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EXHIBIT 10.2.3
PARENT PLEDGE AGREEMENT
This PARENT PLEDGE AGREEMENT (this "Agreement"), entered into as of
this 1st day of February, 2000, by and between STATE COMMUNICATIONS, INC., a
South Carolina corporation (the "Pledgor"), and TORONTO DOMINION (TEXAS), INC.,
a Delaware corporation (the "Administrative Agent"), as administrative agent for
the Lenders (as defined below),
WITNESSETH:
WHEREAS, TRIVERGENT COMMUNICATIONS, INC., a South Carolina corporation
(the "Borrower"), the financial institutions whose names appear as Lenders on
the signature pages thereof (the "Lenders"), TD SECURITIES (USA), INC. and
CAPITAL SYNDICATION CORPORATION, an affiliate of The CIT Group, Inc., as co-lead
arrangers and co-book runners, NEWCOURT COMMERCIAL FINANCE CORPORATION, an
affiliate of The CIT Group, Inc., as documentation agent, FIRST UNION NATIONAL
BANK, as Syndication Agent, and the Administrative Agent, are parties to that
certain Loan Agreement dated as of February 1, 2000 (as amended, restated,
supplemented or otherwise modified from time to time, the "Loan Agreement")
pursuant to which the Lenders have agreed to make Loans to the Borrower in the
aggregate committed amount of $120,000,000; and
WHEREAS, the Administrative Agent has agreed to act as administrative
agent for itself and for the ratable benefit of the Lenders, in connection with
the transactions contemplated by the Loan Agreement; and
WHEREAS, the Pledgor is the owner of all of the issued and outstanding
capital stock of the Borrower and will realize substantial direct and indirect
benefits as a result of the extensions of credit to the Borrower pursuant to the
Loan Agreement; and
WHEREAS, to secure, as further described below, the payment and
performance of, among other things, (a) the obligations of the Pledgor arising
from this Agreement and that certain Parent Guaranty of even date herewith (the
"Parent Guaranty"), and (b) all obligations of the Borrower under the Loan
Agreement, the Pledgor and the Administrative Agent have agreed that all stock
in the Borrower and all options, warrants and other rights relating thereto and
all promissory notes evidencing loans made by the Pledgor to the Borrower or any
of its Subsidiaries (hereafter collectively referred to as "Pledged Interests")
shall be pledged by the Pledgor to the Administrative Agent to secure the
Obligations (as defined below);
NOW, THEREFORE, for and in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that capitalized terms used herein shall
have the meanings ascribed to them in the Loan Agreement to the extent not
otherwise defined or limited herein, and further agree as follows:
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1. Warranty. The Pledgor hereby represents and warrants to the
Administrative Agent that except for the security interest created hereby, the
Pledgor is the legal and beneficial owner of the Pledged Interests, which with
respect to equity constitute all of the issued and outstanding interests of the
Borrower free and clear of all Liens, that such Pledged Interests are duly
issued, fully paid and nonassessable, and that the Pledgor has the unencumbered
right to pledge such Pledged Interests.
2. Security Interest. The Pledgor hereby unconditionally grants and
assigns to the Administrative Agent a continuing security interest in and to the
Pledged Interests. The Pledgor has delivered to and deposited with the
Administrative Agent certificates or notes representing the Pledged Interests,
and undated powers endorsed in blank, or endorsements on the notes themselves,
as security for (i) the payment and performance of all Obligations of the
Borrower to the Administrative Agent and the Lenders under the Loan Agreement
and the other Loan Documents (and any interest, fees and other charges in
respect of the Loan Documents that would accrue but for the filing of a
bankruptcy action with respect to the Borrower, whether or not such claim is
allowed in such bankruptcy action), as the same may be amended from time to
time, or as a result of making the Loans, (ii) the payment of any and all
damages which the Administrative Agent and the Lenders, or any of them, may
suffer by reason of a breach of any obligation, covenant or undertaking with
respect to this Agreement, the Loan Agreement, or any other Loan Document by the
Borrower or any other obligor thereunder, and (iii) all of the obligations of
the Pledgor and any other obligor to the Administrative Agent and the Lenders,
or any of them, under this Agreement, the Loan Agreement, the Parent Guaranty or
any other Loan Document or as a result of making the Loans, and any extensions,
renewals or amendments of any of the foregoing, however created, acquired,
arising or evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due, together with any other
`Obligations,' as defined in the Loan Agreement (all of the foregoing
obligations described in clauses (i), (ii), and (iii) being hereinafter
collectively referred to as the "Obligations").
