EXHIBIT 8
COLLATERAL TRUST AGREEMENT
This COLLATERAL TRUST AGREEMENT (this "Agreement"),
dated as of May 16, 1997, is entered into by and among MAGELLAN
INTERNATIONAL, INC., a Delaware corporation ("Newco"), XXXXXX
COMMUNICATIONS, INC., a California corporation ("HCI," and
together with Newco, the "Newco Group"), SATELLITE COMPANY, LLC,
a Nevada limited liability company ("Contributor"), GRUPO
TELEVISA, S.A., a corporation (Sociedad Anonima) organized under
the laws of Mexico ("Parent"), and IBJ XXXXXXXX BANK & TRUST
COMPANY, a New York banking corporation with offices at Xxx Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as Collateral Trustee for Newco
Group (the "Trustee").
RECITALS
A. Newco Group, Contributor and Parent have entered
into a Stock Contribution and Exchange Agreement, dated as of
September 20, 1996 (the "Stock Contribution and Exchange
Agreement"), which provides, among other things, for the transfer
by Contributor of all of the stock of Univisa, Inc. ("Univisa"),
a Delaware corporation, to Newco.
B. The Stock Contribution and Exchange Agreement
provides that Contributor and Parent, jointly and severally,
shall indemnify, save and hold harmless Newco Group, its
affiliates and Subsidiaries, with respect to certain matters upon
the terms and subject to the conditions provided in the Stock
Contribution and Exchange Agreement and that as security therefor
(and not in lieu thereof) a trust estate shall be established for
the protection of Newco Group, its affiliates and Subsidiaries.
C. A material condition to the consummation of the
transactions contemplated by the Stock Contribution and Exchange
Agreement is that the parties hereto enter into this Agreement
and that Contributor, Parent and the Trustee enter into a Pledge
and Security Agreement of even date (the "Pledge and Security
Agreement").
D. The Trustee has agreed to hold the Trust Estate
(as defined herein) in accordance with the terms and provisions
contained herein.
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 parties, intending to be legally bound, hereby
agree as follows:
1. Defined Terms.
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(a) For purposes of this Agreement:
"cash" means United States Dollars in such form as may,
at the time, be legal tender for the payment of debts in the
United States.
"Cash Equivalents" means Short-Term Treasuries or Joint
Approval Cash Equivalents.
"Event of Default" has the meaning assigned in the
Pledge and Security Agreement.
"Expiration Date" means the last day in the 91-day
period following the expiration of the statutes of limitations
applicable to the assessment of any tax against Univisa or USHI
(or any affiliate or Subsidiary of either of them) with respect
to all Pre-Closing Periods taking into account any waivers,
extensions or tollings of any such statutes of limitation;
PROVIDED, HOWEVER, that if as of the last day of such 91-day
period there are any Tax Claims, then, notwithstanding the
foregoing, the Expiration Date shall not occur until the day
immediately following the day on which there are no Tax Claims.
"Fair Market Value" means, as of any date of
determination, the average of the Quoted Prices of Newco Common
Stock for the 20 consecutive trading days prior to such date of
determination.
"Final Tax Amount" means, as of any date of
determination, the amount, if any, of a Liability or Damages in
respect of taxes of Univisa or USHI (or any affiliate or
Subsidiary of either of them) for which Contributor and Parent
would be liable under Section 8.2(a)(ii) of the Stock
Contribution and Exchange Agreement, which taxes (a) are
determined to be due and payable as of such date pursuant to (i)
a final determination made by, or settlement concluded with, the
applicable taxing authority with respect to such taxes or (ii) a
final, binding and nonappealable judgment rendered with respect
to such taxes and (b) are unpaid as of such date.
"Known Liabilities" means Liabilities or Damages which
are Indemnification Obligations that are now or hereafter
included as Scheduled Liabilities or are the subject of a
Liabilities Claim.
"Joint Approval Cash Equivalents" means United States
Dollar indebtedness in any of the following forms, if and to the
extent the Trustee has been directed to invest in such
indebtedness in a joint written investment direction signed both
by the Representative and by the Indemnitees' Agent: (i)
marketable direct obligations guaranteed by the United States
Government and backed by the full faith and credit of the United
States, issued after July 18, 1984 and maturing within 90 days
from the date of acquisition thereof, (ii) marketable direct
obligations issued by any state of the United States of America
or any political subdivision of any such state or any public
instrumentality thereof maturing within 90 days from the date of
acquisition thereof and, at the time of acquisition, having a
rating in one of the two highest rating categories obtainable
from either Standard & Poor's Corporation or Xxxxx'x Investors
Service, Inc. (or, if at any time, neither of such rating
services shall be rating such obligations, then from such other
nationally recognized rating services as may be acceptable to
Newco), (iii) certificates of deposit maturing within 90 days
from the date of acquisition thereof and issued by any commercial
bank which accepts deposits insured by the Federal Deposit
Insurance Corporation and which has a combined capital and
surplus greater than $500 million and a long term certificate of
deposit rating in one of the two highest rating categories
obtainable from either Standard & Poor's Corporation or Xxxxx'x
Investors Service, Inc. (or, if at any time, neither of such
rating services shall be rating such obligations, then from such
other nationally recognized rating services as may be acceptable
to Newco) (any such commercial bank, an "Acceptable Bank"); (iv)
repurchase agreements, Eurodollar deposits and bankers
acceptances maturing within 90 days from the date of acquisition
thereof and issued by an Acceptable Bank; (v) investments in
money market funds that invest solely in (x) Short-Term
Treasuries or repurchase agreements secured by Short-Term
Treasuries or (y) Joint Approval Cash Equivalents of the type
described in clauses (i) and (ii) above or repurchase agreements
secured by such Joint Approval Cash Equivalents; or (vi) any
other instrument that is specifically approved in writing by
Contributor, Parent and Newco Group, if the Trustee receives
opinions of counsel reasonably satisfactory to it stating that
such writing has been duly authorized, executed and delivered by
each of them and is binding upon and enforceable against each of
them.
"Liabilities Claim" means a claim (other than a Tax
Claim) by any party that a Liability or Damages which are
Indemnification Obligations exist, but only to the extent that
such claimed Liability or Damages are not included as Scheduled
Liabilities.
"Maintenance Level" means (i) prior to the third
anniversary of the date hereof, $5 million, (ii) on and after the
third and prior to the tenth anniversary of the date hereof, $2
million, and (iii) -0- thereafter.
"Newco Common Stock" means Common Stock, $ .01 par
value, of Newco.
