COLLATERAL PLEDGE AND SECURITY AGREEMENT
This COLLATERAL PLEDGE AND SECURITY AGREEMENT (this "Pledge
Agreement") is made and entered into as of November __, 1997 by TELIGENT, INC.,
a Delaware corporation (the "Pledgor"), having its principal office at 0000
Xxxxxxxx Xxxx, Xxxxxx, XX 00000 in favor of FIRST UNION NATIONAL BANK, a banking
corporation duly organized and existing under the laws of the State of
____________, having an office at 000 X. Xxxx Xxxxxx - 0xx Xx., Xxxxxxxx, XX
00000, as trustee (the "Trustee") for the holders (the "Holders") of the Notes
(as defined herein) issued by the Pledgor under the Indenture referred to below.
W I T N E S S E T H
WHEREAS, the Pledgor and First Union National Bank, as
Trustee, have entered into that certain indenture dated as of the date hereof
(as amended, restated, supplemented or otherwise modified from time to time, the
"Indenture"), pursuant to which the Pledgor is issuing on the date hereof
$250,000,000 in aggregate principal amount of [___]% Senior Notes due 2007 (the
"Notes"); and
WHEREAS, the Pledgor has agreed, pursuant to the Indenture, to
(i) purchase or cause the purchase of Pledged Securities (as defined herein) in
an amount that will be sufficient upon receipt of scheduled interest and
principal payments in respect thereof to provide for the payment of the first
six scheduled interest payments due on the Notes and (ii) place such Pledged
Securities (as defined herein) (or cause them to be placed) in an account held
by the Trustee for the benefit of Holders of the Notes; and
WHEREAS, to secure the obligations of the Pledgor under the
Indenture and the Notes to pay in full each of the first six scheduled interest
payments on the Notes and to secure repayment of the principal, premium (if any)
and interest on the Notes in the event that the Notes become due and payable
prior to such time as the first six scheduled interest payments thereon shall
have been paid in full (the "Obligations"), the Pledgor has agreed to (i) pledge
to the Trustee for its benefit and the ratable benefit of the Holders of the
Notes, a security interest in the Pledged Securities (as defined herein) and
related collateral and (ii) execute and deliver this Pledge Agreement in order
to secure the payment and performance by the Pledgor of all the Obligations.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings given to such terms in the Indenture. Unless otherwise defined herein
or in the Indenture, terms used in Articles 8 or 9 of the Uniform Commercial
Code ("UCC") as in effect in the State of New York are used herein as therein
defined and terms used in Revised Article 8, as such term is defined in 31
C.F.R. ss.
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357.2, as modified by the amendments promulgated at 61 Fed. Reg. 43,628 (Aug.
23, 1996) ("Revised Article 8"), are used herein as therein defined.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and in order to induce the Holders of the Notes to purchase the
Notes, the Pledgor hereby agrees with the Trustee, for the benefit of the
Trustee and for the ratable benefit of the Holders of the Notes, as follows:
SECTION 1. Pledge and Grant of Security Interest. The Pledgor
hereby pledges to the Trustee for its benefit and for the ratable benefit of the
Holders of the Notes, and grants to the Trustee for its benefit and for the
ratable benefit of the Holders of the Notes, a continuing first priority
security interest in and to all of the Pledgor's right, title and interest in,
to and under the following (hereinafter collectively referred to as the
"Collateral"), whether characterized as investment property, general intangibles
or otherwise:
(a) the U.S. Government Obligations identified by CUSIP No. in
Annex 1 to Exhibit A to this Pledge Agreement (the "Pledged
Securities"),
(b) any and all applicable security entitlements to the
Pledged Securities,
(c) the First Union National Bank account in the name of
"First Union National Bank, as Trustee for the benefit of the holders
of the [___]% Senior Notes due 2007 of Teligent, Inc. Collateral Pledge
Account", Administrative Account No. [____] (the "Pledge Account")
established and maintained by the Trustee pursuant to this Pledge
Agreement,
(d) any and all related securities accounts in which security
entitlements to the Pledged Securities are carried,
(e) all notes, certificates of deposit, deposit accounts,
checks and other instruments from time to time hereafter delivered to
or otherwise possessed by the Trustee for or on behalf of the Pledgor
in substitution for or in addition to any or all the then existing
Collateral,
(f) all interest, dividends, cash, instruments and other
property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of
the then existing Collateral (including, without limitation, proceeds
that constitute property of the types described in clauses (a) through
(e) of this Section 1).
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SECTION 2. Security for Obligation. This Pledge Agreement
secures the prompt and complete payment and performance when due (whether at
stated maturity, by acceleration or otherwise) of all the Obligations.
SECTION 3. Delivery of Collateral; Pledge Account; Interest.
(a) The Pledged Securities shall be pledged and transferred to the Trustee and
the Trustee shall become the holder of a security entitlement to the Pledged
Securities, through action by the Federal Reserve Bank of New York ("FRBNY") or
another securities intermediary, as confirmed (in writing or electronically or
otherwise in accordance with standard industry practice) to the Trustee by FRBNY
or such other securities intermediary (i) indicating by book-entry that the
Pledged Securities or a security entitlement thereto has been credited to the
Trustee's account or (ii) acquiring the Pledged Securities or a security
entitlement thereto for the Trustee and accepting the same for credit to a
securities account of the Trustee.
(b) Prior to or concurrently with the execution and delivery
hereof and prior to the transfer to the Trustee of the Pledged Securities (or
acquisition by the Trustee of any security entitlement thereto), as provided in
subsection (a) of this Section 3, the Trustee shall establish the Pledge Account
on its books as an account segregated from all other custodial or collateral
accounts at its office at 000 X. Xxxx Xxxxxx - 2nd fl., Xxxxxxxx, XX 00000,
Attention: [Corporate Trustee Administration Department]. Upon transfer of the
Pledged Securities to the Trustee (or the Trustee's acquisition of a security
entitlement thereto), as confirmed to the Trustee by FRBNY or another securities
intermediary, the Trustee shall make appropriate book entries indicating that
the Pledged Securities and/or such security entitlement have been credited to
and are held in the Pledge Account. Subject to the other terms and conditions of
this Pledge Agreement, all funds or other property held by the Trustee pursuant
to this Pledge Agreement shall be held in the Pledge Account subject (except as
expressly provided in Sections 4(a), (b) and (c) hereof) to the exclusive
dominion and control of the Trustee and exclusively for the benefit of the
Trustee and for the ratable benefit of the Holders of the Notes and segregated
from all other funds or other property otherwise held by the Trustee.
(c) All Collateral shall be retained in the Pledge Account
pending disbursement pursuant to the terms hereof.
(d) Concurrently with the execution and delivery of this
Pledge Agreement the Trustee is delivering to the Pledgor, Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Salomon Brothers Inc, TD
Securities (USA) Inc. and Xxxxxxx, Xxxxx & Co., a duly executed certificate, in
the form of Exhibit A hereto, of an officer of the Trustee, confirming the
Trustee's establishment and maintenance of the Pledge Account and its receipt
and holding of the Pledged Securities or a security entitlement thereto and the
crediting of the Pledged Securities or such security entitlement to the Pledged
Account, all in accordance with this Pledge Agreement.
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(e) Concurrently with the execution and delivery of this
Pledge Agreement, the Pledgor is delivering to the Trustee acknowledgement
copies or stamped receipt copies of proper financing statements, duly filed on
or before the Closing Date (as defined in the Indenture) under the UCC of the
State of Virginia, covering the Collateral described in this Pledge Agreement.
SECTION 4. Disbursements. (a) At or prior to 10 a.m. on the
due date of any of the first six scheduled interest payments on the Notes, the
Pledgor may, pursuant to written instructions (an "Issuer Order"), direct the
Trustee to release from the Pledge Account and pay to the Holders of the Notes
proceeds sufficient to provide for payment in full of such interest then due on
the Notes. Upon receipt of an Issuer Order, the Trustee will take any action
necessary to provide for the payment of the interest on the Notes in accordance
with the payment provisions of the Indenture to the Holders of the Notes from
(and to the extent of) proceeds of the Pledged Securities in the Pledge Account.
Nothing in this Section 4 shall affect the Trustee's rights to apply the
Collateral to the payments of amounts due on the Notes upon acceleration
thereof.
(b) If the Pledgor makes any interest payment or portion of an
interest payment for which the Collateral is security from a source of funds
other than the Pledge Account ("Pledgor Funds"), the Pledgor may, after payment
in full of such interest payment, direct the Trustee pursuant to an Issuer Order
to release to the Pledgor or to another party at the direction of the Pledgor
(the "Pledgor's Designee") proceeds from the Pledge Account in an amount less
than or equal to the amount of Pledgor Funds applied to such interest payment.
Upon receipt by the Trustee of such Issuer Order and evidence reasonably
satisfactory to the Trustee that such interest payment has been paid in full,
the Trustee shall pay over to the Pledgor or the Pledgor's Designee, as the case
may be, the requested amount from proceeds in the Pledge Account.
(c) If at any time the principal of and interest on the
Pledged Securities exceeds 100% of the amount sufficient, in the written opinion
of a nationally recognized firm of independent public accountants or a
nationally recognized investment banking firm selected by the Pledgor and
delivered to the Trustee, to provide for payment in full of the remaining first
six scheduled interest payments due on the Notes, the Pledgor may direct the
Trustee to release any such excess amount to the Pledgor or to such other party
as the Pledgor may direct. Upon receipt of an Issuer Order (which shall include
a certificate from such nationally recognized firm of independent public
accountants or a nationally recognized investment banking firm stating the
amount by which the Pledged Securities exceeds the amount required to be held in
the Pledge Account) the Trustee shall pay over to the Pledgor or the Pledgor's
Designee, as the case may be, any such excess amount.
(d) 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 will
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automatically terminate and be of no further force and effect and the Collateral
shall promptly be paid over and transferred to the Pledgor. 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 or otherwise, the security interest evidenced by this Pledge
Agreement in such released Collateral will automatically terminate and be of no
further force and effect, and the Trustee shall cooperate and shall deliver such
documents as may be necessary to discharge any security interest with respect to
the Collateral under the UCC.
(e) At least three Business Days prior to the due date of each
of the first six scheduled interest payments on the Notes, the Pledgor shall
give the Trustee notice (by Issuer Order) as to whether such interest payment
will be made pursuant to Section 4(a) or 4(b) and the respective amounts of
interest that will be paid from the Pledge Account and from Pledgor Funds. Any
Pledgor Funds to be used to make any interest payment shall be delivered to the
Trustee, in immediately available funds, at or prior to 10 a.m. on the day
immediately preceding such interest payment date. If no such notice is given or
such Pledgor Funds have not been so delivered, the Trustee will act pursuant to
Section 4(a) as if it had received an Issuer Order pursuant thereto for the
payment in full of the interest then due from the Pledge Account.
(f) The Trustee shall liquidate Collateral in the Pledge
Account in order to make any scheduled payment of interest unless there are
sufficient funds in the Pledge Account on such interest payment date.
(g) Except as otherwise provided in Sections 4(c) and (d)
hereof, nothing contained in Section 1, Section 3, this Section 4 or any other
provision of this Pledge Agreement shall (i) afford the Pledgor any right to
issue entitlement orders with respect to any security entitlement to the Pledged
Securities or any securities account in which any such security entitlement may
be carried, or otherwise afford the Pledgor control of any such security
entitlement or (ii) otherwise give rise to any rights of the Pledgor with
respect to the Pledged Securities, any security entitlement thereto or any
securities account in which any such security entitlement may be carried, other
than the Pledgor's rights under this Pledge Agreement as the beneficial owner of
collateral pledged to and subject to the exclusive dominion and control (except
as expressly provided in Sections 4(a), (b) and (c) hereof) of the Trustee in
its capacity as such (and not as a securities intermediary). The Pledgor
acknowledges, confirms and agrees that the Trustee holds a security entitlement
to the Pledged Securities solely as trustee for the Holders of the Notes and not
as a securities intermediary.
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SECTION 5. Representations and Warranties. The Pledgor hereby
represents and warrants that:
(a) The execution and delivery by the Pledgor of, and the
performance by the Pledgor of its obligations under, this Pledge
Agreement will not result in any violation of the provisions of the
charter or by-laws of the Pledgor or any of its Restricted Subsidiaries
or any applicable law, statute, rule, regulation, judgment, order, writ
or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Pledgor or any of its
Restricted Subsidiaries or any of its assets, properties or operations,
or result in the creation or imposition of any Lien on any assets of
the Pledgor, except for the security interests granted under this
Pledge Agreement, and no filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency, domestic or foreign
("Government Filings"), is necessary or required (i) for the
performance by the Pledgor of its obligations under this Pledge
Agreement, (ii) for the pledge by the Pledgor of the Collateral
pursuant to this Pledge Agreement or (iii) except for any such
consents, approvals, authorizations or orders required to be obtained
by the Trustee (or the Holders) for reasons other than the consummation
of this transaction, for the exercise by the Trustee of the rights
provided for in this Pledge Agreement or the remedies in respect of the
Collateral pursuant to this Pledge Agreement, except in each case for
such violations, creations, impositions and failures to make
Governmental Filings that would not have an adverse effect on the
performance by the Pledgor of its obligations hereunder or under the
Indenture or the Notes..
