Exhibit 99.9
SECOND LIEN PARENT PLEDGE AGREEMENT
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PLEDGE AGREEMENT dated as of April 22, 2005 made by XXXXXX NETWORK
SYSTEMS, INC., a Delaware corporation ("HNS"), and SKYTERRA COMMUNICATIONS,
INC., a Delaware corporation ("SkyTerra"; and together with HNS, each a
"Pledgor" and together, the "Pledgors"), in favor of BEAR XXXXXXX CORPORATE
LENDING INC., as administrative agent (in such capacity, the "Administrative
Agent") for the lenders (the "Lenders") parties to the Second Lien Credit
Agreement, dated as of April 22, 2005 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among XXXXXX NETWORK
SYSTEMS, LLC, a Delaware limited liability company (the "Issuer"), the
Administrative Agent, the Lenders, JPMORGAN CHASE BANK, N.A., as syndication
agent (in such capacity, the "Syndication Agent"), and X.X. XXXXXX SECURITIES
INC. and BEAR, XXXXXXX & CO. INC., as joint lead arrangers and joint book
managers (in such capacity, the "Joint Lead Arrangers").
W I T N E S S E T H :
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WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make loans to the Issuer upon the terms and subject to the
conditions set forth therein; and
WHEREAS, the Pledgors are the legal and beneficial owners of the
units of Pledged Equity (as hereinafter defined) issued by the Issuer;
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their respective loans to the Issuer under the Credit Agreement that
the Pledgors shall have executed and delivered this Pledge Agreement to the
Administrative Agent for the ratable benefit of the Secured Parties;
WHEREAS, pursuant to the Intercreditor Agreement, dated as of April
22, 2005 (the "Intercreditor Agreement"), among JPMorgan Chase Bank, N.A, as
administrative agent (in such capacity, with its successors and assigns, the
"First Priority Representative") for the First Priority Secured Parties (as
defined therein), and Bear Xxxxxxx Corporate Lending Inc., as second lien
administrative agent (in such capacity, with its successors and assigns, the
"Second Priority Representative") for the Second Priority Secured Parties (as
defined therein), the security interests executed hereby are subject and
subordinated to the First Priority Obligations (as defined therein).
NOW, THEREFORE, in consideration of the premises and to induce the
Agents and the Lenders to enter into the Credit Agreement and to induce the
Lenders to make their respective loans to the Issuer under the Credit
Agreement, the Pledgors hereby agree with the Administrative Agent, for the
ratable benefit of the Secured Parties, as follows:
1. Defined Terms. Unless otherwise defined herein, terms that are
defined in the Credit Agreement or the Intercreditor Agreement and used herein
are so used as so defined, and the following terms shall have the following
meanings:
"Code": the Uniform Commercial Code from time to time in effect in
the State of New York.
"Collateral": the Pledged Equity and all Proceeds thereof.
"First Lien Pledge Agreement" means that certain Pledge Agreement
dated as of April 22, 2005 made by the Pledgors in favor of JPMorgan Chase
Bank, N.A., as administrative agent, as amended, supplemented or otherwise
modified from time to time.
"Obligations": as defined in the Collateral Agreement.
"Pledge Agreement": this Pledge Agreement, as amended, supplemented
or otherwise modified from time to time.
"Pledged Equity": all of the Class A membership units of the Issuer
listed on Schedule I hereto, together with all certificates, options or rights
(including any additional Equity Interests of the Borrower) of any nature
whatsoever that may be issued or granted by the Issuer to any Pledgor while
this Pledge Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in Section
9-102(a)(64) of the Code on the date hereof and, in any event, shall include,
without limitation, all dividends or other income from the Pledged Equity, and
any and all collections on the foregoing or distributions with respect to the
foregoing.
