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EXHIBIT 4.7
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of April 22, 1999 between Orbital Imaging
Corporation, a Delaware corporation (the "Pledgor") and HSBC Bank USA, as
collateral agent (the "Collateral Agent"), for the Holders of the Notes (as
defined herein). Capitalized terms used but not otherwise defined herein shall
have the meanings given to such terms in the Indenture (as defined below).
W I T N E S S E T H:
WHEREAS, the Pledgor and HSBC Bank USA, as Trustee (the "Trustee") have
entered into that certain Indenture dated as of April 22, 1999 (as amended,
restated, supplemented or otherwise modified from time to time, the
"Indenture"), pursuant to which the Pledgor issued $75,000,000 in aggregate
principal amount of 11 5/8% Senior Notes due 2005 (the "Notes");
WHEREAS, the Pledgor has agreed, pursuant to a Purchase Agreement dated
April 19, 1999 by and among the Pledgor, Bear, Stearns & Co. Inc., Merrill Lynch
& Co. and Merrill Lynch, Pierce Fenner & Smith Incorporated, to (i) purchase a
portfolio of securities initially consisting of Government Securities (as
defined), which Government Securities may subsequently be substituted with
Marketable Securities (as defined) pursuant to the terms of this Pledge
Agreement (collectively, the "Pledged Securities) in an amount sufficient, upon
receipt of the scheduled interest and principal payments in respect of the
Pledged Securities, in the opinion of a nationally recognized firm of
independent certified public accountants selected by the Pledgor, to provide for
payment of the first two scheduled interest payments due on the Notes, and (ii)
place such Pledged Securities in the Pledge Account (as defined herein) held by
the Collateral Agent for the benefit of the Holders of the Notes;
WHEREAS, the Pledgor is the sole legal and beneficial owner of the
Pledged Securities; and
WHEREAS, to secure the payment and performance by the Pledgor of its
obligations under the Indenture and the Notes (collectively, the "Obligations"),
the Pledgor has agreed to (i) pledge to the Collateral Agent for its benefit and
the ratable benefit of the Holders of the Notes a security interest in the
Pledged Securities and the Pledge Account, and (ii) execute and deliver this
Pledge Agreement.
NOW, THEREFORE, in order to induce the Holders of Notes to purchase the
Notes, and for good and valuable consideration, the receipt of which is hereby
acknowledged, the Pledgor hereby agrees with the Collateral Agent for its
benefit and for the ratable benefit of the Holders of Notes as follows:
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1. DEFINED TERMS. All capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Indenture. In addition to any
other defined terms used herein, the following terms shall constitute defined
terms for purposes of this Pledge Agreement and shall have the meanings set
forth below:
"Collateral" has the meaning given in Section 2 hereof.
"Government Securities" means securities that are direct obligations of,
or obligations fully guaranteed by, the United States of America for the payment
of which guarantee or obligations the full faith and credit of the United States
is pledged.
"Marketable Securities" means: (i) Government Securities or, for purpose
of determining whether such Government Securities may serve as substitute
Pledged Securities, Government Securities having a maturity date on or before
the date on which the payments of interest on the Notes to which such Government
Securities are pledged occur; (ii) any certificate of deposit maturing not more
than 270 days after the date of acquisition issued by, or time deposit of, an
Eligible Institution; (iii) commercial paper maturing not more than 270 days
after the date of acquisition issued by a corporation (other than an Affiliate
of the Pledgor) with a rating at the time as of which any investment therein is
made, of "A-1" (or higher) according to S&P or "P-1" (or higher) according to
Moody's; (iv) any banker's acceptances or money market deposit accounts issued
or offered by an Eligible Institution; and (v) any fund investing exclusively in
investments of the types described in clauses (i) through (iv) above; and in the
case of (ii) through (iv) above, which have a maturity date on or before the
date on which the payments of interest on the Notes to which such securities are
pledged occur.
"UCC" means, with respect to the validity and perfection and the effect
of perfection or non-perfection of the security interest, the Uniform Commercial
Code as in effect on the date hereof in the State of New York.
