Exhibit 10.32
PLEDGE AND SECURITY AGREEMENT
This PLEDGE AND SECURITY AGREEMENT (this "Agreement"), dated as of May
16, 1997, is entered into by SATELLITE COMPANY, LLC, a Nevada limited liability
company, and GRUPO TELEVISA, S.A., a corporation (Sociedad Anonima) organized
under the laws of Mexico (together, the "Debtors"), in favor of IBJ XXXXXXXX
BANK & TRUST COMPANY, a New York banking corporation, as Trustee under the
Collateral Trust Agreement described below ("Secured Party").
RECITALS
A. The Debtors and Magellan International, Inc., a Delaware corporation
("Newco"), and Xxxxxx Communications, Inc., a California corporation ("HCI" and,
together with Newco, the "Newco Group") are parties to a Stock Contribution and
Exchange Agreement, dated as of September 20, 1996.
B. Pursuant to the Stock Contribution and Exchange Agreement, (i) the
Debtors and Newco Group have entered into a Collateral Trust Agreement with
Secured Party, as Trustee, dated as of May 16, 1997, under which Secured Party
holds the Trust Estate therein described in trust as set forth therein (as from
time to time amended, the "Collateral Trust Agreement"), and (ii) the Debtors
are executing and delivering this Pledge and Security Agreement to Secured Party
to hold as part of such Trust Estate.
AGREEMENT
In consideration of the foregoing and the mutual promises contained
herein and for other good and valuable consideration the receipt and adequacy of
which are hereby acknowledged, the Debtors, intending to be legally bound,
hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Collateral Trust Agreement Definitions. The following terms
shall have the meanings assigned to them in the Collateral Trust Agreement:
Cash Equivalents
Letter of Credit
Newco Common Stock
Initial Trust Estate
Stock Contribution and Exchange Agreement
Trust Estate
SECTION 1.2 U.C.C. Definitions. Where applicable and except as
otherwise expressly provided herein, terms used herein (whether or not
capitalized) shall have the respective meanings assigned to them in the Uniform
Commercial Code as in effect in the State of New York on the date of the Stock
Contribution and Exchange Agreement (the "Code").
SECTION 1.3 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Agreement" means this Pledge and Security Agreement.
"Collateral" is defined in Section 2.1.
"Event of Default" means any of the following events: (i) a Debtor
fails to pay any Secured Obligation when due, and such failure continues for 10
calendar days after either (A) it is acknowledged in writing by any Debtor or
(B) such Secured Obligation is determined to be due and payable in arbitration
proceedings conducted in accordance with Section 24 of the Collateral Trust
Agreement or by order of a court of competent jurisdiction; (ii) any
representation or warranty made by any Debtor in the Collateral Trust Agreement
or this Agreement proves to have been inaccurate in any material respect when
made, and such inaccuracy continues for 30 calendar days after written notice
thereof is given to the Debtors by Secured Party or by Newco Group; (iii) any
Debtor fails to perform or observe any term, covenant or agreement contained in
the Collateral Trust Agreement or this Agreement, and such failure continues for
30 calendar days after either (A) it is acknowledged in writing by any Debtor or
(B) such failure is determined to have occurred and such term, covenant or
agreement is determined to be enforceable in arbitration proceedings conducted
in accordance with Section 24 of the Collateral Trust Agreement or by order of a
court of competent jurisdiction; (iv) any Debtor admits in writing its inability
to pay its debts generally or makes a general assignment for the benefit of
creditors; (v) any proceeding is instituted by or against any Debtor seeking an
order for relief under the United States Bankruptcy Code or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its
property under any law relating to bankruptcy, insolvency, liquidation or
reorganization or relief of debtors and either (A) any such relief in any such
proceeding is sought or consented to by it or an order for any such relief is
entered against it, or (B) any such proceeding instituted against it remains
undismissed and unstayed for a period of 60 calendar days; (vi) any Debtor takes
any corporate action to authorize any of the actions described in clause v
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above; (vii) any provision of the Collateral Trust Agreement or this Agreement
for any reason ceases to be valid and binding on any Debtor in any respect
materially adverse to Secured Party or the holders of Secured Obligations, and a
valid and binding reasonably equivalent substitute is not offered to Secured
Party, to be held in trust as part of the Trust Estate, within 30 calendar days
after written notice thereof is given to the Debtors by Secured Party or by
Newco Group; (viii) any Debtor repudiates or purports to revoke or terminate, in
any material respect, any of its obligations under the Collateral Trust
Agreement or this Agreement, and such event continues for 10 calendar days after
written notice thereof is given to the Debtors by Secured Party or by Newco
Group; or (ix) the Collateral Trust Agreement and this Agreement for any reason
do not create or cease to create a valid and perfected first priority security
interest in any property described herein as part of the Collateral, and such
event continues for 10 calendar days after written notice thereof is given to
the Debtors by Secured Party or by Newco Group.
