Exhibit 4(N)
PLEDGE AGREEMENT
dated as of
July 1, 1997
among
UNITEL VIDEO, INC.,
PNC BANK, NATIONAL ASSOCIATION,
as Escrow Agent
and
HELLER FINANCIAL, INC.,
as Agent
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of July 1, 1997, among UNITEL VIDEO, INC.
(the "Pledgor"), PNC BANK, NATIONAL ASSOCIATION, as escrow agent (in its
capacity as such, the "Escrow Agent") and HELLER FINANCIAL, INC., as agent
("Agent") for the financial institutions party to the Credit Agreement (as
hereafter defined) ("Heller).
W I T N E S S E T H :
WHEREAS, the Pledgor has requested the Allegheny County Industrial
Development Authority (the "Issuer") to issue and sell $5,000,000 aggregate
principal amount of its Variable Rate Demand Revenue Bonds (Unitel Mobile Video
Project) Series 1997, issued pursuant to a Trust Indenture, dated as of Jlu 1,
1997 (the "Indenture") between the Issuer and PNC Bank, National Association, as
Trustee (in its capacity as such, the "Trustee"), and to lend the principal
amount of the Bonds to the Pledgor pursuant to a Loan Agreement, dated as of
July 1, 1997 (the "Loan Agreement") between the Issuer and the Pledgor;
WHEREAS, in order to provide for payment when due of the principal
of, and interest on, the Bonds, and to provide for the payment of the purchase
price of Bonds tendered or required to be tendered pursuant to the Indenture,
the Pledgor, pursuant to a Reimbursement Agreement (the "Reimbursement
Agreement"), dated as of July 1, 1997, between the Pledgor and Agent, has
requested Agent to cause Bank of America (the "Letter of Credit Bank') to issue
a letter of credit (the "Letter of Credit"), in the initial amount of
$5,080,547.95 to support payments of principal of, and interest on, the Bonds
and the purchase price of Bonds so tendered or required to be tendered; and
WHEREAS, the Pledgor, to induce Agent to enter into the
Reimbursement Agreement and to cause the Letter of Credit Bank to issue the
Letter of Credit, is willing to pledge the Collateral (as herein defined) and to
enter into this Agreement.
NOW, THEREFORE, the Pledgor, the Escrow Agent and Agent hereby agree
as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Reimbursement Agreement and the Indenture shall have the respective meanings
assigned to such terms when used herein.
2. Registration and Beneficial Ownership of Specified Bonds.
Promptly following the Letter of Credit Bank's honoring any Tender Drawing under
the Letter of Credit, the Escrow Agent in its capacity as Tender Agent under the
Indenture will, in accordance with the provisions of Section 508(a)(iii) of the
Indenture (i) register Bonds purchased with the proceeds of such drawing and not
remarketed (the "Specified Bonds") in the name of Agent or (ii) cause to be
indicated on its records Agent's beneficial ownership of the Specified Bonds.
3. Pledge. Each delivery to the Escrow Agent of Bonds pursuant to
Section 2 hereof shall constitute, without further act or deed of any kind, the
pledge, assignment, hypothecation and transfer to Agent of all of the Pledgor's
right, title and interest in and to such Bonds (hereinafter referred to as the
"Pledged Bonds"), and the Pledgor hereby grants to Agent, for the ratable
benefit of Lenders, a first lien on, and security interest in, its right, title
and interest in and to the Pledged Bonds, the interest thereon and all proceeds
thereof, as collateral security for the prompt and complete payment when due
from time to time by the Pledgor (upon acceleration, at stated maturity or
otherwise) of all amounts payable from time to time by the Pledgor to Agent
under the Reimbursement Agreement, the Indenture and hereunder, including all
amounts reinstated as a result of any rescission or other restoration or return
of any payment upon the insolvency, bankruptcy or reorganization of the Pledgor
(all the foregoing being hereinafter referred to as the "Obligations").
