EXHIBIT 10.6
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (this "Agreement") is made on and as of
this ___ day of April, 1999, by and between PRIMESTAR, Inc., a Delaware
corporation, as pledgor ("Pledgor"), and The Bank of New York, as collateral
agent (the "Collateral Agent").
RECITALS
A. Reference is made to the several Share Appreciation Right Agreements
("SAR Agreements"), each dated as of the date hereof, between Pledgor and the
initial holders named therein. This Agreement is the Pledge and Security
Agreement referred to in each of the SAR Agreements. Capitalized terms used in
this Agreement and not defined herein have the meanings ascribed to such terms
in the SAR Agreements.
B. The SAR Agreements provide for the issuance by Pledgor of share
appreciation rights ("SARs"), on the terms set forth therein, with respect to an
aggregate of 4,871,448 shares (the "GMH Shares") of the Class H Common Stock of
General Motors Corporation ("GMH Stock") being acquired concurrently herewith by
the Pledgor, in connection with sale by the Pledgor of its medium power assets.
C. The Pledgor is the holder of those certain share appreciation rights
("TSAT SARs") with respect to 1,407,307 shares of GMH Stock granted to Pledgor
by TCI Satellite Entertainment, Inc. ("TSAT") pursuant to a share appreciation
rights agreement (the "TSAT SAR Agreement") between TSAT and Pledgor dated as of
the date hereof, and the rights of Pledgor thereunder are secured by the Pledge
and Security Agreement (the "TSAT Pledge Agreement") dated the date hereof,
entered into between TSAT and The Bank of New York, as collateral agent (the
"TSAT Collateral Agent") .
D. Pledgor desires to grant to the Collateral Agent, for the ratable
benefit of the initial holders of the SARs and their successors and permitted
assigns (collectively, the "Secured Parties") a pledge of and security interest
in all of Pledgor's right, title and interest in, to and under the Collateral
(as defined herein) from time to time pledged hereunder, to secure (i) the full
and timely payment by Pledgor to each registered holder of SARs, on the terms
and subject to the conditions set forth in the SAR Agreements, of the
obligations of Pledgor thereunder and (ii) the payment of the reasonable costs
and expenses (including, without limitation, attorneys' fees and expenses)
incurred by the Collateral Agent or any Secured Party in connection with
enforcing their rights under this Agreement after an Event of Default (as
defined herein) has occurred (collectively, the "Secured Obligations") on the
Settlement Date (as defined in the SAR Agreements).
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be bound hereby, the parties hereto hereby agree
as follows:
1. Grant of Security Interest. The Pledgor hereby assigns, pledges,
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transfers and grants to the Collateral Agent, on behalf of and for the ratable
benefit of the Secured Parties, a security interest in all of Pledgor's right,
title and interest in, to and under the property described in Section 2 below
(collectively, the "Collateral"), to secure the full and timely payment by
Pledgor of the Secured Obligations.
2. Collateral. The Collateral shall consist of all right, title and
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interest of the Pledgor in, to and under each of the following, in each case
whether now owned or existing or hereafter acquired or arising:
(a) 3,464,141 shares of GMH Stock represented by certificate number
CHF086305;
(b) TSAT SARs with respect to 1,407,307 shares of GMH Stock
represented by the TSAT SAR Agreement;
(c) The TSAT Pledge Agreement;
(d) 1,407,307 shares of GMH Stock represented by certificate number
CHF086306 owned beneficially and of record by TSAT and pledged to
the TSAT Collateral Agent for the benefit of Pledgor pursuant to
the TSAT Pledge Agreement;
(e) The Cash Collateral Account, any and all funds at any time held
in such account, and any and all rights of the Pledgor to
payments made in respect of such account; and
(f) All proceeds of any of the foregoing.
