EXHIBIT 99.6
BANKERS TRUST COMPANY
RESTATED
BORROWER SECURITY AND PLEDGE AGREEMENT
In consideration of loans, advances, overdrafts, letters of credit,
acceptances, swaps, securities transactions, forward contracts, foreign
currency transactions and all other credit transactions and financial
accommodations given or to be given or to be continued from time to time to
the Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ("Debtor") by BANKERS TRUST COMPANY or any
of its Affiliates listed on SCHEDULE A hereto (Bankers Trust Company and all
such Affiliates being referred to herein collectively as "Bank" including
those due under that certain Restated Secured Promissory Note of even date
herewith made by Debtor to Back evidencing the principal sum of up to
$50,000,000 (as it may be amended, the "Note")), Debtor hereby agrees with
Bank as follows:
1. As collateral security for the due and punctual payment and performance
of all present and future liabilities and obligations, direct or indirect,
liquidated or contingent, joint or several of Debtor to Bank, (including
those due under the Note) whether now existing or hereafter incurred, whether
now or hereafter due, whether for principal, interest, fees, costs,
attorneys' fees, taxes, damages, expenses, indemnities, or otherwise, and
howsoever evidenced (collectively, the "Obligations"), Debtor hereby assigns,
pledges and grants to Bank a continuing security interest in and lien upon
all right, title and interest of Debtor in and to (i) all cash, securities,
shares, certificates, notes, instruments, rights, receivables and all other
property of Debtor now or hereafter in the Possession, custody or control of
Bank, including, without limitation, any of the foregoing from time to time
deposited in, credited to or payable to that certain /_/ investment /X/
custody /_/ deposit or /_/ other account with the New York office of Bankers
Trust Company, account no. 280683, (ii) in addition to, and not in derogation
of clause (i) above, those certain securities and other property, if any,
listed on SCHEDULE B hereto, (iii) all cash, securities, shares,
certificates, notes, instruments, rights, receivables and all other property
now or hereafter received or receivable in connection with any sale,
exchange, redemption or other disposition of any of the foregoing, (iv) all
dividends, interest and other distributions, whether in cash, securities or
other property on any of the foregoing (specifically excepting cash
dividends), (v) all additions to and substitutions for any of the foregoing,
(vi) all present and future rights, claims, remedies and privileges of Debtor
pertaining to any of the foregoing, (vii) all general intangibles of Debtor
and all contract rights of Debtor relating to any of the Obligations and
(viii) all proceeds of the foregoing, in each case whether now existing or
hereafter arising or acquired (collectively, the "Collateral").
2 Debtor represents and warrants to Bank that: (a) Debtor is the legal and
beneficial owner of the Collateral, free and clear of any mortgage, pledge,
lien, charge, encumbrance, claim, adverse interest or security interest
(collectively "Liens"), (b) Debtor has all necessary right, power and
authority to grant to Bank a security interest in the Collateral, and has
taken all necessary action to authorize Debtor's execution, delivery and
performance of this Agreement, including all necessary actions by directors
and shareholders and all filings and recordations, (c) there are no filings
or recordations against the Collateral which grant or purport to ▇▇▇▇▇ ▇ ▇▇▇▇
in any Collateral to any other person, (d) Debtor, if a corporation,
partnership or other legal entity, is duly organized and validly existing in
good standing under the laws of its jurisdiction of formation, and is duly
qualified in all such foreign jurisdictions where its business or property so
requires, (e) all Collateral which consists of equity interests will have
been validly issued and are fully paid and non-assessable and are subject to
no restrictions on transfer by Bank as pledgee or otherwise except, with
respect to the Series B Common Stock identified on Schedule B hereto, as set
forth in the ▇▇▇▇▇▇▇ Call Agreement and the Stockholders' Agreement (as such
terms are defined in the Note), (f) all Collateral identified on Schedule B
hereto is freely saleable by Bank as pledgee under Rule 144(k) of the
Securities Act of 1933, as amended so long as Bank is not an Affiliate of TCI
(as such terms are defined in the Note), (g) the execution, delivery and
performance by Debtor of this Agreement do not violate, breach or conflict
with (i) Debtor's constituent documents, if Debtor is a corporation,
partnership or other legal entity, (ii) any agreement, contract or instrument
to which Debtor is a party or by which Debtor or its properties are bound
(including the ▇▇▇▇▇▇▇ Call Agreement and the Stockholders' Agreement), or
(iii) any applicable law, regulation, decree, order or the like, (h) after
giving effect to the transactions contemplated by this Agreement, Debtor is
not insolvent, and (i) this Agreement is the legal, valid and binding
obligation of Debtor, enforceable against Debtor in accordance with its terms.
