EXHIBIT 4.5
AMENDED AND RESTATED BORROWER PLEDGE AGREEMENT
THIS AMENDED AND RESTATED BORROWER PLEDGE AGREEMENT is made and
entered into as of July 31, 1996, by and between XXXX COMMUNICATIONS SYSTEMS,
INC., a Georgia corporation (the "Pledgor"), and NATIONSBANK, N.A. (the
"Pledgee"), as administrative agent for itself and the other financial
institutions listed on the signature pages of the Loan Agreement (as defined
below), and their successors and assigns. The Pledgee and such other financial
institutions may be referred to hereinafter individually as a "Bank" or
collectively as the "Banks".
RECITALS
A. The Pledgor owns issued and outstanding capital stock of the
corporations listed on Exhibit A attached hereto (collectively, the "Companies"
and individually, a "Company") in the amounts set forth on Exhibit A, in each
case, as Exhibit A may be supplemented from time to time in accordance with
Section 29 hereof.
B. The Pledgor, NationsBank, N.A., as Administrative Agent and
Syndication Agent (each as defined in the Loan Agreement defined below), KeyBank
National Association, as Documentation Agent (as defined in the Loan Agreement
defined below), and the other Banks (as defined in the Loan Agreement defined
below) have entered into that certain Amended and Restated Loan Agreement dated
as of even date herewith (as the same may be extended, amended, restated or
modified from time to time, the "Loan Agreement"), which is hereby incorporated
herein by this reference, pursuant to which the Banks have agreed to make
available to the Pledgor up to $100,000,000 on a reducing revolving credit basis
and up to $100,000,000 on a term loan basis. All capitalized terms used herein
and not otherwise defined herein shall have the meanings assigned to them in the
Loan Agreement. The Pledgor may also be indebted to a Bank or an Affiliate of a
Bank from time to time in respect of Rate Hedging Obligations.
C. In order to induce the Pledgee and the Banks to enter into the
Loan Agreement and to ensure that the Loans made pursuant to the Loan Agreement
will be secured as provided herein, the Pledgor has agreed to pledge its capital
stock in the Companies to the Pledgee and grant to the Pledgee a first priority
security interest in all of such capital stock as security for the Obligations
incurred by the Pledgor under the Loan Agreement.
D. The Banks have appointed the Pledgee as their agent for the
purpose, among other things, of protecting and preserving the security for the
repayment of the Pledgor's Obligations under the Loan Agreement.
AGREEMENTS
In consideration of the foregoing Recitals, and of the agreements
made herein, and of the Loans made or to be made by the Banks to the Pledgor,
the Pledgor and the Pledgee, on behalf of the Banks, agree as follows:
1. GRANT OF SECURITY INTEREST; PLEDGE.
1.1. Pledged Collateral. The Pledgor hereby grants to the
Pledgee, as agent for the Banks, ratably in proportion to the total Pledge
Obligations (as that term is defined below), owing at any time to the Banks, a
security interest in, and pledges, assigns and sets over to the Pledgee, for the
benefit of the Banks, (a) all of the capital stock and other equity interests in
each Company held by it (the "Pledged Shares"), (b) any additional capital stock
or other equity interests of any Company hereafter issued or delivered to the
Pledgor for any reason, (c) all options, warrants or rights exercisable for or
convertible into any such capital stock or other equity interests and (d) all
dividends, distributions, cash, property or other securities at any time and
from time to time receivable or otherwise distributable in respect thereof,
exchanged therefor, derived therefrom, substituted therefor, or otherwise
subjected to the lien hereof pursuant to any provision hereof, and the proceeds
thereof, including any and all distributions made on or in respect of the
foregoing, whether resulting from a subdivision, combination, reorganization of
any Company, a reclassification of outstanding capital stock of any Company or
received in exchange for any of the foregoing or any part thereof or as a result
of any merger, consolidation, acquisition or other sale or exchange of assets or
on the liquidation, whether voluntary or involuntary, of any issuer of the
Pledged Shares or otherwise (all of which Pledged Shares, additional capital
stock or other equity interests, options, warrants, rights, dividends,
distributions, cash, property, securities and proceeds are herein called the
"Pledged Collateral").
1.2. Possession of Pledged Collateral. All certificates for the
Pledged Shares, certificate for the Pledged Shares, certificates for any
additional capital stock, other equity interests, options, warrants or rights,
dividends, distributions, cash, property and securities comprising part of the
Pledged Collateral shall be delivered to the Pledgee by the Companies or the
Pledgor, and the Pledgor hereby authorizes and directs each Company to make such
delivery to the Pledgee, and the Pledgor shall deliver to the Pledgee proper
instruments of assignment therefor duly executed and endorsed by the Pledgor and
such other instruments or documents (including, without limitation, financing
statements) as the Pledgee may reasonably request sufficient to perfect the lien
of the Pledgee in the Pledged Collateral and, upon the occurrence of an Event of
Default, to transfer title thereto to the Pledgee or its nominee. Any Pledged
Collateral which may at any time be in the possession of the Pledgor shall be
promptly delivered to the Pledgee, and prior thereto, shall be deemed to be held
in trust on behalf of the Pledgee as the Pledgee's agent.
1.3 Obligations Secured. The security interests granted by the
Pledgor to the Pledgee under this Agreement secure (a) the payment and
performance of all indebtedness, Obligations and liabilities of the Pledgor,
arising at any time, now or in the future, pursuant to the Loan Agreement or any
Collateral Document, including, without limitation, such obligations
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as are evidenced by the Notes; (b) the payment and performance of all
obligations and liabilities of the Pledgor arising at any time and from time to
time, now or in the future, pursuant to any agreement with any Bank or any
Affiliate of a Bank with respect to Rate Hedging Obligations; (c) performance by
the Pledgor of its obligations and agreements set forth herein and in each other
Collateral Document to which it is a party; (d) all payments made or expenses
incurred by the Pledgee, including, without limitation, reasonable attorneys'
fees and legal expenses, in the exercise, preservation or enforcement of any of
the rights, powers or remedies of the Pledgee, or in the enforcement of the
obligations of the Pledgor, hereunder; and (e) any renewals, continuations or
extensions of any of the foregoing (all of which are referred to herein as the
"Pledge Obligations").
