TERM LOAN GUARANTEE AND COLLATERAL AGREEMENT

Exhibit 10.27

EXECUTION COPY

 

TERM LOAN GUARANTEE AND COLLATERAL AGREEMENT

dated as of

February 17, 2009,

among

SIRIUS XM RADIO INC.,

ITS SUBSIDIARIES IDENTIFIED HEREIN

and

LIBERTY MEDIA CORPORATION,

as Collateral Agent

 

TABLE OF CONTENTS

 

Schedules

 

Exhibits

 

TERM LOAN GUARANTEE AND COLLATERAL AGREEMENT dated as of February 17, 2009, among SIRIUS XM RADIO INC., a Delaware corporation (the “ Borrower ”), the subsidiaries of the Borrower from time to time party hereto and LIBERTY MEDIA CORPORATION (“ LMC ”), as Collateral Agent.

Reference is made to the Term Credit Agreement dated as of February 17, 2009 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among the Borrower, the Lenders from time to time party thereto and LMC, as Administrative Agent and Collateral Agent. The Term Loan Lenders have agreed to extend credit to the Borrower subject to the terms and conditions set forth in the Credit Agreement. The obligations of the Lenders to extend such credit are conditioned upon, among other things, the execution and delivery of this Agreement. The Subsidiary Guarantors are Affiliates of the Borrower, will derive substantial benefits from the extension of credit to the Borrower pursuant to the Credit Agreement and are willing to execute and deliver this Agreement in order to induce the Term Loan Lenders to extend such credit. Accordingly, the parties hereto agree as follows:

ARTICLE I

Definitions

SECTION 1.01. Credit Agreement . (a) Capitalized terms used in this Agreement (including the preamble hereto) and not otherwise defined herein have the meanings specified in the Credit Agreement. All terms used in this Agreement and not defined herein or in the Credit Agreement have the meanings specified in Article 8 or 9 of the New York UCC (as defined herein).

(b) The rules of construction specified in Section 1.02 of the Credit Agreement also apply to this Agreement.

SECTION 1.02. Other Defined Terms. As used in this Agreement, the following terms have the meanings specified below:

“ Accounts Receivable ” means any right to payment of a monetary obligation from customers of the Borrower or any of its Subsidiaries, earned by the Borrower or any of its Subsidiaries by the performance of services rendered by it in the ordinary course of business.

“ Account Debtor ” means any Person who is or who may become obligated to any Loan Party under, with respect to or on account of an Account.

“ Article 9 Collateral ” has the meaning assigned to such term in Section 4.01.

“ Borrower ” has the meaning assigned to such term in the preliminary statement of this Agreement.

“ Claiming Party ” has the meaning assigned to such term in Section 6.02.

“ Collateral ” means Article 9 Collateral and Pledged Collateral.

 

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“ Contributing Party ” has the meaning assigned to such term in Section 6.02.

“ Copyright License ” means any written agreement, now or hereafter in effect, granting any right to any third party under any copyright now or hereafter owned by any Loan Party or that such Loan Party otherwise has the right to license, or granting any right to any Loan Party under any copyright now or hereafter owned by any third party, and all rights of such Loan Party under any such agreement.

“ Copyrights ” means all of the following now owned or hereafter acquired by any Loan Party: (a) all copyright rights in any work subject to the copyright laws of the United States or any other country, whether as author, assignee, transferee or otherwise, and (b) all registrations and applications for registration of any such copyright in the United States or any other country, including registrations, supplemental registrations and pending applications for registration in the United States Copyright Office, including those listed on Schedule III.

“ Credit Agreement ” has the meaning assigned to such term in the preliminary statement of this Agreement.

“ Equity Interests ” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.

“ Excluded Equity Interests ” has the meaning assigned to such term in Section 3.01.

“ Excluded Inventory ” means finished goods, chip sets and other raw material components used in manufacturing radios.

