Exhibit 4.26
EXECUTION COPY
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COLLATERAL AGREEMENT
made by
SIRIUS SATELLITE RADIO INC.
in favor of
THE BANK OF NEW YORK,
as Collateral Agent
Dated as of March 7, 2001
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TABLE OF CONTENTS
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SECTION 1. DEFINED TERMS..........................................................................................1
1.1 Definitions.....................................................................................1
1.2 Other Definitional Provisions...................................................................5
SECTION 2. GRANT OF SECURITY INTEREST.............................................................................5
SECTION 3. REPRESENTATIONS AND WARRANTIES.........................................................................5
3.1 Title; No Other Liens...........................................................................5
3.2 Perfected First Priority Liens..................................................................6
3.3 Chief Executive Office..........................................................................6
3.4 Satellite Contract..............................................................................6
SECTION 4. COVENANTS..............................................................................................7
4.1 Delivery of Instruments and Chattel Paper.......................................................7
4.2 Maintenance of Insurance........................................................................7
4.3 Maintenance of Perfected Security Interest; Further Documentation...............................8
4.4 No Additional Liens.............................................................................8
4.5 Changes in Locations, Name, etc.................................................................8
4.6 Notices.........................................................................................9
4.7 Satellite Contract..............................................................................9
SECTION 5. REMEDIAL PROVISIONS....................................................................................9
5.1 Communications with Obligors; Borrower Remains Liable...........................................9
5.2 Proceeds to be Turned Over To Collateral Agent..................................................9
5.3 Application of Proceeds.........................................................................9
5.4 Code and Other Remedies........................................................................10
5.5 Waiver; Deficiency.............................................................................10
SECTION 6. THE COLLATERAL AGENT..................................................................................11
6.1 Collateral Agent's Appointment as Attorney-in-Fact, etc........................................11
6.2 Duty of Collateral Agent.......................................................................12
6.3 Execution of Financing Statements..............................................................12
6.4 Authority of Collateral Agent..................................................................13
6.5 Reliance by Collateral Agent; Indemnity Against Liabilities, etc...............................14
6.6 Resignation and Removal of the Collateral Agent................................................14
6.7 Compensation and Expenses......................................................................15
6.8 Collateral Held by Collateral Agent............................................................15
6.9 Experts and Advisers...........................................................................15
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6.10 Enforcement Expenses; Indemnification..........................................................16
SECTION 7. MISCELLANEOUS.........................................................................................16
7.1 Amendments in Writing..........................................................................16
7.2 Notices........................................................................................16
7.3 No Waiver by Course of Conduct; Cumulative Remedies............................................17
7.4 Successors and Assigns.........................................................................18
7.5 Set-Off........................................................................................18
7.6 Counterparts...................................................................................18
7.7 Severability...................................................................................18
7.8 Section Headings...............................................................................18
7.9 Integration....................................................................................18
7.10 GOVERNING LAW..................................................................................19
7.11 Submission To Jurisdiction; Waivers............................................................19
7.12 Acknowledgments................................................................................19
7.13 Releases.......................................................................................19
7.14 WAIVER OF JURY TRIAL...........................................................................20
Schedules
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Schedule 1 Filings and Other Actions Required to Perfect
Security Interest
Schedule 2 Jurisdiction of Incorporation and Location of Chief
Executive Office
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COLLATERAL AGREEMENT, dated as of March 7, 2001, made by SIRIUS
SATELLITE RADIO INC., a Delaware corporation (the "Borrower"), in favor of THE
BANK OF NEW YORK, a New York banking corporation, as collateral agent (in such
capacity, the "Collateral Agent") for the Secured Parties referred to below.
W I T N E S S E T H:
- - - - - - - - - - -
WHEREAS, pursuant to the Term Loan Agreement, dated as of June 1, 2000
(as amended, supplemented or otherwise modified from time to time, the "Term
Loan Agreement"), among the Borrower, the several banks and other financial
institutions or entities from time to time parties to the Term Loan Agreement
(the "Lenders"), Lehman Brothers Inc., as advisor, lead arranger and book
manager, Lehman Commercial Paper Inc., as syndication agent, and Lehman
Commercial Paper Inc., as administrative agent (in such capacity, the
"Administrative Agent"), the Lenders have severally agreed to make extensions of
credit to the Borrower upon the terms and subject to the conditions set forth
therein;
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their respective extensions of credit to the Borrower under the Term
Loan Agreement that the Borrower shall have executed and delivered this
Agreement to the Collateral Agent for the ratable benefit of the Secured
Parties;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Term Loan Agreement and
to induce the Lenders to make their respective extensions of credit to the
Borrower thereunder, the Borrower hereby agrees with the Collateral Agent, for
the ratable benefit of the Secured Parties, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms defined in
the Term Loan Agreement and used herein shall have the meanings given to them in
the Term Loan Agreement (provided that the Collateral Agent shall be promptly
notified of any amendment to the definition of any such terms under the Term
Loan Agreement, which terms are material to the Collateral Agent for the
performance of its obligations hereunder), and the following terms which are
defined in the Uniform Commercial Code in effect in the State of New York on the
date hereof are used herein as so defined: Certificated Security, Chattel Paper
and Instruments.
(b) The following terms shall have the following meanings:
"Agreement": this Collateral Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Approved Ground Storage Site": a ground storage site located in the
United States; (i) with respect to which location the Administrative Agent has
given at least 30 days' prior approval (which approval shall not be unreasonably
withheld, conditioned or delayed) and (ii) with respect to which the Borrower
has delivered (a) to the Collateral Agent all executed financing statements and
other documents reasonably requested by the Collateral Agent or the
Administrative Agent to obtain, in the jurisdiction relevant to such location, a
valid, perfected and first priority security interest in the Fourth Satellite to
be stored in such location and (b) to
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the Collateral Agent and the Administrative Agent such further information in
connection with such location as the Collateral Agent or the Administrative
Agent shall reasonably request in writing relating to the perfection of the
Collateral Agent's security interest in the Fourth Satellite.
"Collateral": as defined in Section 2.
"Collateral Account": any collateral account established by the
Collateral Agent as provided in Section 5.2.
"Fourth Satellite": the fourth FS-1300 spacecraft to be delivered to
the Borrower pursuant to the Satellite Contract. References to the Fourth
Satellite shall be deemed to include any spacecraft acquired or otherwise in the
possession of the Borrower or any of its Subsidiaries for the purpose of
replacing any Fourth Satellite no longer used or usable by the Borrower as a
ground spare satellite.
"Fourth Satellite Contract Rights": all right, title and interest of
the Borrower in, to and under the Satellite Contract, insofar as it relates to
the Fourth Satellite and the Borrower's rights and remedies with respect
thereto, including, without limitation, (i) all rights of the Borrower to
receive moneys due and to become due to it thereunder or in connection
therewith, (ii) all rights of the Borrower to damages arising thereunder and
(iii) all rights of the Borrower to perform and to exercise all remedies
thereunder.
"Hedge Agreement Obligations": the collective reference to all
obligations and liabilities of the Borrower or any of its Subsidiaries
(including, without limitation, interest accruing at the then applicable rate
provided in any Specified Hedge Agreement after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) to any Lender or any
affiliate of any Lender, whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, any Specified Hedge Agreement or any other
document made, delivered or given in connection therewith, in each case whether
on account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the relevant Lender or affiliate thereof that are
required to be paid by the Borrower pursuant to the terms of any Specified Hedge
Agreement).
"Hedge Agreements": as to any Person, all interest rate swaps, caps or
collar agreements or similar arrangements entered into by such Person providing
for protection against fluctuations in interest rates or currency exchange rates
or the exchange of nominal interest obligations, either generally or under
specific contingencies.
"New York UCC": the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Obligations": the collective reference to (i) the Term Loan Agreement
Obligations, (ii) the Senior Discount Note Obligations, (iii) the Senior Note
Obligations, (iv) the Hedge Agreement Obligations, but only to the extent that,
and only so long as, the Term Loan
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Agreement Obligations are secured pursuant hereto and (v) all other obligations
and liabilities of the Borrower, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, this Agreement (including,
without limitation, all fees and disbursements of counsel to the Collateral
Agent or to the Secured Parties that are required to be paid by the Borrower
pursuant to the terms of this Agreement).
"Proceeds": all "proceeds" as such term is defined in Section 9-306(1)
of the New York UCC and, in any event, shall include, without limitation, all
collections or distributions or payments with respect to the Collateral.
"Representative": the collective reference to (i) the Administrative
Agent, (ii) the Senior Discount Note Trustee and (iii) the Senior Note Trustee.
"Satellite Contract": the collective reference to the Loral Agreement
and any other agreement with respect to the construction and delivery of a
Fourth Satellite.
"Secured Debt Documents": the collective reference to (i) the Loan
Documents, (ii) the Senior Discount Note Indenture and (iii) the Senior Note
Indenture.
"Secured Parties": the collective reference to (i) the Administrative
Agent, (ii) the Lenders (and any affiliates of any Lender to which the Hedge
Agreement Obligations are owing), (iii) the Senior Discount Note Trustee, (iv)
the Senior Discount Note Holders, (v) the Senior Note Trustee and (vi) the
Senior Note Holders.
"Senior Discount Note Holders": the holders, from time to time, of
Senior Discount Notes issued pursuant to the Senior Discount Note Indenture.
"Senior Discount Note Obligations": the collective reference to the
unpaid principal of and interest on the Senior Discount Notes and all other
obligations and liabilities of the Borrower (including, without limitation,
interest accruing at the then applicable rate provided in the Senior Discount
Notes or the Senior Discount Note Indenture after the maturity of the Senior
Discount Notes and interest accruing at the then applicable rate provided in the
Senior Discount Notes or the Senior Discount Note Indenture after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
to the Senior Discount Note Trustee or any Senior Discount Note Holder, whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, the Senior Discount Notes, the Senior Discount Note Indenture or this
Agreement, or any other document made, delivered or given in connection
therewith, in each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Senior Discount Note
Trustee or to the Senior Discount Note Holders that are required to be paid by
the Borrower pursuant to the terms of any of the foregoing agreements or
instruments).
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"Senior Discount Note Trustee": The Bank of New York (as successor to
IBJ Whitehall Bank and Trust Company), in its capacity as trustee under the
Senior Discount Note Indenture.
"Senior Note Holders": the holders, from time to time, of Senior Notes
issued pursuant to the Senior Note Indenture.
"Senior Note Obligations": the collective reference to the unpaid
principal of and interest on the Senior Notes and all other obligations and
liabilities of the Borrower (including, without limitation, interest accruing at
the then applicable rate provided in the Senior Notes or the Senior Note
Indenture after the maturity of the Senior Notes and interest accruing at the
then applicable rate provided in the Senior Notes or the Senior Note Indenture
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Borrower, whether
or not a claim for post-filing or post-petition interest is allowed in such
proceeding) to the Senior Note Trustee or any Senior Note Holder, whether direct
or indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, the
Senior Notes, the Senior Note Indenture or this Agreement, or any other document
made, delivered or given in connection therewith, in each case whether on
account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Senior Note Trustee or to the Senior Note
Holders that are required to be paid by the Borrower pursuant to the terms of
any of the foregoing agreements or instruments).
"Senior Note Trustee": United States Trust Company of New York, in its
capacity as trustee under the Senior Note Indenture.
"Specified Hedge Agreement": any Hedge Agreement (a) entered into by
(i) the Borrower or any of its Subsidiaries and (ii) any Lender or any affiliate
thereof, as counterparty, and (b) which has been designated by such Lender and
the Borrower, by notice to the Collateral Agent and the Administrative Agent not
later than 90 days after the execution and delivery by the Borrower or its
Subsidiary thereof, as a Specified Hedge Agreement. The designation of any Hedge
Agreement as a Specified Hedge Agreement shall not create in favor of the Lender
or affiliate thereof that is a party thereto any rights in connection with the
management or release of any Collateral or any Obligations.
