EXHIBIT C
COLLATERAL PLEDGE AND SECURITY AGREEMENT
This COLLATERAL PLEDGE AND SECURITY AGREEMENT (this "Pledge
Agreement") is made and entered into as of [_________], 1997 by ORION NEWCO
SERVICES, INC., a Delaware corporation (the "Pledgor"), having its principal
office at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 00, Xxxxxxxxx, Xxxxxxxx, 00000, in
favor of BANKERS TRUST COMPANY, a banking corporation duly organized and
existing under the laws of the State of New York, having an office at 0 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Corporate Trustee Administration
Department, as trustee (the "Trustee") for the holders (the "Holders") of the
Notes (as defined herein) issued by the Pledgor under the Indenture referred to
below.
W I T N E S S E T H
WHEREAS, the Pledgor, each of the Pledgor's Restricted
Subsidiaries, as guarantors, and Bankers Trust Company, as Trustee, have entered
into that certain indenture dated as of the date hereof (as amended, restated,
supplemented or otherwise modified from time to time, the "Indenture"), pursuant
to which the Pledgor is issuing on the date hereof $[_________] in aggregate
principal amount of [____]% Senior Notes due 2007 (the "Notes"); capitalized
terms used herein and not otherwise defined herein shall have the meanings given
to such terms in the Indenture; and
WHEREAS, the Pledgor has agreed, pursuant to the Indenture, to
(i) purchase Government Securities (the "Pledged Securities") in an amount that
will be sufficient upon receipt of scheduled interest and principal payments in
respect thereof, in the opinion of a nationally recognized firm of independent
accountants selected by the Pledgor and delivered to the Trustee, to provide for
payment of the first six scheduled interest payments due on the Notes and (ii)
place the Pledged Securities in an account held by the Trustee for the benefit
of Holders of the Notes; and
WHEREAS, upon the purchase of the Pledged Securities, the
Pledgor will be the beneficial owner of the Pledged Securities; and
WHEREAS, to secure the obligation of the Pledgor under the
Indenture and the Notes to pay in full the first six scheduled interest payments
on the Notes and to secure repayment of the Notes in the event that the Notes
become due and payable prior to such time as the first six scheduled interest
payments thereon shall have been paid in full (the "Obligations"), the Pledgor
has agreed to (i) pledge to the Trustee for its benefit and the ratable benefit
of the Holders of the Notes, a security interest in the Pledged Securities, all
book-entry interests therein and the Pledge Account (as defined herein) and (ii)
execute and deliver this Pledge Agreement in order to secure the payment and
performance by the Xxxxxxx of all the Obligations.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and in order to induce the Holders of the Notes to purchase the
Notes, the Pledgor hereby agrees with the Trustee, for the benefit of the
Trustee and for the ratable benefit of the Holders of the Notes, as follows:
SECTION 1. Pledge and Grant of Security Interest. The Pledgor
hereby pledges to the Trustee for its benefit and for the ratable benefit of the
Holders of the Notes, and grants to the Trustee for its benefit and for the
ratable benefit of the Holders of the Notes, a continuing first priority
security interest in and to (a) all of Pledgor's right, title and interest in
the Pledged Securities and the Pledge Account, (b) all book-entry interests in
the Pledged Securities and any certificates or other evidence of ownership
representing the Pledged Securities and the Pledge Account, and (c) except as
otherwise provided herein, all products and proceeds of any of the Pledged
Securities and the Pledge Account, 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").
SECTION 2. Security for Obligation. This Pledge Agreement
secures the prompt and complete payment and performance when due (whether at
stated maturity, by acceleration or otherwise) of all the Obligations.
SECTION 3. Delivery of Collateral; Pledge Account; Interest.
(a) All certificates or instruments, if any, representing or evidencing the
Collateral shall be delivered to and held by or on behalf of the Trustee
pursuant hereto and shall be in suitable form for transfer by delivery, or shall
be accompanied by duly executed instruments of transfer or assignment in blank,
all in form reasonably satisfactory to the Trustee, and all book-entry interests
in the Pledged Securities shall be transferred to the Pledge Account through the
individual account of the Trustee at the Federal Reserve Bank of New York. The
Trustee in its individual capacity shall confirm in writing (such confirmation
to be in the form of Exhibit A hereto) to the Pledgor and to the Trustee in its
capacity as Trustee hereunder that it is holding the book-entry Pledged
Securities for the benefit of the Trustee in its capacity as Trustee hereunder
and the ratable benefit of the Holders of Notes and the Trustee shall duly
record in its books and records that the Pledgor has pledged and granted a
security interest in such book-entry interests in the Pledged Securities and in
the Pledge Account to the Trustee on behalf of itself and the holders of the
Notes.