"Pending Amounts" means, at any time, the aggregate
amount of all Liabilities Claims, except Liabilities Claims in
respect of a Liability or Damages for which both (i) it has been
and remains agreed or determined, in accordance with Section 6
hereof, that a reserve should or should not be maintained as part
of the Scheduled Liabilities and (ii) no claim, dispute,
arbitration or proceeding is pending as to the amount of any such
reserve.
"Quoted Price" means the last reported sale price of
Newco Common Stock as reported by NASDAQ or, if Newco Common
Stock is listed on a national securities exchange, the last
reported sale price on such exchange (which shall be for
consolidated trading if applicable to such exchange), or if
neither so reported or listed, the last reported bid price of
Newco Common Stock.
"Scheduled Liabilities" means Known Liabilities listed
on the Schedule of Liabilities to be maintained pursuant to
Section 6 hereof.
"Short-Term Treasuries" means United States Dollar
indebtedness consisting of marketable direct obligations issued
by the United States Government or any agency thereof and backed
by the full faith and credit of the United States, in the form of
Book-entry Securities maintained by the Trustee or any nominee
acting for it, solely in its name, in an account at the Federal
Reserve Bank of New York under the Treasury/Reserve Automated
Debt Entry System, issued after July 18, 1984 and maturing within
90 days from the date of acquisition thereof.
"Tax Claim" means, as of any date of determination, a
claim asserted or assessed in any (i) revenue agent's report,
(ii) notice of proposed adjustment, (iii) notice of deficiency,
(iv) notice of assessment, (v) judicial pleading, (vi) other
written document of similar import received from a taxing
authority or (vii) potential claim relating to an applicable
requirement or obligation to notify a state or local taxing
authority with respect to a federal income tax adjustment
involving a claim described in clauses (i) - (vi), involving, in
any case, a Liability or Damages in respect of taxes of Univisa
or USHI (or any affiliate or Subsidiary of either of them) for
which Contributor and Parent would be liable under Section
8.2(a)(ii) of the Stock Contribution and Exchange Agreement but
only to the extent that such claim has not been resolved pursuant
to either (a) a final determination made by, or settlement
concluded with, the applicable taxing authority with respect to
such claim, or (b) a final, binding and nonappealable judgment
rendered with respect to such claim.
"Tax Reserve" means 100% of the amount of any Tax Claim
or Final Tax Amount, as applicable.
"Unknown Liabilities" means Liabilities or Damages
which are Indemnification Obligations but are not Known
Liabilities.
(b) Capitalized terms used herein without
definition shall have the meanings ascribed to them in the
Stock Contribution and Exchange Agreement.
2. Declaration of Trust. To secure the payment,
observance and performance by Contributor and Parent of each and
all of their present and future indemnities, liabilities and
obligations at any time arising under, pursuant to or in respect
of Article VIII of the Stock Contribution and Exchange Agreement
(collectively, the "Indemnification Obligations"), and the
covenants and conditions of this Agreement and the Pledge and
Security Agreement (collectively, including the Indemnification
Obligations, the "Secured Obligations"), Newco grants and
transfers to the Trustee to hold, and the Trustee is hereby
authorized and directed by the Contributor and Parent to accept,
and the Trustee hereby accepts, in trust under this Agreement,
for the benefit of Newco Group, its affiliates, Subsidiaries and
all other present and future holders of any of the Secured
Obligations and each and all of their members, successors and
assigns, all right, title and interest in the following property:
(a) an amount equal to the aggregate amount of
the Scheduled Liabilities set forth on the Statement of
Liabilities attached hereto as Annex 1, in cash (as such
amount may be increased or decreased hereafter pursuant to
the provisions hereof, "Fund A"); and
(b) $25 million in cash plus 5,000,000 shares of
Newco Common Stock, represented by certificate number
TP00018 issued for such number of shares in the name of
Contributor, accompanied by an assignment thereof duly
executed in blank by Contributor (as such amount or number
of shares may be increased or decreased hereafter pursuant
to the provisions hereof, "Fund B")
(collectively, the "Initial Trust Estate," and together with (i)
all rights and interests of the Trustee under the Pledge and
Security Agreement, (ii) any and all other property at any time
hereafter transferred to the Trustee in trust under this
Agreement, and (iii) any and all present and future income,
distributions, substitutions, replacements and proceeds of or
from the Initial Trust Estate and any other such property, the
"Trust Estate"). The Trustee, its successors in trust under this
Agreement and its assigns and the assigns of its successors and
assigns in trust shall have and hold the foregoing Trust Estate
until released to Newco Group or Contributor in accordance with
the terms hereof, in trust under and subject to the terms and
conditions set forth herein for the benefit of Newco Group and as
security for and for the enforcement of the payment, observance
and performance of all Secured Obligations (it being understood
that, while all of the Trust Estate secures all Secured
Obligations, Fund A shall be allocated for administrative
purposes to Scheduled Liabilities and Fund B shall be allocated
for administrative purposes to Unknown Liabilities, Liabilities
Claims, Final Tax Amounts and Tax Claims). Newco Group,
Contributor and Parent hereby consent to the foregoing
declaration of trust and agree that the Trust Estate is to be
held and applied by the Trustee subject to the further covenants,
conditions and trust set forth herein.
3. Appointment of Representative and Indemnitees'
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Agent.
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(a) Contributor and Parent hereby designate:
Xxxxx Xxxxxx
Xxxxxxxx X. Dam
Xxxxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxxx White
Xxxxxx Xxxxxxxxx
Xxxx Xxxxx Xxxxxxxx
and Xxxxxx Xxxxxx
each of whom is authorized to act alone, as their duly
appointed agents and attorneys-in-fact, with full power of
substitution, in any and all capacities, for all purposes of
this Agreement (each, the "Representative"). Actions and
inactions by such Representatives under this Agreement shall
be binding and conclusive on Contributor and Parent and may
be conclusively relied upon by the other parties hereto.
Contributor and/or Parent, upon 10 days' written notice to
the other parties, may remove any person appointed as
Representative or appoint another person as Representative.
No Representative shall be liable for any action taken or
omitted by it, or any action suffered by it to be taken or
omitted, in good faith, and in the exercise of its own best
judgment.
(b) Newco and HCI hereby appoint:
Xxxxxxx X. Xxxxxx
and
Xxxxx X. Xxxxxxxx
each of whom is authorized to act alone, as their duly
appointed agents and attorneys-in-fact, with full power of
substitution, in any and all capacities, for all purposes of
this Agreement (each, the "Indemnitees' Agent"). Actions
and inactions by the Indemnitees' Agent under this Agreement
shall be binding and conclusive on Newco Group and may be
conclusively relied upon by the other parties hereto. HCI
or Newco, upon 10 days' written notice to the other parties,
may remove any person appointed as Indemnitees' Agent or
appoint another person as Indemnitees' Agent. No
Indemnitees' Agent shall be liable for any action taken or
omitted by it, or any action suffered by it to be taken or
omitted, in good faith, and in the exercise of its own best
judgment.
