Exhibit 10.79
INTERCREDITOR AND COLLATERAL
TRUST AGREEMENT
INTERCREDITOR AND COLLATERAL TRUST AGREEMENT dated as of February
25, 2002, between PANAMSAT CORPORATION, a corporation duly organized and validly
existing under the laws of the State of Delaware (together with any successor
Borrower under the below-referenced Credit Agreement, the "Borrower"); each of
the Subsidiaries of the Borrower identified under the caption "SUBSIDIARY
GUARANTORS" on the signature pages hereto and any other Subsidiary of the
Borrower that becomes a party hereto from time to time after the date hereof
(individually, a "Subsidiary Guarantor" and, collectively, the "Subsidiary
Guarantors" and, together with the Borrower, the "Obligors"); CREDIT SUISSE
FIRST BOSTON, as Administrative Agent under the Credit Agreement referred to
below; and THE BANK OF NEW YORK, a New York banking corporation, as collateral
trustee (in such capacity, together with its successors in such capacity, the
"Collateral Trustee") for the Secured Parties (as defined below).
The Borrower is party to (a) a Credit Agreement dated as of February
25, 2002 (as modified and supplemented and in effect from time to time, the
"Credit Agreement") between the Borrower, the lenders or other financial
institutions or entities from time to time parties thereto (the "Lenders) and
Credit Suisse First Boston, as Administrative Agent (the "Administrative
Agent"), and (b) an Indenture dated as of January 16, 1998 (as modified and
supplemented and in effect from time to time, the "Senior 1998 Notes Indenture")
between the Borrower and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank), as Trustee (the "Indenture Trustee), pursuant to which the
Borrower has issued 6% Notes due 2003, 6-1/8% Notes due 2005, 6-3/8% Notes due
2008, and 6-7/8% Debentures due 2028 in an aggregate outstanding principal
amount of $750,000,000 as of the date hereof (the "Senior 1998 Notes" and,
collectively with the Senior 1998 Notes Indenture, the "Senior 1998 Notes
Documents"). In addition, the Borrower may from time to time be obligated to
various of said Lenders (or their affiliates) in respect of one or more Hedging
Agreements (as defined below).
Pursuant to the provisions of the Senior 1998 Notes Indenture, the
Borrower may not, and may not permit any of its Restricted Subsidiaries (as
defined below) to, secure the Credit Agreement Obligations (as defined below)
with a lien on any Principal Property (as defined below) or any shares of
capital stock or indebtedness of the Borrower or any such Restricted Subsidiary
(such Principal Property, shares and indebtedness being herein collectively
referred to as the "Shared Property") without equally and ratably securing the
Senior 1998 Notes Obligations (as defined below).
It is a condition precedent to the Lenders' obligations to make
loans and issue letters of credit under the Credit Agreement that the Obligors
grant liens on the Shared Property to secure the Credit Agreement Obligations
and the Senior 1998 Notes Obligations. In order to effectuate such liens, the
Obligors have requested and hereby direct the Collateral Trustee to enter into
this Agreement to enable the Borrower to comply with the provisions of the
Senior 1998 Notes Indenture.
Accordingly, to induce the Lenders to make loans and issue letters
of credit under the Credit Agreement, and to enter into Hedging Agreements from
time to time with the Borrower, and to equally and ratably secure the Senior
1998 Notes Obligations and the Credit Agreement Obligations, the parties hereto
hereby agree as follows:
Section 1. Definitions, Etc.
(a) Defined Terms. As used herein, the following terms shall have
the following respective meanings:
"Administrative Agent" has the meaning assigned to such term in the
preamble to this Agreement.
"Bankruptcy Event" means, with respect to any Obligor, the
occurrence of any one or more of the following events with respect to such
Obligor:
(a) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of such Obligor or its
debts, or of a substantial part of its assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or other
similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for such Obligor, or for a substantial part of its assets,
and, in any such case, such proceeding or petition shall continue
undismissed for a period of 60 or more days or an order or decree
approving or ordering any of the foregoing shall be entered; or
(i) such Obligor shall (i) voluntarily commence any proceeding
or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or other similar law now or hereafter in effect, (ii)
consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in the
foregoing clause (a), (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or
similar official for such Obligor or for a substantial part of its
assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for
the purpose of effecting any of the foregoing.
"Borrower" has the meaning assigned to such term in the preamble to
this Agreement.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required
by law to remain closed.
"Casualty Event" means, with respect to any property of any Person,
any loss of or damage to, or any condemnation or other taking by a
governmental authority of, such property for which such Person receives
insurance proceeds, or proceeds of a condemnation award or other
compensation.
"Collateral" means the property from time to time subject to the
Liens of the Shared Security Documents.
"Collateral Trustee" has the meaning assigned to such term in the
preamble to this Agreement.
"Collateral Trustee's Fees" means all fees, costs and expenses of
the Collateral Trustee of the type described in Section 5.03.
"Credit Agreement Obligations" means, collectively, (i) in the case
of the Borrower, the principal of and interest on the loans and all other
amounts whatsoever now or hereafter from time to time owing to the Credit
Agreement Secured Parties by the Borrower under the Credit Agreement
(including all LC Disbursements under and as defined therein, together
with interest thereon), and (subject to Section 7.05) all obligations of
the Borrower to the Lenders or any of their affiliates in respect of
Hedging Agreements, (ii) in the case of the Subsidiary Guarantors, all
present and future obligations of the Subsidiary Guarantors under the
Guarantee Agreement, and (iii) in the case of each Obligor, all present
and future obligations of the Obligors to the Credit Agreement Secured
Parties hereunder.
"Credit Agreement Secured Parties" means, collectively, the Lenders,
the Administrative Agent, the Issuing Lender and the Swingline Lender from
time to time party to the Credit Agreement and, giving effect to the
second paragraph of the definition of "Credit Agreement Secured
Obligations", any affiliate of any such Lender that may at any time hold
any Hedging Obligations.
"Debt Instruments" means, collectively, (i) the Credit Agreement,
(ii) each Hedging Agreement under which a Credit Agreement Obligation
exists and (iii) the Senior 1998 Notes of each Series and the Senior 1998
Notes Indenture.
"Default Rate" means, with respect to any advance made by any
Secured Party hereunder or under any other Shared Security Document, (a)
for the period from and including the date such advance was made through
but excluding the date three Business Days thereafter, a rate per annum
equal to the rate then applicable under the Credit Agreement for Revolving
Credit ABR Loans under Section 2.12(a) of the Credit Agreement, and (b)
thereafter at the rate per annum
at which interest would then be payable on past due Revolving Credit ABR
Loans under Section 2.12(c) of the Credit Agreement.
"Disposition" means any sale, assignment, transfer or other
disposition of any property (whether now owned or hereafter acquired) by
the Borrower or any of its Restricted Subsidiaries to any other Person,
excluding, however, any lease (including any sales-type lease covering
transponders) entered into in the ordinary course of business and on
ordinary business terms reasonably consistent with prior practice of the
Borrower and its Restricted Subsidiaries.
"Distribution Date" means the date on which any funds are
distributed by the Collateral Trustee in accordance with the provisions of
Section 4.01.
"Dollars" or "$" refers to lawful money of the United States of
America.
"Event of Default" means (i) any "Event of Default" under and as
defined in the Credit Agreement or (ii) any "Event of Default" under and
as defined in the Senior 1998 Notes Documents with respect to any Series
of Senior 1998 Notes.
"FCC" means the Federal Communications Commission or any
governmental authority substituted therefor.
"FCC Licenses" means all authorizations, orders, licenses and
permits issued by the FCC to the Borrower or any of its Restricted
Subsidiaries, under which the Borrower or any of its Restricted
Subsidiaries is authorized to launch and operate any of its Satellites or
to operate any of its transmit only, receive only or transmit and receive
earth stations.