4. Interest on the Pledged Bonds. All interest payable to Agent in
respect of Pledged Bonds shall be paid by the Pledgor or the Escrow Agent, in
accordance with the provisions of Section 2.02(a) of the Indenture, by wire
transfer to the account of Agent and shall be credited first against the
obligation of the Pledgor
to pay interest to Agent under the Reimbursement Agreement and applied by Agent
to the payment of such interest and thereafter to the payment of other
Obligations in such order as Agent shall, in its sole discretion, determine.
5. The Collateral. All Pledged Bonds pledged to Agent hereunder and
all interest thereon and the proceeds of any or all thereof are herein
collectively sometimes referred to as the "Collateral."
6. Release of Pledged Bonds. Pledged Bonds shall not be released by
the Escrow Agent except as provided in this Section 6 and Section 509(b)(iii) of
the Indenture. If the Escrow Agent has received (a) written notice from Agent
that the Pledgor has made or caused to be made a payment or prepayment of its
principal obligations with respect to a Tender Advance and interest accrued
thereon or (b) written notice from Agent that the Letter of Credit has been
reinstated by an amount equal to such Tender Advance, the Escrow Agent is hereby
directed to (x) release from the lien and security interest of this Agreement
Pledged Bonds the aggregate principal amount of which shall be equal to the
principal amount of such Tender Advance so repaid or prepaid (or of such
reinstatement, as the case may be), in either case as so notified to the Escrow
Agent, and (y) deliver such Pledged Bonds to the Tender Agent for transfer in
accordance with the written instructions of Pledgor or the Tender Agent. The
Escrow Agent is hereby authorized, for and on behalf of the Pledgor and Agent,
as their attorney-in-fact, to execute any endorsements, bond powers or such
other documents and to take such other actions as the Escrow Agent deems
appropriate to effect such release, delivery and transfer. Pledged Bonds so
released shall cease to be "Pledged Bonds" for purposes of this Agreement unless
and until the same are repledged to Agent pursuant hereto.
7. Rights of Agent. Agent shall not be liable for any failure to
collect or realize upon the Obligations or any collateral security or guaranty
therefor, or any part thereof, or for any delay in so doing, nor shall it be
under any obligation to take any action whatsoever with regard thereto. If an
Event of Default under the Reimbursement Agreement has occurred and is
continuing, Agent may thereafter without notice exercise all rights, privileges
or options pertaining to any Pledged Bonds as if it were the absolute owner
thereof, upon such terms and conditions as it may determine, all without
liability. Agent shall have no duty to exercise any of the aforesaid rights,
privileges or options and shall not be responsible for any failure to do so or
delay in so doing.
8. Remedies.
(a) General. In the event that any portion of the Obligations
has become due and payable (upon acceleration, at stated maturity or otherwise)
or upon any other Event of Default under the Reimbursement Agreement, Agent,
without demand of performance or other demand, advertisement or notice of any
kind (except the notice specified below of time and place of public or private
sale) to or upon the Pledgor or any other Person (all and each of which demands,
advertisements and/or notices are hereby expressly waived), may forthwith
collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, assign, give an option or options to
purchase, contract to sell or otherwise dispose of and deliver said Collateral,
or any part thereof, in one or more lots at public or private sale or sales, at
any exchange, broker's board or at any of Agent's offices or elsewhere upon such
terms and conditions as it may deem advisable and at such prices as it may deem
best, for cash or on credit or for future delivery without assumption of any
credit risk, with the right to Agent, upon any such sale or sales, public or
private, to purchase the whole or any part of said Collateral so sold. The net
proceeds of any such collection, recovery, receipt, appropriation, realization
or sale, after deducting all reasonable costs and expenses of every kind
incurred therein or incidental to the care, safekeeping or otherwise of any and
all of the Collateral or in any way relating to the rights of Agent hereunder,
including reasonable attorneys' fees and disbursements, shall be applied first
to the satisfaction of the Obligations, the Pledgor remaining liable for any
deficiency remaining unpaid after such application, and only after so applying
such net proceeds and after the payment by Agent of any other amount required by
any provision of law, including, without limitation, Section 9-504(1)(c) of the
Uniform Commercial Code of the State of New York, need Agent account for the
surplus, if any, to the Pledgor. The Pledgor agrees that Agent need not give
more than ten (10) days' notice of the time and place of any public sale or of
the time after which a private sale or other intended disposition is to take
place and that such notice is reasonable notification of such matters. No
notification need be given to the Pledgor if it has signed after default a
statement renouncing or modifying any right to notification of sale or other
intended disposition. In addition to the rights and remedies granted to it in
this Agreement and in any other instrument or agreement securing, evidencing or
relating to any of the Obligations, Agent shall have the authority to exercise
all the rights and remedies of a secured party under the Uniform Commercial
Code. The Pledgor shall be liable for the deficiency if the
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proceeds of any sale or other disposition of the Collateral are insufficient to
pay all amounts to which Agent is entitled, and the fees and disbursements of
any attorneys employed by Agent to collect such deficiency.
(b) Additional Provisions Concerning Pledged Bonds.
(i) The Pledgor recognizes that Agent may not deem it
desirable to effect a public sale of any or all of the Pledged Bonds by reason
of certain prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act") and applicable state securities laws or otherwise, but may
deem it desirable to resort to one or more private sales thereof to a restricted
group of purchasers which will be obliged to agree, among other things, to
acquire such securities for their own account for investment and not with a view
to the distribution or resale thereof. The Pledgor acknowledges and agrees that
any such private sale may result in prices and other terms less favorable to the
seller than if such sale were a public sale, and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner; provided, the conduct of the sale is
otherwise commercially reasonable. Agent shall be under no obligation to delay a
sale of any of the Pledged Bonds for the period of time necessary to permit the
Issuer to register the Pledged Bonds for public sale under the Securities Act,
or under applicable state securities laws, even if the Issuer would agree to do
so.
(ii) The Pledgor further agrees to do or cause to be
done all such other acts and things as may be necessary to make such sale or
sales of any portion or all of the Pledged Bonds valid and binding and in
compliance with any and all applicable laws, regulations, orders, writs,
injunctions, decrees or awards of any and all courts, arbitrators or
governmental instrumentalities, domestic or foreign, having jurisdiction over
any such sale or sales, all at the Pledgor's expense. The Pledgor further agrees
that a breach of any of the covenants contained in this Section 8(b) will cause
irreparable injury to Agent and that Agent has no adequate remedy at law in
respect of such breach and, as a consequence, agrees that each and every
covenant contained in this Section 8(b) shall be specifically enforceable
against the Pledgor and the Pledgor 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. The Pledgor further
acknowledges the impossibility of ascertaining the amount of damages which would
be suffered by Agent by reason of a breach of any of such covenants and,
consequently, agrees that, if Agent shall sue for damages for breach, it shall
pay, as liquidated damages and not as a penalty, an amount equal to the
outstanding principal amount of the Pledged Bonds on the date Agent shall demand
compliance with this Section 8(b).
(c) Escrow Agent. The Escrow Agent shall have no
responsibility to assist Agent in any remedies pursuant to this Section 8 but
may (upon reasonable notice to Agent), and shall (upon the request of Agent),
deliver all Collateral held by it to Agent and thereafter have no further
liability hereunder.
9. Representations, Warranties and Covenants of the Pledgor. The
Pledgor represents and warrants that: (a) on the date of delivery to the Escrow
Agent of any Pledged Bonds, neither the Tender Agent nor any other Person (other
than Agent or the Escrow Agent on behalf of Agent) will have any right, title or
interest in and to the Pledged Bonds; (b) the Pledgor has, and on the date of
delivery to the Escrow Agent of any Pledged Bonds will have, full power,
authority and legal right to pledge all of its right, title and interest in and
to the Pledged Bonds pursuant to this Pledge Agreement; (c) on the date of
delivery thereof to the Escrow Agent the Pledged Bonds and the proceeds thereof
will not be subject to any prior pledge, lien, mortgage, hypothecation, security
interest, charge, option or encumbrance or to any agreement purporting to grant
to any third party a security interest in the property or assets of the Pledgor
which would include the Pledged Bonds; and (d) Agent has and will have a first
and prior perfected security interest in all Collateral delivered to, or held
by, Agent or the Escrow Agent or as provided in the Indenture, and no filing or
other action is necessary to preserve, perfect or protect such interest or the
priority thereof. The Pledgor covenants and agrees that it will defend Agent's
and the Escrow Agent's right, title and security interest in and to the Pledged
Bonds, the interest thereon and the proceeds thereof against the claims and
demands of all Persons whomsoever; and covenants and agrees that it will have
like title to and right to pledge any other property at any time hereafter
pledged to Agent as Collateral hereunder and will likewise defend Agent's and
the Escrow Agent's right thereto and security interest therein.
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10. No Disposition by the Pledgor. Except as contemplated herein,
without the prior written consent of Agent, the Pledgor agrees that it will not
sell, assign, transfer, exchange, or otherwise dispose of, or grant any option
with respect to, the Collateral, nor will it create, incur or permit to exist
any pledge, lien, mortgage, hypothecation, security interest, charge, option or
any other encumbrance with respect to any of the Collateral, or any interest
therein, or any proceeds thereof, except for the lien and security interest
provided for by this Pledge Agreement or created pursuant to any Related
Document.
11. Disposition of Collateral by Agent. The Pledgor further agrees
to do or cause to be done all such other reasonable acts and things as may be
necessary to make any disposition of any portion or all of the Collateral
permitted by this Agreement valid and binding and in compliance with any and all
applicable laws, regulations, orders, writs, injunctions, decrees or awards of
any and all courts, arbitrators or governmental instrumentalities, domestic or
foreign, having jurisdiction over any such disposition or sale, all at such
Pledgor's expense.
12. Further Assurances. The Pledgor agrees that at any time and from
time to time upon the written request of Agent or the Escrow Agent, the Pledgor
will execute and deliver such further documents and do such further acts and
things as Agent or the Escrow Agent may reasonably request in order to effect
the purposes of this Agreement.
13. The Escrow Agent.
(a) The Escrow Agent may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties.
(b) Any request, direction, order or demand of Agent shall be
sufficiently evidenced by an instrument signed in the name of Agent by one who
purports to be an officer thereof.
(c) The Escrow Agent may consult with counsel and the advice
of such counsel or any opinion of counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with such advice or opinion of
counsel.
(d) The Escrow Agent shall be under no obligation to assist
Agent in the exercise of any of the rights or powers vested in it pursuant to
Section 8 hereof under circumstances which, in the reasonable judgment of the
Escrow Agent, may subject the Escrow Agent to pecuniary liability unless Agent
shall have offered to the Escrow Agent reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred therein or thereby.
The Pledgor agrees to promptly reimburse Agent for all reasonable costs, fees,
expenses or liabilities incurred in connection with providing any such security
or indemnity.
(e) The Escrow Agent shall not be liable for any action taken
by it in good faith and believed by it to be authorized or within the discretion
or rights or powers conferred upon it pursuant hereto.
(f) The Escrow Agent may perform any duties hereunder either
directly or by or through agents or attorneys, and the Escrow Agent shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
(g) The Escrow Agent shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, advice, opinion, report, notice, request, direction,
consent, order, bond, or other paper or document, but the Escrow Agent, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit.
(h) The Escrow Agent makes no representation as to the
validity or sufficiency of this Agreement or the Collateral or otherwise.
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(i) The Escrow Agent in its individual or any capacity, may
become the owner or pledgee of Bonds and may otherwise engage in transactions
with, and collect obligations owing to it by, the Pledgor with the same rights
it would have if it were not Escrow Agent.
(j) The Pledgor covenants to indemnify the Escrow Agent for,
and to hold it harmless against, any loss, liability or expense incurred without
gross negligence or willful misconduct on the part of the Escrow Agent arising
out of or in connection with the acceptance of administration of this Agreement
and its duties hereunder, including the costs and expenses of defending itself
against any claim of liability in the premises (except any liability incurred
with gross negligence or willful misconduct on the part of the Escrow Agent).
The obligations of the Pledgor hereunder shall survive payment of the Bonds and
termination of the Agreement and shall be entitled to a prior lien on the
Collateral.
(k) It is understood and agreed that should any dispute arise
with respect to the payment and/or ownership or right of possession of the
Collateral, the Escrow Agent is authorized and directed to retain in its
possession, without liability to anyone, all or any part of said Collateral
until such dispute shall have been settled either by mutual agreement by the
parties concerned or by the final order, decree or judgment of a court or other
tribunal of competent jurisdiction in the United States of America and time for
appeal has expired and no appeal has been perfected, but the Escrow Agent shall
be under no duty whatsoever to institute or defend any such proceedings.
(l) The Escrow Agent may resign at any time by giving written
notice thereof to other parties hereto, but such resignation shall not become
effective until a successor Escrow Agent shall have been appointed and shall
have accepted such appointment in writing. If an instrument of acceptance by a
successor Escrow Agent shall not have been delivered to the Escrow Agent within
30 days after the giving of such notice of resignation, the resigning Escrow
Agent may petition any court of competent jurisdiction for the appointment of a
successor escrow agent. Any successor Escrow Agent shall promptly notify the
Trustee and the Agent of its succession hereunder and of its address for
purposes hereof.
14. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or any provision of the
Reimbursement Agreement or any Related Document, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15. No Waiver; Cumulative Remedies. No act, delay or omission of
Agent or the Escrow Agent shall be deemed to be a waiver of any rights or
remedies granted hereunder and no waiver shall be valid unless in writing,
signed by Agent, and then only to the extent therein set forth. A waiver of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which Agent would otherwise have on any future occasion. No
failure to exercise or any delay in exercising on the part of Agent or the
Escrow Agent any right, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other right, power or privilege. The rights and
remedies herein provided are cumulative and may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
16. Waivers, Amendments; Applicable Law. None of the terms or
provisions of this Agreement may be waived, altered, modified or amended except
by an instrument in writing, duly executed by the parties hereto. This Agreement
shall be governed by, and be construed and interpreted in accordance with, the
laws of the State of New York.
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17. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one
and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the day and year first above written.
The Agent: HELLER FINANCIAL, INC., as Agent
By:
-----------------------------
Title:
500 West Monroe
Chicago, Illinois 60661
Attn: HBC Portfolio Manager
Telecopy: (312) 441-7026
The Pledgor: UNITEL VIDEO, INC.
By: /s/ George Horowitz
-----------------------------
Title: CHIEF FINANCIAL OFFICER
555 West 57th Street
New York, New York 10019
Attn: Barry Knepper, President
Telecopy: (212) 581-7748
The Escrow Agent: PNC BANK, NATIONAL ASSOCIATION
By: /s/ Richard Ranii
-----------------------------
Title: Vice President
One Oliver Plaza, 27th Floor
Pittsburgh, Pennsylvania 15265
Attn: Corporate Trust Division
Telecopy: (412) 762-8226
17. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one
and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the day and year first above written.
The Agent: HELLER FINANCIAL, INC., as Agent
By: /s/ Jerome P. Sepich
-----------------------------
Title: Vice President
500 West Monroe
Chicago, Illinois 60661
Attn: HBC Portfolio Manager
Telecopy: (312) 441-7026
The Pledgor: UNITEL VIDEO, INC.
By:
-----------------------------
Title:
555 West 57th Street
New York, New York 10019
Attn: Barry Knepper, President
Telecopy: (212) 581-7748
The Escrow Agent: PNC BANK, NATIONAL ASSOCIATION
By:
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Title:
One Oliver Plaza, 27th Floor
Pittsburgh, Pennsylvania 15265
Attn: Corporate Trust Division
Telecopy: (___) _________