EXHIBIT 10.15
CONFORMED AS EXECUTED
PLEDGE AGREEMENT
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PLEDGE AGREEMENT (as amended, modified or supplemented from time to
time, this "Agreement"), dated as of May 10, 1999, made by each of the
undersigned pledgors (each a "Pledgor" and, together with any other entity that
becomes a pledgor hereunder pursuant to Section 26 hereof, the "Pledgors") to
BANKERS TRUST COMPANY, as Collateral Agent together with any successor
Collateral Agent (the "Pledgee"), for the benefit of the Secured Creditors (as
defined below). Except as otherwise defined herein, capitalized terms used
herein and defined in the Credit Agreement (as defined below) shall be used
herein as therein defined.
W I T N E S S E T H :
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WHEREAS, IDT Corporation (the "Borrower"), the lenders from time to
time party thereto (the "Lenders"), Xxxxxx Commercial Paper Inc., as
Documentation Agent, CIBC World Markets Corp., as Syndication Agent, and Bankers
Trust Company, as Administrative Agent (together with any successor
Administrative Agent, the "Administrative Agent"), have entered into a Credit
Agreement, dated as of May 10, 1999 (as amended, modified or supplemented from
time to time, the "Credit Agreement"), providing for the making of Loans to, and
the issuance of Letters of Credit for the account of, the Borrower as
contemplated therein (the Lenders, the Administrative Agent, the Issuing Lender
and the Pledgee are herein called the "Lender Creditors");
WHEREAS, the Borrower may at any time and from time to time enter into
one or more Interest Rate Protection Agreements or Other Hedging Agreements with
one or more Lenders or any affiliate thereof (each such Lender or affiliate,
even if the respective Lender subsequently ceases to be a Lender under the
Credit Agreement for any reason, together with such Lender's or affiliate's
successors and assigns, if any, collectively, the "Other Creditors," and
together with the Lender Creditors, the "Secured Creditors");
WHEREAS, pursuant to the Subsidiaries Guaranty, each Subsidiary
Guarantor has jointly and severally guaranteed to the Secured Creditors the
payment when due of all Guaranteed Obligations as described therein;
WHEREAS, it is a condition to the making of Loans to, and the issuance
of Letters of Credit for the account of, the Borrower under the Credit Agreement
that each Pledgor shall have executed and delivered to the Pledgee this
Agreement; and
WHEREAS, each Pledgor desires to enter into this Agreement in order to
satisfy the condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Pledgor, the receipt and sufficiency of which are hereby
acknowledged, each Pledgor hereby makes the following representations and
warranties to the Pledgee for the benefit of the Secured Creditors and hereby
covenants and agrees with the Pledgee for the benefit of the Secured Creditors
as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each Pledgor
for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and indebtedness
(including, without limitation, indemnities, Fees and interest thereon) of
such Pledgor to the Lender Creditors, whether now existing or hereafter
incurred under, arising out of, or in connection with the Credit Agreement
and the other Credit Documents to which such Pledgor is a party (including
all such obligations and indebtedness of such Pledgor under the
Subsidiaries Guaranty) and the due performance and compliance by such
Pledgor with all of the terms, conditions and agreements contained in the
Credit Agreement and in such other Credit Documents (all such obligations
and liabilities under this clause (i), except to the extent consisting of
obligations or indebtedness with respect to Interest Rate Protection
Agreements or Other Hedging Agreements, being herein collectively called
the "Credit Document Obligations");
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and liabilities
owing by such Pledgor to the Other Creditors under, or with respect to
(including by reason of the Subsidiaries Guaranty), any Interest Rate
Protection Agreement or Other Hedging Agreement, whether such Interest Rate
Protection Agreement or Other Hedging Agreement is now in existence or
hereafter arising, and the due performance and compliance by such Pledgor
with all of the terms, conditions and agreements contained therein (all
such obligations and liabilities described in this clause (ii) being herein
collectively called the "Other Obligations");
(iii) any and all sums advanced by the Pledgee in order to preserve
the Collateral (as hereinafter defined) or preserve its security interest
in the Collateral;
(iv) in the event of any proceeding for the collection or enforcement
of any indebtedness, obligations or liabilities of such Pledgor referred to
in clauses (i), (ii) and (iii) above, after an Event of Default (which term
to mean and include any Event of Default under, and as defined in, the
Credit Agreement or any payment default by the Borrower under any Interest
Rate Protection Agreement or Other Hedging Agreement and shall, in any
event, include, without limitation, any payment default on any of the
Obligations (as hereinafter defined)) shall have occurred and be
continuing, the reasonable expenses of retaking, holding, preparing for
sale or lease, selling or otherwise disposing of or realizing on the
Collateral, or of any exercise by the Pledgee of its rights hereunder,
together with reasonable attorneys' fees and court costs; and
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(v) all amounts paid by any Secured Creditor as to which such Secured
Creditor has the right to reimbursement under Section 11 of this Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (v) of this Section 1 being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
2. DEFINITIONS. (a) Unless otherwise defined herein, all
capitalized terms used herein and defined in the Credit Agreement shall be used
herein as therein defined. Reference to singular terms shall include the plural
and vice versa.
(b) The following capitalized terms used herein shall have the
definitions specified below:
"Administrative Agent" has the meaning set forth in the Recitals
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hereto.
"Adverse Claim" has the meaning given such term in Section 8-102(a)(1)
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of the UCC.
"Agreement" has the meaning set forth in the first paragraph hereof.
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"Certificated Security" has the meaning given such term in Section 8-
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102(a)(4) of the UCC.
"Class" has the meaning set forth in Section 23 hereof.
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"Clearing Corporation" has the meaning given such term in Section 8-
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102(a)(5) of the UCC.
"Collateral" has the meaning set forth in Section 3.1 hereof.
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"Collateral Accounts" means any and all accounts established and
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maintained by the Pledgee in the name of any Pledgor to which Collateral may be
credited.
"Credit Agreement" has the meaning set forth in the Recitals hereto.
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"Credit Document Obligations" has the meaning set forth in Section 1
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hereof.
"Domestic Corporation" has the meaning set forth in the definition of
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"Stock."
"Event of Default" has the meaning set forth in Section 1 hereof.
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"Financial Asset" has the meaning given such term in Section 8-
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102(a)(9) of the UCC.
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"Foreign Corporation" has the meaning set forth in the definition of
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"Stock."
"Indemnitees" has the meaning set forth in Section 11 hereof.
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"Instrument" has the meaning given such term in Section 9-105(1)(i) of
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the UCC.
"Investment Property" has the meaning given such term in Section 9-
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115(f) of the UCC.
"Lender Creditors" has the meaning set forth in the Recitals hereto.
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"Lenders" has the meaning set forth in the Recitals hereto.
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"Limited Liability Company Assets" means all assets, whether tangible
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or intangible and whether real, personal or mixed (including, without
limitation, all limited liability company capital and interest in other limited
liability companies), at any time owned or represented by any Limited Liability
Company Interest.
"Limited Liability Company Interests" means the entire limited
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liability company membership interest at any time owned by any Pledgor in any
limited liability company.
"Non-Voting Stock" means all capital stock which is not Voting Stock.