1.4 Pledge a First Lien. The security interest of the Pledgee in
the Pledged Collateral shall at all times be a first priority lien and security
interest securing all of the Pledge Obligations.
1.5 Stockholder Liability. The security interests granted
pursuant hereto are granted as security only and shall not subject the Pledgee
or any Bank to any obligation or liability of the Pledgor with respect to any of
the Pledged Collateral or any transaction in connection therewith.
2. VOTING RIGHTS; ETC. So long as no Event of Default, as defined
in Section 9 below, shall have occurred and be continuing:
(a) The Pledgor shall have the right, from time to time,
and for any purpose not inconsistent with the Loan Agreement or this Agreement,
to vote and give consents with respect to the Pledged Shares and any additional
capital stock, shares or other equity interests of each Company owned by it
constituting part of the Pledged Collateral and to consent to or ratify any
action taken at, or waive notice of, any meeting of stockholders or any
committee of any Company with the same force and effect as if such capital stock
were not pledged hereunder;
(b) The Pledgee shall, from time to time upon the written
request of the Pledgor, give any necessary waivers of notice, consents and
powers of attorney or proxies necessary to enable the Pledgor to exercise any of
the foregoing rights;
(c) The Pledgor shall be entitled to retain and use any
and all cash distributions paid on Pledged Collateral which are permitted by and
in a manner consistent with the provisions of the Loan Agreement; provided,
however, that any and all other distributions made on or in respect of the
Pledged Collateral, whether resulting from a subdivision, combination,
reorganization of any Company, a reclassification of outstanding shares of any
Company or received in exchange for Pledged Collateral or any part thereof or as
a result of any merger, consolidation, acquisition or other sale or exchange of
assets or on the liquidation, whether voluntary or involuntary, of any issuer of
the Pledged Collateral, or otherwise, shall be and become part of the Pledged
Collateral pledged hereunder and, if received by any Company
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or the Pledgor, shall forthwith be delivered to the Pledgee to be held subject
to the terms of this Agreement; and
(d) The Pledgor shall be entitled to exercise any
subscription or conversion privileges accruing to it as the owner of the Pledged
Collateral to the extent permitted in the Loan Agreement, provided that any
additional capital stock or other equity interests of any Company or any other
issuer obtained or purchased on account of any such subscription or conversion
privileges shall be delivered to and pledged with the Pledgee as part of the
Pledged Collateral.
3. THE PLEDGOR'S REPRESENTATIONS AND WARRANTIES. The Pledgor
represents and warrants that:
(a) The Pledged Shares constitute all of the issued and
outstanding capital stock of each Company;
(b) The Pledged Shares constitute all of the shares of
capital stock or other equity interests owned by the Pledgor;
(c) The Pledgor has, and has duly exercised, all requisite
corporate power and authority to execute, deliver and perform this Agreement;
(d) This Agreement has been duly authorized and executed
by the Pledgor and constitutes the legal, valid and binding obligation of the
Pledgor, enforceable against the Pledgor in accordance with its terms, except as
enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or limiting creditors' rights
generally or by general principles of equity;
(e) The Pledgor is the full legal and beneficial owner of,
and has good and marketable title to, the Pledged Shares set forth under its
name on Exhibit A hereto, and such Pledged Shares are fully and accurately
described on Exhibit A hereto (in each case, as Exhibit A may be supplemented
from time to time in accordance with Section 29 hereof.
(f) The Pledged Shares have been duly and validly issued,
are fully paid and non-assessable, and are free and clear of any Liens, claims,
options, demands and equities of third parties, except for the security interest
granted hereunder to the Pledgee;
(g) The Pledgor's execution and delivery of this Agreement
and the performance of its terms will not violate or constitute a default under
the terms of (A) any organizational document of the Pledgor or any Company, or
(B) any provision of any agreement, indenture, certificate or other instrument,
license, judgment, decree, order, law, statute, ordinance or other governmental
rule or regulation applicable to the Pledgor or any Company or the property of
the Pledgor or any Company;
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(h) Upon delivery to the Pledgee of the stock certificates
evidencing the Pledged Shares, duly endorsed in blank, the Pledgee will have,
for the benefit of the Banks, a valid first lien upon and perfected security
interest in the Pledged Shares and the proceeds thereof;
(i) The principal place of business and chief executive
office of the Pledgor is set forth below the Pledgor's name on the signature
pages hereof;
(j) No consent or approval of, or filing with, any
governmental authority or other Person, and no waiver of any lien or right of
distraint or other similar right, and no license, authorization or declaration
of any governmental authority, bureau or agency, is or will be required in
connection with the execution, delivery, performance, validity, enforcement or
priority of this Agreement or the security interest granted hereby or any
agreements, instruments or documents to be executed or delivered pursuant
hereto, except that the consent of the FCC may be required in order for the
Pledgee to enforce certain of its rights hereunder upon the occurrence and
during the continuance of an Event of Default;
(k) The pledge of the Pledged Collateral hereunder is
effective to vest in the Pledgee the rights of the Pledgee in the Pledged
Collateral as set forth herein; and
(l) The Pledgor has received, or is entitled to receive,
reasonably equivalent value for the obligations and liabilities that it has
incurred to the Pledgee and the Banks; the Pledgor is not insolvent as defined
in Title 11 of the United States Code, or any other applicable federal or state
bankruptcy or insolvency statute, nor, after giving effect to the consummation
of the transactions contemplated in the Loan Agreement, including, without
limitation, the execution and delivery of the Notes, will the Pledgor be
rendered insolvent by the execution and delivery of this Agreement to the
Pledgee; the Pledgor has not engaged, nor does it expect to engage, in any
business or transaction for which the assets retained by it shall be an
unreasonably small capital, taking into consideration the obligations to the
Pledgee incurred hereunder; and the Pledgor does not intend to, nor does it
believe that it will, incur debts beyond its ability to pay them as they mature.
