76709813v13 EXECUTION VERSION GLOBALSTAR, INC., as Issuer, Guarantors Party hereto and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee Indenture Dated as of March 31, 2023 _______________________________ 13.00% Senior Notes due 2029
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76709813v13 EXECUTION VERSION GLOBALSTAR, INC., as Issuer, Guarantors Party hereto and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee Indenture Dated as of March 31, 2023 _______________________________ 13.00% Senior Notes due 2029
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76709813v13 TABLE OF CONTENTS Page -i- ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION ......................................................................................... 1 SECTION 1.01 Rules of Construction. ................................................................... 1 SECTION 1.02 Definitions...................................................................................... 2 SECTION 1.03 Compliance Certificates and Opinions ........................................ 30 SECTION 1.04 Form of Documents Delivered to Trustee ................................... 30 SECTION 1.05 Acts of Holders. ........................................................................... 31 SECTION 1.06 Notices, Etc., to Trustee, Company, Any Guarantor and Agent ............................................................................................ 32 SECTION 1.07 Notice to Holders; Waiver ........................................................... 32 SECTION 1.08 Effect of Headings and Table of Contents ................................... 33 SECTION 1.09 Successors and Assigns................................................................ 33 SECTION 1.10 Separability Clause ...................................................................... 33 SECTION 1.11 Benefits of Indenture.................................................................... 33 SECTION 1.12 Governing Law ............................................................................ 33 SECTION 1.13 Legal Holidays ............................................................................. 33 SECTION 1.14 No Personal Liability of Directors, Officers, Employees and Stockholders .......................................................................... 34 SECTION 1.15 Counterparts ................................................................................. 34 SECTION 1.16 Submission to Jurisdictions; Waiver of Immunities; Waiver of Jury Trial.................................................................................. 34 ARTICLE TWO NOTE FORMS ................................................................................................ 35 SECTION 2.01 Form and Dating .......................................................................... 35 SECTION 2.02 Execution, Authentication, Delivery and Dating ......................... 35 ARTICLE THREE THE NOTES ................................................................................................ 37 SECTION 3.01 Title and Terms ............................................................................ 37 SECTION 3.02 Denominations ............................................................................. 38 SECTION 3.03 Temporary Notes ......................................................................... 38 SECTION 3.04 Registration, Registration of Transfer and Exchange .................. 38 SECTION 3.05 Mutilated, Destroyed, Lost and Stolen Notes .............................. 39 SECTION 3.06 Payment of Interest; Interest Rights Preserved. ........................... 40 SECTION 3.07 Persons Deemed Owners ............................................................. 40 SECTION 3.08 Cancellation ................................................................................. 41 SECTION 3.09 Computation of Interest ............................................................... 41 SECTION 3.10 Transfer and Exchange ................................................................ 41 SECTION 3.11 XXXXX, ISIN and Common Code Numbers ................................. 41 ARTICLE FOUR SATISFACTION AND DISCHARGE .......................................................... 42 SECTION 4.01 Satisfaction and Discharge of Indenture ...................................... 42 SECTION 4.02 Application of Trust Money ......................................................... 43 ARTICLE FIVE REMEDIES ...................................................................................................... 44 SECTION 5.01 Events of Default ......................................................................... 44 SECTION 5.02 Acceleration of Maturity; Rescission and Annulment. ................ 45
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76709813v13 TABLE OF CONTENTS (continued) Page -ii- SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee.......................................................................................... 49 SECTION 5.04 Trustee May File Proofs of Claim ............................................... 49 SECTION 5.05 Trustee May Enforce Claims Without Possession of Notes ........ 50 SECTION 5.06 Application of Money Collected .................................................. 50 SECTION 5.07 Limitation on Suits ....................................................................... 51 SECTION 5.08 Unconditional Right of Holders to Receive Principal, Premium and Interest ................................................................... 51 SECTION 5.09 Restoration of Rights and Remedies ............................................ 51 SECTION 5.10 Rights and Remedies Cumulative ................................................ 52 SECTION 5.11 Delay or Omission Not Waiver.................................................... 52 SECTION 5.12 Control by Holders ....................................................................... 52 SECTION 5.13 Waiver of Past Defaults ............................................................... 52 SECTION 5.14 Waiver of Stay or Extension Laws .............................................. 53 ARTICLE SIX THE TRUSTEE .................................................................................................. 53 SECTION 6.01 Duties of the Trustee. ................................................................... 53 SECTION 6.02 Notice of Defaults ........................................................................ 54 SECTION 6.03 Certain Rights of Trustee ............................................................. 55 SECTION 6.04 Trustee Not Responsible for Recitals or Issuance of Notes ......... 57 SECTION 6.05 May Hold Notes ........................................................................... 57 SECTION 6.06 Money Held in Trust .................................................................... 57 SECTION 6.07 Compensation and Reimbursement ............................................. 57 SECTION 6.08 Corporate Trustee Required; Eligibility....................................... 58 SECTION 6.09 Resignation and Removal; Appointment of Successor. ............... 58 SECTION 6.10 Acceptance of Appointment by Successor. ................................. 59 SECTION 6.11 Xxxxxx, Conversion, Consolidation or Succession to Business ....................................................................................... 60 SECTION 6.12 Appointment of Authenticating Agent......................................... 60 SECTION 6.13 Force Majeure .............................................................................. 61 ARTICLE SEVEN HOLDERS LISTS ........................................................................................ 62 SECTION 7.01 Company to Furnish Trustee Names and Addresses ................... 62 SECTION 7.02 Holder List ................................................................................... 62 ARTICLE EIGHT MERGER, CONSOLIDATION OR SALE OF ALL OR SUBSTANTIALLY ALL ASSETS ......................................................... 62 SECTION 8.01 Issuer May Consolidate, Etc., Only on Certain Terms. ............... 62 SECTION 8.02 Guarantors and Issuer May Consolidate, Etc., Only on Certain Terms............................................................................... 63 SECTION 8.03 Successor Substituted................................................................... 65 ARTICLE NINE SUPPLEMENTAL INDENTURES ................................................................ 65 SECTION 9.01 Amendments or Supplements Without Consent of Holders ........ 65 SECTION 9.02 Amendments, Supplements or Waivers with Consent of Holders ......................................................................................... 66
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76709813v13 TABLE OF CONTENTS (continued) Page -iii- SECTION 9.03 Execution of Amendments, Supplements or Waivers ................. 67 SECTION 9.04 Revocation and Effect of Consents .............................................. 67 SECTION 9.05 Notation on or Exchange of Notes ............................................... 68 SECTION 9.06 Notice of Supplemental Indentures .............................................. 68 ARTICLE TEN COVENANTS ................................................................................................... 68 SECTION 10.01 Payment of Principal, Premium, if any, and Interest ................... 68 SECTION 10.02 Maintenance of Office or Agency ................................................ 69 SECTION 10.03 Money for Notes Payments to Be Held in Trust .......................... 69 SECTION 10.04 Existence ...................................................................................... 70 SECTION 10.05 Payment of Taxes and Other Claims ........................................... 70 SECTION 10.06 [Reserved]. ................................................................................... 71 SECTION 10.07 Maintenance of Insurance. ........................................................... 71 SECTION 10.08 Statement by Officers as to Default. ............................................ 71 SECTION 10.09 Reports and Other Information. ................................................... 71 SECTION 10.10 Limitation on Restricted Payments. ............................................. 72 SECTION 10.11 Limitation on Incurrence of Indebtedness ................................... 76 SECTION 10.12 Limitation on Liens. ..................................................................... 80 SECTION 10.13 Limitations on Transactions with Affiliates. ............................... 80 SECTION 10.14 Limitations on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. ............................................... 82 SECTION 10.15 Limitation on Guarantees of Indebtedness by Restricted Subsidiaries. ................................................................................. 84 SECTION 10.16 Change of Control Triggering Event ........................................... 84 SECTION 10.17 Asset Sales. .................................................................................. 87 SECTION 10.18 Partner Termination ..................................................................... 88 SECTION 10.19 [Reserved]. ................................................................................... 89 SECTION 10.20 Tax Characterization. ................................................................... 89 SECTION 10.21 Taxes ............................................................................................ 89 SECTION 10.22 Globalstar Licensee LLC Guarantee ............................................ 91 ARTICLE ELEVEN REDEMPTION OF NOTES ..................................................................... 91 SECTION 11.01 Right of Redemption .................................................................... 91 SECTION 11.02 Applicability of Article ................................................................ 92 SECTION 11.03 Election To Redeem; Notice to Trustee ....................................... 92 SECTION 11.04 Selection by Trustee of Notes to Be Redeemed ........................... 93 SECTION 11.05 Notice of Redemption .................................................................. 93 SECTION 11.06 Deposit of Redemption Price ....................................................... 95 SECTION 11.07 Notes Payable on Redemption Date ............................................ 95 SECTION 11.08 Notes Redeemed in Part ............................................................... 95 SECTION 11.09 [Reserved] .................................................................................... 95 SECTION 11.10 Offers to Repurchase by Application of Proceeds. ...................... 95 SECTION 11.11 Mandatory Redemption; Open Market Purchases ....................... 97 ARTICLE TWELVE GUARANTEES ........................................................................................ 98
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76709813v13 TABLE OF CONTENTS (continued) Page -iv- SECTION 12.01 Guarantees.................................................................................... 98 SECTION 12.02 Severability .................................................................................. 99 SECTION 12.03 Restricted Subsidiaries ................................................................. 99 SECTION 12.04 Limitation of Guarantors’ Liability ............................................. 99 SECTION 12.05 Contribution ............................................................................... 100 SECTION 12.06 Subrogation ................................................................................ 100 SECTION 12.07 Reinstatement ............................................................................. 100 SECTION 12.08 Release of a Guarantor ............................................................... 101 SECTION 12.09 Benefits Acknowledged ............................................................. 101 ARTICLE THIRTEEN LEGAL DEFEASANCE AND COVENANT DEFEASANCE ......... 101 SECTION 13.01 Issuer’s Option To Effect Legal Defeasance or Covenant Defeasance ................................................................................. 101 SECTION 13.02 Legal Defeasance and Discharge ............................................... 102 SECTION 13.03 Covenant Defeasance ................................................................. 102 SECTION 13.04 Conditions to Legal Defeasance or Covenant Defeasance ........ 102 SECTION 13.05 Deposited Money and Government Securities To Be Held in Trust; Other Miscellaneous Provisions .................................. 104 SECTION 13.06 Reinstatement ............................................................................. 105 APPENDIX & EXHIBITS Rule 144A/Regulation S/IAI Appendix EXHIBIT 1 to Rule 144A/Regulation S/IAI Appendix – Form of Note EXHIBIT A – Form of Supplemental Indenture EXHIBIT B – Form of Incumbency Certificate EXHIBIT C-1 – Form of U.S. Tax Compliance Certificate (For Foreign Holders That Are Not Partnerships For U.S. Federal Income Tax Purposes) EXHIBIT C-2 – Form of U.S. Tax Compliance Certificate (For Foreign Holders That Are Partnerships For U.S. Federal Income Tax Purposes)
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76709813v13 INDENTURE dated as of March 31, 2023 (this “Indenture”), among Globalstar, Inc., a Delaware corporation (the “Issuer” or “Company”), having its principal office at 0000 Xxxxxxx Xxxxxx Xxxx., Xxxxxxxxx, Xxxxxxxxx 00000, the Guarantors party hereto from time to time and Wilmington Trust, National Association, as trustee (the “Trustee”). RECITALS OF THE COMPANY The Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance of its 13.00% Senior Notes due 2029 to be issued on the date hereof (the “Notes”) that may be issued after the Issue Date. Each Guarantor has duly authorized its Guarantee of the Notes, and, to provide therefor, each Guarantor has duly authorized the execution and delivery of this Indenture. All things necessary have been done to make the Notes, when executed by the Issuer and authenticated and delivered hereunder and duly issued by the Issuer, the valid and legally binding obligations of the Issuer and to make this Indenture a valid and legally binding agreement of the Issuer, in accordance with their and its terms. All things necessary have been done to make the Guarantees, upon execution and delivery of this Indenture, the valid obligations of each Guarantor and to make this Indenture a valid and legally binding agreement of each Guarantor, in accordance with their and its terms. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and ratable benefit of all Holders, as follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 1.01 Rules of Construction. (a) For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms defined in this Article have the meanings assigned to them in this Article, and words in the singular include the plural and words in the plural include the singular; (2) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP (as herein defined); (3) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;
