Exhibit 99.6
Bankers Trust Company
RESTATED
BORROWER SECURITY AND PLEDGE AGREEMENT
In consideration of loans, advances, overdrafts, letters of credit,
acceptances, swaps, securities transactions, forward contracts, foreign
currency transactions and all other credit transactions and financial
accommodations given or to be given or to be continued from time to time to
the Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ("Debtor") by BANKERS TRUST COMPANY or any
of its Affiliates listed on Schedule A hereto (Bankers Trust Company and
all such Affiliates being referred to herein collectively as "Bank"
including those due under that certain Restated Secured Promissory Note of
even date herewith made by Debtor to Back evidencing the principal sum of
up to $50,000,000 (as it may be amended, the "Note")), Debtor hereby agrees
with Bank as follows:
1. As collateral security for the due and punctual payment and performance of
all present and future liabilities and obligations, direct or indirect,
liquidated or contingent, joint or several of Debtor to Bank, (including those
due under the Note) whether now existing or hereafter incurred, whether now or
hereafter due, whether for principal, interest, fees, costs, attorneys' fees,
taxes, damages, expenses, indemnities, or otherwise, and howsoever evidenced
(collectively, the "Obligations"), Debtor hereby assigns, pledges and grants to
Bank a continuing security interest in and lien upon all right, title and
interest of Debtor in and to (i) all cash, securities, shares, certificates,
notes, instruments, rights, receivables and all other property of Debtor now or
hereafter in the Possession, custody or control of Bank, including, without
limitation, any of the foregoing from time to time deposited in, credited to or
payable to that certain /_/ investment /X/ custody /_/ deposit or /_/ other
account with the New York office of Bankers Trust Company, account no. 280683,
(ii) in addition to, and not in derogation of clause (i) above, those certain
securities and other property, if any, listed on Schedule B hereto, (iii) all
cash, securities, shares, certificates, notes, instruments, rights, receivables
and all other property now or hereafter received or receivable in connection
with any sale, exchange, redemption or other disposition of any of the
foregoing, (iv) all dividends, interest and other distributions, whether in
cash, securities or other property on any of the foregoing (specifically
excepting cash dividends), (v) all additions to and substitutions for any of the
foregoing, (vi) all present and future rights, claims, remedies and privileges
of Debtor pertaining to any of the foregoing, (vii) all general intangibles of
Debtor and all contract rights of Debtor relating to any of the Obligations and
(viii) all proceeds of the foregoing, in each case whether now existing or
hereafter arising or acquired (collectively, the "Collateral").
2 Debtor represents and warrants to Bank that: (a) Debtor is the legal and
beneficial owner of the Collateral, free and clear of any mortgage, pledge,
lien, charge, encumbrance, claim, adverse interest or security interest
(collectively "Liens"), (b) Debtor has all necessary right, power and authority
to grant to Bank a security interest in the Collateral, and has taken all
necessary action to authorize Debtor's execution, delivery and performance of
this Agreement, including all necessary actions by directors and shareholders
and all filings and recordations, (c) there are no filings or recordations
against the Collateral which grant or purport to ▇▇▇▇▇ ▇ ▇▇▇▇ in any Collateral
to any other person, (d) Debtor, if a corporation, partnership or other legal
entity, is duly organized and validly existing in good standing under the laws
of its jurisdiction of formation, and is duly qualified in all such foreign
jurisdictions where its business or property so requires, (e) all Collateral
which consists of equity interests will have been validly issued and are fully
paid and non-assessable and are subject to no restrictions on transfer by Bank
as pledgee or otherwise except, with respect to the Series B Common Stock
identified on Schedule B hereto, as set forth in the ▇▇▇▇▇▇▇ Call Agreement and
the Stockholders' Agreement (as such terms are defined in the Note), (f) all
Collateral identified on Schedule B hereto is freely saleable by Bank as pledgee
under Rule 144(k) of the Securities Act of 1933, as amended so long as Bank is
not an Affiliate of TCI (as such terms are defined in the Note), (g) the
execution, delivery and performance by Debtor of this Agreement do not violate,
breach or conflict with (i) Debtor's constituent documents, if Debtor is a
corporation, partnership or other legal entity, (ii) any agreement, contract or
instrument to which Debtor is a party or by which Debtor or its properties are
bound (including the ▇▇▇▇▇▇▇ Call Agreement and the Stockholders' Agreement), or
(iii) any applicable law, regulation, decree, order or the like, (h) after
giving effect to the transactions contemplated by this Agreement, Debtor is not
insolvent, and (i) this Agreement is the legal, valid and binding obligation of
Debtor, enforceable against Debtor in accordance with its terms.