4. CERTAIN COVENANTS.
4.1 Negative Covenants. The Pledgor shall not:
(a) sell, convey or otherwise dispose of any of the
Pledged Collateral or any interest therein or create, incur, or permit to exist
any Lien, claim, option, demand or equity of third parties on or with respect to
any of the Pledged Collateral or the proceeds thereof, other than as created
hereby;
(b) enter into or consent to any agreement, indenture,
license or other instrument or any amendment or modification thereof which would
be violated by, or require the consent or approval of any Person to, the
performance or enforcement of this Agreement or permit any of its Subsidiaries
to do any of the foregoing;
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(c) consent to or approve the issuance of (i) any
additional capital stock or other equity interests of any class of any issuer of
Pledged Collateral, (ii) any securities convertible voluntarily by the holder
thereof or automatically upon the occurrence or nonoccurrence of any event or
condition into, or exchangeable for, any such capital stock or other equity
securities, or (iii) any warrants, options, rights or other commitments
entitling any Person to purchase or otherwise acquire any such capital stock or
other equity securities;
(d) vote, consent or otherwise act in a manner with
respect to the Pledged Collateral which would cause or constitute an Event of
Default under or would otherwise be inconsistent with the terms of the Loan
Agreement, this Agreement, any other Collateral Document or any related
instrument, and nothing contained in Section 2 shall be construed to vary or
modify any such terms;
(e) agree to amend, modify or supplement the Certificate
or Articles of Incorporation or By-Laws of any Company or any other organization
or governing documents, unless required by law, if such amendment, modification
or supplement would adversely affect in any respect any of the Pledgee's
interest, rights or remedies under this Agreement or the Collateral Documents or
the ability of the Pledgor or any of its Subsidiaries to pay or perform the
Obligations;
(f) do or permit any act in contravention of the
Certificate or Articles of Incorporation or By-Laws of any Company; or
(g) take any action which could reasonably be expected to
interfere with, hinder or delay the exercise of the Pledgee's rights under this
Agreement or any other Collateral Documents or any other instrument, document or
agreement relating to any of the foregoing.
4.2 Affirmative Covenants. The Pledgor shall:
(a) at its own expense, defend the Pledgee's right, title
and security interest in and to the Pledged Collateral against the claims of any
other Person;
(b) use its best efforts to obtain any consent of the FCC
and each other Licensing Authority and each other Person which may be required
in connection with the performance or enforcement of this Agreement and any
transfer of the Pledged Collateral contemplated hereby, and will cooperate fully
with the Pledgee in effecting any such transfer or in connection with the
Pledgee's exercise of the rights and remedies granted to the Pledgee pursuant
hereto or pursuant to any other Collateral Document;
(c) pay and discharge promptly, and in any event before
the imposition of any penalty, all taxes and assessments upon any portion of the
Pledged Collateral owned by it, except that the Pledgor shall not be required to
pay any such tax or assessment the payment of
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which is being contested in good faith and by appropriate proceedings and
against which adequate reserves are being maintained;
(d) comply in all material respects with all federal,
state and local laws, rules and regulations applicable to it or its property or
business, the failure to comply with which could reasonably be expected to have
a Material Adverse Effect;
(e) notify the Pledgee in writing at least thirty days in
advance of any change in the Pledgor's chief executive office or principal place
of business and execute any financing statements or amendments covering the
Pledged Collateral as the Pledgee may from time to time reasonably request;
(f) promptly deliver to the Pledgee all material written
notices and communications given or received by it with respect to any Pledged
Collateral; and
(g) pledge hereunder, immediately upon its acquisition,
(directly or indirectly) thereof, any and all shares of stock or other equity
interest of any Person which, after the date of this Agreement, becomes a
Subsidiary of the Pledgor.
5. RIGHT OF THE PLEDGEE TO DEAL WITH COLLATERAL DOCUMENTS, ETC.
The Pledgee may deal in any manner with any Collateral Document to which the
Pledgor is not a party in accordance with or as permitted by the terms thereof
(as may be amended from time to time), subject in all cases to such approval or
agreement by the parties thereto as may be required by the terms of such
documents, without notice to or the consent of the Pledgor. No action which the
Pledgee may take or fail to take in accordance with or permitted by any
Collateral Document to which the Pledgor is not a party (as any of the foregoing
may be amended from time to time) pursuant to the foregoing powers shall operate
to release any of the Pledged Collateral, terminate or modify the terms of this
Agreement or impose any liability on the Pledgee.
6. RIGHTS OF THE PLEDGEE UPON DEFAULT. Upon the occurrence and
during the continuance of any Event of Default, the Pledgee shall, subject to
Section 17 and compliance with all applicable requirements of law, in addition
to all other rights and remedies it may have under the Uniform Commercial Code
or any other law, have the rights and remedies set forth in this Section 6:
6.1 Voting and Other Rights. Upon ten days prior written notice
to the Pledgor, whether or not the Pledged Collateral shall have been registered
in the name of the Pledgee or its nominee, the Pledgee or its nominee shall
have, with respect to the Pledged Collateral, the right to exercise all voting
rights, and all other stockholder rights and all conversion, exchange,
subscription and other rights, privileges or options pertaining thereto as if it
were the absolute owner thereof, including, without limitation, the right to
exchange any or all of the Pledged Collateral upon the merger, consolidation,
reorganization, recapitalization or other readjustment of any Company, or upon
the exercise by any Company of any right, privilege, or option pertaining to any
of
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the Pledged Collateral, and, in connection therewith, to deliver any of the
Pledged Collateral to any committee, depository, transfer agent, registrar or
other designated agency upon such terms and conditions as it may determine, all
without liability except to account for property actually received by it; but
the Pledgee 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.
6.2 Sale of Pledged Collateral.
(a) Upon at least ten days written notice to the Pledgor,
which notice the Pledgor agrees is reasonable, and without further demand,
advertisement or notice of any kind, all of which are hereby expressly waived,
the Pledgee shall have the right to sell, assign and deliver the whole or any
part of the Pledged Collateral, at any time or times, within or without
Charlotte, North Carolina, at public or private sale or at any broker's board or
on any securities exchange, for cash, on credit, or for other property, for
immediate or future delivery, and for such price or prices and on such terms as
the Pledgee may determine to be commercially reasonable, and in connection
therewith the Pledgee or any Bank at any sale may bid for or purchase the whole
or any part of the Pledged Collateral so offered for sale, free from any right
of redemption, stay or appraisal on the part of the Pledgor, all of which rights
the Pledgor hereby waives and releases, to the full extent permitted by law.