“ Excluded Satellite Collateral ” means (a) so long as the Loral Credit Agreement is in effect, the “Collateral”, as defined thereunder on the date hereof, and (b) so long as any Replacement Satellite Vendor Indebtedness of the Borrower or any Restricted Subsidiary owed to a Satellite Vendor and incurred in accordance with the Credit Agreement to finance the construction or purchase by the Borrower or a Restricted Subsidiary of a “replacement satellite” (as defined in the definition of Replacement Satellite Vender Indebtedness) is outstanding, (i) the replacement satellite being financed thereunder (including any work-in-progress thereof), (ii) any General Intangibles arising under any contract or agreement for the construction or purchase of such Satellite, to the extent such General Intangibles are excluded from the Article 9 Collateral pursuant to clause (G) of the first proviso to Section 4.01(a), and (iii) any Proceeds of the foregoing, in each case if and for so long as the grant of a security interest therein to secure the Term Loan Obligations shall constitute or result in a breach or termination pursuant to the terms of, or a default under, the Loral Credit Agreement or the agreements governing or evidencing such other Replacement Satellite Vender Indebtedness, as applicable; provided that such security interest shall attach immediately at such time as the condition causing such breach, termination or default shall cease to be applicable and, to the extent severable, shall attach immediately to any portion of such “Collateral”, Satellite, General Intangibles or the Proceeds thereof that does not result in any of the consequences specified in this definition.

 

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“ Federal Securities Laws ” has the meaning assigned to such term in Section 5.04.

“ General Intangibles ” means all choses in action and causes of action and all other intangible personal property of every kind and nature (other than Accounts) now owned or hereafter acquired by any Loan Party, including corporate or other business records, indemnification claims, contract rights (including rights under leases, whether entered into as lessor or lessee, Hedging Agreements and other agreements), Intellectual Property, goodwill, registrations, franchises, tax refund claims and any letter of credit, guarantee, claim, security interest or other security held by or granted to any Loan Party to secure or support payment by an Account Debtor of any of the Accounts.

“ Intellectual Property ” means all intellectual property of every kind and nature now owned or hereafter acquired by any Loan Party, including inventions, designs, Patents, Copyrights, Licenses, Trademarks, trade secrets, confidential or proprietary technical and business information, know-how, show-how or other data or information, software and databases and all embodiments or fixations thereof and related documentation, registrations and franchises, and all additions, improvements and accessions to, and books and records describing or used in connection with, any of the foregoing.

“ License ” means any Patent License, Trademark License, Copyright License or other license or sublicense agreement relating to intellectual property to which any Loan Party is a party, including those listed on Schedule III.

“ LMC ” has the meaning assigned to such term in the preliminary statement of this Agreement.

“ Loan Parties ” means the Borrower and the Subsidiary Guarantors.

“ MSSFI ” means Morgan Stanley Senior Funding, Inc., as Administrative Agent and Collateral Agent under the MSSFI Credit Agreement.

“ MSSFI Collateral Agreement ” means that certain Guarantee and Collateral Agreement dated as of June 20, 2007 among MSSFI, the Borrower and the Subsidiary Guarantors.

“ MSSFI Credit Agreement ” means that certain Term Credit Agreement dated as of June 20, 2007 among MSSFI, the Borrower and the Subsidiary Guarantors, without giving effect to any amendments, restatements or other modifications thereof.

“ New York UCC ” means the Uniform Commercial Code as from time to time in effect in the State of New York.

“ Patent License ” means any written agreement, now or hereafter in effect, granting to any third party any right to make, use or sell any invention on which a patent, now or hereafter owned by any Loan Party or that any Loan Party otherwise has the right to license, is in existence, or granting to any Loan Party any right to make, use or sell any invention on which a patent, now or hereafter owned by any third party, is in existence, and all rights of any Loan Party under any such agreement.

 

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“ Patents ” means all of the following now owned or hereafter acquired by any Loan Party: (a) all letters patent of the United States or the equivalent thereof in any other country, all registrations and recordings thereof, and all applications for letters patent of the United States or the equivalent thereof in any other country, including registrations, recordings and pending applications in the United States Patent and Trademark Office or any similar offices in any other country, including those listed on Schedule III, and (b) all reissues, continuations, divisions, continuations-in-part, renewals or extensions thereof, and the inventions disclosed or claimed therein, including the right to make, use and/or sell the inventions disclosed or claimed therein.

“ Pledged Collateral ” has the meaning assigned to such term in Section 3.01.

“ Pledged Debt Securities ” has the meaning assigned to such term in Section 3.01.

“ Pledged Equity Interests ” has the meaning assigned to such term in Section 3.01.

“ Pledged Securities ” means any promissory notes, stock certificates or other securities now or hereafter included in the Pledged Collateral, including all certificates, instruments or other documents representing or evidencing any Pledged Collateral.

