exv10w2



 







Exhibit 10.2




AMENDED AND RESTATED SECURITY AGREEMENT




     THIS AMENDED AND RESTATED SECURITY AGREEMENT (this “Security Agreement”) dated as of
December 29, 2004 is by and among the parties identified as “Grantors” on the signature pages
hereto and such other parties as may become Grantors hereunder after the date hereof (individually
a “Grantor”, and collectively the “Grantors”) and BANK OF AMERICA, N.A., as
administrative agent (in such capacity, the “Administrative Agent”) for the holders of the
Secured Obligations referenced below.



W I T N E S S E T H




     WHEREAS, a $50 million credit facility has been established in favor of Orbital Sciences
Corporation, a Delaware corporation (the “Borrower”), pursuant to the terms of that Amended
and Restated Credit Agreement (as amended, modified, supplemented and extended from time to time,
the “Credit Agreement”) dated as of the date hereof among the Borrower, the Guarantors
identified therein, the Lenders identified therein and Bank of America, N.A., as Administrative
Agent;



     WHEREAS, this Security Agreement is required under the terms of the Credit Agreement; and




     WHEREAS, this Security Agreement is given in amendment to, restatement of and substitution for
the Security Agreement dated as of July 10, 2003 by and among the Grantors and the Administrative
Agent.



     NOW, THEREFORE, in consideration of these premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



     1. Definitions.



     (a) Capitalized terms used and not otherwise defined herein shall have the meanings provided
in the Credit Agreement.



     (b) The following terms shall have the meanings assigned thereto in the Uniform Commercial
Code in effect in the State of New York on the date hereof: Accession, Account, As-Extracted
Collateral, Consumer Goods, Farm Products, General Intangible, Manufactured Home, Proceeds,
Software, timber to be cut and Supporting Obligation.



     (c) As used herein, the following terms shall have the meanings set forth below:




     “Collateral” has the meaning provided in Section 2 hereof.




     “Copyright License” means any written agreement of any Grantor, naming such Grantor as licensor, granting any right under
any Copyright including, without limitation, any thereof referred to in Schedule 6.17 to the Credit Agreement.




     “Copyrights” means (a) all registered United States copyrights in all Works, now existing or hereafter created or acquired,
all registrations and recordings thereof, and all applications in connection therewith, including, without limitation,
registrations, recordings and applications in the United States Copyright Office including, without limitation, any
thereof referred to in Schedule 6.17 to the Credit Agreement, and (b) all renewals
thereof including, without limitation, any thereof referred to in Schedule 6.17 to
the Credit Agreement.




     “Patent License” means any agreement, whether written or oral, of any Grantor
providing for the grant by or to such Grantor of any right to manufacture, use or sell any
invention covered by a



 









 






Patent, including, without limitation, any thereof referred to in
Schedule 6.17 to the Credit Agreement.




     “Patents” means (a) all letters patent of the United States or any other
country and all reissues and extensions thereof, including, without limitation, any letters
patent referred to in Schedule 6.17 to the Credit Agreement, and (b) all
applications for letters patent of the United States or any other country and all divisions,
continuations and continuations-in-part thereof, including, without limitation, any thereof
referred to in Schedule 6.17 to the Credit Agreement.




     “Secured Obligations” means, without duplication, (a) all of the Obligations
and (b) all costs and expenses incurred in connection with enforcement and collection of the
Obligations, including reasonable attorneys’ fees and the allocated cost of internal
counsel.




     “Trademark License” means any agreement, written or oral, of any Grantor
providing for the grant by or to such Grantor of any right to use any Trademark, including,
without limitation, any thereof referred to in Schedule 6.17 to the Credit
Agreement.




     “Trademarks” means (a) all trademarks, trade names, corporate names, company
names, business names, fictitious business names, trade styles, service marks, logos and
other source or business identifiers, and the goodwill associated therewith, now existing or
hereafter adopted or acquired, all registrations and recordings thereof, and all
applications in connection therewith, whether in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any state thereof or any
other country or any political subdivision thereof, or otherwise, including, without
limitation, any thereof referred to in Schedule 6.17 to the Credit Agreement, and
(b) all renewals thereof.




     “UCC” means the Uniform Commercial Code.




     “Work” means any work that is subject to copyright protection pursuant to Title
17 of the United States Code.