2. PLEDGE AND GRANT OF SECURITY INTEREST. The Pledgor hereby pledges and
grants to the Collateral Agent for the ratable benefit of the Holders of the
Notes, a continuing first priority security interest in and to (i) all of the
Pledgor's right, title and interest in the Pledged Securities and the Pledge
Account, (ii) all certificates or other evidence of ownership representing the
Pledged Securities and the Pledge Account, and (iii) all products and proceeds
of any of the Pledged Securities, including, without limitation, all dividends,
interest, principal payments, cash, options, warrants, rights, instruments,
subscriptions and other property or proceeds from time to time received,
receivable or otherwise distributed or distributable in respect of or in
exchange for any or all of the Pledged Securities (collectively, the
"Collateral").
The Collateral Agent, as securities intermediary, will comply with
entitlement orders originated by the Trustee concerning the Pledge Account, and
the entitlements therein, without further consent of the Pledgor.
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3. SECURITY FOR OBLIGATIONS. This Pledge Agreement and the Collateral
secure the prompt and complete payment and performance when due (whether at
stated maturity, by acceleration or otherwise) of all of the Obligations.
4. DELIVERY OF COLLATERAL; PLEDGE ACCOUNT; INTEREST; SUBSTITUTION OF
COLLATERAL.
(a) If and to the extent the Pledged Securities comprise
"certificated securities," as defined in Section 8-102 of the UCC, such
securities shall be registered in the name of the Collateral Agent or its
nominee for the benefit of the Holders of the Notes and delivered to the
Collateral Agent or its custodian in the State of New York, and possession
thereof shall be maintained by the Collateral Agent within the State of New
York.
(b) All Government Securities included in the Collateral shall be
registered in the name of the Collateral Agent or its nominee for the benefit of
the Holders of the Notes on the records of the Federal Reserve Bank of New York
and credited in the books and records of the Collateral Agent to the Pledge
Account. All other uncertificated securities, if any, included in the Collateral
shall be registered on the books of the issuer of such uncertificated securities
in the name of the Collateral Agent or its nominee for the benefit of the
Holders of the Notes, and credited in the books and records of the Collateral
Agent to the Pledge Account.
(c) Concurrently with the execution and delivery of this Pledge
Agreement, the Collateral Agent shall establish an account entitled the "HSBC
BANK USA PLEDGE ACCOUNT FOR THE BENEFIT OF HOLDERS OF 11 5/8% SENIOR NOTES DUE
2005 OF ORBITAL IMAGING CORPORATION" for the deposit of the Pledged Securities
(the "Pledge Account") at its office at 140 Broadway, New York, New York, 10005.
The Pledge Account is and shall be maintained as a "securities account" within
the meaning of Article 8 of the UCC, and the Collateral Agent will treat all
property held by it in the Pledge Account as "financial assets" under Article
8-501(a) of the UCC. Subject to the other terms and conditions of this Pledge
Agreement, all funds or other property accepted by the Collateral Agent pursuant
to this Pledge Agreement shall be held in the Pledge Account for the ratable
benefit of the Holders of the Notes. All proceeds of the Pledged Securities
shall remain on deposit in the Pledge Account until withdrawn in accordance with
this Pledge Agreement.
(d) All proceeds of, interest earned on and other distributions or
amounts paid with respect to, any Collateral shall be credited to and retained
in the Pledge Account, and the Collateral Agent shall invest and reinvest the
same as directed from time to time in writing by the Pledgor; provided, however,
that such proceeds and other amounts must be invested in Government Securities
except as otherwise provided in this Section 4(d) or in Section 4(e). Prior to
the Collateral Agent's receipt of written instructions from the Pledgor, the
Collateral Agent shall invest any such proceeds and other amounts in Federated
Investors Treasury Cash Service Fund. In all events, any monies so invested or
reinvested and any securities acquired thereby shall be (i) held as Collateral
in the Pledge Account, (ii) subject in all respects to the security interest
created hereby and shall be and remain under the control of the Collateral
Agent, and (iii) otherwise subject to the terms hereof.
