EXHIBIT 99.3
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EXECUTION VERSION
PLEDGE AGREEMENT dated December 31, 2002,
among TIME WARNER ENTERTAINMENT-ADVANCE/NEWHOUSE
PARTNERSHIP, a New York general partnership
("TWEAN"), of which Time Warner Entertainment, L.P.,
Paragon Communications and Advance/Newhouse
Partnership are the general partners;
ADVANCE-NEWHOUSE PARTNERSHIP, a New York general
partnership ("ANP" and, together with TWEAN, the
"PLEDGORS"); TWEAN SUBSIDIARY, LLC, a Delaware
limited liability company (the "INITIAL BORROWER")
and a wholly owned subsidiary of TWEAN; and JPMORGAN
CHASE BANK, ("JPMORGAN"), as collateral agent (in
such capacity, the "COLLATERAL AGENT") for the
Secured Parties (as defined herein).
Reference is made to (a) the Credit Agreement dated as of December 31,
2002 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among the Initial Borrower, ANP, the lenders from time to
time party thereto (the "LENDERS") and JPMorgan, as administrative agent (in
such capacity, the "ADMINISTRATIVE AGENT"), (b) the Senior Note Purchase
Agreement dated as of December 31, 2002 (as amended, supplemented or otherwise
modified from time to time, the "SENIOR NOTE PURCHASE AGREEMENT"), among the
Initial Borrower, ANP and Metropolitan Life Insurance Company, Metropolitan
Insurance and Annuity Company, General American Life Insurance Company, New
England Life Insurance Company, Texas Life Insurance Company, MetLife Bank,
National Association, Pruco Life Insurance Company, Pruco Life Insurance Company
of New Jersey and The Prudential Insurance Company of America, as purchasers
(the "INITIAL SENIOR NOTE PURCHASERS"), (c) the Guarantee and Collateral
Agreement referred to in the Credit Agreement (as amended and in effect from
time to time, the "GUARANTEE AND COLLATERAL AGREEMENT") and (d) the Consent and
Agreement dated as of December 31, 2002 (the "CONSENT"), among TWEAN, its
general partners, the Initial Borrower and the Collateral Agent. Capitalized
terms used and not otherwise defined herein shall have meanings assigned to them
in Section 1.01.
The Lenders have agreed, upon the terms and subject to the conditions
specified in the Credit Agreement, to extend credit to the Initial Borrower and
to a subsidiary of Advance that may be added as a Borrower under the Credit
Agreement (the "ADVANCE BORROWER" and, together with the Initial Borrower, the
"BORROWERS", it being agreed that at all times prior to the designation of the
Advance Borrower pursuant to Section 2.19 of the Credit Agreement or Section 9.8
of the Senior Note Purchase Agreement, references herein to "the Borrowers",
"each Borrower" or "either Borrower" shall be deemed to refer only to the
Initial Borrower). The Initial Senior Note Purchasers have agreed, upon the
terms and subject to the conditions specified in the Senior Note Purchase
Agreement, to purchase the Initial Senior Notes. The obligations of the Lenders
to extend credit to the Borrowers and of the Initial Senior Note Purchasers to
purchase the Initial Senior Notes are conditioned upon, among other things, the
execution and delivery by the Pledgors of this Agreement. ANP has agreed in the
Credit Agreement and the Initial Senior Note Purchase Agreement to execute and
deliver this Pledge Agreement. Although TWEAN is not a party to or responsible
as a guarantor or otherwise for the performance by the Borrowers of their
obligations under the Credit Agreement and the Senior Note Purchase Agreement,
TWEAN has agreed in the Consent to execute and deliver this Pledge Agreement
upon the request of the
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Initial Borrower and the Initial Borrower has made such request to TWEAN.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. CREDIT AGREEMENT; TERMS GENERALLY (a) Capitalized terms
used in this Agreement and not otherwise defined herein have the meanings
specified in the Credit Agreement as in effect on the date hereof. All terms
defined in the New York UCC (as defined herein) and not defined in this
Agreement have the meanings specified therein; all references to the Uniform
Commercial Code shall mean the New York UCC; the term "INSTRUMENT" shall have
the meaning specified in Article 9 of the New York UCC.
(b) The Definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include", "includes" and "including" shall be deemed to be followed
by the phrase "without limitation". The word "will" shall be construed to have
the same meaning and effect as the word "shall". Unless the context requires
otherwise (i) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (ii) any reference herein to any Person
shall be construed to include such Person's successors and assigns, (iii) the
words "herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof and (iv) all references herein to Articles, Sections and
Schedules shall be construed to refer to Articles and Sections of, and Schedules
to, this Agreement.
SECTION 1.02. OTHER DEFINED TERMS As used in this Agreement, the
following terms have the meanings specified below:
"ADDITIONAL SENIOR NOTES" means any additional guaranteed senior
secured notes of the Borrowers issued pursuant to a supplement to the Senior
Note Purchase Agreement.
"BANKRUPTCY PROCEEDING" means, with respect to any Person, a general
assignment by such Person for the benefit of its creditors, or the institution
by or against such Person of any proceeding seeking relief as debtor, or seeking
to adjudicate such Person as bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of such Person or its debts, under any
law relating to bankruptcy, insolvency, reorganization or relief of debtors, or
seeking appointment of a receiver, trustee, custodian or other similar official
for such Person or for any substantial part of its property.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed.
"COLLATERAL" has the meaning assigned to such term in Section 2.01.
"CREDIT AGREEMENT DEFAULT" means any "Default" as defined in the Credit
Agreement.
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"CREDIT AGREEMENT DOCUMENTS" means the Credit Agreement, any
Incremental Term Loan Accession Agreement, this Agreement, the other Security
Documents and any Interest Rate Hedging Agreement with a counterparty that (i)
is a Lender or an Affiliate of a Lender as of the date hereof or (ii) shall have
been a Lender or an Affiliate of a Lender at the time such Interest Rate Hedging
Agreement shall have been entered into.
"CREDIT AGREEMENT EVENT OF DEFAULT" means any "Event of Default", as
defined in the Credit Agreement.
"CREDIT AGREEMENT OBLIGATIONS" means (a) the due and punctual payment
by the Borrowers of (i) the principal of and interest (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the Loans including any Incremental Term Loans, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (ii) each payment required to be made under the Credit Agreement
in respect of any Letter of Credit, when and as due, including payments in
respect of reimbursement of disbursements, interest thereon and obligations to
provide cash collateral (other than payments for which moneys have been
deposited with the Collateral Agent in the Letter of Credit Collateral Account)
and (iii) all other monetary obligations of the Borrowers to any of the Credit
Agreement Secured Parties under the Credit Agreement and each of the other
Credit Agreement Documents, including fees, costs, expenses and indemnities,
whether primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), (b) the due and punctual performance of all other
obligations of the Borrowers to any of the Credit Agreement Secured Parties
under or pursuant to the Credit Agreement and each of the other Credit Agreement
Documents and (c) the due and punctual payment and performance of all the
obligations of each other Obligor to any of the Credit Agreement Secured Parties
under this Agreement and each of the other Credit Agreement Documents.
