Exhibit 99.9
PLEDGE AGREEMENT
PLEDGE AGREEMENT (as amended, modified, restated and/or
supplemented from time to time, this "Agreement"), dated as of December 21,
2004, among each of the undersigned pledgors (each, a "Pledgor" and, together
with any other entity that becomes a pledgor hereunder pursuant to Section 30
hereof, the "Pledgors") and Deutsche Bank AG Cayman Islands Branch, as
collateral agent (the "First-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 Credit Agreement (as defined
below) shall be used herein as therein defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, RCN Corporation (the "Borrower"), the lenders from
time to time party thereto (the "Lenders"), Deutsche Bank Securities Inc., as
Sole Lead Arranger and Sole Book Manager, and Deutsche Bank AG Cayman Islands
Branch, as administrative agent (together with any successor administrative
agent, the "Administrative Agent"), have entered into a First-Lien Credit
Agreement, dated as of December 21, 2004 (as amended, modified, restated
and/or supplemented from time to time, the "Credit Agreement"), providing for
the making of Loans to, and the issuance of, and participation in, Letters of
Credit for the account of the Borrower, all as contemplated therein (the
Lenders, each Issuing Lender, the Administrative Agent, the First-Lien
Collateral Agent, each other Agent and the Pledgee are herein called the
"Lender Creditors");
WHEREAS, the Borrower [and/or one or more of its
Subsidiaries] may at any time and from time to time enter into one or more
Interest Rate Protection Agreements or Other Hedging Agreements with one or
more Lenders or any affiliate thereof (each such Lender or affiliate, even if
the respective Lender subsequently ceases to be a Lender under the Credit
Agreement for any reason, together with such Lender's or affiliate's
successors and assigns, if any, collectively, the "Other Creditors" and,
together with the Lender Creditors, the "Secured Creditors");
WHEREAS, pursuant to the Subsidiaries Guaranty, each
Subsidiary Guarantor has jointly and severally guaranteed to the Secured
Creditors the payment when due of all Guaranteed Obligations as described
therein;
WHEREAS, it is a condition precedent to the making of Loans
to the Borrower and the issuance of, and participation in, Letters of Credit
for the account of the Borrower under the Credit Agreement and to the Other
Creditors entering into Interest Rate Protection Agreements and Other Hedging
Agreements that each Pledgor shall have executed and delivered to the Pledgee
this Agreement; and
WHEREAS, each Pledgor will obtain benefits from the
incurrence of Loans by the Borrower and the issuance of, and participation in,
Letters of Credit for the account of the Borrower under the Credit Agreement
and the entering into by the Borrower and/or one or more of its Subsidiaries
of Interest Rate Protection Agreements or Other Hedging Agreements and,
accordingly, desires to execute this Agreement in order to satisfy the
condition described in the preceding paragraph and to induce the Lenders to
make Loans to the Borrower and issue, and/or participate in, Letters of Credit
for the account of the Borrower and the Other Creditors to enter into Interest
Rate Protection Agreements or Other Hedging Agreements with the Borrower
and/or one or more of its Subsidiaries;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Pledgor, the receipt and sufficiency of which are
hereby acknowledged, each 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 each
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 any
Pledgor or any Subsidiary thereof at the rate provided for in the
respective documentation, whether or not a claim for post-petition
interest is allowed in any such proceeding), reimbursement obligations
under Letters of Credit, fees, costs and indemnities) of such Pledgor
owing to the Lender Creditors, whether now existing or hereafter incurred
under, arising out of, or in connection with, the Credit Agreement and
the other Credit Documents to which such Pledgor is a party (including,
in the case of each Pledgor that is a Guarantor, all such obligations,
liabilities and indebtedness of such Pledgor under its Guaranty) and the
due performance and compliance by such Pledgor with all of the terms,
conditions and agreements contained in the Credit Agreement and in such
other Credit Documents (all such obligations, liabilities and
indebtedness under this clause (i), except to the extent consisting of
obligations, liabilities or indebtedness with respect to Interest Rate
Protection Agreements or Other Hedging Agreements, entitled to the
benefits of this Agreement being herein collectively called the "Credit
Document Obligations");
(ii) the full and prompt payment when due (whether at stated
maturity, by acceleration or otherwise) of all obligations, liabilities