(b) Concurrently with the execution and delivery hereof and
prior to the delivery of any certificates or instruments representing
or evidencing the Collateral or transfer of book-entry interests in the
Pledged Securities as provided in subsection (a) of this Section 3, the
Trustee shall establish an account segregated from all other custodial
or collateral accounts for the deposit of the Pledged Securities (the
"Pledge Account") at its office at 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, Attention: Corporate Trustee Administration Department. Subject
to the other terms and conditions of this Pledge Agreement, all funds
or other property accepted by the Trustee pursuant to this Pledge
Agreement shall be held in the Pledge Account for the benefit of the
Trustee and for the ratable benefit of the Holders of the Notes and
segregated from all other funds or other property otherwise held by the
Trustee and all book-entry interests in the Pledged Securities shall be
transferred to and held in the Pledge Account for the benefit of the
Trustee and for the ratable benefit of the Holders of the Notes.
(c) All interest earned on any Collateral shall be retained in
the Pledge Account for the benefit of the Pledgor, pending disbursement
pursuant to the terms hereof.
SECTION 4. Disbursements. (a) Immediately prior to the due
date of any of the first six scheduled interest payments on the Notes, the
Pledgor may, pursuant to an Issuer Order, direct the Trustee to release from the
Pledge Account proceeds sufficient to provide for payment in full of such
interest then due on the Notes. Upon receipt of an Issuer Order, the Trustee
will take any action necessary to provide for the payment of the interest on the
Notes in accordance with the payment provisions of the Indenture to the Holders
of the Notes from (and to the extent of) proceeds of the Pledged Securities in
the Pledge Account. Nothing in this Section 4 shall affect the Trustee's rights
to apply the Pledged Securities to the payments of amounts due on the Notes upon
acceleration thereof.
(b) If the Pledgor makes any interest payment or portion of an
interest payment for which the Pledged Securities are collateral from a
source of funds other than the Pledge Account ("Pledgor Funds"), the
Pledgor may, after payment in full of such interest payment or portion
thereof from proceeds of the Pledged Securities or such Pledgor Funds
or both, direct the Trustee to release to the Pledgor or to another
party at the direction of the Pledgor (the "Pledgor's Designee")
proceeds from the Pledge Account in an amount less than or equal to the
amount of Pledgor Funds applied to such interest payment. Upon receipt
of an Issuer Order by the Trustee and any other documentation
reasonably satisfactory to the Trustee to substantiate such use of
Pledgor Funds by the Pledgor (including the certificate described in
the following sentence), the Trustee will pay over to the Pledgor or
the Pledgor's Designee, as the case may be, the requested amount from
proceeds in the Pledge Account. Concurrently with any release of funds
to the Pledgor pursuant to this Section 4(b), the Pledgor will deliver
to the Trustee an Officers' Certificate stating that such release has
been duly authorized by the Pledgor and will not contravene any
provision of applicable law or the Certificate of Incorporation of the
Pledgor or any material agreement or other material instrument binding
upon the Pledgor or any of its subsidiaries or any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over the Pledgor or any of its subsidiaries or result in the creation
or imposition of any Lien on any assets of the Pledgor, except for the
security interest granted under the Pledge Agreement.
(c) If at any time the principal of and interest on the
Pledged Securities held in the Pledge Account exceeds 100% of the
amount sufficient, in the written opinion of a nationally recognized
firm of independent accountants selected by the Pledgor and delivered
to the Trustee, to provide for payment in full of the first six
scheduled interest payments due on the Notes (or, in the event one or
more interest payments have been
made thereon, an amount sufficient to provide for the payment in full
of any and all interest payments on the Notes then remaining, up to
and including the sixth scheduled interest payment), the Pledgor may
direct the Trustee to release any such overfunded amount to the
Pledgor or to such other party as the Pledgor may direct. Upon receipt
of an Issuer Order and any other documentation reasonably satisfactory
to the Trustee to substantiate such excess, the Trustee shall pay over
to the Pledgor or the Person designated by the Pledgor, as the case
may be, any such overfunded amount.