     2. Grant of Security Interest in the Collateral. To secure the prompt payment and
performance in full when due, whether by lapse of time, acceleration, mandatory prepayment or
otherwise, of the Secured Obligations, each Grantor hereby grants to the Administrative Agent, for
the benefit of the holders of the Secured Obligations, a continuing security interest in, and a
right to set off against, any and all right, title and interest of such Grantor in and to all of
the following, whether now owned or existing or owned, acquired, or arising hereafter
(collectively, the “Collateral”):




     (a) all Accounts;




     (b) all Copyrights;




     (c) all Copyright Licenses;




     (d) all General Intangibles;




     (e) all Patents;




     (f) all Patent Licenses;




     (g) all Software;



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     (h) all Supporting Obligations;




     (i) all Trademarks;




     (j) all Trademark Licenses; and




     (k) to the extent not otherwise included, all Accessions and all Proceeds of any and
all of the foregoing.




     Notwithstanding anything to the contrary contained herein, the security interests
granted under this Security Agreement shall not extend to the following (the “Excluded
Property”): (a) any lease, license or other contract if the grant of a security interest
in such lease, license or contract in the manner contemplated by this Security Agreement is
prohibited by the terms of such lease, license or contract or by law and would result in the
termination of, or any claim for damages or the availability of any other remedial action
under, such lease, license or contract, but only to the extent that such prohibition is not
rendered ineffective pursuant to the UCC or any other applicable law (including Debtor
Relief Laws) or principles of equity and (b) any of the Subject Property until the release
or termination of the Lien in favor of Optus in such Subject Property.



     Each Grantor and the Administrative Agent, on behalf of the holders of the Secured
Obligations, hereby acknowledges and agrees that the security interest created hereby in the
Collateral (i) constitutes continuing collateral security for all of the Secured Obligations,
whether now existing or hereafter arising and (ii) is not to be construed as an assignment of any
Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks or Trademark Licenses.



     3. Provisions Relating to Accounts.



     (a) Anything herein to the contrary notwithstanding, each of the Grantors shall remain liable
under each of its Accounts to observe and perform all the conditions and obligations to be observed
and performed by it thereunder, all in accordance with the terms of any agreement giving rise to
each such Account. Neither the Administrative Agent nor any holder of the Secured Obligations
shall have any obligation or liability under any Account (or any agreement giving rise thereto) by
reason of or arising out of this Security Agreement or the receipt by the Administrative Agent or
any holder of the Secured Obligations of any payment relating to such Account pursuant hereto, nor
shall the Administrative Agent or any holder of the Secured Obligations be obligated in any manner
to perform any of the obligations of a Grantor under or pursuant to any Account (or any agreement
giving rise thereto), to make any payment, to make any inquiry as to the nature or the sufficiency
of any payment received by it or as to the sufficiency of any performance by any party under any
Account (or any agreement giving rise thereto), to present or file any claim, to take any action to
enforce any performance or to collect the payment of any amounts that may have been assigned to it
or to which it may be entitled at any time or times.



     (b) At any time after the occurrence and during the continuation of an Event of Default,
following notification to the Grantors, the Administrative Agent in its own name or in the name of
others may communicate with account debtors on the Accounts to verify with them to the
Administrative Agent’s satisfaction the existence, amount and terms of any Accounts.



     4. Representations and Warranties. Each Grantor hereby represents and warrants to the
Administrative Agent, for the benefit of the holders of the Secured Obligations that:




     (a) Ownership. Each Grantor is the legal and beneficial owner of its
Collateral and has the right to pledge, sell, assign or transfer the same.



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     (b) Security Interest/Priority. This Security Agreement creates a valid
security interest in favor of the Administrative Agent, for the benefit of the holders of
the Secured Obligations, in the Collateral of such Grantor and, when properly perfected by
filing, shall constitute a valid perfected security interest in such Collateral, to the
extent such security interest can be perfected by filing under the UCC, free and clear of
all Liens except for Permitted Liens.




     (c) Types of Collateral. None of the Collateral consists of, or is the
Accessions or the Proceeds of, As-Extracted Collateral, Consumer Goods, Farm Products,
Manufactured Homes, or timber to be cut.




     (d) Accounts. (i) Each Account of such Grantor and the papers and documents
relating thereto are genuine and in all material respects what they purport to be, and (ii)
each Account of such Grantor arises out of (A) a bona fide sale of goods sold or to be sold
and delivered by such Grantor (or is in the process of being delivered) or (B) services
theretofore rendered or to be rendered by such Grantor to, the account debtor named therein.




     (e) Copyrights, Patents and Trademarks.




     (i) Schedule 6.17 to the Credit Agreement includes all Copyrights,
Copyright Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses
registered or pending registration with the United States Copyright Office or United
States Patent and Trademark Office and owned by any Grantor in its own name, or to
which such Grantor has a right to use, as of the date hereof.




     (ii) Except as set forth in Schedule 6.17 to the Credit Agreement, as
of the date hereof, none of the material Copyrights, Patents and Trademarks of such
Grantor is the subject of any licensing agreement or similar agreement.



     5. Covenants. Each Grantor covenants that, so long as any of the Secured Obligations
remains outstanding and until all of the commitments relating thereto have been terminated, such
Grantor shall:




     (a) Other Liens. Defend the Collateral against the claims and demands of all
other parties claiming an interest therein other than Permitted Liens.




     (b) Perfection of Security Interest. Execute and deliver to the Administrative
Agent such agreements, assignments or instruments (including affidavits, notices,
reaffirmations and amendments and restatements of existing documents, as the Administrative Agent may reasonably request) and do all such other things as the
Administrative Agent may reasonably deem necessary, appropriate or convenient (i) to assure
to the Administrative Agent the effectiveness and priority of its security interests
hereunder, including (A) such instruments as the Administrative Agent may from time to time
reasonably request in order to perfect and maintain the security interests granted hereunder
in accordance with the UCC, (B) with regard to Copyrights, a Notice of Grant of Security
Interest in Copyrights for filing with the United States Copyright Office in the form of
Schedule 5(b)(i) attached hereto, (C) with regard to Patents, a Notice of Grant of
Security Interest in Patents for filing with the United States Patent and Trademark Office
in the form of Schedule 5(b)(ii) attached hereto and (D) with regard to Trademarks,
a Notice of Grant of Security Interest in Trademarks for filing with the United States
Patent and Trademark Office in the form of Schedule 5(b)(iii) attached hereto, (ii)
to consummate the transactions contemplated hereby and (iii) to otherwise protect and assure
the Administrative Agent of its rights and interests hereunder. To that end, each Grantor
authorizes the Administrative Agent to file one or more financing statements disclosing the
Administrative Agent’s security interest in any or all of the Collateral of such Grantor
without such Grantor’s signature thereon, and further each Grantor also hereby irrevocably
makes,



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constitutes and appoints the Administrative Agent, its nominee or any other Person
whom the Administrative Agent may designate, as such Grantor’s attorney-in-fact with full
power and for the limited purpose to sign in the name of such Grantor any such amendments
and supplements, notices or any similar documents that in the Administrative Agent’s
reasonable discretion would be necessary, appropriate or convenient in order to perfect and
maintain perfection of the security interests granted hereunder, such power, being coupled
with an interest, being and remaining irrevocable so long as the Secured Obligations remain
unpaid and until the commitments relating thereto shall have been terminated. Each Grantor
hereby agrees that a carbon, photographic or other reproduction of this Security Agreement
or any such financing statement is sufficient for filing as a financing statement by the
Administrative Agent without notice thereof to such Grantor wherever the Administrative
Agent may in its sole discretion desire to file the same. In the event for any reason the
law of any jurisdiction other than New York becomes or is applicable to the Collateral of
any Grantor or any part thereof, or to any of the Secured Obligations, such Grantor agrees
to execute and deliver all such instruments and to do all such other things as the
Administrative Agent in its sole discretion reasonably deems necessary, appropriate or
convenient to preserve, protect and enforce the security interests of the Administrative
Agent under the law of such other jurisdiction (and, if a Grantor shall fail to do so
promptly upon the request of the Administrative Agent, then the Administrative Agent may
execute any and all such requested documents on behalf of such Grantor pursuant to the power
of attorney granted hereinabove).




     (c) Federal Assignment of Claims Act.




     At any time and from time to time, upon the written request of the Administrative Agent
or the Required Lenders and at the sole expense of the Grantors, each Grantor will promptly
take all actions required under the Federal Assignment of Claims Act or any similar state
statute, as the Administrative Agent or the Required Lenders may reasonably request.



     6. Advances by Holders of the Secured Obligations. On failure of any Grantor to
perform any of the covenants and agreements contained herein, the Administrative Agent may, at its
sole option and in its sole discretion, perform the same and in so doing may expend such sums as
the Administrative Agent may reasonably deem advisable in the performance thereof, including, without limitation, the payment of any insurance premiums, the payment of any taxes, a payment to obtain a release of a Lien or potential Lien, expenditures made in defending against any adverse
claim and all other expenditures that the Administrative Agent may make for the protection of the
security hereof or that may be compelled to make by operation of law. All such sums and amounts so
expended shall be repayable by the Grantors on a joint and several basis (subject to Section 23
hereof) promptly upon timely notice thereof and demand therefor, shall constitute additional
Secured Obligations and shall bear interest from the date said amounts are expended at the Default
Rate specified in Section 2.08 of the Credit Agreement for Base Rate Loans. No such performance of
any covenant or agreement by the Administrative Agent on behalf of any Grantor, and no such advance
or expenditure therefor, shall relieve the Grantors of any default under the terms of this Security
Agreement, the other Loan Documents or any other documents relating to the Secured Obligations.
The Administrative Agent may make any payment hereby authorized in accordance with any bill,
statement or estimate procured from the appropriate public office or holder of the claim to be
discharged without inquiry into the accuracy of such bill, statement or estimate or into the
validity of any tax assessment, sale, forfeiture, tax lien, title or claim except to the extent
such payment is being contested in good faith by a Grantor in appropriate proceedings and against
which adequate reserves are being maintained in accordance with GAAP.