"Requirement of Law": means, with respect to any person, the common
law and all federal, state, local and foreign laws, rules and regulations,
orders, judgments, decrees and other legal requirements or determinations
(including, without limitation, the Communications Act of 1934, as amended,
and the written rules and regulations of the FCC) of any Governmental
Authority or arbitrator, applicable to or binding upon such person or any of
its property or which such Person or any of its property is subject.
2. Pledge; Grant of Security Interest. Each Pledgor hereby transfers
and grants to the Administrative Agent, for the ratable benefit of the Secured
Parties, a security interest in all of such Pledgor's right, title and
interest in the Collateral, as collateral security for the prompt and complete
payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations.
3. Powers; Endorsements. To the extent the Pledged Equity is
certificated, concurrently with the delivery to the Administrative Agent (or,
if prior to the First Priority Obligations Payment Date, the First Priority
Representative), of each certificate representing one or more units of Pledged
Equity, each Pledgor shall deliver an undated unit power covering such
certificate, duly executed in blank by such Pledgor.
4. Representations and Warranties. Each Pledgor represents and
warrants that on the Closing Date:
(a) the Pledged Equity listed on Schedule I constitutes all of the
issued and outstanding Equity Interests of the Issuer issued to any Pledgor;
(b) all the units of Pledged Equity have been duly and validly issued
and are fully paid and nonassessable;
(c) such Pledgor is the record and beneficial owner of, and has good
title to, the Pledged Equity listed on Schedule I to be pledged by such
Pledgor, free of any and all Liens or options in favor of, or claims of, any
other Person, except the Lien created by the First Lien Pledge Agreement and
this Pledge Agreement; and
(d) upon completion of the filings specified on Schedule II hereto,
the Lien granted pursuant to this Pledge Agreement will constitute a valid,
perfected and enforceable Lien on the Collateral in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, except
as enforceability may be affected by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing.
5. Covenants. Each Pledgor covenants and agrees with the
Administrative Agent and the Lenders, that, from and after the date of this
Pledge Agreement until the Obligations are paid in full and the Commitments
are terminated:
(a) If such Pledgor shall, as a result of its ownership of the
Collateral, become entitled to receive or shall receive any certificate
(including, without limitation, any certificate representing a dividend or a
distribution in connection with any reclassification, increase or reduction of
capital or any certificate issued in connection with any reorganization),
promissory note or other instrument, option or rights, whether in addition to,
in substitution of, as a conversion of, or in exchange for any of the
Collateral, or otherwise in respect thereof, such Pledgor shall accept the
same as the agent of the Administrative Agent and the Secured Parties, hold
the same in trust for the Administrative Agent and the Secured Parties and
deliver the same forthwith to the Administrative Agent (or, if prior to the
First Priority Obligations Payment Date, the First Priority Representative) in
the exact form received, duly indorsed by such Pledgor to the Administrative
Agent (following the First Priority Obligations Payment Date), if required,
together with an undated power or endorsement, as appropriate, covering such
certificate, note or instrument duly executed in blank by such Pledgor, to be
held by the Administrative Agent (following the First Priority Obligations
Payment Date), subject to the terms hereof, as additional collateral security
for the Obligations. Any sums paid upon or in respect of the Collateral upon
the liquidation or dissolution of the Issuer shall be paid over to the
Administrative Agent (or, if prior to the First Priority Obligations Payment
Date, the First Priority Representative) to be held by it hereunder as
additional collateral security for the Obligations, and in case any
distribution of capital shall be made on or in respect of the Collateral or
any property shall be distributed upon or with respect to the Collateral
pursuant to the recapitalization or reclassification of the capital of the
Issuer or pursuant to the reorganization thereof, the property so distributed
shall be delivered to the Administrative Agent (following the First Priority
Obligations Payment Date) to be held by it hereunder as additional collateral
security for the Obligations. If any sums of money or property so paid or
distributed in respect of the Collateral shall be received by such Pledgor,
such Pledgor shall, until such money or property is paid or delivered to the
Administrative Agent (or, if prior to the First Priority Obligations Payment
Date, the First Priority Representative), hold such money or property in trust
for the Secured Parties, segregated from other funds of such Pledgor, as
additional collateral security for the Obligations.
