Exhibit 4.25
SECOND AMENDED AND RESTATED
PLEDGE AGREEMENT
Among
SIRIUS SATELLITE RADIO INC.
(formerly CD Radio Inc.)
as Pledgor
THE BANK OF NEW YORK
as Trustee
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
LEHMAN COMMERCIAL PAPER INC.
as Administrative Agent
Any Future Agents Party Hereto
and
THE BANK OF NEW YORK
as Collateral Agent
Dated as of March 7, 2001
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TABLE OF CONTENTS
Page
1. Grant of Security Interest..............................4
2. Security for Obligations................................5
3. Delivery of Pledged Collateral..........................6
4. Representations and Warranties..........................7
5. As to the Pledged Collateral............................8
6. Additional Shares......................................10
7. Payment of Taxes and Claims............................11
8. Covenants and Agreements...............................11
9. The Collateral Agent Appointed Attorney-in-Fact........13
10. The Collateral Agent May Perform.......................13
11. The Collateral Agent's Duties..........................14
12. Events of Default......................................14
13. Notice of Event of Default.............................15
14. Remedies...............................................15
15. Expenses...............................................16
16. Repayment in Bankruptcy, etc...........................17
17. No Segregation of Moneys; No Interest..................17
18. Continuing Security Interest; Termination..............17
19. Notices................................................18
20. Margin Regulations.....................................18
21. Future Agents..........................................18
22. Other Provisions.......................................18
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SECOND AMENDED AND RESTATED PLEDGE
AGREEMENT
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT (this
"Agreement"), dated as of March 7, 2001 made by SIRIUS
SATELLITE RADIO INC. (formerly CD Radio Inc.), a Delaware
corporation (the "Pledgor"), to THE BANK OF NEW YORK, as
collateral agent (the "Collateral Agent") for the holders
(the "Holders") from time to time of the Notes (as defined
herein), the lenders (the "Lenders") from time to time under
the Loan Agreement (as defined herein) and any future
lenders (the "Future Lenders") from time to time under any
Future Loan Agreement (as defined herein), THE BANK OF NEW
YORK, as trustee for the 1997 Notes (as defined herein), and
UNITED STATES TRUST COMPANY OF NEW YORK, as trustee for the
1999 Notes (as defined herein), LEHMAN COMMERCIAL PAPER
INC., as administrative agent for the Lenders (as defined
below), and each Future Agent (as defined below), as agent
for any Future Lenders, which becomes a party hereto by
means of a Future Agent Supplement substantially in the form
of Exhibit A hereto ("Future Agent Supplement").
The Pledgor, United States Trust Company of New York, as trustee (in
such capacity, the "1999 Note Trustee"), and The Bank of New York (as successor
to IBJ Whitehall Bank and Trust Company), as trustee (in such capacity, the
"1997 Note Trustee" and, together with the 1999 Note Trustee, the "Trustees"),
are parties to the Amended and Restated Pledge Agreement dated as of May 15,
1999 pursuant to which the Pledgor granted a first priority security interest in
the issued and outstanding capital stock described in Schedule I hereto (the
"Pledged Shares") representing 100% of the issued and outstanding capital stock
of Satellite CD Radio, Inc., a Delaware corporation (the "Subsidiary"), to the
Collateral Agent to secure the obligations of the Pledgor pursuant to (i) the
Indenture dated as of November 26, 1997 (as amended, restated, supplemented or
modified from time to time, the "1997 Note Indenture") between the Pledgor and
the 1997 Note Trustee pursuant to which the Pledgor issued $296,930,000
aggregate principal amount at maturity of its 15% Senior Secured Discount Notes
due 2007 (the "1997 Notes") and (ii) the Indenture dated as of May 15, 1999 (as
amended, restated, supplemented or otherwise modified from time to time, the
"1999 Note Indenture"), between the Pledgor and the 1999 Note Trustee pursuant
to which the Pledgor issued $200,000,000 aggregate principal amount of its
14-1/2% Senior Secured Notes due 2009 (the "1999 Notes", and together with the
1997 Notes, the "Notes").
The Pledgor has entered into a Term Loan Agreement dated as of June 1,
2000 (as amended, restated, supplemented or otherwise modified from time to
time, the "Loan Agreement") among the Pledgor, the Lenders, Lehman Brothers
Inc., as arranger and Lehman Commercial Paper Inc., as syndication agent and as
administrative agent (in such capacity the "Administrative Agent") and in
connection therewith the Pledgor has executed and delivered or will hereafter
execute and deliver certain other agreements,
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pledges, documents and other instruments (as amended, supplemented, restated or
otherwise modified from time to time, collectively, together with the Loan
Agreement, the "Loan Documents").
The Pledgor desires, to the extent permitted by the 1997 Note
Indenture, the 1999 Note Indenture, the Loan Agreement and any Future Loan
Agreement (as defined below), to extend the benefits of this Agreement to the
Lenders, the Administrative Agent, any Future Lender that makes extensions of
credit ("Future Loans") pursuant to the terms and conditions of a loan agreement
or indenture (a "Future Loan Agreement" and any other agreements, guaranties,
pledges, documents and other instruments entered into in connection therewith
(as amended, supplemented, restated or otherwise modified from time to time,
collectively, together with a Future Loan Agreement, the "Future Loan
Documents")) to the Pledgor and any administrative agent or trustee acting on
behalf of any such Future Lenders (a "Future Agent" and, together with the 1997
Note Trustee, the 1999 Note Trustee and the Administrative Agent, the "Agents")
that becomes a party hereto by means of a Future Agent Supplement (as defined
below).
The Pledgor, the Collateral Agent and the Trustees desire to amend and
restate the Pledge Agreement to grant a first priority security interest in the
Pledged Shares to the Collateral Agent for the benefit of the Agents and the
ratable benefit of the Holders, the Lenders and any Future Lenders (the amount
of such ratable benefit of the Holders to be determined, in the case of the 1997
Notes, with respect to the Accreted Value (as defined in the 1997 Note
Indenture) of the 1997 Notes outstanding at such time, and in the case of the
1999 Notes, with respect to the principal amount of the 1999 Notes outstanding
at such time, the amount of such ratable benefit of the Lenders to be determined
with respect to the aggregate unpaid principal amount of the Loans (as defined
in the Loan Agreement) outstanding at such time and the amount of such ratable
benefit of any Future Lenders to be determined with respect to the aggregate
unpaid principal amount or accreted value, as applicable, of any Future Loans
(as defined in any applicable Future Loan Agreement) outstanding at such time.
Capitalized terms used herein without definition are used herein as
defined in the 1999 Note Indenture.