(b) (i) If at any time or times, in the opinion of the
Pledgee, it should be necessary or desirable, in order for the Pledgee to
dispose of all or any part of the Pledged Collateral in any sale or sales
pursuant hereto, to comply with or to register or quality all or any part of the
Pledged Collateral under the Securities Act of 1933, as amended (the "Securities
Act"), or under any similar Federal statute then in effect, or any rules or
regulations thereunder, and/or to comply with the laws, rules and regulations of
any state regulating the sale of securities, the Pledgor shall, upon the request
of the Pledgee, as expeditiously as possible and in good faith, use its best
efforts to cause each Company to effect and continue such registration,
qualification and compliance. The Pledgor further shall, and shall cause each
Company to, indemnify and hold harmless the Pledgee and any underwriter from and
against any claims and liabilities caused by any untrue statement of a material
fact or omission to state a material fact required to be stated in any
registration statement, offering circular or prospectus used in connection with
such registration, qualification or compliance, or necessary to make the
statements therein not misleading, except insofar as such claims or liabilities
are caused by any untrue statement or omission based upon or in conformity with
information furnished by the Pledgee expressly for the purpose of inclusion in
such registration statement, offering circular or prospectus.
(ii) Notwithstanding the foregoing, the Pledgor
recognizes that the Pledgee may be unable to effect a public sale of all or a
part of the Pledged Collateral or that it may be commercially unreasonable to do
so, and may find it appropriate or necessary to resort to one or more private
sales 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. The Pledgor
acknowledges that any such private sales may be at places and on terms less
favorable to the seller than if sold at public sales and
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agrees that such private sales shall not by reason thereof be deemed to have
been made in a commercially unreasonable manner, and that the Pledgee shall have
no obligation to delay the sale of any such securities for the period of time
necessary to permit the issuer of such securities to register such securities
for public sale under the Securities Act or any other applicable securities law.
(iii) The Pledgee shall be authorized at any sale
to restrict the prospective bidders or purchasers to Persons who will be
eligible to hold or control the applicable Licenses under FCC and other
governmental regulations, the terms of the Licenses and other applicable law,
rules and regulations.
(iv) The Pledgee may take all such further acts as
it may in its reasonable discretion deem necessary or advisable for the
Pledgee's or the Banks' protection or for compliance with any provision of law,
even if such act might, whether by limiting the market or by adding to the costs
of sale or otherwise, reduce prices that might otherwise be obtained for the
Pledged Collateral being sold or otherwise restrict the net proceeds available
from the sale thereof. Upon consummation of any such sale, the Pledgee shall
have the right to assign, transfer, endorse and deliver to the purchaser or
purchasers thereof the Pledged Collateral so sold. Each such purchaser at any
such sale shall hold the property sold absolutely free from any claim or right
on the part of the Pledgor, and the Pledgor hereby waives, to the full extent
permitted by law, all rights of redemption, stay or appraisal which the Pledgor
now has or may at any time in the future have under any rule of law or statute
now existing or hereafter enacted. For purposes of this Section 6.2, an
agreement to sell all or any part of the Pledged Collateral shall be treated as
a sale of such Pledged Collateral, and the Pledgee shall be free to carry out
the sale of any Pledged Collateral pursuant to any such agreement and the
Pledgor shall not be entitled to the return of any such Pledged Collateral
subject thereto, notwithstanding that after the Pledgee shall have entered into
such an agreement, all Events of Default may have been remedied.
(c) The proceeds of any sale, collection or other
realization upon or of the Pledged Collateral shall be applied (i) first, to the
actual expenses incurred by the Pledgee in connection with this Agreement or the
exercise of any right or remedy hereunder, or any sale or disposition,
including, without limitation, the expenses of taking, holding, advertising and
preparing the Pledged Collateral for sale or disposition, the expenses incurred
in registering the Pledged Collateral as provided in Section 6.2(b)(i), all
court costs and the Pledgee's reasonable attorneys' fees, (ii) next, to all
advances made by the Pledgee hereunder for the account of the Pledgor and all
costs and expenses paid or incurred by the Pledgee in connection with this
Agreement or any right or remedy hereunder, (iii) next, pro rata to the Banks,
to the principal of and interest on the Notes and all other Pledge Obligations,
and (iv) lastly, any surplus to the Pledgor, except as otherwise required by law
or as a court of competent jurisdiction may otherwise direct. The Pledgor and
each other Person which may become liable on or with respect to the Notes shall
nevertheless remain liable for any deficiency.
6.3 Rights Cumulative. The rights and the remedies provided in
this Agreement are cumulative and in addition to any rights and remedies which
the Pledgee may
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have under the Loan Agreement, the Notes, any other Collateral Document or at
law (including, without limitation, under the Uniform Commercial Code) or in
equity.
7. WAIVER. The Pledgor hereby waives, releases and discharges, to
the full extent permitted by law, any right which it has or may have at law, in
equity or by statute, to require the Pledgee to pursue or otherwise avail itself
of any rights or remedies which it has or may have against any Company or any
other Person with respect to the payment of the Notes or performance of the
terms, covenants and conditions of the Loan Agreement and Collateral Documents
or to pursue or exhaust any of its rights or remedies with respect to any other
security for the satisfaction of the Pledge Obligations or the performance of
the terms, covenants and conditions of the Loan Agreement. The Pledgor hereby
waives and releases any right of marshaling of assets which it might otherwise
have.
8. PLEDGOR'S RIGHT OF SUBROGATION OR REIMBURSEMENT. The Pledgor
shall not have any right of subrogation or reimbursement with respect to the
Loan Agreement, the Notes or any other Collateral Document unless and until such
time as the Pledgee and the Banks shall have received indefeasible payment in
full in cash of all principal of and interest owed to them with respect to the
Loan Agreement and the Notes and of all other Pledge Obligations.