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(e) At any time while this Pledge Agreement is in force, the
Pledgor may substitute Marketable Securities for the Government Securities
originally pledged as Collateral hereunder; provided, however, that the
Marketable Securities so substituted must have a fair market value (measured at
the date of substitution) as certified to the Collateral Agent, in the opinion
of a nationally recognized firm of independent public accountants selected by
the Pledgor, at least equal to 125.0% of the amount of any of the first two
scheduled interest payments on the Notes that are unpaid (or the pro rata
portion of such interest payments equal to the percentage of such interest
payments to be secured by such Marketable Securities) as of the date such
Marketable Securities are proposed to be substituted as Collateral hereunder.
Concurrently with such substitution, the Pledgor shall deliver to the Collateral
Agent a certificate signed by an executive officer of the Pledgor reaffirming
the representations and warranties set forth in Section 6 hereof, and an Opinion
of Counsel stating that the Collateral Agent has a perfected lien in such
Marketable Securities. The Collateral Agent hereby confirms such pledge and
security interest (whether of Collateral now owned or hereafter acquired) to the
Trustee and the Holders of the Notes.
5. DISBURSEMENTS.
(a) Unless notified at least one Business Day in advance of an
Interest Payment Date of the Pledgor's election pursuant to Section 5(b), on the
date when each of the first two scheduled interest payments is due on the Notes
and without notice from the Pledgor, the Collateral Agent shall transfer from
the Pledge Account to the Paying Agent under the Indenture, funds necessary to
provide for payment in full or of any portion of the next scheduled interest
payment on the Notes and the Paying Agent shall apply the proceeds to such
interest payment.
(b) If the Pledgor elects to pay any of the first two scheduled
interest payments (or portion thereof) on the Notes from a source of funds other
than the Pledge Account (the "Pledgor's Funds"), then the Pledgor may, after
payment in full of such interest payment, deliver to the Collateral Agent
written acknowledgment from the Paying Agent of its receipt of such funds,
together with a written request for release of a portion of Collateral not in
excess of the Pledgor's Funds so paid, whereupon the Collateral Agent is hereby
authorized and directed to release to the Pledgor an amount of funds from the
Pledge Account less than or equal to the amount of Pledgor Funds so expended.
Upon receipt of such written direction from the Pledgor, together with the
certificate described in the following sentence, the Collateral Agent shall take
such action as is necessary to provide for the payment to the Pledgor of the
amount requested from the Pledge Account. Prior to any release of funds to the
Pledgor from the Pledge Account pursuant to this Section 5(b), the Pledgor shall
deliver to the Collateral Agent an Officer's Certificate stating that such use
of Pledgor's Funds has been duly authorized by all necessary corporate action
and does not contravene or constitute a default under any provision of
applicable law, regulation or the certificate of incorporation of the Pledgor,
or of any material agreement, judgment, injunction, order, decree or other
instrument binding upon the Pledgor, and does not result in the creation or
imposition of any Lien on any asset of the Pledgor.
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(c) If at any time the amount of Collateral exceeds the amount
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants selected by the Pledgor, to provide for payment in
full of the first two scheduled interest payments due on the Notes (or, in the
event any interest payments have been made on the Notes, an amount sufficient to
provide for payment in full of all interest payments then remaining up to and
including the second scheduled interest payment), the Pledgor may direct the
Collateral Agent in writing to release to the Pledgor or as it directs, an
amount less than or equal to such excess. Upon receipt of such written direction
from the Pledgor, together with the opinion of a nationally recognized firm of
independent certified public accountants with respect to the value of the
Pledged Securities, the Collateral Agent shall take such action as is necessary
to provide for the payment to the Pledgor of the amount requested from the
Pledge Account.
(d) Upon payment in full of the first two scheduled interest
payments on the Notes, the security interest in the Collateral evidenced by this
Pledge Agreement shall terminate and be of no further force and effect.
