Exhibit 99.5
PLEDGE AGREEMENT
PLEDGE AGREEMENT (as amended, modified, restated and/or
supplemented from time to time, this "Agreement"), dated as of December 21,
2004, among each of the undersigned pledgors (each, a "Pledgor" and, together
with any other entity that becomes a pledgor hereunder pursuant to Section 30
hereof, the "Pledgors") and HSBC Bank USA, National Association, as collateral
agent (the "Second-Lien Collateral Agent" together with any successor
collateral agent, the "Pledgee"), for the benefit of the Secured Creditors (as
defined below). Except as otherwise defined herein, all capitalized terms used
herein and defined in the Second-Lien Note Indenture (as defined below) shall
be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, RCN Corporation (the "Borrower") and HSBC Bank USA,
National Association, as trustee (together with any successor trustee, the
"Second-Lien Trustee"), have entered into an Indenture, dated as of December
21, 2004 (as amended, modified, restated and/or supplemented from time to time,
the "Second-Lien Note Indenture"), providing for the issuance of Notes
("Second-Lien Notes") by the Borrower, all as contemplated therein (the holders
of Second-Lien Notes from time to time (the "Noteholders"), the Second-Lien
Collateral Agent, the Second-Lien Trustee and the Pledgee are herein called the
"Secured Creditors");
WHEREAS, pursuant to the Guarantee Agreement, each Guarantor
has jointly and severally guaranteed to the Secured Creditors the payment when
due of all Guaranteed Obligations as described therein;
WHEREAS, it is a condition precedent to the issuance of
Second-Lien Notes by the Borrower under the Second-Lien Note Indenture that
each Pledgor shall have executed and delivered to the Pledgee this Agreement;
and
WHEREAS, the Borrower, various financial institutions from
time to time party thereto and Deutsche Bank AG Cayman Islands Branch, as
administrative agent and collateral agent (in such capacity, the "First-Lien
Collateral Agent"), have entered into a credit agreement, dated as of the date
hereof (as amended, restated, modified, extended, renewed, replaced,
supplemented, restructured and/or refinanced from time to time, the "First-Lien
Credit Agreement");
WHEREAS, each Pledgor will obtain benefits from the issuance
of Second-Lien Notes by the Borrower and, accordingly, desires to execute this
Agreement in order to satisfy the condition described in the second preceding
paragraph; and
WHEREAS, each Pledgor is concurrently granting to the
First-Lien Collateral Agent, for the benefit of the holders of obligations
under the First-Lien Credit Agreement, a first priority security interest in
the Collateral (it being understood that the relative rights and priorities of
the grantees in respect of the Collateral are governed by the Intercreditor
Agreement, dated as of the date hereof (as amended, restated, supplemented or
otherwise modified from time to time, the "Intercreditor Agreement"), among the
Borrower, the First-Lien Collateral Agent, the Second-Lien Collateral Agent and
certain other persons party or that may become party thereto from time to
time);
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Pledgor, the receipt and sufficiency of which are
hereby acknowledged, each Pledgor hereby makes the following representations
and warranties to the Pledgee for the benefit of the Secured Creditors and
hereby covenants and agrees with the Pledgee for the benefit of the Secured
Creditors as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each
Pledgor for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at
stated maturity, by acceleration or otherwise) of all obligations,
liabilities and indebtedness (including, without limitation,
principal, premium, interest (including, without limitation, all
interest that accrues after the commencement of any case, proceeding
or other action relating to the bankruptcy, insolvency, reorganization
or similar proceeding of any Pledgor or any Subsidiary thereof at the
rate provided for in the respective documentation, whether or not a
claim for post-petition interest is allowed in any such proceeding),
fees, costs and indemnities) of such Pledgor owing to the Secured
Creditors, whether now existing or hereafter incurred under, arising
out of, or in connection with, the Second-Lien Note Indenture and the
other Second-Lien Note Documents to which such Pledgor is a party
(including, in the case of each Pledgor that is a Guarantor, all such
obligations, liabilities and indebtedness of such Pledgor under its
Guarantee Agreement) and the due performance and compliance by such
Pledgor with all of the terms, conditions and agreements contained in
the Second-Lien Note Indenture and in such other Second-Lien Note
Documents (all such obligations, liabilities and indebtedness under
this clause (i), entitled to the benefits of this Agreement being
herein collectively called the "Second-Lien Note Document
Obligations");
(ii) any and all sums advanced by the Pledgee in order
to preserve the Collateral (as hereinafter defined) or preserve its
security interest in the Collateral;
(iii) in the event of any proceeding for the collection
or enforcement of any indebtedness, obligations or liabilities of such
Pledgor referred to in clause (i) above, after an Event of Default
shall have occurred and be continuing, the reasonable expenses of
retaking, holding, preparing for sale or lease, selling or otherwise
disposing of or realizing on the Collateral, or of any exercise by the
Pledgee of its rights hereunder, together with reasonable attorneys'
fees and court costs;
(iv) all amounts paid by any Indemnitee as to which
such Indemnitee has the right to reimbursement under Section 11 of
this Agreement; and
(v) all amounts owing to the Second-Lien Collateral
Agent or any other agent under the Second-Lien Note Indenture or any
of their agents or affiliates pursuant to any of the Second-Lien Note
Documents in their capacity as such;
all such obligations, liabilities, indebtedness, sums and expenses set forth in
clauses (i) through (v) of this Section 1 being herein collectively called the
"Obligations", it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
2. DEFINITIONS. (a) Unless otherwise defined herein, all
capitalized terms used herein and defined in the Second-Lien Note Indenture
shall be used herein as therein defined. Reference to singular terms shall
include the plural and vice versa.
(b) The following capitalized terms used herein shall have
the definitions specified below:
"Adverse Claim" shall have the meaning given such term in
Section 8-102(a)(1) of the UCC.
"Agreement" shall have the meaning set forth in the first
paragraph hereof.
"Borrower" shall have the meaning set forth in the recitals
hereto.
"Certificated Security" shall have the meaning given such
term in Section 8-102(a)(4) of the UCC.
"Clearing Corporation" shall have the meaning given such term
in Section 8-102(a)(5) of the UCC.
"Collateral" shall have the meaning set forth in Section 3.1
hereof.
"Collateral Accounts" shall mean any and all accounts
established and maintained by the Pledgee in the name of any Pledgor to which
Collateral may be credited.
"Collateral Agent Action" shall have the meaning provided in
Section 33(h) hereof.
"Credit Party" shall mean the Borrower and each Guarantor.
"Domestic Corporation" shall mean any corporation or similar
entity organized under the laws of the United States or any State or territory
thereof or the District of Columbia.
"Event of Default" shall mean any Event of Default under,
and as defined in, the Second-Lien Note Indenture and shall in any event
include, without limitation, any payment default on any of the Obligations
after the expiration of any applicable grace period.
"Exempted Foreign Entity" shall mean any Foreign Corporation
and any limited liability company organized under the laws of a jurisdiction
other than the United States or any State or Territory thereof that, in any
such case, is treated as a corporation or an association taxable as a
corporation for U.S. Federal income tax purposes.
"Financial Asset" shall have the meaning given such term in
Section 8-102(a)(9) of the UCC.
"First-Lien Collateral Agent" has the meaning given such term
in the Recitals hereto.
"Foreign Corporation" shall mean any corporation or similar
entity organized under the laws of any jurisdiction other than the United
States or any State or territory thereof or the District of Columbia.
"Indemnitees" shall have the meaning set forth in Section 11
hereof.
"Instrument" shall have the meaning given such term in
Section 9-102(a)(47) of the UCC.
"Intercreditor Agreement" has the meaning given such term in
the Recitals hereto.
"Investment Property" shall have the meaning given such term
in Section 9-102(a)(49) of the UCC.
"Limited Liability Company Assets" shall mean all assets,
whether tangible or intangible and whether real, personal or mixed (including,
without limitation, all limited liability company capital and interest in other
limited liability companies), at any time owned by any Pledgor or represented
by any Limited Liability Company Interest.
"Limited Liability Company Interests" shall mean the entire
limited liability company membership interest at any time owned by any Pledgor
in any limited liability company.
"Location" of any Pledgor has the meaning given such term in
Section 9-307 of the UCC.
"Majority Noteholders" shall mean the holders of not less
than a majority in aggregate principal amount of the Second-Lien Notes at the
time outstanding (as determined in accordance with Section 9.4 of the
Second-Lien Note Indenture).
"Non-Voting Equity Interests" shall mean all Equity Interests
of any Person which are not Voting Equity Interests.
"Noteholders" shall have the meaning set forth in the
recitals hereto.
"Notes" shall mean all promissory notes, including all
intercompany notes at any time issued to any Pledgor.
"Obligations" shall have the meaning set forth in Section 1
hereof.
"Partnership Assets" shall mean all assets, whether tangible
or intangible and whether real, personal or mixed (including, without
limitation, all partnership capital and interest in other partnerships), at any
time owned by any Pledgor or represented by any Partnership Interest.
"Partnership Interest" shall mean the entire general
partnership interest or limited partnership interest at any time owned by any
Pledgor in any general partnership or limited partnership.
"Pledged Notes" shall mean all Notes at any time pledged or
required to be pledged hereunder.
"Pledgee" shall have the meaning set forth in the first
paragraph hereof.
"Pledgor" shall have the meaning set forth in the first
paragraph hereof.
"Proceeds" shall have the meaning given such term in Section
9-102(a)(64) of the UCC.
"Registered Organization" shall have the meaning given such
term in Section 9-102(a)(70) of the UCC.
"Second-Lien Collateral Agent" shall have the meaning set
forth in the recitals hereto.
"Second-Lien Note Documents" shall mean the "Transaction
Documents" as defined in the Second-Lien Note Indenture.
"Second-Lien Note Document Obligations" shall have the
meaning set forth in Section 1(i) hereof.
"Second-Lien Note Indenture" shall have the meaning set forth
in the recitals hereto.
"Second-Lien Trustee" shall have the meaning set forth in the
recitals hereto.
"Secured Creditors" shall have the meaning set forth in the
recitals hereto.
"Secured Debt Agreements" shall mean and includes this
Agreement and the other Second-Lien Note Documents.
"Securities Account" shall have the meaning given such term
in Section 8-501(a) of the UCC.
"Securities Act" shall mean the Securities Act of 1933, as
amended, as in effect from time to time.
"Securities Intermediary" shall have the meaning given such
term in Section 8-102(14) of the UCC.