     7. Remedies.



     (a) General Remedies. Upon the occurrence of an Event of Default and during the
continuation thereof, the Administrative Agent and the holders of the Secured Obligations shall
have, in addition to the rights and remedies provided herein, in the Loan Documents, in any other
documents relating to the Secured



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Obligations, or by law (including, without limitation, levy of
attachment and garnishment), the rights and remedies of a secured party under the UCC of the
jurisdiction applicable to the affected Collateral. In addition to all other sums due the
Administrative Agent and the holders of the Secured Obligations with respect to the Secured
Obligations, the Grantors shall pay the Administrative Agent and each of the holders of the Secured
Obligations all reasonable documented costs and expenses incurred by the Administrative Agent or
any such holder of the Secured Obligations, including, but not limited to, reasonable attorneys’
fees, the allocated cost of internal counsel and court costs, in obtaining or liquidating the
Collateral, in enforcing payment of the Secured Obligations, or in the prosecution or defense of
any action or proceeding by or against the Administrative Agent or the holders of the Secured
Obligations or the Grantors concerning any matter arising out of or connected with this Security
Agreement, any Collateral or the Secured Obligations, including, without limitation, any of the
foregoing arising in, arising under or related to a case under the Bankruptcy Code of the United
States. The Administrative Agent and the holders of the Secured Obligations shall not be obligated
to make any sale or other disposition of the Collateral regardless of notice having been given. To
the extent permitted by law, any holder of the Secured Obligations may be a purchaser at any such
sale. To the extent permitted by applicable law, each of the Grantors hereby waives all of its
rights of redemption with respect to any such sale. Subject to the provisions of applicable law,
the Administrative Agent and the holders of the Secured Obligations may postpone or cause the
postponement of the sale of all or any portion of the Collateral by announcement at the time and
place of such sale, and such sale may, without further notice, to the extent permitted by law, be
made at the time and place to which the sale was postponed, or the Administrative Agent and the
holders of the Secured Obligations may further postpone such sale by announcement made at such time
and place.




     (b) Remedies relating to Accounts. Upon the occurrence of an Event of Default and
during the continuation thereof, whether or not the Administrative Agent has exercised any or all
of its rights and remedies hereunder, (i) each Grantor will promptly upon request of the
Administrative Agent instruct all account debtors to remit all payments in respect of Accounts to a
mailing location selected by the Administrative Agent and (ii) the Administrative Agent shall have
the right to enforce any Grantor’s rights against its customers and account debtors, and the Administrative
Agent or its designee may notify any Grantor’s customers and account debtors that the Accounts of
such Grantor have been assigned to the Administrative Agent or of the Administrative Agent’s
security interest therein, and may (either in its own name or in the name of a Grantor or both)
demand, collect (including without limitation by way of a lockbox arrangement), receive, take
receipt for, sell, sue for, compound, settle, compromise and give acquittance for any and all
amounts due or to become due on any Account, and, in the Administrative Agent’s discretion, file
any claim or take any other action or proceeding to protect and realize upon the security interest
of the holders of the Secured Obligations in the Accounts. Each Grantor acknowledges and agrees
that the Proceeds of its Accounts remitted to or on behalf of the Administrative Agent in
accordance with the provisions hereof shall be solely for the Administrative Agent’s own
convenience and that such Grantor shall not have any right, title or interest in such Accounts or
in any such other amounts except as expressly provided herein. The Administrative Agent and the
holders of the Secured Obligations shall have no liability or responsibility to any Grantor for
acceptance of a check, draft or other order for payment of money bearing the legend “payment in
full” or words of similar import or any other restrictive legend or endorsement or be responsible
for determining the correctness of any remittance. Each Grantor hereby agrees to indemnify the
Administrative Agent and the holders of the Secured Obligations from and against all liabilities,
damages, losses, actions, claims, judgments, costs, expenses, charges and reasonable attorneys’
fees (including the allocated cost of internal counsel) suffered or incurred by the Administrative
Agent or the holders of the Secured Obligations (each, an “Indemnified Party”) because of
the maintenance of the foregoing arrangements except as relating to or arising out of the gross
negligence or willful misconduct of an Indemnified Party or its officers, employees or agents. In
the case of any investigation, litigation or other proceeding, the foregoing indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought by a Grantor, its
directors, shareholders or creditors or an Indemnified Party or any other Person or any other
Indemnified Party is otherwise a party thereto.



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     (c) Access. In addition to the rights and remedies hereunder, upon the occurrence of
an Event of Default and during the continuation thereof, the Administrative Agent shall have the
right to enter and remain upon the various premises owned by any Grantor without cost or charge to
the Administrative Agent, and use the same, together with materials, supplies, books and records of
the Grantors for the purpose of collecting and liquidating the Collateral, or for preparing for
sale and conducting the sale of the Collateral, whether by foreclosure, auction or otherwise. In
addition, the Administrative Agent may remove Collateral, or any part thereof, from such premises
and/or any records with respect thereto, in order to effectively collect or liquidate such
Collateral.



     (d) Nonexclusive Nature of Remedies. Failure by the Administrative Agent or the
holders of the Secured Obligations to exercise any right, remedy or option under this Security
Agreement, any other Loan Document, any other documents relating to the Secured Obligations, or as
provided by law, or any delay by the Administrative Agent or the holders of the Secured Obligations
in exercising the same, shall not operate as a waiver of any such right, remedy or option. No
waiver hereunder shall be effective unless it is in writing, signed by the party against whom such
waiver is sought to be enforced and then only to the extent specifically stated, which in the case
of the Administrative Agent or the holders of the Secured Obligations shall only be granted as
provided herein. To the extent permitted by law, neither the Administrative Agent, the holders of
the Secured Obligations, nor any party acting as attorney for the Administrative Agent or the
holders of the Secured Obligations, shall be liable hereunder for any acts or omissions or for any
error of judgment or mistake of fact or law other than their gross negligence or willful misconduct
hereunder. The rights and remedies of the Administrative Agents and the holders of the Secured
Obligations under this Security Agreement shall be cumulative and not exclusive of any other right or remedy that the Administrative Agent or the holders of the Secured Obligations
may have.



     (e) Deficiency. In the event that the proceeds of any sale, collection or realization
are insufficient to pay all amounts to which the Administrative Agent or the holders of the Secured
Obligations are legally entitled, the Grantors shall be jointly and severally liable for the
deficiency (subject to Section 23 hereof), together with interest thereon at the Default Rate
specified in Section 2.08 of the Credit Agreement for Base Rate Loans, together with the costs of
collection and reasonable attorneys’ fees (including the allocated cost of internal counsel). Any
surplus remaining after the full payment and satisfaction of the Secured Obligations shall be
returned to the Grantors or to whomsoever a court of competent jurisdiction shall determine to be
entitled thereto.



     8. Rights of the Administrative Agent.



     (a) Power of Attorney. In addition to other powers of attorney contained herein, each
Grantor hereby designates and appoints the Administrative Agent, on behalf of the holders of the
Secured Obligations, and each of its designees or agents, as attorney-in-fact of such Grantor,
irrevocably and with power of substitution, with authority to take any or all of the following
actions upon the occurrence and during the continuation of an Event of Default:




     (i) to demand, collect, settle, compromise and adjust, and give discharges and
releases concerning the Collateral, all as the Administrative Agent may reasonably
deem appropriate;




     (ii) to commence and prosecute any actions at any court for the purposes of
collecting any of the Collateral from any third party and enforcing any other right
in respect thereof;




     (iii) to defend, settle or compromise any action brought by any third party
and, in connection therewith, give such discharge or release as the Administrative
Agent may reasonably deem appropriate;



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     (iv) to receive, open and dispose of mail addressed to a Grantor and endorse
checks, notes, drafts, acceptances, money orders, bills of lading, warehouse
receipts or other instruments or documents evidencing payment, shipment or storage
of the goods giving rise to the Collateral on behalf of and in the name of such
Grantor, or securing, or relating to such Collateral;




     (v) to pay or discharge taxes, liens, security interests or other encumbrances
levied or placed on or threatened against the Collateral;




     (vi) to direct any parties liable for any payment in connection with any of the
Collateral to make payment of any and all monies due and to become due thereunder
directly to the Administrative Agent or as the Administrative Agent shall direct;




     (vii) to receive payment of and receipt for any and all monies, claims, and
other amounts due and to become due at any time in respect of or arising out of any
Collateral;




     (viii) to adjust and settle claims under any insurance policy relating thereto;




     (ix) to execute and deliver all assignments, conveyances, statements, financing
statements, renewal financing statements, security and pledge agreements,
affidavits, notices and other agreements, instruments and documents that the
Administrative Agent may reasonably deem appropriate in order to perfect and
maintain the security interests and liens granted in this Security Agreement and in
order to fully consummate all of the transactions contemplated herein;




     (x) to institute any foreclosure proceedings that the Administrative Agent may
reasonably deem appropriate; and




     (xi) to do and perform all such other acts and things as the Administrative
Agent may reasonably deem appropriate or convenient in connection with the
Collateral.