3. Additional Pledged Interests. In the event that, during the term of
this Agreement, the Pledgor shall become entitled to receive or shall receive
any certificate or any other instrument evidencing any part of the Pledged
Interests (including, without limitation, any certificate or other instrument
representing a dividend or a distribution in connection with any
reclassification, increase or reduction of capital, or issued in connection with
any reorganization), or any options or rights, or any promissory notes or other
debt instruments, whether as an addition to, in substitution for, or in exchange
for any of the Pledged Interests, or otherwise, the Pledgor agrees to promptly
deliver such additional Pledged Interests to the Administrative Agent, together
with undated powers endorsed in blank by the Pledgor or endorsements on the
notes themselves, and shall thereupon constitute additional Pledged Interests to
be held by the Administrative Agent under the terms of this Agreement. In case
any distribution of any stock, general partner interests, limited partner
interests, limited liability company interests, member interests or other equity
interests of any Person, regardless of class or designation, or any warrants,
options, purchase rights, conversion or exchange rights, voting rights, calls or
claims of any character with respect to any of the foregoing, or any promissory
notes or other debt instruments, shall be made on or in respect of the Pledged
Interests or any property shall be distributed upon or with respect to the
Pledged Interests pursuant to the
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recapitalization or reclassification of the equity interests of the issuer
thereof or pursuant to the reorganization thereof, the property so distributed
shall be delivered to the Administrative Agent to be held by it as additional
collateral security for the Obligations. All sums of money and property so paid
or distributed in respect of the Pledged Interests which are received by the
Pledgor shall, until paid or delivered to the Administrative Agent, be held by
the Pledgor in trust for the benefit of the Administrative Agent as additional
collateral security for the Obligations.
4. Default. Subject to Section 13 hereof, the Administrative Agent may
sell or otherwise dispose of the Pledged Interests at a public or private sale
or make other commercially reasonable disposition of the Pledged Interests or
any portion thereof after ten (10) calendar days' notice to the Pledgor, and the
Administrative Agent or any Lender may purchase the Pledged Interests or any
portion thereof at any public sale. The proceeds of the public or private sale
or other disposition first shall be applied to the costs of the Administrative
Agent incurred in connection with the sale, expressly including, without
limitation, any costs under Section 7 hereof, and then as provided in the Loan
Agreement. In the event the proceeds of the sale or other disposition of the
Pledged Interests are insufficient to satisfy the Obligations, the Pledgor shall
remain liable for any such deficiency.
5. Additional Rights of Secured Party. In addition to its rights and
privileges under this Agreement, the Administrative Agent shall have all the
rights, powers and privileges of a secured party under the Uniform Commercial
Code as in effect in any applicable jurisdiction.
6. Return of Pledged Interests. Upon payment in full of all principal
and interest of the Loans, full performance by the Borrower of all covenants,
undertakings and obligations under the Loan Agreement, and the other Loan
Documents, and satisfaction in full of any other Obligations, other than the
Obligations which survive the termination of the Loan Agreement as provided in
Section 11.16 of the Loan Agreement, and after such time as the Lenders shall
have no obligation to make any further Advances to the Borrower, the
Administrative Agent shall return the remaining Pledged Interests and all rights
received by the Administrative Agent as a result of its possessory interest in
the Pledged Interests to the Pledgor.
7. Disposition of Pledged Interests by Administrative Agent. None of
the Pledged Interests is registered or qualified under the various federal or
state securities laws of the United States and disposition thereof may be
restricted to one or more private (instead of public) sales in view of the lack
of such registration. The Pledgor understands that upon such disposition, the
Administrative Agent may approach only a restricted number of potential
purchasers and further understands that a sale under such circumstances may
yield a lower price for the Pledged Interests than if the Pledged Interests were
registered and qualified pursuant to federal and state securities laws and sold
on the open market. The Pledgor, therefore, agrees that:
(a) if the Administrative Agent shall, pursuant to the terms
of this Agreement, sell or cause the Pledged Interests or any portion
thereof to be sold at a private sale, the Administrative Agent shall
have the right to rely upon the advice and opinion of any national
brokerage or investment firm having recognized expertise and experience
in connection with shares of integrated communications providers and
other communications companies (but shall not be obligated to seek such
advice and the failure to do so
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shall not be considered in determining the commercial reasonableness of
such action) as to the best manner in which to offer the Pledged
Interests for sale and as to the best price reasonably obtainable at
the private sale thereof; and
(b) such reliance shall be conclusive evidence that the
Administrative Agent has handled such disposition in a commercially
reasonable manner.
