SECURITY AND PLEDGE AGREEMENT
Exhibit 10.2
THIS SECURITY AND PLEDGE AGREEMENT (this “Agreement”) is entered into as of June 7, 2011 among ORBITAL SCIENCES CORPORATION, a Delaware corporation (the “Borrower”), the other parties identified as “Obligors” on the signature pages hereto and such other parties that may become Obligors hereunder after the date hereof (together with the Borrower, individually an “Obligor”, and collectively the “Obligors”) and XXXXX FARGO BANK, NATIONAL ASSOCIATION, in its capacity as administrative agent (in such capacity, the “Administrative Agent”) for the holders of the Secured Obligations (defined below).
(a) Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms in the Credit Agreement.
(b) The following terms shall have the meanings set forth in the UCC (defined below): Accession, Account, Adverse Claim, As-Extracted Collateral, Chattel Paper, Commercial Tort Claim, Consumer Goods, Deposit Account, Document, Electronic Chattel Paper, Equipment, Farm Products, Financial Asset, Fixtures, General Intangible, Goods, Instrument, Inventory, Investment Company Security, Investment Property, Letter-of-Credit Right, Manufactured Home, Money, Proceeds, Securities Account, Securities Intermediary, Security Entitlement, Security, Software, Supporting Obligation and Tangible Chattel Paper.
(c) In addition, the following terms shall have the meanings set forth below:
“Administrative Agent” has the meaning provided in the introductory paragraph hereof.
“Collateral” has the meaning provided in Section 2 hereof.
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“Control” has the meaning set forth in Article 8 or, if applicable, in Section 9-104, 9-105, 9-106 or 9-107 of Article 9 of the UCC.
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“Copyright License” means any written agreement, naming any Obligor as licensor or licensee, granting any right under any Copyright.
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“Copyrights” means (i) all copyrights registered in the United States or any other country in all Works, now existing or hereafter created or acquired, all registrations and recordings
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thereof, and all applications in connection therewith, including, without limitation, registrations, recordings and applications in the United States Copyright Office or in any similar office or agency of the United States, any state thereof or any other country or political subdivision thereof, or otherwise, and (ii) all renewals thereof.
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“Excluded Pledged Equity” any Capital Stock of a Foreign Subsidiary entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in excess of sixty-six percent (66%) (or such greater percentage that, due to a change in an Applicable Law after the date hereof, (A) could not reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for United States federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s United States parent and (B) could not reasonably be expected to cause any material adverse tax consequences) of all issued and outstanding Capital Stock of such Foreign Subsidiary entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)).
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“Material Intellectual Property” means any federally registered Copyrights, Patents and Trademarks owned by or licensed to an Obligor and material to the conduct of the business of the Obligors, taken as a whole.
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“Patent License” means any agreement, whether written or oral, providing for the grant by or to an Obligor of any right to manufacture, use or sell any invention covered by a Patent.
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“Patents” means (i) all letters patent of the United States or any other country and all reissues and extensions thereof, and (ii) all applications for letters patent of the United States or any other country and all divisions, continuations and continuations-in-part thereof.
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“Pledged Equity” means, with respect to each Obligor, (i) one hundred percent (100%) of the issued and outstanding Capital Stock of each Domestic Subsidiary that is directly owned by such Obligor and (ii) sixty-six percent (66%) (or such greater percentage that, due to a change in an Applicable Law after the date hereof, (A) could not reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for United States federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s United States parent and (B) could not reasonably be expected to cause any material adverse tax consequences) of the issued and outstanding Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and one hundred percent (100%) of the issued and outstanding Capital Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary that is directly owned by such Obligor, including the Capital Stock of the Subsidiaries owned by such Obligor as set forth on Schedule 1 hereto, in each case together with the certificates (or other agreements or instruments), if any, representing such Capital Stock, and all options and other rights, contractual or otherwise, with respect thereto, including, but not limited to, the following:
(1) all Capital Stock representing a dividend thereon, or representing a distribution or return of capital upon or in respect thereof, or resulting from a stock split, revision, reclassification or other exchange therefor, and any subscriptions, warrants, rights or options issued to the holder thereof, or otherwise in respect thereof; and
(2) in the event of any consolidation or merger involving the issuer thereof and in which such issuer is not the surviving Person, all shares of each class of the Capital Stock of the successor Person formed by or resulting from such consolidation or merger, to the extent that such successor Person is a direct Subsidiary of an Obligor.
“Secured Obligations” as used herein shall mean all Secured Obligations (as defined in the Credit Agreement).
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“Trademark License” means any agreement, written or oral, providing for the grant by or to an Obligor of any right to use any Trademark.
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“Trademarks” means (a) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers, and the goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any state thereof or any other country or any political subdivision thereof, or otherwise and (b) all renewals thereof.
“UCC” means the Uniform Commercial Code as in effect from time to time in the state of New York.
“Work” means any work that is subject to copyright protection pursuant to Title 17 of the United States Code.
Without limiting the generality of the foregoing, it is hereby specifically understood and agreed that an Obligor may from time to time hereafter deliver additional Capital Stock to the Administrative Agent as collateral security for the Secured Obligations. Upon delivery to the Administrative Agent, such additional Capital Stock shall be deemed to be part of the Pledged Equity of such Obligor and shall be subject to the terms of this Agreement whether or not Schedule 1 hereto is amended to refer to such additional Capital Stock.
Notwithstanding anything to the contrary contained herein, the security interests granted under this Agreement shall not extend to, and the Collateral shall not include (collectively, the “Excluded Collateral”): (1) any General Intangible, permit, lease, license, contract or other instrument of an Obligor if the grant of a security interest in such General Intangible, permit, lease, license, contract or other instrument in the manner contemplated by this Agreement, under the terms thereof or under Applicable Law, is prohibited and would result in the termination thereof or give the other parties thereto the right to terminate, accelerate or otherwise alter such Obligor’s rights, titles and interests thereunder (including upon the giving of notice or the lapse of time or both); provided that (i) any such limitation described above on the security interests granted hereunder shall only apply to the extent that any such prohibition could not be rendered ineffective pursuant to the UCC or any other Applicable Law (including Debtor Relief Laws) or principles of equity and (ii) in the event of the termination or elimination of any such prohibition or the requirement for any consent contained
in any Applicable Law, General Intangible, permit, lease, license, contract or other instrument, to the extent sufficient to permit any such item to become Collateral hereunder, or upon the granting of any such consent, or waiving or terminating any requirement for such consent, a security interest in such General Intangible, permit, lease, license, contract or other instrument shall be automatically and simultaneously granted hereunder and shall be included as Collateral hereunder; (2) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed), (3) Equipment owned by any Obligor that is subject to a purchase money Lien or a Capital Lease if the contract or other agreement in which such Lien is granted (or in the documentation providing for such Capital Lease) prohibits or requires the consent of any Person other than the Borrower and its Affiliates as a condition to the creation of any other Lien on such Equipment, (4) any asset subject to a Permitted Lien incurred pursuant to Section 9.1(r) of the Credit Agreement, to the extent the grant of a security interest in such asset is prohibited by a contract with a customer of an Obligor with respect to such asset and until the release or termination of the Lien in favor of the lienholder in respect of such asset, (5) Excluded Pledged Equity and (6) any treasury stock of the Borrower or other margin stock (within the meaning of Regulation U issued by the Federal Reserve Board), in each case, unless the Lenders have made any necessary filings with the Federal Reserve Board in connection therewith.
Notwithstanding anything to the contrary herein, the Obligors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Collateral (but only for so long as it remains Excluded Collateral).
The Obligors and the Administrative Agent, on behalf of the holders of the Secured Obligations, hereby acknowledge and agree that the security interest created hereby in the Collateral (a) constitutes continuing collateral security for all of the Secured Obligations, whether now existing or hereafter arising and (b) is not to be construed as an assignment of any Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks or Trademark Licenses.
(a)
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Ownership. Each Obligor is the legal and beneficial owner of its Collateral and has the right to pledge, sell, assign or transfer the same free and clear of all Liens except for Permitted Liens.
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(b)
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Security Interest/Priority. This Agreement creates a valid security interest in favor of the Administrative Agent, for the benefit of the holders of the Secured Obligations, in the Collateral of such Obligor and, when properly perfected by filing in the appropriate offices against such Obligor, shall constitute a valid and perfected, first priority security interest in such Collateral (including all uncertificated Pledged Equity consisting of partnership or limited liability company interests that do not constitute Securities), to the extent such security interest can be perfected by filing under the UCC, free and clear of all Liens except for Permitted Liens. The taking possession by Administrative Agent of the certificated securities (if any) evidencing the Pledged Equity and all other Instruments constituting Collateral will perfect and establish the first priority of the Administrative Agent’s security interest in all the Pledged Equity evidenced by such certificated securities and such Instruments and, when properly perfected by filing, registration or control, in all other Pledged Equity and instruments securing the Secured Obligations. Except as set forth in this Section 3(f)(ii), no action is necessary to perfect in such Pledged Equity. With respect to any Collateral consisting of a Deposit Account, Security Entitlement or held in a Securities Account, upon execution and delivery by the applicable Obligor, the applicable Securities Intermediary and the Administrative Agent of an agreement granting Control to the Administrative Agent over
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the applicable Obligor, the applicable Securities Intermediary and the Administrative Agent of an agreement granting Control to the Administrative Agent over
such Collateral, the Administrative Agent shall have a valid and perfected, first priority security interest in such Collateral.
such Collateral, the Administrative Agent shall have a valid and perfected, first priority security interest in such Collateral.
(c)
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[Intentionally Omitted]
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(d)
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Accounts. No Account of an Obligor is evidenced by any Instrument or Chattel Paper unless such Instrument or Chattel Paper, to the extent required by Section 4.1(a)(i), has been endorsed over and delivered to, or submitted to the control of, the Administrative Agent.
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(e)
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Equipment and Inventory. As of the Closing Date, such Obligor’s Equipment and Inventory are kept at the locations listed on Schedule 3, except for (i) Equipment or Inventory in transit or (ii) Equipment or Inventory located at subcontractor facilities, launch locations or other customer locations in the ordinary course of business.
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(f)
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(iii) [Intentionally Omitted]
(iv) [Intentionally Omitted]
(g)
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No Other Equity Interests, Instruments, Etc. As of the Closing Date, no Obligor owns any certificated Capital Stock in any Subsidiary that are required to be pledged and delivered to the Administrative Agent hereunder other than as set forth on Schedule 1 hereto, and all such certificated Capital Stock have been delivered to the Administrative Agent.
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(h)
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Partnership and Limited Liability Company Interests. Except for (x) any certificated Pledged Equity delivered to the Administrative Agent, (y) Investment Cash Equivalents and (z) Investments permitted pursuant to Sections 9.2(b) and (m) of the Credit Agreement, as of the Closing Date, none of the Collateral (i) is dealt in or traded on a securities exchange or in a securities market, (ii) by its terms expressly provides that it is a Security governed by Article 8 of the UCC, (iii) is an Investment Company Security, (iv) is held in a Securities Account or (v) constitutes a Security or a Financial Asset.
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(i)
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Consents; Etc. There are no restrictions in any Organizational Document governing any Pledged Equity or any other document related thereto which would limit or restrict (i) the grant of a Lien pursuant to this Agreement on such Pledged Equity, (ii) the perfection of such Lien or (iii) the exercise of remedies in respect of such perfected Lien in the Pledged Equity as contemplated by this Agreement. Except for (i) the filing or recording of UCC financing statements, (ii) the filing of appropriate notices with the United States Patent and Trademark Office and the United States Copyright Office, (iii) obtaining control to perfect the Liens created by this Agreement that cannot be perfected by filing, (iv) such actions as may be required by Laws affecting the offering and sale of securities, (v) such actions as may be required by applicable foreign Laws affecting the pledge of the Pledged Equity of Foreign Subsidiaries, (vi) consents, authorizations, filings or other actions which have been obtained or made and (vii) the taking of the actions contemplated by Section 4(f) with respect to Commercial Tort Claims, no consent or authorization of, filing with, or other act by or in respect of, any arbitrator or Governmental Authority and no consent of any other Person (including, without limitation, any stockholder, member or creditor of such Obligor), is required for (A) the grant by such Obligor of the security interest in the Collateral granted hereby or for the execution, delivery or performance of this Agreement by such Obligor, or (B) the perfection of such security interest in Collateral which may be perfected by the filing of a financing statement under the UCC or a filing with the United States Copyright Office.
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(j)
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Commercial Tort Claims. To the knowledge of the Borrower, as of the Closing Date, no Obligor has any Commercial Tort Claims other than as set forth on Schedule 2 hereto.
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(i) As of the Closing Date, each Material Intellectual Property of such Obligor is valid, subsisting, unexpired, enforceable and has not been abandoned.
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(ii)
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As of the Closing Date, to such Obligor’s knowledge, no holding, decision or judgment has been rendered by any Governmental Authority that would limit, cancel or question the validity of any Material Intellectual Property of any Obligor.
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(iii)
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As of the Closing Date, to such Obligor’s knowledge, no action or proceeding is pending seeking to limit, cancel or question the validity of any Material Intellectual Property of such Obligor.
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(iv)
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All applications pertaining to the Material Intellectual Property of each Obligor have been duly and properly filed, and all registrations or letters pertaining to such Material Intellectual Property have been duly and properly filed and issued, except, in each case, where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
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(v)
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Except as permitted pursuant to the Credit Agreement, no Obligor has made any assignment or agreement in conflict with the security interest in the Material Intellectual Property of any Obligor hereunder.
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Set forth on Schedule 4 is a list identifying each Deposit Account of an Obligor and each Securities Account of an Obligor (including, in each case, the institution where such account is maintained, and the account number) in which a balance in excess of $1,000,000 is maintained as of the Closing Date.
(a)
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Instruments/Chattel Paper/Pledged Equity/Control.
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(i)
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Instruments; Tangible Chattel Paper; Documents. If any amount payable under or in connection with any of the Collateral shall be or become evidenced by any Instrument or Tangible Chattel Paper, ensure that such Instrument or Tangible Chattel Paper is either in the possession of such Obligor or, if requested by the Administrative Agent in respect of any such Collateral with an individual value equal to or greater than $1,000,000, is delivered to the Administrative Agent (1) in the case of Instruments, duly endorsed in a manner satisfactory to the Administrative Agent or (2) in the case of Tangible Chattel Paper, marked with a legend reasonably acceptable to the Administrative Agent indicating the Administrative Agent’s security interest in such Tangible Chattel Paper.