(b) Without the prior written consent of the Administrative Agent,
such Pledgor will not (i) sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, the Collateral, provided that
on or after the Closing Date, (i) SkyTerra shall be permitted to assign or
transfer its interests in the Collateral to wholly-owned subsidiary of
SkyTerra and (2) any Pledgor shall be permitted to assign or transfer such
Pledged Equity to any other Person, in each case, so long as such transferee
of such Pledged Equity shall within 10 business days after receipt of such
Pledged Equity execute and deliver to the Administrative Agent a supplement
substantially in the form of Exhibit A hereto and become a Pledgor hereunder,
or (ii) create, incur or permit to exist any Lien or option in favor of, or
any claim of any Person with respect to, any of the Collateral, or any
interest therein, except for the Lien provided for by this Pledge Agreement or
that arise by operation of law. Such Pledgor will defend the right, title and
interest of the Administrative Agent and the Secured Parties in and to the
Collateral against the claims and demands of all Persons whomsoever.
(c) At any time and from time to time, upon the written request of
the Administrative Agent, and at the sole expense of such Pledgor, such
Pledgor will promptly and duly execute and deliver such further instruments
and documents and take such further actions as the Administrative Agent may
reasonably request for the purposes of obtaining or preserving the full
benefits of this Pledge Agreement and of the rights and powers herein granted.
If any amount payable under or in connection with any of the Collateral shall
be or become evidenced by any promissory note, other instrument or chattel
paper, such note, instrument or chattel paper shall be promptly delivered to
the Administrative Agent (or, if prior to the First Priority Obligations
Payment Date, the First Priority Representative), duly endorsed in a manner
satisfactory to the Administrative Agent (following the First Priority
Obligations Payment Date), to be held as Collateral pursuant to this Pledge
Agreement.
(d) Such Pledgor agrees to pay, and to save the Administrative Agent
and the Secured Parties harmless from, any and all liabilities with respect
to, or resulting from any delay in paying, any and all stamp, excise, sales or
other similar taxes which may be payable or determined to be payable with
respect to any of the Collateral or in connection with any of the transactions
contemplated by this Pledge Agreement.
6. Dividends; Voting Rights; Interest Payments. Unless an Event of
Default shall have occurred and be continuing and the Administrative Agent
shall (unless such Event of Default is an Event of Default specified in
subsection 7.01(h) or (i) of the Credit Agreement, in which case no such
notice need be given) have given notice to the Pledgors of the Administrative
Agent's intent to exercise its rights pursuant to paragraph 7 below, the
Pledgors shall be permitted to receive and retain, and to utilize free and
clear of the Lien of this Pledge Agreement, all distributions made in respect
of the Pledged Equity and to exercise all voting and other limited liability
company rights with respect to the Pledged Equity, provided, however, that no
vote shall be cast or other limited liability company right exercised or other
action taken which, in the Administrative Agent's reasonable judgment, would
be inconsistent with or result in any violation of any provision of this
Pledge Agreement, the Credit Agreement or the Intercreditor Agreement.