In consideration of the premises, the agreements herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Pledgor, the Collateral Agent and the Trustees hereby
agree to amend and restate the Pledge Agreement pursuant hereto and the Pledgor
hereby covenants and agrees with the Collateral Agent and the Agents, for their
benefit and for the ratable benefit of the Holders, the Lenders (and any
affiliate of any Lender party to any Specified Hedge Agreement (as defined in
the Loan Agreement)) and each Future Lender (together with the Agents, the
"Secured Parties") as follows:
1. Grant of Security Interest. (a) The Pledgor hereby unconditionally
assigns, pledges and grants to the Collateral Agent, for its benefit and the
benefit of the Secured Parties, a first priority security interest in and to all
of the Pledgor's right, title
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and interest in and to the following, whether now owned or existing or hereafter
arising or acquired and wheresoever located (collectively, the "Pledged
Collateral"):
(i) the Pledged Shares and the certificates representing the Pledged
Shares, and all dividends, cash, instruments and other property from time
to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the Pledged Shares;
(ii) all additional shares of issued and outstanding shares,
interests, participations, warrants or other equivalents (however
designated) of corporate stock ("Stock") of the Subsidiary from time to
time acquired by the Pledgor in any manner, and the certificates
representing such additional shares, and all dividends, cash, instruments
and other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares; and
(iii) all Proceeds (as defined herein) of any and all of the foregoing
Pledged Collateral (including, without limitation, proceeds that constitute
property of the types described in clauses (i) and (ii) above).
(b) As used herein, the term "Proceeds" shall have the meaning assigned
to such term under Article 9 of the Uniform Commercial Code from time to time in
effect in the State of New York (the "UCC"; provided that in the event that, by
reason of mandatory provisions of law, any or all of the attachment, perfection
or priority of the Collateral Agent's security interest in any Pledged
Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, the term "UCC" shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of
the provisions hereof relating to such attachment, perfection or priority and
for purposes of definitions related to such provisions) and, to the extent not
otherwise included, shall include, but not be limited to: (i) any stock dividend
or distribution in connection with any increase or reduction of capital,
reclassification, merger, consolidation, sale of assets, combination of shares,
stock split, spin-off or split-off; (ii) any option or other right, whether as
an addition to, in substitution of or in exchange for any Pledged Shares or
otherwise; (iii) distributions payable in property (whether real, personal,
tangible, intangible, or mixed property; collectively "Property"); (iv)
dividends or distributions on dissolution, or in partial or total liquidation,
or from capital, capital surplus or paid-in surplus; (v) any and all payments
(in any form whatsoever) made or due and payable to the Pledgor from time to
time in connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Pledged Collateral by any nation or
government, any state or other political subdivision thereof, any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government and any court or arbitrator (a
"Governmental Body"); and (vi) any and all other amounts from time to time paid
or payable under or in connection with the Pledged Collateral.
2. Security for Obligations. This Agreement, together with the Pledged
Collateral, secures the payment of all of the obligations and liabilities of any
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kind of the Pledgor under this Agreement, the 1997 Note Indenture, the 1999 Note
Indenture, the Notes, the Loan Documents and any Future Loan Documents, whether
liquidated, unliquidated, direct, indirect, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured, and
whether for principal, interest, fees, costs, expenses or otherwise (whether
arising or accruing before or after the occurrence of any Event of Default (as
defined herein) and whether discharged, stayed or otherwise affected or allowed
as a claim in any bankruptcy proceeding of the Subsidiary), and all costs, fees
and expenses of the Collateral Agent and each Secured Party (including
reasonable attorneys' fees and expenses and with respect to the Collateral
Agent, reasonable allocated costs and expenses of in-house counsel and legal
staff) in enforcing, preserving and protecting its rights against the Pledgor,
whether or not suit is instituted (as the foregoing obligations and liabilities
may be amended, increased, modified, renewed, refinanced, refunded or extended
from time to time) (collectively, the "Secured Obligations"), now or hereafter
existing. Without limiting the generality of the foregoing, this Agreement
secures the payment of all amounts that constitute part of the Secured
Obligations and would be owed by the Pledgor to the Collateral Agent or the
Secured Parties under this Agreement, the 1997 Note Indenture, the 1999 Note
Indenture, the Notes, the Loan Documents and any Future Loan Documents but for
the fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the Pledgor.
Notwithstanding anything herein to the contrary, the 1997 Note Obligations (as
defined in the Intercreditor Agreement), the 1999 Note Obligations (as defined
in the Intercreditor Agreement), the Loan Obligations (as defined in the
Intercreditor Agreement) and the Future Loan Obligations (as defined in the
Intercreditor Agreement) are the only such obligations that may be secured by
the Pledged Collateral unless otherwise permitted by the 1997 Note Indenture,
the 1999 Note Indenture, the Loan Agreement and any Future Loan Agreement.
3. Delivery of Pledged Collateral. (a) All certificates and other
instruments at any time owned or acquired by the Pledgor representing or
evidencing the Pledged Shares shall be delivered to and held by or on behalf of
the Collateral Agent pursuant hereto and shall be in suitable form for transfer
by delivery, or shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to the Collateral
Agent. Upon the occurrence and during the continuance of an Event of Default (as
defined herein), the Collateral Agent shall have the right, upon written
instructions from any Agent and without notice to the Pledgor, to transfer to or
to register in the name of the Collateral Agent or any of its nominees any or
all of the Pledged Collateral. In addition, upon the occurrence and during the
continuance of an Event of Default, the Collateral Agent shall have the right at
any time to exchange certificates or instruments representing or evidencing
Pledged Collateral for certificates or instruments of smaller or larger
denominations.
(b) If there shall occur a change in applicable law or regulations
regarding (i) the steps necessary to obtain and maintain a perfected security
interest in any Pledged Collateral or (ii) the ability to obtain a security
interest directly in any license granted by the Federal Communications
Commission or Governmental Body succeeding to the functions thereof (the "FCC"),
or if there is Pledged Collateral for
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which the foregoing procedures are not effective to perfect a security interest,
the Pledgor will immediately upon its becoming aware thereof so notify the
Collateral Agent and will deliver to the Collateral Agent an Opinion of Counsel
setting forth the steps necessary for the Collateral Agent to obtain and
maintain such a perfected security interest in the Pledged Collateral affected
by such change or for which the foregoing procedures are not effective to
perfect a security interest, and the Pledgor and the Collateral Agent, instead
of (or in addition to) the actions specified in this Section 3, shall take such
other action, as specified in such Opinion of Counsel, as will create and
maintain such perfected security interest.
(c) Upon the execution and delivery of this Agreement, the Pledgor will
file proper financing statements or amendments thereto with the appropriate
office or offices under the Uniform Commercial Code in the State of New York,
covering the Pledged Collateral described in this Agreement and, thereafter,
such renewals, amendments or continuations thereof or such additional financing
statements in such additional offices in such jurisdictions or in the
appropriate filing offices in such additional jurisdictions as shall be required
from time to time under the UCC in order to perfect and to continue the
perfection of the security interest in the Pledged Collateral.
4. Representations and Warranties. The Pledgor hereby represents and
warrants to the Collateral Agent and the other Agents as follows:
(a) Organization; Good Standing. The Pledgor is duly organized,
validly existing and in good standing under the laws of the State of
Delaware and is duly qualified and in good standing in every other
jurisdiction where it is doing business, except where the failure to be so
qualified or maintain good standing would not have a Material Adverse
Effect (as defined herein). The chief place of business and chief executive
office of the Pledgor are located at 1221 Avenue of the Americas, New York,
New York 10020.
(b) Corporate Power; Authorization. The execution, delivery and
performance by the Pledgor of this Agreement, and the consummation of the
transactions contemplated hereby, (i) are within the Pledgor's corporate
authority; (ii) have been duly authorized by all necessary or proper
corporate action; (iii) are not in contravention of any provision of the
Pledgor's by-laws or certificate of incorporation; (iv) will not violate
any law or regulation, or any order or decree of any court or governmental
instrumentality to which the Pledgor or its property is subject; and (v)
will not conflict with or result in the breach or termination of,
constitute a default under, or accelerate any performance required by, any
indenture, mortgage, deed of trust, lease, agreement or other instrument to
which the Pledgor is a party or by which the Pledgor or any of its property
is bound (except for such conflict, breach, termination, default or
acceleration as could not reasonably be expected to have a Material Adverse
Effect (as defined herein)). Subject to Section 22(f) hereof, no
authorization, approval or action by, or notice to, or filing with, any
governmental authority or regulatory body is required under existing laws
and regulations on the date hereof (A) for the grant or perfection of the
security interests contemplated hereby or for the execution, delivery or
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performance of this Agreement by the Company, except as may be set forth in
Section 3 with respect to actions to be taken by the Collateral Agent or
any Agent or a financial intermediary holding Pledged Collateral and except
for the filings referred to in Section 3(b) that may be required in the
future, or (B) for the exercise by the Collateral Agent of the voting or
other rights provided for in this Agreement or its rights and remedies in
respect of the Pledged Collateral pursuant to this Agreement, except (1) as
may be required in connection with the disposition of Pledged Collateral by
laws affecting the offering and sale of securities, generally, and (2) with
respect to Pledged Shares, for authorizations, approvals, notices and
filings that may be required pursuant to regulations of the FCC (as defined
herein), or any successor laws or regulations.
(c) Enforceability. This Agreement is the legal, valid and binding
obligation of the Pledgor enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights or insolvent
corporations generally, and except to the extent that availability of the
remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be
brought.
(d) Absence of Liens. It is the legal and beneficial owner of the
Pledged Collateral free and clear of all Liens other than the security
interest created by this Agreement. No effective financing statement or
other instrument similar in effect covering all or any part of the
Collateral is on file in any recording office, except such as may have been
filed in favor of the Collateral Agent under this Agreement.
(e) Pledged Collateral. The Pledged Shares have been duly authorized
and validly issued and are fully paid and nonassessable. The Pledged Shares
represent 100% of the total number of shares of the Subsidiary which are
issued and outstanding or for which the Subsidiary is obligated to issue
after giving effect to the issuance of all such shares.
(f) Security Interest. This Agreement and the pledge of the Pledged
Collateral pursuant hereto create a valid and perfected first priority
security interest in the Pledged Collateral in favor of the Collateral
Agent for the ratable benefit of the Secured Parties, securing the payment
of all of the Secured Obligations, and all filings and other actions
necessary or desirable as may be required by the Secured Parties to perfect
and protect such security interest have been duly taken.
5. As to the Pledged Collateral. (a) So long as no event or
circumstance which constitutes a Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Pledged Collateral or any part
thereof for any purpose not inconsistent with the terms of this Agreement,
the 1997 Note
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Indenture, the 1999 Note Indenture, the Loan Agreement or any Future Loan
Agreement; provided, however, that the Pledgor shall not exercise or
refrain from exercising any such right without the consent of the
Collateral Agent if, in the Collateral Agent's judgment, such action or
inaction would have a Material Adverse Effect (as defined herein) on the
fair market value of any of the Pledged Collateral including, without
limitation, the validity, priority or perfection of the security interests
granted hereby or the remedies of the Collateral Agent hereunder.
(ii) Any and all dividends and other distributions (whether or not in
cash) paid or payable, and certificates, instruments and other Property
received, receivable or otherwise distributed in respect of, or in exchange
for, Pledged Collateral, shall be, and shall be forthwith delivered to the
Collateral Agent to be held as Pledged Collateral and shall, if received by
the Pledgor, be received in trust for the benefit of the Secured Parties,
be segregated from the other Property of the Pledgor, and be forthwith
delivered to the Collateral Agent, as Pledged Collateral in the same form
as so received (with any necessary endorsement). Any cash dividends or
distributions delivered to or otherwise held by the Collateral Agent
pursuant to this Section 5, and any other cash constituting Pledged
Collateral delivered to the Collateral Agent, shall be invested, at the
written direction of the Pledgor, by the Collateral Agent in Cash
Equivalents.
(iii) The Collateral Agent shall execute and deliver (or cause to be
executed and delivered) to the Pledgor all such proxies and other
instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to exercise the voting and other rights which it is
entitled to exercise pursuant to subsection (i) or (ii) above.
(b) Upon the occurrence and during the continuance of a Default (except
as provided below), at the Collateral Agent's option and following written
notice by the Collateral Agent to the Pledgor:
(i) All rights of the Pledgor to exercise the voting and other
consensual rights which it would otherwise be entitled to exercise pursuant
to Section 5(a)(i) shall cease; provided, however, that the Pledgor shall
be entitled to exercise such rights without the prior consent of the
Collateral Agent if such rights are to be exercised to vote in favor of a
transaction which is reasonably expected to cure the Default, not result in
another Default and not result in a Material Adverse Effect (as defined
herein). Except as provided in the prior sentence, after the occurrence and
during the continuance of an Event of Default, all such voting and other
consensual rights shall thereupon become vested in the Collateral Agent,
who shall thereupon have the sole right to exercise such voting and other
consensual rights, subject to the satisfaction of any regulatory
requirements. Effective upon the occurrence and during the continuance of
an Event of Default, the Pledgor hereby appoints the Collateral Agent the
Pledgor's true and lawful attorney-in-fact and grants to the Collateral
Agent an IRREVOCABLE PROXY to vote the Pledged Collateral in any manner the
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Collateral Agent deems advisable for or against all matters submitted or
which may be submitted to a vote of shareholders. The power-of-attorney
granted hereby is coupled with an interest and shall be irrevocable.
(ii) The provisions of Section 5(a)(ii) shall continue in full force
and effect, except that no dividends or distributions may be paid to the
Pledgor.
As used in this Agreement, the term "Material Adverse Effect" shall
mean an effect resulting from any circumstance or event of whatever nature
(including any adverse determination in any litigation) which does, or could
reasonably be expected to, materially and adversely (A) impair the validity or
enforceability of any of the 1997 Note Indenture, the 1999 Note Indenture, the
Notes, any Loan Document or any Future Loan Document or the Collateral Agent's
or any Secured Party's rights or remedies with respect thereto; (B) cause a
Default; (C) affect the business, property, business prospects, operations, or
financial or other condition of the Subsidiary or Pledgor; or (D) impair or
affect the Pledged Collateral or the Collateral Agent's Liens on the Pledged
Collateral or the priority of such Liens.
(c) In the event that all or any part of the securities or instruments
constituting the Pledged Collateral are lost, mutilated, destroyed or wrongfully
taken while such securities or instruments are in the possession of the
Collateral Agent, the Pledgor agrees that it will cause the delivery of new
securities or instruments in place of the lost, mutilated, destroyed or
wrongfully taken securities or instruments upon request therefor by the
Collateral Agent without the necessity of any indemnity bond or other security
other than the Collateral Agent's agreement or indemnity therefor customary for
security agreements similar to this Agreement.