(d) Upon payment in full of the first six scheduled interest
payments on the Notes in a timely manner, the security interest in the
Collateral evidenced by this Pledge Agreement will automatically
terminate and be of no further force and effect. Furthermore, upon the
release of any Collateral from the Pledge Account in accordance with
the terms of this Pledge Agreement, whether upon release of Collateral
to Holders as payment of interest or otherwise, the security interest
evidenced by this Pledge Agreement in such released Collateral will
automatically terminate and be of no further force and effect.
(e) The Pledgor covenants to give the Trustee at least one
Business Day's notice (by Issuer Order) as to whether payment of
interest will be made pursuant to Section 4(a) or 4(b) and as to the
respective amounts of interest that will be paid pursuant to Section
4(a) or 4(b). If no such notice is given, the Trustee will act pursuant
to Section 4(a) as if it had received an Issuer Order pursuant thereto
for the payment in full of the interest then due.
(f) The Trustee shall not be required to liquidate any Pledged
Security in order to make any scheduled payment of interest or any
release hereunder unless instructed to do so by Issuer Order.
SECTION 5. Representations and Warranties. The Pledgor hereby
represents and warrants that:
(a) The execution and delivery by the Pledgor of, and the
performance by the Pledgor of its obligations under, this Pledge
Agreement will not contravene any provision of applicable law or the
Certificate of Incorporation of the Pledgor or any material agreement
or other material instrument binding upon the Pledgor or any of its
subsidiaries or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Pledgor or any of its
subsidiaries, or result in the creation or imposition of any Lien on
any assets of the Pledgor, except for the security interest granted
under this Pledge Agreement; no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is
required for (i) the performance by the Pledgor of its obligations
under this Pledge Agreement, (ii) the pledge by the Pledgor of the
Collateral pursuant to this Pledge Agreement or (iii) the exercise by
the Trustee of the rights provided for in this Pledge Agreement or the
remedies in respect of the Collateral pursuant to this Pledge
Agreement.
(b) The Pledgor is the beneficial owner of the Collateral,
free and clear of any Lien or claims of any person or entity (except
for the security interests granted under this Pledge Agreement). No
financing statement covering the Pledged Securities is on file in any
public office other than the financing statements, if any, filed
pursuant to this Pledge Agreement.
(c) This Pledge Agreement has been duly authorized, validly
executed and delivered by the Pledgor and (assuming the due
authorization and valid execution and delivery of this Pledge Agreement
by the Trustee and enforceability of the Pledge Agreement against the
Trustee in accordance with its terms) constitutes a valid and binding
agreement of the Pledgor, enforceable against the Pledgor in accordance
with its terms, except as (i) the enforceability hereof may be limited
by bankruptcy, insolvency, fraudulent conveyance, preference,
reorganization, moratorium or similar laws now or hereafter in effect
relating to or affecting creditors' rights or remedies generally, (ii)
the availability of equitable remedies may be limited by equitable
principles of general applicability and the discretion of the court
before which any proceeding therefor may be brought, (iii) rights to
indemnification hereunder may be limited by U.S. federal and state
securities laws and public policy considerations and (iv) the waiver of
rights and defenses contained in Section 12(b), Section 15.11 and
Section 15.16 hereof may be limited by applicable law.
(d) Upon the delivery to the Trustee of the certificates or
instruments, if any, representing or evidencing the Pledged Securities,
the filing of financing statements, if any, required by the Uniform
Commercial Code (the "UCC") in the appropriate offices in the State of
New York, and upon the transfer by the Trustee in its individual
capacity and the due recording in the books and records of the Trustee
in its capacity as trustee hereunder of interests in the Pledged
Securities to and in the name of the Trustee for its benefit and the
ratable benefit of the Holders of the Notes and the due recording by
the Trustee in its books and records that the Pledgor has pledged and
granted a security interest in such interests in the Pledged Securities
to the Trustee on behalf of itself and the holders of the Notes and
receipt by the Trustee and the Pledgor of written confirmation thereof
in the form of Exhibit A hereto, the pledge of and grant of a security
interest in the Collateral securing the payment of the Obligations for
the benefit of the Trustee and the Holders of the Notes will constitute
a first priority perfected security interest in such Collateral,
enforceable as such against all creditors of the Pledgor and any
persons purporting to purchase any of the Collateral from the Pledgor,
other than as permitted by the Indenture.
(e) There are no legal or governmental proceedings pending or,
to the best of the Pledgor's knowledge, threatened to which the Pledgor
or any of its subsidiaries is a party or to which any of the properties
of the Pledgor or any such subsidiary is subject that would materially
adversely affect the power or ability of the Pledgor to perform its
obligations under this Pledge Agreement or to consummate the
transactions contemplated hereby.
(f) The pledge of the Collateral pursuant to this Pledge
Agreement is not prohibited by any applicable law or governmental
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).
(g) No Event of Default exists.
SECTION 6. Further Assurances. The Pledgor will, promptly upon
request by the Trustee, execute and deliver or cause to be executed and
delivered, or use its reasonable best efforts to procure, all stock powers,
proxies, assignments, instruments and other documents, all in form and substance
reasonably satisfactory to the Trustee, deliver any instruments to the Trustee
and take any other actions that are necessary or, in the reasonable opinion of
the Trustee, desirable to perfect, continue the perfection of, or protect the
first priority of the Trustee's security interest in and to the Collateral, to
protect the Collateral against the rights, claims, or interests of third persons
or to effect the purposes of this Pledge Agreement. The Pledgor also hereby
authorizes the Trustee to file any financing or continuation statements in the
United States with respect to the Collateral without the signature of the
Pledgor (to the extent permitted by applicable law). The Pledgor will promptly
pay all reasonable costs incurred in connection with any of the foregoing within
45 days of receipt of an invoice therefor. The Pledgor also agrees, whether or
not requested by the Trustee, to take all actions that are necessary to perfect
or continue the perfection of, or to protect the first priority of, the
Trustee's security interest in and to the Collateral, including the filing of
all necessary financing and continuation statements, and to protect the
Collateral against the rights, claims or interests of third persons.
SECTION 7. Covenants. The Pledgor covenants and agrees with
the Trustee 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 (x) each of the first
six scheduled interest payments due on the Notes under the terms of the
Indenture or (y) all obligations due and owing under the Indenture and the Notes
in the event such obligations become due and payable prior to the payment of the
first six scheduled interest payments on the Notes:
(a) that it will not (i) sell or otherwise dispose of, or
grant any option or warrant with respect to, any of the Collateral or
(ii) create or permit to exist any Lien upon or with respect to any of
the Collateral (except for the Lien created pursuant to this Pledge
Agreement) and at all times will be the sole beneficial owner of the
Collateral; or
(b) that it will not (i) enter into any agreement or
understanding that purports to or may restrict or inhibit the Trustee's
rights or remedies hereunder, including, without limitation, the
Trustee's right to sell or otherwise dispose of the Collateral or (ii)
fail to pay or discharge any tax, assessment or levy of any nature with
respect to the Collateral not later than five days prior to the date of
any proposed sale under any judgment, writ or warrant of attachment
with respect to the Collateral.
SECTION 8. Power of Attorney. In addition to all of the powers
granted to the Trustee pursuant to the Indenture, the Pledgor hereby appoints
and constitutes the Trustee 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; (a) collection of proceeds of any
Collateral; (b) conveyance of any item of Collateral to any purchaser thereof;
(c) giving of any notices or recording of any Liens under Section 6 hereof: (d)
making of any payments or taking any acts under Section 9 hereof and (e) 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 Trustee in its sole reasonable discretion, and such payments
made by the Trustee to become part of the Obligations of the Pledgor to the
Trustee, due and payable immediately upon demand. The Trustee's authority under
this Section 8 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 ownership
or any document constituting Collateral, transfer title to any item of
Collateral, sign the Pledgor's name on all financing statements (to the extent
permitted by applicable law) or any other documents deemed necessary or
appropriate by the Trustee to preserve, protect or perfect the security interest
in the Collateral and to file the same, prepare, file and sign the Pledgor's
name on any notice of Lien, and to take any other actions arising from or
incident to the powers granted to the Trustee in this Pledge Agreement. This
power of attorney is coupled with an interest and is irrevocable by the Pledgor.
SECTION 9. Trustee May Perform. If the Pledgor fails to
perform any agreement contained herein, the Trustee may itself perform, or cause
the performance of, such agreement, and the reasonable expenses of the Trustee
incurred in connection therewith shall be payable by the Pledgor under Section
13 hereof.
SECTION 10. No Assumption of Duties; Reasonable Care. The
rights and powers granted to the Trustee hereunder are being granted in order to
preserve and protect the Trustee's and the Holders' of the Notes security
interest in and to the Collateral granted hereby and shall not be interpreted
to, and shall not impose any duties on the Trustee in connection therewith other
than those expressly provided herein or imposed under applicable law. Except as
provided by applicable law, the Trustee 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 the Trustee accords similar property in similar situations, it being
understood that the Trustee shall not have any responsibility for (a)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities or other matters relative to any Collateral, whether or not the
Trustee has or is deemed to have knowledge of such matters, (b) taking any
necessary steps to preserve rights against any parties with respect to any
Collateral or (c) investing or reinvesting any of the Collateral.
SECTION 11. Indemnity. The Pledgor shall indemnify, hold
harmless and defend the Trustee and its directors, officers, agents and
employees, from and against any and all claims, actions, obligations,
liabilities and expenses, including reasonable defense costs, reasonable
investigative fees and costs, and reasonable legal fees and damages arising from
the Trustee's
performance under this Pledge Agreement, except to the extent that such claim,
action, obligation, liability or expense is directly attributable to the bad
faith, gross negligence or wilful misconduct of such indemnified person.
SECTION 12. Remedies Upon Event of Default. If any Event of
Default under the Indenture or default hereunder (any such Event of Default or
default being referred to in this Pledge Agreement as an "Event of Default")
shall have occurred and be continuing:
(a) The Trustee and the Holders of the Notes shall have, in
addition to all other rights given by law or by this Pledge Agreement
or the Indenture, all of the rights and remedies with respect to the
Collateral of a secured party under the UCC in effect in the State of
New York at that time. In addition, with respect to any Collateral that
shall then be in or shall thereafter come into the possession or
custody of the Trustee, the Trustee may sell or cause the same to be
sold at any broker's board or at public or private sale, in one or more
sales or lots, at such price or prices as the Trustee may deem best,
for cash or on credit or for future delivery, without assumption of any
credit risk. 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 Trustee, to decline speedily in value or is or becomes of a type
sold on a recognized market, the Trustee will 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 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 15.1
hereof at least ten (10) days before the time of the sale or
disposition. The Trustee 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 reasonable 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 12 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 12 will cause irreparable injury to the Trustee and the
Holders of the Notes, that the Trustee and the Holders of the 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 12
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.
SECTION 13. Expenses. The Pledgor will upon demand pay to the
Trustee the amount of any and all reasonable expenses, including, without
limitation, the reasonable fees, expenses and disbursements of its counsel,
experts and agents retained by the Trustee, that the Trustee may incur in
connection with (a) the review, negotiation and administration of this Pledge
Agreement, (b) the custody or preservation of, or the sale of, collection from,
or other realization upon, any of the Collateral, (c) the exercise or
enforcement of any of the rights of the Trustee and the Holders of the Notes
hereunder or (d) the failure by the Pledgor to perform or observe any of the
provisions hereof. The lien in favor of the Trustee created by Section 10.01 of
the Indenture shall in addition to securing the Pledgor's payment obligations
under such Section 10.01 secure the Pledgor's payment obligations under Section
11 and 13 hereof.
SECTION 14. Security Interest Absolute. All rights of the
Trustee and the Holders of the Notes and security interests 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;
(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) to the extent permitted by applicable law, any other
circumstance which might otherwise constitute a defense available to,
or a discharge of, the Pledgor in respect of the Obligations or of this
Pledge Agreement.
SECTION 15. Miscellaneous Provisions.
Section 15.1. Notices. All notices, approvals, consents or
other communications required or desired to be given hereunder shall be in the
form and manner, and delivered to each of the parties hereto at their respective
addresses, as set forth or provided for in Section 12.02 of the Indenture.
Section 15.2. No Adverse Interpretation of Other Agreements.
This Pledge Agreement may not be used to interpret another pledge, security or
debt agreement of the Pledgor or any subsidiary thereof. No such pledge,
security or debt agreement may be used to interpret this Pledge Agreement.
Section 15.3. Severability. The provisions of this Pledge
Agreement are severable, and if any clause or provision shall be held invalid,
illegal or unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall affect in that jurisdiction only such
clause or provision, or part thereof, and shall not in any manner affect such
clause or
provision in any other jurisdiction or any other clause or provision of this
Pledge Agreement in any jurisdiction.
Section 15.4. Headings. The headings in this Pledge Agreement
have been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
Section 15.5. Counterpart Originals. This Pledge Agreement may
be signed in two or more counterparts, each of which shall be deemed an
original, but all of which shall together constitute one and the same agreement.
Section 15.6. Benefits of Pledge Agreement. Nothing in this
Pledge Agreement, 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.
Section 15.7. Amendments, Waivers and Consents. Any amendment
or waiver of any provision of this Pledge Agreement and any consent to any
departure by the Pledgor from any provision of this Pledge Agreement shall be
effective only if made or duly given in compliance with all of the terms and
provisions of the Indenture, and neither the Trustee nor any Holder of Notes
shall be deemed, by any act, delay, indulgence, omission or otherwise, to have
waived any right or remedy hereunder or to have acquiesced in any Default or
Event of Default or in any breach of any of the terms and conditions hereof.
Failure of the Trustee or any Holder of Notes to exercise, or delay in
exercising, any right, power or privilege hereunder shall not preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Trustee or any Holder of Notes of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy that the Trustee or such Holder of Notes would otherwise have on any
future occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any rights or remedies
provided by law.
Section 15.8. Interpretation of Agreement. All terms not
defined herein or in the Indenture shall have the meaning set forth in the
applicable UCC, except where the context otherwise requires. To the extent a
term or provision of this Pledge Agreement conflicts with the Indenture, the
Indenture shall control with respect to the subject matter of such term or
provision. Acceptance of or acquiescence in a course of performance rendered
under this Pledge Agreement shall not be relevant to determine the meaning of
this Pledge Agreement even though the accepting or acquiescing party had
knowledge of the nature of the performance and opportunity for objection.
Section 15.9. Continuing Security Interest; Termination. (a)
This Pledge Agreement shall create a continuing security interest in and to the
Collateral and shall, unless otherwise provided in the Indenture or in this
Pledge Agreement, remain in full force and effect until the earlier of payment
in full in cash of (i) each of the first six scheduled interest payments due on
the Notes under the terms of the Indenture or (ii) all obligations due and owing
under the
Indenture and the Notes in the event such obligations become payable prior to
the payment of the first six scheduled interest payments on the Notes. This
Pledge Agreement shall be binding upon the Pledgor, its transferees, successors
and assigns, and shall inure, together with the rights and remedies of the
Trustee hereunder, to the benefit of the Trustee, the Holders of the Notes and
their respective successors, transferees and assigns.
(b) Subject to the provisions of Section 15.10 hereof, this
Pledge Agreement shall terminate upon the earlier of payment in full in
cash of (i) each of the first six scheduled interest payments due on
the Notes under the terms of the Indenture or (ii) all obligations due
and owing under the Indenture and the Notes in the event such
obligations become payable prior to the payment of the first six
scheduled interest payments on the Notes. At such time, the Trustee
shall, pursuant to an Issuer Order, reassign and redeliver to the
Pledgor all of the Collateral hereunder that has not been sold,
disposed of, retained or applied by the Trustee in accordance with the
terms of this Pledge Agreement and the Indenture. Such reassignment and
redelivery shall be without warranty by or recourse to the Trustee,
except as to the absence of any prior assignments by the Trustee of its
interest in the Collateral, and shall be at the reasonable expense of
the Pledgor.
Section 15.10. Survival Provisions. All representations,
warranties and covenants of the Pledgor contained herein shall survive the
execution and delivery of this Pledge Agreement, and shall terminate only upon
the termination of this Pledge Agreement. The obligations of the Pledgor under
Sections 11 and 13 hereof shall survive the termination of this Agreement.
Section 15.11. Waivers. The Pledgor waives presentment and
demand for payment of any of the Obligations, protest and notice of dishonor or
default with respect to any of the Obligations, and all other notices to which
the Pledgor might otherwise be entitled, except as otherwise expressly provided
herein or in the Indenture.
Section 15.12. Authority of the Trustee. (a) The Trustee shall
have and be entitled to exercise all powers hereunder that are specifically
granted to the Trustee by the terms hereof, together with such powers as are
reasonably incident thereto. The Trustee 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. Neither the Trustee nor any director, officer,
employee, attorney or agent of the Trustee shall be liable to the Pledgor for
any action taken or omitted to be taken by it hereunder, except for its own bad
faith, gross negligence or wilful misconduct, and the Trustee shall not be
responsible for the validity, effectiveness or sufficiency hereof or of any
document or security furnished pursuant hereto. The Trustee 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.
(b) The Pledgor acknowledges that the rights and
responsibilities of the Trustee under this Pledge Agreement with
respect to any action taken by the Trustee or the exercise or
non-exercise by the Trustee 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 Trustee and the Holders
of the Notes, be governed by the Indenture and by such other agreements
with respect thereto as may exist from time to time among them, but, as
between the Trustee and the Pledgor, the Trustee 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.
Section 15.13. Limitation by Law. All rights, remedies and
powers provided herein may be exercised only to the extent that they will not
render this Pledge Agreement not entitled to be recorded, registered or filed
under provisions of any applicable law.
Section 15.14. Final Expression. This Pledge Agreement,
together with any other agreement executed in connection herewith, is intended
by the parties as a final expression of this Pledge Agreement and is intended as
a complete and exclusive statement of the terms and conditions thereof.
Section 15.15. Rights of Holders of the Notes. No Holder of
Notes shall have any independent rights hereunder other than those rights
granted to individual Holders of the Notes pursuant to Section 6.06 of the
Indenture; provided that nothing in this subsection shall limit any rights
granted to the Trustee under the Notes or the Indenture.
Section 15.16. GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL; WAIVER OF DAMAGES. (a) THIS PLEDGE AGREEMENT SHALL BE
GOVERNED BY AND INTERPRETED UNDER THE LAWS OF THE STATE OF NEW YORK, AND ANY
DISPUTE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THE PLEDGOR, THE TRUSTEE AND THE HOLDERS OF THE
NOTES IN CONNECTION WITH THIS PLEDGE AGREEMENT, AND WHETHER ARISING IN CONTRACT,
TORT, EQUITY OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
(b) THE PLEDGOR HAS APPOINTED [NAME OF AGENT FOR SERVICE OF
PROCESS], [ADDRESS OF AGENT FOR SERVICE OF PROCESS], AS ITS AGENT FOR SERVICE OF
PROCESS IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND FOR
ACTIONS BROUGHT UNDER U.S. FEDERAL OR STATE SECURITIES LAWS BROUGHT IN ANY
FEDERAL OR STATE COURT LOCATED IN THE CITY OF NEW YORK AND AGREES TO SUBMIT TO
THE JURISDICTION OF ANY SUCH COURT.
(c) THE PLEDGOR AGREES THAT THE TRUSTEE SHALL, IN ITS CAPACITY
AS TRUSTEE OR IN THE NAME AND ON BEHALF OF ANY HOLDER OF NOTES, HAVE THE RIGHT,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST THE PLEDGOR OR ITS
PROPERTY IN A COURT IN ANY LOCATION REASONABLY SELECTED IN GOOD FAITH (AND
HAVING PERSONAL OR
IN REM JURISDICTION OVER THE PLEDGOR OR ITS PROPERTY, AS THE CASE MAY BE) TO
ENABLE THE TRUSTEE TO REALIZE ON SUCH PROPERTY, OR TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER ENTERED IN FAVOR OF THE TRUSTEE. THE PLEDGOR AGREES THAT IT
WILL NOT ASSERT ANY COUNTERCLAIMS, SETOFFS OR CROSSCLAIMS IN ANY PROCEEDING
BROUGHT BY THE TRUSTEE TO REALIZE ON SUCH PROPERTY OR TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER IN FAVOR OF THE TRUSTEE, EXCEPT FOR SUCH COUNTERCLAIMS,
SETOFFS OR CROSSCLAIMS WHICH, IF NOT ASSERTED IN ANY SUCH PROCEEDING, COULD NOT
OTHERWISE BE BROUGHT OR ASSERTED. THE PLEDGOR WAIVES ANY OBJECTION THAT IT MAY
HAVE TO THE LOCATION OF THE COURT IN THE CITY OF NEW YORK ONCE THE TRUSTEE HAS
COMMENCED A PROCEEDING DESCRIBED IN THIS PARAGRAPH INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS.
(d) THE PLEDGOR AND THE TRUSTEE EACH WAIVE ANY RIGHT TO HAVE A
JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR
OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS PLEDGE AGREEMENT.
INSTEAD, ANY DISPUTES RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL
WITHOUT A JURY.
(e) THE PLEDGOR AGREES THAT NEITHER THE TRUSTEE NOR ANY HOLDER
OF NOTES SHALL HAVE ANY LIABILITY TO THE PLEDGOR (WHETHER ARISING IN TORT,
CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY THE PLEDGOR IN CONNECTION WITH,
ARISING OUT OF, OR IN ANY WAY RELATED TO, THE TRANSACTIONS CONTEMPLATED AND THE
RELATIONSHIP ESTABLISHED BY THIS PLEDGE AGREEMENT, OR ANY ACT, OMISSION OR EVENT
OCCURRING IN CONNECTION THEREWITH, UNLESS IT IS DETERMINED BY A FINAL AND
NONAPPEALABLE JUDGMENT OF A COURT THAT IS BINDING ON THE TRUSTEE OR SUCH HOLDER
OF NOTES, AS THE CASE MAY BE, THAT SUCH LOSSES WERE THE RESULT OF ACTS OR
OMISSIONS ON THE PART OF THE TRUSTEE OR SUCH HOLDERS OF NOTES, AS THE CASE MAY
BE, CONSTITUTING BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(f) TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS
OTHERWISE PROVIDED IN THIS PLEDGE AGREEMENT, THE PLEDGOR WAIVES ALL RIGHTS OF
NOTICE AND HEARING OF ANY KIND PRIOR TO THE EXERCISE BY THE TRUSTEE OR ANY
HOLDER OF NOTES OF ITS RIGHTS DURING THE CONTINUANCE OF ALL EVENTS OF DEFAULT TO
REPOSSESS THE COLLATERAL WITH JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY
UPON THE COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE PLEDGOR WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF THE TRUSTEE OR ANY HOLDER OF NOTES IN CONNECTION WITH ANY
JUDICIAL PROCESS OR PROCEEDING TO OBTAIN POSSESSION OF REPLEVY, ATTACH OR LEVY
UPON THE COLLATERAL OR OTHER
SECURITY FOR THE OBLIGATIONS, TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER
ENTERED IN FAVOR OF THE TRUSTEE OR ANY HOLDER OF NOTES, OR TO ENFORCE BY
SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER OR PRELIMINARY OR PERMANENT
INJUNCTION, THIS PLEDGE AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN THE
PLEDGOR ON THE ONE HAND AND THE TRUSTEE AND/OR THE HOLDERS OF THE NOTES ON THE
OTHER HAND.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Pledgor and the Trustee have each
caused this Pledge Agreement to be duly executed and delivered as of the date
first above written.
Pledgor:
ORION NEWCO SERVICES, INC.
By:____________________________
Name:__________________________
Title:_________________________
Trustee:
BANKERS TRUST COMPANY,
as Trustee
By:____________________________
Name:__________________________
Title:_________________________
EXHIBIT A TO THE
COLLATERAL PLEDGE
AND SECURITY AGREEMENT
Orion Newco Services, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 00
Xxxxxxxxx, Xxxxxxxx 00000
Attention: [___________________]
Bankers Trust Company,
as Trustee
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trustee Administration Department
Ladies and Gentlemen:
Reference is made to the Indenture dated as [__________], 1997
between Orion Newco Services, Inc., as issuer (the "Issuer"), each of the
Issuer's Restricted Subsidiaries (as defined in the Indenture), as guarantors,
and Bankers Trust Company, as trustee thereunder (the "Trustee"), relating to
the [___]% Senior Notes due 2007 of the Issuer (the "Notes") and the Collateral
Pledge and Security Agreement dated as of [__________], 1997 (the "Pledge
Agreement") between the Issuer and the Trustee, for the benefit of the Trustee
and the ratable benefit of the holders of the Notes.
We hereby confirm that we are holding the Pledged Securities
(as defined in the Pledge Agreement) in account no. [Account Number] (the
"Account") at our office at 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, for the
benefit of the Trustee and the ratable benefit of the holders of the Notes as
provided in the Pledge Agreement and that we have indicated the same in our
books and records relating to the Pledged Securities and the Account.
Very truly yours,
BANKERS TRUST COMPANY,
in its individual capacity
By:____________________________
Name:__________________________
Title:_________________________