     This power of attorney is a power coupled with an interest and shall be irrevocable for so
long as any of the Secured Obligations shall remain outstanding and until all of the commitments
relating thereto shall have been terminated. The Administrative Agent shall be under no duty to
exercise or withhold the exercise of any of the rights, powers, privileges and options expressly or
implicitly granted to the Administrative Agent in this Security Agreement, and shall not be liable
for any failure to do so or any delay in doing so. The Administrative Agent shall not be liable
for any act or omission or for any error of judgment or any mistake of fact or law in its
individual capacity or its capacity as attorney-in-fact except acts or omissions resulting from its
gross negligence or willful misconduct. This power of attorney is conferred on the Administrative
Agent solely to protect, preserve and realize upon its security interest in the Collateral.



     (b) The Administrative Agent’s Duty of Care. Other than the exercise of reasonable
care to assure the safe custody of the Collateral while being held by the Administrative Agent
hereunder, the Administrative Agent shall have no duty or liability to preserve rights pertaining
thereto, it being understood and agreed that the Grantors shall be responsible for preservation of
all rights in the Collateral, and the Administrative Agent shall be relieved of all responsibility
for the Collateral upon surrendering it or tendering the surrender of it to the Grantors. The
Administrative 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 equal to that which the Administrative Agent accords its own property, which shall be
no less than the treatment employed by a reasonable and prudent agent in the industry, it being
understood that the Administrative Agent shall not have responsibility for taking any necessary
steps to preserve rights against



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any parties with respect to any of the Collateral. In the event
of a public or private sale of Collateral pursuant to Section 7 hereof, the Administrative Agent
shall have no obligation to clean, repair or otherwise prepare the Collateral for sale.




     9. Rights of Required Lenders. All rights of the Administrative Agent hereunder, if
not exercised by the Administrative Agent, may be exercised by the Required Lenders.



     10. Application of Proceeds. Upon the occurrence and during the continuation of an
Event of Default, any payments in respect of the Secured Obligations and any proceeds of the
Collateral, when received by the Administrative Agent or any of the holders of the Secured
Obligations in cash or its equivalent, will be applied in reduction of the Secured Obligations in
the order set forth in Section 9.03 of the Credit Agreement, and each Grantor irrevocably waives
the right to direct the application of such payments and proceeds and acknowledges and agrees that
the Administrative Agent shall have the continuing and exclusive right to apply and reapply any and all such payments and proceeds in the Administrative Agent’s sole discretion, notwithstanding any
entry to the contrary upon any of its books and records.



     11. Continuing Agreement.



     (a) This Security Agreement shall be a continuing agreement in every respect and shall remain
in full force and effect so long as any of the Secured Obligations remains outstanding and until
all of the commitments relating thereto have been terminated (other than any contingent
indemnification obligations under the Loan Documents that are not yet due and payable). Upon such
payment and termination, this Security Agreement and the liens and security interests of the
Administrative Agent hereunder shall be automatically terminated and the Administrative Agent
shall, upon the request and at the expense of the Grantors, authorize, execute and deliver all UCC
termination statements and/or other documents reasonably requested by the Grantors evidencing such
termination. Notwithstanding the foregoing, all releases and indemnities provided hereunder shall
survive termination of this Security Agreement.



     (b) This Security Agreement shall continue to be effective or be automatically reinstated, as
the case may be, if at any time payment, in whole or in part, of any of the Secured Obligations is
rescinded or must otherwise be restored or returned by the Administrative Agent or any holder of
the Secured Obligations as a preference, fraudulent conveyance or otherwise under any bankruptcy,
insolvency or similar law, all as though such payment had not been made; provided that in the event
payment of all or any part of the Secured Obligations is rescinded or must be restored or returned,
all reasonable costs and expenses (including, without limitation, attorneys’ fees, the allocated
cost of internal counsel and disbursements) incurred by the Administrative Agent or any holder of
the Secured Obligations in defending and enforcing such reinstatement shall be deemed to be
included as a part of the Secured Obligations.



     12. Amendments and Waivers. This Security Agreement and the provisions hereof may not
be amended, waived, modified, changed, discharged or terminated except as set forth in Section
11.01 of the Credit Agreement.