"Security" and "Securities" shall have the meaning given such
term in Section 8-102(a)(15) of the UCC and shall in any event also include all
Stock and all Notes.
"Security Entitlement" shall have the meaning given such term
in Section 8-102(a)(17) of the UCC.
"Specified Default" shall have the meaning set forth in
Section 5 hereof.
"Stock" shall mean all of the issued and outstanding shares
of capital stock or similar equity interests of any Domestic Corporation or
Foreign Corporation at any time owned by any Pledgor.
"Termination Date" shall have the meaning set forth in
Section 20 hereof.
"Transmitting Utility" has the meaning given such term in
Section 9-102(a)(80) of the UCC.
"UCC" shall mean the Uniform Commercial Code as in effect in
the State of New York from time to time; provided that all references herein to
specific Sections or subsections of the UCC are references to such Sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect in
the State of New York on the date hereof.
"Uncertificated Security" shall have the meaning given such
term in Section 8-102(a)(18) of the UCC.
"Voting Equity Interests" of any Person shall mean all
classes of Equity Interests of such Person entitled to vote.
3. PLEDGE OF SECURITIES, ETC.
3.1 Pledge. To secure the Obligations now or hereafter owed
or to be performed by such Pledgor (but the rights and remedies between the
First-Lien Collateral Agent and the Second-Lien Collateral Agent are subject to
the terms of the Intercreditor Agreement), each Pledgor does hereby grant,
pledge and assign to the Pledgee for the benefit of the Secured Creditors, and
does hereby create a continuing security interest (subject to those Liens
permitted to exist with respect to the Collateral pursuant to the terms of all
Secured Debt Agreements then in effect) in favor of the Pledgee for the benefit
of the Secured Creditors in, all of its right, title and interest in and to the
following, whether now existing or hereafter from time to time acquired
(collectively, the "Collateral"):
(a) each of the Collateral Accounts (to the extent a security
interest therein is not created pursuant to the Security Agreement),
including any and all assets of whatever type or kind deposited by
such Pledgor in any such Collateral Account, whether now owned or
hereafter acquired, existing or arising, including, without
limitation, all Financial Assets, Investment Property, monies, checks,
drafts, Instruments, Securities or interests therein of any type or
nature deposited or required by the Second-Lien Note Indenture or any
other Secured Debt Agreement to be deposited in such Collateral
Account, and all investments and all certificates and other
Instruments (including depository receipts, if any) from time to time
representing or evidencing the same, and all dividends, interest,
distributions, cash and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all of the foregoing;
(b) all Securities owned or held by such Pledgor from time to
time and all options and warrants owned by such Pledgor from time to
time to purchase Securities;
(c) all Limited Liability Company Interests owned by such
Pledgor from time to time and all of its right, title and interest in
each limited liability company to which each such Limited Liability
Company Interest relates, whether now existing or hereafter acquired,
including, without limitation, to the fullest extent permitted under
the terms and provisions of the documents and agreements governing
such Limited Liability Company Interests and applicable law:
(A) all its capital therein and its interest in all
profits, income, surpluses, losses, Limited Liability Company
Assets and other distributions to which such Pledgor shall at
any time be entitled in respect of such Limited Liability
Company Interests;
(B) all other payments due or to become due to such
Pledgor in respect of Limited Liability Company Interests,
whether under any limited liability company agreement or
otherwise, whether as contractual obligations, damages,
insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges,
authority, options, security interests, liens and remedies,
if any, under any limited liability company agreement or
operating agreement, or at law or otherwise in respect of
such Limited Liability Company Interests;
(D) all present and future claims, if any, of such
Pledgor against any such limited liability company for monies
loaned or advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any limited
liability company agreement or operating agreement or at law
to exercise and enforce every right, power, remedy,
authority, option and privilege of such Pledgor relating to
such Limited Liability Company Interests, including any power
to terminate, cancel or modify any such limited liability
company agreement or operating agreement, to execute any
instruments and to take any and all other action on behalf of
and in the name of any of such Pledgor in respect of such
Limited Liability Company Interests and any such limited
liability company, to make determinations, to exercise any
election (including, but not limited to, election of
remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full
power and authority to demand, receive, enforce, collect or
receipt for any of the foregoing or for any Limited Liability
Company Asset, to enforce or execute any checks, or other
instruments or orders, to file any claims and to take any
action in connection with any of the foregoing; and
(F) all other property hereafter delivered in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
other property and all cash, securities, interest, dividends,
rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of
or in exchange for any or all thereof;
(d) all Partnership Interests owned by such Pledgor from time
to time and all of its right, title and interest in each partnership to which
each such Partnership Interest relates, whether now existing or hereafter
acquired, including, without limitation, to the fullest extent permitted under
the terms and provisions of the documents and agreements governing such
Partnership Interests and applicable law:
(A) all its capital therein and its interest in all
profits, income, surpluses, losses, Partnership Assets and
other distributions to which such Pledgor shall at any time
be entitled in respect of such Partnership Interests;
(B) all other payments due or to become due to such
Pledgor in respect of Partnership Interests, whether under
any partnership agreement or otherwise, whether as
contractual obligations, damages, insurance proceeds or
otherwise;
(C) all of its claims, rights, powers, privileges,
authority, options, security interests, liens and remedies,
if any, under any partnership agreement or operating
agreement, or at law or otherwise in respect of such
Partnership Interests;
(D) all present and future claims, if any, of such
Pledgor against any such partnership for monies loaned or
advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any partnership
agreement or operating agreement or at law to exercise and
enforce every right, power, remedy, authority, option and
privilege of such Pledgor relating to such Partnership
Interests, including any power to terminate, cancel or modify
any partnership agreement or operating agreement, to execute
any instruments and to take any and all other action on
behalf of and in the name of such Pledgor in respect of such
Partnership Interests and any such partnership, to make
determinations, to exercise any election (including, but not
limited to, election of remedies) or option or to give or
receive any notice, consent, amendment, waiver or approval,
together with full power and authority to demand, receive,
enforce, collect or receipt for any of the foregoing or for
any Partnership Asset, to enforce or execute any checks, or
other instruments or orders, to file any claims and to take
any action in connection with any of the foregoing; and
(F) all other property hereafter delivered in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
other property and all cash, securities, interest, dividends,
rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of
or in exchange for any or all thereof;
(e) all Financial Assets and Investment Property owned by
such Pledgor from time to time;
(f) all Security Entitlements owned by such Pledgor from time
to time in any and all of the foregoing; and
(g) all Proceeds of any and all of the foregoing.
Notwithstanding anything to the contrary contained herein, no Pledgor shall be
required at any time to pledge hereunder (x) to the extent such equity
interests are the property of the Pledgor any limited liability company
interests of Starpower Communications, LLC for so long as the organizational
documents of such entity prohibits the granting of a security interest in such
limited liability company interests; provided that a security interest shall
attach immediately upon (and the exclusion to this clause (x) shall no longer
apply at any time after) the consummation of the Starpower Acquisition, (y) to
the extent such equity interests are the property of the Pledgor, any equity
interests of Megacable, S.A. de C.V., MCM Holdings, S.A. de C.V. and Megacable
Telecommunicaciones, S.A. de C.V. for so long as the organizational documents
of such entities prohibits the granting of a security interest in such equity
interests; provided that such security interest shall attach immediately when
such prohibition is no longer in effect or (z) more than 65% of the Voting
Equity Interest of any Foreign Corporation; provided that each Pledgor shall be
required to pledge hereunder 100% of any Non-Voting Equity Interest at any time
and from time to time acquired by such Pledgor of any Foreign Corporation.
3.2 Procedures. (a) To the extent that any Pledgor at any
time or from time to time owns, acquires or obtains any right, title or
interest in any Collateral, such Collateral shall automatically (and without
the taking of any action by such Pledgor) be pledged pursuant to Section 3.1 of
this Agreement and, in addition thereto (but subject to the terms of the
Intercreditor Agreement), such Pledgor shall (to the extent provided below and
not inconsistent with the terms of the Intercreditor Agreement) take the
following actions as set forth below (as promptly as practicable and, in any
event, within 10 days after it obtains such Collateral) for the benefit of the
Pledgee and the other Secured Creditors:
(i) with respect to a Certificated Security (other than a
Certificated Security credited on the books of a Clearing Corporation
or Securities Intermediary), such Pledgor shall physically deliver
such Certificated Security to the Pledgee, endorsed to the Pledgee or
endorsed in blank;
(ii) with respect to an Uncertificated Security (other than
an Uncertificated Security credited on the books of a Clearing
Corporation or Securities Intermediary), such Pledgor shall cause the
issuer of such Uncertificated Security to duly authorize, execute, and
deliver to the Pledgee, an agreement for the benefit of the Pledgee
and the other Secured Creditors substantially in the form of Annex H
hereto (appropriately completed to the satisfaction of the Pledgee and
with such modifications, if any, as shall be satisfactory to the
Pledgee) pursuant to which such issuer agrees to comply with any and
all instructions originated by the Pledgee in accordance with this
Agreement without further consent by the registered owner and not to
comply with instructions regarding such Uncertificated Security (and
any Partnership Interests and Limited Liability Company Interests
issued by such issuer) originated by any other Person other than a
court of competent jurisdiction;
(iii) with respect to a Certificated Security, Uncertificated
Security, Partnership Interest or Limited Liability Company Interest
credited on the books of a Clearing Corporation or Securities
Intermediary (including a Federal Reserve Bank, Participants Trust
Company or The Depository Trust Company), such Pledgor shall promptly
notify the Pledgee thereof and shall promptly take (x) all actions
required (i) to comply with the applicable rules of such Clearing
Corporation or Securities Intermediary and (ii) to perfect the
security interest of the Pledgee under applicable law (including, in
any event, under Sections 9-314(a), (b) and (c), 9-106 and 8-106(d) of
the UCC) and (y) such other actions as the Pledgee deems necessary or
desirable to effect the foregoing;
(iv) with respect to a Partnership Interest or a Limited
Liability Company Interest (other than a Partnership Interest or
Limited Liability Company Interest credited on the books of a Clearing
Corporation or Securities Intermediary), (1) if such Partnership
Interest or Limited Liability Company Interest is represented by a
certificate and is a Security for purposes of the UCC, the procedure
set forth in Section 3.2(a)(i) hereof, and (2) if such Partnership
Interest or Limited Liability Company Interest is not represented by a
certificate or is not a Security for purposes of the UCC, the
procedure set forth in Section 3.2(a)(ii) hereof;
(v) with respect to any Note, physical delivery of such Note
to the Pledgee, endorsed in blank, or, at the request of the Pledgee,
endorsed to the Pledgee; and
(vi) with respect to cash proceeds from any of the Collateral
described in Section 3.1 hereof, (i) establishment by the Pledgee of a
cash account in the name of such Pledgor over which the Pledgee shall
have "control" within the meaning of the UCC and at any time any Event
of Default is in existence no withdrawals or transfers may be made
therefrom by any Person except with the prior written consent of the
Pledgee and (ii) deposit of such cash in such cash account.