3. Appointment of Custodian. The Pledgor hereby appoints the Collateral
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Agent to act as agent, bailee and custodian for the benefit of the Pledgor and
the Secured Parties as their respective interests shall appear with respect to
the Collateral. The Collateral Agent hereby accepts such appointment and agrees
to maintain and hold all Collateral at any time delivered to it as agent, bailee
and custodian for the benefit of the Pledgor and the Secured Parties in
accordance with the terms of this Agreement. The Collateral Agent agrees to act
in accordance with this Agreement and in accordance with any written
instructions properly delivered hereunder. The Collateral Agent shall deliver
possession of the Collateral to the Pledgor or any other person named by
Pledgor, or otherwise release any Collateral from the lien created hereby, only
in accordance with the express terms of this Agreement or otherwise upon the
written instruction of the Pledgor and/or the Secured Parties, as applicable.
4. Certain Actions to Maintain Perfection of Security Interest. The
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Pledgor agrees (i) that the lien created or purported to be created hereunder
shall at all times be valid and enforceable against the Pledgor and all third
parties, in accordance with the terms hereof, as security for the Secured
Obligations, (ii) that the lien created by this Agreement with respect to the
Collateral described in Sections 2(a), 2(b), 2(c), 2(e), and, subject always to
the proviso of this clause (ii), Section 2(f) (to the extent the Cash Collateral
Account and the funds therein represent proceeds from the Collateral described
in Sections 2(a), 2(b), 2(c) or 2(e)), shall be a first priority perfected lien,
provided that, with respect to Collateral described in Section 2(d) and, only to
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the extent that Collateral described in Section 2(f) relates to Collateral
described in Section 2(d), Section 2(f), the lien created by this Agreement
shall be a perfected lien subordinate only to the lien in favor of the TSAT
Collateral Agent for the benefit of the Pledgor created under the TSAT Pledge
Agreement, and (iii) that the Collateral shall not at any time be subject to any
other lien. The Pledgor shall take all action that may be necessary or desirable
so as at all times (a) to maintain the validity, perfection, enforceability and
priority of the liens created or purported to be created hereunder in conformity
with the requirements of the immediately preceding sentence, (b) to protect and
preserve the Collateral and (c) to protect and preserve, and to enable the
exercise and enforcement of, the rights of the Secured Parties therein and
hereunder.
5. Delivery of Collateral. Pledgor agrees that the GMH Shares, the TSAT
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SARs and any other certificated securities that may from time constitute
Collateral hereunder shall be evidenced by certificates, and (ii) that all such
certificates shall be accompanied by stock powers, executed in blank, or by
other proper instruments of assignment duly executed by Pledgor, and by any such
other instruments or documents as the Collateral Agent may reasonably request.
6. Custody of Collateral. Upon the Collateral Agent's receipt of the
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Collateral, the Collateral Agent shall retain exclusive possession and custody
thereof, subject to the terms of this Agreement, for purposes of perfecting the
security interest therein of the Secured Parties. The Collateral Agent shall
make appropriate notations in its books and records to reflect that the
Collateral contained therein has been pledged to the Secured Parties and is held
by the Collateral Agent for the benefit of the Pledgor and the Secured Parties
as their respective interests appear hereunder. Except as otherwise expressly
provided in this Agreement, all instruments representing Collateral shall be (i)
held by the Collateral Agent in fire-proof vaults, safe deposit boxes or file
cabinets under its exclusive custody and control and (ii) segregated from all
such documents held by The Bank of New York for its own account or for the
account of other persons. The Collateral Agent shall not have any duty to
collect dividends, or other amounts due or to become due on any Collateral or,
except as expressly set forth herein, to take any action to preserve any rights
of the Pledgor or the Secured Parties as against any person obligated with
respect to any Collateral.