4. Investment and Valuation of Trust Estate.
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(a) The Trustee hereby acknowledges receipt of
the Initial Trust Estate.
(i) The Trustee shall keep all cash at
any time held by it as part of the Trust Estate, from
whatever source such cash may be derived, in a non-
interest-bearing account in United States Dollars
maintained by the Trustee solely in the name of the
Trustee, as Trustee hereunder, except that:
(1) Such cash shall be
invested and reinvested by the Trustee in Short-
Term Treasuries, (i) if the Trustee is so directed
in writing by the Indemnitees' Agent and if the
Indemnitees' Agent states in such writing that an
Event of Default has occurred and is continuing,
and (ii) after the Trustee receives written
directions from the Representative, stating that
any and all cash held by the Trustee as part of
the Trust Estate shall be kept invested in Short-
Term Treasuries, and
(2) Notwithstanding the
foregoing, such cash shall be invested by the
Trustee in Joint Approval Cash Equivalents if and
to the extent so directed by the Representative
and the Indemnitees' Agent, acting jointly, but
only if the Trustee has received an opinion of
counsel approved in writing by the Indemnitees'
Agent, confirming to the reasonable satisfaction
of the Indemnitees' Agent that on the date of such
investment, if such investment is made in the
manner directed by the Representative and the
Indemnitees' Agent, the Trustee will have a valid
and perfected security interest in such investment
and the proceeds thereof, free from any adverse
claim, if the Trustee makes such investment in
good faith and without notice of an adverse claim;
and
(ii) Such cash and Cash Equivalents
shall be invested and reinvested solely:
(1) at the risk of
Contributor and Parent; and
(2) in the name of the
Trustee or its nominee.
(b) The Trustee shall be entitled to sell or
redeem any such investment as necessary to make any
distributions required under this Agreement and shall not be
liable or responsible for any loss resulting from any such
sale or redemption or from any investment or failure to
invest made in accordance with this Agreement.
(c) Income, if any, resulting from the investment
of the Trust Estate shall be for the account of Contributor,
but shall be held as part of the Trust Estate, subject to
the provisions of this Agreement.
(d) For purposes of this Agreement, as of any
date of valuation, and unless otherwise expressly provided
herein, Newco Common Stock shall be valued at Fair Market
Value and cash or Cash Equivalents shall be valued at face
value except that:
(i) Any Cash Equivalent consisting of
an investment in a fund having a readily ascertainable
market value or surrender value shall be valued at such
value;
(ii) Any Cash Equivalent that has
matured and has not been paid shall be valued at zero;
(iii) Any Cash Equivalent on which
any partial payment of principal or any interest
payment is then more than three days past due shall be
valued at zero; and
(iv) Any Cash Equivalent as to which the
Indemnitees' Agent has notified the Trustee,
Contributor and Parent in writing that Newco Group
reasonably believes the obligor is (or more probably
than not is) unable to pay the Cash Equivalent at
maturity or upon demand shall be valued at such amount,
including zero, as the Indemnitees' Agent may set forth
in such notice. The valuation set forth in a notice
given pursuant to this Section 4(d)(iv) shall become
effective on the eleventh day after receipt of such
notice by the Trustee, unless prior to such eleventh
day the Representative gives the Trustee and the
Indemnitees' Agent written notice of objection to such
valuation, in which event such the Cash Equivalent
subject to such valuation shall be valued at face value
until the Trustee receives notice of any different
value that has been determined in accordance with
Section 7 hereof and shall thereafter be valued at the
value so determined.
5. Required Trust Estate Values.
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(a) The Trust Estate shall be valued by the
Trustee at the end of each calendar quarter (a "quarterly
valuation"). The Trustee shall send the other parties
hereto written notice of such quarterly valuation within 10
days after the end of such quarter.
(b) The value of Fund B shall be as follows:
(i) After the date hereof and prior to
the date which is 16 months after the date hereof, at
any quarterly valuation the value of Fund B shall be no
less than $ 175 million, of which no less than $ 25
million shall be cash or Cash Equivalents.
(ii) After the date which is 16 months
after the date hereof and prior to the termination of
this Agreement, at any such quarterly valuation, the
value of Fund B shall be no less than $ 100 million, of
which no less than $ 25 million shall be cash or Cash
Equivalents.
(iii) After the Expiration Date, the
value of Fund B may be reduced to the Maintenance
Level, all of which may be maintained in Newco Common
Stock.
Notwithstanding the foregoing, while there is any Tax Claim,
Final Tax Amount or pending Liabilities Claim, Fund B shall
be maintained in an amount equal to the sum of all Tax
Reserves for all Tax Claims, Final Tax Amounts, the
Maintenance Level, all Pending Amounts, and all other
amounts required to be paid out from or maintained in Fund
B.
(c) At any quarterly valuation, the value of Fund
A shall be no less than the then amount of Scheduled
Liabilities.
(d) If the values of Funds A and B as determined
by the Trustee in accordance with this Agreement in any
quarterly valuation are less than the values then required
to be maintained under Sections 5(b) and 5(c) hereof (a
"deficiency"), the Trustee shall notify the parties and,
within 15 days from the date such quarterly valuation is
sent by the Trustee to the other parties hereto, Contributor
and Parent shall cause to be deposited with the Trustee, as
part of the Trust Estate, cash or Cash Equivalents in the
amount of the deficiency in Fund A and cash or Cash
Equivalents or Newco Common Stock in the amount of the
deficiency in Fund B, provided that no less than $ 25
million of Fund B shall at all times consist of cash or Cash
Equivalents (such deposits, a "Make-Whole Payment").
Notwithstanding the foregoing, if the deficiency in Fund B
would be eliminated if the value of the Newco Common Stock
increased 11.1 % or less from the value used in the
quarterly valuation, the deficiency in Fund B need not be
deposited.
(e) If the values of Funds A and B as determined
by the Trustee in any quarterly valuation are more than the
values then required to be maintained under Sections 5(b)
and (c) hereof (a "surplus"), the Trustee shall notify the
parties and, within 15 days from the date such quarterly
valuation is sent by the Trustee to the other parties
hereto, the Trustee shall cause the surplus of cash or Cash
Equivalents in Fund A to be released to Contributor, and
shall cause the surplus of cash or Cash Equivalents or Newco
Common Stock in Fund B to be released to Contributor,
provided that no less than $ 25 million of Fund B shall at
all times consist of cash and Cash Equivalents.