9. EVENT OF DEFAULT DEFINED. The occurrence of any "Event of
Default", as defined in the Loan Agreement, shall be an "Event of Default" under
this Agreement.
10. THE PLEDGEE APPOINTED ATTORNEY-IN-FACT. The Pledgor hereby
irrevocably constitutes and appoints the Pledgee as its attorney-in-fact,
effective upon, and during the continuance of, an Event of Default, with full
power of substitution, for the purpose of carrying out the provisions of this
Agreement and taking any action and executing any instrument which the Pledgee
may deem necessary or advisable to accomplish the purposes hereof, which
appointment is irrevocable and coupled with an interest. Without limiting the
generality of the foregoing, the Pledgee shall have the right with full power of
substitution, either in the name of the Pledgee or in the name of the Pledgor,
effective upon, and during the continuance of, an Event of Default, to ask for,
demand, xxx for, collect, review, receipt and give acquittance for any and all
moneys due or to become due by virtue of any Pledged Collateral, to endorse
checks, drafts, orders and other instruments for the payment of money payable to
the Pledgor representing any interest or dividend or other distribution payable
in respect of the Pledged Collateral or any part thereof or on account thereof,
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 the Pledgee to
make any commitment or to make any inquiry as to the nature or sufficiency of
any payment received by it, or to present or file any claim or notice, or take
any action with respect to the Pledged 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 the Pledgee or omitted to be taken with respect to the
Pledge Collateral or any part thereof shall give rise to any defense,
counterclaim or offset in favor of the Pledgor or to any claim or action against
the Pledgee or the Banks, except
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for the gross negligence or willful misconduct of the Pledgee or such Bank as
finally determined by a court of competent jurisdiction.
11. DISCHARGE OF THE PLEDGOR. At such time as all of the
principal of and interest on the Notes, together with any and all other Pledge
Obligations shall have been fully, irrevocably and indefeasibly paid in cash and
satisfied, and the Pledgee and the Banks shall not have any further obligations
or commitments under the Loan Agreement, then all rights and interests in such
Pledged Collateral as shall not have been sold or otherwise applied by the
Pledgee pursuant to the terms hereof and shall still be held by it shall
forthwith be transferred and delivered, together with any termination statements
or other instruments necessary to evidence the termination of the interests of
the Pledgee therein, without recourse or representation, to the Pledgor at the
Pledgor's expense, and the right, title and interest of the Pledgee therein
shall cease. Notwithstanding the foregoing, this Agreement shall continue to be
effective or be reinstated and relate back to such time as though this Agreement
had always been in effect, as the case may be, if at any time any amount
received by the Pledgee or any Bank in respect of the Pledge Obligations is
rescinded or must otherwise be restored or returned by the Pledgee or such Bank
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
any Company or the Pledgor or any Affiliate of any Company or the Pledgor or
upon the appointment of any intervenor or conservator of, or trustee or similar
official for, any Company or the Pledgor or any Affiliate of any Company or the
Pledgor or any substantial part of its properties, or otherwise, all as though
such payments had not been made.
12. NOTICES. All notices, demands and requests required or
permitted to be given under the provisions of this Agreement shall be in writing
and shall be deemed to have been duly delivered and received if given in
accordance with the provisions of the Loan Agreement with the address of the
Pledgor being as set forth following its signature on the signature page of this
Agreement.
13. REIMBURSEMENT OF THE PLEDGEE.
13.1 Indemnity. The Pledgor hereby agrees to indemnify and hold
harmless the Pledgee, the Banks and their respective officers, directors,
employees and agents (to the full extent permitted by law) from and against any
and all claims, demands, losses, judgments and liabilities (including
liabilities for penalties) of any nature whatsoever, and to reimburse the
Pledgee, the Banks and their respective officers, directors, employees and
agents, for all costs and expenses, including legal fees and disbursements,
growing out of or resulting from the Pledgor's breach of, or failure to perform,
this Agreement. In no event shall the Pledgee or any Bank be liable to the
Pledgor for any action, matter or thing in connection with this Agreement other
than gross negligence or willful misconduct as determined by a final
non-appealable judgment of a court of competent jurisdiction and to account for
moneys or Pledged Collateral actually received by the Pledgee in accordance with
the terms hereof.
13.2 Action for the Pledgor. If the Pledgor shall fail to do any
act or thing which it has covenanted to do hereunder or if any representation or
warranty of the Pledgor hereunder shall be breached, the Pledgee may (but shall
not be obligated to) do the same or cause
-11-
it to be done, or remedy any such breach, and there shall be added to the Pledge
Obligations the cost or expense incurred by the Pledgee in so doing, and any and
all amounts expended by the Pledgee in taking any such action shall be secured
by this Agreement and shall bear interest at the Default Interest Rate.
14. FURTHER ASSURANCES. The Pledgor shall join with the Pledgee
in executing, at the Pledgor's expense, such notices, financing statements or
other documents or instruments, in form and substance reasonably satisfactory to
the Pledgee, as the Pledgee may deem to be necessary or appropriate for the
perfection of the security interests of the Pledgee hereunder. In addition, the
Pledgor shall do such further acts and things and execute and deliver to the
Pledgee such additional conveyances, assignments, agreements, financing
statements and instruments as the Pledgee may at any time and from time to time
reasonably request in connection with the administration and enforcement of this
Agreement or relatives to the Pledged Collateral or any part thereof or in order
to assure and confirm unto the Pledgee its rights, powers and remedies
hereunder.
15. REGISTRATION OF PLEDGE. The Pledgor hereby agrees, to the
extent necessary to perfect the Pledgee's Lien in the Pledged Collateral, to
request and direct each Company to register on the books of such Company the
security interests and pledge granted by the Pledgor to the Pledgee pursuant to
this Agreement.
16. NO WAIVER; SECURITY INTEREST ABSOLUTE. No failure on the part
of the Pledgee to exercise, and no delay on its part in exercising, any right,
power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any other
or the further exercise thereof or the exercise of any other right, power or
remedy. All remedies hereunder are cumulative and are not exclusive of any other
remedies at law or in equity. All rights of the Pledgee, the security interest
granted hereunder, and all obligations of the Pledgor hereunder, shall be
absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Loan
Agreement, the Notes, any other Collateral Document, any other related
instrument or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of,
or in any other term in respect of, or any increase in the amount of, all or any
of the Pledge Obligations, or any other amendment or waiver of any term of, or
any consent to any departure from any requirement of, the Loan Agreement, the
Notes, any other Collateral Document or any other related instrument; or
(c) any exchange or release of, or non-perfection of any
Lien or security on or in, any other collateral, or any release or amendment or
waiver of any term of, or any consent to any departure from any requirement of,
the Loan Agreement, any other Collateral Document or any guarantee, for all or
any of the Pledge Obligations.
-12-
17. FCC AND OTHER LICENSING AUTHORITY COMPLIANCE.
(a) Notwithstanding any other provision of this Agreement,
any foreclosure on, sale, transfer or other disposition of, or the exercise of
any right to vote or consent with respect to, any of the Pledged Collateral as
provided herein or any other action taken or proposed to be taken by the Pledgee
hereunder which would affect the operational, voting or other control of the
Pledgor or any or its Subsidiaries which holds any FCC License shall be made in
accordance with the Communications Act of 1934, as amended, the terms of any
applicable Licenses and any other applicable law, rules and regulations.
(b) If an Event of Default shall have occurred and be
continuing, the Pledgor shall take any action which the Pledgee may request in
the exercise of its rights and remedies under this Agreement in order to
transfer and assign to the Pledgee, any Bank, or to such one or more third
parties as the Pledgee may designate, or to a combination of the foregoing, any
or all of the Pledged Collateral. To enforce the provisions of this Section, the
Pledgee is empowered to seek from the FCC and any other Licensing Authority, to
the extent required, consent to or approval of an involuntary transfer of
control of the Pledgor and any of its Subsidiaries which holds an FCC License
for the purpose of seeking a bona fide purchaser to whom control will ultimately
be transferred. The Pledgor hereby agrees to authorize such an involuntary
transfer of control upon the request of the Pledgee and, without limiting any
rights of the Pledgee under this Agreement, authorize the Pledgee to nominate a
trustee or receiver to assume control, subject only to any required judicial,
FCC and other governmental consent, of the Pledgor or any such Subsidiary
pending and in order to effectuate the transactions contemplated by Section 6.2.
Such trustee or receiver shall have all the rights and powers as provided to it
by law, court order or to the Pledgee under this Agreement. The Pledgor shall
cooperate fully and cause each of its Subsidiaries to cooperate fully in
obtaining any required consent of the FCC or any other governmental body
required to effectuate the foregoing. The Pledgor shall further use its best
efforts to assist in obtaining any consent or approval of the FCC and any other
governmental body, if required, for any action or transactions contemplated by
this Agreement, including, without limitation, the preparation, execution and
filing with the FCC of the assignor's or transferor's portion of any application
or applications for consent to the assignment of the Pledgor's or any of its
Subsidiaries' FCC Licenses or the transfer of control necessary or appropriate
under the FCC's rules and regulations for approval of the transfer or assignment
of any portion of such FCC Licenses or the Pledged Collateral.
(c) The Pledgor acknowledges that consent of the FCC and
any other governmental body for transfer of control of the Licenses of the
Pledgor or any of its Subsidiaries is integral to the Pledgee's realization of
the value of the Pledged Collateral, that there is no adequate remedy at law for
failure by the Pledgor to comply with the provisions of this Section and that
such failure would not be adequately compensable in damages, and therefore
agrees that the agreements contained in this Section may be specifically
enforced.
(d) Notwithstanding anything to the contrary contained in
this Agreement, the Pledgee shall not, without first obtaining any consent or
approval of the FCC and any other applicable governmental body, taken any action
pursuant to this Agreement which
-13-
would constitute or result in any change of control of the Pledgor or any of its
Subsidiaries which holds an FCC License if any such change in control would
require, under then existing law, the prior approval of the FCC or such other
governmental body.
(e) Notwithstanding anything herein to the contrary, prior
to the occurrence of an Event of Default and receipt of consent of the FCC and
any other applicable governmental body to the transfer of control of the Pledgor
or any of its Subsidiaries which holds an FCC License, this Agreement and the
transactions contemplated hereby do not and will not constitute, create, or have
the effect of constituting or creating, directly or indirectly, actual or
practical ownership of the Pledgor or any such Subsidiary by the Pledgee or any
of the Banks or control, affirmative or negative, direct or indirect, by the
Pledgee or any of the Banks over the management or any other aspect of the
operation of the Pledgor or any such Subsidiary, which ownership and control
remain exclusively and at all times in the Pledgor and such Subsidiary, as the
case may be.
18. RESTRICTIONS ON TRANSFERS OF STOCK NOT APPLICABLE. The
Pledgor hereby agrees that the pledge of the Pledged Collateral to the Pledgee
hereunder and the sale of the Pledged Collateral by the Pledgee in accordance
with the provisions of this Agreement shall be free from restrictions on the
transfer of capital stock or other equity interests of each Company, if any,
contained in the Certificate or Articles of Incorporation, By-Laws or other
organizational document of such Company or in any agreement among the
stockholders of such Company. The Pledgor hereby consents to the exercise by the
Pledgee of any of its rights and remedies hereunder upon the occurrence and
during the continuance of an Event of Default and agrees that the Pledgee shall
have the right to exercise such rights and remedies in accordance with the terms
hereof upon the occurrence and during the continuance of an Event of Default
notwithstanding any restrictions set forth in the Certificate or Articles of
Incorporation, By-Laws or other organizational document of any Company or in any
agreement among the stockholders of any Company.
19. MODIFICATION. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived either generally or
in a particular instance, and either retroactively or prospectively, only with
the written consent of the Pledgor and the Pledgee. No waiver or any single
breach of default under this Agreement shall be deemed a waiver of any other
breach or default.
20. SUCCESSORS AND ASSIGNS. Subject to the limitations upon the
sale, lease, transfer or other disposition of the Pledged Collateral by the
Pledgor set forth herein and in the Loan Agreement, all of the covenants,
conditions and agreements herein contained shall be binding upon the Pledgor and
its successors and assigns; provided, however, that the Pledgor may not assign
or transfer any of its rights or obligations hereunder without the prior written
consent of all the Banks and the Pledgee. This Agreement shall inure to the
benefit of the permitted successors and assigns of the Pledgee and the Banks,
and, in the event of any transfer or assignment of rights by the Pledgee or the
Banks, the rights and privileges herein conferred upon the transferring Pledgee
or Bank shall automatically extend to and be vested in such permitted transferee
or assignee, all subject to the terms and conditions hereof.
-14-
21. GOVERNING LAW. THIS AGREEMENT AND THE DUTIES, RIGHTS, POWERS
AND REMEDIES OF THE PARTIES HERETO SHALL BE CONSTRUED IN ACCORDANCE WITH, AND
GOVERNED BY, THE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO ANY CONFLICTS
OF LAWS PROVISIONS THEREOF. THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY
DISCUSSED BY THE PLEDGEE AND THE PLEDGOR AND SHALL BE SUBJECT TO NO EXCEPTIONS.
THE PLEDGOR HAS MADE THIS CHOICE OF GOVERNING LAW KNOWINGLY AND WILLINGLY AND
AFTER CONSULTING WITH ITS COUNSEL. NEITHER THE PLEDGEE NOR THE PLEDGOR HAS
AGREED WITH OR REPRESENTED TO THE OTHER THAT THE PROVISIONS OF THIS SECTION WILL
NOT BE FULLY ENFORCED IN ALL INSTANCES.
22. ENFORCEMENT. THE PLEDGOR (A) HEREBY IRREVOCABLY SUBMITS TO
THE JURISDICTION OF THE STATE COURTS OF THE STATE OF GEORGIA AND TO THE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT
OFGEORGIA, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT
OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF BROUGHT BY THE
AGENT OR THE BANKS OR THEIR SUCCESSORS OR ASSIGNS AND (B) HEREBY WAIVES, AND
AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH
SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE
JURISDICTION OF THE ABOVE-NAMED COURTS, THAT ITS PROPERTY IS EXEMPT OR IMMUNE
FROM ATTACHMENT OR EXECUTION, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN
AN INCOVENIENT FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS
IMPROPER OR THAT THIS AGREEMENT OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED
IN OR BY SUCH COURT, AND (C) HEREBY WAIVES AND AGREES NOT TO SEEK ANY REVIEW BY
ANY COURT OF ANY OTHER JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN
ENFORCEMENT OF THE JUDGMENT OF ANY SUCH GEORGIA STATE OR FEDERAL COURT. THE
PLEDGOR HEREBY CONSENTS TO SERVICE OF PROCESS BY REGISTERED MAIL AT THE ADDRESS
TO WHICH NOTICES ARE TO BE GIVEN. THE PLEDGOR AGREES THAT ITS SUBMISSION TO
JURISDICTION AND ITS CONSENT TO SERVICE OF PROCESS BY MAIL IS MADE FOR THE
EXPRESS BENEFIT OF THE AGENT AND THE BANKS. FINAL JUDGMENT AGAINST THE PLEDGOR
IN ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT, ACTION OR PROCEEDING ON THE JUDGMENT, OR IN ANY OTHER MANNER PROVIDED BY
OR PURSUANT TO THE LAWS OF SUCH OTHER JURISDICTION; PROVIDED, HOWEVER, THAT THE
AGENT OF THE BANKS MAY AT THEIR OPTION BRING SUIT, OR INSTITUTE OTHER JUDICIAL
PROCEEDINGS, AGAINST THE PLEDGOR OR ANY OF ITS ASSETS IN ANY XXXXX XX XXXXXXX
XXXXX XX XXX XXXXXX XXXXXX OR OF ANY COUNTRY OR PLACE WHERE THE PLEDGOR, OR SUCH
ASSETS, MAY BE FOUND.
-15-
23. JURY TRIAL WAIVER. THE PLEDGOR AND THE PLEDGEE EACH WAIVES
IRREVOCABLY, TO THE EXTENT PERMITTED BY LAW, ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN THE PLEDGEE OR ANY BANK AND THE PLEDGOR ARISING OUT OF, IN
CONNECTION WITH, RELATING TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR THE NOTES OR OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS RELATED HERETO. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT
RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE PLEDGOR AND THE
PLEDGEE ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A
BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING
INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR
RELATED FUTURE DEALINGS. THE PLEDGOR AND THE PLEDGEE FURTHER WARRANT AND
REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT
EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (UNLESS EXPRESSLY MODIFIED IN
WRITING BY ALL PARTIES HERETO), AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
24. SEPARABILITY. If any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of all remaining provisions shall not
in any way be affected or impaired. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
25. ADMINISTRATIVE AGENT. The parties hereby acknowledge and
reaffirm that the Pledgee has been designated to act as administrative agent for
the Banks. All rights and remedies of the Pledgee hereunder may be exercised by
the Pledgee on behalf of, and as administrative agent for, the Banks. The Banks
may, pursuant to the terms of the Loan Agreement, appoint a successor
administrative agent, who shall, upon appointment, succeed to all the rights and
obligations of the Pledgee hereunder. The Pledgor acknowledges that the rights
of the Pledgee hereunder are for the benefit of each Bank, and that, upon the
termination of the appointment of an administrative agent under the Loan
Agreement and the failure of the Banks to appoint a successor administrative
agent thereunder, the rights of the Pledgee under the
-16-
covenants, conditions and agreements hereof shall inure to the benefit of the
Banks. At any time or times, in order to comply with any legal requirement in
any jurisdiction, the Pledgee may in good faith appoint one or more other
Persons, either to act as co-agent or co-agents, jointly with the Pledgee, or to
act as separate agent or agents on behalf of the Pledgee and the holders of the
Pledge Obligations, with such power and authority as may be necessary for the
effectual operation of the provisions hereof and may be specified in the
instrument or appointment (which may, in the discretion of the Pledgee, include
provisions for the protection of such co-agent or separate agent similar to the
provisions herein).