     13. Successors in Interest. This Security Agreement shall create a continuing
security interest in the Collateral and shall be binding upon each Grantor, its successors and
assigns, and shall inure, together with the rights and remedies of the Administrative Agent and the
holders of the Secured Obligations hereunder, to the benefit of the Administrative Agent and the
holders of the Secured Obligations and their successors and permitted assigns; provided,
however, that none of the Grantors may assign its rights or delegate its duties hereunder without
the prior written consent of the requisite Lenders under the Credit Agreement. To the fullest
extent permitted by law, each Grantor hereby releases the Administrative Agent and each holder of
the Secured Obligations, their respective successors and assigns and their respective officers,
attorneys, employees and agents, from any liability for any act or omission or any error of
judgment or mistake of fact or of law relating to this Security Agreement or the Collateral, except
for any liability



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arising from the gross negligence or willful misconduct of the Administrative
Agent or such holder, or their respective officers, attorneys, employees or agents.




     14. Notices. All notices required or permitted to be given under this Security
Agreement shall be given as provided in Section 11.02 of the Credit Agreement.



     15. Counterparts. This Security Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. It shall not be necessary in making proof of this
Security Agreement to produce or account for more than one such counterpart.



     16. Headings. The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of any provision of
this Security Agreement.



     17. Governing Law; Submission to Jurisdiction; Venue.



     (a) THIS SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE;
PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.



     (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS SECURITY AGREEMENT OR ANY OTHER LOAN
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK, NEW YORK OR OF
THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS
SECURITY AGREEMENT, THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS SECURITY
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.



     18. Waiver of Right to Trial by Jury.



     EACH PARTY TO THIS SECURITY AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS SECURITY AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO THIS SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT
ANY PARTY TO THIS SECURITY AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION
WITH



10









 





ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.




     19. Severability. If any provision of this Security Agreement is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and the remaining
provisions shall remain in full force and effect and shall be construed without giving effect to
the illegal, invalid or unenforceable provisions.



     20. Entirety. This Security Agreement, the other Loan Documents and the other
documents relating to the Secured Obligations represent the entire agreement of the parties hereto
and thereto, and supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Loan Documents, any other
documents relating to the Secured Obligations, or the transactions contemplated herein and therein.



     21. Survival. All representations and warranties of the Grantors hereunder shall
survive the execution and delivery of this Security Agreement, the other Loan Documents and the
other documents relating to the Secured Obligations, the delivery of the Notes and the extension of
credit thereunder or in connection therewith.



     22. Other Security. To the extent that any of the Secured Obligations are now or
hereafter secured by property other than the Collateral (including, without limitation, real
property and securities owned by a Grantor), or by a guarantee, endorsement or property of any
other Person, then the Administrative Agent shall have the right to proceed against such other
property, guarantee or endorsement upon the occurrence and during the continuation of any Event of
Default, and the Administrative Agent shall have the right, in its sole discretion, to determine
which rights, security, liens, security interests or remedies the Administrative Agent shall at any
time pursue, relinquish, subordinate, modify or take with respect thereto, without in any way
modifying or affecting any of them or the Secured Obligations or any of the rights of the
Administrative Agent or the holders of the Secured Obligations under this Security Agreement, under
any of the other Loan Documents or under any other document relating to the Secured Obligations.



     23. Joint and Several Obligations of Grantors.



     (a) Subject to subsection (c) of this Section 23, each of the Grantors is accepting joint and
several liability hereunder in consideration of the financial accommodation to be provided by the
holders of the Secured Obligations, for the mutual benefit, directly and indirectly, of each of the
Grantors and in consideration of the undertakings of each of the Grantors to accept joint and
several liability for the obligations of each of them.



     (b) Subject to subsection (c) of this Section 23, each of the Grantors jointly and severally
hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor,
joint and several liability with the other Grantors with respect to the payment and performance of
all of the Secured Obligations arising under this Security Agreement, the other Loan Documents and
any other documents relating to the Secured Obligations, it being the intention of the parties
hereto that all the Secured Obligations shall be the joint and several obligations of each of the
Grantors without preferences or distinction among them.



     (c) Notwithstanding any provision to the contrary contained herein, in any other of the Loan
Documents or in any other documents relating to the Secured Obligations, the obligations of each
Guarantor under the Credit Agreement and the other Loan Documents shall be limited to an aggregate
amount equal to the largest amount that would not render such obligations subject to avoidance
under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any
applicable state law.



[Signature Pages Follow]




11









 








     Each of the parties hereto has caused a counterpart of this Security Agreement to be duly
executed and delivered as of the date first above written.



	 	 	 
	GRANTORS:

	 	ORBITAL SCIENCES CORPORATION,
	

	 	a Delaware corporation
	 
	 	 
	

	 	By: /s/ Michael R. Williams
            
        

	

	 	Name: Michael R. Williams
	

	 	Title: Senior Vice President and
Treasurer






Accepted and agreed to as of the date first above written.




BANK OF AMERICA, N.A., as Administrative Agent




By: /s/ Anne M. Zeschke
                    


Name: Anne M. Zeschke

Title: Assistant Vice President



 









 





SCHEDULE 5(b)(i)




NOTICE




OF




GRANT OF SECURITY INTEREST




IN




COPYRIGHTS




United States Copyright Office




Ladies and Gentlemen:




     Please be advised that pursuant to the Amended and Restated Security Agreement dated as of
December 29, 2004 (as the same may be amended, modified, extended or restated from time to time,
the “Security Agreement”) by and among the Grantors party thereto (each an
“Grantor” and collectively, the “Grantors”) and Bank of America, N.A., as
Administrative Agent (the “Administrative Agent”) for the holders of the Secured
Obligations referenced therein, the undersigned Grantor has granted a continuing security interest
in and continuing lien upon the copyrights and copyright applications shown on Schedule 1
attached hereto to the Administrative Agent for the ratable benefit of the holders of the Secured
Obligations.



     The undersigned Grantor and the Administrative Agent, on behalf of the holders of the Secured
Obligations, hereby acknowledge and agree that the security interest in the copyrights and
copyright applications set forth on Schedule 1 attached hereto (i) may only be terminated
in accordance with the terms of the Security Agreement and (ii) is not to be construed as an
assignment of any copyright or copyright application.



	 	 	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 	 	 
	 	 	                                                                                                    
	

	 	[Grantor]	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	By:                                                                                               
	

	 	Name:	 	 	 	 
	

	 	Title:	 	 	 	 






Acknowledged and Accepted:




BANK OF AMERICA, N.A., as Administrative Agent




By:                                                                                 

Name:

Title:



 









 





SCHEDULE 5(b)(ii)




NOTICE




OF




GRANT OF SECURITY INTEREST




IN




PATENTS




United States Patent and Trademark Office




Ladies and Gentlemen:




     Please be advised that pursuant to the Amended and Restated Security Agreement dated as of
December 29, 2004 (the “Security Agreement”) by and among the Grantors party thereto (each
an “Grantor” and collectively, the “Grantors”) and Bank of America, N.A., as
Administrative Agent (the “Administrative Agent”) for the holders of the Secured
Obligations referenced therein, the undersigned Grantor has granted a continuing security interest
in and continuing lien upon the patents and patent applications set forth on Schedule 1
attached hereto to the Administrative Agent for the ratable benefit of the holders of the Secured
Obligations.



     The undersigned Grantor and the Administrative Agent, on behalf of the holders of the Secured
Obligations, hereby acknowledge and agree that the security interest in the patents and patent
applications set forth on Schedule 1 attached hereto (i) may only be terminated in
accordance with the terms of the Security Agreement and (ii) is not to be construed as an
assignment of any patent or patent application.



	 	 	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 	 	 
	 	 	                                                                                                    
	

	 	[Grantor]	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	By:                                                                                               
	

	 	Name:	 	 	 	 
	

	 	Title:	 	 	 	 






Acknowledged and Accepted:




BANK OF AMERICA, N.A., as Administrative Agent




By:                                                                                 

Name:

Title:



 









 





SCHEDULE 5(b)(iii)




NOTICE




OF




GRANT OF SECURITY INTEREST




IN




TRADEMARKS




United States Patent and Trademark Office




Ladies and Gentlemen:




     Please be advised that pursuant to the Amended and Restated Security Agreement dated as of
December 29, 2004 (the “Security Agreement”) by and among the Grantors party thereto (each
an “Grantor” and collectively, the “Grantors”) and Bank of America, N.A., as
Administrative Agent (the “Administrative Agent”) for the holders of the Secured
Obligations referenced therein, the undersigned Grantor has granted a continuing security interest
in and continuing lien upon the trademarks and trademark applications set forth on Schedule
1 attached hereto to the Administrative Agent for the ratable benefit of the holders of the
Secured Obligations.



     The undersigned Grantor and the Administrative Agent, on behalf of the holders of the Secured
Obligations, hereby acknowledge and agree that the security interest in the trademarks and
trademark applications set forth on Schedule 1 attached hereto (i) may only be terminated
in accordance with the terms of the Security Agreement and (ii) is not to be construed as an
assignment of any trademark or trademark application.



	 	 	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 	 	 
	 	 	                                                                                                    
	

	 	[Grantor]	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	By:                                                                                               
	

	 	Name:	 	 	 	 
	

	 	Title:	 	 	 	 






Acknowledged and Accepted:



BANK OF AMERICA, N.A., as Administrative Agent




By:                                                                                      

Name:

Title: