SECURITY AGREEMENT
Exhibit 4.16
Execution Version
This SECURITY AGREEMENT is made as of October 9, 2009 (this “Agreement”), among
GEOEYE, INC., a Delaware corporation (the “Issuer”), each of the Subsidiaries of the Issuer
identified under the caption “GUARANTORS” on the signature pages hereto and each entity, that
becomes a Guarantor party hereto after the date hereof (the “Guarantors”; and, together
with the Issuer, collectively, the “Grantors”) and THE BANK OF NEW YORK MELLON, a New York
banking corporation, as collateral agent (in such capacity, the “Collateral Agent”) for the
benefit of the Secured Parties (as defined below).
RECITALS:
1. The Grantors and The Bank of New York Mellon, as trustee (the “Trustee”) and
Collateral Agent, are parties to the Indenture dated as of October 9, 2009 (as amended,
supplemented, waived, or otherwise modified from time to time, the “Indenture”), pursuant
to which, as of the date hereof, the Company has issued $400,000,000 in aggregate principal amount
of its 9.625% Senior Secured Notes due 2015 (the “Notes”).
2. The terms of the Indenture require that the Grantors shall have entered into this Agreement
in order to grant to the Collateral Agent for the benefit of the registered holders of the
outstanding Notes (the “Note Holders”) a security interest in the Collateral (as defined in
Section 2). Each Grantor will derive substantial direct and indirect benefit from the transactions
contemplated by the Indenture.
3. Therefore, in consideration of the premises, and in order to induce the Note Holders to
purchase the Notes, the Grantors hereby covenant and agree with the Collateral Agent for its
benefit and the equal and ratable benefit of the Note Holders and the Trustee (collectively, the
“Secured Parties”) as follows:
Section 1. Definitions. (a) The following capitalized terms shall have the following
meanings when used in this Agreement:
“Act of Instructing Secured Parties” means, as to any matter at any time,
including, without limitation, with respect to any matter relating to the Collateral or the
Security Documents, a direction in writing delivered to the Collateral Agent by the Trustee
at the direction of the Instructing Secured Parties.
“Additional Grantor” has the meaning given to such term in Section 20 of
this Agreement.
“Additional Pledgor” has the meaning given to such term in Section 20 of
this Agreement.
“Additional Guarantor Secured Debt Obligations” means any principal, interest
(including accruing subsequent to the filing of a petition in an Insolvency Proceeding), penalties,
fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters
of credit and banker’s acceptances), damages and other liabilities, and guarantees of payment of
such principal, interest, penalties, fees, indemnifications, reimbursements, damage
and other liabilities payable under the documentation governing any Indebtedness of a Guarantor
which may arise under or in connection with any guarantee in respect of Additional Secured
Obligations or any Additional Secured Debt Document to which such Guarantor is a party, in each
case whether on account of guarantee obligations, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel
to any Additional Secured Debtholder or any Representative for Additional Secured Debtholders that
are required to be paid by such Guarantor pursuant to the terms of any Additional Secured Debt
Document).
“Additional Issuer Secured Debt Obligations” means the unpaid principal and interest
on (including interest accruing after the maturity of the Additional Secured Debt and disbursements
in respect of letters of credit issued thereunder, if any, and interest accruing subsequent to the
filing of a petition in an Insolvency Proceeding relating to the Issuer, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding ) the Additional Secured Debt
and all other obligations and liabilities of the Issuer to each Representative for Additional
Secured Debtholders, whether direct or indirect, absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, our of or in connection with, each
Additional Secured Debt Document, any letters of credit issued thereunder, or any other document
made, delivered or given in connection therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and
disbursements of counsel to each Representative for Additional Secured Debtholders that are
required to be paid by the Issuer) or otherwise.
“Additional Secured Debt” means the unpaid amount of Indebtedness and other
obligations of the Issuer or any Guarantor under any Additional Secured Debt Document, which
Indebtedness and obligations (i) are permitted to be incurred by the Issuer or the Guarantors under
the Indenture and each Additional Secured Debt Document, (ii) are permitted under the Indenture and
each Additional Secured Debt Document to be secured equally and ratably with Secured Obligations
under the Indenture as well as with any other Additional Secured Debt, and (iii) for which the
Issuer and each Guarantor take the steps necessary under the Pari Passu Intercreditor Agreement to
secure such Indebtedness equally and ratably.
“Additional Secured Debt Document” means the agreements evidencing any Additional
Secured Obligations, the Security Documents and the Pari Passu Intercreditor Agreement.
“Additional Secured Debtholders” means, at any time, a Person which then is a holder
of any Additional Secured Debt; provided that the Issuer and the applicable Representative for
Additional Secured Debtholders shall have executed and delivered a joinder in accordance with
Section 5.13 of the Pari Passu Intercreditor Agreement.
“Additional Secured Obligations” means the Additional Guarantor Secured Debt
Obligations and the Additional Issuer Secured Debt Obligations.
“Agreement Collateral” has the meaning given to such term in Section 2(a)(iv) of this
Agreement.
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“Assigned Agreements” has the meaning given to such term in Section 2(a)(iv) of this
Agreement.
“Bankruptcy Code” means Title 11 of United States Code, 11 U.S.C. §§ 101, et seq.,
as amended from time to time.
“Bankruptcy Law” means the Bankruptcy Code or any similar federal or state or other
law for the relief of debtors.
“Collateral” has the meaning given to such term in Section 2(a) of this Agreement.
“Computer Software” has the meaning given to such term in Section 2(a)(vii)(E) of
this Agreement.
“Copyrights” has the meaning given to such term in Section 2(a)(vii)(C) of this
Agreement.
“FCC” means the United States Federal Communications Commission or any successor
agency thereto.
“GeoEye Business” means any business conducted or proposed to be conducted by the
Issuer on the Issue Date or any business activity that is a reasonable extension, development or
expansion thereof or ancillary thereto.
“GeoEye System” means each Satellite and the TTC&M Facilities.
“Governmental Approvals” means any Telecommunications Approval and any other material
authorizations, consents, approvals, licenses, rulings, permits, certifications, exemptions,
filings or registrations by or with a Telecommunications Authority or other Governmental Body
required by applicable requirements of law to be obtained or held by the Issuer or any of its
Subsidiaries in connection with the GeoEye Business, the due execution, delivery and performance of
the Secured Obligation Documents, the creation, perfection and enforcement of the Liens
contemplated by the Secured Obligation Documents or the other transactions contemplated hereby.
“Governmental Body” means any international body, any national, foreign or federal
government, any state or political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity authorized or vested with the jurisdiction to exercise
executive, legislative, judicial, regulatory or administrative functions of or pertaining to the
foregoing and any corporation or other entity wholly owned or controlled, through stock or capital
or otherwise, by any of the foregoing.
“Indemnitee” has the meaning given to such term in Section 13(m)(i) of this
Agreement.
“Indenture” has the meaning given to such term in the recitals to this Agreement.
“Insolvency Proceeding” means:
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(i) any case under any Bankruptcy Law with respect to the Issuer or any other Obligor,
any other proceeding for the reorganization, recapitalization or adjustment or marshalling of the
assets or liabilities of the Issuer or any other Obligor, any receivership or assignment for the
benefit of creditors or any similar case or proceeding with respect to the Issuer or any other
Obligor, in each case whether or not voluntary;
(ii) any liquidation, dissolution or other winding up of the Issuer or any other Obligor
involving bankruptcy or insolvency, in each case whether or not voluntary; or
(iii) any other proceeding of any type or nature in which substantially all claims of
creditors of the Issuer or any other Obligor are determined and any payment or distribution is or
may be made on account of such claims, other than a liquidation, winding up or dissolution of the
Issuer or any other Obligor not involving bankruptcy or insolvency.
“Instructing Secured Parties” means, at any time, Secured Parties holding more than
50% of the outstanding principal amount of the Notes at such time.
“Insurance Collateral” has the meaning given to such term in Section 2(a)(xi) of this
Agreement.
“Intellectual Property” has the meaning given to such term in Section 2(a)(vii)(G) of
this Agreement.
“Intellectual Property Collateral” has the meaning given to such term in Section
2(a)(vii) of this Agreement.
“IP Security Agreement Supplement” has the meaning given to such term in Section
2(a)(vii)(A) of this Agreement.
“Licenses” has the meaning given to such term in Section 2(a)(vii)(F) of this
Agreement.
“Material Adverse Effect” means a material adverse effect on (a) the business,
operations, property or financial condition of the Issuer and its Restricted Subsidiaries, taken as
a whole, or (b) the validity or enforceability of the Indenture and the Security Documents or the
material rights and remedies of the Holders, the Trustee and the Collateral Agent, in each case,
taken as a whole.
“New Collateral” has the meaning given to such term in Section 5(e) of this
Agreement.
“NOAA” means the United States Department of Commerce’s National Oceanic and
Atmospheric Administration or any successor agency thereto.
“Note Holders” has the meaning given to such term in the recitals to this Agreement.
“Notes” has the meaning given to such term in the recitals to this Agreement.
“Obligor” means each of the Issuer and the other Grantors.
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“Patents” has the meaning given to such term in Section 2(a)(vii)(A) of this
Agreement.
“Pledged Notes” has the meaning given to such term in Section 2(a)(xii)(B) of
this Agreement.
“Pledged Securities” has the meaning given to such term in Section 2(a)(xii)(B) of
this Agreement.
“Pledged Stock” has the meaning given to such term in Section 2(a)(xii)(A) of
this Agreement.
“Pledgors” means the Grantors whose names are listed from time to time on Schedules VI
and VII hereto.
“PTO” has the meaning given to such term in Section 2(a)((vii)(B) of this Agreement.
“Representative for Additional Secured Debtholders” means the Trustee and any trustee
or agent designated as an “Authorized Representative” in accordance with Section 5.13 of the Pari
Passu Intercreditor Agreement for so long as the Additional Secured Obligations for which such
party is serving in such capacity constitutes Secured Obligations hereunder.
“Satellites” has the meaning given to such term in Section 2(a)(i)(A) of this
Agreement.
“Scheduled Assets” has the meaning given to such term in Section 4(i)(iii) of
this Agreement.
“Secured Obligation Documents” means, collectively, the Indenture, the Notes and the
Security Documents.
“Secured Obligations” means all obligations of every nature of any Obligor from time
to time owed to any Secured Party under any of the Secured Obligation Documents (including those
acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter
arising, including, without limitation, principal, interest (including any interest accruing at the
then applicable rate provided in any applicable Secured Obligation Document after the maturity of
the related loans, notes and/or reimbursement obligations therein and interest accruing at the then
applicable rate provided in any applicable Secured Obligation Document after the commencement of
any Insolvency Proceeding, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding), breakage costs, fees, expenses, premium (if any), letter of credit
reimbursement obligations (regardless of whether or not any drawing has been made thereon), under
the Secured Obligation Documents and any indemnifications, reimbursements, damages, all other
liabilities payable under the Secured Obligation Documents and all increases, renewals, extensions
and refinancings of the foregoing.
“Secured Parties” has the meaning given to such term in the recitals to this
Agreement.
“Security Documents” shall mean this Agreement, each Mortgage, and each other
agreement, document or instrument entered into for the purposes of creating and/or perfecting a
Lien granted to the Collateral Agent, for the benefit of the Secured Parties, on the Collateral to
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secure the Secured Obligations, as amended, modified, renewed or restated from time to time, in
accordance with its terms and the terms of this Agreement, and all agreements entered into in
substitution, refinancing or replacement thereof in accordance with the terms of this Agreement.
“Telecommunications Approval” means an order, instrument or approval of any applicable
Telecommunications Authority granting the Issuer authority to construct, launch, operate and
maintain each of the Satellites and TTC&M Facilities used in connection with the GeoEye Business,
including national and local telecommunications licenses and compliance with International
Telecommunication Union procedures and requirements.
“Telecommunications Authority” means the FCC and NOAA, or any successor agency
thereto.
“Trademarks” has the meaning given to such term in Section 2(a)(vii)(B) of this
Agreement.
“Trade Secrets” has the meaning given to such term in Section 2(a)(vii)(D) of
this Agreement.
“Trustee” has the meaning given to such term in the recitals to this Agreement.
“TTC&M Facilities” means the downlink, production and distribution facilities and
other ground equipment necessary for the tracking, telemetry, control and monitoring of any
Satellite operated by or on behalf of the Issuer or any Subsidiary of the Issuer in connection with
the GeoEye Business and includes such facilities and such other ground equipment located at Point
Xxxxxx, Alaska, Fairbanks, Alaska, Thornton, Colorado, Mission, Kansas, Norman Oklahoma, Dulles,
Virginia and Fairmont, West Virginia.
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of
New York; provided that, if by reason of any mandatory provisions of law, the perfection,
the effect of perfection or non-perfection or priority of the security interests granted pursuant
to any Secured Obligation Document are governed by the Uniform Commercial Code as in effect in a
jurisdiction of the United States other than New York, then “UCC” means the Uniform Commercial Code
as in effect from time to time in such other jurisdiction for purposes of such perfection, effect
of perfection or non-perfection or priority.
(b) Capitalized terms used but not defined herein shall have the meanings ascribed to them in
the Indenture, and the following terms are used herein as defined in the UCC: Accounts, Chattel
Paper, Check, Commercial Tort Claim, Commodity Account, Deposit Account, Electronic Chattel Paper,
Equipment, General Intangible, Goods, Instrument (as such term is defined in Article 9 of the UCC),
Inventory, Investment Property, Letter of Credit, Letter-of-Credit Rights, Payment Intangibles,
Proceeds, Promissory Note, Securities Account, and Tangible Chattel Paper.
(c) Any reference to this Agreement, any Security Document or any other agreement refers to
this Agreement or such Security Document or other agreement as the same may have been or may from
time to time be amended, modified, extended, renewed, restated, replaced or supplemented and
includes all schedules attached to it. Except as otherwise provided
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in this Agreement, any reference in this Agreement to a statute refers to such statute and all
rules and regulations made under it as the same may have been or may from time to time be amended
or re-enacted.