Furthermore, upon release of any Collateral from the Pledge Account in
accordance with the terms of this Pledge Agreement, whether upon release of
Collateral to the Paying Agent, to the Pledgor or otherwise, the security
interest evidenced by this Pledge Agreement in the Collateral so released shall
terminate and be of no further force and effect.
6. REPRESENTATIONS AND WARRANTIES. The Pledgor hereby represents and
warrants that:
(a) The execution, delivery and performance by the Pledgor of this
Pledge Agreement has been duly authorized by all necessary corporate action and
does not contravene or constitute a default under any provision of applicable
law, regulation or the certificate of incorporation or the bylaws of the
Pledgor, or of any judgment, injunction, order, decree or any material agreement
or instrument binding upon the Pledgor, and does not result in the creation or
imposition of any Lien on any asset of the Pledgor, except for the security
interests granted under this Pledge Agreement.
(b) The Pledgor is the record and beneficial owner of the
Collateral, free and clear of any Lien or claims of any Person (except for the
security interest granted under this Pledge Agreement). No financing statement
covering the Pledged Securities is on file in any public office, other than
financing statements filed pursuant to this Pledge Agreement. This Pledge
Agreement has been duly executed and delivered by the Pledgor and constitutes a
valid and binding obligation of the Pledgor, enforceable against the Pledgor in
accordance with its terms, except as such enforceability may be limited by the
effect of any applicable bankruptcy, insolvency, reorganization, fraudulent
conveyances, moratorium or other similar laws affecting creditors' rights
generally or general principles of equity.
(c) Upon the delivery to the Collateral Agent of the certificates,
if any, representing the Pledged Securities, any filing of financing statements
required by the UCC and
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notation on the records of the Collateral Agent that it holds the Pledged
Securities as pledgee, the pledge of the Collateral pursuant to this Pledge
Agreement creates a valid and perfected first priority security interest in and
to the Collateral, securing the payment and performance of the Obligations for
the ratable benefit of the Holders of the Notes, enforceable as such against all
creditors of the Pledgor and any Persons purporting to purchase any of the
Collateral from the Pledgor.
(d) No consent of any other Person and no consent, authorization,
approval, or other action by, and no notice to or filing with, any governmental
authority or regulatory body, is required either (i) for the pledge by the
Pledgor of the Collateral pursuant to this Pledge Agreement or for the
execution, delivery or performance of this Pledge Agreement by the Pledgor
(except for any filings and notations necessary to perfect the security interest
created hereby in the Collateral) or (ii) for the exercise by the Collateral
Agent of the rights provided for in this Pledge Agreement or the remedies in
respect of the Collateral pursuant to this Pledge Agreement. No litigation,
proceeding or investigation of or before any arbitrator or governmental
authority is pending or, to the knowledge of the Pledgor, threatened by or
against the Pledgor with respect to this Pledge Agreement or any of the
transactions contemplated hereby.
(e) The pledge of the Collateral pursuant to this Pledge Agreement
is not prohibited by any applicable law or government regulation, release,
interpretation or opinion of the Board of Governors of the Federal Reserve
System or other regulatory agency (including, without limitation, Regulations G,
T, U and X of the Board of Governors of the Federal Reserve System).
7. FURTHER ASSURANCES. The Pledgor agrees promptly to take such
actions and to execute and deliver or cause to be executed and delivered, or use
its best efforts to procure, such stock or bond powers, proxies, assignments,
instruments and such other or different writings as the Collateral Agent may
reasonably request, all in form and substance satisfactory to the Collateral
Agent, deliver any instruments to the Collateral Agent and take any other
actions that are necessary or, in the opinion of the Collateral Agent,
desirable, to perfect, continue the perfection of, confirm and assure the first
priority of the Collateral Agent's security interest in the Collateral, to
protect the Collateral against the rights, claims or interests of third persons,
or to otherwise effect the purposes of this Pledge Agreement. The Pledgor also
hereby authorizes the Collateral Agent to file any financing or continuation
statements with respect to the Collateral without the signature of the Pledgor
(to the extent permitted by applicable law). The Pledgor will pay all costs
incurred by the Collateral Agent in connection with any of the foregoing.