26. SECTION HEADINGS. The section headings contained herein are
for reference only and shall not in any way affect the meaning and
interpretation of this Agreement.
27. PRONOUNS. Any pronoun used herein shall be construed in the
person, number and gender which is appropriate in the context.
28. COUNTERPARTS. This Agreement may be executed in any number of
counterparts or duplicate originals, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
29. SUPPLEMENTS TO EXHIBIT A. Upon the execution and delivery
after the date hereof by the Borrower of an instrument substantially in the form
of Annex 1 attached hereto, Exhibit A shall be deemed to include the
corporations listed therein and this Agreement shall extend to the amounts
issued and outstanding capital stock set forth therein. The rights of the
Pledgee in respect of the capital stock described in Exhibit A as of the date
first written above shall remain in full force and effect, notwithstanding any
subsequent supplement to Exhibit A under this Section 29.
[Remainder of This Page Intentionally Left Blank]
-17-
IN WITNESS WHEREOF, the parties have caused this Borrower Pledge
Agreement to be executed on the date first above written.
PLEDGOR:
XXXX COMMUNICATIONS SYSTEMS, INC.
c/Xxxxxxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Chief Financial Officer
Address: 000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, III
PLEDGEE:
NATIONSBANK, N.A.
c/Xxxxxxx Xxxxxxx
-------------------------------------------
Xxxxxxx Xxxxxxx
Senior Vice President
Address: 000 Xxxxxxxxx Xxxxxx, X.X.
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Financial Strategies Group
-18-
ANNEX 1
SUPPLEMENT NO. __, dated as of _____________, to the Amended and
Restated Borrower Pledge Agreement, dated as of July 31, 1998 (the "Agreement"),
by and between Xxxx Communications Systems, Inc., as Pledgor, and NationsBank,
N.A., as Administrative Agent (all capitalized terms used herein but not
otherwise defined herein shall have the meaning assigned to such terms in the
Agreement as the same may be hereafter amended or supplemented from time to
time).
The Pledgor is executing this Supplement in accordance with the
requirements of the Loan Agreement and of the Agreement as additional
consideration for any Loans previously made.
Accordingly, the Pledgor agrees as follows:
(a) In accordance with Section 29 of the Agreement, the Pledgor
by signing below hereby represents and warrants that it owns issued and
outstanding capital stock of the corporations listed below in the amounts listed
below. Each reference to a "Company" or the "Companies" in the Agreement shall
be deemed to include the corporations listed below, and the Agreement is hereby
incorporated by this reference.
Corporation Stock
------------------------------------- ------------------------------
------------------------------------- ------------------------------
------------------------------------- ------------------------------
(b) This Supplement shall become effective upon the execution
hereof by the Pledgor and the delivery of this Supplement to the Administrative
Agent.
(c) Except as expressly supplemented hereby, the Agreement shall
remain in full force and effect.
(d) This Supplement shall be governed by, and shall be construed
and enforced in accordance with, the laws of the State of Georgia without regard
to the conflicts of law principles thereof.
IN WITNESS WHEREOF, the Pledgor has signed and delivered this Supplement
to the Agreement as of the day and year first above written.
-----------------------------
By: ------------------------
Name: ------------------
-19-
Title: -----------------
-20-
AGREEMENT OF THE COMPANIES
In order to induce the Pledgee and the Banks to enter into the
Loan Agreement, and knowing they are doing so in reliance hereupon, each Company
is executing this instrument.
Each Company hereby acknowledges the directions of the Pledgor
pursuant to Section 1.2 and Section 15 of the Borrower Pledge Agreement and
agrees to abide thereby.
Each Company represents and warrants to the Pledgee that (i) the
security interests and the pledge granted by the Pledgor to the Pledgee pursuant
to the Borrower Pledge Agreement have been duly registered on the books of such
Company and (ii) it has received no notice of, and has no knowledge of, any
other assignment of, or Lien upon, all or any part of the Pledged Collateral.
Defined terms used in this instrument shall have the respective
meanings ascribed to them in the Borrower Pledge Agreement.
IN WITNESS WHEREOF, the Companies have caused this instrument to
be executed as of the date of the Borrower Pledge Agreement.
COMPANIES:
THE ALBANY HERALD PUBLISHING
COMPANY, INC.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Chief Financial Officer
XXXX KENTUCKY TELEVISION, INC.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Chief Financial Officer
XXXX REAL ESTATE & DEVELOPMENT COMPANY
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Chief Financial Officer
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XXXX TELEVISION MANAGEMENT, INC.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Chief Financial Officer
XXXX TRANSPORTATION COMPANY, INC.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Chief Financial Officer
PORTA-PHONE PAGING LICENSEE CORP.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Treasurer
THE ROCKDALE CITIZEN PUBLISHING
COMPANY
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Chief Financial Officer
THE SOUTHWEST GEORGIA SHOPPER, INC.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Chief Financial Officer
WEAU LICENSEE CORP. (f/k/a WALB
Licensee Corp.)
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Treasurer
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WEAU-TV, INC. (f/k/a WALB-TV, Inc.)
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Chief Financial Officer
WCTV LICENSEE CORP.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Treasurer
WJHG LICENSEE CORP.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Treasurer
WKYT LICENSEE CORP.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Treasurer
WRDW LICENSEE CORP.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Treasurer
WRDW-TV, INC.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Chief Financial Officer
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WVLT LICENSEE CORP.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Treasurer
WVLT-TV, INC.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Chief Financial Officer
WYMT LICENSEE CORP.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Treasurer
KTVE-TV, INC.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Chief Financial Officer
XXXX MIDAMERICA HOLDINGS, INC.
(f/k/a Xxxxx Broadcasting Corporation)
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Chief Financial Officer
KOLN/KGIN, INC.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Chief Financial Officer
-24-
KOLN/KGIN LICENSE, INC.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Treasurer
WITN-TV, INC.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Chief Financial Officer
WITN LICENSEE CORP.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Treasurer
XXXX FLORIDA HOLDINGS, INC.
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Chief Financial Officer
LYNQX COMMUNICATIONS, INC.
(f/k/a Gulf Link Communications, Inc.)
c/Xxxxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Chief Financial Officer
-25-