7. Release of Collateral. During the term of this Agreement, the
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Collateral shall be released only as follows:
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(a) From the Determination Date through the Termination Date, so long
as no Event of Default shall have occurred and be continuing, the
Collateral Agent shall (i) release to the Pledgor for sale or otherwise, or
(ii) sell in accordance with the instructions of the Pledgor, in either
case promptly upon Pledgor's written request, all or any portion of the
Collateral that constitutes Covered Shares; provided that, in the case of
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any release pursuant to clause (i) of this subsection, Pledgor shall
simultaneously deposit or cause to be deposited into the Cash Collateral
Account (as defined below), and in the case of any sale by the Collateral
Agent pursuant to clause (ii) of this subsection, the Collateral Agent
shall deposit into the Cash Collateral Account out of the proceeds of such
sale, in cash, an amount equal to the product of (A) the Per Share
Settlement Amount times (B) the number of Covered Shares so sold or
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released.
(b) On the Settlement Date, the Collateral Agent shall pay, by wire
transfer of immediately available funds, the Aggregate Settlement Amount
owing to each registered Holder of a SAR under the applicable SAR Agreement
pursuant to instructions, which shall include the Aggregate Settlement
Amount and wire transfer instructions for such Holder, certified in writing
to the Collateral Agent two business days prior to the Settlement Date by
the Company, or, during an Event of Default, the registered Holder of a
SAR. Payments of the Aggregate Settlement Amount pursuant to this Section
7(b) shall be made first, from amounts on deposit in the Cash Collateral
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Account at the end of the business day preceding the Settlement Date,
including cash, if any, that Pledgor has deposited in the Cash Collateral
Account to enable the payment of Aggregate Settlement Amounts hereunder,
and second, from the proceeds of the sale by the Collateral Agent, at the
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instruction of the Pledgor or, during an Event of Default, the Required
Secured Parties, of such amount of Pledged Securities as shall be required
to enable the Collateral Agent to pay the Aggregate Settlement Amount for
each registered Holder with respect to whom the Collateral Agent has
received the certification described in the first sentence of this Section
7(b). Any amounts realized from a sale of Pledged Securities in excess of
the amount required to pay the Aggregate Settlement Amounts owing on the
Settlement Date and any other Secured Obligations hereunder shall be
deposited in the Cash Collateral Account and distributed in accordance with
Section 7(c).
(c) On the first business day following the date all obligations
of the Pledgor under the SARs shall have been satisfied or discharged in full
(the "Termination Date"), the lien and security interest created by this
Agreement on and in the Collateral shall automatically be released, and the
entire Collateral, including without limitation all amounts in the Cash
Collateral Account, shall be returned to the Pledgor on or promptly following
such date, and the Collateral Agent shall execute and deliver such agreements,
termination statements or other documents or filings as the Pledgor shall
reasonably request to evidence or effect the release of such lien and security
interest.
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8. Cash Collateral Account. All cash proceeds of any Collateral
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hereunder, including, without limitation, all cash distributions and dividends
with respect to such Collateral, and all amounts paid by or on behalf of the
Pledgor pursuant to Section 7(a)(i) shall be paid directly to a "no access"
account of the Pledgor maintained with the Collateral Agent (the "Cash
Collateral Account"). Until the Termination Date, the Cash Collateral Account
shall be under the exclusive dominion and control of the Collateral Agent for
the ratable benefit of each of the Secured Parties, and any transfer or
withdrawal of funds therefrom shall be governed by this Agreement. On the
Termination Date, all amounts on deposit in the Cash Collateral Account shall be
paid to the Pledgor in accordance with Section 7(c) hereof. The Pledgor shall
not have the right to amend the TSAT SARs or TSAT Pledge Agreement without the
consent of the Required Secured Parties.
9. Rights of Pledgor With Respect to The Collateral. Notwithstanding
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Pledgor's pledge of the Collateral under this Agreement, Pledgor shall have
during the term of this Agreement, except as expressly set forth to the contrary
in this Agreement, all rights associated with the ownership of the Collateral,
including, without limitation, in the case of the GMH Shares and any other
securities from time to time constituting Collateral (collectively, "Pledged
Securities"), (a) all voting and consensual rights relating to Pledged
Securities and (b) the right to make any election to which a holder of Pledged
Securities may become entitled with respect to any dividend or distribution on,
or conversion, exchange, reclassification or other change to, such Pledged
Securities, including without limitation any election with respect to the
consideration to be received in any merger affecting the issuer of such Pledged
Securities, together with all other rights now or hereafter associated with
ownership of any Pledged Securities.
10. Sale of Collateral. Upon any sale or other disposition of the
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Collateral pursuant to this Agreement, upon Event of Default or otherwise, the
Collateral Agent shall have the right to deliver, assign and transfer to the
purchaser thereof (including the Pledgor) the Collateral or portion thereof so
sold or disposed of and all proceeds thereof shall be promptly transmitted to
the Collateral Agent for application by the Collateral Agent in accordance with
Section 7 of this Agreement. Each purchaser (including Pledgor) at any such
sale or other disposition shall hold the Collateral free from any claim or right
of whatever kind. The Pledgor hereby specifically waives (to the extent
permitted by law) all rights of stay or appraisal which it has or may have under
any rule of law or statute now existing or hereafter adopted. Nothing herein
contained shall be construed as an assumption by the Collateral Agent, any other
Secured Party or any of their respective appointees of any liability of the
Pledgor with respect to any of the Collateral, and the Pledgor shall be and
remain responsible for all such liabilities. Pledgor hereby acknowledges that
any sale by the Collateral Agent of any Pledged Securities must be made in
compliance with the Securities Act of 1933 (the "Securities Act"), all other
Federal securities laws, as well as any applicable Blue Sky or other state
securities laws which may impose limitations as to the manner in which a Secured
Party or any other person may sell, transfer or otherwise dispose of securities.
Pledgor acknowledges that any sale or disposition contemplated pursuant hereto
may be at prices and on terms less favorable to any Secured Party than those
obtainable through a public sale without any applicable restrictions, and,
notwithstanding such
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circumstances, Pledgor agrees that any such sale or other disposition shall be
deemed to have been made in a commercially reasonable manner.
11. Standard of Care of Collateral Agent; Duties; Indemnification. The
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Collateral Agent is a bailee for hire and shall hold the Collateral in
accordance with customary standards for those engaged as custodians of
commercial documents in similar capacities. Notwithstanding anything to the
contrary contained herein:
(a) The provisions of this Agreement set forth the exclusive duties of
the Collateral Agent and no implied duties or obligations shall be read
into this Agreement against the Collateral Agent. The Collateral Agent
shall not be bound in any way by any agreement or contract other than this
Agreement and any other agreement to which it is a party. The Collateral
Agent shall not be required to ascertain or inquire as to the performance
or observance of any of the conditions or agreements to be performed or
observed by any other party, except as specifically provided in this
Agreement. The Collateral Agent disclaims any responsibility for the
validity or accuracy of the recitals to this Agreement and any
representations and warranties contained herein, unless specifically
identified as recitals, representations or warranties of the Collateral
Agent.
(b) Throughout the term of this Agreement, the Collateral Agent shall
have no responsibility for ascertaining the value of any Collateral, the
title of any party therein, the validity or adequacy of the security
afforded thereby, or the validity of this Agreement (except as to
Collateral Agent's authority to enter into this Agreement and to perform
its obligations hereunder).
(c) The Collateral Agent shall not be under any duty to examine or
pass upon the genuineness, validity or legal sufficiency of any of the
documents constituting part of the Collateral, and shall be entitled to
assume that all documents constituting part of such Collateral are genuine
and valid and that they are what they purport to be, and that any
endorsements or assignments thereof are genuine and valid. The Collateral
Agent may rely upon and shall be protected in acting in good faith upon any
notice, resolution, request, consent, order, certificate, report, statement
or other paper or document appearing on its face to be genuine and to have
been signed or presented by the proper party or parties or by a person or
persons authorized to act on behalf of the proper party or parties. The
Collateral Agent shall not be liable for any action or omission to act as
bailee except for its own gross negligence or willful misconduct.
(d) No provision of this Agreement shall require the Collateral Agent
to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of any
of its rights or powers, if, in its sole judgment, it shall believe that
repayment of such funds or adequate indemnity against such risk or
liability is not assured to it.
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(e) The Collateral Agent is not responsible for preparing or filing
any reports or returns relating to Federal, state or local income taxes
with respect to this Agreement, other than for the Collateral Agent's
compensation or for reimbursement of expenses.
(f) The Pledgor agrees to reimburse and hold harmless the Collateral
Agent, its directors, officers, employees and agents from and against any
and all liability, damage, claim (whether asserted by the Pledgor, the
Secured Parties or any other person) and loss and reasonable out-of-pocket
expenses (including reasonable counsel fees and expenses) arising from or
connected with the Collateral Agent's execution and performance of this
Agreement, including the claims of any third parties (including any
assignee) relating to the Collateral Agent's execution and performance of
this Agreement, except in any such case for any liability, damage, claim,
loss or expense resulting from gross negligence or willful misconduct on
the part of the Collateral Agent.
(g) The Collateral Agent shall have the power to employ such agents as
it may deem necessary or appropriate in the performance of its duties and
the exercise of its powers under this Agreement and shall not be liable for
the acts or omissions of any agent appointed with due care by it hereunder.
(h) Notwithstanding anything to the contrary herein, this Section 11
shall survive the termination of this Agreement.
12. Fees and Expenses of Collateral Agent. The Collateral Agent shall
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notify the Pledgor of all fees, expenses and charges of the Collateral Agent
arising out of the Collateral Agent's execution and performance of its duties
and obligations under this Agreement, and such reasonable fees, expenses and
charges shall be paid promptly by the Pledgor. The Collateral Agent may employ,
at the Pledgor's reasonable expense, such legal counsel and other experts as it
deems necessary in connection with performing its duties and obligations under
this Agreement. Notwithstanding anything to the contrary contained herein, this
provision shall survive the termination of this Agreement.
13. Removal or Resignation of Collateral Agent. Pledgor, with the consent
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of Secured Parties who are registered Holders on the SAR Register, other than
the Pledgor, the Issuer, or any affiliate, holding in the aggregate a majority
of the total number of SARs outstanding at any time (the "Required Secured
Parties"), may at any time remove and discharge the Collateral Agent from the
performance of its duties under this Agreement. Any such removal shall be
effective immediately if such termination is for cause or upon not less than 30
days' prior written notice to the Collateral Agent if such termination is
without cause. In addition, the Collateral Agent may, at any time, effective
upon 30 days' prior written notice to the Pledgor and the Secured Parties of the
appointment of a successor Collateral Agent, terminate its agreement to act as
the Collateral Agent under both this Agreement and the TSAT Pledge Agreement.
Upon the date of any such termination, the Collateral Agent shall promptly
deliver the Collateral then held by it or its agents to the successor Collateral
Agent and shall execute and shall promptly deliver, upon payment of all amounts
owed it hereunder, such notices, instructions and
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assignments as may be reasonably necessary or desirable to transfer the rights
of the Collateral Agent with respect to the Collateral to the successor
Collateral Agent. The appointment of the Collateral Agent by the Pledgor
pursuant to Section 3 above shall constitute the appointment of any successor
Collateral Agent designated pursuant to this Section 13.
14. Availability of Documents. Each of the Pledgor, each Secured Party and
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their respective agents, accountants, attorneys and auditors will be permitted
during normal business hours at any time and from time to time upon reasonable
notice to the Collateral Agent to examine (to the extent permitted by applicable
law) the files, documents, records and other papers in the possession or under
the control of the Collateral Agent relating to any or all of the Collateral and
to make copies thereof. All costs and expenses associated with the exercise
from time to time by the Pledgor or any Secured Party of its rights under this
Section 14 shall be for the account of the Pledgor or such Secured Party.
15. Representations and Warranties of Pledgor. The Pledgor hereby
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represents and warrants that: (a) except with respect to the Collateral
described in Section 2(d) and, to the extent that Collateral described in
Section 2(f) relates to Collateral described in Section 2(d), Collateral
described in Section 2(f), the Pledgor is the sole owner of the Collateral (or,
in the case of after acquired Collateral, and subject to the exception set forth
in this Section 15(a), at the time the Pledgor acquires rights in the
Collateral, will be the sole owner thereof); (b) except for the lien under the
TSAT Agreement and the lien granted hereunder to the Secured Parties, no Person
has (or, in the case of after-acquired Collateral, at the time the Pledgor
acquires rights therein, will have) any right, title, claim or interest (by way
of security interest or other lien or charge or otherwise) in, against or to all
or any of the Collateral; (c) no consent of any other Person is required for the
grant of the security interest provided herein by the Pledgor in any of the
Collateral (except for any consent of Xxxxxx Electronics Corporation or General
Motors Corporation, which has been received), nor will any consent need to be
obtained for the Secured Parties to exercise their rights with respect to any of
the Collateral, and (d) no filings, except for such filings as have been made,
are being made concurrently with the execution of this Agreement, or will be
made by the Pledgor within the time period required by applicable law, are
required to perfect the lien granted by this Agreement.
16. Covenants of Pledgor. The Pledgor hereby agrees: (a) to procure,
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execute and deliver from time to time any and all endorsements, assignments,
financing statements, notices and other writings necessary or appropriate to
perfect, maintain and protect the Collateral Agent's security interest hereunder
and the priority thereof and to deliver promptly to the Collateral Agent all
originals of Collateral or proceeds consisting of chattel paper or instruments;
(b) not to surrender or lose possession of (other than to the Collateral Agent
or as otherwise permitted by this Agreement), sell, encumber, or otherwise
dispose of or transfer, any Collateral or right or interest therein other than
as otherwise permitted under this Agreement; (c) to account fully for and
promptly to deliver to the Collateral Agent, in the form received, all proceeds
received, endorsed to the Collateral Agent as appropriate and accompanied by
such assignments and powers, duly executed, as the Collateral Agent shall
request, and until so delivered all
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Collateral and proceeds shall be held in trust for the Collateral Agent,
separate from all other property of the Pledgor and identified as being subject
to the interest of the Collateral Agent; (d) not to move its chief executive
office to a new location unless (i) the Required Secured Parties shall have
approved such move in writing or (ii) (A) the Pledgor shall have given the
Secured Parties not less than 20 days prior notice thereof, (B) the new location
shall be within one of the 50 States of the United States or the District of
Columbia and (C) the Collateral Agent shall have received such evidence
reasonably satisfactory to it as it may reasonably request (including
acknowledgment copies of financing statements and opinions of counsel) that
Pledgor's rights with respect to the Collateral will not be adversely affected
by such move; (e) to do, to the extent permitted by this Agreement, all acts to
maintain, preserve and protect the Collateral that an owner of assets of the
same type as the Collateral would deem customarily necessary or desirable
therefor; and (f) to appear in and defend, at the Pledgor's cost and expense,
any action or proceeding which may affect its title to or the Secured Parties'
interest in the Collateral.
17. Authorized Action by Collateral Agent. The Pledgor hereby irrevocably
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appoints the Collateral Agent as its attorney-in-fact, coupled with an interest,
to do (but the Collateral Agent shall not be obligated to and shall incur no
liability to the Pledgor or any third party for not so doing), at the request
and direction of the Required Secured Parties upon the occurrence of an Event of
Default and while such Event of Default is continuing, any act which the Pledgor
is obligated by this Agreement to do, and to exercise such rights and powers as
the Pledgor might exercise with respect to the Collateral, including the right
to (a) collect by legal proceedings or otherwise and endorse, receive and
receipt for all interest, payments, proceeds and other sums and property now or
hereafter payable on or on account of the Collateral; (b) preserve the
Collateral; (c) transfer the Collateral to the Collateral Agent's own or its
nominee's name; or (d) sell or otherwise dispose of the Collateral (provided
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that nothing in this Section 17 shall limit the power of the Collateral Agent to
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sell Pledged Securities as provided in this Agreement). Notwithstanding
anything contained herein, in no event shall the Collateral Agent or any Secured
Party be required to make any presentment, demand or protest or give any notice,
and neither the Collateral Agent nor any Secured Party need take any action to
preserve any rights against any prior party or any other person in connection
with the Secured Obligations or with respect to the Collateral. The Collateral
Agent is, and shall at all times continue to be, authorized to file financing
statements (and amendments to, and continuation statements in respect of,
financing statements) with respect to the Collateral without the signature of
the Pledgor in such filing offices as shall be necessary or appropriate for the
purpose of perfecting maintaining the perfection of the security interest
provided for herein. The Collateral Agent shall give the Pledgor a copy of each
filing so made prior thereto or promptly thereafter.
18. Default and Remedies.
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(a) As used herein, the term "Event of Default" means the occurrence
of any of the following events:
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(i) the Pledgor's failure to pay or cause to be paid, when due,
to each registered holder of SARs, the full Aggregate Settlement
Amount and any other outstanding Secured Obligations payable to such
registered holder in respect of its SARs, as provided in the SAR
Agreements;
(ii) any representation of the Pledgor in this Agreement shall
have been untrue in any material respect when made;
(iii) the Pledgor shall breach in any material respect any
covenant of the Pledgor in this Agreement;
(iv) the Pledgor shall make an assignment for the benefit of
creditors or admit in writing its inability to pay its debts as they
mature or come due, or shall petition or apply for the appointment of
a trustee or other custodian, liquidator or receiver, or shall
commence any case or other proceeding under any bankruptcy,
reorganization, arrangement, insolvency , readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or
hereafter in effect, or if any such case or other proceeding shall be
commenced against the Pledgor, the Pledgor shall indicate its approval
thereof, consent thereto or acquiescence therein or such petition or
application shall not have been dismissed within 90 days after the
filing thereof;
(v) a decree or order shall be entered appointing any such
trustee, custodian, liquidator or receiver or adjudicating the Pledgor
bankrupt or insolvent, or approving a petition in any such case or
other proceeding, or a decree or order for relief is entered in
respect of the Pledgor in a case under Federal bankruptcy laws as now
or hereafter constituted; or
(vi) any event of default under the TSAT SARs or the TSAT
Pledge Agreement.
(b) On or after the Determination Date, upon the occurrence and during
the continuation of any Event of Default (whether such Event of Default
first occurred before or on or after the Determination Date), the
Collateral Agent, upon request of the Required Secured Parties, shall: (i)
foreclose or otherwise enforce the Secured Parties' lien in the Collateral
in any manner permitted by law or provided for hereunder; or sell or
otherwise dispose of the Collateral or any part thereof at one or more
public or private sale, for credit or future delivery (without the
assumption of any credit risk), on such terms and in such manner as the
Collateral Agent may determine to be commercially reasonable (taking into
account the circumstances under which the Collateral is being sold); and
(ii) pay and distribute to the registered holders of the SARs, ratably in
proportion to the number of SARs held, out of the Cash Collateral Account
(and against delivery of SAR Agreements representing such SARs, or such
other evidence as the Collateral Agent shall
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reasonably request), any and all amounts then due and payable to such
registered holders in respect of such SARs, which amounts shall be
satisfied and discharged to the extent of any such payments actually
received.
19. Cumulative Rights. The rights, powers and remedies of the Collateral
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Agent and the Secured Parties under this Agreement shall be in addition to all
rights, powers and remedies given to the Collateral Agent and the Secured
Parties by virtue of any statute or rule of law, the SAR Agreements or any other
agreement, all of which rights, powers and remedies shall be cumulative and may
be exercised successively or concurrently. Without limiting the generality of
the foregoing, the Collateral Agent shall have all rights of a secured party
under the New York Uniform Commercial Code and other applicable New York law.
20. Waiver. Any waiver, forbearance, failure or delay by the Collateral
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Agent or the Secured Parties in exercising, or the exercise or beginning of
exercise by the Collateral Agent or the Secured Parties of, any right, power or
remedy, simultaneous or later, shall not preclude the further, simultaneous or
later exercise thereof, and every right, power or remedy of the Collateral Agent
or the Secured Parties shall continue in full force and effect.
21. Binding Upon Successors. All rights and obligations of the Pledgor,
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the Collateral Agent and the Secured Parties under this Agreement shall bind and
inure to the benefit of the Pledgor, the Collateral Agent and the Secured
Parties and their successors and assigns.
22. Entire Agreement; Severability. This Agreement contains the entire
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security agreement and agency agreement, with respect to the Collateral, among
the Collateral Agent, the Secured Parties and the Pledgor (other than the TSAT
Pledge Agreement, to the extent applicable). If any of the provisions of this
Agreement shall be held invalid or unenforceable, this Agreement shall be
construed as if not containing such provisions, and the rights and obligations
of the parties hereto shall be construed and enforced accordingly.
23. Choice of Law; Submission to Jurisdiction. This Agreement shall be
-----------------------------------------
construed in accordance with and governed by the internal laws of the State of
New York without giving effect to any conflicts of laws principles, and terms
used herein, except as otherwise (by reference or otherwise) defined herein
shall have the meanings given to them in the New York Uniform Commercial Code.
Each party hereto irrevocably submits to the jurisdiction of any New York State
court sitting in the Borough of Manhattan or any Federal court sitting in the
Borough of Manhattan in respect of any suit, action or proceeding arising out of
or relating to this Agreement and the transactions pursuant hereto and in
connection herewith, and irrevocably agrees that all claims in respect of any
such suit, action or proceeding shall be heard and determined in any such court.
Each party irrevocably waives any objection which it may now or hereafter have
to the laying of the venue of such suit, action or proceeding brought in any
such court and any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum.
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24. Amendments, Etc. No amendment or waiver of any provision of this
---------------
Agreement, nor consent to any departure by the Pledgor or the Collateral Agent
here from, shall be effective unless the same shall have been effected in
accordance with Section 15 of the SAR Agreements.
25. Notice. All notices, requests, demands, claims, and other
------
communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given to the
intended recipient (i) upon telephonic confirmation of facsimile, (ii) when sent
by overnight delivery or (iii) seventy-two hours after deposit in the United
States mail when mailed by first class mail, postage prepaid, to the addresses
or telecopier number, as applicable, listed below or on the signature pages
hereto. Any party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address, telephone
number or telecopier number for such recipient (i) if such recipient is the
Collateral Agent, set forth on the signature page hereof; (ii) if such recipient
is the Pledgor, set forth below:
0000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxx & Xxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Leaf, Esq.
and (iii) if such recipient is a Holder, as set forth on the signature pages to
the relevant SAR Agreement, with copies to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
and
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Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. XxXxxxxx, Esq.
Notices, requests, demands, claims or other communications may be sent by any
other means (including personal delivery, expedited courier, messenger service,
telecopy, or electronic mail), but no such notice, request, demand, claim, or
other communication shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any party may change the
address to which notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other party notice in the manner
herein set forth.
26. Execution in Counterparts. This Agreement may be executed in
-------------------------
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
agreement.
27. Removal of Collateral Agent under TSAT Pledge Agreement. Pledgor
-------------------------------------------------------
hereby covenants and agrees, for the benefit of the Secured Parties, that
Pledgor shall not consent to the removal and discharge of the collateral agent
under the TSAT Pledge Agreement pursuant to Section 13 thereof, without the
consent of the Required Secured Parties hereunder.
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IN WITNESS WHEREOF, the Pledgor and the Collateral Agent have caused
this Agreement to be executed and delivered as of the day and year first above
written.
PRIMESTAR, INC.
By: _______________________________________
Name:
Title:
THE BANK OF NEW YORK, as Collateral Agent
By: _______________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Notice Address: 000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust
Trust Administration
Telecopy No.: 000-000-0000
Telephone No.: 000-000-0000
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