“ Purchase Money Obligations ” means (a) the due and punctual payment by the Borrower of (i) the principal of and premium, if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Purchase Money Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, and (ii) all other monetary obligations of the Borrower to any of the Purchase Money Lenders under the Credit Agreement or any other Loan Document, including obligations to pay fees, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), and (b) the due and punctual payment or performance of all other obligations of any Loan Party to any Purchase Money Lender under or pursuant to this Agreement or any other Loan Document

“ Satellite Codes ” has the meaning assigned to such term in Section 4.03(f).

“ Satellite Vendor ” means, with respect to any satellite, the prime contractor and manufacturer of such satellite.

“ Security Interest ” has the meaning assigned to such term in Section 4.01.

“ Subsidiary Guarantors ” means (a) the Subsidiaries identified on Schedule I and (b) each other Subsidiary that becomes a party to this Agreement as a Subsidiary Guarantor after the Effective Date.

“ Term Loan Obligations ” means all Obligations other than the Purchase Money Obligations.

 

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“ Term Loan Lenders ” means the Lenders having Term Loans (or, prior to the borrowings under the Credit Agreement, Term Loan Commitments).

“ Term Loan Secured Parties ” means (a) the Term Loan Lenders (b) the Administrative Agent, (c) the Collateral Agent, (d) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document, (e) each other Person to whom any of the Term Loan Obligations is owed and (f) the permitted successors and assigns of each of the foregoing.

“ Trademark License ” means any written agreement, now or hereafter in effect, granting to any third party any right to use any trademark now or hereafter owned by any Loan Party or that any Loan Party otherwise has the right to license, or granting to any Loan Party any right to use any trademark now or hereafter owned by any third party, and all rights of any Loan Party under any such agreement.

“ Trademarks ” means all of the following now owned or hereafter acquired by any Loan Party: (a) all trademarks, service marks, trade names, corporate names, company names, business names, fictitious business names, trade styles, trade dress, logos, other source or business identifiers, designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all registration and recording applications filed in connection therewith, including registrations and registration applications in the United States Patent and Trademark Office or any similar offices in any State of the United States or any other country or any political subdivision thereof, and all extensions or renewals thereof, including those listed on Schedule III, (b) all goodwill associated therewith or symbolized thereby and (c) all other assets, rights and interests that uniquely reflect or embody such goodwill.

ARTICLE II

Guarantee

SECTION 2.01. Guarantee. (a) Each Subsidiary Guarantor unconditionally guarantees, jointly with the other Subsidiary Guarantors and severally, as a primary obligor and not merely as a surety, the due and punctual payment of the Term Loan Obligations. Each Subsidiary Guarantor further agrees that the Term Loan Obligations may be extended, increased or renewed, in whole or in part, or amended or modified without notice to or further assent from it, and that it will remain bound upon its guarantee notwithstanding any extension, increase or renewal, or amendment or modification, of any Term Loan Obligation. Each Subsidiary Guarantor does hereby (i) waive notice of acceptance of this guarantee; (ii) waive any notices or demands that are not required by this Agreement or the Credit Agreement, as well as any other notices or demands that may otherwise be imposed by law; (iii) waive any and all rights that such Subsidiary Guarantor may have under any anti deficiency statute or similar protections; (iv) agree not to assert any defense, right of set off or other claim which such Subsidiary Guarantor may have against the Borrower; and (v) waive presentment, demand for performance, notice of nonperformance or dishonor, protest and notice of protest, promptness, diligence in collection and any and all formalities which otherwise might be legally required to charge such Subsidiary Guarantor with liability.

 

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(b) Without limiting the generality of the foregoing, each Subsidiary Guarantor’s liability shall be extended to all amounts that constitute part of the Term Loan Obligations and would be owed by any other Loan Party to any Agent or Term Loan Lender under or in respect of the 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 such other Loan Party.

(c) Each Subsidiary Guarantor, and by its acceptance of this guarantee, each Agent and each Term Loan Lender, hereby confirms that it is the intention of all such Persons that this guarantee and the Term Loan Obligations of each Subsidiary Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of Title 11 U.S. Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this guarantee and the Term Loan Obligations of each Subsidiary Guarantor hereunder. To effectuate the foregoing intention, the Collateral Agent, on behalf of the Term Loan Lenders, and the Subsidiary Guarantors hereby irrevocably agree that the Term Loan Obligations of each Subsidiary Guarantor under this guarantee at any time shall be limited to the maximum amount as will result in the Term Loan Obligations of such Subsidiary Guarantor under this guarantee not constituting a fraudulent conveyance or transfer.