"Term Loan Agreement Obligations": the collective reference to the
unpaid principal of and interest on the Loans and all other obligations and
liabilities of the Borrower (including, without limitation, interest accruing at
the then applicable rate provided in the Term Loan Agreement after the maturity
of the Loans and interest accruing at the then applicable rate provided in the
Term Loan Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) to the Administrative Agent or any Lender,
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, the Term Loan Agreement, this Agreement or the other Loan Documents, or
any other document made, delivered or given in connection therewith, in each
case whether on
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account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Administrative Agent or to the Lenders that are
required to be paid by the Borrower pursuant to the terms of any of the
foregoing agreements).
1.2 Other Definitional Provisions. The words "hereof", "herein",
"hereto" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section and Schedule references are to this Agreement unless
otherwise specified. The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. GRANT OF SECURITY INTEREST
The Borrower hereby assigns and transfers to the Collateral
Agent, and hereby grants to the Collateral Agent, for the ratable benefit of the
Secured Parties, a security interest in all of the following property now owned
or at any time hereafter acquired by the Borrower or in which the Borrower now
has or at any time in the future may acquire any right, title or interest
(collectively, the "Collateral"), as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations:
(a) the Fourth Satellite;
(b) all Fourth Satellite Contract Rights;
(c) all books and records pertaining to the Collateral; and
(d) to the extent not otherwise included, all Proceeds and products of
any and all of the foregoing and all collateral security and guarantees given by
any Person with respect to any of the foregoing.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into the
Term Loan Agreement and to induce the Lenders to make their respective
extensions of credit to the Borrower thereunder, the Borrower hereby represents
and warrants to the Collateral Agent and each Secured Party that:
3.1 Title; No Other Liens. Except for the security interest granted to
the Collateral Agent for the ratable benefit of the Secured Parties pursuant to
this Agreement and the other Liens permitted to exist on the Collateral by the
Term Loan Agreement, the Borrower (i) owns the Fourth Satellite Contract Rights
and (ii) upon delivery to and acceptance by the Borrower pursuant to the
Satellite Contract, will own each other item of Collateral, in each case free
and clear of any and all Liens or claims of others. No financing statement or
other public notice with respect to all or any part of the Collateral is on file
or of record in any public office,
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except such as have been filed in favor of the Collateral Agent, for the ratable
benefit of the Secured Parties, pursuant to this Agreement.
3.2 Perfected First Priority Liens. The security interests granted
pursuant to this Agreement, upon completion of the filings and other actions
specified on Schedule 1 (which, in the case of all filings and other documents
referred to on said Schedule, have been delivered to the Collateral Agent in
completed and duly executed form), will constitute valid perfected security
interests in all of the Collateral in favor of the Collateral Agent, for the
ratable benefit of the Secured Parties, as collateral security for the
Obligations, enforceable in accordance with the terms hereof against all
creditors of the Borrower and any Persons purporting to purchase any Collateral
from the Borrower and are prior to all other Liens on the Collateral in
existence on the date hereof except for unrecorded Liens permitted by the Term
Loan Agreement which have priority over the Liens on the Collateral by operation
of law.
3.3 Chief Executive Office. On the date hereof, the Borrower's
jurisdiction of organization and the location of the Borrower's chief executive
office or sole place of business are specified on Schedule 2.
3.4 Satellite Contract. (a) No consent of any party (other than the
Borrower) to the Satellite Contract is required, or purports to be required, in
connection with the execution, delivery and performance of this Agreement.
(b) The Satellite Contract is in full force and effect and constitutes
a valid and legally enforceable obligation of the Borrower and, to the knowledge
of the Borrower, Space Systems/Loral, Inc., subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
(c) No consent or authorization of, filing with or other act by or in
respect of any Governmental Authority is required in connection with the
execution, delivery, performance, validity or enforceability of the Satellite
Contract by the Borrower and, to the knowledge of the Borrower, Space
Systems/Loral, Inc. other than those which have been duly obtained, made or
performed, are in full force and effect and do not subject the scope of the
Satellite Contract to any material adverse limitation, either specific or
general in nature.
(d) Neither the Borrower nor (to the best of the Borrower's knowledge)
any of the other parties to the Satellite Contract is in default in any material
respect in the performance or observance of any of the terms thereof.
(e) The right, title and interest of the Borrower in, to and under the
Satellite Contract are not subject to any material defenses, offsets,
counterclaims or claims other than claims of Space Systems/Loral, Inc. for
payment due from the Borrower under such Contract.
(f) The Borrower has delivered to the Collateral Agent a complete and
correct copy of the Satellite Contract, including all amendments, supplements
and other modifications thereto.
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(g) No amount payable to the Borrower under or in connection with the
Fourth Satellite is evidenced by any Instrument or Chattel Paper which has not
been delivered to the Collateral Agent.
SECTION 4. COVENANTS
The Borrower covenants and agrees with the Collateral Agent and the
Secured Parties that, from and after the date of this Agreement until the
Obligations shall have been paid in full, and the Commitments shall have
terminated:
4.1 Delivery of Instruments and Chattel Paper. If any amount payable
under or in connection with any of the Collateral shall be or become evidenced
by any Instrument, Certificated Security or Chattel Paper, such Instrument,
Certificated Security or Chattel Paper shall be immediately delivered to the
Collateral Agent, duly indorsed in a manner satisfactory to the Administrative
Agent, to be held as Collateral pursuant to this Agreement.
4.2 Maintenance of Insurance. (a) The Borrower will, at all times at
which it has title or risk of loss, maintain, with financially sound and
reputable companies, insurance policies insuring the Fourth Satellite against
loss by fire, explosion, theft and such other casualties as may be reasonably
satisfactory to the Administrative Agent, such policies to be in such form and
amounts and having such coverage as may be reasonably satisfactory to the
Representatives.