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76709813v13 3 Person merging with or into or becoming a Restricted Subsidiary of such specified Person, and (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person. “Act,” when used with respect to any Holder, has the meaning specified in Section 1.05 of this Indenture. “Additional Amounts” has the meaning specified in Section 10.21 of this Indenture. “Adjusted Net Assets” has the meaning specified in Section 12.05 of this Indenture. “Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. “Affiliate Transaction” has the meaning specified in Section 10.13 of this Indenture. “Agent” means any Note Registrar, co-registrar, transfer agent, Paying Agent or additional paying agent. “Applicable Premium” means, with respect to any Note on any Redemption Date, the greater of: (1) 1.0% of the principal amount of the Note; and (2) the excess, if any, of: (A) the present value at such Redemption Date of (i) the Redemption Price of the Note at the First Call Date (such Redemption Price being set forth in the table appearing in Section 11.01 and the principal amount of such Note calculated as of the First Call Date assuming 9.00% PIK Interest, compounding on each Interest Payment Date by being added to the principal amount, and 4.00% interest payable in cash), plus (ii) without duplication for PIK Interest added to the principal amount of such Note for the purpose of clause (A), all required interest payments, whether in cash or in kind (calculated, for the avoidance of doubt, based on 9.00% PIK Interest, compounding on each Interest Payment Date by being added to the principal amount, and 4.00% interest payable in cash on the applicable principal amount of such Notes on each Interest Payment Date prior to the Redemption Date), due on the Note through the First Call Date (excluding accrued but unpaid interest since the most recent Interest Payment Date to the Redemption Date), computed using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points; over
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76709813v13 4 (B) the principal amount of the Note. The Issuer shall calculate or cause the calculation of the Applicable Premium, and the Trustee shall have no duty to calculate or verify the Issuer’s calculations thereof. “Applicable Premium Deficit” has the meaning specified in Section 4.01(a)(2)(C) of this Indenture. “Asset Sale” means: (1) the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale and Lease-Back Transaction) of the Issuer or any Restricted Subsidiary (each referred to in this definition as a “disposition”), or (2) the issuance or sale of Equity Interests of any Subsidiary, whether in a single transaction or a series of related transactions, in each case, other than: (A) a disposition of cash or Cash Equivalents, obsolete or worn out property or equipment, inventory or other assets that, in the reasonable judgment of the Issuer, are no longer useful in the conduct of the business of the Issuer and its Restricted Subsidiaries and that in each case are disposed of in the ordinary course of business; (B) the disposition of all or substantially all of the assets of the Issuer or any of the Restricted Subsidiaries in a manner permitted pursuant to Article Eight or any disposition that constitutes a Change of Control pursuant to this Indenture; (C) the making of any Restricted Payment or Permitted Investment that is permitted to be made, and is made, under Section 10.10; (D) any disposition of assets or issuance or sale of Equity Interests of any Subsidiary in any transaction or series of transactions with an aggregate Fair Market Value not exceeding $5,000,000 for any such transaction or series of transactions; (E) any disposition of property or assets or issuance of securities by a Restricted Subsidiary to the Issuer or by the Issuer or a Restricted Subsidiary to the Issuer or a Guarantor; (F) [reserved]; (G) the lease, assignment or sublease of any real or personal property in the ordinary course of business; (H) any issuance or sale of Equity Interests in a Foreign Subsidiary, as may be required under applicable law;
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76709813v13 5 (I) foreclosures on or expropriations of assets; (J) [reserved]; (K) dispositions of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business and consistent with past practice; (L) the granting of a Lien permitted under Section 10.12; (M) contractual arrangements under long-term contracts with customers entered into by the Issuer and the Restricted Subsidiaries in the ordinary course of business which are treated as sales for accounting purposes; provided that there is no transfer of title in connection with such contractual arrangement; (N) the licensing or sub-licensing of intellectual property or other general intangibles in the ordinary course of business or that is immaterial; or (O) the unwinding or termination of any Swap Agreement (unless entered into for speculative purposes) and allowing for the expiration of any options agreement with respect to any real property or personal property. “Asset Sale Offer” has the meaning specified in Section 10.17 of this Indenture. “Attorney Costs” means and includes all reasonable, documented out-of-pocket fees, expenses and disbursements of any law firm or other external counsel. “Authorized Officers” has the meaning specified in Section 6.03(n) of this Indenture. “Bankruptcy Law” means Title 11 of the United States Bankruptcy Code of 1978 or any similar United States federal or state law relating to bankruptcy, insolvency, receivership, winding- up, liquidation, reorganization or relief of debtors or any amendment to, succession to or change in any such law. “Board of Directors” means, with respect to any Person, (i) in the case of any corporation, the Board of Directors of such Person, (ii) in the case of any limited liability company, the board of managers of such Person or the members of such Person, as applicable, (iii) in the case of any partnership, the Board of Directors of the general partner of such Person and (iv) in any other case, the functional equivalent of the foregoing. “Board Resolution” means, with respect to the Issuer, a duly adopted resolution of the Board of Directors of the Issuer or any committee thereof. “Business Day” means each day which is not a Legal Holiday. “Capital Stock” means: (1) in the case of a corporation, corporate stock;
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76709813v13 6 (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person. “Cash Equivalents” means: (1) securities or obligations issued or unconditionally guaranteed by the United States government or any agency or instrumentality thereof, in each case having maturities of not more than 24 months from the date of acquisition thereof; (2) securities or obligations issued by any state of the United States of America or any political subdivision of any such state, or any public instrumentality thereof, having maturities of not more than 24 months from the date of acquisition thereof and, at the time of acquisition, having an Investment Grade Rating generally obtainable from either S&P or Xxxxx’x (or, if at any time neither S&P nor Xxxxx’x shall be rating such obligations, then from another nationally recognized statistical rating agency); (3) commercial paper and variable or fixed rate notes issued by any bank holding company or any variable rate notes issued by, or guaranteed by, any domestic corporation not an Affiliate of the Issuer rated (x) A-1 (or the equivalent thereof) or better by S&P, or (y) P-1 (or the equivalent thereof) or better by Xxxxx’x, and maturing within one year of the date of acquisition; (4) commercial paper maturing no more than 12 months after the date of creation thereof and, at the time of acquisition, having a rating of at least A-2 or P-2 from either S&P or Xxxxx’x (or, if at any time neither S&P nor Xxxxx’x shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); (5) domestic certificates of deposit or bankers’ acceptances issued by any bank having combined capital and surplus of not less than $250,000,000 in the case of domestic banks and $100,000,000 (or the U.S. dollar equivalent thereof) in the case of foreign banks; (6) auction rate securities rated at least Aa3 by Xxxxx’x and AA- by S&P (or, if at any time either S&P or Xxxxx’x shall not be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); (7) repurchase agreements with a term of not more than 30 days for underlying securities of the type described in clauses (1), (2) and (5) above entered into
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76709813v13 7 with any bank meeting the qualifications specified in clause (5) above or securities dealers of recognized national standing; (8) repurchase agreements with a term of not more than one year with a bank or trust company or recognized securities dealer having capital and surplus in excess of $250,000,000 for direct obligations issued by or fully guaranteed by the United States of America in which the Issuer or one or more of its Restricted Subsidiaries shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations; (9) marketable short-term money market and similar funds (x) either having assets in excess of $250,000,000 or (y) having a rating of at least A-2 or P-2 from either S&P or Xxxxx’x (or, if at any time neither S&P nor Xxxxx’x shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); (10) shares of investment companies that are registered under the Investment Company Act of 1940, as amended, and 95% of the investments of which are one or more of the types of securities described in clauses (1) through (9) above; (11) any other investments used by the Issuer and its Restricted Subsidiaries as temporary investments permitted by the Trustee in writing in its sole discretion; and (12) in the case of investments by the Issuer or any Subsidiary organized or located in a jurisdiction other than the United States (or any political subdivision or territory thereof), or in the case of investments made in a country outside the United States of America, other customarily utilized high-quality investments in the country where such Subsidiary is organized or located or in which such Investment is made, all as reasonably determined in good faith by the Issuer. “Cash Management Obligations” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of such Person in respect of cash management services (including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements) provided by any cash management bank to the Issuer or any of its Restricted Subsidiaries, including obligations for the payment of agreed interest and reasonable fees, charges, expenses, Attorney Costs and disbursements in connection therewith. “Change of Control” means the occurrence of any of the following: (1) the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Issuer and its Subsidiaries, taken as a whole, to any Person other than a Permitted Holder; or (2) the Issuer becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section
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76709813v13 8 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) other than the Permitted Holders, in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) of more than 50% of the total voting power of the Voting Stock of the Issuer or any company that holds directly or indirectly more than 50% of the total voting power of the Voting Stock of the Issuer. In addition, notwithstanding the preceding or any provision of Section 13(d) or 14(d) of the Exchange Act (or any successor provision), (i) a Person, entity or “group” shall not be deemed to beneficially own securities subject to an equity or asset purchase agreement, merger agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the transactions contemplated by such agreement, (ii) if any “group” includes one or more Permitted Holders, the issued and outstanding Voting Stock of the Issuer beneficially owned, directly or indirectly, by any Permitted Holders that are part of such “group” shall not be treated as being beneficially owned by any other member of such “group” for purposes of determining whether a Change of Control has occurred and (iii) a Person, entity or “group” will not be deemed to beneficially own the Voting Stock of another Person as a result of its ownership of Voting Stock or other securities of such other Person’s parent entity (or related contractual rights) unless it owns more than 50% of the total voting power of the Voting Stock of such parent entity. For purposes of this definition, except with respect to clause (1) of this definition hereunder, and any related definition to the extent used for purposes of this definition, at any time when more than 50% of the total voting power of the Voting Stock of the Issuer is directly or indirectly owned by a parent entity, all references to the Issuer shall be deemed to refer to its ultimate parent entity (but excluding any Permitted Holder). “Change of Control Offer” has the meaning specified in Section 10.16 of this Indenture. “Change of Control Payment” has the meaning specified in Section 10.16 of this Indenture. “Change of Control Payment Date” has the meaning specified in Section 10.16(2) of this Indenture. “Change of Control Triggering Event” means the occurrence of a Change of Control. “Company” means the Person named as the “Company” in the first paragraph of this Indenture, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person. “Company Request” or “Company Order” means a written request or order signed in the name of the Company by an Officer thereof, and delivered to the Trustee. “consolidated” or “Consolidated” means, with respect to any Person, such Person consolidated with its Restricted Subsidiaries.
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76709813v13 9 “Consolidated EBITDA” means, with respect to the Issuer and the Restricted Subsidiaries on a consolidated basis, for any period, an amount equal to the Adjusted EBITDA reported in the Issuer’s publicly issued earnings release for such period of determination, plus any pro forma adjustments, including pro forma “run rate” cost savings, operating expense reductions, and other synergies related to mergers, business combinations, acquisitions, dispositions and other similar transactions, or related to restructuring initiatives, cost savings initiatives and other initiatives, in each case, projected by the Issuer in good faith to result from actions that have been taken, actions with respect to which substantial steps have been taken or actions that are expected to be taken (in each case, in the good faith determination of the Issuer), in any such case, within four fiscal quarters after the date of consummation of such merger, business combination, acquisition, disposition or other similar transaction or the initiation of such restructuring initiative, cost savings initiative or other initiative; provided that the aggregate amount of all such pro forma adjustments pursuant to this clause that are included in Consolidated EBITDA shall not exceed 10% of Consolidated EBITDA for such period (in each case, calculated before giving effect to any such adjustment); provided, further, that, for the purpose of this clause, (i) any such adjustments shall be added to Consolidated EBITDA for each period until fully realized and shall be calculated on a pro forma basis as though such adjustments had been realized on the first day of the relevant period and shall be calculated net of the amount of actual benefits realized from such actions, (ii) any such adjustments shall be reasonably identifiable and factually supportable and (iii) no such adjustments shall be added pursuant to this clause to the extent duplicative of any items related to adjustments included in the definition of Adjusted EBITDA. “Consolidated Total Indebtedness” means, as of any date of determination, the sum of (i) all Indebtedness of the Issuer and the Restricted Subsidiaries for borrowed money (adjusted (up or down) for the effects of currency swap agreements) outstanding on such date and (ii) all Finance Lease Obligations of the Issuer and the Restricted Subsidiaries outstanding on such date, all calculated on a consolidated basis in accordance with GAAP. “Corporate Trust Office” means the office of the Trustee at which at any particular time its corporate trust business relating to this Indenture shall be principally administered, which office at the date of the execution of this instrument is located at 00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000, or such other address as the Trustee may designate from time to time by notice to the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Company). “Covenant Defeasance” has the meaning specified in Section 13.03 of this Indenture. “Default” means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default. “Depositary” means DTC. “Derivative Instrument” with respect to a Person, means any contract, instrument or other right to receive payment or delivery of cash or other assets to which such Person or any Affiliate of such Person that is acting in concert with such Person in connection with such Person’s investment in the Notes (other than a Screened Affiliate) is a party (whether or not requiring further
