EXHIBIT 10.6
SECURITIES PLEDGE AGREEMENT
THIS SECURITIES PLEDGE AGREEMENT (this "Pledge Agreement") is made and
entered into as of this 15th day of May, 2002 by BLOCK COMMUNICATIONS, INC., an
Ohio corporation (the "Borrower" and a "Pledgor"), EACH OF THE UNDERSIGNED
SUBSIDIARIES OF THE BORROWER AND EACH OTHER PERSON WHO SHALL BECOME A PARTY
HERETO BY EXECUTION OF A PLEDGE JOINDER AGREEMENT (each a "Pledgor" and,
collectively with the Borrower, the "Pledgors") and BANK OF AMERICA, N.A., a
national banking association, as Administrative Agent (as defined in the Credit
Agreement referred to below) for each of the Lenders (as defined in the Credit
Agreement referred to below and, collectively with the Administrative Agent, the
"Secured Parties") now or hereafter party to the Credit Agreement (as defined
below). All capitalized terms used but not otherwise defined herein shall have
the respective meanings assigned thereto in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to the Borrower a
revolving credit facility with a letter of credit sublimit and a swingline
sublimit and certain term loan facilities pursuant to the Credit Agreement dated
as of May 15, 2002 among the Borrower, the Administrative Agent and the Lenders
(as from time to time amended, revised, modified, supplemented, amended and
restated, or replaced, renewed, refunded or refinanced, the "Credit Agreement");
and
WHEREAS, each Pledgor (other than the Borrower) is a Domestic
Subsidiary of the Borrower and will materially benefit from the Loans and other
credit facilities made or to be made available under the Credit Agreement, and
in connection therewith and pursuant to the terms of the Credit Agreement each
Pledgor (other than the Borrower) is a party (as signatory or by joinder) to a
Guaranty pursuant to which it has guaranteed the full and prompt payment and
performance of the Obligations and is required to execute and deliver this
Pledge Agreement; and
WHEREAS, the Secured Parties are unwilling to make available or
maintain the credit facilities under the Credit Agreement, or to enter into any
of the Loan Documents, unless each Pledgor enters into this Pledge Agreement;
and
WHEREAS, each of (i) the Borrower, as collateral security for the
payment and performance of its Obligations, and the payment and performance of
its obligations and liabilities (whether now existing or hereafter arising)
hereunder or under any of the other Loan Documents to which it is now or
hereafter becomes a party, and (ii) each other Pledgor, as collateral security
for the payment and performance of its Guarantor's Obligations (as defined in
the Guaranty to which it is a party), and the payment and performance of its
obligations and liabilities (whether now existing or hereafter arising)
hereunder or under any of the other Loan Documents to which it is now or
hereafter becomes a party (such obligations and liabilities of the Borrower and
the
other Pledgors described in clauses (i) and (ii) being referred to collectively
as "Secured Obligations"), is willing to pledge and grant to the Administrative
Agent for the benefit of the Secured Parties a security interest in all of the
Subsidiary Securities of all of its Domestic Subsidiaries, whether now existing
or hereafter created or acquired (collectively, the "Pledged Interests"), and
certain related property, including without limitation the Pledged Interests
more particularly described on Schedule I hereto (such Subsidiaries, together
with all other Subsidiaries whose Subsidiary Securities may be required to be
subject to this Pledge Agreement from time to time, are hereinafter referred to
collectively as the "Pledged Subsidiaries");
NOW, THEREFORE, in order to induce the Secured Parties to enter into
the Credit Agreement and the other Loan Documents and to make or maintain the
credit facilities provided for therein available to or for the account of the
Borrower, and in consideration of the premises and the mutual covenants
contained herein, the parties hereto agree as follows:
1. PLEDGE OF PLEDGED INTERESTS; OTHER COLLATERAL.
(a) As collateral security for the payment and performance by
each Pledgor of its now or hereafter existing Secured Obligations, each
Pledgor hereby grants, pledges and collaterally assigns to the
Administrative Agent for the benefit of the Secured Parties a first
priority security interest in all of the following items of property in
which it now has or may at any time hereafter acquire an interest or
the power to transfer rights therein, and wheresoever located:
(i) the Pledged Interests; and
(ii) all money, securities, security entitlements and
other investment property, dividends, rights, general
intangibles and other property at any time and from time to
time (x) declared or distributed in respect of or in exchange
for or on conversion of any Pledged Interest, or (y) by its or
their terms exchangeable or exercisable for or convertible
into any Pledged Interest; and
(iii) all other property of whatever character or
description, including money, securities, security
entitlements and other investment property, and general
intangibles hereafter delivered to the Administrative Agent in
substitution for or as an addition to any of the foregoing;
and
(iv) all securities accounts to which may at any time
be credited any or all of the foregoing or any proceeds
thereof and all certificates and instruments representing or
evidencing any of the foregoing or any proceeds thereof; and
(v) all proceeds of any of the foregoing.
All such Pledged Interests, certificates, instruments, cash,
securities, interests, dividends, rights and other property referred to
in clauses (i) through (v) of this Section 1 are herein collectively
referred to as the "Collateral."
(b) Subject to Section 10(a), each Pledgor agrees to deliver
all certificates, instruments or other documents representing any
Collateral to the Administrative Agent
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at such location as the Administrative Agent shall from time to time
designate by written notice pursuant to Section 22 for its custody at
all times until termination of this Pledge Agreement, together with
such instruments of assignment and transfer as requested by the
Administrative Agent.
(c) Each Pledgor agrees to execute and deliver, or cause to be
executed and delivered by other Persons, at Pledgor's expense, all
share certificates, documents, instruments, agreements, financing
statements (and amendments thereto and continuations thereof),
assignments, control agreements, or other writings as the
Administrative Agent may request from time to time to carry out the
terms of this Pledge Agreement or to protect or enforce the
Administrative Agent's Lien and security interest in the Collateral
hereunder granted to the Administrative Agent for the benefit of the
Secured Parties and further agrees to do and cause to be done upon the
Administrative Agent's request, at Pledgor's expense, all things
determined by the Administrative Agent to be necessary or advisable to
perfect and keep in full force and effect the Lien in the Collateral
hereunder granted to the Administrative Agent for the benefit of the
Secured Parties, including the prompt payment of all out-of-pocket fees
and expenses incurred in connection with any filings made to perfect or
continue the Lien and security interest in the Collateral hereunder
granted in favor of the Administrative Agent for the benefit of the
Secured Parties.
(d) All filing fees, advances, charges, costs and expenses,
including reasonable Attorney Costs, incurred or paid by the
Administrative Agent or any Lender in exercising any right, power or
remedy conferred by this Pledge Agreement, or in the enforcement
thereof, shall become a part of the Secured Obligations secured
hereunder and shall be paid to the Administrative Agent for the benefit
of the Secured Parties by the Pledgor in respect of which the same was
incurred immediately upon demand therefor, and any amounts not so paid
on demand (in addition to other rights and remedies resulting from such
nonpayment) shall bear interest from the date of demand until paid in
full at the Default Rate.
(e) Each Pledgor agrees to register and cause to be registered
the interest of the Administrative Agent, for the benefit of the
Secured Parties, in the Collateral on its own books and records and the
registration books of each of the Pledged Subsidiaries.
2. STATUS OF PLEDGED INTERESTS. Each Pledgor hereby represents,
warrants and covenants to the Administrative Agent for the benefit of the
Secured Parties, with respect to itself and the Collateral as to which it has or
acquires any interest, that:
(a) All of the Pledged Interests are, as of the date of
execution of this Pledge Agreement or Pledge Joinder Agreement or
Pledge Agreement Supplement by each Pledgor pledging such Pledged
Interests (such date as applicable with respect to each Pledgor, its
"Applicable Date"), and shall at all times thereafter be validly issued
and outstanding, fully paid and non-assessable and constitute all of
the issued and outstanding Subsidiary Securities of all Domestic
Subsidiaries, and are accurately described on Schedule I.
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(b) The Pledgor is as at its Applicable Date and shall at all
times thereafter be the sole registered and record and beneficial owner
of the Pledged Interests, free and clear of all Liens (except Liens
allowed to exist under Section 7.01 of the Credit Agreement), charges,
equities, options, hypothecations, encumbrances and restrictions on
pledge or transfer, including transfer of voting rights (other than the
pledge hereunder and applicable restrictions pursuant to federal and
state and applicable foreign securities laws). Without limiting the
foregoing, the Pledged Interests are not and will not be subject to any
voting trust, shareholders agreement, right of first refusal, voting
proxy, power of attorney or other similar arrangement (other than the
rights hereunder in favor of the Administrative Agent).
(c) At no time shall any Pledged Interests (i) be held or
maintained in the form of a security entitlement or credited to any
securities account and (ii) which constitute a "security" (or as to
which the related Pledged Subsidiary has elected to have treated as a
"security") under Article 8 of the Uniform Commercial Code of the State
of New York or of any other jurisdiction whose laws may govern (the
"UCC") be maintained in the form of uncertificated securities. With
respect to Pledged Interests that are "securities" under the UCC, or as
to which the issuer has elected at any time to have such interests
treated as "securities" under the UCC, such Pledged Interests are, and
shall at all times be, represented by the share certificates listed on
Schedule I hereto, which share certificates, with stock powers duly
executed in blank by the Pledgor, have been delivered to the
Administrative Agent or are being delivered to the Administrative Agent
simultaneously herewith or, in the case of Additional Interests as
defined in Section 21, shall be delivered pursuant to Section 21. In
addition, with respect to all Pledged Interests, including Pledged
Interests that are not "securities" under the UCC and as to which the
applicable Pledged Subsidiary has not elected to have such interests
treated as "securities" under the UCC, the Pledgor has at its
Applicable Date delivered to the Administrative Agent (or has
previously delivered to the Administrative Agent or, in case of
Additional Interests shall deliver pursuant to Section 21) Uniform
Commercial Code financing statements (or appropriate amendments
thereto) duly executed (if necessary) by or on behalf of the Pledgor as
"debtor" and naming the Administrative Agent for the benefit of the
Secured Parties as "secured party," in form, substance and number
sufficient in the reasonable opinion of the Administrative Agent to be
filed in all UCC filing offices and in all jurisdictions in which
filing is necessary or advisable to perfect in favor of the
Administrative Agent for the benefit of the Secured Parties the Lien on
such Pledged Interests, together with all required filing fees.
(d) It has full corporate power, legal right and lawful
authority to execute this Pledge Agreement (and any Pledge Joinder
Agreement or Pledge Agreement Supplement applicable to it) and to
pledge, assign and transfer its Pledged Interests in the manner and
form hereof.
(e) The pledge, assignment and delivery of its Pledged
Interests (along with undated stock powers executed in blank, financing
statements and other items referred to in Section 2(c) hereof) to the
Administrative Agent for the benefit of the Secured Parties pursuant to
this Pledge Agreement (or any Pledge Joinder Agreement or Pledge
Agreement Supplement) creates or continues, as applicable, a valid and
perfected first
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priority security interest in such Pledged Interests in favor of the
Administrative Agent for the benefit of the Secured Parties, securing
the payment of the Secured Obligations, assuming, in the case of the
Pledged Interests which constitute certificated "securities" under the
UCC, continuous and uninterrupted possession by or on behalf of the
Administrative Agent. The Pledgor will defend the Secured Parties'
right, title and security interest in and to the Collateral against the
claims and demands of all persons whomsoever.
(f) Except as otherwise expressly provided herein or in the
Credit Agreement, none of the Pledged Interests (nor any interest
therein or thereto) shall be sold, transferred or assigned without the
Administrative Agent's prior written consent, which may be withheld for
any reason.
(g) It shall at all times cause the Pledged Interests of such
Pledgor that constitute "securities" (or as to which the issuer elects
to have treated as "securities") under the UCC to be represented by the
certificates now and hereafter delivered to the Administrative Agent in
accordance with Sections 1, 2 and 21 hereof and that it shall cause
each of the Pledged Subsidiaries as to which it is the Pledgor not to
issue any Subsidiary Securities, or securities convertible into, or
exchangeable or exercisable for, Subsidiary Securities, at any time
during the term of this Pledge Agreement unless the Pledged Interests
of such Pledge Subsidiary are issued solely to either (y) such Pledgor
who shall immediately comply with Sections 2 and 21 hereof with respect
to such property or (z) the Borrower or another Guarantor who shall
immediately pledge such additional Subsidiary Securities to the
Administrative Agent for the benefit of the Secured Parties pursuant to
Section 21 or 23 hereof, as applicable, on substantially identical
terms as are contained herein and deliver or cause to be delivered the
appropriate documents described in Section 2(c) hereof to the
Administrative Agent and take such further actions as the
Administrative Agent may deem necessary in order to perfect a first
priority security interest in such Subsidiary Securities.
(h) The exact legal name and address, type of Person,
jurisdiction of formation, jurisdiction of formation identification
number, and location of the chief executive office of such Pledgor are
(i) with respect to each Pledgor granting a Lien to the Administrative
Agent under a Security Instrument at the Closing Date, as specified on
Schedule 2A.03 to the Credit Agreement, and (ii) with respect to each
other Pledgor, as specified on Schedule II attached hereto. No Pledgor
shall change its name, jurisdiction of formation (whether by
reincorporation, merger or otherwise), or the location of its chief
executive office, except upon giving written notice to the
Administrative Agent not more than ten (10) days after the taking of
such action and taking or causing to be taken all such action at such
Pledgor's expense as may be reasonably requested by the Administrative
Agent to perfect or maintain the perfection of the Lien of the
Administrative Agent in Collateral.
3. PRESERVATION AND PROTECTION OF COLLATERAL.
(a) Except for the exercise of reasonable care in the custody
and preservation of any Collateral in its possession and accounting for
monies received by it pursuant to
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this Security Agreement, the Administrative Agent shall be under no
duty or liability with respect to the collection, protection or
preservation of the Collateral.
(b) Each Pledgor agrees to pay when due all taxes, charges,
Liens and assessments against the Collateral in which it has an
interest, unless being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves
have been established in accordance with GAAP applied on a basis
consistent with that used in preparing the Audited Financial Statements
and evidenced to the satisfaction of the Administrative Agent and
provided that all enforcement proceedings in the nature of levy or
foreclosure are effectively stayed. Upon the failure of any Pledgor to
so pay or contest such taxes, charges, Liens or assessments, or upon
the failure of any Pledgor to pay any amount pursuant to Section 1(c),
the Administrative Agent at its option may pay or contest any of them
(the Administrative Agent having the sole right to determine the
legality or validity and the amount necessary to discharge such taxes,
charges, Liens or assessments) but shall not have any obligation to
make any such payment or contest. All sums so disbursed by the
Administrative Agent, including reasonable Attorney Costs, court costs,
expenses and other charges related thereto, shall be payable on demand
by the applicable Pledgor to the Administrative Agent and shall be
additional Secured Obligations secured by the Collateral, and any
amounts not so paid on demand (in addition to other rights and remedies
resulting from such nonpayment) shall bear interest from the date of
demand until paid in full at the Default Rate.
(c) Each Pledgor hereby (i) irrevocably authorizes the
Administrative Agent to file (with, or to the extent permitted by
applicable law, without the signature of the Pledgor appearing thereon)
financing statements (including amendments thereto and continuations
and copies thereof) showing such Pledgor as "debtor" at such time or
times and in all filing offices as the Administrative Agent may from
time to time determine to be necessary or advisable to perfect or
protect the rights of the Administrative Agent and the Secured Parties
hereunder, or otherwise to give effect to the transactions herein
contemplated, and (ii) irrevocably ratifies and acknowledges all such
actions taken by or on behalf of the Administrative Agent prior to the
Applicable Date.
4. DEFAULT. Upon the occurrence and during the continuance of any Event
of Default, the Administrative Agent is given full power and authority, then or
at any time thereafter, to sell, assign, deliver or collect the whole or any
part of the Collateral, or any substitute therefor or any addition thereto, in
one or more sales, with or without any previous demands or demand of performance
or, to the extent permitted by law, notice or advertisement, in such order as
the Administrative Agent may elect; and any such sale may be made either at
public or private sale at the Administrative Agent's place of business or
elsewhere, either for cash or upon credit or for future delivery, at such price
or prices as the Administrative Agent may reasonably deem fair; and the
Administrative Agent or any other Secured Party may be the purchaser of any or
all Collateral so sold and hold the same thereafter in its own right free from
any claim of any Pledgor or right of redemption. Demands of performance,
advertisements and presence of property and sale and notice of sale are hereby
waived to the extent permissible by law. Any sale hereunder may be conducted by
an auctioneer or any officer or agent of the Administrative Agent. Each Pledgor
recognizes that the Administrative Agent may be unable to effect a public sale
of the Collateral by reason of certain prohibitions contained in the Securities
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Act of 1933, as amended (the "Securities Act"), and applicable state law, and
may be otherwise delayed or adversely affected in effecting any sale by reason
of present or future restrictions thereon imposed by governmental authorities,
and that as a consequence of such prohibitions and restrictions the
Administrative Agent may be compelled (i) to resort to one or more private sales
to a restricted group of purchasers who will be obliged to agree, among other
things, to acquire the Collateral for their own account, for investment and not
with a view to the distribution or resale thereof, or (ii) to seek regulatory
approval of any proposed sale or sales, or (iii) to limit the amount of
Collateral sold to any Person or group. Each Pledgor agrees and acknowledges
that private sales so made may be at prices and upon terms less favorable to
such Pledgor than if such Collateral was sold either at public sales or at
private sales not subject to other regulatory restrictions, and that the
Administrative Agent has no obligation to delay the sale of any of the
Collateral for the period of time necessary to permit the Pledged Subsidiary to
register or otherwise qualify the Collateral, even if such Pledged Subsidiary
would agree to register or otherwise qualify such Collateral for public sale
under the Securities Act or applicable state law. Each Pledgor further agrees,
to the extent permitted by applicable law, that the use of private sales made
under the foregoing circumstances to dispose of the Collateral shall be deemed
to be dispositions in a commercially reasonable manner. Each Pledgor hereby
acknowledges that a ready market may not exist for the Pledged Interests if they
are not traded on a national securities exchange or quoted on an automated
quotation system and agrees and acknowledges that in such event the Pledged
Interests may be sold for an amount less than a pro rata share of the fair
market value of the Pledged Subsidiary's assets minus its liabilities. In
addition to the foregoing, the Secured Parties may exercise such other rights
and remedies as may be available under the Loan Documents, at law (including
without limitation the UCC) or in equity. The Administrative Agent shall provide
prompt notice to the Borrower of its exercise of remedies under this Section 4,
provided that such notice may be general in nature and neither the failure to
give, nor any delay in giving, such notice shall have any effect on the validity
or effectiveness of any action taken hereunder.
5. PROCEEDS OF SALE. The net cash proceeds resulting from the
collection, liquidation, sale or other disposition of the Collateral shall be
applied first to the expenses (including all Attorneys' Costs) of retaking,
holding, storing, processing and preparing for sale, selling, collecting,
liquidating and the like, and then to the satisfaction of all Secured
Obligations in accordance with the terms of Section 2.14 of the Credit
Agreement. Each Pledgor shall be liable to the Administrative Agent, for the
benefit of the Secured Parties, and shall pay to the Administrative Agent, for
the benefit of the Secured Parties, on demand any deficiency which may remain
after such sale, disposition, collection or liquidation of the Collateral.
6. PRESENTMENTS, DEMANDS AND NOTICES. The Administrative Agent shall
not be under any duty or obligation whatsoever to make or give any presentments,
demands for performances, notices of nonperformance, protests, notice of protest
or notice of dishonor in connection with any obligations or evidences of
indebtedness held thereby as collateral, or in connection with any obligations
or evidences of indebtedness which constitute in whole or in part the Secured
Obligations secured hereunder.
7. ATTORNEY-IN-FACT. Each Pledgor hereby appoints the Administrative
Agent as the Pledgor's attorney-in-fact for the purposes of carrying out the
provisions of this Pledge Agreement and taking any action and executing any
instrument which the Administrative Agent
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may deem necessary or advisable to accomplish the purposes hereof, which
appointment is irrevocable and coupled with an interest; provided, that the
Administrative Agent shall have and may exercise rights under this power of
attorney only upon the occurrence and during the continuance of an Event of
Default. Without limiting the generality of the foregoing, upon the occurrence
and during the continuance of an Event of Default, the Administrative Agent
shall have the right and power to receive, endorse and collect all checks and
other orders for the payment of money made payable to any Pledgor representing
any dividend, interest payment, principal payment or other distribution payable
or distributable in respect to the Collateral or any part thereof and to give
full discharge for the same.
8. REINSTATEMENT. The granting of a security interest in the Collateral
and the other provisions hereof shall continue to be effective or be reinstated,
as the case may be, if at any time any payment of any of the Secured Obligations
is rescinded or must otherwise be returned by any Secured Party or is repaid by
any Secured Party in whole or in part in good faith settlement of a pending or
threatened avoidance claim, whether upon the insolvency, bankruptcy or
reorganization of any Pledgor or any other Loan Party or otherwise, all as
though such payment had not been made. The provisions of this Section 8 shall
survive repayment of all of the Secured Obligations and the termination or
expiration of this Pledge Agreement in any manner, including but not limited to
termination upon occurrence of the Facility Termination Date. For purposes of
this Pledge Agreement, "Facility Termination Date" means the date as of which
all of the following shall have occurred: (a) the Borrower shall have
permanently terminated the credit facilities under the Loan Documents by final
payment in full of all Outstanding Amounts, together with all accrued and unpaid
interest and fees thereon, other than (i) the undrawn portion of Letters of
Credit and (ii) all letter of credit fees relating thereto accruing after such
date (which fees shall be payable solely for the account of the Issuing Bank and
shall be computed (based on interest rates then in effect) on such undrawn
amounts to the respective expiry dates of the Letters of Credit), in each case
as have been fully Cash Collateralized or as to which other arrangements with
respect thereto satisfactory to the Administrative Agent and the L/C Issuer
shall have been made; (b) all Related Swap Contracts shall have been terminated,
expired or Cash Collateralized (or other arrangements satisfactory to the
Administrative Agent shall have been made); (c) all Aggregate Commitments shall
have terminated or expired; and (d) the Borrower shall have fully, finally and
irrevocably paid and satisfied in full all other Obligations (except for
Obligations consisting of continuing indemnities and other contingent
Obligations of the Borrower or any Loan Party that may be owing to any
Agent-Related Person or any Lender pursuant to the Loan Documents and expressly
survive termination of this Pledge Agreement).
9. WAIVER BY THE PLEDGORS. Each Pledgor waives to the extent permitted
by applicable law (a) any right to require any Secured Party or any other
obligee of the Secured Obligations to (i) proceed against any Person or entity,
including without limitation any Loan Party, (ii) proceed against or exhaust any
Collateral or other collateral for the Secured Obligations, or (iii) pursue any
other remedy in its power, (b) any defense arising by reason of any disability
or other defense of any other Person, or by reason of the cessation from any
cause whatsoever of the liability of any other Person or entity, (c) any right
of subrogation, (d) any right to enforce any remedy which any Secured Party or
any other obligee of the Secured Obligations now has or may hereafter have
against any other Person and any benefit of and any right to participate in any
collateral or security whatsoever now or hereafter held by the Administrative
Agent for the benefit of the Secured Parties. Each Pledgor authorizes each
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Secured Party and each other obligee of the Secured Obligations without notice
(except notice required by applicable law) or demand and without affecting its
liability hereunder or under the Loan Documents from time to time to: (x) take
and hold security, other than the Collateral herein described, for the payment
of such Secured Obligations or any part thereof, and exchange, enforce, waive
and release the Collateral herein described or any part thereof or any such
other security; and (y) apply such Collateral or other security and direct the
order or manner of sale thereof as such Secured Party or obligee in its
discretion may determine.
The Administrative Agent may at any time deliver (without
representation, recourse or warranty) the Collateral or any part thereof to a
Pledgor and the receipt thereof by such Pledgor shall be a complete and full
acquittance for the Collateral so delivered, and the Administrative Agent shall
thereafter be discharged from any liability or responsibility therefor.
10. DIVIDENDS AND VOTING RIGHTS.
(a) All dividends and other distributions with respect to any
of the Pledged Interests shall be subject to the pledge hereunder,
provided, however, that cash dividends paid to a Pledgor as record
owner of the Pledged Interests, to the extent permitted by the Credit
Agreement to be declared and paid, may be retained by such Pledgor so
long as no Event of Default shall have occurred and be continuing, free
from any Liens hereunder.
(b) So long as no Event of Default shall have occurred and be
continuing, the registration of the Collateral in the name of a Pledgor
as record and beneficial owner shall not be changed and such Pledgor
shall be entitled to exercise all voting and other rights and powers
pertaining to the Collateral for all purposes not inconsistent with the
terms hereof.
(c) Upon the occurrence and during the continuance of any
Event of Default, and notice by the Administrative Agent to the
Pledgors with respect thereto, all rights of the Pledgors to receive
and retain cash dividends and other distributions upon the Collateral
pursuant to subsection (a) above shall cease and shall thereupon be
vested in the Administrative Agent for the benefit of the Secured
Parties, and each Pledgor shall promptly deliver, or shall cause to be
promptly delivered, all such cash dividends and other distributions
with respect to the Pledged Interests to the Administrative Agent
(together, if the Administrative Agent shall request, with the
documents described in Sections 1(c) and 2(c) hereof or other
negotiable documents or instruments so distributed) to be held by it
hereunder or, at the option of the Administrative Agent, to be applied
to the Secured Obligations. Pending delivery to the Administrative
Agent of such property, each Pledgor shall keep such property
segregated from its other property and shall be deemed to hold the same
in trust for the benefit of the Secured Parties.
(d) Upon the occurrence and during the continuance of any
Event of Default, at the option of the Administrative Agent, all rights
of each of the Pledgors to exercise the voting or consensual rights and
powers which it is authorized to exercise pursuant to subsection (b)
above shall cease and the Administrative Agent may thereupon (but shall
not be obligated to), at its request, cause such Collateral to be
registered in the name of the Administrative Agent or its nominee or
agent for the benefit of the Secured Parties
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and/or exercise such voting or consensual rights and powers as
appertain to ownership of such Collateral, and to that end each Pledgor
hereby appoints the Administrative Agent as its proxy, with full power
of substitution, to vote and exercise all other rights as a shareholder
with respect to such Pledged Interests hereunder upon the occurrence
and during the continuance of any Event of Default, which proxy is
coupled with an interest and is irrevocable until the Facility
Termination Date, and each Pledgor hereby agrees to provide such
further proxies as the Administrative Agent may request; provided,
however, that the Administrative Agent in its discretion may from time
to time refrain from exercising, and shall not be obligated to
exercise, any such voting or consensual rights or such proxy.
11. CONTINUED POWERS. Until the Facility Termination Date shall have
occurred, the power of sale and other rights, powers and remedies granted to the
Administrative Agent for the benefit of the Secured Parties hereunder shall
continue to exist and may be exercised by the Administrative Agent at any time
and from time to time irrespective of the fact that any of the Secured
Obligations or any part thereof may have become barred by any statute of
limitations or that any part of the liability of any Pledgor may have ceased.
12. OTHER RIGHTS. The rights, powers and remedies given to the
Administrative Agent for the benefit of the Secured Parties by this Pledge
Agreement shall be in addition to all rights, powers and remedies given to the
Administrative Agent or any Secured Party under any Related Agreement or by
virtue of any statute or rule of law. Any forbearance or failure or delay by the
Administrative Agent in exercising any right, power or remedy hereunder shall
not be deemed to be a waiver of such right, power or remedy, and any single or
partial exercise of any right, power or remedy hereunder shall not preclude the
further exercise thereof; and every right, power and remedy of the Secured
Parties shall continue in full force and effect until such right, power or
remedy is specifically waived in accordance with the terms of the Credit
Agreement.
13. ANTI-MARSHALING PROVISIONS. The right is hereby given by each
Pledgor to the Administrative Agent, for the benefit of the Secured Parties, to
make releases (whether in whole or in part) of all or any part of the Collateral
agreeable to the Administrative Agent without notice to, or the consent,
approval or agreement of other parties and interests, including junior lienors,
which releases shall not impair in any manner the validity of or priority of the
Liens and security interests in the remaining Collateral conferred hereunder,
nor release any Pledgor from personal liability for the Secured Obligations.
Notwithstanding the existence of any other security interest in the Collateral
held by the Administrative Agent, for the benefit of the Secured Parties, the
Administrative Agent shall have the right to determine the order in which any or
all of the Collateral shall be subjected to the remedies provided in this Pledge
Agreement. Each Pledgor hereby waives any and all right to require the
marshaling of assets in connection with the exercise of any of the remedies
permitted by applicable law or provided herein or in any Related Agreement.
14. ENTIRE AGREEMENT. This Pledge Agreement and each Pledge Joinder
Agreement and each Pledge Agreement Supplement, together with the Credit
Agreement and other Loan Documents, constitutes and expresses the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior negotiations, agreements and understandings,
inducements, commitments or conditions, express or implied, oral or written,
10
except as herein contained. The express terms hereof and of the Pledge Joinder
Agreements and of the Pledge Agreement Supplements control and supersede any
course of performance or usage of the trade inconsistent with any of the terms
hereof and thereof. Neither this Pledge Agreement nor any Pledge Joinder
Agreement nor any Pledge Agreement Supplement, nor any portion or provision
hereof or thereof, may be changed, altered, modified, supplemented, discharged,
canceled, terminated, or amended orally or in any manner other than as provided
in the Credit Agreement.
15. FURTHER ASSURANCES. Each Pledgor agrees at its own expense to do
such further acts and things, and to execute and deliver, and cause to be
executed and delivered as may be necessary or advisable to give effect thereto,
such additional conveyances, assignments, financing statements, control
agreements, documents, certificates, stock powers, agreements and instruments,
as the Administrative Agent may at any time reasonably request in connection
with the administration or enforcement of this Pledge Agreement or any Pledge
Joinder Agreement or any Pledge Agreement Supplement or related to the
Collateral or any part thereof or in order better to assure and confirm unto the
Administrative Agent its rights, powers and remedies for the benefit of the
Secured Parties hereunder or thereunder. Each Pledgor hereby consents and agrees
that the Pledged Subsidiaries and all other Persons, shall be entitled to accept
the provisions hereof and of the Pledge Joinder Agreements and of the Pledge
Agreement Supplements as conclusive evidence of the right of the Administrative
Agent, on behalf of the Secured Parties, to exercise its rights, privileges, and
remedies hereunder and thereunder with respect to the Collateral,
notwithstanding any other notice or direction to the contrary heretofore or
hereafter given by any Pledgor or any other Person to any of such Pledged
Subsidiaries or other Persons.
16. BINDING AGREEMENT; ASSIGNMENT. This Pledge Agreement and each
Pledge Joinder Agreement and each Pledge Agreement Supplement, and the terms,
covenants and conditions hereof and thereof, shall be binding upon and inure to
the benefit of the parties hereto, and to their respective successors and
assigns, except that no Pledgor shall be permitted to assign this Pledge
Agreement, any Pledge Joinder Agreement, any Pledge Agreement Supplement, or any
interest herein or therein or in the Collateral, or any part thereof or interest
therein, or otherwise pledge, encumber or grant any option with respect to the
Collateral, or any part thereof, or any cash or property held by the
Administrative Agent as Collateral under this Pledge Agreement. Without limiting
the generality of the foregoing sentence of this Section 16, any Lender may
assign to one or more Persons, or grant to one or more Persons participations in
or to, all or any part of its rights and obligations under the Credit Agreement
(to the extent permitted by the Credit Agreement); and to the extent of any such
assignment or participation such other Person shall, to the fullest extent
permitted by law, thereupon become vested with all the benefits in respect
thereof granted to such Lender herein or otherwise, subject however, to the
provisions of the Credit Agreement, including Article IX thereof (concerning the
Administrative Agent) and Section 10.07 thereof (concerning assignments and
participations). All references herein to the Administrative Agent and to the
Secured Parties shall include any successor thereof or permitted assignee, and
any other obligees from time to time of the Secured Obligations.
17. RELATED SWAP CONTRACTS. All obligations of each Pledgor under or in
respect of Related Swap Contracts (which are not prohibited under the terms of
the Credit Agreement) to
11
which any Lender or any Affiliate of any Lender is a party, shall be deemed to
be Secured Obligations secured hereby, and each Lender or Affiliate of a Lender
party to any such Related Swap Contract shall be deemed to be a Secured Party
hereunder with respect to such Secured Obligations; provided, however, that such
obligations shall cease to be Secured Obligations at such time as such Person
(or Affiliate of such Person) shall cease to be a "Lender" under the Credit
Agreement.
No Person who obtains the benefit of any Lien by virtue of the
provisions of this Section 17 shall have any right to notice of any action or to
consent to, direct or object to any action hereunder or under any other Loan
Document or otherwise in respect of the Collateral (including the release or
impairment of any Collateral) other than in its capacity as a Lender and only to
the extent expressly provided in the Loan Documents.
18. SEVERABILITY. The provisions of this Pledge Agreement are
independent of and separable from each other. If any provision hereof shall for
any reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity or enforceability of any other provision hereof,
but this Pledge Agreement shall be construed as if such invalid or unenforceable
provision had never been contained herein.
19. COUNTERPARTS. This Pledge Agreement may be executed in any number
of counterparts each of which when so executed and delivered shall be deemed an
original, and all of which together shall constitute one and the same
instrument, and it shall not be necessary in making proof of this Pledge
Agreement to produce or account for more than one such counterpart executed by
the Pledgor against whom enforcement is sought. Without limiting the foregoing
provisions of this Section 19, the provisions of Section 10.02(b) of the Credit
Agreement shall be applicable to this Pledge Agreement.
20. TERMINATION.
(a) Subject to the provisions of Section 8, this Pledge Agreement and
each Pledge Joinder Agreement and each Pledge Agreement Supplement, and all
obligations of the Pledgors hereunder (excluding those obligations and
liabilities that expressly survive such termination) shall terminate without
delivery of any instrument or performance of any act by any party on the
Facility Termination Date. Upon such termination of this Pledge Agreement, the
Administrative Agent shall, at the sole expense of the Pledgors, promptly
deliver to the Pledgors the certificates evidencing its shares of Pledged
Interests (and any other property received as a dividend or distribution or
otherwise in respect of such Pledged Interests to the extent then held by the
Administrative Agent as additional Collateral hereunder), together with any cash
then constituting the Collateral not then sold or otherwise disposed of in
accordance with the provisions hereof, and take such further actions at the
request of the Pledgors as may be necessary to effect the same.
(b) In the event that all of the Subsidiary Securities issued by any
Pledgor are Disposed of by the Borrower and/or any Pledgor, and such Disposition
is expressly permitted by the Credit Agreement, then all obligations of such
disposed Pledgor hereunder (excluding those obligations and liabilities that
expressly survive such termination) shall terminate without delivery of any
instrument or performance of any act by any party, and the Administrative Agent
12
shall, at the request and sole expense of the Pledgor, promptly deliver to the
Pledgors such termination statements and take such further actions as the
Pledgors may reasonably request to terminate of record, or otherwise to give
appropriate notice of the termination of, any Lien conferred hereunder.
21. ADDITIONAL INTERESTS. If any Pledgor shall at any time acquire or
hold any additional Pledged Interests, including any Pledged Interests issued by
any Subsidiary not listed on Schedule I hereto which are required to be subject
to a Lien pursuant to a Pledge Agreement by the terms hereof or of Article IIA
or Section 6.14 or any other provision of the Credit Agreement (any such shares
being referred to herein as the "Additional Interests"), such Pledgor shall
deliver to the Administrative Agent for the benefit of the Secured Parties (i) a
Pledge Agreement Supplement in the form of Exhibit A hereto with respect to such
Additional Interests duly completed and executed by such Pledgor and (iii) any
other document required in connection with such Additional Interests as
described in Section 2(c). Each Pledgor shall comply with the requirements of
this Section 21 concurrently with the acquisition of any such Additional
Interests or, in the case of Additional Interests to which Section 6.14 of the
Credit Agreement applies, within the time period specified in Article IIA,
Section 6.14 or elsewhere in the Credit Agreement with respect to such
Additional Interests; provided, however, that the failure to comply with the
provisions of this Section 21 shall not impair the Lien on Additional Interests
conferred hereunder.
22. NOTICES. Any notice required or permitted hereunder shall be given
(a) with respect to the Borrower, at the address for the giving of notice
thereto then in effect under the Credit Agreement, (b) with respect to each
Subsidiary which is a Pledgor hereunder, at the address then in effect for the
giving of notices to such Subsidiary under the Guaranty to which it is a party,
and (c) with respect to the Administrative Agent or a Lender, at the
Administrative Agent's address indicated in Schedule 10.02 of the Credit
Agreement. All such addresses may be modified, and all such notices shall be
given and shall be effective, as provided in Section 10.02 of the Credit
Agreement for the giving and effectiveness of notices and modifications of
addresses thereunder.
23. JOINDER. Each Person who shall at any time execute and deliver to
the Administrative Agent a Pledge Joinder Agreement substantially in the form
attached as Exhibit B hereto shall thereupon irrevocably, absolutely and
unconditionally become a party hereto and obligated hereunder as a Pledgor and
shall have thereupon pursuant to Section 1 hereof granted a security interest in
and collaterally assigned and pledged to the Administrative Agent for the
benefit of the Secured Parties all Pledged Interests which it has at its
Applicable Date or thereafter acquires any interest or the power to transfer,
and all references herein and in the other Loan Documents to the Pledgors or to
the parties to this Pledge Agreement shall be deemed to include such Person as a
Pledgor hereunder. Each Pledge Joinder Agreement shall be accompanied by the
Supplemental Schedules referred to therein, appropriately completed with
information relating to the Pledgor executing such Pledge Joinder Agreement and
its property. Each of the applicable Schedules attached hereto shall be deemed
amended and supplemented without further action by such information reflected on
the Supplemental Schedules.
24. RULES OF INTERPRETATION. The rules of interpretation contained in
Sections 1.02 and 1.05 of the Credit Agreement shall be applicable to this
Pledge Agreement and each Pledge
13
\Joinder Agreement and each Pledge Agreement Supplement and are hereby
incorporated by reference. All representations and warranties contained herein
shall survive the delivery of documents and any Credit Extensions referred to
herein or secured hereby.
26. RELEASE. Upon the Disposition of any item of Collateral, so long as
such Disposition is permitted under Section 7.05 of the Credit Agreement and all
conditions to such Disposition contained therein have been satisfied:
(a) the Lien of the Administrative Agent for the benefit of
the Secured Parties in such disposed Collateral shall, subject to the
provision at the end of this subsection (a), be deemed to be released
without any further action on the part of the Administrative Agent or
the relevant Grantor, provided that in the event following any such
Disposition any Grantor shall thereafter acquire any interest in (or
the power to transfer rights in) any asset that constituted Collateral
hereunder prior to its Disposition and release from the security
interests hereunder, the pledge, assignment and security interest
granted hereunder shall be deemed to automatically apply and attach to
such asset and it shall from such time forward continue to constitute
Collateral hereunder notwithstanding any prior release; and
(b) the Administrative Agent will (other than in connection
with sales of Inventory in the ordinary course of business), at the
Grantors' expense, execute and deliver to each Grantor such documents
as such Grantor shall reasonably request on reasonable advance notice
to evidence the release of such item of Collateral from the pledge,
assignment and security interest granted hereunder, provided that such
Grantor shall have delivered to the Collateral Agent a written request
for release describing the item of Collateral and the terms of the
Disposition thereof in reasonable detail, including the price thereof
and any expenses in connection therewith.
25. GOVERNING LAW; WAIVERS.
(a) THIS PLEDGE AGREEMENT AND EACH PLEDGE JOINDER AGREEMENT
AND EACH PLEDGE AGREEMENT SUPPLEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH
STATE; PROVIDED THAT (i) WITH RESPECT TO THOSE INSTANCES IN WHICH THE
APPLICABLE CHOICE OF LAWS RULES OF SUCH STATE, INCLUDING SECTION 9-301
OF THE UCC, REQUIRE THAT THE MANNER OF CREATION OF A SECURITY INTEREST
IN SPECIFIC COLLATERAL OR THE MANNER OR EFFECT OF PERFECTION OR
NONPERFECTION OR THE RULES GOVERNING PRIORITY OF SECURITY INTERESTS ARE
TO BE GOVERNED BY THE LAWS OF ANOTHER JURISDICTION, THEN THE LAWS OF
SUCH OTHER JURISDICTION SHALL GOVERN SUCH MATTERS, AND (ii) IN THOSE
INSTANCES IN WHICH THE LAWS OF THE JURISDICTION IN WHICH COLLATERAL IS
LOCATED GOVERN MATTERS PERTAINING TO THE METHODS AND EFFECT OF
REALIZING ON COLLATERAL, SUCH LAWS SHALL BE GIVEN EFFECT WITH RESPECT
TO SUCH MATTERS.
14
(b) EACH PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS PLEDGE AGREEMENT OR ANY PLEDGE JOINDER AGREEMENT OR ANY PLEDGE
AGREEMENT SUPPLEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN
MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE XXXXXX
XX XXX XXXX, XXXXX XX XXX XXXX, XXXXXX XXXXXX OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS PLEDGE AGREEMENT OR A PLEDGE JOINDER
AGREEMENT OR A PLEDGE AGREEMENT SUPPLEMENT, EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE
OR TO THE JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND
IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION
OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH PLEDGOR AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF SUCH PLEDGOR
PROVIDED IN SECTION 22 OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR
UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW YORK.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL
PRECLUDE THE ADMINISTRATIVE AGENT FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS PLEDGE AGREEMENT OR ANY
PLEDGE JOINDER AGREEMENT OR ANY PLEDGE AGREEMENT SUPPLEMENT OR THE
OTHER LOAN DOCUMENTS IN THE COURTS OF ANY PLACE WHERE ANY PLEDGOR OR
ANY OF SUCH PLEDGOR'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO
THE EXTENT PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION,
EACH PLEDGOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH
COURT AND EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR
PROCEEDING, OBJECTION TO THE EXERCISE OF JURISDICTION OVER IT AND ITS
PROPERTY BY ANY SUCH OTHER COURT OR COURTS WHICH NOW OR HEREAFTER, BY
REASON OF ITS PRESENT OR FUTURE DOMICILE, OR OTHERWISE, MAY BE
AVAILABLE UNDER APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS PLEDGE AGREEMENT OR ANY
PLEDGE JOINDER AGREEMENT OR ANY PLEDGE AGREEMENT SUPPLEMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION WITH THE FOREGOING, EACH PARTY
HEREBY AGREES, TO THE EXTENT PERMITTED BY APPLICABLE
15
LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY AND HEREBY WAIVES, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL BY JURY IN
ANY SUCH ACTION, SUIT OR PROCEEDING.
(F) EACH PLEDGOR HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY
HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO
THE TERMS HEREOF IS AN INCONVENIENT FORUM.
[SIGNATURE PAGES FOLLOW.]
16
IN WITNESS WHEREOF, the parties have duly executed this Securities
Pledge Agreement on the day and year first written above.
PLEDGORS:
BLOCK COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Block
---------------------------------
Name: Xxxxx X. Block
---------------------------------
Title: Managing Director
---------------------------------
BUCKEYE CABLEVISION, INC.
By: /s/ Xxxxx X. Block
---------------------------------
Name: Xxxxx X. Block
---------------------------------
Title: Chairman
---------------------------------
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative
Agent for the Lenders
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
---------------------------------
Title: Principal
---------------------------------
Pledge Agreement
Signature Page 2
EXHIBIT A
PLEDGE AGREEMENT SUPPLEMENT
THIS PLEDGE AGREEMENT SUPPLEMENT (as from time to time amended,
modified or restated, this "Supplement"), dated as of ______________ ___, ____
is made by and between ____________, a __________ corporation (the "Pledgor"),
and BANK OF AMERICA, N.A., a national banking association, as Administrative
Agent for each of the Lenders (as described in the Pledge Agreement referred to
below) now or hereafter party to the Credit Agreement (as defined in the Pledge
Agreement referred to below). All capitalized terms used but not otherwise
defined herein shall have the respective meanings assigned thereto in the Pledge
Agreement (as defined below).
WHEREAS, the Pledgor is required under the terms of that certain
Securities Pledge Agreement dated as of May 15, 2002 executed by the Pledgor
(among others), or to which the Pledgor has been joined as a party pursuant to a
Pledge Joinder Agreement, in favor of the Administrative Agent for the benefit
of the Secured Parties (as from time to time amended, modified, supplemented or
amended and restated, the "Pledge Agreement"), to cause certain Pledged
Interests held by it and listed on Annex A to this Supplement (the "Additional
Interests") to be specifically identified as subject to the Pledge Agreement;
and
WHEREAS, a material part of the consideration given in connection with
and as an inducement to the execution and delivery of the Credit Agreement by
the Secured Parties was the obligation of the Pledgor to pledge to the
Administrative Agent for the benefit of the Secured Parties the Additional
Interests, whether then owned or subsequently acquired or created; and
WHEREAS, the Pledgor has acquired rights in the Additional Interests
and desires to pledge, and evidence its prior pledge, to the Administrative
Agent for the benefit of the Secured Parties all of the Additional Interests in
accordance with the terms of the Credit Agreement and the Pledge Agreement;
NOW, THEREFORE, the Pledgor hereby agrees as follows with the
Administrative Agent, for the benefit of the Secured Parties:
The Pledgor hereby reaffirms and acknowledges the pledge and collateral
assignment to, and the grant of security interest in, the Additional Interests
contained in the Pledge Agreement and pledges and collaterally assigns to the
Administrative Agent for the benefit of the Secured Parties, and grants to the
Administrative Agent for the benefit of the Secured Parties a first priority
lien and security interest in, the Additional Interests and all of the
following:
(a) all money, securities, security entitlements and other
investment property, dividends, rights, general intangibles and other
property at any time and from time to time (x) declared or distributed
in respect of or in exchange for or on conversion of any or all of the
Additional Interests or (y) by its or their terms exchangeable or
exercisable for or convertible into any Additional Interest or other
Pledged Interest;
(b) all other property of whatever character or description,
including money, securities, security entitlements and other investment
property, and general intangibles
hereafter delivered to the Administrative Agent in substitution for or
as an addition to any of the foregoing;
(c) all securities accounts to which may at any time be
credited any or all of the foregoing or any proceeds thereof and all
certificates and instruments representing or evidencing any of the
foregoing or any proceeds thereof; and
(d) all proceeds of any of the foregoing.
The Pledgor hereby acknowledges, agrees and confirms by its execution of this
Supplement that the Additional Interests constitute "Pledged Interests" under
and are subject to the Pledge Agreement, and the items of property referred to
in clauses (a) through (d) above (the "Additional Collateral") shall
collectively constitute "Collateral" under and are subject to the Pledge
Agreement. Each of the representations and warranties with respect to Pledged
Interests and Collateral contained in the Pledge Agreement is hereby made by the
Pledgor with respect to the Additional Interests and the Additional Collateral,
respectively. The Pledgor further represents and warrants that Annex A attached
to this Supplement contains a true, correct and complete description of the
Additional Interests, and that all other documents required to be furnished to
the Administrative Agent pursuant to Section 2(c) of the Pledge Agreement in
connection with the Additional Collateral have been delivered or are being
delivered simultaneously herewith to the Administrative Agent. The Pledgor
further acknowledges that Schedule I to the Pledge Agreement shall be deemed, as
to it, to be supplemented as of the date hereof to include the Additional
Interests as described on Annex A to this Supplement.
IN WITNESS WHEREOF, the Pledgor has caused this Supplement to be duly
executed by its authorized officer as of the day and year first above written.
PLEDGOR:
--------------------------------------
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
Acknowledged and accepted:
BANK OF AMERICA, N. A.,
as Administrative Agent for the Lenders
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
A-2
ANNEX A
(to Pledge Agreement Supplement of __________ dated __________)
Additional Interests
Total
Name, Amount of
Jurisdiction Class Class or Total
of or Type Type Amount of Certificate
Name of Formation and of Additional of Additional Class or Type Total Amount Number (if Par Value (if Name of
Pledgor Type of Entity Interest Interests Outstanding Pledged applicable) applicable) Transfer
of Pledged Authorized Agent
Subsidiary (if any)
EXHIBIT B
PLEDGE JOINDER AGREEMENT
THIS PLEDGE JOINDER AGREEMENT (the "Pledge Joinder Agreement"), dated
as of _____________, 20__ is made by and between ______________________________,
a ________________ (the "Joining Pledgor"), and BANK OF AMERICA, N.A., in its
capacity as Administrative Agent (the "Administrative Agent") under that certain
Credit Agreement (as from time to time amended, revised, modified, supplemented,
amended and restated, or replaced, renewed, refunded or refinanced, the "Credit
Agreement"), dated as of May 15, 2002, by and among BLOCK COMMUNICATIONS, INC.,
an Ohio corporation (the "Borrower"), the Lenders (as defined in the Credit
Agreement) party thereto and the Administrative Agent. All capitalized terms not
otherwise defined herein shall have the meanings given to such terms in the
Credit Agreement.
WHEREAS, the Joining Pledgor is a Subsidiary and required by the terms
of the Credit Agreement to become a "Guarantor" under the Credit Agreement and
be joined as a party to the Pledge Agreement as a Pledgor (as defined in the
Pledge Agreement); and
WHEREAS, the Joining Pledgor will materially benefit directly and
indirectly from the credit facilities made available and to be made available to
the Borrower by the Lenders under the Credit Agreement; and
NOW, THEREFORE, the Joining Pledgor hereby agrees as follows with the
Administrative Agent, for the benefit of the Secured Parties (as defined in the
Pledge Agreement):
1. JOINDER. The Subsidiary hereby irrevocably, absolutely and
unconditionally becomes a party to the Pledge Agreement as a Pledgor and bound
by all the terms, conditions, obligations, liabilities and undertakings of each
Pledgor or to which each Pledgor is subject thereunder, including without
limitation the grant pursuant to Section 1 of the Pledge Agreement of a security
interest to the Administrative Agent for the benefit of the Secured Parties in,
and collateral assignment and pledge to the Administrative Agent of, the Pledged
Interests and other property constituting Collateral (as defined in Section 1 of
the Pledge Agreement) of such Pledgor or in which such Pledgor has or may have
or acquire an interest or the power to transfer rights therein, whether now
owned or existing or hereafter created, acquired or arising and wheresoever
located, as security for the payment and performance of the Secured Obligations
(as defined in the Pledge Agreement), all with the same force and effect as if
the Joining Pledgor were a signatory to the Pledge Agreement.
2. AFFIRMATIONS. The Joining Pledgor hereby acknowledges and reaffirms
as of the date hereof with respect to itself, its properties and its affairs
each of the waivers, representations, warranties, acknowledgements and
certifications applicable to any Pledgor contained in the Pledge Agreement.
3. SUPPLEMENTAL SCHEDULES. Attached to this Pledge Joinder Agreement
are duly completed schedules (the "Supplemental Schedules") supplementing as
thereon indicated the
respective Schedules to the Pledge Agreement. The Joining Pledgor represents and
warrants that the information contained on each of the Supplemental Schedules
with respect to such Joining Pledgor and its properties and affairs is true,
complete and accurate as of its Applicable Date (as defined in the Pledge
Agreement).
4. SEVERABILITY. The provisions of this Pledge Joinder Agreement are
independent of and separable from each other. If any provision hereof shall for
any reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity or enforceability of any other provision hereof,
but this Pledge Joinder Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
5. COUNTERPARTS. This Pledge Joinder Agreement may be executed in any
number of counterparts each of which when so executed and delivered shall be
deemed an original, and all of which together shall constitute one and the same
instrument, and it shall not be necessary in making proof of this Pledge Joinder
Agreement to produce or account for more than one such counterpart executed by
the Joining Pledgor against whom enforcement is sought. Without limiting the
foregoing provisions of this Section 5, the provisions of Section 10.02(b) of
the Credit Agreement shall be applicable to this Pledge Joinder Agreement.
6. DELIVERY. The Joining Pledgor hereby irrevocably waives notice of
acceptance of this Pledge Joinder Agreement and acknowledges that the Secured
Obligations are and shall be deemed to be incurred, and credit extensions under
the Loan Documents made and maintained, in reliance on this Pledge Joinder
Agreement and the Pledgor's joinder as a party to the Pledge Agreement as herein
provided.
7. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL. The provisions of
Section 25 of the Pledge Agreement are hereby incorporated by reference as if
fully set forth herein.
[SIGNATURE PAGE FOLLOWS.]
B-2
IN WITNESS WHEREOF, the Joining Pledgor has duly executed and delivered
this Pledge Joinder Agreement as of the day and year first written above.
JOINING PLEDGOR:
------------------------------------------
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N. A.,
as Administrative Agent for the Lenders
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
B-3
SUPPLEMENTAL
SCHEDULE I
Name, Total
Jurisdiction Amount of
of Class Class Total
Formation or Type or Type Amount of Certificate
Name of and of Pledged of Pledged Class or Type Total Amount Number (if Par Value (if Name of
Pledgor Type of Entity Interest Interests Outstanding Pledged applicable) applicable) Transfer
of Pledged Authorized Agent
Subsidiary (if any)
Delivered Pursuant to Pledge Joinder Agreement of: ____________________________
Applicable Date: __________, 20__
SUPPLEMENTAL
SCHEDULE II
Jurisdiction of Formation Jurisdiction of Formation Address of Chief
Name and Address of Pledgor Type of Person of Pledgor Identification Number Executive Office
Delivered Pursuant to Pledge Joinder Agreement of: ____________________________
Applicable Date: __________, 20__