(b) In addition to the actions required to be taken pursuant
to Section 3.2(a) hereof, each Pledgor shall take the following additional
actions with respect to the Collateral:
(i) with respect to all Collateral of such Pledgor whereby or
with respect to which the Pledgee may obtain "control" thereof within
the meaning of Section 8-106 of the UCC (or under any provision of the
UCC as same may be amended or supplemented from time to time, or under
the laws of any relevant State other than the State of New York), such
Pledgor shall take all actions (to the extent not inconsistent with
the Intercreditor Agreement) so that "control" of such Collateral is
obtained and at all times held by the Pledgee; and
(ii) each Pledgor shall from time to time cause appropriate
financing statements (on appropriate forms) under the Uniform
Commercial Code as in effect in the various relevant States, covering
all Collateral hereunder (with the form of such financing statements
to be satisfactory to the Pledgee), to be filed in the relevant filing
offices so that at all times the Pledgee's security interest in all
Investment Property and other Collateral which can be perfected by the
filing of such financing statements (in each case to the maximum
extent perfection by filing may be obtained under the laws of the
relevant States, including, without limitation, Section 9-312(a) of
the UCC) is so perfected.
3.3 Subsequently Acquired Collateral. If any Pledgor shall
acquire (by purchase, stock dividend, distribution or otherwise) any additional
Collateral at any time or from time to time after the date hereof, (i) such
Collateral shall automatically (and without any further action being required
to be taken) be subject to the pledge and security interests created pursuant
to Section 3.1 hereof and, furthermore, such Pledgor will, to the extent not
inconsistent with the Intercreditor Agreement, thereafter take (or cause to be
taken) all action (as promptly as practicable and, in any event, within 10 days
after it obtains such Collateral) with respect to such Collateral in accordance
with the procedures set forth in Section 3.2 hereof and the Intercreditor
Agreement, and will, to the extent not inconsistent with the Intercreditor
Agreement, promptly thereafter deliver to the Pledgee (i) a certificate
executed by an authorized officer of such Pledgor describing such Collateral
and certifying that the same has been duly pledged in favor of the Pledgee (for
the benefit of the Secured Creditors) hereunder and (ii) supplements to Annexes
A through G hereto as are necessary to cause such Annexes to be complete and
accurate at such time. Notwithstanding the foregoing, no Pledgor shall be
required to pledge hereunder the equity interests of any Exempted Foreign
Entity.
3.4 Transfer Taxes. Each pledge of Collateral under Section
3.1 or Section 3.3 hereof shall be accompanied by any transfer tax stamps
required in connection with the pledge of such Collateral.
3.5 Certain Representations and Warranties Regarding the
Collateral. Each Pledgor represents and warrants that on the date hereof: (i)
each Subsidiary of such Pledgor, and the direct ownership thereof, is listed in
Annex B hereto; (ii) the Stock (and any warrants or options to purchase Stock)
held by such Pledgor consists of the number and type of shares of the stock (or
warrants or options to purchase any stock) of the corporations as described in
Annex C hereto; (iii) such Stock referenced in clause (ii) of this paragraph
constitutes that percentage of the issued and outstanding capital stock of the
issuing corporation as is set forth in Annex C hereto; (iv) the Notes held by
such Pledgor consist of the promissory notes described in Annex D hereto where
such Pledgor is listed as the lender; (v) the Limited Liability Company
Interests held by such Pledgor consist of the number and type of interests of
the Persons described in Annex E hereto; (vi) each such Limited Liability
Company Interest referenced in clause (v) of this paragraph constitutes that
percentage of the issued and outstanding equity interest of the issuing Person
as set forth in Annex E hereto; (vii) the Partnership Interests held by such
Pledgor consist of the number and type of interests of the Persons described in
Annex F hereto; (viii) each such Partnership Interest referenced in clause
(viii) of this paragraph constitutes that percentage or portion of the entire
partnership interest of the Partnership as set forth in Annex F hereto; (ix)
the exact address of each chief executive office of such Pledgor is listed on
Annex G hereto; (x) the Pledgor has complied with the respective procedure set
forth in Section 3.2(a) hereof with respect to each item of Collateral
described in Annexes C through F hereto; and (xi) on the date hereof, such
Pledgor owns no other Securities, Stock, Notes, Limited Liability Company
Interests or Partnership Interests.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. Subject to
the terms of the Intercreditor Agreement, the Pledgee shall have the right to
appoint one or more sub-agents for the purpose of retaining physical possession
of the Collateral, which may be held (in the discretion of the Pledgee) in the
name of the relevant Pledgor, endorsed or assigned in blank or in favor of the
Pledgee or any nominee or nominees of the Pledgee or a sub-agent appointed by
the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT OR SPECIFIED
DEFAULT. Unless and until there shall have occurred and be continuing any Event
of Default under the Second-Lien Note Indenture or a Default under Section
7.1(a) or 7.1(g) of the Second-Lien Note Indenture (each such Default, a
"Specified Default"), each Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Collateral owned by it,
and to give consents, waivers or ratifications in respect thereof; provided
that, in each case, no vote shall be cast or any consent, waiver or
ratification given or any action taken or omitted to be taken which would
violate, result in a breach of any covenant contained in, or be inconsistent
with any of the terms of any Secured Debt Agreement, or which could reasonably
be expected to have the effect of impairing the value of the Collateral or any
part thereof or the position or interests of the Pledgee or any other Secured
Creditor in the Collateral, unless expressly permitted by the terms of the
Secured Debt Agreements. All such rights of each Pledgor to vote and to give
consents, waivers and ratifications shall cease in case an Event of Default has
occurred and is continuing, and Section 7 hereof shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Subject to the terms of
the Intercreditor Agreement, unless and until there shall have occurred and be
continuing an Event of Default, all cash dividends, cash distributions, cash
Proceeds and other cash amounts payable in respect of the Collateral shall be
paid to the respective Pledgor. The Pledgee shall be entitled to receive
directly, and to retain as part of the Collateral:
(i) all other or additional stock, notes, certificates,
limited liability company interests, partnership interests,
instruments or other securities or property (including, but not
limited to, cash dividends other than as set forth above) paid or
distributed by way of dividend or otherwise in respect of the
Collateral;
(ii) all other or additional stock, notes, certificates,
limited liability company interests, partnership interests,
instruments or other securities or property (including, but not
limited to, cash (although such cash may be paid directly to the
respective Pledgor so long as no Event of Default then exists)) paid
or distributed in respect of the Collateral by way of stock-split,
spin-off, split-up, reclassification, combination of shares or similar
rearrangement; and
(iii) all other or additional stock, notes, certificates,
limited liability company interests, partnership interests,
instruments or other securities or property (including, but not
limited to, cash) which may be paid in respect of the Collateral by
reason of any consolidation, merger, exchange of stock, conveyance of
assets, liquidation or similar corporate or other reorganization.
Except as otherwise provided in the Intercreditor Agreement, nothing contained
in this Section 6 shall limit or restrict in any way the Pledgee's right to
receive the proceeds of the Collateral in any form in accordance with Section 3
of this Agreement. To the extent not inconsistent with the terms of the
Intercreditor Agreement, all dividends, distributions or other payments which
are received by any Pledgor contrary to the provisions of this Section 6 or
Section 7 hereof shall be received in trust for the benefit of the Pledgee,
shall be segregated from other property or funds of such Pledgor and shall be
forthwith paid over to the Pledgee as Collateral in the same form as so
received (with any necessary endorsement).
7. REMEDIES IN CASE OF AN EVENT OF DEFAULT OR A SPECIFIED
DEFAULT. (a) If there shall have occurred and be continuing an Event of
Default, then and in every such case, to the extent not inconsistent with the
terms of the Intercreditor Agreement, the Pledgee shall be entitled to exercise
all of the rights, powers and remedies (whether vested in it by this Agreement,
any other Secured Debt Agreement or by law) for the protection and enforcement
of its rights in respect of the Collateral, and the Pledgee shall be entitled
to exercise all the rights and remedies of a secured party under the UCC as in
effect in any relevant jurisdiction and also shall be entitled, without
limitation, to exercise the following rights, which each Pledgor hereby agrees
to be commercially reasonable:
(i) to receive all amounts payable in respect of the
Collateral otherwise payable under Section 6 hereof to the respective
Pledgor;
(ii) to transfer all or any part of the Collateral into the
Pledgee's name or the name of its nominee or nominees;
(iii) to accelerate any Pledged Note which may be accelerated
in accordance with its terms, and take any other lawful action to
collect upon any Pledged Note (including, without limitation, to make
any demand for payment thereon);
(iv) to vote (and exercise all rights and powers in respect
of voting) all or any part of the Collateral (whether or not
transferred into the name of the Pledgee) and give all consents,
waivers and ratifications in respect of the Collateral and otherwise
act with respect thereto as though it were the outright owner thereof
(each Pledgor hereby irrevocably constituting and appointing the
Pledgee the proxy and attorney-in-fact of such Pledgor, with full
power of substitution to do so);
(v) at any time and from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private sale,
without demand of performance, advertisement or, notice of intention
to sell or of the time or place of sale or adjournment thereof or to
redeem or otherwise purchase or dispose (all of which are hereby
waived by each Pledgor), for cash, on credit or for other property,
for immediate or future delivery without any assumption of credit
risk, and for such price or prices and on such terms as the Pledgee in
its absolute discretion may determine, provided at least 10 days'
written notice of the time and place of any such sale shall be given
to the respective Pledgor. The Pledgee shall not be obligated to make
any such sale of Collateral regardless of whether any such notice of
sale has theretofore been given. Each Pledgor hereby waives and
releases to the fullest extent permitted by law any right or equity of
redemption with respect to the Collateral, whether before or after
sale hereunder, and all rights, if any, of marshalling the Collateral
and any other security or the Obligations or otherwise. At any such
sale, unless prohibited by applicable law, the Pledgee on behalf of
the Secured Creditors may bid for and purchase all or any part of the
Collateral so sold free from any such right or equity of redemption.
Neither the Pledgee nor any other Secured Creditor shall be liable for
failure to collect or realize upon any or all of the Collateral or for
any delay in so doing nor shall any of them be under any obligation to
take any action whatsoever with regard thereto; and
(vi) to set off any and all Collateral against any and all
Obligations, and to withdraw any and all cash or other Collateral from
any and all Collateral Accounts and to apply such cash and other
Collateral to the payment of any and all Obligations.
(b) If there shall have occurred and be continuing a
Specified Default, then and in every such case but subject to the terms of the
Intercreditor Agreement, the Pledgee shall be entitled to vote (and exercise
all rights and powers in respect of voting) all or any part of the Collateral
(whether or not transferred into the name of the Pledgee) and give all
consents, waivers and ratifications in respect of the Collateral and otherwise
act with respect thereto as though it were the outright owner thereof (each
Pledgor hereby irrevocably constituting and appointing the Pledgee the proxy
and attorney-in-fact of such Pledgor, with full power of substitution to do
so).
8. REMEDIES, CUMULATIVE, ETC. Each and every right, power and
remedy of the Pledgee provided for in this Agreement or in any other Secured
Debt Agreement (including, without limitation, the Intercreditor Agreement), or
now or hereafter existing at law or in equity or by statute shall be cumulative
and concurrent and shall be in addition to every other such right, power or
remedy. The exercise or beginning of the exercise by the Pledgee or any other
Secured Creditor of any one or more of the rights, powers or remedies provided
for in this Agreement or any other Secured Debt Agreement (including, without
limitation, the Intercreditor Agreement) or now or hereafter existing at law or
in equity or by statute or otherwise shall not preclude the simultaneous or
later exercise by the Pledgee or any other Secured Creditor of all such other
rights, powers or remedies, and no failure or delay on the part of the Pledgee
or any other Secured Creditor to exercise any such right, power or remedy shall
operate as a waiver thereof. No notice to or demand on any Pledgor in any case
shall entitle it to any other or further notice or demand in similar or other
circumstances or constitute a waiver of any of the rights of the Pledgee or any
other Secured Creditor to any other or further action in any circumstances
without notice or demand. The Secured Creditors agree that this Agreement may
be enforced only by the action of the Pledgee, in each case, acting upon the
instructions of the Majority Noteholders, and that no other Secured Creditor
shall have any right individually to seek to enforce or to enforce this
Agreement or to realize upon the security to be granted hereby, it being
understood and agreed that such rights and remedies may be exercised by the
Pledgee for the benefit of the Secured Creditors upon the terms of this
Agreement and the Security Agreement.
9. APPLICATION OF PROCEEDS. (a) All monies collected by the
Pledgee upon any sale or other disposition of the Collateral pursuant to the
terms of this Agreement, together with all other monies received by the Pledgee
hereunder, shall be applied in the manner provided in the Security Agreement.
(b) It is understood and agreed that each Pledgor shall
remain jointly and severally liable with respect to its Obligations to the
extent of any deficiency between the amount of the proceeds of the Collateral
pledged by it hereunder and the aggregate amount of such Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral
by the Pledgee hereunder (whether by virtue of the power of sale herein
granted, pursuant to judicial process or otherwise), the receipt of the Pledgee
or the officer making such sale shall be a sufficient discharge to the
purchaser or purchasers of the Collateral so sold, and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Pledgee or such officer or be answerable in any
way for the misapplication or nonapplication thereof.
11. INDEMNITY. Each Pledgor jointly and severally agrees (i)
to indemnify, reimburse and hold harmless the Pledgee and each other Secured
Creditor and their respective successors, assigns, employees, agents and
affiliates (individually an "Indemnitee", and collectively, the "Indemnitees")
from and against any and all obligations, damages, injuries, penalties, claims,
demands, losses, judgments and liabilities (including, without limitation,
liabilities for penalties) of whatsoever kind or nature, and (ii) to reimburse
each Indemnitee for all reasonable costs, expenses and disbursements, including
reasonable attorneys' fees and expenses, in each case arising out of or
resulting from this Agreement or the exercise by any Indemnitee of any right or
remedy granted to it hereunder or under any other Secured Debt Agreement (but
excluding any obligations, damages, injuries, penalties, claims, demands,
losses, judgments and liabilities (including, without limitation, liabilities
for penalties) or expenses of whatsoever kind or nature to the extent incurred
or arising by reason of gross negligence or willful misconduct of such
Indemnitee (as determined by a court of competent jurisdiction in a final and
non-appealable decision)). In no event shall the Pledgee hereunder be liable,
in the absence of gross negligence or willful misconduct on its part (as
determined by a court of competent jurisdiction in a final and non-appealable
decision), for any matter or thing in connection with this Agreement other than
to account for monies or other property actually received by it in accordance
with the terms hereof. If and to the extent that the obligations of any Pledgor
under this Section 11 are unenforceable for any reason, such Pledgor hereby
agrees to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law. The indemnity
obligations of each Pledgor contained in this Section 11 shall continue in full
force and effect notwithstanding the full payment of all the Second-Lien Notes
issued under the Second-Lien Note Indenture and the payment of all other
Obligations and notwithstanding the discharge thereof.
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY
MEMBER. (a) Nothing herein shall be construed to make the Pledgee or any other
Secured Creditor liable as a member of any limited liability company or as a
partner of any partnership and neither the Pledgee nor any other Secured
Creditor by virtue of this Agreement or otherwise (except as referred to in the
following sentence) shall have any of the duties, obligations or liabilities of
a member of any limited liability company or as a partner in any partnership.
The parties hereto expressly agree that, unless the Pledgee shall become the
absolute owner of Collateral consisting of a Limited Liability Company Interest
or a Partnership Interest pursuant hereto, this Agreement shall not be
construed as creating a partnership or joint venture among the Pledgee, any
other Secured Creditor, any Pledgor and/or any other Person.
(b) Except as provided in the last sentence of paragraph (a)
of this Section 12, the Pledgee, by accepting this Agreement, did not intend to
become a member of any limited liability company or a partner of any
partnership or otherwise be deemed to be a co-venturer with respect to any
Pledgor, any limited liability company, partnership and/or any other Person
either before or after an Event of Default shall have occurred. The Pledgee
shall have only those powers set forth herein and the Secured Creditors shall
assume none of the duties, obligations or liabilities of a member of any
limited liability company or as a partner of any partnership or any Pledgor
except as provided in the last sentence of paragraph (a) of this Section 12.
(c) The Pledgee and the other Secured Creditors shall not be
obligated to perform or discharge any obligation of any Pledgor as a result of
the pledge hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all
the rights, powers, privileges and authority so created, shall not at any time
or in any event obligate the Pledgee or any other Secured Creditor to appear in
or defend any action or proceeding relating to the Collateral to which it is
not a party, or to take any action hereunder or thereunder, or to expend any
money or incur any expenses or perform or discharge any obligation, duty or
liability under the Collateral.
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor
agrees that it will join with the Pledgee in executing and, at such Pledgor's
own expense, file and refile under the UCC or other applicable law such
financing statements, continuation statements and other documents, in form
reasonably acceptable to the Pledgee, in such filing offices as may be
reasonably necessary or appropriate (to the extent not inconsistent with the
Intercreditor Agreement) and wherever required or permitted by law in order to
perfect and preserve the Pledgee's security interest in the Collateral
hereunder and hereby authorizes the Pledgee to file financing statements and
amendments thereto relative to all or any part of the Collateral (including,
without limitation, (x) financing statements which list the Collateral
specifically and/or "all assets" as collateral and (y) "in lieu of" financing
statements) without the signature of such Pledgor where permitted by law, and
agrees to do such further acts and to execute and deliver to the Pledgee such
additional conveyances, assignments, agreements and instruments as the Pledgee
may reasonably require or deem advisable to carry into effect the purposes of
this Agreement or to further assure and confirm unto the Pledgee its rights,
powers and remedies hereunder or thereunder.
(b) Each Pledgor hereby constitutes and appoints the Pledgee
its true and lawful attorney-in-fact, irrevocably, with full authority in the
place and stead of such Pledgor and in the name of such Pledgor or otherwise,
from time to time after the occurrence and during the continuance of an Event
of Default, in the Pledgee's discretion, to act, require, demand, receive and
give acquittance for any and all monies and claims for monies due or to become
due to such Pledgor under or arising out of the Collateral, to endorse any
checks or other instruments or orders in connection therewith and to file any
claims or take any action or institute any proceedings and to execute any
instrument which the Pledgee may deem necessary or advisable to accomplish the
purposes of this Agreement, which appointment as attorney is coupled with an
interest.
14. THE PLEDGEE AS SECOND-LIEN COLLATERAL AGENT. Subject to
the terms of the Intercreditor Agreement, the Pledgee will hold in accordance
with this Agreement all items of the Collateral at any time received under this
Agreement. It is expressly understood, acknowledged and agreed by each Secured
Creditor that by accepting the benefits of this Agreement each such Secured
Creditor acknowledges and agrees that the obligations of the Pledgee as holder
of the Collateral and interests therein and with respect to the disposition
thereof, and otherwise under this Agreement, are only those expressly set forth
in this Agreement and in Article IV of the Second-Lien Note Indenture. The
Pledgee shall act hereunder on the terms and conditions set forth herein and in
the Second-Lien Note Indenture.
15. TRANSFER BY THE PLEDGORS. Except as permitted (i) prior
to the date all Second-Lien Note Document Obligations have been paid in full
pursuant to the Second-Lien Note Indenture, and (ii) thereafter, pursuant to
the other Secured Debt Agreements, no Pledgor will sell or otherwise dispose
of, grant any option with respect to, or mortgage, pledge or otherwise encumber
any of the Collateral or any interest therein.
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
PLEDGORS. (a) Each Pledgor represents, warrants and covenants as to itself and
each of its Subsidiaries that:
(i) it is the legal, beneficial and record owner of, and has
good and marketable title to, all of its Collateral consisting of one
or more Securities, Partnership Interests and Limited Liability
Company Interests and that it has sufficient interest in all of its
Collateral in which a security interest is purported to be created
hereunder for such security interest to attach (subject, in each case,
to no pledge, lien, mortgage, hypothecation, security interest,
charge, option, Adverse Claim or other encumbrance whatsoever, except
the liens and security interests created by this Agreement or
permitted under the Secured Debt Agreements);
(ii) it has full power, authority and legal right to pledge
all the Collateral pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and
delivered by such Pledgor and constitutes a legal, valid and binding
obligation of such Pledgor enforceable against such Pledgor in
accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general equitable principles
(regardless of whether enforcement is sought in equity or at law);
(iv) except to the extent already obtained or made, no
consent of any other party (including, without limitation, any
stockholder, partner, member or creditor of such Pledgor or any of its
Subsidiaries) and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration,
filing or declaration with, any governmental authority is required to
be obtained by such Pledgor in connection with (a) the execution,
delivery or performance of this Agreement by such Pledgor, (b) the
validity or enforceability of this Agreement against such Pledgor
(except as set forth in clause (iii) above), (c) the perfection or
enforceability of the Pledgee's security interest in such Pledgor's
Collateral or (d) except for compliance with or as may be required by
applicable securities laws, the exercise by the Pledgee of any of its
rights or remedies provided herein;
(v) neither the execution, delivery or performance by such
Pledgor of this Agreement, or any other Secured Debt Agreement to
which it is a party, nor compliance by it with the terms and
provisions hereof and thereof nor the consummation of the transactions
contemplated therein: (i) will contravene any provision of any
applicable law, statute, rule or regulation, or any applicable order,
writ, injunction or decree of any court, arbitrator or governmental
instrumentality, domestic or foreign, applicable to such Pledgor; (ii)
will conflict or be inconsistent with or result in any breach of any
of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien (except pursuant to the
Security Documents) upon any of the properties or assets of such
Pledgor or any of its Subsidiaries pursuant to the terms of any
indenture, material lease, material mortgage, material deed of trust,
credit agreement, loan agreement or any other material agreement,
contract or other instrument to which such Pledgor or any of its
Subsidiaries is a party or is otherwise bound, or by which it or any
of its properties or assets is bound or to which it may be subject; or
(iii) will violate any provision of the certificate of incorporation,
by-laws, certificate of partnership, partnership agreement,
certificate of formation or limited liability company agreement (or
equivalent organizational documents), as the case may be, of such
Pledgor or any of its Subsidiaries;
(vi) all of such Pledgor's Collateral (consisting of
Securities, Limited Liability Company Interests and Partnership
Interests) has been duly and validly issued, is fully paid and
non-assessable and is subject to no options to purchase or similar
rights;
(vii) each of such Pledgor's Pledged Notes constitutes, or
when executed by the obligor thereof will constitute, the legal, valid
and binding obligation of such obligor, enforceable in accordance with
its terms, except to the extent that the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
and by general equitable principles (regardless of whether enforcement
is sought in equity or at law);
(viii) the pledge, collateral assignment and delivery to the
Pledgee of such Pledgor's Collateral consisting of Certificated
Securities and Pledged Notes pursuant to this Agreement creates a
valid and perfected second priority security interest in such
Certificated Securities and Pledged Notes (subject in priority to the
Lien of the First-Lien Collateral Agent in accordance with the terms
of the Intercreditor Agreement), and the proceeds thereof, subject to
no prior Lien or encumbrance or to any agreement purporting to grant
to any third party a Lien or encumbrance on the property or assets of
such Pledgor which would include the Securities (other than the liens
and security interests permitted under the Secured Debt Agreements
then in effect) and the Pledgee is entitled to all the rights,
priorities and benefits afforded by the UCC or other relevant law as
enacted in any relevant jurisdiction to perfect security interests in
respect of such Collateral; and
(ix) "control" (as defined in Section 8-106 of the UCC) has
been obtained by the Pledgee over all of such Pledgor's Collateral
consisting of Securities (including, without limitation, Notes which
are Securities) with respect to which such "control" may be obtained
pursuant to Section 8-106 of the UCC, except to the extent that the
obligation of the applicable Pledgor to provide the Pledgee with
"control" of such Collateral has not yet arisen under this Agreement;
provided that in the case of the Pledgee obtaining "control" over
Collateral consisting of a Security Entitlement, such Pledgor shall
have taken all steps in its control so that the Pledgee obtains
"control" over such Security Entitlement.
(b) Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to such Pledgor's
Collateral and the proceeds thereof against the claims and demands of all
persons whomsoever; and each Pledgor covenants and agrees that it will have
like title to and right to pledge any other property at any time hereafter
pledged to the Pledgee by such Pledgor as Collateral hereunder and will
likewise defend the right thereto and security interest therein of the Pledgee
and the other Secured Creditors.
(c) Each Pledgor covenants and agrees that it will take no
action which would violate any of the terms of any Secured Debt Agreement.
(d) Each Pledgor hereby authorizes the Pledgee to make
duplicate filings as if such Pledgor is a Transmitting Utility, or
alternatively, as if such Pledgor is a Person which is not a Transmitting
Utility.
17. LEGAL NAMES; TYPE OF ORGANIZATION (AND WHETHER A
REGISTERED ORGANIZATION); JURISDICTION OF ORGANIZATION; LOCATION;
ORGANIZATIONAL IDENTIFICATION NUMBERS; CHANGES THERETO; ETC. The exact legal
name of each Pledgor, the type of organization of such Pledgor, whether or not
such Pledgor is a Registered Organization, the jurisdiction of organization of
such Pledgor, such Pledgor's Location, the organizational identification number
(if any) of each Pledgor is listed on Annex A hereto for such Pledgor. No
Pledgor shall change its legal name, its type of organization, its status as a
Registered Organization (in the case of a Registered Organization), its
jurisdiction of organization, its Location, or its organizational
identification number (if any), except that any such changes shall be permitted
(so long as not in violation of the applicable requirements of the Secured Debt
Agreements and so long as same do not involve (x) a Registered Organization
ceasing to constitute same or (y) any Pledgor changing its jurisdiction of
organization or Location from the United States or a State thereof to a
jurisdiction of organization or Location, as the case may be, outside the
United States or a State thereof) if (i) it shall have given to the Second-Lien
Collateral Agent not less than 15 days' prior written notice of each change to
the information listed on Annex A (as adjusted for any subsequent changes
thereto previously made in accordance with this sentence), together with a
supplement to Annex A which shall correct all information contained therein for
such Pledgor, and (ii) in connection with the respective such change or
changes, it shall have taken all action reasonably necessary to maintain the
security interests of the Second-Lien Collateral Agent in the Collateral
intended to be granted hereby at all times fully perfected and in full force
and effect; provided that such actions shall not violate the lien priority or
any other provisions contained in the Intercreditor Agreement. In addition, to
the extent that any Pledgor does not have an organizational identification
number on the date hereof and later obtains one, such Pledgor shall promptly
thereafter deliver a notification of the Second-Lien Collateral Agent of such
organizational identification number and shall take all actions reasonably
necessary to maintain the security interest of the Second-Lien Collateral Agent
in the Collateral intended to be granted hereby fully perfected and in full
force and effect; provided that such actions shall not violate the lien
priority or any other provisions contained in the Intercreditor Agreement.
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of
each Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever (other than termination of this Agreement pursuant to
Section 20 hereof), including, without limitation:
(i) any renewal, extension, amendment or modification of, or
addition or supplement to or deletion from any Secured Debt Agreement
(other than this Agreement in accordance with its terms), or any other
instrument or agreement referred to therein, or any assignment or
transfer of any thereof;
(ii) any waiver, consent, extension, indulgence or other
action or inaction under or in respect of any such agreement or
instrument including, without limitation, this Agreement (other than a
waiver, consent or extension with respect to this Agreement in
accordance with its terms);
(iii) any furnishing of any additional security to the
Pledgee or its assignee or any acceptance thereof or any release of
any security by the Pledgee or its assignee;
(iv) any limitation on any party's liability or obligations
under any such instrument or agreement or any invalidity or
unenforceability, in whole or in part, of any such instrument or
agreement or any term thereof; or
(v) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating
to any Pledgor or any Subsidiary of any Pledgor, or any action taken
with respect to this Agreement by any trustee or receiver, or by any
court, in any such proceeding, whether or not such Pledgor shall have
notice or knowledge of any of the foregoing.
19. SALE OF COLLATERAL WITHOUT REGISTRATION. Subject to the
terms of the Intercreditor Agreement:
(a) If an Event of Default shall have occurred and be
continuing and any Pledgor shall have received from the Pledgee a written
request or requests that such Pledgor cause any registration, qualification or
compliance under any federal or state securities law or laws to be effected
with respect to all or any part of the Collateral consisting of Securities,
Limited Liability Company Interests or Partnership Interests, such Pledgor as
soon as practicable and at its expense will use its best efforts to cause such
registration to be effected (and be kept effective) and will use its best
efforts to cause such qualification and compliance to be effected (and be kept
effective) as may be so requested and as would permit or facilitate the sale
and distribution of such Collateral consisting of Securities, Limited Liability
Company Interests or Partnership Interests, including, without limitation,
registration under the Securities Act, as then in effect (or any similar
statute then in effect), appropriate qualifications under applicable blue sky
or other state securities laws and appropriate compliance with any other
governmental requirements; provided, that the Pledgee shall furnish to such
Pledgor such information regarding the Pledgee or any other Secured Creditor as
such Pledgor may request in writing and as shall be required in connection with
any such registration, qualification or compliance. Each Pledgor will cause the
Pledgee to be kept reasonably advised in writing as to the progress of each
such registration, qualification or compliance and as to the completion
thereof, will furnish to the Pledgee such number of prospectuses, offering
circulars and other documents incident thereto as the Pledgee from time to time
may reasonably request, and will indemnify, to the extent permitted by law, the
Pledgee and all other Secured Creditors participating in the distribution of
such Collateral consisting of Securities, Limited Liability Company Interests
or Partnership Interests against all claims, losses, damages and liabilities
caused by any untrue statement (or alleged untrue statement) of a material fact
contained therein (or in any related registration statement, notification or
the like) or by any omission (or alleged omission) to state therein (or in any
related registration statement, notification or the like) a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same may have been caused by an untrue
statement or omission based upon information furnished in writing to such
Pledgor by the Pledgee or such other Secured Creditor expressly for use
therein.
(b) If at any time when the Pledgee (at the written direction
of the Holders of the Notes in accordance with the Second-Lien Note Indenture,
upon such direction which the Pledgee shall conclusively rely) shall determine
to exercise its right to sell all or any part of the Collateral consisting of
Securities, Limited Liability Company Interests or Partnership Interests
pursuant to Section 7 hereof, and such Collateral or the part thereof to be
sold shall not, for any reason whatsoever, be effectively registered under the
Securities Act, as then in effect, the Pledgee may, in its sole and absolute
discretion, sell such Collateral or part thereof by private sale in such manner
and under such circumstances as the Pledgee may deem necessary or advisable in
order that such sale may legally be effected without such registration. Without
limiting the generality of the foregoing, in any such event the Pledgee, in its
sole and absolute discretion (i) may proceed to make such private sale
notwithstanding that a registration statement for the purpose of registering
such Collateral or part thereof shall have been filed under such Securities
Act, (ii) may approach and negotiate with a single possible purchaser to effect
such sale, and (iii) may restrict such sale to a purchaser who will represent
and agree that such purchaser is purchasing for its own account, for
investment, and not with a view to the distribution or sale of such Collateral
or part thereof. In the event of any such sale, the Pledgee shall incur no
responsibility or liability for selling all or any part of the Collateral at a
price which the Pledgee, in its sole and absolute discretion, may in good xxxxx
xxxx reasonable under the circumstances, notwithstanding the possibility that a
substantially higher price might be realized if the sale were deferred until
the registration as aforesaid.
20. TERMINATION; RELEASE. (a) On the Termination Date (as
defined below), this Agreement shall terminate (provided that all indemnities
set forth herein including, without limitation, in Section 11 hereof shall
survive any such termination) and the Pledgee, at the request and expense of
such Pledgor and at the written direction of the Holders of the Notes in
accordance with the Second-Lien Note Indenture (upon such direction which the
Pledgee shall conclusively rely), will execute and deliver to such Pledgor a
proper instrument or instruments (including UCC termination statements)
acknowledging the satisfaction and termination of this Agreement (including,
without limitation, UCC termination statements and instruments of satisfaction,
discharge and/or reconveyance), and will duly release from the security
interest created hereby and assign, transfer and deliver to such Pledgor
(without recourse and without any representation or warranty) such of the
Collateral as may be in the possession of the Pledgee and as has not
theretofore been sold or otherwise applied or released pursuant to this
Agreement, together with any moneys at the time held by the Pledgee or any of
its sub-agents hereunder and, with respect to any Collateral consisting of an
Uncertificated Security, a Partnership Interest or a Limited Liability Company
Interest (other than an Uncertificated Security, Partnership Interest or
Limited Liability Company Interest credited on the books of a Clearing
Corporation or Securities Intermediary), a termination of the agreement
relating thereto executed and delivered by the issuer of such Uncertificated
Security pursuant to Section 3.2(a)(ii) or by the respective partnership or
limited liability company pursuant to Section 3.2(a)(iv)(2). As used in this
Agreement, "Termination Date" shall mean the date upon which all Second-Lien
Notes under the Second-Lien Note Indenture have been repaid in full and all
other Obligations (other than indemnities described in Section 11 hereof and
described in Sections 3.4, 8.6 and elsewhere of the Second-Lien Note Indenture,
and any other indemnities set forth in any other Security Documents, in each
case which are not then due and payable) then due and payable have been paid in
full.
(b) In the event that any part of the Collateral is sold or
otherwise disposed of (to a Person other than a Credit Party) (x) at any time
prior to the time at which all Second-Lien Note Document Obligations have been
paid in full, in connection with a sale or disposition permitted by the
Second-Lien Note Indenture or is otherwise released at the direction of the
Majority Noteholders (or all the Noteholders if required by the Second-Lien
Note Indenture) or (y) at any time thereafter, to the extent permitted by the
other Secured Debt Agreements, and in the case of clauses (x) and (y), the
proceeds of such sale or disposition (or from such release) are applied in
accordance with the terms of the Second-Lien Note Indenture or such other
Secured Debt Agreement, as the case may be, to the extent required to be so
applied, the Pledgee, at the request and expense of such Pledgor, will duly
release from the security interest created hereby (and will execute and deliver
such documentation, including termination or partial release statements and the
like in connection therewith) and assign, transfer and deliver to such Pledgor
(without recourse and without any representation or warranty) such of the
Collateral as is then being (or has been) so sold or released and as may be in
the possession of the Pledgee (or, in the case of Collateral held by any
sub-agent designated pursuant to Section 4 hereto, such sub-agent) and has not
theretofore been released pursuant to this Agreement.
(c) At any time that any Pledgor desires that Collateral be
released as provided in the foregoing Section 20(a) or (b), it shall deliver to
the Pledgee (and the relevant sub-agent, if any, designated pursuant to Section
4 hereof) a certificate signed by an authorized officer of such Pledgor stating
that the release of the respective Collateral is permitted pursuant to Section
20(a) or (b) hereof. If reasonably requested by the Pledgee (although the
Pledgee shall have no obligation to make any such request), the relevant
Pledgor shall furnish appropriate legal opinions (from counsel, reasonably
acceptable to the Pledgee) to the effect set forth in the immediately preceding
sentence.
(d) The Pledgee shall have no liability whatsoever to any
other Secured Creditor as the result of any release of Collateral by it in
accordance with (or which the Second-Lien Collateral Agent in the absence of
gross negligence and willful misconduct believes to be in accordance with) this
Section 20.
21. NOTICES, ETC. Except as otherwise specified herein, all
notices, requests, demands or other communications to or upon the respective
parties hereto shall be sent or delivered by mail, telegraph, telex, telecopy,
cable or courier service and all such notices and communications shall, when
mailed, telegraphed, telexed, telecopied, or cabled or sent by courier, be
effective when deposited in the mails, delivered to the telegraph company,
cable company or overnight courier, as the case may be, or sent by telex or
telecopier, except that notices and communications to the Pledgee or any
Pledgor shall not be effective until received by the Pledgee or such Pledgor,
as the case may be. All notices and other communications shall be in writing
and addressed as follows:
(a) if to any Pledgor, at its address set forth opposite its
signature below;
(b) if to the Pledgee, at:
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
Telecopier No.: (000) 000-0000
(c) if to any Secured Creditor, either (x) to the Second-Lien
Collateral Agent, at the address of the Second-Lien Collateral Agent specified
in the Second-Lien Note Indenture, or (y) at such address as such Secured
Creditor shall have specified in the Second-Lien Note Indenture;
or at such other address or addressed to such other individual as shall have
been furnished in writing by any Person described above to the party required
to give notice hereunder.
22. WAIVER; AMENDMENT. Except as contemplated by the
Intercreditor Agreement and as provided in Sections 30 and 32 hereof, none of
the terms and conditions of this Agreement may be changed, waived, modified or
varied in any manner whatsoever except in accordance with the requirements
specified in the Security Agreement.
23. SUCCESSORS AND ASSIGNS. This Agreement shall create a
continuing security interest in the Collateral and shall (i) remain in full
force and effect, subject to release and/or termination as set forth in Section
20, (ii) be binding upon each Pledgor, its successors and assigns; provided,
however, that no Pledgor shall assign any of its rights or obligations
hereunder without the prior written consent of the Pledgee (with the prior
written consent of the Majority Noteholders, upon which the Pledgee may rely),
and (iii) inure, together with the rights and remedies of the Pledgee
hereunder, to the benefit of the Pledgee, the other Secured Creditors and their
respective successors, transferees and assigns. All agreements, statements,
representations and warranties made by each Pledgor herein or in any
certificate or other instrument delivered by such Pledgor or on its behalf
under this Agreement shall be considered to have been relied upon by the
Secured Creditors and shall survive the execution and delivery of this
Agreement and the other Secured Debt Agreements regardless of any investigation
made by the Secured Creditors or on their behalf.
24. HEADINGS DESCRIPTIVE. The headings of the several
Sections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
25. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER
OF JURY TRIAL. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF
THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER SECOND-LIEN NOTE DOCUMENT MAY BE BROUGHT IN THE COURTS
OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PLEDGOR HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH
PLEDGOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK
PERSONAL JURISDICTION OVER SUCH PLEDGOR, AND AGREES NOT TO PLEAD OR CLAIM IN
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
SECOND-LIEN NOTE DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS THAT ANY SUCH
COURT LACKS PERSONAL JURISDICTION OVER SUCH PLEDGOR. EACH PLEDGOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY SUCH PLEDGOR AT ITS
ADDRESS FOR NOTICES AS PROVIDED IN SECTION 21 ABOVE, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH PLEDGOR HEREBY IRREVOCABLY WAIVES
ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND
AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR
UNDER ANY OTHER SECOND-LIEN NOTE DOCUMENT THAT SUCH SERVICE OF PROCESS WAS IN
ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE
PLEDGEE UNDER THIS AGREEMENT, OR ANY SECURED CREDITOR, TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST ANY PLEDGOR IN ANY OTHER JURISDICTION.
(b) EACH PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE
AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER SECOND-LIEN NOTE DOCUMENT BROUGHT IN THE COURTS REFERRED
TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO
PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER SECOND-LIEN NOTE
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
26. PLEDGOR'S DUTIES. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that each Pledgor shall remain
liable to perform all of the obligations, if any, assumed by it with respect to
the Collateral and the Pledgee shall not have any obligations or liabilities
with respect to any Collateral by reason of or arising out of this Agreement,
except for the safekeeping of Collateral actually in Pledgor's possession, nor
shall the Pledgee be required or obligated in any manner to perform or fulfill
any of the obligations of any Pledgor under or with respect to any Collateral.
27. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A set of counterparts executed by all the parties hereto shall be
lodged with each Pledgor and the Pledgee.
28. SEVERABILITY. 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, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
29. RECOURSE. This Agreement is made with full recourse to
each Pledgor and pursuant to and upon all the representations, warranties,
covenants and agreements on the part of such Pledgor contained herein and in
the other Secured Debt Agreements and otherwise in writing in connection
herewith or therewith.
30. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of the Borrower that is required to become a party to this Agreement
after the date hereof pursuant to the requirements of the Second-Lien Note
Indenture or any other Second-Lien Note Document, shall become a Pledgor
hereunder by (x) executing a counterpart hereof and delivering same to the
Pledgee, (y) delivering supplements to Annexes A through G, hereto as are
necessary to cause such annexes to be complete and accurate with respect to
such additional Pledgor on such date and (z) taking all actions as specified in
this Agreement as would have been taken by such Pledgor had it been an original
party to this Agreement, in each case with all documents required above to be
delivered to the Pledgee and with all documents and actions required above to
be taken to the reasonable satisfaction of the Pledgee.
31. LIMITED OBLIGATIONS. It is the desire and intent of each
Pledgor and the Secured Creditors that this Agreement shall be enforced against
each Pledgor to the fullest extent permissible under the laws applied in each
jurisdiction in which enforcement is sought. Notwithstanding anything to the
contrary contained herein, in furtherance of the foregoing, it is noted that
the obligations of each Pledgor constituting a Guarantor have been limited as
provided in the Guarantee Agreement.
32. RELEASE OF PLEDGORS. If at any time all of the Equity
Interests of any Pledgor owned by the Borrower or any of its Subsidiaries are
sold (to a Person other than a Credit Party) in a transaction permitted
pursuant to the Second-Lien Note Indenture (and which does not violate the
terms of any other Secured Debt Agreement then in effect), then, such Pledgor
shall be released as a Pledgor pursuant to this Agreement without any further
action hereunder (it being understood that the sale of all of the Equity
Interests in any Person that owns, directly or indirectly, all of the Equity
Interests in any Pledgor shall be deemed to be a sale of all of the Equity
Interests in such Pledgor for purposes of this Section), and the Pledgee is
authorized and directed to execute and deliver such instruments of release as
are reasonably satisfactory to it. At any time that the Borrower desires that a
Pledgor be released from this Agreement as provided in this Section 32, the
Borrower shall deliver to the Pledgee a certificate signed by a principal
executive officer of the Borrower stating that the release of such Pledgor is
permitted pursuant to this Section 32. If requested by Pledgee (although the
Pledgee shall have no obligation to make any such request), the Borrower shall
furnish legal opinions (from counsel acceptable to the Pledgee) to the effect
set forth in the immediately preceding sentence. The Pledgee shall have no
liability whatsoever to any other Secured Creditor as a result of the release
of any Pledgor by it in accordance with, or which it believes to be in
accordance with, this Section 32.
33. SECOND-LIEN COLLATERAL AGENT. (a) Appointment. The
Second-Lien Trustee and each Noteholder, by accepting a Note, hereby
irrevocably designates and appoints HSBC Bank USA, National Association as the
Second-Lien Collateral Agent under this Agreement, the Guarantee Agreement and
each other Security Document, and the Second-Lien Trustee and each such
Noteholder irrevocably authorizes HSBC Bank USA, National Association as the
Second-Lien Collateral Agent to take such actions on its behalf under the
provisions of this Agreement, the Guarantee Agreement and each other Security
Document to which the Second-Lien Trustee and the Second-Lien Collateral Agent
(as the case may be) is a party and to exercise such powers and perform such
duties as are expressly delegated to the Second-Lien Trustee and the
Second-Lien Collateral Agent (as the case may be) by the terms of this
Agreement, the Guarantee Agreement and each other Security Document to which
the Second-Lien Trustee and the Second-Lien Collateral Agent (as the case may
be) is a party, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Guarantee Agreement or in any other Security Document, the
Second-Lien Collateral Agent shall not have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any
Noteholder or any other Person, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities on the part of the
Second-Lien Collateral Agent and the Second-Lien Trustee shall be read into
this Agreement or otherwise exist against the Second-Lien Collateral Agent and
the Second-Lien Trustee. The provisions of this Section 33 are solely for the
benefit of the Second-Lien Collateral Agent, the Second-Lien Trustee and the
Noteholders, and the Pledgors shall not have any rights as a third party
beneficiary or otherwise under any of the provisions hereof. In performing
their respective functions and duties hereunder and under the other Security
Documents to which the Second-Lien Collateral Agent is a party, the Second-Lien
Collateral Agent shall act solely as an agent of the Second-Lien Trustee and
the Noteholders and does not assume nor shall be deemed to have assumed any
obligation or relationship of trust or agency with or for the Pledgors or any
of their successors and assigns.
(b) Delegation of Duties. The Second-Lien Collateral Agent
may execute any of its duties under this Agreement, the Guarantee Agreement or
the other Security Documents to which the Second-Lien Collateral Agent is a
party by or through receivers, agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Second-Lien Collateral Agent shall not be responsible for the negligence or
misconduct of any receivers, agents or attorneys-in-fact selected by it with
reasonable care.
(c) Exculpatory Provisions. The Second-Lien Collateral Agent
shall not be (i) liable for any action lawfully taken or omitted to be taken by
it or any Person described in Section 11.2 under or in connection with this
Agreement, or any other Transaction Document or any other document or
instrument referred to or provided for herein or therein (except for its or
such Person's own gross negligence or willful misconduct if such Person was not
selected with reasonable care), or (ii) responsible in any manner to any of the
Noteholders, the Second-Lien Trustee or any other Person for any recitals,
statements, representations or warranties made by any Pledgor contained in this
Agreement or any other Transaction Document or in any certificate, report,
statement or other document referred to or provided for in, or received under
or in connection with, this Agreement or any other Transaction Document or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement, or any other Transaction Document or for any failure of any
Pledgor to perform its obligations hereunder or thereunder. The Second-Lien
Collateral Agent shall not be required to initiate or conduct any litigation or
collection or other proceeding under this Agreement or any other Transaction
Document. The Second-Lien Collateral Agent shall not be under any obligation to
the Second-Lien Trustee or to any Noteholder to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Transaction Document, or to inspect
the properties, books or records of any Pledgor. The Second-Lien Collateral
Agent shall have the right at any time to seek instructions from the
Noteholders with respect to the administration of this Agreement, the Guarantee
Agreement or the other Security Documents. Anything to the contrary
notwithstanding, in no event shall the Second-Lien Collateral Agent be liable
to any Person, under this Agreement or any other Transaction Document for
special, punitive, indirect, consequential or incidental loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the
Second-Lien Collateral Agent has been advised of the likelihood of such loss or
damage.
(d) Reliance by Second-Lien Collateral Agent. The Second-Lien
Collateral Agent shall be entitled to conclusively rely, and shall be fully
protected in relying, upon any Note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed
by it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to any Pledgor or Noteholder),
independent accountants and other experts selected by the Second-Lien
Collateral Agent with reasonable due care. The Second-Lien Collateral Agent
shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper or document,
delivered to the Second-Lien Collateral Agent hereunder or under the
Transaction Documents. The Second-Lien Collateral Agent may deem and treat the
payee of any Note as the owner thereof for all purposes unless the Second-Lien
Collateral Agent shall have received an executed transfer instrument in respect
thereof. The Second-Lien Collateral Agent shall have no liability for failing
or refusing to take any action under this Agreement or any other Transaction
Document unless it shall first receive such advice, direction, instruction or
concurrence of the Majority Noteholders or the Noteholders as is required
hereunder or it shall first be indemnified to its satisfaction by the
Noteholders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action; and the
Second-Lien Collateral Agent has the right to seek instructions from the
Majority Noteholders before acting or electing not to act under this Agreement
or any other Transaction Document. The Second-Lien Collateral Agent shall in
all cases have no liability in acting, or in refraining from acting, under this
Agreement and the other Transaction Documents in accordance with a direction or
instruction of the Majority Noteholders, and such direction or instruction and
any action taken or failure to act pursuant thereto shall be binding upon all
of the Noteholders and all future holders of the Notes. This Section does not
govern the relationship of the Pledgors and the Noteholders.
(e) Non-Reliance on Second-Lien Collateral Agent. Each
Pledgor and Noteholder expressly acknowledges that the Second-Lien Collateral
Agent, or any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates has not made any representations or warranties to it and that no
act by the Second-Lien Collateral Agent hereafter taken, including, without
limitation, any review of the affairs of any Pledgor or Noteholder, shall be
deemed to constitute any representation or warranty by the Second-Lien
Collateral Agent.
(f) Second-Lien Collateral Agent in its Individual Capacity.
The Second-Lien Collateral Agent and its Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Pledgors
and Noteholders as though the Second-Lien Collateral Agent were not the
collateral agent hereunder.
(g) Successor Second-Lien Collateral Agent. The Second-Lien
Collateral Agent may resign as collateral agent upon thirty (30) days notice to
the Borrower and the Noteholders and the Second-Lien Collateral Agent may be
removed from its position as collateral agent at any time by the Noteholders.
If the Second-Lien Collateral Agent shall resign as collateral agent under this
Agreement or be removed pursuant to the preceding sentence, then the Majority
Noteholders during such 30-day period shall appoint a successor collateral
agent, and upon the acceptance by such successor collateral agent, the
successor collateral agent shall succeed to the rights, powers and duties of
the Second-Lien Collateral Agent and the term "Second-Lien Collateral Agent"
shall mean such successor collateral agent, effective upon its appointment and
acceptance, and the former Second-Lien Collateral Agent's rights, powers and
duties as collateral agent shall then be terminated, without any other or
further act or deed on the part of such former Second-Lien Collateral Agent or
any of the parties to this Agreement or any Noteholders. After any retiring
Second-Lien Collateral Agent's resignation hereunder as collateral agent, the
provisions of this Section 33 and Section 11 shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Second-Lien
Collateral Agent under this Agreement. If the Second-Lien Collateral Agent
consolidates with, merges with or converts into, or transfers all or
substantially all of its assets (including the administration of this Agreement
and the other Transaction Documents) to, another Person, the resulting,
surviving or transferee Person, without any further act, shall be the successor
Second-Lien Collateral Agent.
(h) Actions by the Second-Lien Collateral Agent. In each case
that the Second-Lien Collateral Agent may or is required hereunder, the
Guarantee Agreement or any other Security Document to take any action (a
"Collateral Agent Action"), including without limitation to make any
determination or judgment, to give consents, to exercise rights, powers or
remedies, to release or sell collateral or otherwise to act hereunder, under
the Guarantee Agreement or under any other Security Document, the Second-Lien
Collateral Agent may seek direction from the Majority Noteholders. The
Second-Lien Collateral Agent shall not be liable with respect to any Collateral
Agent Action taken or omitted to be taken by it in good faith in accordance
with the direction from the Majority Noteholders. If the Second-Lien Collateral
Agent shall request direction from the Majority Noteholders with respect to any
Collateral Agent Action, the Second-Lien Collateral Agent shall be entitled to
refrain from such Collateral Agent Action unless and until such Second-Lien
Collateral Agent shall have received direction from the Majority Noteholders
and the Second-Lien Collateral Agent shall not incur liability to any Person by
reason of so refraining.
(i) Notwithstanding anything to the contrary in this
Agreement or any other Transaction Document, in no event shall the
Second-Lien Collateral Agent be responsible for, or have any duty or
obligation with respect to, the recording, filing, registering,
perfection, protection or maintenance of the security interests or
Liens intended to be created by this Agreement or the other Security
Documents (including without limitation any UCC financing or
continuation statements or similar documents or instruments), nor
shall the Second-Lien Collateral Agent be responsible for, and the
Second-Lien Collateral Agent makes no representation regarding, the
validity, effectiveness or priority of any of this Agreement, the
Guarantee Agreement or the Security Documents or the security
interests or Liens intended to be created hereby or thereby.
(ii) The Second-Lien Collateral Agent is hereby directed by
the Noteholders to execute this Agreement, the Guarantee Agreement and
the Security Documents as contemplated herein.
(iii) Whenever in the administration of this Agreement, the
Guarantee Agreement or any Security Document, the Second-Lien
Collateral Agent shall deem it necessary that a matter with respect to
the Pledgors be provided or established prior to taking or suffering
or omitting to take any act hereunder or thereunder, such matter
(unless other evidence in respect thereof be herein or therein
specifically prescribed) may, in the absence of gross negligence, bad
faith or willful misconduct on the part of the Second-Lien Collateral
Agent be deemed to be conclusively proved and established by an
officers' certificate delivered by the applicable Pledgor to the
Second-Lien Collateral Agent, and such certificate, in the absence of
gross negligence, bad faith or willful misconduct on the part of the
Second-Lien Collateral Agent, shall be full warrant to the Second-Lien
Collateral Agent for any action taken, suffered or omitted to be taken
by it under the provisions of this Agreement, the Guarantee Agreement
or any Security Document upon the faith thereof.
(iv) Any direction, request, notice, consent or other action
provided or permitted by this Agreement, the Guarantee Agreement or
the Security Documents to be given, made or taken by the Noteholders
may be embodied in or evidenced by one or more instruments of
substantially similar tenor signed by the Noteholders in person or by
and agent thereof duly appointed in writing; and such action, except
as otherwise expressly provided herein, shall become effective when
such instrument or instruments are delivered to the Second-Lien
Collateral Agent. The fact and date of the execution of any such
instrument or writing may be proved in any manner that the Second-Lien
Collateral Agent deems sufficient. The holding of Notes shall be
proved by the Note Register.
(v) Acceptance of Terms of Noteholders. Each Noteholder, by
accepting a Note, agrees to all the terms and provisions set forth
herein and in the Guarantee Agreement and the other Security
Documents.
Notwithstanding anything to the contrary herein or in any other Secured Debt
Agreement, the Second-Lien Collateral Agent and Second-Lien Trustee shall have
no liability whatsoever to any Person party to any Secured Debt Agreement or to
any other Person (including, without limitation, the Noteholders) for failing
to perfect or failing to maintain perfection on any of the security interests
granted hereby (including without limitation, filing any financing statements
or continuation statements).
34. COMPLIANCE WITH LAWS. Each Pledgor agrees to use
commercially reasonable efforts, including taking any action which the Pledgee
and the Secured Creditors may reasonably request, to assist in obtaining any
required consent or approval of the Federal Communications Commission (the
"FCC") or any other governmental or other authority for any sale or transfer of
control of the Collateral contemplated by the security documents pursuant to
the exercise of the rights and remedies of the Pledgee and the Secured
Creditors thereunder, including, upon request, to prepare, sign and file with
the FCC the assignor's or transferor's and licensee's portions of any
applications required under the rules of the FCC for consent to the assignment
or transfer of control of any FCC construction permit, license or other
authorization.
Each Pledgor further consents, subject to obtaining any
necessary approvals, to the assignment or transfer of control of any FCC or
other governmental construction permit, license, or other authorization to
operate, to a receiver, trustee, or similar official or to any purchaser of the
Collateral pursuant to any public or private sale, judicial sale, foreclosure,
or exercise of other remedies available to Pledgee and the Secured Creditors as
permitted by applicable law. Notwithstanding anything herein which may be
construed to the contrary, no action shall be taken by any of the Second-Lien
Collateral Agent and the Secured Creditors with respect to any license of the
FCC unless and until any applicable rules and regulations thereunder, requiring
the consent to or approval of such action by the FCC or any governmental or
other authority, have been satisfied.
35. CONFLICTS; INTERCREDITOR AGREEMENT. Notwithstanding
anything herein to the contrary, the lien and security interest granted to the
Second-Lien Collateral Agent pursuant to this Agreement and the exercise of any
right or remedy by the Second-Lien Collateral Agent hereunder are subject to
the provisions of the Intercreditor Agreement. In the event of any conflict
between the terms of the Intercreditor Agreement and this Agreement, the terms
of the Intercreditor Agreement shall govern and control.
* * * *
IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused
this Agreement to be executed by their duly elected officers duly authorized as
of the date first above written.
Address: RCN CORPORATION, as an Assignor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: BRAINSTORM NETWORKS, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: HOT SPOTS PRODUCTIONS, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: ON TV, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN-BECOCOM, LLC, as a Guarantor
105 Carnegie Center By: RCN Telecom Services of Massachusetts, Inc.
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000 By: /s/ Xxxxxxx X. Xxxxx
Fax: (000) 000-0000 ----------------------------------
Attention: Chief Financial Officer Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN CABLE TV OF CHICAGO, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN ENTERTAINMENT, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN FINANCE, LLC, as a Guarantor
105 Carnegie Center By: RCN Corporation, its managing member
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000 By: /s/ Xxxxxxx X. Xxxxx
Fax: (000) 000-0000 ----------------------------------
Attention: Chief Financial Officer Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
Address: RCN FINANCIAL MANAGEMENT, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN INTERNATIONAL HOLDINGS, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN INTERNET SERVICES, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN TELECOM SERVICES, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN TELECOM SERVICES OF ILLINOIS, LLC, as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN TELECOM SERVICES OF MASSACHUSETTS, INC., as a
Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN TELECOM SERVICES OF PHILADELPHIA, INC., as a
Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN TELECOM SERVICES OF VIRGINIA, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RCN TELECOM SERVICES OF WASHINGTON D.C., INC., as a
Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: RFM 2, LLC, as a Guarantor
105 Carnegie Center By: RCN Corporation, its managing member
Xxxxxxxxx, XX 00000
Tel: (000) 000-0000 By: /s/ Xxxxxxx X. Xxxxx
Fax: (000) 000-0000 ----------------------------------
Attention: Chief Financial Officer Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
Address: RLH PROPERTY CORPORATION, as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: TEC AIR, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: 21ST CENTURY TELECOM SERVICES, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: UNET HOLDING, INC., as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxx
Tel: (000) 000-0000 ----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxx
Attention: Chief Financial Officer Title: Executive Vice President
and Chief Financial Officer
Address: STARPOWER COMMUNICATIONS, LLC,
as a Guarantor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Tel: (000) 000-0000 By: /s/ Xxxxxxx X. Xxxxx
Fax: (000) 000-0000 ---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager
Accepted and Agreed to: Address:
HSBC BANK USA, NATIONAL ASSOCIATION, 000 Xxxxx Xxxxxx
as Second-Lien Collateral Agent Xxx Xxxx, Xxx Xxxx 00000
and Pledgee Fax: (000) 000-0000
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Table of Contents
Page
1. SECURITY FOR OBLIGATIONS....................................................2
2. DEFINITIONS.................................................................3
3. PLEDGE OF SECURITIES, ETC...................................................6
3.1 Pledge............................................................6
3.2 Procedures........................................................9
3.3 Subsequently Acquired Collateral.................................11
3.4 Transfer Taxes...................................................11
3.5 Certain Representations and Warranties Regarding the Collateral..11
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC...............................12
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT OR SPECIFIED DEFAULT...............12
6. DIVIDENDS AND OTHER DISTRIBUTIONS..........................................12
7. REMEDIES IN CASE OF AN EVENT OF DEFAULT OR A SPECIFIED DEFAULT.............13
8. REMEDIES, CUMULATIVE, ETC..................................................14
9. APPLICATION OF PROCEEDS....................................................15
10. PURCHASERS OF COLLATERAL..................................................15
11. INDEMNITY.................................................................15
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER.................15
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY.....................................16
14. THE PLEDGEE AS SECOND-LIEN COLLATERAL AGENT...............................17
15. TRANSFER BY THE PLEDGORS..................................................17
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS.................17
17. LEGAL NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED ORGANIZATION);
JURISDICTION OF ORGANIZATION; LOCATION; ORGANIZATIONAL IDENTIFICATION
NUMBERS; CHANGES THERETO; ETC.............................................19
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC.......................................20
19. SALE OF COLLATERAL WITHOUT REGISTRATION...................................20
20. TERMINATION; RELEASE......................................................22
21. NOTICES, ETC..............................................................23
22. WAIVER; AMENDMENT.........................................................23
23. SUCCESSORS AND ASSIGNS....................................................23
24. HEADINGS DESCRIPTIVE......................................................24
25. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL....24
26. PLEDGOR'S DUTIES..........................................................25
27. COUNTERPARTS..............................................................25
28. SEVERABILITY..............................................................25
29. RECOURSE..................................................................25
30. ADDITIONAL PLEDGORS.......................................................25
31. LIMITED OBLIGATIONS.......................................................26
32. RELEASE OF PLEDGORS.......................................................26
33. SECOND-LIEN COLLATERAL AGENT..............................................26
34. COMPLIANCE WITH LAWS......................................................30
35. CONFLICTS; INTERCREDITOR AGREEMENT........................................31
ANNEX A - SCHEDULE OF LEGAL NAMES, TYPE OF ORGANIZATION,
JURISDICTION OF ORGANIZATION, LOCATION AND ORGANIZATIONAL
IDENTIFICATION NUMBERS
ANNEX B - SCHEDULE OF SUBSIDIARIES
ANNEX C - SCHEDULE OF STOCK
ANNEX D - SCHEDULE OF NOTES
ANNEX E - SCHEDULE OF LIMITED LIABILITY COMPANY INTERESTS
ANNEX F - SCHEDULE OF PARTNERSHIP INTERESTS
ANNEX G - SCHEDULE OF CHIEF EXECUTIVE OFFICES
ANNEX H - FORM OF AGREEMENT REGARDING UNCERTIFICATED SECURITIES, LIMITED
LIABILITY COMPANY INTERESTS AND PARTNERSHIP INTERESTS