"CREDIT AGREEMENT SECURED PARTIES" means (a) the Lenders, (b) the
Administrative Agent, (c) the Issuing Bank, (d) each counterparty to any
Interest Rate Hedging Agreement with a Borrower or a subsidiary of a Borrower
that either (i) is in effect on the date hereof if such counterparty is a Lender
or an Affiliate of a Lender as of the date hereof or (ii) is entered into after
the date hereof if such counterparty is a Lender or an Affiliate of a Lender at
the time such Interest Rate Hedging Agreement is entered into, (e) each
beneficiary of any indemnification obligation undertaken by any Obligor under
any Credit Agreement Document and (f) the successors and assigns of each of the
foregoing.
"DEFAULT" means a Credit Agreement Default or a Senior Note Default.
"DOCUMENTS" means the Credit Agreement Documents and the Senior Note
Documents.
"EQUITY INTERESTS" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity interests in any Person, or any obligations
convertible into or exchangeable for, or giving any Person a right, option or
warrant to acquire, such equity interests or such convertible or exchangeable
obligations.
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"EVENT OF DEFAULT" means a Credit Agreement Event of Default or a
Senior Note Event of Default.
"FEDERAL SECURITIES LAWS" has the meaning assigned to such term in
Section 3.03.
"GOVERNMENTAL AUTHORITY" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"INCREMENTAL TERM LOANS" means additional term loans made by one or
more Lenders to the Borrowers from time to time commencing on the date hereof
and ending on the second anniversary of the date hereof.
"INITIAL SENIOR NOTES" means the $150,000,000 5.65% Series 2002-A
Guaranteed Senior Secured Notes, Tranche 1, due December 31, 2009 and the
$150,000,000 6.16% Series 2002-A Guaranteed Senior Secured Notes, Tranche 2, due
December 31, 2012 originally issued by the Initial Borrower under and pursuant
to the Senior Note Purchase Agreement.
"INTEREST RATE HEDGING AGREEMENT" means any agreement entered into to
hedge or mitigate interest rate risks to which the Borrowers and their
subsidiaries have actual exposure or to cap, collar or exchange interest rates
(from fixed to floating rates, from one floating rate to another floating rate
or otherwise) with respect to any interest liabilities of the Borrowers or their
subsidiaries.
"LENDER EXPOSURE" means, as of any date of determination, for any
Lender, (a) if no Credit Agreement Default or Credit Agreement Event of Default
shall exist, the sum of (i) such Lender's pro rata portion of the aggregate
amount of the Revolving Credit Exposure, (ii) such Lender's pro rata portion of
the aggregate amount of outstanding Term Loans and Incremental Term Loans and
(iii) such Lender's pro rata portion of the aggregate amount of unused
Commitments or (b) if a Credit Agreement Default or Credit Agreement Event of
Default shall exist, the sum of (i) such Lender's pro rata portion of the
aggregate amount of the Revolving Credit Exposure and (ii) such Lender's pro
rata portion of the aggregate amount of outstanding Term Loans and Incremental
Term Loans.
"LETTER OF CREDIT COLLATERAL ACCOUNT" means an account maintained by
the Collateral Agent for the purpose of receiving and holding amounts as
directed in the Guarantee and Collateral Agreement.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
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"MAJORITY SECURED PARTIES" means either (a)(i) the Required Lenders and
(ii) the Required Holders, each voting as a class or (b) Lenders and Senior Note
Purchasers, considered as a single class, holding at least 75% of the sum of (i)
the aggregate amount of the Lender Exposures of all Lenders and (ii) the
aggregate outstanding principal amount of the indebtedness evidenced by the
Senior Notes; PROVIDED that if at any time the aggregate amount of the Lender
Exposures of all Lenders or the aggregate outstanding principal amount of the
indebtedness evidenced by the Senior Notes represents less than 10% of the sum
of (i) the aggregate amount of the Lender Exposures of all Lenders and (ii) the
aggregate outstanding principal amount of the indebtedness evidenced by the
Senior Notes, then and in such event "Majority Secured Parties" shall mean
Lenders and Senior Note Purchasers, considered as a single class, holding more
than 50% of the sum of (A) the aggregate amount of the Lender Exposures of all
Lenders and (B) the aggregate outstanding principal amount of the indebtedness
evidenced by the Senior Notes; PROVIDED FURTHER that for purposes of determining
the Majority Secured Parties, any Lender Exposures or Senior Notes then owned by
the Borrowers or their Affiliates shall be disregarded.
"NEW YORK UCC" means the Uniform Commercial Code as from time to time
in effect in the State of New York.
"OBLIGATIONS" means the Credit Agreement Obligations and the Senior
Note Obligations and all monetary obligations of the Obligors to the Collateral
Agent hereunder or under the other Security Documents.
"OBLIGOR" means each Borrower and each Grantor and Guarantor under the
Guarantee and Collateral Agreement.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"PLEDGED SECURITIES" means any securities now or hereafter included in
the Collateral, including all certificates, instruments or other documents
representing or evidencing Collateral.
"PROCEEDS" has the meaning specified in Section 9-102 of the New York
UCC.
"REQUIRED LENDERS" means, at any time, Lenders having Revolving Credit
Exposures, outstanding Term Loans and Incremental Term Loans and unused
Commitments representing more than 50% of the sum of the aggregate Revolving
Credit Exposures, outstanding Term Loans and Incremental Term Loans and unused
Commitments at such time (exclusive of Revolving Credit Exposure, outstanding
Term Loans, Incremental Term Loans and unused Commitments then owned by the
Borrowers or their Affiliates).
"REQUIRED PURCHASERS" means, at any time, the holder or holders of more
than 75% in aggregate principal amount of the Senior Notes at such time
outstanding (exclusive of Senior Notes then owned by the Borrowers or their
Affiliates).
"RESTRUCTURING AGREEMENTS" means (a) the Master Transaction Agreement
dated as of August 1, 2002, among TWEAN, ANP, TWE, Paragon, Advance and
Newhouse, (b) each of the "Transaction Agreements" referred to in such Master
Transaction Agreement, (c) each other agreement or instrument entered into or
delivered pursuant to the Master Transaction
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Agreement or any such Transaction Agreements and (d) all exhibits to any of the
foregoing documents, all as amended and in effect from time to time.
"SECURED PARTIES" means the Credit Agreement Secured Parties and the
Senior Note Secured Parties.
"SECURITY DOCUMENTS" means this Agreement, the Guarantee and Collateral
Agreement and the Consent.