SECTION 2.02. Guarantee of Payment . Each Subsidiary Guarantor further agrees that its guarantee hereunder constitutes a guarantee of payment when due and not of collection, and waives any right to require that any resort be had by the Collateral Agent or any other Secured Party to any security held for the payment of the Term Loan Obligations or to any balance of any deposit account or credit on the books of the Collateral Agent or any other Secured Party in favor of the Borrower or any other Person.

SECTION 2.03. No Limitations . (a) Except for termination of a Subsidiary Guarantor’s obligations hereunder as expressly provided in Section 7.13, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise of any of the Term Loan Obligations, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Term Loan Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor hereunder shall not be discharged or impaired or otherwise affected by (i) the failure of the Collateral Agent or any other Term Loan Secured Party to assert any claim or demand or to enforce any right or remedy under the provisions of any Loan Document or otherwise; (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document or any other agreement, including with respect to any other Subsidiary Guarantor under this Agreement; (iii) the release of, or any impairment of or failure to perfect any Lien on or security interest in, any security held by the Collateral Agent or any other Term Loan Secured Party for the Term Loan Obligations or any of them; (iv) any default, failure or delay, willful or otherwise, in the performance of the Term Loan Obligations; or (v) any other act or omission that may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or otherwise operate as a discharge of any Subsidiary Guarantor as a matter of law or equity (other than the indefeasible payment in full in cash of all the Term Loan Obligations). Each Subsidiary Guarantor expressly authorizes the Secured Parties to take and hold security for the payment and performance of the Term Loan Obligations, to exchange, waive or release any or all such

 

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security (with or without consideration), to enforce or apply such security and direct the order and manner of any sale thereof in their sole discretion or to release or substitute any one or more other Subsidiary Guarantors or obligors upon or in respect of the Term Loan Obligations, all without affecting the obligations of any Subsidiary Guarantor hereunder.

(b) To the fullest extent permitted by applicable law, each Subsidiary Guarantor waives any defense based on or arising out of any defense of the Borrower or any other Subsidiary Guarantor or the unenforceability of the Term Loan Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Borrower or any other Subsidiary Guarantor, other than the indefeasible payment in full in cash of all the Term Loan Obligations. The Collateral Agent and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Term Loan Obligations, make any other accommodation with the Borrower or any Subsidiary Guarantor or exercise any other right or remedy available to them against the Borrower or any Subsidiary Guarantor, without affecting or impairing in any way the liability of any Subsidiary Guarantor hereunder except to the extent the Term Loan Obligations have been fully and indefeasibly paid in full in cash. To the fullest extent permitted by applicable law, each Subsidiary Guarantor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Subsidiary Guarantor against the Borrower or any other Subsidiary Guarantor, as the case may be, or any security. Each Subsidiary Guarantor acknowledges that it will receive substantial direct benefits from the financing arrangements contemplated by the Loan Documents and that the waivers set forth in this Section 2.03 are knowingly made in contemplation of such benefits.

SECTION 2.04. Reinstatement . Each Subsidiary Guarantor agrees that its guarantee hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Term Loan Obligation is rescinded or must otherwise be restored by the Collateral Agent or any other Term Loan Secured Party upon the bankruptcy or reorganization of the Borrower, any Subsidiary Guarantor or otherwise.

SECTION 2.05. Agreement to Pay; Subrogation . In furtherance of the foregoing and not in limitation of any other right that the Collateral Agent or any other Term Loan Secured Party has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Borrower or any Subsidiary Guarantor to pay any Term Loan Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, each Subsidiary Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the Collateral Agent for distribution to the applicable Term Loan Secured Parties in cash the amount of such unpaid Term Loan Obligation. Upon payment by any Subsidiary Guarantor of any sums to the Collateral Agent as provided above, all rights of such Subsidiary Guarantor against the Borrower or any other Subsidiary Guarantor arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subject to Article VI.