3. Debtor covenants and agrees with Bank that: (a) Bank's sole duty with
respect to the Collateral is to use such care as it uses for similar property
for its own account, and Bank shall not be obligated to preserve rights in
the Collateral against prior parties, (b) Debtor will (i) be solely
responsible for all matters relating to the Collateral, including
ascertaining maturities, calls, conversions, exchanges and tenders, (ii) not,
and will not purport to, grant or suffer Liens against, or sell, transfer or
dispose of any Collateral, (iii) from time to time take all actions, and make
all filings and recordations requested by Bank in connection with Bank's
security interest in the Collateral, (iv) promptly notify Bank of the
occurrence of an Event of Default (as defined in the Note), and (v) hold in
trust for, and forthwith pay over to Bank in the form received (except for
any necessary endorsements) all property, proceeds or distributions received
by Debtor on account of any Collateral (specifically excepting ordinary
course cash dividends), (c) Bank is authorized to file financing statements
and give notice to third parties regarding the Collateral without Debtor's
signature to the extent permitted by applicable law, at any time and from
time to time after an Event of Default, transfer all or any part of the
Collateral to Bank's name or that of its nominee, and exercise all rights as
if the absolute owner thereof, and file a proof of claim for, receive
payments or distributions on, and exchange or release Collateral in any
bankruptcy, insolvency or similar proceeding, and (d) Debtor's true legal
name and chief executive office (if a corporation, partnership or other legal
entity), or principal residence (if an individual), are set forth on the
signature page hereof, and Debtor will not change its name or such address
without the prior written consent of Bank.
4. Debtor further covenants and agrees to comply with the Collateral
Maintenance Requirements set forth in SCHEDULE C
hereto. If Debtor fails to comply with the Collateral Maintenance
Requirements for the period specified in SCHEDULE C, Bank shall have all the
rights and remedies of a secured party under the New York Uniform Commercial
Code as then in effect (the "UCC"), and may, without notice to or consent by
Debtor, sell, liquidate or redeem so much of the Collateral as is necessary
to reduce the outstanding Obligations so as to comply with the Collateral
Maintenance Requirements then in effect.
5. (a) Debtor hereby irrevocably, unconditionally and expressly waives, to
the fullest extent permitted by applicable law, all defenses, counterclaims,
rights of setoff, any requirement that Bank first proceed against any
guarantor or any other security, all requirements for notice of any kind,
demand, protest, presentment, notice of non-payment, default or dishonor of
any Obligation, notice of acceptance hereof, marshalling of assets and the
like, including without limitation, any right to notice or judicial hearing
in connection with Bank's taking Possession of or disposition of any
Collateral, any notice of any sale, transfer or other disposition by Bank of
any Obligation, any requirement that Bank first proceed against Debtor, any
other collateral or any other person liable for any of the Obligations, and
all damages occasioned by any of the foregoing (except as finally determined
by a competent court to have been the direct result of Bank's gross
negligence or willful misconduct). No invalidity, irregularity or
unenforceability of any Obligations shall affect, impair or be a defense to
any of Debtor's obligations or agreements or any of Bank's rights or remedies
hereunder. Bank may, upon the occurrence of an Event of Default, without
notice to or consent by Debtor, and without affecting or impairing Debtor's
obligations or agreements or Bank's rights and remedies hereunder, (i) sell,
release, exchange, settle, compromise or otherwise dispose of any Collateral,
or other security for any of the Obligations, and (ii) exercise (in such
order as Bank may choose) or refrain from exercising any rights against
Debtor or any other person liable for any Obligations.