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76709813v13 10 performance by such Person), the value and/or cash flows of which (or any material portion thereof) are materially affected by the value and/or performance of the Notes and/or the creditworthiness of the Performance References. “Designated Noncash Consideration” means the Fair Market Value of noncash consideration received by the Issuer or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Noncash Consideration pursuant to an Officer’s Certificate, setting forth the basis of such valuation, executed by an Executive Vice President and the Principal Financial Officer of the Issuer, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Noncash Consideration. “Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable, other than as a result of a change of control or asset sale, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, other than as a result of a change of control or asset sale, in whole or in part, in each case prior to the date 91 days after the earlier of the maturity date of the Notes or the date the Notes are no longer outstanding; provided, however, that if such Capital Stock is issued to any plan for the benefit of employees of the Issuer or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Issuer or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations. “Documentary Taxes” has the meaning specified in Section 10.21 of this Indenture. “Domestic Subsidiary” means any Subsidiary of the Issuer incorporated or otherwise formed under the laws of any state of the United States or the District of Columbia. “DTC” means The Depository Trust Company, its nominees and their respective successors. “Electronic Means” shall mean the following communications methods: email, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder. “Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock. “Equity Offering” means any public or private sale of Equity Interests of the Issuer, other than public offerings with respect to the Issuer’s common stock registered on Form S-8 or Form S-4 (or the equivalent thereof). “Event of Default” has the meaning specified in Section 5.01 of this Indenture. “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
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76709813v13 11 “Existing Indebtedness” means Indebtedness of the Issuer or the Restricted Subsidiaries in existence on the Issue Date, plus interest accruing thereon. “Fair Market Value” means, with respect to any asset or property, as determined by the Issuer, the price which could be negotiated in an arm’s length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or compulsion to complete the transaction. “FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Indenture (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities entered into in connection with the implementation of the foregoing. “Finance Lease Obligations” means, as applied to any Person, an obligation that is required to be accounted for as a financing or capital lease (and, for the avoidance of doubt, not a straight-line or operating lease) on both the balance sheet and income statement for financial reporting purposes in accordance with GAAP. At the time any determination thereof is to be made, the amount of the liability in respect of a financing or capital lease would be the amount required to be reflected as a liability on such balance sheet (excluding the footnotes thereto) in accordance with GAAP. “First Call Date” has the meaning specified in Section 11.01 of this Indenture. “Fitch” means Fitch Ratings, Inc., and any successor to its rating agency business. “Foreign Subsidiary” means any Subsidiary of the Issuer that is not a Domestic Subsidiary. “Funding Guarantor” has the meaning specified in Section 12.05 of this Indenture. “GAAP” means generally accepted accounting principles, as recognized by the American Institute of Certified Public Accountants and the Financial Accounting Standards Board, consistently applied and maintained on a consistent basis for the Issuer and its Subsidiaries throughout the period indicated and consistent with the prior financial practice of the Issuer and its Subsidiaries. “Globalstar Licensee LLC Guarantee Trigger Date” means the first date following the Termination Date on which (i) the Issuer and its Subsidiaries no longer have a material commercial relationship with Partner and (ii) all Indebtedness and all other financial obligations of the Issuer and its Subsidiaries to Partner (or any of its controlled Affiliates) under the Partner Agreements and all other agreement or agreements with Partner (or any of its controlled Affiliates) have been paid in full. For the avoidance of doubt, the termination of the Partner Agreements by Partner (or one of its controlled Affiliates) in connection with the bankruptcy or insolvency of the Issuer shall not cause the Globalstar Licensee LLC Guarantee Trigger Date to occur, unless all Indebtedness and all other financial obligations of the Issuer and its Subsidiaries to Partner (or any of its
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76709813v13 12 controlled Affiliates) under the Partner Agreements and all other agreement or agreements with Partner (or any of its controlled Affiliates) have been paid in full. “Government Securities” means securities that are: (1) direct obligations of, or obligations fully and unconditionally guaranteed by, the United States of America for the timely payment of which its full faith and credit is pledged, or (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuers thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government Securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depository receipt. “Governmental Authority” means any federal, state, provincial, local or foreign court or tribunal or governmental agency, authority, instrumentality or regulatory or legislative body. “guarantee” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness or other obligations. “Guarantee” means the guarantee by any Guarantor of the Issuer’s obligations under the Notes and this Indenture. “Guarantee Obligations” means, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (a) to purchase any such Indebtedness or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such Indebtedness or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such Indebtedness of the ability of the primary obligor to make payment of such Indebtedness or (d) otherwise to assure or hold harmless the owner of such Indebtedness against loss in respect thereof; provided, however, that the term “Guarantee Obligations” shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation shall be deemed to be an amount equal to the stated or determinable amount of the Indebtedness in respect of which such Guarantee Obligation is made or, if not stated or determinable, the maximum
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76709813v13 13 reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith. “Guarantor” means each Subsidiary of the Issuer that executes a Guarantee, provided that upon release or discharge of such Subsidiary from its Guarantee in accordance with this Indenture, such Subsidiary shall cease to be a Guarantor. “Holder” means, at any time, a Person in whose name a Note is at such time registered on the Note Registrar’s books. “incur” has the meaning specified in Section 10.11 of this Indenture. “incurrence” has the meaning specified in Section 10.11 of this Indenture. “Indebtedness” means, with respect to any Person, (a) all indebtedness of such Person for borrowed money, (b) the deferred purchase price of assets or services that in accordance with GAAP would be included as liabilities on the balance sheet of such Person, (c) the face amount of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder, (d) all Indebtedness of a second Person secured by any Lien on any property owned by such first Person, whether or not such Indebtedness has been assumed, (e) all Finance Lease Obligations of such Person, (f) all net obligations of such Person under interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts, commodity price protection agreements or other commodity price hedging agreements and other similar agreements, (g) without duplication, all Guarantee Obligations of such Person in respect of the foregoing and (h) any Disqualified Stock; provided that Indebtedness shall not include (i) trade payables and accrued expenses, in each case payable directly or through a bank clearing arrangement and arising in the ordinary course of business, (ii) obligations to make progress or incentive payments under Satellite Purchase Agreements, (iii) deferred or prepaid revenue, (iv) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller, (v) obligations to make payments to one or more insurers under satellite insurance policies in respect of premiums or the requirement to remit to such insurer(s) a portion of the future revenues generated by a Satellite which has been declared a constructive total loss, in each case in accordance with the terms of the insurance policies relating thereto, (vi) Indebtedness of any parent entity appearing on the balance sheet of the Issuer or any Restricted Subsidiary solely by reason of “pushdown” accounting under GAAP, (vii) Non-Finance Lease Obligations or other obligations under or in respect of straight-line leases, operating leases or Sale and Lease-Back Transactions (except resulting in Finance Lease Obligations) and (viii) customer deposits made in connection with the construction or acquisition of a Satellite being constructed or acquired at the request of one or more customers. The amount of Indebtedness of any Person for purposes of clause (d) shall be deemed to be equal to the lesser of (x) the aggregate unpaid amount of such Indebtedness and (y) the Fair Market Value of the property encumbered thereby as reasonably determined by such Person in good faith. The amount of Indebtedness of any Person for purposes of clause (h) shall be deemed to be equal to the greater of the voluntary or involuntary liquidation preference and maximum fixed repurchase price in respect of such Disqualified Stock. For purposes hereof, the “maximum fixed repurchase price” of any Disqualified Stock that does not have a fixed repurchase price shall be calculated in accordance with the terms of such Disqualified Stock as if such
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76709813v13 14 Disqualified Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to this Indenture, and if such price is based upon, or measured by, the Fair Market Value of such Disqualified Stock, such Fair Market Value shall be determined reasonably and in good faith by the Board of Directors of the Issuer. For the avoidance of doubt, the Issuer’s obligations to make reimbursements to the Partner (or one of its controlled Affiliates) under the Prepayment Agreements and under any additional agreements with Partner (or one of its controlled Affiliates) permitted by Section 10.11(a) shall constitute Indebtedness. “Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof. “Instructions” has the meaning specified in Section 6.03(n) of this Indenture. “Interest Payment Date” means the Stated Maturity of an installment of interest on the Notes. “Interest Period” means the period commencing on and including an Interest Payment Date and ending on and including the day immediately preceding the next succeeding Interest Payment Date, with the exception that the first Interest Period shall commence on the date hereof and end on the day immediately preceding the initial Interest Payment Date. “Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Xxxxx’x, BBB- (or the equivalent) by S&P and BBB- (or the equivalent) by Fitch, or an equivalent rating by any other Rating Agency. “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended. “Investments” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit, advances to customers, commission, travel and similar advances to officers and employees, in each case made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of the Issuer in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property. The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in Cash Equivalents by the Issuer or a Restricted Subsidiary in respect of such Investment to the extent such amounts do not increase any other baskets under this Indenture. “Issue Date” means March 31, 2023.
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76709813v13 15 “Issuer” means the Person named as the “Issuer” in the first paragraph of this Indenture, until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Issuer” shall mean such successor Person. “Key Terms Agreement” means the Key Terms Agreement, dated as of October 21, 2019 by and between the Issuer and the Partner, as amended that certain First Amendment dated as of March 6, 2021, that certain Second Amendment dated as of May 10, 2021, that certain Third Amendment dated as of June 1, 2021, that certain Fourth Amendment dated as of February 25, 2023 and as may be amended, restated, replaced, supplemented or otherwise modified from time to time. “Legal Defeasance” has the meaning specified in Section 13.02 of this Indenture. “Legal Holiday” means a Saturday, a Sunday or other day on which banking institutions in New York, New York, United States or in the jurisdiction of the place of payment are authorized or required by law to close. “Lien” means, with respect to any asset, any mortgage, lien, pledge, hypothec, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction; provided that in no event shall any lease (other than a Finance Lease Obligation) entered into in the ordinary course of business be deemed to constitute a Lien. For the avoidance of doubt, in no event shall a Non-Finance Lease Obligation be deemed to be a Lien. “Long Derivative Instrument” means a Derivative Instrument (i) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with positive changes to the Performance References and/or (ii) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with negative changes to the Performance References. “Maturity,” when used with respect to any Note, means the date on which the principal of such Note or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption or otherwise. “Moody’s” means Xxxxx’x Investors Service, Inc. and any successor to its rating agency business. “Nationally Recognized Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant of nationally recognized standing that is, in the good faith judgment of the Issuer, qualified to perform the task for which it has been engaged. “Net Proceeds” means, with respect to any Asset Sale, (a) the gross cash proceeds (including payments from time to time in respect of installment obligations, if applicable) received by or on behalf of the Issuer or any of the Restricted Subsidiaries in respect of such Asset Sale less (b) the sum of:
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76709813v13 16 (1) the amount, if any, of all Taxes paid or estimated to be payable by the Issuer or any of the Restricted Subsidiaries in connection with such Asset Sale, determined after taking into account any available Tax credits or deductions and any payments or payable amounts under tax sharing arrangements permitted under the Indenture; provided that (A) if the actual amount of taxes paid is less than the estimated amount, the difference shall immediately constitute Net Proceeds and (B) to the extent and at the time that any such Taxes are no longer required to be paid or payable, such amounts then constitute Net Proceeds, (2) the amount of any reasonable reserve established in accordance with GAAP against any liabilities (other than any Taxes) (x) associated with the assets that are the subject of such Asset Sale and (y) retained by the Issuer or any of the Restricted Subsidiaries; provided that the amount of any subsequent reduction of such reserve (other than in connection with a payment in respect of any such liability) shall be deemed to be Net Proceeds of such an Asset Sale occurring on the date of such reduction, (3) the amount of any Indebtedness (other than Indebtedness described in clause (1) of the second paragraph of Section 10.17) secured by a Lien on the assets that are the subject of such Asset Sale to the extent that the instrument creating or evidencing such Indebtedness requires that such Indebtedness be repaid upon consummation of such Asset Sale, and (4) reasonable and customary fees, commissions, expenses, issuance costs, discounts and other costs paid by the Issuer or any of the Restricted Subsidiaries, as applicable, in connection with such Asset Sale (other than those payable to the Issuer or any Subsidiary of the Issuer), in each case only to the extent not already deducted in arriving at the amount referred to in clause (a) above. “Net Short” means, with respect to a Holder or beneficial owner, as of a date of determination, either (i) the value of its Short Derivative Instruments exceeds the sum of the (x) the value of its Notes plus (y) the value of its Long Derivative Instruments as of such date of determination or (ii) it is reasonably expected that such would have been the case were a Failure to Pay or Bankruptcy Credit Event (each as defined in the 2014 ISDA Credit Derivatives Definitions) to have occurred with respect to the Issuer or any Guarantor immediately prior to such date of determination. “Non-Finance Lease Obligations” means a lease obligation that is not required to be accounted for as a financing or capital lease on both the balance sheet and the income statement for financial reporting purposes in accordance with GAAP. For avoidance of doubt, a straight-line or operating lease shall be considered a Non-Finance Lease Obligation. “Non-Successor Person” has the meaning specified in Section 8.02 of this Indenture. “Note Register” and “Note Registrar” have the respective meanings specified in Section 3.04.