"SENIOR NOTE DEFAULT" means any "Default" as defined in the Senior Note
Purchase Agreement.
"SENIOR NOTE DOCUMENTS" shall mean the Senior Note Purchase Agreement
and any Supplements (as defined in the Senior Note Purchase Agreement) thereto
and all instruments evidencing the Senior Notes issued thereunder or under any
Supplement thereto, this Agreement and the other Security Documents.
"SENIOR NOTE EVENT OF DEFAULT" means any "Event of Default", as defined
in the Senior Note Purchase Agreement.
"SENIOR NOTE OBLIGATIONS" means the principal of, Make-Whole Amount (as
defined in the Senior Note Purchase Agreement) payable in respect of and
interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding) when and as due, whether at maturity,
by acceleration, upon one or more dates set for prepayment or otherwise, on the
Senior Notes and all other monetary obligations of the Borrowers to any of the
Senior Note Secured Parties under the Senior Note Purchase Agreement and each of
the other Senior Note Documents, including fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), (c) the due and punctual performance
of all other obligations of the Borrowers to any of the Senior Note Secured
Parties under or pursuant to the Senior Note Purchase Agreement and each of the
other Senior Note Documents and (d) the due and punctual payment and performance
of all the obligations of each other Obligor to any of the Senior Note Secured
Parties under this Agreement and each of the other Senior Note Documents.
"SENIOR NOTE PURCHASERS" means (a) the Initial Senior Note Purchasers
and their successors and permitted assigns, pursuant to the terms of the Senior
Note Purchase Agreement and (b) the purchasers of any Additional Senior Notes
and their successors and permitted assigns.
"SENIOR NOTE SECURED PARTIES" means (a) the Senior Note Purchasers, (b)
each beneficiary of any indemnification obligation undertaken any Obligor under
any Senior Note Document and (c) the successors and assigns of each of the
foregoing.
"SENIOR NOTES" means the Initial Senior Notes and any Additional Senior
Notes.
"SPECIAL TRUST ACCOUNT" shall mean an interest bearing restricted
account maintained by the Collateral Agent for the purpose of receiving and
holding payments under Section 2.04(b) and other amounts as directed in the
Guarantee and Collateral Agreement.
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"TWEAN PARTNERSHIP AGREEMENT" means the Third Amended and Restated
Partnership Agreement of Time Warner Entertainment-Advance/Newhouse Partnership
dated as of December 31, 2002, as amended from time to time, among TWE, ANP and
Paragon Communications.
ARTICLE II
PLEDGE
SECTION 2.01. PLEDGE. As security for the payment or performance, as
the case may be, in full of all the Obligations, (i) TWEAN does hereby assign,
pledge, transfer, grant, bargain, sell, convey, hypothecate, set over and
deliver and create a security interest in (collectively, "PLEDGE") unto the
Collateral Agent, its successors and assigns, for the benefit of the Secured
Parties, all its right, title and interest in, to and under all the outstanding
Equity Interests owned by it on the date hereof or at any time hereafter in the
Initial Borrower (which Equity Interests equal on the date hereof 100% of the
Equity Interests of the Initial Borrower) and (ii) ANP does hereby Pledge unto
the Collateral Agent, its successors and assigns for the benefit of the Secured
Parties, all its right, title and interest in, to and under (A) all the
outstanding Equity Interests owned by it at any time on the date hereof or at
any time hereafter in the Initial Borrower (which Equity Interests, together
with those Pledged in paragraph (i) above, will at all times hereafter equal
100% of the Equity Interests of the Initial Borrower), (B) all payments, whether
of dividends or other distributions or otherwise, and whether of cash or other
assets, from time to time received by or otherwise distributed to it in respect
of, in exchange for or upon the conversion of the Equity Interests pledged
pursuant to clause (i) above, (C) subject to Section 3.01, all rights and
privileges of ANP with respect to the Equity Interests and other property
pledged pursuant to clauses (i) and (ii) above and (D) all proceeds of any of
the foregoing under this clause (ii) (the collateral referred to in the
preceding clauses (i) and (ii) being collectively called the "COLLATERAL").
TO HAVE AND TO HOLD the Collateral, together with all right, title,
interest, powers, privileges and preferences pertaining or incidental thereto,
unto the Collateral Agent, its successors and assigns, for the benefit of the
Secured Parties, forever; SUBJECT, HOWEVER, to the terms, covenants and
conditions hereinafter set forth.
SECTION 2.02. DELIVERY OF THE COLLATERAL; PERFECTION. (a) Each Pledgor
agrees promptly to deliver or cause to be delivered to the Collateral Agent any
and all certificates or instruments held by it representing any of the
Collateral. Upon delivery to the Collateral Agent, all Pledged Securities shall
be accompanied by instruments of transfer executed in blank satisfactory to the
Collateral Agent and by such other instruments and documents as the Collateral
Agent may reasonably request.
(b) Each Pledgor agrees, at the cost and expense of the Borrowers, to
cooperate with the Collateral Agent to enable it to take from time to time all
such actions as shall be required under applicable law or reasonably requested
by the Collateral Agent to perfect and maintain the perfection of the Lien
created by this Agreement, including, in the case of any Collateral owned by or
in the possession of such Pledgor in which such Lien cannot be perfected by the
possession of certificates or instruments, the filing of all such financing
statements and
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similar documents, and the obtaining of all such acknowledgments of clearing
corporations, brokers and other intermediaries, as shall be required for such
perfection under the Uniform Commercial Code or other law of any applicable
jurisdiction (it being understood that in the case of TWEAN, such actions shall
be limited to the delivery to the Collateral Agent of any Pledged Securities
that shall come into its possession, together with appropriate endorsements or
stock powers).
(c) The Equity Interests initially included in the Collateral are set
forth in Schedule I hereto. At the time any additional Equity Interests shall
become part of the Collateral, ANP shall deliver to the Collateral Agent and the
other Pledgors a revised Schedule I setting forth the Equity Interests held by
each Pledgor, which shall supersede all Schedules previously delivered pursuant
to the requirements of this paragraph.