"Guarantee Agreement" means the Guarantee Agreement dated the date
hereof between the Subsidiary Guarantors and the Collateral Trustee.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement
or other interest or currency exchange rate or commodity price hedging
arrangement.
"Hedging Obligations" means obligations of the Borrower under any
Hedging Agreement.
"Indenture Trustee" has the meaning assigned to such term in the
preamble to this Agreement.
"Issuing Lender" means Credit Suisse First Boston, in its capacity
as the issuer of letters of credit under the Credit Agreement.
"Joint Venture" means any Person in which the Borrower or a
Restricted Subsidiary maintains an equity investment (including those
formed for the
purpose of selling or leasing transponder capacity to third party
customers in the ordinary course of business of the Borrower and its
Restricted Subsidiaries), but which is not a Subsidiary of the Borrower.
"Lenders" has the meaning assigned to such term in the preamble to
this Agreement.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset and (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset.
"Obligors" has the meaning assigned to such term in the preamble to
this Agreement.
"Permitted Investments" means:
(i) Dollars;
(ii) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality thereof having maturities of not more than one year
from the date of acquisition;
(iii) certificates of deposit and eurodollar time deposits
with maturities of one year or less from the date of acquisition,
bankers' acceptances with maturities not exceeding one year or less
from the date of acquisition and overnight bank deposits, in each
case with any commercial bank or trust company having capital and
surplus in excess of $500,000,000;
(iv) repurchase obligations with a term of not more than
thirty days for underlying securities of the types described in
clauses (ii) and (iii) above entered into with any financial
institution meeting the qualifications specified in clause (iii)
above;
(v) commercial paper maturing no more than one year from the
date of creation thereof and at the time of acquisition, having a
rating of at least P-1 from Xxxxx'x or a rating of at least A-1 from
S&P;
(vi) readily marketable direct obligations issued by any state
of the United States of America or any political subdivision thereof
having a rating of at least "A" from either Xxxxx'x or S&P; and
(vii) money market mutual or similar funds having assets in
excess of $250,000,000, substantially all the assets of which are
comprised of assets specified in clauses (i) through (vi) above.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership,
governmental authority or other entity.
"Principal Property" has the meaning assigned to such term in the
Senior 1998 Notes Indenture.
"Reinvest" means, with respect to any proceeds of any Collateral,
the application of such proceeds to (a) the repair, improvement,
replacement or purchase of any tangible personal or real property of the
Borrower or any of its Subsidiaries (or any intellectual property,
including software, necessary in order to use or benefit from such
property), or the purchase, construction, manufacture or improvement
(including the manufacture or purchase of a Satellite) of any such
property (including any such intellectual property), or the installation
of equipment on such property or software to be used in connection with
such property, (b) the purchase of licenses, permits or other
authorizations to use a geostationary orbital position or (c) the making
of a Permitted Business Acquisition under and as defined in the Credit
Agreement.
"Related Parties" means, with respect to any specified Person, such
Person's affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's affiliates.
"Requisite Secured Parties" means, at any time, Lenders and holders
of the Senior 1998 Notes holding at such time a majority in principal
amount of the sum of (a) the loans and LC Disbursements under and as
defined in the Credit Agreement and (b) the Senior 1998 Notes of all
Series then Outstanding (as the term "Outstanding" is defined in the
Senior 1998 Notes Indenture). For purposes hereof, the Collateral Trustee
shall be entitled to conclusively rely and act upon a certification from
the Administrative Agent as to the aggregate amount of loans and LC
Disbursements outstanding under the Credit Agreement at any time, and upon
a certification from the Borrower or the Indenture Trustee as to the
aggregate amount of Senior 1998 Notes of all Series Outstanding at any
time.
Notwithstanding the foregoing, to authorize any release pursuant to
Section 7.02(b), or any amendment pursuant to Section 7.03(b) or 8.02(ii),
"Requisite Secured Parties" means (i) the Required Lenders under and as
defined in the Credit Agreement and (ii) the holders of not less than a
majority in principal amount of each Series (voting separately) of Senior
1998 Notes then Outstanding. For purposes hereof, the Collateral Trustee
shall be entitled to conclusively rely upon a certification from the
Administrative Agent that such Required Lenders have authorized a release
or amendment under Section 7.02(b),
7.03(b) or 8.02(ii), as applicable, and upon a certification from the
Borrower or the Indenture Trustee that such majority in principal amount
of each Series of Senior 1998 Notes have authorized such release or
amendment.
"Responsible Officer" means any officer within the corporate trust
department of the Collateral Trustee, including any vice president,
assistant vice president, assistant secretary, assistant treasurer, trust
officer or any other officer of the Collateral Trustee who customarily
performs functions similar to those performed by the Persons who at the
time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such Person's knowledge of and familiarity
with the particular subject and who shall have direct responsibility for
the administration of this Agreement.
"Restricted Subsidiary" has the meaning assigned to such term in the
Senior 1998 Notes Indenture.
"Satellite" means any satellite owned by, or leased to, any Obligor
and any satellite purchased pursuant to the terms of any agreement for the
purchase of any Satellite, whether such satellite is in the process of
manufacture, has been delivered for launch or is in orbit (whether or not
in operational service).
"Secured Obligations" means, collectively, (i) the Credit Agreement
Obligations, (ii) the Senior 1998 Notes Obligations and (iii) the
obligations of the Obligors to the Collateral Trustee hereunder under each
other Shared Security Document.
"Secured Parties" means, collectively, (i) the Credit Agreement
Secured Parties, (ii) the Indenture Trustee, for its benefit and the
benefit of the holders from time to time of the Senior 1998 Notes, and
(iii) the Collateral Trustee.
"Senior 1998 Notes" has the meaning assigned to such term in the
preamble to this Agreement.
"Senior 1998 Notes Documents" has the meaning assigned to such term
in the preamble to this Agreement.
"Senior 1998 Notes Indenture" has the meaning assigned to such term
in the preamble to this Agreement.
"Senior 1998 Notes Obligations" means the obligations of the
Borrower to pay the principal of, premium, if any, and interest on, the
Senior 1998 Notes and all obligations of the Borrower to the Indenture
Trustee under the Senior 1998 Notes Indenture; provided however that the
"Senior 1998 Notes Obligations" shall not in any event include any
obligations in respect of debt securities issued under the Senior 1998
Notes Indenture after the date hereof.
"Shared Mortgage" means any mortgage or deeds of trust from time to
time made by any Obligor in favor of the Collateral Trustee (or in favor
of a trustee for the benefit of the Collateral Trustee) and covering any
Shared Property constituting real property (whether a fee or leasehold
interest).
"Shared Property" has the meaning assigned to such term in the
preamble to this Agreement.
"Shared Security Agreement" means the Shared Security Agreement
dated the date hereof between the Obligors and the Collateral Trustee.
"Shared Security Documents" means, collectively, the Guarantee
Agreement, the Shared Security Agreement, each Shared Mortgage, and any
other pledge agreements, security agreements, assignment agreements,
mortgages, deeds of trust or other instruments providing for collateral
security on Shared Property from time to time executed by any Obligor in
favor of the Collateral Trustee.
"Subsidiary" has the meaning assigned to such term in the Senior
1998 Notes Indenture.
"Subsidiary Guarantors" has the meaning assigned to such term in the
preamble to this Agreement.
"Swingline Lender" means Credit Suisse First Boston, in its capacity
as lender of swingline loans under the Credit Agreement.