(b) Debtor hereby appoints Bank the attorney-in-fact of Debtor for the
purpose of carrying out the provisions of this Agreement and taking any
action and executing any instrument which Bank may deem necessary or
advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest and any proxy or proxies heretofore given by
Debtor to any other person are hereby revoked. Without limiting the
generality of the foregoing, Bank shall have the right, upon the occurrence
and during the continuance of an Event of Default, with full power of
substitution either in Bank's name or in the name of Debtor, to ask for,
demand, ▇▇▇ for, collect, receive, receipt and give acquittance for any and
all moneys due or to become due under and by virtue of any of the Collateral,
to endorse checks, drafts, orders and other instruments for the payment of
money payable to Debtor representing any dividend or other distribution
payable in respect of the Collateral or any part thereof or on account
thereof and to give full discharge for the same, to settle, compromise,
prosecute or defend any action, claim or proceeding with respect thereto, and
to sell, assign, endorse, pledge, transfer and make any agreement respecting,
or otherwise deal with, the same; provided, however, that nothing herein
contained shall be construed as requiring or obligating Bank to make any
commitment or to make my inquiry as to the nature or sufficiency of any
payment received by Bank, or to present or file any claim or notice, or to
take any action with respect to the Collateral or any part thereof or the
moneys due or to become due in respect thereof or any property covered
thereby, and no action taken by Bank or omitted to be taken with respect to
the Collateral or any part thereof shall give rise to any defense,
counterclaim or offset in favor of Debtor or to any claim or action against
Bank in the absence of the gross negligence or willful misconduct of Bank as
shall have been proven in a final, nonappealable judgment of a court of
competent jurisdiction. This power of attorney is irrevocable and coupled
with an interest.
6. (a) At any time, after Event of Default has occurred and is continuing,
Bank shall have the right (in its sole and absolute discretion and without
notice to Debtor) to transfer to or to register any securities (including the
pledged securities) constituting Collateral in its own name or the name of
its nominee.
(b) As Bank, as of the date hereof, has not registered the pledged
securities in its name or that of its nominee but without derogation of the
right to do so in accordance herewith, Debtor agrees to cause the transfer
agent and registrar of the pledged securities to identify on its books and
records that the address of record for the holder of the pledged securities
and the address for delivery of my dividends (other than ordinary course cash
dividends) thereon or other distributions related thereto that are payable to
Bank hereunder shall be the office of Bank at:
Bankers Trust Company
One Bankers Trust Plaza, 14th Floor
Loan Center Mail Stop ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
Failure to cause such change of address within sixty (60) days of the date
hereof or if Debtor shall thereafter change such instructions shall be an
Event of Default. Debtor acknowledges that by changing the address of the
record holder of the pledged securities as contemplated in this clause (b),
information as to the issuer thereof and the rights of, and payments to be
received by, the holder of the pledged securities (including information as
to performance of the issuer, votes to be taken and conversations, tenders
and other offers and matters relating thereto) shall be delivered to Bank.
Bank shall use reasonable efforts to forward such information to Debtor.
However, in addition to and not in limitation of the release from liability
of Bank otherwise set forth in this Agreement, Debtor releases Bank from any
loss, damage or injury suffered by Debtor arising from the change of address
of the record holder of the pledged securities.
(c) Bank shall, during the continuance of any Event of Default, have the
right to exchange the certificates representing any such securities for
certificates of smaller or larger denominations for any purpose consistent
with this Agreement.
7. (a) Unless and until an Event of Default shall have occurred and be
continuing, Debtor shall be entitled to (i) exercise any and all voting and/or
consensual rights and powers accruing to an owner of the pledged securities or
any part thereof for any purpose consistent with the terms of this Agreement and
the Note, provided that such action would not impair the security for the
Obligations or adversely affect the position of Bank under this Agreement or the
Note, and (ii) receive all ordinary course cash dividends paid or payable on the
pledged securities.
(b) Upon the occurrence and during the continuance of an Event of Default,
(i) all rights of Debtor to exercise the voting and consensual rights and powers
which Debtor is entitled to exercise pursuant hereto shall, unless otherwise
notified by Bank in writing at its option, cease, and all such rights shall
thereupon
become vested in Bank, which shall have the sole and exclusive right and
authority to exercise such voting, and (ii) all ordinary course cash
dividends, in addition to all stock and other noncash dividends, paid or
payable in respect of the pledged securities shall be delivered to Bank.
8. For purposes of this Agreement, the term Event of Default shall have the
meaning set forth in the Note. Upon the occurrence of any Event of Default;
THEN and in any such event: (a) Bank may declare all of the Obligations to be
immediately due and payable, whereupon same shall become immediately due and
payable, without demand, PROVIDED, that if an event set forth in Section
10(viii) of the Note occurs, the Obligations shall automatically become due
and payable without declaration by Bank; (b) Bank's obligation, if any, to
give or continue credit facilities to Debtor shall automatically terminate,
(c) Bank shall have the right from time to time to take possession of, and
sell, redeem, assign, liquidate, transfer and deliver all or any part of the
Collateral, at any brokers' board or exchange, or at public or private sale
or otherwise, at the option of Bank, for cash or on credit for future
delivery, in such parcel or parcels and at such times and places, and upon
such terms and conditions as Bank may deem proper, and in connection
therewith may grant options and impose reasonable conditions, all without
(except as same am required by applicable law and cannot be waived)
advertisement or demand upon or notice to Debtor or right of redemption of
Debtor, all of which are hereby expressly waived to the fullest extent
permitted by applicable law, (d) upon each such sale, Bank may purchase all
or any of the Collateral, free and clear of all claims, rights of redemption
and equities of Debtor; and (e) in addition, Bank shall have all of the
rights and remedies of a secured party under the UCC.
9. To the extent required by applicable law, Bank will give Debtor notice of
the time and place of any public sale or of the time after which any private
sale or other disposition of Collateral is to be made, by sending notice at
least 5 days before the time of sale or disposition, which Debtor agrees is
reasonable. Bank need not give such notice if not required by the UCC. Debtor
agrees that at any private sale Collateral may be sold at a price that is
less than the price which might have been obtained at a public sale or that
is less than the aggregate outstanding amount of the Obligations; Bank may
accept the first offer received and need not offer such Collateral to more
than one offeree. Bank may convert any proceeds in foreign currency to U.S.
dollars at the then prevailing rates of exchange. After deducting its costs
and expenses from the proceeds of sale, apply any residue to pay the
Obligations in such order as it elects and Debtor will remain liable for any
deficiency with interest. All foreign exchanges losses incurred in connection
with the conversion of any Collateral denominated in a foreign currency to
U.S. dollars shall be borne by Debtor. Without Bank's prior written consent,
in no event shall Debtor sell, or permit any other person whose sales of
securities would be aggregated with those of Debtor under applicable
securities laws to sell, any securities of the same type as the Collateral at
any time that the sale by Bank of such Collateral is subject to any
restriction under any securities Ian including those as to manner or volume
of sale.
10. In the event and to the extent that any provision of this Agreement shall
be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions, or of such provision
in any other jurisdiction, shall not in any way be affected or impaired
thereby.
11. The Agreement may not be modified, changed, waived or discharged orally,
but only by a writing signed by the parties hereto. This Agreement shall
inure to the benefit of and be enforceable by Bank and its successors,
transferees and assigns, and shall be binding upon Debtor and its heirs,
executors, successors and assigns, PROVIDED, that Debtor may not transfer,
assign or delegate any of its rights or obligations hereunder, and any such
purported transfer, assignment or delegation shall be void. This Agreement
shall terminate upon final payment in full to Bank of all of the Obligations
and termination of any obligation of the Bank to make advances, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment of or on account of any of the Obligations is rescinded or must
otherwise be restored or returned by Bank upon the insolvency, bankruptcy or
reorganization of Debtor or any other person or otherwise, all as though such
payment had not been made.
12. No failure or delay by Bank in exercising any right or remedy and no
course of dealing between Bank and Debtor shall operate as a waiver thereof,
nor shall any single or partial exercise of any right preclude any other or
future exercise thereof. All rights and remedies of Bank shall be cumulative
and may be exercised singly or concurrently. No notice to or demand on Debtor
shall entitle Debtor to any other or further notice or demand, or constitute
a waiver of Bank's rights.
13. If for the purpose of obtaining a judgment in any court with respect to
any of Debtor's obligations under this Agreement, it becomes necessary to
convert into any other currency any amount in U.S. dollars due hereunder,
then that conversion shall be made at the average of the buying spot rates of
exchange in effect at Bank's lending office for freely transferable U.S.
dollars at the close of business on the day before the day on which judgment
is rendered. If there is a change in such rate of exchange prevailing between
the day before the day on which judgment is rendered and the date of payment
of the judgment, then Debtor shall pay such additional amount as may be
necessary to ensure that the amount paid on the date of payment is the amount
in such currency which, when converted at such rate of exchange in effect on
the date of payment, is the amount in U.S. dollars then due under this
Agreement. Any additional amount owing by Debtor hereunder shall be due as a
separate debt, and shall not be affected by or merged into any judgment
obtained for any other amounts due hereunder. This paragraph 13 shall survive
repayment of the Obligations and termination of this Agreement.