8. Pledgor's Obligations Absolute. The obligations of the Pledgor under
this Agreement shall be direct and immediate and not conditional or contingent
upon the pursuit of any remedies against the Borrower or any other Person, nor
against other security or liens available to the Administrative Agent. The
Pledgor hereby waives any right to require that an action be brought against any
other Person or to require that resort be had to any security or to any balance
of any deposit account or credit on the books of the Administrative Agent or any
of the Lenders in favor of any other Person prior to the exercise of remedies
hereunder, or to require action hereunder prior to resort by the Administrative
Agent to any other security or collateral for the Obligations.
9. Voting Rights.
(a) Subject to the provisions of Section 13 hereof, (i) the
Administrative Agent may, upon ten (10) calendar days' prior notice to
the Pledgor of the Administrative Agent's intention to do so, exercise
any and all voting rights, and all other ownership or consensual rights
of the Pledged Interests owned by the Pledgor, but under no
circumstances is the Administrative Agent obligated by the terms of
this Agreement to exercise such rights, and (ii) the Pledgor hereby
appoints the Administrative Agent, which appointment shall be effective
on the 10th day following the giving of notice by the Administrative
Agent as provided in the foregoing clause (i), the Pledgor's true and
lawful attorney-in-fact and IRREVOCABLE PROXY to vote the Pledged
Interests in any manner the Administrative Agent deems advisable for or
against all matters submitted or which may be submitted to a vote of
shareholders, members or partners, as applicable. The power-of-attorney
granted hereby is coupled with an interest and shall be irrevocable.
(b) For so long as the Pledgor shall have the right to vote
the Pledged Interests owned by it, the Pledgor covenants and agrees
that it will not, without the prior written consent of the
Administrative Agent, vote or take any consensual action with respect
to such Pledged Interests which would constitute an Event of Default.
10. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be given in the manner set forth in
Section 11.1 of the Loan Agreement, at the address for the Administrative Agent
set forth in such section, and for the Pledgor to it at the address set forth
for the Borrower in Section 11.1 of the Loan Agreement.
11. Binding Agreement. This Agreement shall be construed and
interpreted in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed wholly within the State of New
York. This Agreement, together with all
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documents referred to herein, constitutes the entire agreement between the
parties with respect to the matters addressed herein and may not be modified
except by a writing executed by the Administrative Agent and the Pledgor and
delivered by the Administrative Agent to the Pledgor.
12. Severability. If any paragraph or part thereof shall for any reason
be held or adjudged to be invalid, illegal or unenforceable by any court of
competent jurisdiction, such paragraph or part thereof so adjudicated invalid,
illegal or unenforceable shall be deemed separate, distinct and independent, and
the remainder of this Agreement shall remain in full force and effect and shall
not be affected by such holding or adjudication.
13. FCC Compliance. Notwithstanding anything herein which may be
construed to the contrary, no action shall be taken by the Administrative Agent
which may require the consent or approval of the FCC and the proxy granted in
Section 9(a) hereof shall not become effective unless and until all requirements
of the Communications Law, requiring the consent to or approval of such action
by the FCC, have been satisfied. The Pledgor covenants that, upon request of the
Administrative Agent, it will cooperate in causing to be filed such applications
and taking such other action as may be requested by the Administrative Agent to
obtain consent or approval of the FCC to any action contemplated by this
Agreement and to give effect to the security interest of the Administrative
Agent, including, without limitation, cooperating in the execution of an
application for consent by the FCC to an assignment or transfer involving a
change in ownership or control pursuant to the provisions of the Communications
Law.
14. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
Any signatures delivered by a party by facsimile transmission shall be deemed an
original signature hereto.
15. Administrative Agent. Each reference herein to any right granted
to, benefit conferred upon or power exercisable by the "Administrative Agent"
shall be a reference to the Administrative Agent for itself and for the ratable
benefit of the Lenders, and each action taken or right exercised hereunder shall
be deemed to have been so taken or exercised by the Administrative Agent for the
benefit of and on behalf of all the Lenders.
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IN WITNESS WHEREOF, the undersigned parties hereto have executed this
Agreement by and through their duly authorized officers, as of the day and year
first above written.
PLEDGOR: STATE COMMUNICATIONS, INC.
By:
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Name:
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Title:
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Attest:
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Name:
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Title:
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ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC.
By:
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Name:
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Title:
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