7. Rights of the Lenders and the Administrative Agent. (a) If an
Event of Default shall occur and be continuing at anytime after the First
Priority Obligations Payment Date and the Administrative Agent shall (unless
such Event of Default is an Event of Default specified in subsection 7.01(h)
or (i) of the Credit Agreement, in which case no such notice need be given)
give notice of its intent to exercise its rights hereunder to the Pledgors,
(i) the Administrative Agent shall have the right to receive any and all cash
distributions paid in respect of the Pledged Equity and make application
thereof to the Obligations in such order as the Administrative Agent may
determine (other than cash distributions made to the Pledgors pursuant to
Section 6.06(b) of the Credit Agreement, which such distributions may be
received and retained by the Pledgors), and (ii) all units of the Pledged
Equity shall be registered in the name of the Administrative Agent or its
nominee, and the Administrative Agent or its nominee may thereafter exercise
(A) all voting and other limited liability company rights pertaining to such
units of the Pledged Equity at any meeting of the members of the Issuer or
otherwise and (B) any and all rights of conversion, exchange, subscription and
any other rights, privileges or options pertaining to such units of the
Pledged Equity as if it were the absolute owner thereof (including, without
limitation, the right to exchange at its discretion any and all of the Pledged
Equity upon the merger, consolidation, reorganization, recapitalization or
other fundamental change in the organizational structure of the Issuer, or
upon the exercise by any Pledgor or the Administrative Agent of any right,
privilege or option pertaining to such units of the Pledged Equity, and in
connection therewith, the right to deposit and deliver any and all of the
Pledged Equity with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and conditions as it may determine),
all without liability except to account for property actually received by it
and except for its gross negligence or willful misconduct, but the
Administrative Agent shall have no duty to any Pledgor to exercise any such
right, privilege or option and shall not be responsible for any failure to do
so or delay in so doing.
(b) The rights of the Administrative Agent and the Secured Parties
hereunder shall not be conditioned or contingent upon the pursuit by the
Administrative Agent or any Secured Party of any right or remedy against the
Issuer or against any other Person which may be or become liable in respect of
all or any part of the Obligations or against any collateral security
therefor, guarantee therefor or right of set-off with respect thereto. Neither
the Administrative Agent nor any Lender shall be liable for any failure to
demand, collect or realize upon all or any part of the Collateral or for any
delay in doing so, except to the extent that such failure constitutes gross
negligence or willful misconduct, nor shall the Administrative Agent be under
any obligation to sell or otherwise dispose of any Collateral upon the request
of any Pledgor or any other Person or to take any other action whatsoever with
regard to the Collateral or any part thereof.
8. Remedies. (a) In accordance with, and to the extent consistent
with, the terms of the Intercreditor Agreement, if an Event of Default shall
occur and be continuing and the Administrative Agent shall (unless such Event
of Default is an Event of Default specified in subsection 7.01(h) or (i) of
the Credit Agreement in which case no such notice need be given) have given
notice of its intent to exercise its rights hereunder to the Pledgor, the
Administrative Agent, on behalf of the Secured Parties, may exercise, in
addition to all other rights and remedies granted in this Pledge Agreement and
in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the Code.
Without limiting the generality of the foregoing, the Administrative Agent,
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law
referred to below and any notice referred to in the preceding sentence) to or
upon the Pledgors, the Issuer, or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, assign, give
option or options to purchase or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing), in
one or more parcels at public or private sale or sales, in the
over-the-counter market, at any exchange or broker's board or office of the
Administrative Agent or any Secured Party or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best,
for cash or on credit or for future delivery without assumption of any credit
risk. The Administrative Agent or any Secured Party shall have the right upon
any such public sale or sales, and, to the extent permitted by law, upon any
such private sale or sales, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption in any Pledgor,
which right or equity is hereby waived or released. The Administrative Agent
shall hold any Proceeds hereunder for the benefit of the Secured Parties as
collateral security for the Obligations (whether matured or unmatured), and/or
the net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, may then or at any time thereafter, in the sole
discretion of the Administrative Agent, be applied by the Administrative Agent
against the Obligations then due and owing in the following order of priority:
FIRST, to the payment of all reasonable costs and expenses
of every kind incurred by the Administrative Agent in connection with
this Pledge Agreement, any other Loan Document or any of the
Obligations, including, without limitation, (i) all costs incidental
to the care or safekeeping of any of the Collateral or in any way
relating to the Collateral or the rights of the Administrative Agent
and the Secured Parties hereunder, (ii) court costs, (iii) the
reasonable fees and disbursements of legal counsel and agents to the
Administrative Agent, (iv) any other reasonable costs or expenses
incurred in connection with the exercise by the Administrative Agent
of any right or remedy under this Pledge Agreement or any other Loan
Document and (v) without duplication, any amounts which are required
by any provision of law, including, without limitation, Section
9-615(a)(3) of the Code, to be paid by the Administrative Agent;
SECOND, to the payment of all other Obligations (the amounts
so applied to be distributed pro rata among the Secured Parties in
accordance with the amounts of the Obligations owed to them on the
date of any such distribution); and
THIRD, ratably to the Pledgors or their successors or
assigns, or as a court of competent jurisdiction may otherwise
direct.
To the extent permitted by applicable law, each Pledgor waives all claims,
damages and demands it may acquire against any Agent or any Secured Party
arising out of the lawful exercise by them of any rights hereunder. If any
notice of a proposed sale or other disposition of Collateral shall be required
by law, such notice shall be deemed reasonable and proper if given at least 10
business days before such sale or other disposition.
(b) Notwithstanding anything to the contrary in this Pledge
Agreement, the Administrative Agent shall not take any action pursuant to this
Pledge Agreement (including any action that would constitute or result in an
assignment of any Communications License (as defined in the Credit Agreement)
or a direst or indirect change of control of the Issuer if such assignment of
such Communications License or direct or indirect change of control would
require under any Requirement of Law in effect at that time, the prior
approval of the FCC or any other relevant Government Authority), unless and
until any applicable Requirement of Law has been satisfied with respect to
such action and there have been obtained such consents, approvals and
authorizations (if any) as may be required under the terms of any license or
operating right held by the Issuer (or any entity under its control).
(c) Without limiting the generality of preceding clause (b), the
Administrative Agent (on behalf of itself and the Secured Parties) hereby
agrees that (a) to the extent required by applicable law, voting and
consensual rights in the ownership interest of the Issuer (the "Pledged
Interest") will remain with the holders of such voting and consensual rights
after and during the continuance of an Event of Default unless and until any
required prior approvals of the FCC or any other relevant Governmental
Authority to the transfer of such voting and consensual rights to the
Administrative Agent shall have been obtained; (b) upon the occurrence and
during the continuance of an Event of Default, if required by applicable law,
any foreclosure of the Pledged Interest pursuant to this Agreement shall be
effected either through a private or public sale of the Pledged Interest; and
(c) prior to the exercise of voting or consensual rights by the purchaser, to
the extent required by applicable law, at any such sale, the prior consent of
the FCC pursuant to 47 U.S.C. ss. 310(d) will be obtained, as well as such
licenses, approvals, authorizations and consents as may be required by the
U.S. Department of State pursuant to the International Traffic in Arms
Regulations; the U.S. Department of Commerce pursuant to the Export
Administration Regulations; the U.S. Department of Defense pursuant to the
National Industrial Security Program issued pursuant to Executive Order 12829;
the Committee on Foreign Investment in the United States pursuant to the Exon
Xxxxxx amendment to the Defense Production Act and implementing regulations;
the U.S. Department of Treasury pursuant to the Foreign Asset Control
Regulations; and the U.S. Department of Justice, the Federal Bureau of
Investigation and the U.S. Department of Homeland Security regarding potential
national security, law enforcement and public safety issues.
(d) It is the intention of the parties hereto that the grant of
security interests hereunder (including, without limitation, the creation
thereof) in favor of the Administrative Agent on the Collateral, to the extent
such Collateral is subject to and governed by the requirements rules and
regulations of the FCC or any other relevant Governmental Authority, shall in
all relevant aspects be subject to and governed by said requirements, rules
and regulations and that nothing in this Agreement shall be construed to
diminish the control exercised by the Pledgors with respect to such Collateral
except in accordance with the provisions of such statutory requirements, rules
and regulations. The Pledgors agree that upon the request from time to time by
the Administrative Agent it will actively pursue obtaining governmental,
regulatory or third party consents, approvals or authorizations referred to in
this Section 5.06, including, upon any request of the Administrative Agent
following the occurrence of an Event of Default, the preparation, signing and
filing with (or causing to be prepared, signed and filed with) (i) the FCC or
any other relevant Governmental Authority of any application or application
for consent to the assignment of the Communications Licenses or transfer of
control required to be signed by the Pledgor holding the Communications
Licenses necessary or appropriate under the FCC's or any other relevant
Governmental Authority's rules and regulations for approval of any sale or
transfer of any of the Pledged Interests or the assets of Pledgor or any
transfer of control in respect of any Communications License and (ii) the U.S.
Department of State pursuant to the International Traffic in Arms Regulations;
the U.S. Department of Commerce pursuant to the Export Administration
Regulations; the U.S. Department of Defense pursuant to the National
Industrial Security Program issued pursuant to Executive Order 12829; the
Committee on Foreign Investment in the United States pursuant to the Exon
Xxxxxx amendment to the Defense Production Act and implementing regulations;
the U.S. Department of Treasury pursuant to the Foreign Asset Control
Regulations; and the U.S. Department of Justice, the Federal Bureau of
Investigation and the U.S. Department of Homeland Security regarding potential
national security, law enforcement and public safety issues; as applicable, of
any application for consent to transfer the Pledged Interests or the assets of
the Pledgor necessary or appropriate under such regulations.
9. Registration Rights; Private Sales. (a) If the Administrative
Agent shall determine to exercise its right to sell any or all of the Pledged
Equity pursuant to paragraph 8 hereof, and if in the opinion of the
Administrative Agent it is necessary or advisable to have the Pledged Equity
or that portion thereof to be sold, registered under the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), the Pledgors will
use its commercially reasonable efforts to take or to cause the Issuer of such
Pledged Equity to take such action and prepare, distribute and/or file such
documents, as required or advisable in the reasonable opinion of counsel for
the Administrative Agent to permit the public sale of such Pledged Equity.
(b) Each Pledgor recognizes that the Administrative Agent may be
unable to effect a public sale of any or all the Pledged Equity by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers that will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. Each
Pledgor acknowledges and agrees that any such private sale may result in
prices and other terms less favorable than if such sale were a public sale
and, notwithstanding such circumstances, agrees that any such private sale
shall be deemed to have been made in a commercially reasonable manner. The
Administrative Agent shall be under no obligation to delay a sale of any of
the Pledged Equity for the period of time necessary to permit the Issuer to
register such securities for public sale under the Securities Act, or under
applicable state securities laws, even if the Issuer would agree to do so.
(c) Each Pledgor further agrees to use its commercially reasonable
efforts to do or cause to be done all such other acts as may be necessary to
make such sale or sales of all or any portion of the Pledged Equity pursuant
to this paragraph 9 valid and binding and in compliance with any and all other
applicable Requirements of Law. Each Pledgor will bear all costs and expenses
of carrying out its obligations under this paragraph 9. Each Pledgor
acknowledges that there is no adequate remedy at law for failure by it to
comply with the provisions of this paragraph 9 only and that such failure
would not be adequately compensable in damages and, therefore, agrees that its
agreements contained in this paragraph 9 may be specifically enforced.
10. Limitation on Duties Regarding Collateral. The Administrative
Agent's sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section 9-207 of the
Code or otherwise, shall be to deal with it in the same manner as the
Administrative Agent deals with similar securities and property for its own
account. Neither the Administrative Agent nor any Secured Party nor their
respective directors, officers, employees or agents shall be liable for
failure to demand, collect or realize upon any of the Collateral or for any
delay in doing so (except to the extent the same constitutes gross negligence
or willful misconduct) or shall be under any obligation to sell or otherwise
dispose of any Collateral upon the request of the Pledgor or otherwise.
11. Powers Coupled with an Interest. All authorizations and agencies
herein contained with respect to the Collateral are irrevocable and powers
coupled with an interest.
12. Severability. Any provision of this Pledge Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
13. Paragraph Headings. The paragraph headings used in this Pledge
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.
14. No Waiver; Cumulative Remedies. Neither the Administrative Agent
nor any Secured Party shall by any act (except by a written instrument
pursuant to paragraph 15 hereof) be deemed to have waived any right or remedy
hereunder. No failure to exercise, nor any delay in exercising, on the part of
the Administrative Agent or any Secured Party any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by the Administrative Agent or any Secured Party of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which the Administrative Agent or such Secured Party would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of
any other rights or remedies provided by law.
15. Waivers and Amendments; Successors and Assigns; Governing Law.
None of the terms or provisions of this Pledge Agreement may be amended,
supplemented or otherwise modified except by a written instrument executed by
each Pledgor and the Administrative Agent, provided that any provision of this
Pledge Agreement may be waived by the Administrative Agent in a letter or
agreement executed by the Administrative Agent or by telex or facsimile
transmission from the Administrative Agent. This Pledge Agreement shall be
binding upon the successors and assigns of each Pledgor and shall inure to the
benefit of the Administrative Agent and the Secured Parties and their
respective successors and assigns. THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
16. Notices. Notices by the Administrative Agent to any Pledgor, or
the Issuer may be given by mail, by telex or by facsimile transmission,
addressed or transmitted to (a) if to HNS, Xxxxxx Network Systems, Inc., c/o
The DIRECTV Group, Inc., 0000 Xxxx Xxxxxxxx Xxxxxxx, Xx Xxxxxxx, XX 00000,
Attention: Xxxxx X. Xxxxxx, Esq., Telecopy: (000) 000-0000, (b) if to
SkyTerra, SkyTerra Communications, Inc., 00 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxx, Telecopy: (000) 000-0000 and
(c) if to the Issuer to such person at its address or transmission number set
forth in subsection 9.01(a) of the Credit Agreement and shall be effective (a)
in the case of mail, five Business Days after deposit in the postal system,
first class postage pre-paid, and (b) in the case of delivery by hand or
overnight courier service or telex or facsimile notices, when received. The
Pledgors and the Issuer may change their respective addresses and transmission
numbers by written notice to the Administrative Agent.
17. Irrevocable Authorization and Instruction to Issuer. Each Pledgor
hereby authorizes and instructs the Issuer to comply with any instruction
received by it from the Administrative Agent in writing that (a) states that
an Event of Default has occurred and is continuing and (b) is otherwise in
accordance with the terms of this Pledge Agreement and the Credit Agreement,
without any other or further instructions from such Pledgor, and such Pledgor
agrees that the Issuer shall be fully protected in so complying.
18. Authority of Administrative Agent. Each Pledgor acknowledges that
the rights and responsibilities of the Administrative Agent under this Pledge
Agreement with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Pledge Agreement shall, as between the
Administrative Agent and the Secured Parties, be governed by the Credit
Agreement and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Administrative Agent and each
Pledgor, the Administrative Agent shall be conclusively presumed to be acting
as agent for the Secured Parties with full and valid authority so to act or
refrain from acting, and neither any Pledgor nor the Issuer shall be under any
obligation, or entitlement, to make any inquiry respecting such authority.
19. Integration; Acknowledgements. At such time as the Loans and the
Obligations shall have been paid in full and Commitments have been terminated,
the Collateral shall be automatically released from the Liens created hereby,
and this Pledge Agreement and all obligations (other than those expressly
slated to survive such termination) of the Administrative Agent and each
Pledgor hereunder shall automatically terminate, all without delivery of any
instrument or performance of any act by any party, and all rights to the
Collateral shall revert to the applicable Pledgor. At the request of any
Pledgor following any such termination, the Administrative Agent, at the sole
expense of such Pledgor, shall deliver to such Pledgor any Collateral held by
the Administrative Agent hereunder, and execute and deliver to such Pledgor
all UCC termination statements and/or such other documents as such Pledgor
shall reasonably request to evidence such termination.
20. No Recourse. Notwithstanding anything to the contrary in this
Pledge Agreement, no recourse shall be had, whether by levy or execution, or
under any law, or by the enforcement of any assessment or penalty or
otherwise, for the payment of any of the Obligations, against any Pledgor or
any of the assets of any Pledgor, other than the Collateral, it being
expressly understood that the sole remedies available to the Administrative
Agent and the Secured parties pursuant to this Pledge Agreement with respect
to the Obligations shall be against the Collateral. Any obligation or
liability whatsoever of any Pledgor pursuant to this Pledge Agreement or in
respect of the Obligations shall be several and not joint with any other
Pledgor.
21. Financing Statements. Each Pledgor hereby irrevocably authorizes
the Administrative Agent at any time and from time to time to file in any
relevant jurisdiction any initial financing statements with respect to the
Collateral or any part thereof and amendments thereto that contain the
information required by Article 9 of the Uniform Commercial Code of each
applicable jurisdiction for the filing of any financing statement or
amendment, including (i) whether such Pledgor is an organization, the type of
organization and any organizational identification number issued to such
Pledgor and (ii) a description of collateral that describes such property in
any other manner as the Administrative Agent may reasonably determine is
necessary or advisable to ensure the perfection of the security interest in
the Collateral.
22. Counterparts. This Pledge Agreement may be executed in any number
of separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. Delivery of an executed
signature page of this Pledge Agreement by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
23. Intercreditor Agreement. Notwithstanding anything to the contrary
contained herein, the terms of this Agreement shall be subject to the terms of
the Intercreditor Agreement and in the event of any inconsistency between any
provision herein and therein, the terms of the Intercreditor Agreement shall
govern. As provided in the Intercreditor Agreement, the security interests
created hereby shall be subject and subordinate to the security interests
created by any First Priority Security Document.
24. First Priority Agreement. The Administrative Agent acknowledges
and agrees, on behalf of itself and any Secured Party, that, any provision of
this Agreement to the contrary notwithstanding, until the First Priority
Obligations Payment Date, the Pledgors shall not be required to act or refrain
from acting pursuant to this Agreement or with respect to any Collateral on
which the First Priority Representative has a Lien superior in priority to the
Administrative Agent's Lien thereon in any manner that would result in a
default under the terms and provisions of the First Priority Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Pledge Agreement
to be duly executed and delivered as of the date first above written.
XXXXXX NETWORK SYSTEMS, INC.
By: /s/ XXXX XXXXXX
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President and General
Counsel
SKYTERRA COMMUNICATIONS, INC.
By: /s/ XXXXXX XXXXX
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Sr. Vice President and General
Counsel
Accepted and Agreed:
BEAR XXXXXXX CORPORATE LENDING INC.
By: /s/ XXXXXX XXXXXXXXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Vice President
ACKNOWLEDGEMENT AND CONSENT
The Issuer referred to in the foregoing Pledge Agreement hereby
acknowledges receipt of a copy thereof and agrees to be bound thereby and to
comply with the terms thereof insofar as such terms are applicable to it. The
Issuer agrees to notify the Administrative Agent promptly in writing of the
occurrence of any of the events described in paragraph 5(a) of the Pledge
Agreement. The Issuer further agrees that the terms of paragraph 9 of the
Pledge Agreement shall apply to it, mutatis mutandis, with respect to all
actions that may be required of it under or pursuant to or arising out of
paragraph 9 of the Pledge Agreement.
XXXXXX NETWORK SYSTEMS, LLC
By: /s/ XXXX XXXXXX
------------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President and General
Counsel