(b) All such insurance shall (i) provide that no cancellation, material
reduction in amount or material change in coverage thereof shall be effective
until at least 30 days after receipt by the Collateral Agent of written notice
thereof, (ii) name the Collateral Agent as insured party or loss payee, (iii) if
reasonably requested by the Administrative Agent, include a breach of warranty
clause and (iv) be reasonably satisfactory in all other respects to the
Representatives.
(c) The Borrower shall deliver to the Collateral Agent and the Secured
Parties a report of a reputable insurance broker with respect to such insurance
substantially concurrently with the delivery by the Borrower to the
Administrative Agent of its audited financial statements for each fiscal year
and such supplemental reports with respect thereto as the Collateral Agent or
any Representative may from time to time reasonably request.
4.3 Maintenance of Perfected Security Interest; Further Documentation.
(a) The Borrower shall maintain the security interest created by this Agreement
as a perfected security interest having at least the priority described in
Section 3.2 and shall defend such security interest against the claims and
demands of all Persons whomsoever.
(b) The Borrower will furnish to the Collateral Agent and the
Representatives from time to time statements and schedules further identifying
and describing the assets and property of the Borrower and such other reports in
connection with the Collateral as the Collateral Agent or the Representatives
may reasonably request, all in reasonable detail.
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(c) At any time and from time to time, upon the written request of the
Collateral Agent or the Administrative Agent, and at the sole expense of the
Borrower, the Borrower will promptly and duly execute and deliver, and have
recorded, such further instruments and documents and take such further actions
as the Collateral Agent or the Administrative Agent may reasonably request for
the purpose of obtaining or preserving the full benefits of this Agreement and
of the rights and powers herein granted, including, without limitation, (1) the
filing of any financing or continuation statements under the Uniform Commercial
Code (or other similar laws) in effect in any jurisdiction with respect to the
security interests created hereby and (2) to the extent applicable, taking any
actions necessary to enable the Collateral Agent to obtain "control" (within the
meaning of the applicable Uniform Commercial Code) with respect thereto.
4.4 No Additional Liens. The Borrower will 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 Collateral or any portion thereof, except for the pledge,
assignment and security interest created by this Agreement in favor of the
Collateral Agent. The inclusion of "Proceeds" of the 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 Collateral.
4.5 Changes in Locations, Name, etc. The Borrower will not, except upon
15 days' prior written notice to Collateral Agent and the Administrative Agent
and delivery to the Collateral Agent of all additional executed financing
statements and other documents reasonably requested by the Collateral Agent or
the Administrative Agent to maintain the validity, perfection and priority of
the security interests provided for herein:
(a) permit the Fourth Satellite to be kept at a location other than the
Approved Ground Storage Site;
(b) change its jurisdiction of organization or the location of its
chief executive office or sole place of business from that referred to in
Section 3.3; or
(c) change its name, identity or corporate structure to such an extent
that any financing statement filed by the Collateral Agent in connection with
this Agreement would become misleading.
4.6 Notices. The Borrower will advise the Collateral Agent and the
Representatives promptly, in reasonable detail, of:
(a) any Lien on any of the Collateral which would adversely affect the
ability of the Collateral Agent to exercise any of its remedies hereunder; and
(b) the occurrence of any other event which could reasonably be
expected to have a material adverse effect on the aggregate value of the
Collateral or on the security interests created hereby.
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4.7 Satellite Contract. The Borrower will perform and comply in all
material respects with all its obligations under the Satellite Contract.
SECTION 5. REMEDIAL PROVISIONS
5.1 Communications with Obligors; Borrower Remains Liable. (a) Each of
the Collateral Agent and the Administrative Agent, in its own name or in the
name of others, may at any time communicate with the parties to the Satellite
Contract to verify with them to the satisfaction of the Collateral Agent or the
Administrative Agent, as the case may be, the existence, amount and terms of
such Contract.
(b) Upon the request of the Administrative Agent at any time after the
occurrence and during the continuance of an Event of Default, the Borrower shall
notify parties to the Satellite Contract that the Satellite Contract has been
assigned to the Collateral Agent for the ratable benefit of the Secured Parties
and that any payments in respect thereof shall be made directly to the
Collateral Agent.
(c) Anything herein to the contrary notwithstanding, the Borrower shall
remain liable under the Satellite Contract to observe and perform all the
conditions and obligations to be observed and performed by it thereunder, all in
accordance with the terms of any agreement giving rise thereto. Neither the
Collateral Agent nor any Secured Party shall have any obligation or liability
under the Satellite Contract by reason of or arising out of this Agreement or
the receipt by the Collateral Agent or any Secured Party of any payment relating
thereto, nor shall the Collateral Agent or any Secured Party be obligated in any
manner to perform any of the obligations of the Borrower under or pursuant to
the Satellite Contract, to make any payment, to make any inquiry as to the
nature or the sufficiency of any payment received by it or as to the sufficiency
of any performance by any party thereunder, to present or file any claim, to
take any action to enforce any performance or to collect the payment of any
amounts which may have been assigned to it or to which it may be entitled at any
time or times.
5.2 Proceeds to be Turned Over To Collateral Agent. If an Event of
Default shall occur and be continuing, all Proceeds received by the Borrower
consisting of cash, checks and other near-cash items shall be held by the
Borrower in trust for the Collateral Agent on behalf of the Secured Parties,
segregated from other funds of the Borrower, and shall, forthwith upon receipt
by the Borrower, be turned over to the Collateral Agent in the exact form
received by the Borrower (duly indorsed by the Borrower to the Collateral Agent,
if required). All Proceeds received by the Collateral Agent hereunder shall be
held by the Collateral Agent in a Collateral Account maintained under its sole
dominion and control. All Proceeds while held by the Collateral Agent in a
Collateral Account (or by the Borrower in trust for the Collateral Agent and the
Secured Parties) shall continue to be held as collateral security for all the
Obligations and shall not constitute payment thereof until applied as provided
in Section 5.3.
5.3 Application of Proceeds. At such intervals as may be agreed upon by
the Borrower and the Collateral Agent, or, if an Event of Default shall have
occurred and be continuing, at any time at the Collateral Agent's election, the
Collateral Agent may apply all or any part of Proceeds constituting Collateral
(after the payment of any amounts payable to the Collateral Agent pursuant to
Section 6.10(a)), whether or not held in any Collateral Account, for
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the ratable benefit of the Secured Parties in payment of the Obligations in the
manner set forth in the Intercreditor Agreement. Any balance of such proceeds
remaining after the Obligations shall have been paid in full and the Commitments
shall have been terminated shall be paid over to the Borrower or to whomsoever
may be lawfully entitled to receive the same.
5.4 Code and Other Remedies. If an Event of Default shall occur and be
continuing, the Collateral Agent, on behalf of the Secured Parties, may
exercise, in addition to all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations, all rights and remedies of a secured party under
the New York UCC or any other applicable law. Without limiting the generality of
the foregoing, the Collateral Agent, without demand of performance or other
demand, presentment, protest, advertisement or notice of any kind (except any
notice required by law referred to below) to or upon the Borrower or any other
Person (all and each of which demands, defenses, advertisements and notices are
hereby waived), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, assign, give option or options to purchase, or otherwise
dispose of and deliver the Collateral or any part thereof (or contract to do any
of the foregoing), in one or more parcels at public or private sale or sales, at
any exchange, broker's board or office of the Collateral Agent or any Secured
Party or elsewhere upon such terms and conditions as it may deem advisable and
at such prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Collateral Agent or any Secured Party
shall have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to purchase the whole or
any part of the Collateral so sold, free of any right or equity of redemption in
the Borrower, which right or equity is hereby waived and released. The Borrower
further agrees, at the Collateral Agent's request, to assemble the Collateral
and make it available to the Collateral Agent at places which the Collateral
Agent shall reasonably select, whether at the Borrower's premises or elsewhere.
The Collateral Agent shall apply the net proceeds of any action taken by it
pursuant to this Section 5.4, after deducting all reasonable costs and expenses
of every kind incurred in connection therewith or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral or
the rights of the Collateral Agent and the Secured Parties hereunder, including,
without limitation, reasonable attorneys' fees and disbursements, to the ratable
payment in whole or in part of the Obligations, in the manner set forth in the
Intercreditor Agreement, and only after such application and after the payment
by the Collateral Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the New York UCC, need the
Collateral Agent account for the surplus, if any, to the Borrower. To the extent
permitted by applicable law, the Borrower waives all claims, damages and demands
it may acquire against the Collateral Agent or any Secured Party arising out of
the exercise by them of any rights hereunder. If any notice of a proposed sale
or other disposition of Collateral shall be required by law, such notice shall
be deemed reasonable and proper if given at least 10 days before such sale or
other disposition.
5.5 Waiver; Deficiency. The Borrower waives and agrees not to assert
any rights or privileges which it may acquire under Section 9-112 of the New
York UCC. The Borrower shall remain liable for any deficiency if the proceeds of
any sale or other disposition of
11
the Collateral are insufficient to pay its Obligations and the fees and
disbursements of any attorneys employed by the Collateral Agent or any Secured
Party to collect such deficiency.
SECTION 6. THE COLLATERAL AGENT
6.1 Collateral Agent's Appointment as Attorney-in-Fact, etc. (a) The
Borrower hereby irrevocably constitutes and appoints the Collateral Agent and
any officer or agent thereof, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of the Borrower and in the name of the Borrower or in its own name,
for the purpose of carrying out the terms of this Agreement, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Agreement, and,
without limiting the generality of the foregoing, the Borrower hereby gives the
Collateral Agent the power and right, on behalf of the Borrower, without notice
to or assent by the Borrower, to do any or all of the following:
(i) in the name of the Borrower or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under the
Satellite Contract or with respect to any other Collateral and file any
claim or take any other action or proceeding in any court of law or equity
as directed by the relevant Required Parties (as defined in the
Intercreditor Agreement) or as otherwise deemed appropriate by the
Collateral Agent for the purpose of collecting any and all such moneys due
under the Satellite Contract or with respect to any other Collateral
whenever payable;
(ii) pay or discharge taxes and Liens levied or placed on or threatened
against the Collateral, effect any repairs or any insurance called for by
the terms of this Agreement and pay all or any part of the premiums
therefor and the costs thereof;
(iii) execute, in connection with any sale provided for in Section 5.4,
any indorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral; and
(iv) (1) direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Collateral Agent or as the Collateral Agent
shall direct; (2) ask or demand for, collect, and receive payment of and
receipt for, any and all moneys, claims and other amounts due or to become
due at any time in respect of or arising out of any Collateral; (3) sign
and indorse any invoices, freight or express bills, bills of lading,
storage or warehouse receipts, drafts against debtors, assignments,
verifications, notices and other documents in connection with any of the
Collateral; (4) commence and prosecute any suits, actions or proceedings at
law or in equity in any court of competent jurisdiction to collect the
Collateral or any portion thereof and to enforce any other right in respect
of any Collateral; (5) defend any suit, action or proceeding brought
against the Borrower with respect to any Collateral; (6) settle, compromise
or adjust any such suit, action or proceeding and, in connection therewith,
give such discharges or releases as the Collateral Agent may deem
appropriate; and (7) generally, sell, transfer, pledge and make
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any agreement with respect to or otherwise deal with any of the Collateral
as fully and completely as though the Collateral Agent were the absolute
owner thereof for all purposes, and do, at the Collateral Agent's option
and the Borrower's expense, at any time, or from time to time, all acts and
things which are necessary or which the Collateral Agent deems necessary to
protect, preserve or realize upon the Collateral and the Collateral Agent's
and the Secured Parties' security interests therein and to effect the
intent of this Agreement, all as fully and effectively as the Borrower
might do.
Anything in this Section 6.1(a) to the contrary notwithstanding, the
Collateral Agent agrees that it will not exercise any rights under the power of
attorney provided for in this Section 6.1(a) unless an Event of Default shall
have occurred and be continuing.
(b) If the Borrower fails to perform or comply with any of its
agreements contained herein, the Collateral Agent, at its option, but without
any obligation so to do, may perform or comply, or otherwise cause performance
or compliance, with such agreement.
(c) The expenses of the Collateral Agent incurred in connection with
actions undertaken as provided in this Section 6.1, together with interest
thereon at a rate per annum equal to the rate per annum at which interest would
then be payable on past due Base Rate Loans under the Term Loan Agreement, from
the date of payment by the Collateral Agent to the date reimbursed by the
Borrower, shall be payable by the Borrower to the Collateral Agent on demand.
(d) The Borrower hereby ratifies all that said attorneys shall lawfully
do or cause to be done by virtue hereof. All powers, authorizations and agencies
contained in this Agreement are coupled with an interest and are irrevocable
until this Agreement is terminated and the security interests created hereby are
released.
6.2 Duty of Collateral Agent. The Collateral Agent's sole duty with
respect to the custody, safekeeping and physical preservation of the Collateral
in its possession, under Section 9-207 of the New York UCC or otherwise, shall
be to deal with it in the same manner as the Collateral Agent deals with similar
property for its own account. Neither the Collateral Agent, any Secured Party
nor any of their respective officers, directors, employees or agents shall be
liable for failure to demand, collect or realize upon any of the Collateral or
for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any Collateral upon the request of the Borrower or any other Person
or to take any other action whatsoever with regard to the Collateral or any part
thereof. The powers conferred on the Collateral Agent and the Secured Parties
hereunder are solely to protect the Collateral Agent's and the Secured Parties'
interests in the Collateral and shall not impose any duty upon the Collateral
Agent or any Secured Party to exercise any such powers. The Collateral Agent and
the Secured Parties shall be accountable only for amounts that they actually
receive as a result of the exercise of such powers, and neither they nor any of
their officers, directors, employees or agents shall be responsible to the
Borrower for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct.
6.3 Execution of Financing Statements. Pursuant to Section 9-402 of the
New York UCC and any other applicable law, the Borrower authorizes the
Collateral Agent to file or
13
record financing statements and other filing or recording documents or
instruments with respect to the Collateral without the signature of the Borrower
in such form and in such offices as Administrative Agent reasonably determines
appropriate to perfect the security interests of the Collateral Agent under this
Agreement. A photographic or other reproduction of this Agreement shall be
sufficient as a financing statement or other filing or recording document or
instrument for filing or recording in any jurisdiction.
6.4 Authority of Collateral Agent. (a) The Borrower acknowledges that
the rights and responsibilities of the Collateral Agent under this Agreement
with respect to any action taken by the Collateral Agent or the exercise or
non-exercise by the Collateral Agent of any option, request, judgment or other
right or remedy provided for herein or resulting or arising out of this
Agreement shall, as between the Collateral Agent and the Secured Parties, be
governed by the Intercreditor Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Collateral Agent and the Borrower, the Collateral Agent shall be conclusively
presumed to be acting as agent for the Secured Parties with full and valid
authority so to act or refrain from acting, and the Borrower shall be under no
obligation, or entitlement, to make any inquiry respecting such authority.
(b) The Collateral Agent makes no representation as to the value or
condition of the Collateral or any part thereof, as to the title of the Borrower
to the Collateral, as to the security afforded by this Agreement or any other
document, or, as to the validity, execution, enforceability, legality or
sufficiency of this Agreement, or any other document, and the Collateral Agent
shall incur no liability or responsibility in respect of any such matters. The
Collateral Agent shall not be responsible for insuring the Collateral, for the
payment of taxes, charges, assessments of liens upon the Collateral or otherwise
as to the maintenance of the Collateral, except as provided in the immediately
following sentence when the Collateral Agent has possession of the Collateral.
The Collateral Agent shall have no duty to the Borrower or the Secured Parties
as to any Collateral in its possession or control or in the possession or
control of any agent or nominee of the Collateral Agent or any income therefor
as to the preservation of rights against prior parties or any other rights
pertaining thereto, except the duty to accord such of the Collateral as may be
in its possession the same degree of care and skill as a prudent person would
exercise or use under the circumstances with his or her own property or assets
and the duty to account for monies received by it. The Collateral Agent shall
not be responsible for perfecting or continuing the perfection of any security
interest or lien granted to it hereunder or under any related document or
agreement or for filing, re-filing, recording or re-recording any instrument,
notice or other document in any public office at any time. The Collateral Agent
shall not be required to ascertain or inquire as to the performance by the
Borrower of any of the covenants or agreements contained herein. Neither the
Collateral Agent nor any officer, agent or representative thereof shall be
personally liable for any action taken or omitted to be taken by any such Person
in connection with this Agreement or any other agreement except for its or such
Person's own negligence or willful misconduct. The Collateral Agent may execute
any of the powers granted under this Agreement and perform any duty hereunder or
thereunder either directly or by or through agents or attorneys-in-fact, and
shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact selected by it if such agent or attorney-in-fact had been
selected by it with reasonable care and without negligence or willful
misconduct.
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6.5 Reliance by Collateral Agent; Indemnity Against Liabilities, etc.
(a) Whenever in the performance of its duties under this Agreement the
Collateral Agent shall deem it necessary or desirable that a matter be proved or
established with respect to the Borrower or any other Person in connection with
the taking, suffering or omitting of any action hereunder by the Collateral
Agent, such matter may be conclusively deemed to be proved or established by a
certificate purporting to be executed by an officer or director of such person,
and the Collateral Agent shall have no liability with respect to any action
taken, suffered or omitted in reliance thereon.
(b) The Collateral Agent shall be fully protected by each party hereto
in relying upon any resolution, statement, certificate, instrument, opinion,
report, notice, request, consent order or other paper or document delivered by
such party that it believes to be genuine and to have been signed or presented
by the proper party or parties. In the absence of its gross negligence or
willful misconduct or actual notice to the contrary, the Collateral Agent may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificate or opinions furnished to the
Collateral Agent in connection with this Agreement or any related documents.
(c) The Collateral Agent shall not be deemed to have actual,
constructive, direct or indirect notice or knowledge of the occurrence of any
Event of Default unless and until the Collateral Agent shall have received a
written notice, indicating that an Event of Default has occurred. The Collateral
Agent shall have no obligation whatsoever either prior to or after receiving
such a notice to inquire whether an Event of Default has, in fact, occurred and
shall be entitled to rely conclusively, and shall be fully protected in so
relying, on any notice so furnished to it.
(d) If the Collateral Agent has been requested to take any specific
action pursuant to any provision of this Agreement, the Collateral Agent shall
not be under any obligation to exercise any of the rights or powers vested in it
by this Agreement in the manner so requested unless it shall have been provided
indemnity from the Borrower satisfactory to it against the reasonable costs,
expenses (including reasonable fees and expenses of its counsel) and liabilities
that may be incurred by it in compliance with such request or direction.
(e) No provision of this Agreement or any Security Document shall
require the Collateral Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
6.6 Resignation and Removal of the Collateral Agent. (a) The Collateral
Agent may at any time, by giving 30 (thirty) days' prior written notice to the
Borrower and the Secured Parties, resign and be discharged from the
responsibilities hereby created, such resignation to become effective upon the
appointment of a successor by the consent of the Representatives and the
Required Lenders and the approval by the Borrower of such successor (which
approval will not be unreasonably withheld) and the acceptance of such
appointment by such successor.
15
(b) If no successor shall be appointed and approved pursuant to Section
6.6(a) within 60 (sixty) days after the date of any resignation, the Collateral
Agent may apply to any court of competent jurisdiction to appoint a successor to
act until a successor shall have been appointed as provided above. Any successor
Collateral Agent shall be a bank with an office in New York, New York, having a
combined capital and surplus of at least US$500,000,000 (five hundred million
United States Dollars) that is authorized to perform the function of the
Collateral Agent hereunder.
6.7 Compensation and Expenses. The Borrower agrees to pay to the
Collateral Agent from time to time such reasonable compensation as may be agreed
by the Collateral Agent and the Borrower for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust). Any reasonable
expenses incurred by the Collateral Agent, including reasonable counsel fees,
other charges and disbursements and compensation of agents, arising out of, in
any way connected with, or as a result of, the execution, delivery or
administration of this Agreement or the performance by the parties hereto of
their respective obligations hereunder or in connection with the enforcement or
protection of the rights of the Collateral Agent under this Agreement shall be
paid or reimbursed by the Borrower. The Borrower agrees to indemnify the
Collateral Agent for, and to hold it harmless against, any loss, liability or
expense incurred without gross negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of its duties
hereunder, including the costs and expense of defending itself against any claim
or liability in connection with the exercise or performance of any of its powers
or duties hereunder.
The obligations of the Borrower under this Section shall survive the
termination of this Agreement and the resignation or removal of the Collateral
Agent.
6.8 Collateral Held by Collateral Agent. The Collateral Agent shall
have no duty to act outside of the United States in respect of any Collateral
located in the jurisdiction other than the United States.
6.9 Experts and Advisers. (a) The Collateral Agent may employ or retain
such counsel, accountants, appraisers or other experts or advisers as it may
reasonably require for the purpose of determining and discharging its rights and
duties hereunder and shall not be responsible for any act or omission on the
part of any of them.
(b) The Collateral Agent may act and rely and shall be protected in
acting and relying in good faith on the opinion or advice of or information
obtained from any counsel, accountant, appraiser or other expert or adviser,
whether retained or employed by the Borrower or by the Collateral Agent, in
relation to any matter arising in the administration of the Collateral.
(c) An opinion of counsel may be based, insofar as it relates to
factual matters of which the Borrower has knowledge, upon the certificate or
opinion of or representation by an officer or officers of the Borrower unless
such counsel knows the certificate, opinion or representation upon which such
counsel's opinion may be based is erroneous, or in the exercise of reasonable
care should have known the same was erroneous.
16
6.10 Enforcement Expenses; Indemnification. (a) The Borrower agrees to
pay, or reimburse the Collateral Agent for, all its costs and expenses incurred
in enforcing or preserving any rights under this Agreement, including, without
limitation, the fees and disbursements of counsel to the Collateral Agent.
(b) The Borrower agrees to pay, and to save the Collateral Agent and
the Secured Parties harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or other
taxes which may be payable or determined to be payable with respect to any of
the Collateral or in connection with any of the transactions contemplated by
this Agreement.
(c) The Borrower agrees to pay, and to save the Collateral Agent and
the Secured Parties harmless from and against, any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time
(including, without limitation, at any time following the payment of the
Obligations) be imposed on, incurred by or asserted against the Collateral Agent
or the Secured Parties in any way relating to or arising out of this Agreement
or the transactions contemplated hereby or any action taken or omitted by the
Collateral Agent or the Secured Parties under or in connection with any of the
foregoing; provided that the Borrower shall not be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements that are found by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the Collateral Agent or such Secured Party, as applicable.
(d) The agreements in this Section shall survive repayment of the
Obligations and all other amounts payable under Secured Debt Documents and the
resignation or removal of the Collateral Agent.
SECTION 7. MISCELLANEOUS
7.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except by a
written instrument executed by each of the Borrower and the Collateral Agent,
provided that any provision of this Agreement imposing obligations on the
Borrower may be waived by the Collateral Agent in a written instrument executed
by the Collateral Agent.
7.2 Notices. All notices, requests and demands to or upon the
Collateral Agent, the Representatives or the Borrower hereunder to be effective
shall be in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered,
or three Business Days after being deposited in the mail, postage prepaid, or,
in the case of telecopy notice, when received, addressed (1) in the case of the
Borrower, the Representatives and the Collateral Agent, as follows or (2) in the
case of any party, to such other address as such party may hereafter notify to
the other parties hereto:
The Borrower: Sirius Satellite Radio Inc.
1221 Avenue of the Americas
New York, New York 10020
17
Attention: Michael Haynes
Telecopy: (212) 584-5252
Telephone: (212) 584-5152
with a copy to: Sirius Satellite Radio Inc.
1221 Avenue of the Americas
New York, New York 10020
Attention: General Counsel
Telecopy: (212) 584-5353
Telephone: (212) 584-5180
The Collateral Agent and
the Senior Discount Note
Trustee: The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee
Administration
Telecopy: (212) 815-5915
The Senior Note Trustee: United States Trust Company of New York
114 West 47th Street
New York, New York 10036
Attention: Patricia Gallagher
Telecopy: (212) 852-1626
The Administrative Agent: Lehman Commercial Paper Inc.
3 World Financial Center
New York, New York 10285
Attention: Michael O'Brien
Telecopy: (212) 526-7691
Telephone: (212) 526-0437
7.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Collateral Agent nor any Secured Party shall by any act (except by a written
instrument pursuant to Section 7.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Collateral Agent or any Secured Party, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Collateral Agent or any Secured Party of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Collateral Agent or such Secured Party would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
18
7.4 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of the Borrower and shall inure to the benefit of the
Collateral Agent and the Secured Parties and their successors and assigns;
provided that the Borrower may not assign, transfer or delegate any of its
rights or obligations under this Agreement without the prior written consent of
the Collateral Agent.
7.5 Set-Off. The Borrower hereby irrevocably authorizes the Collateral
Agent at any time and from time to time while an Event of Default shall have
occurred and be continuing, without notice to the Borrower, any such notice
being expressly waived by the Borrower, to set-off and appropriate and apply any
and all deposits (general or special, time or demand, provisional or final), in
any currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Collateral Agent to or for the
credit or the account of the Borrower, or any part thereof in such amounts as
the Collateral Agent may elect, against and on account of the obligations and
liabilities of the Borrower to the Collateral Agent hereunder and claims of
every nature and description of the Collateral Agent or the Secured Parties
against the Borrower, in any currency, whether arising hereunder, under any
Secured Debt Document or otherwise, as the Collateral Agent may elect, whether
or not the Collateral Agent or any Secured Party has made any demand for payment
and although such obligations, liabilities and claims may be contingent or
unmatured. The Collateral Agent shall notify the Borrower promptly of any such
set-off and the application made by the Collateral Agent of the proceeds
thereof, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the Collateral Agent
under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which the Collateral Agent may
have.
7.6 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
7.7 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
7.8 Section Headings. The Section headings used in this Agreement are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
7.9 Integration. This Agreement and the other Secured Debt Documents
represent the agreement of the Borrower, the Collateral Agent and the Secured
Parties with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Collateral Agent or
any Secured Party relative to subject matter hereof and thereof not expressly
set forth or referred to herein or in the other Secured Debt Documents.
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7.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
7.11 Submission To Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the Borrower at its
address set forth in Section 7.2 or at such other address of which the
Collateral Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to sue
in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.
7.12 Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Secured Debt Documents to which it is a
party;
(b) neither the Collateral Agent nor any Secured Party has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Secured Debt Documents, and
the relationship between the Borrower, on the one hand, and the Collateral Agent
and Secured Parties, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Secured Debt
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Secured Parties or among the Borrower and the Secured Parties.
7.13 Releases. (a) At such time as the Term Loan Agreement Obligations
shall have been paid in full and the Commitments have been terminated, the
Collateral shall be
20
released from the Liens created hereby, and this Agreement and all obligations
(other than those expressly stated to survive such termination) of the
Collateral Agent and the Borrower hereunder shall terminate, all without
delivery of any instrument or performance of any act by any party, and all
rights to the Collateral shall revert to the Borrower. At the request and sole
expense of the Borrower following any such termination, the Collateral Agent
shall deliver to the Borrower any Collateral held by the Collateral Agent
hereunder, and execute and deliver to the Borrower such documents as the
Borrower shall reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by the Borrower in a transaction permitted by the Term Loan
Agreement, then the Collateral Agent, at the request and sole expense of the
Borrower, shall execute and deliver to the Borrower all releases or other
documents reasonably necessary or desirable for the release of the Liens created
hereby on such Collateral.
7.14 WAIVER OF JURY TRIAL. THE BORROWER AND, BY ACCEPTANCE OF THE
BENEFITS HEREOF, THE COLLATERAL AGENT AND EACH SECURED PARTY, HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
IN WITNESS WHEREOF, each of the undersigned has caused this Collateral
Agreement to be duly executed and delivered as of the date first above written.
SIRIUS SATELLITE RADIO INC.
By: /s/ Patrick L. Donnelly
-----------------------
Name: Patrick L. Donnelly
Title: Senior Vice President
Acknowledged and Agreed
As of the date first written above,
THE BANK OF NEW YORK, as Collateral
Agent.
By: /s/ Michael C. Daly
------------------------------
Name: Michael C. Daly
Title: Assistant Vice President
Schedule 1
FILINGS AND OTHER ACTIONS
REQUIRED TO PERFECT SECURITY INTERESTS
Uniform Commercial Code Filings
Secretary of State, New York
County Clerk, New York County, New York
Secretary of State, California
Secretary of State, Delaware
Appropriate Uniform Commercial Code filings in the jurisdiction where the
Approved Ground Storage Site is located
Other Actions
Such other actions as may be required to perfect the security interest of the
Collateral Agent, for the ratable benefit of the Secured Parties, in the Fourth
Satellite in the jurisdiction where the Approved Ground Storage Site is located.
Schedule 2
JURISDICTION OF ORGANIZATION AND LOCATION OF CHIEF EXECUTIVE OFFICE
Location of Chief
Jurisdiction of Organization Executive Office
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Sirius Satellite Radio Inc. Delaware 1221 Avenue of the Americas,
New York, NY 10020