and indebtedness (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 any 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) owing by such Pledgor to the Other
Creditors now existing or hereafter incurred under, arising out of or in
connection with any Interest Rate Protection Agreement or Other Hedging
Agreement, whether such Interest Rate Protection Agreement or Other
Hedging Agreement is now in existence or hereinafter arising (including,
in the case of a Pledgor that is a Guarantor, all obligations,
liabilities and indebtedness of such Pledgor under its Guaranty in
respect of the Interest Rate Protection Agreements and Other Hedging
Agreements), and the due performance and compliance by such Pledgor with
all of the terms, conditions and agreements contained in each such
Interest Rate Protection Agreement and Other Hedging Agreement (all such
obligations, liabilities and indebtedness under this clause (ii) being
herein collectively called the "Other Obligations"); provided that if the
aggregate notional amount of all then outstanding Interest Rate
Protection Agreements and Other Hedging Agreements would exceed the
Maximum Hedging Obligations Notional Amount, then amounts owing with
respect to such excess shall not constitute Other Obligations hereunder;
provided further that, if at the time of the entering into of any
Interest Rate Protection Agreement or Other Hedging Agreement the
respective Other Creditors obtained an officer's certificate of the
Borrower or a representation by the Borrower that the aggregate notional
amount thereof when added to the aggregate notional amount of all other
then outstanding Interest Rate Protection Agreements and Other Hedging
Agreements which constitute Other Obligations hereunder, shall not or
would not exceed the Maximum Hedging Obligations Notional Amount, then
such Interest Rate Protection Agreement or Other Hedging Agreement, as
the case may be, (and all obligations thereunder as described above)
shall constitute Other Obligations for all purposes hereof
notwithstanding the fact that the Maximum Hedging Obligations Notional
Amount has actually been exceeded;
(iii) any and all sums advanced by the Pledgee in order to
preserve the Collateral (as hereinafter defined) or preserve its security
interest in the Collateral;
(iv) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations or liabilities of such
Pledgor referred to in clauses (i) and (ii) 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;
(v) all amounts paid by any Indemnitee as to which such
Indemnitee has the right to reimbursement under Section 11 of this
Agreement; and
(vi) 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 (vi) 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 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:
"Administrative Agent" shall have the meaning set forth in
the recitals hereto.
"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.
"Borrower" shall have the meaning set forth in the recitals
hereto.
"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 any Pledgor to which
Collateral may be credited.
"Credit Agreement" shall have the meaning set forth in the
recitals hereto.
"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 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.
"Financial Asset" shall have the meaning given such term in
Section 8-102(a)(9) of the UCC.
"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.
"Holdings" shall have the meaning set forth in the recitals
hereto.
"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.
"Investment Property" shall have the meaning given such term
in Section 9-102(a)(49) of the UCC.
"Lender 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 any 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 any Pledgor
in any limited liability company.
"Location" of any Pledgor has the meaning given such term in
Section 9-307 of the UCC.
"Maximum Hedging Obligations Notional Amount" shall mean an
aggregate notional amount equal to $325 million.
"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 any Pledgor.
"Obligations" shall have the meaning set forth in Section 1
hereof.
"Other Creditors" shall have the meaning set forth in the
recitals hereto.
"Other Obligations" shall have the meaning set forth in
Section 1(ii) 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 any Pledgor or represented by any Partnership Interest.
"Partnership Interest" shall mean the entire general
partnership interest or limited partnership interest at any time owned by any
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 Credit Agreement.
"Required Secured Creditors" shall have the meaning provided
in the Security Agreement.
"Secured Creditors" shall have the meaning set forth in the
recitals hereto.
"Secured Debt Agreements" shall mean and includes (x) this
Agreement, (y) the other Credit Documents and (z) the Interest Rate Protection
Agreements and Other Hedging Agreements entered into with any Other Creditors.
"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.
"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 any Pledgor.
"Termination Date" shall have the meaning set forth in
Section 20 hereof.
"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 such Pledgor, each 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 such 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 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 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 such Pledgor from time
to time and all options and warrants owned by such Pledgor from time to
time to purchase Securities;
(c) all Limited Liability Company Interests owned by such
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 such 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 such
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 such
Pledgor against any such limited liability company for monies loaned
or advanced, for services rendered or otherwise;
(E) all of such 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 such 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 such 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
(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 such 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 such Pledgor shall at any time be entitled in
respect of such Partnership Interests;
(B) all other payments due or to become due to such
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 such
Pledgor against any such partnership for monies loaned or advanced,
for services rendered or otherwise;
(E) all of such 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 such
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 such 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 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
such Pledgor from time to time;
(f) all Security Entitlements owned by such 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, no Pledgor shall be
required at any time to pledge hereunder (x) to the extent such assets 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; provided that a security interest shall attach immediately
upon (and the exclusion to this clause (x) shall no longer apply at any time
after) the consummation of the Starpower Acquisition, (y) to the extent such
assets 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 each Pledgor shall be
required to pledge hereunder 100% of any Non-Voting Equity Interest at any
time and from time to time acquired by such Pledgor of any Foreign
Corporation.
3.2 Procedures. (a) To the extent that any 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 such Pledgor) be pledged pursuant to Section 3.1
of this Agreement and, in addition thereto, such Pledgor shall (to the extent
provided below) 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), such 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), such 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 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), such 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 such 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, each Pledgor shall take the following additional
actions with respect to the Collateral:
(i) with respect to all Collateral of such 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), such
Pledgor shall take all actions as may be requested from time to time by
the Pledgee so that "control" of such Collateral is obtained and at all
times held by the Pledgee; and
(ii) each 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 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 any 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, such Pledgor will 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 will promptly thereafter deliver to the Pledgee (i) a certificate executed
by an authorized officer of such 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, no Pledgor
shall 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. Each Pledgor represents and warrants that on the date hereof: (i)
each Subsidiary of such 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 such 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 such Pledgor consist of the promissory notes described
in Annex D hereto where such Pledgor is listed as the lender; (v) the Limited
Liability Company Interests held by such 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 such 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 such
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, such Pledgor owns no other Securities, Stock, Notes, Limited
Liability Company Interests or Partnership Interests.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. 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 Credit Agreement or a Default under Section 10.01
or 10.05 of the Credit Agreement (each such Default, a "Specified Default"),
each 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 each 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. 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 respective 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 respective 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.
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. All dividends, distributions or
other payments which are received by any 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 such
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, 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 each 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 respective
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 (each Pledgor hereby
irrevocably constituting and appointing the Pledgee the proxy and
attorney-in-fact of such 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 each 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 respective 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. Each Pledgor hereby
waives and releases to the fullest extent permitted by law any right or
equity of redemption with 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, 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 (each Pledgor hereby irrevocably constituting and
appointing the Pledgee the proxy and attorney-in-fact of such 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, 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 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 any 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 Secured Creditors, 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 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 each Pledgor shall
remain jointly and severally 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. Each Pledgor jointly and severally 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 any Pledgor under this Section 11 are
unenforceable for any reason, such 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 each Pledgor
contained in this Section 11 shall continue in full force and effect
notwithstanding the full payment of all the Notes issued under the Credit
Agreement, the termination of all Interest Rate Protection Agreements and
Other Hedging Agreements and Letters of Credit, 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 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, any 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, did 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 any
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 any 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 any 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) Each Pledgor
agrees that it will join with the Pledgee in executing and, at such 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 the Pledgee
(acting on its own or on the instructions of the Required Secured Creditors)
may reasonably deem necessary or appropriate 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 such 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) Each Pledgor hereby constitutes and appoints the Pledgee
its true and lawful attorney-in-fact, irrevocably, with full authority in the
place and stead of such Pledgor and in the name of such 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 such 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.