"Lien" means any mortgage, deed of trust, lien, pledge, charge,
security interest, hypothecation, assignment, deposit arrangement or encumbrance
of any kind in respect of any asset, whether or not filed, recorded or otherwise
perfected or effective under applicable law, as well as the interest of a vendor
or lessor under any conditional sale agreement, capital or finance lease or
other title retention agreement relating to such asset.
"Proceeds" includes (i) any and all payments, dividends, cash, options,
warrants, rights, instruments and other property of any type or nature at any
time received, receivable or otherwise distributed, voluntarily or
involuntarily, on account of, in respect of or in replacement, substitution or
exchange for any item of Collateral or upon the collection, sale, or other
disposition of any item of Collateral; (ii) any and all insurance or payments
under any indemnity, warranty or guaranty now or hereafter payable in respect of
any item of Collateral or any proceeds thereof or any loss relating thereto;
(iii) any and all claims against any person or entity based on or in any respect
relating to or arising from any item of Collateral; (iv) any and all "proceeds"
of any Collateral, as the term "proceeds" is used in the Code; and (v) any and
all property and interests in property acquired with or in exchange for any of
the foregoing.
"Secured Obligations" means each and all present and future
indemnities, liabilities and obligations of every type and description of any or
all of the Debtors at any time arising under, pursuant to or in respect of (i)
Article VIII of the Stock Contribution and Exchange Agreement, (ii) this
Agreement, or (iii) the Collateral Trust Agreement (in each case whether now
outstanding or hereafter arising or incurred, whether sole, joint, several, or
joint and several and, in the case of each Debtor, whether owed by it or by any
other Debtor) and all costs and expenses incurred by Secured Party in asserting,
collecting, enforcing or protecting its security interest in any Collateral in
any bankruptcy case or insolvency proceeding to which any Debtor may be party
and all collection costs
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and enforcement expenses incurred by Secured Party in retaking, holding,
preparing for sale, selling or otherwise disposing of or realizing on any
Collateral or otherwise exercising or enforcing any of its rights or remedies
hereunder, together with Secured Party's reasonable attorneys' fees and
disbursements and court costs related thereto.
"Secured Party" means the person identified as such in the preamble to
this Agreement, acting as Trustee under the Collateral Trust Agreement, and any
successor Trustee thereunder.
ARTICLE II
SECURITY INTEREST AND COLLATERAL
SECTION 2.1 Creation of Security Interest. As security for the due and
punctual payment and performance of each and all of the Secured Obligations,
each Debtor hereby grants Secured Party a security interest in all right, title
and interest of such Debtor in, to, under or derived from the following property
(collectively, the "Collateral"), in each case whether now owned or hereafter
acquired by such Debtor and wherever located:
(a) NEWCO COMMON STOCK: 5,000,000 shares of Newco Common Stock and
all other stock of Newco at any time delivered or transferred to or held by
Secured Party as part of the Trust Estate;
(b) CASH, CASH EQUIVALENTS AND OTHER ASSETS OF THE TRUST ESTATE:
All cash, Cash Equivalents and other property of every type and description
now or at any time hereafter constituting part of the Trust Estate;
(c) INTEREST IN THE TRUST ESTATE OR UNDER THE TRUST AGREEMENT: All
rights and interests of every type and description, whenever and however
arising, in or to the Trust Estate or in, to or under the Collateral Trust
Agreement; and
(d) PROCEEDS: All Proceeds, except Proceeds that have been
released from the Trust Estate and delivered to Contributor pursuant to the
Collateral Trust Agreement.
SECTION 2.2 Delivery of Instruments. All stock certificates, notes,
bonds, debentures and other instruments constituting Collateral shall be
delivered to and held by Secured Party, without any notice from or demand by
Secured Party, in each case in suitable form for transfer by delivery or
accompanied by duly executed instruments of
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transfer or assignments in blank or with appropriate endorsements, in form and
substance satisfactory to Secured Party.
SECTION 2.3 Further Assurances. Each Debtor will promptly (and in no
event later than five days after request by Secured Party) execute and deliver,
and use its reasonable and diligent best efforts to obtain from others, any and
all instruments, certificated securities and documents (including, without
limitation, assignments, transfer documents and transfer notices, financing
statements and other lien notices), in form and substance satisfactory to
Secured Party, and take all other actions which are necessary or, in the good
faith judgment of Secured Party, desirable or appropriate to create, perfect,
protect, or enforce Secured Party's security interests in the Collateral, to
enable Secured Party to exercise and enforce its rights and remedies hereunder
with respect to any Collateral, to protect the Collateral against the rights,
claims or interests of third persons, or to effect or to assure further the
purposes and provisions of this Agreement, and the Debtors will pay all costs
related thereto and all reasonable expenses incurred by Secured Party in
connection therewith.
SECTION 2.4 Survival of Security Interest. Except as otherwise required
by law, the security interest granted hereby shall, except as to property
released from the Trust Estate and delivered to or for account of the Debtors by
Secured Party pursuant to the Collateral Trust Agreement, (i) remain enforceable
as security for any and all Secured Obligations, whether now outstanding or
created or incurred at any future time, until all of the Secured Obligations
have been indefeasibly paid, retired and discharged, and (ii) survive any sale,
exchange or other disposition by a Debtor of its interest in any Collateral and
remain enforceable against each transferee and subsequent owner of such interest
(to the fullest extent permitted under applicable law), even if such sale,
exchange or other disposition is permitted at the time under the Collateral
Trust Agreement.
SECTION 2.5 Reinstatement. If at any time any payment on any Secured
Obligation is set aside, avoided, or rescinded or must otherwise be restored or
returned, this Agreement and the security interest created hereby shall remain
in full force and effect and, if previously released or terminated, shall be
automatically and fully reinstated, without any necessity for any act, consent
or agreement of any Debtor, as fully as if such payment had never been made and
as fully as if any such release or termination had never become effective.
ARTICLE III
DEBTORS' REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties. The Debtors represent and
warrant that:
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(a) Schedule A completely and accurately describes the cash and Newco
Common Stock delivered to Secured Party as part of the Initial Trust Estate
pursuant to the Collateral Trust Agreement.
(b) Each Debtor's chief executive office is located at the address
shown as the chief executive office on Schedule B hereto. No Debtor has any
place of business within the United States. All tangible Collateral and all
of each Debtor's records relating to any intangible Collateral owned by it
are kept solely at such chief executive office.
(c) No Debtor does business, or at any time during the five years
preceding the date of this Agreement has done business, within the United
States.
(d) Each Debtor at all times is (or, as to any item of Collateral
acquired after the date hereof, will be) the sole legal and beneficial owner
of all Collateral reflected on its books and records as belonging to it and
has exclusive possession and control thereof free and clear of any and all
Liens, subject to the Collateral Trust Agreement and this Agreement and the
interests, possession and control granted to Secured Party thereunder. No
financing statement, notice of lien, mortgage, deed of trust or instrument
similar in effect covering the Collateral, any portion thereof, or any
proceeds thereof, exists or is on file in any public office, except as may
have been filed in favor of Secured Party.
(e) All originals of all stock certificates, notes, bonds, debentures
and other instruments constituting Collateral have been delivered to Secured
Party with all necessary or appropriate endorsements.
(f) Except as set forth in Schedule C and except for the Code, no
Debtor and no Collateral purported to be granted by it is subject to any
requirement of law or contractual obligation which prohibits, restricts, or
limits the execution, delivery or performance of this Agreement or the
creation, perfection or enforcement of the security interest purported to be
created hereby.
(g) Neither Debtor has a United States federal taxpayer identification
number.
(h) Each Debtor is a corporation or limited liability company
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized and is duly qualified to do business
and in good standing in each jurisdiction where its material assets are
located or its material operations are
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conducted, except where the failure to be so qualified could not reasonably
be expected to cause a change that would be material and adverse to such
Debtor.
(i) Each Debtor has the corporate or partnership power to execute,
deliver and perform its obligations under the Collateral Trust Agreement and
this Agreement.
(j) The execution, delivery and performance by each Debtor of the
Collateral Trust Agreement and this Agreement (i) have been duly authorized
by all necessary action of its board of directors or governing authority,
(ii) do not contravene its certificate or articles of incorporation or
by-laws or its members agreement or other governing document, and (iii) do
not and will not result in or require the creation of any Lien (other than
pursuant to the Collateral Trust Agreement and this Agreement) upon any of
its property or assets.
(k) No authorization or approval or other action by, and no notice to
or filing with, any governmental officer, department, agency or authority is
required for the due execution, delivery and performance by each Debtor of
the Collateral Trust Agreement or this Agreement, except the filing of
financing statements to perfect Secured Party's security interest which have
been duly filed.
(l) The Collateral Trust Agreement and this Agreement are legal, valid
and binding obligations of each Debtor, enforceable against each Debtor in
accordance with their respective terms, subject to laws generally affecting
the enforcement of creditors' rights.
(m) The execution, delivery and performance by each Debtor of the
Collateral Trust Agreement and this Agreement (i) do and will comply with
all applicable laws, (ii) do and will comply with, and do not and will not
conflict with, constitute a breach of or give rise to any Lien, default,
event of default or other adverse consequence under, any note, indenture,
undertaking, agreement or other contractual obligation that is binding upon
any Debtor or secured by or enforceable against any property of any Debtor.
(n) Secured Party holds an enforceable and perfected first Lien in the
Collateral. No other Liens are outstanding against the Collateral.
ARTICLE IV
COVENANTS OF THE DEBTORS
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SECTION 4.1 Covenants. Each Debtor covenants and agrees that so long as
the security interest created hereby remains outstanding:
(a) Each Debtor will deliver to Secured Party each instrument and
certificated security included in the Collateral as set forth in Section
2.3.
(b) No Debtor will (i) cause, permit or suffer any voluntary or
involuntary change in its name, identity or corporate structure, or in the
location of its chief executive office, or (ii) keep any tangible Collateral
or any records relating to any Claim owned by it, or permit or suffer any
such Collateral or records to be moved, to any other location unless (in
each case) (x) Schedule B has first been appropriately supplemented with
respect thereto, and (y) an appropriate financing statement has been filed
in the proper office and in the proper form, and all other requisite actions
have been taken, to perfect or continue the perfection (without loss of
priority) of Secured Party's security interest in the Collateral.
(c) Each Debtor will defend the Collateral against all claims and
demands of all persons at any time claiming the same or any interest
therein.
(d) No Debtor will encumber, sell, exchange or otherwise dispose of any
item of Collateral or any interest therein, or permit or suffer any such
item to be encumbered, sold, exchanged or otherwise disposed of, unless (i)
such action is permitted at the time under the Collateral Trust Agreement
and (ii) the Debtors make all payments on account of the Secured Obligations
required to be made therefrom, or in exchange or substitution therefor, and
each Debtor takes all other actions required to be taken in connection
therewith, under the Collateral Trust Agreement.
(e) Secured Party is hereby authorized to file one or more financing
statements or fixture filings, and continuations thereof and amendments
thereto, relative to all or any part of the Collateral, without the
signature of any Debtor where permitted by law. A copy of this Agreement may
be filed as a financing statement wherever permitted by law.
(f) Secured Party may at any time (but shall not be obligated to) (i)
perform any of the obligations of any Debtor under this Agreement if such
Debtor fails to perform such obligation within 30 calendar days after
written demand by Secured Party and (ii) make any payments and do any other
acts Secured Party may deem necessary or desirable to protect its security
interest in the Collateral, including, without limitation, the right to
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pay, purchase, contest or compromise any Lien that attaches or is asserted
against any Collateral and to appear in and defend any action or proceeding
relating to the Collateral, and the Debtors will promptly reimburse Secured
Party for all payments made by Secured Party in doing so, together with
interest thereon at the judgment rate and all costs and expenses related
thereto as set forth in Section 9.10.
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ARTICLE V
VOTING RIGHTS, DIVIDENDS AND DISTRIBUTIONS
SECTION 5.1 Voting Rights. So long as no Event of Default has occurred
and is continuing or would result from any exercise thereof, the Debtors shall
have and may exercise all voting rights with respect to any and all Newco Common
Stock held in the Trust Estate, except that the Debtors may not and will not act
or vote in favor of any action that would be or cause an Event of Default or any
event which, with the giving of notice or lapse of time (or both), would
constitute an Event of Default. Upon the occurrence of an Event of Default,
Secured Party may (but shall not be obligated to) suspend or terminate the
Debtors' right to exercise voting rights with respect to any or all such Newco
Common Stock, by giving written notice of such suspension or termination to the
Debtors, and Secured Party shall thereupon have the sole right and power to
exercise such voting rights.
SECTION 5.2 Dividends, Distributions and Payments. Secured Party shall
be entitled to receive and hold as part of the Trust Estate, subject to the
Collateral Trust Agreement, all dividends and distributions on the Newco Common
Stock, all income from Cash Equivalents and all Proceeds.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 Remedies. Upon and at any time after the occurrence of any
Event of Default, and from time to time on each occasion when an Event of
Default has occurred and is continuing, Secured Party may exercise and enforce
each and all of the rights and remedies available to a secured party upon
default under the Code or other applicable law and each and all of the following
rights and remedies:
(a) Secured Party may notify any or all account debtors and obligors on
any Collateral to make payment directly to Secured Party.
(b) Secured Party may take possession of all items of Collateral that
are not then in its possession and require the person or entity in
possession thereof to deliver such Collateral to Secured Party at one or
more locations designated by Secured Party and reasonably convenient to it
and the Debtors.
(c) Secured Party may cause any or all Newco Common Stock and other
instruments or investment securities constituting part of the Trust Estate
to be transferred into Secured Party's name and exercise and
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enforce any or all of the rights, interests, privileges and remedies of a
holder against the issuer thereof, as freely and fully as if Secured Party
were the absolute owner but as a secured party and as part of the Trust
Estate.
(d) Secured Party may sell or otherwise dispose of any or all of the
Collateral or any part thereof in one or more parcels and from time to time
in any quantity or portion and on any number of occasions, at a public sale
or in a private sale or transaction, on any exchange or market or at Secured
Party's offices or at any other location, for cash, on credit or for future
delivery, and may enter into all contracts necessary or appropriate in
connection therewith, without any notice whatsoever unless required by law,
subject to the following limitations:
(1) Secured Party may sell or otherwise dispose of Newco Common
Stock held in the Trust Estate at any particular time only if the cash
and the immediately realizable net liquidation value of Cash
Equivalents and Letters of Credit then held in the Trust Estate are not
sufficient to pay in full (i) all amounts which Secured Party is then
required or has then been instructed to pay out from the Trust Estate
pursuant to the Collateral Trust Agreement and (ii) all Secured
Obligations which are then payable; and
(2) Secured Party shall not sell or otherwise dispose of shares of
Newco Common Stock at any particular time in excess of a number of
shares (determined on a rounded-up commercially reasonable regular lot
basis) the proceeds of which would be sufficient, when added to the
cash and the immediately realizable net liquidation value of Cash
Equivalents and Letters of Credit then held in the Trust Estate, to pay
in full (i) all amounts which Secured Party is then required or has
then been instructed to pay out from the Trust Estate pursuant to the
Collateral Trust Agreement , (ii) all amounts which Secured Party in
good faith anticipates it will be required or instructed to pay out
from the Trust Estate on account of Known Liabilities and pending Tax
Claims pursuant to the Collateral Trust Agreement within the next 90
calendar days (and for such purpose Secured Party may rely conclusively
on a certificate as to such amounts given to Secured Party by Newco
Group), and (iii) all Secured Obligations which are then payable.
The Debtors agree that at least 10 calendar days' written notice to the
Debtors of the time and place of any public sale or the time after which any
private sale is to be made shall be commercially reasonable. The giving of
notice of any such sale or other disposition shall not obligate Secured
Party to proceed with the sale or
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disposition, and any such sale or disposition may be postponed or adjourned
from time to time, without further notice.
(e) Secured Party may, on a royalty-free basis, use and license use of
any trademark, trade name, trade style, copyright, patent or technical
knowledge or process owned, held or used by any Debtor in respect of any
Collateral as to which any right or remedy of Secured Party is exercised or
enforced.
In addition, but without expanding the duties or limiting the rights, powers and
immunities of Secured Party under this Agreement or the Collateral Trust
Agreement, each holder of any Secured Obligation may exercise and enforce such
rights and remedies for the collection of such Secured Obligation as may be
available to it by law or agreement. Such exercise or enforcement shall not
impose any obligation or liability upon Secured Party.
SECTION 6.2 Remedies Cumulative. Secured Party may exercise and enforce
each right and remedy available to it upon the occurrence of an Event of Default
either before or concurrently with or after, and independently of, any exercise
or enforcement of any other right or remedy of Secured Party or any holder of
any Secured Obligation against any person, entity or property. All such rights
and remedies shall be cumulative, and no one of them shall exclude or preclude
any other.
SECTION 6.3 Surplus; Deficiency. Any surplus proceeds of any sale or
other disposition of Collateral by Secured Party remaining after all the Secured
Obligations are indefeasibly paid in full and discharged shall be paid over to
the Debtors or to whomever may be lawfully entitled to receive such surplus or
as a court of competent jurisdiction may direct, except that if any contingent,
unliquidated or unmatured Secured Obligation then remains outstanding, such
surplus proceeds may be retained by Secured Party and held as Collateral until
such time as all outstanding Secured Obligations have been determined,
liquidated and indefeasibly paid in full and discharged. The Debtors shall be
and remain liable for any deficiency.
SECTION 6.4 Information Related to Collateral. If Secured Party
determines to sell or otherwise dispose of any Collateral, the Debtors shall,
and shall cause any person controlled by any Debtor to, furnish to Secured Party
all information Secured Party may request that pertains or could pertain to the
value or condition of such Collateral or would or might facilitate its sale.
Secured Party may provide such information to any potential purchaser of any or
all of the Collateral, subject to such confidentiality terms as the Debtors may
reasonably request in writing.
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SECTION 6.5 Sale Exempt from Registration. Secured Party shall be
entitled at any such sale, if it deems it advisable to do so, to restrict the
prospective bidders or purchasers to persons who will provide assurances
satisfactory to Secured Party that they may be offered and sold the Collateral
to be sold without registration under the Securities Act of 1933, as amended
(the "Securities Act"), or any other applicable state or federal statute, and
upon the consummation of any such sale, Secured Party shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Secured Party may solicit offers to buy the Collateral, or
any part of it, from a limited number of investors deemed by Secured Party, in
its commercially reasonable judgment, to meet the requirements to purchase
securities under Regulation D promulgated under the Securities Act (or any other
regulation of similar import). If Secured Party solicits such offers from such
investors, then the acceptance by Secured Party of the highest offer obtained
therefrom shall be deemed to be a commercially reasonable method of disposition
of the Collateral.
SECTION 6.6 Registration Rights. If Secured Party determines that
registration of any securities constituting Collateral under the Securities Act
or other applicable law is required or desirable in connection with any
foreclosure sale, each Debtor will use its best efforts to assist and cooperate
in all respects reasonably requested by Secured Party or Newco Group in causing
such registration to become effective and to be kept effective for such time as
may be reasonably necessary in the opinion of Secured Party, except that no
Debtor shall be obligated under this Section 6.6 to exercise any registration
rights that may be available to it with respect to Newco Common Stock.
ARTICLE VII
THE SECURED PARTY
SECTION 7.1 Collateral Trust Agreement Provisions. Secured Party is
executing and delivering this Agreement, and accepting the security interests,
rights, remedies, powers and benefits conferred upon Secured Party hereby, as
Trustee under the Collateral Trust Agreement. The provisions of the Collateral
Trust Agreement and all rights, powers, immunities and indemnities granted to
the Trustee under the Collateral Trust Agreement shall apply in respect of such
execution, delivery and acceptance and in respect of any and all actions taken
or omitted by Secured Party under, in connection with or with respect to this
Agreement.
SECTION 7.2 No Liability. Secured Party makes no statement, promise,
representation or warranty whatsoever, and shall have no liability whatsoever,
to any holder of any Secured Obligations as to the authorization, execution,
delivery, legality, enforceability or sufficiency of this Agreement or as to the
creation, perfection, priority
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or enforceability of any security interest granted hereunder or as to
the existence, ownership, quality, condition, value or sufficiency of any
Collateral or as to any other matter whatsoever.
SECTION 7.3 Holders Bound. Except where the consent of others may be
required pursuant to the express provisions of the Collateral Trust Agreement,
any modification, amendment, waiver, termination or discharge of any security
interest, right, remedy, power or benefit conferred upon Secured Party hereby
that is effectuated in a writing signed by Secured Party shall be binding upon
all holders of Secured Obligations if it is authorized in the Collateral Trust
Agreement or directed in writing by Newco Group.
SECTION 7.4 Duty of Care. Neither Secured Party nor any director,
officer, employee, attorney or agent of Secured Party shall be obligated to care
for the Collateral hereunder or to collect, enforce, vote, or protect the
Collateral or any rights or interests of any Debtor related thereto or to
preserve or enforce any rights which any Debtor or any other Person may have
against any third party, except only that Secured Party shall exercise
reasonable care in physically safekeeping any item of Collateral that was
delivered into Secured Party's possession. Secured Party shall be deemed to have
exercised such reasonable care if the Collateral is accorded treatment
substantially equal to that which Secured Party accords to its own property or
if it selects, with reasonable care, a custodian or agent to hold such
collateral for Secured Party's account.
ARTICLE VIII
EXONERATION WAIVERS
SECTION 8.1 Rights and Interests not Prejudiced, Affected or Impaired.
Neither the security interests granted hereby, nor the trusts and interests
created under the Collateral Trust Agreement nor any power, privilege, right or
remedy of Secured Party relating thereto, nor the beneficial interest of Newco
Group and other holders of Secured Obligations therein and thereunder shall at
any time in any way be prejudiced, affected or impaired by any act or failure to
act on the part of any of the Debtors or by any act or failure to act on the
part of Secured Party or Newco Group or any other holder of Senior Secured
Obligations or by any breach or default by any of them in the performance or
observance of any promise, covenant or obligation enforceable by any Debtor,
regardless of any knowledge thereof that Secured Party or Newco Group and any
such other holder may have or otherwise be charged with.
(a) Without in any way limiting the generality of the foregoing,
Secured Party, Newco Group and each other holder of any Secured Obligations
may at any time and from time to time, without the consent of or notice to
any
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Debtor, without incurring any responsibility or liability to any Debtor and
without in any manner prejudicing, affecting or impairing any such security
interest, trust, interest, power, privilege, right or remedy or the
obligations of the Debtors to Secured Party, Newco Group and the other
holders of Secured Obligations:
(i) Make loans and advances to any one or more of the
Debtors, or issue, guaranty or obtain letters of credit for account of
any one or more of the Debtors or otherwise extend credit to any one or
more of the Debtors, in any amount and without any limitation or
restriction whatsoever, on any terms, whether pursuant to a commitment
or as a discretionary advance and whether or not any default or event
of default or failure of condition is then continuing;
(ii) Change the manner, place or terms of payment or extend
the time of payment of, or renew or alter, compromise, accelerate,
extend, refinance, release or discharge, any Secured Obligation or any
other indebtedness or liability of any of the Debtors or any agreement,
guaranty, lien or obligation of any of the Debtors or any other person
or entity in any manner related thereto, or otherwise amend, supplement
or change in any manner any Secured Obligation or any such indebtedness
or liability or any such agreement, guaranty, lien or obligation;
(iii) In any manner modify, transform, change, refinance,
replace, reclassify, subordinate or recharacterize any such
indebtedness or liability;
(iv) Release or discharge any guaranty or any other lien,
right, remedy or claim against any person or entity;
(v) Take or fail to take any collateral security for any
Secured Obligation or take or fail to take any action which may be
necessary or appropriate to ensure that any lien upon any property
securing any Secured Obligation is duly enforceable or perfected or
entitled to priority as against any other lien or to ensure that any
proceeds of any property subject to any lien are applied to the payment
of any Secured Obligation;
(vi) Release, discharge or permit the lapse of any or all
liens upon any property at any time securing any Secured Obligation;
(vii) Exercise or enforce, in any manner, order or sequence,
or fail to exercise or enforce, any right or remedy against any
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one or more of the Debtors or in respect of the Collateral or the
Trust Estate or any other collateral security or any other person,
entity or property in respect of any Secured Obligation or lien
securing any Secured Obligation or any right under this Agreement or
the Collateral Trust Agreement; or
(viii) Sell, exchange, release, foreclose upon or otherwise
deal with any property that may at any time be subject to any lien
securing any Secured Obligation.
(b) No exercise, delay in exercising or failure to exercise any
right arising under this Agreement or the Collateral Trust Agreement, no act
or omission of Secured Party, Newco Group or any other holder of any Secured
Obligation in respect of any or all of the Debtors or any other person or
entity or the Collateral or the Trust Estate or any other collateral
security for any Secured Obligation or any right arising under this
Agreement or the Collateral Trust Agreement, no change, impairment, or
suspension of any right or remedy of Secured Party, Newco Group or any other
holder of any Secured Obligation, and no other act, failure to act,
circumstance, occurrence or event which, but for this provision, would or
could act as a release or exoneration of the obligations of any Debtor shall
in any way affect, decrease, diminish or impair any of the obligations of
the Debtors under this Agreement or give any Debtor or any other person or
entity any recourse or defense against Secured Party, Newco Group or any
other holder of Secured Obligations in respect of any security interest,
trust, interest, power, privilege, right or remedy arising under this
Agreement or the Collateral Trust Agreement.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1 Notices. All notices, requests, approvals, consents and
other communications required or permitted to be made hereunder shall, except as
otherwise provided, be given in the manner specified and to the addresses set
forth in Section 16 of the Collateral Trust Agreement.
SECTION 9.2 Headings. The various headings in this Agreement are
inserted for convenience only and shall not affect the meaning or interpretation
of this Agreement or any provision hereof.
SECTION 9.3 Changes. This Agreement or any provision hereof may be
changed, waived, or terminated only by a statement in writing signed by the
party against
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which such change, waiver or termination is sought to be enforced. Any
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
SECTION 9.4 Debtors Remain Liable. Each Debtor shall remain liable
under all contracts and agreements included in the Collateral to the extent set
forth therein to perform all of its duties and obligations thereunder to the
same extent as if this Agreement had not been executed. The exercise or
enforcement by Secured Party of any of its rights and remedies under this
Agreement or in respect of the Collateral shall not release any Debtor from any
of its duties or obligations under any such contracts or agreements.Secured
Party shall not be obligated to perform any such duties or obligations and shall
not be liable for any breach thereof.
SECTION 9.5 No Waiver. No failure by Secured Party to exercise, or
delay by Secured Party in exercising, any power, right or remedy under this
Agreement shall operate as a waiver thereof. No waiver by Secured Party shall be
effective unless given in a writing signed by it. No waiver so given shall
operate as a waiver in respect of any other matter or in respect of the same
matter on a future occasion. Acceptance of or acquiescence in a course of
performance in respect of this Agreement shall not waive or affect the
construction or interpretation of the terms of this Agreement even if the
accepting or acquiescing party had knowledge of the nature of the performance
and opportunity for objection.
SECTION 9.6 Entire Agreement. This Agreement and the Collateral Trust
Agreement are intended by the parties as a final expression of their agreement
and a complete and exclusive statement of the terms and conditions related to
the subject matter thereof.
SECTION 9.7 Severability. If any provision of this Agreement is
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions hereof, or of such provision in
any other application, shall not be in any way affected or impaired thereby and
such other provisions and applications shall be enforceable to the fullest
extent lawful.
SECTION 9.8 Power of Attorney. Each Debtor hereby appoints and
constitutes Secured Party or any delegate, nominee or agent acting for Secured
Party as such Debtor's attorney-in-fact with the power and authority (but not
the duty), in the name of such Debtor or in the name of Secured Party or such
delegate, nominee or agent, to (i) execute, deliver and file such financing
statements, agreements, deeds and writings as such Debtor is required to
execute, deliver or file hereunder, (ii) endorse, collect or transfer any item
of Collateral which such Debtor is required to endorse, collect or transfer
hereunder or which Secured Party is permitted to endorse, collect or
17
transfer hereunder, (iii) make any payments or take any action under
Section 2.3 or Section 4.1(f), (iv) take any other action required of such
Debtor or permitted to Secured Party hereunder, and (v) take any action
reasonably necessary or incidental to any of the foregoing. This power of
attorney is coupled with an interest and is irrevocable as to the Debtors.
Secured Party shall have no duty whatsoever to exercise any power herein granted
it.
SECTION 9.9 Counterparts. This Agreement and any amendments, waivers,
consents or supplements may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, but all of
which shall together constitute one and the same agreement.
SECTION 9.10 Costs and Expenses; Indemnification. The Debtors hereby
agree (i) to pay or reimburse Secured Party for all reasonable costs and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements and court costs) incurred in connection with or as a result of the
exercise or enforcement by Secured Party of any right or remedy available to it
or the protection or enforcement of Secured Party's interest in the Collateral
in any bankruptcy case or insolvency proceeding and (ii) to indemnify Secured
Party for, and defend and hold it harmless against, any loss, liability or
expense incurred by it in connection with its entering into this Agreement or
carrying out any of its duties or exercising any of its rights hereunder, on the
terms and subject to the limitations set forth in Section 14 of the Collateral
Trust Agreement.
SECTION 9.11 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL; LIMITATION OF LIABILITY; WAIVER OF BOND.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED
UNDER THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE
PERFECTION OF THE SECURITY INTERESTS HEREUNDER IN RESPECT OF ANY PARTICULAR
COLLATERAL IS GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
NEW YORK.
(b) SUBMISSION TO JURISDICTION. ANY LEGAL ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO CONSENTS, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION OF THOSE COURTS.
EACH PARTY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY
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OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY
DOCUMENT RELATED HERETO. SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS
MAY BE MADE BY ANY MEANS PERMITTED BY NEW YORK LAW.
(c) WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES ALL RIGHTS TO A
TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE COLLATERAL TRUST AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR
OTHERWISE, AND AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED
BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH PARTY
FURTHER AGREES THAT ITS RIGHT TO A TRIAL BY JURY IS HEREBY WAIVED AS TO ANY
ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART,
TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE
COLLATERAL TRUST AGREEMENT OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE COLLATERAL TRUST AGREEMENT.
(d) LIMITATION OF LIABILITY. NO CLAIM MAY BE MADE BY THE DEBTORS
AGAINST SECURED PARTY OR THE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES,
ATTORNEYS OR AGENTS OF SECURED PARTY FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM (WHETHER BASED
UPON BREACH OF CONTRACT, TORT, BREACH OF STATUTORY DUTY OR ANY OTHER THEORY
OF LIABILITY) ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION
THEREWITH, AND THE DEBTORS HEREBY WAIVE, RELEASE AND AGREE NOT TO XXX UPON
ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT NOW ACCRUED AND WHETHER OR
NOT KNOWN OR SUSPECTED TO EXIST IN THEIR FAVOR.
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(e) WAIVER OF BOND. THE DEBTORS WAIVE THE POSTING OF ANY BOND OTHERWISE
REQUIRED OF SECURED PARTY IN CONNECTION WITH THE ENFORCEMENT OF ANY OF ITS
REMEDIES HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY ORDER OR WRIT FOR
REPLEVIN OR DELIVERY OF POSSESSION OF ANY COLLATERAL.
SECTION 9.12 Successors and Assigns. This Agreement is binding upon and
enforceable against the Debtors and their respective successors and assigns. It
shall inure to the benefit of and may be enforced by Secured Party and its
successors and assigns, for the benefit of Newco Group and each and every other
person or entity which at any time holds or is entitled to enforce any of the
Secured Obligations and each of their respective heirs, representatives,
successors and assigns. Secured Party reserves the right to resign as Trustee
under the Collateral Trust Agreement, in the manner and with the effect set
forth in Section 13(f) and 13(g) thereof.
SECTION 9.13 Joint and Several Obligation. This Agreement and the
security interest granted by each Debtor hereunder and all obligations of each
Debtor hereunder shall be the joint and several obligation of each Debtor and
may be freely enforced against each Debtor for the full amount of the Secured
Obligations, without regard to whether enforcement is sought or available
against any other Debtor.
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IN WITNESS WHEREOF, the parties have caused this Pledge and Security
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first above written.
SATELLITE COMPANY, LLC,
a Nevada limited liability company
By:/s/Xxxxx Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxx Xxxxxxx
Title:
GRUPO TELEVISA, S.A.,
a corporation (Sociedad Anonima)
organized under the laws of Mexico
By:/s/Xxxx Xxxxx Xxxxxxxx
------------------------------
Name: Xxxx Xxxxx Xxxxxxxx
Title:
S-1
IBJ XXXXXXXX BANK & TRUST COMPANY
a corporation, as Trustee
By:/s/Signature Illegible
------------------------------
Title: Assistant Vice President
S-2
Index of Schedules
A Description of the Collateral
B Location of Chief Executive Office; Other Locations
C Restrictions Section 3.1(f)
S-2