8. COVENANTS. The Pledgor covenants and agrees with the Collateral
Agent and the Holders of the Notes from and after the date of this Pledge
Agreement until the earlier of payment in full in cash of (A) each of the first
two scheduled interest payments due on the Notes under the terms of the
Indenture or (B) all Obligations due and owing under the Indenture and
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the Notes in the event such Obligations become due and payable prior to the
payment of the first two scheduled interest payments on the Notes, as follows:
(a) The Pledgor agrees that it (i) will not sell or otherwise
dispose of, or grant any option or other interest with respect to, any of the
Collateral, (ii) will not create or permit to exist any Lien upon or with
respect to any of the Collateral, except for the Liens created pursuant to this
Pledge Agreement, and (iii) will at all times be the sole beneficial owner of
the Collateral.
(b) The Pledgor agrees that it will not (i) enter into any
agreement or understanding that purports to or may restrict or inhibit the
Collateral Agent's rights or remedies hereunder, including, without limitation,
the Collateral Agent's right to sell or otherwise dispose of the Collateral, or
(ii) with regard to the Collateral, fail to pay or discharge any tax, assessment
or levy of any nature due with respect thereto later than five days prior to the
date of any proposed sale under any judgment, writ or warrant of attachment.
9. POWER OF ATTORNEY.
(a) The Pledgor hereby appoints and constitutes the Collateral
Agent as the Pledgor's attorney-in-fact with full power of substitution to
exercise to the fullest extent permitted by law all of the following powers upon
and at any time after the occurrence and during the continuance of an Event of
Default:
(i) collection of proceeds of any Collateral;
(ii) conveyance of any item of Collateral to any purchaser
thereof as specified herein;
(iii) giving of any notices or recording of any Liens pursuant
to Section 7 hereof;
(iv) making any payments or taking any acts pursuant to
Section 10 hereof;
(v) paying or discharging taxes or Liens levied or placed upon
the Collateral, the legality or validity thereof and the amounts necessary to
discharge the same to be determined by the Collateral Agent in its sole
discretion, and any such payments made by the Collateral Agent shall become
Obligations of the Pledgor to the Collateral Agent, due and payable immediately
upon demand; and
(vi) taking any acts pursuant to Section 13 hereof.
(b) The Collateral Agent's authority under this Section 9 shall
include, without limitation, the authority to endorse and negotiate any checks
or instruments representing proceeds of Collateral in the name of the Pledgor,
execute and give receipt for any certificate of
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ownership or any document constituting Collateral, transfer title to any item of
Collateral, to the extent permitted by applicable law, sign the Pledgor's names
on all financing statements or any other documents deemed necessary or
appropriate by the Collateral Agent to preserve, process or perfect the security
interest in the Collateral, and to file the same, and to prepare, sign the
Pledgor's name and file any notice of Lien, and to take any other actions
arising from or incident to the powers granted to the Collateral Agent in this
Pledge Agreement. This power of attorney is coupled with an interest and shall
be irrevocable by the Pledgor.
(c) The Pledgor acknowledges that the rights and responsibilities
of the Collateral Agent under this Pledge Agreement with respect to any action
taken by the Collateral Agent or the exercise or non-exercise by the Collateral
Agent of any option, right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Pledge Agreement shall, as
between the Collateral Agent and the Holders of the Notes, be governed by this
Pledge Agreement and by such other agreements with respect thereto as may exist
from time to time among them, but, as between the Collateral Agent and the
Pledgor, the Collateral Agent shall be conclusively presumed to be acting as
agent for the Holders of the Notes with full and valid authority so to act or
refrain from acting, and the Pledgor shall not be obligated or entitled to make
any inquiry respecting such authority.