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"Notes" means all promissory notes from time to time issued to, or
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held by, each Pledgor (including each Intercompany Note), but excluding those
notes evidencing the "Loans to Individuals" as set forth on Schedule X to the
Credit Agreement.
"Obligations" has the meaning set forth in Section 1 hereof.
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"Other Creditors" has the meaning set forth in the Recitals hereto.
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"Other Obligations" has the meaning set forth in Section 1 hereof.
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"Partnership Assets" means all assets, whether tangible or intangible
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and whether real, personal or mixed (including, without limitation, all
partnership capital and interest in other partnerships), at any time owned or
represented by any Partnership Interest.
"Partnership Interest" means the entire general partnership interest
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or limited partnership interest at any time owned by any Pledgor in any general
partnership or limited partnership.
"Pledged Notes" has the meaning set forth in Section 3.5 hereof.
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"Pledgee" has the meaning set forth in the first paragraph hereof.
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"Pledgor" has the meaning set forth in the first paragraph hereof.
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"Proceeds" has the meaning given such term in Section 9-306(l) of the
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UCC.
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"Required Lenders" has the meaning given such term in the Credit
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Agreement.
"Requisite Creditors" has the meaning set forth in Section 23 hereof.
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"Secured Creditors" has the meaning set forth in the Recitals hereto.
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"Secured Debt Agreements" has the meaning set forth in Section 5
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hereof.
"Securities Account" has the meaning given such term in Section 8-
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501(a) of the UCC.
"Securities Act" means the Securities Act of 1933, as amended, as in
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effect from time to time.
"Security" and "Securities" has the meaning given such term in Section
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8-102(a)(15) of the UCC and shall in any event also include all Stock and Notes.
"Security Entitlement" has the meaning given such term in Section 8-
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102(a)(17) of the UCC.
"Stock" means (x) with respect to corporations incorporated under the
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laws of the United States or any State or territory thereof (each a "Domestic
Corporation"), all of the issued and outstanding shares of capital stock of any
corporation at any time owned by any Pledgor of any Domestic Corporation and (y)
with respect to corporations not Domestic Corporations (each a "Foreign
Corporation"), all of the issued and outstanding shares of capital stock at any
time owned by any Pledgor of any Foreign Corporation.
"Termination Date" has the meaning set forth in Section 21 hereof.
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"UCC" means the Uniform Commercial Code as in effect in the State of
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New York from time to time; provided that all references herein to specific
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sections or subsections of the UCC are references to such sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect in
the State of New York on the date hereof.
"Uncertificated Security" has the meaning given such term in Section
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8-102(a)(18) of the UCC.
"Voting Stock" means all classes of capital stock of any Foreign
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Corporation entitled to vote.
3. PLEDGE OF SECURITIES, ETC.
3.1 Pledge. To secure the Obligations now or hereafter owed or to be
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performed by such Pledgor, each Pledgor does hereby grant, pledge and assign to
the Pledgee for the benefit of the Secured Creditors, and does hereby create a
continuing security interest in favor of the Pledgee for the benefit of the
Secured Creditors in, all of the right, title and interest in and to the
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following, whether now existing or hereafter from time to time acquired
(collectively, the "Collateral"):
(a) each of the Collateral Accounts, including any and all assets of
whatever type or kind deposited by such Pledgor in such Collateral Account,
whether now owned or hereafter acquired, existing or arising, including,
without limitation, all Financial Assets, Investment Property, moneys,
checks, drafts, Instruments, Securities or interests therein of any type or
nature deposited or required by the Credit Agreement or any other Secured
Debt Agreement to be deposited in such Collateral Account, and all
investments and all certificates and other Instruments (including
depository receipts, if any) from time to time representing or evidencing
the same, and all dividends, interest, distributions, cash and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the foregoing;
(b) all Securities owned by such Pledgor from time to time and all
options or warrants owned by such Pledgor from time to time to purchase
Securities;
(c) all Limited Liability Company Interests owned by such Pledgor from
time to time and all of its right, title and interest in each limited
liability company to which each such interest relates, whether now existing
or hereafter acquired, including, without limitation:
(A) all the capital thereof and its interest in all profits,
losses, Limited Liability Company Assets and other distributions to
which such Pledgor shall at any time be entitled in respect of such
Limited Liability Company Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Limited Liability Company Interests, whether under any
limited liability company agreement or otherwise, whether as
contractual obligations, damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
limited liability company agreement or operating agreement, or at law
or otherwise in respect of such Limited Liability Company Interests;
(D) all present and future claims, if any, of such Pledgor
against any such limited liability company for moneys loaned or
advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any limited liability
company agreement or operating agreement or at law to exercise and
enforce every right, power, remedy, authority, option and privilege of
such Pledgor relating to such Limited Liability Company Interests,
including any power to terminate, cancel or modify any limited
liability company agreement or operating agreement, to execute any
instruments and to take any and all other action on behalf of and in
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the name of any of such Pledgor in respect of such Limited Liability
Company Interests and any such limited liability company, to make
determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect or receipt for any of
the foregoing or for any Limited Liability Company Asset, to enforce
or execute any checks, or other instruments or orders, to file any
claims and to take any action in connection with any of the foregoing;
and
(F) all other property hereafter delivered in substitution for or
in addition to any of the foregoing, all certificates and instruments
representing or evidencing such other property and all cash,
securities, interest, dividends, rights and other property at any time
and from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all thereof;
(d) all Partnership Interests owned by such Pledgor from time to time
and all of its right, title and interest in each partnership to which each
such interest relates, whether now existing or hereafter acquired,
including, without limitation:
(A) all the capital thereof and its interest in all profits,
losses, Partnership Assets and other distributions to which such
Pledgor shall at any time be entitled in respect of such Partnership
Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Partnership Interests, whether under any partnership
agreement or otherwise, whether as contractual obligations, damages,
insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
partnership agreement or operating agreement, or at law or otherwise
in respect of such Partnership Interests;
(D) all present and future claims, if any, of such Pledgor
against any such partnership for moneys loaned or advanced, for
services rendered or otherwise;
(E) all of such Pledgor's rights under any partnership agreement
or operating agreement or at law to exercise and enforce every right,
power, remedy, authority, option and privilege of such Pledgor
relating to such Partnership Interests, including any power to
terminate, cancel or modify any partnership agreement or operating
agreement, to execute any instruments and to take any and all other
action on behalf of and in the name of any of such Pledgor in respect
of such Partnership Interests and any such partnership, to make
determinations, to exercise any election (including, but not limited
to, election of remedies) or option or to give or receive any notice,
consent, amendment, waiver or approval, together with full power and
authority to demand, receive, enforce, collect or receipt for
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any of the foregoing or for any Partnership Asset, to enforce or
execute any checks, or other instruments or orders, to file any claims
and to take any action in connection with any of the foregoing and
(F) all other property hereafter delivered in substitution for or
in addition to any of the foregoing, all certificates and instruments
representing or evidencing such other property and all cash,
securities, interest, dividends, rights and other property at any time
and from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all thereof;
(e) all Security Entitlements owned by such Pledgor from time to time
in any and all of the foregoing;
(f) all Financial Assets and Investment Property owned by such Pledgor
from time to time; and
(g) all Proceeds of any and all of the foregoing.
Notwithstanding anything to the contrary contained (A) in this Section
3.1, (x) except as otherwise provided in Section 8.18 of the Credit Agreement,
no Pledgor (to the extent that it is the Borrower or a Domestic Subsidiary of
the Borrower) shall be required at any time to pledge hereunder more than 65% of
the Voting Stock of any Foreign Corporation and (y) each Pledgor shall be
required to pledge hereunder 100% of any Non-Voting Stock at any time and from
time to time acquired by such Pledgor of any Foreign Corporation and (B) in this
Agreement, (x) those items of Collateral listed on Schedule XI to the Credit
Agreement are not required to be delivered to the Pledgee until 30 days after
the date hereof and (y) the Borrower shall have until 90 days after the date
hereof to take all actions as may have been requested by the Pledgee with
respect to the Pledged Stock of the Foreign Subsidiaries of the Borrower listed
on Annex B hereto (and all of the representations and warranties set forth
herein are modified accordingly until such items of Collateral have been so
delivered or such other actions have been taken), it being understood that the
requirement to deliver the Notes set forth in such Schedule XI is subject to the
terms of the proviso to clause (I) of Section 8.17(i) of the Credit Agreement.
3.2 Procedures. (a) To the extent that any Pledgor at any time or
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from time to time owns, acquires or obtains any right, title or interest in any
Collateral, such Collateral shall automatically (and without the taking of any
action by the respective Pledgor) be pledged pursuant to Section 3.1 of this
Agreement and, in addition thereto, such Pledgor shall (to the extent provided
below) take the following actions as set forth below (as promptly as practicable
and, in any event, within 10 days after it obtains such Collateral) for the
benefit of the Pledgee and the Secured Creditors:
(i) with respect to a Certificated Security (other than a
Certificated Security credited on the books of a Clearing Corporation), the
respective Pledgor shall deliver such Certificated Security to the Pledgee,
indorsed to the Pledgee or indorsed in blank;
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(ii) with respect to an Uncertificated Security (other than an
Uncertificated Security credited on the books of a Clearing Corporation),
the respective Pledgor shall cause the issuer of such Uncertificated
Security (or, in the case of an issuer that is not a Subsidiary of such
Pledgor, will use its best efforts to cause such issuer) to duly authorize
and execute, and deliver to the Pledgee, an agreement for the benefit of
the Pledgee and the Secured Creditors substantially in the form of Annex G
hereto (appropriately completed to the reasonable satisfaction of the
Pledgee and with such modifications, if any, as shall be reasonably
satisfactory to the Pledgee) pursuant to which such issuer agrees to comply
with any and all instructions originated by the Pledgee without further
consent by the registered owner and not to comply with instructions
regarding such Uncertificated Security (and any Partnership Interests and
Limited Liability Company Interests issued by such issuer) originated by
any other Person other than a court of competent jurisdiction;
(iii) with respect to a Certificated Security, Uncertificated
Security, Partnership Interest or Limited Liability Company Interest
credited on the books of a Clearing Corporation (including a Federal
Reserve Bank, Participants Trust Company or The Depository Trust Company),
the respective Pledgor shall promptly notify the Pledgee thereof and shall
promptly take all actions required (i) to comply with the applicable rules
of such Clearing Corporation and (ii) to perfect the security interest of
the Pledgee under applicable law (including, in any event, under Sections
9-115 (4)(a) and (b), 9-115 (1)(e) and 8-106 (d) of the UCC). The Pledgor
further agrees to take such actions as the Pledgee deems reasonably
necessary or desirable to effect the foregoing;
(iv) with respect to a Partnership Interest or a Limited Liability
Company Interest (other than (x) a Partnership Interest or Limited
Liability Interest credited on the books of a Clearing Corporation or (y) a
Limited Liability Company Interest of an Inactive Subsidiary to the extent
that same remains an "Inactive Subsidiary"), (1) if such Partnership
Interest or Limited Liability Company Interest is represented by a
certificate, the procedure set forth in Section 3.2(a)(i) hereof, and (2)
if such Partnership Interest or Limited Liability Company Interest is not
represented by a certificate, the procedure set forth in Section 3.2(a)(ii)
hereof;
(v) with respect to any Note, delivery of such Note to the Pledgee,
indorsed to the Pledgee or indorsed in blank; and
(vi) with respect to cash, (i) establishment by the Pledgee of a cash
account in the name of such Pledgor over which the Pledgee shall have
exclusive and absolute control and dominion (and no withdrawals or
transfers may be made therefrom by any Person except with the prior written
consent of the Pledgee) and (ii) deposit of such cash in such cash account.
(b) In addition to the actions required to be taken pursuant to
proceeding Section 3.2(a) hereof, each Pledgor shall take the following
additional actions with respect to the Securities and Collateral :
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(i) with respect to all Collateral of such Pledgor whereby or with
respect to which the Pledgee may obtain "control" thereof within the
meaning of Section 8-106 of the UCC (or under any provision of the UCC as
same may be amended or supplemented from time to time, or under the laws of
any relevant State other than the State of New York), the respective
Pledgor shall take all actions as may be reasonably requested from time to
time by the Pledgee so that "control" of such Collateral is obtained and at
all times held by the Pledgee; and
(ii) each Pledgor shall from time to time cause appropriate financing
statements (on Form UCC-1 or other appropriate form) under the Uniform
Commercial Code as in effect in the various relevant States, on form
covering all Collateral hereunder (with the form of such financing
statements to be satisfactory to the Pledgee), to be filed in the relevant
filing offices so that at all times the Pledgee has a security interest in
all Investment Property and other Collateral which is perfected by the
filing of such financing statements (in each case to the maximum extent
perfection by filing may be obtained under the laws of the relevant States,
including, without limitation, Section 9-115(4)(b) of the UCC).
3.3 Subsequently Acquired Collateral. If any Pledgor shall acquire
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(by purchase, stock dividend or otherwise) any additional Collateral at any time
or from time to time after the date hereof, such Collateral shall automatically
(and without any further action being required to be taken) be subject to the
pledge and security interests created pursuant to Section 3.1 hereof and,
furthermore, the Pledgor will promptly thereafter take (or cause to be taken)
all action with respect to such Collateral in accordance with the procedures set
forth in Section 3.2 hereof, and will promptly thereafter deliver to the Pledgee
(i) a certificate executed by a principal executive officer of such Pledgor
describing such Collateral and certifying that the same has been duly pledged in
favor of the Pledgee (for the benefit of the Secured Creditors) hereunder and
(ii) supplements to Annexes A through F hereto as are reasonably necessary to
cause such annexes to be complete and accurate at such time. Without limiting
the foregoing, each Pledgor shall be required to pledge hereunder any shares of
stock at any time and from time to time after the date hereof acquired by such
Pledgor of any Foreign Corporation, provided that (x) except as provided in
Section 8.18 of the Credit Agreement, no Pledgor (to the extent that it is the
Borrower or a Domestic Subsidiary of the Borrower) shall be required at any time
to pledge hereunder more than 65% of the Voting Stock of any Foreign Corporation
and (y) each Pledgor shall be required to pledge hereunder 100% of any Non-
Voting Stock at any time and from time to time acquired by such Pledgor of any
Foreign Corporation.
3.4 Transfer Taxes. Each pledge of Collateral under Section 3.1 or
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Section 3.3 hereof shall be accompanied by any transfer tax stamps required in
connection with the pledge of such Collateral.
3.5 Definition of Pledged Notes. All Notes at any time pledged or
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required to be pledged hereunder are hereinafter called the "Pledged Notes".
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3.6 Certain Representations and Warranties Regarding the Collateral.
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Each Pledgor represents and warrants that on the date hereof (i) each Subsidiary
of such Pledgor, and the direct ownership thereof, is listed in Annex A hereto;
(ii) the Stock (and any warrants or options to purchase Stock) held by such
Pledgor consists of the number and type of shares of the stock (or warrants or
options to purchase any stock) of the corporations as described in Annex B
hereto; (iii) such Stock constitutes that percentage of the issued and
outstanding capital stock of the issuing corporation as is set forth in Annex B
hereto; (iv) the Notes held by such Pledgor consist of the promissory notes
described in Annex C hereto where such Pledgor is listed as the lender; (v) the
Limited Liability Company Interests held by such Pledgor consist of the number
and type of interests of the Persons described in Annex D hereto; (vi) each such
Limited Liability Company Interest constitutes that percentage of the issued and
outstanding equity interest of the issuing Person as set forth in Annex D
hereto; (vii) the Partnership Interests held by such Pledgor consist of the
number and type of interests of the Persons described in Annex E hereto; (viii)
each such Partnership Interest constitutes that percentage or portion of the
entire partnership interest of the Partnership as set forth in Annex E hereto;
(ix) the Pledgor has complied with the respective procedure set forth in Section
3.2(a) hereof with respect to each item of Collateral described in Annexes A
through E hereto; and (x) on the date hereof, such Pledgor owns no other
Securities, Limited Liability Company Interests or Partnership Interests.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. If and to the
extent necessary to enable the Pledgee to perfect its security interest in any
of the Collateral or to exercise any of its remedies hereunder, the Pledgee
shall have the right to appoint one or more sub-agents for the purpose of
retaining physical possession of the Collateral, which may be held (in the
discretion of the Pledgee) in the name of the relevant Pledgor, endorsed or
assigned in blank or in favor of the Pledgee or any nominee or nominees of the
Pledgee or a sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until there
shall have occurred and be continuing an Event of Default, each Pledgor shall be
entitled to exercise any and all voting and other consensual rights pertaining
to the Collateral owned by it, and to give consents, waivers or ratifications in
respect thereof; provided, that, in each case, no vote shall be cast or any
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consent, waiver or ratification given or any action taken or omitted to be taken
which would violate or be inconsistent with any of the terms of this Agreement,
the Credit Agreement, any other Credit Document or any Interest Rate Protection
Agreement or Other Hedging Agreement (collectively, the "Secured Debt
Agreements"), or which would have the effect of impairing the value of the
Collateral or any part thereof in any material respect or the position or
interests of the Pledgee or any other Secured Creditor in the Collateral in any
material respect. All such rights of each Pledgor to vote and to give consents,
waivers and ratifications shall cease in case an Event of Default has occurred
and is continuing, and Section 7 hereof shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there shall
have occurred and be continuing an Event of Default, all cash dividends, cash
distributions, cash Proceeds and other cash amounts payable in respect of the
Collateral shall be paid to the
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respective Pledgor. The Pledgee shall be entitled to receive directly, and to
retain as part of the Collateral:
(i) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property (including, but not limited to, cash dividends other than as set
forth above) paid or distributed by way of dividend or otherwise in respect
of the Collateral;
(ii) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property (including, but not limited to, cash) paid or distributed in
respect of the Collateral by way of stock-split, spin-off, split-up,
reclassification, combination of shares or similar rearrangement; and
(iii) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other securities
or property (including, but not limited to, cash) which may be paid in
respect of the Collateral by reason of any consolidation, merger, exchange
of stock, conveyance of assets, liquidation or similar corporate
reorganization.
Nothing contained in this Section 6 shall limit or restrict in any way the
Pledgee's right to receive proceeds of the Collateral in any form in accordance
with Section 3 of this Agreement. All dividends, distributions or other
payments which are received by any Pledgor contrary to the provisions of this
Section 6 and Section 7 hereof shall be received in trust for the benefit of the
Pledgee, shall be segregated from other property or funds of such Pledgor and
shall be forthwith paid over to the Pledgee as Collateral in the same form as so
received (with any necessary endorsement).
7. REMEDIES IN CASE OF DEFAULT OR EVENT OF DEFAULT. If there shall
have occurred and be continuing an Event of Default, then and in every such
case, the Pledgee shall be entitled to exercise all of the rights, powers and
remedies (whether vested in it by this Agreement, any other Secured Debt
Agreement or by law) for the protection and enforcement of its rights in respect
of the Collateral, and the Pledgee shall be entitled to exercise all the rights
and remedies of a secured party under the Uniform Commercial Code as in effect
in any relevant jurisdiction and also shall be entitled, without limitation, to
exercise the following rights, which each Pledgor hereby agrees to be
commercially reasonable:
(i) to receive all amounts payable in respect of the Collateral
otherwise payable under Section 6 hereof to the respective Pledgor;
(ii) subject to receipt of any approvals required under the
Communications Act or the FCC Rules (as defined in the Security Agreement)
as provided in Section 19 hereof, to transfer all or any part of the
Collateral into the Pledgee's name or the name of its nominee or nominees;
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(iii) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to collect upon
any Pledged Note (including, without limitation, to make any demand for
payment thereon);
(iv) subject to receipt of any approvals required under the
Communications Act or the FCC Rules as provided in Section 19 hereof, to
vote all or any part of the Collateral (whether or not transferred into the
name of the Pledgee) and give all consents, waivers and ratifications in
respect of the Collateral and otherwise act with respect thereto as though
it were the outright owner thereof (each Pledgor hereby irrevocably
constituting and appointing the Pledgee the proxy and attorney-in-fact of
such Pledgor, with full power of substitution to do so);
(v) at any time and from time to time to sell, assign and deliver, or
grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the time or
place of sale or adjournment thereof or to redeem or otherwise (all of
which are hereby waived by each Pledgor), for cash, on credit or for other
property, for immediate or future delivery without any assumption of credit
risk, and for such price or prices and on such terms as the Pledgee in its
absolute discretion may determine, provided that at least 10 days' written
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notice of the time and place of any such sale shall be given to the
respective Pledgor. The Pledgee shall not be obligated to make any such
sale of Collateral regardless of whether any such notice of sale has
theretofore been given. Each Pledgor hereby waives and releases to the
fullest extent permitted by law any right or equity of redemption with
respect to the Collateral, whether before or after sale hereunder, and all
rights, if any, of marshalling the Collateral and any other security for
the Obligations or otherwise. At any such sale, unless prohibited by
applicable law, the Pledgee on behalf of the Secured Creditors may bid for
and purchase all or any part of the Collateral so sold free from any such
right or equity of redemption. Neither the Pledgee nor any other Secured
Creditor shall be liable for failure to collect or realize upon any or all
of the Collateral or for any delay in so doing nor shall any of them be
under any obligation to take any action whatsoever with regard thereto; and
(vi) to set-off any and all Collateral against any and all
Obligations, and to withdraw any and all cash or other Collateral from any
and all Collateral Accounts and to apply such cash and other Collateral to
the payment of any and all Obligations.
8. REMEDIES, ETC., CUMULATIVE. Each and every right, power and
remedy of the Pledgee provided for in this Agreement or in any other Secured
Debt Agreement, or now or hereafter existing at law or in equity or by statute
shall be cumulative and concurrent and shall be in addition to every other such
right, power or remedy. The exercise or beginning of the exercise by the Pledgee
or any other Secured Creditor of any one or more of the rights, powers or
remedies provided for in this Agreement or any other Secured Debt Agreement or
now or hereafter existing at law or in equity or by statute or otherwise shall
not preclude the simultaneous or later exercise by the Pledgee or any other
Secured Creditor of all such other rights, powers or remedies, and no failure or
delay on the part of the Pledgee or any other Secured Creditor to
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exercise any such right, power or remedy shall operate as a waiver thereof. No
notice to or demand on any Pledgor in any case shall entitle it to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of any of the rights of the Pledgee or any other Secured Creditor to any
other or further action in any circumstances without notice or demand. The
Secured Creditors agree that this Agreement may be enforced only by the action
of the Pledgee, in each case acting upon the instructions of the Required
Lenders (or, after the date on which all Credit Document Obligations have been
paid in full, the holders of at least the majority of the outstanding Other
Obligations) and that no other Secured Creditor shall have any right
individually to seek to enforce or to enforce this Agreement or to realize upon
the security to be granted hereby, it being understood and agreed that such
rights and remedies may be exercised by the Pledgee for the benefit of the
Secured Creditors upon the terms of this Agreement.
9. APPLICATION OF PROCEEDS. (a) All monies collected by the Pledgee
upon any sale or other disposition of the Collateral pursuant to the terms of
this Agreement, together with all other monies received by the Pledgee
hereunder, shall be applied in the manner provided in the Security Agreement.
(b) It is understood and agreed that the Pledgors shall remain jointly
and severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral hereunder and the aggregate amount of the
Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the
Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
11. INDEMNITY. Each Pledgor jointly and severally agrees (i) to
indemnify and hold harmless the Pledgee in such capacity and each other Secured
Creditor and their respective successors, assigns, employees, agents and
affiliates (individually an "Indemnitee," and collectively the "Indemnitees")
from and against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever kind or nature, and (ii) to
reimburse each Indemnitee for all reasonable costs and expenses, including
reasonable attorneys' fees, in each case growing out of or resulting from this
Agreement or the exercise by any Indemnitee of any right or remedy granted to it
hereunder or under any other Secured Debt Agreement (but excluding any claims,
demands, losses, judgments and liabilities or expenses to the extent incurred by
reason of gross negligence or willful misconduct of such Indemnitee). In no
event shall the Pledgee be liable, in the absence of gross negligence or willful
misconduct on its part, for any matter or thing in connection with this
Agreement other than to account for monies actually received by it in accordance
with the terms hereof. If and to the extent that the obligations of any Pledgor
under this Section 11 are unenforceable for any reason, such Pledgor
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hereby agrees to make the maximum contribution to the payment and satisfaction
of such obligations which is permissible under applicable law.
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER. (a)
Nothing herein shall be construed to make the Pledgee or any other Secured
Creditor liable as a member of any limited liability company or as a partner of
any partnership and neither the Pledgee nor any other Secured Creditor by virtue
of this Agreement or otherwise (except as referred to in the following sentence)
shall have any of the duties, obligations or liabilities of a member of any
limited liability company or partnership. The parties hereto expressly agree
that, unless the Pledgee shall become the absolute owner of Collateral
consisting of a Limited Liability Company Interest or Partnership Interest
pursuant hereto, this Agreement shall not be construed as creating a partnership
or joint venture among the Pledgee, any other Secured Creditor, any Pledgor
and/or any other Person.
(b) Except as provided in the last sentence of paragraph (a) of this
Section 12, the Pledgee, by accepting this Agreement, did not intend to become a
member of any limited liability company or a partner of any partnership or
otherwise be deemed to be a co-venturer with respect to any Pledgor, any limited
liability company, partnership and/or any other Person either before or after an
Event of Default shall have occurred. The Pledgee shall have only those powers
set forth herein and the Secured Creditors shall assume none of the duties,
obligations or liabilities of a member of any limited liability company or as a
partner of any partnership or any Pledgor except as provided in the last
sentence of paragraph (a) of this Section 12.
(c) The Pledgee and the other Secured Creditors shall not be obligated
to perform or discharge any obligation of any Pledgor as a result of the pledge
hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all the
rights, powers, privileges and authority so created, shall not at any time or in
any event obligate the Pledgee or any other Secured Creditor to appear in or
defend any action or proceeding relating to the Collateral to which it is not a
party, or to take any action hereunder or thereunder, or to expend any money or
incur any expenses or perform or discharge any obligation, duty or liability
under the Collateral.
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor agrees
that it will join with the Pledgee in executing and, at such Pledgor's own
expense, file and refile under the Uniform Commercial Code or other applicable
law such financing statements, continuation statements and other documents in
such offices as the Pledgee may deem reasonably necessary and wherever required
by law in order to perfect and preserve the Pledgee's security interest in the
Collateral and hereby authorizes the Pledgee to file financing statements and
amendments thereto relative to all or any part of the Collateral without the
signature of such Pledgor where permitted by law, and agrees to do such further
acts and things and to execute and deliver to the Pledgee such additional
conveyances, assignments, agreements and instruments as the Pledgee may
reasonably require or deem necessary to carry into effect the purposes of this
Agreement or to further assure and confirm unto the Pledgee its rights, powers
and remedies hereunder.
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(b) Subject to the Communications Act and the FCC Rules to the extent
applicable, each Pledgor hereby appoints the Pledgee such Pledgor's attorney-in-
fact, with full authority in the place and stead of such Pledgor and in the name
of such Pledgor or otherwise, to act from time to time solely after the
occurrence and during the continuance of an Event of Default in the Pledgee's
reasonable discretion to take any action and to execute any instrument which the
Pledgee may deem reasonably necessary or advisable to accomplish the purposes of
this Agreement.
(c) Each Pledgor agrees that, in the event of any change in any
requirement of law occurring after the date hereof that affects in any manner
the Pledgee's rights of access to, or use or sale of the FCC Licenses or the
procedures necessary to enable the Pledgee to obtain such rights of access, use
or sale (including, without limitation, changes allowing greater such access),
each Pledgor upon request of the Pledgee or the Required Lenders, shall enter
into an amendment to this Agreement in form and substance reasonably
satisfactory to the Pledgee to provide the Pledgee and the Secured Creditors
with such rights to the greatest extent possible consistent with then applicable
requirements of law, including without limitation the Communications Act and the
FCC Rules.
14. THE PLEDGEE AS AGENT. The Pledgee will hold in accordance with
this Agreement all items of the Collateral at any time received under this
Agreement. It is expressly understood and agreed by each Secured Creditor that
by accepting the benefits of this Agreement each such Secured Creditor
acknowledges and agrees that the obligations of the Pledgee as holder of the
Collateral and interests therein and with respect to the disposition thereof,
and otherwise under this Agreement, are only those expressly set forth in this
Agreement. The Pledgee shall act hereunder on the terms and conditions set
forth herein and in Section 12 of the Credit Agreement.
15. TRANSFER BY THE PLEDGORS. No Pledgor will sell or otherwise
dispose of, grant any option with respect to, or mortgage, pledge or otherwise
encumber any of the Collateral or any interest therein (except as may be
permitted in accordance with the terms of the Credit Agreement).
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS. (a)
Each Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of, and has good and
marketable title to, all Collateral consisting of one or more Securities
and that it has sufficient interest in all Collateral in which a security
interest is purported to be created hereunder for such security interest to
attach (subject, in each case, to no pledge, lien, mortgage, hypothecation,
security interest, charge, option, Adverse Claim or other encumbrance
whatsoever, except the liens and security interests created by this
Agreement);
(ii) it has full power, authority and legal right to pledge all the
Collateral pledged by it pursuant to this Agreement;
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(iii) this Agreement has been duly authorized, executed and
delivered by such Pledgor and constitutes a legal, valid and binding
obligation of such Pledgor enforceable against such Pledgor in accordance
with its terms, except to the extent that the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws generally affecting creditors' rights and by equitable
principles (regardless of whether enforcement is sought in equity or at
law);
(iv) except to the extent already obtained or made or as otherwise
provided in Section 7.04 of the Credit Agreement, no consent of any other
party (including, without limitation, any stockholder, partner, member or
creditor of such Pledgor or any of its Subsidiaries) and no consent,
license, permit, approval or authorization of, exemption by, notice or
report to, or registration, filing or declaration with, any governmental
authority is required to be obtained by such Pledgor in connection with (a)
the execution, delivery or performance of this Agreement, (b) the validity
or enforceability of this Agreement and the Communication Act and the FCC
Rules to the extent applicable, (c) the perfection or enforceability of the
Pledgee's security interest in the Collateral or (d) except for compliance
with or as may be required by applicable securities laws and the
Communication Act and the FCC Rules to the extent applicable , the exercise
by the Pledgee of any of its rights or remedies provided herein;
(v) the execution, delivery and performance of this Agreement will
not violate any provision of any applicable law or regulation or of any
order, judgment, writ, award or decree of any court, arbitrator or
governmental authority, domestic or foreign, applicable to such Pledgor, or
of the certificate of incorporation, operating agreement, limited liability
company agreement, partnership agreement or by-laws of such Pledgor or of
any securities issued by such Pledgor or any of its Subsidiaries, or of any
mortgage, deed of trust, indenture, lease, loan agreement, credit agreement
or other material contract, agreement or instrument or undertaking to which
such Pledgor or any of its Subsidiaries is a party or which purports to be
binding upon such Pledgor or any of its Subsidiaries or upon any of their
respective assets and will not result in the creation or imposition of (or
the obligation to create or impose) any lien or encumbrance on any of the
assets of such Pledgor or any of its Subsidiaries except as contemplated by
this Agreement;
(vi) all of the Collateral (consisting of Securities, Limited
Liability Company Interests or Partnership Interests) has been duly and
validly issued and acquired, is fully paid and non-assessable and is
subject to no options to purchase or similar rights;
(vii) each of the Pledged Notes constituting an Intercompany Note
constitutes, or when executed by the obligor thereof will constitute, the
legal, valid and binding obligation of such obligor, enforceable in
accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law); and
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(viii) the pledge and collateral assignment to, and possession by,
the Pledgee of the Collateral consisting of Certificated Securities and
Pledged Notes pursuant to this Agreement creates a valid and perfected
first priority security interest in such Certificated Securities and
Pledged Notes, and the proceeds thereof, subject to no prior Lien or
encumbrance or to any agreement purporting to grant to any third party a
Lien or encumbrance on the property or assets of such Pledgor which would
include the Securities and the Pledgee is entitled to all the rights,
priorities and benefits afforded by the UCC or other relevant law as
enacted in any relevant jurisdiction to perfect security interests in
respect of such Collateral; and
(ix) "control" (as defined in Section 8-106 of the UCC) has been
obtained by the Pledgee over all Collateral consisting of Securities
(including Notes which are Securities) with respect to which such "control"
may be obtained pursuant to Section 8-106 of the UCC.
(b) Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Securities and the
proceeds thereof against the claims and demands of all persons whomsoever; and
each Pledgor covenants and agrees that it will have like title to and right to
pledge any other property at any time hereafter pledged to the Pledgee as
Collateral hereunder and will likewise defend the right thereto and security
interest therein of the Pledgee and the other Secured Creditors.
(c) Each Pledgor covenants and agrees that it will take no action
which would violate any of the terms of any Secured Debt Agreement.
17. CHIEF EXECUTIVE OFFICE; RECORDS. The chief executive office of
each Pledgor is located at the address specified in Annex F hereto. Each
Pledgor will not move its chief executive office except to such new location as
such Pledgor may establish in accordance with the last sentence of this Section
17. The originals of all documents in the possession of such Pledgor evidencing
all Collateral, including but not limited to all Limited Liability Company
Interests and Partnership Interests, and the only original books of account and
records of such Pledgor relating thereto are, and will continue to be, kept at
such chief executive office as specified in Annex F hereto, or at such new
locations as such Pledgor may establish in accordance with the last sentence of
this Section 17. All Limited Liability Company Interests and Partnership
Interests are, and will continue to be, maintained at, and controlled and
directed (including, without limitation, for general accounting purposes) from,
such chief executive office as specified in Annex F hereto, or such new
locations as such Pledgor may establish in accordance with the last sentence of
this Section 17. No Pledgor shall establish a new location for such offices
until (i) it shall have given to the Pledgee not less than 15 days' prior
written notice of its intention so to do, clearly describing such new location
and providing such other information in connection therewith as the Pledgee may
reasonably request and (ii) with respect to such new location, it shall have
taken all action, satisfactory to the Pledgee, to maintain the security interest
of the Collateral Agent in the Collateral intended to be granted hereby at all
times fully perfected and in full force and effect. Promptly after establishing
a new location for such offices in accordance with the immediately preceding
sentence, the respective Pledgor shall
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deliver to the Pledgee a supplement to Annex F hereto so as to cause such Annex
F hereto to be complete and accurate.
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of each
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (i) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from any Secured Debt Agreement or any other instrument or agreement referred to
therein, or any assignment or transfer of any thereof; (ii) any waiver, consent,
extension, indulgence or other action or inaction under or in respect of any
such agreement or instrument including, without limitation, this Agreement;
(iii) any furnishing of any additional security to the Pledgee or its assignee
or any acceptance thereof or any release of any security by the Pledgee or its
assignee; (iv) any limitation on any party's liability or obligations under any
such instrument or agreement or any invalidity or unenforceability, in whole or
in part, of any such instrument or agreement or any term thereof; or (v) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Pledgor or any Subsidiary
of any Pledgor, or any action taken with respect to this Agreement by any
trustee or receiver, or by any court, in any such proceeding, whether or not
such Pledgor shall have notice or knowledge of any of the foregoing.
19. ACTIONS REQUIRING FCC APPROVAL. (a) Notwithstanding anything to
the contrary contained in this Agreement, or any of the documents executed
pursuant hereto, the Pledgee will not take any action pursuant to this
Agreement, or any such documents, which would constitute or result in any
assignment of any FCC License or any transfer of control of the holder of any
FCC License if such assignment of such License or such transfer of control would
require under then existing law (including the Communications Act or the FCC
Rules) the prior approval of the FCC, without first obtaining such approval. In
connection with this Section 19, the Pledgee shall be entitled to rely upon the
advice of FCC counsel of the Pledgee's choice with respect to such assignment or
transfer (including to determine whether any such assignment or transfer has
occurred or will occur and whether or not prior approval of the FCC is required)
whether or not the advice rendered is ultimately determined to have been
accurate.
(b) If an Event of Default shall have occurred and be continuing, the
relevant Pledgor shall take any action which the Pledgee may request in the
exercise of its rights and remedies under this Agreement in order to transfer or
assign the Collateral to the Pledgee or to such one or more third parties as the
Pledgee may designate, or to a combination of the foregoing. To enforce the
provisions of this Section 19, after an Event of Default shall have occurred and
be continuing, the Pledgee is empowered to request, and each Pledgor agrees to
authorize, the appointment of a receiver or trustee from any court of competent
jurisdiction. Such receiver or trustee shall be instructed to seek from the FCC
(and any other governmental authority) such consent or approval as may be
required by the Communications Act and the FCC Rules or other applicable law for
any assignment of the assets of or transfer of control of any or all of the FCC
Licenses or other Governmental Authorizations or of any Person whose stock,
partnership interests or other equity interest is subject to this Agreement to
the extent required for
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such trustee or receiver to assume such control for the purpose of seeking a
bona fide purchaser to whom such FCC Licenses and other Governmental
Authorizations will be assigned or control of such entity ultimately will be
transferred. Each Pledgor agrees, at such Pledgor's own cost and expense, to
cooperate with any such trustee or receiver, or at such trustee's or receiver's
direction, a bona-fide purchaser and with the Pledgee in the preparation,
execution and filing of any applications and other documents and providing any
information that may be reasonably necessary or helpful in obtaining the FCC's
consent to the assignment or transfer to such trustee or receiver, or at such
trustee's or receiver's direction, such purchaser of the Collateral or any of
the FCC Licenses. To the fullest extent permitted by applicable law, each
Pledgor hereby agrees to consent to and authorize any such transfer of control
upon the request of the Pledgee after the occurrence and during the continuation
of an Event of Default and, without limiting any rights of the Pledgee under
this Agreement, to authorize the Pledgee to nominate a trustee or receiver to
assume control of the Collateral, subject only to any required consents,
approvals or orders of courts of competent jurisdiction, the FCC or other
governmental authorities, for the purpose of effectuating the transactions
contemplated in this Section 19(b). Such trustee or receiver shall have all the
rights and powers as provided to it by law, court order or the Pledgee under
this Agreement. Each Pledgor shall cooperate fully and use its best efforts in
obtaining the consent of the FCC and the approval or consent of each other
governmental authority required to effectuate the foregoing.
(c) Each Pledgor shall use its best efforts to assist in obtaining
consent or approval of the FCC, any court and any other governmental authority,
if required, for any action or transactions contemplated by this Agreement,
including, without limitation, the preparation, execution and filing with the
FCC of the transferor's or assignor's portion of any application or applications
for consent to the transfer of control or assignment necessary or appropriate
under the FCC's policies, rules and regulations for approval of the transfer or
assignment of all or any portion of the Collateral.
(d) Each Pledgor hereby acknowledges and agrees that the FCC Licenses
are unique assets and that a violation of such Pledgor's covenant to cooperate
with respect to the obtainment of any regulatory consents would result in
irreparable harm to the Pledgee for which monetary damages are not readily
ascertainable. Each Pledgor further agrees that, because of the unique nature
of its undertakings in this Section 19, the same may be specifically enforced,
and such Pledgor hereby waives, and agrees to waive, any claim or defense that
the Pledgee would have an adequate remedy at law for the breach of such
undertakings and any requirement for the posting of bond or other certificate.
(e) Without limiting the obligations of any Pledgor hereunder in any
respect, each Pledgor further agrees that if such Pledgor, upon or after the
occurrence and during the continuance of an Event of Default, should fail or
refuse to execute any application or other document necessary or appropriate to
obtain any governmental consent necessary or appropriate for the exercise of any
right of the Pledgee hereunder, such Pledgor agrees that, to the full extent
permitted by the Communications Act and the FCC Rules, such application or other
document may be executed on such Pledgor's behalf by the clerk of any court or
other forum in any competent jurisdiction without notice to such Pledgor.
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(f) This Section 19 shall not limit any other rights or remedies of
the Pledgee or the other Secured Creditors available under applicable law
including, without limitation, the Communications Act and the FCC Rules.
20. REGISTRATION, ETC. (a) If there shall have occurred and be
continuing an Event of Default then, and in every such case, upon receipt by any
Pledgor from the Pledgee of a written request or requests that such Pledgor
cause any registration, qualification or compliance under any Federal or state
securities law or laws to be effected with respect to all or any part of the
Collateral consisting of Securities, Limited Liability Company Interests or
Partnership Interests, such Pledgor as soon as practicable and at its expense
will cause such registration to be effected (and be kept effective) and will
cause such qualification and compliance to be declared effected (and be kept
effective) as may be so requested and as would permit or facilitate the sale and
distribution of such Collateral, including, without limitation, registration
under the Securities Act, as then in effect (or any similar statute then in
effect), appropriate qualifications under applicable blue sky or other state
securities laws and appropriate compliance with any other government
requirements, provided, that the Pledgee shall furnish to such Pledgor such
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information regarding the Pledgee as such Pledgor may reasonably request in
writing and as shall be required in connection with any such registration,
qualification or compliance. Such Pledgor will cause the Pledgee to be kept
advised in writing as to the progress of each such registration, qualification
or compliance and as to the completion thereof, will furnish to the Pledgee such
number of prospectuses, offering circulars or other documents incident thereto
as the Pledgee from time to time may reasonably request, and will indemnify the
Pledgee, each other Secured Creditor and all others participating in the
distribution of such Collateral against all claims, losses, damages and
liabilities caused by any untrue statement (or alleged untrue statement) of a
material fact contained therein (or in any related registration statement,
notification or the like) or by any omission (or alleged omission) to state
therein (or in any related registration statement, notification or the like) a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same may have been caused by an
untrue statement or omission based upon information furnished in writing to such
Pledgor by the Pledgee or such other Secured Creditor expressly for use therein.
(b) If at any time when the Pledgee shall determine to exercise its
right to sell all or any part of the Collateral consisting of Securities,
Limited Liability Company Interests or Partnership Interests pursuant to Section
7 hereof, and the Collateral or the part thereof to be sold shall not, for any
reason whatsoever, be effectively registered under the Securities Act, as then
in effect, the Pledgee may, in its sole and absolute discretion, sell such
Collateral, as the case may be, or part thereof by private sale in such manner
and under such circumstances as the Pledgee may deem necessary or advisable in
order that such sale may legally be effected without such registration. Without
limiting the generality of the foregoing, in any such event the Pledgee, in its
sole and absolute discretion (i) may proceed to make such private sale
notwithstanding that a registration statement for the purpose of registering
such Collateral or part thereof shall have been filed under such Securities Act,
(ii) may approach and negotiate with a single possible purchaser to effect such
sale, and (iii) may restrict such sale to a purchaser who will represent and
agree that such purchaser is purchasing for its own account, for investment, and
not with a view to the distribution or sale of such Collateral or part thereof.
In the event of any such sale,
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the Pledgee shall incur no responsibility or liability for selling all or any
part of the Collateral at a price which the Pledgee, in its sole and absolute
discretion, in good xxxxx xxxxx reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might be
realized if the sale were deferred until after registration as aforesaid.
21. TERMINATION; RELEASE. (a) After the Termination Date, this
Agreement and the security interest created hereby shall terminate (provided
that all indemnities set forth herein including, without limitation, in Section
11 hereof shall survive any such termination), and the Pledgee, at the request
and expense of any Pledgor, will execute and deliver to such Pledgor a proper
instrument or instruments acknowledging the satisfaction and termination of this
Agreement, and will duly assign, transfer and deliver to such Pledgor (without
recourse and without any representation or warranty) such of the Collateral as
has not theretofore been sold or otherwise applied or released pursuant to this
Agreement, together with any monies at the time held by the Pledgee or any of
its sub-agents hereunder. As used in this Agreement, "Termination Date" shall
mean the date upon which the Total Commitment and all Interest Rate Protection
Agreements and Other Hedging Agreements have been terminated, no Note under the
Credit Agreement is outstanding (and all Loans have been repaid in full), all
Letters of Credit have been terminated and all Obligations then due and payable
have been paid in full.
(b) In the event that any part of the Collateral is sold in connection
with a sale permitted by Section 9.02 of the Credit Agreement (other than a sale
to any Pledgor or any Subsidiary thereof) or is otherwise released at the
direction of the Required Lenders (or all Lenders if required by Section 13.12
of the Credit Agreement) and the proceeds of such sale or sales or from such
release are applied in accordance with the provisions of the Credit Agreement,
to the extent required to be so applied, the Pledgee, at the request and expense
of any Pledgor, will duly assign, transfer and deliver to such Pledgor (without
recourse and without any representation or warranty) such of the Collateral (and
releases therefor) as is then being (or has been) so sold or released and has
not theretofore been released pursuant to this Agreement.
(c) At any time that a Pledgor desires that the Pledgee assign,
transfer and deliver Collateral (and releases therefor) as provided in Section
21(a) or (b) hereof, it shall deliver to the Pledgee a certificate signed by a
senior officer of such Pledgor stating that the release of the respective
Collateral is permitted pursuant to such Section 21(a) or (b).
(d) The Pledgee shall have no liability whatsoever to any other
Secured Creditor as the result of any release of Collateral by it in accordance
with this Section 21.
22. NOTICES, ETC. All such notices and communications hereunder
shall be sent or delivered by mail, telegraph, telex, telecopy, cable or
overnight courier service and all such notices and communications shall, when
mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight
courier, be effective when deposited in the mails, delivered to the telegraph
company, cable company or overnight courier, as the case may be, or sent by
telex or telecopier and when mailed shall be effective three Business Days
following deposit in the mail with proper postage, except that notices and
communications to the Pledgee or any Pledgor shall not be
22
effective until received by the Pledgee or such Pledgor, as the case may be. All
notices and other communications shall be in writing and addressed as follows:
(a) if to any Pledgor, at:
c/o IDT Corporation
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Financial Officer
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(b) if to the Pledgee, at:
Bankers Trust Company
One Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000;
(c) if to any Lender Creditor, either (x) to the Administrative Agent,
at the address of the Administrative Agent specified in the Credit Agreement or
(y) at such address as such Lender Creditor shall have specified in the Credit
Agreement;
(d) if to any Other Creditor at such address as such Other Creditor
shall have specified in writing to the Pledgors and the Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
23. WAIVER; AMENDMENT. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by each Pledgor directly affected thereby and the
Pledgee (with the written consent of either (x) the Required Lenders (or all of
the Lenders to the extent required by Section 13.12 of the Credit Agreement) at
all times prior to the time on which all Credit Document Obligations have been
paid in full or (y) the holders of at least a majority of the outstanding Other
Obligations at all times after the time on which all Credit Document Obligations
have been paid in full); provided, that any change, waiver, modification or
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variance affecting the rights and benefits of a single Class (as defined below)
of Secured Creditors (and not all Secured Creditors in a like or similar manner)
shall also require the written consent of the Requisite Creditors (as defined
below) of such affected Class. For the purpose of this Agreement, the term
"Class" shall mean each class of Secured Creditors, i.e., whether (i) the Lender
----
Creditors as holders of the Credit Document Obligations or (ii) the Other
Creditors as the holders of the Other Obligations. For the purpose of this
Agreement, the term "Requisite Creditors" of any Class shall mean each
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of (i) with respect to the Credit Document Obligations, the Required Lenders and
(ii) with respect to the Other Obligations, the holders of at least a majority
of all obligations outstanding from time to time under the Interest Rate
Protection Agreements and Other Hedging Agreements.
24. MISCELLANEOUS. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of and be enforceable by each of the parties hereto and its successors
and assigns, provided that no Pledgor may assign any of its rights or
obligations under this Agreement without the prior consent of the Collateral
Agent. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. EACH PLEDGOR
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. The headings in this Agreement are for purposes of
reference only and shall not limit or define the meaning hereof. This Agreement
may be executed in any number of counterparts, each of which shall be an
original, but all of which shall constitute one instrument. In the event that
any provision of this Agreement shall prove to be invalid or unenforceable, such
provision shall be deemed to be severable from the other provisions of this
Agreement which shall remain binding on all parties hereto.
25. RECOURSE. This Agreement is made with full recourse to the
Pledgors and pursuant to and upon all the representations, warranties, covenants
and agreements on the part of the Pledgors contained herein and in the other
Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
26. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of the Borrower that is required to execute a counterpart of this
Agreement after the date hereof pursuant to the Credit Agreement shall become a
Pledgor hereunder by executing a counterpart hereof and delivering the same to
the Pledgee.
* * * *
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IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
IDT CORPORATION,
as a Pledgor
By /s/ Xxxxx X. Xxxxx
------------------
Title: Secretary
IDT INTERNATIONAL, CORP., as a Pledgor
By /s/ Xxxxx X. Xxxxx
------------------
Title: Secretary
IDT INTERNET SERVICES, INC., as a Pledgor
By /s/ Xxxxx X. Xxxxx
------------------
Title: Secretary
MEDIA RESPONSE, INC., as a Pledgor
By /s/ Xxxxx X. Xxxxx
------------------
Title: Secretary
YOVELLE RENAISSANCE CORPORATION, as a Pledgor
By /s/ Xxxxx X. Xxxxx
-------------------
Title: Secretary
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NUESTRA VOZ DIRECT INC., as a Pledgor
By /s/ Xxxxx X. Xxxxx
------------------
Title: Secretary
000 XXX XX XXXX, XXX., as a Pledgor
By /s/ Xxxxx X. Xxxxx
------------------
Title: Secretary
DIPCHIP CORP., as a Pledgor
By /s/ Xxxxx X. Xxxxx
------------------
Title: Secretary
INTEREXCHANGE, INC., as a Pledgor
By /s/ Xxxxxxxx X. Xxxxx
---------------------
Title: Secretary
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Collateral Agent, Pledgee
By /s/ Xxxxxxxx Xxxxx
------------------
Title: Principal
26