 

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SECTION 2.06. Information . Each Subsidiary Guarantor assumes all responsibility for being and keeping itself informed of the Borrower’s and each other Subsidiary Guarantor’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Term Loan Obligations and the nature, scope and extent of the risks that such Subsidiary Guarantor assumes and incurs hereunder, and agrees that none of the Collateral Agent or the other Term Loan Secured Parties will have any duty to advise such Subsidiary Guarantor of information known to it or any of them regarding such circumstances or risks.

ARTICLE III

Pledge of Securities

SECTION 3.01. Pledge . As security for the payment in full of the Term Loan Obligations, each Loan Party hereby pledges to the Collateral Agent, its permitted successors and assigns, for the benefit of the Term Loan Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Term Loan Secured Parties, a security interest in, all of such Loan Party’s right, title and interest in, to and under (a)(i) the shares of capital stock and other Equity Interests owned by it on the date hereof (including all such shares and other Equity Interests listed on Schedule II), (ii) any other Equity Interests obtained in the future by such Loan Party and (iii) the certificates representing all such Equity Interests (all the foregoing being called the “ Pledged Equity Interests ”); provided that the Pledged Equity Interests shall not include more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary (the Equity Interests so excluded being called the “ Excluded Equity Interests ”); (b)(i) the debt securities owned by such Loan Party on the date hereof (including all such debt securities listed on Schedule II), (ii) any debt securities in the future issued to such Loan Party and (iii) the promissory notes and any other instruments evidencing such debt securities (all the foregoing being called the “ Pledged Debt Securities ”); provided that the Pledged Debt Securities shall not include Temporary Cash Investments; (c) all other property that may be delivered to and held by the Collateral Agent pursuant to the terms of this Section 3.01; (d) subject to Section 3.06, all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of, in exchange for or upon the conversion of, and all other Proceeds received in respect of, the securities referred to in clauses (a) and (b) above; (e) subject to Section 3.06, all rights and privileges of such Loan Party with respect to the securities and other property referred to in clauses (a), (b), (c) and (d) above; and (f) all Proceeds of any of the foregoing (the items referred to in clauses (a) through (f) above being collectively referred to as the “ Pledged Collateral ”).

TO HAVE AND TO HOLD the Pledged Collateral, together with all right, title, interest, powers, privileges and preferences pertaining or incidental thereto, unto the Collateral Agent, its successors and assigns, for the benefit of the Term Loan Secured Parties, forever; subject , however , to the terms, covenants and conditions hereinafter set forth.

SECTION 3.02. Delivery of the Pledged Collateral . (a) Each Loan Party agrees promptly to deliver or cause to be delivered to the Collateral Agent any and all Pledged Securities except to the extent that such Pledged Securities are required to be delivered to MSSFI under the MSSFI Collateral Agreement.

 

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(b) Upon delivery to the Collateral Agent, (i) all Pledged Securities shall be accompanied by undated stock powers duly executed in blank or other undated instruments of transfer satisfactory to the Collateral Agent and duly executed in blank and by such other instruments and documents as the Collateral Agent may reasonably request and (ii) all other property comprising part of the Pledged Collateral shall be accompanied by proper instruments of assignment duly executed by the applicable Loan Party and such other instruments or documents as the Collateral Agent may reasonably request. Each delivery of Pledged Securities shall be accompanied by a schedule describing such securities, which schedule shall be attached hereto as a supplement to Schedule II and made a part hereof; provided that failure to attach any such schedule hereto shall not affect the validity of such pledge of such Pledged Securities.

SECTION 3.03. Representations, Warranties and Covenants . The Loan Parties jointly and severally represent, warrant and covenant to and with the Collateral Agent, for the benefit of the Term Loan Secured Parties, that:

(a) Schedule II correctly sets forth the percentage of the issued and outstanding units of each class of the Equity Interests of the issuer thereof represented by the Pledged Equity Interests and includes all Equity Interests, debt securities and promissory notes required to be pledged hereunder in order to satisfy the Collateral and Guarantee Requirement;

(b) the Pledged Equity Interests and Pledged Debt Securities have been duly and validly authorized and issued by the issuers thereof and (i) in the case of Pledged Equity Interests (other than interests in any limited liability company), are fully paid and nonassessable and (ii) in the case of Pledged Debt Securities, are legal, valid and binding obligations of the issuers thereof, and there exists no defense, offset or counterclaim to any obligation of the maker or issuer of any Pledged Debt Securities;