Section 2. Grant of Security Interest; Pledge; Secured Obligations.
(a) Grant of Security Interest; Pledge. To secure the due and punctual payment of
the Secured Obligations, each Grantor hereby pledges, assigns as security and grants to the
Collateral Agent, for itself and for the benefit of the other Secured Parties, a continuing
security interest in and Lien on such Grantor’s right, title and interest in and to the following,
in each case, as to each type of property described below, whether now owned or hereafter acquired
by such Grantor, wherever located and whether now or hereafter existing or arising (collectively,
the “Collateral”):
(i) all Equipment, including, without limitation:
(A) any satellite owned by, or leased to, any Grantor, including, without
limitation, any satellite purchased pursuant to the terms of a satellite purchase
agreement, whether such satellite is in the process of manufacture, has been
delivered for launch or is in orbit (whether or not in operational service)
(collectively, the “Satellites”);
(B) ground segment equipment for tracking, telemetry, control and monitoring
of the Satellites and for the receipt of raw imagery and data from the Satellite
and owned by any Grantor;
(C) to the extent not otherwise included in the foregoing clauses (A) and (B),
all Equipment in all of its forms, including, without limitation, all machinery,
apparatus, installation facilities, satellites, tools, motor vehicles, vessels,
aircraft having a value in excess of $1.0 million individually, furniture and
fixtures, and all parts thereof and all accessions thereto and all software related
thereto, including, without limitation, software that is imbedded in and is part of
the Equipment, in each case wherever located, and whether on earth or in (or in
transit to or from) orbit;
(ii) all Inventory in all of its forms, including, without limitation, (1) all raw
materials, work in process, finished goods and materials used or consumed in the
manufacture, production, preparation or shipping thereof, (2) goods in which such Grantor
has an interest in mass or a joint or other interest or right of any kind (including,
without limitation, goods in which such Grantor has an interest or right as consignee) and
(3) goods that are returned to or repossessed or stopped in transit by such Grantor, and all
accessions thereto and products thereof and documents therefor, and all software related
thereto, including, without limitation, software that is imbedded in and is part of the
Inventory;
(iii) all rights, claims and benefits of such Grantor against any Person arising out
of, relating to or in connection with Inventory or Equipment purchased by
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such Grantor, including, without limitation, any such rights, claims or benefits against any Person
storing or transporting such Inventory or Equipment;
(iv) all contracts or agreements to which any Grantor is a party, including,
without limitation, the following:
(A) each satellite construction contract; and
(B) each data licensing, distribution or other agreement between any Grantor
and licensees, customers or distributors;
in each case as such contracts or agreements may be amended, amended and restated, supplemented or
otherwise modified from time to time (collectively, the “Assigned Agreements”), including,
without limitation, (v) all rights of such Grantor to receive moneys due and to become due under or
pursuant to the Assigned Agreements, including agreements with the National Geospatial-Intelligence
Agency, (w) all rights of such Grantor to receive proceeds of any insurance, indemnity, warranty or
guaranty with respect to the Assigned Agreements, (x) all rights to receive property, assets,
services or other performance thereunder, (y) claims of such Grantor for damages arising out of or
for breach of or default under the Assigned Agreements and (z) the right of such Grantor to
terminate, amend, supplement, modify or waive performance under the Assigned Agreements, to perform
thereunder and to compel performance and otherwise exercise all remedies thereunder (collectively,
the “Agreement Collateral”);
(v) all Governmental Approvals now or hereafter held in the name, or for the benefit, of
any Grantor or any Subsidiary of any Grantor;
(vi) all Accounts, Chattel Paper (including, without limitation, Tangible Chattel Paper
and Electronic Chattel Paper), Documents, Goods, Instruments (including, without limitation,
Promissory Notes), Investment Property, Deposit Accounts, Commodity Accounts, Letter of Credit
Rights and General Intangibles (including, without limitation, Payment Intangibles), and other
rights to payment of any kind, whether or not arising out of or in connection with the sale or
lease of goods or the rendering of services and whether or not earned by performance, and all
rights now or hereafter existing in and to all supporting obligations and in and to all security
agreements, mortgages, Liens, leases, Letters of Credit and other contracts securing or otherwise
relating to the foregoing property;
(vii) the following (collectively, the “Intellectual Property
Collateral”):
(A) all of such Grantor’s United States, international and foreign patents, patent
applications and utility models, including, without limitation, the patents and patent
applications set forth in Schedule I hereto (as such Schedule I may be supplemented from
time to time by supplements to this Agreement (an “IP Security Agreement
Supplement”), executed and delivered by such Grantor to the Collateral Agent from time
to time), together with all reissues, divisions, continuations, continuations-in-part,
extensions and reexaminations thereof, all inventions therein, all rights therein provided
by international treaties or
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conventions and all improvements thereto, and all other rights of any kind whatsoever of
such Grantor accruing thereunder or pertaining thereto (collectively, the
“Patents”);
(B) all of such Grantor’s trademarks (including, without limitation, service marks),
certification marks, collective marks, trade dress, logos, domain names, product configurations,
trade names, business names, corporate names and other source identifies, whether or not
registered, whether currently in use or not, including, without limitation, all common law rights
and registrations and application for registration thereof, including, without limitation, the
trademark registrations and trademark applications set forth in Schedule II hereto (as such
Schedule II may be supplemented from time to time by IP Security Agreement Supplements executed and
delivered by such Grantor to the Collateral Agent from time to time), and all other marks
registered in the United States Patent and Trademark Office (the “PTO”) or in any office or agency
of any state or territory of the United States or any foreign country (but excluding any
applications for trademarks or service marks filed in the PTO pursuant to 15 U.S.C. §1051 Section
1(b) unless and until evidence of use of the xxxx in interstate commerce is submitted to the PTO
pursuant to 15 U.S.C. §1051 Section 1(c) or Section 1(d)), and all rights therein provided by
international treaties or conventions, all renewals of any of the foregoing, together in each case
with the goodwill of the business associated therewith and symbolized thereby, and all rights
corresponding thereto throughout the world, and all other rights of any kind whatsoever of such
Grantor accruing thereunder or pertaining thereto (collectively, the “Trademarks”);
(C) all of such Grantor’s copyrights, copyright applications, copyright registrations and like
protections in each of such Grantor’s works of authorship, whether statutory or common law, whether
published or unpublished, any renewals or extensions thereof, all copyrights of works based on,
incorporated in, derived from, or relating to works covered by such copyrights, including, without
limitation, the copyright registrations and copyright applications set forth in Schedule III hereto
(as such Schedule III may be supplemented from time to time by IP Security Agreement Supplements
executed and delivered by such Grantor to the Collateral Agent from time to time), together with
all rights corresponding thereto throughout the world and all other rights of any kind whatsoever
of such Grantor accruing thereunder or pertaining thereto (collectively, the “Copyrights”);
(D) all of such Grantor’s rights in proprietary information, including, without limitation,
knowhow, trade secrets, proprietary and confidential manufacturing and production processes and
techniques, research and development information, technical data, plans, blueprints, designs,
models, surveys, architectural, structural, mechanical and engineering plans and specifications,
studies, reports and drawing, test reports, manuals, financial, marketing and business data,
pricing and cost information, business and
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marketing plans and customer and supplier lists and information (collectively, the
“Trade Secrets”);
(E) all of such Grantor’s rights in software, including, without limitation, computer
software programs and databases (including, without limitation, source code, object code
and all related applications and data files), firmware, and documentations and materials
relating thereto, and all rights with respect to the foregoing, together with any and all
options, warranties, service contracts, program services, test rights, maintenance rights,
improvement rights, renewal rights and indemnifications and any substitutions,
replacements, additions or model conversions of any of the foregoing (collectively, the
“Computer Software”);
(F) all licenses or agreements to which such Grantor is a party, whether granting or
obtaining rights to use the Patents, Trademarks, Copyrights, Trade Secrets or Computer
Software, or granting or obtaining rights to use the patents, trademarks, copyrights, trade
secrets, computer software or other proprietary right of any other Person, and all income,
royalties and other payments now or hereafter due and/or payable to such Grantor with
respect thereto, subject, in each case, to the terms of such license agreements and
franchise agreements (collectively, the “Licenses”); and
(G) any and all claims for damages for past, present and future infringement,
misappropriation or breach with respect to the Patents, Trademarks, Copyrights, Trade
Secrets, Computer Software or Licenses (collectively, “Intellectual Property”),
with the right, but not the obligation, to xxx for and collect, or otherwise recover, such
damages;
(viii) the following:
(A) all Promissory Notes, certificates of deposit, Deposit Accounts, Checks and other
Instruments held in the possession of the Collateral Agent; and
(B) all interest, dividends, distributions, cash, instruments and other property
from time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the Deposit Accounts;
(ix) all Commercial Tort Claims described in Schedule IV hereto;
(x) all books and records (including, without limitation, customer lists, credit files,
computer programs, software, printouts and other computer materials and records) of such Grantor
pertaining to any of the Collateral;
(xi) all insurance policies, whether owned by or payable to such Grantor, insuring against
any risk whatsoever (including, without limitation, casualty, property damage, liability and
death), including, without limitation, all such policies required to be maintained under Section
4.15 of the Indenture with respect to any
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Satellite or any other property of such Grantor, all loss proceeds and other amounts payable
thereunder to such Grantor, any indemnity, warranty or guaranty in respect of the property
insured thereby, and all eminent domain or similar proceeds or awards with respect thereto
and all other rights of such Grantor with respect thereto (collectively, the “Insurance
Collateral”);
(xii) the following:
(A) the shares of Capital Stock listed opposite such Pledgor’s name on
Schedule VI hereto and any other or additional shares acquired by such Pledgor
after the date hereof (collectively, the “Pledged Stock”); and
(B) the notes listed opposite such Pledgor’s name on Schedule VII hereto and
any other or additional notes acquired by such Pledgor after the date hereof
(collectively, the “Pledged Notes” and, together with the Pledged Stock, the
“Pledged Securities”);
(xiii) the Satellite Construction Collateral Account;
(xiv) the Event of Loss Collateral Account;
(xv) all Proceeds, products, offspring, rents, profits, royalties, revenues, issues,
income, benefits, accessions, additions, substitutions and replacements of and to any of the
property of such Grantor described in the preceding clauses (i) through (xiv) of this
Section (including, without limitation, all causes of action, claims, warranties and
guaranties now or hereafter held by any Grantor in respect of any of the items listed
above);
provided that notwithstanding anything to the contrary in this Agreement, this Agreement
shall not constitute a grant of a security interest in, and the term “Collateral” shall not
include, the following: (A) leasehold interests in real property and vehicles and other assets in
which a security interest hereunder may be perfected only through compliance with a non-UCC
certificate of title statute of any state of the United States of America or of the District of
Columbia (but not including proprietary technology or Satellite assets or ground segment equipment
related thereto), (B) any Governmental Approval which by its terms or by operation of law would
become void, voidable, terminable or revocable if mortgaged, pledged or assigned hereunder or if a
security interest therein was granted hereunder, and any Governmental Approval as to which the
grant of a Lien or direct security interest is prohibited by or cannot be recognized under
applicable law to the extent necessary so as to avoid such voidness, avoidability, terminability,
revocability or prohibition, but the Collateral shall include, to the maximum extent permitted by
law, all rights of such Grantor incident or appurtenant to such Governmental Approval and the right
of such Grantor to receive all proceeds derived from or in connection with the sale, assignment or
transfer of such Governmental Approval, (C) items as to which a security interest cannot be granted
without violating contract rights (provided that the Issuer will use commercially
reasonable efforts to obtain any necessary consent with respect to any after-acquired property) or
applicable law, (D) any property subject to Liens securing Vendor Financing or the obligations
described in clauses (2), (7), (17), (21) or (28) of
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Permitted Liens, (E) more than 66% of the total combined voting power of all classes of issued and
outstanding Capital Stock of any Subsidiary not formed under the laws of the United States of
America, any state thereof or the District of Columbia, that is entitled to vote, (F) any assets in
which a security interest therein is prohibited by any law, rule or regulation applicable to such
asset or to any Pledgor except to the extent that such applicable law or provisions of any such
lease, license or agreement is ineffective under applicable law or would be ineffective under
Sections 9-406, 9-407, 9-408 or 9-409 of the UCC to prevent the attachment of the security interest
granted hereunder or (G) such portion (if any) of any Pledged Securities consisting of Capital
Stock of any Subsidiary of the Issuer to the extent that Rule 3-16 of Regulation S-X under the
Securities Act requires or would require the filing with the SEC of separate financial statements
of such Subsidiary that are not otherwise required to be filed, but only to the extent necessary
not to be subject to such requirement.
(b) If from time to time any Collateral consisting of: cash, cash equivalents, Deposit
Accounts, Securities Accounts or other pledges or deposits of cash and cash equivalents of any
Grantor are pledged by such Grantor to secure the obligations described in clauses (2), (3), (12),
(21) or, solely to the extent relating to cash xxxxxx, (25) of Permitted Liens; then the Lien
created pursuant to this Agreement in such Collateral shall be immediately and automatically
released, without any consent of the Collateral Agent or the other Secured Parties, but only to the
extent of such other Liens or security interests, and only for so long as the same are in effect,
and the Collateral Agent, at the request and sole expense of such Grantor, shall cooperate with
such Grantor to confirm all releases or other documents reasonably necessary or desirable to
evidence the release of such Collateral from the Liens; provided that, prior to confirming
any such release or other document, the Collateral Agent shall have received from such Grantor an
Officers’ Certificate and an Opinion of Counsel to the effect that any such action is authorized or
permitted by this Agreement.
(c) Secured Obligations. The Collateral hereunder constitutes and will constitute
continuing security for the prompt and complete performance and payment when due (whether at stated
maturity, by acceleration or otherwise) of:
(i) all Secured Obligations with respect to the Secured Obligation Documents,
including without limitation all principal of and interest on the Notes and payment of all
amounts owing under the Guarantees, whether now existing or hereafter arising; and
(ii) all other additional Secured Obligations.
Section 3. Grantors Remain Liable. Anything herein to the contrary notwithstanding, (a)
each Grantor shall remain liable under the contracts and agreements included in such Grantor’s
Collateral to the extent set forth therein to perform all of its duties and obligations thereunder
to the same extent as if this Agreement had not been executed, (b) the exercise by the Collateral
Agent of any of the rights hereunder shall not release any Grantor from any of its duties or
obligations under the contracts and agreements included in the Collateral and (c) neither the
Collateral Agent nor any other Secured Party shall have any obligation or liability under the
contracts and agreements included in the Collateral by reason of this Agreement or any other
Secured Obligation Document, nor shall the Collateral Agent or any other Secured
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Party be obligated to perform any of the obligations or duties of any Grantor thereunder or to take
any action to collect or enforce any claim for payment assigned hereunder.
Section 4. Representations and Covenants of the Grantors.
(a) Location of Chief Executive Offices; Domicile; Organizational
Identification Number. Each Grantor agrees that it will not change its name, organizational
identification number (if any) or the jurisdiction of its organization without providing prior
written notice to Collateral Agent.
(b) Ownership of Collateral.
(i) Each Grantor represents that it is the owner of the Collateral of such Grantor
free from any adverse Lien, security interest or encumbrance, except for Permitted Liens. No
effective financing statement or other instrument similar in effect covering all or any part
of such Collateral or listing such Grantor or any trade name of such Grantor as debtor is on
file in any recording office (including, without limitation, the United States Patent and
Trademark Office and the United States Copyright Office), except such as may have been filed
in favor of the Collateral Agent relating to the Collateral or as otherwise permitted under
the Secured Obligation Documents.
(ii) Except for the security interests herein granted and except for Permitted
Liens, each Grantor shall be the owner of the Collateral of such Grantor free of any Liens
or other encumbrances, and such Grantor shall defend the same against all claims and demands
of all persons other than holders of Permitted Liens at any time claiming the same or any
interest therein adverse to the Collateral Agent and/or the other Secured Parties. Except as
not prohibited by the Secured Obligation Documents, such Grantor shall not pledge, mortgage
or create or suffer to exist a security interest in the Collateral of such Grantor in favor
of any person other than the Collateral Agent and the other Secured Parties.
(c) Maintenance of Collateral. At any time after the occurrence and during the
continuance of an Event of Default (as defined below), the Collateral Agent may inspect the
Collateral at any reasonable time and upon reasonable notice, wherever located. At any time after
the occurrence and during the continuation of an Event of Default, in its discretion, the
Collateral Agent may, upon receiving the direction of the Instructing Secured Parties by an Act of
Instructing Secured Parties, discharge taxes and other encumbrances at any time levied or placed on
the Collateral, which remain unpaid in violation of the Secured Obligation Documents, make repairs
thereof and pay any necessary filing fees incurred in connection with the perfection, protection or
enforcement of Collateral Agent’s rights hereunder. Each Grantor agrees to reimburse the Collateral
Agent, promptly upon receipt of a reasonably detailed written invoice therefore, for any and all
expenditures so made, and until paid, the amount thereof shall be a debt secured by the Collateral
of such Grantor. The Collateral Agent shall have no obligation to any Grantor to make any such
expenditures, nor shall the making thereof relieve such Grantor of any default.
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(d) Creation and Perfection of Lien. (i) Each Grantor represents and warrants
to the Collateral Agent and the other Secured Parties and covenants with the Collateral
Agent and the other Secured Parties that this Agreement creates a valid security interest in
the Collateral of such Grantor in favor of the Collateral Agent as security for the payment
and performance of the Secured Obligations. Upon (A) the filing of (1) a UCC-1 financing
statement against each Grantor in the jurisdiction of organization of such Grantor under the
UCC as the same may be in effect from time to time in the jurisdiction of organization of
such Grantor and (2) in respect of Intellectual Property Collateral consisting of
registrations and applications, the Grant of Security Interest in Intellectual Property
Agreements substantially in the form attached hereto as Attachment A with the United
States Patent and Trademark Office and the United States Copyright Office, as applicable
(provided that additional filings may be required to perfect the Collateral Agent’s and the
other Secured Parties’ security interest in such of the Collateral consisting of
applications or registrations for Intellectual Property registered outside of the United
States), in each case naming such Grantor as debtor and the Collateral Agent, for itself and
for the benefit of the other Secured Parties, and (B) the payment of all applicable fees,
all filings will have been made and all other actions will have been taken that are
necessary or advisable under the UCC, to establish and perfect the Collateral Agent’s
security interest in such of the Collateral as to which a security interest may be perfected
by filing under the UCC, and such security interest shall remain prior to all other Liens,
except those not prohibited by the Secured Obligation Documents. No further filings,
recordings or other actions are or will be necessary to maintain the priority of such
security interest with respect to such Collateral other than the filing of UCC continuation
statements within six months prior to the expiration of a period of five years after the
original filing and any amendments that may be required from time to time to maintain the
validity and/or sufficiency of such filing under the UCC.
(ii) Upon the delivery of the certificates and/or instruments representing the
Pledged Securities, together with corresponding stock powers, allonges or other appropriate
instruments of assignment executed in blank, to the Collateral Agent pursuant to Section
4(j) hereof, the Collateral Agent shall have a valid first priority Lien upon and perfected
security interest in such Pledged Securities and the proceeds thereof, subject to no prior
security interest, Lien charge or encumbrance, or to any agreement purporting to grant to
any third party a security interest in the property or assets of such Pledgor which would
include its Pledged Securities, except as otherwise not prohibited by the Secured Obligation
Documents.
(e) No Further Actions. Except for the filings referred to in paragraph (d) above, no
consent, authorization, approval or other action by, and no notice of filing with, any governmental
authority or regulatory body or other Person that has not been received, taken or made is required
(i) for the grant by the Grantors of the security interest granted hereby or for the execution,
delivery or performance of this Agreement by the Grantors, (ii) for the perfection and maintenance
of the security interest hereunder (including the first priority nature of such security interest)
to the extent such security interest may be perfected by such filings referred to in paragraph (d)
above, or (iii) except as provided in Section 23, for the exercise by the Collateral Agent and/or
the other Secured Parties of the rights or the remedies in respect of the Collateral
pursuant to this Agreement.
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(f) [Reserved.]
(g) Cooperation. Each Grantor agrees, after the occurrence and during the continuation
of an Event of Default, to take any actions that the Collateral Agent, at the direction of the
Instructing Secured Parties by an Act of Instructing Secured Parties, may reasonably request in
order to enable the Collateral Agent and the other Secured Parties to obtain and enjoy the full
rights and benefits granted to them by this Agreement or the Indenture. Each Grantor further
consents, after the occurrence and during the continuation of an Event of Default, to the transfer
of control or assignment of all or any portion of the Collateral of such Grantor to any purchaser
of the Collateral of such Grantor pursuant to any public or private sale, judicial sale,
foreclosure or exercise of other remedies available to the Collateral Agent and/or the other
Secured Parties as permitted by this Agreement or the Indenture, applicable law or otherwise,
subject to the receipt of any required Governmental Approvals.
(h) Access to Books and Records and the Collateral. Each Grantor shall permit the
Collateral Agent’s representatives to have access to its books and records and the Collateral from
time to time (which shall be during regular business hours), as requested by such Person, for
purposes of examination, verification, inspection, and appraisal thereof and/or any other purpose
permitted by the Secured Obligation Documents. Except after the occurrence of a Default or an Event
of Default, the Collateral Agent shall give such Grantor at least one Business Day’s telephonic
notice before exercising the rights granted in the preceding sentence.
(i) Intellectual Property. As to each Grantor and such Grantor’s Intellectual
Property:
(i) Grantor’s Rights. The use by such Grantor of any Intellectual Property
Collateral and the conduct of each Grantor’s business does not misappropriate, violate or
infringe the intellectual property rights of any third party, and no claim has been asserted
in writing that the use of such Intellectual Property Collateral does or is likely to
misappropriate, violate or infringe the intellectual property rights of any third party, in
each case, except as would not have a Material Adverse Effect.
(ii) Ownership. Without limiting the generality of Section 5(b), except
where the failure to do so would not have a Material Adverse Effect, such Grantor is the
exclusive owner of the entire and unencumbered right, title and interest in and to any
Intellectual Property Collateral owned by such Grantor and is entitled to use all such
Intellectual Property Collateral without limitation, subject only to (A) the license terms
of the Licenses and (B) applicable law.
(iii) Identification of Intellectual Property. Set forth on Schedule I
hereto is a complete and accurate list of all of the U.S. and material foreign patents and
patent applications owned by such Grantor. Set forth on Schedule II hereto is a complete and
accurate list of all of the U.S. and material foreign Trademark registrations and
applications owned by such Grantor. Set forth on Schedule III hereto is a complete and
accurate list of all U.S. and material foreign Copyright registrations and applications
owned by such Grantor. Such Grantor has made all necessary filings and recordations to
protect and maintain its interest in the material patents, patent applications, Trademark
15
registrations and applications and Copyright registrations and applications set forth on
Schedules I, II and III hereto (collectively, the “Scheduled Assets”).
(iv) Validity of Intellectual Property Collateral. To such Grantor’s
knowledge, each of the material Scheduled Assets is subsisting and has not been adjudged
invalid, expired or unenforceable, in whole or in part, and is valid and enforceable. As of
the date hereof, each material License of each Grantor is, to such Grantor’s knowledge,
subsisting and has not been adjudged invalid or unenforceable, in whole or in part, and is
valid and enforceable except as would not have a Material Adverse Effect. Except as would
not have a Material Adverse Effect, no Grantor is aware of any uses of any item of
Intellectual Property Collateral which would be expected to lead to such item becoming
invalid or unenforceable.
(v) Proper Notice. Except where the failure to do so would not have a
Material Adverse Effect, such Grantor has used the required applicable statutory notice in
connection with its use of the material patents, registered trademarks and service marks,
and copyrights set forth on Schedules I, II and III.
(vi) No Outstanding Claims. To each Grantor’s knowledge, no claim has been
made in writing, threatened to or by any Grantor, that any item of Intellectual Property
Collateral is invalid or unenforceable, except as would not have a Material Adverse Effect.
To such Grantor’s knowledge, there is currently no infringement or other violation of any
item of Intellectual Property Collateral by any Person, except as would not have a Material
Adverse Effect.
(vii) Quality Control. Such Grantor has taken commercially reasonable steps
to use consistent standards of quality in the manufacture, distribution and sale of all
products sold and the provision of all services provided under or in connection with any of
the material Trademarks included in the Intellectual Property Collateral, and has taken
commercially reasonable steps to ensure that all licensed users of any of the material
Trademarks included in the Intellectual Property Collateral, use such consistent standards
of quality, in each case, except where the failure to do so would not have a Material
Adverse Effect.
(j) Pledged Securities. As to each Pledgor and such Pledgor’s Pledged
Securities:
(i) Certificates and Instruments of Assignment. At such times as the
certificates and/or instruments representing the Pledged Securities (whether now existing or
hereafter received as a result of stock dividends, stock splits, workouts, reorganizations,
restructurings or otherwise) are delivered to the Collateral Agent in accordance with this
Agreement, such certificates and/or instruments shall be accompanied by stock powers,
allonges or other appropriate instruments of assignment with respect thereto duly executed
in blank by the respective Pledgor as the registered owner of its Pledged Securities.
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(ii) Ownership. Such Pledgor is the legal, beneficial and record owner and
has good title to all of its Pledged Securities free and clear of all claims, mortgages,
pledges, Liens, hypothecation, security interests and other encumbrances of every nature
whatsoever except to or in favor of the Collateral Agent and the Secured Parties hereunder
and otherwise permitted to exist pursuant to the Secured Obligation Documents.
(iii) Validity of Shares. All of the shares of its Pledged Stock have been
duly and validly issued and are fully paid and non-assessable.
(iv) No Purchase Rights. Except as set forth in Schedule VIII hereto, there
are presently outstanding no options, warrants or other rights to purchase or acquire any
additional shares of the Pledged Stock of any of such Pledgor.
(v) No Default. To the knowledge of such Pledgor, there is no default,
breach, violation or event of acceleration existing under the Pledged Notes (if any) and no
event has occurred or circumstance exists which, with the passage of time or the giving of
notice, or both, would constitute a default, breach, violation or event of acceleration
under the Pledged Notes (if any), in each case, except as would not have a Material Adverse
Effect.
(vi) Authority. Such Pledgor has and has duly exercised full power and
authority to enter into this Agreement and to pledge its Pledged Securities as herein
contemplated.
(k) Control Agreements. Grantors shall use commercially reasonable efforts to
subject all deposit accounts and securities accounts with average balances in excess of $7,500,000
to a control agreement in favor of the Collateral Agent. The Collateral Agent shall have no
obligation to execute and deliver any control agreement that imposes any indemnity or other
obligations on the Collateral Agent.
Section 5. Covenants and Further Assurances.
(a) Each Grantor at its sole cost and expense agrees to file, record, execute,
acknowledge and deliver to the Collateral Agent from time to time as necessary or at its request
all documents and instruments, including financing statements and supplemental security agreements,
and to take all action as may be necessary in order to assure, perfect, transfer and confirm the
rights conveyed by the Security Documents, including without limitation, the execution of stock
transfer orders, stock powers, notifications to obligors on its Pledged Securities, the providing
of notification in connection with the book entry security or general intangibles and the providing
of instructions to issuers of uncertificated securities or financial intermediaries, and will do
all such other acts as may be necessary or as the Collateral Agent and/or the Instructing Secured
Parties may reasonably request with respect to the perfection and protection of the security
interest granted herein and the security interest effected hereby to perfect or otherwise protect
the security interest and the Lien created hereby, to the extent permitted by applicable law.
17
(b) Each of the Grantors agrees that it shall not (i) sell, license, assign (by operation of
law or otherwise), transfer or otherwise dispose of, or grant any option with respect to, any of
the Intellectual Property Collateral, or any portion thereof, or any interest therein, except as
permitted by the Secured Obligation Documents, and except for Intellectual Property Collateral
which is not material to the business of such Grantor or not commercially viable to maintain, or
(ii) create or suffer to exist any Lien upon or with respect to any of the Intellectual Property
Collateral, except for Liens not prohibited by the Secured Obligation Documents and for the pledge,
assignment and security interest created by this Agreement.
(c) Without limiting the generality of Section 5(a) above, each Grantor will, upon the
reasonable request of the Collateral Agent or if necessary to perfect or maintain the perfection of
the Collateral Agent’s security interest therein or to preserve its Lien thereon, with respect to
the Intellectual Property Collateral owned by such Grantor, execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or notices, as may be
reasonably necessary, or as the Collateral Agent may reasonably request, in order to perfect and
preserve in the United States the pledge, Lien, priority and security interest granted or purported
to be granted hereby, including, without limitation, one or more Grants of Security Interest in
Intellectual Property Rights Agreements substantially in the form attached hereto as Attachment A,
and any updates or amendments thereto.
(d) Each Grantor will furnish to the Collateral Agent from time to time statements and
schedules further identifying and describing the Intellectual Property Collateral and such other
reports in connection with the Intellectual Property Collateral as the Collateral Agent may
reasonably request, all in reasonable detail.
(e) Each Grantor acknowledges and agrees that, if it obtains an ownership interest in any
patent, patent application, Trademark registration or application, Copyright registration or
application, or any interest in a License or other intellectual property, which is not now a part
of the Intellectual Property Collateral (the “New Collateral”), (i) the provisions of
Section 2 will automatically apply thereto, and (ii) any such New Collateral (together with the
goodwill of the business connected with the use of any Trademark that is included in the New
Collateral) will automatically become part of the Intellectual Property Collateral;
provided that (i) to the extent the consent of any other party to any such License is
required, under the terms thereof, for the collateral assignment thereof, or to the extent that any
such License otherwise prohibits the creation of a security interest therein, then this Agreement
shall not affect any collateral assignment of (or otherwise be applied so as to cause a default
under) such License for so long as (but only for so long as) such consent would be required and has
not been obtained and (ii) any New Collateral shall exclude any applications for trademarks or
service marks filed in the PTO pursuant to 15 U.S.C. §1051 Section 1(b) unless and until evidence
of use of the xxxx in interstate commerce is submitted to the PTO pursuant to 15 U.S.C. §1051
Section 1(c) or Section 1(d). Each Grantor further agrees that it shall deliver to the Collateral
Agent a written report, in reasonable detail, on an annual basis concurrent with the delivery of
the audited financial information, setting forth each new patent, patent application, Trademark
registration or application, and Copyright registration or application that such Grantor has filed,
acquired or otherwise obtained in the U.S. during the preceding annual reporting period. Such
Grantor authorizes the Collateral Agent to modify this Agreement by amending Schedules I, II and
III hereto (and shall reasonably cooperate with the Collateral Agent in effecting any such
18
amendment) to include any patent, patent application, Trademark registration or application,
Copyright registration or application, License or other New Collateral which becomes part of the
Intellectual Property Collateral.
(f) With respect to each material patent, patent application, Trademark registration or
application, Copyright registration or application set forth in Schedule I, II or III hereto (as
amended from time to time), each Grantor agrees to take reasonably necessary steps, including,
without limitation, in the United States Patent and Trademark Office and the United States
Copyright Office or in any court, to (i) maintain each such patent, Trademark or Copyright
registration, and (ii) pursue the prosecution of each such patent application, Trademark or
Copyright application now or hereafter included in the Intellectual Property Collateral, including,
without limitation, the filing of responses to office actions issued by the United States Patent
and Trademark Office, the filing of affidavits under Sections 8 and 15 of the United States
Trademark Act, the filing of divisional, continuation, continuation-in-part and substitute
applications, the filing of applications for re-issue, renewal or extensions, the payment of
maintenance fees, and the participation in interference, reexamination, opposition, cancellation,
infringement and misappropriation proceedings, except in each case to the extent that the relevant
Grantor shall have first determined in its sound and reasonable business judgment that such
maintenance or prosecution of the same is no longer desirable in the conduct of such Grantor’s
business or that such Intellectual Property Collateral is not material to such Grantor’s business.
Any and all expenses incurred in connection with such activities will be borne by such Grantor.
(g) In the event that any Pledgor receives or acquires any additional or substitute shares of
Capital Stock of any Person of any class or any additional or substitute note or is owed any other
debt that Pledgor may elect to be evidenced by a note, such Pledgor shall promptly pledge and
deliver to the Collateral Agent certificates representing all such shares and such notes or
instruments representing such other debt owed to it as additional security for the Secured
Obligations. All such shares, notes and instruments shall constitute Pledged Securities and are
subject to all provisions of this Agreement.
(h) From and after the date hereof, if the Issuer or any Grantor acquires any property
which is of a type constituting Collateral under this Agreement or any other Security Document, it
shall as soon as practicable after the acquisition thereof, execute and deliver such security
instruments, financing statements, Mortgages and such certificates and opinions of counsel as are
required under the Indenture and this Agreement to vest in the Collateral Agent a perfected
security interest (subject only to Permitted Liens) in such after-acquired property and to have
such after-acquired property added to the Collateral, and thereupon all provisions of the Indenture
relating to the Collateral shall be deemed to relate to such after-acquired property to the same
extent and with the same force and effect.
(i) On or prior to the date on which any other Additional Secured Debt Documents are
executed or the date on which any other Additional Secured Debt contemplated thereby is incurred,
the Grantors shall (i) cause any other Representatives for Additional Secured Debtholders to enter
into the Pari Passu Intercreditor Agreement, (ii) enter into supplemental Security Documents,
pursuant to which the Grantors shall grant to the Collateral Agent, for the ratable benefit of the
Secured Parties, a security interest in any assets or property of the Grantors
19
not otherwise granted under the Indenture prior to such date to the extent the Grantors grant a
security interest in such assets to the Representative for Additional Secured Debtholders or any
Additional Secured Debtholders; such supplemental Security Documents shall contain such additional
customary covenants, representations, conditions (including delivery of customary legal opinions)
and other provisions relating to such additional assets or the granting of such security interest
as the Collateral Agent may reasonably request, and (iii) enter into and file such other
agreements, amendments, financing statements or other documents as the Collateral Agent shall
reasonably request in furtherance of the foregoing or as are necessary in order to comply with the
requirements of this Agreement and any supplemental Security Documents.
(j) The Collateral Agent shall enter into the (i) Pari Passu Intercreditor Agreement upon
receipt of an Officers’ Certificate from the Issuer certifying that Additional Secured Debt has
been incurred as permitted under the Secured Obligation Documents and (ii) Junior Lien
Intercreditor Agreement upon receipt of any Officers’ Certificate from the Issuer certifying that
Junior Lien Collateral Indebtedness has been incurred as permitted under the Secured Obligation
Documents.
Section 6. Power of Attorney. Each Grantor hereby irrevocably appoints the Collateral
Agent as such Grantor’s attorney-in-fact, effective at all times subsequent to the occurrence of an
Event of Default, and during the continuance thereof, with full authority in the place and stead of
such Grantor and in the name of such Grantor or otherwise, to take any action and to execute any
instrument which the Collateral Agent may deem necessary or advisable to accomplish the purpose of
this Agreement, including, without limitation, the power and right (i) to endorse such Grantor’s
name on any checks, notes, acceptances, money orders, drafts, filings or other forms of payment or
security of such Grantor that may come into the Collateral Agent’s possession, and (ii) to do all
other things which the Collateral Agent then determines to be necessary to carry out the terms of
this Agreement; provided that the Collateral Agent acknowledges that applicable law does
not permit the grantee of a power of attorney to execute any application, report, document or other
instrument to be filed with the Federal Communications Commission on behalf of and in place of the
party granting such power of attorney. Each Grantor ratifies and approves all acts of such
attorney-in-fact. The power conferred on the Collateral Agent hereunder is solely to protect the
Collateral Agent’s and the other Secured Parties’ interests in the Collateral and shall not impose
any duty upon the Collateral Agent to exercise such power. This power of attorney is coupled with
an interest and may not be revoked by any Grantor while any Secured Obligations are owing to the
Collateral Agent or the other Secured Parties.
Section 7. Special Provisions Relating to Certain Collateral.
(a) [Reserved].
(b) Intellectual Property. For the purpose of enabling the Collateral Agent to
exercise rights and remedies under Section 8 of this Agreement at such time as the Collateral Agent
shall be lawfully entitled to exercise such rights and remedies, and for no other purpose, each
Grantor hereby grants to the Collateral Agent, to the extent assignable, licensable, sublicensable,
and/or permitted under the Licenses, an irrevocable, non-exclusive license (exercisable without
payment of royalty or other compensation to such Grantor) to use, assign,
20
license or sublicense any of the Intellectual Property now owned or hereafter acquired by such
Grantor, wherever the same may be located, including in such license reasonable access to all media
in which any of the licensed items may be recorded or stored and to all computer programs used for
the compilation or printout thereof, provided that (i) such license shall be subject to the
exclusive rights of any licensee under a license granted prior to such time, to the extent such
license was in effect as of the date hereof, and (ii) any sublicenses duly granted by the
Collateral Agent under this license shall survive in accordance with their terms.
(c) Accounts Receivable. Until the Collateral Agent elects at the direction of the
Instructing Secured Parties by an Act of Instructing Secured Parties (which direction and election
may only be made after the occurrence of an Event of Default and during the continuation thereof)
that debtors on accounts receivable of any Grantor or obligors on Accounts, Chattel Paper or
General Intangibles of such Grantor or obligors on Instruments for which such Grantor is an obligee
or lessees or conditional vendees under agreements governing the leasing or selling by conditional
sale of Collateral of such Grantor by such Grantor, be notified of the Collateral Agent’s and other
Secured Parties’ security interest, such Grantor shall continue to collect payment thereof. Upon
the making of such an election by the Collateral Agent at the direction of the Instructing Secured
Parties by an Act of Instructing Secured Parties, as and for so long as such Event of Default is
continuing, such Grantor shall hold the proceeds received from collection of such receivables as
trustee for the Collateral Agent and shall turn the same over to the Collateral Agent, or to such
other bank or Person as may be approved by the Collateral Agent, promptly upon receipt in the
identical form received. After the occurrence of an Event of Default and during the continuance
thereof, the Collateral Agent may, upon receiving the direction of the Instructing Secured Parties
by an Act of Instructing Secured Parties, cause such Grantor to notify such account debtors and
obligors that payment thereof is to be made directly to the Collateral Agent, and the Collateral
Agent, upon receiving the direction of the Instructing Secured Parties by an Act of Instructing
Secured Parties, may itself, at any time after the occurrence of an Event of Default and during the
continuance thereof, without notice to or demand upon such Grantor, so notify such account debtors
and obligors. The making of such an election or the giving of any such notification shall not
affect the duties of such Grantor described above with respect to proceeds of collection of
accounts receivable received by such Grantor. The Collateral Agent shall apply the proceeds of such
collection received by the Collateral Agent in accordance with Section 6.10 of the Indenture or
with the provisions of the Pari Passu Intercreditor Agreement if it is in effect.
(d) Pledged Securities. (i) Each Pledgor hereby covenants and agrees
that it will not, except as otherwise not prohibited under the Secured Obligation Documents
(A) directly or indirectly sell, assign, pledge or otherwise encumber or dispose of its
Pledged Securities; or (B) create, incur, assume or permit to exist, and will defend the
Pledged Securities against, and will take such other actions as are necessary to remove, any
Lien or claim on or to the Pledged Securities, other than the Liens created hereby and Liens
permitted under the Secured Obligation Documents, and will defend the right, title and
interest of the Collateral Agent and the Secured Parties in and to any of the Pledged
Securities against the claims and demands of any and all Persons.
21
(ii) Provided that there exists no Event of Default and so long as each Pledgor
shall be the record owner of its Pledged Securities, such Pledgor shall be entitled, to the
extent permitted by applicable law, to exercise voting power and other consensual rights
with respect to its Pledged Securities; provided that in no event shall such Pledgor
exercise such voting power or consensual rights in any manner contrary to or violative of
the terms hereof or with the terms of the Secured Obligation Documents. Upon the occurrence
of an Event of Default which is continuing and notice to the applicable Grantor, the
Collateral Agent and the Secured Parties shall have those rights specified in Section 8,
subject to the receipt of any required Governmental Approvals.
(iii) So long as no Event of Default shall have occurred and be continuing, each
Pledgor shall be entitled to receive and retain, and to utilize free and clear of the Lien
hereof, any and all dividends and distributions made on the Pledged Securities, but only if
and to the extent not prohibited by the terms of the Indenture.
(e) All loss proceeds and other amounts payable under the insurance policies referenced in
paragraph 2(a)(xi) hereof shall be deposited into a segregated account in the name of the
applicable Grantor at the Collateral Agent, in accordance with the terms of the Indenture.
Section 8. Events of Default; Remedies.
(a) (a) Subject to the terms of any applicable Intercreditor Agreement, upon the
occurrence of an Event of Default and during the continuation thereof, whether or not any of the
Secured Obligations are due or the Collateral Agent has received an Act of the Instructing Secured
Parties directing the Collateral Agent to so act, the Collateral Agent (i) may (on behalf of itself
and the other Secured Parties) demand, xxx for, collect, or make any settlement or compromise it
deems desirable with respect to the Collateral in accordance with the terms of the Indenture and
(ii) shall have full power and authority to take the following actions, subject to the receipt of
any required Governmental Approvals and the terms of the Indenture: (A) sell or otherwise dispose
of the Pledged Securities or other Collateral under the Security Documents or any part thereof; (B)
exercise (and it shall have the sole right to exercise) voting and other consensual rights with
respect to the Pledged Securities with respect to any and all matters and to exercise all rights to
payments, conversion, exchange, subscription or otherwise with respect to the Pledged Securities;
(C) exercise any and all rights and remedies of
a secured party under the UCC; and (D) take possession of and sell the Collateral or any part
thereof in accordance with the terms of applicable law and the Security Documents. After the
occurrence and during the continuance of an Event of Default, all dividends and distributions made
on the Pledged Securities shall be paid over to the Collateral Agent (for itself and for the
benefit of the Secured Parties) to be held by the Collateral Agent as collateral security for the
Secured Obligations.
(b) To the extent permitted by any applicable law, any sale or other disposition by the
Collateral Agent, as permitted under Section 8(a) above, may be made by public or private
proceedings and may be made by one or more contracts, as a unit or in parcels, at such time and
place, by such method, in such manner and on such terms as the Collateral Agent may determine.
Except as required by law, such sale or other disposition may be made without advertisement or
notice of any kind or to any person. Where reasonable notification of
22
the time or place of such sale or other disposition is required by law, such requirement shall have
been met if such notice is telegraphed, sent by facsimile, cabled or mailed, postage prepaid, at
least ten (10) days before the time of such sale or other disposition to each person entitled
thereto at such person’s address as specified in Section 19 below. To the extent permitted by any
applicable law, the Collateral Agent and/or any Secured Party may buy any or all of the Pledged
Securities upon any public or private sale thereof. To the extent permitted by any applicable law,
upon any such sale or sales the Pledged Securities so purchased shall be held by the purchaser
absolutely free from any claims or rights of whatsoever kind or nature, including any equity of
redemption or any similar rights, all such equity of redemption and any similar rights being hereby
expressly waived and released by the Pledgor thereof to the extent permitted by applicable law. In
the event any consent, approval or authorization of any governmental agency shall be necessary to
effectuate any such sale or sales, the applicable Pledgor(s) shall execute, and hereby agree to
cause the issuer of any Pledged Securities to execute, as necessary, all applications or other
instruments as may be required; provided that the foregoing shall not obligate such
Pledgor(s) to register the Pledged Securities under the Securities Act of 1933. The proceeds of any
such sale or other disposition shall be applied to the payment of Secured Obligations in the order
of priorities set forth in Section 6.10 of the Indenture. The Pledgors jointly and severally shall
be liable for any deficiency in payment of the Secured Obligations, including all costs and
expenses of collection, custody, sale or other disposition or delivery and all other charges due
against the Pledged Securities, as hereinbefore enumerated.
(c) Each Pledgor recognizes that the Collateral Agent or the Secured Party may be unable
to effect a public sale of all or a part of the Pledged Securities by reason of certain
prohibitions contained in the Securities Act of 1933, but may be compelled to resort to one or more
private sales to a restricted group of purchasers who will be obliged to agree, among other things,
to acquire such Pledged Securities for their own account for investment and not with a view to the
distribution or resale thereof. Each Pledgor agrees that private sales so made may be at a price
and on other terms less favorable to the seller than if such Pledged Securities were sold at public
sales, and that neither the Collateral Agent nor the Secured Party has any obligation to delay the
sale of any such Pledged Securities for the period of time necessary to permit such Pledged
Securities to be registered for public sale under the Securities Act of 1933. Each Pledgor agrees
that sales made under the foregoing circumstances shall not be deemed to have been made in a
commercially unreasonable manner by virtue of any sale made on terms less favorable to the seller
resulting from the private nature of the sale.
Section 9. Marshalling. Neither the Collateral Agent nor any Secured Party shall be
required to marshal any present or future security for (including but not limited to this Agreement
and the Collateral subject to the security interest created hereby), or guarantees of, the Secured
Obligations or any of them, or to resort to such security or guarantees in any particular order;
and all of its rights hereunder and in respect of such securities and guaranties shall be
cumulative and in addition to all other rights, however existing or arising. To the extent that it
lawfully may, each Grantor hereby agrees that it will not invoke any law relating to the
marshalling of Collateral of such Grantor which might cause delay in or impede the enforcement of
the Collateral Agent’s and/or any Secured Party’s rights under this Agreement or under any other
instrument evidencing any of the Secured Obligations or under which any of the Secured Obligations
is outstanding or by which any of the Secured Obligations is secured or guaranteed, and to the
extent that it lawfully may do so such Grantor hereby irrevocably
23
waives the benefits of all such laws. Except as otherwise provided by applicable law, neither the
Collateral Agent nor the Secured Parties shall have any duty as to the collection or protection of
the Collateral or any income thereon, nor as to the preservation of rights against prior parties,
nor as to the preservation of any rights pertaining thereto beyond the sole custody thereof, other
than the duty to use reasonable care in the safe custody of any Pledged Securities in its
possession. Without limiting the generality of the foregoing, the Collateral Agent, although it may
do so at its option, shall be under no obligation to the Pledgors to take any steps necessary to
preserve rights in the Pledged Securities against other parties.
Section 10. Security Interest Absolute. To the extent permitted by applicable law, the
obligations of the Grantors under this Agreement shall remain in full force and effect without
regard to, and shall not be impaired by (a) any bankruptcy, insolvency, reorganization,
arrangement, readjustment, composition, liquidation or the like of any Grantor, to the extent
permitted by law; (b) any exercise or nonexercise, or any waiver, by the Collateral Agent and/or
any Secured Party of any right, remedy, power or privilege under or in respect of any of the
Secured Obligations or any security therefor (including this Agreement); (c) any amendment to or
modification of any instrument evidencing any of the Secured Obligations or pursuant to which any
of them were issued; (d) any amendment to or modification of any instrument or agreement (other
than this Agreement) securing any of the Secured Obligations; or (e) the taking of additional
security for or any guaranty of any of the Secured Obligations or the release or discharge or
termination of any security or guaranty for any of the Secured Obligations; and whether or not such
Grantor shall have notice or knowledge of any of the foregoing.
Section 11. No Waiver. No failure on the part of the Collateral Agent and/or any Secured
Party to exercise, and no delay in exercising, any right, remedy or power hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise by such Person of any right, remedy
or power hereunder preclude any other or future exercise of any other right, remedy or power. Each
and every right, remedy and power hereby granted to the Collateral Agent and/or any Secured Party
or the future holders of any of the Secured Obligations or allowed to any of them by law or other
agreement, shall be cumulative and not exclusive of any other, and, subject to the provisions of
this Agreement, may be exercised by the Collateral Agent and/or any Secured Party or the future
holders of any of the Secured Obligations from time to time.
Section 12. Consents, Amendments and Waivers. Any term of this Agreement may be amended,
and the performance or observance by the Grantors of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or prospectively) only in
accordance with the terms of Article 9 of the Indenture.
Section 13. General Provisions Concerning the Collateral Agent. |
(a) By acceptance of the benefits of this Agreement or any other Secured Obligation
Documents, each Secured Party (whether or not a signatory hereto) shall be deemed irrevocably to
consent to the appointment of, and the general provisions regarding, the Collateral Agent
hereunder.
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(b) The Collateral Agent has been appointed by the Note Holders as collateral agent pursuant
to the Indenture and shall be vested with all of the attendant rights, powers, benefits, privileges
and protections set forth in the Indenture (including, without limitation, the right to
compensation under Section 7.07 thereof), all of which are incorporated herein, mutatis mutandis,
as if a part hereof. Each holder of Secured Obligations by accepting the benefits of this Agreement
hereby appoints The Bank of New York Mellon (or any of its successors or assigns hereunder) as its
collateral agent under this Agreement and the other Security Documents, and hereby authorizes the
Collateral Agent to enter into the Aircraft Security Agreement. The actions of the Collateral Agent
hereunder and under the Aircraft Security Agreement are subject to the provisions of the Indenture
and of this Article 13. The Collateral Agent shall have the right hereunder and under the Aircraft
Security Agreement to make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking action (including the release or substitution of the
Collateral), in accordance with this Agreement, the Aircraft Security Agreement and the Indenture.
The Collateral Agent may employ agents and attorneys-in-fact in connection herewith and shall not
be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it
in good faith. The Collateral Agent may resign and a successor Collateral Agent may be appointed in
the manner provided in the Indenture for a successor Trustee. Upon the acceptance of any
appointment as the Collateral Agent by a successor Collateral Agent, that successor Collateral
Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Collateral Agent under this Agreement and the Aircraft Security Agreement,
and the retiring Collateral Agent shall thereupon be discharged from its duties and obligations
under this Agreement the Aircraft Security Agreement. After any retiring Collateral Agent’s
resignation, the provisions hereof shall inure to its benefit as to any actions taken or omitted to
be taken by it under this Agreement and the Aircraft Security Agreement while it was the Collateral
Agent.
(c) The Collateral Agent shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if such Collateral is accorded treatment
substantially equivalent to that which the Collateral Agent, in its individual capacity, accords
its own property consisting of similar instruments or interests, it being understood that neither
the Collateral Agent nor any of the Secured Parties shall have responsibility for taking any
necessary steps to preserve rights against any person with respect to any Collateral.
(d) The Collateral Agent shall be entitled to rely upon any written notice, statement,
certificate, order or other document or any telephone message believed by it to be genuine and
correct and to have been signed, sent or made by the proper person, and, with respect to all
matters pertaining to this Agreement, the Aircraft Security Agreement and its duties hereunder and
thereunder, upon advice of counsel selected by it.
(e) If any item of Collateral also constitutes collateral granted to the Collateral Agent
under any other deed of trust, mortgage, security agreement, pledge or instrument of any type, in
the event of any conflict between the provisions hereof and the provisions of such other deed of
trust, mortgage, security agreement, pledge or instrument of any type in respect of such
collateral, the Collateral Agent, in its sole discretion, shall select which provision or
provisions shall control.
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(f) The powers conferred on the Collateral Agent hereunder and the Aircraft Security Agreement
are solely to protect the interests of the Collateral Agent in the Collateral and shall not impose
any duty upon the Collateral Agent to exercise any such powers.
(g) Neither the Collateral Agent nor any of its officers, directors, employees or agents shall
be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Grantor or any other person or to take any other action whatsoever with regard to
the Collateral or any part thereof. The Collateral Agent shall be accountable only for amounts that
it actually receives as a result of the exercise of such powers, and neither it nor any of its
officers, directors, employees or agents shall have any duty or liability or be responsible to any
Grantor for any act or failure to act hereunder, except for its own gross negligence or willful
misconduct. The Collateral Agent shall have no duty or liability as to the taking of any necessary
steps to preserve or protect the Collateral or to preserve rights against prior parties. Nothing
contained in this Agreement shall be construed as requiring or obligating the Collateral Agent, and
the Collateral Agent shall not be required or obligated, to (i) present or file any claim or notice
or take any action with respect to any Collateral or in connection therewith or (ii) notify any
Grantor of any decline in the value of any Collateral. The Collateral Agent shall have no duty as
to the collection of any Collateral in its possession or control or in the possession or control of
any agent or nominee of the Collateral Agent, or any income thereon or any other rights pertaining
thereto.
(h) The Collateral Agent shall not be responsible for perfecting or maintaining the
perfection of any security interest granted to it under this Agreement or the Aircraft Security
Agreement or for filing, refiling, recording, re-recording or continuing any document, financing
statement, notice or instrument in any public office at any time or times and shall not be
responsible for seeing to the provision of insurance on or the payment of any taxes with respect to
any property subject to this Agreement or the Aircraft Security Agreement.
(i) No provision of this Agreement or the Aircraft Security Agreement shall be deemed to
impose any duty or obligation on the Collateral Agent to perform any act or acts, receive or obtain
any interest in property or exercise any interest in property, or exercise any right, power, duty
or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in
which the Collateral Agent shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts, to receive or obtain any such interest in property or to exercise
any such right, power, duty or obligation; and no permissive or discretionary power or authority
available to the Collateral Agent shall be construed to be a duty.
(j) The Collateral Agent shall have the right hereunder and under the Aircraft Security
Agreement to make demands, to give notices, to exercise or refrain from exercising any rights, and
to make or refrain from taking action (including without limitation, the release or substitution of
Collateral), in each case in accordance with this Agreement or the Aircraft Security Agreement and
the Indenture.
(k) Upon retiring, the Collateral Agent shall thereupon be discharged from its duties and
obligations under this Agreement and the Aircraft Security Agreement. After any retiring Collateral
Agent’s resignation, the provisions of this Agreement and the Aircraft
26
Security Agreement shall inure to its benefit as to any actions taken or omitted to be taken by it
under this Agreement and the Aircraft Security Agreement while it was the Collateral Agent.
(l) The Collateral Agent shall not have any liability hereunder except for its own gross
negligence or willful misconduct and under no circumstances shall the Collateral Agent be liable
for any special, punitive, exemplary or consequential damages.
(m) (i) Each Grantor jointly and severally agrees to defend, protect, indemnify
and hold the Collateral Agent and its officers, employees, shareholders, directors,
successors, assigns, agents, legal advisors, and financial advisors (each individually, an
“Indemnitee” and collectively, the “Indemnitees”) harmless from and against
any and all damages, losses, liabilities, obligations, penalties, fees, costs and expenses
(including, without limitation, reasonable legal fees, costs and expenses of counsel) to the
extent that they arise out of or otherwise result from this Agreement or the Aircraft
Security Agreement (including, without limitation, enforcement of this Agreement or the
Aircraft Security Agreement); provided, however, that the Grantors shall not have
any obligation under this paragraph 13(m) to any Indemnitee to the extent caused by such
Person’s gross negligence or willful misconduct.
(ii) Each Grantor jointly and severally agrees to reimburse the Collateral Agent
upon demand for the amount of any and all costs and expenses, including the reasonable
out-of-pocket fees, expenses and disbursements of counsel for the Collateral Agent and of
any experts and agents, which the Collateral Agent may incur in connection with (A) the
preparation, negotiation, execution, delivery, recordation, administration, amendment,
waiver or other modification or termination of this Agreement or the Aircraft Security
Agreement, (B) the custody, preservation, use or operation of, or the sale of, collection
from, or other realization upon, any Collateral, (C) the exercise or enforcement of any of
the rights of the Collateral Agent hereunder or under or the Aircraft Security Agreement or
(D) services rendered as Collateral Agent.
(iii) Without limiting the application of paragraphs 13(m)(i) or (ii) hereof, each
Grantor agrees to pay, or reimburse the Collateral Agent for, any and all third party fees,
costs and expenses of whatever kind or nature incurred in connection with the creation,
preservation or protection of the Collateral Agent’s security interest in the Collateral,
including, without limitation, all fees and taxes in connection with the recording or filing
of instruments and documents in public offices, payment or discharge or any taxes or Lien
upon or in respect of the Collateral, premiums for insurance with respect to the Collateral
and all other fees, costs and expenses in connection with protecting, maintaining or
preserving the Collateral and the Collateral Agent’s interest therein, whether through
judicial proceedings or otherwise, or in defending or prosecuting any actions, suits or
proceedings arising out of or relating to the Collateral.
(iv) If and to the extent that the obligations of a Grantor under this paragraph
13(m) are unenforceable for any reason, such Grantor hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations that is permissible under
applicable law.
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(n) The Collateral Agent shall not be liable for any action it takes or omits to take in
good faith in accordance with the direction of the Instructing Secured Parties by an Act of
Instructing Secured Parties and shall be entitled to indemnification satisfactory to it in its sole
discretion against all losses and expenses caused by taking or not taking such action; provided
that the Collateral Agent may refuse to follow any such direction that would involve it in personal
liability.
Section 14. Governing Law; Waiver of Trial by Jury. This Agreement and all claims, disputes
and matters arising hereunder or related hereto shall be governed by and construed under the laws
of the State of New York. The parties acknowledge and submit for themselves and their property in
any legal action or proceeding relating to this Agreement, or for recognition and enforcement of
any judgment in respect thereof, to, the non-exclusive jurisdiction of the state and federal courts
located within the County of New York, State of New York over controversies arising from or
relating to this Agreement, and consent that any such action or proceeding may be brought in such
courts and waive any objection that they may now or hereafter have to the venue of any such action
or proceeding in any such court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same. The parties agree that nothing herein shall limit
the right to xxx in any other jurisdiction. The parties hereto irrevocably waive, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby, as well as
any right to claim or recover in any legal action or proceeding referred to in this Section any
special, exemplary, punitive or consequential damages. The Grantors hereby agree that service of
process in any such action or proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage prepaid, to the applicable
address referred to in Section 19 hereof or at such other address of which the Collateral Agent
shall have been notified pursuant thereto. The parties agrees that nothing herein shall affect the
right to effect service of process in any other manner permitted by law.
Section 15. Parties in Interest. All terms of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and assigns of the parties
hereto; provided that, except in connection with an action not prohibited by the Indenture,
no Grantor may assign or transfer its rights hereunder without the prior written consent of the
Collateral Agent and the Instructing Secured Parties. Any assignment or transfer by any Grantor of
its rights hereunder that does not comply with the assignment provisions in the Indenture or is in
violation of this Agreement shall be void.
Section 16. Counterparts. This Agreement and any amendment hereof may be executed in any
number of counterparts and by each party on a separate counterpart, which when so executed and
delivered shall be an original, but all of which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page to this Agreement by electronic transmission shall
be effective as delivery of an original executed counterpart of this Agreement.
Section 17. Termination. Upon a discharge of Secured Obligations, such discharge to be
evidenced to the Collateral Agent by an Officers’ Certificate of the Issuer, this Agreement and the
Liens and the pledge and security interests created hereunder shall automatically terminate
28
and the Collateral Agent (on behalf of itself and the Secured Parties) shall, subject to payment of
its charges, return to the Grantors, at the expense of the Grantors and without recourse or
warranty, such Collateral in the possession or control of the Collateral Agent as has not
theretofore been disposed of pursuant to the provisions hereof, together with any moneys and other
property at the time held by the Collateral Agent hereunder, and shall deliver to the Grantors
documents in recordable form (which documents shall be prepared by, and the expense thereof to be
borne by, the Grantors) sufficient to discharge the Liens and security interests granted hereunder.
Section 18. Releases. Notwithstanding anything to the contrary herein, (i) all or a portion
of the Collateral may be released from the Liens and security interests created hereby and (ii) a
Grantor may be released from its obligations hereunder, in each case as provided in the Indenture.
Section 19. Notices. Except as otherwise expressly provided herein, notices and other
communications shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail, or sent by fax, as follows:
(a) | if to the Issuer or the Grantors: | ||
GeoEye, Inc. 00000 Xxxxxxxx Xxxxxxxxx Xxxxxx, XX 00000 Facsimile: 703.450.9570 |
|||
(b) | if to the Collateral Agent or the Indenture Trustee: Xxxxxxxx X. Xxxxx — Vice President The Bank of New York Mellon 000 Xxxxxxx Xxxxxx, 0X Xxx Xxxx, XX 00000 |
Any of the foregoing parties may specify a different or an additional address to which notices
should be sent under this Agreement by sending other parties written notice of the new or
additional address in the manner provided in this Section.
All notices and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the Business Day of receipt if
delivered by hand or overnight courier service or sent by fax or on the date five Business Days
after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 19 or in accordance with the latest
unrevoked direction from such party given in accordance with this Section 19.
Section 20. Additional Grantors. Each Subsidiary of the Issuer that is required to become a
party to this Agreement from time to time subsequent to the date hereof pursuant to any Secured
Obligation Document shall become a Grantor (an “Additional Grantor”) and/or Pledgor (an
“Additional Pledgor”) under this Agreement for all purposes of this Agreement upon
29
the execution and delivery of a joinder to this Agreement substantially in the form of Exhibit A
attached hereto. Upon delivery of any such joinder to the Collateral Agent, notice of which is
hereby waived by the Grantors, each such Additional Grantor and/or Additional Pledgor shall be a
Grantor and, as applicable, Pledgor, and shall be as fully a party hereto as if such Additional
Grantor and, as applicable, Additional Pledgor were an original signatory hereof. Each Grantor
and/or Pledgor expressly agrees that its obligations arising hereunder shall not be affected or
diminished by the addition or release of any other Grantor and/or Pledgor hereunder. This Agreement
shall be fully effective as to any Grantor and/or Pledgor that is or becomes a party hereto
regardless of whether any other Person becomes or fails to become or ceases to be a Grantor or, as
applicable, Pledgor hereunder.
Section 21. Additional Secured Obligations. On or after the date hereof and from time to
time, upon the compliance by any Additional Secured Debtholder with the terms of Section 5.13 of
the Pari Passu Intercreditor Agreement and Section 5(i) hereof, the Additional Secured Obligations
of such Additional Secured Debtholder shall be deemed to be Additional Secured Obligations
hereunder. Each Representative for Additional Secured Debtholders agrees to the appointment of the
Collateral Agent as agent for the holders of such Additional Secured Obligations, and the
Representative for Additional Secured Obligations shall, on behalf of itself and each Additional
Secured Debtholder it represents, be bound by this Agreement.
Section 22. Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law, or public policy, all other conditions
and provisions of this Agreement will nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision is invalid, illegal
or incapable of being enforced, the parties hereto will negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent
possible.
Section 23. Telecommunication Approvals. Notwithstanding any other provision of this
Agreement, the Indenture or any Additional Secured Debt Documents to the contrary, no action shall
be taken hereunder by the Collateral Agent or any other Secured Party with respect to any item of
Collateral that would constitute or result in any transfer (with respect to those issued by the FCC
or any other Telecommunications Authority) or assignment (with respect to those issued by NOAA) of
any Telecommunications Approvals or any change of control of the holder of any Telecommunications
Approvals, if, under then-existing applicable law, regulations and policies, such assignment or
change of control would require the prior approval of the Telecommunications Authority issuing such
Telecommunications Approvals. If an Event of Default has occurred and is continuing, the Issuer
agrees to take, or to cause its Subsidiaries to take, at the Issuer’s expense, any action that is
necessary or that the Collateral Agent may reasonably request in order to obtain from such
Governmental Body such approval as may be necessary (a) to enable the Collateral Agent to exercise
and enjoy the full rights and benefits granted to the Collateral Agent by this Agreement and each
other agreement, instrument and document delivered to the Collateral Agent in connection herewith
and (b) for any action or transaction contemplated by this Agreement for which such approval is or
shall be required by law, and specifically, without limitation, upon request by the Collateral
Agent or
30
otherwise, to prepare, sign and file with such Governmental Body the assignor’s or transferor’s
portion of any application or applications for consent to the assignment of any license or transfer
of control necessary to appropriate under such Governmental Body’s rules and regulations, or for
approval of any sale of the Collateral provided by this Agreement by or on behalf of the Collateral
Agent or assumption by the Collateral Agent of voting rights relating thereto effected in
accordance with the terms hereof.
Section 24. Integration; Conflicts. This Agreement and the other Secured Obligation
Documents contain and constitute the entire agreement of the parties hereto with respect to the
subject matter hereof and supersedes all prior negotiations, agreements and understandings, whether
written or oral, of such parties. In the event that there is a conflict between any provision of
this Agreement and the Indenture, then the provisions of the Indenture shall control.
Section 25. Authorization of Financing Statements. Each Grantor authorizes the Collateral
Agent to file or record financing statements and other filing or recording documents or instruments
with respect to the Collateral in such form and in such offices as the Collateral Agent determines
appropriate to perfect the security interests of the Collateral Agent under this Agreement, and
each Grantor authorizes the Collateral Agent to use collateral descriptions such as “all personal
property” or “all assets”, in each case “whether now owned or hereafter acquired”, words of similar
import or any other description the Collateral Agent, in its sole discretion, so chooses in any
such financing statements.
Section 26. Transfer of Pledged Stock and Notation on Books and Records. Each Pledgor
hereby irrevocably appoints the Collateral Agent for itself and (for the benefit of the Secured
Parties) as agent to arrange for any and all transfers of its Pledged Securities as the Collateral
Agent (for itself and for the benefit of the Secured Parties) may from time to time deem advisable
and to assist the Collateral Agent in the transfer (solely after the occurrence of and during the
continuance of an Event of Default and subject to the receipt of any required Governmental
Approvals) of the Pledged Securities into the name of the Collateral Agent or its nominee at any
time and/or the provision of instructions to the issuers of uncertificated securities or financial
intermediaries to initiate actions to enforce any of the Collateral Agent’s and/or Secured Parties’
rights to such Pledged Securities, the foregoing appointment being deemed a power coupled with an
interest and irrevocable. The right to vote the Pledged Securities is governed by Section 7(d)(ii)
of this Agreement.
Section 27. Payment of Taxes, Charges, etc. At any time following the occurrence or during
the continuation of an Event of Default, if Pledgor fails to pay when due and payments have been
delinquent for thirty (30) days, the Collateral Agent, at its option, may (but shall not be
obligated to) discharge any taxes, charges, assessments, security interests, Liens or other
encumbrances upon the Pledged Securities or otherwise protect the value thereof. All such
expenditures incurred by the Collateral Agency shall be payable by the Pledgors to the Collateral
Agent upon demand.
Section 28. Waivers. Each Grantor hereby waives demand, payment, notice of dishonor or
protest and all other notices of any kind in connection with the Secured Obligations, and all other
notices to which such Grantor might otherwise be entitled, except as otherwise expressly provided
herein or in the Secured Obligation Documents. The Collateral Agent may
31
release, supersede, exchange or modify any other collateral security which it may from time to time
hold and may release, surrender or modify the liability of any third party without giving notice
hereunder to the Pledgors. Such modifications, charges, renewals, releases or other actions shall
in no way affect the Pledgors’ obligations hereunder.
Section 29. Rights. No course of dealing between the Pledgors, the Collateral Agent and/or
the Secured Parties nor any delay in exercising, on the part of the Collateral Agent and/or any
Secured Party of any right, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any rights, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or privilege. The rights and
remedies hereunder are cumulative and are in addition to, and not exclusive of, any rights or
remedies provided by law, including, without limitation, the rights and remedies of a secured party
under the UCC.
Section 30. Binding Effect. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns, including any other holder or
holders of any Secured Obligations and may be executed in two or more counterparts, each of which
shall together constitute one and the same agreement.
Section 31. Survival. All representations, warranties, covenants and agreements
contained herein shall survive the execution and delivery of this Agreement and the other
Secured Obligation Documents and shall continue until payment in full of all Secured
Obligations.
Section 32. Intercreditor Agreement. Notwithstanding anything herein to the contrary, the
lien and security interest granted to the Collateral Agent pursuant to any Security Document
(including, without limitation, this Agreement) and the exercise of any right or remedy by the
Collateral Agent hereunder or under any other Security Document are subject to the provisions of
each Intercreditor Agreement, as applicable. In the event of any conflict between the terms of any
Intercreditor Agreement, this Agreement and any other Security Document, the terms of the
applicable Intercreditor Agreement shall govern and control with respect to any right or remedy.
[Remainder of page intentionally left blank]
32
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed
by their authorized representatives as of the date first written above.
GeoEye, Inc. | ||||||||
By: | /s/ Xxxxxx X. Xxxxxxx | |||||||
Name: | Xxxxxx X. Xxxxxxx | |||||||
Title: | Executive Vice President | |||||||
and Chief Financial Officer |
[Signature Page to Security Agreement]
GUARANTORS: | ||||||||
ORBIMAGE Inc. | ||||||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
Name: | Xxxxxxx X. Xxxxxx | |||||||
Title: | Senior Vice President, | |||||||
General Counsel and Secretary | ||||||||
ORBIMAGE SI Holdco Inc. | ||||||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
Name: | Xxxxxxx X. Xxxxxx | |||||||
Title: | Vice President and Secretary | |||||||
ORBIMAGE SI Opco Inc. | ||||||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
Name: | Xxxxxxx X. Xxxxxx | |||||||
Title: | Vice President and Secretary | |||||||
i5, Inc. | ||||||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
Name: | Xxxxxxx X. Xxxxxx | |||||||
Title: | Vice President and Secretary | |||||||
X.X. Xxxxxx Associates, Inc. | ||||||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
Name: | Xxxxxxx X. Xxxxxx | |||||||
Title: | Vice President and Secretary | |||||||
ORBIMAGE License Corp. | ||||||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||||||
Name: | Xxxxxxx X. Xxxxxx | |||||||
Title: | Vice President and Secretary |
[Signature Page to Security Agreement]
THE BANK OF NEW YORK MELLON, | |||||
as Collateral Agent | |||||
By: |
/s/ Xxxxxxxxxxx Xxxxxx |
||||
Title: Vice President |
[Signature Page to Security Agreement]
SCHEDULE I
TO
SECURITY AGREEMENT
TO
SECURITY AGREEMENT
U.S. and Foreign Patents and Patent Applications
Orbimage SI Opco Inc.
Title | App./Reg. No. | |
Tonal balancing of multiple images |
7,236,646 (App. # 10/423,720) |
|
Estimation of coefficients for a rational polynomial camera model |
7,421,151 | |
Enhancing the resolution of multi-spectral image data with panchromatic
image data using super resolution pan-sharpening |
5,949,914 | |
Image warp |
7,269,299 (App. # 10/684,295) |
|
*Tonal balancing of multiple images |
7,317,844 | |
System for matching nodes of spatial data sources |
6,408,085 | |
Apparatuses and methods for mapping image coordinates to ground coordinates |
6,735,348 | |
Analysis of multi-spectral data for extraction of chlorophyll content |
6,366,681 | |
Estimation of Coefficients for a Rational Polynomial Camera Model |
10/849,276 | |
Semi-Automatic Extraction of Linear Features from Image Data |
11/764,765 | |
Image Warp |
11/835,169 | |
Semi-Automatic Extraction of Linear Features from Multispectral Image Data |
11/416,282 | |
Semi-Automatic Extraction of Linear Features from Radar Image Data |
11/416,276 |
* | USPTO records indicate that the patent is owned by ORBIMAGE SI Opco Inc. DBA GeoEye. |
Schedule I
SCHEDULE II
TO
SECURITY AGREEMENT
TO
SECURITY AGREEMENT
U.S. and Foreign Trademark Registrations and Applications |
Orbimage Inc.
U.S.
Title | App./Reg. No. | |||
GEOEYE AND DESIGN |
3,370,534 | |||
ORBVIEW |
2,091,116 | |||
TRIFID |
1,700,341 | |||
TRIFID AND DESIGN |
1,698,907 | |||
ORBIMAGE |
2,039,409 | |||
SEE THE POSSIBILITIES |
2,727,428 | |||
*GEOEYE |
3,529,980 | |||
*GEOESP |
77/635,400 | |||
*SEE THE WORLD |
3,470,977 | |||
*IMAGE THE WORLD, IMAGINE THE POSSIBILITIES |
77/412,870 |
* | USPTO records indicate that the trademark registration/application is owned by ORBIMAGE Inc. DBA GeoEye. |
Foreign
International Register (Madrid) | 896884 16-MAR-2006 | Protection extended to: Australia, Bahrain, the EU, North Korea, South Korea, Poland, Turkey |
Orbimage SI Opco Inc.
U.S.
Title | App./Reg. No. | |||
IKONOS |
2,650,079 | |||
CARTERRA |
2,105,901 | |||
CARTERRA |
2,047,487 | |||
ROADTRACKER |
3,482,049 | |||
*XX XXXXXX |
3,519,225 |
* | USPTO records indicate that the trademark registration/application is owned by ORBIMAGE SI Opco Inc. DBA GeoEye. |
Schedule II
Additional Foreign Trademarks
The following foreign trademarks were assigned to Orbimage SI Opco Inc. (“Opco”) pursuant to
that certain Trademark Assignment, dated as of January 10, 2006, made by Space Imaging LLC in
favor of Opco. The assignment was not recorded in any of the jurisdictions listed below,
because all such trademarks are immaterial to the business of the Grantors and will be
abandoned.
COUNTRY | ||||||
OWNER | XXXX | REG. NO. | ||||
Australia |
SPACE IMAGING and design | 649692 | ||||
Space Imaging, Inc. |
||||||
Australia |
SPACE IMAGING and design | 649693 | ||||
Space Imaging, Inc. |
||||||
Australia |
SPACE IMAGING and design | 649694 | ||||
Space Imaging, Inc. |
||||||
Brazil |
CARTERRA | 822781182 | ||||
Space Imaging, LLC |
||||||
Brazil |
CARTERRA | 822781247 | ||||
Space Imaging, LLC |
||||||
Brazil |
CARTERRA | 822781190 | ||||
Space Imaging, LLC |
||||||
Brazil |
SPACE IMAGING | 818414146 | ||||
Space Imaging, Inc. |
||||||
Brazil |
SPACE IMAGING | 818414154 | ||||
Space Imaging, Inc. |
||||||
Brazil |
SPACE IMAGING | 818414332 | ||||
Space Imaging, Inc. |
||||||
Brazil |
SPACE IMAGING DO BRASIL and design | 824683919 | ||||
Space Imaging, Inc. |
||||||
Brazil |
SPACE IMAGING DO BRASIL and design | 824683935 | ||||
Space Imaging, Inc. |
||||||
Brazil |
SPACE IMAGING DO BRASIL and design | 824683862 | ||||
Space Imaging, Inc. |
||||||
Brunei |
SPACE IMAGING | 20,252 | ||||
Space Imaging, Inc. |
||||||
Brunei |
SPACE IMAGING | 20,968 | ||||
Space Imaging, Inc. |
||||||
Brunei |
SPACE IMAGING and design | 20,341 | ||||
Space Imaging, Inc. |
Schedule II
COUNTRY | ||||||
OWNER | XXXX | REG. NO. | ||||
China |
SPACE IMAGING | 975811 | ||||
Space Imaging, Inc. |
||||||
China |
SPACE IMAGING | 968290 | ||||
Space Imaging, Inc. |
||||||
China |
SPACE IMAGING | 947672 | ||||
Space Imaging, Inc. |
||||||
China |
SPACE IMAGING and design | 975842 | ||||
Space Imaging, Inc. |
||||||
China |
SPACE IMAGING and design | 968291 | ||||
Space Imaging, Inc. |
||||||
China |
SPACE IMAGING and design | 943791 | ||||
Space Imaging, Inc. |
||||||
CTM |
CARTERRA | 1602457 | ||||
Space Imaging, LLC |
||||||
Ecuador |
CARTERRA | 11064-01 | ||||
Space Imaging, LLC |
||||||
Ecuador |
CARTERRA | 11065-01 | ||||
Space Imaging, LLC |
||||||
Ecuador |
CARTERRA | 3557-01 | ||||
Space Imaging, LLC |
||||||
Egypt |
SPACE IMAGING | 93851 | ||||
Space Imaging, Inc. |
||||||
Egypt |
SPACE IMAGING | 93853 | ||||
Space Imaging, Inc. |
||||||
Egypt |
SPACE IMAGING | 93855 | ||||
Space Imaging, Inc. |
||||||
Egypt |
SPACE IMAGING and design | 93852 | ||||
Space Imaging, Inc. |
||||||
Egypt |
SPACE IMAGING and design | 93854 | ||||
Space Imaging, Inc. |
||||||
Egypt |
SPACE IMAGING and design | 93856 | ||||
Space Imaging, Inc. |
||||||
Finland |
SPACE IMAGING | 201781 | ||||
Space Imaging, Inc. |
||||||
Finland |
SPACE IMAGING and design | 201782 | ||||
Space Imaging, Inc. |
||||||
France |
SPACE IMAGING | 95 557 052 | ||||
Space Imaging, Inc. |
Schedule II
COUNTRY | ||||||
OWNER | XXXX | REG. NO. | ||||
France Space Imaging, Inc. |
SPACE IMAGING and design | 95557051 | ||||
Germany Space Imaging, Inc. |
SPACE IMAGING and design | 2 911 766 | ||||
Hong Kong Space Imaging, Inc. |
SPACE IMAGING and design | 1998B1904 | ||||
Hong Kong Space Imaging, Inc. |
SPACE IMAGING and design | 1998B1905 | ||||
Hong Kong Space Imaging, Inc. |
SPACE IMAGING and design | 1998B00843 | ||||
India Space Imaging, Inc. |
SPACE IMAGING | 000000 | ||||
Xxxxx Space Imaging, Inc. |
SPACE IMAGING and design | 000000 | ||||
Xxxxxx Space Imaging LLC |
CARTERRA | 000000 | ||||
Xxxxxx Space Imaging LLC |
CARTERRA | 000000 | ||||
Xxxxxx Space Imaging LLC |
CARTERRA | 000000 | ||||
Xxxxxx Space Imaging, Inc. |
SPACE IMAGING | 00000 | ||||
Xxxxxx Space Imaging, Inc. |
SPACE IMAGING | 00000 | ||||
Xxxxxx Space Imaging, Inc. |
SPACE IMAGING | 00000 | ||||
Xxxxxx Space Imaging, Inc. |
SPACE IMAGING and design | 00000 | ||||
Xxxxxx Space Imaging, Inc. |
SPACE IMAGING and design | 00000 | ||||
Xxxxxx Space Imaging, Inc. |
SPACE IMAGING and design | 00000 | ||||
Xxxxx Space Imaging LLC |
CARTERRA | 4,740,871 | ||||
Japan Space Imaging, Inc. |
SPACE IMAGING | 0000000 | ||||
Xxxxx Space Imaging, Inc. |
SPACE IMAGING | 3345106 |
Schedule II
COUNTRY | ||||||
OWNER | XXXX | REG. NO. | ||||
Japan |
SPACE IMAGING | 4167820 | ||||
Space Imaging, Inc. |
||||||
Korea |
CARTERRA | 6,504 | ||||
Space Imaging LLC |
||||||
Korea |
SPACE IMAGING | 346574 | ||||
Space Imaging, Inc. |
||||||
Korea |
SPACE IMAGING | 343153 | ||||
Space Imaging, Inc. |
||||||
Korea |
SPACE IMAGING | 34119 | ||||
Space Imaging, Inc. |
||||||
Korea |
SPACE IMAGING and design | 346575 | ||||
Space Imaging, Inc. |
||||||
Korea |
SPACE IMAGING and design | 343154 | ||||
Space Imaging, Inc. |
||||||
Korea |
SPACE IMAGING and design | 34120 | ||||
Space Imaging, Inc. |
||||||
Mexico |
CARTERRA | 658,076 | ||||
Space Imaging LLC |
||||||
Mexico |
CARTERRA | 658,077 | ||||
Space Imaging LLC |
||||||
Mexico |
CARTERRA | 658,078 | ||||
Space Imaging LLC |
||||||
Myanmar |
SPACE IMAGING | IV/2093/2002 | ||||
Space Imaging, Inc. |
||||||
Myanmar |
SPACE IMAGING and design | IV/2094/2002 | ||||
Space Imaging, Inc. |
||||||
Saudi Arabia |
SPACE IMAGING and design | 635/12 | ||||
Space Imaging, Inc. |
||||||
Saudi Arabia |
SPACE IMAGING and design | 635/52 | ||||
Space Imaging, Inc. |
||||||
Singapore |
SPACE IMAGING | T95/01222G | ||||
Space Imaging, Inc. |
||||||
Singapore |
SPACE IMAGING | T95/01223E | ||||
Space Imaging, Inc. |
||||||
Singapore |
SPACE IMAGING | T95/01224C | ||||
Space Imaging, Inc. |
||||||
Singapore |
SPACE IMAGING and design | T95/01225A | ||||
Space Imaging, Inc. |
Schedule II
COUNTRY | ||||||
OWNER | XXXX | REG. NO. | ||||
Singapore |
SPACE IMAGING and design | T95/01226Z | ||||
Space Imaging, Inc. |
||||||
Singapore |
SPACE IMAGING and design | T95/01227H | ||||
Space Imaging, Inc. |
||||||
South Africa |
SPACE IMAGING | 95/04175 | ||||
Space Imaging, Inc. |
||||||
South Africa |
SPACE IMAGING | 95/04176 | ||||
Space Imaging, Inc. |
||||||
South Africa |
SPACE IMAGING | 95/04177 | ||||
Space Imaging, Inc. |
||||||
South Africa |
SPACE IMAGING and design | 95/04178 | ||||
Space Imaging, Inc. |
||||||
South Africa |
SPACE IMAGING and design | 95/04179 | ||||
Space Imaging, Inc. |
||||||
South Africa |
SPACE IMAGING and design | 95/04180 | ||||
Space Imaging, Inc. |
||||||
SPAIN |
SPACE IMAGING | 1945194 | ||||
Space Imaging, Inc. |
||||||
SPAIN |
SPACE IMAGING | 1945195 | ||||
Space Imaging, Inc. |
||||||
Spain |
SPACE IMAGING | 1945196 | ||||
Space Imaging, Inc. |
||||||
Spain |
SPACE IMAGING and design | 1945197 | ||||
Space Imaging, Inc. |
||||||
Spain |
SPACE IMAGING and design | 1945198 | ||||
Space Imaging, Inc. |
||||||
Spain |
SPACE IMAGING and design | 1945199 | ||||
Space Imaging, Inc. |
||||||
Taiwan |
SPACE IMAGING | 729951 | ||||
Space Imaging, Inc. |
||||||
Taiwan |
SPACE IMAGING | 723773 | ||||
Space Imaging, Inc. |
||||||
Taiwan |
SPACE IMAGING | 84910 | ||||
Space Imaging, Inc. |
||||||
Taiwan |
SPACE IMAGING and design | 726293 | ||||
Space Imaging, Inc. |
||||||
Thailand |
SPACE IMAGING | KOR 181262 | ||||
Space Imaging, Inc. |
Schedule II
COUNTRY | ||||||
OWNER | XXXX | REG. NO. | ||||
Thailand |
SPACE IMAGING | KOR 180622 | ||||
Space Imaging, Inc. |
||||||
Thailand |
SPACE IMAGING | Bor 19808 | ||||
Space Imaging, Inc. |
||||||
Thailand |
SPACE IMAGING and design | Kor182051 | ||||
Space Imaging, Inc. |
||||||
Thailand |
SPACE IMAGING and design | KOR 180623 | ||||
Space Imaging, Inc. |
||||||
Thailand |
SPACE IMAGING and design | Bor 19809 | ||||
Space Imaging, Inc. |
||||||
United Arab Emirates |
SPACE IMAGING | 39267 | ||||
Space Imaging, Inc. |
||||||
United Arab Emirates |
SPACE IMAGING and design | 36228 | ||||
Space Imaging, Inc. |
||||||
Venezuela |
CARTERRA | P-233.101 | ||||
Space Imaging LLC |
||||||
Venezuela |
CARTERRA | P-233.102 | ||||
Space Imaging LLC |
||||||
Venezuela |
CARTERRA | S-17.248 | ||||
Space Imaging LLC |
Schedule II
SCHEDULE III
TO
SECURITY AGREEMENT
TO
SECURITY AGREEMENT
U.S. and Foreign Copyright Registrations and Applications |
Orbimage SI Opco Inc.
Title | App./Reg. No. | |
RoadTracker software
|
TXU001216762 |
X.X. Xxxxxx Associates, Inc.
Title | App./Reg. No. | |
PipeView
|
TXU000739122 |
Schedule III
SCHEDULE IV
TO
SECURITY AGREEMENT
TO
SECURITY AGREEMENT
Commercial Tort Claims
None.
Schedule IV
SCHEDULE V
TO
SECURITY AGREEMENT
TO
SECURITY AGREEMENT
Liens
Debtor | Secured Party | File Number | Filing Date | Jurisdiction | Collateral | |||||||
1
|
Geoeye, Inc. 00000 Xxxxx Xx. Xxxxxxx, XX 00000 |
General Electric Capital Corporation X.X. Xxx 00000 Xxxxxxxx, XX 00000-000 |
Original 2009 2865092 |
09/04/09 | DE SOS | Leased equipment. | ||||||
2
|
X.X. Xxxxxx Associates, Inc. 0000 Xxxxxxx Xxxx. Xxxxxx Xxxx, XX 00000 |
General Electric Capital Corporation 00-0 Xxx Xxxxxxxxx Xxxx Xxxxxxx, XX 00000 |
Original 20050003042H |
01/11/05 | MO SOS | Exhibit A not available, per MO SOS | ||||||
3
|
X.X. Xxxxxx Associates, Inc. 0000 Xxxxxxx Xxxx. Xxxxxx Xxxx, XX 00000 |
General Electric Capital Corporation 00-0 Xxx Xxxxxxxxx Xxxx Xxxxxxx, XX 00000 |
Original 20050007654M | 01/14/05 | MO SOS | Equipment | ||||||
4
|
X.X. Xxxxxx Associates, Inc. 0000 Xxxxxxxxx Xxxxxx Xxxxxxx, XX 00000 |
CIT Communications Finance Corporation 0 XXX Xxxxx Xxxxxxxxxx, XX 00000 |
Original 20060097800C |
09/07/06 | MO SOS | Leased equipment | ||||||
5
|
Orbimage Inc. 00000 Xxxxxxxx Xxxx Xxxxxx, XX 00000 |
Wachovia Bank, National Association Xxxxxxx, XX 00000 |
N/A | Entered into 3/31/09 |
N/A | All of Debtor’s deposit accounts with Wachovia Bank, National Association (“Bank”) and affiliates of Bank, including deposit account(s) number(s) 2000036255283 |
Schedule V
SCHEDULE VI
TO
SECURITY AGREEMENT
TO
SECURITY AGREEMENT
Capital Stock
Issuer | Class of Stock | Stock Certificate No. | No. of Shares | |||||||||
Orbimage Inc. |
Common | 2 | 1,000 | |||||||||
Orbimage SI Holdco Inc. |
Common | 1 | 1,000 | |||||||||
Orbimage Inc.
|
||||||||||||
Issuer | Class of Stock | Stock Certificate No. | No. of Shares | |||||||||
Orbimage License Corp. |
Common | 1 | 1,000 | |||||||||
Orbimage SI Holdco Inc.
|
||||||||||||
Issuer | Class of Stock | Stock Certificate No. | No. of Shares | |||||||||
Orbimage SI
Opco Inc. |
Common | C-1 | 1,000 | |||||||||
Orbimage SI Opco Inc.
|
||||||||||||
Issuer | Class of Stock | Stock Certificate No. | No. of Shares | |||||||||
i5 Inc. |
Common | 8 | 1,000,000 | |||||||||
i5 Inc.
|
||||||||||||
Issuer | Class of Stock | Stock Certificate No. | No. of Shares | |||||||||
X.X. Xxxxxx
Associates
Inc. |
Common | CS-1 | 211 |
Schedule VI
SCHEDULE VII
TO
SECURITY AGREEMENT
TO
SECURITY AGREEMENT
Notes
None.
Schedule VII
SCHEDULE VIII
TO
SECURITY AGREEMENT
TO
SECURITY AGREEMENT
Outstanding Options, Warrants or Other Rights Related to Capital Stock
None.
Schedule VIII
ATTACHMENT A
TO
SECURITY AGREEMENT
TO
SECURITY AGREEMENT
GRANT OF SECURITY INTEREST IN [TRADEMARK/PATENT/COPYRIGHT] RIGHTS |
This GRANT OF SECURITY INTEREST IN [TRADEMARK/ PATENT/ COPYRIGHT] RIGHTS
(“Agreement”), effective as of October 9, 2009 is made by [name of Issuer or Grantor], a
[state] [form of entity], located at [address] (the “Grantor”), in favor of The Bank of New
York Mellon, a New York banking corporation, located at 000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, XX 00000,
as Collateral Agent (the “Collateral Agent”) for the Secured Parties under the Indenture,
dated as of October 9, 2009 (the “Indenture”), among GeoEye, Inc. (“Issuer”), the
other Grantors and the Trustee, pursuant to which the Company has issued $400,000,000 in aggregate
principal amount of its 9.625% Senior Secured Notes due 2015 (the “Notes”).
W I T N E S S E T H:
WHEREAS, the terms of the Indenture require that the Grantors shall have entered into
agreements in order to grant to the Collateral Agent for the benefit of the holders of the
outstanding Notes a security interest in the Collateral;
WHEREAS, in connection with the Indenture, the Issuer and certain Subsidiaries have executed
and delivered a Security Agreement, dated as of October 9, 2009, in favor of the Collateral Agent
(together with all amendments and modifications, if any, from time to time thereafter made thereto,
the “Security Agreement”);
WHEREAS, pursuant to the Security Agreement, the Grantor pledged and granted to the Collateral
Agent for the benefit of the Collateral Agent and the Secured Parties described therein a
continuing security interest in all Intellectual Property Collateral, including the
[Trademarks/Patents/Copyrights]; and
WHEREAS, the Grantor has duly authorized the execution, delivery and performance of this
Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, the Grantor agrees, for the benefit of the Collateral Agent and the Secured Parties,
as follows:
Section 1. Definitions. Unless otherwise defined herein or the context otherwise
requires, terms used in this Agreement, including its preamble and recitals, have the meanings
provided or provided by reference in the Indenture and the Security Agreement.
Section 2. Grant of Security Interest. The Grantor hereby pledges and grants a
continuing security interest in, and a right of setoff against, and agrees to assign, transfer and
convey, upon demand made upon the occurrence and during the continuance of an Event of Default
without requiring further action by either party and to be effective upon such demand, all of the
Grantor’s right, title and interest in, to and under the
[Trademarks/Patents/Copyrights/Licenses] (including, without limitation, those items listed on
Schedule A hereto) (collectively, the “Intellectual Property Collateral”), to the
Collateral Agent for its benefit and the benefit of the Secured Parties to secure payment,
performance and observance of the Secured Obligations.
Section 3. Purpose. This Agreement has been executed and delivered by the Grantor
for the purpose of recording the grant of security interest herein with the United States [Patent
and Trademark][Copyright] Office. The security interest granted hereby has been granted to the
Secured Parties in connection with the Security Agreement and is expressly subject to the terms and
conditions thereof. The Security Agreement (and all rights and remedies of the Secured Parties
thereunder) shall remain in full force and effect in accordance with its terms.
Section 4. Acknowledgment. The Grantor does hereby further acknowledge and
affirm that the rights and remedies of the Secured Parties with respect to the security interest in
the Collateral granted hereby are more fully set forth in the Indenture and the Security Agreement,
the terms and provisions of which (including the remedies provided for therein) are incorporated by
reference herein as if fully set forth herein. In the event of any conflict between the terms of
this Agreement and the terms of the Security Agreement, the terms of the Security Agreement shall
govern.
Section 5. Counterparts. This Agreement may be executed in counterparts, each of
which will be deemed an original, but all of which together constitute one and the same original.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their respective officers thereunto duly authorized as of the day and year first above
written.
[NAME OF GRANTOR] | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
Date: | ||||||
THE BANK OF NEW YORK MELLON, as Collateral Agent |
||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
Date: |
ACKNOWLEDGMENT OF [GRANTOR]
STATE OF
|
) | |||
) ss | ||||
COUNTY OF
|
) |
On
the ___ day of , 20___, before me personally came , who is personally known to me to be the
of
[name of Grantor], a [state] [form of entity]; who, being duly sworn, did depose and say that
she/he is the of such [form of entity], the [form of entity] described in and which executed the foregoing instrument; that she/he executed and delivered said instrument
pursuant to authority given by the [governing body of entity — ie, Board of Directors] of such
[form of entity]; and that she/he acknowledged said instrument to be the free act and deed of said
[form of entity].
(PLACE STAMP AND SEAL ABOVE) |
ACKNOWLEDGMENT OF COLLATERAL AGENT
STATE OF
|
) | |||
) ss | ||||
COUNTY OF
|
) |
On
the ___ day of , 20___, before me personally came
, who is personally known to me to be the of The
Bank of New York Mellon, a New York banking corporation; who, being duly sworn, did depose
and say that she/he is the of such corporation, the corporation
described in and which executed the foregoing instrument; that she/he executed and delivered
said instrument pursuant to authority given by the Board of Directors of such corporation; and
that she/he acknowledged said instrument to be the free act and deed of said corporation.
(PLACE STAMP AND SEAL ABOVE) |
SCHEDULE A
U.S. [Patent/Trademark/Copyright] Registrations and Applications
[For Patents:]
Patent | Patent or Application Number | |
[For Trademarks:]
|
||
Trademark | Registration or Serial Number | |
[For Copyrights:]
|
||
Copyright | Registration Number | |
U.S. [Patent/Trademark/Copyright] Licenses
EXHIBIT A
TO
SECURITY AGREEMENT
TO
SECURITY AGREEMENT
Form of Joinder to Security Agreement
The undersigned, , a , hereby joins in the
execution of that certain Security Agreement dated as of October 9, 2009 (the “Security
Agreement”), issued and executed by each Person that is or becomes a Grantor and/or a Pledgor,
as applicable, thereunder on and/or after the date and pursuant to the terms thereof to and in
favor of the Collateral Agent, for itself and for the benefit of the Secured Parties thereunder. By
executing this Joinder, the undersigned hereby agrees that it is a Grantor and/or a Pledgor, as
applicable, thereunder with the same force and effect as if originally named therein as a Grantor
and/or a Pledgor, as applicable. In furtherance of the foregoing, the undersigned, as security for
the due and prompt payment and performance by the Grantors of the Secured Obligations, does hereby
grant to the Collateral Agent, for itself and for the benefit of the Secured Parties, a security
interest in and Lien on all of the undersigned’s right, title and interest in and to the
Collateral, whether now owned or hereafter acquired, including the shares of Capital Stock listed
opposite its name on schedule I hereto and any other or additional shares acquired by the
undersigned after the date hereof and the notes listed opposite its name on Schedule II hereto and
any other or additional notes acquired by such Pledgor after the date hereof. The undersigned
agrees to be bound by all of the terms and provisions of the Security Agreement and represents and
warrants that the representations and warranties set forth in Section 4 of the Security Agreement
are, with respect to the undersigned, true, complete and correct as of the date hereof. Without
limiting the generality of the foregoing, the undersigned authorizes the Collateral Agent to file
or record financing statements and other filing or recording documents or instruments with respect
to the Collateral in such form and in such offices as the Collateral Agent determines appropriate
to perfect the security interests of the Collateral Agent under the Security Agreement, and the
undersigned authorizes the Collateral Agent to use collateral descriptions such as “all personal
property” or “all assets”, in each case “whether now owned or hereafter acquired”, words of similar
import or any other description the Collateral Agent, in its sole discretion, so chooses in any
such financing statements. Each reference to a Grantor or Pledgor, as applicable, in the Security
Agreement shall be deemed to include the undersigned. Capitalized terms used but not defined herein
shall have the meanings set forth in the Security Agreement.
IN
WITNESS WHEREOF, the undersigned has executed this Joinder this ___ day of , 20___.
[NAME OF GRANTOR/PLEDGOR] | ||||||
By: | ||||||
Title: | ||||||
Address: |
Exhibit A
AGREED AND ACKNOWLEDGED: | ||||
THE BANK OF NEW YORK MELLON, as Collateral Agent |
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By: |
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Title: |