Exhibit 10.80
LENDER SECURITY AGREEMENT
LENDER SECURITY AGREEMENT dated as of February 25, 2002, between
PANAMSAT CORPORATION, a corporation duly organized and validly existing under
the laws of the State of Delaware (together with any successor Borrower under
the below-referenced Credit Agreement, the "Borrower"); each of the Subsidiaries
of the Borrower identified under the caption "SUBSIDIARY GUARANTORS" on the
signature pages hereto and any other Subsidiary of the Borrower that becomes a
party hereto from time to time after the date hereof (individually, a
"Subsidiary Guarantor" and, collectively, the "Subsidiary Guarantors" and,
together with the Borrower, the "Obligors"); and CREDIT SUISSE FIRST BOSTON, as
administrative agent for the lenders or other financial institutions or entities
party, as lenders, to the Credit Agreement referred to below (in such capacity,
together with its successors in such capacity, the "Administrative Agent").
The Borrower, certain lenders and the Administrative Agent are
parties to a Credit Agreement dated as of February [__], 2002 (as modified and
supplemented and in effect from time to time, the "Credit Agreement"),
providing, subject to the terms and conditions thereof, for extensions of credit
(by making of loans and issuing letters of credit) to be made by said lenders to
the Borrower in an aggregate principal or face amount not exceeding
$1,250,000,000. In addition, the Borrower may from time to time be obligated to
various of said lenders (or their affiliates) in respect of one or more Hedging
Agreements under and as defined in the Credit Agreement.
To induce said lenders to enter into the Credit Agreement and to
extend credit thereunder and to extend credit under Hedging Agreements, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each Obligor has agreed to pledge and grant a security
interest in the Collateral (as hereinafter defined) as security for the Secured
Obligations (as so defined).
Accordingly, the parties hereto agree as follows:
Section 1. Definitions.
(a) Defined Terms. Terms defined in the Credit Agreement are used
herein as defined therein. The terms "Accounts", "Chattel Paper", "Deposit
Account", "Document", "Electronic Chattel Paper", "Equipment", "Fixture",
"General Intangible", "Goods", "Instrument", "Inventory", "Investment Property",
"Letter-of-Credit Right", "Payment Intangible", "Proceeds" and "Software" shall
have the meanings assigned to such terms in Article 9 of the UCC. The term
"Financial Assets" shall have the meanings assigned to such terms in Article 8
of the UCC. In addition, as used herein, the following terms shall have the
following respective meanings:
"Collateral" has the meaning assigned to such term in Section 3.01.
"Equity Collateral" has the meaning assigned to such term in Section
3.01(g).
"Intellectual Property" means all copyrights, patents and trademarks
of the Obligors, together with (i) all inventions, processes, production
methods, proprietary information, know-how and trade secrets; (ii) all
licenses or user or other agreements granted to any Obligor with respect
to any of the foregoing, in each case whether now or hereafter owned or
used; (iii) all information, customer lists, identification of suppliers,
data, plans, blueprints, specifications, designs, drawings, recorded
knowledge, surveys, engineering reports, test reports, manuals, materials
standards, processing standards, performance standards, catalogs, computer
and automatic machinery software and programs; (iv) all field repair data,
sales data and other information relating to sales or service of products
now or hereafter manufactured; (v) all accounting information and all
media in which or on which any information or knowledge or data or records
may be recorded or stored and all computer programs used for the
compilation or printout of such information, knowledge, records or data;
(vi) all licenses, consents, permits, variances, certifications and
approvals of governmental agencies now or hereafter held by any Obligor
(other than FCC Licenses); and (vii) all causes of action, claims and
warranties now or hereafter owned or acquired by any Obligor in respect of
any of the items listed above.
"Issuers" means, collectively, (i) the Subsidiaries identified
beneath the names of the Obligors in Annex 3 under the caption "Issuer"
and (ii) each other Person that shall at any time be a Subsidiary,
provided that the Issuers shall not include the "Issuers" under and
defined in the Shared Security Agreement.
"Lender Collateral Account" has the meaning assigned to such term in
Section 4.01.
"Motor Vehicles" means motor vehicles, tractors, trailers and other
like property, whether or not the title thereto is governed by a
certificate of title or ownership.
"Pledged Debt" means any indebtedness of any Issuer held by any
Obligor, including any promissory notes or other instruments evidencing
any of such indebtedness.
"Pledged Equity" has the meaning assigned to such term in Section
3.01(g).
"Secured Obligations" means, collectively, (i) in the case of the
Borrower, the principal of and interest on the Loans and all other amounts
whatsoever now or hereafter from time to time owing to the Lenders under
the Credit Agreement (including all LC Disbursements, together with
interest thereon), and (subject to Section 3.02) all obligations of the
Borrower to the Lenders or any of their
affiliates in respect of Hedging Agreements, (ii) in the case of the
Subsidiary Guarantors, all present and future obligations of the
Subsidiary Guarantors under the Guarantee Agreement, and (iii) in the case
of each Obligor, all present and future obligations of the Obligors to the
Administrative Agent and the Lenders hereunder.
"Secured Parties" means, collectively, the Lenders, the
Administrative Agent, the Issuing Lender and the Swingline Lender.
"Shared Security Documents" shall have the meaning assigned to such
term in the Intercreditor and Collateral Trust Agreement.
"UCC" means the Uniform Commercial Code as in effect from time to
time in the State of New York.
(b) Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
Section 2. Representations and Warranties. Each Obligor represents
and warrants to the Secured Parties that:
(a) Title and Priority. Such Obligor has rights in the Collateral in
which it purports to grant a security interest pursuant to Section 3.01
(or has the power to transfer rights in such Collateral to the
Administrative Agent) and no Lien exists or will exist upon such
Collateral at any time, except for Liens permitted under Section 6.02 of
the Credit Agreement and except for the security interest in favor of the
Secured Parties created pursuant hereto. The security interest created
pursuant hereto constitutes a valid and perfected security interest in the
Collateral in which such Obligor purports to grant a security interest
pursuant to Section 3.01 to the extent the same may be perfected by
filing, possession or
control under the Uniform Commercial Code (except for any period during
which such security interests is not required to be perfected hereunder),
subject to no equal or prior Lien except as expressly permitted by Section
6.02 of the Credit Agreement.