3. Debtor covenants and agrees with Bank that: (a) Bank's sole duty with respect
to the Collateral is to use such care as it uses for similar property for its
own account, and Bank shall not be obligated to preserve rights in the
Collateral against prior parties, (b) Debtor will (i) be solely responsible for
all matters relating to the Collateral, including ascertaining maturities,
calls, conversions, exchanges and tenders, (ii) not, and will not purport to,
grant or suffer Liens against, or sell, transfer or dispose of any Collateral,
(iii) from time to time take all actions, and make all filings and recordations
requested by Bank in connection with Bank's security interest in the Collateral,
(iv) promptly notify Bank of the occurrence of an Event of Default (as defined
in the Note), and (v) hold in trust for, and forthwith pay over to Bank in the
form received (except for any necessary endorsements) all property, proceeds or
distributions received by Debtor on account of any Collateral (specifically
excepting ordinary course cash dividends), (c) Bank is authorized to file
financing statements and give notice to third parties regarding the Collateral
without Debtor's signature to the extent permitted by applicable law, at any
time and from time to time after an Event of Default, transfer all or any part
of the Collateral to Bank's name or that of its nominee, and exercise all rights
as if the absolute owner thereof, and file a proof of claim for, receive
payments or distributions on, and exchange or release Collateral in any
bankruptcy, insolvency or similar proceeding, and (d) Debtor's true legal name
and chief executive office (if a corporation, partnership or other legal
entity), or principal residence (if an individual), are set forth on the
signature page hereof, and Debtor will not change its name or such address
without the prior written consent of Bank.
4. Debtor further covenants and agrees to comply with the Collateral Maintenance
Requirements set forth in Schedule C
hereto. If Debtor fails to comply with the Collateral Maintenance Requirements
for the period specified in Schedule C, Bank shall have all the rights and
remedies of a secured party under the New York Uniform Commercial Code as then
in effect (the "UCC"), and may, without notice to or consent by Debtor, sell,
liquidate or redeem so much of the Collateral as is necessary to reduce the
outstanding Obligations so as to comply with the Collateral Maintenance
Requirements then in effect.
5. (a) Debtor hereby irrevocably, unconditionally and expressly waives, to the
fullest extent permitted by applicable law, all defenses, counterclaims, rights
of setoff, any requirement that Bank first proceed against any guarantor or any
other security, all requirements for notice of any kind, demand, protest,
presentment, notice of non-payment, default or dishonor of any Obligation,
notice of acceptance hereof, marshalling of assets and the like, including
without limitation, any right to notice or judicial hearing in connection with
Bank's taking Possession of or disposition of any Collateral, any notice of any
sale, transfer or other disposition by Bank of any Obligation, any requirement
that Bank first proceed against Debtor, any other collateral or any other person
liable for any of the Obligations, and all damages occasioned by any of the
foregoing (except as finally determined by a competent court to have been the
direct result of Bank's gross negligence or willful misconduct). No invalidity,
irregularity or unenforceability of any Obligations shall affect, impair or be a
defense to any of Debtor's obligations or agreements or any of Bank's rights or
remedies hereunder. Bank may, upon the occurrence of an Event of Default,
without notice to or consent by Debtor, and without affecting or impairing
Debtor's obligations or agreements or Bank's rights and remedies hereunder, (i)
sell, release, exchange, settle, compromise or otherwise dispose of any
Collateral, or other security for any of the Obligations, and (ii) exercise (in
such order as Bank may choose) or refrain from exercising any rights against
Debtor or any other person liable for any Obligations.
(b) Debtor hereby appoints Bank the attorney-in-fact of Debtor for the
purpose of carrying out the provisions of this Agreement and taking any action
and executing any instrument which Bank may deem necessary or advisable to
accomplish the purposes hereof, which appointment is irrevocable and coupled
with an interest and any proxy or proxies heretofore given by Debtor to any
other person are hereby revoked. Without limiting the generality of the
foregoing, Bank shall have the right, upon the occurrence and during the
continuance of an Event of Default, with full power of substitution either in
Bank's name or in the name of Debtor, to ask for, demand, ▇▇▇ for, collect,
receive, receipt and give acquittance for any and all moneys due or to become
due under and by virtue of any of the Collateral, to endorse checks, drafts,
orders and other instruments for the payment of money payable to Debtor
representing any dividend or other distribution payable in respect of the
Collateral or any part thereof or on account thereof and to give full discharge
for the same, to settle, compromise, prosecute or defend any action, claim or
proceeding with respect thereto, and to sell, assign, endorse, pledge, transfer
and make any agreement respecting, or otherwise deal with, the same; provided,
however, that nothing herein contained shall be construed as requiring or
obligating Bank to make any commitment or to make my inquiry as to the nature or
sufficiency of any payment received by Bank, or to present or file any claim or
notice, or to take any action with respect to the Collateral or any part thereof
or the moneys due or to become due in respect thereof or any property covered
thereby, and no action taken by Bank or omitted to be taken with respect to the
Collateral or any part thereof shall give rise to any defense, counterclaim or
offset in favor of Debtor or to any claim or action against Bank in the absence
of the gross negligence or willful misconduct of Bank as shall have been proven
in a final, nonappealable judgment of a court of competent jurisdiction. This
power of attorney is irrevocable and coupled with an interest.
6. (a) At any time, after Event of Default has occurred and is continuing, Bank
shall have the right (in its sole and absolute discretion and without notice to
Debtor) to transfer to or to register any securities (including the pledged
securities) constituting Collateral in its own name or the name of its nominee.
(b) As Bank, as of the date hereof, has not registered the pledged
securities in its name or that of its nominee but without derogation of the
right to do so in accordance herewith, Debtor agrees to cause the transfer
agent and registrar of the pledged securities to identify on its books and
records that the address of record for the holder of the pledged securities
and the address for delivery of my dividends (other than ordinary course cash
dividends) thereon or other distributions related thereto that are payable to
Bank hereunder shall be the office of Bank at:
Bankers Trust Company
One Bankers Trust Plaza, 14th Floor
Loan Center Mail Stop ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
Failure to cause such change of address within sixty (60) days of the date
hereof or if Debtor shall thereafter change such instructions shall be an Event
of Default. Debtor acknowledges that by changing the address of the record
holder of the pledged securities as contemplated in this clause (b), information
as to the issuer thereof and the rights of, and payments to be received by, the
holder of the pledged securities (including information as to performance of the
issuer, votes to be taken and conversations, tenders and other offers and
matters relating thereto) shall be delivered to Bank. Bank shall use reasonable
efforts to forward such information to Debtor. However, in addition to and not
in limitation of the release from liability of Bank otherwise set forth in this
Agreement, Debtor releases Bank from any loss, damage or injury suffered by
Debtor arising from the change of address of the record holder of the pledged
securities.
(c) Bank shall, during the continuance of any Event of Default, have the
right to exchange the certificates representing any such securities for
certificates of smaller or larger denominations for any purpose consistent with
this Agreement.
7. (a) Unless and until an Event of Default shall have occurred and be
continuing, Debtor shall be entitled to (i) exercise any and all voting and/or
consensual rights and powers accruing to an owner of the pledged securities or
any part thereof for any purpose consistent with the terms of this Agreement and
the Note, provided that such action would not impair the security for the
Obligations or adversely affect the position of Bank under this Agreement or the
Note, and (ii) receive all ordinary course cash dividends paid or payable on the
pledged securities.
(b) Upon the occurrence and during the continuance of an Event of Default,
(i) all rights of Debtor to exercise the voting and consensual rights and powers
which Debtor is entitled to exercise pursuant hereto shall, unless otherwise
notified by Bank in writing at its option, cease, and all such rights shall
thereupon
become vested in Bank, which shall have the sole and exclusive right
and authority to exercise such voting, and (ii) all ordinary course cash
dividends, in addition to all stock and other noncash dividends, paid or payable
in respect of the pledged securities shall be delivered to Bank.