(c) except for restrictions and limitations imposed by the Loan Documents, the Communications Act of 1934, as amended, and the regulations promulgated thereunder or securities laws generally, the Pledged Collateral is and will continue to be freely transferable and assignable, and none of the Pledged Collateral is or will be subject to any option, right of first refusal, shareholders agreement or charter or by-law provisions that might prohibit, impair or delay the pledge of such Pledged Collateral hereunder, the sale or disposition thereof pursuant hereto or the exercise by the Collateral Agent of rights and remedies hereunder;

(d) each Loan Party has the power and authority to pledge the Pledged Collateral pledged by it hereunder in the manner hereby done or contemplated;

(e) no consent or approval of any Governmental Authority, any securities exchange or any other Person was or is necessary to the validity of the pledge effected hereby (other than such as have been obtained and are in full force and effect);

(f) by virtue of the execution and delivery by the Loan Parties of this Agreement, when any Pledged Securities are delivered to the Collateral Agent in accordance with this Agreement, the Collateral Agent will obtain, for the benefit of the Term Loan Secured Parties, a legal, valid and perfected first priority lien upon and security interest in such Pledged Securities as security for the payment of the Term Loan Obligations; and

 

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(g) each pledge effected hereby is effective to vest in the Collateral Agent, for the benefit of the Term Loan Secured Parties, the rights of the Collateral Agent in the Pledged Collateral as set forth herein.

SECTION 3.04. Certification of Limited Liability Company and Limited Partnership Interests . Each of the Loan Parties (a) represents and warrants that none of the interests in any limited liability company or limited partnership controlled by such Loan Party and pledged hereunder are represented by a certificate or are “securities” within the meaning of Article 8 of the New York UCC and (b) covenants and agrees that it shall at no time elect to treat any such interest as a “security” within the meaning of Article 8 of the New York UCC or issue any certificate representing such interest unless, in each case, it provides prior written notice to the Collateral Agent of such election and immediately pledges and, except to the extent that such Pledged Securities are required to be delivered to MSSFI under the MSSFI Collateral Agreement, delivers any such certificate to the Collateral Agent pursuant to the terms hereof.

SECTION 3.05. Registration in Nominee Name; Denominations . At any time that the Pledged Securities are not required to be delivered to MSSFI under the MSSFI Collateral Agreement, the Collateral Agent, on behalf of the Term Loan Secured Parties, shall have the right (in its sole and absolute discretion) to hold the Pledged Securities in its own name as pledgee, the name of its nominee (as pledgee or as sub-agent) or the name of the applicable Loan Party, endorsed or assigned in blank or in favor of the Collateral Agent. Each Loan Party will promptly give to the Collateral Agent copies of any notices or other communications received by it with respect to Pledged Securities registered in the name of such Loan Party. Upon the occurrence and during the continuance of an Event of Default at any time that the Pledged Securities are not required to be delivered to MSSFI under the MSSFI Collateral Agreement, the Collateral Agent shall at all times have the right to exchange the certificates representing Pledged Securities for certificates of smaller or larger denominations for any purpose consistent with this Agreement.

SECTION 3.06. Voting Rights; Dividends and Interest . (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have notified the Loan Parties that their rights under this Section 3.06 are being suspended:

(i) Each Loan Party shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Securities or any part thereof for any purpose consistent with the terms of this Agreement, the Credit Agreement and the other Loan Documents; provided that such rights and powers shall not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Securities or the rights and remedies of any of the Collateral Agent or the other Term Loan Secured Parties under this Agreement or the Credit Agreement or any other Loan Document or the ability of the Term Loan Secured Parties to exercise the same.

(ii) The Collateral Agent shall execute and deliver to each Loan Party, or cause to be executed and delivered to such Loan Party, all such proxies, powers of attorney and other instruments as such Loan Party may reasonably request for the purpose of enabling such Loan Party to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) above.

 

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(iii) Each Loan Party shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Securities to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Credit Agreement, the other Loan Documents and applicable laws; provided that any noncash dividends, interest, principal or other distributions that would constitute Pledged Equity Interests or Pledged Debt Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise, shall be and become part of the Pledged Collateral, and, if received by any Loan Party, shall not be commingled by such Loan Party with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Collateral Agent and the other Term Loan Secured Parties and shall be forthwith delivered to the Collateral Agent in the same form as so received (with any necessary endorsements, stock powers and other instruments of transfer).

(b) Upon the occurrence and during the continuance of an Event of Default, after the Collateral Agent shall have notified the Loan Parties of the suspension of their rights under paragraph (a)(iii) of this Section 3.06, then all rights of any Loan Party to dividends, interest, principal or other distributions that such Loan Party is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.06 shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions to the extent such dividends, interest, principal or other distributions are not required to be delivered to MSSFI under the MSSFI Collateral Agreement at such time. All dividends, interest, principal or other distributions received by any Loan Party contrary to the provisions of this Section 3.06 shall be held in trust for the benefit of the Collateral Agent and the other Term Loan Secured Parties, shall be segregated from other property or funds of such Loan Party and shall be forthwith delivered to the Collateral Agent upon demand in the same form as so received (with any necessary endorsement). Any and all money and other property paid over to or received by the Collateral Agent pursuant to the provisions of this paragraph (b) shall be retained by the Collateral Agent in an account to be established by the Collateral Agent upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02. After all Events of Default have been cured or waived, and the Borrower has delivered to the Collateral Agent a certificate to that effect, the Collateral Agent shall promptly repay to each Loan Party (without interest) all dividends, interest, principal or other distributions that such Loan Party would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.06 and that remain in such account.

(c) Upon the occurrence and during the continuance of an Event of Default, after the Collateral Agent shall have notified the Loan Parties of the suspension of their rights under paragraph (a)(i) of this Section 3.06, then all rights of any Loan Party to exercise the voting and

 

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consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.06, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.06, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers, subject to any rights of MSSFI to exercise such rights and powers pursuant to the MSSFI Collateral Agreement; provided that, unless otherwise directed by the Required Lenders, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Loan Parties to exercise such rights. After all Events of Default have been cured or waived, as the case may be, and the Borrower has delivered to the Collateral Agent a certificate to that effect, all rights vested in the Collateral Agent pursuant to this paragraph shall cease, and the Loan Parties shall have the voting and consensual rights and powers they would otherwise be entitled to exercise pursuant to paragraph (a)(i) of this Section 3.06.

(d) Any notice given by the Collateral Agent to the Loan Parties suspending their rights under paragraph (a) of this Section 3.06 (i) may be given by telephone if promptly confirmed in writing, (ii) may be given to one or more of the Loan Parties at the same or different times and (iii) may suspend the rights of the Loan Parties under paragraph (a)(i) or paragraph (a)(iii) in part without suspending all such rights (as specified by the Collateral Agent in its sole and absolute discretion) and without waiving or otherwise affecting the Collateral Agent’s rights to give additional notices from time to time suspending other rights so long as an Event of Default has occurred and is continuing.

ARTICLE IV

Security Interests in Personal Property

SECTION 4.01. Security Interest . (a) As security for the payment in full of the Term Loan Obligations, each Loan Party hereby pledges to the Collateral Agent, its permitted successors and assigns, for the benefit of the Term Loan Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Term Loan Secured Parties, a security interest (the “ Security Interest ”) in, all right, title or interest in or to any and all of the following assets and properties now owned or at any time hereafter acquired by such Loan Party or in which such Loan Party now has or at any time in the future may acquire any right, title or interest (collectively, the “ Article 9 Collateral ”):

(i) all Accounts;

(ii) all Chattel Paper;

(iii) all Documents;

(iv) all Equipment (including (A) the Satellites (including the Satellites commonly referred to as FM-1, FM-2, FM-3 and FM-4) and associated equipment (including all ground segment equipment for tracking, telemetry, control and monitoring of the Satellites located at any TT&C Station) and (B) all software embedded therein and used for tracking, telemetry, control and monitoring of the Satellites located at any TT&C Station);

 

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(v) all Goods, including Fixtures;

(vi) all Instruments;

(vii) all Investment Property;

(viii) all Software and all other Intellectual Property;

(ix) all rights under or relating to the FCC Licenses, subject to the exclusion in clause (F) of the proviso below;

(x) all other General Intangibles (including any agreements relating to the Satellites or associated equipment referred to in clause (a)(iv) above (including any agreement for the construction or purchase of any Satellite, any agreement relating to the tracking, telemetry, control and monitoring of any Satellite, all rights to the geo