14. Debtor will indemnify and hold Bank harmless for, and pay in U.S. dollars
all losses, claims, taxes, costs, fees and expenses, including attorneys'
fees, incurred by Bank in connection with the custody, care, preservation,
sale or disposition of any Collateral, and the enforcement of Bank's rights
hereunder. The provisions of this paragraph 14 shall survive repayment of the
Obligations and termination of this Agreement.
15. Any notice to Bank or Debtor shall be effective 3 days after deposit in
the mails, airmail postage prepaid, if sent by facsimile, when sent, if
delivered by hand or courier, when delivered, or in the case of paragraph 4,
when given by telephone, in each case to the address below. Each party may
change its address for notices by written notice to the other.
16. DEBTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE
LAW, ANY RIGHT TO A JURY TRIAL IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. In any
action or proceeding arising out of or relating to this Agreement, Debtor
hereby accepts, for itself and its property, the non-exclusive jurisdiction
of the courts of the State of New York, and the federal courts in New York
City, and agrees that effective service of process may be made on Debtor by
mailing same to Debtor's address set forth below. Bank may proceed against
Debtor in any other applicable jurisdiction, and may serve process in any
other manner permitted by applicable law. Debtor hereby irrevocably waives
any objection to the laying of venue in the aforesaid courts, and any claim
of an inconvenient forum. To the extent that Debtor or its property may have
or hereafter acquire immunity, on the grounds of sovereignty or otherwise,
from any judicial process in connection with this Agreement, Debtor hereby
irrevocably waives, to the fullest extent permitted by law, any such immunity
and agrees not to claim same. Debtor agrees that a final judgment in any such
action or proceeding shall be conclusive, and may be enforced in any other
jurisdiction by suit on the judgment or in any other permitted manner.
17. If this Agreement is signed by two or more parties as Debtors, they shall
be jointly and severally liable hereunder, and the term "Debtor" as used
herein shall mean the debtor parties hereto, and each of them.
18. If the Obligations under this Agreement shall be owing to an Affiliate of
Bankers Trust Company, Bankers Trust Company is hereby appointed to hold the
Collateral as agent for the benefit of such Affiliate. Such Affiliate hereby
irrevocably authorizes and directs Bankers Trust Company to act solely on the
instructions of such Affiliate, unless such Affiliate otherwise consents in
writing, and Debtor hereby irrevocably acknowledges and agrees that Bankers
Trust Company shall take all such instructions solely from Affiliate, and
neither Affiliate nor Bankers Trust Company shall be obligated to, or liable
for any failure to, act in accordance with any instructions given by Debtor,
so long as this Agreement shall remain in effect.
19. This Agreement shall be construed in accordance with and be governed by
the law of the State of New York.
20. All notices required herein shall be by telefax, nationally-recognized
overnight courier, or certified U. S. mail, and sent to the parties at the
addresses below:
If to Bank:
Bankers Trust Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: The Private Bank
▇▇▇▇▇▇ ▇. ▇▇▇▇, Principal
and if to Borrower.
Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
c/▇ ▇▇▇▇▇▇▇ & Pillow, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
cc: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
and shall be deemed effective upon receipt of confirmation of delivery, in
the case of telefax transmission, one Business Day after sending, if sent by
a nationally-recognized overnight courier, and three Business Days after
sending, if sent by certified U.S. mail.
21. This Agreement amends, restates and replaces in its entirety the Borrower
Security Pledge Agreement dated June 25, 1997 (the "Prior Pledge") but the
lien granted on the "Collateral" securing the "Obligations" as defined and
provided under the Prior Pledge shall be a continuing one on the Collateral
securing the Obligations hereunder.
IN WITNESS WHEREOF, Debtor has executed and delivered this Agreement, in the
case of a corporation, by its duly authorized officer(s) or representatives,
as of the 9th day of February, 1998.
Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Debtor (Full Legal Name)
By /s/ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Personal Representative
Bankers Trust Company
Secured Party
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Principal
Schedule A
AFFILIATES OF BANKERS TRUST COMPANY
[NONE]
Schedule B
Listed Securities
One or more certificates representing ownership of the following
securities of the Borrower delivered to and held by Bank in the Custody
Account specified in Section 1 of this Agreement, accompanied by a duly
executed stock power for each such certificate:
Issuer Type of Security Registered Owner
------ ---------------- ----------------
Tele-Communications, Inc./ Series A Common Stock Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Series A. Liberty Media Group
Tele-Communications, Inc./ Series B Common Stock Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Series B Liberty Media Group
Tele-Communications, Inc./ Series A Common Stock Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Series A TCI Group Common Stock
Tele-Communications, Inc./ Series B Common Stock Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Series B TCI Group Common Stock
Tele-Communications, Inc./ Series A Common Stock Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Series A TCI Ventures Group
Common Stock
Tele-Communications, Inc./ Series B Common Stock Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Series B TCI Ventures Group
Common Stock
TCI Satellite Entertainment, Inc. Series A Common Stock Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Common Stock
TCI Satellite Entertainment, Inc. Series B Common Stock Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Common Stock
SCHEDULE C
COLLATERAL MAINTENANCE REQUIREMENTS
1. On the date hereof and on the date of any advance under the Note the
Obligations as a percentage of market value of the Collateral shall be no
greater than 50%. If at any time after the date hereafter the Obligations as
a percentage of market value of the Collateral are greater than 65%, or the
Collateral otherwise fails to meet the Collateral Maintenance Requirements
then in effect, Debtor will, within 5 business days after written notice from
Bank, pledge to Bank such additional collateral as the Bank may require, to
be satisfactory to Bank in its discretion both as to advance rate and
otherwise, and/or repay such portion of the Loan, such that the Obligations
as a Percentage of market value of the Collateral shall be no greater than
60%. All Collateral consisting of securities in a managed account shall be
valued at fair market value, marked to market on a daily basis. Market value
shall be calculated on the basis of the closing price per share or other unit
of the Collateral being valued as reported in The Wall Street Journal or on
the last sale price as reported on the securities exchange or other market
where the unit of Collateral being valued is primarily traded. Each share of
the Series B securities identified on Schedule B shall be valued at the per
share market value of the corresponding Series A security issued by the same
issuer. At such time as TCI (as defined in the Note) has exercised its call
right, or is entitled to exercise its call right, under the ▇▇▇▇▇▇▇ Call
Agreement (as defined in the Note) with respect to any unit of Collateral,
the market value for such unit of Collateral shall be determined at the
lesser of (x) the market value thereof as determined above and (y) the price
per unit of Collateral that TCI is obligated to pay under the ▇▇▇▇▇▇▇ Call
Agreement.
2. Notwithstanding any other provision of this Agreement so long as (i)
(x) no Event of Default has occurred and is continuing or (y) Debtor is not
in default under the terms of any of its Obligations, and (ii) the Bank shall
have received three (3) days written notice from Debtor, Bank shall deliver
to Debtor at Debtor's address specified herein, free from the encumbrance
created by this Agreement. such portions of the Collateral as may be
requested by Debtor, PROVIDED THAT the remaining Collateral continues to
satisfy the Collateral Maintenance Requirements described in paragraph 1
above and provided further that, such delivery by Bank shall be at the sole
cost of Debtor.
3. Section 11 of the Note modifies the collateral maintenance
requirements set forth herein during the Demand Period and after any
Downgrade Date (as such terms am defined therein).
* if the Collateral consists of securities issued by different companies
and/or securities of more than one series issued by the same company, the
proportion that the collateralized shares of each such security or series of
securities bears to the value of all securities held by the Bank as
Collateral under this Pledge Agreement shall be the same prior to and after
the withdrawal of any such securities under this paragraph.
STATE OF COLORADO )
) ss.:
COUNTY OF DENVER )
On the 9TH day of February, 1998, before me personally came ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, to me known to be the individual who executed the foregoing
instrument and, who, being duly sworn by me did depose and say that he is the
personal representative of the Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ and that he
executed the foregoing instrument in the name of the Estate of ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ and that he had authority to sip the same, and acknowledged that he
executed the same an the act and deed of said estate.
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Notary Public
Name:
[Seal]