Notwithstanding the foregoing, if the surplus in Fund B
would be eliminated if the value of the Newco Common Stock
decreased by 10% or less from the value used in the
quarterly valuation, the surplus in Fund B shall not be
released. Further, no amount shall be released to
Contributor pursuant to this Section 5(e) while an Event of
Default is continuing.
(f) Contributor and Parent may deliver a Make-
Whole Payment consisting of cash, Cash Equivalents or (to
the extent permitted under Section 5(d) hereof) Newco Common
Stock owned by Contributor or Parent or by any Subsidiary of
Parent, if, in the case of Newco Common Stock owned by any
such Subsidiary, (i) such Subsidiary executes and delivers
to the Trustee an agreement reasonably satisfactory to the
Trustee and Newco Group by which such Subsidiary agrees to
join in and be bound by this Agreement and the Pledge and
Security Agreement on the same terms and conditions as those
by which Parent is bound, together with such financing
statements, assignments and transfer instruments requested
as to such Subsidiary by the Trustee or Newco Group, and
(ii) Parent executes and delivers to the Trustee an
instrument reasonably satisfactory to the Trustee warranting
the due authorization, execution, delivery, legality and
enforceability of such agreement, financing statements,
assignments and transfer instruments and guaranteeing due
and punctual payment and performance of all liabilities and
obligations of such Subsidiary thereunder.
6. Trust Estate Scheduled Liabilities - Determination
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and Payment.
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(a) The Trustee shall maintain on an ongoing
basis a schedule of Known Liabilities (the "Schedule of
Liabilities") determined as provided in this Section 6. The
initial Schedule of Liabilities is the Statement of
Liabilities attached hereto as Annex 1. Each Scheduled
Liability shall be stated at an amount equal to its
liquidated amount if it is a Known Liability which is
liquidated (i.e., in an amount certain) or at its related
reasonable reserve if it is a Known Liability which is
unliquidated (i.e., in an amount which is uncertain or
contingent). The liquidated amount or the reserve, as the
case may be, with respect to any Known Liability is its
"Scheduled Amount." Amounts claimed under Tax Claims and
Final Tax Amounts shall not be Scheduled Liabilities.
(b) The Schedule of Liabilities shall also
include for Known Liabilities which are liquidated their
respective discrete (one or more) or periodic due dates and
the names and addresses of the persons entitled to payment.
Unless the Representative or the Indemnitees' Agent shall
give notice to the Trustee at least 10 days prior to the due
date of any Known Liability which is liquidated that payment
should not be made on such due date, the Trustee shall pay
from Fund A Known Liabilities which are liquidated when due,
and the related Known Liability shall be deemed satisfied
and removed (to the extent satisfied) from the Schedule of
Liabilities.
(c) If any party (other than the Trustee) becomes
aware that any Known Liabilities which are liquidated have
arisen after the date hereof, such party shall (through the
Representative or the Indemnitees' Agent, as the case may
be) give notice, and provide relevant documentation, if any,
to the other parties. The notice shall contain the
information called for by the first sentence of Section 6(b)
hereof. If no party (other than the trustee) object to such
notice within 10 days of the notice, the subject Known
Liabilities shall be added to the Schedule of Liabilities.
(d) If any party (other than the Trustee) becomes
aware that any Known Liabilities which are unliquidated have
arisen after the date hereof, such party shall (through the
Representative or the Indemnitees' Agent, as the case may
be) give notice, and provide relevant documentation, if any,
to the other parties and shall propose a reasonable reserve
therefor. If no party (other than the Trustee) objects to
such notice within 10 days of the notice, the subject Known
Liabilities shall be added to the Schedule of Liabilities at
the amount of the proposed reserve.
(e) If there shall occur any developments or
events which cause any party (other than the Trustee)
reasonably to believe that the reserve for a Known Liability
which is unliquidated or the scheduled amount of a Known
Liability which is liquidated should be adjusted, such party
shall (through the Representative or the Indemnitees' Agent,
as the case may be) give notice to the other parties of the
proposed adjustment and the basis therefor. If no party
(other than the trustee) objects to such notice within 10
days of the notice, the reserve or Scheduled Amount for such
Known Liability shall be adjusted as proposed.
(f) If Known Liabilities which are unliquidated
become liquidated through final resolution or settlement,
the party responsible for the resolution shall give notice
to the other parties of the nature and amount of the
resolution and present evidence thereof in the form of a
release, receipt, or otherwise. If no party (other than the
trustee) objects to such notice within 10 days of the
notice, the subject Known Liability shall be deemed
liquidated at the amount of the resolution and, up to the
Scheduled Amount, shall be paid as provided in Section 6(b)
hereof.
(g) In addition, if the Representative shall give
notice to the other parties hereto at least 15 days prior to
a quarterly valuation that Parent or Contributor has
satisfied, or caused to be satisfied, any Known Liability
and shall present evidence thereof in the form of a receipt,
release or other proof of its claim, then if the
Indemnitees' Agent does not give notice of objection within
10 days of the Representative's notice, the Trustee shall
reimburse Contributor or Parent (as the case may be) out of
the Trust Estate for the amount paid in satisfaction of the
Known Liability up to its Scheduled Amount. Such Known
Liability shall thereafter be deemed satisfied and removed
(to the extent satisfied) from the Schedule of Liabilities.
(h) In addition, if the Indemnitees' Agent shall
give notice to the other parties hereto at least 15 days
prior to a quarterly valuation that HCI or Newco has
incurred or has satisfied, or caused to be satisfied, any
Known Liability and shall present evidence thereof in the
form of a receipt, release or other proof of its claim, then
if the Representative does not give notice of objection
within 10 days of the Indemnitees' Agent's notice, the
Trustee shall reimburse HCI or Newco (as the case may be)
out of the Trust Estate for the amount paid in satisfaction
of the Known Liability up to its Scheduled Amount. Such
Known Liability shall thereafter be deemed satisfied and
removed (to the extent satisfied) from the Schedule of
Liabilities.
(i) When so directed in writing by the
Representative upon at least 10 days' prior written notice,
if (and only if) no Make-Whole Breach is then continuing
under Section 8(c) hereof, the Indemnitees' Agent shall
direct the Trustee (x) to sell or otherwise liquidate (in
any commercially reasonable manner set forth in the
Representative's notice) Cash Equivalents or Newco Common
Stock held by the Trustee in Fund B as necessary to pay and
discharge a Tax Claim or Final Tax Amount and (y) to pay
directly to the taxing authority certified in the
Representative's notice to be entitled to payment of such
Tax Claim or Final Tax Amount, on account and in
satisfaction of such Tax Claim or Final Tax Amount, such
amount as is set forth in the Representative's notice. The
Trustee shall not take any action under this Section 6(i)
unless it receives such notice from the Indemnitees' Agent,
regardless of the Trustee's receipt of any notice from the
Representative.