14. THE PLEDGEE AS FIRST-LIEN COLLATERAL AGENT. 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 Section
12 of the Credit Agreement. The Pledgee shall act hereunder on the terms and
conditions set forth herein and in Section 12 of the Credit 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 Credit Agreement have been terminated, pursuant to the
Credit Agreement, and (ii) thereafter, pursuant to the other Secured Debt
Agreements, no Pledgor will 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) Each 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 such Pledgor and constitutes a legal, valid and binding
obligation of such Pledgor enforceable against such 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 such Pledgor or any of its
Subsidiaries) and no 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 such Pledgor in connection with (a) the execution, delivery or
performance of this Agreement by such Pledgor, (b) the validity or
enforceability of this Agreement against such Pledgor (except as set
forth in clause (iii) above), (c) the perfection or enforceability of the
Pledgee's security interest in such 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 such
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 such 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 such 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 such 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 such Pledgor or any of its Subsidiaries;
(vi) all of such 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 such 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 such Pledgor's Collateral consisting of Certificated
Securities and Pledged Notes pursuant to this Agreement creates a valid
and perfected first priority security interest in such Certificated
Securities and Pledged Notes, 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 such
Pledgor which 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 such 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, such Pledgor shall have taken all steps in its
control so that the Pledgee obtains "control" over such Security
Entitlement.
(b) Each Pledgor covenants and agrees that it will defend
the Pledgee's right, title and security interest in and to such Pledgor's
Collateral and the proceeds thereof against the claims and demands of all
persons whomsoever; and each 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 such Pledgor as Collateral hereunder and will
likewise defend the right thereto and security interest therein of the Pledgee
and the other Secured Creditors.
(c) Each Pledgor covenants and agrees that it will take no
action which would violate any of the terms of any Secured Debt Agreement.
(d) Each Pledgor hereby authorizes the First-Lien Collateral
Agent to make duplicate filings as if such Pledgor is a Transmitting Utility,
or alternatively, as if such 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 each Pledgor, the type of organization of such Pledgor, whether or not
such Pledgor is a Registered Organization, the jurisdiction of organization of
such Pledgor, such Pledgor's Location, the organizational identification
number (if any) of each Pledgor is listed on Annex A hereto for such Pledgor.
No Pledgor shall 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) any 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 First-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 all information
contained therein for such Pledgor, and (ii) in connection with the respective
such change or changes, it shall have taken all action reasonably requested by
the First-Lien Collateral Agent to maintain the security interests of the
First-Lien Collateral Agent in the Collateral intended to be granted hereby at
all times fully perfected and in full force and effect. In addition, to the
extent that any Pledgor does not have an organizational identification number
on the date hereof and later obtains one, such Pledgor shall promptly
thereafter deliver a notification of the First-Lien Collateral Agent of such
organizational identification number and shall take all actions reasonably
satisfactory to the First-Lien Collateral Agent to the extent necessary to
maintain the security interest of the First-Lien Collateral Agent in the
Collateral intended to be granted hereby fully perfected and in full force and
effect.
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of
each 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
any Pledgor or any Subsidiary of any 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 such Pledgor shall have notice or
knowledge of any of the foregoing.
19. SALE OF COLLATERAL WITHOUT REGISTRATION. (a) If an Event
of Default shall have occurred and be continuing and any Pledgor shall have
received from the Pledgee a written request or requests that such Pledgor
cause any registration, qualification or compliance under any federal or state
securities law or laws to be effected with respect to all or any part of the
Collateral consisting of Securities, Limited Liability Company Interests or
Partnership Interests, such 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 such Pledgor such information regarding the
Pledgee as such Pledgor may request in writing and as shall be required in
connection with any such registration, qualification or compliance. Each
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 such 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 xxxxx xxxx 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 such termination) and the Pledgee, at the request and expense of
such Pledgor, will execute and deliver to such 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 such 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 the Commitments under the Credit
Agreement have been terminated and all Interest Rate Protection Agreements and
Other Hedging Agreements entitled to the benefits of this Agreement have been
terminated, no Letter of Credit or Note (as defined in the Credit Agreement)
is outstanding (and all Loans have been paid in full), all Letters of Credit
have been terminated, and all other Obligations (other than indemnities
described in Section 11 hereof and described in Section 12.06 of the 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 a Credit Party) (x) at any time
prior to the time at which all Credit Document Obligations have been paid in
full and all Commitments and Letters of Credit under the Credit Agreement have
been terminated, in connection with a sale or disposition permitted by Section
9.02 of the Credit Agreement or is otherwise released at the direction of the
Required Lenders (or all the Lenders if required by Section 13.12 of the
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 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 such 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 such 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 any 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 such
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.
(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 First-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 any
Pledgor shall not be effective until received by the Pledgee or such Pledgor,
as the case may be. All notices and other communications shall be in writing
and addressed as follows:
(a) if to any Pledgor, at its address set forth opposite its
signature below;
(b) if to the Pledgee, at:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(c) if to any Lender Creditor, either (x) to the
Administrative Agent, at the address of the Administrative Agent specified in
the Credit Agreement, or (y) at such address as such Lender Creditor shall
have specified in the Credit Agreement;
(d) if to any Other Creditor, at such address as such Other
Creditor shall have specified in writing to the Pledgors and the Pledgee;
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 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 each Pledgor, its successors and assigns;
provided, however, that no Pledgor shall assign any of its rights or
obligations hereunder without the prior written consent of the Pledgee (with
the prior written consent of the Required Secured Creditors), 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 each Pledgor herein or in any certificate or other
instrument delivered by such 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 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 each 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 any 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 each 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
each Pledgor and pursuant to and upon all the representations, warranties,
covenants and agreements on the part of such Pledgor contained herein and in
the other Secured Debt Agreements and otherwise in writing in connection
herewith or therewith.
30. ADDITIONAL PLEDGORS. It is understood and agreed that
any Subsidiary of the Borrower that is required to become a party to this
Agreement after the date hereof pursuant to the requirements of the Credit
Agreement or any other Credit Document, shall become a Pledgor hereunder by
(x) executing a counterpart hereof and delivering same to the Pledgee, (y)
delivering supplements to Annexes A through G, hereto as are necessary to
cause such annexes to be complete and accurate with respect to such additional
Pledgor on such date and (z) taking all actions as specified in this Agreement
as would have been taken by such Pledgor had it been an original party to this
Agreement, in each case with all documents required above to be delivered to
the Pledgee and with all documents and actions required above to be taken to
the reasonable satisfaction of the Pledgee.
31. LIMITED OBLIGATIONS. It is the desire and intent of each
Pledgor and the Secured Creditors that this Agreement shall be enforced
against each Pledgor to the fullest extent permissible under the laws applied
in each jurisdiction in which enforcement is sought. Notwithstanding anything
to the contrary contained herein, in furtherance of the foregoing, it is noted
that the obligations of each Pledgor constituting a Subsidiary Guarantor have
been limited as provided in the Subsidiaries Guaranty.
32. RELEASE OF PLEDGORS. If at any time all of the Equity
Interests of any Pledgor owned by the Borrower or any of its Subsidiaries are
sold (to a Person other than a Credit Party) in a transaction permitted
pursuant to the Credit Agreement (and which does not violate the terms of any
other Secured Debt Agreement then in effect), then, such Pledgor shall be
released as a Pledgor pursuant to this Agreement without any further action
hereunder (it being understood that the sale of all of the Equity Interests in
any Person that owns, directly or indirectly, all of the Equity Interests in
any Pledgor shall be deemed to be a sale of all of the Equity Interests in
such Pledgor for purposes of this Section), and the Pledgee is authorized and
directed to execute and deliver such instruments of release as are reasonably
satisfactory to it. At any time that the Borrower desires that a Pledgor be
released from this Agreement as provided in this Section 32, the Borrower
shall deliver to the Pledgee a certificate signed by a principal executive
officer of the Borrower stating that the release of such Pledgor is permitted
pursuant to this Section 32. If requested by Pledgee (although the Pledgee
shall have no obligation to make any such request), the Borrower shall furnish
legal opinions (from counsel acceptable to the Pledgee) to the effect set
forth in the immediately preceding sentence. The Pledgee shall have no
liability whatsoever to any other Secured Creditor as a result of the release
of any Pledgor by it in accordance with, or which it believes to be in
accordance with, this Section 32.