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76709813v13 17 “Notes” has the meaning stated in the first recital to this Indenture and more particularly means any Notes authenticated and delivered under this Indenture, including any PIK Notes or increases in principal amount as the result of payment of PIK Interest. “Obligations” means any principal, interest, penalties, fees, indemnifications, reimbursements (including, without limitation, reimbursement obligations with respect to letters of credit and banker’s acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness. “Offer Amount” has the meaning specified in Section 11.10(b) of this Indenture. “Offer Period” has the meaning specified in Section 11.10(b) of this Indenture. “Officer” means the Chairman of the Board of Directors, the Chief Executive Officer, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of the Issuer. “Officer’s Certificate” means a certificate signed on behalf of the Issuer by an Officer of the Issuer or on behalf of any other Person, as the case may be, that meets the requirements set forth in this Indenture and is delivered to the Trustee. “Opinion of Counsel” means a written opinion from legal counsel, who may be an employee of or counsel to the Issuer, which opinion may be subject to customary assumptions and exclusions. “Outstanding,” when used with respect to Notes, means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except: (1) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (2) Notes, or portions thereof, for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Issuer) in trust or set aside and segregated in trust by the Issuer (if the Issuer shall act as its own Paying Agent) for the Holders of such Notes; provided that, if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture (and any conditions to such redemption have been satisfied or waived) or provision therefor satisfactory to the Trustee has been made; (3) Notes, except to the extent provided in Sections 13.02 and 13.03, with respect to which the Issuer has effected Legal Defeasance or Covenant Defeasance as provided in Article Thirteen; and (4) Notes which have been paid pursuant to Section 3.05 or in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented
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76709813v13 18 to the Trustee proof satisfactory to the Trustee and the Issuer that such Notes are held by a Protected Purchaser in whose hands the Notes are valid obligations of the Issuer; provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Notes have given any request, demand, authorization, direction, consent, notice or waiver hereunder, Notes owned by the Company or any other obligor upon the Notes or any Affiliate of the Company or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. “Partner” means “Partner Parent” as defined in the Key Terms Agreement. “Partner Agreements” means the Key Terms Agreement, the Prepayment Agreements and the related ancillary agreements, including any guarantee agreement, collateral agreement, security agreement, mortgage, deed of trust, or similar or related agreements, among the Issuer, Partner (or one of its controlled Affiliates) and the other parties party thereto, as each may be amended, restated, replaced, supplemented or otherwise modified from time to time. “Paying Agent” means any Person (including the Issuer acting as Paying Agent) authorized by the Issuer to pay the principal of (and premium, if any) or interest on any Notes on behalf of the Issuer. “Performance References” means the Issuer and/or any one or more of the Guarantors. “Permitted Asset Swap” means the concurrent purchase and sale or exchange of Related Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between the Issuer or any of its Restricted Subsidiaries and another Person. “Permitted Debt” has the meaning specified in Section 10.11 of this Indenture. “Permitted Holders” means each of (a)(i) Thermo and (ii) Partner and their respective Affiliates (including, for the avoidance of doubt, any limited partnership, the general partner of which is owned by a convenience party, such as a trust for the benefit of a charity, such general partner, any trust controlling such general partner, and such convenience party) and (b) any Person, entity or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act (or any successor provision)) the members of which include any of the Permitted Holders specified in clause (a) above (a “Permitted Holder Group”); provided that, in the case of any Permitted Holder Group, the Permitted Holders specified in clause (a) above collectively own, directly or indirectly, without giving effect to the existence of such group, Equity Interests having more than 50% of the total voting power of the Voting Stock of the Issuer held by such Permitted Holder Group. “Permitted Investments” means: (1) any Investment in (x) the Issuer or any Guarantor or (y) in a Restricted Subsidiary that is not a Guarantor, in the case of this clause (y) in an aggregate
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76709813v13 19 amount since the Issue Date not to exceed the greater of $10,000,000 and 10% of Trailing Four Quarter EBITDA, plus the amount of any returns (including dividends, payments, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) on or in respect of such Investments; (2) any Investment in cash and Cash Equivalents; (3) any Investment by the Issuer or any Guarantor in a Person that is engaged in a Similar Business, if, as a result of such Investment: (A) such Person becomes a Guarantor, or (B) such Person, in one transaction or a series of related transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Issuer or a Guarantor; (4) any Investment in securities or other assets not constituting cash or Cash Equivalents and received in connection with an Asset Sale made pursuant to Section 10.17, or any other disposition of assets not constituting an Asset Sale; (5) any Investment existing on the Issue Date; (6) any Investment acquired by the Issuer or any Restricted Subsidiary (A) in exchange for any other Investment or accounts receivable held by the Issuer or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the Issuer or such Restricted Subsidiary of such other Investment or accounts receivable or (B) as a result of a foreclosure by the Issuer or any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured Investment in default; (7) Swap Obligations permitted under clause (i) of the second paragraph of Section 10.11; (8) Investments the payment for which consists of Equity Interests of the Issuer, or any of its direct or indirect parent companies (exclusive of Disqualified Stock); (9) guarantees of Indebtedness permitted under Section 10.11; (10) any transaction to the extent it constitutes an investment that is permitted and made in accordance with the provisions of the second paragraph of Section 10.13 (except transactions described in clauses (2) and (4) of such paragraph of Section 10.13);
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76709813v13 20 (11) Investments consisting of purchases and acquisitions of inventory, supplies, material or equipment; (12) receivables owing to Issuer or any Restricted Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided that such trade terms may include such concessionary trade terms as Issuer or any such Restricted Subsidiary deems reasonable under the circumstances; (13) advances to employees not in excess of the greater of $10,000,000 and 10% of Trailing Four Quarter EBITDA outstanding at any one time, in the aggregate; (14) loans and advances to officers, directors and employees for business-related travel expenses, moving expenses and other similar expenses, in each case incurred in the ordinary course of business; and (15) advances by the Issuer or the Restricted Subsidiaries to Foreign Subsidiaries for the purpose of making payments to third parties in the ordinary course of business or otherwise to maintain services provided by the Issuer and its Subsidiaries. “Permitted Liens” means, with respect to any Person: (1) pledges or deposits by such Person under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for the payment of rent, in each case incurred in the ordinary course of business; (2) Liens imposed by law, such as carriers’, landlords’ liens, warehousemen’s, storers’, repairers’ and mechanics’ Liens and other similar Liens arising in the ordinary course of business, in each case for sums not yet due or payable or which are being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review; (3) Liens for taxes, assessments or other governmental charges (A) not yet due or payable, (B) which are being contested in good faith by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP, or (C) do not secure unpaid taxes in an amount exceeding $20,000 in the aggregate; (4) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business;
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76709813v13 21 (5) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental, to the conduct of the business of such Person or to the ownership of its properties which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person; (6) Liens securing Indebtedness permitted to be incurred pursuant to clause (a) or (d) of the definition of Permitted Debt; provided that in the case of such clause (d) such Liens shall not extend to any assets other than the specified asset being financed (and insurance proceeds related thereto) and additions and improvements thereon; and Xxxxx created under any of the Partner Agreements (either existing on the date hereof or incurred on or after the date hereof), including Liens securing Indebtedness permitted to be incurred pursuant to clause (a) of the definition of Permitted Debt and Liens securing any obligations under any of the Partner Agreements; (7) Liens existing on the Issue Date (other than under clause (6)); (8) Liens securing Swap Obligations (including Liens in favor of a counterparty to a swap or similar agreement on the Issuer’s or any Restricted Subsidiary’s rights under such agreement) and Cash Management Obligations, in each case so long as the related Indebtedness is permitted to be incurred under this Indenture; (9) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods; (10) leases and subleases of real property which do not materially interfere with the ordinary conduct of the business of the Issuer or any of the Restricted Subsidiaries; (11) Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into by the Issuer and its Restricted Subsidiaries in the ordinary course of business; (12) Liens in favor of the Issuer or any Guarantor; (13) Liens on equipment of the Issuer or any Restricted Subsidiary granted in the ordinary course of business to a client of the Issuer or a Restricted Subsidiary at which such equipment is located; (14) Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancing, refunding, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (6), (7), (8) and (12); provided, however, that (x) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on
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76709813v13 22 such property), and (y) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (6), (7), (8) and (12) at the time the original Lien became a Permitted Lien under this Indenture, and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement; (15) deposits made in the ordinary course of business to secure liability to insurance carriers; (16) [reserved]; (17) the right reserved to or vested in any Governmental Authority by the terms of any lease, license, franchise, grant or permit acquired by the Issuer or any of its Restricted Subsidiaries or by any statutory provision to terminate any such lease, license, franchise, grant or permit, or to require annual or other payments as a condition to the continuance thereof; (18) security given to a public utility or any Governmental Authority when required by such utility or authority in connection with the operations of the Issuer or any of its Restricted Subsidiaries in the ordinary course of its business; (19) subdivision agreements, site plan control agreements, development agreements, servicing agreements, cost sharing, reciprocal and other similar agreements with municipal and other Governmental Authorities affecting the development, servicing or use of a property; provided the same are complied with in all material respects except as such non-compliance does not interfere in any material respect as determined in good faith by the Issuer with the business of the Issuer and its Subsidiaries taken as a whole; (20) facility cost sharing, servicing, reciprocal or other similar agreements related to the use and/or operation of a property in the ordinary course of business, provided the same are complied with in all material respects; (21) Liens in favor of customers on Satellites or portions thereof (including insurance proceeds relating thereto) or the satellite construction or acquisition agreement being related thereto in the event such Satellites or portions thereof are being constructed or acquired at the request of one or more customers to secure repayment of deposits and related amounts; (22) deemed trusts created by operation of law in respect of amounts which are (i) not yet due and payable, (ii) immaterial, (iii) being contested in good faith and by appropriate proceedings for which appropriate reserves have been established in accordance with GAAP or (iv) unpaid due to inadvertence after exercising due diligence; (23) Liens encumbering property or assets under construction arising from progress or partial payments by a customer of the Issuer or its Subsidiaries relating to such property or assets;
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76709813v13 23 (24) other Liens so long as the aggregate principal amount of the obligations so secured does not exceed the greater of $10,000,000 and 10% of Trailing Four Quarter EBITDA; (25) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; (26) any interest or title of a lessor or secured by a lessor’s interest under any lease permitted by this Indenture (other than in respect of a Finance Lease Obligation), together with all Liens of whatsoever nature permitted or created by such lessor or any fee owner of the property or any predecessor in title; (27) Liens on goods the purchase price of which is financed by a documentary letter of credit issued for the account of the Issuer or any of its Subsidiaries; provided that such Lien secures only the obligations of the Issuer or such Subsidiaries in respect of such letter of credit to the extent permitted under Section 10.11; and (28) Xxxxx created in the ordinary course of business in favor of banks and other financial institutions over credit balances of any bank accounts of the Issuer and the Restricted Subsidiaries held at such banks or financial institutions, as the case may be, to facilitate the operation of cash pooling and/or interest set-off arrangements in respect of such bank accounts in the ordinary course of business. For purposes of this definition, the term “Indebtedness” shall be deemed to include interest on such Indebtedness. “Permitted Vendor Indebtedness” means unsecured indebtedness of the Issuer and its Subsidiaries provided by vendors of goods or services to finance the purchase by the Issuer or a Subsidiary of such goods and services and related costs in an aggregate principal amount not to exceed $25,000,000 at any time outstanding. “Person” means any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity. “PIK Interest” has the meaning specified in Section 3.01 of this Indenture. “PIK Note” has the meaning specified in Section 3.01 of this Indenture. “PIK Notice” has the meaning specified in Section 3.01 of this Indenture. “Predecessor Note” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 3.05 in exchange for a mutilated Note or in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note.
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76709813v13 24 “Prepayment Agreement” means each of the Amended and Restated Prepayment Agreement dated as of May 10, 2021, and the 2023 Prepayment Agreement dated as of February 25, 2023, between the Issuer and Partner (or one of its controlled Affiliates), as each may be amended, restated, replaced, supplemented or otherwise modified from time to time. “primary obligor” has the meaning provided in the definition of the term “Guarantee Obligations.” “Protected Purchaser” has the meaning specified in Section 3.05 of this Indenture. “Purchase Date” has the meaning specified in Section 11.10(b) of this Indenture. “Qualifying Trustee” has the meaning specified in Section 13.05 of this Indenture. “Rating Agency” means Xxxxx’x, S&P and Fitch or if Xxxxx’x, S&P and/or Fitch shall not make a rating on the Notes (or the applicable security) publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Issuer (in the case of the Notes, as certified by a Board Resolution) which shall be substituted for Xxxxx’x, S&P and/or Fitch, as the case may be. “Record Date” has the meaning specified in Section 3.01 of this Indenture. “Redemption Date,” when used with respect to any Note to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to Section 11.01 of this Indenture. “Redemption Price,” when used with respect to any Note to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture. “Redemption Price Premium” has the meaning specified in Section 5.02 of this Indenture. “Refinancing Indebtedness” means Indebtedness that serves to refund or refinance any Indebtedness incurred as permitted under clauses (b), (c) and (d) or any Indebtedness to so refund or refinance such Indebtedness including additional Indebtedness incurred to pay accrued but unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including original issue discount, upfront fees or similar fees) incurred in connection with such refinancing prior to its respective maturity; provided, however, that such Refinancing Indebtedness (1) has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred that is not less than the remaining Weighted Average Life to Maturity of the Indebtedness being refunded or refinanced, (2) to the extent such Refinancing Indebtedness refinances Subordinated Indebtedness, such Refinancing Indebtedness is subordinated to the Notes or such Guarantee at least to the same extent as the Indebtedness being refinanced or refunded, and
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76709813v13 25 (3) shall not include (A) Indebtedness of a Subsidiary of the Issuer that refinances Indebtedness of the Issuer, or (B) Indebtedness of a Subsidiary of the Issuer that is not a Guarantor that refinances Indebtedness of a Guarantor. “Refunding Capital Stock” has the meaning specified in Section 10.10 of this Indenture. “Related Business Assets” means assets (other than cash or Cash Equivalents) used or useful in a Similar Business; provided that any assets received by the Issuer or a Restricted Subsidiary in exchange for assets transferred by the Issuer or a Restricted Subsidiary shall not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary. “Responsible Officer,” when used with respect to the Trustee, any officer assigned to the corporate trust department (or any successor division or unit) of the Trustee, who shall have direct responsibility for the administration of this Indenture, and for the purposes of Section 6.01(c)(2) and Section 6.02 shall also include any other officer of the Trustee to whom any corporate trust matter relating to this Indenture is referred because of such officer’s knowledge of and familiarity with the particular subject. “Restricted Investment” means an Investment other than a Permitted Investment. “Restricted Payments” has the meaning specified in Section 10.10 of this Indenture. “Restricted Subsidiary” means, at any time, any direct or indirect Subsidiary of the Issuer. “Retired Capital Stock” has the meaning specified in Section 10.10 of this Indenture. “S&P” means Standard & Poor’s Ratings Group, Inc. and any successor to its rating agency business. “Sale and Lease-Back Transaction” means any arrangement with any Person providing for the leasing by the Issuer or any Restricted Subsidiary of any real or tangible personal property, which property has been or is to be sold or transferred by the Issuer or such Restricted Subsidiary to such Person in contemplation of such leasing. “Satellite” means any satellite owned by, leased to or for which a contract to purchase has been entered into by, the Issuer or any of its Subsidiaries, whether such satellite is in the process of manufacture, has been delivered for launch or is in orbit (whether or not in operational service). “Satellite Manufacturer” means, with respect to any Satellite, the prime contractor and manufacturer of such Satellite. “Satellite Purchase Agreement” means, with respect to any Satellite, the agreement between the applicable Satellite Purchaser and either (i) the applicable Satellite Manufacturer
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76709813v13 26 relating to the manufacture, testing and delivery of such Satellite or (ii) the applicable seller relating to the purchase and sale of such Satellite. “Satellite Purchaser” means the Issuer or a Restricted Subsidiary that is a party to a Satellite Purchase Agreement. “Screened Affiliate” means any Affiliate of a Holder (i) that makes investment decisions independently from such Holder and any other Affiliate of such Holder that is not a Screened Affiliate, (ii) that has in place customary information screens between it and such Holder and any other Affiliate of such Holder that is not a Screened Affiliate and such screens prohibit the sharing of information with respect to the Issuer or its Subsidiaries, (iii) whose investment policies are not directed by such Holder or any other Affiliate of such Holder that is acting in concert with such Holder in connection with its investment in the Notes, and (iv) whose investment decisions are not influenced by the investment decisions of such Holder or any other Affiliate of such Holder that is acting in concert with such Holders in connection with its investment in the Notes. “SEC” means the Securities and Exchange Commission, or any successor thereto. “Secured Indebtedness” means any Indebtedness secured by a Lien on property or assets of the Issuer or a Restricted Subsidiary. For the avoidance of doubt, the Issuer’s obligations to make reimbursements to Partner (or one of its controlled Affiliates) under the Prepayment Agreements and any additional agreements with Partner (or one of its controlled Affiliates) permitted by Section 10.11(a) shall constitute Secured Indebtedness. “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder. “Senior Indebtedness” means Indebtedness under the Prepayment Agreements or any additional agreements with Partner (or one of its controlled Affiliates) permitted by Section 10.11(a) or under any senior credit facility or similar loan agreement entered into after the date hereof to refinance Indebtedness under the Prepayment Agreements or any additional agreements with Partner (or one of its controlled Affiliates) permitted by Section 10.11(a), including any guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, waivers, supplements, modifications, extensions, renewals, restatements, refundings or other restructuring thereof and any indentures or credit facilities or commercial paper facilities with banks or other institutional lenders or investors that replace, refund, refinance or otherwise restructure all or any part of the loans, notes, other credit facilities or commitments thereunder or any successor or replacement loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding, refinancing or other restructuring facility or indenture that increases the amount borrowable thereunder, alters the maturity thereof or alters the parties thereto. “Series A Preferred Stock” means the 7.00% Perpetual Preferred Stock, Series A, $0.0001 par value per share, of the Issuer, with a liquidation preference not to exceed $250,000,000, plus any additional liquidation preference issued as pay-in-kind dividends thereon. “Series A Replacement Form” means the form of Certificate of Designation provided to the initial Holder or Holders on the date hereof.
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76709813v13 27 “Series A Replacement Instrument” means the preferred stock issued in exchange for the Series A Preferred Stock that (i)(a) are on terms substantially consistent with the Series A Replacement Form or (b) do not have an initial liquidation preference or cash dividend rate in excess of, a stated redemption date materially sooner than or other terms materially more favorable to the holder thereof than, those provided in the Series A Replacement Form and (ii) are on terms approved by the Partner in writing. “Short Derivative Instrument” means a Derivative Instrument (i) the value of which generally decreases, and/or the payment or delivery obligations under which generally increase, with positive changes to the Performance References and/or (ii) the value of which generally increases, and/or the payment or delivery obligations under which generally decrease, with negative changes to the Performance References. “Significant Subsidiary” means any Restricted Subsidiary that would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the Issue Date. “Similar Business” means any business conducted or proposed to be conducted by the Issuer and its Restricted Subsidiaries on the Issue Date or any business that is similar, reasonably related, incidental or ancillary thereto. “Stated Maturity,” when used with respect to any Note or any installment of principal thereof or interest thereon, means the date specified in such Notes as the fixed date on which the principal of such Notes or such installment of principal or interest is due and payable. “Subordinated Indebtedness” means: (1) with respect to the Issuer, any Indebtedness of the Issuer which is by its terms subordinated in right of payment to the Notes, and (2) with respect to any Guarantor, any Indebtedness of such Guarantor which is by its terms subordinated in right of payment to the Guarantee of such Guarantor. All Subordinated Indebtedness of the Company or any Indebtedness required to be subordinated to the Notes under this Indenture must be on terms acceptable to the Holders of at least a majority of the Outstanding Notes, including, but not limited to, the subordination provisions. “Subsidiary” means, with respect to any Person, any company of which more than fifty percent (50%) of the outstanding Capital Stock having ordinary voting power to elect a majority of the Board of Directors or other managers of such Person is at the time owned (directly or indirectly) by, or the management is otherwise controlled by, such Person (irrespective of whether, at the time, Capital Stock of any other class or classes of such person shall have or might have voting power by reason of the occurrence of any contingency). Unless otherwise qualified, references to “Subsidiary” or “Subsidiaries” in this Agreement shall refer to those of the Issuer. “Successor Company” has the meaning specified in Section 8.01 of this Indenture.
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76709813v13 28 “Successor Person” has the meaning specified in Section 8.02 of this Indenture. “Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Issuer or any of its Subsidiaries shall be a Swap Agreement. “Swap Obligations” means obligations under or with respect to Swap Agreements. “Tax” means any present or future tax, duty, levy, impost, assessment or similar governmental charge (including penalties, interest and any other liabilities related thereto) and, for the avoidance of doubt, including any withholding or deduction for or on account of any of the foregoing. “Taxing Authority” means any government or political subdivision or territory or possession of any government or any authority or agency therein or thereof having power to tax. “Termination Date” means the first date on which the Key Terms Agreement is terminated and ceases to be in effect. “Test Period” means, on any date of determination, the period of four consecutive fiscal quarters of the Issuer then most recently ended (taken as one accounting period) for which internal financial statements are available. “Thermo” means Thermo Funding II, LLC, a Colorado limited liability company. “Thermo Support Obligations” means (i) that certain Secured Guaranty between Partner and Thermo dated as of February 25, 2023 and (ii) any agreement between, inter alia, the Issuer and Thermo or an Affiliate of Thermo that (x) provides for the guarantee or other credit support of the obligations of the Issuer and its Subsidiaries under the Partner Agreements and (y) that has been approved by a majority of shares of common stock owned by stockholders of the Issuer other than Thermo and its Affiliates voting affirmatively or negatively on the matter. “Total Net Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Total Indebtedness as of the last day of the Test Period most recently ended on or prior to such date of determination, minus cash and Cash Equivalents of the Issuer and its Restricted Subsidiaries to the extent not designated as restricted cash on the consolidated balance sheet of the Issuer and its Restricted Subsidiaries in accordance with GAAP to (b) Consolidated EBITDA for such Test Period. “Trailing Four Quarter EBITDA” means, on any date of determination, Consolidated EBITDA for the four most recent full fiscal quarters for which financial statements are available.
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76709813v13 29 “Treasury Rate” means, as of any date of any redemption notice, the weekly average for each Business Day of the most recent week that has ended at least two (2) Business Days prior to the Redemption Date of the yield to maturity at the time of computation of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (or, if such Federal Reserve Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the date of the notice of redemption to the First Call Date; provided, however, that if the period from the date of the notice of redemption to the First Call Date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. “Trustee” means Wilmington Trust, National Association, until a successor replaces it and, thereafter, means the successor. “Uniform Commercial Code” means the New York Uniform Commercial Code as in effect from time to time. “U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities Act. “Vice President,” when used with respect to the Issuer or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president.” “Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person; provided, however, that, with respect to the Issuer, the term “Voting Stock” shall not include preferred shares of the Issuer that have a nominal dividend and return of capital and vote only for the election of directors, for so long as such shares are held and voted by directors nominated by a committee consisting of members of the Board of Directors of the Issuer. “Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness. “Wholly-Owned Restricted Subsidiary” means a Restricted Subsidiary that is a direct or indirect Wholly-Owned Subsidiary of the Issuer. “Wholly-Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares) shall at the time be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person or would be owned upon exchange of all outstanding securities of such Person in accordance with their terms.
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76709813v13 32 registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Issuer or any Guarantor in reliance thereon, whether or not notation of such action is made upon such Note. (e) Members of, or participants in, DTC shall have no rights under this Indenture with respect to any global note held on their behalf by DTC or by any custodian of DTC or under such global note, and DTC may be treated by the Issuer, the Trustee and any agent of the Issuer, or the Trustee as the absolute owner of such global note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by DTC or impair, as between DTC and its agent members, the operation of customary practices of DTC governing the exercise of the rights of a holder of a beneficial interest in any global note. SECTION 1.06 Notices, Etc., to Trustee, Company, Any Guarantor and Agent. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (1) the Trustee by any Holder or by the Issuer or any Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (via facsimile, email in PDF format, mailed, first-class postage prepaid, or delivered by recognized overnight courier) to or with the Trustee at Wilmington Trust, National Association, 00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Globalstar, Inc. Administrator; or (2) the Issuer or any Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or delivered in writing (via facsimile, email in PDF format, mailed, first-class postage prepaid, or delivered by recognized overnight courier) to the Issuer addressed to it at the address of its principal office specified in the first paragraph, Attention: General Counsel, or at any other address previously furnished in writing to the Trustee by the Issuer or such Guarantor. A copy of all notices to any Agent shall be sent to the Trustee at the address shown above. Any Person may change its address by giving notice of such change as set forth herein. SECTION 1.07 Notice to Holders; Waiver. Where this Indenture provides for notice of any event to Holders by the Issuer or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and delivered electronically or mailed, first-class postage prepaid, to each Holder affected by such event, at such Holder’s address as it appears in the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Notices given by publication (including posting of information as contemplated by Section 10.09 of this Indenture) will be deemed given on the first date on which publication is made; notices given by first-class mail,
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76709813v13 33 postage prepaid, will be deemed given five (5) calendar days after mailing; notices sent by overnight delivery service will be deemed given when delivered; and notices given electronically will be deemed given when sent. Notices otherwise given in accordance with the procedures of DTC will be deemed given on the date sent to DTC. Any notices required to be given to the Holders of Notes that are in global form will be given to DTC in accordance with its customary procedures therefor. In case by reason of the suspension of or irregularities in regular mail service or by reason of any other cause, it shall be impracticable to mail notice of any event to Holders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice for every purpose hereunder. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. SECTION 1.08 Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience of reference only, are not intended to be considered a part hereof and shall not affect the construction hereof. SECTION 1.09 Successors and Assigns. All agreements of the Issuer in this Indenture and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind its successors. All agreements of each Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 12.08 hereof. SECTION 1.10 Separability Clause. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 1.11 Benefits of Indenture. Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto, any Paying Agent, any Note Registrar and their successors hereunder and the Holders any benefit or any legal or equitable right, remedy or claim under this Indenture. SECTION 1.12 Governing Law. This Indenture, the Notes and any Guarantee will be governed by and construed in accordance with the laws of the State of New York. SECTION 1.13 Legal Holidays. In any case where any Interest Payment Date, Redemption Date, Change of Control Payment Date, or Stated Maturity or Maturity of any Note shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Notes) payment of principal (or premium, if any) or interest need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date, Redemption Date, Change of Control Payment Date, or at the Stated Maturity or Maturity; provided that no interest shall accrue for purposes of such payment for the
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76709813v13 34 period from and after such Interest Payment Date, Redemption Date, Change of Control Payment Date, Stated Maturity or Maturity, as the case may be. SECTION 1.14 No Personal Liability of Directors, Officers, Employees and Stockholders. No director, officer, employee, incorporator or stockholder of the Issuer or any Guarantor or any of their parent companies (other than the Issuer and the Guarantors) shall have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Guarantees or this Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation to the extent permitted by applicable law. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. SECTION 1.15 Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be original; but such counterparts shall together constitute but one and the same instrument. One signed copy is enough to prove this Indenture. The exchange of copies of this Indenture and of signature pages by facsimile, PDF or other electronic means of transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile, PDF or other electronic means shall be deemed to be their original signatures for all purposes. SECTION 1.16 Submission to Jurisdictions; Waiver of Immunities; Waiver of Jury Trial. The Issuer and each Guarantor irrevocably submits to the non-exclusive jurisdiction of any federal or New York state court located in the Borough of Manhattan in the City of New York in the State of New York. To the extent that any of the Issuer or any Guarantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, it hereby irrevocably waives such immunity in respect of its obligations under this Indenture and the Note or Guarantees, as applicable, to the extent permitted by law. The Issuer and each Guarantor irrevocably and unconditionally waives, to the fullest extent permitted by law, any obligation that it may now or hereafter have to the laying of venue of any such action, suit or proceeding in any such court or any appellate court with respect thereto. Each of the Issuer and each Guarantor irrevocably waives, to the fullest extent permitted by law, the defense of any inconvenient forum to the maintenance of such action, suit or proceeding in any such court. EACH PARTY HERETO, AND EACH HOLDER OF A NOTE BY ITS ACCEPTANCE THEREOF, XXXXXX XXXXXX, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.
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76709813v13 36 At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with such Company Order shall authenticate and deliver such Notes. On the Issue Date, the Issuer shall deliver the Notes in an initial aggregate principal amount of $200,000,000 executed by the Issuer to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Notes, directing the Trustee to authenticate the Notes, and the Trustee in accordance with such Company Order shall authenticate and deliver such Notes. The Trustee shall receive an Officer’s Certificate and an Opinion of Counsel of the Issuer in connection with such authentication of Notes; provided that no Opinion of Counsel under Section 1.03 shall be required in connection with the authentication of the Notes or the increase of the principal amount of any Notes as the result of a payment of PIK Interest. Such Company Order shall specify the amount of Notes to be authenticated and the date on which the original issue of Notes is to be authenticated. Each Note shall be dated the date of its authentication. No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized signatory, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. In case the Issuer or any Guarantor, pursuant to Article Eight of this Indenture, shall be consolidated, amalgamated, merged with or into or wound up into any other Person or shall sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions to any Person, and the successor Person resulting from such consolidation or amalgamation, or surviving such merger, or into which the Issuer or such Guarantor shall have been merged or wound up into, or the Person which shall have received a sale, assignment, transfer, lease, conveyance or other disposition as aforesaid, shall have executed a supplemental indenture hereto with the Trustee pursuant to Article Eight of this Indenture, any of the Notes authenticated or delivered prior to such consolidation, amalgamation, merger, sell, assignment, transfer, lease, conveyance or other disposition may, from time to time, at the request of the successor Person, be exchanged for other Notes executed in the name of the successor Person with such changes in phraseology and form as may be appropriate, but otherwise in substance of like tenor as the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon Company Request of the successor Person, shall authenticate and deliver Notes as specified in such request for the purpose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of a successor Person pursuant to this Section 2.02 in exchange or substitution for or upon registration of transfer of any Notes, such successor Person, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes at the time Outstanding for Notes authenticated and delivered in such new name.
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76709813v13 37 ARTICLE THREE THE NOTES SECTION 3.01 Title and Terms. The aggregate principal amount of Notes which may be authenticated and issued under this Indenture is limited to $200,000,000, except for any PIK Notes issued under this Indenture or increases in the principal amount of the Notes in respect PIK Interest, in each case, in accordance with Sections 2.02, 3.06, and 10.11 and this Section 3.01. The Notes shall be known and designated as the “13.00% Senior Notes due 2029” of the Issuer. The Maturity of the Notes shall be September 15, 2029, and the Notes shall bear interest at the rate of 13.00% per annum from the Issue Date, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, payable semi-annually in arrears on March 15 and September 15 in each year, commencing on September 15, 2023, and at said Maturity, until the principal thereof is paid or duly provided for and to the Person in whose name the Note (or any predecessor Note) is registered at the close of business on March 1 and September 1 immediately preceding such Interest Payment Date (each, a “Record Date”); provided, however, in the event any Notes remain outstanding after March 15, 2028, such Notes shall bear interest at 15.00% per annum from the most recent Interest Payment Date to which interest has been paid or duly provided for. On each Interest Payment Date, the Issuer shall pay scheduled payments of interest consisting of interest: (1) at a rate per annum of 4.00% which shall be paid in cash and (2) at a rate per annum of 9.00% which shall be paid either (x) “in-kind” (“PIK Interest”) through issuance of Notes in such amount (rounded up to the nearest $1.00) (each, a “PIK Note”) or by increasing the principal amount of the Notes outstanding or (y) in cash, in such proportion as the Issuer may determine as provided in this Section 3.01; provided, however, that, in the event any Notes are outstanding after March 15, 2028, the rate under clause (2) of this sentence shall be 11.00%. Interest on any Note for any Interest Period shall be calculated based on the principal amount of such Note after giving effect to any increases in the principal amount of such Note as the result of the payment of PIK Interest. In the event the Issuer elects to pay PIK Interest for any Interest Period, the Issuer will deliver written notice (a “PIK Notice”) to the Trustee and each Holder no later than five (5) Business Days prior to the beginning of such Interest Period specifying the amount of interest to be paid as PIK Interest and the amount of interest to be paid in cash and the Company shall deliver a Company Order, and if necessary, PIK Notes, pursuant to Section 3.06 for such amount of PIK Interest. Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the Issue Date. The principal of (and premium, if any) and cash interest on the Notes shall be payable at the office or agency of the Issuer maintained for such purpose or, at the option of the Issuer, payment of interest may be made by check mailed to the Holders of the Notes at their respective addresses set forth in the Note Register of Holders; provided that all payments of principal, premium, if any, and interest with respect to Notes represented by one or more permanent global notes registered in the name of or held by DTC or its nominee will be made in accordance with DTC’s applicable procedures. PIK Interest shall be payable as provided in Section 3.06. Until otherwise designated by the Issuer, the Issuer’s office or agency will be the office of the Trustee maintained for such purpose.
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76709813v13 46 (a) If any Event of Default (other than an Event of Default specified in Section 5.01(g) above) occurs and is continuing, then and in every such case the Trustee or the Holders of at least 25% in principal amount of the Outstanding Notes issued under this Indenture may declare the principal, premium, if any, interest and any other monetary obligations on all the Outstanding Notes to be due and payable immediately, by a notice in writing to the Issuer (and to the Trustee if given by Holders); provided that no such declaration may occur with respect to any action taken, and reported publicly or to Holders, more than two years prior to the date of such declaration. The Trustee shall have no obligation to accelerate the Notes. The Trustee shall have no obligation to determine when or if any Holders have been notified of any such action or to track when such two- year period starts or concludes. Any time period to cure any actual or alleged Default or Event of Default may be extended or stayed by a court of competent jurisdiction. Any notice of Default, notice of acceleration or instruction to the Trustee to provide a notice of Default, notice of acceleration or take any other action (a “Noteholder Direction”) provided by any one or more Holders (each a “Directing Holder”) must be accompanied by a written representation from each such Holder delivered to the Issuer and the Trustee that such Holder is not (or, in the case such Holder is DTC or its nominee, that such Holder is being instructed solely by beneficial owners that have represented to such Holder that they are not) Net Short (a “Position Representation”), which representation, in the case of a Noteholder Direction relating to the delivery of a notice of Default shall be deemed a continuing representation until the resulting Event of Default is cured or otherwise ceases to exist or the Notes are accelerated. In addition, each Directing Holder is deemed, at the time of providing a Noteholder Direction, to covenant to provide the Issuer with such other information as the Issuer may reasonably request from time to time in order to verify the accuracy of such Noteholder’s Position Representation within five (5) Business Days of request therefor (a “Verification Covenant”). In any case in which the Holder is DTC or its nominee, any Position Representation or Verification Covenant required hereunder shall be provided by the beneficial owner of the Notes in lieu of DTC or its nominee, and DTC shall be entitled to conclusively rely on such Position Representation and Verification Covenant in delivering its direction to the Trustee. If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Issuer determines in good faith that there is a reasonable basis to believe a Directing Holder was, at any relevant time, in breach of its Position Representation and provide to the Trustee an Officer’s Certificate stating that the Issuer has initiated litigation in a court of competent jurisdiction seeking a determination that such Directing Holder was, at such time, in breach of its Position Representation, and seeking to invalidate any Event of Default that resulted from the applicable Noteholder Direction, the cure period with respect to such Default shall be automatically stayed and the cure period with respect to such Event of Default shall be automatically reinstituted and any remedy stayed pending a final and non-appealable determination of a court of competent jurisdiction on such matter. If, following the delivery of a Noteholder Direction, but prior to acceleration of the Notes, the Issuer provides to the Trustee an Officer’s Certificate stating that a Directing Holder failed to satisfy its Verification Covenant, the cure period with respect to such Default shall be automatically stayed and the cure period with respect to any Event of Default that resulted from the applicable Noteholder Direction shall be automatically reinstituted and any remedy stayed pending satisfaction of such Verification Covenant. Any breach of the Position Representation shall result in such Holder’s participation in such Noteholder Direction being disregarded; and, if, without the participation of such Holder, the
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76709813v13 47 percentage of Notes held by the remaining Holders that provided such Noteholder Direction would have been insufficient to validly provide such Noteholder Direction, such Noteholder Direction shall be void ab initio (other than any indemnity such Directing Holder may have offered the Trustee), with the effect that such Event of Default shall be deemed never to have occurred, acceleration voided and the Trustee shall be deemed not to have received such Noteholder Direction or any notice of such Default or Event of Default. Notwithstanding anything in the preceding two paragraphs to the contrary, any Noteholder Direction delivered to the Trustee during the pendency of an Event of Default specified in Section 5.01(g) shall not require compliance with the foregoing paragraphs of this Section 5.02(a). For the avoidance of doubt, the Trustee shall be entitled to conclusively rely on any Noteholder Direction delivered to it in accordance with this Indenture, shall have no duty to inquire as to or investigate the accuracy of any Position Representation, enforce compliance with any Verification Covenant, verify any statements in any Officer’s Certificate delivered to it, or otherwise make calculations, investigations or determinations with respect to Derivative Instruments, Net Shorts, Long Derivative Instruments, Short Derivative Instruments or otherwise. The Trustee shall have no liability to the Issuer, any Holder or any other Person in acting in good faith on a Noteholder Direction. If the Notes are accelerated or otherwise become due prior to March 15, 2027 for any reason (including the acceleration of claims by operation of law), in each case, as a result of an Event of Default, the amount of principal, accrued and unpaid interest and premium on the Notes that becomes due and payable shall equal 100% of the principal amount of the Notes then outstanding plus the Applicable Premium or, following March 15, 2025, the amount by which the applicable Redemption Price exceeds the principal amount of the Notes (the “Redemption Price Premium”), as applicable, pursuant to Section 11.01 in effect on the date of such acceleration, plus accrued and unpaid interest on the applicable Notes as of the date of acceleration, as if such acceleration were an optional redemption of the Notes pursuant to Section 11.01. Without limiting the generality of the foregoing, in the event the Notes are accelerated or otherwise become due prior to March 15, 2027, in each case, in respect of any Event of Default (including, but not limited to, upon the occurrence of an Event of Default arising under Section 5.01(g) (including the acceleration of claims by operation of law)), the Applicable Premium or the Redemption Price Premium, as applicable, with respect to an optional redemption pursuant to Section 11.01 will also be due and payable as though the Notes were optionally redeemed and shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Holder’s lost profits as a result thereof. Any premium (including the Applicable Premium or the Redemption Premium, as applicable) payable above shall be deemed to be principal of the Notes and interest shall accrue on the full principal amount of the Notes (including the Applicable Premium or the Redemption Price Premium, as applicable) from and after the applicable triggering event, including in connection with an Event of Default specified in Section 5.01(g). Any premium payable pursuant to this paragraph shall be presumed to be the liquidated damages sustained by each Holder as the result of the acceleration of the Notes and the Issuer agrees that it is reasonable under the circumstances currently existing. The premium (including the Applicable Premium or the Redemption Premium, as applicable) shall also be payable in the event the Notes (and/or this Indenture) are satisfied, released or discharged by foreclosure, whether by power of judicial
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76709813v13 48 proceeding, deed in lieu of foreclosure or by any other means. THE ISSUER AND EACH GUARANTOR EXPRESSLY WAIVES (TO THE FULLEST EXTENT THEY MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREMIUM (INCLUDING THE APPLICABLE PREMIUM OR THE REDEMPTION PRICE PREMIUM, AS APPLICABLE) IN CONNECTION WITH ANY SUCH ACCELERATION. The Issuer expressly agrees (to the fullest extent it may lawfully do so) that: (A) the premium (including the Applicable Premium or the Redemption Premium, as applicable) is reasonable and is the product of an arm’s length transaction between sophisticated business entities, ably represented by counsel; (B) the premium (including the Applicable Premium or the Redemption Premium, as applicable) shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between Holders and the Issuer giving specific consideration in this transaction for such agreement to pay the premium (including the Applicable Premium or the Redemption Price Premium, as applicable); and (D) the Issuer shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Issuer expressly acknowledges that its agreement to pay the premium (including the Applicable Premium or the Redemption Premium, as applicable) to Holders as herein described is a material inducement to Holders to purchase the Notes. Any reference in this Indenture to “premium” shall be deemed to include the Applicable Premium and the Redemption Price Premium. (b) Upon the effectiveness of such declaration, such principal and interest will be due and payable immediately. Notwithstanding the foregoing, if an Event of Default specified in Section 5.01(g) above occurs, then the principal amount of all Outstanding Notes shall ipso facto become and be immediately due and payable without any notice, declaration or other act on the part of the Trustee or any Holder. (c) At any time after a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article, the Holders of a majority in aggregate principal amount of the Outstanding Notes, by written notice to the Issuer and the Trustee, may rescind and annul such declaration and its consequences, so long as such rescission and annulment would not conflict with any judgment of a court of competent jurisdiction, if: (1) the Issuer has paid or deposited with the Trustee a sum sufficient to pay: (A) all overdue interest on all Outstanding Notes, (B) all unpaid principal of (and premium, if any, on) any Outstanding Notes which has become due otherwise than by such declaration of acceleration, and interest on such unpaid principal at the rate borne by the Notes, (C) to the extent that payment of such interest is lawful, interest on overdue interest at the rate borne by the Notes, and
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76709813v13 56 (i) the rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; (j) the Trustee may request that the Issuer deliver an incumbency certificate substantially in the form of Exhibit B hereto setting forth the names of individuals or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which incumbency certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded; (k) anything in this Indenture notwithstanding, in no event shall the Trustee be responsible or liable for special, indirect, incidental, punitive, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; and (l) the Trustee shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless a Responsible Officer of the Trustee shall have received written notice from the Issuer or Holders describing such Default or Event of Default, and stating that such notice is a notice of Default; (m) the permissive right of the Trustee to take or refrain from taking any actions enumerated in this Indenture shall not be construed as a duty; and (n) The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Issuer and Guarantors shall each provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended whenever a person is to be added or deleted from the listing. If the Issuer or any of the Guarantors elect to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Issuer and Guarantors each understand and agree that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Issuer and Guarantors shall each be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Issuer and Guarantors and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Issuer or Guarantors, respectively. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Issuer and Guarantors each agree: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee,
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76709813v13 64 (a) (1) (x) such Guarantor is the surviving, resulting or continuing Person or (y) the Person formed by, continuing or resulting from or surviving any such consolidation, amalgamation, merger or winding up (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, limited liability company or partnership organized or existing under the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Guarantor or such Person, as the case may be, being herein called the “Successor Person”) (provided that, in the case of clause (y), if the Guarantor that is not the Successor Person of such transaction (a “Non-Successor Person”) had, immediately prior to such transaction, been formed, organized or existing under the laws of a jurisdiction other than those referenced immediately above and/or existed in or was organized as a legal entity other than a corporation, limited liability company or partnership, then the Successor Person of such transaction may be formed, organized or existing under the laws of the same jurisdiction as such Non-Successor Person had then been and may be of the same corporate or other organizational type as such Non-Successor Person had then been); (2) the Successor Person, if other than such Guarantor, expressly assumes all the obligations of such Guarantor, under this Indenture and such Guarantor’s Guarantee, pursuant to supplemental indentures in form reasonably satisfactory to the Trustee; (3) immediately after such transaction no Default or Event of Default exists; and (4) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, winding up, sale, assignment, transfer, lease, conveyance or other disposition and such supplemental indentures, if any, comply with this Indenture; or (b) in the case of a Guarantor, the transaction is made in compliance with Section 10.17. Subject to Section 12.08 hereof, the Successor Person will succeed to, and be substituted for, such Guarantor under this Indenture and such Guarantor’s Guarantee (and references to such Guarantor will be deemed references to the Successor Person, unless the context requires otherwise), as applicable, and such Guarantor will automatically be released and discharged from its obligations under this Indenture and such Guarantor’s Guarantee. Notwithstanding the foregoing, any Guarantor may merge into, amalgamate or consolidate with, wind up into or sell, assign, transfer, lease, convey or otherwise dispose of all or part of its properties and assets to another Guarantor or the Issuer. Notwithstanding anything to the contrary in this Indenture: (i) any Subsidiary may consolidate, amalgamate with, merge into or transfer all or part of its properties and assets to the Issuer or any Guarantor; and (ii) the Issuer or any Guarantor may merge or amalgamate with an Affiliate of the Issuer solely for the purpose of reincorporating the Issuer or such Guarantor in another jurisdiction of the
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76709813v13 68 evidences the same debt as the consenting Xxxxxx’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms (or if silent as to effectiveness, on the date on which the Trustee receives an Officer’s Certificate certifying that the Holders of the requisite principal amount of Notes have consented (and not theretofore revoked such consent) to such amendment, supplement or waiver) and thereafter binds every Holder. The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement, or waiver. If a record date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only such Persons, shall be entitled to consent to such amendment, supplement, or waiver or to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date unless the consent of the requisite number of Holders has been obtained. SECTION 9.05 Notation on or Exchange of Notes. The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the Trustee shall, upon receipt of a Company Order, authenticate new Notes that reflect the amendment, supplement or waiver. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver. SECTION 9.06 Notice of Supplemental Indentures. Promptly after the execution by the Issuer, any Guarantor and the Trustee of any supplemental indenture pursuant to the provisions of Section 9.02, the Issuer shall give notice thereof to the Holders of each Outstanding Note affected, in the manner provided for in Section 1.07, setting forth in general terms the substance of such supplemental indenture; provided that failure to give such notice shall not impair the validity of such supplemental indenture. ARTICLE TEN COVENANTS SECTION 10.01 Payment of Principal, Premium, if any, and Interest. The Issuer covenants and agrees for the benefit of the Holders that they will duly and punctually pay the principal of (and premium, if any) and interest and Additional Amount, if any, on the Notes in accordance with the terms of the Notes and this Indenture. Principal, premium, if any, and cash interest shall be considered paid on the date due if by 11:00 a.m. New York City time on such date the Trustee or the Paying Agent holds in accordance with this Indenture money sufficient to pay all principal, premium, if any, and cash interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture. PIK Interest shall be considered paid on the date due if by 11:00 a.m. New York City time on such date, the Trustee has received the Company Order required by Section
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76709813v13 70 (a) hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Notes in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; (b) give the Trustee notice of any Default by the Issuer (or any other obligor upon the Notes) in the making of any payment of principal (and premium, if any) or interest; and (c) at any time during the continuance of any such Default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent. The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Issuer or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums. Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of (or premium, if any) or interest on any Note and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Issuer on Company Request, or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as Trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Issuer cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Issuer. SECTION 10.04 Existence. Except as permitted by Article Eight, Section 10.17 and Section 12.08, the Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its existence and that of each Guarantor and the rights (based on organization documents and statute) and franchises of each Guarantor; provided, however, that the Issuer shall not be required to preserve any such existence, right or franchise of a Guarantor if the Issuer shall determine in its judgment that the preservation thereof is no longer desirable in the conduct of the business of the Issuer and its Subsidiaries taken as a whole. For the avoidance of doubt, subject to compliance with Article Eight, the Issuer and the Guarantors will be permitted to change their organizational form. SECTION 10.05 Payment of Taxes and Other Claims. The Issuer will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon the Issuer or any of its Subsidiary or upon the income, profits or property of the Issuer or any of its Subsidiary and (2) all lawful claims for labor, materials and supplies, which, if unpaid, might by law become a lien upon the
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76709813v13 73 acquisition of Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of purchase, repurchase or acquisition; or (d) make any Restricted Investment (all such payments and other actions set forth in clauses (a) through (d) above being collectively referred to as “Restricted Payments”). The foregoing provisions will not prohibit: (1) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof or the giving of such irrevocable notice, as applicable, if, at the date of declaration or the giving of such notice, such payment would have complied with the provisions of this Indenture (assuming, in the case of a redemption payment, the giving of the notice of such redemption payment would have been deemed to be a Restricted Payment at such time); (2) the redemption, repurchase, retirement, defeasance or other acquisition of any Equity Interests (“Retired Capital Stock”) or Subordinated Indebtedness of the Issuer, in exchange for, or out of the proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary) of, Equity Interests of the Issuer (in each case, other than any Disqualified Stock) (“Refunding Capital Stock”); (3) the redemption, repurchase, defeasance, exchange or other acquisition or retirement of Subordinated Indebtedness of the Issuer or any Restricted Subsidiary made by exchange for, or out of the proceeds of the substantially concurrent sale of, new Indebtedness of the Issuer or any Restricted Subsidiary which is incurred in compliance with Section 10.11 so long as: (A) the principal amount (or accreted value, in the case of Indebtedness issued at a discount) of such new Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Subordinated Indebtedness being so redeemed, repurchased, acquired, defeased, exchanged or retired, plus the amount of any reasonable fees, expenses and premium incurred or paid in connection with such redemption, repurchase, acquisition, defeasance, exchange or retirement and the incurrence of such new Indebtedness; (B) such new Indebtedness is subordinated to the Notes at least to the same extent as such Subordinated Indebtedness so redeemed, repurchased, defeased, exchanged, acquired or retired; (C) such new Indebtedness has a final scheduled maturity date equal to or later than the final scheduled maturity date of the Subordinated Indebtedness being so redeemed, repurchased, defeased, exchanged, acquired or retired;
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76709813v13 74 (D) such new Indebtedness has a Weighted Average Life to Maturity at the time incurred which is not less than the shorter of (i) the remaining Weighted Average Life to Maturity of the Subordinated Indebtedness being so redeemed, repurchased, defeased, exchanged, acquired or retired and (ii) the Weighted Average Life to Maturity that would result if all payments of principal on the Indebtedness being so redeemed, repurchased, defeased, acquired or retired that were due on or after the date one year following the maturity date of any Notes then outstanding were instead due on such date one year following the maturity date of such Notes; and (E) the obligor of such Indebtedness does not include any Person (other than the Issuer or any Guarantor) that is not an obligor of the Indebtedness being so redeemed, repurchased, defeased, exchanged, acquired or retired; (4) Restricted Payments to pay for the repurchase, redemption, retirement, defeasance or other acquisition of Equity Interests of the Issuer or any of its direct or indirect parent companies held by any future, present or former employee, director, officer or consultant of the Issuer, any of its Subsidiaries or any of its direct or indirect parent companies pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement; provided, however, that the aggregate Restricted Payments made under this clause (4) do not exceed in any calendar year $15,000,000; (5) repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price or taxes payable in respect of such options or warrants; (6) the repurchase, redemption or other acquisition of Equity Interests deemed to occur in connection with paying cash in lieu of fractional shares in connection with any dividend (including in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests), share split, reverse share split or combination thereof or any acquisition or other Investment and to honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms; (7) the Issuer making and paying dividends: (A) for any taxable period for which the Issuer is a member of a consolidated, combined, unitary or aggregate income tax group (a “Tax Group”) of which a direct or indirect parent company of the Issuer is the common parent, the proceeds of which shall be used to pay (or to make dividends to allow any parent entity of the Issuer to pay) any income Tax liability of such Tax Group in respect of taxable income attributable to the Issuer and its Subsidiaries, but not in excess of the Tax liability that the Issuer would incur if it filed tax returns as the parent of a Tax Group for itself and its Subsidiaries,
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76709813v13 75 (B) the proceeds of which shall be used to pay (or to make dividends to allow any parent entity of the Issuer to pay) its operating expenses incurred in the ordinary course (including related to maintenance of organizational existence), general administrative costs and other overhead costs and expenses (including customary salary, bonus and other benefits payable to present or former officers and employees of any parent entity and administrative, legal, accounting, professional and similar fees and expenses provided by third parties, including the Issuer’s proportionate share of such amount relating to such parent entity being a public company, if applicable), plus any indemnification claims made by employees, managers, consultants, independent contractors, directors or officers of any parent entity of the Issuer; and (C) the proceeds of which shall be used to pay (or to make dividends to allow any parent entity of the Issuer to pay) franchise, excise and similar taxes and other fees, taxes and expenses, in each case, required to maintain its (or any of its parent entities’) corporate or other legal existence; (8) Restricted Payments made to fund payments made in accordance with clause (7) or (12) of the second paragraph of Section 10.13; and (9) [reserved]; (10) [reserved]; (11) payments by the Issuer or any Restricted Subsidiary to a Taxing Authority in respect of withholding or similar taxes payable or expected to be payable by any future, current or former employee, director, manager, consultant or independent contractor (or any of their respective immediate family members) of the Issuer, any parent entity of the Issuer or any other Restricted Subsidiary in connection with the exercise or vesting of Equity Interests or other equity awards or any repurchases, redemptions, acquisitions, retirements or withholdings of Equity Interests in connection with any exercise of Equity Interests or other equity options or warrants or the vesting of Equity Interests or other equity awards if such Equity Interests represent all or a portion of the exercise price of, or withholding obligation with respect to, such options or, warrants or other Equity Interests or equity awards; (12) the redemption, repayment or exchange of the Series A Preferred Stock in connection with the issuance of Series A Replacement Instruments; and (13) payments of cash dividends on the Series A Preferred Stock and on any Series A Replacement Instrument, provided that the rate of cash dividends paid on such instruments for any dividend period do not exceed the rate of cash interest payments paid on the Notes (as a percentage) for the corresponding interest period. For purposes of determining compliance with this Section 10.10, in the event that a proposed Restricted Payment or Investment (or a portion thereof) meets the criteria of more than one of the categories of Restricted Payments described in the preceding clauses (1) through (13) above and/or one or more of the clauses contained in the definition of “Permitted Investments,” or
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76709813v13 77 the principal amount of all other Indebtedness and preferred stock then outstanding and incurred pursuant to this clause (d) and including all Refinancing Indebtedness incurred to refund, refinance or replace any other Indebtedness and preferred stock incurred pursuant to this clause (d), not to exceed the greater of $20,000,000 and 20% of Trailing Four Quarter EBITDA at the time of incurrence; (e) Indebtedness incurred by the Issuer or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including letters of credit in respect of workers’ compensation claims, or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, not to exceed in the aggregate at any time outstanding $10,000,000; (f) Indebtedness arising from agreements of the Issuer or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring or disposing of all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided, however, that (1) such Indebtedness is not to be reflected on the balance sheet of the Issuer or any Restricted Subsidiary prepared in accordance with GAAP (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (f)(1)) and (2) the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including noncash proceeds (the Fair Market Value of such noncash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Issuer and the Restricted Subsidiaries in connection with such disposition; (g) Indebtedness (including Indebtedness related to Sale and Lease-Back Transactions) or preferred stock of the Issuer to a Restricted Subsidiary; provided that any such Indebtedness owing to a Restricted Subsidiary that is not a Guarantor is subordinated in right of payment to the Notes; provided, further that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness (except to the Issuer or another Restricted Subsidiary) shall be deemed in each case to be an incurrence of such Indebtedness; (h) Indebtedness or preferred stock of a Restricted Subsidiary to the Issuer or another Restricted Subsidiary; provided that (1) any such Indebtedness is made pursuant to an intercompany note and (2) if a Guarantor incurs such Indebtedness owing to a Restricted Subsidiary that is not a Guarantor such Indebtedness is subordinated in right of payment to
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76709813v13 79 Partner or its Affiliates shall be incurred under clause (a) above and shall not be reclassified; (2) at the time of incurrence, the Issuer will be entitled to divide and classify an item of Indebtedness or preferred stock in more than one of the types of Indebtedness or preferred stock described above; (3) the principal amount of Indebtedness or preferred stock outstanding under any clause of this Section 10.11 shall be determined after giving effect to the application of proceeds of any such Indebtedness or preferred stock; and (4) the U.S. dollar equivalent principal amount of Indebtedness or preferred stock denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness or preferred stock was incurred, in the case of term debt, or first committed or first incurred (whichever yields the lower U.S. dollar equivalent), in the case of revolving credit debt; provided that (x) if such Indebtedness or preferred stock is incurred to refinance other Indebtedness or preferred stock denominated in the same foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar- denominated restriction shall be deemed not to have been exceeded so long as the principal amount in such currency of such Refinancing Indebtedness or preferred stock does not exceed the principal amount in such currency of such Indebtedness or preferred stock being refinanced, plus the aggregate amount of accrued but unpaid interest, dividends, premiums (including tender premiums), defeasance costs, underwriting discounts, fees, costs and expenses (including original issue discount, upfront fees or similar fees) incurred in connection with such refinancing and (y) if such Indebtedness or preferred stock is incurred to refinance other Indebtedness or preferred stock denominated in a different currency from the Indebtedness or preferred stock being refinanced, the principal amount of any such Indebtedness or preferred stock shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness or preferred stock is denominated that is in effect on the date of such refinancing. Accrual of interest, the accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness or preferred stock will not be deemed to be an incurrence of Indebtedness or preferred stock for purposes of this Section 10.11. If Indebtedness or preferred stock originally incurred in reliance upon a percentage of Trailing Four Quarter EBITDA under this covenant is being refinanced and such refinancing would cause the maximum amount of Indebtedness or preferred stock thereunder to be exceeded at such time, then such refinancing will nevertheless be permitted thereunder and such additional Indebtedness or preferred stock will be deemed to have been incurred under the applicable provision so long as the principal amount or liquidation preference of such Refinancing Indebtedness or preferred stock does not exceed the principal amount or liquidation preference of Indebtedness or preferred stock being refinanced plus amounts permitted by the next sentence. Any Indebtedness or preferred stock permitted to be incurred to refinance Indebtedness or preferred stock above shall be permitted to include additional Indebtedness, Disqualified Stock or preferred stock incurred to pay accrued but unpaid interest, dividends, premiums (including tender
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76709813v13 81 (4) transactions in which the Issuer or any Restricted Subsidiary, as the case may be, delivers to the Trustee a letter from a Nationally Recognized Independent Financial Advisor stating that such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point of view or meets the requirements of clause (a) of the preceding paragraph; (5) transactions pursuant to any agreement as in effect as of the Issue Date, or any amendment thereto (so long as any such agreement, together with all amendments thereto, taken as a whole, is not more disadvantageous as determined by the Issuer to the Holders in any material respect than the agreement in effect as of the Issue Date) or any transactions contemplated thereby; (6) [reserved]; (7) the performance by the Issuer and its Subsidiaries of their obligations under the Thermo Support Obligations and under any securities or indebtedness issued thereunder; (8) any transaction with a joint venture or similar entity which would constitute an Affiliate Transaction solely because the Issuer or a Restricted Subsidiary owns an Equity Interest in or otherwise controls such joint venture or similar entity; provided that no Affiliate of the Issuer or any of its Subsidiaries other than the Issuer or a Restricted Subsidiary shall have a beneficial interest in such joint venture or similar entity; (9) the issuance of Equity Interests (other than Disqualified Stock) of the Issuer to any Person; (10) payments or loans (or cancellation of loans) to employees or consultants of the Issuer, any of its direct or indirect parent companies or any Restricted Subsidiary which are approved by a majority of the Board of Directors of the Issuer in good faith; (11) any transaction with Partner (or one of its controlled Affiliates) so long as (a) such transaction is otherwise permitted by this Indenture, (b) the Key Terms Agreement or an Acceptable Substitute in which Partner (or one of its controlled Affiliates) is the counterparty remains in effect, and (c) such transaction is approved by a majority of the disinterested members of the Board of Directors of the Issuer; (12) dividends or payments of interest to the holders of shares of the Issuer’s Series A Preferred Stock or any Series A Replacement Instrument to the extent not otherwise prohibited hereunder and provided that such dividends or payments of interest do not exceed (as a percentage) the equivalent payments of interest on the Notes for the applicable interest period; (13) the Lease Agreement dated as of February 1, 2019 between the Issuer and Thermo related to the Issuer’s facilities in Covington, Louisiana and any extension, renewal or amendment thereof (so long as any such amendments is not more
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76709813v13 83 (2) this Indenture, the Notes and Guarantees; (3) purchase money obligations and Finance Lease Obligations for property acquired in the ordinary course of business that impose restrictions of the nature discussed in clause (c) above on the property so acquired or leased; (4) applicable law or any applicable rule, regulation or order; (5) any agreement or other instrument of a Person acquired by the Issuer or any Restricted Subsidiary in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; (6) contracts for the sale of assets, including customary restrictions with respect to a Subsidiary pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Subsidiary; (7) Secured Indebtedness otherwise permitted to be incurred pursuant to Section 10.11 and Section 10.12 that limit the right of the debtor to dispose of the assets securing such Indebtedness; (8) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; (9) customary provisions in joint venture agreements and other similar agreements; (10) customary provisions contained in leases and other agreements entered into in the ordinary course of business; (11) other Indebtedness of the Issuer or any Restricted Subsidiary that is incurred subsequent to the Issue Date pursuant to Section 10.11; provided that such encumbrances or restrictions (1) are no less favorable to the Issuer or such Restricted Subsidiary, taken as a whole, than those included in the Senior Indebtedness as in effect as of the Issue Date (as determined by the Issuer in good faith) or (2) will not materially affect the Issuer’s ability to make anticipated principal or interest payments on the Notes (as determined by the Issuer in good faith); and (12) any encumbrances or restrictions of the type referred to in clauses (a), (b) and (c) above imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of the contracts, instruments or obligations referred to in clauses (1) through (11) above, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are, as determined by the Issuer in good faith, not materially more restrictive with respect to such encumbrance and other restrictions than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
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76709813v13 85 Interest Payment Date falling on or prior to the Change of Control Payment Date. Within 30 days following any Change of Control Triggering Event, the Issuer will send notice of such Change of Control Offer electronically or by first class mail, with a copy to the Trustee, to each Holder to the address of such Holder appearing in the Note Register or otherwise, in the case of global notes held by DTC, in accordance with the procedures of DTC, with the following information: (1) that a Change of Control Offer is being made pursuant to this Section 10.16 and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment; (2) the repurchase price and the repurchase date, which will be no earlier than 15 days nor later than 60 days from the date such notice is sent (the “Change of Control Payment Date”), except in the case of a conditional Change of Control Offer made in advance of a Change of Control Triggering Event as described below; (3) that any Note not properly tendered will remain outstanding and continue to accrue interest; (4) that, unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on the Change of Control Payment Date; (5) that Holders electing to have any Notes repurchased pursuant to a Change of Control Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Repurchase” on the reverse of the Notes completed or, in the case of global notes held by DTC, otherwise in accordance with the procedures of DTC, to the applicable Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date; (6) that Holders will be entitled to withdraw their tendered Notes and their election to require the Issuer to repurchase such Notes, provided that the applicable Paying Agent receives, not later than the close of business on the second Business Day prior to the Change of Control Payment Date, a facsimile or other electronic transmission or letter setting forth the name of the Holder or, in the case of global notes held by DTC, otherwise in accordance with the procedures of DTC, the principal amount of Notes tendered for repurchase, and a statement that such Holder is withdrawing such Holder’s tendered Notes and such Xxxxxx’s election to have such Notes repurchased; (7) that Holders whose Notes are being repurchased only in part will be issued new Notes equal in principal amount to the unrepurchased portion of the Notes surrendered, which unrepurchased portion must be equal to $2,000 or a $1,000 integral multiple in excess thereof (or, if PIK Interest has been paid, in minimum denominations of $1.00 and integral multiples of $1.00 in excess thereof); (8) if such notice is sent prior to the occurrence of a Change of Control Triggering Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Triggering Event and any other conditions and describing each
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76709813v13 86 such condition, and, if applicable, stating that, in the Issuer’s discretion, the Change of Control Payment Date may be delayed until such time (including more than 60 days after the notice is mailed or delivered, including by electronic transmission) as any or all such conditions shall be satisfied, or that such purchase may not occur and such notice may be rescinded in the event that the Issuer shall determine that the Change of Control Triggering Event will not occur by the Change of Control Payment Date, or by the Change of Control Payment Date as so delayed; and (9) such other instructions, as determined by the Issuer, consistent with this Section 10.16, that a Holder must follow. If the Notes are in global form and the Issuer makes an offer to repurchase all of the Notes pursuant to the Change of Control Offer, a Holder may exercise its option to elect for the repurchase of the Notes through the facilities of DTC, subject to its rules and regulations. The notice, if sent in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. If (a) the notice is sent in a manner herein provided and (b) any Holder fails to receive such notice or a Holder receives such notice but it is defective, such Holder’s failure to receive such notice or such defect shall not affect the validity of the proceedings for the purchase of the Notes as to all other Holders that properly received such notice without defect. The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations described in this Indenture by virtue thereof. On the Change of Control Payment Date, the Issuer will, to the extent permitted by law, (10) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer, (11) deposit with the applicable Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered, and (12) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate stating that such Notes or portions thereof have been tendered to and repurchased by the Issuer. The Paying Agent will promptly send to each Holder of Notes that were properly tendered and not withdrawn the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and deliver to each Holder a new Note equal in principal amount to any unrepurchased portion of the Notes surrendered, if any, provided that each such new Note will be in a principal amount of $2,000 or a $1,000 integral multiple in excess thereof (or, if PIK Interest has been paid, in minimum denominations of $1.00 and integral multiples of $1.00 in excess thereof).
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76709813v13 90 delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Note, Guarantee or other Obligation, or sold or assigned an interest in any Note, Guarantee or other Obligation; (2) any Taxes as a result of the failure by the Holder (including any assignee or successor) to qualify for the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code or comply with Section 10.21(f) (except to the extent such failure to qualify for the portfolio interest exemption is attributable to a change in law after the date such Holder, assignee or successor acquires an interest in the Notes); (3) any Taxes imposed on or measured by its net income, however denominated, franchise Taxes or branch profits taxes, in each case, imposed by a jurisdiction (or any political subdivision thereof) as a result of such Holder being organized in or having its principal office or applicable lending office in such jurisdiction; and (4) any withholding Taxes imposed under FATCA. (b) As soon as practicable after any payment of Taxes by the Issuer or any of its Subsidiaries (including any Guarantor) to a Governmental Authority, the Issuer will provide the Trustee or Holder with documentation evidencing the payment of the Taxes in a form reasonably satisfactory to the Trustee or Holder. (c) The Issuer or any of its Subsidiaries (including any Guarantor), as applicable, will pay any present or future stamp, registration, court or documentary taxes, or any other excise, property or similar taxes, charges or levies (including any interest and penalties related thereto) that arise in any jurisdiction, which arise from the execution, issuance, delivery, or registration, or in any jurisdiction from the enforcement of, this Indenture, the Notes, Obligations or Guarantees or any other document or instrument referred to therein, or the receipt of any payments with respect to this Indenture, the Notes, Obligations or Guarantees (“Documentary Taxes”). (d) The obligation to pay Additional Amounts and Documentary Taxes under the terms and conditions described above will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor to the Issuer or any Guarantor and to any jurisdiction in which any such successor is incorporated or organized or is (or is deemed to be) resident or doing business for tax purposes, or from or through which such successor makes any payment under or with respect to the Notes or the Guarantees. (e) Issuer shall, and does hereby, indemnify Holder and the Trustee, within ten (10) days after demand therefor, for the full amount of any Additional Amounts or Documentary Taxes payable or paid by Holder or required to be withheld or deducted from a payment to Holder and any reasonable expenses of Holder and the Trustee arising therefrom or with respect thereto, whether or not such Additional Amounts or Documentary Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Issuer by Holder or the Trustee shall be conclusive absent manifest error.
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76709813v13 94 (5) that on the Redemption Date, the Redemption Price (and accrued but unpaid interest, if any, to, but not including, the Redemption Date payable as provided in Section 11.07) will become due and payable upon each such Note, or the portion thereof, to be redeemed, and that interest thereon will cease to accrue on and after the Redemption Date, (6) any condition precedent to the redemption, (7) the place or places where such Notes are to be surrendered for payment of the Redemption Price and accrued but unpaid interest, if any, (8) the name and address of the Paying Agent, (9) that Notes called for redemption must be surrendered to the Paying Agent to collect the Redemption Price, (10) the “CUSIP” number, ISIN or “Common Code” number and that no representation is made as to the accuracy or correctness of the “CUSIP” number, ISIN or “Common Code” number, if any, listed in such notice or printed on the Notes, and (11) the paragraph of the Notes pursuant to which the Notes are to be redeemed. Notice of redemption of Notes to be redeemed at the election of the Issuer shall be given by the Issuer or, at the Issuer’s request given at least five (5) Business Days prior to the date on which the notice is to be sent (unless a shorter notice period shall be acceptable to the Trustee), by the Trustee in the name and at the expense of the Issuer. Notice of any redemption of the Notes (including upon an Equity Offering or in connection with another transaction (or series of related transactions) or an event that constitutes a Change of Control Triggering Event) may, at the Issuer’s discretion, be given prior to the completion or the occurrence thereof and any such redemption or notice may, at the Issuer’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion or occurrence of the related Equity Offering or other transaction or event, as the case may be. In addition, if such redemption or purchase is subject to satisfaction of one or more conditions precedent, such notice shall describe each such condition, and if applicable, shall state that, in the Issuer’s discretion, the Redemption Date may be delayed until such time (including more than 60 days after the date the notice of redemption was mailed or delivered, including by electronic transmission) as any or all such conditions shall be satisfied, or such redemption or purchase may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date, or by the Redemption Date as so delayed, or such notice may be rescinded at any time in the Issuer’s discretion if in the good faith judgment of the Issuer any or all of such conditions will not be satisfied. In addition, the Issuer may provide in such notice that payment of the Redemption Price and performance of the Issuer’s obligations with respect to such redemption may be performed by another Person.
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76709813v13 96 of the Offer Period (the “Purchase Date”), the Issuer shall apply all Net Cash Proceeds (the “Offer Amount”) to the purchase of Notes, or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. (c) If the Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest and additional interest, if any, up to but excluding the Purchase Date, shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. (d) Upon the commencement of an Asset Sale Offer, the Issuer shall electronically deliver, in the case of global notes held by DTC, or send, by first-class mail, a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state: (1) that the Asset Sale Offer is being made pursuant to this Section 11.10 and Section 10.17 hereof and the length of time the Asset Sale Offer shall remain open; (2) the Offer Amount, the purchase price and the Purchase Date; (3) that any Note not tendered or accepted for payment shall continue to accrue interest; (4) that, unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest on and after the Purchase Date; (5) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $2,000 only (or if PIK Interest has been paid, $1.00 only); (6) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Repurchase” attached to the Note completed, or, in the case of global notes held by DTC, transfer such Note by book-entry transfer, to the Issuer, the Depositary, if appointed by the Issuer, or an applicable Paying Agent at the address specified in the notice at least three (3) days before the Purchase Date; (7) that Holders shall be entitled to withdraw their election if the Issuer, the Depositary or the applicable Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Xxxxxx is withdrawing his election to have such Note purchased;
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76709813v13 103 in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to the benefit of the Holders of such Notes; (A) cash in U.S. dollars, or (B) non-callable Government Securities, or (C) a combination thereof (without consideration of any reinvestment of interest), in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants (solely with respect to a deposit of assets other than cash in U.S. dollars), to pay and discharge, and which shall be applied by the Trustee (or other Qualifying Trustee) to pay and discharge, the principal of (and premium, if any) and interest on the Outstanding Notes on the Maturity (or Redemption Date, if applicable) of such principal (and premium, if any) or, interest due on the Notes; provided that the Trustee shall have been irrevocably instructed to apply such cash or the proceeds of such Government Securities to said payments with respect to the Notes. Before such a deposit, the Company may give to the Trustee, in accordance with Section 11.03 hereof, a notice of its election to redeem all of the Outstanding Notes at a future date in accordance with Article Eleven hereof, which notice shall be irrevocable. Such irrevocable redemption notice, if given, shall be given effect in applying the foregoing; provided that upon any redemption that requires the payment of the Applicable Premium, the amount deposited shall be sufficient for purposes of this Indenture to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as of the date of the notice of redemption, with any Applicable Premium Deficit only required to be deposited with the Trustee on or prior to the Redemption Date. Any Applicable Premium Deficit shall be set forth in an Officer’s Certificate delivered to the Trustee (upon which the Trustee may conclusively rely) at least two (2) Business Days before the Redemption Date that confirms that such Applicable Premium Deficit shall be applied toward such redemption; (2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that, subject to customary assumptions and exclusions, (A) the Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling, or (B) since the issuance of the Notes, there has been a change in the applicable U.S. Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel in the United States shall confirm that, subject to customary assumptions and exclusions, the holders of the Outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (3) (x) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that, subject to customary assumptions and exclusions, the holders of the Outstanding Notes will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such
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[Signature page to Indenture] IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written. GLOBALSTAR, INC. By: Name: Title:
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[Signature page to Indenture] GSSI, LLC By: Name: Title: GLOBALSTAR SECURITY SERVICES, LLC By: Name: Title: GLOBALSTAR C, LLC By: Name: Title: GLOBALSTAR USA, LLC By: Name: Title: GLOBALSTAR LEASING LLC By: Name: Title: SPOT LLC By: Name: Title: ATSS CANADA, INC. By: Name: Title:
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[Signature page to Indenture] GLOBALSTAR BRAZIL HOLDINGS, L.P. By: Name: Title: GCL LICENSEE LLC By: Name: Title: GUSA LICENSEE LLC By: Name: Title: GLOBALSTAR MEDIA, LLC By: Name: Title: GLOBALSTAR BROADBAND SERVICES, INC. By: Name: Title: GLOBALSTAR INTERNATIONAL, LLC By: Name: Title: GLOBALSTAR HOLDING US, LLC By: Name: Title:
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[Signature page to Indenture] WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee By: Name: Title: