PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT, dated as of December 21, 2000, is by
and between XXXXXXX X. XXXXXXX (the < < PLEDGOR > >), and COMPLETEL EUROPE
N.V., a public limited company incorporated under the laws of The
Netherlands, having its seat at Amsterdam and its principal place of business
at Xxxxxxxx 000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx (referred to herein as
either the < < SECURED PARTY > > or the "COMPANY").
RECITAL
The Pledgor acknowledges that he has borrowed from the Company and has
agreed to pay the sum of One Million Five Hundred Thousand Dollars and 00/00
Cents ($1,500,000.00) plus all accrued interest thereon pursuant to a Promissory
Note made by the Pledgor payable to the order of the Secured Party, of even date
herewith (the < < NOTE > >).
AGREEMENT
In consideration of the Recital and to induce the Secured Party to accept
the Note, the Pledgor hereby agrees as follows for the benefit of the Secured
Party and to induce the Pledgor to make the Note and to enter into this Pledge
and Security Agreement, the Secured Party hereby agrees as follows for the
benefit of the Pledgor:
1. PLEDGE. The Pledgor hereby pledges, assigns, hypothecates and grants
to the Secured Party a first lien on, and security interest in, his right,
title and interest in and to One Thousand (1,000) Common units (the "PLEDGED
UNITS") of CompleTel LLC, a Delaware Limited Liability Company ("COMPLETEL
LLC") and i) all certificates, instruments, and other documents evidencing
the foregoing; (ii) any option, warrant, subscription or right, whether as an
addition to or in substitution of all of the foregoing; (iii) any dividends
or distributions of any kind whatsoever, whether distributable in cash, stock
(except as set forth in paragraph 3 hereof) or other property; (iv) any
interest, premium or principal payments with respect to the foregoing; (v)
any conversion or redemption proceeds, all renewals, replacements, and
substitutions of all of the foregoing; and (vi) all products and proceeds of
all of the foregoing (together with the Pledged Units the
< < PLEDGED COLLATERAL > >) as security for the prompt and complete payment
when due of all obligations of the Pledgor under the Note.
2. DIVIDENDS AND DISTRIBUTIONS ON THE PLEDGED UNITS. If, while this
Pledge and Security Agreement is in effect, the Pledgor is in default under the
Note and the Pledgor shall become entitled to receive or shall receive any
dividend payment or distribution in respect of the Pledged Units, excluding
distribution of shares of the Secured Party that Pledgor may receive in exchange
for all or a portion of the Pledged Units, the Pledgor agrees to instruct
CompleTel LLC to deliver such dividend payment or distribution directly to the
Secured Party. Notwithstanding the foregoing, if the Pledgor receives a dividend
payment or distribution directly from CompleTel LLC which, pursuant to the terms
of this paragraph 2 should have been delivered directly to the Security Holder,
the Pledgor agrees to accept the same as the Secured Party's agent and to hold
the same in trust on behalf of the Secured Party and to deliver the same
forthwith to the Secured Party. All such dividend payments received by the
Secured Party shall be credited against the obligation of the Pledgor to pay
interest to the Secured Party with respect
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to the indebtedness of the Pledgor to the Secured Party under the Note.
3. DISTRIBUTION OF COMPANY SHARES. In the event Pledgor receives shares
of the Secured Party in exchange for all or a portion of Pledgor's Common Units
representing the Pledged Units, Pledgor will enter into a deed of pledge in
favor of the Secured Party for such shares in accordance with the laws of The
Netherlands (the "DEED OF PLEDGE") substantially in the form attached hereto as
Exhibit A and will instruct the Secured Party's transfer agent to deliver any
certificates in respect of such shares to the Secured Party.
4. RELEASE OF PLEDGED UNITS. The Secured Party agrees to release the
Pledged Units from the lien of this Pledge and Security Agreement at such time
as the Pledgor has satisfied in full his obligations under the Note. Further,
the Secured Party agrees to release all or a portion of the Pledged Units from
the lien of this Pledge and Security Agreement at such time as the Pledgor
executes a Deed of Pledge upon the distribution of shares of the Secured Party
and duly pledged such shares in accordance with paragraph 3 hereof.
5. RIGHTS OF THE SECURED PARTY. The Secured Party shall not be liable
for failure to collect or realize upon the Pledged Collateral, or any part
thereof, or for any delay in so doing, nor shall it be under any obligation
to take any action whatsoever with regard thereto. If a default under the
Note has occurred and is continuing, the Secured Party may, without notice
except for notice of sale as provided in Section 6, exercise all rights,
privileges or options pertaining to any Pledged Collateral as if it were the
absolute owner thereof, upon such terms and conditions as it may determine,
all without liability except to account for property actually received by the
Secured Party, but the Secured Party shall have no duty to exercise any of
the aforesaid rights, privileges or options and shall not be responsible for
any failure to do so or delay in so doing.
6. REMEDIES. The Secured Party shall have all the rights and remedies
of a secured party under the Uniform Commercial Code of the State of New York
(the < < UCC > >). To the extent allowed by applicable law, in the event that a
default under the Note has occurred and is continuing, the Secured Party,
without demand of performance or other demand, advertisement or notice of any
kind (except the notice specified below of the time and place of public or
private sale) to or upon the Pledgor or any other person (all and each of which
demands, advertisements and/or notices are hereby expressly waived), may
collect, receive, appropriate and realize upon the Pledged Collateral, or any
part thereof, and/or may forthwith sell, assign, give option or options to
purchase, contract to sell or otherwise dispose of and deliver the Pledged
Collateral, or any part thereof, at public or private sale or sales, at any
exchange, or at any of the Secured Party's offices or elsewhere upon such terms
and conditions as the Secured Party may deem advisable and at such prices as the
Secured Party may deem best, for cash or on credit or for future delivery
without assumption of any credit risk, with the right of the Secured Party upon
any such sale or sales, public or private, to purchase the whole or any part of
the Pledged Collateral so sold, free of any right or equity of redemption in the
Pledgor, which right or equity is hereby expressly waived or released.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGOR. (a) The
Pledgor represents and warrants that on the date hereof and on the date of
delivery to the Secured Party of the Pledged Collateral he has, or will have as
the case may be, full power, authority and legal right to pledge all of his
right, title and interest in and to the Pledged Collateral pursuant to this
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Pledge and Security Agreement and the pledge, assignment and delivery of such
Pledged Collateral pursuant to this Pledge and Security Agreement will create a
valid first priority security interest in all right, title or interest of the
Pledgor in or to such Pledged Collateral, and the proceeds thereof, subject to
no prior pledge, lien, mortgage, hypothecation, security interest, charge,
option or encumbrance or to any agreement purporting to grant to any third party
a security interest in the property or assets of the Pledgor which would include
the Pledged Collateral. The Pledgor covenants and agrees that he will defend the
Secured Party's right, title and security interest in and to the Pledged
Collateral against the claims and demands of all persons whomsoever.
(b) The Pledgor represents that he is "located" at 00 Xxxxxx Xxxxx
Xxxxx, Xxxxxxxxx Xxxxx, Xxxxxxxx 00000.
8. NO DISPOSITIONS, ETC. Without the prior written consent of the
Secured Party, the Pledgor agrees that he will not sell, assign, transfer,
exchange or otherwise dispose of, or grant any option with respect to the
Pledged Collateral, nor will he create, incur or permit to exist any pledge,
lien, mortgage, hypothecation, security interest, charge, option or any other
encumbrance with respect to any of the Pledged Collateral or any interest
therein or any proceeds thereof, except for the lien and security interest
provided for by this Pledge and Security Agreement.
9. SALE OF COLLATERAL.
(a) Pledgor recognizes that Secured Party may be unable to effect
a public sale of all or any or all of the Pledged Units because of restrictions
in applicable federal and state securities laws and that Secured Party may,
therefore, determine to make one or more private sales of any such securities to
a restricted group of purchasers who will be obligated to agree, among other
things, to acquire such securities for their own account, for investment and not
with a view to the distribution or resale thereof. Pledgor acknowledges that any
such private sale may be at prices and other terms less favorable then what
might have been obtained at a public sale and, notwithstanding the foregoing,
agrees that each such private sale shall be deemed to have been made in a
commercially reasonable manner and that the Secured Party shall be under no
obligation to delay a sale of any of the Pledged Units for the period of time
necessary for it to register any securities for public sale under the Securities
Act of 1933, or under applicable state securities laws
(b) In the event that the proceeds of any sale of, collection
from, or other realization upon, all or any part of the Pledged Collateral by
Secured Party are insufficient to pay all amounts to which Secured Party is
legally entitled, Pledgor and any party who guaranteed or is otherwise obligated
to pay all or any portion of the Note shall be liable for the deficiency,
together with interest thereon.
(c) The Pledgor further agrees to do or cause to be done all such
other acts and things as may be necessary to make such sale or sales of any
portion or all of the Pledged Units valid and binding and in compliance with any
and all applicable laws, regulations, orders, writs, injunctions, decrees or
awards of any and all courts, arbitrators or governmental instrumentalities,
domestic or foreign, having jurisdiction over any such sale or sales, all at the
Pledgor's expense. The Pledgor further agrees that a breach of any of the
covenants contained in this paragraph 9 will cause irreparable injury to the
Secured Party, that the Secured Party has no
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adequate remedy at law in respect of such breach and, as a consequence, agrees
that each and every covenant contained in this paragraph shall be specifically
enforceable against the Pledgor and the Pledgor hereby waives and agrees not to
assert any defenses against an action for specific performance of such covenants
except for a defense that no default has occurred under the Note.
10. FURTHER ASSURANCES. The Pledgor agrees that, at any time and from
time to time upon the written request of the Secured Party, the Pledgor will
execute and deliver such further documents and do such further acts and things
as the Secured Party may reasonably request in order to effect the purposes of
this Pledge and Security Agreement.
11. SEVERABILITY. Any provision of this Pledge and Security Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
12. NO WAIVER; CUMULATIVE REMEDIES. The Secured Party shall not, by any
act, delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder and no waiver shall be valid unless in writing, signed by the
Secured Party, and then only to the extent therein set forth. A waiver by the
Secured Party of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Secured Party would
otherwise have on any future occasion. No failure to exercise nor any delay in
exercising on the part of the Secured Party, any right, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided are cumulative and may be exercised
singly or concurrently, and are not exclusive of any rights or remedies provided
by law.
13. BINDING EFFECT. This Pledge and Security Agreement and all
obligations of the Pledgor hereunder shall be binding upon the successors and
assigns of the Pledgor, and shall, together with the rights and remedies of the
Secured Party hereunder, inure to the benefit of the Secured Party and its
successors and assigns. This Pledge and Security Agreement shall be construed
and enforced in accordance with, and the rights of the parties shall be governed
by, the laws of the State of New York. At the option of the Secured Party, an
action may be brought to enforce this Pledge and Security Agreement in the State
Court in and for The City of New York, Borough of Manhattan, State of New York,
or in any other court in which venue and jurisdiction are proper. The Pledgor
and all signers or endorsers hereof consent to venue and jurisdiction in the
State Court in and for The City of New York, State of New York, and to service
of process, under applicable statues, in any action commenced to enforce the
rights granted under this Pledge and Security Agreement.
14. AGENT FOR SERVICE By the execution and delivery of this Pledge and
Security Agreement, each of the Pledgor and Secured Party acknowledges that it
has, by separate written instrument, designated CT Corporation System, 000 0xx
Xxxxxx, Xxx Xxxx, XX 00000 (and any successor entity), as its authorized agent
upon which process may be served in any suit or
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proceeding arising out of or relating to this Pledge and Security Agreement that
may be instituted in any federal or state court in the City of New York, State
of New York, and acknowledges that CT Corporation System has accepted such
designation. All fees charged by CT Corporation to the Pledgor and Secured Party
shall be paid by the Pledgor.
15. COUNTERPARTS This instrument may be executed in any number of
counterparts, each of which shall be deemed an original instrument, but all of
which together shall constitute but one and the same instrument.
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PLEDGOR: SECURED PARTY:
COMPLETEL EUROPE N.V.
By:
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Xxxxxxx X. Xxxxxxx Managing Director
By:
-----------------------------
Managing Director
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