EXHIBIT 7
PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT (this "Agreement"),
dated as of May 16, 1997, is entered into by SATELLITE COMPANY,
LLC, a Nevada limited liability company, and GRUPO TELEVISA,
S.A., a corporation (Sociedad Anonima) organized under the laws
of Mexico (together, the "Debtors"), in favor of IBJ XXXXXXXX
BANK & TRUST COMPANY, a New York banking corporation, as Trustee
under the Collateral Trust Agreement described below ("Secured
Party").
RECITALS
A. The Debtors and Magellan International, Inc., a
Delaware corporation ("Newco"), and Xxxxxx Communications, Inc.,
a California corporation ("HCI" and, together with Newco, the
"Newco Group") are parties to a Stock Contribution and Exchange
Agreement, dated as of September 20, 1996.
B. Pursuant to the Stock Contribution and Exchange
Agreement, (i) the Debtors and Newco Group have entered into a
Collateral Trust Agreement with Secured Party, as Trustee, dated
as of May 16, 1997, under which Secured Party holds the Trust
Estate therein described in trust as set forth therein (as from
time to time amended, the "Collateral Trust Agreement"), and (ii)
the Debtors are executing and delivering this Pledge and Security
Agreement to Secured Party to hold as part of such Trust Estate.
AGREEMENT
In consideration of the foregoing and the mutual
promises contained herein and for other good and valuable
consideration the receipt and adequacy of which are hereby
acknowledged, the Debtors, intending to be legally bound, hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION I.1 Collateral Trust Agreement Definitions.
The following terms shall have the meanings assigned to them in
the Collateral Trust Agreement:
Cash Equivalents
Letter of Credit
Newco Common Stock
Initial Trust Estate
Stock Contribution and Exchange Agreement
Trust Estate
SECTION I.2 U.C.C. Definitions. Where applicable and
except as otherwise expressly provided herein, terms used herein
(whether or not capitalized) shall have the respective meanings
assigned to them in the Uniform Commercial Code as in effect in
the State of New York on the date of the Stock Contribution and
Exchange Agreement (the "Code").
SECTION I.3 Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings:
"Agreement" means this Pledge and Security Agreement.
"Collateral" is defined in Section 2.1.
"Event of Default" means any of the following events:
(i) a Debtor fails to pay any Secured Obligation when due, and
such failure continues for 10 calendar days after either (A) it
is acknowledged in writing by any Debtor or (B) such Secured
Obligation is determined to be due and payable in arbitration
proceedings conducted in accordance with Section 24 of the
Collateral Trust Agreement or by order of a court of competent
jurisdiction; (ii) any representation or warranty made by any
Debtor in the Collateral Trust Agreement or this Agreement proves
to have been inaccurate in any material respect when made, and
such inaccuracy continues for 30 calendar days after written
notice thereof is given to the Debtors by Secured Party or by
Newco Group; (iii) any Debtor fails to perform or observe any
term, covenant or agreement contained in the Collateral Trust
Agreement or this Agreement, and such failure continues for 30
calendar days after either (A) it is acknowledged in writing by
any Debtor or (B) such failure is determined to have occurred and
such term, covenant or agreement is determined to be enforceable
in arbitration proceedings conducted in accordance with Section
24 of the Collateral Trust Agreement or by order of a court of
competent jurisdiction; (iv) any Debtor admits in writing its
inability to pay its debts generally or makes a general
assignment for the benefit of creditors; (v) any proceeding is
instituted by or against any Debtor seeking an order for relief
under the United States Bankruptcy Code or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts or the appointment of a
receiver, trustee, custodian or other similar official for it or
for any substantial part of its property under any law relating
to bankruptcy, insolvency, liquidation or reorganization or
relief of debtors and either (A) any such relief in any such
proceeding is sought or consented to by it or an order for any
such relief is entered against it, or (B) any such proceeding
instituted against it remains undismissed and unstayed for a
period of 60 calendar days; (vi) any Debtor takes any corporate
action to authorize any of the actions described in clause v
above; (vii) any provision of the Collateral Trust Agreement or
this Agreement for any reason ceases to be valid and binding on
any Debtor in any respect materially adverse to Secured Party or
the holders of Secured Obligations, and a valid and binding
reasonably equivalent substitute is not offered to Secured Party,
to be held in trust as part of the Trust Estate, within 30
calendar days after written notice thereof is given to the
Debtors by Secured Party or by Newco Group; (viii) any Debtor
repudiates or purports to revoke or terminate, in any material
respect, any of its obligations under the Collateral Trust
Agreement or this Agreement, and such event continues for 10
calendar days after written notice thereof is given to the
Debtors by Secured Party or by Newco Group; or (ix) the
Collateral Trust Agreement and this Agreement for any reason do
not create or cease to create a valid and perfected first
priority security interest in any property described herein as
part of the Collateral, and such event continues for 10 calendar
days after written notice thereof is given to the Debtors by
Secured Party or by Newco Group.