33. COMPLIANCE WITH LAWS. Each 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.
Each 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 First-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.
* * * *
IN WITNESS WHEREOF, each 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 an Assignor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: BRAINSTORM NETWORKS, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: HOT SPOTS PRODUCTIONS, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: ON TV, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN-BECOCOM, LLC, as a Guarantor
105 Carnegie Center By: RCN Telecom Services of Massachusetts, Inc.
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000 By: /s/ Xxxxxxx X. Xxxxx
Fax: (000) 000-0000 ----------------------------------
Attention: Chief Financial Officer Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN CABLE TV OF CHICAGO, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN ENTERTAINMENT, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN FINANCE, LLC, as a Guarantor
105 Carnegie Center By: RCN Corporation, its managing member
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000 By: /s/ Xxxxxxx X. Xxxxx
Fax: (000) 000-0000 ----------------------------------
Attention: Chief Financial Officer Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
Address: RCN FINANCIAL MANAGEMENT, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN INTERNATIONAL HOLDINGS, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN INTERNET SERVICES, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN TELECOM SERVICES, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN TELECOM SERVICES OF ILLINOIS, LLC, as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN TELECOM SERVICES OF MASSACHUSETTS, INC., as a
Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN TELECOM SERVICES OF PHILADELPHIA, INC., as a
Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN TELECOM SERVICES OF VIRGINIA, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN TELECOM SERVICES OF WASHINGTON D.C., INC., as a
Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RFM 2, LLC, as a Guarantor
105 Carnegie Center By: RCN Corporation, its managing member
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000 By: /s/ Xxxxxxx X. Xxxxx
Fax: (000) 000-0000 ----------------------------------
Attention: Chief Financial Officer Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
Address: RLH PROPERTY CORPORATION, as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: TEC AIR, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: 21ST CENTURY TELECOM SERVICES, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: UNET HOLDING, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: STARPOWER COMMUNICATIONS, LLC,
as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Tel: (000) 000-0000 By: /s/ Xxxxxxx X. Xxxxx
Fax: (000) 000-0000 ---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager
Accepted and Agreed to:
DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH,
as First-Lien Collateral Agent
By: /s/ Xxxxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
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.....................................................................................7
3.1 Pledge ................................................................................................7
3.2 Procedures.............................................................................................10
3.3 Subsequently Acquired Collateral.......................................................................11
3.4 Transfer Taxes.........................................................................................11
3.5 Certain Representations and Warranties Regarding the Collateral........................................12
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......................................................................................15
10. PURCHASERS OF COLLATERAL....................................................................................15
11. INDEMNITY...................................................................................................15
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER...................................................16
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY.......................................................................16
14. THE PLEDGEE AS FIRST-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 AND/OR A TRANSMITTING UTILITY); JURISDICTION OF
ORGANIZATION; LOCATION; ORGANIZATIONAL IDENTIFICATION NUMBERS; CHANGES THERETO; ETC.....................19
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC.........................................................................20
19. SALE OF COLLATERAL WITHOUT REGISTRATION.....................................................................21
20. TERMINATION; RELEASE........................................................................................22
21. NOTICES, ETC................................................................................................23
22. WAIVER; AMENDMENT...........................................................................................24
23. SUCCESSORS AND ASSIGNS......................................................................................24
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....................................................................................................26
30. ADDITIONAL PLEDGORS.........................................................................................26
31. LIMITED OBLIGATIONS.........................................................................................26
32. RELEASE OF PLEDGORS.........................................................................................26
33. COMPLIANCE WITH LAWS........................................................................................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