SECTION 2.03. REPRESENTATIONS, WARRANTIES AND COVENANTS. (a) ANP and
the Initial Borrower hereby represent, warrant and covenant to and with the
Collateral Agent that:
(i) the Equity Interests pledged hereunder represent and will at all
times hereafter represent all the issued and outstanding Equity Interests
of the Initial Borrower;
(ii) except for the security interest granted hereunder, ANP (A) is and
will at all times continue to be the direct owner, beneficially and of
record, of the Collateral owned by it, (B) holds and will at all times hold
the same free and clear of all Liens, (C) will make no assignment, pledge,
hypothecation or transfer of, or create or permit to exist any security
interest in or other Lien on, the Collateral owned by it, other than
pursuant hereto or as may be permitted under the Credit Agreement and the
Senior Note Purchase Agreement, (D) subject to Section 2.04, will cause any
and all Pledged Securities included in such Collateral to be forthwith
deposited with the Collateral Agent and pledged or assigned hereunder, (E)
will not permit the Initial Borrower to reverse its election pursuant to
the Initial Borrower LLC Agreement to "opt-in" to Article 8 of the Uniform
Commercial Code as in effect in the State of New York and (F) will not
admit any Person as a new member in the Initial Borrower without the
consent of the Collateral Agent;
(iii) ANP (A) has the power and authority to pledge the Collateral
pledged by it in the manner hereby done or contemplated and (B) will defend
its title or interest thereto or therein against any and all Liens (other
than the Lien created by this Agreement), however arising, of all Persons
whomsoever;
(iv) no consent of any other Person (including equity holders of ANP or
TWEAN or creditors of ANP or TWEAN) and no consent or approval of any
Governmental Authority or any securities exchange was or is necessary to
the validity of the pledge effected by ANP hereunder, other than such as
have been obtained;
(v) all of the Equity Interests pledged hereunder have been duly
authorized and validly issued and are fully paid and nonassessable; and
(vi) all information set forth herein relating to the Collateral is
accurate and complete in all material respects as of the date hereof.
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(b) TWEAN hereby represents, warrants and covenants to and with the
Collateral Agent that:
(i) the Equity Interests pledged by it hereunder represent, on the date
hereof, all the issued and outstanding Equity Interests of the Initial
Borrower;
(ii) except for the security interest granted hereunder, TWEAN (A) is
and will at all times continue to be the direct owner, beneficially and of
record, of the Collateral listed in Schedule I as being owned by it (except
to the extent the Equity Interests in the Initial Borrower shall have been
distributed to ANP), (B) holds the same on the date hereof free and clear
of all Liens, (C) will make no assignment, pledge, hypothecation or
transfer of, or create any security interest in the Collateral owned by it,
other than pursuant hereto or as may be permitted to be created or to exist
by ANP under the Credit Agreement and the Senior Note Purchase Agreement,
(D) subject to Section 2.04 will cause any and all Pledged Securities
included in such Collateral to be forthwith deposited with the Collateral
Agent and pledged or assigned hereunder, (E) will not seek to cause the
Initial Borrower to reverse its election pursuant to the Initial Borrower
LLC Agreement to "opt-in" to Article 8 of the Uniform Commercial Code as in
effect in the State of New York and (F) will not seek to admit any Person
as a new member in the Initial Borrower without the consent of the
Collateral Agent;
(iii) TWEAN has the power and authority to pledge the Collateral
pledged by it in the manner hereby done or contemplated; and
(iv) all of the Equity Interests pledged by TWEAN hereunder have been
duly authorized and validly issued and are fully paid and nonassessable.
SECTION 2.04. VOTING RIGHTS; DIVIDENDS AND INTEREST, ETC. (a) Unless
and until an Event of Default shall have occurred and be continuing and the
Collateral Agent shall have given ANP notice of its intent to exercise its
rights under this Agreement (unless a Bankruptcy Proceeding shall have commenced
or the maturity of the Credit Agreement Obligations or the Senior Note
Obligations shall have been accelerated, in which case no notice shall be
required);
(i) the Collateral Agent and ANP agree that ANP shall be entitled to
exercise any and all voting and/or other consensual rights and powers with
respect to the pledged Equity Interests or any part thereof for any purpose
consistent with the terms of this Agreement, the Credit Agreement and the
other Documents (TWEAN hereby agreeing that it will not seek to exercise
any such rights or powers to the extent inconsistent with the
organizational documents of the Initial Borrower);
(ii) ANP, as its interests may appear under the Restructuring
Agreements, shall be entitled to receive and retain any and all cash
dividends and other distributions paid on the Equity Interests pledged
hereunder to the extent and only to the extent that such cash dividends and
other distributions are permitted by, and otherwise paid in accordance
with, the terms and conditions of the Credit Agreement, the other Credit
Agreement Documents, the Senior Note Purchase Agreement, the other Senior
Note Documents and applicable laws. All noncash dividends and other
distributions and all dividends and other distributions paid or payable in
cash or otherwise in connection with a partial or total liquidation or
dissolution, return of capital, capital surplus or paid-in surplus, and all
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other distributions (other than distributions referred to in the preceding
sentence) made on or in respect of the pledged Equity Interests, whether
paid or payable in cash or otherwise, whether resulting from a subdivision,
combination or reclassification of the outstanding Equity Interests of the
issuer of any thereof or received in exchange for such Equity Interests or
any part thereof, or in redemption thereof, or as a result of any merger,
consolidation, acquisition or other exchange of assets to which such issuer
may be a party or otherwise, shall be and become part of the Collateral,
and shall not be commingled by ANP with any of its other funds or property
but shall be held separate and apart therefrom, shall be held in trust for
the benefit of the Collateral Agent and shall be forthwith delivered to the
Collateral Agent in the form in which so received (with any necessary
endorsement); and
(iii) ANP and the Initial Borrower will cause all dividends and
distributions paid or made by the Initial Borrower with respect to the
Collateral to be transmitted, pursuant to the irrevocable instructions
given by TWEAN below in this clause (iii), directly to one or more accounts
controlled by ANP (and TWEAN agrees that it will take no action
inconsistent with such requirement), and TWEAN hereby irrevocably
authorizes such transmission and instructs the Initial Borrower to pay all
such dividends and distributions directly into one or more accounts
controlled by ANP. In the event TWEAN receives any dividends or
distributions contrary to the foregoing irrevocable instructions from the
Initial Borrower with respect to the Collateral, (x) such dividends or
distributions shall be held in trust for the benefit of ANP in the form in
which so received (with any necessary endorsement), and TWEAN agrees to
promptly transfer directly to one or more accounts designated in writing by
ANP (which accounts shall be controlled by ANP) any dividends or
distributions it shall receive contrary to the foregoing irrevocable
instructions and (y) ANP and the Initial Borrower agree to deliver such
designation in writing to TWEAN within three Business Days upon any officer
of ANP or the Initial Borrower learning that such dividends or
distributions shall have been paid or made to TWEAN contrary to the
provisions of this clause (iii).
(b) Upon the occurrence and during the continuance of an Event of
Default and upon notice to ANP as set forth in paragraph (d) of this Section
2.04 (unless a Bankruptcy Proceeding shall have commenced or the maturity of the
Credit Agreement Obligations or the Senior Note Obligations shall have been
accelerated, in which case no notice shall be required), all rights of ANP to
dividends and distributions that it is authorized to receive pursuant to
paragraph (a)(ii) above shall cease, and all such rights shall thereupon become
vested in the Collateral Agent, which shall have the sole and exclusive right
and authority to receive and retain such dividends and distributions. All
dividends and distributions received by ANP contrary to the provisions of this
Section 2.04 shall be held in trust for the benefit of the Collateral Agent,
shall be segregated from other property or funds of such Pledgor and shall be
forthwith delivered to the Collateral Agent upon demand in the form in which so
received (with any necessary endorsement). Any and all money and other property
paid over to or received by the Collateral Agent pursuant to the provisions of
this paragraph (b) shall be retained by the Collateral Agent in the Special
Trust Account upon receipt of such money or other property and shall be applied
in accordance with the provisions of Section 3.02. After all Events of Default
have been cured or waived, the Collateral Agent shall, within five Business
Days, repay to ANP all amounts (without interest), that ANP would otherwise have
been permitted to retain pursuant to the terms of paragraph (a)(ii) above and
which remain in the Special Trust Account.
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(c) Upon the occurrence and during the continuance of an Event of
Default and upon notice to ANP as set forth in paragraph (d) of this Section
2.04 (unless a Bankruptcy Proceeding shall have commenced or the maturity of the
Credit Agreement Obligations or the Senior Note Obligations shall have been
accelerated, in which case no notice shall be required), all rights of ANP to
exercise the voting and consensual rights and powers it is entitled to exercise
pursuant to paragraph (a)(i) of this Section 2.04 shall cease, and all such
rights shall thereupon become vested in the Collateral Agent, which shall have
the sole and exclusive right and authority to exercise such voting and
consensual rights and powers. Unless otherwise directed by Required Lenders or
the Required Purchasers, the Collateral Agent shall have the right from time to
time following and during the continuance of an Event of Default to permit ANP
to exercise such rights. After all Events of Default have been cured or waived,
ANP will have the right to exercise the voting and consensual rights and powers
that they would otherwise have been entitled to exercise pursuant to the terms
of paragraph (a)(i) above.
(d) Any notice given by the Collateral Agent to ANP, exercising its
rights under this Section 2.04, (i) may be given by telephone if promptly
confirmed in writing and (ii) may suspend the rights of ANP under paragraph
(a)(i) or paragraph (a)(ii) in part without suspending all such rights (as
specified by the Collateral Agent in its sole and absolute discretion) and
without waiving or otherwise affecting the Collateral Agent's rights to give
additional notices from time to time suspending other rights so long as an Event
of Default has occurred and is continuing.
ARTICLE III
REMEDIES
SECTION 3.01. REMEDIES UPON DEFAULT. Upon the occurrence and during the
continuance of an Event of Default, the Collateral Agent shall have the right,
subject to the mandatory requirements of applicable law, to sell or otherwise
dispose of all or any part of the Collateral at a public or private sale or at
any broker's board or on any securities exchange, for cash, upon credit or for
future delivery as the Collateral Agent shall deem appropriate. The Collateral
Agent shall be authorized at any such sale (if it deems it advisable to do so)
to restrict the prospective bidders or purchasers to Persons who will represent
and agree that they are purchasing the Collateral for their own accounts for
investment and not with a view to the distribution or sale thereof, and upon
consummation of any such sale the Collateral Agent shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any such sale shall hold the property
sold absolutely, free from any claim or right on the part of either Pledgor, and
the Pledgors hereby waive (to the extent permitted by law) all rights of
redemption, stay and appraisal which the Pledgors now has or may at any time in
the future have under any rule of law or statute now existing or hereafter
enacted.
The Collateral Agent shall give the Pledgors 10 days' written notice
(which the Pledgors agree is reasonable notice within the meaning of Section
9-611 of the New York UCC or its equivalent in other jurisdictions) of the
Collateral Agent's intention to make any sale of Collateral. Such notice, in the
case of a public sale, shall state the time and place for such sale and, in the
case of a sale at a broker's board or on a securities exchange, shall state the
board or exchange at which such sale is to be made and the day on which the
Collateral, or portion thereof, will first be offered for sale at such board or
exchange. Any such public sale shall be held at such
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time or times within ordinary business hours and at such place or places as the
Collateral Agent may fix and state in the notice (if any) of such sale. At any
such sale, the Collateral, or portion thereof, to be sold may be sold in one lot
as an entirety or in separate parcels, as the Collateral Agent may (in its sole
and absolute discretion) determine. The Collateral Agent shall not be obligated
to make any sale of any Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of such Collateral shall have been
given. The Collateral Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. In case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the
Collateral Agent until the sale price is paid by the purchaser or purchasers
thereof, but the Collateral Agent shall not incur any liability in case any such
purchaser or purchasers shall fail to take up and pay for the Collateral so sold
and, in case of any such failure, such Collateral may be sold again upon like
notice. At any public (or, to the extent permitted by law, private) sale made
pursuant to this Section, any Secured Party may bid for or purchase, free (to
the extent permitted by law) from any right of redemption, stay, valuation or
appraisal on the part of either Pledgor (all said rights being also hereby
waived and released to the extent permitted by law), the Collateral or any part
thereof offered for sale and may make payment on account thereof by using any
claim then due and payable to such Secured Party from either Pledgor as a credit
against the purchase price, and such Secured Party may, upon compliance with the
terms of sale, hold, retain and dispose of such property without further
accountability to such Pledgor therefor. For purposes hereof, a written
agreement to purchase the Collateral or any portion thereof shall be treated as
a sale thereof; the Collateral Agent shall be free to carry out such sale
pursuant to such agreement and no Pledgor shall be entitled to the return of the
Collateral or any portion thereof subject thereto, notwithstanding the fact that
after the Collateral Agent shall have entered into such an agreement all Events
of Default shall have been remedied and the Obligations paid in full. As an
alternative to exercising the power of sale herein conferred upon it, the
Collateral Agent may proceed by a suit or suits at law or in equity to foreclose
this Agreement and to sell the Collateral or any portion thereof pursuant to a
judgment or decree of a court or courts having competent jurisdiction or
pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the
provisions of this Section 3.01 shall be deemed to conform to the commercially
reasonable standards as provided in Section 9-610(b) of the New York UCC or its
equivalent in other jurisdictions.
SECTION 3.02. APPLICATION OF PROCEEDS . The Collateral Agent shall
apply the proceeds of any collection, sale, foreclosure or other realization
upon any Collateral, including any Collateral consisting of cash and any amounts
on deposit in the Special Trust Account, as follows:
FIRST, to the payment of all costs and expenses incurred by the
Collateral Agent (in its capacity as such hereunder or under any other
Security Document) in connection with such collection, sale,
foreclosure or realization or otherwise in connection with this
Agreement, any other Security Document or any of the Obligations,
including all court costs and the reasonable fees and expenses of its
agents and legal counsel, the repayment of all advances made by the
Collateral Agent hereunder or under any other Security Document on
behalf of either Pledgor and any other reasonable costs or expenses
incurred by the Collateral in connection with the exercise of any
remedy hereunder or under any other Security Document;
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SECOND, to the payment in full of the Credit Agreement Obligations and
the Senior Note Obligations, ratably in accordance with the respective
amounts thereof on the date of any such distribution;
THIRD, to the payment in full of the Obligations of the Borrowers to
TWEAN under Section 5.19 of this Agreement; and
FOURTH, to the Pledgors, their successors or assigns, or as a court of
competent jurisdiction may otherwise direct.
Except as otherwise provided herein, the Collateral Agent shall have absolute
discretion as to the time of application of any such proceeds, moneys or
balances in accordance with this Agreement. Upon any sale of Collateral by the
Collateral Agent (including pursuant to a power of sale granted by statute or
under a judicial proceeding), the receipt of the Collateral Agent or of the
officer making the 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 Collateral Agent or such officer or be answerable in any way for the
misapplication thereof.
SECTION 3.03. SECURITIES ACT, ETC. In view of the position of the
Pledgors in relation to the Collateral, or because of other current or future
circumstances, a question may arise under the Securities Act of 1933, as now or
hereafter in effect, or any similar statute hereafter enacted analogous in
purpose or effect (such Act and any such similar statute as from time to time in
effect being called the "FEDERAL SECURITIES LAWS") with respect to any
disposition of the Collateral permitted hereunder. Each Pledgor understands that
compliance with the Federal Securities Laws might very strictly limit the course
of conduct of the Collateral Agent if the Collateral Agent were to attempt to
dispose of all or any part of the Collateral, and might also limit the extent to
which or the manner in which any subsequent transferee of any Collateral could
dispose of the same. Similarly, there may be other legal restrictions or
limitations affecting the Collateral Agent in any attempt to dispose of all or
part of the Collateral under applicable Blue Sky or other state securities laws
or similar laws analogous in purpose or effect. Each Pledgor recognizes that in
light of such restrictions and limitations the Collateral Agent may, with
respect to any sale of the Collateral, limit the purchasers to those who will
agree, among other things, to acquire such Collateral for their own account, for
investment, and not with a view to the distribution or resale thereof. Each
Pledgor acknowledges and agrees that in light of such restrictions and
limitations, the Collateral Agent, in its sole and absolute discretion (a) may
proceed to make such a sale whether or not a registration statement for the
purpose of registering such Collateral or part thereof shall have been filed
under the Federal Securities Laws and (b) may approach and negotiate with a
single potential purchaser to effect such sale. Each Pledgor acknowledges and
agrees that any such sale might result in prices and other terms less favorable
to the seller than if such sale were a public sale without such restrictions. In
the event of any such sale, the Collateral Agent shall incur no responsibility
or liability for selling all or any part of the Collateral at a price that the
Collateral Agent, in its sole and absolute discretion, may in good faith deem
reasonable under the circumstances, notwithstanding the possibility that a
substantially higher price might have been realized if the sale were deferred
until after registration as aforesaid or if more than a single purchaser were
approached. The provisions of this Section 3.03 will apply notwithstanding the
existence of a public or private market upon which the quotations or sales
prices may exceed substantially the price at which the Collateral Agent sells.
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SECTION 3.04. RESTRUCTURING AGREEMENTS AND CONSENT. Notwithstanding any
other provision of this Article III, the right of the Collateral Agent to
transfer the Equity Interests in the Initial Borrower upon the exercise by it of
any remedies under this Agreement shall be subject to the same limitations as
would be applicable at the time of such transfer to transfers of such Equity
Interests by ANP under the Restructuring Agreements and the Consent (including
any rights of first offer in favor of any other partner of TWEAN), and in
connection with any such transfer or proposed transfer the Collateral Agent will
have and be entitled to exercise all rights of ANP, and TWEAN will take for the
benefit of the Collateral Agent or its designees all actions required to be
taken by it at the request or for the benefit of ANP, under the Restructuring
Agreements and the Consent. Notwithstanding anything to the contrary contained
herein, but subject to the express provisions of the Consent, all rights granted
to the Collateral Agent or the Secured Parties in this Article III shall be
subject to the Restructuring Agreements, including without limitation all
restrictions and limitations therein (such as rights of first offer) on
dispositions of the pledged Equity Securities and other interests in the assets
or business of the Initial Borrower. For the avoidance of doubt, prior to
exercising any remedies under this Article III (but subject to the express
provisions of the Consent) the Collateral Agent and the Secured Parties (as
applicable) shall be required to comply with the Restructuring Agreements to the
same extent as if ANP or the Initial Borrower were attempting to take the
actions sought to be taken by the Collateral Agent or the Secured Parties.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each party hereto represents and warrants to the other parties hereto
that (a) the execution, delivery and performance by it of this Agreement (i)
have been duly authorized by all requisite action on its part and (ii) will not
contravene any provision of its organizational documents or any law or
regulation or order of any court or other governmental authority having
applicability to it, and (b) this Agreement has been duly executed and delivered
by it and constitutes its legal, valid, binding and enforceable obligation.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. NOTICES. All communications and notices hereunder to the
Collateral Agent, ANP and the Initial Borrower shall (except as otherwise
expressly permitted herein) be in writing and given as provided in Section 12.01
of the Guarantee and Collateral Agreement. All communications and notices
hereunder to TWEAN shall be given to it at 75 Rockefeller Plaza, New York, NY
10019, Attn: General Counsel with a copy to 290 Harbor Drive, Stamford, CT
06902, Attn: General Counsel and Paul Weiss, Rifkand, Wharton & Garrison, 1285
Avenue of the Americas, New York, NY 10019, Attn: Robert B. Schumer and Kelley
D. Parker.
SECTION 5.02. SECURITY INTEREST ABSOLUTE . All rights of the Collateral
Agent hereunder, the Pledge, the grant of a security interest in the Collateral
and all obligations of the
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Pledgors hereunder shall be absolute, irrevocable and unconditional irrespective
of (a) any lack of validity or enforceability of any Document, any agreement
with respect to any of the Obligations or any other agreement or instrument
relating to any of the foregoing, (b) any change in the time, manner or place of
payment of, or in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from the Credit
Agreement, any other Credit Agreement Document, any Senior Note Document or any
other agreement or instrument, (c) any exchange, release or non-perfection of
any Lien on any other collateral, or any release or amendment or waiver of or
consent under or departure from any guarantee, securing or guaranteeing all or
any of the Obligations, or (d) any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the Pledgors in respect of
the Obligations or this Agreement.
SECTION 5.03. SURVIVAL OF AGREEMENT . All covenants, agreements,
representations and warranties made by the Pledgors in this Agreement and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Document shall be considered to have
been relied upon by the other parties hereto and shall survive the execution and
delivery of the Documents and the making of any Loans, the issuance of any
Letters of Credit and the purchase of any Senior Notes, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Collateral Agent or any Secured Party may have had notice or knowledge
of any Default or incorrect representation or warranty at the time any credit is
extended under the Credit Agreement, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Obligation is
outstanding and unpaid and so long as the Commitments have not expired or
terminated.
SECTION 5.04. BINDING EFFECT; SEVERAL AGREEMENT; BENEFIT OF AGREEMENT .
This Agreement shall become effective when the Collateral Agent shall have
received copies hereof that, when taken together, bear the signatures of the
Pledgors and the Collateral Agent and shall inure to the benefit of the
Pledgors, the Collateral Agent and the other Secured Parties and their
respective successors and permitted assigns, except that the Pledgors shall not
have the right to assign or transfer their rights or obligations hereunder or
any interest herein or in the Collateral (and any such assignment or transfer
shall be void) except as expressly contemplated by this Agreement, the Credit
Agreement and the Senior Note Purchase Agreement.
SECTION 5.05. SUCCESSORS AND ASSIGNS . Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the successors and permitted assigns of such party (including, in the case of
each Secured Party, each transferee or assignee of the Obligations held by it);
and all covenants, promises and agreements by or on behalf of the Pledgors or
the Collateral Agent that are contained in this Agreement shall bind and inure
to the benefit of their respective successors and assigns.
SECTION 5.06. COLLATERAL AGENT'S FEES AND EXPENSES . (a) The parties
hereto other than TWEAN agree that the Collateral Agent shall be entitled to
reimbursement of its expenses incurred hereunder as provided in Section 9.03 of
the Credit Agreement and Section 15.1 of the Senior Note Purchase Agreement,
each as in effect on the date hereof.
(b) The provisions of this Section 5.06 shall remain operative and in
full force and effect regardless of the termination of this Agreement or any
other Document, the consummation of the transactions contemplated hereby, the
repayment of any of the Obligations, the invalidity or unenforceability of any
term or provision of this Agreement or any other
16
Document or any investigation made by or on behalf of the Collateral Agent or
any Secured Party. All amounts due under this Section 5.06 shall be payable on
written demand therefor and shall bear interest at the rate specified in Section
2.12 of the Credit Agreement as in effect on the date hereof.
SECTION 5.07. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT . The
Pledgors hereby appoint the Collateral Agent the attorney-in-fact of the
Pledgors for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any instrument that the Collateral Agent may
deem necessary or advisable to accomplish the purposes hereof, which appointment
is irrevocable and coupled with an interest. Without limiting the generality of
the foregoing, the Collateral Agent shall have the right, upon the occurrence
and during the continuance of an Event of Default, with full power of
substitution either in the Collateral Agent's name or in the name of either
Pledgor (a) to receive, endorse, assign and/or deliver any and all notes,
acceptances, checks, drafts, money orders or other evidences of payment relating
to the Collateral or any part thereof; (b) to demand, collect, receive payment
of, give receipt for and give discharges and releases of all or any of the
Collateral; (c) to sign the name of such Pledgor on any invoice or bill of
lading relating to any of the Collateral; (d) to commence and prosecute any and
all suits, actions or proceedings at law or in equity in any court of competent
jurisdiction to collect or otherwise realize on all or any of the Collateral or
to enforce any rights in respect of any Collateral; (e) to settle, compromise,
compound, adjust or defend any actions, suits or proceedings relating to all or
any of the Collateral; (f) to notify, or to require the Pledgors to notify,
obligors in respect of any of the Collateral to make payment directly to the
Collateral Agent; and (g) to use, sell, assign, transfer, pledge, make any
agreement with respect to or otherwise deal with all or any of the Collateral,
and to do all other acts and things necessary to carry out the purposes of this
Agreement, as fully and completely as though the Collateral Agent were the
absolute owner of the Collateral for all purposes; provided that nothing herein
contained shall be construed as requiring or obligating the Collateral Agent to
make any commitment or to make any inquiry as to the nature or sufficiency of
any payment received by the Collateral Agent, 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. The Collateral Agent and the Secured Parties shall be accountable only
for amounts actually received as a result of the exercise of the powers granted
to them herein, and neither they nor their officers, directors, employees or
agents shall be responsible to the Pledgors for any act or failure to act
hereunder, except for their own gross negligence or wilful misconduct. The
Collateral Agent agrees not to exercise the power of attorney provided for in
this Section 5.07 unless a Default or Event of Default shall have occurred and
be continuing.
SECTION 5.08. APPLICABLE LAW . THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 5.09. WAIVERS; AMENDMENT . (a) No failure or delay by the
Collateral Agent in exercising any right or power hereunder or under any other
Security Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Collateral Agent hereunder and under the other Security
Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by any Pledgor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of
17
this Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan by any Lender shall not be
construed as a waiver of any Default, regardless of whether the Collateral Agent
or any Lender may have had notice or knowledge of such Default at the time. No
notice or demand on any Pledgor in any case shall entitle any Pledgor to any
other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Collateral Agent and the Pledgors and consented to by the
Majority Secured Parties; PROVIDED, HOWEVER, that (i) any amendment or waiver of
this Agreement that by its terms adversely affects the rights of the Credit
Agreement Secured Parties or the Senior Note Secured Parties differently from
those of the other class of Secured Parties shall require the consent of Secured
Parties holding a majority in interest of the Obligations of the adversely
affected class, (ii) any amendment or waiver having the effect of a general
release of Collateral and any termination or cancelation of this Agreement shall
require the consent of each Lender and each Senior Note Purchaser, (iii) any
amendment that directly or indirectly narrows the description of the Collateral
or the obligations being secured hereby, changes the priority of payments to the
Secured Parties hereunder or amends the definition of "Majority Secured Parties"
may not be made without the consent of all the Lenders and Senior Note
Purchasers and (iv) provisions solely affecting the rights of the Secured
Parties among themselves may be amended or waived without the consent of the
Borrowers or the Pledgors.
SECTION 5.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER SECURITY
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER SECURITY DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 5.10.
SECTION 5.11. SEVERABILITY . In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 5.12. COUNTERPARTS . This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
5.04. Delivery of an executed signature page to this
18
Agreement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Agreement.
SECTION 5.13. HEADINGS . Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 5.14 JURISDICTION; CONSENT TO SERVICE OF PROCESS . (a) Each of
the Pledgors and the Collateral Agent hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or Federal court of the United States of America, sitting
in New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the Pledgors hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the Pledgors and the Collateral
Agent agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other
Security Document shall affect any right that the Collateral Agent, the
Administrative Agent or any other Secured Party may otherwise have to bring any
action or proceeding relating to this Agreement against either Pledgor or its
properties in the courts of any jurisdiction.
(b) Each of the Pledgors and the Collateral Agent hereby irrevocably
and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
in any court referred to in paragraph (a) of this Section. Each of the Pledgors
and the Collateral Agent hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(c) The Pledgors and the Collateral Agent irrevocably consent to
service of process in the manner provided for notices in Section 5.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 5.15. TERMINATION OR RELEASE . (a) This Agreement, the Pledge
of the Collateral and all other security interests granted hereby shall
terminate when all the Obligations (other than wholly contingent indemnification
or similar obligations) then due and owing have been indefeasibly paid in full
and the Lenders have no further commitments to lend under the Credit Agreement.
Promptly following any such termination the Pledged Securities remaining in the
possession of the Collateral Agent shall, at the sole cost and expense of the
Borrowers, be returned to the Pledgors as their interests may appear.
(b) In connection with any termination or release pursuant to paragraph
(a) the Collateral Agent shall execute and deliver to the Pledgors, at the
Borrowers' expense, all documents that the Pledgors shall reasonably request to
evidence such termination or release. Any execution and delivery of documents
pursuant to this Section 5.15 shall be without recourse to or warranty by the
Collateral Agent. Without limiting the provisions of Section 5.06, the Borrowers
shall reimburse the Collateral Agent upon demand for all costs and expenses,
19
including the fees, charges and disbursements of counsel, incurred by it in
connection with any action contemplated by this Section 5.15.
SECTION 5.16. COMPLIANCE WITH LAWS. Notwithstanding anything herein
which may be construed to the contrary, no action shall be taken by the
Collateral Agent with respect to the Collateral or any license, permit,
certificate or authorization of the Federal Communications Commission ("FCC") or
any other federal, state or local regulatory or governmental bodies applicable
to or having jurisdiction over the Pledgor unless and until any required
approval under the Federal Communications Act of 1934, and any applicable rules
and regulations thereunder requiring the consent to or approval of such action
by the FCC or any governmental or other communications authority have been
satisfied and, to the extent applicable, any action taken with respect to,
concerning or affecting the Collateral, directly or indirectly, shall be subject
to any required approval of the FCC and any state or local communications
regulatory authority with jurisdiction thereover and all applicable
communications laws.
SECTION 5.17. RIGHT OF SETOFF . If an Event of Default shall have
occurred and be continuing, each Secured Party and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at
any time owing by such Secured Party or Affiliate to or for the credit or the
account of either Borrower or ANP against any of and all the obligations of
either Borrower now or hereafter existing under this agreement held by such
Secured Party, irrespective of whether or not such Secured Party shall have made
any demand under this Agreement and although such obligations may be unmatured.
The rights of each Secured Party under this Section are in addition to other
rights and remedies (including other rights of setoff) which such Secured Party
may have. Notwithstanding the foregoing, any amounts received by a Secured Party
pursuant to this Section 5.17 shall be paid over to the Collateral Agent for
application in accordance with Section 3.02.
SECTION 5.18. TRANSFER OF EQUITY INTERESTS TO ANP. The parties
acknowledge and agree that the Equity Interests in the Initial Borrower may be
transferred from TWEAN to ANP as provided in Section 8 of the TWEAN Partnership
Agreement. The parties agree that any such transfer shall be subject to the
pledge created hereby, which shall not in any manner be released or diminished.
ANP shall notify the Collateral Agent in the event the Equity Interests in the
Initial Borrower shall have been transferred to it, and in such event all
rights, benefits and obligations of the Pledgors hereunder shall thereafter be
deemed to be rights, benefits and obligations solely of ANP and TWEAN shall be
released from, and no longer constitute a party to, this Agreement.
Section 5.19. BORROWER INDEMNITY OF TWEAN. Each Borrower shall
indemnify and save TWEAN and each of its officers, partners and Affiliates
harmless from and against any cost, liability or expense (including reasonable
fees and disbursements of counsel) relating to or arising out of this Agreement.
Section 5.20. RECOURSE TO TWEAN. Notwithstanding anything to the
contrary contained in this Agreement, or as may otherwise be inferred or implied
as a result of this Agreement, the parties hereto agree that the recourse of the
Collateral Agent and/or the other Secured Parties to TWEAN in respect of any of
its obligations under this Agreement (or in respect of any of the Obligations)
shall be expressly limited to the specific remedies provided for
20
in Article III hereof to the extent applicable to TWEAN (subject to the express
provisions of the Consent), and specific performance of any covenants of TWEAN
specifically undertaken pursuant to this Agreement.
21
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
TIME WARNER ENTERTAINMENT -
ADVANCE/NEWHOUSE PARTNERSHIP
By: TIME WARNER ENTERTAINMENT
COMPANY, L.P., Managing General
Partner, through its TIME WARNER
CABLE DIVISION
by /s/ Robert D. Marcus
------------------------------------
Name: Robert D. Marcus
Title: Senior Vice President
By: PARAGON COMMUNICATIONS,
by KBL COMMUNICATIONS, INC., its
managing general partner,
by /s/ Robert D. Marcus
------------------------------------
Name: Robert D. Marcus
Title: Senior Vice President
By: ADVANCE/NEWHOUSE PARTNERSHIP, a
general partner,
by ADVANCE CABLE HOLDINGS CORP,
its general partner,
by /s/ Steven A. Miron
------------------------------------
Name: Steven A. Miron
Title: President
by NEWHOUSE CABLE HOLDINGS LLC,
its general partner,
by /s/ Steven A. Miron
------------------------------------
Name: Steven A. Miron
Title: President
22
ADVANCE/NEWHOUSE PARTNERSHIP,
By: ADVANCE CABLE HOLDINGS CORP.,
its general partner
by /s/ Steven A. Miron
------------------------------------
Name: Steven A. Miron
Title: President
By: NEWHOUSE CABLE HOLDINGS
LLC, its general partner,
by /s/ Steven A. Miron
------------------------------------
Name: Steven A. Miron
Title: President
TWEAN SUBSIDIARY, LLC,
By: ADVANCE/NEWHOUSE PARTNERSHIP,
its manager,
by ADVANCE CABLE HOLDINGS CORP.,
its general partner
by /s/ Steven A. Miron
------------------------------------
Name: Steven A. Miron
Title: President
by NEWHOUSE CABLE HOLDINGS LLC,
its general partner,
by /s/ Steven A. Miron
------------------------------------
Name: Steven A. Miron
Title: President
JPMORGAN CHASE BANK, as Collateral Agent,
by /s/ Thomas H. Koziark
------------------------------------
Name: Thomas H. Koziark
Title: Vice President
Schedule I to
the Pledge Agreement
LIMITED LIABILITY COMPANY INTERESTS
PERCENTAGE
OF LIMITED
LIABILITY
NUMBER OF REGISTERED CLASS OF COMPANY
PLEDGOR ISSUER CERTIFICATE OWNER INTEREST INTERESTS
------- ------ ----------- ----- -------- ---------
Time Warner TWEAN Subsidiary, LLC 1 Time Warner Limited 100%
Entertainment Entertainment Liability
-Advance/Newhouse -Advance/Newhouse Company
Partnership Partnership Interest