(b) Names, Etc. The full and correct legal name, type of
organization, jurisdiction of organization, organizational ID number (if
applicable) and mailing address of each Obligor as of the date hereof are
correctly set forth in Annex 1. In addition, as of the date hereof, Annex
1 correctly specifies (x) the place of business of each Obligor or, if
such Obligor has more than one place of business, the location of the
chief executive office of such Obligor, and (y) each location where Goods
constituting part of the Collateral of each Obligor are located (other
than Motor Vehicles constituting Equipment and Goods in transit).
(c) Changes in Circumstances. Such Obligor has not (i) within the
period of four months prior to the date hereof, changed its "location" (as
defined in Section 9-307 of the UCC), (ii) except as specified in Annex 1,
heretofore changed its name, or (iii) except as specified in Annex 2,
heretofore become a "new debtor" (as defined in Section 9-102(a)(56) of
the UCC) with respect to a currently effective security agreement
previously entered into by any other Person.
(d) Status of Pledged Equity. The Pledged Equity as of the date of
delivery of any such Pledged Equity represented by certificated securities
and as of the date hereof for all other Pledged Equity identified under
the name of such Obligor in Annex 3 is, and all other Pledged Equity in
which such Obligor shall hereafter grant a security interest pursuant to
Section 3.01 will be, duly authorized, validly existing, fully paid and
non-assessable (in the case of any equity interest in a domestic
corporation) and duly issued and outstanding (in the case of any equity
interest in any other entity), and, except as set forth in Annex 5 and as
otherwise permitted by the Credit Agreement, none of such Pledged Equity
is or will be subject to any contractual restriction, or any restriction
under the charter, by-laws, partnership agreement or other organizational
document of the respective Issuer of such Pledged Equity, upon the
transfer of such Pledged Equity (except for any such restriction contained
herein or in the Credit Agreement).
(e) No Other Stock. The Pledged Equity identified under the name of
such Obligor in Annex 3 constitutes all of the issued and outstanding
shares of capital stock, partnership or other ownership interest of any
class or character of the Issuers (and, in the case of Foreign
Subsidiaries, 65% of the voting stock thereof and 100% of any other
capital stock thereof) beneficially owned by such Obligor on the date
hereof (whether or not registered in the name of such Obligor) and Annex 3
correctly identifies, as at the date hereof, the respective Issuers of
such Pledged Equity and (in the case of any corporate Issuer other than
any Foreign Subsidiary) the respective class and par value of the shares
constituting
such Pledged Equity and the respective number of shares (and registered
owners thereof) represented by each such certificate (other than any such
shares that are not evidenced by a certificate).
Section 3.01 Collateral. As collateral security for the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the Secured Obligations, whether now existing or hereafter from
time to time arising, each Obligor hereby pledges and grants to the
Administrative Agent, for the benefit of the Secured Parties as hereinafter
provided, a security interest in all of such Obligor's right, title and interest
in, to and under the following property, whether now owned by such Obligor or
hereafter acquired and whether now existing or hereafter coming into existence
(all, subject to the exclusions set forth in Section 3.02, being collectively
referred to herein as the "Collateral"):
(a) all Accounts, all Deposit Accounts, all Instruments, all
Documents, all Chattel Paper (whether tangible or electronic), all
Inventory, all Equipment, all Fixtures, all Letter-of-Credit Rights, all
Investment Property, all Payment Intangibles, Software and all other
General Intangibles whatsoever, including all Intellectual Property;
(b) all Investment Property and Financial Assets;
(c) all rights of such Obligor under or relating to the FCC Licenses
and the proceeds of any FCC Licenses, provided that such security interest
does not include at any time any FCC License to the extent (but only to
the extent) that at such time the Administrative Agent may not validly
possess a security interest therein pursuant to the Communications Act of
1934, as amended, and the regulations promulgated thereunder, as in effect
at such time, but such security interest does include, to the maximum
extent permitted by law, all rights incident or appurtenant to the FCC
Licenses and the right to receive all proceeds derived from or in
connection with the sale, assignment or transfer of the FCC Licenses;
(d) the Lender Collateral Account and the balance from time to time
therein;
(e) all other tangible and intangible personal property whatsoever
of such Obligor (other than FCC Licenses, as to which clause (c) above
shall be applicable);
(f) the Pledged Debt;
(g) the shares of common and preferred stock of, or partnership and
other ownership interest in, the Issuers identified in Annex 3 under the
name of such Obligor and all other shares of capital stock, or partnership
and other ownership interest, of whatever class or character of any
Issuer, now or hereafter owned by
such Obligor, and all certificates evidencing the same (collectively, the
"Pledged Equity"), together with, in each case:
(i) all shares, securities, moneys or property representing a
dividend on any of the Pledged Equity, or representing a
distribution or return of capital upon or in respect of the Pledged
Equity, or resulting from a split-up, revision, reclassification or
other like change of the Pledged Equity or otherwise received in
exchange therefor, and any subscription warrants, rights or options
issued to the holders of, or otherwise in respect of, the Pledged
Equity; and
(ii) without affecting the obligations of such Obligor under
any provision prohibiting such action hereunder or under any Loan
Document, in the event of any consolidation or merger in which an
Issuer is not the surviving entity, all ownership interests of any
class or character of the successor entity (unless such successor
entity is such Obligor itself) formed by or resulting from such
consolidation or merger (the Pledged Equity, together with all other
certificates, shares, securities, properties or moneys as may from
time to time be pledged hereunder pursuant to this clause (ii) and
clause (i) above being herein collectively called the "Equity
Collateral"); and
(h) all Proceeds, products, offspring, accessions, rents, profits,
income, benefits, substitutions and replacements of and to any of the
Collateral and, to the extent related to any Collateral, all books,
correspondence, credit files, records, invoices and other papers,
including all tapes, cards, computer runs and other papers and documents
in the possession or under the control of such Obligor or any computer
bureau or service company from time to time acting for such Obligor;
provided that (i) in the case of any of the foregoing that consists of general
or limited partnership interests in a general or limited partnership, the
security interest hereunder shall be deemed to be created only to the maximum
extent permitted under the applicable organizational instrument pursuant to
which such partnership is formed, and (ii) in the case of any of the foregoing
that consists of capital stock or other ownership interests in any Foreign
Subsidiary (other than a Special Purpose Foreign Subsidiary), the security
interest hereunder shall be limited to 65% of the voting stock of such
Subsidiary and 100% of any other capital stock of such Subsidiary (or such
greater percentage of such stock of such Foreign Subsidiary as shall be agreed
to by the Obligors pursuant to the requirements of Section 5.11 of the Credit
Agreement).
Section 3.02 Excluded Property. Notwithstanding the foregoing, the
Collateral shall not include any property (i) to the extent such property is
prohibited from being assigned or encumbered by a Lien under any agreement
related thereto (including any agreement relating to Indebtedness incurred to
finance such property and permitted under Section 6.01(i) of the Credit
Agreement) and such prohibition is not overridden by
the applicable provisions of the UCC, (ii) in the definition of "Collateral" in
the Shared Security Agreement, (iii) in the definition of "Property" in any
Mortgage made in favor of or to be made in favor of the Collateral Trustee or
(iv) constituting "Excluded Property" under and as defined in the Credit
Agreement.
In addition, to the extent that any Person shall enter into or be a
party to a Hedging Agreement with the Borrower at the time that such Person (or
an affiliate thereof) is a Lender under the Credit Agreement, such Hedging
Agreement shall cease to be entitled to the benefits of this Agreement in the
event that such Lender assigns all of its loans and commitments under the Credit
Agreement and is no longer a Lender under the Credit Agreement.
Section 4. Cash Proceeds of Collateral.
4.01 Lender Collateral Account. The Administrative Agent will cause
to be established at a banking institution to be selected by the Administrative
Agent a cash collateral account (the "Lender Collateral Account"), which
(i) to the extent of all Investment Property or Financial Assets
(other than cash) shall be a "securities account" (as defined in Section
8-501 of the UCC) in respect of which the Administrative Agent shall be
the "entitlement holder" (as defined in Section 8-102(a)(7) of the UCC))
and
(ii) to the extent of any cash, shall be a Deposit Account in
respect of which the Administrative Agent is the customer (as contemplated
by 9-104(a)(3) of the UCC),
in each case into which there shall be deposited from time to time the cash
proceeds of any of the Collateral (including proceeds of insurance thereon)
required to be delivered to the Administrative Agent pursuant hereto and into
which the Obligors may from time to time deposit any additional amounts that any
of them wishes to pledge to the Administrative Agent for the benefit of the
Secured Parties as additional collateral security hereunder or that, as provided
in Sections 2.05(k), 2.10(b)(i) and 2.10(b)(iii)(B) of the Credit Agreement, the
Borrower is required to pledge as additional collateral security under the
Credit Agreement (and not required to deposit into the Shared Collateral
Account). The balance from time to time in the Lender Collateral Account shall
constitute part of the Collateral hereunder and shall remain in the Lender
Collateral Account until such time as (A) the Borrower is entitled to have such
balance released under the applicable provisions of the Credit Agreement
(including for the purpose of Reinvestment, in the case of any amounts deposited
into the Lender Collateral Account pursuant to Section 2.10(b)(i) or
2.10(b)(iii)(B) of the Credit Agreement), (B) the Borrower shall direct that
such amounts be applied to the payment of the Secured Obligations in the manner
specified in Section 5.09 or (C) following the occurrence and during the
continuance of an Event of Default, the Administrative Agent shall in its
discretion (or if directed by the Required Lenders) cause the same to be applied
to the payment of the Secured Obligations in the manner specified in Section
5.09. The balance
from time to time in the Lender Collateral Account shall be subject to
withdrawal only as provided herein.
In connection with the foregoing, the Obligors agree to execute and
deliver such control agreements with the Administrative Agent and the banking
institution at which such the Lender Collateral Account is to be established to
the extent requested by the Administrative Agent to perfect the security
interest therein created hereunder.
4.02 Proceeds of Accounts. If so requested by the Administrative
Agent at any time after the occurrence and during the continuance of an Event of
Default, each Obligor shall within five Business Days following such request
instruct all account debtors in respect of Accounts, Chattel Paper and General
Intangibles constituting any of the Collateral hereunder, and all obligors on
Instruments constituting any of the Collateral hereunder, to make all payments
in respect thereof either (a) directly to the Administrative Agent (by
instructing that such payments be remitted to a post office box which shall be
in the name and under the control of the Administrative Agent) or (b) to one or
more other banks in the United States of America (by instructing that such
payments be remitted to a post office box which shall be in the name and under
the control of the Administrative Agent) under arrangements, in form and
substance satisfactory to the Administrative Agent, pursuant to which such
Obligor shall have irrevocably instructed such other bank (and such other bank
shall have agreed) to remit all proceeds of such payments directly to the
Administrative Agent for deposit into the Lender Collateral Account. All
payments made to the Administrative Agent, as provided in the preceding
sentence, shall be immediately deposited in the Lender Collateral Account. In
addition to the foregoing, each Obligor agrees that, at any time after the
occurrence and during the continuance of an Event of Default, if the proceeds of
any Collateral hereunder (including the payments made in respect of Accounts to
the extent constituting part of the Collateral) shall be received by it, such
Obligor shall, upon the request of the Administrative Agent, as promptly as
possible deposit such proceeds into the Lender Collateral Account. Until so
deposited, all such proceeds shall be held in trust by such Obligor for and as
the property of the Administrative Agent and shall not be commingled with any
other funds or property of such Obligor.
4.03 Investment of Balance in Lender Collateral Account. The cash
balance standing to the credit of the Lender Collateral Account shall be
invested from time to time in such Permitted Investments as the respective
Obligor through the Borrower (or, after the occurrence and during the
continuance of an Event of Default, the Administrative Agent) shall determine,
which Permitted Investments shall be held in the name and be under the control
of the Administrative Agent (and credited to the Lender Collateral Account),
provided that at any time after the occurrence and during the continuance of an
Event of Default, the Administrative Agent may (and, if instructed by the
Lenders as specified in Article VIII of the Credit Agreement, shall) in its (or
their) discretion at any time and from time to time elect to liquidate any such
Permitted Investments and to apply or cause to be applied the proceeds thereof
to the payment of the Secured Obligations in the manner specified in Section
5.09.
4.04 Cover for LC Exposure. Amounts deposited into the Lender
Collateral Account as cover for LC Exposure pursuant to Section 2.05(k) of the
Credit Agreement shall be held by the Administrative Agent in a separate
sub-account (designated "LC Exposure Sub-Account") and all amounts held in such
sub-account shall constitute collateral security first for the LC Exposure
outstanding from time to time and second as collateral security for the other
Secured Obligations hereunder.
Section 5. Further Assurances; Remedies. In furtherance of the grant
of the pledge and security interest pursuant to Section 3.01, the Obligors
hereby jointly and severally agree with the Administrative Agent for the benefit
of the Secured Parties as follows:
5.01 Delivery and Other Perfection. Each Obligor shall:
(a) if any of the shares, securities, moneys or property required to
be pledged by such Obligor under Section 3.01(g) are received by such
Obligor, forthwith either (x) transfer and deliver to the Administrative
Agent such shares or securities so received by such Obligor (together with
the certificates for any such shares, if any, and securities duly endorsed
in blank or accompanied by undated stock powers duly executed in blank),
all of which thereafter shall be held by the Administrative Agent,
pursuant to the terms of this Agreement, as part of the Collateral or (y)
take such other action as the Administrative Agent shall deem necessary or
appropriate to duly record the Lien created hereunder in such shares,
securities, moneys or property in said clause (g), provided that the
Obligors need not deliver certificates evidencing any equity interest in a
Foreign Subsidiary if (i) in the case of any Foreign Subsidiary in
existence on the date hereof, such certificates cannot on the date hereof
be located, so long as the Borrower agrees with the Administrative Agent
to cause such certificates accompanied by undated stock powers or
endorsements executed in blank to be delivered within 30 days of the date
hereof, or such longer period, but not in any event longer than 90 days,
as shall be satisfactory to the Administrative Agent or (ii) such equity
interests are uncertificated or, under applicable law, may not be held in
New York;
(b) deliver and pledge to the Administrative Agent any and all
Instruments constituting part of the Collateral in which such Obligor
purports to grant a security interest hereunder relating to amounts
exceeding $5,000,000 (unless an Event of Default shall have occurred and
be continuing, in which case the foregoing threshold limit shall not
apply), endorsed and/or accompanied by such instruments of assignment and
transfer in such form and substance as the Administrative Agent may
request; provided that so long as no Event of Default shall have occurred
and be continuing, such Obligor may retain for collection in the ordinary
course any such Instruments received by such Obligor in the ordinary
course of business and the Administrative Agent shall, promptly upon the
request of such Obligor through the Borrower, make appropriate
arrangements for making any such Instrument pledged by such Obligor
available to such Obligor for
purposes of presentation, collection or renewal (any such arrangement to
be effected, to the extent deemed appropriate by the Administrative Agent,
against trust receipt or like document);
(c) give, execute, deliver, file, record, authorize or obtain all
such financing statements, notices, instruments, documents, agreements or
consent or other papers, and take such other action, as may be necessary
or desirable (in the judgment of the Administrative Agent) to create,
preserve, perfect, validate or preserve the priority of the security
interest granted pursuant hereto or to enable the Administrative Agent to
exercise and enforce its rights hereunder with respect to such pledge and
security interest, including, but only while an Event of Default has
occurred and is continuing, causing any or all of the Equity Collateral to
be transferred of record into the name of the Administrative Agent or its
nominee (and the Administrative Agent agrees that if any Equity Collateral
is transferred into its name or the name of its nominee, the
Administrative Agent will thereafter promptly give to the respective
Obligor copies of any notices and communications received by it with
respect to the Equity Collateral pledged by such Obligor hereunder),
provided that (i) notices to account debtors in respect of any Accounts,
Chattel Paper or General Intangibles constituting any of the Collateral
hereunder, and to obligors on Instruments constituting any of the
Collateral hereunder, shall be subject to the provisions of clause (g)
below, (ii) unless and until an Event of Default shall have occurred and
be continuing, such Obligor shall not be required to take action to
perfect the security interest of the Administrative Agent in any Deposit
Account (other than the Lender Collateral Account) constituting any part
of the Collateral hereunder and (iii) this clause (c) shall not be
applicable to Instruments (as to which clause (b) above shall be
applicable) or Equipment covered by a certificate of title or ownership
(as to which clause (d) below shall be applicable);
(d) without limiting the obligations of such Obligor under Section
5.04, upon the acquisition after the date hereof by such Obligor of any
Equipment (to the extent constituting part of the Collateral) covered by a
certificate of title or ownership having a fair market value exceeding
$1,000,000 (unless an Event of Default shall have occurred and be
continuing, in which case the foregoing threshold limit shall not apply),
cause the Administrative Agent to be listed as the lienholder on such
certificate of title and take such steps as may be required under the law
applicable to perfection of a security interest in such property to
perfect such security interest, and within 120 days of the acquisition
thereof deliver evidence of the same to the Administrative Agent;
(e) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise ▇▇▇▇ such books and records in such
manner as the Administrative Agent may reasonably require in order to
reflect the security interests granted by this Agreement;
(f) permit representatives of the Administrative Agent, upon
reasonable prior notice, to visit and inspect its properties, to examine
and make abstracts from its books and records pertaining to the Collateral
and forward to the Administrative Agent copies of any notices or
communications received by such Obligor with respect to the Collateral,
and (at any time following the occurrence and during the continuance of an
Event of Default) permit representatives of the Administrative Agent to be
present at such Obligor's place of business to receive copies of all
communications and remittances relating to the Collateral, all in such
manner as the Administrative Agent may require; and
(g) upon the occurrence and during the continuance of an Event of
Default, upon the request of the Administrative Agent, promptly notify
(and such Obligor hereby authorizes the Administrative Agent to so notify)
each account debtor in respect of any Accounts, Chattel Paper, Instruments
or General Intangibles constituting any of the Collateral hereunder of
such Obligor that such Collateral has been assigned to the Administrative
Agent hereunder, and that any payments due or to become due in respect of
such Collateral are to be made directly to the Administrative Agent.
5.02 Other Financing Statements and Liens. Except with respect to
Liens permitted under Section 6.02 of the Credit Agreement, without the prior
written consent of the Administrative Agent (granted with the authorization of
the Lenders as specified in Section 9.02(b) of the Credit Agreement), no Obligor
shall (a) file or suffer to be on file, or authorize or permit to be filed or to
be on file, in any jurisdiction, any financing statement or like instrument with
respect to any of the Collateral in which the Administrative Agent is not named
as the sole secured party for the benefit of the Secured Parties, or (b) cause
or permit any Person other than the Administrative Agent to have "control" (as
defined in Section 9-104, 9-105, 9-106 or 9-107 of the UCC) of any Deposit
Account, Electronic Chattel Paper, Investment Property or Letter-of-Credit Right
constituting part of the Collateral.
5.03 Preservation of Rights. No Secured Party shall be required to
take steps necessary to preserve any rights against prior parties to any of the
Collateral.
5.04 Special Provisions Relating to Equity Collateral and Motor
Vehicles.
(a) Equity Collateral.
(1) Percentage Pledged. The Obligors will cause the Equity
Collateral to constitute at all times 100% of the total number of shares
of each class of capital stock of each Issuer then outstanding held by the
Obligors, provided that in the case of any Issuer that is a Foreign
Subsidiary (other than a Special Purpose Foreign Subsidiary), the Obligors
shall only be required to pledge 65% of the total number of shares of the
voting stock of each such Issuer then issued and outstanding (to the
extent held by them) and 100% of the total number of shares of all other
classes of capital stock of each such Issuer then issued and outstanding
(to the extent held by them), or such greater percentage of such stock of
such Foreign Subsidiary as shall be agreed to by the Obligors pursuant to
the requirements of Section 5.11 of the Credit Agreement.
(2) Voting and Other Rights. So long as no Event of Default shall
have occurred and be continuing, the Obligors shall have the right to
exercise all voting, consensual and other powers of ownership pertaining
to the Equity Collateral for all purposes not inconsistent with the terms
of any Loan Document or any other instrument or agreement referred to
herein or therein, provided that the Obligors jointly and severally agree
that they will not vote the Equity Collateral in any manner that is
inconsistent with the terms of any Loan Document or any such other
instrument or agreement; and the Administrative Agent shall execute and
deliver to the Obligors or cause to be executed and delivered to the
Obligors all such proxies, powers of attorney, dividend and other orders,
and all such instruments, without recourse, as the Obligors may reasonably
request for the purpose of enabling the Obligors to exercise the rights
and powers that they are entitled to exercise pursuant to this Section
5.04(a)(2).
(3) Dividends, Etc. Unless and until an Event of Default has
occurred and is continuing and the Collateral Trustee shall have made a
request therefor to the Borrower, the Obligors shall be entitled to
receive and retain any dividends, distributions or proceeds in respect of
the Equity Collateral.
(4) Rights Following Default. If any Event of Default shall have
occurred and the Administrative Agent shall have made a request therefore
to the Borrower, then so long as such Event of Default shall continue, and
whether or not the Administrative Agent or any Secured Party exercises any
available right to declare any Secured Obligation due and payable or seeks
or pursues any other relief or remedy available to it under applicable law
or under any Loan Document or any other agreement relating to such Secured
Obligation, all dividends and other distributions on the Equity Collateral
shall be paid directly to the Administrative Agent and retained by it in
the Lender Collateral Account as part of the Equity Collateral, subject to
the terms of this Agreement, and, if the Administrative Agent shall so
request in writing, the Obligors jointly and severally agree to execute
and deliver to the Administrative Agent appropriate additional dividend,
distribution and other orders and documents to that end, provided that if
such Event of Default is cured, any such dividend or distribution
theretofore paid to the Administrative Agent shall, upon the request of
the Obligors (except to the extent theretofore applied to the Secured
Obligations), be returned by the Administrative Agent to the Obligors.
(b) Motor Vehicles. At any time after the occurrence and during the
continuance of an Event of Default, each Obligor shall, upon the request of the
Administrative Agent, deliver to the Administrative Agent originals of the
certificates of title or ownership for the Motor Vehicles owned by it with the
Administrative Agent
listed as lienholder and take such other action as the Administrative Agent
shall deem appropriate to perfect the security interest created hereunder in all
such Motor Vehicles.
5.05 Events of Default, Etc. During the period during which an Event
of Default shall have occurred and be continuing:
(a) each Obligor shall, upon the request of the Administrative
Agent, assemble the Collateral owned by it to the extent commercially
reasonable at such place or places, reasonably convenient to both the
Administrative Agent and such Obligor, designated in such request;
(b) the Administrative Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of the Collateral and may
extend the time of payment, arrange for payment in installments, or
otherwise modify the terms of, any of the Collateral;
(c) the Administrative Agent shall have all of the rights and
remedies with respect to the Collateral of a secured party under the
Uniform Commercial Code (whether or not the Uniform Commercial Code is in
effect in the jurisdiction where the rights and remedies are asserted) and
such additional rights and remedies to which a secured party is entitled
under the laws in effect in any jurisdiction where any rights and remedies
hereunder may be asserted, including the right, to the maximum extent
permitted by law, to exercise all voting, consensual and other powers of
ownership pertaining to the Collateral as if the Administrative Agent were
the sole and absolute owner thereof (and each Obligor agrees to take all
such action as may be appropriate to give effect to such right);
(d) the Administrative Agent in its discretion may, in its name or
in the name of the Obligors or otherwise, demand, ▇▇▇ for, collect or
receive any money or property at any time payable or receivable on account
of or in exchange for any of the Collateral, but shall be under no
obligation to do so; and
(e) the Administrative Agent may, upon ten Business Days' prior
written notice to the Obligors of the time and place, with respect to the
Collateral or any part thereof that shall then be or shall thereafter come
into the possession, custody or control of the Administrative Agent, the
other Secured Parties or any of their respective agents, sell, lease,
assign or otherwise dispose of all or any part of such Collateral, at such
place or places as the Administrative Agent deems best, and for cash or
for credit or for future delivery (without thereby assuming any credit
risk), at public or private sale, without demand of performance or notice
of intention to effect any such disposition or of the time or place
thereof (except such notice as is required above or by applicable statute
and cannot be waived), and any Secured Party or anyone else may be the
purchaser, lessee, assignee or recipient of any or all of the Collateral
so disposed of at any public sale (or, to the extent permitted by law, at
any private sale) and thereafter hold the same absolutely, free from any
claim or right of whatsoever kind, including any right or equity of
redemption
(statutory or otherwise), of the Obligors, any such demand, notice and
right or equity being hereby expressly waived and released. The
Administrative Agent may, without notice or publication, adjourn any
public or private sale or cause the same to be adjourned from time to time
by announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the sale may be so adjourned.
The Proceeds of each collection, sale or other disposition under this Section
5.05, including by virtue of the exercise of the license granted to the
Administrative Agent in Section 5.04(a), shall be applied in accordance with
Section 5.09.
The Obligors recognize that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Administrative Agent may be compelled, with respect to any
sale of all or any part of the Collateral, to limit purchasers to those who will
agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. The
Obligors acknowledge that any such private sales may be at prices and on terms
less favorable to the Administrative Agent than those obtainable through a
public sale without such restrictions, and, notwithstanding such circumstances,
agree that any such private sale shall be deemed to have been made in a
commercially reasonable manner and that the Administrative Agent shall have no
obligation to engage in public sales and no obligation to delay the sale of any
Collateral for the period of time necessary to permit the respective Issuer or
issuer thereof to register it for public sale.
5.06 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 5.05 are insufficient
to cover the costs and expenses of such realization and the payment in full of
the Secured Obligations, the Obligors shall remain liable for any deficiency.
5.07 Removals, Etc. Without at least 30 days' prior written notice
to the Administrative Agent, no Obligor shall change its "location" (as defined
in Section 9-307 of the UCC) or change its name from the name shown as its
current legal name in Annex 1.
5.08 Private Sale. None of the Secured Parties shall incur any
liability as a result of the sale of the Collateral, or any part thereof, at any
private sale pursuant to Section 5.05 conducted in a commercially reasonable
manner and otherwise in compliance with the UCC. Each Obligor hereby waives any
claims against any Secured Party arising by reason of the fact that the price at
which the Collateral may have been sold at such a private sale was less than the
price that might have been obtained at a public sale or was less than the
aggregate amount of the Secured Obligations, even if the Administrative Agent
accepts the first offer received and does not offer the Collateral to more than
one offeree.
5.09 Application of Proceeds. Except as otherwise herein expressly
provided and except as provided below in this Section 5.09, the Proceeds of any
collection, sale or other realization of all or any part of the Collateral
pursuant hereto, and any other cash at the time held by the Administrative Agent
under Section 4 or this Section 5, shall be applied by the Administrative Agent:
First, to the payment of the costs and expenses of such collection,
sale or other realization, including reasonable out-of-pocket costs and
expenses of the Administrative Agent and each other Secured Party and the
fees and expenses of its agents and counsel, and all expenses incurred and
advances made by the Administrative Agent or such other Secured Party in
connection therewith;
Second, to the payment in full of the Secured Obligations, in each
case equally and ratably in accordance with the respective amounts thereof
then due and owing or as the Lenders holding the same may otherwise agree;
and
Finally, to the payment to the respective Obligors, or their
respective successors or assigns, or as a court of competent jurisdiction
may direct, of any surplus then remaining.
Notwithstanding the foregoing, the proceeds of any cash or other amounts held in
the "LC Exposure Sub-Account" of the Lender Collateral Account pursuant to
Section 4.04 shall be applied first to the LC Exposure outstanding from time to
time and second to the other Secured Obligations in the manner provided above in
this Section 5.09.
5.10 Attorney-in-Fact. Without limiting any rights or powers granted
by this Agreement to the Administrative Agent while no Event of Default has
occurred and is continuing, upon the occurrence and during the continuance of
any Event of Default the Administrative Agent is hereby appointed the
attorney-in-fact of each Obligor for the purpose of carrying out the provisions
of this Section 5 and taking any action and executing any instruments that the
Administrative Agent may deem necessary or advisable to accomplish the purposes
hereof, which appointment as attorney-in-fact is irrevocable and coupled with an
interest. Without limiting the generality of the foregoing, so long as the
Administrative Agent shall be entitled under this Section 5 to make collections
in respect of the Collateral, the Administrative Agent shall have the right and
power to receive, endorse and collect all checks made payable to the order of
any Obligor representing any dividend, payment or other distribution in respect
of the Collateral or any part thereof and to give full discharge for the same.
5.11 Perfection at Closing. Prior to or concurrently with the
execution and delivery of this Agreement, each Obligor shall (i) other than for
any property excluded from the Collateral pursuant to Section 3.02, file such
financing statements and other documents in such offices as the Administrative
Agent may request to perfect the security interests granted by Section 3.01,
(ii) execute and deliver such short form assignments or security agreements
relating to Collateral consisting of the Intellectual Property as the
Administrative Agent may reasonably request, and (iii) deliver to the
Administrative Agent all certificates identified in Annex 3, accompanied by
undated stock powers duly executed in blank, and, to the extent required under
section 5.01(b), all
promissory notes and other instruments evidencing any Pledged Debt identified in
Annex 4 (provided that the Obligors need not deliver certificates evidencing any
equity interest in a Foreign Subsidiary if in the case of any Foreign Subsidiary
in existence on the date hereof, such certificates cannot on the date hereof be
located, so long as the Borrower agrees with the Administrative Agent to cause
such certificates accompanied by undated stock powers or endorsements executed
in blank to be delivered within 30 days of the date hereof, or such longer
period, but not in any event longer than 90 days, as shall be satisfactory to
the Administrative Agent).
Without limiting the foregoing, each Obligor consents that Uniform
Commercial Code financing statements may be filed describing the Collateral as
set forth in Section 3. Notwithstanding the foregoing, unless and until an Event
of Default shall have occurred and be continuing, no Obligor shall be required
to take action to perfect the security interest in any Deposit Account of such
Obligor constituting part of the Collateral other than in respect of the Lender
Collateral Account.
5.12 Termination. When all Secured Obligations shall have been paid
in full and the Commitments and Letters of Credit of the Lenders under the
Credit Agreement shall have terminated, this Agreement shall terminate, and the
Administrative Agent shall forthwith cause to be assigned, transferred and
delivered, against receipt but without any recourse, warranty or representation
whatsoever, any remaining Collateral and money received in respect thereof, to
or on the order of the respective Obligor and to be released and canceled all
licenses and rights referred to in Section 5.04(a). The Administrative Agent
shall also execute and deliver to the respective Obligor upon such termination
such Uniform Commercial Code termination statements, certificates for
terminating the Liens on the Motor Vehicles and such other documentation as
shall be reasonably requested by the respective Obligor to effect the
termination and release of the Liens on the Collateral.
5.13 Further Assurances. Each Obligor agrees that, from time to time
upon the written request of the Administrative Agent, such Obligor will execute
and deliver such further documents and do such other acts and things as the
Administrative Agent may reasonably request in order fully to effect the
purposes of this Agreement.
Section 6. Miscellaneous.
6.01 Notices. All notices and other communications provided for
herein shall be in writing and shall be delivered to the intended recipient as
specified in Section 9.01 of the Credit Agreement and shall be deemed to have
been given at the times specified in said Section 9.01.
6.02 No Waiver. No failure on the part of any Secured Party to
exercise, and no course of dealing with respect to, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise by any Secured Party of any right, power or
remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
6.03 Amendments, Etc. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by each
Obligor and the Administrative Agent (with the consent of the Lenders to the
extent specified in Section 9.02 of the Credit Agreement). Any such amendment or
waiver shall be binding upon the Secured Parties, each holder of any of the
Secured Obligations and each Obligor.
6.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Obligors jointly and severally agree to
pay (i) all reasonable out-of-pocket expenses incurred by the Administrative
Agent and its affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection with the
preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
out-of-pocket expenses incurred by the Administrative Agent, including the fees,
charges and disbursements of any counsel for the Administrative Agent, in
connection with the enforcement or protection of its rights in connection with
this Agreement, including its rights under this Section 6.04, including in
connection with any workout, restructuring or negotiations in respect thereof
and (iii) all costs, expenses, taxes, assessments and other charges incurred in
connection with any filing, registration, recording or perfection of any
security interest contemplated by this Agreement or any other document referred
to therein.
(b) Indemnification by the Obligors. The Obligors jointly and
severally agree to indemnify the Administrative Agent, each other Secured Party
and each Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of any counsel for any Indemnitee, incurred by
or asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the transactions
contemplated hereby, or (ii) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee.
(c) Waiver of Consequential Damages, Etc. To the extent permitted by
applicable law, no Obligor shall assert, and each Obligor hereby waives, any
claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby.
(d) Payments. All amounts due under this Section 6.04 shall be
payable promptly after written demand therefor.
(e) Survival. The provisions of this Section 6.04 shall survive and
remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.
6.05 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of each
Obligor, the Secured Parties and each holder of any of the Secured Obligations
(provided however that no Obligor shall assign or transfer its rights or
obligations hereunder without the prior written consent of the Administrative
Agent).
6.06 Counterparts. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. Delivery of an executed counterpart of a signature page to this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
6.07 Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in accordance
with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each Obligor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in the State of New York or, to the
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent or any other Secured Party may otherwise
have to bring any action or proceeding relating to this Agreement against any
Obligor or its properties in the courts of any jurisdiction.
(c) Waiver of Venue. Each Obligor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section 6.07. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Service of Process. Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in Section
6.01. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
6.08 Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.08.
6.09 Captions. The captions and section headings appearing herein
are included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Agreement.
6.10 Certain Regulatory Requirements. Any provision contained herein
to the contrary notwithstanding (but without limiting the generality of the
provisions of Section 6.14), no action shall be taken hereunder by the
Administrative Agent or any Secured Party with respect to any item of Collateral
unless and until all applicable requirements (if any) of the FCC under the
Communications Act of 1934, as amended, and the respective rules and regulations
thereunder and thereof, as well as any other federal, state or local laws, rules
and regulations of other regulatory or governmental bodies applicable to or
having jurisdiction over the Obligors (or any entity under the control of the
Obligors), have been satisfied with respect to such action and there have been
obtained such consents, approvals and authorizations (if any) as may be required
to be obtained from the FCC and any other governmental authority under the terms
of any license or operating right held by the Obligors (or any entity under the
control of the Obligors).
Without limiting the generality of the foregoing, the Administrative
Agent (on behalf of itself and the Secured Parties) hereby agrees that (a)
voting and consensual rights in the ownership interest of any Obligor (the
"Pledged Interest") will remain with the holders of such voting and consensual
rights upon and following the occurrence of an
Event of Default unless and until any required prior approvals of the FCC to the
transfer of such voting and consensual rights to the Administrative Agent shall
have been obtained; (b) upon the occurrence of any Event of Default and
foreclosure of the Pledged Interest pursuant to this Agreement there will be
either a private or public sale of the Pledged Interests; and (c) prior to the
exercise of voting or consensual rights by the purchaser at any such sale, the
prior consent of the FCC pursuant to 47 U.S.C. ss.310(d) will be obtained, as
well as such licenses, approvals, authorizations and consents as may be required
by the U.S. Department of State pursuant to the International Traffic in Arms
Regulations and the U.S. Department of Commerce pursuant to the Export
Administration Regulations.
It is the intention of the parties hereto that the Liens in favor of
the Administrative Agent on the Collateral shall in all relevant aspects be
subject to and governed by said statutes, rules and regulations and that nothing
in this Agreement shall be construed to diminish the control exercised by the
Obligors except in accordance with the provisions of such statutory
requirements, rules and regulations. Each Obligor agrees that upon the request
from time to time by the Administrative Agent it will actively pursue obtaining
any governmental, regulatory or third party consents, approvals or
authorizations referred to in this Section 6.10, including, upon any request of
the Administrative Agent following an Event of Default, the preparation, signing
and filing with (or causing to be prepared, signed and filed with) (i) the FCC
of any application or application for consent to the assignment of the FCC
Licenses or transfer of control required to be signed by the Borrower or any of
its Subsidiaries necessary or appropriate under the FCC's rules and regulations
for approval of any sale or transfer of any of the Pledged Interests or the
assets of the Borrower or any of its Subsidiaries or any transfer of control in
respect of any FCC License, and (ii) the U.S. Department of State pursuant to
the International Traffic in Arms Regulations and the U.S. Department of
Commerce pursuant to the Export Administration Regulations, as applicable, of
any application for consent to transfer the Pledged Interests or the assets of
the Borrower or any of its Subsidiaries necessary or appropriate under such
regulations.
6.11 Agents and Attorneys-in-Fact. The Administrative Agent may
employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the gross negligence or willful misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
6.12 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
6.13 Additional Obligors. As contemplated in Section 5.11(a) of the
Credit Agreement, a new Subsidiary of the Borrower formed or acquired by the
Borrower after the date hereof may become a "Subsidiary Guarantor" under the
Guarantee
Agreement and an "Obligor" under this Agreement by executing and delivering to
the Administrative Agent and the Collateral Trustee a Guarantee Assumption
Agreement in the form of Exhibit F to the Credit Agreement. Accordingly, upon
the execution and delivery of any such Guarantee Assumption Agreement by any
such Subsidiary, such new Subsidiary shall automatically and immediately, and
without any further action on the part of any Person, become an "Obligor" for
all purposes of this Agreement, and each of the Annexes hereto shall be
supplemented in the manner specified in such Guarantee Assumption Agreement.
6.14 Certain Regulatory Matters. The creation of any Lien, and the
exercise of any remedy, with respect to any FCC License shall be consistent with
the rules and regulations administered by the FCC, including 47 C.F.R. ss.
25.140(d), in accordance with which the Administrative Agent hereby agrees to
provide the Obligors and the FCC, no less than 10 days prior written notice
before any Satellite or any TT&C Station that is the subject of FCC Licenses
shall be repossessed by the Administrative Agent upon an exercise of any rights
or remedies hereunder.
6.15 Covenant of Quiet Enjoyment. The Administrative Agent hereby
agrees that, with respect to any transponder lease or a lease of an Excluded
Satellite constituting any Collateral hereunder, the Administrative Agent shall
be deemed to have consented to a covenant of quiet enjoyment in substantially
the form of Schedule XIII to the Credit Agreement, which consent shall be for
the benefit of the respective lessee under such lease. The Administrative Agent
hereby consents to the Obligors delivering a copy of this Security Agreement and
of said Schedule XIII to any lessee party to any such lease to demonstrate the
Administrative Agent's agreement hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
PANAMSAT CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: Executive Vice President and
Chief Financial Officer
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SUBSIDIARY GUARANTORS
NET/36, INC. PANAMSAT ASIA CARRIER
SERVICES, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------- -------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President - Title: Senior Vice President and
Corporate Development and Chief Financial Officer
Corporate Secretary
PANAMSAT CAPITAL CORPORATION PANAMSAT CARRIER SERVICES, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------- -------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President - Title: Senior Vice President and
Corporate Development, Chief Financial Officer
General Counsel and
Corporate Secretary
PANAMSAT COMMUNICATIONS PANAMSAT COMMUNICATIONS
CARRIER SERVICES, INC. JAPAN, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------- -------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President - Title: Senior Vice President and
Corporate Development, Chief Financial Officer
General Counsel and
Corporate Secretary
PANAMSAT COMMUNICATIONS PANAMSAT INDIA, INC.
SERVICES, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------- -------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President - Title: Senior Vice President and
Corporate Development, Chief Financial Officer
General Counsel and
Corporate Secretary
PANAMSAT INDIA MARKETING, L.L.C. PANAMSAT INTERNATIONAL
HOLDINGS, INC.
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager Title: Senior Vice President and
Chief Financial Officer
PANAMSAT INTERNATIONAL PANAMSAT INTERNATIONAL
SALES, INC. SYSTEMS, INC.
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President - Title: Senior Vice President and
Corporate Development, Chief Financial Officer
General Counsel and
Corporate Secretary
PANAMSAT INTERNATIONAL PANAMSAT INTERNATIONAL
SYSTEMS, L.L.C. SYSTEMS MARKETING, LLC
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Manager Title: Manager
PANAMSAT LICENSEE CORP. PANAMSAT MARKETING
CORPORATION
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President - Title: Senior Vice President and
Corporate Development, Chief Financial Officer
General Counsel and
Corporate Secretary
PAS INTERNATIONAL SERVICE AND EQUIPMENT
EMPLOYMENT, INC. CORPORATION
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President - Title: Senior Vice President and
Corporate Development, Chief Financial Officer
General Counsel and
Corporate Secretary
SOUTHERN SATELLITE CORP. SOUTHERN SATELLITE
LICENSEE CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President - Title: Senior Vice President and
Corporate Development, Chief Financial Officer
General Counsel and
Corporate Secretary
USHI, INC.
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President -
Corporate Development,
General Counsel and
Corporate Secretary
PANAMSAT INTERNATIONAL
SYSTEMS LIMITED
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Secretary
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
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Title: Managing Director
Name: ▇▇▇▇ ▇▇▇▇▇▇