(j) The Trustee (i) shall not be obligated to
give any notice under any of the foregoing provisions in
this Section 6, (ii) shall not be entitled to object to any
notice given under any such provisions, (iii) shall not be
obligated to make any adjustment in the Schedule of
Liabilities, unless and until it receives notice thereof in
accordance with such provisions and either (x) the time for
objection thereto, as set forth in such provisions, has
expired or (y) any such objection that was timely given has
been resolved pursuant to Section 7 hereof, and (iv) shall
give notice to the other parties hereto if it believes in
good faith that any liquidated Known Liability has arisen,
but shall not have any liability for (or suffer any
diminution in its rights under Section 14 hereof on account
of) any such notice given or not given by it in good faith.
7. Certain Disputes. In the event that either the
Representative or the Indemnitees' Agent shall give notice of
objection to any notice given under any of the provisions of
Sections 4(d), 6 or 9 hereof, the parties (other than the
Trustee) shall promptly meet and confer and attempt to resolve
the objection. If they succeed, they shall promptly and jointly
notify the Trustee and the Trustee shall act in accordance with
the notice. If they shall not succeed within 15 days of the
notice of objection, they shall, within an additional 45 days,
commence and complete an arbitration proceeding in accordance
with the provisions of Section 24 hereof. Unless the parties
shall otherwise jointly instruct the Trustee, the Trustee shall
act with respect to the subject valuation (as to notice of
objection under Section 4(d) hereof) or the subject Known
Liability (as to notice of objection under Section 6 hereof) in
accordance with the arbitrator's award when received. A party
must have a reasonable basis in giving any such notice of
objection and shall set forth the basis of its objection in the
notice.
8. Certain Releases, Substitutions; Consequences of
------------------------------------------------
Make-Whole Breach.
-----------------
(a) When so directed in writing by the
Representative upon at least 10 days' prior written notice
(with a copy to the Trustee), the Indemnitees' Agent shall
instruct the Trustee to release from Fund B and deliver to
Contributor any or all cash, Cash Equivalents and Newco
Common Stock then held by the Trustee in Fund B, but only if
prior to any such release and delivery there is deposited
with the Trustee, to be held as part of the Trust Estate and
as part of Fund B, an irrevocable standby letter of credit
which shall be issued in favor of the Trustee in an amount
at least equal to the value of the cash, Cash Equivalents
and Newco Common Stock so to be released and which shall be
in form and substance and issued by a bank satisfactory to
Newco in its reasonable discretion and shall be reasonably
satisfactory to the Trustee (a "Letter of Credit"). Each
Letter of Credit in any event (i) must be available for
payment to the Trustee under each, any and all of the
circumstances under which any payment by the Trustee from
the Trust Estate is or becomes due pursuant to the
provisions of this Agreement and, in addition, (ii) must be
freely available for payment to the Trustee in the full
amount of such Letter of Credit at all times during the
period that commences on the 30th day prior to the date on
which such Letter of Credit, by its terms, expires, unless a
substitute Letter of Credit has been delivered, approved and
accepted by the Trustee as set forth in the preceding
sentence. Unless otherwise instructed by the Indemnitees'
Agent, the Trustee shall draw or demand payment under each
Letter of Credit, for the full amount of such Letter of
Credit, at least 20 days prior to its expiration. The
Trustee shall also draw or demand payment under Letters of
Credit at any time when the assets in Fund B are to be
applied in accordance with this Agreement to fund payment of
a Known Liability or a Tax Claim or Final Tax Amount or any
other amount payable from Fund B. For purposes of valuation
of Fund B, the amount that is available to be drawn, but has
not been drawn, under any Letter of Credit held in Fund B
shall be counted as Cash Equivalents.
(b) When so directed in writing by the
Representative upon at least five days prior written notice,
the Indemnitees' Agent shall instruct the Trustee to release
from Fund B and deliver to Contributor the number of shares
of Newco Common Stock specified in such notice, but only if
Contributor transfers to the Trustee, to be held as part of
the Trust Estate, cash in an amount equal to the Fair Market
Value of such shares of Newco Common Stock, concurrently
with and in exchange for delivery of such shares of Newco
Common Stock.
(c) If Contributor and Parent at any time fail to
deposit any Make-Whole Payment required to be deposited by
them pursuant to Section 5(d) hereof (a "Make-Whole
Breach"), then at all times thereafter until the full amount
of such Make-Whole Payment is received by the Trustee, in
cash and as part of the Trust Estate, (i) the Indemnitees'
Agent shall have the sole power to direct and control the
application of the Trust Estate to the settlement, payment
and satisfaction of any and all Scheduled Liabilities,
Liabilities Claims, Final Tax Amounts and Tax Claims
(whether or not disputed or liquidated), at such times and
in such amounts, manner and order and on such conditions as
the Indemnitees' Agent from time to time, in its sole
discretion, may determine and (ii) subject to applicable
laws, regulations, orders, judgments and decrees and the
provisions of Section 13 hereof, the Trustee shall honor all
instructions received by it in writing from the Indemnitees'
Agent to collect any or all Cash Equivalents, sell any or
all Newco Common Stock and otherwise liquidate any and all
property of the Trust Estate and pay, from cash in the Trust
Estate, any or all such Scheduled Liabilities, Liabilities
Claims, Final Tax Amounts and Tax Claims, in such amount,
manner and order as the Indemnitees' Agent in its sole
discretion may elect and direct, in each case (x) whether or
not any claim so paid has then been settled or liquidated or
is then binding upon Contributor or Parent under any
judgment or award, (y) whether or not Contributor or Parent
has participated in or approved any settlement or payment of
any claim, and (z) whether or not Parent or Contributor has
given the Trustee notice of objection to any such
instructions or notice of any demand for arbitration or
judicial relief in respect thereof. No such action by the
Indemnitees' Agent shall be determinative of any liability
of Parent or Contributor for or as to any Liability or
Damages pursuant to the provisions of the Stock Contribution
and Exchange Agreement.
(d) The Trustee shall not take any action under
Section 8(a) hereof or Section 8(b) hereof unless it
receives the notice therein required from the Indemnitees'
Agent, regardless of the Trustee's receipt of any notice
from the Representative.
(e) The parties agree to discuss in good faith
the terms and conditions on which Section 8(a) hereof may be
replaced, under an amendment and restatement of this
Agreement, by terms and conditions pursuant to which one or
more letters of credit meeting requirements that are yet to
be agreed might be substituted for the cash and Cash
Equivalents in Fund A and for the cash, Cash Equivalents and
Newco Common Stock in Fund B. Such replacement of Section
8(a) hereof shall become effective only if and as set forth
in a written agreement executed and delivered by the parties
hereto. If such a written agreement becomes effective, it
shall supersede the provisions of Section 8(a) hereof. None
of the parties shall be obligated to agree to any such terms
and conditions or to enter into any such agreement. No
party shall (i) suffer any reduction, loss or other change
in any of its rights, powers, immunities and benefits
hereunder (including those arising under Section 8(a)
hereof) on account of any failure or refusal on its part to
agree to any such terms and conditions or any act or
omission in connection therewith or (ii) otherwise be liable
in respect of any such failure, refusal, act or omission so
long as such party participates in such discussions in good
faith. In no event shall the Trustee be obligated to sign
any amendment that affects the rights, duties, liabilities
or immunities of the Trustee in any respect that is adverse
to the Trustee.
9. Termination of Agreement.
------------------------
(a) Ninety (90) days after the 10th anniversary
of the date hereof (the "Cut-off Date"), (i) the Trustee
shall determine, by a valuation in accordance with Sections
4 and 6 hereof, the excess, if any, (the "Excess Amount") of
(A) all property then held in the Trust Estate over (B) the
amount required to pay the sum of all Scheduled Liabilities,
all Tax Reserves for all Tax Claims and Final Tax Amounts,
all Pending Amounts, and all other amounts required to be
paid from Fund B, and (ii) the Trustee shall release such
Excess Amount to Contributor, unless at such time the
statute of limitations applicable to the assessment of
United States federal income tax against Univisa or USHI (or
any affiliate or Subsidiary of either of them) with respect
to any Pre-Closing Period shall not have expired, in which
event any Excess Amount shall be determined and released to
Contributor upon the day following the earliest to occur of
(x) the expiration of such statute of limitations, (y) a
final determination by the Internal Revenue Service to the
effect that neither Univisa nor USHI (nor any affiliate or
Subsidiary of either of them) has any unsatisfied liability
for taxes for which Parent and Contributor would be liable
pursuant to Section 8.2(a)(ii) of the Stock Contribution and
Exchange Agreement, and (z) the assertion of a Tax Claim by
the Internal Revenue Service.
(b) After the Cut-off Date, no Known Liabilities
shall be added to the Schedule of Liabilities other than as
a result of the determination of Pending Amounts.
(c) After satisfaction and discharge of all
remaining Scheduled Liabilities and Final Tax Amounts,
determination of all Pending Amounts, final, indefeasible
and nonappealable satisfaction and discharge of all Tax
Claims and Liabilities Claims, and payment or satisfaction
of all previously unpaid amounts to which the Trustee may be
entitled under Section 14 hereof, and after the Excess
Amount (if any) is released in accordance with Section 9(a)
hereof, all amounts remaining in the Trust Estate shall be
delivered to Contributor.
(d) Upon the final distribution of all of the
Trust Estate in accordance with the terms of this Agreement,
this Agreement shall terminate, except that the provisions
of Section 13 and 14 hereof shall survive such termination.
(e) The Trustee shall not be obligated to release
or deliver any assets of the Trust Estate pursuant to this
Section 9 except if and to the extent (i) the Trustee
receives joint written instructions from the Representative
and the Indemnitees' Agent, directing such release or
delivery, (ii) the Trustee (x) receives notice from the
Representative directing that such release or delivery be
made on any date occurring after the Cut-Off Date, (y) has
given the Indemnitees' Agent notice of the Trustee's receipt
of such direction from the Representative, and at least 30
days have elapsed since such notice was given to the
Indemnitees' Agent, and (z) has not received notice of
objection to such release or delivery from the Indemnitees'
Agent, or (iii) in accordance with an arbitrator's award,
directing that such release or delivery be made on any date
occurring after the Cut-Off Date, delivered in an
arbitration proceeding conducted in accordance with the
provisions of Section 24 hereof.
10. Directions to Trustee. Both prior to and after
the occurrence of any Event of Default, the Trustee shall
(subject to Sections 12 and 13 hereof) exercise and enforce its
rights and remedies under the Pledge and Security Agreement in
accordance with such instructions as the Trustee from time to
time may receive from Newco Group, so long as such instructions
do not, in the good faith opinion of the Trustee, require it to
engage in any action which would violate any applicable law,
regulation, judgment, order or decree or expose it to liability
for which it has not received indemnification from Newco Group
pursuant to Section 14 hereof.
11. Tax Matters. Each party to this Agreement shall
provide a completed IRS Form W-8 or Form W-9 to the Trustee
upon request by the Trustee. Subject to Section 14, Contributor
and Parent, jointly and severally, covenant and agree to
indemnify and hold the Trustee harmless against all liability for
tax withholding and/or reporting for any payments made by the
Trustee pursuant to this Agreement.
12. Duties of the Trustee. The Trustee shall have no
duties or responsibilities other than those expressly set forth
in this Agreement and the Pledge and Security Agreement, and no
implied duties or obligations shall be read into this Agreement
or the Pledge and Security Agreement against the Trustee. The
Trustee shall have no duty to enforce any obligation of any
person, other than as provided herein. The Trustee shall be
under no liability to anyone by reason of any breach or failure
on the part of any party hereto or any maker, endorser or other
signatory of any document or any other person to perform such
person's obligations under any such document.
13. Liability of the Trustee; Withdrawal.
------------------------------------
(a) The Trustee shall not be liable for any
action taken or omitted by it, or any action suffered by it
to be taken or omitted, in good faith (except as provided in
the immediately succeeding sentence), and may rely
conclusively and shall be protected in taking or omitting to
take any action based upon any order, notice, demand,
certificate, opinion or advice of counsel (including counsel
chosen by the Trustee), statement, instrument, report or
other paper or document (not only as to its due execution
and the validity and effectiveness of its provisions, but
also as to the truth and acceptability of any information
therein contained) which is believed by the Trustee to be
genuine and to be signed or presented by the proper
person(s). The Trustee shall not be held liable for any
error in judgment made in good faith by an officer of the
Trustee unless it shall be proved that the Trustee was
grossly negligent in ascertaining the pertinent facts or
acted intentionally in bad faith. The Trustee shall not be
bound by any notice of demand, or any waiver, modification,
termination or rescission of this Agreement or any of the
terms hereof, unless evidenced by a writing delivered to the
Trustee signed by the proper party or parties and, if the
duties or rights of the Trustee are affected, unless it
shall give its prior written consent thereto.
(b) Without limitation of any other provision of
this Agreement, the Trustee shall not be responsible for and
may conclusively rely upon and shall be protected,
indemnified and held harmless by Contributor and Parent,
acting jointly and severally, for the sufficiency or
accuracy of the form of, or the execution, validity, value
or genuineness of any document or property received (from
any party), held or delivered by it hereunder, or of the
signature or endorsement thereon, or for any description
therein; nor shall the Trustee be responsible or liable in
any respect on account of the identity, authority or rights
of the persons executing or delivering or purporting to
execute or deliver an document, property or this Agreement.
(c) No provision of this Agreement or the Pledge
and Security Agreement shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee
may refuse to perform any duty or exercise any right or
power hereunder or thereunder unless it receives indemnity
reasonably satisfactory to it against any loss, liability or
expense.
(d) The Trustee makes no statement, promise,
representation or warranty whatsoever, and shall have no
liability whatsoever, to Newco Group or its successors or
assigns as to the authorization, execution, delivery,
legality, enforceability or sufficiency of this Agreement or
the Pledge and Security Agreement or as to the creation,
perfection, priority or enforceability of any security
interest granted hereunder or thereunder or as to the
existence, ownership, quality, condition, value or
sufficiency of any of the Trust Estate or as to any other
matter whatsoever, except only that the Trustee represents
and warrants to the other parties hereto that (i) it has the
right, power and authority, and all required licenses and
consents, to execute, deliver and perform its duties under
this Agreement and the Pledge and Security Agreement, and
(ii) this Agreement and the Pledge and Security Agreement
have been duly executed and delivered by it, upon due
authorization, and (without representing as to the legality,
binding effect or sufficiency of any provision herein or
therein) are binding upon and legally enforceable against
it, subject to laws generally affecting the enforcement of
creditors' rights and the effect of equitable principles,
whether considered in a court of law or equity.
(e) In the event that the Trustee shall become
involved in any arbitration or litigation relating to the
Trust Estate, the Trustee is authorized to comply with any
final, binding and nonappealable decision reached through
such arbitration or litigation.
(f) The Trustee may resign at any time and be
discharged from its duties and obligations hereunder and
under the Pledge and Security Agreement, by giving notice to
the other parties. Such resignation shall not discharge or
otherwise effect the Trust Estate or any property comprising
part of the Trust Estate or any beneficial interest therein
or the rights, powers and liens created by or arising under
this Agreement and the Pledge and Security Agreement. Such
resignation shall take effect when a successor Trustee has
been appointed by Newco and has accepted the trusts herein
provided. If a successor Trustee does not take office
within 60 days after the retiring Trustee resigns, the
retiring Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(g) A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to
Newco Group. Thereupon, the resignation of the retiring
Trustee shall become effective, and the successor Trustee
shall have all the rights, powers and duties of the Trustee
under this Agreement and all of the rights, powers and liens
granted to the Trustee under the Pledge and Security
Agreement. The successor Trustee shall mail a notice of its
succession to Contributor and Parent. The retiring Trustee
shall promptly transfer all property held by it as Trustee
to the successor Trustee provided all sums owing to the
retiring Trustee have been paid.
(h) Notwithstanding the replacement of the
Trustee pursuant to this Section 13, the resigning Trustee
shall continue to be entitled to the rights, immunities and
benefits provided under Sections 12, 13, 14 and 24 hereof.
14. Trustee's Fees and Indemnification. All fees (as
may from time to time be agreed in writing by the Trustee,
Contributor and Parent) and reasonable expenses and disbursements
of the Trustee for its services hereunder and under the Pledge
and Security Agreement, shall be paid by Contributor and Parent.
Newco Group, Contributor and Parent, jointly and severally,
hereby agree to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without
gross negligence or wilful misconduct on the part of the Trustee,
including legal or other fees arising out of or in connection
with its entering into this Agreement and the Pledge and Security
Agreement and carrying out its duties hereunder or thereunder,
including the costs and expenses of defending itself against any
claim of liability in the premises or any action for
interpleader. The Trustee shall be under no obligation to
institute or defend any action, suit, or legal proceeding in
connection with this Agreement or the Pledge and Security
Agreement, unless first indemnified and held harmless to its
satisfaction in accordance with the foregoing, except that the
Trustee shall not be indemnified against any loss, liability or
expense arising out of its bad faith, gross negligence or willful
misconduct. Such indemnity shall survive the termination or
discharge of this Agreement or resignation of the Trustee.
15. Inspection. All funds or other property held as
part of the Trust Estate shall at all times be clearly identified
on the Trustee's accounts as being held by the Trustee hereunder.
Any party hereto may at any time during the Trustee's business
hours (with reasonable notice) inspect any records or reports
relating to the Trust Estate.
16. Notices. All notices, requests, demands and other
communications which are required or may be given under this
Agreement shall be in writing and shall be deemed to have been
duly given (i) when received if personally delivered, (ii) when
receipt is automatically acknowledged if transmitted by telecopy,
electronic or digital transmission method, (iii) the day after it
is sent, if sent for next day delivery to an address within the
United States and Puerto Rico by recognized overnight delivery
service (e.g. Federal Express), (iv) the third day after it is
sent, if sent for next day delivery to any other address by
recognized international delivery service, and (v) and upon
receipt, if sent by certified or registered mail, return receipt
requested. In each case notice shall be sent to:
(a) If to Contributor or the Representative:
SATELLITE COMPANY, LLC
c/o Fonovisa Centroamerica, X.X.
Xx Xxxx de Curridabat 25 Mts. Este
Xxxxxxxx Xxxxxxxx xxx Xxxx
Xxxxx 0
Xxx Xxxx, Xxxxx Xxxx
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) If to Parent:
GRUPO TELEVISA, S.A.
Xxxxxxx Xxxxx xx Xxxxxxx # 0000
Xxxxxxx Xxxxx Xx
Xxxxxx, QF 01210
Attention: Xxxxxx Xxxxxx
Telephone: 000-000-000-0000
Telecopy: 000-000-000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(c) If to Newco or Indemnitees' Agent:
MAGELLAN INTERNATIONAL, INC.
c/o PANAMSAT CORPORATION
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(d) If to HCI:
XXXXXX COMMUNICATIONS, INC.
XX Xxx 0000
Xxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxx, President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(e) If to the Trustee:
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
17. Non-Exclusive Remedy. Newco Group, Contributor
and Parent agree and acknowledge that the Trust Estate shall not
be Newco Group's exclusive method of receiving indemnification
from Contributor and Parent pursuant to Section 8.2 of the Stock
Contribution and Exchange Agreement and Contributor and Parent
shall be and remain in all respects personally liable for all
Indemnification Obligations and each liability may be enforced by
any lawful means.
18. Modification; Waiver. Subject to applicable law,
this Agreement may be amended, modified or supplemented, with
respect to any of the terms contained herein, only by written
agreement of the parties and the rights, remedies, immunities and
benefits created hereby or arising hereunder in favor of any
person may be waived by it only by and instrument in writing
signed by it. No such right, remedy, immunity or benefit shall
be deemed waived by reason of such person's failure to act, oral
statements or course of conduct, including any grant of a waiver
on a different or prior occasion.
19. Interpretation. When a reference is made in this
Agreement to Sections, such reference shall be to a Section of
this Agreement unless otherwise indicated. The headings
contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the word "include", "includes" or
"including" are used in this Agreement, they shall be deemed to
be followed by the words "without limitation". This Agreement
shall not be construed for or against either party by reason of
the authorship or alleged authorship of any provision hereof or
by reason of the status of the respective parties.
20. Assignment. Except for assignments by a member of
the Newco Group to any affiliate or Subsidiary of such member
with respect of some or all of its rights under this Agreement
(which assignment can be made without the written consent of
Contributor or Parent), neither this Agreement, nor any of the
rights, interests or obligations hereunder, shall be assigned by
any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of Contributor,
Parent and Newco Group. The Trustee shall not be bound by any
assignment, unless it receives written notice thereof. No other
party hereto may assign its obligations to the Trustee without
the Trustee's written consent. Subject to the foregoing
provisions of this Section 20, this Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
21. Governing Law. This Agreement shall be construed
and interpreted, and the rights of the parties shall be
determined, in accordance with the laws of the State of New York
(without reference to the choice of law provisions).
22. Interest in Trust Estate. Neither Contributor nor
Parent has any interest in the Trust Estate except only as to any
property which has been released from the Trust Estate and
delivered to Contributor or Parent as herein provided, effective
upon such release and delivery.
23. Severability. Each party agrees that, should any
court or other competent authority hold any provision of this
Agreement or part hereof to be null, void or unenforceable, or
order any party to take any action inconsistent herewith or not
to take an action consistent herewith or required hereby, the
validity, legality and enforceability of the remaining provisions
and obligations contained or set forth herein shall not in any
way be affected or impaired thereby. Upon any such holding that
any provision of this Agreement is null, void or unenforceable,
the parties will negotiate in good faith to modify this Agreement
so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that the transactions
contemplated by this Agreement are consummated to the extent
possible. The Trustee shall not be obligated to agree to any
amendment that adversely affects its rights or obligations
hereunder. Except as otherwise contemplated by this Agreement,
to the extent that a party hereto took an action inconsistent
herewith or failed to take action consistent herewith or required
hereby pursuant to an order or judgment of a court or other
competent authority, such party shall incur no liability unless
such party did not in good faith seek to resist or object to the
imposition or entering of such order or judgment; PROVIDED,
HOWEVER, that nothing in this Section 23 shall be deemed to limit
or otherwise modify the Trustee's rights under Sections 13, 14
and 24 hereof, including Section 13(c).
24. Arbitration. Notwithstanding anything in any
other Section of this Agreement to the contrary, in the event
that there shall be a dispute among the parties arising out of or
relating to this Agreement, the parties agree that such dispute
shall be resolved by final and binding arbitration in Los
Angeles, California, administered by Judicial Arbitration &
Mediation Services, Inc. ("JAMS"), in accordance with JAMS' rules
of practice then in effect or such other procedures as the
parties may agree to prior to the Closing. Depositions may be
taken and other discovery may be obtained during such arbitration
proceedings to the same extent as authorized in civil judicial
proceedings. Any award issued as a result of such arbitration
shall be final and binding between the parties thereto, and shall
be enforceable by any court having jurisdiction over the party
against whom enforcement is sought. The fees and expenses of
such arbitration (including reasonable attorneys' fees) or any
action to enforce an arbitration award shall be paid by the party
that does not prevail in such arbitration.
Notwitstanding anything in the preceding paragraph of
this Section 24 to the contrary, the parties shall have the right
to submit to a court, in accordance with the following provisions
of this Section 24, (i) any claim asserted by the Trustee, in its
personal capacity, for the payment of fees, expenses,
disbursements or indemnification due to the Trustee under Section
14 hereof (or due under any indemnity given to the Trustee
pursuant to Section 14 hereof), (ii) any claim asserted against
the Trustee personally, seeking damages or other relief against
the Trustee (and not for purposes of binding the Trust Estate)
based on or relating to any alleged breach of any duty or other
actionable conduct of the Trustee, and (iii) any claim asserted
by or against the Trustee personally (and not for purposes of
binding the Trust Estate) otherwise relating in any manner to the
rights, immunities and benefits granted to the Trustee under
Sections 12, 13 and 14 hereof; and, with respect to solely to
such claims:
(a) No party shall be obligated or entitled to
submit such claim to arbitration or be bound by any
arbitrator's award that might in any manner relate to such
claim;
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO SUCH CLAIM 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
FOR PURPOSES OF ADJUDICATION OF ANY SUCH CLAIM. 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
FOR PURPOSES OF ADJUDICATION OF ANY SUCH CLAIM. SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS MAY BE MADE BY ANY
MEANS PERMITTED BY NEW YORK LAW.
(c) EACH PARTY HERETO WAIVES ALL RIGHTS TO A
TRIAL BY JURY OF ANY SUCH CLAIM AND AGREES THAT SUCH CLAIM
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 PLEDGE AND SECURITY AGREEMENT OR ANY
PROVISION HEREOF OR THEREOF, INSOFAR AS IT MAY CREATE A
DEFENSE TO ANY SUCH CLAIM. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE PLEDGE AND SECURITY
AGREEMENT.
25. Remedies Cumulative. All rights and remedies of
each party hereto are cumulative of each other and of every other
right or remedy such party may otherwise have at law or in
equity, and the exercise of one or more rights or remedies shall
not prejudice or impair the concurrent or subsequent exercise of
other rights or remedies.
26. Counterparts. This Agreement may be executed in
two or more counterparts, each of which will be considered one
and the same instrument and shall become effective when executed
and delivered by each of the parties.
27. Specimen Signature. Each person at any time
appointed as Representative or Indemnitees' Agent shall present a
specimen signature to the Trustee within a reasonable time.
[intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have executed this
Collateral Trust Agreement as of the date first written above.
MAGELLAN INTERNATIONAL, INC.
By:/s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Treasurer
XXXXXX COMMUNICATIONS, INC.
By:/s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
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
By:/s/ Xxxxxx Xxxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Assistant Vice President