(d) The Collateral Agent undertakes to perform such duties and
only such duties as are specifically set forth in this Pledge Agreement and no
implied covenants or obligations shall be read in this Pledge Agreement against
the Collateral Agent. The Collateral Agent shall not be deemed to have
knowledge of an Event of Default under the Indenture unless informed in writing
by the Pledgor or the Holder of any Note.
(e) The Collateral Agent shall not be required to exercise any
remedies hereunder unless requested in writing to do so by the Trustee or the
Holders of a majority in principal amount of the outstanding Notes and only if
furnished with indemnity reasonably satisfactory to the Collateral Agent. The
Collateral Agent may consult with counsel and shall not be liable for any action
taken in good faith in reliance upon advice of counsel except for gross
negligence or willful misconduct. The Collateral Agent makes no representation
or warranty and shall have not responsibility concerning the value or validity
of the Collateral or the validity or perfection of the pledge thereof or any
security interest therein.
(f) The Collateral Agent may at any time on 30 days notice to the
Pledgor and the Holders of the Notes resign hereunder. Upon any such resignation
the Pledgor shall promptly appoint another financial institution reasonably
satisfactory to the Holders of a majority in principal amount or the outstanding
Notes to act as Collateral Agent hereunder and such resignation shall become
effective upon the acceptance of the appointment by the successor.
(g) The Collateral Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment substantially equal to that
which a prudent financial institution similarly situated would accord its own
property, it being understood that neither the Collateral Agent nor the Holders
of
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the Notes shall have responsibility for (i) ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relative to any Collateral, whether or not any such Person has or is
deemed to have knowledge of such matters, or (ii) taking any necessary steps to
preserve rights against any parties with respect to any Collateral.
10. COLLATERAL AGENT MAY PERFORM. If the Pledgor fails to perform any
agreement contained herein, the Collateral Agent may, but shall not be obligated
to, itself perform or cause performance of such agreement, and the expenses
incurred by or on behalf of the Collateral Agent in connection therewith shall
be payable by the Pledgor under Section 14 hereof.
11. NO ASSUMPTION OF DUTIES; REASONABLE CARE. The rights and powers
granted to the Collateral Agent hereunder are being granted in order to preserve
and protect the security interest of the Collateral Agent and the Holders of
Notes in and to the Collateral granted hereby and shall not be interpreted to,
and shall not, impose any duties on the Collateral Agent in connection therewith
other than those imposed under applicable law.
12. INDEMNITY. The Pledgor shall indemnify, defend and hold harmless the
Collateral Agent and its directors, officers, agents and employees from and
against all claims, actions, obligations, losses, liabilities and expenses,
including costs, fees and disbursements of counsel, the costs of investigations,
and claims for damages, arising from the Collateral Agent's performance under
this Pledge Agreement, except insofar as the same may have been caused by the
bad faith, gross negligence or willful misconduct of such indemnified Person.
The obligations of the Pledgor under this Section 12 shall survive the
resignation or removal of the Collateral Agent or the termination of this Pledge
Agreement.
13. REMEDIES UPON EVENT OF DEFAULT. If an Event of Default shall have
occurred:
(a) Upon the acceleration of the Notes in accordance with the terms
of the Indenture, the Collateral Agent shall have and may exercise with
reference to the Collateral any or all of the rights and remedies of a secured
party under the UCC, and as otherwise granted herein or under any other
applicable law or under any other agreement executed by Pledgor, including,
without limitation, the right and power to sell, at public or private sale or
sales, or otherwise dispose of, or otherwise utilize the Collateral and any part
or parts thereof, in any manner authorized or permitted under the UCC after
default by a debtor, and to apply the proceeds thereof toward payment of any
costs and expenses and attorneys' fees and expenses thereby incurred by the
Collateral Agent and toward payment of the Obligations in such order or manner
as the Collateral Agent may elect. The purchaser of any or all Collateral so
sold shall thereafter hold the same absolutely, free from any claim, encumbrance
or right of any kind whatsoever created by or through the Pledgor. Unless any of
the Collateral threatens, in the reasonable judgment of the Collateral Agent, to
decline speedily in value or is or becomes of a type sold on a recognized
market, the Collateral Agent shall give the Pledgor reasonable notice of the
time and place of any public sale thereof, or of the time after which any
private sale or other intended disposition is to be made. Any sale of the
Collateral conducted in conformity with reasonable commercial practices of
banks, insurance companies, commercial finance
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companies, or other financial institutions disposing of property similar to the
Collateral shall be deemed to be commercially reasonable. Any requirements of
reasonable notice shall be met if such notice is mailed to the Pledgor as
provided in Section 17 herein, at least fifteen (15) days before the time of the
sale or disposition. The Collateral Agent or any Holder of Notes may, in its own
name or in the name of a designee or nominee, buy any of the Collateral at any
public sale and, if permitted by applicable law, at any private sale. All
expenses (including court costs and reasonable attorneys' fees, expenses and
disbursements) of, or incident to, the enforcement of any of the provisions
hereof shall be recoverable from the proceeds of the sale or other disposition
of the Collateral.
