Exhibit
10.2
EXECUTION VERSION
COLLATERAL
AGREEMENT
made
by
CHARTER
COMMUNICATIONS OPERATING, LLC
and the
other Grantors party hereto
in favor
of
WILMINGTON
TRUST COMPANY,
as
Trustee
Dated as
of March 19, 2008
TABLE OF
CONTENTS
Page
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SECTION 1. DEFINED TERMS
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1 |
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1.1 |
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Definitions
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1 |
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1.2 |
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Other Definitional
Provisions
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6 |
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SECTION 2. FIRST LIEN CREDITORS; DELIVERY OF
COLLATERAL
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7 |
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2.1 |
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Indenture
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7 |
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2.2 |
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Delivery of Collateral
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7 |
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SECTION 3. GRANT OF SECURITY
INTEREST
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7 |
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3.1 |
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Collateral
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7 |
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SECTION 4. CERTIFICATED
INTERESTS
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8 |
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4.1 |
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Pledged Partnership
Interests
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8 |
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4.2 |
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Pledged LLC Interests
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8 |
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SECTION 5. REPRESENTATIONS AND
WARRANTIES
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8 |
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5.1 |
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Title; No Other Liens
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8 |
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5.2 |
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Perfected Liens
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8 |
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5.3 |
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Jurisdiction of
Organization
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9 |
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5.4 |
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Pledged Securities
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9 |
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SECTION 6. COVENANTS
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9 |
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6.1 |
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Delivery of Instruments, Certificated Securities
and Chattel Paper
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9 |
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6.2 |
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Insurance
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10 |
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6.3 |
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Maintenance of Perfected Security Interest;
Further Documentation
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10 |
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6.4 |
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Changes in Locations, Name,
etc.
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10 |
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6.5 |
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Pledged Securities
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10 |
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SECTION 7. REMEDIAL
PROVISIONS
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12 |
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7.1 |
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Investment Property
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12 |
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7.2 |
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Proceeds To Be Turned Over to
Trustee
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12 |
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7.3 |
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Application of Proceeds
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13 |
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7.4 |
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Code and Other Remedies
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13 |
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7.5 |
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Registration Rights
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14 |
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7.6 |
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Deficiency
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15 |
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7.7 |
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Certain Matters Relating to Pledged
Receivables
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15 |
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7.8 |
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Communications with Obligors; Grantors Remain
Liable
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15 |
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7.9 |
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Silo Credit Agreements, etc
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16 |
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7.1 |
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Permitted Payments, etc.
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16 |
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SECTION 8. THE TRUSTEE
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16 |
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8.1 |
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Trustee’s Appointment as Attorney-in-Fact,
etc.
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16 |
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8.2 |
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Duty of Trustee
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18 |
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8.3 |
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Financing Statements
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18 |
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8.4 |
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Authority of Trustee
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18 |
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SECTION 9. MISCELLANEOUS
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19 |
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9.1 |
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Amendments in Writing
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19 |
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9.2 |
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Notices
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19 |
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9.3 |
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No Waiver by Course of Conduct; Cumulative
Remedies
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19 |
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9.4 |
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Enforcement Expenses;
Indemnification
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19 |
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9.5 |
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Successors and Assigns
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20 |
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9.6 |
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Counterparts
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20 |
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9.7 |
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Severability
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20 |
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9.8 |
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Governmental Approvals
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20 |
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9.9 |
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Section Headings
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22 |
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9.1 |
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Integration
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22 |
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9.11 |
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GOVERNING LAW
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22 |
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9.12 |
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Submission to Jurisdiction;
Waivers
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22 |
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9.13 |
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Acknowledgments
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23 |
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9.14 |
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Additional Grantors;
Release
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23 |
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9.15 |
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WAIVER OF JURY TRIAL
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23 |
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SCHEDULES
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Schedule
1
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Pledged
Securities
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Schedule
2
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Perfection
Matters
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Schedule
3
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Jurisdictions
of Organization
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| Schedule
4 |
Intellectual
Property |
ANNEXES
Annex
1 Form
of Assumption Agreement
COLLATERAL
AGREEMENT
COLLATERAL
AGREEMENT, dated as of March 19, 2008, made by CHARTER COMMUNICATIONS OPERATING,
LLC (the “Company”), CHARTER
COMMUNICATIONS OPERATING CAPITAL CORP. (“Capital Corp.”), CCO
HOLDINGS LLC (“CCOH”) and each of
the Restricted Subsidiaries of the Company party hereto (the “Subsidiary Grantors”
and, together with the Company, Capital Corp. and CCOH, collectively, the “Grantors”, and
individually, a “Grantor”), in favor
of WILMINGTON TRUST COMPANY, as Trustee (in such capacity, the “Trustee”), for the
record holders (the “Holders”) from time
to time of the Notes (as defined below) pursuant to the Indenture, dated as of
the date hereof (as amended, supplemented or otherwise modified from time to
time, the “Indenture”), among
the Company, Capital Corp., the several guarantors party thereto and the
Trustee.
W I T N E S S E T
H:
WHEREAS,
the Company and Capital Corp. have issued 10 7/8 % Senior
Second Lien Notes due 2014 pursuant to the Indenture (the “Initial Notes”) and
may hereafter issue Additional Notes (as defined in the Indenture, collectively,
the “Notes”);
and
WHEREAS,
it is a condition precedent to the purchase of Initial Notes by the initial
purchasers thereof that the Grantors shall have executed and delivered this
Agreement to the Trustee for the ratable benefit of the Holders.
NOW,
THEREFORE, in consideration of the above premises, the parties hereto hereby
agree as follows:
SECTION
1. DEFINED
TERMS
1.1 Definitions. (a) Unless
otherwise defined herein, terms defined in the Indenture and used herein shall
have the meanings given to them in the Indenture, and the following terms are
used herein as defined in the Applicable UCC: Accounts, Certificated
Security, Chattel Paper, Documents, Equipment, Fixtures, General Intangibles,
Instruments, Inventory, Letter-of-Credit Rights and Supporting
Obligations.
(b) The
following terms shall have the following meanings:
“Additional
Collateral”: all of the following property of the Company and
the Subsidiary Grantors, to the extent that a security interest in such property
can be perfected by the filing of a Uniform Commercial Code financing statement:
all Accounts, all Chattel Paper, all Documents, all Equipment, all Fixtures, all
General Intangibles, all Instruments, all Intellectual Property, all Inventory,
all Investment Property and all other property not otherwise described in this
definition.
“Agreement”: this
Collateral Agreement, as the same may be amended, supplemented, restated or
otherwise modified from time to time.
“Applicable
UCC”: the Uniform Commercial Code as from time to time in
effect in the State of Delaware, subject to Section 9.11.
“CATV
Franchise”: as defined in the CCO Credit Facility as in effect
on the date hereof.
“CATV
System”: as defined in the CCO Credit Facility as in effect on
the date hereof.
“CCH”: Charter
Communications Holdings, LLC, a Delaware limited liability company, together
with its successors.
“Charter
Group”: as defined in the CCO Credit Facility as in effect on
the date hereof.
“Collateral”: as
defined in Section 3.1.
“Collateral
Account”: any collateral account established by the Trustee as
provided in Section 7.2.
“FCC”: the
Federal Communications Commission and any successor thereto.
“FCC
License”: any community antenna relay service, broadcast
auxiliary license, earth station registration, business radio, microwave or
special safety radio service license issued by the FCC pursuant to the
Communications Act of 1934, as amended.
“Foreign
Subsidiary”: any Subsidiary organized under the laws of any
jurisdiction outside the United States of America.
“Foreign Subsidiary Voting
Equity Interests”: the voting Equity Interests of any Foreign
Subsidiary.
“Grantor”: as
defined in the preamble.
“Governmental
Authority”: any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance
Commissioners).
“Indenture
Documents”: the Indenture, the Notes, this Agreement, or any
other document made, delivered or given in connection with any of the
foregoing.
“Intellectual
Property”: the collective reference to all rights, priorities
and privileges in and to the Patents, the Patent Licenses, the Trademarks and
the Trademark Licenses, and all rights to sue at law or in equity for any
infringement or other impairment
thereof,
in each case, whether arising under United States, multinational or foreign laws
or otherwise, including the right to receive all proceeds and damages
therefrom.
“Intercompany
Obligations”: all obligations, whether constituting General
Intangibles or otherwise, owing to the Company or any Subsidiary Grantor by any
Affiliate of the Company or such Subsidiary Grantor, and with respect to CCOH,
all obligations, whether constituting General Intangibles or otherwise, owing to
CCOH by the Company or any of its Subsidiaries.
“Investment
Property”: the collective reference to (i) all “investment
property” as such term is defined in Section 9-102(a)(49) of the Applicable
UCC (other than any Foreign Subsidiary Voting Stock excluded from the definition
of “Pledged Stock”) and (ii) whether or not constituting “investment property”
as so defined, all Pledged Notes and all Pledged Stock.
“Issuers”: the
collective reference to each issuer of any Pledged Securities.
“License”: as
to any Person, any license, permit, certificate of need, authorization,
certification, accreditation, franchise, approval, or grant of rights by any
Governmental Authority or other Person necessary or appropriate for such Person
to own, maintain, or operate its business or property, including FCC
Licenses.
“Non-Recourse
Subsidiary” as defined in the CCO Credit Facility as in effect on the
date hereof.
“Obligations”: the
collective reference to the unpaid principal of and interest on the Notes and
all other obligations and liabilities of the Company (including any increase in
the aggregate principal amount of the Notes together with any interest accruing
at then applicable rate provided in the Indenture or the Notes after the
maturity of the Notes and interest accruing at then applicable rate provided in
the Indenture after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Company, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) to the Trustee or any Holder, whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, the
Indenture, this Agreement, or any other document made, delivered or given in
connection with any of the foregoing, in each case whether on account of
principal, interest, fees, indemnities, costs, expenses or otherwise (including
all fees and disbursements of counsel that are required to be paid by the
Company pursuant to the terms of any of the foregoing agreements).
“Patents”: (i) all
letters patent of the United States, any other country or any political
subdivision thereof, all reissues and extensions thereof and all goodwill
associated therewith, including any of the foregoing referred to in Schedule 4,
(ii) all applications for letters patent of the United States or any other
country and all divisions, continuations and continuations-in-part thereof,
including any of the foregoing referred to in Schedule 4, and
(iii) all rights to obtain any reissues or extensions of the
foregoing.
“Patent
License”: all agreements, whether written or oral, providing
for the grant by or to any Grantor of any right to manufacture, use or sell any
invention covered in whole or in part by a Patent, including any of the
foregoing referred to in Schedule 4 (it being
understood that oral agreements are not required to be listed in Schedule
4).
“Pledged LLC
Interests”: in each case, whether now existing or hereafter acquired, all
of a Grantor’s right, title and interest in and to:
(i) any
Issuer (other than any Non-Recourse Subsidiary) that is a limited liability
company, but not any of such Grantor’s obligations from time to time as a holder
of interests in any such Issuer (unless the Trustee or its designee, on behalf
of the Trustee, shall elect to become a holder of interests in any such Issuer
in connection with its exercise of remedies pursuant to the terms
hereof);
(ii) any and
all moneys due and to become due to such Grantor now or in the future by way of
a distribution made to such Grantor in its capacity as a holder of interests in
any such Issuer or otherwise in respect of such Grantor’s interest as a holder
of interests in any such Issuer;
(iii) any other
property of any such Issuer to which such Grantor now or in the future may be
entitled in respect of its interests in any such Issuer by way of distribution,
return of capital or otherwise;
(iv) any other
claim or right which such Grantor now has or may in the future acquire in
respect of its interests in any such Issuer;
(v) the
organizational documents of any such Issuer;
(vi) all
certificates, options or rights of any nature whatsoever that may be issued or
granted by any such Issuer to such Grantor while this Agreement is in effect;
and
(vii) to the
extent not otherwise included, all Proceeds of any or all of the
foregoing.
“Pledged
Notes”: with respect to the Company and the Subsidiary
Grantors, any promissory note evidencing loans made by any Grantor to any member
of the Charter Group, and with respect to CCOH, any promissory note evidencing
loans made by CCOH to the Company or any of its Subsidiaries, including, in each
case, all promissory notes listed on Schedule
1.
“Pledged Partnership
Interests”: in each case, whether now existing or hereafter
acquired, all of a Grantor’s right, title and interest in and to:
(i) any
Issuer (other than any Non-Recourse Subsidiary) that is a partnership, but not
any of such Grantor’s obligations from time to time as a general or limited
partner, as the case may be, in any such Issuer (unless the Trustee or its
designee, on behalf of the Trustee, shall elect to become a general or limited
partner, as the case may
be, in
any such Issuer in connection with its exercise of remedies pursuant to the
terms hereof);
(ii) any and
all moneys due and to become due to such Grantor now or in the future by way of
a distribution made to such Grantor in its capacity as a general partner or
limited partner, as the case may be, in any such Issuer or otherwise in respect
of such Grantor’s interest as a general partner or limited partner, as the case
may be, in any such Issuer;
(iii) any other
property of any such Issuer to which such Grantor now or in the future may be
entitled in respect of its interests as a general partner or limited partner, as
the case may be, in any such Issuer by way of distribution, return of capital or
otherwise;
(iv) any other
claim or right which such Grantor now has or may in the future acquire in
respect of its general or limited partnership interests in any such
Issuer;
(v) the
partnership agreement or other organizational documents of any such
Issuer;
(vi) all
certificates, options or rights of any nature whatsoever that may be issued or
granted by any such Issuer to such Grantor while this Agreement is in effect;
and
(vii) to the
extent not otherwise included, all Proceeds of any or all of the
foregoing.
“Pledged
Receivables”: the collective reference to all Receivables
pledged by any Grantor as Collateral.
“Pledged
Securities”: the collective reference to the Pledged Notes and
the Pledged Stock, together with the Proceeds thereof.
“Pledged
Stock”: the Equity Interests listed on Schedule 1, together
with any other shares, stock certificates, options, interests or rights of any
nature whatsoever in respect of the Equity Interests (i) with respect to
the Company or any Subsidiary Grantor, of any Person (other than any
Non-Recourse Subsidiary) that may be issued or granted to, or held by, the
Company or any Subsidiary Grantor, and (ii) with respect to CCOH, of the
Company or any of its Subsidiaries, in each case while this Agreement is in
effect including, in any event, the Pledged LLC Interests and Pledged
Partnership Interests.
“Proceeds”: all
“proceeds” as such term is defined in Section 9-102(a)(64) of the
Applicable UCC and, in any event, shall include all dividends, distributions or
other income from the Pledged Securities and Investment Property, collections
thereon or distributions or payments with respect thereto.
“Receivable”: any
right to payment for goods sold or leased or for services rendered, whether or
not such right is evidenced by an Instrument or Chattel Paper and whether or not
it has been earned by performance (including any Account).
“Requirement of
Law”: as to any Person, the certificate of incorporation and
by-laws or other organizational or governing documents of such Person, and any
law, treaty, rule or regulation or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is
subject.
“Securities
Act”: the Securities Act of 1933, as amended.
“Silo Credit
Agreement” as defined in the CCO Credit Facility.
“Silo Collateral
Agreement” as defined in the CCO Credit Facility.
“Trademarks”: (i)
all trademarks, trade names, corporate names, company names, business names,
fictitious business names, trade styles, service marks, logos and other source
or business identifiers, and all goodwill associated therewith, now existing or
hereafter adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States Patent and
Trademark Office or in any similar office or agency of the United States, any
State thereof or any other country or any political subdivision thereof, or
otherwise, and all common-law rights related thereto, including any of the
foregoing referred to in Schedule 4, and (ii)
the right to obtain all renewals thereof.
“Trademark
License”: any agreement, whether written or oral, providing
for the grant by or to any Grantor of any right to use any Trademark, including
any of the foregoing referred to in Schedule 4 (it being
understood that oral agreements are not required to be listed on Schedule
4).
1.2 Other Definitional
Provisions. (a) The
words “hereof,” “herein”, “hereto” and “hereunder” and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement, and Section and
Schedule references are to this Agreement unless otherwise
specified.
(b) The
meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
(c) Where the
context requires, terms relating to the Collateral or any part thereof, when
used in relation to a Grantor, shall refer to such Grantor’s Collateral or the
relevant part thereof.
(d) The words
“include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”, whether or not expressly stated.
SECTION
2. FIRST
LIEN CREDITORS; DELIVERY OF COLLATERAL
2.1 Indenture. In
the event of any conflict between this Agreement and the Indenture, the
provisions of the Indenture shall control.
2.2 Delivery of
Collateral. At
any time that the Intercreditor Agreement is in effect, any requirement for
delivery of Collateral to the Trustee under this Agreement shall be deemed
satisfied by delivery of such Collateral to the First Lien Representative or the
Second Lien Representative. Each Grantor hereby acknowledges that
such First Lien Representative or Second Lien Representative shall be holding
the Collateral for the benefit of the Trustee and the Holders.
SECTION
3. GRANT
OF SECURITY INTEREST
(a) all
Pledged Securities;
(b) all
Intercompany Obligations;
(c) all of
the Additional Collateral
(d) all books
and records pertaining to the Collateral; and
(e) to the
extent not otherwise included, all Proceeds, Supporting Obligations and products
of any and all of the foregoing, all collateral security and guarantees given by
any Person with respect to any of the foregoing and any Instruments evidencing
any of the foregoing.
Notwithstanding
any of the other provisions set forth in this Agreement, (i) in no event
shall “Collateral” include any right, title or interest of any Grantor in or to
any property to the extent that such property is not then collateral security
for the CCO Credit Facility, any Related Obligations or any Indebtedness under
clause (1) of the second paragraph of Section 4.10 of the Indenture,
(ii) this Agreement shall not constitute a grant of a security interest in,
and the Collateral shall not include, (x) any property to the extent that such
grant of a security interest is prohibited by any Requirements of Law of a
Governmental Authority, requires a consent not obtained of any Governmental
Authority pursuant to such Requirement of Law or is prohibited by, or
constitutes a breach or default under or results in the termination of or
requires any consent not obtained under, any contract, license, agreement
(including any joint venture, partnership or limited liability company operating
agreement, unless the same relates to a Wholly
Owned
Subsidiary), instrument or other document evidencing or giving rise to such
property except to the extent that such Requirement of Law or the term in such
contract, license, agreement, instrument or other document providing for such
prohibition, breach, default or termination or requiring such consent is
ineffective under applicable law or (y) any property that is subject to a
purchase money security interest permitted by the Indenture for so long as it is
subject to such security interest and (iii) in no event shall more than 66%
of the total outstanding Foreign Subsidiary Voting Equity Interests of any
Foreign Subsidiary constitute Collateral or be required to be pledged hereunder
(collectively, “Excluded
Assets”).
The
parties hereto acknowledge that the Collateral granted by any Grantor hereunder
secures the Obligations whether or not such Grantor guarantees any of the
Obligations.
SECTION
4. CERTIFICATED
INTERESTS
4.1 Pledged Partnership
Interests. Concurrently
with the delivery to the Trustee of any certificate representing Pledged
Partnership Interests, if any, the relevant Grantor shall, if requested by the
Trustee, deliver an undated power covering such certificate, duly executed in
blank by such Grantor.
4.2 Pledged LLC
Interests. Concurrently
with the delivery to the Trustee of any certificate representing Pledged LLC
Interests, if any, the relevant Grantor shall, if requested by the Trustee,
deliver an undated power covering such certificate, duly executed in blank by
such Grantor.
SECTION
5. REPRESENTATIONS
AND WARRANTIES
To induce
the Trustee to enter into the Indenture and to induce the Holders to purchase
the Notes, each Grantor hereby represents and warrants to the Trustee and each
Holder that:
5.1 Title; No Other
Liens. Except
for the security interest granted to the Trustee for the ratable benefit of the
Holders pursuant to this Agreement and the other Liens not prohibited to exist
on the Collateral by the Indenture, such Grantor owns each item of the
Collateral free and clear of any and all Liens. For the avoidance of
doubt, it is understood and agreed that any Grantor may, as part of its
business, grant licenses to third parties to use Intellectual Property owned or
developed by a Grantor. For purposes of this Agreement and the
Indenture, such licensing activity shall not constitute a “Lien” on such
Intellectual Property. Each of the Trustee and each Holder
understands that any such licenses may be exclusive to the applicable licensees,
and such exclusivity provisions may limit the ability of the Trustee to utilize,
sell, lease or transfer the related Intellectual Property or otherwise realize
value from such Intellectual Property pursuant hereto.
5.2 Perfected
Liens. The
security interests granted pursuant to this Agreement (a) constitute valid
perfected security interests in all of the Collateral in favor of the Trustee,
for
the
ratable benefit of the Holders, as collateral security for the Obligations,
enforceable in accordance with the terms hereof against all creditors of such
Grantor and any Persons purporting to purchase any Collateral from such Grantor
and (b) are prior to all other Liens on the Collateral in existence on the
date hereof except for Liens not prohibited by the Indenture.
5.4 Pledged
Securities. (a) The
Equity Interests, if any, pledged by such Grantor hereunder constitute all the
issued and outstanding shares of all classes of the Equity Interests of each
Issuer owned by such Grantor or, in the case of Foreign Subsidiary Voting Stock,
if less, 66% of the outstanding Foreign Subsidiary Voting Stock of each relevant
Issuer.
(b) Except
with respect to Pledged Stock from time to time constituting an immaterial
portion of the Collateral, all the shares of the Pledged Stock have been duly
and validly issued and are fully paid and nonassessable.
(c) None of
the Pledged LLC Interests or Pledged Partnership Interests constitutes a
security under Section 8-103 of the Applicable UCC or the corresponding
code or statute of any other applicable jurisdiction.
(d) Except
with respect to Pledged Notes from time to time constituting an immaterial
portion of the Collateral, each of the Pledged Notes constitutes the legal,
valid and binding obligation of the obligor with respect thereto, enforceable in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(e) Such
Grantor is the record and beneficial owner of, and has good title to, the
Pledged Securities pledged by it hereunder, free of any and all Liens or options
in favor of, or claims of, any other Person, except the security interest
created by this Agreement and any Liens permitted under Section 4.14 of the
Indenture.
SECTION
6. COVENANTS
Each
Grantor covenants and agrees that, from and after the date of this Agreement
until the Obligations shall have been paid in full or the relevant Collateral
has been released in accordance with Section 9.14:
6.1 Delivery of Instruments,
Certificated Securities and Chattel Paper. If
any amount payable under or in connection with any of the Collateral shall be or
become evidenced by any Instrument, Certificated Security or Chattel Paper with
a face value of $5,000,000 or more, such Instrument, Certificated Security or
Chattel Paper shall be promptly delivered to the Trustee, duly indorsed in a
manner satisfactory to the Trustee, to be held as Collateral pursuant to this
Agreement.
6.2 Insurance. All
insurance maintained by any Grantor with respect to the Collateral shall (a)
provide that no cancellation, material reduction in amount or material change in
coverage thereof shall be effective until at least 30 days after receipt by the
Trustee of written notice thereof and (b) name the Trustee as insured party or
loss payee, as applicable and customary. At the request of the Trustee, such
Grantor shall provide evidence of compliance with this Section 6.2 to the
Trustee.
6.3 Maintenance of Perfected
Security Interest; Further Documentation. (a) Such
Grantor shall, at the request of the Trustee, take all reasonable actions to
maintain the security interest created by this Agreement as a perfected security
interest having at least the priority described in Section 5.2 (including
making the filings referred to on Schedule 2) and shall defend such security
interest against the claims and demands of all Persons whomsoever.
(b) Such
Grantor will furnish to the Trustee and the Holders from time to time, as
reasonably requested by the Trustee, statements and schedules further
identifying and describing the assets and property of such Grantor constituting,
or intended to constitute, Collateral and such other reports in connection
therewith as the Trustee may reasonably request, all in reasonable
detail.
(c) At any
time and from time to time, upon the written request of the Trustee, and at the
sole expense of such Grantor, such Grantor will promptly and duly execute and
deliver, and have recorded, such further instruments and documents and take such
further actions as the Trustee may reasonably request for the purpose of
obtaining or preserving the full benefits of this Agreement and of the rights
and powers herein granted, including (i) filing any financing or
continuation statements under the Uniform Commercial Code (or other similar
laws) in effect in any jurisdiction with respect to the security interests
created hereby and (ii) in the case of Pledged Securities, Investment
Property, Letter-of-Credit Rights and any other relevant Collateral, taking any
actions necessary to enable the Trustee to obtain “control” (within the meaning
of the applicable Uniform Commercial Code) with respect thereto; provided, that
no account control agreements will be required unless an Event of Default is in
existence.
6.4 Changes in Locations, Name,
etc. Such
Grantor will not, except upon prior written notice to the Trustee:
(a) change
its jurisdiction of organization from that referred to in Section 5.3;
or
(b) change
its name to such an extent that any financing statement filed by the Trustee in
connection with this Agreement would become seriously misleading;
unless,
within 30 days of the taking of any such actions, such Grantor delivers to the
Trustee notice of such change and all documents reasonably requested by the
Trustee to maintain the validity, perfection and priority of the security
interests provided for herein.
6.5 Pledged
Securities. (a) If
such Grantor shall become entitled to receive or shall receive any certificate
(including any certificate representing a dividend or a distribution in
connection with any reclassification, increase or reduction of capital or any
certificate issued in
connection
with any reorganization), option or rights in respect of the Equity Interests of
any Issuer, whether in addition to, in substitution of, as a conversion of, or
in exchange for, any shares of the Pledged Stock, or otherwise in respect
thereof, such Grantor shall accept the same as the agent of the Trustee and the
Holders, hold the same in trust for the Trustee and the Holders, and, with
respect to Pledged Stock constituting securities under and as defined in
Section 8-103 of the Applicable UCC, deliver the same forthwith to the
Trustee in the exact form received, duly indorsed by such Grantor to the
Trustee, if required, together with an undated power covering such certificate
duly executed in blank by such Grantor, to be held by the Trustee, subject to
the terms hereof, as additional collateral security for the
Obligations. During the continuance of an Event of Default, subject
to Section 7.10, after written notice from the Trustee, any sums paid upon
or in respect of the Pledged Securities upon the liquidation or dissolution of
any Issuer shall be paid over to the Trustee to be held by it hereunder as
additional collateral security for the Obligations, and in case any distribution
of capital shall be made on or in respect of the Pledged Securities or any
property shall be distributed upon or with respect to the Pledged Securities
pursuant to the recapitalization or reclassification of the capital of any
Issuer or pursuant to the reorganization thereof, the property so distributed
shall be delivered to the Trustee to be held by it hereunder as additional
collateral security for the Obligations. Subject to
Section 7.10, if any sums of money or property so paid or distributed in
respect of the Pledged Securities shall be received by such Grantor, during the
continuance of an Event of Default, after notice from the Trustee, such Grantor
shall, until such money or property is paid or delivered to the Trustee, hold
such money or property in trust for the Holders, segregated from other funds of
such Grantor, as additional collateral security for the
Obligations.
(b) Without
the prior written consent of the Trustee, such Grantor will not (i) sell,
assign, transfer, exchange, or otherwise dispose of, or grant any option with
respect to, the Pledged Securities or Proceeds thereof (except pursuant to a
transaction not prohibited by the Indenture), or (ii) create, incur or permit to
exist any Lien on any of the Pledged Securities or Proceeds thereof, or any
interest therein, except for the security interests created by this Agreement or
Liens not prohibited under the Indenture.
(c) Without
the prior written consent of the Trustee, such Grantor will not, and will not
permit any Issuer that is a limited liability company or partnership, to amend
such Issuer’s certificate of formation, certificate of limited partnership,
statement of partnership existence, limited liability company agreement,
partnership agreement or operating agreement to provide that any Equity
Interests in any Issuer constitute a security under Section 8-103 of the
Applicable UCC or the corresponding code or statute of any other applicable
jurisdiction.
(d) In the
case of each Grantor which is an Issuer, such Issuer agrees that (i) it will be
bound by the terms of this Agreement relating to the Pledged Securities issued
by it and will comply with such terms insofar as such terms are applicable to
it, (ii) it will notify the Trustee promptly in writing of the occurrence of any
of the events described in Section 6.5(a) with respect to the Pledged
Securities issued by it and (iii) the terms of Sections 7.1(c) and 7.5
shall apply to it, mutatis mutandis, with
respect to all actions that may be required of it pursuant to
Section 7.1(c) or 7.5 with respect to the Pledged Securities issued by
it. Each Grantor hereby consents to the pledge of the Pledged
Securities contemplated hereby and to each provision of this Agreement relating
to such Pledged Securities.
SECTION
7. REMEDIAL
PROVISIONS
(b) If an
Event of Default shall occur and be continuing and the Trustee shall give
written notice of its intent to exercise such rights to the relevant Grantor or
Grantors, subject to Section 7.10, (i) the Trustee shall have the
right to receive any and all cash dividends, payments or other Proceeds paid in
respect of the Pledged Securities and make application thereof to the
Obligations in such order as the Trustee may determine, and (ii) any or all of
the Pledged Securities shall be registered in the name of the Trustee or its
nominee or the Second Lien Representative, and the Trustee or its nominee or the
Second Lien Representative may thereafter exercise (x) all voting,
organizational and other rights pertaining to such Pledged Securities at any
meeting of shareholders of the relevant Issuer or Issuers or otherwise and
(y) any and all rights of conversion, exchange and subscription and any
other rights, privileges or options pertaining to such Pledged Securities as if
it were the absolute owner thereof (including the right to exchange at its
discretion any and all of the Pledged Securities upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the
organizational structure of any Issuer, or upon the exercise by any Grantor or
the Trustee of any right, privilege or option pertaining to such Pledged
Securities, and in connection therewith, the right to deposit and deliver any
and all of the Pledged Securities with any committee, depositary, transfer
agent, registrar or other designated agency upon such terms and conditions as
the Trustee may determine), all without liability except to account for property
actually received by it, but the Trustee shall have no duty to any Grantor to
exercise any such right, privilege or option and shall not be responsible for
any failure to do so or delay in so doing.
cash,
checks and other near-cash items shall be held by such Grantor in trust for the
Trustee and the Holders, segregated from other funds of such Grantor, and shall,
forthwith upon receipt by such Grantor, be turned over to the Trustee in the
exact form received by such Grantor (duly indorsed by such Grantor to the
Trustee, if required). All Proceeds received by the Trustee hereunder
shall be held by the Trustee in a Collateral Account maintained under its sole
dominion and control. Subject to Section 7.10, all Proceeds
while held by the Trustee in a Collateral Account (or by such Grantor in trust
for the Trustee and the Holders) shall continue to be held as collateral
security for all the Obligations and shall not constitute payment thereof until
applied as provided in Section 7.3.
7.4 Code and Other
Remedies. If an Event of Default shall occur and be
continuing, the Trustee, on behalf of the Holders, may exercise, in addition to
all other rights and remedies granted to them in this Agreement and in any other
instrument or agreement securing, evidencing or relating to the Obligations, all
rights and remedies of a secured party under the Applicable UCC or any other
applicable law. Without limiting the generality of the foregoing, the
Trustee, without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon any Grantor or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give
option or options to purchase, or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public, or, to the extent permitted by law, private sale or
sales, at any exchange, broker’s board or office of the Trustee or any Holder or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. The Trustee or any Holder shall have
the right upon any such public sale or sales, and, to the extent permitted by
law, upon any such private sale or sales, to purchase the whole or any part of
the Collateral so sold, free of any right or equity of redemption in any
Grantor, which right or equity is hereby waived and released. Each
Grantor further agrees, at the Trustee’s request, to assemble the Collateral and
make it available to the Trustee at places which the Trustee shall reasonably
select, whether at such Grantor’s premises or elsewhere. The Trustee
shall apply the net proceeds of any action taken by it pursuant to this
Section 7.4, after deducting all reasonable costs and expenses of every
kind incurred in connection therewith or incidental to the care or safekeeping
of any of the Collateral or in any way relating to the Collateral or the rights
of the Trustee and the Holders hereunder, including
reasonable
attorneys’ fees and disbursements, to the payment in whole or in part of the
Obligations, in such order as the Trustee may elect, and only after such
application and after the payment by the Trustee of any other amount required by
any provision of law, including Section 9-615(a)(3) of the Applicable UCC,
need the Trustee account for the surplus, if any, to any Grantor. To
the extent permitted by applicable law, each Grantor waives all claims, damages
and demands it may acquire against the Trustee or any Holder arising out of the
exercise by them of any rights hereunder. If any notice of a proposed
sale or other disposition of Collateral shall be required by law, such notice
shall be deemed reasonable and proper if given at least 10 days before such sale
or other disposition.
7.5 Registration
Rights. (a) If
the Trustee shall determine to exercise its right to sell any or all of the
Pledged Stock pursuant to Section 7.4, and if in the opinion of the Trustee
it is necessary or advisable to have the Pledged Stock, or that portion thereof
to be sold, registered under the provisions of the Securities Act, the relevant
Grantor will cause the Issuer thereof to (i) execute and deliver, and cause the
directors and officers of such Issuer to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts as may
be, in the opinion of the Trustee, necessary or advisable to register the
Pledged Stock, or that portion thereof to be sold, under the provisions of the
Securities Act, (ii) use its reasonable best efforts to cause the registration
statement relating thereto to become effective and to remain effective for a
period of one year from the date of the first public offering of the Pledged
Stock, or that portion thereof to be sold and (iii) make all amendments thereto
and/or to the related prospectus which, in the opinion of the Trustee, are
necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and Exchange
Commission applicable thereto. Each Grantor agrees to cause such
Issuer to comply with the provisions of the securities or “Blue Sky” laws of any
and all jurisdictions which the Trustee shall designate and to make available to
its security holders, as soon as practicable, an earnings statement (which need
not be audited) which will satisfy the provisions of Section 11(a) of the
Securities Act.
(b) Each
Grantor recognizes that the Trustee may be unable to effect a public sale of any
or all the Pledged Stock, by reason of certain prohibitions contained in the
Securities Act and applicable state securities laws or otherwise, and may by
reason of such prohibitions be compelled to resort to one or more private sales
thereof to a restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale
thereof. Each Grantor acknowledges and agrees that any such private
sale may result in prices and other terms less favorable than if such sale were
a public sale and, notwithstanding such circumstances, to the extent permitted
by law, agrees that any such private sale shall be deemed to have been made in a
commercially reasonable manner. The Trustee shall be under no
obligation to delay a sale of any of the Pledged Stock for the period of time
necessary to permit the Issuer thereof to register such securities for public
sale under the Securities Act, or under applicable state securities laws, even
if such Issuer would agree to do so.
all other
applicable Requirements of Law. Each Grantor further agrees that a
breach of any of the covenants contained in this Section 7.5 will cause
irreparable injury to the Trustee and the Holders, that the Trustee and the
Holders have no adequate remedy at law in respect of such breach and, as a
consequence, to the extent permitted by law, that each and every covenant
contained in this Section 7.5 shall be specifically enforceable against
such Grantor, and such Grantor 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 under the
Indenture.
7.6 Deficiency. Each
Grantor shall remain liable for any deficiency if the proceeds of any sale or
other disposition of the Collateral are insufficient to pay its Obligations and
the fees and disbursements of any attorneys employed by the Trustee or any
Holder to collect such deficiency. For the avoidance of doubt (and
without prejudice to the obligations, if any, of CCOH and the Subsidiary
Grantors pursuant to the Note Guarantees), nothing in this Agreement shall be
deemed to create any recourse against CCOH or any of the Subsidiary Grantors for
any of the Obligations except to the extent of the Collateral.
7.7 Certain Matters Relating to
Pledged Receivables. The
Trustee hereby authorizes each Grantor pledging Receivables hereunder to collect
such Grantor’s Pledged Receivables, provided that the
Trustee may curtail or terminate said authority at any time after the occurrence
and during the continuance of an Event of Default. If required by the
Trustee at any time after the occurrence and during the continuance of an Event
of Default, after written notice from the Trustee, any payments of Pledged
Receivables, when collected by any Grantor, (i) shall be forthwith (and, in any
event, within two Business Days) deposited by such Grantor in the exact form
received, duly indorsed by such Grantor to the Trustee if required, in a
Collateral Account maintained under the sole dominion and control of the
Trustee, subject to withdrawal by the Trustee for the account of the Holders
only as provided in Section 7.3, and (ii) until so turned over, shall be
held by such Grantor in trust for the Trustee and the Holders, segregated from
other funds of such Grantor. Each such deposit of Proceeds of Pledged
Receivables shall be accompanied by a report identifying in reasonable detail
the nature and source of the payments included in the deposit.
7.8 Communications with
Obligors; Grantors Remain Liable. (a) The
Trustee in its own name or in the name of others may at any time after the
occurrence and during the continuance of an Event of Default communicate with
obligors under the Pledged Receivables to verify with them to the Trustee’s
satisfaction the existence, amount and terms of any Receivables.
(b) Upon the
written request of the Trustee at any time after the occurrence and during the
continuance of an Event of Default, each Grantor shall notify obligors on the
Pledged Receivables that the Pledged Receivables have been assigned to the
Trustee for the ratable benefit of the Holders and that payments in respect
thereof shall be made directly to the Trustee.
(c) Anything
herein to the contrary notwithstanding, each Grantor pledging Receivables shall
remain liable under each of the Pledged Receivables to observe and perform all
the
conditions and obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise
thereto. Neither the Trustee nor any Holder shall have any obligation
or liability under any Receivable (or any agreement giving rise thereto) by
reason of or arising out of this Agreement or the receipt by the Trustee or any
Holder of any payment relating thereto, nor shall the Trustee or any Holder be
obligated in any manner to perform any of the obligations of any Grantor under
or pursuant to any Receivable (or any agreement giving rise thereto), to make
any payment, to make any inquiry as to the nature or the sufficiency of any
payment received by it or as to the sufficiency of any performance by any party
thereunder, to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or
times.
7.9 Silo Credit Agreements,
etc. After
the occurrence and during the continuance of an Event of Default, the Trustee
may exercise any and all rights and remedies of the Company pursuant to any Silo
Credit Agreement or Silo Guarantee and Collateral Agreement upon written notice
to the relevant borrower under the relevant Silo Credit Agreement.
7.10 Permitted Payments,
etc. Notwithstanding
anything to the contrary in this Agreement, regardless of whether a Default then
exists, any Grantor shall be permitted to make, pay, obtain, retain and/or
distribute dividends, distributions, payments or Proceeds (i) permitted to
be made under clause (2) of the second paragraph of Section 4.07 of the
Indenture or (ii) which are, under clause (8) of the definition of
“Permitted Investments” in the Indenture, a Permitted Investment.
SECTION
8. THE
TRUSTEE
8.1 Trustee’s Appointment as
Attorney-in-Fact, etc.(a) Each
Grantor hereby irrevocably constitutes and appoints the Trustee and any officer
or agent thereof, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of such Grantor and in the name of such Grantor or in its own name, for
the purpose of carrying out the terms of this Agreement, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Agreement, and,
without limiting the generality of the foregoing, each Grantor hereby gives the
Trustee the power and right, on behalf of such Grantor, without notice to or
assent by such Grantor, to do any or all of the following:
(i) in the
name of such Grantor or its own name, or otherwise, take possession of and
indorse and collect any checks, drafts, notes, acceptances or other instruments
for the payment of moneys due under any Pledged Receivable or with respect to
any other Collateral and file any claim or take any other action or proceeding
in any court of law or equity or otherwise deemed appropriate by the Trustee for
the purpose of collecting any and all such moneys due under any Pledged
Receivable or with respect to any other Collateral whenever
payable;
(ii) in the
case of any Intellectual Property, execute and deliver, and have recorded, any
and all agreements, instruments, documents and papers as the
Trustee may
request
to evidence the Trustee’s and the Holders’ security interest in such
Intellectual Property and the goodwill and general intangibles of such Grantor
relating thereto or represented thereby;
(iii) pay or
discharge taxes and Liens levied or placed on or threatened against the
Collateral, effect any repairs or any insurance called for by the terms of this
Agreement and pay all or any part of the premiums therefor and the costs
thereof;
(iv) execute,
in connection with any sale provided for in Section 7.4 or 7.5, any
indorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral;
(v) (1) direct
any party liable for any payment under any of the Collateral to make payment of
any and all moneys due or to become due thereunder directly to the Trustee or as
the Trustee shall direct; (2) ask or demand for, collect, and receive
payment of and receipt for, any and all moneys, claims and other amounts due or
to become due at any time in respect of or arising out of any Collateral;
(3) sign and indorse any invoices, freight or express bills, bills of
lading, storage or warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection with any of the
Collateral; (4) commence and prosecute any suits, actions or proceedings at
law or in equity in any court of competent jurisdiction to collect the
Collateral or any portion thereof and to enforce any other right in respect of
any Collateral; (5) defend any suit, action or proceeding brought against
such Grantor with respect to any Collateral; (6) settle, compromise or adjust
any such suit, action or proceeding and, in connection therewith, give such
discharges or releases as the Trustee may deem appropriate; (7) assign any
Patent or Trademark (along with the goodwill of the business to which any such
Patent or Trademark pertains), throughout the world for such term or terms, on
such conditions, and in such manner, as the Trustee shall in its sole discretion
determine; and (8) generally, sell, transfer, pledge and make any agreement with
respect to or otherwise deal with any of the Collateral as fully and completely
as though the Trustee were the absolute owner thereof for all purposes, and do,
at the Trustee’s option and such Grantor’s expense, at any time, or from time to
time, all acts and things which the Trustee deems necessary to protect, preserve
or realize upon the Collateral and the Trustee’s and the Holders’ security
interests therein and to effect the intent of this Agreement, all as fully and
effectively as such Grantor might do; and
(vi) exercise
any of the Trustee’s rights pursuant to Section 7.9.
Anything
in this Section 8.1(a) to the contrary notwithstanding, the Trustee agrees
that it will not exercise any rights under the power of attorney provided for in
this Section 8.1(a) unless an Event of Default shall have occurred and be
continuing and the Trustee shall have given written notice of its intent to
exercise its rights under this Section 8.1(a).
(b) If any
Grantor fails to perform or comply with any of its agreements contained herein,
the Trustee, at its option, after prior notice to such Grantor, but without any
obligation
so to do, may perform or comply, or otherwise cause performance or compliance,
with such agreement.
(c) The
expenses of the Trustee incurred in connection with actions undertaken as
provided in this Section 8.1, together with interest thereon at a rate per
annum equal to the highest rate per annum at which interest would then be
payable on the Notes, from the date of payment by the Trustee to the date
reimbursed by the relevant Grantor, shall be payable by such Grantor to the
Trustee on demand.
(d) Each
Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be
done by virtue hereof. All powers, authorizations and agencies
contained in this Agreement are coupled with an interest and are irrevocable
until this Agreement is terminated and the security interests created hereby are
released.
8.2 Duty of
Trustee. The
Trustee’s sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section 9-207 of
the Applicable UCC or otherwise, shall be to deal with it in the same manner as
the Trustee deals with similar property for its own account. Neither
the Trustee, any Holder nor any of their respective officers, directors,
employees or agents shall be liable for failure to demand, collect or realize
upon any of the Collateral or for any delay in doing so or shall be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
any Grantor or any other Person or to take any other action whatsoever with
regard to the Collateral or any part thereof. The powers conferred on
the Trustee and the Holders hereunder are solely to protect the Trustee’s and
the Holders’ interests in the Collateral and shall not impose any duty upon the
Trustee or any Holder to exercise any such powers. The Trustee and
the Holders shall be accountable only for amounts that they actually receive as
a result of the exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible to any Grantor for
any act or failure to act hereunder, except for their own gross negligence or
willful misconduct.
8.3 Financing
Statements. Pursuant
to any applicable law, each Grantor authorizes the Trustee to file or record
financing statements and other filing or recording documents or instruments with
respect to the Collateral without the signature of such Grantor in such form and
in such offices as the Trustee determines appropriate to perfect the security
interests of the Trustee under this Agreement. A photographic or
other reproduction of this Agreement shall be sufficient as a financing
statement or other filing or recording document or instrument for filing or
recording in any jurisdiction. Each Grantor, authorizes the Trustee
to use the collateral description “all personal property” in any such financing
statements.
8.4 Authority of
Trustee. Each
Grantor acknowledges that the rights and responsibilities of the Trustee under
this Agreement with respect to any action taken by the Trustee or the exercise
or non-exercise by the Trustee of any option, voting right, request, judgment or
other right or remedy provided for herein or resulting or arising out of this
Agreement shall, as between the Trustee and the Holders, 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 each Grantor, the
Trustee shall be conclusively presumed to be acting as
agent for
the Holders with full and valid authority so to act or refrain from acting, and
no Grantor shall be under any obligation, or entitlement, to make any inquiry
respecting such authority.
SECTION
9. MISCELLANEOUS
9.1 Amendments in
Writing. None
of the terms or provisions of this Agreement may be waived, amended,
supplemented or otherwise modified except in accordance with Article 9 of the
Indenture.
9.2 Notices. All
notices, requests and demands to or upon the Trustee or any Grantor hereunder
shall be effected in the manner provided for in Section 12.02 of the
Indenture.
9.3 No Waiver by Course of
Conduct; Cumulative Remedies. Neither
the Trustee nor any Holder shall by any act (except by a written instrument
pursuant to Section 9.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Trustee or any Holder, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Trustee or any Holder of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Trustee or such Holder 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
other rights or remedies provided by law.
9.4 Enforcement Expenses;
Indemnification. (a)
Each Grantor agrees to pay or reimburse each Holder and the Trustee for all its
costs and expenses incurred in enforcing or preserving any rights under this
Agreement and the other Indenture Documents to which such Grantor is a party,
including the fees and disbursements of one firm of counsel (together with any
special and local counsel) to the Trustee.
(b) Each
Grantor agrees to pay, and to save the Trustee and the Holders harmless from,
any and all liabilities with respect to, or resulting from any delay in paying,
any and all stamp, excise, sales or other taxes which may be payable or
determined to be payable with respect to any of the Collateral.
(c) Each
Grantor agrees to pay, and to save the Trustee and the Holders harmless from,
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement to the extent the Company would be required to
do so pursuant to Section 7.07 of the Indenture.
(d) The
agreements in this Section 9.4 shall survive repayment of the Obligations
and all other amounts payable under the Indenture and the other Indenture
Documents.
9.5 Successors and
Assigns. This
Agreement shall be binding upon the successors and assigns of each Grantor and
shall inure to the benefit of the Trustee and the Holders and their successors
and assigns; provided that no
Grantor may assign, transfer or delegate any of its rights or obligations under
this Agreement without the prior written consent of the Trustee.
9.6 Counterparts. This
Agreement may be executed by one or more of the parties to this Agreement on any
number of separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument. Delivery
of an executed signature page of this Agreement by facsimile transmission shall
be effective as delivery of a manually executed counterpart hereof.
9.7 Severability. Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.8 Governmental
Approvals. (a) Notwithstanding
anything herein to the contrary, this Agreement, the other Indenture Documents
and the transactions contemplated hereby and thereby, prior to the exercise of
any rights and remedies provided in this Agreement or the other Indenture
Documents, including voting the Pledged Securities or a foreclosure of the
security interest granted under this Agreement, except to the extent not
prohibited by applicable Requirements of Law, (i) do not and will not
constitute, create, or have the effect of constituting or creating, directly or
indirectly, actual or practical ownership of the Company or any Subsidiary of
the Company by the Trustee or the Holders, or control, affirmative or negative,
direct or indirect, by the Trustee or the Holders over the management or any
other aspect of the operation of the Company or any Subsidiary of the Company,
which ownership and control remains exclusively and at all times in the Company
and such Subsidiary, and (ii) do not and will not constitute the transfer,
assignment, or disposition in any manner, voluntarily or involuntarily, directly
or indirectly, of any License at any time issued to the Company or any
Subsidiary of the Company, or the transfer of control of the Company or any
Subsidiary of the Company, including within the meaning of Section 310(d)
of the Communications Act of 1934, as amended.
(b) Notwithstanding
any other provision of this Agreement, any foreclosure on, sale, transfer or
other disposition of, or the exercise of any right to vote or consent with
respect to, any of the Pledged Securities, as provided herein, or any other
action taken or proposed to be taken by the Trustee hereunder which would affect
the operational, voting or other control of the Company or any Subsidiary of the
Company, shall be in accordance with applicable Requirements of
Law.
(c) Notwithstanding
anything to the contrary contained in this Agreement or in any other Indenture
Document, the Trustee shall not, without first obtaining the approval of the FCC
or any other applicable Governmental Authority, take any action pursuant to this
Agreement which would constitute or result in, or be deemed to constitute or
result in, any
assignment
of a License, including any CATV Franchise of the Company or any Subsidiary of
the Company, or any change of control of the Company or any Subsidiary of the
Company, if such assignment or change in control would require, under then
existing Requirements of Law (including the written rules and regulations
promulgated by the FCC), the prior approval of the FCC or such other
Governmental Authority.
(d) If
counsel to the Trustee reasonably determines that the consent of the FCC or any
other Governmental Authority is required in connection with any of the actions
which may be taken by the Trustee in the exercise of its rights under this
Agreement or any of the other Indenture Documents, then the Company, at its sole
cost and expense, shall use its reasonable best efforts to secure such consent
and to cooperate fully with the Trustee in any action commenced by the Trustee
to secure such consent. Upon the exercise by the Trustee of any
power, right, privilege or remedy pursuant to this Agreement which requires any
consent, approval, recording, qualification or authorization of the FCC or any
other Governmental Authority or instrumentality, the Company will promptly
prepare, execute, deliver and file, or will promptly cause the preparation,
execution, delivery and filing of, all applications, certificates, instruments
and other documents and papers that the Trustee reasonably deems necessary or
advisable to obtain such governmental consent, approval, recording,
qualification or authorization including the assignor’s or transferor’s portion
of any application or applications for consent to the assignment of license
necessary or appropriate under the rules and regulations of the FCC or any other
Governmental Authority for approval of any sale, transfer or assignment to the
Trustee or any other Person of the Pledged Securities. Subject to the
provisions of applicable law, if the Company fails or refuses to execute, or
fails or refuses to cause another Person to execute, such documents, the
Trustee, as attorney-in-fact for the Company appointed pursuant to
Section 8.1, or the clerk of any court of competent jurisdiction, may
execute and file the same on behalf of the Company. In addition to
the foregoing, during the continuance of an Event of Default, the Company agrees
to take, or cause to be taken, any action which the Trustee may reasonably
request in order to obtain and enjoy the full rights and benefits granted to the
Holders or the Trustee by this Agreement and any other instruments or agreements
executed pursuant hereto, including at the Company’s cost and expense, the
exercise of the Company’s best efforts to cooperate in obtaining FCC or other
governmental approval of any action or transaction contemplated by this
Agreement or any other instrument or agreement executed pursuant hereto which is
then required by law.
(e) The
Company recognizes that the authorizations, permits and licenses held by the
Company or any of its Subsidiaries are unique assets which may have to be
assigned or transferred in order for the Holders to realize the value of the
security interests granted to the Trustee. The Company further
recognizes that a violation of this covenant would result in irreparable harm to
the Trustee and the Holders for which monetary damages are not readily
ascertainable. Therefore, in addition to any other remedy which may
be available to the Trustee and Holders at law or in equity, to the extent
permitted by law, the Trustee and the Holders shall have the remedy of specific
performance of the provisions of this Section 9.8(e). To enforce
the provisions of this Section 9.8, the Trustee is authorized to request
the consent or approval of the FCC or other Governmental Authority to a
voluntary or an involuntary assignment or transfer of control of any
authorization, permit or license. In connection with the exercise of
its remedies under this Agreement or under any of the other Indenture Documents,
the Trustee may obtain the
appointment
of a trustee or receiver to assume, upon receipt of all necessary judicial, FCC
or other Governmental Authority consents or approvals, the control of any
Person, subject to compliance with applicable Requirements of
Law. Such trustee or receiver shall have all rights and powers
provided to it by law or by court order or provided to the Trustee under this
Agreement.
9.9 Section Headings. The
Section headings used in this Agreement are for convenience of reference
only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
9.10 Integration. This
Agreement and the other Indenture Documents represent the agreement of each
Grantor, the Trustee and the Holders with respect to the subject matter hereof
and thereof, and there are no promises, undertakings, representations or
warranties by the Trustee or any Holder relative to subject matter hereof and
thereof not expressly set forth or referred to herein or in the other Indenture
Documents.
9.11 GOVERNING
LAW. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF DELAWARE. IF FOR ANY REASON THE CHOICE
OF GOVERNING LAW OF THE STATE OF DELAWARE AS PROVIDED IN THE PRECEDING SENTENCE
IS UNENFORCEABLE OR INVALID, ALL PROVISIONS OF THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK AND “APPLICABLE UCC” SHALL BE DEEMED TO REFER TO THE UNIFORM COMMERCIAL
CODE AS FROM TIME TO TIME IN EFFECT IN THE STATE OF NEW YORK.
9.12 Submission to Jurisdiction;
Waivers. Each
Grantor hereby irrevocably and unconditionally:
(a) submits
for itself and its property in any legal action or proceeding relating to this
Agreement and the other Indenture Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York and
Delaware, the courts of the United States of America for the Southern
District of New York and the District of Delaware, and appellate courts from any
thereof;
(b) consents
that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to such Grantor at its address referred
to in Section 9.2 or at such other address of which the Trustee shall have
been notified pursuant thereto;
(d) agrees
that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other
jurisdiction; and
(e) waives,
to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any
special, exemplary, punitive or consequential damages.
9.13 Acknowledgments. Each
Grantor hereby acknowledges that:
(a) it has
been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Indenture Documents to which it is a party;
(b) neither
the Trustee nor any Holder has any fiduciary relationship with or duty to any
Grantor arising out of or in connection with this Agreement or any of the other
Indenture Documents, and the relationship between the Grantors, on the one hand,
and the Trustee and Holders, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint
venture is created hereby or by the other Indenture Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Holders or
among the Grantors and the Holders.
9.14 Additional Grantors;
Release. (a) Each
Subsidiary of the Company that is required to become a party to this Agreement
pursuant to Section 4.17 of the Indenture shall become a Grantor for all
purposes of this Agreement upon execution and delivery by such Subsidiary of an
Assumption Agreement in the form of Annex 1
hereto.
(b) At such
time as the Notes and the other Obligations shall have been paid in full, the
Collateral shall be released from the Liens created hereby, and this Agreement
and all obligations (other than those expressly stated to survive such
termination) of the Trustee and each Grantor hereunder shall terminate, all
without delivery of any instrument or performance of any act by any party, and
all rights to the Collateral shall revert to the Grantors. At the
request and sole expense of the Company, following any such termination, the
Trustee shall deliver to such Grantor any Collateral held by the Trustee
hereunder, and execute and deliver to such Grantor such documents as such
Grantor shall reasonably request to effect or to evidence such
termination.
(c) If any of
the Collateral shall be released in accordance with Section 10.03 of the
Indenture, then the Trustee, at the request and sole expense of such Grantor,
shall execute and deliver to such Grantor all releases or other documents
reasonably necessary or desirable for the release of the Liens created hereby on
such Collateral.
9.15 WAIVER OF JURY
TRIAL. EACH GRANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
IN
WITNESS WHEREOF, each of the undersigned has caused this Collateral Agreement to
be duly executed and delivered as of the date first above written.
CHARTER
COMMUNICATIONS OPERATING, LLC, as Grantor
By:
Charter Communications, Inc., its manager
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Title:
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Senior
Vice President
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CHARTER
COMMUNICATIONS OPERATING, CAPITAL CORP., as Grantor
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Title:
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Senior
Vice President
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AMERICAN
CABLE ENTERTAINMENT COMPANY, LLC
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CABLE
EQUITIES COLORADO, LLC
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CHARTER
ADVERTISING OF SAINT LOUIS, LLC
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CHARTER
CABLE OPERATING COMPANY, LLC
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CHARTER
CABLE PARTNERS, LLC
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CHARTER
COMMUNICATIONS ENTERTAINMENT I, LLC
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CHARTER
COMMUNICATIONS ENTERTAINMENT II,
LLC
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CHARTER
COMMUNICATIONS ENTERTAINMENT, LLC
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CHARTER
COMMUNICATIONS PROPERTIES LLC
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CHARTER
COMMUNICATIONS, LLC
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CHARTER
DISTRIBUTION, LLC
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INTERLINK
COMMUNICATIONS PARTNERS, LLC
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MARCUS
CABLE ASSOCIATES, L.L.C.
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MARCUS
CABLE OF ALABAMA, L.L.C.
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RIFKIN
ACQUISITION PARTNERS, LLC
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VISTA
BROADBAND COMMUNICATIONS, LLC
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CABLE
EQUITIES OF COLORADO MANAGEMENT
CORP.
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CHARTER
COMMUNICATIONS VENTURES, LLC
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CHARTER
FIBERLINK – ALABAMA, LLC
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CHARTER
FIBERLINK – ILLINOIS, LLC
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CHARTER
FIBERLINK – KENTUCKY, LLC
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CHARTER
FIBERLINK – MICHIGAN, LLC
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CHARTER
FIBERLINK –MISSOURI, LLC
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CHARTER
FIBERLINK TX-CCO, LLC
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CHARTER
COMMUNICATIONS VII, LLC
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FALCON
CABLE COMMUNICATIONS, LLC
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FALCON
COMMUNITY CABLE, L.P.
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FALCON
VIDEO COMMUNICATIONS, L.P.
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FALCON
CABLE MEDIA, A CALIFORNIA LIMITED
PARTNERSHIP
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FALCON
COMMUNITY VENTURES I LIMITED
PARTNERSHIP
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FALCON
CABLE SYSTEMS COMPANY II, L.P.
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FALCON
CABLEVISION, A CALIFORNIA LIMITED
PARTNERSHIP
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FALCON
TELECABLE, A CALIFORNIA LIMITED
PARTNERSHIP
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FALCON
FIRST CABLE OF NEW YORK, INC.
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FALCON
FIRST CABLE OF THE SOUTHEAST, INC.
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PLATTSBURGH
CABLEVISION INC.
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SCOTTSBORO
TV CABLE, INC.
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CHARTER
FIBERLINK AR-CCVII, LLC
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CHARTER
FIBERLINK AZ-CCVII, LLC
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CHARTER
FIBERLINK ID-CCVII, LLC
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CHARTER
FIBERLINK NV-CCVII, LLC
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CHARTER
FIBERLINK OK-CCVII, LLC
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CHARTER
FIBERLINK OR-CCVII, LLC
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CHARTER
FIBERLINK UT-CCVII, LLC
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CHARTER
FIBERLINK WA-CCVII, LLC
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CHARTER
COMMUNICATIONS VI, LLC
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CC
VI OPERATING COMPANY, LLC
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TIOGA
CABLE COMPANY, INC.
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CHARTER
FIBERLINK MS-CCVI, LLC
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CHARTER
FIBERLINK CA-CCO, LLC
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CHARTER
FIBERLINK KS-CCO, LLC
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CHARTER
FIBERLINK MA-CCO, LLC
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CHARTER
FIBERLINK NC-CCO, LLC
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CHARTER
FIBERLINK NM-CCO, LLC
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CHARTER
FIBERLINK OH-CCO, LLC
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CHARTER
FIBERLINK SC-CCO, LLC
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CHARTER
FIBERLINK VA-CCO, LLC
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CHARTER
FIBERLINK VT-CCO, LLC
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CHARTER
COMMUNICATIONS V, LLC
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CHARTER
TELEPHONE OF MINNESOTA, LLC
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MIDWEST
CABLE COMMUNICATIONS, INC.
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CHARTER
VIDEO ELECTRONICS, INC.
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CHARTER
COMMUNICATIONS ENTERTAINMENT I, DST
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CC
VIII LEASING OF WISCONSIN, LLC
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CHARTER
CABLE LEASING OF WISCONSIN, LLC
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Title:
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Senior
Vice President
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WILMINGTON
TRUST COMPANY, as Trustee
By: /s/ James J.
McGinley
Name:
James J. McGinley
Title:
Authorized Signer
ACKNOWLEDGMENT
AND CONSENT
The
undersigned hereby acknowledges receipt of a copy of the Collateral Agreement,
dated as of March 19, 2008 (as the same may be further amended, amended and
restated, supplemented or otherwise modified from time to time, the “Agreement”), made by
the Grantors parties thereto for the benefit of Wilmington Trust Company, as
Trustee. The undersigned agrees for the benefit of the Trustee and
the Holders as follows:
1. The
undersigned will be bound by the terms of the Agreement and will comply with
such terms insofar as such terms are applicable to the undersigned.
2. The
undersigned will notify the Trustee promptly in writing of the occurrence of any
of the events described in Section 6.5(a) of the Agreement.
3. The
terms of Sections 7.1(c) and 7.5 of the Agreement shall apply to it, mutatis mutandis, with
respect to all actions that may be required of it pursuant to
Section 7.1(c) or 7.5 of the Agreement.
[NAME OF
ISSUER]
By:
Address
for Notices:
Fax:
Annex 1
to the
Collateral
Agreement
ASSUMPTION
AGREEMENT, dated as of ________________, ____, made by
______________________________, a ______________ (the “Additional Grantor”),
in favor of Wilmington Trust Company, as Trustee (in such capacity, the “Trustee”), for the
holders (the “Holders”) pursuant to
the Indenture, dated as of March 19, 2008 (as amended, supplemented or otherwise
modified from time to time, the “Indenture”), among
Charter Communications Operating, LLC (the “Company”), Charter
Communications Operating Capital Corp. (“Capital Corp.”), the
guarantors party thereto and Wilmington Trust Company, as
Trustee. All capitalized terms not defined herein shall have the
meaning ascribed to them in such Indenture.
W I T N E S S E T H :
WHEREAS,
the Company and Capital Corp. have issued 10 7/8 % Senior
Second Lien Notes due 2014 and may hereafter issue Additional
Notes.
WHEREAS,
in connection with the Indenture, the Company and the other grantors party
thereto have entered into the Collateral Agreement, dated as of March 19, 2008
(as further amended, supplemented or otherwise modified from time to time, the
“Collateral
Agreement”), in favor of the Trustee for the benefit of the
Holders;
WHEREAS,
the Indenture requires the Additional Grantor to become a party to the
Collateral Agreement; and
WHEREAS,
the Additional Grantor has agreed to execute and deliver this Assumption
Agreement in order to become a party to the Collateral Agreement;
NOW,
THEREFORE, IT IS AGREED:
By
executing and delivering this Assumption Agreement, the Additional Grantor, as
provided in Section 9.14 of the Collateral Agreement, hereby becomes a
party to the Collateral Agreement as a Grantor thereunder with the same force
and effect as if originally named therein as a Grantor and, without limiting the
generality of the foregoing, hereby expressly assumes all obligations and
liabilities of a Grantor thereunder. The information set forth in
Annex 1-A
hereto is hereby added to the information set forth in the Schedules to the
Collateral Agreement. The Additional Grantor hereby represents and
warrants that each of the representations and warranties contained in
Section 5 of the Collateral Agreement with respect to the Additional
Grantor is true and correct on and as the date hereof (after giving effect to
this Assumption Agreement) as if made on and as of such date.
IN
WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly
executed and delivered as of the date first above written.
[ADDITIONAL
GRANTOR]
By:
Annex 1-A
to the
Assumption
Agreement
Supplement to Schedule
1
Supplement to Schedule
2
Supplement to Schedule
3
Supplement to Schedule
4