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(ii)
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Delivery of Certificates. Deliver to the Administrative Agent promptly upon the receipt thereof by or on behalf of an Obligor, all certificates and instruments constituting Pledged Equity. Prior to delivery to the Administrative Agent, all such certificates constituting Pledged Equity shall be held in trust by such Obligor for the benefit of the Administrative Agent pursuant hereto. All such certificates representing Pledged Equity shall be delivered in suitable form for transfer by delivery or shall be accompanied by duly executed instruments of transfer or assignment in blank, substantially in the form provided in Exhibit 4(a)(ii) hereto or as otherwise approved by the Administrative Agent.
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(b)
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Filing of Financing Statements, Notices, etc. Each Obligor shall execute and deliver to the Administrative Agent such agreements, assignments or instruments (including affidavits, notices, reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request) and do all such other things as the Administrative Agent may reasonably deem necessary or appropriate (i) to preserve the security interests of the Administrative Agent hereunder, including (A) such instruments as the Administrative Agent may from time to time reasonably request in order to perfect and maintain the security interests granted hereunder in accordance with the UCC, (B) with regard to Patents registered in the United States, a Notice of Grant of Security Interest in Patents for filing with the United States Patent and Trademark Office in the form of Exhibit 4(b)(i) hereto, (C) with regard to Trademarks registered in the United States, a Notice of Grant of Security Interest in Trademarks for filing with the United States Patent and Trademark Office in the form of Exhibit 4(b)(ii) hereto, (D) with regard to Copyrights registered in the United States, a Notice of Grant of Security Interest in Copyrights in the form of Exhibit 4(b)(iii), (ii) to consummate the transactions contemplated hereby and (iii) to otherwise protect and preserve the Administrative Agent’s rights and interests hereunder; provided, however that this Section 4(b) shall not obligate any Obligor to otherwise undertake collateral perfection or protection obligations not otherwise required under the Loan Documents (it being understood that perfection obligations with respect to Collateral that is perfected by delivery or control shall only be as
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expressly required pursuant to other provisions of this Agreement, and, except as expressly provided above, actions with respect to Collateral that is not subject to perfection under the UCC shall not be required). With respect to any Patents, Trademarks or Copyrights registered in the United States, no Obligor nor any Subsidiary shall be required to disclose (x) any materials subject to a confidentiality obligation binding upon such Obligor or Subsidiary to the extent such disclosure would violate such obligations or (y) any communications protected by attorney-client privilege the disclosure or inspection of which would waive such privilege; provided, however, that each Obligor shall nonetheless preserve the security interests of the Administrative Agent hereunder. Furthermore, each Obligor also hereby irrevocably makes, constitutes and appoints the Administrative Agent, its nominee or any other Person whom the Administrative Agent may designate, as such Obligor’s attorney-in-fact with full power and for the limited purpose to sign in the name of such Obligor any financing statements (including renewal statements), amendments and supplements, notices or any similar documents that in the Administrative Agent’s reasonable discretion would be necessary or appropriate, in order to perfect and maintain perfection of the security interests granted hereunder, such power, being coupled with an interest, being and remaining irrevocable so long as the Secured Obligations remain unpaid and until the commitments relating thereto shall have been terminated. Subject to the limitations set forth in Section 5, each Obligor hereby agrees that a carbon, photographic or other reproduction of this Agreement or any such financing statement is sufficient for filing as a financing statement by the Administrative Agent without notice thereof to such Obligor wherever the Administrative Agent may in its sole discretion desire to file the same.
(d)
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[Intentionally Omitted].
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(e)
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Treatment of Accounts. Not grant or extend the time for payment of any Account, or adjust, compromise or settle any Account for less than the full amount thereof, or release any Person or property, in whole or in part, from payment thereof, or allow any credit or discount thereon, in each case other than as normal and customary in the ordinary course of an Obligor’s business or as otherwise determined in such Obligor’s reasonable business judgment.
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(f)
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Commercial Tort Claims. (i) Promptly forward to the Administrative Agent an updated Schedule 2 hereto listing any and all Commercial Tort Claims seeking damages greater than $1,000,000 acquired by or in favor of such Obligor and (ii) upon the request of the Administrative Agent, execute and deliver such statements, documents and notices and do and cause to be done all such things as may be reasonably required by the Administrative Agent, or required by Law to create, preserve, perfect and maintain the Administrative Agent’s security interest in such Commercial Tort Claims initiated by or in favor of any Obligor.
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(g)
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[Intentionally Omitted]
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(h) [Intentionally Omitted]
(i) Not do any act or knowingly omit to do any act whereby any Copyright that is Material Intellectual Property could reasonably be expected to become invalidated and not do any act, or knowingly omit to do any act, whereby any Copyright that is Material Intellectual Property could reasonably be expected to become injected into the public domain.
(ii) Not make any assignment or agreement in conflict with the security interest in the Copyrights of each Obligor hereunder (except as permitted by the Credit Agreement).
(iii) (A) Continue to use each Trademark that is Material Intellectual Property in order to maintain such Trademark in full force free from any claim of abandonment for non-use, unless such Obligor determines, in its reasonable business judgment, that such Trademark that is Material Intellectual Property is no longer necessary or appropriate for use in its business, (B) not adopt or use any xxxx that is confusingly similar or a colorable imitation of each Trademark that is Material Intellectual Property unless the Administrative Agent, for the ratable benefit of the holders of the Secured Obligations, shall obtain a perfected security interest in such xxxx pursuant to this Agreement, and (C) except as would not reasonably be expected to have a Material Adverse Effect, not (and not permit any licensee or sublicensee thereof to) do any act or knowingly omit to do any act whereby any each Trademark that is Material Intellectual Property may become invalidated.
(iv) Not do any act, or omit to do any act, whereby any Patent that is Material Intellectual Property could reasonably be expected to become abandoned or dedicated.
(v) [Intentionally Omitted]
(vi) Upon request of the Administrative Agent, such Obligor shall execute and deliver any and all agreements, instruments, documents and papers as the Administrative Agent may reasonably request to evidence the security interest of the Administrative Agent and the holders of the Secured Obligations in any Patent or Trademark in the Collateral and the goodwill and general intangibles of such Grantor relating thereto or represented thereby.
(vii) Take all necessary steps in such Obligor’s reasonable business judgment, including, without limitation, in any proceeding before the United States Patent and Trademark Office, or any similar office or agency in any other country or any political subdivision thereof, to maintain and pursue each application (and to obtain the relevant registration) and to maintain each registration of each Patent and Trademark that is Material Intellectual Property, including, without limitation, filing of applications for renewal, affidavits of use and affidavits of incontestability.
(viii) Each Obligor shall take such actions in response to any infringement, misappropriation or dilution by a third party of any Patent or Trademark that is Material Intellectual Property (including promptly notifying the Administrative Agent) as it deems appropriate in its reasonable business judgment under the circumstances to protect such Patent or Trademark.
(ix) Not make any assignment or agreement in conflict with the security interest in the Patents or Trademarks of each Obligor hereunder (except as permitted by the Credit Agreement).
(l) [Intentionally Omitted]
Collateral from any such premises for the purpose of effecting sale or other disposition thereof, and/or (v) without demand and without advertisement, notice, hearing or process of law, all of which each of the Obligors hereby waives to the fullest extent permitted by Law, at any place and time or times, sell and deliver any or all Collateral held by or for it at public or private sale (which in the case of a private sale of Pledged Equity, shall be to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof), at any exchange or broker’s board or elsewhere, by one or more contracts, in one or more parcels, for Money, upon credit or otherwise, at such prices and upon such terms as the Administrative Agent deems advisable, in its sole discretion (subject to any and all mandatory legal requirements). Each Obligor acknowledges that any such private sale may be at prices and on terms less favorable to the seller than the prices and other terms which might have been obtained at a public sale and, notwithstanding the foregoing, agrees that such private sale shall be deemed to have been made in a commercially reasonable manner and, in the case of a sale of Pledged Equity, that the Administrative Agent shall have no obligation to delay sale of any such securities for the period of time necessary to permit the issuer of such securities to register such securities for public sale under the Securities Act of 1933. Neither the Administrative Agent’s compliance with Applicable Law nor its disclaimer of warranties relating to the Collateral shall be considered to adversely affect the commercial reasonableness of any sale. To the extent the rights of notice cannot be legally waived hereunder, each Obligor agrees that any requirement of reasonable notice shall be met if such notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to the Borrower in accordance with the notice provisions of Section 12.1 of the Credit Agreement at least ten (10) days before the time of sale or other event giving rise to the requirement of such notice. The Administrative Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. Each Obligor further acknowledges and agrees that any offer to sell any Pledged Equity which has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such offer may be advertised without prior registration under the Securities Act of 1933), or (ii) made privately in the manner described above shall be deemed to involve a “public sale” under the UCC, notwithstanding that such sale may not constitute a “public offering” under the Securities Act of 1933, and the Administrative Agent may, in such event, bid for the purchase of such securities. The Administrative Agent shall not be obligated to make any sale or other disposition of the Collateral regardless of notice having been given. To the extent permitted by Applicable Law, any holder of Secured Obligations may be a purchaser at any such sale. To the extent permitted by Applicable Law, each of the Obligors hereby waives all of its rights of redemption with respect to any such sale. Subject to the provisions of Applicable Law, the Administrative Agent may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time and place of such sale, and such sale may, without further notice, to the extent permitted by Law, be made at the time and place to which the sale was postponed, or the Administrative Agent may further postpone such sale by announcement made at such time and place.
