of Pledgee. Pledgee shall not have any duty to exercise
any of the rights, privileges, options or powers or to sell or otherwise
realize upon any of the Collateral, as hereinbefore authorized, and Pledgee
shall not be responsible for any failure to do so or delay in so doing.
6.7 Effect of Sale. Any sale of all or any portion of the Collateral
pursuant to Section 6.2 above shall operate to divest all right, title and
interest of each Pledgor to the Collateral which is the subject of any such
sale.
6.8 Securities Act. Each Pledgor acknowledges that Pledgee may be
unable to effect a public sale of all or a part of the Collateral by reason
of certain prohibitions contained in the Securities Act, or that it may be
able to do so only after delay which might adversely affect the value that
might be realized upon the sale of the Collateral. Accordingly, each
Pledgor agrees that Pledgee, without the necessity of attempting to cause
any registration of the Collateral to be effected under the Securities Act,
may sell the Collateral or any part thereof in one or more private sales to
a restricted group of purchasers who may be required to agree, among other
things, that they are acquiring the Collateral for their own account, for
investment purposes only, and not with a view toward the distribution or
resale thereof. Each Pledgor agrees that any such private sale may be at
prices or on terms less favorable to the owner of the Collateral sold than
would be the case if such Collateral was sold at public sale, and that any
such private sale shall not be deemed not to have been made in a
commercially reasonable manner by virtue of such sale having been a private
sale.
6.9 Applications to Governmental Bodies. Upon the occurrence and
during the continuance of an Event of Default, each Pledgor, upon the
request of Pledgee and at Borrower's sole cost and expense, shall take any
action that Pledgee reasonably may request in order to enable Pledgee to
obtain and enjoy the full rights and benefits granted to Pledgee hereunder,
including, without limitation, all rights necessary or desirable to obtain,
use, sell or assign control of the Licenses and Franchises of Borrower and
the other Collateral hereunder, and to exercise all remedies available to
Pledgee hereunder and under applicable law. Without limiting the generality
of the foregoing, at the request of Pledgee at any time following the
occurrence and during the continuance of an Event of Default, each Pledgor,
at Borrower's sole cost and expense, shall assist Pledgee in obtaining any
required approval of any Governmental Body (including the FCC and any
Franchisor) to the transfer of control of the Licenses and Franchises of
Borrower to Pledgee or any other Person by preparing, signing and filing
with the appropriate Governmental Body any application or document and
taking all other actions deemed necessary or appropriate by Pledgee (i) for
consent to the transfer of control of any such Licenses and Franchises
necessary or appropriate under applicable Cable Laws, (ii) for approval
of any sale, assignment or transfer of control of any such Licenses and
Franchises and (iii) to enable Pledgee or its designee or any receiver,
trustee or similar official or purchaser to obtain from such Governmental
Body or any other Person any required authority necessary to operate the
Cable Business of Borrower. To the extent permitted by law, during any
period in which an Event of Default has occurred and is continuing, each
Pledgor hereby irrevocably appoints Pledgee its attorney-in-fact with full
power of substitution to execute such applications and documents and take
such actions on behalf of such Pledgor. Each Pledgor acknowledges that the
appointment of Pledgee as such attorney-in-fact is coupled with an interest
and is irrevocable until all of Borrower's Obligations are paid and
performed in full.
6.10 Transfer of Control to Other Persons. Each Pledgor acknowledges
and agrees that, upon the occurrence and during the continuance of an Event
of Default, a transfer of control of the Collateral or an assignment of
any License or Franchise of Borrower may be made to a receiver, trustee or
similar official or to any purchaser of all or any part of the Collateral
hereunder, pursuant to any court order, public or private sale, judicial
sale, foreclosure or the exercise of any other remedies available to
Pledgee hereunder or under applicable law.
6.11 Notice. Pledgee shall give not less than 10 Business Days' prior
written notice to Pledgors of any sale pursuant to this Section 6. Each
Pledgor hereby agrees that such notice is commercially reasonable.
