AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Counterpart Agreement
to be duly executed and delivered by its duly authorized officer as of
.
[NAME OF SUBSIDIARY]
By:
Name:
Title:
Address for Notices:
H-2
EXHIBIT I TO
AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
K-1
EXECUTION VERSION
AMENDED AND RESTATED
PLEDGE AND SECURITY AGREEMENT
dated as of January 16, 2003
among
XO COMMUNICATIONS, INC.,
CERTAIN SUBSIDIARIES OF
XO COMMUNICATIONS, INC., as Grantors,
and
MIZUHO CORPORATE BANK, LTD., as Secured Party,
Table of Contents
Page
SECTION 1. DEFINITIONS; GRANT OF SECURITY
1
1.1. General Definitions
1
1.2. Definitions; Interpretation
7
SECTION 2. GRANT OF SECURITY
8
2.1. Grant of Security
8
2.2. Certain Limited Exclusions
9
SECTION 3. SECURITY FOR OBLIGATIONS; GRANTORS REMAIN LIABLE
9
3.1. Security for Obligations
9
3.2. Continuing Liability under Collateral
10
SECTION 4. REPRESENTATIONS AND WARRANTIES AND COVENANTS
10
4.1. Generally
10
4.2. Equipment and Inventory
13
4.3. Receivables
14
4.4. Investment Related Property
16
4.5. Material Contracts
22
4.6. Letter of Credit Rights
24
4.7. Intellectual Property
24
4.8. Commercial Tort Claims
27
SECTION 5. ACCESS; RIGHT OF INSPECTION AND FURTHER ASSURANCES; ADDITIONAL
GRANTORS
27
5.1. Access; Right of Inspection
27
5.2. Further Assurances
27
i
Table of Contents
(continued)
Page
5.3. Additional Grantors
28
SECTION 6. SECURED PARTY APPOINTED ATTORNEY-IN-FACT
29
6.1. Power of Attorney
29
6.2. No Duty on the Part of Secured Party
30
6.3. Ratification
30
SECTION 7. REMEDIES
30
7.1. Generally
30
7.2. Application of Proceeds
32
7.3. Sales on Credit
32
7.4. Deposit Accounts
32
7.5. Investment Related Property
32
7.6. Intellectual Property
33
7.7. Cash Proceeds
35
7.8. Release of Liens
35
SECTION 8. COLLATERAL AGENT
36
SECTION 9. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS
36
SECTION 10. STANDARD OF CARE; SECURED PARTY MAY PERFORM
36
SECTION 11. MISCELLANEOUS
37
ii
Table of Contents
(continued)
SCHEDULE 4.1 - GENERAL INFORMATION
SCHEDULE 4.2 - LOCATION OF EQUIPMENT AND INVENTORY
SCHEDULE 4.4 - INVESTMENT RELATED PROPERTY
SCHEDULE 4.5 - MATERIAL CONTRACTS
SCHEDULE 4.6 - DESCRIPTION OF LETTERS OF CREDIT
SCHEDULE 4.7 - INTELLECTUAL PROPERTY
SCHEDULE 4.8 - COMMERCIAL TORT CLAIMS
EXHIBIT A - PLEDGE SUPPLEMENT
EXHIBIT B - FORM OF COLLATERAL ACCOUNT CONTROL AGREEMENT
iii
This AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT, dated as of
January 16, 2003 (this "Agreement"), between EACH OF THE UNDERSIGNED, whether as
an original signatory hereto or as an Additional Grantor (as herein defined)
(each, a "Grantor"), and MIZUHO CORPORATE BANK, LTD., as agent for the Lenders
and the Lender Counterparties (in such capacity as agent, the "Secured Party").
RECITALS:
WHEREAS, reference is made to that certain Amended and Restated Credit
and Guaranty Agreement, dated as of the date hereof (as it may be amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), by and among XO COMMUNICATIONS, INC., a Delaware corporation
("Company"),