"Lien" means any mortgage, deed of trust, lien, pledge,
charge, security interest, hypothecation, assignment, deposit
arrangement or encumbrance of any kind in respect of any asset,
whether or not filed, recorded or otherwise perfected or
effective under applicable law, as well as the interest of a
vendor or lessor under any conditional sale agreement, capital or
finance lease or other title retention agreement relating to such
asset.
"Proceeds" includes (i) any and all payments,
dividends, cash, options, warrants, rights, instruments and other
property of any type or nature at any time received, receivable
or otherwise distributed, voluntarily or involuntarily, on
account of, in respect of or in replacement, substitution or
exchange for any item of Collateral or upon the collection, sale,
or other disposition of any item of Collateral; (ii) any and all
insurance or payments under any indemnity, warranty or guaranty
now or hereafter payable in respect of any item of Collateral or
any proceeds thereof or any loss relating thereto; (iii) any and
all claims against any person or entity based on or in any
respect relating to or arising from any item of Collateral; (iv)
any and all "proceeds" of any Collateral, as the term "proceeds"
is used in the Code; and (v) any and all property and interests
in property acquired with or in exchange for any of the
foregoing.
"Secured Obligations" means each and all present and
future indemnities, liabilities and obligations of every type and
description of any or all of the Debtors at any time arising
under, pursuant to or in respect of (i) Article VIII of the Stock
Contribution and Exchange Agreement, (ii) this Agreement, or
(iii) the Collateral Trust Agreement (in each case whether now
outstanding or hereafter arising or incurred, whether sole,
joint, several, or joint and several and, in the case of each
Debtor, whether owed by it or by any other Debtor) and all costs
and expenses incurred by Secured Party in asserting, collecting,
enforcing or protecting its security interest in any Collateral
in any bankruptcy case or insolvency proceeding to which any
Debtor may be party and all collection costs and enforcement
expenses incurred by Secured Party in retaking, holding,
preparing for sale, selling or otherwise disposing of or
realizing on any Collateral or otherwise exercising or enforcing
any of its rights or remedies hereunder, together with Secured
Party's reasonable attorneys' fees and disbursements and court
costs related thereto.
"Secured Party" means the person identified as such in
the preamble to this Agreement, acting as Trustee under the
Collateral Trust Agreement, and any successor Trustee thereunder.
ARTICLE II
SECURITY INTEREST AND COLLATERAL
SECTION II.1 Creation of Security Interest. As
security for the due and punctual payment and performance of each
and all of the Secured Obligations, each Debtor hereby grants
Secured Party a security interest in all right, title and
interest of such Debtor in, to, under or derived from the
following property (collectively, the "Collateral"), in each case
whether now owned or hereafter acquired by such Debtor and
wherever located:
(a) NEWCO COMMON STOCK: 5,000,000 shares of
Newco Common Stock and all other stock of Newco at any time
delivered or transferred to or held by Secured Party as part
of the Trust Estate;
(b) CASH, CASH EQUIVALENTS AND OTHER ASSETS OF
THE TRUST ESTATE: All cash, Cash Equivalents and other
property of every type and description now or at any time
hereafter constituting part of the Trust Estate;
(c) INTEREST IN THE TRUST ESTATE OR UNDER THE
TRUST AGREEMENT: All rights and interests of every type
and description, whenever and however arising, in or to the
Trust Estate or in, to or under the Collateral Trust
Agreement; and
(d) PROCEEDS: All Proceeds, except Proceeds
that have been released from the Trust Estate and delivered
to Contributor pursuant to the Collateral Trust Agreement.
SECTION II.2 Delivery of Instruments. All stock
certificates, notes, bonds, debentures and other instruments
constituting Collateral shall be delivered to and held by Secured
Party, without any notice from or demand by Secured Party, in
each case in suitable form for transfer by delivery or
accompanied by duly executed instruments of transfer or
assignments in blank or with appropriate endorsements, in form
and substance satisfactory to Secured Party.
SECTION II.3 Further Assurances. Each Debtor will
promptly (and in no event later than five days after request by
Secured Party) execute and deliver, and use its reasonable and
diligent best efforts to obtain from others, any and all
instruments, certificated securities and documents (including,
without limitation, assignments, transfer documents and transfer
notices, financing statements and other lien notices), in form
and substance satisfactory to Secured Party, and take all other
actions which are necessary or, in the good faith judgment of
Secured Party, desirable or appropriate to create, perfect,
protect, or enforce Secured Party's security interests in the
Collateral, to enable Secured Party to exercise and enforce its
rights and remedies hereunder with respect to any Collateral, to
protect the Collateral against the rights, claims or interests of
third persons, or to effect or to assure further the purposes and
provisions of this Agreement, and the Debtors will pay all costs
related thereto and all reasonable expenses incurred by Secured
Party in connection therewith.
SECTION 2.4 Survival of Security Interest. Except as
otherwise required by law, the security interest granted hereby
shall, except as to property released from the Trust Estate and
delivered to or for account of the Debtors by Secured Party
pursuant to the Collateral Trust Agreement, (i) remain
enforceable as security for any and all Secured Obligations,
whether now outstanding or created or incurred at any future
time, until all of the Secured Obligations have been indefeasibly
paid, retired and discharged, and (ii) survive any sale, exchange
or other disposition by a Debtor of its interest in any
Collateral and remain enforceable against each transferee and
subsequent owner of such interest (to the fullest extent
permitted under applicable law), even if such sale, exchange or
other disposition is permitted at the time under the Collateral
Trust Agreement.
SECTION 2.5 Reinstatement. If at any time any payment
on any Secured Obligation is set aside, avoided, or rescinded or
must otherwise be restored or returned, this Agreement and the
security interest created hereby shall remain in full force and
effect and, if previously released or terminated, shall be
automatically and fully reinstated, without any necessity for any
act, consent or agreement of any Debtor, as fully as if such
payment had never been made and as fully as if any such release
or termination had never become effective.
ARTICLE III
DEBTORS' REPRESENTATIONS AND WARRANTIES
SECTION III.1 Representations and Warranties. The
Debtors represent and warrant that:
(a) Schedule A completely and accurately describes the
cash and Newco Common Stock delivered to Secured Party as
part of the Initial Trust Estate pursuant to the Collateral
Trust Agreement.
(b) Each Debtor's chief executive office is located at
the address shown as the chief executive office on Schedule
B hereto. No Debtor has any place of business within the
United States. All tangible Collateral and all of each
Debtor's records relating to any intangible Collateral owned
by it are kept solely at such chief executive office.
(c) No Debtor does business, or at any time during the
five years preceding the date of this Agreement has done
business, within the United States.
(d) Each Debtor at all times is (or, as to any item of
Collateral acquired after the date hereof, will be) the sole
legal and beneficial owner of all Collateral reflected on
its books and records as belonging to it and has exclusive
possession and control thereof free and clear of any and all
Liens, subject to the Collateral Trust Agreement and this
Agreement and the interests, possession and control granted
to Secured Party thereunder. No financing statement, notice
of lien, mortgage, deed of trust or instrument similar in
effect covering the Collateral, any portion thereof, or any
proceeds thereof, exists or is on file in any public office,
except as may have been filed in favor of Secured Party.
(e) All originals of all stock certificates, notes,
bonds, debentures and other instruments constituting
Collateral have been delivered to Secured Party with all
necessary or appropriate endorsements.
(f) Except as set forth in Schedule C and except
for the Code, no Debtor and no Collateral purported to
be granted by it is subject to any requirement of law
or contractual obligation which prohibits, restricts,
or limits the execution, delivery or performance of
this Agreement or the creation, perfection or
enforcement of the security interest purported to be
created hereby.
(g) Neither Debtor has a United States federal
taxpayer identification number.
(h) Each Debtor is a corporation or limited liability
company organized, validly existing and in good standing
under the laws of the jurisdiction in which it is organized
and is duly qualified to do business and in good standing in
each jurisdiction where its material assets are located or
its material operations are conducted, except where the
failure to be so qualified could not reasonably be expected
to cause a change that would be material and adverse to such
Debtor.
(i) Each Debtor has the corporate or partnership power
to execute, deliver and perform its obligations under the
Collateral Trust Agreement and this Agreement.
(j) The execution, delivery and performance by each
Debtor of the Collateral Trust Agreement and this Agreement
(i) have been duly authorized by all necessary action of its
board of directors or governing authority, (ii) do not
contravene its certificate or articles of incorporation or
by-laws or its members agreement or other governing
document, and (iii) do not and will not result in or require
the creation of any Lien (other than pursuant to the
Collateral Trust Agreement and this Agreement) upon any of
its property or assets.
(k) No authorization or approval or other action by,
and no notice to or filing with, any governmental officer,
department, agency or authority is required for the due
execution, delivery and performance by each Debtor of the
Collateral Trust Agreement or this Agreement, except the
filing of financing statements to perfect Secured Party's
security interest which have been duly filed.
(l) The Collateral Trust Agreement and this Agreement
are legal, valid and binding obligations of each Debtor,
enforceable against each Debtor in accordance with their
respective terms, subject to laws generally affecting the
enforcement of creditors' rights.
(m) The execution, delivery and performance by each
Debtor of the Collateral Trust Agreement and this Agreement
(i) do and will comply with all applicable laws, (ii) do and
will comply with, and do not and will not conflict with,
constitute a breach of or give rise to any Lien, default,
event of default or other adverse consequence under, any
note, indenture, undertaking, agreement or other contractual
obligation that is binding upon any Debtor or secured by or
enforceable against any property of any Debtor.
(n) Secured Party holds an enforceable and perfected
first Lien in the Collateral. No other Liens are
outstanding against the Collateral.
ARTICLE IV
COVENANTS OF THE DEBTORS
SECTION IV.1 Covenants. Each Debtor covenants and
agrees that so long as the security interest created hereby
remains outstanding:
(a) Each Debtor will deliver to Secured Party
each instrument and certificated security included in
the Collateral as set forth in Section 2.3.
(b) No Debtor will (i) cause, permit or suffer any
voluntary or involuntary change in its name, identity or
corporate structure, or in the location of its chief
executive office, or (ii) keep any tangible Collateral or
any records relating to any Claim owned by it, or permit or
suffer any such Collateral or records to be moved, to any
other location unless (in each case) (x) Schedule B has
first been appropriately supplemented with respect thereto,
and (y) an appropriate financing statement has been filed in
the proper office and in the proper form, and all other
requisite actions have been taken, to perfect or continue
the perfection (without loss of priority) of Secured Party's
security interest in the Collateral.
(c) Each Debtor will defend the Collateral
against all claims and demands of all persons at any
time claiming the same or any interest therein.
(d) No Debtor will encumber, sell, exchange or
otherwise dispose of any item of Collateral or any
interest therein, or permit or suffer any such item to
be encumbered, sold, exchanged or otherwise disposed
of, unless (i) such action is permitted at the time
under the Collateral Trust Agreement and (ii) the
Debtors make all payments on account of the Secured
Obligations required to be made therefrom, or in
exchange or substitution therefor, and each Debtor
takes all other actions required to be taken in
connection therewith, under the Collateral Trust
Agreement.
(e) Secured Party is hereby authorized to file one or
more financing statements or fixture filings, and
continuations thereof and amendments thereto, relative to
all or any part of the Collateral, without the signature of
any Debtor where permitted by law. A copy of this Agreement
may be filed as a financing statement wherever permitted by
law.
(f) Secured Party may at any time (but shall not
be obligated to) (i) perform any of the obligations of
any Debtor under this Agreement if such Debtor fails to
perform such obligation within 30 calendar days after
written demand by Secured Party and (ii) make any
payments and do any other acts Secured Party may deem
necessary or desirable to protect its security interest
in the Collateral, including, without limitation, the
right to pay, purchase, contest or compromise any Lien
that attaches or is asserted against any Collateral and
to appear in and defend any action or proceeding
relating to the Collateral, and the Debtors will
promptly reimburse Secured Party for all payments made
by Secured Party in doing so, together with interest
thereon at the judgment rate and all costs and expenses
related thereto as set forth in Section 9.10.
ARTICLE V
VOTING RIGHTS, DIVIDENDS AND DISTRIBUTIONS
SECTION V.1 Voting Rights. So long as no Event of
Default has occurred and is continuing or would result from any
exercise thereof, the Debtors shall have and may exercise all
voting rights with respect to any and all Newco Common Stock held
in the Trust Estate, except that the Debtors may not and will not
act or vote in favor of any action that would be or cause an
Event of Default or any event which, with the giving of notice or
lapse of time (or both), would constitute an Event of Default.
Upon the occurrence of an Event of Default, Secured Party may
(but shall not be obligated to) suspend or terminate the Debtors'
right to exercise voting rights with respect to any or all such
Newco Common Stock, by giving written notice of such suspension
or termination to the Debtors, and Secured Party shall thereupon
have the sole right and power to exercise such voting rights.
SECTION V.2 Dividends, Distributions and Payments.
Secured Party shall be entitled to receive and hold as part of
the Trust Estate, subject to the Collateral Trust Agreement, all
dividends and distributions on the Newco Common Stock, all income
from Cash Equivalents and all Proceeds.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION VI.1 Remedies. Upon and at any time after the
occurrence of any Event of Default, and from time to time on each
occasion when an Event of Default has occurred and is continuing,
Secured Party may exercise and enforce each and all of the rights
and remedies available to a secured party upon default under the
Code or other applicable law and each and all of the following
rights and remedies:
(a) Secured Party may notify any or all account
debtors and obligors on any Collateral to make payment
directly to Secured Party.
(b) Secured Party may take possession of all
items of Collateral that are not then in its possession
and require the person or entity in possession thereof
to deliver such Collateral to Secured Party at one or
more locations designated by Secured Party and
reasonably convenient to it and the Debtors.
(c) Secured Party may cause any or all Newco
Common Stock and other instruments or investment
securities constituting part of the Trust Estate to be
transferred into Secured Party's name and exercise and
enforce any or all of the rights, interests, privileges
and remedies of a holder against the issuer thereof, as
freely and fully as if Secured Party were the absolute
owner but as a secured party and as part of the Trust
Estate.
(d) Secured Party may sell or otherwise dispose of any
or all of the Collateral or any part thereof in one or more
parcels and from time to time in any quantity or portion and
on any number of occasions, at a public sale or in a private
sale or transaction, on any exchange or market or at Secured
Party's offices or at any other location, for cash, on
credit or for future delivery, and may enter into all
contracts necessary or appropriate in connection therewith,
without any notice whatsoever unless required by law,
subject to the following limitations:
(1) Secured Party may sell or otherwise
dispose of Newco Common Stock held in the Trust Estate
at any particular time only if the cash and the
immediately realizable net liquidation value of Cash
Equivalents and Letters of Credit then held in the
Trust Estate are not sufficient to pay in full (i) all
amounts which Secured Party is then required or has
then been instructed to pay out from the Trust Estate
pursuant to the Collateral Trust Agreement and (ii) all
Secured Obligations which are then payable; and
(2) Secured Party shall not sell or
otherwise dispose of shares of Newco Common Stock at
any particular time in excess of a number of shares
(determined on a rounded-up commercially reasonable
regular lot basis) the proceeds of which would be
sufficient, when added to the cash and the immediately
realizable net liquidation value of Cash Equivalents
and Letters of Credit then held in the Trust Estate, to
pay in full (i) all amounts which Secured Party is then
required or has then been instructed to pay out from
the Trust Estate pursuant to the Collateral Trust
Agreement, (ii) all amounts which Secured Party in
good faith anticipates it will be required or
instructed to pay out from the Trust Estate on account
of Known Liabilities and pending Tax Claims pursuant to
the Collateral Trust Agreement within the next 90
calendar days (and for such purpose Secured Party may
rely conclusively on a certificate as to such amounts
given to Secured Party by Newco Group), and (iii) all
Secured Obligations which are then payable.
The Debtors agree that at least 10 calendar days' written
notice to the Debtors of the time and place of any public
sale or the time after which any private sale is to be made
shall be commercially reasonable. The giving of notice of
any such sale or other disposition shall not obligate
Secured Party to proceed with the sale or disposition, and
any such sale or disposition may be postponed or adjourned
from time to time, without further notice.
(e) Secured Party may, on a royalty-free basis,
use and license use of any trademark, trade name, trade
style, copyright, patent or technical knowledge or
process owned, held or used by any Debtor in respect of
any Collateral as to which any right or remedy of
Secured Party is exercised or enforced.
In addition, but without expanding the duties or limiting the
rights, powers and immunities of Secured Party under this
Agreement or the Collateral Trust Agreement, each holder of any
Secured Obligation may exercise and enforce such rights and
remedies for the collection of such Secured Obligation as may be
available to it by law or agreement. Such exercise or
enforcement shall not impose any obligation or liability upon
Secured Party.
SECTION VI.2 Remedies Cumulative. Secured Party may
exercise and enforce each right and remedy available to it upon
the occurrence of an Event of Default either before or
concurrently with or after, and independently of, any exercise or
enforcement of any other right or remedy of Secured Party or any
holder of any Secured Obligation against any person, entity or
property. All such rights and remedies shall be cumulative, and
no one of them shall exclude or preclude any other.
SECTION VI.3 Surplus; Deficiency. Any surplus
proceeds of any sale or other disposition of Collateral by
Secured Party remaining after all the Secured Obligations are
indefeasibly paid in full and discharged shall be paid over to
the Debtors or to whomever may be lawfully entitled to receive
such surplus or as a court of competent jurisdiction may direct,
except that if any contingent, unliquidated or unmatured Secured
Obligation then remains outstanding, such surplus proceeds may be
retained by Secured Party and held as Collateral until such time
as all outstanding Secured Obligations have been determined,
liquidated and indefeasibly paid in full and discharged. The
Debtors shall be and remain liable for any deficiency.
SECTION VI.4 Information Related to Collateral. If
Secured Party determines to sell or otherwise dispose of any
Collateral, the Debtors shall, and shall cause any person
controlled by any Debtor to, furnish to Secured Party all
information Secured Party may request that pertains or could
pertain to the value or condition of such Collateral or would or
might facilitate its sale. Secured Party may provide such
information to any potential purchaser of any or all of the
Collateral, subject to such confidentiality terms as the Debtors
may reasonably request in writing.
SECTION VI.5 Sale Exempt from Registration. Secured
Party shall be entitled at any such sale, if it deems it
advisable to do so, to restrict the prospective bidders or
purchasers to persons who will provide assurances satisfactory to
Secured Party that they may be offered and sold the Collateral to
be sold without registration under the Securities Act of 1933, as
amended (the "Securities Act"), or any other applicable state or
federal statute, and upon the consummation of any such sale,
Secured Party shall have the right to assign, transfer and
deliver to the purchaser or purchasers thereof the Collateral so
sold. Secured Party may solicit offers to buy the Collateral, or
any part of it, from a limited number of investors deemed by
Secured Party, in its commercially reasonable judgment, to meet
the requirements to purchase securities under Regulation D
promulgated under the Securities Act (or any other regulation of
similar import). If Secured Party solicits such offers from such
investors, then the acceptance by Secured Party of the highest
offer obtained therefrom shall be deemed to be a commercially
reasonable method of disposition of the Collateral.
SECTION VI.6 Registration Rights. If Secured Party
determines that registration of any securities constituting
Collateral under the Securities Act or other applicable law is
required or desirable in connection with any foreclosure sale,
each Debtor will use its best efforts to assist and cooperate in
all respects reasonably requested by Secured Party or Newco Group
in causing such registration to become effective and to be kept
effective for such time as may be reasonably necessary in the
opinion of Secured Party, except that no Debtor shall be
obligated under this Section 6.6 to exercise any registration
rights that may be available to it with respect to Newco Common
Stock.
ARTICLE VII
THE SECURED PARTY
SECTION VII.1 Collateral Trust Agreement Provisions.
Secured Party is executing and delivering this Agreement, and
accepting the security interests, rights, remedies, powers and
benefits conferred upon Secured Party hereby, as Trustee under
the Collateral Trust Agreement. The provisions of the Collateral
Trust Agreement and all rights, powers, immunities and
indemnities granted to the Trustee under the Collateral Trust
Agreement shall apply in respect of such execution, delivery and
acceptance and in respect of any and all actions taken or omitted
by Secured Party under, in connection with or with respect to
this Agreement.
SECTION VII.2 No Liability. Secured Party makes no
statement, promise, representation or warranty whatsoever, and
shall have no liability whatsoever, to any holder of any Secured
Obligations as to the authorization, execution, delivery,
legality, enforceability or sufficiency of this Agreement or as
to the creation, perfection, priority or enforceability of any
security interest granted hereunder or as to the existence,
ownership, quality, condition, value or sufficiency of any
Collateral or as to any other matter whatsoever.
SECTION VII.3 Holders Bound. Except where the consent
of others may be required pursuant to the express provisions of
the Collateral Trust Agreement, any modification, amendment,
waiver, termination or discharge of any security interest, right,
remedy, power or benefit conferred upon Secured Party hereby that
is effectuated in a writing signed by Secured Party shall be
binding upon all holders of Secured Obligations if it is
authorized in the Collateral Trust Agreement or directed in
writing by Newco Group.
SECTION VII.4 Duty of Care. Neither Secured Party nor
any director, officer, employee, attorney or agent of Secured
Party shall be obligated to care for the Collateral hereunder or
to collect, enforce, vote, or protect the Collateral or any
rights or interests of any Debtor related thereto or to preserve
or enforce any rights which any Debtor or any other Person may
have against any third party, except only that Secured Party
shall exercise reasonable care in physically safekeeping any item
of Collateral that was delivered into Secured Party's possession.
Secured Party shall be deemed to have exercised such reasonable
care if the Collateral is accorded treatment substantially equal
to that which Secured Party accords to its own property or if it
selects, with reasonable care, a custodian or agent to hold such
collateral for Secured Party's account.
ARTICLE VIII
EXONERATION WAIVERS
SECTION 8.1 Rights and Interests not Prejudiced,
Affected or Impaired. Neither the security interests granted
hereby, nor the trusts and interests created under the Collateral
Trust Agreement nor any power, privilege, right or remedy of
Secured Party relating thereto, nor the beneficial interest of
Newco Group and other holders of Secured Obligations therein and
thereunder shall at any time in any way be prejudiced, affected
or impaired by any act or failure to act on the part of any of
the Debtors or by any act or failure to act on the part of
Secured Party or Newco Group or any other holder of Senior
Secured Obligations or by any breach or default by any of them in
the performance or observance of any promise, covenant or
obligation enforceable by any Debtor, regardless of any knowledge
thereof that Secured Party or Newco Group and any such other
holder may have or otherwise be charged with.
(a) Without in any way limiting the generality of
the foregoing, Secured Party, Newco Group and each other
holder of any Secured Obligations may at any time and from
time to time, without the consent of or notice to any
Debtor, without incurring any responsibility or liability to
any Debtor and without in any manner prejudicing, affecting
or impairing any such security interest, trust, interest,
power, privilege, right or remedy or the obligations of the
Debtors to Secured Party, Newco Group and the other holders
of Secured Obligations:
(i) Make loans and advances to any
one or more of the Debtors, or issue, guaranty or
obtain letters of credit for account of any one or more
of the Debtors or otherwise extend credit to any one or
more of the Debtors, in any amount and without any
limitation or restriction whatsoever, on any terms,
whether pursuant to a commitment or as a discretionary
advance and whether or not any default or event of
default or failure of condition is then continuing;
(ii) Change the manner, place or
terms of payment or extend the time of payment of, or
renew or alter, compromise, accelerate, extend,
refinance, release or discharge, any Secured Obligation
or any other indebtedness or liability of any of the
Debtors or any agreement, guaranty, lien or obligation
of any of the Debtors or any other person or entity in
any manner related thereto, or otherwise amend,
supplement or change in any manner any Secured
Obligation or any such indebtedness or liability or any
such agreement, guaranty, lien or obligation;
(iii) In any manner modify,
transform, change, refinance, replace, reclassify,
subordinate or recharacterize any such indebtedness or
liability;
(iv) Release or discharge any
guaranty or any other lien, right, remedy or claim
against any person or entity;
(v) Take or fail to take any
collateral security for any Secured Obligation or take
or fail to take any action which may be necessary or
appropriate to ensure that any lien upon any property
securing any Secured Obligation is duly enforceable or
perfected or entitled to priority as against any other
lien or to ensure that any proceeds of any property
subject to any lien are applied to the payment of any
Secured Obligation;
(vi) Release, discharge or permit
the lapse of any or all liens upon any property at any
time securing any Secured Obligation;
(vii) Exercise or enforce, in
any manner, order or sequence, or fail to exercise or
enforce, any right or remedy against any one or more of
the Debtors or in respect of the Collateral or the
Trust Estate or any other collateral security or any
other person, entity or property in respect of any
Secured Obligation or lien securing any Secured
Obligation or any right under this Agreement or the
Collateral Trust Agreement; or
(viii) Sell, exchange, release,
foreclose upon or otherwise deal with any property that
may at any time be subject to any lien securing any
Secured Obligation.
(b) No exercise, delay in exercising or failure
to exercise any right arising under this Agreement or the
Collateral Trust Agreement, no act or omission of Secured
Party, Newco Group or any other holder of any Secured
Obligation in respect of any or all of the Debtors or any
other person or entity or the Collateral or the Trust Estate
or any other collateral security for any Secured Obligation
or any right arising under this Agreement or the Collateral
Trust Agreement, no change, impairment, or suspension of any
right or remedy of Secured Party, Newco Group or any other
holder of any Secured Obligation, and no other act, failure
to act, circumstance, occurrence or event which, but for
this provision, would or could act as a release or
exoneration of the obligations of any Debtor shall in any
way affect, decrease, diminish or impair any of the
obligations of the Debtors under this Agreement or give any
Debtor or any other person or entity any recourse or defense
against Secured Party, Newco Group or any other holder of
Secured Obligations in respect of any security interest,
trust, interest, power, privilege, right or remedy arising
under this Agreement or the Collateral Trust Agreement.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION IX.1 Notices. All notices, requests,
approvals, consents and other communications required or
permitted to be made hereunder shall, except as otherwise
provided, be given in the manner specified and to the addresses
set forth in Section 16 of the Collateral Trust Agreement.
SECTION IX.2 Headings. The various headings in this
Agreement are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or any provision
hereof.
SECTION IX.3 Changes. This Agreement or any provision
hereof may be changed, waived, or terminated only by a statement
in writing signed by the party against which such change, waiver
or termination is sought to be enforced. Any such waiver or
consent shall be effective only in the specific instance and for
the specific purpose for which given.
SECTION IX.4 Debtors Remain Liable. Each Debtor shall
remain liable under all contracts and agreements included in the
Collateral to the extent set forth therein to perform all of its
duties and obligations thereunder to the same extent as if this
Agreement had not been executed. The exercise or enforcement by
Secured Party of any of its rights and remedies under this
Agreement or in respect of the Collateral shall not release any
Debtor from any of its duties or obligations under any such
contracts or agreements. Secured Party shall not be obligated to
perform any such duties or obligations and shall not be liable
for any breach thereof.
SECTION IX.5 No Waiver. No failure by Secured Party
to exercise, or delay by Secured Party in exercising, any power,
right or remedy under this Agreement shall operate as a waiver
thereof. No waiver by Secured Party shall be effective unless
given in a writing signed by it. No waiver so given shall
operate as a waiver in respect of any other matter or in respect
of the same matter on a future occasion. Acceptance of or
acquiescence in a course of performance in respect of this
Agreement shall not waive or affect the construction or
interpretation of the terms of this Agreement even if the
accepting or acquiescing party had knowledge of the nature of the
performance and opportunity for objection.
SECTION IX.6 Entire Agreement. This Agreement and the
Collateral Trust Agreement are intended by the parties as a final
expression of their agreement and a complete and exclusive
statement of the terms and conditions related to the subject
matter thereof.
SECTION IX.7 Severability. If any provision of this
Agreement is invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the
remaining provisions hereof, or of such provision in any other
application, shall not be in any way affected or impaired thereby
and such other provisions and applications shall be enforceable
to the fullest extent lawful.
SECTION IX.8 Power of Attorney. Each Debtor hereby
appoints and constitutes Secured Party or any delegate, nominee
or agent acting for Secured Party as such Debtor's attorney-in-
fact with the power and authority (but not the duty), in the name
of such Debtor or in the name of Secured Party or such delegate,
nominee or agent, to (i) execute, deliver and file such financing
statements, agreements, deeds and writings as such Debtor is
required to execute, deliver or file hereunder, (ii) endorse,
collect or transfer any item of Collateral which such Debtor is
required to endorse, collect or transfer hereunder or which
Secured Party is permitted to endorse, collect or transfer
hereunder, (iii) make any payments or take any action under
Section 2.3 or Section 4.1(f), (iv) take any other action
required of such Debtor or permitted to Secured Party hereunder,
and (v) take any action reasonably necessary or incidental to any
of the foregoing. This power of attorney is coupled with an
interest and is irrevocable as to the Debtors. Secured Party
shall have no duty whatsoever to exercise any power herein
granted it.
SECTION IX.9 Counterparts. This Agreement and any
amendments, waivers, consents or supplements may be executed in
any number of counterparts, each of which when so executed and
delivered shall be deemed an original, but all of which shall
together constitute one and the same agreement.
SECTION IX.10 Costs and Expenses; Indemnification.
The Debtors hereby agree (i) to pay or reimburse Secured Party
for all reasonable costs and expenses (including, without
limitation, reasonable attorneys' fees and disbursements and
court costs) incurred in connection with or as a result of the
exercise or enforcement by Secured Party of any right or remedy
available to it or the protection or enforcement of Secured
Party's interest in the Collateral in any bankruptcy case or
insolvency proceeding and (ii) to indemnify Secured Party for,
and defend and hold it harmless against, any loss, liability or
expense incurred by it in connection with its entering into this
Agreement or carrying out any of its duties or exercising any of
its rights hereunder, on the terms and subject to the limitations
set forth in Section 14 of the Collateral Trust Agreement.
SECTION IX.11 GOVERNING LAW; SUBMISSION TO
JURISDICTION; WAIVER OF JURY TRIAL; LIMITATION OF LIABILITY;
WAIVER OF BOND.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND INTERPRETED UNDER THE LAWS OF THE STATE OF NEW YORK,
EXCEPT TO THE EXTENT THAT THE PERFECTION OF THE SECURITY
INTERESTS HEREUNDER IN RESPECT OF ANY PARTICULAR COLLATERAL
IS GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES
FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION
OF THOSE COURTS. EACH PARTY IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT
OR ANY DOCUMENT RELATED HERETO. SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS MAY BE MADE BY ANY MEANS
PERMITTED BY NEW YORK LAW.
(c) WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES
ALL RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE COLLATERAL TRUST AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF
THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE, AND
AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED
BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, EACH PARTY FURTHER AGREES THAT ITS RIGHT TO A
TRIAL BY JURY IS HEREBY WAIVED AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN
PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS
AGREEMENT OR THE COLLATERAL TRUST AGREEMENT OR ANY PROVISION
HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE COLLATERAL TRUST
AGREEMENT.
(d) LIMITATION OF LIABILITY. NO CLAIM MAY BE MADE BY
THE DEBTORS AGAINST SECURED PARTY OR THE AFFILIATES,
DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS OR AGENTS OF
SECURED PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM (WHETHER BASED UPON
BREACH OF CONTRACT, TORT, BREACH OF STATUTORY DUTY OR ANY
OTHER THEORY OF LIABILITY) ARISING OUT OF OR RELATED TO THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, OR ANY ACT,
OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, AND THE
DEBTORS HEREBY WAIVE, RELEASE AND AGREE NOT TO XXX UPON ANY
CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT NOW ACCRUED AND
WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN THEIR FAVOR.
(e) WAIVER OF BOND. THE DEBTORS WAIVE THE POSTING OF
ANY BOND OTHERWISE REQUIRED OF SECURED PARTY IN CONNECTION
WITH THE ENFORCEMENT OF ANY OF ITS REMEDIES HEREUNDER,
INCLUDING, WITHOUT LIMITATION, ANY ORDER OR WRIT FOR
REPLEVIN OR DELIVERY OF POSSESSION OF ANY COLLATERAL.
SECTION 9.12 Successors and Assigns. This Agreement
is binding upon and enforceable against the Debtors and their
respective successors and assigns. It shall inure to the benefit
of and may be enforced by Secured Party and its successors and
assigns, for the benefit of Newco Group and each and every other
person or entity which at any time holds or is entitled to
enforce any of the Secured Obligations and each of their
respective heirs, representatives, successors and assigns.
Secured Party reserves the right to resign as Trustee under the
Collateral Trust Agreement, in the manner and with the effect set
forth in Section 13(f) and 13(g) thereof.
SECTION 9.13 Joint and Several Obligation. This
Agreement and the security interest granted by each Debtor
hereunder and all obligations of each Debtor hereunder shall be
the joint and several obligation of each Debtor and may be freely
enforced against each Debtor for the full amount of the Secured
Obligations, without regard to whether enforcement is sought or
available against any other Debtor.
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IN WITNESS WHEREOF, the parties have caused this Pledge
and Security Agreement to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date
first above written.
SATELLITE COMPANY, LLC,
By:/s/ Xxxxx Xxxxxx Xxxxxxx
------------------------
Name: Xxxxx Xxxxxx Xxxxxxx
Title: General Manager
GRUPO TELEVISA, S.A.
By:/s/ Xxxx Xxxxx Xxxxxxxx
------------------------
Name: Xxxx Xxxxx Xxxxxxxx
Title: Vice President
IBJ XXXXXXXX BANK & TRUST COMPANY,
as trustee under the Collateral
Trust Agreement described herein
By:/s/ Xxxxxx Xxxxxxxxxx
------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Assistant Vice President
Index of Schedules
A Description of the Collateral
B Location of Chief Executive Office; Other Locations
C Restrictions - 3.1(f)