"Triggering Event" means the occurrence of any of the following: (i)
the failure to pay the principal amount of the Loans under the Credit
Agreement, or Senior 1998 Notes of any Series, upon final maturity, (ii)
the occurrence of any "Event of Default" under and as defined in the
Senior 1998 Notes Documents with respect to any Series of Senior 1998
Notes, (iii) the occurrence of a Bankruptcy Event with respect to any
Obligor, (iv) the acceleration of the principal amount of the Secured
Obligations under the terms of any of the Credit Agreement or the Senior
1998 Notes Documents with respect to any Series of Senior 1998 Notes, (v)
the issuance of any direction by the Administrative Agent to the
Collateral Trustee, following the occurrence and during the continuance of
any Event of Default, to commence exercise of any of the Collateral
Trustee's rights and remedies hereunder or under any of the Shared
Security Documents or (vi) the making of a request by the Administrative
Agent under Section 4.02 or 5.04(3) of the Shared Security Agreement (or
any similar provision of any of the other Shared Security Documents).
"Trust Estate" means the right, title and interest of the Collateral
Trustee in, to and under the Shared Security Documents.
"TT&C Station" means an earth station operated by the Borrower or
any of its Restricted Subsidiaries for the purpose of providing tracking,
telemetry, control and monitoring of any Satellite.
"UCC" means the Uniform Commercial Code as in effect from time to
time in the State of New York.
(b) Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (i) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (ii) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (iii) the words "herein", "hereof" and "hereunder", and words of
similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof, (iv) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this Agreement and (v)
the words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
Section 2. Representations and Warranties by Obligors. Each Obligor
represents and warrants to the Lenders and the holders of the Senior 1998 Notes
of each Series that:
2.01. Organization; Powers. Each Obligor is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization.
2.02. Authorization; Enforceability. The execution, delivery and
performance by each Obligor of this Agreement, the Shared Secured Documents and
the Guarantee Agreement, as applicable, are within such Obligor's corporate
powers and have been duly authorized by all necessary corporate and, if
required, by all necessary shareholder action. This Agreement has been duly
executed and delivered by each Obligor and constitutes, and each of the Shared
Documents and the Guarantee Agreement to which it is a party when executed and
delivered by such Obligor will constitute, a legal, valid and binding obligation
of such Obligor, enforceable against each Obligor in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors' rights and (b) the application of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
2.03. Governmental Approvals; No Conflicts. The execution, delivery
and performance by each Obligor of this Agreement, the Shared Secured Documents
and the Guarantee Agreement (a) do not require any consent or approval of,
registration or filing with, or any other action by, any governmental authority,
except for (i) such as have been obtained or made and are in full force and
effect, (ii) filings and recordings in respect of the Liens created pursuant to
the Shared Security Documents, (iii) such FCC consents, approvals,
registrations, and filings as may be required in connection with the exercise of
rights under the Shared Security Documents following an Event of Default and
(iv) 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 and the U.S. Department of Commerce pursuant to the Export
Administration Regulations in connection with the exercise of rights hereunder
and under the Shared Security Documents following an Event of Default, (b) will
not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of any Obligor or any order of any governmental
authority, (c) will not violate or result in a default under any indenture or
any material agreement or other material instrument binding upon such Obligor's
assets, or give rise to a right thereunder to require any payment to be made by
any such Person under any such material agreement or instrument (it being
understood that, in the case of agreements included in the collateral security
under the Shared Security Documents that require the consent or approval of a
third party thereto to an assignment of such agreement, or otherwise impose
conditions on such assignment, that such consent or approval will need to be
obtained or such conditions satisfied prior to or upon any such assignment upon
an exercise by the Collateral Trustee of its rights and remedies under the
Shared Security Documents), and (d) except for the Liens created pursuant to the
Shared Security Documents, will not result in the creation or imposition of any
Lien on any asset of any Obligor.
Section 3. Declaration and Acceptance of Trust; Remedies.
3.01 Declaration and Acceptance of Trust. The Collateral Trustee
hereby declares, and each of the Obligors agrees, that the Collateral Trustee
holds the Trust Estate as trustee in trust under this Agreement for the equal
and ratable benefit of the Secured Parties as provided herein. By acceptance of
the benefits of this Agreement and the Shared Security Documents, each Secured
Party (whether or not a signatory hereto) (i) consents to the appointment of the
Collateral Trustee as trustee hereunder, (ii) confirms that the Collateral
Trustee shall have the authority to act as the exclusive agent of such Secured
Party for enforcement of any remedies under or with respect to the Shared
Security Documents (but, in the case of the Guarantee Agreement, only to the
extent necessary to effect the enforcement of remedies under the other Shared
Security Documents) and the giving or withholding of any consent or approval
relating to any Collateral or any Obligor's obligations with respect thereto and
(iii) agrees that, except as expressly provided in this Agreement, it shall not
take any action to enforce any of such remedies or give any such consents or
approvals.
3.02 Determinations Relating to Collateral. In the event (i) the
Collateral Trustee shall at any time receive any written request from any
Obligor under a Shared Security Document for consent or approval with respect to
any matter or thing relating to any Collateral or such Obligor's obligations
with respect thereto or (ii) there shall be due to or from the Collateral
Trustee under the provisions of any Shared Security Document any performance or
the delivery of any instrument or (iii) a Responsible Officer of the Collateral
Trustee shall receive notice of any nonperformance by any Obligor of any
covenant or any breach of any representation or warranty set forth in any Shared
Security Document, then, in each such event, the Collateral Trustee shall advise
the Administrative Agent and the Indenture Trustee of the matter or thing as to
which consent has been requested or the performance or instrument or other
document required to be delivered or the nonperformance or breach of which the
Collateral Trustee has received notice. Subject to the provisions of Section
7.02(b), 7.03(b) and 8.02(ii), the Administrative Agent shall at all times have
the exclusive authority to direct the Collateral Trustee's response to any of
the events or circumstances contemplated in clauses (i), (ii) or (iii) above.
3.03 Remedies.
(a) Notice of Triggering Event. Upon becoming aware of the
occurrence of any Triggering Event, the Administrative Agent shall promptly give
written notice thereof to the Collateral Trustee, and the Collateral Trustee
shall promptly notify the Indenture Trustee and the Obligors in writing that a
Triggering Event has occurred.
(b) Directions to Collateral Trustee. The Administrative Agent shall
at all times (whether before or after the occurrence of a Triggering Event) have
the right and authority to direct the time, method and place of conducting any
proceeding for the exercise of any right or remedy available to the Collateral
Trustee with respect to the Collateral, or of exercising any trust or power
conferred on the Collateral Trustee, or for the taking of any other action
authorized by the instruments comprising the Trust Estate (including the making
of any determinations to be made by the Collateral Trustee thereunder); provided
however that (i) following the occurrence of a Triggering Event, the Requisite
Secured Parties shall have the right at any time to assume such right and
authority of the Administrative Agent by notice to the Administrative Agent and
the Collateral Trustee and, thereafter, shall have the exclusive right and
authority to direct the Collateral Trustee as to such matters and (ii) nothing
in this Section 3.03 shall impair the right of the Collateral Trustee in its
discretion to take any action deemed proper by the Collateral Trustee and which
is not inconsistent with such direction by the Administrative Agent or Requisite
Secured Parties, as applicable.
3.04 Right to Make Advances. In the event an advance of funds shall
at any time be required in the reasonable judgment of the Administrative Agent
for the preservation or maintenance of any Collateral, any Credit Agreement
Secured Party, with the consent of the Administrative Agent (or, if the
Requisite Secured Parties shall have assumed the right and authority of the
Administrative Agent as contemplated by Section 3.03(b), with the consent of the
Requisite Secured Parties), shall be entitled to make such
advance after reasonable notice to the Borrower of its intention to do so but
without notice to any other Secured Party. Each such advance shall be repaid,
with interest at the applicable Default Rate, by the Borrower upon demand by the
Administrative Agent and in any event, whether or not such demand shall have
been made, out of the proceeds of any Collateral distributed pursuant to clause
First of Section 4.01. In the event any Secured Party shall receive any funds
which, under this Section 3.04, belong to the Collateral Trustee or any other
Secured Party, such Secured Party shall remit such funds promptly to the
Collateral Trustee for distribution to the Collateral Trustee or such other
Secured Party, as the case may be, and prior to such remittance shall hold such
funds in trust for the Collateral Trustee or such other Secured Party, as the
case may be.
3.05 Nature of Secured Parties' Rights. All of the Secured Parties
shall be bound by any instruction or direction given by the Administrative Agent
or the Requisite Secured Parties, as applicable, pursuant to this Section 3.
3.06 Guarantee Agreement. Anything herein to the contrary
notwithstanding, nothing in this Agreement or in the Shared Secured Documents
shall be deemed to limit or impair the right of ability of the Administrative
Agent or any Credit Agreement Secured Party from enforcing any rights or
remedies under the Guarantee Agreement except to the extent that such
enforcement relates to the rights or remedies of such Credit Agreement Secured
Party in respect of the Collateral.
Section 4. Application of Certain Amounts.
4.01 Application of Proceeds. Except as otherwise herein expressly
provided, the proceeds of any collection, sale or other realization of all or
any part of the Collateral pursuant to any of the Shared Security Documents, and
any other cash at the time held by the Collateral Trustee under this Agreement
or any of the Shared Security Documents, shall be applied by the Collateral
Trustee as soon as practicable after receipt (or as and when required by the
relevant Shared Security Document) as follows:
First, to the Collateral Trustee in an amount equal to the
Collateral Trustee's Fees which are unpaid as of the applicable
Distribution Date and to any Secured Party which has theretofore advanced
or paid any such Collateral Trustee's Fees in an amount equal to the
amount thereof so advanced or paid by such Secured Party and to reimburse
to any Credit Agreement Secured Party the amount of any advance made
pursuant to Section 3.04 (with interest thereon at the applicable Default
Rate);
Second, after and giving effect to the payment in full of the
Secured Obligations referred to in clause first above (but subject to
Section 4.04), to the Secured Parties equally and ratably, each in
proportion to the amount of Secured Obligations then held by them (whether
or not then due and payable), until all the Secured Obligations have been
paid in full (or monies set aside for such payment in full as provided in
the next paragraph), provided that (i) in the case of the realization of
any proceeds upon real property in New York covered by a
Mortgage that secures only a portion of the Secured Obligations, to the
payment in full of such portion of such Secured Obligations then held by
the Secured Parties, whether or not then due and payable, until all such
Secured Obligations have been paid in full (or monies set aside for such
payment in full as provided in the next paragraph), and (ii) in the case
of any application of funds to the prepayment of any Secured Obligations
prior to the date upon which the Collateral Trustee shall have been
notified of a Triggering Event, Hedging Obligations shall be excluded from
the determination of Secured Obligations for purposes of this clause
second; and
Finally, after payment in full of all Secured Obligations and the
termination of all of the commitments and letters of credit under the
Credit Agreement, to the applicable Obligor or its successors or assigns,
as its interests may appear.
In the event that at the time of any application of monies pursuant
to clause second above the Secured Obligations held by any Secured Party shall
not have been declared (or become) due and payable, then on the date of such
application, the Collateral Trustee shall set aside the monies that would
otherwise have been paid to such Secured Party (including interest that will
accrue during the 180-day period following such date) into a segregated
collateral account for the exclusive right and benefit of such Secured Party,
provided that any monies that remain in such collateral account for 180 or more
days after such Secured Obligations of such Secured Party have become payable
(and any monies in such account that remain after payment of the principal
component of the amount set aside for the benefit of such Secured Parties,
together with accrued interest thereon to the date of such payment) shall, at
the request of the Administrative Agent (or, if the Requisite Secured Parties
shall have assumed the right and authority of the Administrative Agent as
contemplated by Section 3.03(b), at the request of the Requisite Secured
Parties), be applied by the Collateral Trustee to the payment of the Secured
Obligations equally and ratably (or, to the extent representing proceeds of a
Mortgage upon real property in New York as described in clause second above,
equally and ratably to the respective Secured Obligations secured by such
Mortgage), each in proportion to the amount of Secured Obligations then due and
payable. In addition, if directed by the Borrower (to the extent allowable (as
determined in an opinion of counsel to the Borrower satisfactory to the
Collateral Trustee) under the respective instrument governing such Secured
Obligations), the Collateral Trustee may remit such amounts held in any such
collateral account to the Administrative Agent or Indenture Trustee, as
applicable, for application to prepayment of the Secured Obligations held by the
Secured Party for which such funds have been segregated pursuant to this
paragraph. Amounts held in any such collateral account shall be invested in such
Permitted Investments as the Collateral Trustee shall from time to time in its
discretion determine. Notwithstanding the foregoing, the provisions of this
paragraph shall not apply to Hedging Obligations and, accordingly, the amount of
Hedging Obligations entitled to the benefits of clause second above at any time
shall only be the amount thereof that is at the time due and payable.
4.02 Reliance by Collateral Trustee; Payments. The Collateral
Trustee shall be entitled to conclusively rely upon a certificate from the
Administrative Agent as to the aggregate amount of Credit Agreement Secured
Obligations that on any Distribution Date are held by any Credit Agreement
Secured Party and as to the amount thereof that are due and payable, and shall,
except to the extent provided in the second paragraph of Section 4.01, remit the
amount of any cash to be applied pursuant to clause second of Section 4.01 to
the Credit Agreement Secured Obligations that are then due and payable directly
to the Administrative Agent. Similarly, the Collateral Trustee shall be entitled
to conclusively rely upon a certificate from the Borrower or the Indenture
Trustee as to the aggregate amount of Senior 1998 Note Obligations that on any
Distribution Date are held by any holder of Senior 1998 Notes and as to the
amount thereof that are due and payable, and shall, except to the extent
provided in the second paragraph of Section 4.01, remit the amount of any cash
to be applied pursuant to clause second of Section 4.01 to the Senior 1998 Note
Obligations that are then due and payable directly to the Indenture Trustee.
4.03 Payment Provisions. For the purposes of applying the provisions
of Section 4.01, all interest to be paid on any of the Secured Obligations
pursuant to the terms of any Debt Instrument shall, as among the Secured Parties
and irrespective of whether such interest is or would be recognized or allowed
in any bankruptcy or similar proceeding, be treated as a Secured Obligation for
purposes hereof.
4.04 Certain Proceeds of Shared Collateral. Anything herein or in
any of the other Shared Security Documents to the contrary notwithstanding, the
Collateral Trustee shall promptly remit to the Borrower any amounts standing to
the credit of the Shared Collateral Account under and as defined in the Shared
Security Agreement if, prior to the time that a Responsible Officer of the
Collateral Trustee shall have actual knowledge of the occurrence of a Triggering
Event, the Collateral Trustee shall be instructed by the Administrative Agent to
remit such amounts to the Borrower to enable to Borrower to Reinvest the same.
Section 5. Agreements with Collateral Trustee.
5.01 Delivery of Debt Instruments. On or before the date hereof, the
Borrower shall have delivered to the Collateral Trustee a true and complete copy
of each of the Debt Instruments as in effect on the date hereof. Promptly upon
the execution thereof, the Borrower shall deliver to the Collateral Trustee a
true and complete copy of any and all amendments, modifications or supplements
to any Debt Instrument and of any Hedging Agreement hereafter entered
constituting a Debt Instrument.
5.02 Information as to Holders. The Administrative Agent and the
Borrower shall deliver to the Collateral Trustee within 30 days after request by
the Collateral Trustee, a list setting forth (as of the date of such request),
(a) in the case of the Administrative Agent, for each Debt Instrument pursuant
to which any Credit Agreement Secured Obligations are outstanding and, in the
case of the Borrower, for the Senior 1998 Notes, (i) the aggregate principal
amount outstanding thereunder, (ii) the interest rate or
rates then in effect thereunder, and (iii) the names of the holders thereof and
the unpaid principal amount thereof owing to each such holder (which
information, to the extent required to be supplied by the Borrower, need be
supplied only to the extent available to the Borrower). In addition, the
Administrative Agent and the Borrower shall furnish to the Collateral Trustee
within 30 days of a request therefor a list (as of the date of such request)
setting forth the name and address of each party to whom notices must be sent
under (x) in the case of the Administrative Agent, the Debt Instruments pursuant
to which any Credit Agreement Secured Obligations are outstanding and (y) in the
case of the Borrower to the extent available to it, the Senior 1998 Notes
Documents, and the Borrower agrees to furnish promptly to the Collateral Trustee
any changes or additions to such list.
5.03 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Obligors jointly and severally agree to
pay (i) to the Collateral Trustee, from time to time upon demand, compensation
(which shall not be limited by any provision of law in regard to compensation of
a trustee of an express trust) for its services hereunder and for administering
the Trust Estate, as heretofore or from time to time agreed upon in writing
between the Collateral Trustee and the Borrower, (ii) all reasonable
out-of-pocket expenses incurred by the Collateral Trustee and its affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Collateral Trustee, in connection with the preparation and administration of
this Agreement or any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (iii) all reasonable out-of-pocket expenses
incurred or required to be advanced by the Collateral Trustee in connection with
the administration of the Trust Estate or the preservation, protection or
defense of the Collateral Trustee's rights under this Agreement and in and to
the Collateral and the Trust Estate, (iv) all out-of-pocket expenses incurred by
the Collateral Trustee, including the fees, charges and disbursements of any
counsel for the Collateral Trustee, in connection with the enforcement or
protection of its rights in connection with this Agreement, including its rights
under this Section 5.03, including in connection with any workout, restructuring
or negotiations in respect thereof and (v) all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated by
this Agreement or any other document referred to therein.
(b) Indemnification by the Obligors. The Obligors jointly and
severally agree to indemnify the Collateral Trustee, each Secured Party and each
Related Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the transactions
contemplated hereby, or (ii) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee.
(c) Waiver of Consequential Damages, Etc. To the extent permitted by
applicable law, no Obligor shall assert, and each Obligor hereby waives, any
claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby.
(d) Payments. All amounts due under this Section 5.03 shall be
payable promptly after written demand therefor.
5.04 Further Assurances. At any time and from time to time, upon the
written request of the Collateral Trustee, and at the expense of the Obligors,
each Obligor shall promptly execute and deliver any and all such further
instruments and documents and take such further action as is necessary or
desirable or as the Collateral Trustee reasonably deems necessary or desirable
in obtaining the full benefits of this Agreement.
Section 6. The Collateral Trustee.
6.01 Certain Duties. The Collateral Trustee's duties in respect of
the Trust Estate shall include the taking of action with respect to applications
of the Obligors or others for consents, waivers, releases or other matters
relating to the Trust Estate or the Collateral as is explicitly required of the
Collateral Trustee pursuant to the terms hereunder and the prosecution following
any Event of Default of any action or proceeding or the taking of any
nonjudicial remedial action as shall be determined to be required pursuant to
the provisions of Sections 3.02 and 3.03. The Collateral Trustee's sole duty
with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under the UCC or otherwise, shall be to deal with
such Collateral in the same manner as it customarily deals with similar
collateral of other parties held by it.
6.02 Exculpatory Provisions.
(a) No Representations. The Collateral Trustee shall not be
responsible in any manner whatsoever for the correctness of any recitals,
statements, representations or warranties herein contained, all of which are
made solely by the Obligors. The Collateral Trustee makes no representations as
to the value or condition of the Trust Estate or any part thereof, or as to the
title of the Obligors thereto or as to the security afforded by the Shared
Security Documents or this Agreement or as to the validity, execution (except
its
own execution thereof), enforceability, legality or sufficiency of the Shared
Security Documents or this Agreement or of the Secured Obligations, and the
Collateral Trustee shall incur no liability or responsibility with respect to
any such matters. The Collateral Trustee shall not be responsible for insuring
the Trust Estate or for the payment of taxes, charges, assessments or Liens upon
the Trust Estate or otherwise as to the maintenance of the Trust Estate,
including as to the preparation or filing of any Uniform Commercial Code
financing statements.
(b) Limitations upon Duties. The Collateral Trustee shall not be
required to ascertain or inquire as to the performance by any Obligor or any
other Person of any of the covenants or agreements contained herein, in the
Shared Security Documents or in any Debt Instrument or any other agreement or
instrument referred to therein. Whenever it is necessary for the Collateral
Trustee to ascertain the amount of Secured Obligations then held by a Secured
Party, the Collateral Trustee may conclusively rely on a certificate of the
Administrative Agent (in the case of the Credit Agreement Obligations) and the
Borrower or the Indenture Trustee (in the case of the Senior 1998 Notes
Obligations) as to such amount.
(c) Limitations upon Liability. The Collateral Trustee shall not be
personally liable for any action taken or omitted to be taken by it in
accordance with this Agreement, the Shared Security Documents or any Debt
Instrument, except for such actions or omissions that are determined by a court
of competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of the Collateral Trustee. The
Collateral Trustee and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower and its
Subsidiaries as though the Collateral Trustee were not the collateral trustee
hereunder.
6.03 Delegation of Duties. The Collateral Trustee may execute any of
the trusts or powers hereof and perform any duty hereunder either directly or by
or through agents or attorneys-in-fact which it shall select with due care. The
Collateral Trustee shall not be responsible for the gross negligence or willful
misconduct of any agents or attorneys-in-fact selected by it.
6.04 Reliance by Collateral Trustee.
(a) Reliance upon Certificates of Borrower. Whenever in the
administration of the trusts of this Agreement the Collateral Trustee shall deem
it necessary or advisable that a matter be proved or established in connection
with the taking of any action hereunder by the Collateral Trustee, such matter
(unless other evidence in respect thereof be herein or in the Shared Security
Documents specifically prescribed) may be deemed to be conclusively provided or
established by a certificate of an officer of the Borrower delivered to the
Collateral Trustee, and such officers' certificate shall be full warranty to
Collateral Trustee for any action taken, suffered or omitted in reliance
thereon.
(b) Consultation with Counsel. The Collateral Trustee may consult
with counsel of its own selection, and any opinion or advice of such counsel
(which may be in-house counsel for the Collateral Trustee) shall be full and
complete authorization and protection in respect of any action taken or suffered
by it hereunder in accordance therewith. The Collateral Trustee shall have the
right at any time to seek instructions concerning the administration of the
Trust Estate from any court of competent jurisdiction.
(c) Reliance upon Resolutions, Etc. The Collateral Trustee may
conclusively rely, and shall be fully protected in acting, upon any resolution,
statement, certificate, instrument, opinion, report, notice, request, consent,
order, bond or other paper or document (whether in its original or facsimile
form) which it has no reason to believe to be other than genuine and to have
been signed or presented by the proper party or parties or, in the case of
telecopies and telexes, to have been sent by the proper party or parties. The
Collateral Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Collateral Trustee and conforming to the requirements
of this Agreement or the Shared Security Documents.
(d) Conflict or Doubt in Actions to be Taken. In the event any
disagreement between the Credit Agreement Secured Parties and the holders of the
Senior 1998 Notes shall result in a proceeding in a court of competent
jurisdiction being instituted with respect to the proper action to be taken by
the Collateral Trustee hereunder, and an order shall be issued enjoining the
Collateral Trustee from taking any action hereunder or under any Shared Security
Document, the Collateral Trustee shall be entitled to refrain from taking action
hereunder and to retain the Trust Estate until the Collateral Trustee shall have
received a replacement or supplemental order of such court with respect to the
action to be taken. Any such replacement or supplemental order of a court shall
be accompanied by a legal opinion by counsel for the presenting party
satisfactory to the Collateral Trustee to the effect that said opinion is final
and nonappealable.
In addition, in the event that the Collateral Trustee in good faith
is in doubt as to what action it should take hereunder, the Collateral Trustee
shall be entitled to refrain from taking action hereunder and to retain the
Trust Estate until the Collateral Trustee shall have received a direction from
the Administrative Agent with respect to the action to be taken (or, if the
Requisite Secured Parties shall have assumed the right and authority of the
Administrative Agent as contemplated by Section 3.03(b), a direction of the
Requisite Secured Parties).
6.05 Limitations on Duties of Collateral Trustee. The Collateral
Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in accordance with the direction of the Administrative Agent or, to
the extent provided in Sections 3.03(b), 7.02(b), 7.03(b) and 8.02(ii), the
Requisite Secured Parties. Except as herein otherwise expressly provided, the
Collateral Trustee shall not be under any obligation to take any action which is
discretionary with the Collateral Trustee under the
provisions hereof except upon the written request of the Administrative Agent
or, to the extent provided in Sections 3.03(b), 7.02(b), 7.03(b) and 8.02(ii),
the Requisite Secured Parties. Upon reasonable prior notice, the Collateral
Trustee shall make available for inspection and copying during normal business
hours by any Secured Party each certificate or other paper furnished to the
Collateral Trustee by any Obligor or the Administrative Agent, the Borrower or
the Indenture Trustee under or in respect of this Agreement, the Shared Security
Documents or any portion of the Trust Estate.
6.06 Moneys to be Held in Trust. All moneys received by the
Collateral Trustee under or pursuant to any provision of this Agreement shall be
held in trust for the purposes for which they were paid or are held.
6.07 Resignation and Replacement of Collateral Trustee.
(a) Resignation. The Collateral Trustee may at any time, by giving
30 days' prior written notice to the Borrower, the Administrative Agent and the
Indenture Trustee, resign and be discharged of the responsibilities hereby
created, such resignation to become effective upon the earlier of (i) 30 days
from the date of such notice and (ii) the appointment of a successor collateral
trustee or collateral trustees by the Administrative Agent (determined in
consultation with the Borrower). If no successor collateral trustee or
collateral trustees shall be appointed and approved within 30 days from the date
of the giving of the aforesaid notice of resignation, the Collateral Trustee
(notwithstanding the termination of all of its other duties and obligations
hereunder by reason of such resignation), the Administrative Agent or the
Borrower may at the expense of the Borrower, apply to any court of competent
jurisdiction to appoint a successor collateral trustee or collateral trustees
(which may be an individual or individuals) to act until such time, if any, as a
successor collateral trustee or collateral trustees shall have been appointed as
above provided. Any successor collateral trustee or collateral trustees so
appointed by such court shall immediately and without further act be superseded
by any successor collateral trustee or collateral trustees approved by the
Administrative Agent as above provided. In connection with the foregoing, the
Borrower hereby agrees with the Secured Parties to pay the fees, costs and
expenses of any successor Collateral Trustee, and to provide indemnification to
any successor Collateral Trustee, to the same extent as it provides the same to
the predecessor Collateral Trustee.
(b) Appointment of Successor Collateral Trustee. If at any time the
Collateral Trustee shall resign or otherwise become incapable of acting, or if
at any time a vacancy shall occur in the office of Collateral Trustee for any
other cause, a successor collateral trustee or collateral trustees may be
appointed by the Administrative Agent, and the powers, duties, authority and
title of the predecessor collateral trustee or collateral trustees terminated
and canceled without procuring the resignation of such predecessor collateral
trustee or collateral trustees, and without any other formality (except as may
be required by applicable law) other than appointment and designation of a
successor collateral trustee or collateral trustees in writing, duly
acknowledged, delivered to the predecessor collateral trustee or collateral
trustees, and filed for record in each public office, if any, in which this
Agreement is required to be filed.
(c) Rights of Successor Collateral Trustee. The appointment and
designation referred to in Section 6.07(b) shall, after any required filing, be
full evidence of the right and authority to make the same and of all the facts
therein recited, and this Agreement shall vest in such successor collateral
trustee or collateral trustees, without any further act, deed or conveyance, all
of the estate and title of its predecessor or their predecessors, and upon such
filing for record the successor collateral trustee or collateral trustees shall
become fully vested with all the estates, properties, rights, powers, trusts,
duties, authority and title of its predecessor or their predecessors; but such
predecessor or predecessors shall, nevertheless, on the written request of the
Administrative Agent or any successor collateral trustee or collateral trustees,
execute and deliver an instrument transferring to such successor or successors
all the estates, properties, rights, powers, trusts, duties, authority and title
of such predecessor or predecessors hereunder and shall deliver all securities
and moneys held by it or them to such successor collateral trustee or collateral
trustees.
(d) Filings at Expense of Borrower. Any required filing for record
of the instrument appointing a successor collateral trustees as hereinabove
provided shall be at the expense of the Borrower.
6.08 Qualifications of Successors to Collateral Trustee. Except as
permitted by Section 6.07, any successor to the Collateral Trustee appointed
pursuant to Section 6.07 shall be a bank or trust company in good standing and
having power so to act, incorporated under the laws of the United States of
America or any State thereof or the District of Columbia, and having its
principal corporate trust office within the forty-eight contiguous States, and
shall also have capital, surplus and undivided profits of not less than
$500,000,000.
6.09 Merger of Collateral Trustee. Any Person into which the
Collateral Trustee may be merged, or with which it may be consolidated, or any
Person resulting from any merger or consolidation to which the Collateral
Trustee shall be a party, or any Person acquiring all or substantially all of
the corporate trust business of the Collateral Trustee, shall be the Collateral
Trustee under this Agreement without the execution or filing of any paper or any
further act on the part of the parties hereto.
6.10 Appointment of Additional and Separate Collateral Trustee.
Whenever (i) the Collateral Trustee or the Administrative Agent shall deem it
necessary or prudent in order to conform to any law of any jurisdiction in which
all or any part of the Collateral shall be situated or to make any claim or
bring any suit with respect to or in connection with the Collateral, or (ii) the
Collateral Trustee shall be advised by counsel that it is so necessary or
prudent in the interest of the Secured Parties, then in any such case, the
Collateral Trustee shall execute and deliver from time to time all instruments
and agreements necessary or proper to constitute another bank or trust company
or one or more Persons approved by the Collateral Trustee either to act as
additional trustee or trustees of all or any part of the Trust Estate, jointly
with the Collateral Trustee, or to act as separate trustee or trustees of all or
any part of the Trust Estate, in any such case with
such powers as may be provided in such instruments or agreements, and to vest in
such bank, trust company or Person as such additional trustee or separate
trustee, as the case may be, any property, title, right or power of the
Collateral Trustee deemed necessary or advisable by the Collateral Trustee. Each
of the Obligors hereby consents to all actions taken by the Collateral Trustee
under the foregoing provisions of this Section 6.10.
Section 7. Release of Trust Estate and Collateral; Expiration of
Certain Rights.
7.01 Release of Trust Estate; Expiration of Certain Rights.
Notwithstanding any contrary provision herein, the Trust Estate shall be
assigned and released to (i) the Administrative Agent for the benefit of the
Lenders and the other holders of Credit Agreement Obligations (and such release
confirmed in a written instrument in form satisfactory to the Required Lenders)
on the earlier of the date (a) on which all the Senior 1998 Notes Obligations
shall have been paid to the holders thereof or (b) that is ten days after the
provisions of the Senior 1998 Notes Documents that require equal and ratable
security shall be held to be invalid, void or unenforceable by the final
judgment of a court of competent jurisdiction, no longer subject to appeal or
review, or (ii) the applicable Obligor on the date on which all the Credit
Agreement Obligations have been paid in full and the commitments under the
Credit Agreement have been terminated, the Administrative Agent has given
written notice thereof to the Collateral Trustee and all the Collateral
Trustee's Fees have been paid in full.
7.02 Releases of Collateral.
(a) Prior to Triggering Event. At any time during which, to the
actual knowledge of any Responsible Officer of the Collateral Trustee, no
Triggering Event has occurred and is continuing, the Lien of the Shared Security
Documents, and any obligations of the Obligors under the Guarantee Agreement,
may, at any time, be released in whole or in part by the Collateral Trustee
pursuant to written directions signed by the Administrative Agent, provided that
no such release shall be effected in such a manner so that fewer than all, but
not all, of the Secured Parties continue to be entitled to the benefits of such
Lien (or become entitled to the benefits of a substitute Lien) without each of
the Secured Parties hereunder being equally and ratably secured on the
respective property subject to such Lien (to the extent such property is Shared
Property). No such release shall require any consent or approval by any other
Secured Party.
(b) After Triggering Event. At any time during which, to the actual
knowledge of any Responsible Officer of the Collateral Trustee, a Triggering
Event has occurred and is continuing, the Lien of the Shared Security Documents,
and any obligations of the Obligors under the Guarantee Agreement, may, at any
time, be released in whole or in part by the Collateral Trustee only pursuant to
written directions signed by the Requisite Secured Parties.
7.03 Amendments of Shared Security Documents.
(a) Prior to Triggering Event. At any time during which, to the
actual knowledge of any Responsible Officer of the Collateral Trustee, no
Triggering Event has occurred and is continuing, the Administrative Agent shall
have the exclusive authority to direct the Collateral Trustee to amend any
provision of the Shared Security Documents without any consent or approval of,
or prior notice to, any other Secured Party; provided however that (i) the
Collateral Trustee shall not be obligated to execute any such amendment,
supplement or waiver that affects the Collateral Trustee's own rights, duties or
immunities under this Agreement or the Shared Security Documents and (ii) any
such amendment, supplement or waiver that would adversely affect the rights of
the holders of the Senior 1998 Notes to equally and ratably share in the
security provided for herein and in the Shared Security Documents shall be
joined in by the Indenture Trustee. To determine that, under the foregoing
clause (ii), it is not necessary for the Indenture Trustee to join in such
amendment, supplement or waiver, the Collateral Trustee shall be provided with
(and shall be entitled to rely upon) an opinion of counsel to the effect that
such amendment would not adversely affect the rights of the holders of the
Senior 1998 Notes to equally and ratably share in the security provided for
herein and in the Shared Security Documents.
(b) After Triggering Event. At any time during which, to the actual
knowledge of any Responsible Officer of the Collateral Trustee, a Triggering
Event has occurred and is continuing, the Requisite Secured Parties shall have
the exclusive authority to direct the Collateral Trustee to amend any provision
of any Shared Security Document; provided however that the Collateral Trustee
shall not be obligated to execute any such amendment, supplement or waiver that
affects the Collateral Trustee's own rights, duties or immunities under this
Agreement or the Shared Security Documents.
7.04 Covenants of Quiet Enjoyment. Anything herein or in any of the
Shared Security Documents to the contrary notwithstanding, in the event that it
shall be a condition to the Collateral Trustee obtaining a Lien upon the rights
of any Obligor under an agreement or other instrument to which such Obligor is a
party with a third party relating to the lease, license or other use of property
owned by such Obligor that the Collateral Trustee agree that the rights of such
third party in respect of such property shall not be affected or impaired by
such Lien (or that the Collateral Trustee subordinate such Lien in respect of
property to the rights of such third party), the Administrative Agent hereby
agrees to authorize and direct the Collateral Trustee (and the Collateral
Trustee upon such direction agrees to) enter into such agreement (or such
subordination) in such form as the Administrative Agent shall deem appropriate
in the circumstances, it being understood that in the case of a transponder
lease or a lease of an Excluded Satellite, such agreement may be in the form of
a consent of the Collateral Trustee to a covenant of quiet enjoyment
substantially in the form of Annex 1 hereto or in such other form as shall be
satisfactory to the Administrative Agent.
7.05 Hedging Agreements. To the extent that any Person shall enter
into or be a party to a Hedging Agreement with the Borrower at the time that
such Person (or
an affiliate thereof) is a Lender under the Credit Agreement, such Hedging
Agreement shall cease to be entitled to the benefits of this Agreement or the
Shared Security Documents in the event that such Lender assigns all of its loans
and commitments under the Credit Agreement and is no longer a Lender under the
Credit Agreement.
Section 8. Miscellaneous.
8.01 Equal and Ratable Security. This Agreement is intended to
comply with the provisions of the Senior 1998 Notes Documents to secure the
unpaid principal of, premium, if any, and accrued interest on the Senior 1998
Notes equally and ratably with the Credit Agreement Obligations in respect of
the Shared Property. To the extent that the rights and benefits herein or in any
of the Shared Security Agreement conferred on the holders of the Senior 1998
Notes or the Indenture Trustee shall be held to exceed the rights and benefits
required so to be conferred by such provisions, such rights and benefits shall
be limited so as to provide to such holders and the Indenture Trustee only those
rights and benefits that are required by such provisions. Any and all rights not
herein expressly given to the Indenture Trustee are expressly reserved to the
Administrative Agent and the Credit Agreement Secured Parties, it being
understood that in the absence of a requirement to provide equal and ratable
security set forth in the Senior 1998 Notes Documents, this Agreement would not
have been accepted by the Administrative Agent or the Lenders.
8.02 Amendments, Supplements and Waivers. This Agreement may be
amended at any time by an instrument in writing between the parties hereto;
provided however that (i) at any time during which, to the actual knowledge of
any Responsible Officer of the Collateral Trustee, no Triggering Event has
occurred and is continuing, (x) it shall not be necessary for the Indenture
Trustee to join in any such instrument except to the extent that the same would
adversely affect the rights of the holders of the Senior 1998 Notes to equally
and ratably share in the security provided for herein and in the Shared Security
Documents and (y) the Collateral Trustee will upon the instruction of the
Administrative Agent execute such instrument (except that the Collateral Trustee
shall not be obligated to execute any such instrument to the extent it would
affect the Collateral Trustee's own rights, duties or immunities under this
Agreement or the Shared Security Documents) and (ii) at any time during which,
to the actual knowledge of any Responsible Officer of the Collateral Trustee, a
Triggering Event has occurred and is continuing, the Collateral Trustee will
upon the instruction of the Requisite Secured Parties execute such instrument
(except that the Collateral Trustee shall not be obligated to execute any such
instrument to the extent it would affect the Collateral Trustee's own rights,
duties or immunities under this Agreement or the Shared Security Documents). To
determine that, under the foregoing clause (i)(x), it is not necessary for the
Indenture Trustee to join in such amendment, the Collateral Trustee shall be
provided with (and shall be entitled to rely upon) an opinion of counsel to the
effect that such amendment would not adversely affect the rights of the holders
of the Senior 1998 Notes to equally and ratably share in the security provided
for herein and in the Shared Security Documents.
8.03 Notices. All notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to any Obligor, to it at 00 Xxxxxxxx Xxxx, Xxxxxx, XX 00000,
Attention of Xxxxx X. Xxxxxxxx (Tel: 000-000-0000; Fax: 000-000-0000);
(ii) if to the Collateral Trustee, to The Bank of New York, 0 Xxxx
Xxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Corporate Trust
Administration (Tel: 000-000-0000; Fax: 000-000-0000);
(iii) if to the Administrative Agent, to Credit Suisse First Boston,
Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention of Xxxxxxx Xxxxxxx /
Agency Group (Tel: 000-000-0000; Fax: 000-000-0000); and
(iv) if to the Indenture Trustee, to JPMorgan Chase Bank, 000 Xxxx
00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention of Xxxxxxx Xxxxx
(Tel: 000-000-0000; Fax: 000-000-0000);
or, in the case of any party, at such other address as shall be designated by it
in a written notice to each of the other parties. All such notices and other
communications given in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt.
8.04 Captions. The captions and section headings appearing herein
are included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Agreement.
8.05 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
8.06 Dealings with the Obligors. Upon any application or demand by
any Obligor to the Collateral Trustee to take or permit any action under any of
the provisions of this Agreement or under any Shared Security Document, such
Obligor shall furnish to the Collateral Trustee a certificate of an appropriate
officer and an opinion of counsel stating that all conditions precedent, if any,
provided for in this Agreement, such Shared Security Document relating to the
proposed action have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Agreement or the Shared Security
Documents relating to such particular application or demand, no additional
certificate or opinion need be furnished.
8.07 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the respective successors and assigns of each Obligor, the
Secured Parties and each holder of any of the Secured Obligations (provided
however that no Obligor shall assign or transfer its rights or obligations
hereunder without the prior written consent of the Collateral Trustee and the
Administrative Agent).
8.08 Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in accordance
with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each Obligor hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement and each Shared Security
Document, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in the
State of New York or, to the extent permitted by law, in such Federal court.
Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that the Collateral Trustee or any other
Secured Party may otherwise have to bring any action or proceeding relating to
this Agreement or any Shared Security Document against any Obligor or its
properties in the courts of any jurisdiction.
(c) Waiver of Venue. Each Obligor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any Shared Security Document in any court referred to in paragraph (b) of this
Section 8.08. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) Service of Process. Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in Section
8.03. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
8.09 Counterparts. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. Delivery of an executed counterpart of a signature page to this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
8.10 Waiver Of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SHARED SECURITY
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.10.
8.11 No Waiver. No failure on the part of the any Secured Party to
exercise, and no course of dealing with respect to, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise by any Secured Party of any right, power or
remedy hereunder preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies herein are cumulative and are
not exclusive of any remedies provided by law.
8.12 Survival. The provisions of Section 5.03 and Section 6 shall
survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the resignation or removal of the
Collateral Trustee, the repayment of the Secured Obligations and the termination
of the commitments and letters of credit under the Credit Agreement.
8.13 Additional Obligors. As contemplated in Section 5.11(a) of the
Credit Agreement, a new Subsidiary of the Borrower formed or acquired by the
Borrower after the date hereof may become a "Subsidiary Guarantor" under the
Guarantee Agreement and an "Obligor" under the Shared Security Documents and
this Agreement by executing and delivering to the Administrative Agent and the
Collateral Trustee a Guarantee Assumption Agreement in the form of Exhibit F to
the Credit Agreement. Accordingly, upon the execution and delivery of any such
Guarantee Assumption Agreement by any such Subsidiary, such new Subsidiary shall
automatically and immediately, and without any further action on the part of any
Person, become an "Obligor" for all purposes of this Agreement.
8.14 Additional Obligors. Each Obligor hereby instructs its counsel
to deliver the opinions referred to in Section 4.01(b) and (c) of the Credit
Agreement or, as applicable, pursuant to 5.11(a) of the Credit Agreement.
8.15 Certain Regulatory Matters. The creation of any Lien, and the
exercise of any remedy, with respect to any FCC License shall be consistent with
the rules and regulations administered by the FCC, including 47 C.F.R.
ss.25.140(d), in accordance with which the Administrative Agent and the
Collateral Trustee hereby agree
to provide the Obligors and the FCC, no less than 10 days prior written notice
before any Satellite or any TT&C Station that is the subject of FCC Licenses
shall be repossessed by the Collateral Trustee upon an exercise of any rights or
remedies under the Shared Security Documents.
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly executed and delivered as of the date first above written.
PANAMSAT CORPORATION
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Title: Executive Vice President and
Chief Financial Officer
Name: Xxxxxxx X. Xxxxxxx
SUBSIDIARY GUARANTORS
NET/36, INC. PANAMSAT ASIA CARRIER
SERVICES, INC.
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- -------------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President - Title: Senior Vice President and
Corporate Development and Chief Financial Officer
Corporate Secretary
PANAMSAT CAPITAL CORPORATION PANAMSAT CARRIER SERVICES, INC.
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- -------------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President - Title: Senior Vice President and
Corporate Development, Chief Financial Officer
General Counsel and
Corporate Secretary
PANAMSAT COMMUNICATIONS PANAMSAT COMMUNICATIONS
CARRIER SERVICES, INC. JAPAN, INC.
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- -------------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President - Title: Senior Vice President and
Corporate Development, Chief Financial Officer
General Counsel and
Corporate Secretary
PANAMSAT COMMUNICATIONS PANAMSAT INDIA, INC.
SERVICES, INC.
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- -------------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President - Title: Senior Vice President and
Corporate Development, Chief Financial Officer
General Counsel and
Corporate Secretary
PANAMSAT INDIA MARKETING, L.L.C. PANAMSAT INTERNATIONAL
HOLDINGS, INC.
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- -------------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Manager Title: Senior Vice President and
Chief Financial Officer
PANAMSAT INTERNATIONAL PANAMSAT INTERNATIONAL
SALES, INC. SYSTEMS, INC.
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- -------------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President - Title: Senior Vice President and
Corporate Development, Chief Financial Officer
General Counsel and
Corporate Secretary
PANAMSAT INTERNATIONAL PANAMSAT INTERNATIONAL
SYSTEMS, L.L.C. SYSTEMS MARKETING, LLC
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxxxx X. Xxxxxxxx
--------------------------------- -------------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxx X. Xxxxxxxx
Title: Manager Title: Manager
PANAMSAT LICENSEE CORP. PANAMSAT MARKETING
CORPORATION
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- -------------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President - Title: Senior Vice President and
Corporate Development, Chief Financial Officer
General Counsel and
Corporate Secretary
PAS INTERNATIONAL SERVICE AND EQUIPMENT
EMPLOYMENT, INC. CORPORATION
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- -------------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President - Title: Senior Vice President and
Corporate Development, Chief Financial Officer
General Counsel and
Corporate Secretary
SOUTHERN SATELLITE CORP. SOUTHERN SATELLITE
LICENSEE CORPORATION
By /s/ Xxxxx X. Xxxxxxxx By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------- -------------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President - Title: Senior Vice President and
Corporate Development, Chief Financial Officer
General Counsel and
Corporate Secretary
USHI, INC.
By /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President -
Corporate Development,
General Counsel and
Corporate Secretary
PANAMSAT INTERNATIONAL
SYSTEMS LIMITED
By /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Secretary
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
By /s/ Xxxx Xxxxxx
-------------------------------------
Title: Managing Director
Name: Xxxx Xxxxxx
THE BANK OF NEW YORK,
as Collateral Trustee
By /s/ Xxxxxxxx Xxxxxx
-------------------------------------
Title: Vice President
Name: Xxxxxxxx Xxxxxx