7. Pledgee's Obligations; Custodial Agreement; Performance Rights;
Pledge Does Not Make Pledgee a Shareholder. Pledgee shall not have any duty
to protect, preserve or enforce rights against the Collateral other than a
duty of reasonable custodial care of any such Collateral in its possession,
it being understood that Pledgee shall (i) have no responsibility for (A)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relating to the Collateral, whether or
not Pledgee has or is deemed to have knowledge of such matters, (B) taking
any necessary steps to preserve rights against any parties with respect to
the Collateral or (C) making any capital contributions or other payments on
behalf
of any Pledgor and (ii) not be deemed to be a shareholder of Borrower unless
Pledgee purchases or otherwise retains the applicable portion of the
Collateral in connection with a foreclosure.
8. Termination of Pledge Agreement. Upon the payment and performance
in full of all Borrower's Obligations, Pledgee shall deliver to each Pledgor
the Collateral in its possession and this Pledge Agreement thereupon shall
terminate, and Pledgee shall execute, at Pledgors' expense, such instruments
or other documents including, without limitation, termination statements, as
shall be necessary to evidence such termination.
9. Miscellaneous.
9.1 Exercise of Rights. Each Pledgor unconditionally agrees that if
an Event of Default has occurred and is continuing, Pledgee may exercise
its rights and remedies hereunder prior to, concurrently with or subsequent
to the exercise by Pledgee of its rights and remedies against such Pledgor
or any other Person under any of the Loan Instruments, at law or in equity,
or otherwise. The obligations of each Pledgor under this Pledge Agreement
shall be absolute and unconditional and shall remain in full force and
effect without regard to, and shall not be released or discharged or in any
way affected by:
9.1.1 Amendments. Any amendment or modification of or
supplement to any of the Loan Instruments;
9.1.2 Exercise or Non-Exercise of Rights. Any exercise or
non-exercise of any right or remedy under any of the Loan Instruments,
or the granting of any postponements or extensions for time of payment
or other indulgences to such Pledgor or any other Person, or the
settlement or adjustment of any claim or the release or discharge or
substitution of any Person primarily or secondarily liable with
respect to any of the Loan Instruments;
9.1.3 Bankruptcy. The institution of any bankruptcy,
insolvency, reorganization, debt arrangement, readjustment,
composition, receivership or liquidation proceedings by or against
such Pledgor, Borrower or any other Person; or
9.1.4 Other Defenses. To the extent permitted by applicable
law, any other circumstance which otherwise might constitute a defense
to, or a discharge of, such Pledgor with respect to Borrower's
Obligations.
9.2 Rights Cumulative. Each and every right, remedy and power
granted to Pledgee hereunder shall be cumulative and in addition to any
other right, remedy or power specifically granted herein or now or
hereafter existing in equity, at law, by virtue of statute or otherwise and
may be exercised by Pledgee, from time to time, concurrently or
independently and as often and in such order as Pledgee may deem expedient.
Any failure or delay on the part of Pledgee in exercising any such right,
remedy or power, or abandonment or discontinuance of steps to enforce the
same, shall not operate as a waiver thereof or affect the right of Pledgee
thereafter to exercise the same, and any single or partial exercise of any
such right, remedy or power shall not preclude any other or further
exercise thereof or the exercise of any other right, remedy or power, and
no such failure, delay, abandonment or single or partial exercise of rights
of Pledgee hereunder shall be deemed to establish a custom or course of
dealing or performance among the parties hereto.
9.3 Modification. Any modification or waiver of any provision of
this Pledge Agreement, or any consent to any departure by any Pledgor
therefrom, shall not be effective in any event unless the same is in
writing and signed by Pledgee and each Pledgor and then such modification,
waiver or consent shall be effective only in the specific instance and for
the specific purpose given. Any notice to or demand on any Pledgor in any
event not specifically required of Pledgee hereunder shall not entitle such
Pledgor to any other or further notice or demand in the same, similar or
other circumstances unless specifically required hereunder.
9.4 Further Assurances. Each Pledgor agrees that at any time, and
from time to time, after the execution and delivery of this Pledge
Agreement, such Pledgor, upon the request of Pledgee and at the expense of
Borrower, promptly will execute and deliver such further documents and do
such further acts and things as Pledgee reasonably may request in order to
effect fully the purposes of this Pledge Agreement and to subject to the
security interest created hereby any Collateral intended by the provisions
hereof to be covered hereby. Each Pledgor and Pledgee acknowledge their
intent that, upon the occurrence of an Event of Default, Pledgee shall
receive, to the fullest extent permitted by law and governmental policy
(including, without limitation, the rules, regulations and policies of the
FCC), all rights necessary or desirable to obtain, use or sell the
Collateral, and to exercise all remedies available to Pledgee under the
Loan Instruments, the Uniform Commercial Code or other applicable law. Each
Pledgor and Pledgee further acknowledge and agree that, in the event of
changes in law or governmental policy occurring subsequent to the date
hereof that affect in any manner Pledgee's rights of access to, or use or
sale of, the Collateral, or the procedures necessary to enable Pledgee to
obtain such rights of access, use or sale, Pledgee and such Pledgor shall
amend this Pledge Agreement, in such manner as Pledgee reasonably shall
request, in order to provide Pledgee such rights to the greatest extent
possible consistent with then applicable law and governmental policy.
9.5 Preservation of Collateral. Each Pledgor agrees that it will
warrant, preserve, maintain and defend, at the sole cost and expense of
Borrower, the right, title and interest of Pledgee in and to the Collateral
and all right, title and interest represented thereby against all claims,
charges and demands of all Persons whomsoever.
9.6 Notices. All notices and communications under this Pledge
Agreement shall be delivered and be deemed received as set forth in Section
12.1 of the Loan Agreement, with all notices to any Pledgor to be sent to
the address or telecopy number of such Pledgor set forth on Exhibit B
hereto.
9.7 GOVERNING LAW. THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY THE
LAWS AND DECISIONS OF THE STATE OF NEW YORK, EXCEPT THAT WITH REGARD TO
PERFECTION AND THE EFFECT OF PERFECTION AND NONPERFECTION OF SECURITY
INTERESTS THE LAW
OF THE STATE APPLICABLE UNDER THE UCC SHALL APPLY. FOR THE PURPOSES OF
THIS SECTION 9.7, THIS PLEDGE AGREEMENT SHALL BE DEEMED TO BE PERFORMED AND
MADE IN THE STATE OF NEW YORK.
9.8 Severability. In the event that any provision of this Pledge
Agreement is deemed to be invalid by reason of the operation of any law,
including, but not limited to, the rules and regulations and policies of
the FCC, or by reason of the interpretation placed thereon by any court,
the FCC or any other Governmental Body, this Pledge Agreement shall be
construed as not containing such provision and any and all other provisions
hereof which otherwise are lawful and valid shall remain in full force and
effect.
9.9 Successors and Assigns. This Pledge Agreement shall inure to the
benefit of the successors and assigns of Pledgee and shall be binding upon
the successors and assigns of each Pledgor.
9.10 Counterparts. This Pledge Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all
of which when taken together shall be deemed to be one and the same
instrument.
10. JURISDICTION AND VENUE. EACH PLEDGOR HEREBY AGREES THAT ALL
ACTIONS OR PROCEEDINGS INITIATED BY SUCH PLEDGOR IN ANY CAPACITY AND ARISING
DIRECTLY OR INDIRECTLY OUT OF THIS PLEDGE AGREEMENT SHALL BE LITIGATED IN THE
SUPERIOR COURT OF MARICOPA COUNTY, OR THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF ARIZONA, OR, IF PLEDGEE INITIATES SUCH ACTION, IN ADDITION TO
THE FOREGOING COURTS, ANY COURT IN WHICH PLEDGEE SHALL INITIATE OR TO WHICH
PLEDGEE SHALL REMOVE SUCH ACTION, TO THE EXTENT SUCH COURT HAS JURISDICTION.
EACH PLEDGOR HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN OR REMOVED BY PLEDGEE
TO ANY OF SUCH COURTS, AND HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS AND
COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED THEREIN, AND AGREES THAT SERVICE
OF SUCH SUMMONS AND COMPLAINT OR OTHER PROCESS OR PAPERS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PLEDGOR AT THE ADDRESS OF SUCH
PLEDGOR LISTED ON EXHIBIT B. EACH PLEDGOR WAIVES ANY CLAIM THAT MARICOPA
COUNTY, ARIZONA OR THE DISTRICT OF ARIZONA IS AN INCONVENIENT FORUM OR AN
IMPROPER FORUM BASED ON LACK OF VENUE. SHOULD ANY PLEDGOR, AFTER BEING SO
SERVED, FAIL TO APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS
SO SERVED WITHIN THE NUMBER OF DAYS PRESCRIBED BY LAW AFTER THE MAILING
THEREOF, SUCH PLEDGOR SHALL BE DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT
MAY BE ENTERED BY PLEDGEE AGAINST SUCH PLEDGOR AS DEMANDED OR PRAYED FOR IN
SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE EXCLUSIVE CHOICE OF FORUM
FOR EACH PLEDGOR SET FORTH IN THIS SECTION 10 SHALL NOT BE DEEMED TO PRECLUDE
THE ENFORCEMENT, BY PLEDGEE, OF ANY JUDGMENT
OBTAINED IN ANY OTHER FORUM OR THE TAKING, BY PLEDGEE, OF ANY ACTION TO
ENFORCE THE SAME IN ANY OTHER APPROPRIATE JURISDICTION, AND EACH PLEDGOR
HEREBY WAIVES THE RIGHT TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
11. WAIVER OR RIGHT TO JURY TRIAL. PLEDGEE AND EACH PLEDGOR
ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER ANY OF THE
LOAN INSTRUMENTS OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED THEREBY
WOULD BE BASED UPON DIFFICULT AND COMPLEX ISSUES AND, THEREFORE, THE PARTIES
AGREE THAT ANY LAWSUIT ARISING OUT OF ANY SUCH CONTROVERSY WILL BE TRIED IN A
COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
12. Pledgee's Right to Specific Performance. Each Pledgor acknowledges
that FCC and Franchisor authorization is integral to Pledgee's realization of
the value of all of the Collateral, that the Licenses and Franchises of
Borrower are unique assets, that there is no adequate remedy at law for
failure by any Pledgor to comply with the provisions of Section 6.9 and that
such failure would not be adequately compensable in monetary damages;
therefore, each Pledgor agrees that, in addition to all other remedies
available at law or in equity, Pledgee shall be entitled to obtain decree(s)
of specific performance entitling it to temporary restraining order(s),
preliminary injunction(s), or permanent injunction(s) to specifically enforce
and require specific performance of the provisions of Section 6.9. Each
Pledgor agrees that notice shall be adequate for the entry of a decree of
specific performance with respect to any such matter (i) in the case of a
temporary restraining order, upon twenty four (24) hours' prior notice of the
hearing thereof and (ii) in the case of any other proceeding, upon three (3)
days' prior notice of the hearing thereof, and hereby waives all requirements
and demands that Pledgee give any greater notice of such hearings or post a
bond or other surety arrangement in connection with the issuance of such
decree.
13. FCC and Franchisor Approval. Notwithstanding anything to the
contrary contained herein, Pledgee shall not take any action, including, but
not limited to, the operation of the business of Borrower, that would
constitute or result in the transfer or assignment of any License or
Franchise issued to or held by Borrower, or a transfer of control over any
such License or Franchise, whether de jure or de facto, if such assignment or
transfer would require under then existing law the prior approval of and/or
any notice to the FCC or any Franchisor, without such party first having
notified the FCC or such Franchisor of any such assignment or transfer and,
if required under then existing law, obtaining the approval of the FCC or
such Franchisor therefor, notifying the FCC or such Franchisor of the
consummation thereof and complying with all other provisions of applicable
Cable Laws. The parties hereto intend that the powers of Pledgee hereunder,
in all relevant aspects, shall be governed by applicable Cable Laws.
14. Limitation on Pledgee's Rights. Pledgee acknowledges and agrees
that when exercising Pledgee's remedies arising under this Pledge Agreement,
Pledgee shall look solely to the Collateral for the satisfaction of
Borrower's Obligations. In no event shall Pledgee seek a personal or other
judgment against any Pledgor under this Pledge Agreement except to the extent
necessary in order to foreclose upon the Collateral or otherwise subject the
Collateral to
the payment of Borrower's Obligations. No Pledgor shall have any liability
under this Pledge Agreement, personal or otherwise, for any deficiency
remaining after a sale of all or any portion of the Collateral pledged
hereunder. The limitation of liability set forth in this Section 14 shall
not apply to any Pledgor to the extent Pledgee suffers any actual loss,
damage or expense as a result of:
(a) the breach by such Pledgor of any covenant to be performed by
such Pledgor under Section 4, 5, 6.9 or 9.4; or
(b) any material misrepresentation or breach of any warranty or
covenant made by such Pledgor in Section 3 of this Pledge Agreement.
15. Effect of Prior Agreement. This Pledge Agreement constitutes an
amendment to and restatement of, and supersedes and replaces in its entirety,
the Original Pledge Agreement, which Original Pledge Agreement was
substantially the same as this Pledge Agreement, except that the Original
Pledge Agreement did not identify Fleet's function as Depositary (in addition
to its role as Trustee) and, accordingly, the Original Pledge Agreement is
now of no further force and effect.
[remainder of this page intentionally left blank]
IN WITNESS WHEREOF, each Pledgor and Pledgee have caused this Pledge
Agreement to be executed as of the date first above written.
XXXXX CABLE MANAGEMENT COMPANY,
INC., a Connecticut corporation
By:
----------------------------
Xxxxx X. Xxxxxxxxx
Chief Executive Officer
MEDIA/COMMUNICATIONS PARTNERS
LIMITED PARTNERSHIP, a Delaware
limited partnership
By: TA Communications GP Limited
Partnership, its general
partner
By: TA Associates
Communications Limited
Partnership, its general
partner
By:
----------------------------
Xxxxxxx X. Xxxxxxxxx
President
CHESTNUT STREET PARTNERS, INC., a
Massachusetts corporation
By:
-----------------------------
Xxxxxxx X. Xxxxxxxxx
Vice President
MILK STREET PARTNERS, INC., a
Massachusetts corporation
By:
------------------------
Xxxxxxx X. Xxxxxxxxx
President
TA INVESTORS, a Massachusetts
general partnership
By:
--------------------------
Xxxxxxx X. Xxxxxxxxx
Partner
NORTHEAST VENTURES II, a
Connecticut general partnership
By: Northeast Venture, L.P., its
general partner
By: /s/ W. Xxxxx Xxxxxxxxx
--------------------------
W. Xxxxx Xxxxxxxxx
General Partner
ALLSTATE INSURANCE COMPANY, an
Illinois insurance company
By: ______________________________
Name:______________________________
By: ______________________________
Name:______________________________
Its Authorized Signatories
FLEET NATIONAL BANK, a national
banking association, in its
capacities as Trustee and
Depositary
By:
--------------------------
Xxxxxx X. Xxxx, XX
Vice President
FINOVA CAPITAL CORPORATION, a
Delaware corporation
By:
--------------------------
Xxxxxxx X. Xxxxxx
Vice President
Acknowledgment of Borrower
Borrower hereby acknowledges receipt of this Pledge Agreement and the
pledge of 100% of the issued and outstanding capital stock and warrants,
options or other rights to purchase capital stock of Borrower pursuant to the
terms of this Pledge Agreement and confirms that such pledge has been
registered in its corporate books.
XXXXX CABLE COMMUNICATIONS, INC., a
Texas corporation
By:
----------------------------------
Xxxxx X. Xxxxxxxxx
Chief Executive Officer
EXHIBIT A
Description of Securities
[to be provided by Xxxx Marks & Xxxxx]
EXHIBIT B
Location of Each Pledgor's Chief Executive Office and Address and
Telecopy Number for Notice Purposes
1. The location of the chief executive office and address and telecopy number
for notice purposes of Xxxxx Cable Management Company, Inc. is:
Four Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
Chief Executive Officer
Telecopy No: (000) 000-0000
2. The location of the chief executive office and address and telecopy number
for notice purposes of Media/Communications Partners Limited Partnership,
Chestnut Street Partners, Inc., Milk Street Partners, Inc., and TA
Investors is:
00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telecopy No: (000) 000-0000
3. The location of the chief executive office and address and telecopy number
for notice purposes of Northeast Ventures II is:
Xxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: W. Xxxxx Xxxxxxxxx or Xxxxx X. Xxxxxx, Xx.
Telecopy No: (000) 000-0000
4. The location of the chief executive office and address and telecopy number
for notice purposes of Allstate Insurance Company is:
0000 Xxxxxxx Xxxx
Xxxxxxxx X0X
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Telecopy No: (000) 000-0000
5. The location of the chief executive office and address and telecopy number
for notice purposes of Fleet National Bank is:
Fleet National Bank, as Depositary
Corporate Trust
Administration MAOFDOSM
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Mr. Xxxxxx Xxxx
Telecopy No: (000) 000-0000