6. Additional Shares. (a) The Pledgor agrees that it will cause the
Subsidiary not to issue any Stock of any kind.
(b) Without derogating from paragraph (a) of this Section 6, in the
event that, during the term of this Agreement:
(i) any stock dividend, stock split, reclassification, readjustment,
or other change is declared or made in the capital structure of the
Subsidiary, all new, substituted, and additional shares, or other
securities, issued by reason of any such change and received by the Pledgor
(directly or indirectly) or to which the Pledgor shall be entitled shall be
promptly delivered or otherwise transferred to the Collateral Agent,
together with undated stock powers endorsed in blank by the Pledgor, and
shall thereupon constitute additional Pledged Collateral to be held by the
Collateral Agent under the terms of this Agreement; and
(ii) any subscriptions, warrants or any other rights or options shall
be issued in connection with the Pledged Shares, all new stock or other
securities acquired through such subscriptions, warrants, rights or
options, and all additional shares of capital stock of the Subsidiary or
any successor in interest thereto from time to time acquired by the Pledgor
(directly or indirectly) in any manner
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whatsoever (including, without limitation, any shares of preferred stock
issued by the Subsidiary) together with appropriate undated stock or
similar powers endorsed in blank by the Pledgor, shall be promptly
delivered or otherwise transferred to the Collateral Agent and shall
thereupon constitute Pledged Collateral to be held by the Collateral Agent
under the terms of this Agreement.
7. Payment of Taxes and Claims. The Pledgor shall make payment of (a)
all taxes, assessments, license fees, levies and other charges of Governmental
Bodies imposed upon it which if unpaid, could reasonably be expected to have a
Material Adverse Effect or become a Lien on the Property of the Pledgor, unless
and to the extent only that such taxes, assessments, charges, license fees,
levies and other charges shall be contested in good faith and by appropriate
proceedings diligently conducted by the Pledgor and the Collateral Agent has
received prompt notice of such contest, (b) all taxes, assessments, license
fees, levies and other charges of Governmental Bodies on any of the Pledged
Collateral before any penalty or interest accrues thereon, unless and to the
extent only that such taxes, assessments, charges, license fees, levies and
other charges shall be contested in good faith and by appropriate proceedings
diligently conducted by the Pledgor and the Collateral Agent has received prompt
notice of such contest, before any penalty or interest accrues thereon, and (c)
all claims (including, without limitation, claims for labor, services, materials
and supplies) for sums materially adversely affecting the Pledged Collateral,
which have become due and payable and which by law have or may become a Lien
upon any of the Pledged Collateral prior to the time when any penalty or fine
shall be incurred with respect thereto, unless and to the extent such claim is
being contested in good faith and by appropriate proceedings diligently
conducted by the Pledgor, the Collateral Agent has received prompt notice of
such contest, any proceeding to place a lien on the Pledged Collateral or to
enforce a lien on the Pledged Collateral has been stayed and such contest is not
reasonably expected to have a Material Adverse Effect.
8. Covenants and Agreements. The Pledgor covenants and agrees that on
and after the date hereof until the payment in full of the Secured Obligations
and the termination and discharge of all of the 1997 Note Indenture and the 1999
Note Indenture and the Loan Documents and any Future Loan Documents, unless the
Collateral Agent shall otherwise consent in writing:
(a) At any time and from time to time, upon the reasonable request of
the Collateral Agent, and at the sole expense of the Pledgor, the Pledgor
shall promptly do, file, record, execute and deliver any and all such
further notices, instruments and documents and will take such further
action as may be reasonably deemed necessary or desirable in the judgment
of the Collateral Agent and its counsel to obtain, protect and perfect the
security interests granted hereby and enforce and give effect to the
rights, remedies and powers hereunder, including, without limitation, the
recording or filing of all instruments and documents reasonably necessary
to perfect and protect the perfection of the security interests granted
hereby under Article 8 or 9 of the Uniform Commercial Code in effect in any
applicable jurisdiction. In connection therewith, the Collateral Agent is
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hereby irrevocably authorized and empowered as the Pledgor's attorney-in-
fact, solely to make, at the Collateral Agent's option, all filings and to
give all other notices as it shall reasonably deem necessary with respect
to any of the Pledged Collateral, all of which may be done with or without
the signature of the Pledgor. The Pledgor agrees that the foregoing power
constitutes a power coupled with an interest which shall survive until the
payment in full of all of the Secured Obligations. The Pledgor agrees to
reimburse the Collateral Agent on demand for any actual and reasonable
expenses (including reasonable attorneys' fees and expenses with respect
to the Collateral Agent, including reasonable allocated costs and expenses
of in-house counsel and legal staff) incurred by the Collateral Agent in
connection with such matters and, until such reimbursement, such expenses
shall be a part of the Secured Obligations.
(b) The Pledgor shall defend its ownership interest in and to the
Collateral and the Collateral Agent's security interest in and to the
Pledged Collateral against all claims and demands of all Persons at any
time claiming the same or any interest therein adverse to the interests of
the Collateral Agent.
(c) The Pledgor shall, at all times, maintain or cause to be
maintained accurate books and records with respect to the Pledged
Collateral, and shall furnish to the Collateral Agent such information
concerning such Pledged Collateral as the Collateral Agent may from time to
time reasonably request. The Collateral Agent and its designees are hereby
given the right, at the Pledgor's expense, to inspect and copy, following
prior notice to the Pledgor and during regular business hours, or the
Pledgor shall furnish the Collateral Agent with copies of, all records and
documents reasonably required by the Collateral Agent relating to the
Pledged Collateral.
(d) The Pledgor shall not further hypothecate, assign, pledge,
encumber, transfer, sell or otherwise dispose of, or grant any option with
respect to, or create or suffer to exist a security interest in, or a Lien
on, the Pledged Collateral or any portion thereof, except for the pledge,
assignment and security interest created by this Agreement in favor of the
Collateral Agent and except as contemplated by Article 12 of the 1997 Note
Indenture, Article 12 of the 1999 Note Indenture, Section 6 of the Loan
Agreement and the relevant comparable section of any Future Loan Agreement.
The inclusion of "Proceeds" of the Pledged Collateral under the security
interest granted herein shall not be deemed a consent by the Collateral
Agent to any sale or other disposition of any Pledged Collateral except as
expressly permitted herein.
(e) The Pledgor shall promptly notify the Collateral Agent of any
change occurring in or to the Pledged Collateral, of a change in the
Pledgor's mailing address, of any material change in any fact or
circumstance warranted or represented by the Pledgor in this Agreement or
furnished to the Collateral Agent, or if any Default or Event of Default
hereunder shall occur.
13
(f) The Pledgor shall not, without the prior written consent of the
Collateral Agent, sign or file or authorize the signing or filing of any
document, financing statement or instrument creating or perfecting, or
purporting to create or perfect, any Lien or other encumbrance on all or
any part of its Pledged Collateral except in favor of the Collateral Agent
as required hereby and except as contemplated in Article 12 of the 1997
Note Indenture and Article 12 of the 1999 Note Indenture and Section 6 of
the Loan Agreement and the relevant comparable section of any Future Loan
Agreement.
(g) The security interest granted hereby constitutes and shall at all
times constitute a perfected continuing first priority security interest in
the Pledged Collateral.
9. The Collateral Agent Appointed Attorney-in-Fact. Effective upon the
occurrence and during the continuance of an Event of Default, the Pledgor hereby
irrevocably appoints the Collateral Agent its attorney-in-fact, with full
authority in the place and stead of the Pledgor and in the name of the Pledgor
or otherwise, from time to time in the Collateral Agent's discretion, to take
any action and to execute any instrument which the Collateral Agent may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation:
(a) to ask, demand, collect, sue for, recover, compromise, receive and
give acquittance and receipts for moneys due and to become due under or in
respect of any of the Pledged Collateral and/or extend the time of payment,
arrange for payment in installments, or otherwise modify the terms of, or
release, any Pledged Collateral or obligations, without otherwise
discharging or affecting the Secured Obligations, the Pledged Collateral or
the security interests granted by this Agreement,
(b) to file any claims or take any action or institute any proceedings
which the Collateral Agent may deem necessary or desirable for the
collection of any of the Pledged Collateral or otherwise to enforce the
rights of the Collateral Agent with respect to any of the Pledged
Collateral; and
(c) to receive, indorse and collect any drafts or other instruments
and documents made payable to the Pledgor in connection with clause (a)
above or representing any dividend or other distribution in respect of the
Pledged Collateral or any part thereof and to give full discharge for the
same.
The power-of-attorney granted hereby is coupled with an interest and shall be
irrevocable.
10. The Collateral Agent May Perform. If the Pledgor fails to perform
any agreement contained herein or make payment of any amount required hereunder,
the Collateral Agent may itself perform, or cause performance of, or provide
payment for the performance thereof, and the reasonable expenses of the
Collateral Agent incurred in connection therewith shall be payable by the
Pledgor under Section 15 of this
14
Agreement and any such payment made shall be deemed an advance by the Collateral
Agent to the Pledgor, payable on demand together with interest at the highest
rate then payable under the 1997 Note Indenture, the 1999 Note Indenture, the
Loan Agreement, or any Future Loan Agreement as applicable, or if more than one
of the 1997 Note Indenture, the 1999 Note Indenture, the Loan Agreement or a
Future Loan Agreement are applicable, then at the rate which is the greatest
thereof.
11. The Collateral Agent's Duties. The powers conferred on the
Collateral Agent hereunder are solely to protect its interest in the Pledged
Collateral and shall not impose any duty upon it to exercise any such powers.
Except for the safe custody of any Pledged Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Collateral Agent
shall have no duty as to any Pledged Collateral, including the filing of any
financing or continuation statements relating to the Pledged Collateral. The
Collateral Agent shall be deemed to have exercised reasonable care in the
custody and preservation of the Pledged Collateral in its possession if the
Pledged Collateral is accorded treatment substantially equal to that which the
Collateral Agent accords its own Property, it being understood that the
Collateral Agent shall not be under any obligation to (a) ascertain or take
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Pledged Collateral, whether or not the Collateral
Agent has or is deemed to have knowledge of such matters, or (b) take any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Pledged Collateral, but may do so at its option, and all
reasonable expenses incurred in connection therewith shall be for the sole
account of the Pledgor, and shall be added to the Secured Obligations.
12. Events of Default. If any of the following events shall occur, then
an "Event of Default" has occurred hereunder:
(a) if the Pledgor fails to fully and punctually pay, perform or
observe any debt, obligation or liability of the Pledgor under this
Agreement, the 1997 Note Indenture, the 1999 Note Indenture, the Loan
Documents or any Future Loan Documents; or
(b) if any representation or warranty made herein, in the 1997 Note
Indenture, in the 1999 Note Indenture, in the Loan Agreement in any Future
Loan Agreement, or in any certificate, report or other document furnished
by the Pledgor in connection with this Agreement, the 1997 Note Indenture,
the 1999 Note Indenture, the Loan Agreement or any Future Loan Agreement
shall prove to have been false in any material respect upon the date when
made or deemed to have been made or repeated; or
(c) if the Pledgor shall fail to observe or perform any term, covenant
or agreement contained in Sections 8(a), 8(d) or 8(f) of this Agreement; or
(d) if the Pledgor shall fail to perform or observe any other term,
covenant or agreement on its part to be performed or observed pursuant to
this
15
Agreement and such failure shall have continued unremedied for a period of
30 days after the Pledgor shall become aware of such failure; or
(e) the occurrence and continuance of an Event of Default under and as
defined in the 1997 Note Indenture, the 1999 Note Indenture, the Loan
Agreement or any Future Loan Agreement.
13. Notice of Event of Default. The Pledgor agrees to notify the
Collateral Agent of the occurrence of an Event of Default promptly upon its
obtaining knowledge thereof.
14. Remedies. Upon the occurrence and during the continuation of an
Event of Default, the Collateral Agent may upon written instructions from the
1997 Note Trustee, the 1999 Note Trustee, the Administrative Agent or any Future
Agent, as applicable, subject to regulatory requirements and the terms and
conditions of the Intercreditor Agreement, exercise any and all remedies and
other rights provided under this Agreement and by applicable law, including,
without limitation, the following:
(a) The Collateral Agent may exercise in respect of the Pledged
Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party
upon default under the UCC (whether or not the UCC applies to the affected
Pledged Collateral) and also may without notice, except as specified below,
sell, lease, assign, grant an option or options to purchase or otherwise
dispose of the Pledged Collateral or any part thereof in one or more
parcels at public or private sale, at any exchange, broker's board or at
any of the Collateral Agent's offices or elsewhere, for cash, on credit or
for future delivery, and upon such other terms as the Collateral Agent may
deem commercially reasonable. The Pledgor agrees that, to the extent notice
of sale shall be required by law, at least 10 days' notice to the Pledgor
of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The
Collateral Agent shall not be obligated to make any sale of Pledged
Collateral regardless of notice of sale having been given. The Collateral
Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.
(b) Any cash held by the Collateral Agent as Pledged Collateral and
all cash proceeds received by the Collateral Agent in respect of any sale
of, collection from or other realization upon all or any part of the
Pledged Collateral may, in the discretion of the Collateral Agent, be held
by the Collateral Agent as Pledged Collateral for, and then or at any time
thereafter applied (after the payment of any amounts payable to the
Collateral Agent pursuant to Section 15 hereof) in whole or in part by the
Collateral Agent for the ratable benefit of the Secured Parties against all
or any part of the Secured Obligations. Any surplus of such cash or cash
proceeds held by the Collateral Agent and remaining after
16
payment of all of the Secured Obligations shall be paid over to the Pledgor
or to whomsoever may be lawfully entitled to receive such surplus.
(c) The Pledgor acknowledges and agrees that the Collateral Agent may
elect, with respect to the offer or sale of any or all of the Pledged
Collateral, to conduct such offer and sale in such a manner as to avoid the
need for registration or qualification of the Pledged Collateral or the
offer and sale thereof under any Federal or state securities laws and that
the Collateral Agent is authorized to comply with any limitation or
restriction in connection with such sale as counsel may advise the
Collateral Agent is necessary in order to avoid any violation of applicable
law, including, without limitation, compliance with such procedures as may
restrict the number of prospective bidders and purchasers, require that
such prospective bidders and purchasers have certain qualifications, and
restrict such prospective bidders and purchasers to Persons who will
represent and agree that they are purchasing for their own account for
investment and not with a view to the distribution or resale of such
Pledged Collateral, or in order to obtain any required approval of the sale
or of the purchaser by any Governmental Body. The Pledgor further
acknowledges and agrees that any such transaction may be at prices and on
terms less favorable than those which may be obtained through a public sale
and not subject to such restrictions and agrees that, notwithstanding the
foregoing, the Collateral Agent is under no obligation to conduct any such
public sale and may elect to impose any or all of the foregoing
restrictions, or any other restrictions which may be necessary or desirable
in order to avoid any such registration or qualification, at its sole
discretion or with the consent or direction of the parties entitled to give
direction pursuant to the Intercreditor Agreement, and that any such offer
and sale shall, taking into account the possible restrictions on such offer
and sale described in this subsection (c), be conducted in a commercially
reasonable manner.
(d) The Pledgor hereby expressly waives and covenants not to assert
any appraisement, valuation, extension, redemption or similar laws, now or
at any time hereafter in force, which might delay, prevent or otherwise
impede the performance or enforcement of this Agreement.
15. Expenses. The Pledgor will upon demand make payment to the
Collateral Agent of any and all reasonable out-of-pocket sums, costs and
expenses, which the Collateral Agent may pay or incur pursuant to the provisions
of this Agreement or in perfecting, defending, protecting or enforcing this
Agreement or the security interests granted herein or in enforcing payment of
all of the Secured Obligations or otherwise in connection with the provisions
hereof, including, but not limited to court costs, reasonable collection
charges, reasonable travel expenses, and reasonable attorneys' fees (including
with respect to the Collateral Agent, the reasonable allocated costs and
expenses of in-house counsel and legal staff) all of which together with
interest at the highest rate then payable under the 1997 Note Indenture, the
1999 Note Indenture, the Loan Agreement, or any Future Loan Agreement as
applicable, or if more than one of the 1997 Note Indenture, the 1999 Note
Indenture, the Loan Agreement or a Future Loan
17
Agreement are applicable, then the greatest thereof, shall be part of the
Secured Obligations.
16. Repayment in Bankruptcy, etc. Notwithstanding anything to the
contrary contained in this Agreement, if, at any time or times subsequent to
the payment of all or any part of the Secured Obligations, the Collateral Agent
shall be required to repay any amounts previously paid by or on behalf of the
Subsidiary or the Pledgor in reduction thereof by virtue of an order of any
court having jurisdiction thereof, including, without limitation, as a result of
an adjudication that such amounts constituted preferential payments or
fraudulent conveyances, the Pledgor unconditionally agrees to make payment to
the Collateral Agent within 10 days after demand of the amount of such
repayment, together with interest on such amount from the date of such repayment
by the Collateral Agent to the date of payment to the Collateral Agent at the
default interest rate set forth in the 1997 Note Indenture, the 1999 Note
Indenture, the Loan Agreement or any Future Loan Agreement, as applicable, or if
more than one of the 1997 Note Indenture, the 1999 Note Indenture, the Loan
Agreement or a Future Loan Agreement are applicable, then at the rate which
is the greatest thereof.
17. No Segregation of Moneys; No Interest. No moneys or any other
property received by the Collateral Agent hereunder need be segregated in any
manner except to the extent required by law, and any such moneys or other
property may be deposited under such general conditions as may be prescribed by
law applicable to the Collateral Agent, and the Collateral Agent shall not be
liable for any interest thereon.
18. Continuing Security Interest; Termination. (a) This Agreement shall
create a continuing perfected first security interest in the Pledged Collateral
and shall (i) remain in full force and effect until the payment in full of all
of the Secured Obligations, (ii) be binding upon the Pledgor, its successors and
assigns and (iii) inure, together with the rights and remedies of the Collateral
Agent hereunder, to the benefit of the Collateral Agent and the Secured Parties
and their respective successors, transferees and assigns.
(b) Notwithstanding anything to the contrary in this Section 18, upon
(i) satisfaction by the 1997 Note Trustee and the 1999 Note Trustee of the
conditions set forth in Article Four of the 1997 Note Indenture and Article Four
of the 1999 Note Indenture, upon the satisfaction and discharge of the 1997 Note
Indenture and the 1999 Note Indenture and repayment of all obligations under the
Loan Documents and any Future Loan Documents and termination of the Loan
Agreement and any relevant Loan Documents and any Future Loan Agreement and
relevant Future Loan Documents, respectively, (ii) the payment in full of all
Secured Obligations or (iii) the defeasance of the 1997 Notes and the 1997 Note
Indenture as provided in Section 13.02 of the 1997 Note Indenture, the
defeasance of the 1999 Notes and the 1999 Note Indenture as provided in Section
13.02 of the 1999 Note Indenture, and the repayment of all obligations under the
Loan Documents and any Future Loan Documents and termination of the Loan
Agreement and any relevant Loan Documents and any Future Loan Agreement and
relevant Future Loan Documents, the security interests created under this
18
Agreement shall terminate and the Collateral Agent shall, at the request and
expense of the Pledgor, cause to be assigned, transferred and delivered, against
receipt but without recourse, warranty or representation whatsoever, any
remaining Pledged Collateral, to or on the order of the Pledgor, and shall
execute and deliver to the Pledgor an instrument or instruments acknowledging
the release of such Pledged Collateral from the Lien of this Agreement.
19. Notices. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telecopy, telex or cable
communication) and mailed, telegraphed, telecopied, telexed, cabled or delivered
to it, if to the Pledgor, addressed to it at Sirius Satellite Radio Inc., 1221
Avenue of the Americas, New York, New York 10020, Attention of Patrick L.
Donnelly, if to the Collateral Agent addressed to it at The Bank of New York,
101 Barclay Street, Floor 21W, New York, New York 10286, Attention of Corporate
Trust Trustee Administration, if to the 1997 Note Trustee, at the address of the
1997 Note Trustee specified in the 1997 Note Indenture, if to the 1999 Note
Trustee, at the address of the 1999 Note Trustee as specified in the 1999 Note
Indenture, if to the Administrative Agent, at the addresses of the
Administrative Agent specified in the Loan Agreement, if to any Future Agent, at
the address specified in the applicable Future Agent Supplement, or as to any
party at such other address as shall be designated by such party in a written
notice to each other party. All such notices and other communications shall,
when mailed, telegraphed, telecopied, telexed or cabled, be effective when
deposited in the mails, delivered to the telegraph company, transmitted by
telecopier, confirmed by telex answerback or delivered to the cable company,
respectively.
20. Margin Regulations. The Pledgor shall take such steps as may be
necessary so that it shall comply with Regulations U and X (in so far as
Regulation X applies to Regulation U) promulgated by the Board of Governors of
the Federal Reserve System, in each case as in effect from time to time and to
the extent such Regulations are at the time applicable to the Notes issued by
the Pledgor.
21. Future Agents. To the extent permitted by the 1997 Note Indenture,
the 1999 Note Indenture, the Loan Agreement and any Future Loan Agreement, by
executing and delivering a Future Agent Supplement, a Future Agent (on its own
behalf and on behalf of the Future Lenders) hereby becomes a party to this
Agreement as an Agent hereunder with the same force and effect as if originally
named herein as an Agent and, without limiting the generality of the foregoing,
expressly assumes all obligations and liabilities of an Agent hereunder.
22. Other Provisions. (a) Except as expressly provided in this
Agreement, the Pledgor hereby waives presentment, demand for payment, notice of
default, nonperformance and dishonor, protest and notice of protest of or in
respect of this Agreement, the 1997 Note Indenture, the 1999 Note Indenture, the
Notes, the Loan Documents, any Future Loan Documents or the Secured Obligations,
notice of acceptance of this Agreement and reliance hereupon by the Collateral
Agent and notice of any sale of collateral security or any default of any sort.
19
(b) The Pledgor waives all errors or omissions of the Collateral Agent
in connection with the administration of Security Interest created hereby and
the Pledged Collateral, except errors or omissions which constitute gross
negligence or wilful misconduct.
(c) The Pledgor agrees that the Collateral Agent or the Secured Parties
may at any time, without notice to or consent of the Pledgor, and without in any
manner affecting the liability of the Pledgor hereunder, amend, modify or waive
any term or condition of the 1997 Note Indenture, the 1999 Note Indenture, the
Loan Documents and any Future Loan Documents, as applicable, and the 1997 Notes
and the 1999 Notes, as applicable, the Intercreditor Agreement and any of the
other respective Secured Obligations and any collateral security therefor and
otherwise deal with the Pledgor as if this Agreement did not exist.
(d) The Pledgor is not relying upon the Collateral Agent to provide to
the Pledgor any information concerning the Subsidiary, including, without
limitation, information which might have a Material Adverse Effect, and the
Pledgor has made arrangements satisfactory to the Pledgor to obtain from the
Subsidiary on a continuing basis such information concerning the Subsidiary as
the Pledgor may desire.
(e) In addition to all other rights it may have at law or otherwise,
upon the occurrence and during the continuance of an Event of Default, the
Collateral Agent is hereby authorized at any time and from time to time, without
notice, to set off against any and all obligations which the Collateral Agent
may owe to the Subsidiary or the Pledgor, of any kind or nature, and the Pledgor
shall continue to be liable to the Collateral Agent for any deficiency with
interest at the applicable interest rate set forth in the 1997 Note Indenture or
the 1997 Notes, or the 1999 Note Indenture or the 1999 Notes, or the Loan
Agreement or in any Future Loan Agreement, as applicable.
(f) Notwithstanding anything to the contrary contained in the 1997 Note
Indenture, the 1999 Note Indenture, the Loan Documents or any Future Loan
Documents or in any other agreement, instrument or document executed by the
Pledgor and delivered to the Collateral Agent, the Collateral Agent will not
take any action pursuant to any document referred to above which would
constitute or result in any assignment of any FCC license or any change of
control (whether de jure or de facto) of the Pledgor or the Subsidiary if such
assignment of any FCC license or change of control would require, under then
existing law or regulation of the FCC, the prior approval of the FCC without
first obtaining such prior approval of the FCC. Upon the occurrence of an Event
of Default or at any time thereafter during the continuance thereof, subject to
terms and conditions of this Agreement, the Pledgor agrees to take any action
which the Collateral Agent may reasonably request in order to obtain from the
FCC such approval as may be necessary to enable the Collateral Agent to exercise
and enjoy, the full rights and benefits granted to the Collateral Agent by this
Agreement and the other documents referred to above, including specifically, at
the cost and expense of the Pledgor, the use of its best efforts to assist in
obtaining approval of the FCC for any action or transaction contemplated by this
Agreement for which such approval is or shall be required by law,
20
and specifically, without limitation, upon request, to prepare, sign and file
with the FCC the assignor's or transferor's portion of any application or
applications for consent to the assignment of license or transfer of control
necessary or appropriate under the FCC's rules and regulations for approval of
(i) any sale or other disposition of the Pledged Collateral by or on behalf of
the Collateral Agent, or (ii) any assumption by the Collateral Agent of voting
rights in the Pledged Collateral effected in accordance with the terms of this
Agreement. It is understood and agreed that all foreclosure and related actions
will be made in accordance with the Communications Act of 1934, as amended, and
the rules and regulations promulgated thereunder, as from time to time in effect
(the "Communications Act") and other applicable FCC regulations and published
policies and decisions.
(g) The Pledgor agrees to indemnify and hold harmless the Collateral
Agent and each Secured Party, the respective affiliates of the Collateral Agent,
each Secured Party, and the respective officers, directors, employees, agents
(including, without limitation each of their counsel), and controlling persons
of the Collateral Agent, each Secured Party and each such affiliate (each, an
"Indemnified Party") from and against any and all claims, actions and suits
whether groundless or otherwise, and from and against any and all liabilities,
losses, damages and costs and expenses (including, without limitation, the
reasonable fees and disbursements of counsel and with respect to the Collateral
Agent, reasonably allocated costs and expenses of in-house counsel and legal
staff) of every nature and character arising out of or in connection with any
actual or threatened claim, litigation, investigation or proceeding relating to
the 1997 Note Indenture, the 1999 Note Indenture, the Notes, the Loan Documents,
any Future Loan Documents or this Agreement or the transactions contemplated
hereby (other than any such actions or expenses resulting from the gross
negligence or wilful misconduct of the Collateral Agent or the Secured Parties),
in each case including, without limitation, the reasonable fees and
disbursements of counsel and allocated costs of in-house counsel and legal staff
incurred in connection with any such investigation, litigation or other
proceeding whether or not such Indemnified Party is a party thereto, and the
Pledgor agrees to reimburse each Indemnified Party, upon demand, for all
out-of-pocket costs and expenses (including, without limitation, the reasonable
fees and disbursements of counsel and with respect to the Collateral Agent,
reasonably allocated costs and expenses of in-house counsel and legal staff)
incurred in connection with any of the foregoing. In litigation, or the
preparation therefor, the Collateral Agent and each Agent shall be entitled to
select their own counsel and, in addition to the foregoing indemnity, the
Pledgor agrees to pay promptly the reasonable fees and expenses of such counsel.
If, and to the extent that the obligations of the Pledgor under this Section
22(g) are unenforceable for any reason, the Pledgor hereby agrees to make the
maximum contribution to the payment in satisfaction of such obligations which is
permissible under applicable law.
The Pledgor shall not make any claim against any Indemnified Party for
any special, indirect or consequential damages in respect of any breach or
wrongful conduct (whether the claim therefor is based in contract, tort or duty
imposed by law) in connection with, arising out of or in any way related to the
transactions contemplated by,
21
and the relationship established by this Agreement, the 1997 Note Indenture, the
1999 Note Indenture, the Notes, the Loan Documents, or any Future Loan Documents
or any act, omission or event occurring in connection therewith, and the Pledgor
hereby waives, releases and agrees not to sue upon any such claim for any such
damages, whether or not accrued and whether or not known or suspected to exist
in the Pledgor's favor.
The covenants contained in this Section 22(g) shall survive payment or
satisfaction in full of all other of the Secured Obligations.
(h) The Pledgor hereby appoints Patrick L. Donnelly, 1221 Avenue of the
Americas, New York, New York 10020, as its legally authorized process agent to
accept service on behalf of the Pledgor.
(i) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York. The Pledgor agrees that any suit for
the enforcement of this Agreement may be brought in the courts of the State of
New York or any Federal court sitting therein and consents to the nonexclusive
jurisdiction of such court and service of process in any such suit being made
upon the Pledgor by mail to Patrick L. Donnelly at the address specified in
Section 22(h). The Pledgor hereby waives any objection that it may now or
hereafter have to the venue of any such suit or any such court or that such suit
is brought in an inconvenient court.
(j) This Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Agreement it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against whom enforcement is sought.
(k) This Agreement and any other documents executed in connection
herewith express the entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated, except as provided in Section
22(n).
(l) Each Holder, by its acceptance of the benefits of this Agreement
and the security interest created hereby, is deemed to agree to be subject to
the provisions of the Intercreditor Agreement.
(m) The Pledgor hereby waives its right to a jury trial with respect to
any action or claim arising out of any dispute in connection with this
Agreement, or any of the other loan documents, any rights or obligations
hereunder or thereunder or the performance of such rights and obligations.
Except as prohibited by law, the Pledgor hereby waives any right it may have to
claim or recover in any litigation referred to in the preceding sentence any
special, exemplary, punitive or consequential damages or any damages other than,
or in addition to, actual damages. The Pledgor (i) certifies that no agent or
representative of the Collateral Agent or any Secured Party has represented,
expressly or otherwise, that the Collateral Agent or such Secured Party, as the
case may be, would not, in the event of litigation, seek to enforce the
foregoing waivers and
22
(ii) acknowledges that the Collateral Agent and the Agents have been induced to
enter into this Agreement, the 1997 Note Indenture, the 1999 Note Indenture, the
Loan Agreement and any Future Loan Agreement by, among other things, the waivers
and certifications contained herein.
(n) Any consent or approval required or permitted by this Agreement to
be given by the Collateral Agent may be given with, but only with, the written
consent of the Collateral Agent (subject to the terms of the Intercreditor
Agreement). Any term of this Agreement may be amended, and the performance or
observance by the Pledgor of any terms of this Agreement, or the continuance of
any Default or Event of Default may be waived (either generally or in a
particular instance and either retroactively or prospectively) with, but only
with, the written consent of the Pledgor and the written consent of the
Collateral Agent and the Agents. No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission on the part of the Collateral Agent or
any Secured Party in exercising any right shall operate as a waiver thereof or
otherwise be prejudicial thereto. No notice to or demand upon the Pledgor shall
entitle the Pledgor to other or further notice or demand in similar or other
circumstances.
(o) Notwithstanding the foregoing, this Agreement may be amended,
revised and supplemented, as contemplated by Section 1203 of the 1997 Note
Indenture, Section 12.03 of the 1999 Note Indenture, Section 9.1 of the Loan
Agreement and the relevant comparable section of any Future Loan Agreement, to
assign and pledge to the Collateral Agent for the equal and ratable benefit of
the Secured Parties a security interest in the Pledged Collateral. Any such
amendment, revision or supplement shall comply with the provisions of Section
1203 of the 1997 Note Indenture and Section 12.03 of the 1999 Note Indenture,
Section 9.1 of the Loan Agreement and the relevant comparable section of any
Future Loan Agreement.
(p) The Pledgor hereby waives any and all rights against immunity from
jurisdiction, attachment (both before and after judgment) and execution to which
it might be entitled.
(q) The provisions of this Agreement are severable and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction, and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Agreement in any jurisdiction.
(r) The Collateral Agent shall not be required to exercise any of the
rights or powers vested in it by this Agreement, unless it shall have received
reasonable indemnity against costs, expenses and liabilities which may be
incurred in connection therewith. Any permissive right of the Collateral Agent
to act hereunder shall not be construed as a duty.
23
IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be duly
executed and delivered as of the date hereof.
SIRIUS SATELLITE RADIO INC.
By: /s/ Michael Haynes
-----------------------------------
Name: Michael Haynes
Title: Vice President and Treasurer
Accepted and agreed to:
THE BANK OF NEW YORK
as Collateral Agent,
By: /s/ Michael C. Daly
-------------------------------
Name: Michael C. Daly
Title: Assistant Vice President
THE BANK OF NEW YORK,
as 1997 Note Trustee,
By: /s/ Michael C. Daly
-------------------------------
Name: Michael C. Daly
Title: Assistant Vice President
UNITED STATES TRUST COMPANY OF NEW YORK,
as 1999 Note Trustee,
By: /s/ Patricia Gallagher
--------------------------------
Name: Patricia Gallagher
Title: Assistant Vice President
LEHMAN COMMERCIAL PAPER INC.
as Administrative Agent
By: /s/ Michele Swanson
-------------------------------
Name: Michele Swanson
Title: Authorized Signatory
24
Schedule I
Pledged Shares
All issued and outstanding shares of capital stock of Satellite CD Radio, Inc.,
a Delaware corporation.
25
Exhibit A
FUTURE AGENT SUPPLEMENT, dated as of _____, between _____, (the "Future
Agent") and the Bank of New York, as collateral agent, (in such capacity, the
"Collateral Agent") for the Secured Parties. All capitalized terms not defined
herein shall have the meanings ascribed to them in the Pledge Agreement referred
to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Future Lenders desire to provide for their rights in
respect of the Pledged Collateral; and
WHEREAS, pursuant to the [ ] among the Pledgor, the Future Agent and
the Future Lenders named therein, (a) such Future Lenders have agreed to make
extensions of credit to the Pledgor and (b) the Future Agent desires to become a
party (on its own behalf and on behalf of the Future Lenders) to the Second
Amended and Restated Pledge Agreement dated as of March 7, 2001 (as amended or
supplemented from time to time, the "Pledge Agreement") among the Agents parties
thereto and the Collateral Agent; and
NOW, THEREFORE, IT IS AGREED:
1. Pledge Agreement. By executing and delivering this Future Agent
Supplement, the Future Agent (on its own behalf and on behalf of the Future
Lenders) hereby becomes a party to the Pledge Agreement as an Agent thereunder
with the same force and effect as if originally named therein as an Agent and,
without limiting the generality of the foregoing, expressly assumes all
obligations and liabilities of an Agent thereunder.
2. Notices. All notices and other written communications provided for
in this Future Agent Supplement shall be given as provided by the terms of the
Pledge Agreement, in the case of the Future Agent, addressed as follows, or to
such other address as the Future Agent may designate as to itself by like
notice:
[ ]
[ ]
[ ]
Attention:
---------
Fax No.:[ ]
with copies to:
[ ]
[ ]
[ ]
Attention:
---------
26
Fax No.:[ ]
3. Governing Law. This Future Agent Supplement shall be governed by,
and contained and interpreted in accordance with, the law of the State of New
York.
IN WITNESS WHEREOF, the undersigned has caused this Future Agent
Supplement to be duly executed and delivered as of the date first above written.
[FUTURE AGENT]
By:
------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Collateral Agent
By:
-------------------------------
Name:
Title:
Accepted and agreed to:
SIRIUS SATELLITE RADIO INC.
By:
------------------------------
Name:
Title:
[EACH AGENT INCLUDING
ANY PRIOR FUTURE AGENTS]