(b) The Pledgor further agrees to use its best efforts to do or
cause to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of the Collateral pursuant to this Section 13 valid
and binding and in compliance with any and all other applicable requirements of
law. The Pledgor further agrees that a breach of any of the covenants contained
in this Section 13 will cause irreparable injury to the Collateral Agent and the
Holders of Notes, that the Collateral Agent and the Holders of Notes have no
adequate remedy at law in respect of such breach and, as a consequence, that
each and every covenant contained in this Section 13 shall be specifically
enforceable against the Pledgor, and the Pledgor hereby waives and agrees not to
assert any defenses against an action for specific performance of such
covenants, except for a defense that no Event of Default has occurred.
(c) All rights to marshalling of assets of the Pledgor, including
any such right with respect to the Collateral, are hereby waived by the Pledgor.
The Pledgor shall not contest or support any other Person in contesting the
validity or priority of the security interests created under this Pledge
Agreement.
14. FEES AND EXPENSES. The Pledgor shall, upon demand, pay to the
Collateral Agent the amount of its fees (which shall be in an amount previously
agreed by the Pledgor and the Collateral Agent) and any and all expenses
(including, without limitation, the reasonable fees, expenses and disbursements
of counsel, experts and agents retained by the Collateral Agent) that the
Collateral Agent may incur in connection with (i) the administration of this
Pledge Agreement, (ii) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights of the Collateral Agent and the
Holders of the Notes hereunder, or (iv) the failure by the Pledgor to perform or
observe any of the provisions hereof.
15. SECURITY INTEREST ABSOLUTE. All rights of the Collateral Agent and
the Holders of the Notes, and the security interests created hereunder, and all
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of the Indenture or any
other agreement or instrument relating thereto;
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(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from the Indenture;
(c) any exchange, surrender, release or non-perfection of any Liens
on any other Collateral for all or any of the Obligations; or
(d) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Pledgor in respect of the
Obligations or of this Pledge Agreement.
16. AUTHORITY OF THE COLLATERAL AGENT. (a) The Collateral Agent shall
have and be entitled to exercise all powers hereunder that are specifically
granted to the Collateral Agent by the terms hereof, together with such powers
as are incident thereto. The Collateral Agent may perform any of its duties
hereunder or in connection with the Collateral by or through agents or employees
and shall be entitled to retain counsel and to act in reliance upon the advice
of counsel concerning all such matters. None of the Collateral Agent, any
director, officer, employee, attorney or agent of the Collateral Agent nor the
Holders of the Notes shall be liable to the Pledgor for any action taken or
omitted to be taken by it or them hereunder, except for its own bad faith, gross
negligence or willful misconduct, nor shall the Collateral Agent be responsible
for the validity, effectiveness or sufficiency hereof or of any document or
security furnished pursuant hereto. The Collateral Agent and its directors,
officers, employees, attorneys and agents shall be entitled to rely on any
communication, instrument or document believed by it or them to be genuine and
correct and to have been signed or sent by the proper Person or Persons.
17. NOTICES. Any communication, notice or demand to be given hereunder
shall be duly given hereunder if given in the form and manner, and delivered to
the address set forth in the Indenture, or in such other form and manner or to
such other address as shall be designated by any party hereto to each other
party hereto in a written notice delivered in accordance with the terms of the
Indenture.
18. NO WAIVER; CUMULATIVE RIGHTS. No failure on the part of the
Collateral Agent 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 the Collateral Agent 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 or
allowed it by law or other agreement shall be cumulative and not exclusive the
one of any other, and may be exercised by the Collateral Agent from time to
time.
19. BENEFITS OF PLEDGE AGREEMENT. Nothing in this Pledge Agreement,
whether express or implied, shall give to any Person other than the parties
hereto and their successors hereunder, and the Holders of the Notes, any benefit
or any legal or equitable right, remedy or claim under this Pledge Agreement.
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20. APPLICABLE LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. (a)
THIS PLEDGE AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK. TO INDUCE THE COLLATERAL AGENT TO ENTER INTO THIS PLEDGE AGREEMENT,
THE PLEDGOR HEREBY IRREVOCABLY AGREES THAT, SUBJECT TO THE COLLATERAL AGENT'S
SOLE AND ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS THAT IN ANY MANNER ARISE
OUT OF OR IN CONNECTION WITH OR ARE IN ANY WAY RELATED TO THIS PLEDGE AGREEMENT
SHALL BE LITIGATED IN COURTS HAVING SITUS WITHIN THE COUNTY OF NEW YORK, STATE
OF NEW YORK. THE PLEDGOR HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK. THE
PLEDGOR HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL TO THE PLEDGOR'S NOTICE ADDRESS AS
SPECIFIED HEREIN. THE PLEDGOR HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRANSFER OR
CHANGE THE VENUE OF ANY LITIGATION BETWEEN THE PLEDGOR AND THE COLLATERAL AGENT
IN ACCORDANCE WITH THIS PARAGRAPH. EACH OF THE PLEDGOR AND THE COLLATERAL AGENT
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY
IN ANY ACTION OR PROCEEDING THAT IN ANY MANNER ARISES OUT OF OR IN CONNECTION
WITH OR IS IN ANY WAY RELATED TO THIS PLEDGE AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREIN.
(b) THE PROVISIONS OF THIS SECTION 20 ARE A MATERIAL INDUCEMENT FOR
THE COLLATERAL AGENT ENTERING INTO THIS PLEDGE AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREBY. THE PLEDGOR HEREBY ACKNOWLEDGES THAT IT HAS REVIEWED THE
PROVISIONS OF THIS SECTION 20 WITH INDEPENDENT COUNSEL.
21. CALCULATION OF INTEREST. For purposes of this Pledge Agreement, all
calculations of the first two scheduled interest payments on the Notes shall be
calculated on the basis that interest will accrue on the Notes at the rate of 11
5/8% per annum and will be payable semi-annually in arrears on September 1, 1999
and March 1, 2000. Interest on the Notes will be computed on the basis of a
360-day year comprised of twelve 30-day months.
22. EXECUTION IN COUNTERPARTS. This Pledge Agreement may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute one and the same instrument.
23. SETTLEMENT. Amounts, if any, held in the Pledge Account pending
settlement of purchase of the Pledged Securities shall constitute Collateral
hereunder, shall be held by the Collateral Agent for the benefit of the Holders
of the Notes and a portion thereof equal to the
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aggregate price paid for such Pledged Securities shall be released by the
Collateral Agent (without further direction or instruction required from any
other party hereto) against delivery of such Pledged Securities, and any excess
funds remaining in the Pledge Account after giving effect to such settlement
shall be promptly forwarded pursuant to written instructions of the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed as of the day and year first above written.
ORBITAL IMAGING CORPORATION
By:
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Name:
Title:
HSBC BANK USA,
as Collateral Agent
By:
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Name:
Title: