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EXHIBIT 4.3
EXECUTION COPY
PLEDGE AND ESCROW AGREEMENT
THIS PLEDGE AND ESCROW AGREEMENT (this "Pledge Agreement") is
made and entered into as of July 30, 1996 by and among InterMedia Capital
Partners IV, L.P., a California limited partnership ("ICP-IV"), having its
principal office at 235 Montgomery Street, Suite 420, San Francisco, California
94104, and InterMedia Partners IV Capital Corp., a Delaware corporation ("IPCC"
and, together with ICP-IV, the "Pledgors"), having its principal office at 235
Montgomery Street, Suite 420, San Francisco, California 94104, in favor of The
Bank of New York, a New York banking corporation ("The Bank of New York"),
having its principal corporate trust office at 101 Barclay Street, New York, New
York 10286, as collateral agent (in such capacity, the "Collateral Agent") and
The Bank of New York, as trustee (in such capacity, the "Trustee") under the
Indenture (as defined herein) for the benefit of the holders (the "Holders") of
the Notes (as defined herein) issued by the Pledgors.
W I T N E S S E T H
WHEREAS, the Pledgors and the Trustee have entered into that
certain indenture dated as of July 30, 1996 (as amended, restated, supplemented
or otherwise modified from time to time, the "Indenture"), pursuant to which the
Pledgors are issuing on the date hereof up to $292,000,000 in aggregate
principal amount of 11 1/4% Senior Notes Due 2006 (the "Notes"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings given
to such terms in the Indenture; and
WHEREAS, the Pledgors agreed, pursuant to the Indenture, to
(i) purchase a portfolio of securities, initially consisting of cash and
securities that are direct obligations of, or obligations fully guaranteed by,
the United States of America for the payment of which guarantee or obligations
the full faith and credit of the United States is pledged (the "Government
Securities"), including any Marketable Securities (as defined in the Indenture)
substituted in respect thereof (collectively, the "Pledged Securities"), in an
amount sufficient upon receipt of scheduled interest and principal payments in
respect of Pledged Securities, in the opinion of a nationally recognized firm of
independent public accountants selected by the Pledgors that is attached hereto
as Annex I, to provide for payment in full of the first six scheduled interest
payments due on the Notes and (ii) place such Pledged Securities in an account
held by the Collateral Agent for the benefit of Holders of the Notes; and
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WHEREAS, the Pledgors are the legal and beneficial owners of
the Pledged Securities; and
WHEREAS, to secure their now existing and hereafter arising
absolute and contingent obligations under this Pledge Agreement, the Indenture
and the Notes (the "Obligations"), the Pledgors have agreed to (i) pledge to the
Collateral Agent for its benefit and the ratable benefit of the Holders of
Notes, and grant to the Collateral Agent for the benefit of the Collateral
Agent, the Trustee and the ratable benefit of the Holders of Notes, a security
interest in the Pledged Securities and the Pledge Account (as defined below) and
(ii) execute and deliver this Pledge Agreement in order to secure the payment
and performance by the Pledgors of all such Obligations.
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AGREEMENT
NOW, THEREFORE, in order to induce the Holders of Notes to
purchase the Notes, and for good and valuable consideration, the receipt of
which is hereby acknowledged, the Pledgors hereby agree with the Collateral
Agent for its benefit, for the benefit of the Trustee and for the ratable
benefit of the Holders of Notes, as follows:
SECTION 1. Pledge and Grant of Security Interest. The Pledgors
hereby pledge to the Collateral Agent, and grant to the Collateral Agent, a
continuing first priority security interest in and to (a) all of the Pledgors'
right, title and interest in the Pledged Securities, the Pledge Account and all
money delivered to the Collateral Agent by the Pledgors for deposit in the
Pledge Account, (b) the certificates or other evidence of ownership representing
the Pledged Securities and/or the Pledge Account and (c) except as otherwise
provided herein, all proceeds of any of the foregoing, including, without
limitation, all dividends, interest, principal payments, cash, options,
warrants, rights, instruments, subscriptions and other property or proceeds from
time to time received, receivable or otherwise distributed or distributable in
respect of or in exchange for any or all of the Pledged Securities
(collectively, the "Collateral").
SECTION 2. Security for Obligations. This Pledge Agreement
secures the prompt and complete payment and performance when due (whether at
stated maturity, by acceleration or otherwise) of all Obligations.
SECTION 3. Delivery of Collateral; Pledge Account; Interest;
Substitution of Collateral.
3.1 (a) All money included in the Collateral shall be
delivered to and held by the Collateral Agent pursuant hereto.
(b) All certificated securities included in the Collateral
shall either be: (i) delivered to and held by the Collateral Agent and
registered in the name of the Collateral Agent or, if requested by the
Collateral Agent, registered to bearer or in the name of the Collateral
Agent's nominee, or (ii) with the consent of the Collateral Agent,
delivered to and held by a clearing corporation, a custodian or a
nominee of either which is subject to the control of such clearing
corporation with which the Collateral Agent (or its nominee) maintains
an account (each of the foregoing, an "Approved Depository"), in bearer
form, indorsed in blank or registered in the name of such Approved
Depository, and in each of the foregoing cases in this clause (ii)
credited to an account in the name of the Collateral Agent (or its
nominee) and, as applicable, subtracted from the account(s) of the
applicable Pledgor(s) maintained with such Approved Depository.
(c) All instruments representing or evidencing any portion
of the Collateral shall be delivered to and held by the Collateral
Agent pursuant hereto and shall be duly
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indorsed in blank or to the order of the Collateral Agent, its nominee
or bearer, as the Collateral Agent may request.
(d) All Government Securities included in the
Collateral shall be registered in the name of the Collateral Agent on
the records of the Federal Reserve Bank of New York. All other
uncertificated securities, if any, included in the Collateral shall be
registered in the name of the Collateral Agent, its nominee or an
Approved Depositary on the books of the issuer of such uncertificated
securities.
3.2 Concurrently with the execution and delivery hereof, the
Collateral Agent shall establish an account for the deposit of the Pledged
Securities (the "Pledge Account") at its office at 101 Barclay Street, New York,
New York 10286. Subject to the other terms and conditions of this Pledge
Agreement, all funds or other property accepted by the Collateral Agent pursuant
to this Pledge Agreement shall be held in the Pledge Account for the benefit of
the Collateral Agent and the ratable benefit of the Holders of Notes.
3.3 All interest earned on any Collateral shall be retained in
the Pledge Account (or reinvested, as the case may be), pending disbursement
pursuant to the terms hereof.
3.4 At any time while the Pledge Agreement is in force, the
Pledgors may substitute Marketable Securities (as defined in the Indenture) for
the Government Securities (as defined in the Indenture) originally pledged as
collateral hereunder; provided, however that the Marketable Securities so
substituted must have a fair market value (as defined in the Indenture)
(measured at the date of substitution), in the opinion of a nationally
recognized firm of independent public accountants selected by the Pledgors, at
least equal to 125.0% of the amount of any of the first six scheduled interest
payments on the Notes that are unpaid (or the pro rata portion of such interest
payments equal to the percentage of such interest payments to be secured by such
Marketable Securities) as of the date such Marketable Securities are proposed to
be substituted as security hereunder. Concurrently with such substitution, each
of the Pledgors shall deliver to the Collateral Agent a certificate signed by
the general partner or an executive officer, as applicable, of such Pledgor
reaffirming the representations and warranties set forth in Sections 5(1)
through (7) hereof, and an opinion of counsel stating that the Collateral Agent
has a perfected lien in such Marketable Securities. The Collateral Agent hereby
confirms such pledge and security interest (whether of Collateral now owned or
hereafter acquired) to the Trustee and the Holders of the Notes.
3.5 Pending disbursement of funds from the Pledge Account as
contemplated hereby, the Collateral Agent shall, if requested in writing by the
Pledgors (such request to specify the particular investment), reinvest any
interest payments received in respect of the Pledged Securities in Marketable
Securities; provided that any amounts so reinvested and the securities acquired
thereby must be (a) held as Collateral in the Pledge Account, (b)
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subject to the first priority perfected security interest of the Collateral
Agent created hereby and (c) otherwise subject to the terms hereof.
SECTION 4. Disbursements.
4.1 Upon the date when each of the first six scheduled
interest payments is due on the Notes and without notice from Pledgors, the
Collateral Agent shall transfer to the Trustee, in its capacity as Paying Agent
under the Indenture, cash from the Pledge Account to provide for payment in full
of such scheduled interest payment on the Notes and the Paying Agent shall apply
the proceeds thereof to such interest payment. If one Business Day prior to a
scheduled interest payment date, the available cash in the Pledge Account is
insufficient, and will be insufficient on the date of payment, to make a
scheduled interest payment on the Notes, the Collateral Agent shall liquidate
such portion of the Pledged Securities necessary to generate net cash proceeds
in an amount equal to such scheduled interest payment (liquidiating those
securities with the earliest maturity dates first). The Collateral Agent and the
Trustee shall take any action necessary to provide for the payment of such
interest payment on the Notes directly to the Holders of Notes from proceeds of
the Pledged Securities in the Pledge Account.
4.2 If either of the Pledgors makes any interest payment on
the Notes or portion of such an interest payment for which the Pledged
Securities are collateral from a source of funds other than the Collateral
("Pledgor Funds"), the Pledgors may, after payment in full of such interest
payment (whether from Pledgor Funds alone or Pledgor Funds and Collateral),
deliver to the Collateral Agent written acknowledgement from the Paying Agent of
its receipt of such funds, together with a written request for release of a
portion of collateral not in excess of the Pledgor Funds so paid, whereupon the
Collateral Agent is hereby authorized and directed to release to the Pledgors or
to the order of the Pledgors an amount of funds and/or Pledged Securities from
the Pledge Account less than or equal to the amount of Pledgor Funds so
expended. Upon receipt of such a written request from the Pledgors and any other
documentation reasonably satisfactory to the Collateral Agent to substantiate
such expenditure of Pledgor Funds by the Pledgors (including the certificate
described in the following sentence), the Collateral Agent shall take any
action necessary to enable it to pay over to the Pledgors the requested amount.
Concurrently with any release of funds to the Pledgors pursuant to this Section
4.2, the Pledgors shall deliver to each of the Collateral Agent and the Trustee
a certificate signed by an Executive Officer (as defined in the Indenture) of
each of the Pledgors stating that such use of Pledgor Funds has been duly
authorized by all necessary action by each of the Pledgors, and does not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation of IPCC or the partnership
agreement of ICP-IV or of any agreement, judgment, injunction, order, decree or
other instrument binding upon either of the Pledgors or result in the creation
or imposition of any Lien on any assets of either of the Pledgors.
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4.3 If at any time the amount of Pledged Securities exceeds
100% of the amount sufficient, in the opinion of a nationally recognized firm of
independent public accountants selected by the Pledgors, to provide for payment
in full of the first six scheduled interest payments due on the Notes (or, in
the event an interest payment or payments have been made, an amount sufficient
to provide for payment in full of any interest payments then remaining, up to
and including the sixth scheduled interest payment), the Pledgors may deliver
such opinion to the Collateral Agent and the Collateral Agent is hereby
authorized and directed to release any such overfunding to ICP-IV. Upon receipt
of a request from the Pledgors and a copy of such opinion, the Collateral Agent
shall pay over to the Pledgors any such overfunded amount.
4.4 Upon payment in full of the first six scheduled interest
payments on the Notes, the security interest in the Collateral evidenced by this
Pledge Agreement shall terminate and be of no further force and effect.
Furthermore, upon the release of any Collateral from the Pledge Account in
accordance with the terms of this Pledge Agreement, whether upon release of
Collateral to Holders as payment of interest, to either of the Pledgors or
otherwise, the security interest evidenced by this Pledge Agreement in the
Collateral so released will terminate and be of no further force and effect.
SECTION 5. Representations and Warranties. Each of the
Pledgors hereby represents and warrants that:
(1) The execution, delivery and performance by the
Pledgors of this Pledge Agreement are within each of the Pledgors'
corporate and/or limited partnership powers, as applicable, have been
duly authorized by all necessary corporate and/or partnership action,
as applicable, and do not contravene, or constitute a default under,
any provision of applicable law or regulation or of the certificate of
incorporation of IPCC or the partnership agreement of ICP-IV or of any
agreement, judgment, injunction, order, decree or other instrument
binding upon either of the Pledgors or result in the creation or
imposition of any Lien on any assets of either of the Pledgors, except
for the security interests granted under this Pledge Agreement.
(2) The Pledgors are the legal and beneficial owners
of the Collateral, free and clear of any Lien or claims of any person
or entity (except for the security interests granted under this Pledge
Agreement). In the 21 days preceding the date hereof, neither of the
Pledgors has agreed to grant any Lien on the Collateral to any Person
other than the Collateral Agent. No financing statement covering the
Pledged Securities is on file in any public office other than the
financing statements filed pursuant to this Pledge Agreement.
(3) This Pledge Agreement has been duly executed and
delivered by each of the Pledgors and constitutes a valid and binding
obligation of each of the Pledgors, enforceable
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against each of the Pledgors in accordance with its terms, except as
such enforceability may be limited by the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally or general principles of
equity and commercial reasonableness.
(4) Upon the delivery to the Collateral Agent of the
certificates representing the Pledged Securities and any filing of
financial statements required by the Uniform Commercial Code (the
"UCC"), the pledge of the Collateral pursuant to this Pledge Agreement
creates a valid and perfected first priority security interest in and
to the Collateral, securing the payment of the Obligations for the
benefit of the Collateral Agent and the ratable benefit of the Holders
of Notes, enforceable as such against all creditors of the Pledgors and
any persons purporting to purchase any of the Collateral from the
Pledgors other than as permitted by the Indenture.
(5) No consent of any other Person and no consent,
authorization, approval, or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required either
(a) for the pledge by the Pledgors of the Collateral pursuant to this
Pledge Agreement or for the execution, delivery or performance of this
Pledge Agreement by the Pledgors (except for any filings necessary to
perfect Liens on the Collateral) or (b) for the exercise by the
Collateral Agent of the rights provided for in this Pledge Agreement or
the remedies in respect of the Collateral pursuant to this Pledge
Agreement.
(6) No litigation, proceeding or, to the knowledge of
Pledgors, investigation of or before any arbitrator or governmental
authority is pending or, to the knowledge of either of the Pledgors,
threatened by or against the Pledgors with respect to this Pledge
Agreement or any of the transactions contemplated hereby, except as
disclosed in the Offering Memorandum.
(7) The pledge of the Collateral pursuant to this
Pledge Agreement is not prohibited by any applicable law or
governmental regulation, release, interpretation or opinion of the
Board of Governors of the Federal Reserve System or other regulatory
agency (including, without limitation, Regulations G, T, U and X of the
Board of Governors of the Federal Reserve System).
SECTION 6. Further Assurance. Each of the Pledgors shall,
promptly upon request by the Collateral Agent or the Trustee, execute and
deliver or cause to be executed and delivered, or use its best efforts to
procure, all stock powers, proxies, assignments, instruments and other
documents, all in form and substance satisfactory to the Collateral Agent or the
Trustee, as applicable, deliver any instruments to such Collateral Agent or
Trustee and take any other actions that are necessary or, in the
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reasonable opinion of such Collateral Agent or Trustee, desirable to perfect,
continue the perfection of, or protect the first priority of the Collateral
Agent's security interest in and to the Collateral, to protect the Collateral
against the rights, claims, or interests of third persons or to effect the
purposes of this Pledge Agreement. The Pledgors also hereby authorize the
Collateral Agent to file any financing or continuation statements with respect
to, and to deliver appropriate notices of the transfer and grant of a security
interest in, the Collateral without the signature of the Pledgors (to the extent
permitted by applicable law). The Pledgors shall pay all costs incurred by the
Collateral Agent or either of them in connection with any of the foregoing.
SECTION 7. Covenants. Each of the Pledgors covenants and
agrees with the Collateral Agent, the Trustee and the Holders of Notes from and
after the date of this Pledge Agreement until the earlier of payment in full in
cash of (A) each of the first six scheduled interest payments due on the Notes
under the terms of the Indenture or (B) all obligations due and owing under the
Indenture and the Notes in the event such obligations become due and payable
prior to the payment of the first six scheduled interest payments on the Notes:
(1) Each of the Pledgors agrees that it will not (a) sell or
otherwise dispose of, or grant any option or warrant with respect to, any of the
Collateral or (b) create or permit to exist any Lien upon or with respect to any
of the Collateral (except for the lien created pursuant to this Pledge
Agreement) and at all times will be the sole beneficial owners of the
Collateral.
(2) Each of the Pledgors agrees that it will not (a) enter
into any agreement or understanding that purports to or may restrict or inhibit
the Collateral Agent's rights or remedies hereunder, including, without
limitation, the Collateral Agent's right to sell or otherwise dispose of the
Collateral or (b) fail to pay or discharge any tax, assessment or levy of any
nature not later than five days prior to the date of any proposed sale under any
judgement, writ or warrant of attachment with regard to the Collateral.
SECTION 8. Power of Attorney. In addition to all of the powers
granted to The Bank of New York as Trustee pursuant to Article 6 of the
Indenture, the Pledgors hereby appoint and constitute The Bank of New York, in
its capacity as Collateral Agent, as each of the Pledgors' attorney-in-fact to
exercise to the fullest extent permitted by law all of the following powers upon
and at any time after the occurrence and during the continuance of an Event of
Default: (a) collection of proceeds of any Collateral; (b) conveyance of any
item of Collateral to any purchaser thereof; (c) giving of any notices or
recording of any Liens under Section 6 hereof; (d) making of any payments or
taking any acts under Section 9 hereof and (e) paying or discharging taxes or
Liens levied or placed upon the Collateral, the legality or validity thereof and
the amounts necessary to discharge the same to be determined by the Collateral
Agent in its sole discretion, and such payments made by the Collateral Agent to
become the Obligations of
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the Pledgors to the Collateral Agent, due and payable immediately upon demand.
The Collateral Agent's authority hereunder shall include, without limitation,
the authority to endorse and negotiate any checks or instruments representing
proceeds of Collateral in the name of the Pledgors, execute and give receipt for
any certificate of ownership or any document constituting Collateral, transfer
title to any item of Collateral, sign each of the Pledgors' names on all
financing statements (to the extent permitted by applicable law) or any other
documents deemed necessary or appropriate by the Collateral Agent to preserve,
protect or perfect the security interest in the Collateral and to file the same,
prepare, file and sign each of the Pledgors' names on any notice of Lien, and to
take any other actions arising from or incident to the powers granted to the
Collateral Agent in this Pledge Agreement. This power of attorney is coupled
with an interest and is irrevocable by the Pledgors.
SECTION 9. Collateral Agent May Perform. If either of the
Pledgors fails to perform any agreement contained herein in accordance with the
terms hereof, the Collateral Agent may itself perform, or cause performance of,
but shall have no liability whatsoever for its failure to so perform or cause
performance of, such agreement, and the expenses of the Collateral Agent and its
agents and attorneys incurred in connection therewith shall be payable by the
Pledgors under Section 13 hereof.
SECTION 10. No Assumption of Duties; Reasonable Care. The
rights and powers granted to the Collateral Agent hereunder are being granted in
order to preserve and protect the Collateral Agent's and the Holders' of Notes
security interest in and to the Collateral granted hereby and shall not be
interpreted to, and shall not, impose any duties on the Collateral Agent in
connection therewith other than those imposed under applicable law. Except as
provided by applicable law, the Collateral Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in
its possession if the Collateral is accorded treatment substantially equal to
that which the Collateral Agent accords similar property in similar situations,
it being understood that the Collateral Agent shall not have any responsibility
for (a) ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any Collateral,
whether or not the Collateral Agent has or is deemed to have knowledge of such
matters or (b) taking any necessary steps to preserve rights against any parties
with respect to any Collateral. The Collateral Agent shall have no liability
whatsoever for any fee, tax, loss, expense or other charge incurred with respect
to any investment, reinvestment or liquidation of an investment hereunder. To
the extent applicable, the Collateral Agent shall have the same protections as
the Trustee under the Indenture.
SECTION 11. Indemnity. The Pledgors shall indemnify, hold
harmless and defend the Collateral Agent and its directors, officers, agents and
employees, from and against any and all claims, actions, obligations and
liabilities, including defense costs, investigative fees and costs, legal fees,
and claims for damages, arising from the Collateral Agent's performance under
this
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Pledge Agreement, except to the extent that (i) with respect to Section 4.1
hereof, such claim, action, obligation or liability is directly attributable to
the bad faith, negligence or willful misconduct of such indemnified person and
(ii) otherwise, with respect to this Pledge Agreement, such claim, action,
obligation or liability is directly attributable to the bad faith, gross
negligence or willful misconduct of such indemnified person.
SECTION 12. Remedies Upon Event of Default.
If an Event of Default under the Indenture shall have occurred
and be continuing:
(1) Upon the acceleration of the Notes in accordance
with the terms of the Indenture, the Collateral Agent shall, at the
Trustee's direction, liquidate the Pledged Securities and pay the net
cash proceeds thereof, together with any amounts in the Pledge Account,
to the Paying Agent for application to the principal, interest and
Liquidated Damages, if any, on the Notes to the date of such
acceleration.
(2) The Collateral Agent, the Trustee and the Holders
of Notes shall have, in addition to all other rights given by law or by
this Pledge Agreement or the Indenture, all of the rights and remedies
with respect to the Collateral of a secured party under the UCC in
effect in the State of New York at that time. In addition, with respect
to any Collateral that shall then be in or shall thereafter come into
the possession or custody of the Collateral Agent, the Collateral Agent
may sell or cause the same to be sold at any broker's board or at a
public or private sale, in one or more sales or lots, at such price or
prices as the Collateral Agent may deem best, for cash or on credit or
for future delivery, without assumption of any credit risk. The
purchaser of any or all Collateral so sold shall thereafter hold the
same absolutely, free from any claim, encumbrance or right of any kind
whatsoever created by or through either of the Pledgors. Unless any of
the Collateral threatens, in the reasonable judgment of the Collateral
Agent, to decline speedily in value or is or becomes of a type sold on
a recognized market, the Collateral Agent shall give the Pledgors
reasonable notice of the time and place of any public sale thereof, or
of the time after which any private sale or other intended disposition
is to be made. Any sale of the Collateral conducted in conformity with
reasonable commercial practices of banks, insurance companies,
commercial finance companies or other financial institutions disposing
of property similar to the Collateral shall be deemed to be
commercially reasonable. Any requirements of reasonable notice shall be
met if such notice is mailed to the Pledgors as provided in Section
15.1 herein, at least fifteen (15) days before the time of the sale or
disposition. The Collateral Agent or any Holder of Notes may, in its
own name or in the name of a designee or nominee, buy any of the
Collateral at any public sale and, if permitted by applicable law, at
any private sale. All expenses (including
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court costs and reasonable attorneys' fees, expenses and disbursements)
of, or incident to, the enforcement of any of the provisions hereof
shall be recoverable from the proceeds of the sale or other disposition
of the Collateral.
(3) Each of the Pledgors further agree to use its
best efforts to do or cause to be done all such other acts as may be
necessary to make such sale or sales of all or any portion of the
Collateral pursuant to this Section 12 valid and binding and in
compliance with any and all other applicable requirements of law. The
Pledgors further agree that a breach of any of the covenants contained
in this Section 12 will cause irreparable injury to the Collateral
Agent, the Trustee and the Holders of Notes, that the Collateral Agent,
the Trustee and the Holders of Notes have no adequate remedy at law in
respect of such breach and, as a consequence, that each and every
covenant contained in this Section 12 shall be specifically enforceable
against each of the Pledgors, jointly and severally, and each of the
Pledgors hereby waives and agrees not to assert any defenses against an
action for specific performance of such covenants except for a defense
that no Event of Default has occurred.
SECTION 13. Expenses. The Pledgors shall upon demand pay to
the Collateral Agent the agreed upon fees for all services rendered hereunder
and the amount of any and all reasonable expenses, including, without
limitation, the reasonable fees, expenses and disbursements of its counsel,
experts and agents retained by the Collateral Agent that the Collateral Agent
may incur in connection with (a) the administration of this Pledge Agreement,
(b) the custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (c) the exercise or enforcement of any
of the rights of the Collateral Agent and the Holders of Notes hereunder or (d)
the failure by either of the Pledgors to perform or observe any of the
provisions hereof.
SECTION 14. Security Interest Absolute. All rights of the
Collateral Agent and the Holders of Notes and security interests hereunder, and
all obligations of each of the Pledgors hereunder, shall be absolute and
unconditional irrespective of:
(1) any lack of validity or enforceability of the
Indenture or any other agreement or instrument relating thereto;
(2) 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 Indenture;
(3) any exchange, surrender, release or
non-perfection of any Liens on any other collateral for all or any of
the Obligations; or
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(4) to the extent permitted by applicable law, any
other circumstance which might otherwise constitute a defense available
to, or a discharge of, the Pledgors in respect of the Obligations or of
this Pledge Agreement.
SECTION 15. Miscellaneous Provisions.
15.1 Notices. All notices, approvals, consents or other
communications required or desired to be given hereunder (collectively,
"Notices") shall be in the form and manner, and delivered to each of the parties
hereto at their respective addresses, as set forth or provided for in Section
10.02 of the Indenture. If to the Collateral Agent, such Notices shall be sent
in care of the Trustee in the manner and at the address set forth in such
Section .
15.2 No Adverse Interpretation of Other Agreements. This
Pledge Agreement may not be used to interpret another pledge, security or debt
agreement of either of the Pledgors or any subsidiary thereof. No such pledge,
security or debt agreement may be used to interpret this Pledge Agreement.
15.3 Severability. The provisions of this Pledge Agreement are
severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Pledge Agreement in any jurisdiction.
15.4 Headings. The headings in this Pledge Agreement have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
15.5 Counterpart Originals. This Pledge Agreement may be
signed in two or more counterparts, each of which shall be deemed an original,
but all of which shall together constitute one and the same agreement.
15.6 Benefits of Pledge Agreement. Nothing in this Pledge
Agreement, express or implied, shall give to any person, other than the parties
hereto and their successors hereunder, and the Holders of Notes, any benefit or
any legal or equitable right, remedy or claim under this Pledge Agreement.
15.7 Amendments, Waivers and Consents. Any amendment or waiver
of any provision of this Pledge Agreement and any consent to any departure by
the Pledgors from any provision of this Pledge Agreement shall be effective only
if made or duly given in compliance with all of the terms and provisions of the
Indenture, and none of the Collateral Agent, the Trustee nor any Holder of Notes
shall be deemed, by any act, delay, indulgence, omission or otherwise, to have
waived any right or remedy hereunder or to have acquiesced in any Default or
Event of Default or in any breach of
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any of the terms and conditions hereof. Failure of the Collateral Agent or any
Holder of Notes to exercise, or delay in exercising, any right, power or
privilege hereunder shall not operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by the Collateral Agent, the Trustee or any Holder of Notes of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy that the Collateral Agent or such Holder of Notes would
otherwise have on any future occasion. The rights and remedies herein provided
are cumulative, may be exercised singly or concurrently and are not exclusive of
any rights or remedies provided by law.
15.8 Interpretation of Agreement. All terms not defined herein
or in the Indenture shall have the meaning set forth in the applicable Uniform
Commercial Code, except where the context otherwise requires. To the extent a
term or provision of this Pledge Agreement conflicts with the Indenture, the
Indenture shall control with respect to the subject matter of such term or
provision. Acceptance of or acquiescence in a course of performance rendered
under this Pledge Agreement shall not be relevant to determine the meaning of
this Pledge Agreement even though the accepting or acquiescing party had
knowledge of the nature of the performance and opportunity for objection.
15.9 Continuing Security Interest; Termination.
(1) This Pledge Agreement shall create a continuing
security interest in and to the Collateral and shall, unless otherwise
provided in the Indenture or in this Pledge Agreement, remain in full
force and effect until the earlier of payment in full in cash of (A)
each of the first six scheduled interest payments due on the Notes
under the terms of the Indenture or (B) all obligations due and owing
under the Indenture and the Notes in the event such obligations become
payable prior to the payment of the first six scheduled interest
payments on the Notes. This Pledge Agreement shall be binding upon each
of the Pledgors, its successors and assigns, and shall inure, together
with the rights and remedies of the Collateral Agent and the Trustee
hereunder, to the benefit of the Collateral Agent, the Trustee, the
Holders of Notes and their respective successors, transferees and
assigns.
(2) Subject to the provisions of Section 15.10
hereof, this Pledge Agreement shall terminate upon the earlier of
payment in full in cash of (A) each of the first six scheduled interest
payments due on the Notes under the terms of the Indenture or (B) all
obligations due and owing under the Indenture and the Notes in the
event such obligations become payable prior to the payment of the first
six scheduled interest payments on the Notes. At such time, the
Collateral Agent shall, at the written request of the Pledgors,
reassign and redeliver to the Pledgors all of the Collateral hereunder
that has not been sold, disposed of, retained or applied by
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the Collateral Agent in accordance with the terms of this Pledge
Agreement and the Indenture. Such reassignment and redelivery shall be
without warranty (either express or implied) by or recourse to the
Collateral Agent, except as to the absence of any prior assignments by
the Collateral Agent of its interest in the Collateral, and shall be at
the expense of the Pledgors.
15.10 Survival of Provisions. All representations, warranties
and covenants of each of the Pledgors contained herein shall survive the
execution and delivery of this Pledge Agreement, and shall terminate only upon
the termination of this Pledge Agreement, provided, however, that the provisions
of Sections 11 and 13 hereof shall survive the termination of this Pledge
Agreement.
15.11 Waivers. Each of the Pledgors waives presentment and
demand for payment of any of the Obligations, protest and notice of dishonor or
default with respect to any of the Obligations, and all other notices to which
either of the Pledgors might otherwise be entitled, except as otherwise
expressly provided herein or in the Indenture.
15.12 Authority of the Collateral Agent.
(1) The Collateral Agent shall have and be entitled
to exercise all powers hereunder that are specifically granted to the
Collateral Agent by the terms hereof, together with such powers as are
reasonably incident thereto. The Collateral Agent may perform any of
its duties hereunder or in connection with the Collateral by or through
agents or employees and shall be entitled to retain counsel of its
selection and to act in reliance upon the advice of counsel concerning
all such matters. Neither the Collateral Agent, any director, officer,
employee, attorney or agent of the Collateral Agent nor the Holders of
Notes shall be liable to either of the Pledgors for any action taken or
omitted to be taken by it or them hereunder, except for its or their
own bad faith, gross negligence or willful misconduct, nor shall the
Collateral Agent be responsible for the validity, effectiveness or
sufficiency hereof or of any document or security furnished pursuant
hereto. The Collateral Agent and its directors, officers, employees,
attorneys and agents shall be entitled to rely on any communication,
instrument or document believed by it or them to be genuine and correct
and to have been signed or sent by the proper person or persons.
(2) The Pledgors acknowledge that the rights and
responsibilities of the Collateral Agent under this Pledge Agreement
with respect to any action taken by the Collateral Agent or the
exercise or non-exercise by the Collateral Agent of any option, right,
request, judgment or other right or remedy provided for herein or
resulting or arising out of this Pledge Agreement shall, as between the
Collateral Agent and the Holders of Notes, be governed by the Indenture
and by such other agreements with respect thereto as may exist from
time
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to time among them, but, as between the Collateral Agent and the
Pledgors, the Collateral Agent shall be conclusively presumed to be
acting as agent for the Holders of Notes with full and valid authority
so to act or refrain from acting, and the Pledgors shall not be
obligated or entitled to make any inquiry respecting such authority.
15.13 Limitation by Law. All rights, remedies and powers
provided herein may be exercised only to the extent that they will not render
this Pledge Agreement not entitled to be recorded, registered or filed under
provisions of any applicable law.
15.14 Final Expression. This Pledge Agreement, together with
any other agreement executed in connection herewith, is intended by the parties
as a final expression of this Pledge Agreement and is intended as a complete and
exclusive statement of the terms and conditions thereof.
15.15 Rights of Holders of Notes. No Holder of Notes shall
have any independent rights hereunder other than those rights granted to
individual Holders of Notes pursuant to Section 6.06 of the Indenture; provided
that nothing in this subsection shall limit any rights granted to the Collateral
Agent under the Notes or the Indenture.
15.16 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL; WAIVER OF DAMAGES.
(1) THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED
UNDER THE LAWS OF THE STATE OF NEW YORK, AND ANY DISPUTE ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THE PLEDGORS, THE COLLATERAL AGENT, THE TRUSTEE AND THE HOLDERS OF NOTES IN
CONNECTION WITH THIS PLEDGE AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT,
EQUITY OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (AS
OPPOSED TO THE CONFLICTS OF LAWS PROVISIONS) AND DECISIONS OF THE STATE OF NEW
YORK.
(2) EACH OF THE PLEDGORS AGREES THAT THE COLLATERAL AGENT
SHALL, IN ITS CAPACITY AS COLLATERAL AGENT OR IN THE NAME AND ON BEHALF OF ANY
HOLDER OF NOTES, HAVE THE RIGHT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO
PROCEED AGAINST EITHER OF THE PLEDGORS OR THEIR RESPECTIVE PROPERTY IN A COURT
IN ANY LOCATION REASONABLY SELECTED IN GOOD FAITH (AND HAVING PERSONAL OR IN REM
JURISDICTION OVER THE PLEDGOR OR ITS PROPERTY, AS THE CASE MAY BE) TO ENABLE THE
COLLATERAL AGENT TO REALIZE ON SUCH PROPERTY, OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER ENTERED IN FAVOR OF THE COLLATERAL AGENT. EACH OF THE PLEDGORS
AGREES THAT IT WILL NOT ASSERT ANY COUNTERCLAIMS, SETOFFS OR CROSS CLAIMS IN ANY
PROCEEDING BROUGHT BY THE COLLATERAL AGENT TO REALIZE ON SUCH PROPERTY OR TO
ENFORCE A JUDGEMENT OR OTHER COURT ORDER IN FAVOR OF THE COLLATERAL AGENT,
EXCEPT FOR SUCH COUNTERCLAIMS, SETOFFS OR CROSS CLAIMS THAT, IF NOT ASSERTED IN
ANY SUCH PROCEEDING, COULD NOT OTHERWISE BE BROUGHT OR ASSERTED. EACH OF THE
PLEDGORS WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN
WHICH THE
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COLLATERAL AGENT HAS COMMENCED A PROCEEDING DESCRIBED IN THIS PARAGRAPH
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS.
(3) THE PLEDGORS AND THE COLLATERAL AGENT EACH WAIVE ANY RIGHT
TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
PLEDGE AGREEMENT. INSTEAD, ANY DISPUTES RESOLVED IN COURT SHALL BE RESOLVED IN A
BENCH TRIAL WITHOUT A JURY.
(4) EACH OF THE PLEDGORS AGREES THAT NEITHER THE COLLATERAL
AGENT NOR ANY HOLDER OF NOTES SHALL HAVE ANY LIABILITY TO EITHER OF THE PLEDGORS
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY EITHER
OF THE PLEDGORS IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO,
THE TRANSACTIONS CONTEMPLATED AND THE RELATIONSHIP ESTABLISHED BY THIS PLEDGE
AGREEMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH,
UNLESS IT IS DETERMINED BY A FINAL AND NONAPPEALABLE JUDGMENT OF A COURT THAT IS
BINDING ON THE COLLATERAL AGENT OR SUCH HOLDER OF NOTES, AS THE CASE MAY BE,
THAT SUCH LOSSES WERE THE RESULT OF ACTS OR OMISSIONS ON THE PART OF THE
COLLATERAL AGENT OR SUCH HOLDER OF NOTES, AS THE CASE MAY BE, CONSTITUTING BAD
FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(5) TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS
OTHERWISE PROVIDED IN THIS PLEDGE AGREEMENT, EACH OF THE PLEDGORS WAIVES ALL
RIGHTS OF NOTICE AND HEARING OF ANY KIND PRIOR TO THE EXERCISE BY THE COLLATERAL
AGENT OR ANY HOLDER OF NOTES OF ITS RIGHTS DURING THE CONTINUANCE OF AN EVENT OF
DEFAULT TO REPOSSESS THE COLLATERAL WITH JUDICIAL PROCESS OR TO REPLEVY, ATTACH
OR LEVY UPON THE COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF THE PLEDGORS WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF THE COLLATERAL AGENT OR ANY HOLDER OF NOTES IN CONNECTION
WITH ANY JUDICIAL PROCESS OR PROCEEDING TO OBTAIN POSSESSION OF, REPLEVY, ATTACH
OR LEVY UPON THE COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS, TO ENFORCE
ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE COLLATERAL AGENT OR
ANY HOLDER OF NOTES, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY
RESTRAINING ORDER OR PRELIMINARY OR PERMANENT INJUNCTION, THIS PLEDGE AGREEMENT
OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN EITHER OR BOTH OF THE PLEDGORS ON THE
ONE HAND AND THE COLLATERAL AGENT AND/OR THE HOLDERS OF NOTES ON THE OTHER HAND.
[signature page follows]
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IN WITNESS WHEREOF, the Pledgors, the Collateral Agent and the
Trustee have each caused this Pledge Agreement to be duly executed and delivered
as of the date first above written.
PLEDGORS:
INTERMEDIA CAPITAL PARTNERS IV, L.P.,
a California limited partnership
By: InterMedia Capital Management IV, L.P.,
a California limited partnership,
as general partner of InterMedia
Capital Partners IV, L.P.
By: /s/ Leo J. Hindery, Jr.
------------------------------------
Leo J. Hindery, Jr.
Managing General Partner
INTERMEDIA PARTNERS IV CAPITAL CORP.,
a Delaware corporation
By: /s/ Leo J. Hindery, Jr.
---------------------------------------------
Leo J. Hindery, Jr.,
President
TRUSTEE:
THE BANK OF NEW YORK,
as Trustee
By: /s/ Vivian Georges
-----------------------------
Vivian Georges,
Assistant Vice President
COLLATERAL AGENT:
THE BANK OF NEW YORK,
as Collateral Agent
By: /s/ Vivian Georges
-----------------------------
Vivian Georges,
Assistant Vice President