(b) The Pledgor is the beneficial owner 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). No
financing statement covering the Pledgor's interest in the Pledged
Securities is on file in any public office, other than the financing
statements filed pursuant to this Pledge Agreement.
(c) This Pledge Agreement has been duly authorized, validly
executed and delivered by the Pledgor and constitutes a valid and
binding agreement of the Pledgor, enforceable against the Pledgor in
accordance with its terms, except as (i) the enforceability hereof may
be limited by bankruptcy, insolvency, fraudulent conveyance,
preference, reorganization, moratorium or similar laws now or hereafter
in effect relating to or affecting creditors' rights or remedies
generally, (ii) the availability of equitable remedies may be limited
by equitable principles of general applicability, (iii) the exculpation
provisions and rights to indemnification hereunder may be limited by
U.S. federal and state securities laws and public policy considerations
and (iv) the waiver of rights and defenses contained in Section 11(b),
Section 14.11 and Section 14.15 hereof may be limited by applicable
law.
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(d) Upon transfer to the Trustee of the Pledged Securities and
the acquisition by the Trustee of a security entitlement thereto, in
accordance with Section 3, the pledge of and grant of a security
interest in the Collateral securing the payment of the Obligations for
the benefit of the Trustee and the Holders of the Notes will constitute
a first priority perfected security interest in such Collateral,
enforceable as such against all creditors of the Pledgor (and any
persons purporting to purchase any of the Collateral from the Pledgor).
(e) There are no legal or governmental proceedings pending or,
to the best of the Pledgor's knowledge, threatened to which the Pledgor
or any of its Restricted Subsidiaries is a party or to which any of the
properties of the Pledgor or any such Restricted Subsidiary is subject
that would materially adversely affect the power or ability of the
Pledgor to perform its obligations under this Pledge Agreement or to
consummate the transactions contemplated hereby.
(f) The pledge of the Collateral pursuant to this Pledge
Agreement is not prohibited by law or governmental regulation
(including, without limitation, Regulations G, T, U and X of the Board
of Governors of the Federal Reserve System) applicable to the Pledgor.
(g) No Event of Default (as defined herein) exists.
SECTION 6. Further Assurances. The Pledgor will, reasonably
promptly upon request by the Trustee, execute and deliver or cause to be
executed and delivered, or use its reasonable best efforts to procure, all
assignments, instruments and other documents, all in form and substance
reasonably satisfactory to the Trustee, deliver any instruments to the Trustee
and take any other actions that are reasonably necessary or, in the reasonable
opinion of the Trustee, desirable to perfect, continue the perfection of, or
protect the first priority of the Trustee's security interest in and to the
Collateral, to protect the Collateral against the rights, claims, or interests
of third persons (other than any such rights, claims or interests created by or
arising through the Trustee) or to effect the purposes of this Pledge Agreement.
The Pledgor also hereby authorizes the Trustee to file any financing or
continuation statements in the United States with respect to the Collateral
without the signature of the Pledgor (to the extent permitted by applicable
law). The Pledgor will promptly pay all reasonable costs, which costs will be
approved in advance by the Pledgor, incurred in connection with any of the
foregoing within 45 days of receipt of an invoice therefor. The Pledgor also
agrees, whether or not requested by the Trustee, to take all actions that are
reasonably necessary to perfect or continue the perfection of, or to protect the
first priority of, the Trustee's security interest in and to the Collateral,
including the filing of all reasonably necessary financing and continuation
statements, and to protect the Collateral against the rights, claims or
interests of third persons (other than any such rights, claims or interests
created by or arising through the Trustee).
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SECTION 7. Covenants. The Pledgor covenants and agrees with
the Trustee and the Holders of the Notes that from and after the date of this
Pledge Agreement until the earlier of the payment in full in cash of the
Obligations or the payment in full of the first scheduled interest payments on
the Notes:
(a) Other than as provided in Sections 4(c) and 4(d) hereof,
that (i) it will not (and will not purport to) sell or otherwise
dispose of, or grant any option or warrant with respect to, any of the
Collateral or (ii) it will not create or permit to exist any Lien upon
or with respect to any of the Collateral (except for the security
interests granted under this Pledge Agreement and any Lien created by
or arising through the Trustee) and at all times will be the sole
beneficial owner of the Collateral; and
(b) Other than as provided in Sections 4(c) and 4(d) hereof,
that it will not (i) enter into any agreement or understanding that
restricts or inhibits or purports to restrict or inhibit the Trustee's
rights or remedies hereunder, including, without limitation, the
Trustee's right to sell or otherwise dispose of the Collateral or (ii)
fail to pay or discharge any tax, assessment or levy of any nature with
respect to the Collateral not later than five days prior to the date of
any proposed sale under any judgment, writ or warrant of attachment
with respect to the Collateral.
SECTION 8. Power of Attorney. In addition to all of the powers
granted to the Trustee pursuant to the Indenture, the Pledgor hereby appoints
and constitutes the Trustee as the Pledgor's attorney-in-fact (with full power
of substitution) 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; and
(d) 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 Trustee in its sole reasonable discretion, and such
payments made by the Trustee to become part of the Obligations of the Pledgor to
the Trustee, due and payable upon demand. The Trustee's authority under this
Section 8 shall include, without limitation, the authority to endorse and
negotiate any checks or instruments representing proceeds of Collateral in the
name of the Pledgor, execute and give receipt for any certificate of ownership
or any document constituting Collateral, transfer title to any item of
Collateral, sign the Pledgor's name on all financing statements (to the extent
permitted by applicable law) or any other documents reasonably deemed necessary
or appropriate by the Trustee to preserve, protect or perfect the security
interest in the Collateral and to file the same, prepare, file and sign the
Pledgor's name on any notice of Lien, and to take any other reasonable actions
arising from or incident to the powers granted to the Trustee in this Pledge
Agreement. This power of attorney is coupled with an interest and is irrevocable
by the Pledgor.
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SECTION 9. No Assumption of Duties; Reasonable Care. The
rights and powers granted to the Trustee hereunder are being granted in order to
preserve and protect the security interest of the Trustee and the Holders of the
Notes in and to the Collateral granted hereby and shall not be interpreted to,
and shall not, impose any duties on the Trustee in connection therewith other
than those expressly provided herein or imposed under applicable law. Except as
provided by applicable law or by the Indenture, the Trustee 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 Trustee accords similar property held by the Trustee for similar
accounts, it being understood that the Trustee in its capacity as such shall not
have any responsibility for (a) ascertaining or taking action with respect to
calls, conversions, exchanges, maturities or other matters relative to any
Collateral, whether or not the Trustee has or is deemed to have knowledge of
such matters, (b) taking any necessary steps to preserve rights against any
parties with respect to any Collateral or (c) investing or reinvesting any of
the Collateral, provided, however, that nothing contained in this Pledge
Agreement shall relieve the Trustee of any responsibilities as a securities
intermediary under applicable law.
SECTION 10. Indemnity. The Pledgor shall indemnify, hold
harmless and defend the Trustee and its directors, officers, agents and
employees, from and against any and all claims, actions, obligations,
liabilities and expenses, including reasonable defense costs, reasonable
investigative fees and costs, and reasonable legal fees and damages arising from
the Trustee's performance as Trustee under this Pledge Agreement, except to the
extent that such claim, action, obligation, liability or expense is directly
attributable to the bad faith, negligence or wilful misconduct of such
indemnified person.
SECTION 11. Remedies upon Event of Default. If any Event of
Default under the Indenture or default hereunder (any such Event of Default or
default being referred to in this Pledge Agreement as an "Event of Default")
shall have occurred and be continuing:
(a) The Trustee and the Holders of the 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 Trustee, the Trustee may sell or cause the same to be
sold at any broker's board or at public or private sale, in one or more
sales or lots, at such price or prices as the Trustee reasonably 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 the
Pledgor. Unless any of the Collateral threatens, in the reasonable
judgment of the Trustee, to decline speedily in value or is or becomes
of a type sold on a recognized market, the Trustee will give
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the Pledgor 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 Pledgor as provided
in Section 14.1 hereof at least ten (10) business days before the time
of the sale or disposition. The Trustee 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 reasonable expenses (including 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.
(b) The Pledgor further agrees to use its best efforts to do
or cause to be done all such other acts as may be reasonably necessary
to make such sale or sales of all or any portion of the Collateral
pursuant to this Section 11 valid and binding and in compliance with
any and all other applicable requirements of law. The Pledgor further
agrees that a breach of any of the covenants contained in this Section
11 will cause irreparable injury to the Trustee and the Holders of the
Notes, that the Trustee and the Holders of the 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 11 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.
SECTION 12. Expenses. The Pledgor will upon demand pay to the
Trustee 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 Trustee, that the Trustee reasonably may
incur in connection with (a) the review, negotiation and 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 Trustee and the Holders of the Notes
hereunder or (d) the failure by the Pledgor to perform or observe any of the
provisions hereof.
SECTION 13. Security Interest Absolute. Except as otherwise
provided in Sections 4(c) and 4(d) hereof, all rights of the Trustee and the
Holders of the Notes and security interests hereunder, and all obligations of
the Pledgor hereunder, shall be absolute and unconditional irrespective of:
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(a) any lack of validity or enforceability of the Indenture or
any other agreement or instrument relating thereto;
(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
Indenture;
(c) any exchange, surrender, release or non-perfection of any
Liens on any other collateral for all or any of the Obligations; or
(d) to the extent permitted by applicable law, any other
circumstance which might otherwise constitute a defense available to,
or a discharge of, the Pledgor in respect of the Obligations or of this
Pledge Agreement.
SECTION 14. Miscellaneous Provisions.
Section 14.1. Notices. Any notice or communication given
hereunder shall be sufficiently given if in writing and delivered in person or
mailed by first class mail, commercial courier service or telecopier
communication, addressed as follows:
if to the Pledgor:
Teligent, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx, Esq.
with a copy to:
Skadden, Arps, Slate, Xxxxxxx and Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
if to the Trustee:
First Union National Bank
000 X. Xxxx Xxxxxx - 2nd Fl.
Xxxxxxxx, XX 00000
Fax: [(000) 000-0000]
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Attention: [Xxx Xxxxxxx]
Section 14.2. No Adverse Interpretation of Other Agreements.
This Pledge Agreement may not be used to interpret another pledge, security or
debt agreement of the Pledgor or any subsidiary thereof. No such pledge,
security or debt agreement (other than the Indenture) may be used to interpret
this Pledge Agreement.
Section 14.3. 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.
Section 14.4. 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.
Section 14.5. 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.
Section 14.6. 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 the Notes, any
benefit or any legal or equitable right, remedy or claim under this Pledge
Agreement.
Section 14.7. Amendments, Waivers and Consents. Any amendment
or waiver of any provision of this Pledge Agreement and any consent to any
departure by the Pledgor 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 neither 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 any of the terms and conditions hereof.
Failure of the Trustee or any Holder of Notes to exercise, or delay in
exercising, any right, power or privilege hereunder shall not preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by 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 Trustee 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.
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Section 14.8. Interpretation of Agreement. 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.
Section 14.9. Continuing Security Interest; Termination. (a)
This Pledge Agreement shall create a continuing security interest in and to the
Collateral and shall, unless otherwise provided in this Pledge Agreement, remain
in full force and effect until the earlier of the payment in full in cash of the
Obligations or the payment in full of the first scheduled interest payments on
the Notes. This Pledge Agreement shall be binding upon the Pledgor, its
successors, transferees and assigns, and shall inure, together with the rights
and remedies of the Trustee hereunder, to the benefit of the Trustee, the
Holders of the Notes and their respective successors, transferees and assigns.
(b) This Pledge Agreement (other than Pledgor's obligations
under Sections 10 and 12) shall terminate upon the payment in full in cash of
the Obligations. At such time, the Trustee shall, pursuant to an Issuer Order,
reassign and redeliver to the Pledgor all of the Collateral hereunder that has
not been sold, disposed of, retained or applied by the Trustee in accordance
with the terms of this Pledge Agreement and the Indenture, and take all actions
that are necessary to release the security interest created by this Pledge
Agreement in and to the Collateral, including the execution and delivery of all
termination statements necessary to terminate any financing or continuation
statements filed with respect to the Collateral. Such reassignment and
redelivery shall be without warranty by or recourse to the Trustee in its
capacity as such, except as to the absence of any Liens on the Collateral
created by or arising through the Trustee, and shall be at the reasonable
expense of the Pledgor.
Section 14.10. Survival of Representations and Covenants. All
representations, warranties and covenants of the Pledgor contained herein shall
survive the execution and delivery of this Pledge Agreement, and shall terminate
only upon the termination of this Pledge Agreement.
Section 14.11. Waivers. The Pledgor 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
the Pledgor might otherwise be entitled, except as otherwise expressly provided
herein or in the Indenture.
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Section 14.12. Authority of the Trustee. (a) The Trustee shall
have and be entitled to exercise all powers hereunder that are specifically
granted to the Trustee by the terms hereof, together with such powers as are
reasonably incident thereto. The Trustee 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 and to act in reasonable reliance upon the written
advice of counsel, a copy of which written advice will be delivered to the
Pledgor, concerning all such matters. Except as otherwise expressly provided in
this Pledge Agreement or the Indenture, neither the Trustee nor any director,
officer, employee, attorney or agent of the Trustee shall be liable to the
Pledgor for any action taken or omitted to be taken by the Trustee, in its
capacity as Trustee, hereunder, except for its own bad faith, negligence or
willful misconduct, and the Trustee shall not be responsible for the validity,
effectiveness or sufficiency hereof or of any document or security furnished
pursuant hereto. The Trustee and its directors, officers, employees, attorneys
and agents shall be entitled to rely on any communication, instrument or
document reasonably believed by it or them to be genuine and correct and to have
been signed or sent by the proper person or persons.
(b) The Pledgor acknowledges that the rights and
responsibilities of the Trustee under this Pledge Agreement with respect to any
action taken by the Trustee or the exercise or non-exercise by the Trustee 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 Trustee and the Holders of the Notes, be governed by the Indenture and by
such other agreements with respect thereto as may exist from time to time among
them, but, as between the Trustee and the Pledgor, the Trustee shall be
conclusively presumed to be acting as agent for the Holders of the Notes with
full and valid authority so to act or refrain from acting, and the Pledgor shall
not be obligated or entitled to make any inquiry respecting such authority.
Section 14.13. Final Expression. This Pledge Agreement,
together with the Indenture and 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.
Section 14.14. Rights of Holders of the Notes. No Holder of
Notes shall have any independent rights hereunder other than those rights
granted to individual Holders of the Notes pursuant to Section 508 of the
Indenture; provided that nothing in this subsection shall limit any rights
granted to the Trustee under the Notes or the Indenture.
Section 14.15. GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL; WAIVER OF DAMAGES. (a) 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
15
ESTABLISHED BETWEEN THE PLEDGOR, THE TRUSTEE AND THE HOLDERS OF THE NOTES IN
CONNECTION WITH THIS PLEDGE AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT,
EQUITY OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK. NOTWITHSTANDING THE FOREGOING: THE MATTERS IDENTIFIED IN 31 C.F.R.
PART 357, 61 FED. REG. 43626 (AUG. 23, 1996) INCLUDING REVISED ARTICLE 8, SHALL
BE GOVERNED SOLELY BY THE LAWS SPECIFIED THEREIN.
(b) THE PLEDGOR HAS APPOINTED [___________] AS ITS AGENT FOR
SERVICE OF PROCESS IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS PLEDGE
AGREEMENT AND FOR ACTIONS BROUGHT UNDER U.S. FEDERAL OR STATE SECURITIES LAWS
BROUGHT IN ANY FEDERAL OR STATE COURT LOCATED IN THE CITY OF NEW YORK AND AGREES
TO SUBMIT TO THE JURISDICTION OF ANY SUCH COURT.
(c) THE TRUSTEE HAS APPOINTED [___________] AS ITS AGENT FOR
SERVICE OF PROCESS IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS PLEDGE
AGREEMENT AND FOR ACTIONS BROUGHT UNDER U.S. FEDERAL OR STATE SECURITIES LAWS
BROUGHT IN ANY FEDERAL OR STATE COURT LOCATED IN THE CITY OF NEW YORK AND AGREES
TO SUBMIT TO THE JURISDICTION OF ANY SUCH COURT.
(d) THE PLEDGOR AGREES THAT THE TRUSTEE SHALL, IN ITS CAPACITY
AS TRUSTEE 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 THE PLEDGOR OR THE
COLLATERAL IN A COURT IN ANY LOCATION REASONABLY SELECTED IN GOOD FAITH (AND
HAVING PERSONAL OR IN REM JURISDICTION OVER THE PLEDGOR OR THE COLLATERAL, AS
THE CASE MAY BE) TO ENABLE THE TRUSTEE TO REALIZE ON SUCH COLLATERAL, OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE TRUSTEE. THE
PLEDGOR AGREES THAT IT WILL NOT ASSERT ANY COUNTERCLAIMS, SETOFFS OR CROSSCLAIMS
IN ANY PROCEEDING BROUGHT BY THE TRUSTEE TO REALIZE ON SUCH PROPERTY OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE TRUSTEE, EXCEPT FOR SUCH
COUNTERCLAIMS, SETOFFS OR CROSSCLAIMS WHICH, IF NOT ASSERTED IN ANY SUCH
PROCEEDING, COULD NOT OTHERWISE BE BROUGHT OR ASSERTED. THE PLEDGOR WAIVES ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN THE CITY OF NEW YORK
ONCE THE TRUSTEE 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.
16
(e) THE PLEDGOR AGREES THAT NEITHER ANY HOLDER OF NOTES NOR
(EXCEPT AS OTHERWISE PROVIDED IN THIS PLEDGE AGREEMENT OR THE INDENTURE) THE
TRUSTEE IN ITS CAPACITY AS TRUSTEE SHALL HAVE ANY LIABILITY TO THE PLEDGOR
(WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY THE
PLEDGOR 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 TRUSTEE 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 TRUSTEE OR SUCH
HOLDERS OF NOTES, AS THE CASE MAY BE, CONSTITUTING BAD FAITH, NEGLIGENCE OR
WILLFUL MISCONDUCT.
(f) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLEDGOR
WAIVES THE POSTING OF ANY BOND OTHERWISE REQUIRED OF THE TRUSTEE OR ANY HOLDER
OF NOTES IN CONNECTION WITH ANY JUDICIAL PROCESS OR PROCEEDING TO ENFORCE ANY
JUDGMENT OR OTHER COURT ORDER PERTAINING TO THIS PLEDGE AGREEMENT OR ANY RELATED
AGREEMENT OR DOCUMENT ENTERED IN FAVOR OF THE TRUSTEE OR ANY HOLDER OF NOTES, OR
TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER OR PRELIMINARY
OR PERMANENT INJUNCTION, THIS PLEDGE AGREEMENT OR ANY RELATED AGREEMENT OR
DOCUMENT BETWEEN THE PLEDGOR ON THE ONE HAND AND THE TRUSTEE AND/OR THE HOLDERS
OF THE NOTES ON THE OTHER HAND.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Pledgor and the Trustee have each
caused this Pledge Agreement to be duly executed and delivered as of the date
first above written.
Pledgor:
TELIGENT, INC.
By:
---------------------------------
Name:
Title:
Trustee:
FIRST UNION NATIONAL BANK,
as Trustee
By:
---------------------------------
Name:
Title:
EXHIBIT A
FIRST UNION NATIONAL BANK
OFFICER'S CERTIFICATE
Pursuant to Section 3(d) of the Collateral Pledge and Security
Agreement (the "Pledge Agreement") dated as of November [__], 1997 between
Teligent, Inc. (the "Pledgor") and First Union National Bank as trustee (the
"Trustee") for the holders of the Pledgor's [___]% Senior Notes due 2007, the
undersigned officer of the Trustee, on behalf of the Trustee, makes the
following certifications to the Pledgor, Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Salomon Brothers Inc, TD Securities (USA)
Inc. and Xxxxxxx, Xxxxx & Co. Capitalized terms used and not defined in this
Officer's Certificate have the meanings set forth or referred to in the Pledge
Agreement.
1. Substantially contemporaneously with the execution and
delivery of this Officer's Certificate, the Trustee has established with
[___________], as securities intermediary ("[___]"), a securities account in the
name of "First Union National Bank, as Trustee for the benefit of the holders of
the [____]% Senior Notes due 2007 of Teligent, Inc., Collateral Pledge Account,"
with respect to which the Trustee is the entitlement holder and through which
the Trustee has acquired a security entitlement to the United States Treasury
securities identified in Annex 1 to this Officer's Certificate (the "Pledged
Securities") and has made appropriate book entries in its records establishing
that the Pledged Securities and the Trustee's securities entitlement thereto
have been credited to and are held in the First Union National Bank's
Administrative Account No. [_____] entitled "First Union National Bank, as
Trustee for the benefit of the holders of the [___]% Senior Notes due 2007 of
Teligent, Inc., Collateral Pledge Account" (the "Pledge Account").
2. The Trustee has established and maintained and will
maintain the Pledge Account and all securities entitlements and other positions
carried in the Pledge Account solely in its capacity as Trustee and has not
asserted and will not assert any claim to or interest in the Pledge Account or
any such securities entitlements or other positions except in such capacity.
3. The Trustee has acquired its security entitlement to the
Pledged Securities for value and without notice of any adverse claim thereto.
Without limiting the generality of the foregoing, the Pledged Securities are not
and the Trustee's security entitlement to the Pledged Securities is not, to the
Trustee's knowledge, subject to any Lien granted by or to or arising through or
in favor of any securities intermediary (including, without limitation, [Name of
securities' intermediary] or the Federal Reserve Bank of New York) through which
the Trustee derives its security entitlement to the Pledged Securities.
4. The Trustee has not caused or permitted the Pledged
Securities or its security entitlement thereto to become subject to any Lien
created by or arising through the Trustee.
2
IN WITNESS WHEREOF, the undersigned officer has executed this
Officer's Certificate on behalf of First Union National Bank as Trustee this
______ day of November, 1997.
------------------------------
Name:
Title:
ANNEX 1
[Insert CUSIP numbers of Pledged Securities]