8. For purposes of this Agreement, the term Event of Default shall have the
meaning set forth in the Note. Upon the occurrence of any Event of Default; then
and in any such event: (a) Bank may declare all of the Obligations to be
immediately due and payable, whereupon same shall become immediately due and
payable, without demand, provided, that if an event set forth in Section
10(viii) of the Note occurs, the Obligations shall automatically become due and
payable without declaration by Bank; (b) Bank's obligation, if any, to give or
continue credit facilities to Debtor shall automatically terminate, (c) Bank
shall have the right from time to time to take possession of, and sell, redeem,
assign, liquidate, transfer and deliver all or any part of the Collateral, at
any brokers' board or exchange, or at public or private sale or otherwise, at
the option of Bank, for cash or on credit for future delivery, in such parcel or
parcels and at such times and places, and upon such terms and conditions as Bank
may deem proper, and in connection therewith may grant options and impose
reasonable conditions, all without (except as same am required by applicable law
and cannot be waived) advertisement or demand upon or notice to Debtor or right
of redemption of Debtor, all of which are hereby expressly waived to the fullest
extent permitted by applicable law, (d) upon each such sale, Bank may purchase
all or any of the Collateral, free and clear of all claims, rights of redemption
and equities of Debtor; and (e) in addition, Bank shall have all of the rights
and remedies of a secured party under the UCC.
9. To the extent required by applicable law, Bank will give Debtor notice of the
time and place of any public sale or of the time after which any private sale or
other disposition of Collateral is to be made, by sending notice at least 5 days
before the time of sale or disposition, which Debtor agrees is reasonable. Bank
need not give such notice if not required by the UCC. Debtor agrees that at any
private sale Collateral may be sold at a price that is less than the price which
might have been obtained at a public sale or that is less than the aggregate
outstanding amount of the Obligations; Bank may accept the first offer received
and need not offer such Collateral to more than one offeree. Bank may convert
any proceeds in foreign currency to U.S. dollars at the then prevailing rates of
exchange. After deducting its costs and expenses from the proceeds of sale,
apply any residue to pay the Obligations in such order as it elects and Debtor
will remain liable for any deficiency with interest. All foreign exchanges
losses incurred in connection with the conversion of any Collateral denominated
in a foreign currency to U.S. dollars shall be borne by Debtor. Without Bank's
prior written consent, in no event shall Debtor sell, or permit any other person
whose sales of securities would be aggregated with those of Debtor under
applicable securities laws to sell, any securities of the same type as the
Collateral at any time that the sale by Bank of such Collateral is subject to
any restriction under any securities Ian including those as to manner or volume
of sale.
10. In the event and to the extent that any provision of this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions, or of such provision in any
other jurisdiction, shall not in any way be affected or impaired thereby.
11. The Agreement may not be modified, changed, waived or discharged orally, but
only by a writing signed by the parties hereto. This Agreement shall inure to
the benefit of and be enforceable by Bank and its successors, transferees and
assigns, and shall be binding upon Debtor and its heirs, executors, successors
and assigns, provided, that Debtor may not transfer, assign or delegate any of
its rights or obligations hereunder, and any such purported transfer, assignment
or delegation shall be void. This Agreement shall terminate upon final payment
in full to Bank of all of the Obligations and termination of any obligation of
the Bank to make advances, and shall continue to be effective or be reinstated,
as the case may be, if at any time payment of or on account of any of the
Obligations is rescinded or must otherwise be restored or returned by Bank upon
the insolvency, bankruptcy or reorganization of Debtor or any other person or
otherwise, all as though such payment had not been made.
12. No failure or delay by Bank in exercising any right or remedy and no course
of dealing between Bank and Debtor shall operate as a waiver thereof, nor shall
any single or partial exercise of any right preclude any other or future
exercise thereof. All rights and remedies of Bank shall be cumulative and may be
exercised singly or concurrently. No notice to or demand on Debtor shall entitle
Debtor to any other or further notice or demand, or constitute a waiver of
Bank's rights.
13. If for the purpose of obtaining a judgment in any court with respect to any
of Debtor's obligations under this Agreement, it becomes necessary to convert
into any other currency any amount in U.S. dollars due hereunder, then that
conversion shall be made at the average of the buying spot rates of exchange in
effect at Bank's lending office for freely transferable U.S. dollars at the
close of business on the day before the day on which judgment is rendered. If
there is a change in such rate of exchange prevailing between the day before the
day on which judgment is rendered and the date of payment of the judgment, then
Debtor shall pay such additional amount as may be necessary to ensure that the
amount paid on the date of payment is the amount in such currency which, when
converted at such rate of exchange in effect on the date of payment, is the
amount in U.S. dollars then due under this Agreement. Any additional amount
owing by Debtor hereunder shall be due as a separate debt, and shall not be
affected by or merged into any judgment obtained for any other amounts due
hereunder. This paragraph 13 shall survive repayment of the Obligations and
termination of this Agreement.
14. Debtor will indemnify and hold Bank harmless for, and pay in U.S. dollars
all losses, claims, taxes, costs, fees and expenses, including attorneys' fees,
incurred by Bank in connection with the custody, care, preservation, sale or
disposition of any Collateral, and the enforcement of Bank's rights hereunder.
The provisions of this paragraph 14 shall survive repayment of the Obligations
and termination of this Agreement.
15. Any notice to Bank or Debtor shall be effective 3 days after deposit in the
mails, airmail postage prepaid, if sent by facsimile, when sent, if delivered by
hand or courier, when delivered, or in the case of paragraph 4, when given by
telephone, in each case to the address below. Each party may change its address
for notices by written notice to the other.
16. DEBTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE
LAW, ANY RIGHT TO A JURY TRIAL IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. In
any action or proceeding arising out of or relating to this Agreement, Debtor
hereby accepts, for itself and its property, the non-exclusive jurisdiction of
the courts of the State of New York, and the federal courts in New York City,
and agrees that effective service of process may be made on Debtor by mailing
same to Debtor's address set forth below. Bank may proceed against Debtor in any
other applicable jurisdiction, and may serve process in any other manner
permitted by applicable law. Debtor hereby irrevocably waives any objection to
the laying of venue in the aforesaid courts, and any claim of an inconvenient
forum. To the extent that Debtor or its property may have or hereafter acquire
immunity, on the grounds of sovereignty or otherwise, from any judicial process
in connection with this Agreement, Debtor hereby irrevocably waives, to the
fullest extent permitted by law, any such immunity and agrees not to claim same.
Debtor agrees that a final judgment in any such action or proceeding shall be
conclusive, and may be enforced in any other jurisdiction by suit on the
judgment or in any other permitted manner.
17. If this Agreement is signed by two or more parties as Debtors, they shall be
jointly and severally liable hereunder, and the term "Debtor" as used herein
shall mean the debtor parties hereto, and each of them.
18. If the Obligations under this Agreement shall be owing to an Affiliate of
Bankers Trust Company, Bankers Trust Company is hereby appointed to hold the
Collateral as agent for the benefit of such Affiliate. Such Affiliate hereby
irrevocably authorizes and directs Bankers Trust Company to act solely on the
instructions of such Affiliate, unless such Affiliate otherwise consents in
writing, and Debtor hereby irrevocably acknowledges and agrees that Bankers
Trust Company shall take all such instructions solely from Affiliate, and
neither Affiliate nor Bankers Trust Company shall be obligated to, or liable for
any failure to, act in accordance with any instructions given by Debtor, so long
as this Agreement shall remain in effect.
19. This Agreement shall be construed in accordance with and be governed by the
law of the State of New York.
20. All notices required herein shall be by telefax, nationally-recognized
overnight courier, or certified U. S. mail, and sent to the parties at the
addresses below:
If to Bank:
Bankers Trust Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: The Private Bank
▇▇▇▇▇▇ ▇. ▇▇▇▇, Principal
and if to Borrower.
Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
c/▇ ▇▇▇▇▇▇▇ & Pillow, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
cc: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
and shall be deemed effective upon receipt of confirmation of delivery, in
the case of telefax transmission, one Business Day after sending, if sent by
a nationally-recognized overnight courier, and three Business Days after
sending, if sent by certified U.S. mail.
21. This Agreement amends, restates and replaces in its entirety the Borrower
Security Pledge Agreement dated June 25, 1997 (the "Prior Pledge") but the
lien granted on the "Collateral" securing the "Obligations" as defined and
provided under the Prior Pledge shall be a continuing one on the Collateral
securing the Obligations hereunder.
IN WITNESS WHEREOF, Debtor has executed and delivered this Agreement, in the
case of a corporation, by its duly authorized officer(s) or representatives,
as of the 9th day of February, 1998.
Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Debtor (Full Legal Name)
By /s/ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Personal Representative
Bankers Trust Company
Secured Party
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Principal
Schedule A
Affiliates of Bankers Trust Company
[NONE]
Schedule B
Listed Securities
One or more certificates representing ownership of the following securities
of the Borrower delivered to and held by Bank in the Custody Account specified
in Section 1 of this Agreement, accompanied by a duly executed stock power for
each such certificate:
Issuer Type of Security Registered Owner
------ ---------------- ----------------
Tele-Communications, Inc./ Series A Common Stock Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Series A. Liberty Media Group
Tele-Communications, Inc./ Series B Common Stock Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Series B Liberty Media Group
Tele-Communications, Inc./ Series A Common Stock Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Series A TCI Group Common Stock
Tele-Communications, Inc./ Series B Common Stock Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Series B TCI Group Common Stock
Tele-Communications, Inc./ Series A Common Stock Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Series A TCI Ventures Group
Common Stock
Tele-Communications, Inc./ Series B Common Stock Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Series B TCI Ventures Group
Common Stock
TCI Satellite Entertainment, Inc. Series A Common Stock Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Common Stock
TCI Satellite Entertainment, Inc. Series B Common Stock Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
Common Stock
Schedule C
COLLATERAL MAINTENANCE REQUIREMENTS
1. On the date hereof and on the date of any advance under the Note the
Obligations as a percentage of market value of the Collateral shall be no
greater than 50%. If at any time after the date hereafter the Obligations as a
percentage of market value of the Collateral are greater than 65%, or the
Collateral otherwise fails to meet the Collateral Maintenance Requirements then
in effect, Debtor will, within 5 business days after written notice from Bank,
pledge to Bank such additional collateral as the Bank may require, to be
satisfactory to Bank in its discretion both as to advance rate and otherwise,
and/or repay such portion of the Loan, such that the Obligations as a Percentage
of market value of the Collateral shall be no greater than 60%. All Collateral
consisting of securities in a managed account shall be valued at fair market
value, marked to market on a daily basis. Market value shall be calculated on
the basis of the closing price per share or other unit of the Collateral being
valued as reported in The Wall Street Journal or on the last sale price as
reported on the securities exchange or other market where the unit of Collateral
being valued is primarily traded. Each share of the Series B securities
identified on Schedule B shall be valued at the per share market value of the
corresponding Series A security issued by the same issuer. At such time as TCI
(as defined in the Note) has exercised its call right, or is entitled to
exercise its call right, under the ▇▇▇▇▇▇▇ Call Agreement (as defined in the
Note) with respect to any unit of Collateral, the market value for such unit of
Collateral shall be determined at the lesser of (x) the market value thereof as
determined above and (y) the price per unit of Collateral that TCI is obligated
to pay under the ▇▇▇▇▇▇▇ Call Agreement.
2. Notwithstanding any other provision of this Agreement so long as (i)
(x) no Event of Default has occurred and is continuing or (y) Debtor is not
in default under the terms of any of its Obligations, and (ii) the Bank shall
have received three (3) days written notice from Debtor, Bank shall deliver
to Debtor at Debtor's address specified herein, free from the encumbrance
created by this Agreement. such portions of the Collateral as may be
requested by Debtor, provided that the remaining Collateral continues to
satisfy the Collateral Maintenance Requirements described in paragraph 1
above and provided further that, <#>if the Collateral consists of different
types of * securities, Bank shall have the right to approve the release of
any particular type of security requested to be released by Debtor.
such delivery by Bank shall be at the sole cost of Debtor.
3. Section 11 of the Note modifies the collateral maintenance
requirements set forth herein during the Demand Period and after any
Downgrade Date (as such terms am defined therein).
* if the Collateral consists of securities issued by different companies
and/or securities of more than one series issued by the same company, the
proportion that the collateralized shares of each such security or series
of securities bears to the value of all securities held by the Bank as
Collateral under this Pledge Agreement shall be the same prior to and after
the withdrawal of any such securities under this paragraph.
STATE OF COLORADO )
) ss.:
COUNTY OF DENVER )
On the 9th day of February, 1998, before me personally came ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, to me known to be the individual who executed the foregoing
instrument and, who, being duly sworn by me did depose and say that he is the
personal representative of the Estate of ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ and that he
executed the foregoing instrument in the name of the Estate of ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ and that he had authority to sip the same, and acknowledged that he
executed the same an the act and deed of said estate.
--------------------------------------
Notary Public
Name:
[Seal]