to protect and realize upon the security interest of the holders of the Secured Obligations in the Accounts. Each Obligor acknowledges and agrees that the Proceeds of its Accounts remitted to or on behalf of the Administrative Agent in accordance with the provisions hereof shall be solely for the Administrative Agent’s own convenience and that such Obligor shall not have any right, title or interest in such Accounts or in any such other amounts except as provided herein. Neither the Administrative Agent nor the holders of the Secured Obligations shall have any liability or responsibility to any Obligor for acceptance of a check, draft or other order for payment of money bearing the legend “payment in full” or words of similar import or any other restrictive legend or endorsement or be responsible for determining the correctness of any remittance. Furthermore, during the continuation of an Event of Default, (i) the Administrative Agent shall have the right, but not the obligation, to make test verifications of the Accounts in any manner and through any medium that it reasonably considers advisable, and the Obligors shall furnish all such assistance and information as the Administrative Agent may require in connection with such test verifications, (ii) upon the Administrative Agent’s request and at the expense of the Obligors, the Obligors shall cause independent public accountants or others satisfactory to the Administrative Agent to furnish to the Administrative Agent reports showing reconciliations, aging and test verifications of, and trial balances for, the Accounts and (iii) the Administrative Agent in its own name or in the name of others may communicate with account debtors on the Accounts to verify with them to the Administrative Agent’s satisfaction the existence, amount and terms of any Accounts.
(i) to demand, collect, settle, compromise, adjust, give discharges and releases, all as the Administrative Agent may reasonably determine;
(ii) to commence and prosecute any actions at any court for the purposes of collecting any Collateral and enforcing any other right in respect thereof;
(iii) to defend, settle or compromise any action brought and, in connection therewith, give such discharge or release as the Administrative Agent may deem reasonably appropriate;
(iv) to receive, open and dispose of mail addressed to an Obligor, endorse and collect checks, notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or other instruments or documents evidencing payment, shipment or storage of the goods giving rise to the Collateral of such Obligor on behalf of and in the name of such Obligor, or securing, or relating to such Collateral;
(v) to sell, assign, transfer, make any agreement in respect of, or otherwise deal with or exercise rights in respect of, any Collateral or the goods or services which have given rise thereto, as fully and completely as though the Administrative Agent were the absolute owner thereof for all purposes;
(vi) to adjust and settle claims under any insurance policy relating thereto;
(vii) to execute and deliver all assignments, conveyances, statements, financing statements, renewal financing statements, security agreements, affidavits, notices and other agreements, instruments and documents that the Administrative Agent may determine necessary in order to perfect and maintain the security interests and liens granted in this Agreement and in order to fully consummate all of the transactions contemplated therein;
(viii) to institute any foreclosure proceedings that the Administrative Agent may deem appropriate;
(ix) to sign and endorse any drafts, assignments, proxies, stock powers, verifications, notices and other documents relating to the Collateral;
(x) to exchange any of the Pledged Equity or other property upon any merger, consolidation, reorganization, recapitalization or other readjustment of the issuer thereof and, in connection therewith, deposit any of the Pledged Equity with any committee, depository, transfer agent, registrar or other designated agency upon such terms as the Administrative Agent may reasonably deem appropriate;
(xi) to vote for a shareholder resolution, or to sign an instrument in writing, sanctioning the transfer of any or all of the Pledged Equity into the name of the Administrative Agent or one or more of the holders of the Secured Obligations or into the name of any transferee to whom the Pledged Equity or any part thereof may be sold pursuant to Section 7 hereof;
(xii) to pay or discharge taxes, liens, security interests or other encumbrances levied or placed on or threatened against the Collateral;
(xiii) to direct any parties liable for any payment in connection with any of the Collateral to make payment of any and all monies due and to become due thereunder directly to the Administrative Agent or as the Administrative Agent shall direct;
(xiv) to receive payment of and receipt for any and all monies, claims, and other amounts due and to become due at any time in respect of or arising out of any Collateral; and
(xv) to do and perform all such other acts and things as the Administrative Agent may reasonably deem to be necessary, proper or convenient in connection with the Collateral.
This power of attorney is a power coupled with an interest and shall be irrevocable until such time as the Secured Obligations arising under the Loan Documents have been paid in full and the Commitments have expired or been terminated. The Administrative Agent shall be under no duty to exercise or withhold the exercise of any of the rights, powers, privileges and options expressly or implicitly granted to the Administrative Agent in this Agreement, and shall not be liable for any failure to do so or any delay in doing so. The Administrative Agent shall not be liable for any act or omission or for any error of judgment or any mistake of fact or law in its individual capacity or its capacity as attorney-in-fact except acts or omissions resulting from its gross negligence or willful misconduct. This power of attorney is conferred on the Administrative Agent solely to protect, preserve and realize upon its security interest in the Collateral.
action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Collateral, whether or not the Administrative Agent has or is deemed to have knowledge of such matters, or (ii) taking any steps to clean, repair or otherwise prepare the Collateral for sale.
(i) So long as no Event of Default shall exist, each Obligor may (A) exercise any and all voting and other consensual rights pertaining to the Pledged Equity of such Obligor or any part thereof for any purpose permitted by this Agreement or the Credit Agreement and (B) subject to the requirements of this Agreement, receive and retain any and all dividends, principal or interest paid in respect of the Pledged Equity to the extent they are allowed under the Credit Agreement; and
(ii) During the continuance of an Event of Default, (A) all rights of an Obligor to exercise the voting and other consensual rights which it would otherwise be entitled to exercise pursuant to clause (i)(A) above shall cease and all such rights shall thereupon become vested in the Administrative Agent which shall then have the sole right to exercise such voting and other consensual rights, (B) all rights of an Obligor to receive the dividends, principal and interest payments which it would otherwise be authorized to receive and retain pursuant to clause (i)(B) above shall cease and all such rights shall thereupon be vested in the Administrative Agent which shall then have the sole right to receive and hold as Collateral such dividends, principal and interest payments, and (C) all dividends, principal and interest payments which are received by an Obligor contrary to the provisions of clause (ii)(B) above shall be received in trust for the benefit of the Administrative Agent, shall be segregated from other property or funds of such Obligor, and shall be forthwith paid over to the Administrative Agent as Collateral in the exact form received, to be held by the Administrative Agent as Collateral and as further collateral security for the Secured Obligations.
(a) This Agreement shall remain in full force and effect until such time as the Secured Obligations (other than contingent indemnification obligations not then due) arising under the Loan Documents have been paid in full, the Commitments have expired or been terminated and all Letters of Credit have been terminated or expired (or been cash collateralized), at which time this Agreement shall be automatically terminated and the Administrative Agent shall, upon the request and at the expense of the Obligors, forthwith release all of its liens and security interests hereunder and shall execute and deliver all UCC termination statements and/or other documents reasonably requested by the Obligors evidencing such termination.
(b) This Agreement shall continue to be effective or be automatically reinstated, as the case may be, if at any time payment, in whole or in part, of any of the Secured Obligations is rescinded or must otherwise be restored or returned by the Administrative Agent or any holder of the Secured Obligations as a preference, fraudulent conveyance or otherwise under any Debtor Relief Laws, all as though such payment had not been made; provided that in the event payment of all or any part of the Secured Obligations is rescinded or must be restored or returned, all costs and expenses (including without limitation any reasonable legal fees and disbursements) incurred by the Administrative Agent or any holder of the Secured Obligations in defending and enforcing such reinstatement shall be deemed to be included as a part of the Secured Obligations.
(a) Each of the Obligors is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the holders of the Secured Obligations, for the mutual benefit, directly and indirectly, of each of the Obligors and in consideration of the undertakings of each of the Obligors to accept joint and several liability for the obligations of each of them.
(b) Each of the Obligors jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Obligors with respect to the payment and performance of all of the Secured Obligations arising under this Agreement, the other Loan Documents and any other documents relating to the Secured Obligations, it being the intention of the parties hereto that all the Secured Obligations shall be the joint and several obligations of each of the Obligors without preferences or distinction among them.
(c) Notwithstanding any provision to the contrary contained herein, in any other of the Loan Documents or in any other documents relating to the Secured Obligations, the obligations of each Guarantor under the Credit Agreement, the other Loan Documents and the documents relating to the Secured Obligations shall be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under Section 548 of the Bankruptcy Code or any comparable provisions of any applicable state law.
[remainder of page intentionally left blank]
Each of the parties hereto has caused a counterpart of this Security and Pledge Agreement to be duly executed and delivered as of the date first above written.
OBLIGORS: ORBITAL SCIENCES CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President and Treasurer
ORBITAL INTERNATIONAL LLC,
a Delaware limited liability company
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President and Treasurer
Accepted and agreed to as of the date first above written.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Administrative Agent
By: /s/ Xxxxx Santa Xxxx
Name: Xxxxx Santa Xxxx
Title: Managing Director
SCHEDULE 1
PLEDGED EQUITY
Pledgor
|
Issuer
|
Description
|
Orbital Sciences Corporation
|
Orbital International LLC
|
100% of membership interests
|
SCHEDULE 2
COMMERCIAL TORT CLAIMS
None.
SCHEDULE 3
LOCATIONS OF EQUIPMENT AND INVENTORY
00000 Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
|
0000 Xxxx Xxxxxx Xx., Xxxxxxx
Xxxxxxx 00000
|
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
|
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
|
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
|
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
|
00000 Xxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
|
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
|
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
|
Baronwood Warehouse
00000 Xxxxxx Xxx
Xxxxxxxx, XX 00000
|
000-X Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
|
Phoenix-Mesa Gateway Airport
Storage Bunker 1111 and 1113
Xxxx, XX 00000
(Maricopa County)
|
000 Xxxxxx Xxxx, Xxxxxx 000 & 000
Xxxxx, XX 00000
|
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
|
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
|
0000 Xxxxxxxx Xxxxxxx, Xxxxx X
Xxxxxxx Xxxxxx, XX 00000
|
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
|
Buildings 1555 and 0000
Xxxxxxxxxx Xxx Xxxxx Xxxx, XX 00000
|
Mojave Aircraft Operations Base
00000 Xxxxxx Xxxxxxx Xx., #000
Xxxxxx, XX 00000
|
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
|
0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
|
00000 Xxxxx Xxxxxx Xxxxxxxxx. Xxxxx 000
Xxxxxxx, XX 00000
|
5008, 5010, 0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
|
000/000 Xxxxx Xxxxxxx Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, XX 00000
|
00000 Xxxxxxxxxxxx Xxxx
Xxx Xxxxxx, XX 00000-0000
|
0000 X. Xxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
|
0000 X. Xxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
(Maricopa County)
|
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
|
00000 Xxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
|
0000 Xxxxxx Xxxx Xxxx
XxXxxx, XX 00000
|
00000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
|
SCHEDULE 4
DEPOSIT ACCOUNTS AND SECURITIES ACCOUNTS
NAME OF
|
||||
FINANCIAL
|
TYPE OF
|
ACCOUNT
|
||
INSTITUTION
|
ACCOUNT
|
NUMBER
|
||
Bank of America
|
Checking/ DDA
|
4113052459
|
||
Bank of America
|
Checking/ DDA
|
4130364586
|
||
MorganStanley SmithBarney
|
Investment
|
373-92036
|
||
MorganStanley SmithBarney
|
Investment
|
373-9131C
|
||
Xxxxx Fargo Bank
|
Checking/DDA
|
4950050054
|
||
Xxxxx Fargo Bank
|
Checking/DDA
|
4950050062
|
|
EXHIBIT 4(a)(ii)
|
IRREVOCABLE STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to
the following Capital Stock of _____________________, a ____________ corporation:
and irrevocably appoints __________________________________ its agent and attorney-in-fact to transfer all or any part of such Capital Stock and to take all necessary and appropriate action to effect any such transfer. The agent and attorney-in-fact may substitute and appoint one or more persons to act for him.
_____________________________
By:
Name:
Title:
EXHIBIT 4(b)(i)
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
PATENTS
United States Patent and Trademark Office
Ladies and Gentlemen:
Please be advised that pursuant to the Security and Pledge Agreement dated as of June 7, 2011 (as the same may be amended, modified, restated or supplemented from time to time, the “Agreement”) by and among the Obligors from time to time party thereto (each an “Obligor” and collectively, the “Obligors”) and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative Agent”) for the holders of the Secured Obligations referenced therein, the undersigned Obligor has granted a continuing security interest in and continuing lien upon, the patents and patent applications set forth on Schedule 1 attached hereto to the Administrative Agent for the ratable benefit of the holders of the Secured Obligations.
The undersigned Obligor and the Administrative Agent, on behalf of the holders of the Secured Obligations, hereby acknowledge and agree that the security interest in the patents and patent applications set forth on Schedule 1 attached hereto (i) may only be terminated in accordance with the terms of the Agreement and (ii) is not to be construed as an assignment of any patent or patent application.
Very truly yours,
__________________________________
[Obligor]
By:
Name:
Title:
Acknowledged and Accepted:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
Name:
Title:
EXHIBIT 4(b)(ii)
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
TRADEMARKS
United States Patent and Trademark Office
Ladies and Gentlemen:
Please be advised that pursuant to the Security and Pledge Agreement dated as of June 7, 2011 (as the same may be amended, modified, restated or supplemented from time to time, the “Agreement”) by and among the Obligors from time to time party thereto (each an “Obligor” and collectively, the “Obligors”) and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative Agent”) for the holders of the Secured Obligations referenced therein, the undersigned Obligor has granted a continuing security interest in and continuing lien upon, the trademarks and trademark applications set forth on Schedule 1 attached hereto to the Administrative Agent for the ratable benefit of the holders of the Secured Obligations.
The undersigned Obligor and the Administrative Agent, on behalf of the holders of the Secured Obligations, hereby acknowledge and agree that the security interest in the trademarks and trademark applications set forth on Schedule 1 attached hereto (i) may only be terminated in accordance with the terms of the Agreement and (ii) is not to be construed as an assignment of any trademark or trademark application.
Very truly yours,
__________________________________
[Obligor]
By:
Name:
Title:
Acknowledged and Accepted:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
Name:
Title:
EXHIBIT 4(b)(iii)
NOTICE
OF
GRANT OF SECURITY INTEREST
IN
COPYRIGHTS
United States Copyright Office
Ladies and Gentlemen:
Please be advised that pursuant to the Security and Pledge Agreement dated as of June 7, 2011 (as the same may be amended, modified, restated or supplemented from time to time, the “Agreement”) by and among the Obligors from time to time party thereto (each an “Obligor” and collectively, the “Obligors”) and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative Agent”) for the holders of the Secured Obligations referenced therein, the undersigned Obligor has granted a continuing security interest in and continuing lien upon, the copyrights and copyright applications shown on Schedule 1 attached hereto to the Administrative Agent for the ratable benefit of the holders of the Secured Obligations.
The undersigned Obligor and the Administrative Agent, on behalf of the holders of the Secured Obligations, hereby acknowledge and agree that the security interest in the copyrights and copyright applications set forth on Schedule 1 attached hereto (i) may only be terminated in accordance with the terms of the Security Agreement and (ii) is not to be construed as an assignment of any copyright or copyright application.
Very truly yours,
__________________________________
[Obligor]
By:
Name:
Title:
Acknowledged and Accepted:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
Name:
Title: