ORION NEWCO SERVICES, INC.,
as Issuer,
and
BANKERS TRUST COMPANY
as Trustee
-------------------------
Senior Notes Indenture
Dated as of [_______________], 1997
-------------------------
[________]% Senior Notes due 2007
CROSS-REFERENCE TABLE
TIA Sections Indenture Sections
ss. 310(a)(1).............................................................7.10
(a)(2).............................................................7.10
(b)................................................................7.08
ss. 313(c)................................................................7.06
ss. 314(a)................................................................4.18
(a)(4).............................................................4.19
ss. 315(b)................................................................7.05
ss. 316(a)(1)(A)..........................................................6.05
(a)(1)(B)..........................................................6.04
(b)................................................................6.07
ss. 317(a)(1).............................................................6.08
(a)(2).............................................................6.09
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Note: The Cross-Reference Table shall not for any purpose be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY 1
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions 2
SECTION 1.02. Incorporation by Reference of Trust Indenture Act 21
SECTION 1.03. Rules of Construction 21
ARTICLE TWO
THE NOTES
SECTION 2.01 Form and Dating 22
SECTION 2.02. Execution and Authentication 23
SECTION 2.03. Registrar and Paying Agent 24
SECTION 2.04. Holders to Be Treated as Owners; Payments of Interest 24
SECTION 2.05. Paying Agent to Hold Money in Trust 25
SECTION 2.06. Holder Lists 26
SECTION 2.07. Transfer and Exchange 26
SECTION 2.08. Replacement Notes 29
SECTION 2.09. Outstanding Notes 30
SECTION 2.10. Treasury Notes 30
SECTION 2.11. Temporary Notes 30
SECTION 2.12. Cancellation 31
SECTION 2.13. Defaulted Interest 31
SECTION 2.14. CUSIP, CINS or ISIN Number 31
SECTION 2.15. Deposit of Moneys 31
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption 32
SECTION 3.02. Notices to Trustee 32
SECTION 3.03. Selection of Notes to Be Redeemed 32
SECTION 3.04. Notice of Redemption 33
SECTION 3.05. Deposit of Redemption Price 34
SECTION 3.06. Payment of Notes Called for Redemption 34
SECTION 3.07. Notes Redeemed in Part 34
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes 34
SECTION 4.02. Issuances of Guarantees by New Restricted Subsidiaries 35
SECTION 4.03. Limitation on Indebtedness 35
SECTION 4.04. Limitation on Restricted Payments 37
SECTION 4.05. Limitation on Dividend and Other Payment Restrictions Affect-
ing Restricted Subsidiaries 40
SECTION 4.06. Limitation on the Issuance of Capital Stock of Restricted
Subsidiaries 41
SECTION 4.07. Limitation on Issuances of Guarantees by Restricted
Subsidiaries 42
SECTION 4.08. Limitation on Transactions with Shareholders and Affiliates 42
SECTION 4.09. Limitation on Liens 43
SECTION 4.10. Limitation on Sale-Leaseback Transactions 43
SECTION 4.11. Limitation on Asset Sales 44
SECTION 4.12. Maintenance of Office or Agency 45
SECTION 4.13. Repurchase of Notes upon a Change of Control 45
SECTION 4.14. Existence 45
SECTION 4.15. Payment of Taxes and Other Claims 45
SECTION 4.16. Maintenance of Properties and Insurance 46
SECTION 4.17. Notice of Defaults 47
SECTION 4.18. Commission Reports and Reports to Holders 47
SECTION 4.19. Waiver of Stay, Extension or Usury Laws 47
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Consolidation, Merger and Sale of Assets 48
SECTION 5.02. Successor Substituted 49
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default 49
SECTION 6.02. Acceleration 51
SECTION 6.03. Other Remedies 51
SECTION 6.04. Waiver of Past Defaults 51
SECTION 6.05. Control by Majority 51
SECTION 6.06. Limitation on Suits 52
SECTION 6.07. Rights of Holders to Receive Payment 52
SECTION 6.08. Collection of Indebtedness and Suits for Enforcement by Trustee 52
SECTION 6.09. Trustee May File Proofs of Claim 53
SECTION 6.10. Priorities 54
SECTION 6.11. Undertaking for Costs 54
SECTION 6.12. Restoration of Rights and Remedies 54
SECTION 6.13. Rights and Remedies Cumulative 55
SECTION 6.14. Delay or Omission Not Waiver 55
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General 55
SECTION 7.02. Certain Rights of Trustee 55
SECTION 7.03. Individual Rights of Trustee 57
SECTION 7.04. Trustee's Disclaimer 57
SECTION 7.05. Notice of Default 57
SECTION 7.06. Reports by Trustee to Holders 57
SECTION 7.07. Compensation and Indemnity 58
SECTION 7.08. Replacement of Trustee 58
SECTION 7.09. Successor Trustee by Merger, Etc 59
SECTION 7.10. Eligibility 59
SECTION 7.11. Money Held in Trust 59
SECTION 7.12. Withholding Taxes 60
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations 60
SECTION 8.02. Defeasance and Discharge of Indenture 61
SECTION 8.03. Defeasance of Certain Obligations 63
SECTION 8.04. Application of Trust Money 64
SECTION 8.05. Repayment to Company 65
SECTION 8.06. Reinstatement 65
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders 65
SECTION 9.02. With Consent of Holders 66
SECTION 9.03. Revocation and Effect of Consent 67
SECTION 9.04. Notation on or Exchange of Notes 67
SECTION 9.05. Trustee to Sign Amendments, Etc 67
SECTION 9.06. Conformity with Trust Indenture Act 68
ARTICLE TEN
SECURITY
SECTION 10.01. Security 68
ARTICLE ELEVEN
GUARANTEE OF NOTES
SECTION 11.01. Guarantee 69
SECTION 11.02. Obligations Unconditional 70
SECTION 11.03. Notice to Trustee 71
SECTION 11.04. This Article Not to Prevent Events of Default 71
SECTION 11.05. Net Worth Limitation 71
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act of 1939 71
SECTION 12.02. Notices 71
SECTION 12.03. Certificate and Opinion as to Conditions Precedent 73
SECTION 12.04. Statements Required in Certificate or Opinion 73
SECTION 12.05. Acts of Holders 74
SECTION 12.06. Rules by Trustee, Paying Agent or Xxxxxxxxx 00
SECTION 12.07. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities 75
SECTION 12.08. Payment Date Other Than a Business Day 75
SECTION 12.09. Governing Law 75
SECTION 12.10. No Adverse Interpretation of Other Agreements 75
SECTION 12.11. No Recourse Against Others 75
SECTION 12.12. Successors 76
SECTION 12.13. Duplicate Originals 76
SECTION 12.14. Separability 76
SECTION 12.15. Table of Contents, Headings, Etc. 76
EXHIBIT A Form A-1Global Note
EXHIBIT B Form of Definitive Registered Note B-1
EXHIBIT C Form of Pledge Agreement C-1
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Note: The Table of Contents shall not for any purposes be deemed to be a part
of the Indenture.
INDENTURE, dated as of [____________], 1997, between ORION
NEWCO SERVICES, INC., a Delaware corporation, as issuer (together, with its
successors and assigns, the "Company"); ORION NETWORK SYSTEMS, INC., ORION
SATELLITE CORPORATION, INTERNATIONAL PRIVATE SATELLITE PARTNERS, L.P., ORIONNET,
INC., ORION ASIA PACIFIC CORPORATION, ASIA PACIFIC SPACE AND COMMUNICATIONS,
LTD., ORION ATLANTIC EUROPE, Ltd., ORION ATLANTIC EUROPE Inc; A. and ORION NET
FINANCE CORPORATION Net Finance Corporation, all Delaware Corporations, as
guarantors; and BANKERS TRUST COMPANY, a New York Banking Corporation, as
trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of up to $[ ] aggregate principal
amount of the Company's [ ]% Senior Notes Due 2007 (the "Notes") issuable as
provided in this Indenture. Pursuant to the terms of a Underwriting Agreement
dated as of [____________], 1997 (the "Underwriting Agreement") between the
Company and Xxxxxx Xxxxxxx & Co. Incorporated, as the manager for itself and the
several other placement agents therein (the "Manager"), the Company has agreed
to issue and sell [ ] units (the "Units"), each Unit consisting of $[________]
principal amount of the Notes and one warrant (the "Warrant") to purchase
initially an equal number of shares of Common Stock, par value $.01 per share,
of the Company (the "Common Stock"), issuable pursuant to the terms of a Warrant
Agreement dated as of [________], 1997 (the "Warrant Agreement") between the
Company and [ ], as the warrant agent (the "Warrant Agent"), and [ ] Senior
Discount Note Units (the "Senior Discount Note Units"), each Senior Note Unit
consisting of $[________] principal amount at maturity of the [ ]% Senior
Discount Notes Due 2007 (the "Senior Discount Notes") and one Warrant to
purchase initially [ ] shares of Common Stock, issuable pursuant to the terms of
the Warrant Agreement. The Notes will be secured pursuant to the terms of a
Pledge Agreement (as defined herein) by Government Securities as provided by
Article Ten of this Indenture. All things necessary to make this Indenture a
valid agreement of the Company, in accordance with its terms, have been done,
and the Company has done all things necessary to make the Notes, when executed
by the Company and authenticated and delivered by the Trustee hereunder and duly
issued by the Company, the valid obligations of the Company as hereinafter
provided.
This Indenture is subject to, and shall be governed by, the
provisions of the United States Trust Indenture Act of 1939, as amended, that
are required to be a part of and to govern indentures qualified under the United
States Trust Indenture Act of 1939, as amended.
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 proportionate benefit of all Holders, as follows.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions .
"Acquired Indebtedness" means Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary or assumed in
connection with an Asset Acquisition by a Restricted Subsidiary and not Incurred
in connection with, or in anticipation of, such Person becoming a Restricted
Subsidiary or such Asset Acquisition; provided that Indebtedness of such Person
which is redeemed, defeased, retired or otherwise repaid at the time of or
immediately upon consummation of the transactions by which such Person becomes a
Restricted Subsidiary or such Asset Acquisition shall not be Indebtedness.
"Adjusted Consolidated Net Income" means, for any period, the
aggregate net income (or loss) of the Company and its Subsidiaries for such
period determined in conformity with GAAP; provided that the following items
shall be excluded in computing Adjusted Consolidated Net Income (without
duplication): (i) the net income of any Person (other than net income
attributable to a Restricted Subsidiary) in which any Person (other than the
Company or any of its Restricted Subsidiaries) has a joint interest and the net
income (or loss) of any Unrestricted Subsidiary, except that Adjusted
Consolidated Net Income for any period shall include the amount of dividends or
other distributions actually paid to the Company or any of its Restricted
Subsidiaries by such other Person or such Unrestricted Subsidiary during such
period; (ii) solely for the purposes of calculating the amount of Restricted
Payments that may be made pursuant to clause (C) of the first paragraph of
Section 4.04 of this Indenture (and, in such case, except to the extent
includable pursuant to clause (i) above), the net income (or loss) of any Person
accrued prior to the date it becomes a Restricted Subsidiary or is merged into
or consolidated with the Guarantor or any of its Restricted Subsidiaries or all
or substantially all of the property and assets of such Person are acquired by
the Company or any of its Restricted Subsidiaries; (iii) any gains or losses (on
an after-tax basis) attributable to Asset Sales; (iv) except for purposes of
calculating the amount of Restricted Payments that may be made pursuant to
clause (C) of the first paragraph of Section 4.04 of this Indenture , any amount
paid or accrued as dividends on Preferred Stock of the Company or any Restricted
Subsidiary owned by Persons other than the Company and any of its Restricted
Subsidiaries; (v) all extraordinary gains and extraordinary losses; and (vi) any
net income (or loss) of any Guarantor that ceases to be a Guarantor because it
is designated an Unrestricted Subsidiary.
"Adjusted Consolidated Net Tangible Assets" means the total
amount of assets of the Company and its Restricted Subsidiaries (less applicable
depreciation, amortization and other valuation reserves), except to the extent
resulting from write-ups of capital assets (excluding write-ups in connection
with accounting for acquisitions in conformity with GAAP), after deducting
therefrom (i) all current liabilities of the Company and its Restricted
Subsidiaries (excluding intercompany items) and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the most recent quarterly or annual
consolidated balance sheet of the Company and its Restricted
Subsidiaries, prepared in conformity with GAAP and filed with the Commission
pursuant to Section 4.19 of this Indenture.
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent, authenticating
agent or co-Registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of beneficial interests, the rules and procedures of the Depositary
that apply to such transfer or exchange.
"Asset Acquisition" means (i) an investment by the Company or
any of its Restricted Subsidiaries in any other Person pursuant to which such
Person shall become a Restricted Subsidiary or shall be merged into or
consolidated with the Company or any of its Restricted Subsidiaries; provided
that such Person's primary business is related, ancillary or complementary to
the businesses of the Company and its Restricted Subsidiaries on the date of
such investment or (ii) an acquisition by the Company or any of its Restricted
Subsidiaries of the property and assets of any Person other than the Company or
any of its Restricted Subsidiaries that constitute substantially all of a
division or line of business of such Person; provided that the property and
assets acquired are related, ancillary or complementary to the businesses of the
Company and its Restricted Subsidiaries on the date of such acquisition.
"Asset Disposition" means the sale or other disposition by the
Company or any of its Restricted Subsidiaries (other than to the Company or
another Restricted Subsidiary) of (i) all or substantially all of the Capital
Stock of any Restricted Subsidiary of the Company or (ii) all or substantially
all of the assets that constitute a division or line of business of the Company
or any of its Restricted Subsidiaries.
"Asset Sale" means any sale, transfer or other disposition
(including by way of merger, consolidation or sale-leaseback transaction) in one
transaction or a series of related transactions by the Company or any of its
Restricted Subsidiaries to any Person other than the Company or any of its
Restricted Subsidiaries of (i) all or any of the Capital Stock of any Restricted
Subsidiary, (ii) all or substantially all of the property and assets of an
operating unit or business of the Company or any of its Restricted Subsidiaries
or (iii) any other property and assets of the Company or any of its Restricted
Subsidiaries outside the ordinary course of business of the Company or such
Restricted Subsidiary and, in each case, that is not governed by Section 5.01;
provided that "Asset Sale" shall not include (a) sales or other dispositions of
inventory, receivables and other current assets or (b) sales or other
dispositions of assets for consideration received would satisfy clause (B) of
Section 4.11 of this Indenture.
"Average Life" means, at any date determination with respect
to any debt security, the quotient obtained by dividing (i) the sum of the
products of (a) the number of years from such date of determination to the dates
of each successive scheduled principal payment of such debt security and (b) the
amount of such principal payment by (ii) the sum of all such principal payments.
"Board of Directors" means the Board of Directors of the
Company or any committee of such Board of Directors duly authorized to act with
respect to this Indenture from time to time.
"Board Resolution" means a copy of a resolution, certified by
any Director of the Company or the Secretary or Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means a day except Saturday, Sunday or other
day on which commercial banks in the City of New York, or in the city of the
Corporate Trust Office of the Trustee, are authorize by law to close.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) in equity of such Person, whether now outstanding
or issued after the Closing Date, including, without limitation, all Common
Stock and Preferred Stock.
"Capitalized Lease" means, as applied to any Person, any lease
of any property (whether real, personal or mixed) of which the discounted
present value of the rental obligations of such Person as lessee, in conformity
with GAAP, is required to be capitalized on the balance sheet of such Person;
and "Capitalized Lease Obligations" means the discounted present value of the
rental obligations under such lease.
"Certificated Note" means a certificated Note registered in
the name of the Holder thereof and issued in accordance with Section 2.07(a)
hereof, substantially in the form of Exhibit B hereto.
"Change of Control" means such time as (i) a "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act)
becomes the ultimate "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act) of more than 35% of the total voting power of the Voting Stock of
the Company on a fully diluted basis and such ownership is greater than the
amount of voting power of the Voting Stock of the Company, on a fully diluted
basis, held by the Existing Stockholders and their Affiliates on such date; (ii)
individuals who on the Closing Date constitute the Board of Directors (together
with any new directors whose election by the Board of Directors or whose
nomination for election by the Company's stockholders was approved by a vote of
at least two-thirds of the members of the Board of Directors then in office who
either were members of the Board of Directors on the Closing Date or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority
of the members of the Board of Directors then in office; or (iii) the Company
does not beneficially own 100% of the equity interests in Orion Atlantic
Partners, L.P. or such other entity as then owns the Orion 1 satellite.
"Chief Executive Officer" of the Company means W. Xxxx Xxxxx
or, in the event of his death or termination of his office, such other Officer
of the Company as the Company may designate.
"Closing Date" means the date on which the Notes are
originally issued under the Indenture.
"Commission" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the TIA, then the
body performing such duties at such time.
"Common Stock" means, the shares of Common Stock, par value
$.01 per share, of the Company.
"Company Order" means a written request or order signed in the
name of the Company (i) by the Chairman of the Board, the Chief Executive
Officer or an Executive Director and (ii) by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee;
provided, however, that such written request or order may be signed by any two
of the officers or directors listed in clause (i) above in lieu of being signed
by one of such officers or directors listed in such clause (i) and one of the
officers listed in clause (ii) above.
"Consolidated EBITDA" means, for any period, the sum of the
amounts for such period of (i) Adjusted Consolidated Net Income, (ii)
Consolidated Interest Expense, to the extent such amount was deducted in
calculating Adjusted Consolidated Net Income, (iii) income taxes, to the extent
such amount was deducted in calculating Adjusted Consolidated Net Income (other
than income taxes (either positive or negative) attributable to extraordinary
and non-recurring gains or losses or sales of assets), (iv) depreciation
expense, to the extent such amount was deducted in calculating Adjusted
Consolidated Net Income, (v) amortization expense, to the extent such amount was
deducted in calculating Adjusted Consolidated Net Income, and (vi) all other
non-cash items reducing Adjusted Consolidated Net Income (other than items that
will require cash payments and for which an accrual or reserve is, or is
required by GAAP to be, made), less all non-cash items increasing Adjusted
Consolidated Net Income, all as determined on a consolidated basis for the
Company and its Restricted Subsidiaries in conformity with GAAP.
"Consolidated Indebtedness" means the aggregate amount of
Indebtedness of the Company and its Restricted Subsidiaries on a consolidated
basis.
"Consolidated Interest Expense" means, for any period, the
aggregate amount of interest in respect of Indebtedness (including, without
limitation, amortization of original issue discount on any Indebtedness and the
interest portion of any deferred payment obligation, calculated in accordance
with the effective interest method of accounting; all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing; the net costs associated with Interest Rate Agreements;
and in respect of Indebtedness that is Guaranteed or secured by any Restricted
Subsidiaries) and all but the principal component of rentals in respect of
Capitalized Lease Obligations paid, accrued or scheduled to be paid or to be
accrued by the Company and its Restricted Subsidiaries during such period;
excluding, however, any premiums, fees and expenses (and any amortization
thereof) payable in connection with the offering of the Notes, all as determined
on a consolidated basis (without taking into account Unrestricted Subsidiaries)
in conformity with GAAP.
"Consolidated Leverage Ratio" means, on any Transaction Date,
the ratio of (i) the aggregate amount of Indebtedness of the Company and its
Restricted Subsidiaries on a consolidated basis outstanding on such Transaction
Date to (ii) the aggregate amount of Consolidated EBITDA for the then most
recent four fiscal quarters for which financial statements of the Company have
been filed with the Commission pursuant to Section 4.19 of this Indenture (such
four fiscal quarter period being the "Four Quarter Period"); provided that (A)
pro forma effect shall be given to Asset Dispositions and Asset Acquisitions
(including giving pro forma effect to the application of proceeds of any Asset
Disposition) that occur from the beginning of the Four Quarter Period through
the Transaction Date (the "Reference Period"), as if they had occurred and such
proceeds had been applied on the first day of such Reference Period; and (B) pro
forma effect shall be given to asset dispositions and asset acquisitions
(including giving pro forma effect to the application of proceeds of any asset
disposition) that have been made by any Person that has become a Restricted
Subsidiary or has been merged with or into the Company or any Restricted
Subsidiary during such Reference Period and that would have constituted Asset
Dispositions or Asset Acquisitions had such transactions occurred when such
Person was a Restricted Subsidiary as if such asset dispositions or asset
acquisitions were Asset Dispositions or Asset Acquisitions that occurred on the
first day of such Reference Period; provided that to the extent that clause (A)
or (B) of this sentence requires that pro forma effect be given to an Asset
Acquisition or Asset Disposition, such pro forma calculation shall be based upon
the four full fiscal quarters immediately preceding the Transaction Date of the
Person, or division or line of business of the Person, that is acquired or
disposed of for which financial information is available.
"Consolidated Net Worth" means, at any date of determination,
stockholders' equity as set forth on the most recently available quarterly or
annual consolidated balance sheet of the Company and its Restricted Subsidiaries
(which shall be as of a date not more than 90 days prior to the date of such
computation), less any amounts attributable to Disqualified Stock or any equity
security convertible into or exchangeable for Indebtedness, the cost of treasury
stock and the principal amount of any promissory notes receivable from the sale
of the Capital Stock of the Company or any of its Restricted Subsidiaries, each
item to be determined in conformity with GAAP (excluding the effects of foreign
currency exchange adjustments under Financial Accounting Standards Board
Statement of Financial Accounting Standards No. 52).
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date of this Indenture,
located at Bankers Trust Company, 0 Xxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any Restricted Subsidiary against fluctuations in
currency values.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Disqualified Stock" means any class or series of Capital
Stock of any Person that by its terms or otherwise is (i) required to be
redeemed prior to the Stated Maturity of the Notes, (ii) redeemable at the
option of the holder of such class or series of Capital Stock at any time prior
to the Stated Maturity of the Notes or (iii) convertible into or exchangeable
for Capital Stock referred to in clause (i) or (ii) above or Indebtedness having
a scheduled maturity prior to the Stated Maturity of the Notes; provided that
any Capital Stock that would not constitute Disqualified Stock but for
provisions thereof giving holders thereof the right to require such Person to
repurchase or redeem such Capital Stock upon the occurrence of an "asset sale"
or "change of control" occurring prior to the Stated Maturity of the Notes shall
not constitute Disqualified Stock if the "asset sale" or "change of control"
provisions applicable to such Capital Stock are no more favorable to the holders
of such Capital Stock than the provisions contained in Sections 4.11 and 4.13 of
this Indenture and such Capital Stock specifically provides that such Person
will not repurchase or redeem any such stock pursuant to such provision prior to
the Company's repurchase of such Notes as are required to be repurchased
pursuant to Sections 4.11 and 4.13 of this Indenture.
"Depositary" shall mean The Depository Trust Company, its
nominees and their respective successors, until a successor Depositary shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "Depositary" shall been or include each Person who is then a
Despositary hereunder.
"Depositary Interest" means a certificateless depositary
interest representing a 100% beneficial interest in a Global Note.
"Existing Stockholders" means British Aerospace Space Systems,
Inc., Lockheed Xxxxxx Commercial Launch Services, Inc., MCN Sat. U.S., Inc.,
Trans-Atlantic Satellite, Inc., Kingston Communications International Limited,
COM DEV Satellite Communications Limited, X.X. Xxxxxx & Co., CIBC Wood Gundy
Ventures, Inc., Cumberland Associates, Fleet Venture Resources, Inc., Space
Systems/Loral and any Subsidiary of any of the foregoing.
"Event of Default" has the meaning provided in Section 6.01.
"Excess Proceeds" has the meaning provided in Section 4.11.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended.
"fair market value" means the price that would be paid in an
arm's-length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to buy,
as determined in good faith by the Board of Directors, whose determination shall
be conclusive if evidenced by a Board Resolution.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Closing Date, including, without
limitation, those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the accounting profession. All ratios and computations contained or referred
to in the Indentures shall be computed in conformity with GAAP applied on a
consistent basis, except that calculations made for purposes of determining
compliance with the terms of the covenants and with other provisions of the
Indentures shall be made without giving effect to (i) the amortization of any
expenses incurred in connection with the offering of the Notes and (ii) except
as otherwise provided, the amortization of any amounts required or permitted by
Accounting Principles Board Opinion No. 16 and 17.
"Global Note" means the Global Notes, substantially in the
form of Exhibit A hereto issued in accordance with Section 2.01 or 2.07(a)
hereof.
"Government Securities" means direct obligations of,
obligations fully guaranteed by, or participations in pools consisting solely of
obligations of or obligations guaranteed by, the United States of America for
the payment of which guarantee or obligations the full faith and credit of the
United States of America is pledged and which are not callable or redeemable at
the option of the issuer thereof.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation of such other Person (whether
arising by virtue of partnership arrangements or by agreements to keep-well, to
purchase assets, goods, securities or services, to take-or-pay or to maintain
financial statement conditions or otherwise) or (ii) entered into for purposes
of assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided that the term "Guarantee" shall
not include endorsements for collection or deposit in the ordinary course of
business. The term Guarantee used as a verb has a corresponding meaning.
"Guarantors" means collectively, Orion Network Systems, Inc.,
Orion Satellite Corporation, International Private Satellite Partners, L.P.,
OrionNet, Inc., Orion Asia Pacific
Corporation, Asia Pacific Space and Communications, Ltd., Orion Atlantic Europe,
Inc. and OrionNet Finance Corporation, and all other Restricted Subsidiaries;
provided that any Person that becomes an Unrestricted Subsidiary in compliance
with Section 4.04 shall not be included in "Guarantors" after becoming an
Unrestricted Subsidiary.
"Holder" means the Person in whose name such Note is
registered in the Register.
"Incur" means, with respect to any Indebtedness, to incur,
create, issue, assume, Guarantee or otherwise become liable for or with respect
to, or become responsible for, the payment of, contingently or otherwise, such
Indebtedness, including an "Incurrence" of Indebtedness by reason of a Person
becoming a Restricted Subsidiary of the Company; provided that neither the
accrual of interest nor the accretion of original issue discount shall be
considered an Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person at any date
of determination (without duplication), (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person in respect of letters of credit or other similar instruments (including
reimbursement obligations with respect thereto, but excluding obligations with
respect to letters of credit (including trade letters of credit) securing
obligations (other than obligations described in clause (i) or (ii) above or
clause (v), (vi) or (vii) below) entered into in the ordinary course of business
of such Person to the extent such letters of credit are not drawn upon or, if
drawn upon, to the extent such drawing is reimbursed no later than the third
Business Day following receipt by such Person of a demand for reimbursement),
(iv) all obligations of such Person to pay the deferred and unpaid purchase
price of property or services, which purchase price is due more than six months
after the date of placing such property in service or taking delivery and title
thereto or the completion of such services, except Trade Payables, (v) all
obligations of such Person as lessee under Capitalized Leases, (vi) all
Indebtedness of other Persons secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person; provided that the
amount of such Indebtedness shall be the lesser of (A) the fair market value of
such asset at such date of determination and (B) the amount of such
Indebtedness, (vii) all Indebtedness of other Persons Guaranteed by such Person
to the extent such Indebtedness is Guaranteed by such Person and (viii) to the
extent not otherwise included in this definition, obligations under Currency
Agreements and Interest Rate Agreements. The amount of Indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency giving
rise to the obligation, provided (A) that the amount outstanding at any time of
any Indebtedness issued with original issue discount is the original issue price
of such Indebtedness, (B) Permitted Customer Advances, Prepayment Supports and
any money borrowed, at the time of the Incurrence of any Indebtedness, in order
to pre-fund the payment of interest on such Indebtedness, shall be deemed not to
be "Indebtedness" and (C) Indebtedness shall not include any liability for
federal, state, local or other taxes.
"Indenture" means this Indenture as originally executed or as
it may be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture.
"Independent Financial Advisor" means an investment banking
firm, accounting firm or other financial advisory firm of national standing in
the United States, as the case may be, (i) which, in the judgment of the Board
of Directors, does not, and whose directors, officers or Affiliates do not, have
a material direct or indirect financial interest in the Company (provided that
ownership of Capital Stock of the Company constituting less than 2% of all
outstanding Capital Stock of the Company shall not constitute a material direct
or indirect financial interest), and (ii) which, in the judgment of the Board of
Directors, is otherwise independent and qualified to perform the task for which
it is to be engaged.
"Indirect Participant" means a Person who holds an interest
through a Participant.
"Interest Payment Date" means each semiannual interest payment
date of [______________] and [_____________] of each year, commencing
[___________], 1997.
"Interest Rate Agreement" means any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement or other similar agreement or
arrangement designed to protect the Company or any of its Restricted
Subsidiaries against fluctuations in interest rates in respect of Indebtedness
to or under which the Company or any of its Restricted Subsidiaries is a party
or a beneficiary on the date of this Indenture or becomes a party or a
beneficiary hereafter; provided that the notional principal amount thereof does
not exceed the principal amount of the Indebtedness of the Company and its
Restricted Subsidiaries that bears interest at floating rates.
"Investment" in any Person means any direct or indirect
advance, loan or other extension of credit (including, without limitation, by
way of Guarantee or similar arrangement; but excluding advances to customers in
the ordinary course of business that are, in conformity with GAAP, recorded as
accounts receivable on the balance sheet of the Company or its Restricted
Subsidiaries) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account
or use of others), or any purchase or acquisition of Capital Stock, bonds,
notes, debentures or other similar instruments issued by, such Person and shall
include (i) the designation of a Restricted Subsidiary as an Unrestricted
Subsidiary and (ii) the fair market value of the Capital Stock (or any other
Investment), held by the Company or any of its Restricted Subsidiaries, of (or
in) any Person that has ceased to be a Restricted Subsidiary, including, without
limitation, by reason of any transaction permitted by clause (iii) of Section
4.06 of this Indenture. For purposes of the definition of "Unrestricted
Subsidiary" and Section 4.04 of this Indenture, (i) "Investment" shall include
the fair market value of the assets (net of liabilities (other than liabilities
to the Company or any of its Subsidiaries)) of any Restricted Subsidiary at the
time that such Restricted Subsidiary is designated an Unrestricted Subsidiary,
(ii) the fair market value of the assets (net of liabilities (other than
liabilities to the Company or any of its Subsidiaries)) of any Unrestricted
Subsidiary at the time that such Unrestricted Subsidiary is designated a
Restricted Subsidiary shall be considered a reduction in outstanding Investments
and (iii) any property transferred to or from an Unrestricted Subsidiary shall
be valued at its fair market value at the time of such transfer.
"Issue Date" means the original date of issuance of the Notes.
"Junior Subordinated Convertible Debentures" means the 8.75%
Convertible Junior Subordinated Debentures Due 2012 of the Company.
"Kingston" means Kingston Communications International
Limited.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, without limitation, any
conditional sale or other title retention agreement or lease in the nature
thereof or any agreement to give any security interest).
"Manager" means Xxxxxx Xxxxxxx & Co. Incorporated, as manager
for itself and the several other underwriters agents named in the Underwriting
Agreement.
"Matra" means Matra Marconi Space UK Limited, the parent
Company of MMS Space Systems and a subsidiary of Matra Marconi Space N.V., and
the manufacturer under the Orion 2 Satellite Contract.
"Maturity Date" means the Stated Maturity of the Notes.
"Merger" means the merger pursuant to an Agreement and Plan of
Merger dated January 8, 1997, of Old ONSI with a Wholly Owned subsidiary of the
Company.
"Moody's" means Xxxxx'x Investors Service, Inc. and its
successors.
"Net Cash Proceeds" means, (a) with respect to any Asset Sale,
the proceeds of such Asset Sale in the form of cash or cash equivalents,
including payments in respect of deferred payment obligations (to the extent
corresponding to the principal, but not interest, component thereof) when
received in the form of cash or cash equivalents (except to the extent such
obligations are financed or sold with recourse to the Company or any Restricted
Subsidiary) and proceeds from the conversion of other property received when
converted to cash or cash equivalents (including cash or cash equivalents that
are deposited in escrow pending satisfaction of conditions specified in the
relevant sale documents or that secures Prepayment Supports, in each case when
such cash or cash equivalents are released to the Company or a Restricted
Subsidiary), net of (i) brokerage commissions and other fees and expenses
(including fees and expenses of counsel and investment bankers) related to such
Asset Sale, (ii) provisions for all taxes (whether or not such taxes will
actually be paid or are payable) as a result of such Asset Sale without regard
to the consolidated results of operations of the Company and its Restricted
Subsidiaries, taken as a whole, (iii) payments made to repay Indebtedness or any
other obligation outstanding at the time of such Asset Sale that either (A) is
secured by a Lien on the property or assets sold or (B) is required to be paid
as a result of such sale and (iv) appropriate amounts
to be provided by the Company or any Restricted Subsidiary of the Company as a
reserve against any liabilities associated with such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as determined
in conformity with GAAP and (b) with respect to any issuance or sale of Capital
Stock, the proceeds of such issuance or sale in the form of cash or cash
equivalents, including payments in respect of deferred payment obligations (to
the extent corresponding to the principal, but not interest, component thereof)
when received in the form of cash or cash equivalents (except to the extent such
obligations are financed or sold with recourse to the Company or any Restricted
Subsidiary of the Company) and proceeds from the conversion of other property
received when converted to cash or cash equivalents, net of attorney's fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees incurred in connection with
such issuance or sale and net of taxes paid or payable as a result thereof.
"Note Guarantee" means the Guarantee by the Guarantors of the
Company's obligations under the Notes and the Indenture, pursuant to the
Indenture, and the Guarantee by any other Person that becomes a Guarantor of the
Company's obligations under the Notes and the Indenture.
"Notes" means the [___________]% Senior Notes due 2007 of the
Company issued pursuant to this Indenture.
"Offer to Purchase" means an offer to purchase Notes by the
Company from the Holders commenced by mailing a notice to the Trustee and each
Holder stating: (i) the covenant pursuant to which the offer is being made and
that all Notes validly tendered will be accepted for payment on a pro rata
basis; (ii) the purchase price and the date of purchase (which shall be a
Business Day no earlier than 30 days nor later than 60 days from the date such
notice is mailed) (the "Payment Date"); (iii) that any Note not tendered will
continue to accrue interest pursuant to its terms; (iv) that, unless the Company
defaults in the payment of the purchase price, any Note accepted for payment
pursuant to the Offer to Purchase shall cease to accrue interest on and after
the Payment Date; (v) that Holders electing to have a Note purchased pursuant to
the Offer to Purchase will be required to surrender the Note, together with the
form entitled "Option of the Holder to Elect Purchase" on the reverse side of
the Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the Business Day immediately preceding the
Payment Date; (vi) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than the close of business on the third
Business Day immediately preceding the Payment Date, a telegram, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount at maturity of Notes delivered for purchase and a statement that such
Holder is withdrawing his election to have such Notes purchased; and (vii) that
Holders whose Notes are being purchased only in part will be issued new Notes
equal in principal amount at maturity to the unpurchased portion of the Notes
surrendered; provided that each Note purchased and each new Note issued shall be
in a principal amount at maturity of $1,000 or integral multiples thereof. On
the Payment Date, the Company shall (i) accept for payment on a pro rata basis
Notes or portions thereof tendered pursuant to
an Offer to Purchase; (ii) deposit with the Paying Agent money sufficient to pay
the purchase price of all Notes or portions thereof so accepted; and (iii)
deliver, or cause to be delivered, to the Trustee all Notes or portions thereof
so accepted together with an Officers' Certificate specifying the Notes or
portions thereof accepted for payment by the Company. The Paying Agent shall
promptly mail to the Holders of Notes so accepted payment in an amount equal to
the purchase price, and the Trustee shall promptly authenticate and mail to such
Holders a new Note equal in principal amount at maturity to any unpurchased
portion of the Note surrendered; provided that each Note purchased and each new
Note issued shall be in a principal amount at maturity of $1,000 or integral
multiples thereof. The Company will publicly announce the results of an Offer to
Purchase as soon as practicable after the Payment Date. The Trustee shall act as
the Paying Agent for an Offer to Purchase. The Company will comply with Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable, in the event
that the Company is required to repurchase Notes pursuant to an Offer to
Purchase.
"Old ONSI" means the Delaware corporation known as "Orion
Network Systems, Inc." prior to the consummation of the Merger.
"Orion Atlantic" means International Private Satellite
Partners, L.P., a Delaware Limited Partnership.
"Orion 1" means the high-power Ku-band communications
satellite operated over the Atlantic Ocean by Orion.
"Orion 2" and "Orion 3" mean, respectively, each of the first
two satellites with respect to which the Company has a Successful Launch after
the Closing Date, and any replacement for either of such satellites.
"Orion 1 Satellite Contract" means the fixed price turnkey
contract originally entered into between British Aerospace and Orion Atlantic
for the design, construction, launch and delivery in orbit of Orion 1.
"Orion 2 Satellite Contract" means the spacecraft purchase
agreement between Orion and Matra Marconi Space for construction and launch of
Orion 2.
"Officer" means, with respect to the Company, (i) the Chairman
of the Board, the Chief Executive Officer or any other Director of the Company
or (ii) the Treasurer or any Assistant Treasurer, the Company Secretary or any
Company Assistant Secretary.
"Officers' Certificate" means a certificate signed by one
Officer listed in clause (i) of the definition thereof and one Officer listed in
clause (ii) of the definition thereof; provided, however, that any such
certificate may be signed by any two of the Officers listed in clause (i) of the
definition thereof in lieu of being signed by one Officer listed in clause (i)
of the definition thereof and one Officer listed in clause (ii) of the
definition thereof. Each
Officers' Certificate (other than certificates provided pursuant to TIA Section
314(a)(4)) shall include the statements provided for in TIA Section 314(e), if
applicable.
"Opinion of Counsel" means a written opinion signed by legal
counsel who may be an employee of or counsel to the Company. Each such Opinion
of Counsel shall include the statements provided for in TIA Section 314(e), if
applicable.
"Participant" means, with respect to a the Depositary, a
Person who has an account therewith.
"Paying Agent" has the meaning provided in Section 2.03,
except that, for the purposes of Article Eight, the Paying Agent shall not be
the Company or a Subsidiary of the Company or an Affiliate of any of them. The
term "Paying Agent" includes any additional Paying Agent.
"Payment Date" means with respect to any Offer to Purchase,
the date of purchase of the Notes pursuant thereto, which shall be a Business
Day no earlier than 30 days nor later than 60 days from the date a notice is
mailed pursuant to such Offer to Purchase.
"Permitted Customer Advances" means obligations of the Company
or any Restricted Subsidiary to repay money received by the Company or such
Restricted Subsidiary from customers as bona fide prepayment for services to be
provided by, or purchases to be made from, the Company or such Restricted
Subsidiary.
"Permitted Investment" means (i) an Investment in the Company
or a Restricted Subsidiary or a Person which will, upon the making of such
Investment, become a Restricted Subsidiary or be merged or consolidated with or
into or transfer or convey all or substantially all its assets to, the Company
or a Restricted Subsidiary; provided that such person's primary business is
related, ancillary or complementary to the businesses of the Company and its
Restricted Subsidiaries on the date of such Investment; (ii) Temporary Cash
Investments; (iii) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as expenses
in accordance with GAAP; and (iv) stock, obligations or securities received in
satisfaction of judgments.
"Permitted Liens" means (i) Liens for taxes, assessments,
governmental charges or claims that are being contested in good faith by
appropriate legal proceedings promptly instituted and diligently conducted and
for which a reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made; (ii) statutory and common law
Liens of landlords and carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen or other similar Liens arising in the ordinary course of
business and with respect to amounts not yet delinquent or being contested in
good faith by appropriate legal proceedings promptly instituted and diligently
conducted and for which a reserve or other appropriate provision, if any, as
shall be required in conformity with GAAP shall have been made; (iii) Liens
incurred or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security; (iv) Liens incurred
or deposits made to secure the performance of tenders, bids, leases, statutory
or regulatory obligations, bankers' acceptances, surety and appeal bonds,
government contracts, performance and return-of-money bonds and other
obligations of a similar nature incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money); (v) easements,
rights-of-way, municipal and zoning ordinances and similar charges,
encumbrances, title defects or other irregularities that do not materially
interfere with the ordinary course of business of the Company or any of its
Restricted Subsidiaries; (vi) Liens (including extensions and renewals thereof)
upon real or personal property acquired after the Closing Date; provided that
(a) such Lien is created solely for the purpose of securing Indebtedness
Incurred, in accordance with Section 4.03 of this Indenture, (1) to finance the
cost (including the cost of improvement, transportation, development and design,
installation, integration or construction) of the item of property or assets
subject thereto and such Lien is created prior to, at the time of or within six
months after the later of the acquisition, the completion of construction or the
commencement of full operation of such property or (2) to refinance any
Indebtedness previously so secured, (b) the principal amount of the Indebtedness
secured by such Lien does not exceed 100% of such cost (plus, in the case of any
refinancing Indebtedness referred to in clause (vi)(a)(2) above, premiums,
accrued interest, fees and expenses), (c) any Lien permitted by this clause
shall not extend to or cover any property or assets other than such item of
property or assets and any improvements on such item and (d) such Liens may not
relate to Orion 2 or Orion 3; (vii) leases or subleases granted to others that
do not materially interfere with the ordinary course of business of the Company
and its Restricted Subsidiaries, taken as a whole; (viii) Liens encumbering
property or assets under construction arising from progress or partial payments
by a customer of the Company or its Restricted Subsidiaries relating to such
property or assets; (ix) any interest or title of a lessor in the property
subject to any Capitalized Lease or operating lease; (x) Liens arising from
filing Uniform Commercial Code financing statements regarding leases; (xi) Liens
on property of, or on shares of Capital Stock or Indebtedness of, any Person
existing at the time such Person becomes, or becomes a part of, any Restricted
Subsidiary; provided that such Liens do not extend to or cover any property or
assets of the Company or any Restricted Subsidiary other than the property or
assets acquired; (xii) Liens in favor of the Company or any Restricted
Subsidiary; (xiii) Liens arising from the rendering of a final judgment or order
against the Company or any Restricted Subsidiary of the Company that does not
give rise to an Event of Default; (xiv) Liens securing reimbursement obligations
with respect to letters of credit that encumber documents and other property
relating to such letters of credit and the products and proceeds thereof; (xv)
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;
(xvi) Liens encumbering customary initial deposits and margin deposits, and
other Liens that are within the general parameters customary in the industry and
incurred in the ordinary course of business, in each case, securing Indebtedness
under Interest Rate Agreements and Currency Agreements and forward contracts,
options, future contracts, futures options or similar agreements or arrangements
designed solely to protect the Company or any of its Restricted Subsidiaries
from fluctuations in interest rates, currencies or the price of commodities;
(xvii) Liens arising out of conditional sale, title retention, consignment or
similar arrangements for the sale of goods entered into by the Company or any of
its Restricted Subsidiaries in the ordinary course of business in accordance
with the past practices of the Company and its Restricted Subsidiaries prior to
the Closing Date; (xviii) Liens on or sales of receivables; (xix)
Liens (including Liens securing Prepayment Supports) on amounts of money or
Temporary Cash Investments that each represent bona fide prepayments of at least
$5 million on agreements for the long-term sale or lease of capacity on any
satellite owned by the Company or a Restricted Subsidiary, but only to the
extent that the amount of money or Temporary Cash Investments subject to any
such Lien does not exceed the amount of such prepayment and reasonable interest
thereon; (xx) Liens encumbering contracts between the Company or any Restricted
Subsidiary and any third party customer relating to the use of a VSAT owned by
the Company or any Restricted Subsidiary but only if, and so long as, the
Indebtedness secured by any such Lien is also secured by a Lien permitted under
clause (vi) of this definition encumbering such VSAT; and (xxi) Liens upon a
satellite and components thereof during the period in which such satellite is
being constructed, provided that (a) such Liens (1) are for the benefit of only
the manufacturer of such satellite or components and (2) secure only the
obligation of the Company or any Restricted Subsidiary to pay the purchase price
for such satellite or components and (b) such Liens are actually released upon,
or prior to, the completion of construction of such satellite and prior to the
launch or commencement of full operations of such satellite.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Pledge Account" means an account established with the Trustee
pursuant to the terms of the Pledge Agreement for the deposit of the Pledged
Securities purchased by the Company with a portion of the proceeds from the sale
of the Senior Notes.
"Pledge Agreement" means the Collateral Pledge and Security
Agreement, dated as of the date of this Indenture, made by the Company in favor
of the Trustee, governing the disbursement of funds from the Pledge Account, as
such Agreement may be amended, restated, supplemented or otherwise modified from
time to time.
"Pledged Securities" means the securities originally purchased
by the Company with a portion of the proceeds from the sale of the Senior Notes,
which shall consist of Government Securities, to be deposited in the Pledge
Account, all in accordance with the terms of the Pledge Agreement.
"Prepayment Support" means the reimbursement obligations of
the Company or any Restricted Subsidiary in connection with any fully secured
letter of credit or similar credit support issued by any third party in
connection with the obligations of the Company or such Restricted Subsidiary to
repay amounts received as bona fide prepayments of at least $5 million on
agreements for the long-term sale or lease of capacity on a satellite owned by
the Company or a Restricted Subsidiary.
"Redemption Date," when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Indebtedness" means Indebtedness of the Company
which is (i) subordinated in right of payment of the Notes on terms
substantially similar to the terms
contained, on the Closing Date, in Article 14 of the Debenture Purchase
Agreement (but excluding the terms contained, on the Closing Date, in Section
14.7 of the Debenture Purchase Agreement) and (ii) Incurred for the sole purpose
of financing the redemption, repurchase or acquisition of shares of Series A
Preferred Stock or Series B Preferred Stock.
"Redemption Price," when used with respect to any Note to be
redeemed, means the price at which such Note is to be redeemed pursuant to this
Indenture.
"Register" has the meaning provided in Section 2.03.
"Registrar" has the meaning provided in Section 2.03.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the [_______] or [_______] (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date.
"Related Person" means any holder (or any Affiliate of such
holder) of 5% or more of any class of Capital Stock of the Company and any
Affiliate of the Company or any Restricted Subsidiary.
"Released Indebtedness" means, with respect to any Asset Sale,
Indebtedness (i) which is owed by the Company or any Restricted Subsidiary (the
"Obligors") prior to such Asset Sale, (ii) which is assumed by the purchaser or
any affiliate thereof in connection with such Asset Sale and (iii) with respect
to the Obligors receive written, unconditional releases from each creditor, no
later than the closing date of such Asset Sale.
"Responsible Officer," when used with respect to the Trustee,
means the chairman or any vice chairman of the board of directors, the chairman
or any vice chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, any
assistant vice president, the secretary, any assistant secretary, the treasurer,
any assistant treasurer, the cashier, any assistant cashier, any trust officer
or assistant trust officer, the controller or any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"Restricted Payments" has the meaning provided in Section
4.04.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Group and its
successors.
"Securities Act" means the United States Securities Act of
1933, as amended.
"Separation Date" means the earliest of (i) six months after
the date of issuance, (ii) such date as the Underwriters may, in their
discretion, deem appropriate and (ii) in the event of an Offer to Purchase, the
date the Company mails notice thereof to holders of the Notes.
"Series A Preferred Stock" means the Company's Series A 8%
Cumulative Redeemable Convertible Preferred Stock, par value $0.01 per share.
"Series B Preferred Stock" means the Company's Series B 8%
Cumulative Redeemable Convertible Preferred Stock, par value $0.01 per share.
"Significant Subsidiary" means, at any date of determination,
any Restricted Subsidiary that, together with its Subsidiaries, (i) for the most
recent fiscal year of the Company, accounted for more than 10% of the
consolidated revenues of the Company and its Restricted Subsidiaries or (ii) as
of the end of such fiscal year, was the owner of more than 10% of the
consolidated assets of the Company and its Restricted Subsidiaries, all as set
forth on the most recently available consolidated financial statements of the
Company for such fiscal year.
"Specified Date" means any Redemption Date, any Payment Date
for an Offer to Purchase pursuant to Section 4.11 or Section 4.13 or any date on
which the Securities are due and payable after an Event of Default.
"Stated Maturity" means, (i) with respect to any debt
security, the date specified in such debt security as the fixed date on which
the final installment of principal of such debt security is due and payable and
(ii) with respect to any scheduled installment of principal of or interest on
any debt security, the date specified in such debt security as the fixed date on
which such installment is due and payable.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
voting power of the outstanding Voting Stock is owned, directly or indirectly,
by such Person and one or more other Subsidiaries of such Person.
"Subsidiary Guarantee" means the Guarantee of the Notes by any
Subsidiary of the Company substantially in the form of Exhibit F hereto.
"Successful Launch" means, with respect to any satellite, the
placing into orbit of such satellite in its assigned orbital position with at
least 40% of the transponder capacity fully operational.
"Tax" means any tax, duty, levy, impost, assessment or other
governmental charge (including penalties, interest and any other liabilities
related thereto).
"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.
"Temporary Cash Investment" means any of the following: (i)
direct obligations of the United States of America or any agency thereof or
obligations fully and unconditionally guaranteed by the United States of America
or any agency thereof, (ii) time deposit accounts, certificates of deposit and
money market deposits maturing within 180 days of the date of acquisition
thereof issued by a bank or trust company which is organized under the laws of
the United States of America, any state thereof or any foreign country
recognized by the United States, and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $50 million (or the
foreign currency equivalent thereof) and has outstanding debt which is rated "A"
(or such similar equivalent rating) or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under the
Securities Act) or any money-market fund sponsored by a registered broker dealer
or mutual fund distributor, (iii) repurchase obligations with a term of not more
than 30 days for underlying securities of the types described in clause (i)
above entered into with a bank meeting the qualifications described in clause
(ii) above, (iv) commercial paper, maturing not more than 90 days after the date
of acquisition, issued by a corporation (other than an Affiliate of the Company)
organized and in existence under the laws of the United States of America, any
state thereof or any foreign country recognized by the United States of America
with a rating at the time as of which any investment therein is made of "P-1"
(or higher) according to Xxxxx'x or "A-1" (or higher) according to S&P, and (v)
securities with maturities of six months or less from the date of acquisition
issued or fully and unconditionally guaranteed by any state, commonwealth or
territory of the United States of America, or by any political subdivision or
taxing authority thereof, and rated at least "A" by S&P or Xxxxx'x.
"TIA" or "Trust Indenture Act" means the United States Trust
Indenture Act of 1939, as amended (15 U.S. Code xx.xx. 77aaa-77bbb), as in
effect on the date this Indenture was executed, except as provided in Section
9.06.
"Trade Payables" means, with respect to any Person, any
accounts payable or any other indebtedness or monetary obligation to trade
creditors created, assumed or Guaranteed by such Person or any of its
Subsidiaries arising in the ordinary course of business in connection with the
acquisition of goods or services.
"Transaction Date" means, with respect to the Incurrence of
any Indebtedness by the Company or any of its Restricted Subsidiaries, the date
such Indebtedness is to be Incurred and, with respect to any Restricted Payment,
the date such Restricted Payment is to be made.
"TT&C Financing" means the agreement, dated November 23, 1993,
between General Electric Capital Corporation and International Satellite
Partners, L.P. ("Orion Atlantic"), relating to borrowings by Orion Atlantic.
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor replaces it in accordance with the
provisions of Article Seven of this Indenture and thereafter means such
successor.
"Underwriters" has the meaning as set forth in the
Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement date
[ ] 1997 between the Company and the Manager, for itself and the other
Underwriters named therein.
"Units" has the meaning provided in the recitals to this
Indenture.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors in the manner provided below and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate
any Restricted Subsidiary (including any newly acquired or newly formed
Subsidiary of the Company) to be an Unrestricted Subsidiary unless such
Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property
of, the Company or any Restricted Subsidiary; provided that (A) any Guarantee by
the Company or any Restricted Subsidiary of any Indebtedness of the Subsidiary
being so designated shall be deemed an "Incurrence" of such Indebtedness and an
"Investment" by the Company or such Restricted Subsidiary (or both, if
applicable) at the time of such designation; (B) either (I) the Subsidiary to be
so designated has total assets of $1,000 or less or (II) if such Subsidiary has
assets greater than $1,000, such designation would be permitted under the
Section 4.04 of this Indenture, and (C) if applicable, the Incurrence of
Indebtedness and the Investment referred to in clause (A) of this proviso would
be permitted under the Section 4.03 and Section 4.04 of this Indenture. The
Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary; provided that immediately after giving effect to such designation
(x) the Company could Incur $1.00 of additional Indebtedness under the first
paragraph of Section 4.03 of this Indenture and (y) no Default or Event of
Default shall have occurred and be continuing. Any such designation by the Board
of Directors shall be evidenced to the Trustee by promptly filing with the
Trustee a copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"Voting Stock" means, with respect to any Person, Capital
Stock of any class or kind ordinarily having the power to vote for the election
of directors, managers or other voting members of the governing body of such
Person.
"Warrants" means the warrants to purchase Common Stock of the
Company issued as part of a unit with each of the Notes and the Senior Discount
Notes.
"Wholly Owned" means, with respect to any Subsidiary of any
Person, the ownership of all of the outstanding Capital Stock of such Subsidiary
(other than any director's qualifying shares or Investments by foreign nationals
mandated by applicable law) by such Person or one or more Wholly Owned
Subsidiaries of such Person.
SECTION 1.02. Incorporation by Reference of Trust Indenture
Act . Whenever this Indenture refers to a provision of the TIA, such provision
is incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by a rule of the
Commission and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. Rules of Construction . Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in
the plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(vii) all references to Sections, Articles or Exhibits refer
to Sections, Articles or Exhibits of this Indenture unless otherwise
indicated; and
(viii) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement or successor
sections of the Securities Act or rules adopted by the Commission from
time to time.
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating . (a) Global Notes. The Notes
offered and sold shall be issued in the form of one or more fully registered
Notes in global form ("Global Notes"), which shall be deposited on behalf of the
purchasers of the Notes represented thereby with the at its New York corporate
trust office, duly executed by the Company and authenticated
by the Trustee as hereinafter provided. The Notes in definitive form
("Certificated Notes") shall not be issued except as provided in Section
2.07(a). The aggregate principal amount of each of the Global Notes may from
time to time be increased or decreased by adjustments made on the records of the
Trustee as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes
as shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges, redemptions and transfers of interests therein in accordance
with the terms of this Indenture. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the principal amount of outstanding
Notes represented thereby shall be made by the Trustee in accordance with
instructions given by the Holder thereof as required by Section 2.07 hereof.
Except as set forth in Section 2.07(a) hereof, the Global
Notes may not be transferred except as a whole by the Depositary to a nominee of
the Depositary or by the nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the nominee of the Depositary or by the
Depositary of any such nominee to a successor of the Depositary or a nominee of
each successor.
(b) Book-Entry Provisions. The Company shall execute and the
Trustee shall, in accordance with this Section 2.01(b) and Section 2.02 hereof,
authenticate and deliver the Global Notes to the Depositary.
Upon receipt of each Global Note authenticated and delivered
by the Trustee, the Depositary shall credit, on its internal book-entry
registration and transfer system, its Participant's accounts with the respective
interests owned by such Participants. Beneficial ownership in the Global Notes
shall be limited to Participants and Indirect Participants.
So long as the Depositary is the registered holder of any
Global Note, the Participants and Indirect Participants shall have no rights
under this Indenture or under any Global Note with respect to such Global Note
held on their behalf by the Depositary, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of such Global Note for the purpose of receiving payment of or on account
of the principal of and, subject to the provisions of this Indenture, interest
on the Global Notes and for all other purposes. Notwithstanding the foregoing,
nothing herein shall impair the operation of customary practices of the
Depositary governing the exercise of the rights of an owner of a beneficial
interest in any Global Note. No beneficial owner of an interest in any Global
Note shall be able to transfer such interest except in accordance with the
Applicable Procedures.
(c) Note Forms. The provisions of the form of Global Note
contained in Exhibits A hereto are incorporated herein by reference.
(d) Dating. Each Note shall be dated the date of its
authentication.
SECTION 2.02. Execution and Authentication. Any director of
the Company shall execute the Notes on behalf of the Company by manual or
facsimile signature. The Company's common seal may be reproduced on the Notes
and may be in facsimile form.
If the director whose manual or facsimile signature is on a
Note no longer holds that office at the time the Trustee authenticates the Note
or at any time thereafter, the Note nevertheless shall be valid.
A Note shall not be valid until an authorized officer of the
Trustee manually signs the certificate of authentication on the Note. Such
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall authenticate Notes for original issue in an
aggregate principal amount at maturity not to exceed $[ ] upon receipt of a
certificate signed by any Officer or attorney-in-fact therefor directing the
Trustee to authenticate the Notes. The Global Notes shall be issuable only in
fully registered form and the Certificated Notes shall be issuable only in
registered form. The Notes shall be issued without coupons and only in
denominations of U.S. $1,000 principal amount at maturity or any integral
multiple thereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. Such authenticating agent shall have the
same rights as the Trustee in any dealings hereunder with the Company or with
any of the Company's Affiliates.
SECTION 2.03. Registrar and Paying Agent. The Company shall
maintain an office or agency where Certificated Notes may be presented for
registration of transfer or for exchange (the "Registrar"), an office or agency
where Notes may be presented for payment (the "Paying Agent"), and an office or
agency where notices and demands to or upon the Company in respect of the Notes
and this Indenture may be served, in each case, located in the Borough of
Manhattan, The City of New York, State of New York. The Registrar shall keep a
register containing the names and addresses of all Holders (the "Register") and
of the transfer and exchange of Certificated Notes. Any notice to be given under
this Indenture or under the Notes by the Trustee or the Company to Holders shall
be mailed by first class mail to each Holder at its address as it appears at the
time of such mailing in the Register. The Company may have one or more
co-Registrars and one or more additional paying agents. The term "Paying Agent"
includes any additional paying agent. Except as otherwise provided herein, the
Company or any Subsidiary thereof may act as Paying Agent. The Company may also
from time to time designate one or more other offices or agencies where the
Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the
name and address of any such Agent. If the Company fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 7.07.
The Company initially appoints the Corporate Trust Office of
the Trustee in the Borough of Manhattan located at the address set forth in
Section 11.02 as Registrar, Paying Agent and agent for service of notices and
demands in connection with the Notes and this Indenture.
SECTION 2.04. Holders to Be Treated as Owners; Payments of
Interest . (a) The Company, the Paying Agent, the Registrar, the Trustee and any
agent of the Company, the Paying Agent, the Registrar or the Trustee may deem
and treat each Holder of a Note as the absolute owner of such Note for the
purpose of receiving payment of or on account of the principal of and, subject
to the provisions of this Indenture, and interest on such Note and for all other
purposes. Neither the Company, the Paying Agent, the Registrar, the Trustee nor
any agent of the Company, the Paying Agent, the Registrar or the Trustee shall
be affected by any notice to the contrary. All such payments so made to any such
Person, or upon his order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for moneys payable
upon any Note.
(b) The Holder of Certificated a Note at the close of business
on the Regular Record Date with respect to any Interest Payment Date shall be
entitled to receive the interest payable on such Interest Payment Date
notwithstanding any transfer or exchange of such Certificated Note subsequent to
the Regular Record Date and prior to such Interest Payment Date, except if and
to the extent the Company shall default in the payment of the interest due on
such Interest Payment Date, in which case such defaulted interest shall be paid
in accordance with Section 2.13; provided that, in the event of an exchange of a
Certificated Note for a beneficial interest in any Global Note subsequent to a
Regular Record Date or any special record date and prior to or on the related
Interest Payment Date, any payment of interest payable on such payment date with
respect to any such Certificated Note shall be made to the Person in whose name
such Certificated Note was registered on such record date. Payments of interest
on the Global Notes will be made to the Holder of the Global Note on each
Interest Payment Date; provided that, in the event of an exchange of all or a
portion of the Global Note for Certificated Notes subsequent to the Regular
Record Date or any special record date and prior to or on the related Interest
Payment Date or other payment date under Section 2.13, any payment of interest
payable on such payment date with respect to the Certificated Note shall be made
to the Holder of the Global Note.
(c) The Trustee shall pay interest to the Depositary, with
respect to any Global Note held by the Depositary, in accordance with
instructions received from the at least five business days before the applicable
Interest Payment Date.
SECTION 2.05. Paying Agent to Hold Money in Trust. The Company
shall require each Paying Agent other than the Trustee to agree in writing that
such Paying Agent will hold in trust for the benefit of the Holders or the
Trustee all money held by the Paying Agent for the payment of principal of or
interest on the Notes (whether such money has been paid to it by the Company or
any other obligor on the Notes), and the Company and the Paying Agent shall
notify the Trustee of any default by the Company (or any other obligor on the
Notes) in making any such payment. Unless the Company or any Subsidiary is the
Paying Agent, money held in trust by the Paying Agent need not be segregated
except as required by law and in no event shall the Paying Agent be liable for
any interest on any money received by it hereunder. The Company at any time may
require the Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed and the Trustee may at any time during the continuance
of any Event of Default specified in Section 6.01(a) or (b), upon written
request to the Paying Agent, require such Paying Agent to pay forthwith all
money so held by it to the Trustee and to account for any funds disbursed. Upon
making such payment, the Paying Agent shall have no further liability for the
money delivered to the Trustee. If the Company or any Subsidiary of the Company
acts as Paying Agent it shall, on or before each due date of the principal of or
interest on the Notes, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
SECTION 2.06. Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
from the Registrar of the names and addresses of the Holders of Notes. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee at least
five Business Days before each Interest Payment Date, and at such other times as
the Trustee may request in writing, a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of the Holders of
Notes, if any.
SECTION 2.07. Transfer and Exchange. (a) Transfer and Exchange
of Global Notes. Except as provided below, transfers of Global Notes shall be
limited to transfers of such Global Notes in whole, but not in part, to the
Depositary. Certificated Notes shall be transferred to all beneficial owners in
exchange for their beneficial interests in the Global Notes if (i) the
Depositary or Company delivers to the Trustee notice from the Depositary that it
is unwilling or unable to continue to act as Depositary for the Global Notes or
at any time ceases to be a clearing agency registered under the Exchange Act
and, in either case, a successor Depositary is not appointed by the Company
within 120 days after the date of such notice from the Depositary; or (ii) the
Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Certificated Notes and delivers a written
notice to such effect to the Trustee.
(i) In connection with any transfer of a portion of the
beneficial interests in the Global Notes to beneficial owners pursuant
to paragraph (a) above, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of such Global
Notes in an amount equal to the principal amount of the beneficial
interest in such
Global Notes to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Certificated Notes
of like tenor and amount.
(ii) In connection with the transfer of an entire Global Note
to beneficial owners pursuant to paragraph (a) above, the Global Note
shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, and the Trustee shall authenticate and
deliver, to each beneficial owner identified by the Depositary in
exchange for its beneficial interest in the Global Note an equal
aggregate principal amount of Certificated Notes of authorized
denominations.
(b) Transfer and Exchange of Beneficial Interests in the
Global Note. The transfer and exchange of beneficial interests in the
Global Notes shall be effected through the Depositary, in accordance
with this Indenture and Applicable Procedures of the Depositary
therefor.
(c) Transfer and Exchange of Certificated Notes. When
Certificated Notes are presented by a Holder to the Registrar with a
request to register the transfer of the Certificated Notes or to
exchange such Certificated Notes for an equal principal amount of
Certificated Notes of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested only if
the Certificated Notes are presented or surrendered for registration of
transfer or exchange and are endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing
and upon receipt of such certificates.
(d) Legends.
(i) Global Note Legend. Each Global Note shall bear a legend
in substantially the following form:
"THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE,
(II) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (III) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF ORION NEWCO SERVICES, INC."
(ii) Unit Legend. Each Note issued prior to the Separation
Date shall bear the following legend (the "Unit Legend") on the face
thereof:
"THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART
OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF $[ ] PRINCIPAL
AMOUNT OF THE NOTES AND ONE WARRANT (EACH, A "WARRANT" AND
COLLECTIVELY, THE "WARRANTS") INITIALLY ENTITLING THE HOLDER THEREOF TO
PURCHASE [ ] SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE, (THE
"COMMON STOCK")."
(e) General Provisions Relating to All Transfers and
Exchanges. (i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and Certificated
Notes upon the Company's order or at the Registrar's request.
(i) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any stamp or transfer tax or similar governmental charge
payable in connection therewith (other than any such stamp or transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.11, 3.07, 4.11, 4.13 and 9.04 hereof).
(ii) All Global Notes and Certificated Notes issued upon any
registration of transfer or exchange of Global Notes or Certificated Notes shall
be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Global Notes or Certificated
Notes surrendered upon such registration of transfer or exchange.
(iii) The Company shall not be required (A) to issue, to
register the transfer of or to exchange Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.03 hereof and ending at the close of business on the
day of selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding Interest Payment
Date.
(iv) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on such
Notes and for all other purposes, and neither the Trustee, any Agent nor the
Company shall be affected by notice to the contrary.
(v) The Trustee shall authenticate Global Notes and
Certificated Notes in accordance with the provisions of Section 2.02 hereof.
SECTION 2.08. Replacement Notes . If a mutilated Certificated
Note is surrendered to the Registrar or the Trustee, if a mutilated Global Note
is surrendered to the Company or the Trustee or if the Company and the Trustee
receive evidence to their satisfaction that any Note has been lost, destroyed or
stolen, the Company shall issue and the Trustee shall
authenticate a replacement Note in such form as the Notes mutilated, lost,
destroyed or wrongfully taken if (i) in the case of a lost, destroyed or stolen
Note, the Holder of such Note furnishes to the Company, the Trustee and, in the
case of a Certificated Note, the Registrar, evidence reasonably acceptable to
them of the ownership and the destruction, loss or theft of such Note and (ii)
an indemnity bond shall be posted by the Holder requesting replacement,
sufficient in the judgment of each to protect the Company, the Registrar (in the
case of a Certificated Note ), the Trustee or any Agent from any loss that any
of them may suffer if such Note is replaced. Prior to the issuance of any such
replacement Note, the Trustee shall notify the Company of any request therefor.
The Company may charge such Holder for the Company's out-of-pocket expenses in
replacing such Note and the Trustee may charge the Holder for the Trustee's
expenses in replacing such Note. Every replacement Note shall constitute an
additional obligation of the Company and shall be entitled to all of the
benefits of this Indenture equally and proportionally with all other Notes
issued hereunder. The provisions of this Section 2.08 are exclusive and shall
preclude (to the extent permitted by applicable law) all other rights and
remedies with respect to the replacement of mutilated, lost, destroyed or stolen
Notes.
SECTION 2.09. Outstanding Notes . The Notes outstanding at any
time are all Notes that have been authenticated by the Trustee except for (a)
those cancelled by it, (b) those delivered to it for cancellation, (c) to the
extent set forth in Sections 8.01 and 8.02, on or after the date on which the
conditions set forth in Section 8.01 or 8.02 have been satisfied, those Notes
theretofore authenticated and delivered by the Trustee hereunder and (d) those
described in this Section 2.09 as not outstanding. Subject to Section 2.10, a
Note does not cease to be outstanding because the Company or one of its
Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser in whose hands such Note is a
legal, valid and binding obligation of the Company.
If the principal amount of any Note is considered to be paid
under Section 4.01, it ceases to be outstanding and interest thereon shall cease
to accrue.
If the Paying Agent holds, in its capacity as such, on the
Stated Maturity of a Note, on any Redemption Date or on any Payment Date, money
sufficient to pay all accrued interest and Liquidated Damages and principal with
respect to such Notes payable on that date and is not prohibited from paying
such money to the Holders thereof pursuant to the terms of this Indenture, then
on and after that date such Notes cease to be outstanding and interest on them
ceases to accrue.
SECTION 2.10. Treasury Notes . In determining whether the
Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent or any amendment, modification or other change to
this Indenture, Notes owned by the Company or an Affiliate of the Company shall
be disregarded as though they were not outstanding, except that for the purposes
of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent or any amendment, modification or other change
to this Indenture, only Notes that the Trustee actually knows are so owned shall
be so disregarded.
SECTION 2.11. Temporary Notes . Until definitive Notes are
prepared and ready for delivery, the Company may prepare and the Trustee shall,
upon receipt of a Company Order, authenticate temporary Notes. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate definitive
Notes in exchange for temporary Notes. Until such exchange, temporary Notes
shall be entitled to the same rights, benefits and privileges as definitive
Notes.
SECTION 2.12. Cancellation . All Notes surrendered for
payment, redemption, registration of transfer or exchange shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Notes previously authenticated hereunder which the Company has not issued
and sold, and all Notes so delivered shall be promptly cancelled by the Trustee.
If the Company shall so acquire any of the Notes, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Notes unless and until the same are surrendered to the
Trustee for cancellation. No Notes shall be authenticated in lieu of or in
exchange for any Notes cancelled as provided in this Section 2.12, except as
expressly permitted by this Indenture. All cancelled Notes held by the Trustee
shall be disposed of by the Trustee in accordance with its customary procedures
and certification of their disposal delivered to the Company unless by Company
Order the Company shall direct that cancelled Notes be returned to it.
SECTION 2.13. Defaulted Interest . If the Company defaults on
a payment of interest on the Notes, it shall pay the defaulted interest plus (to
the extent permitted by law) any interest payable on the defaulted interest in
accordance with the terms hereof, to (a) the Persons who are Holders of
Certificated Notes, if any, on a subsequent special record date, which date
shall be at least five Business Days prior to the payment date for such
defaulted interest, and (b) if any Global Notes are outstanding on such payment
date, to the Holder of the Global Notes on such payment date. The Company shall
fix such special record date and payment date in a manner reasonably
satisfactory to the Trustee. At least 15 days before such special record date,
the Company shall mail to each Holder of Certificated Notes, if any, and if the
Global Notes are still outstanding, to the Holder thereof and the Depositary, a
notice that states the special record date, the payment date and the amount of
defaulted interest and interest payable on such defaulted interest to be paid.
SECTION 2.14. CUSIP, CINS or ISIN Number . The Company in
issuing the Notes may use a "CUSIP," "CINS" or "ISIN" number, and if so, such
CUSIP, CINS or ISIN number shall be included in notices of redemption,
repurchase or exchange as a convenience to Holders, provided, however, that any
such notice may state that no representation is made as to the correctness or
accuracy of the CUSIP, CINS or ISIN number printed in the notice or on the
Notes, and that reliance may be placed only on the other identification numbers
printed on the Notes; and provided, further that failure to use CUSIP, CINS or
ISIN numbers in any notice of redemption, repurchase or exchange shall not
affect the validity or sufficiency of such notice. The Company will promptly
notify the Trustee of any change in the CUSIP, CINS or ISIN number.
SECTION 2.15. Deposit of Moneys . Prior to 12:00 noon, New
York City time, on each Interest Payment Date, at the Stated Maturity of the
Notes, on each Redemption Date, on each Payment Date and on the Business Day
immediately following any acceleration of the Notes pursuant to Section 6.02,
the Company shall deposit with the Paying Agent in immediately available funds
money (in United States dollars) sufficient to make cash payments, if any, due
on such Interest Payment Date, Stated Maturity, Redemption Date, Payment Date or
Business Day, as the case may be, in a timely manner which permits the Trustee
to remit payment to the Holders on such Interest Payment Date, Stated Maturity,
Redemption Date, Payment Date or Business Day, as the case may be.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Right of Redemption . The Notes will be
redeemable, at the Company's option, in whole or in part, at any time or from
time to time, on or after [ ], 2002 and prior to maturity, upon not less than 30
nor more than 60 days' prior notice mailed by first class mail to each Holders'
last address as it appears in the Note Register, at the following Redemption
Prices (expressed in percentages of principal amount at maturity), plus accrued
and unpaid interest, if any, to the Redemption Date (subject to the right of
Holders of record on the relevant Regular Record Date that is on or prior to the
Redemption Date to receive interest due on an Interest Payment Date), if
redeemed during the 12-month period commencing [ ], of the years set forth
below:
Year Redemption Price
---- ----------------
2002 [_____]%
2003 [_____]%
2004 and thereafter 100.000%
SECTION 3.02. Notices to Trustee . If the Company elects to
redeem Notes pursuant to Section 3.01, it shall notify the Trustee in writing of
(i) the clause of the Indenture pursuant to which the redemption shall occur,
(ii) the Redemption Date, (iii) the principal amount at stated maturity of Notes
to be redeemed plus interest accrued thereon, if any, to the Redemption Date and
(iv) the Redemption Price.
The Company shall give each notice provided for in this
Section 3.02 in an Officers' Certificate at least 15 days before mailing the
notice to Holders referred to in Section 3.01.
SECTION 3.03. Selection of Notes to Be Redeemed . In the case
of any partial redemption, selection of the Notes for redemption will be made by
the Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not listed on a national securities exchange, on a pro rata basis, by lot or by
such other method as the Trustee in its sole discretion shall deem to be fair
and appropriate; provided that no Note of $1,000 in principal amount at maturity
or less shall be redeemed in part. If any Note is to be redeemed in part only,
the notice of redemption relating to such Note shall state the portion of the
principal amount at maturity thereof to be redeemed. A new Note in principal
amount at maturity equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon cancellation of the original Note.
SECTION 3.04. Notice of Redemption . With respect to any
redemption of Notes pursuant to Section 3.01, at least 30 days but not more than
60 days before a Redemption Date, the Company shall mail a notice of redemption
by first class mail to each Holder whose Notes are to be redeemed at such
Holder's registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the name and address of the Paying Agent;
(d) that Notes called for redemption must be surrendered to
the Paying Agent in order to collect the Redemption Price;
(e) the paragraph of the Notes and/or the Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed;
(f) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on
and after the Redemption Date and the only remaining right of the
Holders is to receive payment of the
Redemption Price plus accrued interest to the Redemption Date upon
surrender of the Notes to the Paying Agent;
(g) that, if any Note is being redeemed in part, the portion
of the principal amount (equal to $1,000 in principal amount or any
integral multiple thereof) of such Note to be redeemed and that, on and
after the Redemption Date, upon surrender of such Note, a new Note or
Notes in principal amount equal to the unredeemed portion thereof will
be reissued; and
(h) that, if any Note contains a CUSIP, CINS, ISIN or other
identification number as provided in Section 2.14, no representation is
being made as to the correctness of the CUSIP, CINS, ISIN or other
identification number either as printed on the Notes or as contained in
the notice of redemption and that reliance may be placed only on the
other identification numbers printed on the Notes.
At the Company's request contained in a Company Order (which
request may be revoked by the Company at any time prior to the time at which the
Trustee shall have given such notice to the Holders), made to the Trustee at
least 15 days before mailing the notice to Holders referred to in Section 3.01,
the Trustee shall give such notice of redemption in the name and at the expense
of the Company. If, however, the Company gives such notice to the Holders, the
Company shall concurrently deliver to the Trustee an Officers' Certificate
stating that such notice has been given. Notice of redemption shall be deemed to
be given when mailed, whether or not the Holder receives the notice. In any
event, failure to give such notice, or any defect therein, shall not affect the
validity of the proceedings for the redemption of Notes held by Holders to whom
such notice was properly given.
SECTION 3.05. Deposit of Redemption Price . On or prior to any
Redemption Date, the Company shall deposit with the Paying Agent (or, if the
Company is acting as its own Paying Agent, shall segregate and hold in trust as
provided in section 2.05 )money sufficient to pay the Redemption Price of, and
accrued and unpaid interest on all Notes to be redeemed on that date other than
Notes or portions thereof called for redemption on that date that have been
delivered by the Company to the Trustee for cancellation.
SECTION 3.06. Payment of Notes Called for Redemption . If
notice of redemption has been given to Holders in the manner provided above, the
Notes or portion of Notes specified in such notice to be redeemed shall become
irrevocably due and payable on the Redemption Date at the Redemption Price
stated therein, together with accrued interest to such Redemption Date, and on
and after any such Redemption Date (unless the Company shall default in the
payment of Notes to be redeemed on such date at the Redemption Price, plus
accrued interest to the Redemption Date, in which case the principal, until
paid, shall bear interest from the Redemption Date at the rate prescribed in the
Notes), such Notes shall cease to accrue interest. Upon surrender of any Note
for redemption in accordance with a notice of redemption, such Note shall be
paid and redeemed by the Company at the Redemption Price, plus accrued interest
to the Redemption Date, provided that installments of interest whose Stated
Maturity is
on or prior to the Redemption Date shall be payable to the Holders registered as
such at the close of business on the relevant Regular Record Date.
SECTION 3.07. Notes Redeemed in Part . Upon cancellation of
any Note that is redeemed in part, the Company shall issue and the Trustee shall
authenticate and deliver to the Holder a new Note equal in principal amount to
the unredeemed portion of such surrendered Note.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes . The Company shall pay the
principal of, premium, if any, and interest on the Notes on the dates and in the
manner provided in the Notes and this Indenture. An installment of principal,
premium, interest shall be considered paid on the date due if the Trustee or
Paying Agent (other than the Company, a Subsidiary of the Company, or any
Affiliate of any of them) holds as of 10:00AM New York City time on the due date
money deposited by the Company in immediately available funds and designated for
and sufficient to pay the installment.
SECTION 4.02. Issuances of Guarantees by New Restricted
Subsidiaries. The Company will provide to the Trustee, on the date that any
Person becomes a Restricted Subsidiary, a supplemental indenture to this
Indenture, executed by such new Restricted Subsidiary, providing for a full and
unconditional guarantee on a senior basis by such new Restricted Subsidiary of
the Company's obligations under the Notes and this Indenture; provided that, in
the case of any new Restricted Subsidiary that becomes a Restricted Subsidiary
through the acquisition of a majority of its voting Capital Stock by the Company
or any other Restricted Subsidiary, such guarantee may be subordinated to the
extent required by the obligations of such new Restricted Subsidiary existing on
the date of such acquisition that were not incurred in contemplation of such
acquisition.
SECTION 4.03. Limitation on Indebtedness . (a) The Company
will not, and will not permit any of its Restricted Subsidiaries to, Incur any
Indebtedness (other than the Notes and Indebtedness existing on the Closing
Date); provided that the Company may Incur Indebtedness if, after giving effect
to the Incurrence of such Indebtedness and the receipt and application of the
proceeds therefrom, the Consolidated Leverage Ratio would be greater than zero
and less than 6 to 1.
Notwithstanding the foregoing, the Company and any Restricted
Subsidiary (except as specified below) may Incur each and all of the following:
(i) Indebtedness outstanding at any time that is (A) Incurred
to finance the purchase, construction, launch, insurance for and other
costs with respect to Orion 2 and Orion 3 or (B) in an aggregate
principal amount not to exceed (1) until Orion 2 or Orion 3 has been
successfully delivered in orbit, $50 million, (2) after the first of
Orion 2 or Orion 3 has been successfully delivered in orbit, $100
million and (3) after the second
of Orion 2 or Orion 3 has been successfully delivered in orbit, $150
million, in each case under this clause (i)(B);
(ii) Indebtedness owed (A) to the Company or (B) to any of its
Restricted Subsidiaries; provided that any event which results in any
such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
subsequent transfer of such Indebtedness (other than to the Company or
another Restricted Subsidiary) shall be deemed, in each case, to
constitute an Incurrence of such Indebtedness not permitted by this
clause (ii);
(iii) Indebtedness issued in exchange for, or the net proceeds
of which are used to refinance or refund, then outstanding
Indebtedness, other than Indebtedness Incurred under clause (i)(B),
(ii), (iv), (vi) or (viii) of this paragraph, and any refinancings
thereof in an amount not to exceed the amount so refinanced or refunded
(plus premiums, accrued interest, fees and expenses); provided that
Indebtedness the proceeds of which are used to refinance or refund the
Notes, the Note Guarantee or Indebtedness that is pari passu with, or
subordinated in right of payment to, the Notes shall only be permitted
under this clause (iii) if (A) in case the Notes or the Note Guarantee
are refinanced in part or the Indebtedness to be refinanced is pari
passu with the Notes or the Note Guarantee, such new Indebtedness, by
its terms or by the terms of any agreement or instrument pursuant to
which such new Indebtedness is outstanding, is expressly made pari
passu with, or subordinate in right of payment to, the remaining Notes
or the Note Guarantee, as the case may be, (B) in case the Indebtedness
to be refinanced is subordinated in right of payment to the Notes or
the Note Guarantee, such new Indebtedness, by its terms or by the terms
of any agreement or instrument pursuant to which such new Indebtedness
is issued or remains outstanding, is expressly made subordinate in
right of payment to the Notes or the Note Guarantee at least to the
extent that the Indebtedness to be refinanced is subordinated to the
Notes or the Note Guarantee, as the case may be, and (C) such new
Indebtedness, determined as of the date of Incurrence of such new
Indebtedness, does not mature prior to the Stated Maturity of the
Indebtedness to be refinanced or refunded, and the Average Life of such
new Indebtedness is at least equal to the remaining Average Life of the
Indebtedness to be refinanced or refunded;
(iv) Indebtedness (A) in respect of performance, surety or
appeal bonds provided in the ordinary course of business, (B) under
Currency Agreements and Interest Rate Agreements; provided that such
agreements (a) are designed solely to protect the Company or its
Subsidiaries against fluctuations in foreign currency exchange rates or
interest rates and (b) do not increase the Indebtedness of the obligor
outstanding at any time other than as a result of fluctuations in
foreign currency exchange rates or interest rates or by reason of fees,
indemnities and compensation payable thereunder and (C) arising from
agreements providing for indemnification, adjustment of purchase price
or similar obligations, or from Guarantees or letters of credit, surety
bonds or performance bonds securing any obligations of the Company or
any of its Restricted Subsidiaries pursuant to such agreements, in any
case Incurred in connection with the disposition of any business,
assets or Restricted Subsidiary of the Company (other than Guarantees
of
Indebtedness Incurred by any Person acquiring all or any portion of
such business, assets or Restricted Subsidiary of the Company for the
purpose of financing such acquisition), in a principal amount not to
exceed the gross proceeds actually received by the Company or any
Restricted Subsidiary in connection with such disposition;
(v) Indebtedness of the Company, to the extent the net
proceeds thereof are promptly (A) used to purchase Notes tendered in an
Offer to Purchase made as a result of a Change in Control or (B)
deposited to defease the Notes as described in Section 8.02 of this
Indenture; (vi) Guarantees of the Notes and Guarantees of Indebtedness
of the Company by any Restricted Subsidiary provided the Guarantee of
such Indebtedness is permitted by and made in accordance with the
Section 4.07 of this Indenture;
(vii) Indebtedness Incurred to finance the cost (including the
cost of design, development, construction, installation, improvement,
transportation or integration) of equipment (other than Orion 2 and
Orion 3) or inventory acquired by the Company or a Restricted
Subsidiary after the Closing Date;
(viii) Indebtedness of the Company not to exceed, at any one
time outstanding, two times the Net Cash Proceeds received by the
Company after the Closing Date from the issuance and sale of its
Capital Stock (other than Disqualified Stock) to a Person that is not a
Subsidiary of the Company (less the amount of such proceeds applied as
provided in clause (C)(2) of the first paragraph or clause (iii) or
(iv) of the second paragraph of the Section 4.04 of this Indenture);
provided that such Indebtedness does not mature prior to the Stated
Maturity of the Notes and has an Average Life longer than the Notes;
and
(ix) Redemption Indebtedness.
(b) Notwithstanding any other provision of this Section covenant, the
maximum amount of Indebtedness that the Company or a Restricted Subsidiary may
incur pursuant to this Section 4.03 shall not be deemed to be exceeded, with
respect to any outstanding Indebtedness, due solely to the result of
fluctuations in the exchange rates of currencies.
(c) For purposes of determining any particular amount of Indebtedness
under this Section, (1) Guarantees, Liens or obligations with respect to letters
of credit supporting Indebtedness otherwise included in the determination of
such particular amount shall not be included and (2) any Liens granted pursuant
to the equal and ratable provisions referred to in the Section 4.09 of this
Indenture shall not be treated as Indebtedness. For purposes of determining
compliance with this Section 4.03, in the event that an item of Indebtedness
meets the criteria of more than one of the types of Indebtedness described in
the above clauses, the Company, in its sole discretion, shall classify such item
of Indebtedness and only be required to include the amount and type of such
Indebtedness in one of such clauses.
(d) In the event that the Company or any Restricted Subsidiary shall
repay any Indebtedness (other than the Notes) pursuant to clause (i)(A) of
Section 4.11, the aggregate amount of Indebtedness which may otherwise be
Incurred under clauses (i)(B) and (viii) of the
second paragraph of paragraph (a) of this Section 4.03 shall be reduced by the
amount of such repayment. The Company shall designate how much of such reduction
shall be applied to each such clause.
SECTION 4.04. Limitation on Restricted Payments . The Company
will not, and will not permit any Restricted Subsidiary, directly or indirectly,
to (i) declare or pay any dividend or make any distribution on or with respect
to its Capital Stock (other than (x) dividends or distributions payable solely
in shares of its Capital Stock (other than Disqualified Stock) or in options,
warrants or other rights to acquire shares of such Capital Stock and (y) pro
rata dividends or distributions on Common Stock of Restricted Subsidiaries held
by minority stockholders, provided that such dividends do not in the aggregate
exceed the minority stockholders' pro rata share of such Restricted
Subsidiaries' net income from the first day of the fiscal quarter beginning
immediately following the Closing Date) held by Persons other than the Company
or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or
otherwise acquire for value any shares of Capital Stock of the Company, any
Guarantor or an Unrestricted Subsidiary (including options, warrants or other
rights to acquire such shares of Capital Stock) held by Persons other than the
Company and its Wholly Owned Subsidiaries, (iii) make any voluntary or optional
principal payment, or voluntary or optional redemption, repurchase, defeasance,
or other acquisition or retirement for value, of Indebtedness of the Company
that is subordinated in right of payment to the Notes or of any Guarantor that
is subordinated to the Note Guarantee (other than, in each case, the purchase,
repurchase or the acquisition of Indebtedness in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in any case
due within one year of the date of acquisition) or (iv) make any Investment,
other than a Permitted Investment, in any Person (such payments or any other
actions described in clauses (i) through (iv) being collectively "Restricted
Payments") if, at the time of, and after giving effect to, the proposed
Restricted Payment: (A) a Default or Event of Default shall have occurred and be
continuing, (B) except with respect to Investments and dividends on the Common
Stock of any Guarantor, the Company could not Incur at least $1.00 of
Indebtedness under the first paragraph of Section 4.03 or (C) the aggregate
amount of all Restricted Payments (the amount, if other than in cash, to be
determined in good faith by the Board of Directors, whose determination shall be
conclusive and evidenced by a Board Resolution) made after the Closing Date
shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted
Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss,
minus 100% of the amount of such loss) (determined by excluding income resulting
from transfers of assets by the Company or a Restricted Subsidiary to an
Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken
as one accounting period) beginning on the first day of the fiscal quarter
immediately following the Closing Date and ending on the last day of the last
fiscal quarter preceding the Transaction Date for which reports have been filed
pursuant to plus (2) the aggregate Net Cash Proceeds received by the Company or
any Guarantor after the Closing Date from the issuance and sale permitted by the
Indentures of its Capital Stock (other than Disqualified Stock) to a Person who
is not a Subsidiary of the Company or any Guarantor or from the issuance to a
Person who is not a Subsidiary of the Company or any Guarantor of any options,
warrants or other rights to acquire Capital Stock of the Company (in each case,
exclusive of any Disqualified Stock or any options, warrants or other rights
that are redeemable at the option of the holder, or are required to be redeemed,
prior to the Stated Maturity of the Notes), in each case except to the extent
such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii)
of the second paragraph under Section 4.03, plus (3) an amount equal to the net
reduction in Investments (other than reductions in Permitted Investments) in any
Person resulting from payments of interest on Indebtedness, dividends,
repayments of loans or advances, or other transfers of assets, in each case to
the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the
sale of any such Investment (except, in each case, to the extent any such
payment or proceeds are included in the calculation of Adjusted Consolidated Net
Income), or from redesignations of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the definition of
"Investments"), not to exceed, in each case, the amount of Investments
previously made by the Company or any Restricted Subsidiary in such Person or
Unrestricted Subsidiary.
The foregoing provision shall not be violated by reason of:
(i) the payment of any dividend within 60 days after the date
of declaration thereof if, at said date of declaration, such payment
would comply with the foregoing paragraph;
(ii) the redemption, repurchase, defeasance or other
acquisition or retirement for value of Indebtedness that is
subordinated in right of payment to the Notes including premium, if
any, and accrued and unpaid interest, with the proceeds of, or in
exchange for, Indebtedness Incurred under clause (iii) of the second
paragraph of part (a) of Section 4.03;
(iii) the repurchase, redemption or other acquisition of
Capital Stock of the Company (or options, warrants or other rights to
acquire such Capital Stock) in exchange for, or out of the proceeds of
a substantially concurrent offering of, shares of Capital Stock (other
than Disqualified Stock) of the Company;
(iv) the making of any principal payment or the repurchase,
redemption, retirement, defeasance or other acquisition for value of
Indebtedness of the Company which is subordinated in right of payment
to the Notes in exchange for, or out of the proceeds of, a
substantially concurrent offering of, shares of the Capital Stock of
the Company (other than Disqualified Stock);
(v) payments or distributions, to dissenting stockholders
pursuant to applicable law, pursuant to or in connection with a
consolidation, merger or transfer of assets that complies with the
provisions of the Indentures applicable to mergers, consolidations and
transfers of all or substantially all of the property and assets of the
Company;
(vi) the repurchase, redemption or other acquisition of
outstanding shares of Series A Preferred Stock or Series B Preferred
Stock, which shares either (A) were outstanding on the Closing Date or
(B) are shares of Series A Preferred Stock which were issued pursuant
to the exercise of options that were outstanding on the Closing
Date, in exchange for, or out of the proceeds of, an issuance of
Indebtedness Incurred under clause (ix) of the second paragraph of part
(a) of Section 4.03; or
(vii) Investments to the extent the amount invested consists
solely of Net Cash Proceeds received by the Company or any Guarantor,
within six months of the making of such Investment, from the issuance
and sale permitted by the Indentures of its Capital Stock (other than
Disqualified Stock) to a Person who is not a Subsidiary of the Company
or any Guarantor;
(viii) Investments, the sum of which does not exceed $5
million at any one time outstanding;
(ix) cash payments, not to exceed $3 million, in lieu of the
issuance of fractional shares of Capital Stock of the Company upon the
exercise of the Warrants or any other warrants to buy, or upon the
conversion of any securities convertible into, Capital Stock of the
Company; and
(x) a one-time cash payment of up to $3.0 million to the
holders of the Junior Subordinated Convertible Debentures in connection
with the disposition of the Junior Subordinated Convertible Debentures
in an underwritten public offering pursuant to Section 11.4 of the
Debenture Purchase Agreement;
provided that, except in the case of clauses (i) and (iii), no Default or Event
of Default shall have occurred and be continuing or occur as a consequence of
the actions or payments set forth therein.
Each Restricted Payment permitted pursuant to the preceding
paragraph (other than the Restricted Payment referred to in clause (ii) thereof
and an exchange of Capital Stock for Capital Stock or Indebtedness referred to
in clause (iii) or (iv) thereof) and the Net Cash Proceeds from any issuance of
Capital Stock referred to in clauses (iii) and (iv) shall be included in
calculating whether the conditions of clause (C) of the first paragraph of this
Section 4.04 have been met with respect to any subsequent Restricted Payments.
In the event the proceeds of an issuance of Capital Stock of the Company are
used for the redemption, repurchase or other acquisition of the Notes, or
Indebtedness that is pari passu with the Notes, then the Net Cash Proceeds of
such issuance shall be included in clause (C) of the first paragraph of this
Section 4.04 only to the extent such proceeds are not, within six months, used
for such redemption, repurchase or other acquisition of Indebtedness. Any
Restricted Payments made other than in cash shall be valued at fair market
value. The amount of any Investment "outstanding" at any time shall be deemed to
be equal to the amount of such Investment on the date made, less the return of
capital to the Company and its Restricted Subsidiaries with respect to such
Investment (up to the amount of such Investment on the date made).
SECTION 4.05. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries . The Company will not, and will
not permit any Restricted Subsidiary to, create or otherwise cause or suffer to
exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distributions permitted by
applicable law on any Capital Stock of such Restricted Subsidiary owned by the
Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to
the Company or any other Restricted Subsidiary, (iii) make loans or advances to
the Company or any other Restricted Subsidiary or (iv) transfer any of its
property or assets to the Company or any other Restricted Subsidiary.
The foregoing provisions shall not restrict any encumbrances
or restrictions:
(i) existing on the Closing Date in this Indenture or any
other agreements in effect on the Closing Date, and any extensions,
refinancings, renewals or replacements of such agreements; provided
that the encumbrances and restrictions in any such extensions,
refinancings, renewals or replacements are no less favorable in any
material respect to the Holders than those encumbrances or restrictions
that are then in effect and that are being extended, refinanced,
renewed or replaced;
(ii) existing under or by reason of applicable law;
(iii) existing with respect to any Person or the property or
assets of such Person acquired by the Company or any Restricted
Subsidiary and existing at the time of such acquisition, which
encumbrances or restrictions are not applicable to any Person or the
property or assets of any Person other than such Person or the property
or assets of such Person so acquired;
(iv) in the case of clause (iv) of the first paragraph of this
Section 4.05, (A) that restrict in a customary manner the subletting,
assignment or transfer of any property or asset that is a lease,
license, conveyance or contract or similar property or asset, (B)
existing by virtue of any transfer of, agreement to transfer, option or
right with respect to, or Lien on, any property or assets of the
Company or any Restricted Subsidiary not otherwise prohibited by this
Indenture or (C) arising or agreed to in the ordinary course of
business, not relating to any Indebtedness, and that do not,
individually or in the aggregate, detract from the value of property or
assets of the Company or any Restricted Subsidiary in any manner
material to the Company or any Restricted Subsidiary; or
(v) with respect to a Restricted Subsidiary and imposed
pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock of, or
property and assets of, such Restricted Subsidiary. Nothing contained
in this Section 4.05 shall prevent the Company or any Restricted
Subsidiary from (1) creating, incurring, assuming or suffering to exist
any Liens otherwise permitted in Section 4.09 or (2) restricting the
sale or other disposition of property or assets of the Company or any
of its Restricted Subsidiaries that secure Indebtedness of the Company
or any of its Restricted Subsidiaries.
SECTION 4.06. Limitation on the Issuance of Capital Stock of
Restricted Subsidiaries . The Company will not sell, and will not permit any
Restricted Subsidiary, directly or indirectly, to issue or sell, any shares of
Capital Stock of a Restricted Subsidiary (including options, warrants or other
rights to purchase shares of such Capital Stock) except:
(i) to the Company or a Wholly Owned Restricted Subsidiary;
(ii) issuances of director's qualifying shares or sales to
foreign nationals of shares of Capital Stock of foreign Restricted
Subsidiaries, to the extent required by applicable law;
(iii) if, immediately after giving effect to such issuance or
sale, such Restricted Subsidiary would no longer constitute a
Restricted Subsidiary, provided any Investment in such Person remaining
after giving effect to such issuance or sale would have been permitted
to be made under Section 4.04, if made on the date of such issuance or
sale; and
(iv) issuances or sales of Common Stock of any Restricted
Subsidiary, the Net Cash Proceeds of which are promptly applied
pursuant to clause (A) or (B) of Section 4.11 of this Indenture;
provided that at no time may a Restricted Subsidiary, the Common Stock
of which has been issued or sold pursuant to this clause (iv), be the
owner of a satellite.
SECTION 4.07. Limitation on Issuances of Guarantees by
Restricted Subsidiaries . The Company will not permit any Restricted Subsidiary,
directly or indirectly, to Guarantee any Indebtedness of the Company which is
pari passu with or subordinate in right of payment to the Notes ("Guaranteed
Indebtedness"), unless such Restricted Subsidiary waives and will not in any
manner whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Restricted Subsidiary as a result of any payment by such Restricted
Subsidiary under its Subsidiary Guarantee; provided that this paragraph shall
not be applicable to any Guarantee of any Restricted Subsidiary that existed at
the time such Person became a Restricted Subsidiary and was not Incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary. If the Guaranteed Indebtedness is (A) pari passu with the Notes or
the Note Guarantee, then the Guarantee of such Guaranteed Indebtedness shall be
pari passu with, or subordinated to, the Subsidiary Guarantee or (B)
subordinated to the Notes or the Note Guarantee, then the Guarantee of such
Guaranteed Indebtedness shall be subordinated to the Subsidiary Guarantee at
least to the extent that the Guaranteed Indebtedness is subordinated to the
Notes or the Note Guarantee, as the case may be.
SECTION 4.08. Limitation on Transactions with Shareholders and
Affiliates . The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, enter into, renew or extend any transaction
(including, without limitation, the purchase, sale, lease or exchange of
property or assets, or the rendering of any service) with any holder (or any
Affiliate of such holder) of 5% or more of any class of Capital Stock of the
Company or with
any Affiliate of the Company or any Restricted Subsidiary, except upon fair and
reasonable terms no less favorable to the Company or such Restricted Subsidiary
than could be obtained, at the time of such transaction or, if such transaction
is pursuant to a written agreement, at the time of the execution of the
agreement providing therefor, in a comparable arm's-length transaction with a
Person that is not such a holder or an Affiliate.
The foregoing limitation does not limit, and shall not apply to (i)
transactions (A) approved by a majority of the disinterested members of the
Board of Directors or (B) for which the Company or a Restricted Subsidiary
delivers to the Trustees a written opinion of a nationally recognized investment
banking firm stating that the transaction is fair to the Company or such
Restricted Subsidiary from a financial point of view, (ii) any transaction
solely between the Company and any of its Wholly Owned Restricted Subsidiaries
or solely between Wholly Owned Restricted Subsidiaries, (iii) the payment of
reasonable and customary regular fees to directors of the Company who are not
employees of the Company, (iv) any payments or other transactions pursuant to
any tax-sharing agreement between the Company and any other Person with which
the Company files a consolidated tax return or with which the Company is part of
a consolidated group for tax purposes, (v) any Restricted Payments not
prohibited by Section 4.04 or (vii) Kingston's and Matra's rights to commissions
and other payments under sales representation agreements; Matra's rights to
payments, including without limitation incentive payments, under the Orion 1
Satellite Contract and Orion 2 Satellite Contract; and Kingston's rights to
payments for services under network monitoring contracts, in each case as in
effect on the Closing Date and with such extensions, amendments and renewals
that may be entered into on terms at least as favorable to the Company as the
terms of agreements in effect on the Closing Date. Notwithstanding the
foregoing, any transaction covered by the first paragraph of this Section 4.08
and not covered by clauses (ii) through (v) of this paragraph, the aggregate
amount of which exceeds $5 million in value, must be approved or determined to
be fair in the manner provided for in clause (i)(A) or (B) above.
SECTION 4.09. Limitation on Liens . The Company will not, and
will not permit any Restricted Subsidiary to, create, incur, assume or suffer to
exist any Lien on any of its assets or properties of any character, or any
shares of Capital Stock or Indebtedness of any Restricted Subsidiary, without
making effective provision for all of the Notes and all other amounts due under
the Indentures to be directly secured equally and ratably with (or, if the
obligation or liability to be secured by such Lien is subordinated in right of
payment to the Notes, prior to) the obligation or liability secured by such
Lien.
The foregoing limitation does not apply to:
(i) Liens existing on the Closing Date;
(ii) Liens granted after the Closing Date on any assets or
Capital Stock of the Company or its Restricted Subsidiaries created in
favor of the Holders;
(iii) Liens with respect to the assets of a Restricted
Subsidiary granted by such Restricted Subsidiary to the Company or a
Wholly Owned Restricted Subsidiary to secure Indebtedness owing to the
Company or such other Restricted Subsidiary;
(iv) Liens securing Indebtedness which is Incurred to
refinance secured Indebtedness which is permitted to be Incurred under
clause (iii) of the second paragraph of Section 4.03; provided that
such Liens do not extend to or cover any property or assets of the
Company or any Restricted Subsidiary other than the property or assets
securing the Indebtedness being refinanced; or
(v) Permitted Liens.
The Company will not, and will not permit any Restricted Subsidiary to, create,
incur, assume or suffer to exist any Lien on Orion 1, Orion 2 or Orion 3 that
secures Indebtedness, other than pursuant to clause (xxi) of the definition of
Permitted Liens.
SECTION 4.10. Limitation on Sale-Leaseback Transactions . The
Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into any sale-leaseback transaction involving any of its
assets or properties whether now owned or hereafter acquired, whereby the
Company or a Restricted Subsidiary sells or transfers such assets or properties
and then or thereafter leases such assets or properties or any part thereof or
any other assets or properties which the Company or such Restricted Subsidiary,
as the case may be, intends to use for substantially the same purpose or
purposes as the assets or properties sold or transferred.
The foregoing restriction does not apply to any sale-leaseback
transaction if (i) the lease is for a period, including renewal rights, of not
in excess of three years; (ii) the lease secures or relates to industrial
revenue or pollution control bonds; (iii) the transaction is solely between the
Company and any Wholly Owned Restricted Subsidiary or solely between Wholly
Owned Restricted Subsidiaries; or (iv) the Company or such Restricted
Subsidiary, within twelve months after the sale or transfer of any assets or
properties is completed, applies an amount not less than the net proceeds
received from such sale in accordance with clause (A) or (B) of the first
paragraph of Section 4.11 of this Indenture.
SECTION 4.11. Limitation on Asset Sales. The Company will not,
and will not permit any Restricted Subsidiary to, consummate any Asset Sale
unless (i) the consideration received by the Company or such Restricted
Subsidiary (including the amount of any Released Indebtedness) is at least equal
to the fair market value of the assets sold or disposed of and (ii) at least 85%
of the consideration received (excluding the amount of any Released
Indebtedness) consists of cash or Temporary Cash Investments. In the event and
to the extent that the Net Cash Proceeds received by the Company or any of its
Restricted Subsidiaries from one or more Asset Sales occurring on or after the
Closing Date in any period of 12 consecutive months exceed 10% of Adjusted
Consolidated Net Tangible Assets (determined as of the date closest to the
commencement of such 12-month period for which a consolidated balance sheet of
the Company and its subsidiaries has been filed pursuant to Section 4.18, then
the Company shall or shall
cause the relevant Restricted Subsidiary to (i) within twelve months after the
date Net Cash Proceeds so received exceed 10% of Adjusted Consolidated Net
Tangible Assets (A) apply an amount equal to such excess Net Cash Proceeds to
permanently repay unsubordinated Indebtedness of the Company or any Restricted
Subsidiary owing to a Person other than the Company or any of its Restricted
Subsidiaries or (B) invest an equal amount, or the amount not so applied
pursuant to clause (A) (or enter into a definitive agreement committing to so
invest within twelve months after the date of such agreement), in property or
assets (other than current assets) of a nature or type or that are used in a
business (or in a company having property and assets of a nature or type, or
engaged in a business) similar or related to the nature or type of the property
and assets of, or the business of, the Company and its Restricted Subsidiaries
existing on the date of such investment and (ii) apply (no later than the end of
the twelve-month period referred to in clause (i)) such excess Net Cash Proceeds
(to the extent not applied pursuant to clause (i)) as provided in the following
paragraph of this Section 4.11. The amount of such excess Net Cash Proceeds
required to be applied (or to be committed to be applied) during such
twelve-month period as set forth in clause (i) of the preceding sentence and not
applied as so required by the end of such period shall constitute "Excess
Proceeds."
If, as of the first day of any calendar month, the aggregate
amount of Excess Proceeds not theretofore subject to an Offer to Purchase
pursuant to this Section 4.11 totals at least $10 million, the Company must
commence, not later than the fifteenth Business Day of such month, and
consummate an Offer to Purchase from the Holders on a pro rata basis an
aggregate principal amount Notes equal to the Excess Proceeds on such date, at a
purchase price equal to 101% of the principal amount of the Notes plus, accrued
interest (if any) to the Payment Date.
SECTION 4.12. Maintenance of Office or Agency . The Company
will maintain an office or agency where the Notes may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 12.02.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company hereby initially designates the Corporate Trust
Office of the Trustee as such office of the Company in accordance with Section
2.03.
SECTION 4.13. Repurchase of Notes upon a Change of Control .
The Company shall commence, within 30 days of the occurrence of a Change of
Control, and consummate an Offer to Purchase for all Notes then outstanding, at
a purchase price equal to 101% of the principal amount of the Notes plus accrued
interest (if any) to the Payment Date.
SECTION 4.14. Existence . Subject to Articles Four and Five of
this Indenture, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and the existence of
each Restricted Subsidiary in accordance with the respective organizational
documents of the Company and each such Restricted Subsidiary and the rights
(whether pursuant to charter, partnership certificate, agreement, statute or
otherwise), material licenses and franchises of the Company and each such
Restricted Subsidiary, provided that the Company shall not be required to
preserve any such right, license or franchise, or the existence of any
Restricted Subsidiary (other than of the Company), if the maintenance or
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries taken as a whole.
SECTION 4.15. Payment of Taxes and Other Claims . The Company
will pay or discharge and shall cause each Restricted Subsidiary to pay or
discharge, or cause to be paid or discharged, before the same shall become
delinquent (i) all material taxes, assessments and governmental charges levied
or imposed upon (a) the Company or any such Restricted Subsidiary, (b) the
income or profits of any such Restricted Subsidiary which is a corporation or
(c) the property of the Company or any such Restricted Subsidiary and (ii) all
material lawful claims for labor, materials and supplies that, if unpaid, might
by law become a Lien upon the property of the Company or any such Restricted
Subsidiary, provided that the Company shall not be required to pay or discharge,
or cause to be paid or discharged, any such tax, assessment, charge or claim the
amount, applicability or validity of which is being contested in good faith by
appropriate proceedings or by the Company and its Restricted Subsidiaries where
the failure to effect such payment is not adverse in any material respect to the
Holders.
SECTION 4.16. Maintenance of Properties and Insurance . The
Company will maintain (a) in-orbit insurance with respect to Orion 1 in an
amount at least equal to the cost to replace such satellite with a satellite of
comparable or superior technological capability (as estimated by the Board of
Directors) and having at least as much transmission capacity as such satellite,
and (b) with respect to Orion 2, Orion 3, each other satellite to be launched by
the Company or any Restricted Subsidiary and each replacement satellite
therefor, (i) launch insurance with respect to each such satellite covering the
period from the launch of such satellite to 180 days following such launch in an
amount equal to or greater than the sum of (A) the cost to replace such
satellite pursuant to the contract pursuant to which a replacement satellite
will be constructed, (B) the cost to launch a replacement satellite pursuant to
the contract pursuant to which a replacement satellite will be launched and (C)
the cost of launch insurance for such satellite or, in the event that the
Company has reason to believe that the cost of obtaining comparable insurance
for a replacement satellite would be materially higher, the Company's best
estimate of the cost of such comparable insurance and (ii) at all times
subsequent to 180 days after the launch (if it is a Successful Launch) of each
such satellite, in-orbit insurance in an amount at least equal to the cost to
replace such satellite with a satellite of comparable or
superior technological capability (as estimated by the Board of Directors) and
having at least as much transmission capacity as such satellite was designed to
have. The in-orbit insurance required by this Section 4.16 shall provide that if
50% or more of a satellite's initial capacity is lost, the full amount of
insurance will become due and payable, and that if a satellite is able to
maintain more than 50% but less than 90% of its initial capacity, a pro-rata
portion of such insurance will become due and payable. The insurance required by
this paragraph shall name the Company and/or any Guarantor as the sole loss
payee or payees, as the case may be, thereof.
In the event that the Company (or a Guarantor) receives
proceeds from insurance relating to any satellite, the Company (or a Guarantor)
may use a portion of such proceeds to repay any vendor or third-party purchase
money financing pertaining to such satellite (other than Orion 1) that is
required to be repaid by reason of the loss giving rise to such insurance
proceeds. The Company (or a Guarantor) may use the remainder of such proceeds to
develop, construct, launch and insure a replacement satellite (including
components for a related ground spare) if (i) such replacement satellite is of
comparable or superior technological capability as compared with the satellite
being replaced and has at least as much transmission capacity as the satellite
being replaced and (ii) the Company will have sufficient funds to service the
Company's projected debt service requirements until the scheduled launch of such
replacement satellite and for one year thereafter and to develop, construct,
launch and insure (in the amounts required by the preceding paragraph) such
replacement satellite, provided that such replacement satellite is scheduled to
be launched within 15 months of the receipt of such proceeds. Any such proceeds
not used as permitted by this Section 4.16 shall be applied, within 90 days, to
reduce Indebtedness of the Company or shall constitute "Excess Proceeds" for
purposes of Section 4.11.
The Company will further provide or cause to be provided, for
itself and its Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds considered reasonable by the
Company in the conduct of its business.
The Company will cause all properties owned by the Company or
any Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section 4.16
shall prevent the Company from discontinuing the maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 4.17. Notice of Defaults . In the event that the
Company becomes aware of any Default or Event of Default, the Company, promptly
after it becomes aware thereof, will give written notice thereof to the Trustee.
SECTION 4.18. Commission Reports and Reports to Holders .
Whether or not the Company is required to file reports with the Commission, the
Company shall file with the Commission all such reports and other information as
it would be required to file with the Commission by Sections 13(a) or 15(d)
under the Notes Exchange Act of 1934 if it were subject thereto. The Company
shall supply the Trustees and each Holder or shall supply to the Trustees for
forwarding to each such Holder, without cost to such Holder, copies of such
reports and other information.
SECTION 4.19. Waiver of Stay, Extension or Usury Laws . The
Company covenants (to the extent that it may lawfully do so) that it shall not
at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of, premium, if any, or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or that may affect the
covenants or the performance of this Indenture, and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Consolidation, Merger and Sale of Assets . Each
of the Company and each Guarantor will not consolidate with, merge with or into,
or sell, convey, transfer, lease or otherwise dispose of all or substantially
all of its property and assets (as an entirety or substantially an entirety in
one transaction or a series of related transactions) to, any Person or permit
any Person to merge with or into the Company or any Guarantor unless:
(i) the Company or any Guarantor, as the case may be, shall be
the continuing Person, or the Person (if other than the Company or
Guarantor) formed by such consolidation or into which the Company or
any Guarantor, as the case may be, is merged or that acquired or leased
such property and assets of the Company or any Guarantor, as the case
may be, shall be a corporation organized and validly existing under the
laws of the United States of America or any jurisdiction thereof and
shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustees, all of the obligations of the Company or any
Guarantor, as the case may be, on all of the Notes and under the
Indenture;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) if such transaction involves the Company or any
Significant Subsidiary thereof, immediately after giving effect to such
transaction on a pro forma basis, the
Company, or any Person becoming the successor to the Company as obligor
on the Notes shall have a Consolidated Net Worth equal to or greater
than the Consolidated Net Worth of the Company immediately prior to
such transaction;
(iv) if such transaction involves the Company or any
Significant Subsidiary thereof, immediately after giving effect to such
transaction on a pro forma basis, the Company, or any Person becoming
the successor obligor of the Notes, as the case may be, could Incur at
least $1.00 of Indebtedness under the first paragraph of Section 4.03;
provided that this clause (iv) shall not apply to a consolidation or
merger with or into a Wholly Owned Restricted Subsidiary with a
positive net worth; provided that, in connection with any such merger
or consolidation, no consideration (other than Common Stock in the
surviving Person or the Company) shall be issued or distributed to the
stockholders of the Company; and
(v) the Company or Guarantor, as the case may be, delivers to
the Trustees an Officers' Certificate (attaching the arithmetic
computations to demonstrate compliance with clauses (iii) and (iv)) and
Opinion of Counsel, in each case stating that such consolidation,
merger or transfer and such supplemental indenture complies with this
provision and that all conditions precedent provided for herein
relating to such transaction have been complied with; provided,
however, that clauses (iii) and (iv) above do not apply if, in the good
faith determination of the Board of Directors of the Company, whose
determination shall be evidenced by a Board Resolution, the principal
purpose of such transaction is to change the state of incorporation of
the Company; and provided further that any such transaction shall not
have as one of its purposes the evasion of the foregoing limitations.
Notwithstanding the foregoing, the provisions of this Section
5.01 shall not apply to the Merger.
SECTION 5.02. Successor Substituted . Upon any consolidation
or merger, or any sale, conveyance, transfer or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Notes.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default . An "Event of Default" shall
occur with respect to the Notes if:
(a) default in the payment of principal of (or premium, if
any, on) any Note when the same becomes due and payable at maturity,
upon acceleration, redemption or otherwise;
(b) default in the payment of interest on any Note when the
same becomes due and payable, and such default continues for a period
of 30 days; provided that a failure to make any of the first six
scheduled interest payments on the Notes in a timely manner will
constitute an Event of Default with no grace or cure period;
(c) default in the performance or breach of Section 5.01 or
the failure to make or consummate an Offer to Purchase in accordance
with Section 4.11 or Section 4.13;
(d) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company in this Indenture or under
the Notes (other than a default specified in clause (a), (b) or (c)
above) and such default or breach continues for a period of 30
consecutive days after written notice by the Trustee or the Holders of
25% or more in aggregate principal amount at maturity of the Notes;
(e) there occurs with respect to (A) any issue or issues of
Indebtedness of the Company, any Guarantor or any Significant
Subsidiary having an outstanding principal amount of $10 million or
more in the aggregate for all such issues of all such Persons, whether
such Indebtedness now exists or shall hereafter be created or (B) the
TT&C Financing or any refinancing thereof which is secured by
substantially the same collateral, (I) an event of default that has
caused the holder thereof to declare such Indebtedness to be due and
payable prior to its Stated Maturity and such Indebtedness has not been
discharged in full or such acceleration has not been rescinded or
annulled within 30 days of such acceleration and/or (II) the failure to
make a principal payment at the final (but not any interim) fixed
maturity and such defaulted payment shall not have been made, waived or
extended within 30 days of such payment default;
(f) any final judgment or order (not covered by insurance) for
the payment of money in excess of $10 million in the aggregate for all
such final judgments or orders against all such Persons (treating any
deductibles, self-insurance or retention as not so covered) shall be
rendered against the Company, any Guarantor or any Significant
Subsidiary and shall not be paid or discharged, and there shall be any
period of 30 consecutive days following entry of the final judgment or
order that causes the aggregate amount for all such final judgments or
orders outstanding and not paid or discharged against all such Persons
to exceed $10 million during which a stay of enforcement of
such final judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect;
(g) a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of the Company, any Guarantor
or any Significant Subsidiary in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, (B) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company,
any Guarantor or any Significant Subsidiary or for all or substantially
all of the property and assets of the Company, any Guarantor or any
Significant Subsidiary or (C) the winding up or liquidation of the
affairs of the Company or any Significant Subsidiary and, in each case,
such decree or order shall remain unstayed and in effect for a period
of 30 consecutive days;
(h) the Company, any Guarantor or any Significant Subsidiary
(A) commences a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or consents
to the entry of an order for relief in an involuntary case under any
such law, (B) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Company, any Guarantor or any Significant
Subsidiary or for all or substantially all of the property and assets
of the Company, any Guarantor or any Significant Subsidiary or (C)
effects any general assignment for the benefit of creditors;
(i) the Note Guarantee shall cease to be, or shall be asserted
in writing by the Company or any Guarantor not to be, in full force and effect
or enforceable in accordance with their respective terms; or (j) the occurrence
of an "Event of Default" described in paragraph (i), (j), (k), (l), (m) or (n)
of Section 18.1 of the Debenture Purchase Agreement.
SECTION 6.02. Acceleration . If an Event of Default (other
than an Event of Default specified in clause (g) or (h) above that occurs with
respect to the Company) occurs and is continuing under the Indenture, the
Trustee or the Holders of at least 25% in aggregate principal amount at maturity
of the Notes, then outstanding, by written notice to the Company (and to the
Trustee if such notice is given by the Holders), may, and the Trustee at the
request of such Holders shall, declare the principal amount of, premium, if any,
and accrued interest on the Notes to be immediately due and payable. Upon a
declaration of acceleration, such principal amount of, premium, if any, and
accrued interest shall be immediately due and payable. In the event of a
declaration of acceleration because an Event of Default set forth in clause (e)
above has occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default triggering such
Event of Default pursuant to clause (e) shall be remedied or cured by the
Guarantor, the Company or the relevant Significant Subsidiary or waived by the
holders of the relevant Indebtedness within 60 days after the declaration of
acceleration with respect thereto. If an Event of Default specified in clause
(g) or (h) above occurs with respect to the Guarantor or the Company, the
principal amount of, premium, if any, and accrued interest on the Notes then
outstanding shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder.
SECTION 6.03. Other Remedies . If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy by proceeding at
law or in equity to collect the payment of principal of, premium, if any,
interest on the Notes or to enforce the performance of any provision of the
Notes, the Pledge Agreement or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding.
SECTION 6.04. Waiver of Past Defaults . Subject to Section
9.02, at any time after a declaration of acceleration, but before a judgment or
decree for the payment of the money due has been obtained by the Trustee, the
Holders of at least a majority in principal amount of the outstanding Notes at
Maturity, by notice to the Trustee, may waive all past Defaults and Events of
Default and rescind and annul a declaration of acceleration (except a Default in
the payment of principal of, premium, if any, interest on any Note as specified
in clause (a) or (b) of Section 6.01 (but not as a result of such acceleration)
or in respect of a covenant or provision of this Indenture which cannot be
modified or amended without the consent of the holder of each outstanding Note
affected) if all existing Events of Default, other than the nonpayment of
principal of, premium, if any, interest on the Notes that have become due solely
by such declaration of acceleration, have been cured or waived and the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction. Upon any such waiver, such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
SECTION 6.05. Control by Majority . The Holders of at least a
majority in aggregate principal amount at maturity of the outstanding Notes may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, that may involve the Trustee in personal liability,
or that the Trustee determines in good faith may be unduly prejudicial to the
rights of Holders of Notes not joining in the giving of such direction and may
take any other action it deems proper that is not inconsistent with any such
direction received from Holders of Notes.
SECTION 6.06. Limitation on Suits . A Holder may not pursue
any remedy with respect to the Indenture or the Notes unless:
(i) the Holder gives the Trustee written notice of a
continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount
at maturity of outstanding Notes make a written request to the Trustee
to pursue the remedy;
(iii) such Holder or Holders offer the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount at maturity of the outstanding Notes do not
give the Trustee a direction that is inconsistent with the request.
SECTION 6.07. Rights of Holders to Receive Payment . Subject
to Sections 6.04 and 9.02, notwithstanding any other provision of this
Indenture, the right of any Holder of a Note to receive payment of principal of,
premium, if any, or interest on, such Note or to bring suit for the enforcement
of any such payment or after the due date expressed in the Notes shall not be
impaired or affected without the consent of such Holder provided, however, that
no recourse for the payment of the principal of, premium, if any, or interest on
any of the Notes or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Company in the Indentures, the Pledge Agreement or in any of the Notes or
because of the creation of any Indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer, director, employee or
controlling person of the Company or of any successor Person thereof. Each
Holder, by accepting the Notes, waives and releases all such liability.
SECTION 6.08. Collection of Indebtedness and Suits for
Enforcement by Trustee .
The Company covenants that if
(a) default is made in the payment of any installment of
interest on any Note when such interest becomes due and payable and
such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Note at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee for the benefit
of the Holders of such Notes, the whole amount then due and payable on such
Notes for principal (and premium, if any) and interest, and interest on any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installment of interest,
at the rate borne by the Notes, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Notes
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the Notes,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.09. Trustee May File Proofs of Claim . In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Notes or the
property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Notes and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities . If the Trustee collects any money
pursuant to this Article Six, it shall pay out the money in the following order:
First: to the Trustee for all amounts due under Section 7.07;
Second: to Holders for amounts then due and unpaid for
principal of, premium, if any, and interest, if any, on the Notes in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Notes for principal,
premium, if any, and interest, if any, respectively; and
Third: the balance, if any, to the Person or Persons entitled
thereto.
The Trustee, upon prior written notice to the Company, may fix
a record date and payment date for any payment to Holders pursuant to this
Section 6.10.
[SECTION 6.11. Undertaking for Costs . In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court may
require any party litigant in such suit to file an undertaking to pay the costs
of the suit, and the court may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This
Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 of this Indenture, or a suit by Holders of more than
10% in principal amount of the outstanding Notes.]
[SECTION 6.12. Restoration of Rights and Remedies . If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then, and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Company, the Trustee and the Holders shall continue as
though no such proceeding had been instituted.]
SECTION 6.13. Rights and Remedies Cumulative . Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in Section 2.08, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.14. Delay or Omission Not Waiver . No delay or
omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Six or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General . The duties and responsibilities of the
Trustee shall be as provided by the TIA and as set forth herein. Whether or not
herein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Article Seven.
SECTION 7.02. Certain Rights of Trustee . Subject to TIA
Sections 315(a) through (d):
(a) except during the continuance of an Event of Default, the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee and
in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth and correctness of the statements and
certificates or opinions furnished to it and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture;
(b) in case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and
skill in its exercise, as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs;
(c) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(d) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers
Certificate;
(e) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(f) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(g) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(8) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(9) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 7.03. Individual Rights of Trustee . The Trustee, in
its individual or any other capacity, may become the owner or pledgee of Notes
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to TIA Sections 310(b) and 311.
SECTION 7.04. Trustee's Disclaimer . The Trustee (i) makes no
representation as to the validity or adequacy of this Indenture, the Pledge
Agreement or the Notes, (ii) shall not be accountable for the Company's use or
application of the proceeds from the Notes and (iii) shall not be responsible
for any statement contained herein, in the Pledge Agreement or in the Notes
other than its certificate of authentication. The Trustee shall not be charged
with knowledge of any Default or Event of Default unless (i) a Responsible
Officer of the Trustee assigned to its Corporate Trustee Administration
Department (or successor department or group) shall have actual knowledge
thereof or (ii) the Trustee shall have received written notice thereof at its
Corporate Trust office from the Company or any Holder. No provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
SECTION 7.05. Notice of Default . If any Default or any Event
of Default occurs and is continuing and if such Default or Event of Default is
known to a trust officer of the Trustee, the Trustee shall mail to each Holder
in the manner and to the extent provided in TIA Section 313(c) notice of such
Default or Event of Default within 90 days after it occurs, unless such Default
or Event of Default has been cured; provided, however, that, except in the case
of a default in the payment of the principal of, premium, if any, or interest on
any Note, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders . To the extent
required by TIA Section 313(a), within 60 days after May 15 of each year
commencing with 1997 and for as long as there are Notes outstanding hereunder,
the Trustee shall mail to each Holder the Trustee's brief report dated as of
such date that complies with TIA Section 313(a). The Trustee also shall comply
with TIA Section 313(b) and TIA Section 313(c) and (d). A copy of such report at
the time of its mailing to Holders shall be filed with the Commission, if
required, and each stock exchange, if any, on which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes
become listed on any stock exchange, and the Trustee shall comply with TIA
Section 313(d).
SECTION 7.07. Compensation and Indemnity . The Company shall
pay to the Trustee from time to time such reasonable compensation as shall be
agreed upon in writing for its services. The reasonable compensation of the
Trustee shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses and advances incurred or made by the Trustee.
Such expenses shall include the reasonable compensation and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it
harmless against, any loss or liability or expense incurred by it without
negligence or bad faith on its part in connection with the acceptance or
administration of this Indenture and the Pledge Agreement and its duties under
this Indenture, the Pledge Agreement and the Notes, including, without
limitation, the costs and expenses of defending itself against any claim or
liability and of complying with any process served upon it or any of its
officers in connection with the exercise or performance of any of its powers or
duties under this Indenture, the Pledge Agreement and the Notes.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a lien prior to the Notes on all money or property
held or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay principal of, premium, if any, and interest on
particular Notes.
Without prejudice to any other rights available to the Trustee
under applicable law, if the Trustee incurs expenses or renders services after
the occurrence of an Event of Default specified in clause (g) or (h) of Section
6.01, the expenses and the compensation for the services will be intended to
constitute expenses of administration under Title 11 of the United States
Bankruptcy Code or any applicable federal or state law for the relief of
debtors.
SECTION 7.08. Replacement of Trustee . A resignation or
removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee's acceptance of appointment as
provided in this Section 7.08.
The Trustee may resign at any time by so notifying the Company
in writing at least 30 days prior to the date of the proposed resignation. The
Holders of a majority in principal amount of the outstanding Notes may remove
the Trustee by so notifying the Trustee in writing and may appoint a successor
Trustee with the consent of the Company.
The Company may at any time remove the Trustee, by Company
Order given at least 30 days prior to the date of the proposed removal; provided
that at such date no Event of Default shall have occurred and be continuing.
Except as provided in the second sentence of the preceding
paragraph, if the Trustee resigns or is removed, or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company. If
the successor Trustee does not deliver its written acceptance required by the
next succeeding paragraph of this Section 7.08 within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of a majority in principal amount of the outstanding Notes may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after the
delivery of such written acceptance, subject to the lien provided in Section
7.07, (i) the retiring Trustee shall transfer all property held by it as Trustee
to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee shall become effective and (iii) the successor Trustee shall have all
the rights, powers and duties of the Trustee under this Indenture and the Pledge
Agreement. A successor Trustee shall mail notice of its succession to each
Holder.
Subject to Section 6.11, if the Trustee is no longer qualified
or eligible under Section 7.10, any Holder who satisfies the requirements of TIA
Section 310(b) may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
The Company shall give notice of any resignation and any
removal of the Trustee and each appointment of a successor Trustee to all
Holders. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue
indefinitely for the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
SECTION 7.10. Eligibility . This Indenture shall always have a
Trustee that satisfies the requirements of TIA Section 310(a)(1) and (5). The
Trustee shall have a combined capital and surplus of at least $100,000,000 as
set forth in its most recent published annual report of condition. The Trustee
shall be subject to TIA Section 310(b), subject to the penultimate paragraph
thereof.
SECTION 7.11. Money Held in Trust . The Trustee shall not be
liable for interest on any money received by it except as the Trustee may agree
in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law, and except for
money held in trust under Article Eight of this Indenture and money held in
trust pursuant to the Pledge Agreement.
SECTION 7.12. Withholding Taxes . The Trustee, as agent for
the Company, shall exclude and withhold from each payment of principal and
interest and other amounts due hereunder or under the Notes any and all U.S.
withholding taxes applicable thereto as required by law. The Trustee agrees to
act as such withholding agent and, in connection therewith, whenever any present
or future taxes or similar charges are required to be withheld with respect to
any amounts payable in respect of the Notes, to withhold such amounts and timely
pay the same to the appropriate authority in the name of and on behalf of the
Holders of the Notes, that it will file any necessary withholding tax returns or
statements when due, and that, as promptly as possible after the payment
thereof, it will deliver to each Holder of a Note appropriate documentation
showing the payment thereof, together with such additional documentary evidence
as such Holders may reasonably request from time to time.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations . Except as
otherwise provided in this Section 8.01, each of the Company may terminate its
obligations under the Notes and this Indenture if:
(a) all Notes previously authenticated and delivered (other
than destroyed, lost or stolen Notes that have been replaced or Notes
for whose payment money or securities have theretofore been held in
trust and thereafter repaid to the Company, as provided in Section
8.05) have been delivered to the Trustee for cancellation and the
Company has paid all sums payable by it hereunder; or
(b) (i) all such Notes mature within one year or all of them
are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (ii)
the Company irrevocably deposits in trust with the Trustee during such
one-year period, under the terms of an irrevocable trust agreement in
form satisfactory to the Trustee, as trust funds solely for the benefit
of the Holders of such Notes for that purpose, money or U.S. Government
Obligations sufficient (in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee), without consideration of any
reinvestment of any interest thereon, to pay principal, premium, if
any, and interest on such Notes to maturity or redemption, as the case
may be, and to pay all other sums payable by it hereunder, (iii) no
Default or Event of Default with respect to the Notes shall have
occurred and be continuing on the date of such deposit, (iv) such
deposit will not result in a breach or violation of, or constitute a
default under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound [, (v) if at such
time the Notes are listed on a national securities exchange, the Notes
will not be delisted as a result of such deposit, defeasance and
discharge,] [and] [(v)] [(vi)] the Company has delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent provided for herein relating to
the satisfaction and discharge of this Indenture have been complied
with.
With respect to the foregoing clause (a), the Company's
obligations under Section 7.07 shall survive. With respect to the foregoing
clause (b), the Company's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06,
2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06 shall
survive until the Notes have matured or have been redeemed. Thereafter, only the
Company's obligations in Sections 7.07, 8.05 and 8.06 shall survive. After any
such irrevocable deposit, the Trustee upon request shall acknowledge in writing
the discharge of the Company's obligations under the Notes and this Indenture,
and the Guarantor's obligations under the Guarantee and this Indenture, except
for those surviving obligations specified above.
SECTION 8.02. Defeasance and Discharge of Indenture . The
Company will be deemed to have paid and will be discharged from any and all
obligations in respect of the Notes on the 123rd day after the date of the
deposit referred to in clause (a) of this Section 8.02 if:
(a) with reference to this Section 8.02, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee and has conveyed all right, title and interest for the benefit
of the Holders, under the terms of an irrevocable trust agreement in
form satisfactory to the Trustee as trust funds in trust, specifically
pledged to the Trustee for the benefit of the Holders as security for
payment of the principal of, premium, if any, and interest, if any, on
the Notes, and dedicated solely to, the benefit of the Holders, in and
to (i) money in an amount, (ii) U.S. Government Obligations that,
through the payment of interest, premium, if any, and principal in
respect thereof in accordance with their terms, will provide, not later
than one day before the due date of any payment referred to in this
clause (a), money in an amount or (iii) a combination thereof in an
amount sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, without
consideration of the reinvestment of such interest and after payment of
all federal, state and local taxes or other charges and assessments in
respect thereof payable by the Trustee, the principal of, premium, if
any, and accrued interest on the outstanding Notes at the Stated
Maturity of such principal or interest or upon earlier redemption;
provided that the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such U.S. Government Obligations to
the payment of such principal, premium, if any, and interest with
respect to the Notes and to give any related notice of redemption;
(b) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company or any of its Subsidiaries is a party
or by which the Company or any of its Subsidiaries is bound;
(c) immediately after giving effect to such deposit on a pro
forma basis, no Default or Event of Default, or event that after the
giving of notice or lapse of time or both could become a Default or
Event of Default, shall have occurred and be continuing on the date of
such deposit or during the period ending on the 123rd day after the
date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either
(A) a ruling directed to the Trustee received from the Internal Revenue
Service to the effect that the Holders will not recognize additional
income, gain or loss for federal income tax purposes as a result of the
Company's exercise of its option under this Section 8.02 and will be
subject to federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such option had
not been exercised or (B) an Opinion of Counsel to the same effect as
the ruling described in clause (A) above accompanied by a ruling to
that effect published by the Internal Revenue Service, unless there has
been a change in the applicable federal income tax law since the date
of this Indenture such that a ruling from the Internal Revenue Service
is no longer required and (ii) an Opinion of Counsel to the effect that
(A) the creation of the defeasance trust does not violate the
Investment Company Act of 1940 and (B) after the passage of 123 days
following the deposit (except, with respect to any trust funds for the
account of any
Holder who may be deemed to be "connected" with the Company for
purposes of the Insolvency Xxx 0000 after two years following the
deposit), the trust funds will not be subject to the effect of Xxxxxxx
000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section 15 of the New York
Debtor and Creditor Law and either (I) the trust funds will no longer
remain the property of the Company (and therefore will not be subject
to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally) or (II) if a
court were to rule under any such law in any case or proceeding that
the trust funds remained property of the Company (a) assuming such
trust funds remained in the possession of the Trustee prior to such
court ruling to the extent not paid to the Holders, the Trustee will
hold, for the benefit of the Holders, a valid and perfected security
interest in such trust funds that is not avoidable in bankruptcy or
otherwise and (b) no property, rights in property or other interests
granted to the Trustee or the Holders in exchange for, or with respect
to, such trust funds will be subject to any prior rights of holders of
other Indebtedness of the Company or any of its Notes;
(e) if at such time the Notes are listed on a national
securities exchange, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Notes will not be delisted as
a result of the Company's exercise of its opinion under this Section
8.02; and
(f) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to the
defeasance contemplated by this Section 8.02 have been complied with.
Notwithstanding the foregoing, prior to the end of the post
deposit period referred to in clause (d)(ii)(B) of this Section 8.02, none of
the Company's obligations under this Indenture shall be discharged. Subsequent
to the end of such period with respect to this Section 8.02, the Company's
obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.14,
4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until the Notes mature
or are redeemed. Thereafter, only the Company's obligations in Sections 7.07,
8.05 and 8.06 shall survive. If and when a ruling from the Internal Revenue
Service or an Opinion of Counsel referred to in clause (d)(i) of this Section
8.02 may be provided specifically without regard to, and not in reliance upon,
the continuance of the Company's obligations under the first sentence of Section
4.01, then the Company's obligations under such sentence shall cease upon
delivery to the Trustee of such ruling or Opinion of Counsel and compliance with
the other conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.02.
After any such irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
the Notes, any Subsidiary Guarantee, if any, and this Indenture except for those
surviving obligations in the immediately preceding paragraph.
SECTION 8.03. Defeasance of Certain Obligations . The Company
may omit to comply with any term, provision or condition set forth in clauses
(iii) and (iv) of Section 5.01
and Sections 4.03 through 4.17 (except for any covenant otherwise required by
the TIA), and clauses (c) and (d) of Section 6.01 with respect to clauses (iii)
and (iv) of Section 5.01, clause (e) of Section 6.01 with respect to Sections
4.03 through 4.17, except as aforesaid, and clause (f) of Section 6.01 shall be
deemed not to be Events of Default, in each case with respect to the outstanding
Notes if:
(a) with reference to this Section 8.03, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee and conveyed all right, title and interest to the Trustee for
the benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged to the Trustee for the benefit of
the Holders as security for payment of the principal of, premium, if
any, and interest, if any, on the Notes, and dedicated solely to, the
benefit of the Holders, in and to (i) money in an amount, (ii) U.S.
Government Obligations that, through the payment of interest and
principal in respect thereof in accordance with their terms, will
provide, not later than one day before the due date of any payment
referred to in this clause (a), money in an amount or (iii) a
combination thereof in an amount sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge, without consideration of the reinvestment of such interest
and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, the
principal of, premium, if any, and interest on the outstanding Notes on
the Stated Maturity or upon earlier redemption of such principal or
interest; provided that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S. Government
Obligations to the payment of such principal, premium, if any, and
interest with respect to the Notes and to give any related notice of
redemption;
(b) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company or any of its Subsidiaries is a party
or by which the Company or any of its Subsidiaries is bound;
(c) immediately after giving effect to such deposit or a pro
forma basis, no Default or Event of Default, or event that after the
giving of notice or lapse of time or both would become a Default or
Event of Default, shall have occurred and be continuing on the date of
such deposit or during the period ending on the 123rd day after the day
of such deposit;
(d) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (i) the creation of the defeasance trust
does not violate the Investment Company Act of 1940, (ii) the Holders
will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit and the defeasance of the obligations
referred to in the first paragraph of this Section 8.03 and will be
subject to federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such deposit and
defeasance had not occurred and
(iii) after the passage of 123 days following the deposit (except with
respect to any trust funds for the account of any Holder who may be
deemed to be "connected" with the Company for purposes of the
Insolvency Xxx 0000 after two years following the deposit), the trust
funds will not be subject to the effect of Xxxxxxx 000 xx xxx Xxxxxx
Xxxxxx Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law, and either (A) the trust funds will no longer remain the
property of the Company (and therefore will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditor's rights generally) or (B) if a court
were to rule under any such law in any case or proceeding that the
trust funds remained property of the Company (1) assuming such trust
funds remained in the possession of the Trustee prior to such court
ruling to the extent not paid to the Holders, the Trustee will hold,
for the benefit of the Holders, a valid and perfected security interest
in such trust funds that is not avoidable in bankruptcy or otherwise
and (2) no property, rights in property or other interests granted to
the Trustee or the Holders in exchange for, or with respect to, such
trust funds will be subject to any prior rights or holders of other
Indebtedness of the Company or any of its Notes;
(e) if at such time the Notes are listed on a national
securities exchange, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the Notes will not be delisted as
a result of the Company's exercise of its option under Section 8.03;
and
(f) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.03 have been complied with.
SECTION 8.04. Application of Trust Money . Subject to Section
8.06, the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the
case may be, and shall apply the deposited money and the money from U.S.
Government Obligations in accordance with the Notes and this Indenture to the
payment of principal of, premium, if any, and interest on the Notes; but such
money need not be segregated from other funds except to the extent required by
law.
SECTION 8.05. Repayment to Company . Subject to Sections 7.07,
8.01, 8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any excess money held
by them at any time and thereupon shall be relieved from all liability with
respect to such money. The Trustee and the Paying Agent shall pay to the Company
any money held by them for the payment of principal, premium, if any, or
interest that remains unclaimed for two years; provided that the Trustee or such
Paying Agent before being required to make any payment may cause to be published
at the expense of the Company once in a newspaper of general circulation in the
City of New York or mail to each Holder entitled to such money notice that such
money remains unclaimed and that after a date specified therein (which shall be
at least 30 days from the date of such publication or mailing) any unclaimed
balance of such money then remaining will be repaid to the Company. After
payment to the Company, Holders entitled to such money must look to the
Company for payment as general creditors unless an applicable law designates
another Person, and all liability of the Trustee and such Paying Agent with
respect to such money shall cease.
SECTION 8.06. Reinstatement . If the Trustee or Paying Agent
is unable to apply any money or U.S. Government Obligations in accordance with
Section 8.01, 8.02 or 8.03, as the case may be, by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture, the Guarantee, and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to Section
8.01, 8.02 or 8.03, as the case may be, until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 8.01, 8.02 or 8.03, as the case may be; provided that,
if the Company has made any payment of principal of, premium, if any, or
interest on any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders . The Company, when
authorized by Board Resolution, and the Trustee may amend or supplement this
Indenture, the Notes and the Pledge Agreement without notice to or the consent
of any Holder:
(a) to cure any ambiguity, defect or inconsistency in this
Indenture; provided that such amendments or supplements shall not
adversely affect the interests of the Holders in any material respect;
(b) to comply with Article Five and to provide for amendments
to the Pledge Agreement pursuant to Section 10.01 and to add Pledged
Notes to the Pledge Account;
(c) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company; or
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes;
(e) to add any additional Events of Default; or
(f) to add a Guarantor.
SECTION 9.02. With Consent of Holders . Subject to Sections
6.04 and 6.07 and without prior notice to the Holders, the Company, when
authorized by its Board of Directors (as evidenced by a Board Resolution), and
the Trustee may amend this Indenture [, the Notes
and the Pledge Agreement] with the consent of the Holders of not less than a
majority in aggregate principal amount at maturity of the Notes then
outstanding.
Notwithstanding the provisions of this Section 9.02, without
the consent of each Holder affected, an amendment or waiver, including a waiver
pursuant to Section 6.04, may not:
(i) change the Stated Maturity of the principal of, or any
installment of
interest on, any Note;
(ii) reduce the principal amount of, or premium, if any, or
interest on, any Note;
(iii) change the place or currency of payment of principal of,
or premium, if any, or interest on, any Note;
(iv) impair the right to institute suit for the enforcement of
any payment on or after the Stated Maturity (or, in the case of a
redemption, on or after the Redemption Date) of any Note;
(v) reduce the above-stated percentage of outstanding Notes
the consent of whose Holders is necessary to modify or amend the
Indenture;
(vi) waive a default in the payment of principal of, premium,
if any, or interest on the Notes;
(vii) reduce the percentage or aggregate principal amount at
maturity of outstanding Notes the consent of whose Holders is necessary
for waiver of compliance with certain provisions of the Indenture or
for waiver of certain defaults; or
(viii) release the Guarantors from the Note Guarantee.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing such amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03. Revocation and Effect of Consent . Until an
amendment or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the Note of the consenting
Holder, even if notation of the consent is not made on any Note. However,
any such Holder or subsequent Holder may revoke the consent as to its Note or
portion of its Note. Such revocation shall be effective only if the Trustee
receives the notice of revocation before the date any such amendment, supplement
or waiver becomes effective. An amendment, supplement or waiver shall become
effective on receipt by the Trustee of written consents from the Holders of the
requisite percentage in principal amount of the outstanding Notes.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders of Certificated Notes entitled
to consent to any amendment, supplement or waiver. If a record date is fixed,
then, notwithstanding the last two sentences of the immediately preceding
paragraph, those persons who were Holders of Certificated Notes at such record
date (or their duly designated proxies) and only those 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 of such
Certificated Notes after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder unless it is of the type described in any of clauses (a)
through (h) of Section 9.02. In case of an amendment or waiver of the type
described in clauses (a) through (h) of Section 9.02, the amendment or waiver
shall bind each Holder who has consented to it and every subsequent Holder of a
Note that evidences the same indebtedness as the Note of such consenting Holder.
SECTION 9.04. Notation on or Exchange of Notes . If an
amendment, supplement or waiver changes the terms of a Note, the Trustee may
require the Holder to deliver such Note to the Trustee. The Trustee may place an
appropriate notation on the Note about the changed terms and return it to the
Holder and the Trustee may place an appropriate notation on any Note thereafter
authenticated. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Note shall issue and the Trustee shall authenticate
a new Note that reflects the changed terms.
SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article Nine is authorized or permitted by
this Indenture. The Trustee shall execute any such amendment, supplement or
waiver upon satisfaction of the conditions precedent thereto contained herein,
unless such amendment, supplement or waiver adversely affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.06. Conformity with Trust Indenture Act . Every
supplemental indenture executed pursuant to this Article Nine shall conform to
the requirements of the TIA as then in effect.
ARTICLE TEN
SECURITY
SECTION 10.01. Security . (a) The Company shall (i) enter into
the Pledge Agreement (in the form attached hereto as Exhibit G) and comply with
the terms and provisions thereof and (ii) use a portion of the net proceeds of
the placement of Notes on the Closing Date to purchase the Pledged Notes to be
pledged to the Trustee for the benefit of the Holders of the Notes in such
amount as will be sufficient upon receipt of scheduled interest and principal
payments of the Pledged Notes, in the opinion of a nationally recognized firm of
independent public accountants selected by the Company, to provide for payment
in full of the first six scheduled interest payments due on the Notes. The
Pledged Notes shall be pledged by the Company to the Trustee for the benefit of
the Holders of the Notes and shall be held by the Trustee in the Pledge Account
pending disbursement pursuant to the Pledge Agreement.
(b) Each Holder, by its acceptance of a Note, consents and
agrees to the terms of the Pledge Agreement (including, without limitation, the
provisions providing for foreclosure and release of the Pledged Notes) as the
same may be in effect or may be amended from time to time in accordance with its
terms, and authorizes and directs the Trustee to enter into the Pledge Agreement
and to perform its respective obligations and exercise its respective rights
thereunder in accordance therewith. The Company will do or cause to be done all
such acts and things as may be necessary or proper, or as may be required by the
provisions of the Pledge Agreement, to assure and confirm to the Trustee the
security interest in the Pledged Notes contemplated hereby, by the Pledge
Agreement or any part thereof, as from time to time constituted, so as to render
the same available for the security and benefit of this Indenture and of the
Notes secured hereby, according to the intent and purposes herein expressed. The
Company shall take, or shall cause to be taken, upon request of the Trustee, any
and all actions reasonably required to cause the Pledge Agreement to create and
maintain, as security for the obligations of the Company under this Indenture
and the Notes, valid and enforceable first priority liens in and on all the
Pledge Notes, in favor of the Trustee, superior to and prior to the rights of
all third Persons and subject to no other Liens other than as provided herein.
(c) The release of any Pledged Notes pursuant to the Pledge
Agreement will not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the Pledged Notes
are released pursuant to this Indenture and the Pledge Agreement. To the extent
applicable, the Company shall cause TIA Section 314(d) relating to the release
of property or securities from the Lien and security interest of the Pledge
Agreement and relating to the substitution therefor of any property or
securities to be subjected to the Lien and security interest of the Pledge
Agreement to be complied with. Any certificate or opinion required by TIA
Section 314(d) may be made by an officer of the Company, except in cases where
TIA Section 314(d) requires that such certificate or opinion be made by an
independent Person, which Person shall be an independent engineer, appraiser or
other expert selected or approved by the Trustee in the exercise of reasonable
care.
(d) The Company shall cause TIA Section 314(b), relating to
opinions of counsel regarding the Lien under the Pledge Agreement, to be
complied with. The Trustee may,
to the extent permitted by Sections 7.01 and 7.02 hereof, accept as conclusive
evidence of compliance with the foregoing provisions the appropriate statements
contained in such instruments.
(e) The Trustee may, in its sole discretion and without the
consent of the Holders, on behalf of the Holders, take all actions it deems
necessary or appropriate in order to (i) enforce any of the terms of the Pledge
Agreement and (ii) collect and receive any and all amounts payable in respect of
the obligations of the Company thereunder. The Trustee shall have power to
institute and to maintain such suits and proceedings as the Trustee may deem
expedient to preserve or protect its interests and the interests of the Holders
in the Pledged Notes (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative or
other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment,
rule or order would impair the security interest hereunder or be prejudicial to
the interests of the Holders or of the Trustee).
ARTICLE ELEVEN
GUARANTEE OF NOTES
SECTION 11.01. Guarantee . Subject to the provisions of this
Article Eleven, the Guarantors hereby fully, unconditionally and irrevocably
guarantee to each Holder and to the Trustee on behalf of the Holders: (i) the
due and punctual payment of the principal of, premium, if any, and interest on
each Note, when and as the same shall become due and payable, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal of and interest, if any, on the Notes, to the extent
lawful, and the due and punctual performance of all other obligations of the
Company to the Holders or the Trustee, all in accordance with the terms of such
Note and this Indenture [and (ii) in the case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, at Stated Maturity, by acceleration or otherwise].
The Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger or bankruptcy of the Company, any
right to require a proceeding first against the Company, the benefit of
discussion, protest or notice with respect to any such Note or the debt
evidenced thereby and all demands whatsoever, and covenants that this Guarantee
will not be discharged as to any such Note except by payment in full of the
principal thereof and interest thereon and as provided in Section 8.01 and
Section 8.02 (subject to Section 8.06). The maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Six for the purposes
of this Article Eleven. In the event of any declaration of acceleration of such
obligations as provided in Article Six, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantor for the purpose
of this Article Eleven. In addition, without limiting the foregoing provisions,
upon the effectiveness of an acceleration under Article Six, the Trustee shall
promptly make a demand for payment on the Notes under the Guarantee provided for
in this Article Eleven.
If the Trustee or the Holder of any Note is required by any
court or otherwise to return to the Company or the Guarantor, or any custodian,
receiver, liquidator, trustee, sequestrator or other similar official acting in
relation to the Company or the Guarantor, any amount paid to the Trustee or such
Holder in respect of a Note, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. The Guarantor further
agrees, to the fullest extent that it may lawfully do so, that, as between it,
on the one hand, and the Holders and the Trustee, on the other hand, the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Six hereof for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition extant under any applicable bankruptcy law
preventing such acceleration in respect of the obligations guaranteed hereby.
The Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Company that arise from
the existence, payment, performance or enforcement of its obligations under this
Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of the Holders against the Company
or any collateral which any such Holder or the Trustee on behalf of such Holder
hereafter acquires, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law, including, without limitation, the
right to take or receive from the Company, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim or other rights. If any amount shall be paid to the
Guarantor in violation of the preceding sentence and the principal of, premium,
if any, and accrued interest on the Notes shall not have been paid in full, such
amount shall be deemed to have been paid to the Guarantor for the benefit of,
and held in trust for the benefit of, the Holders, and shall forthwith be paid
to the Trustee for the benefit of the Holders to be credited and applied upon
the principal of, premium, if any, and accrued interest on the Notes. The
Guarantor acknowledges that it will receive direct and indirect benefits from
the issuance of the Notes pursuant to this Indenture and that the waivers set
forth in this Section 11.01 are knowingly made in contemplation of such
benefits.
The Guarantee set forth in this Section 11.01 shall not be
valid or become obligatory for any purpose with respect to a Note until the
certificate of authentication on such Note shall have been signed by or on
behalf of the Trustee.
SECTION 11.02. Obligations Unconditional . Subject to Section
11.05, nothing contained in this Article Eleven or elsewhere in this Indenture
or in the Notes is intended to or shall impair, as among the Guarantor and the
holders of the Notes, the obligation of the Guarantor, which is absolute and
unconditional, upon failure by the Company, to pay to the holders of the Notes
the principal of, premium, if any, and interest on the Notes as and when the
same shall become due and payable in accordance with their terms, or is intended
to or shall affect the relative rights of the holders of the Notes and creditors
of the Guarantor, nor shall anything herein or therein prevent the holder of any
Notes or the Trustee on their behalf from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture.
Without limiting the foregoing, nothing contained in this
Article Eleven will restrict the right of the Trustee or the holders of the
Notes to take any action to declare the Guarantee to be due and payable prior to
the Stated Maturity of the Notes pursuant to Section 6.02 or to pursue any
rights or remedies hereunder.
SECTION 11.03. Notice to Trustee . The Guarantor shall give
prompt written notice to the Trustee of any fact known to the Guarantor which
would prohibit the making of any payment to or by the Trustee in respect of the
Guarantee pursuant to the provisions of this Article Eleven.
SECTION 11.04. This Article Not to Prevent Events of Default .
The failure to make a payment on account of principal of, premium, if any, or
interest on the Notes by reason of any provision of this Article will not be
construed as preventing the occurrence of an Event of Default.
SECTION 11.05. Net Worth Limitation . Notwithstanding any
other provision of this Indenture or the Notes, the Guarantee shall not be
enforceable against the Guarantor in an amount in excess of the net worth of the
Guarantor at the time that determination of such net worth is, under applicable
law, relevant to the enforceability of the Guarantee. Such net worth shall
include any claim of the Guarantor against the Company for reimbursement and any
claim against any grantor of a Guarantee for contribution.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act of 1939 . This Indenture
shall be subject to the provisions of the TIA that are required to be a part of
this Indenture and shall, to the extent applicable, be governed by such
provisions.
SECTION 12.02. Notices . Any notice or communication shall be
sufficiently given if in writing and delivered in person or mailed by first
class mail or telecopier communication, addressed as follows, and received by
the addressee:
if to the Company:
Orion Newco Services, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 00
Xxxxxxxxx, Xxxxxxxx 00000
Telecopier No: (000) 000-0000
Attention: [________]
with a copy to:
Xxxxx & Xxxxxxx, L.L.P.
Columbia Square
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Telecopier No.: (000) 000-0000
Attention: [________]
if to the Trustee:
Bankers Trust Company
0 Xxxxxx Xxxxxx
Mailstop 5041
New York, N.Y. 10006
Telecopier No.: (000) 000-0000
Attention: Corporate Trustee Administration Department
with a copy to:
Leboeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx Xxxxxxx
The Company, the Trustee or the Depositary by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder of a
Certificated Note shall be mailed to him at his address as it appears on the
Register by first class mail and shall be sufficiently given to him if so mailed
within the time prescribed. Copies of any such communication or notice to a
Holder shall also be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder as
provided herein or any defect in it shall not affect its sufficiency with
respect to other Holders. Except for a notice to the Trustee, which is deemed
given only when received, and except as otherwise provided in this Indenture, if
a notice or communication is mailed in the manner provided in this Section
12.02, it is duly given, whether or not the addressee receives it.
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.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 12.03. Certificate and Opinion as to Conditions
Precedent . Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.04. Statements Required in Certificate or Opinion .
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each person signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(c) a statement that, in the opinion of each such person, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials.
SECTION 12.05. Acts of Holders . (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and conclusive in favor of the Trustee and the Company, if made
in the manner provided in this Section 10.05.
(b) The ownership of Notes shall be proved by the Register.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Note shall bind every
future Holder of the same Note or the Holder of every Note issued upon the
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Note.
(d) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver of other act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of such Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other act,
but the Company shall have no obligation to do so. Notwithstanding Trust
Indenture Act Section 316(c), any such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
more than 30 days prior to the first solicitation of Holders generally in
connection therewith and no later than the date such solicitation is completed.
If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for purposes of
determining whether Holders of the requisite proportion of Notes then
outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other act, and for this
purpose the Notes then outstanding shall be computed as of such record date;
provided that no such request, demand, authorization, direction, notice,
consent, waiver or other act by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 12.06. Rules by Trustee, Paying Agent or Registrar.
The Trustee may make reasonable rules for action by or at a meeting of Holders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 12.07. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities . By the execution and delivery of this Indenture, each of
the Company and the Guarantor (i) acknowledges that it has designated and
appointed [______], as its authorized agent upon which process may be served in
any suit, action or proceeding arising out of or relating to the Notes or this
Indenture that may be instituted in any federal or state court in the State of
New York, Borough of Manhattan, or brought under federal or state securities
laws or brought by the Trustee (whether in its individual capacity or in its
capacity as Trustee hereunder), and acknowledges that [______] has accepted such
designation, (ii) submits to the non-exclusive jurisdiction of any such court in
any such suit, action or proceeding, and (iii) agrees that service of process
upon [______] and written notice of said service to the Company (mailed or
delivered to its General Counsel at its principal office as specified in
Section 12.02) shall be deemed in every respect effective service of process
upon it in any such suit or proceeding. The Company further agrees to take any
and all action, including the execution and filing of any and all such documents
and instruments as may be necessary to continue such designation and appointment
of [______] in full force and effect so long as this Indenture shall be in full
force and effect or any of the Notes shall be outstanding.
To the extent that the Company 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, the
Company hereby irrevocably waives such immunity in respect of its obligations
under this Indenture and the Notes, to the extent permitted by law.
SECTION 12.08. Payment Date Other Than a Business Day . If an
Interest Payment Date, Redemption Date, Payment Date or Stated Maturity of any
Note shall not be a Business Day, then payment of principal of, premium, if any,
or interest on such Note, as the case may be, 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, Payment Date or Redemption Date, or at
the Stated Maturity of such Note, provided that no interest shall accrue for the
period from and after such Interest Payment Date, Payment Date, Redemption Date
or Stated Maturity, as the case may be.
SECTION 12.09. Governing Law . This Indenture and the Notes
shall be governed by the laws of the State of [New York] excluding (to the
greatest extent permissible by law) any rule of law that would cause the
application of the laws of any jurisdiction other than the State of [New York].
SECTION 12.10. No Adverse Interpretation of Other Agreements .
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.11. No Recourse Against Others . No recourse for
the payment of the principal of, premium, if any, or interest on any of the
Notes, or for any claim based thereon or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement of the Company
contained in this Indenture, the Pledge Agreement or in any of the Notes, or
because of the creation of any Indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer, director, employee or
controlling person, as such, of the Company or the Guarantor or of any successor
Person thereof, either directly or through the Company or any successor Person,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture, the
Pledge Agreement and the issue of the Notes.
SECTION 12.12. Successors . All agreements of the Company in
this Indenture and the Notes shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 12.13. Duplicate Originals . The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
SECTION 12.14. Separability . 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 12.15. Table of Contents, Headings, Etc. The Table of
Contents, Cross-Reference Table and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof and shall in no way modify or restrict any of the
terms and provisions hereof.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
ORION NEWCO SERVICES, INC. BANKERS TRUST COMPANY
By:_____________________________ By:____________________________
Name: __________________________ Name:__________________________
Title:__________________________ Title:_________________________
ORION NETWORK SYSTEMS, INC. ORION SATELLITE CORPORATION
By:_____________________________ By:____________________________
Name: __________________________ Name:__________________________
Title:__________________________ Title:_________________________
ORIONNET, INC. ORION ATLANTIC EUROPE, INC.
By:_____________________________ By:____________________________
Name: __________________________ Name:__________________________
Title:__________________________ Title:_________________________
ORION ASIA PACIFIC CORPORATION ORIONNET FINANCE CORPORATION
By:_____________________________ By:____________________________
Name: __________________________ Name:__________________________
Title:__________________________ Title:_________________________
ASIA PACIFIC SPACE AND INTERNATIONAL PRIVATE
SATELLITE COMMUNICATIONS, LTD. PARTNERS, L.P.
By:_____________________________ By:____________________________
Name: __________________________ Name:__________________________
Title:__________________________ Title:_________________________
EXHIBIT A
FORM OF GLOBAL NOTE
[FACE OF NOTE]
THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART OF AN
ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF ONE NOTE WITH A PRINCIPAL AMOUNT AT
MATURITY OF [ ] AND ONE WARRANT INITIALLY ENTITLING THE HOLDER THEREOF TO
PURCHASE [ ] SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE, OF ORION NEWCO
SERVICES, INC. (THE "COMMON STOCK"). PRIOR TO THE CLOSE OF BUSINESS UPON THE
EARLIEST TO OCCUR OF (i) [ ], 1997, (ii) SUCH DATE AS THE UNDERWRITES MAY, IN
THEIR DISCRETION DEEM APPROPRIATE OR (iii) IN THE EVENT OF AN OFFER TO PURCHASE,
THE DATE THE COMPANY MAILS NOTICE THEREOF TO THE HOLDERS OF THE NOTES, THE NOTES
EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY
FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE WARRANTS.
THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS
NOTE) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF
THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (III) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF ORION NEWCO SERVICES, INC.
ORION NEWCO SERVICES, INC.
[___]% Senior Note Due 2007
CUSIP [ ________]
No. __________
Issue Date: ______________________
ORION NEWCO SERVICES, INC., a Delaware corporation, with
registration number [_______] (the "Company", which term includes any successor
under the Indenture hereinafter referred to), for value received, promises to
pay to the bearer upon surrender hereof the principal sum of
_________________________________ United States Dollars (U.S.$________________)
on 2007.
Interest Payment Dates: [ ] and [ ], commencing [ ]
1997.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which provisions shall have the same
effect as if set forth hereon.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officer.
Date: ORION NEWCO SERVICES, INC.
By:____________________________
Name:__________________________
Title:_________________________
This is one of the [___]% Senior Notes due 2007 described in the
within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By: _______________________________
Authorized Officer
[REVERSE SIDE OF NOTE]
ORION NEWCO SERVICES, INC.
[___]% Senior Note due 2007
1. Principal and Interest.
Orion Newco Services, Inc. (the "Company") will pay the
principal of this Note on [ ], 2007.
The Company promises to pay interest on the principal amount
of this Note on each Interest Payment Date, as set forth below, at the rate per
annum shown above.
Interest on the Notes shall accrue at the rate of [___]% per
annum (the "Interest Rate") and shall be payable in U.S. dollars in cash
semi-annually in arrears on [ ] and [ ] (each an "Interest Payment Date");
provided that the first Interest Payment Date shall be [ ], 1997. Interest on
the Notes will accrue from the most recent date to which interest has been paid
or duly provided for, or if no interest has been paid or duly provided for, from
the date of original issuance hereof. Interest will be computed on the basis of
a 360-day year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal and
premium, if any, and (to the extent lawful) interest on overdue installments of
interest at the rate of [___]% per annum.
2. Method of Payment.
The Company will pay interest and principal to the Depositary,
with respect to any Global Note held by the Depositary. The Company will pay
principal, premium, if any, and interest in money of the United States of
America that at the time of payment is legal tender for payment of public and
private debts. However, the Company may pay principal, premium, if any, and
interest by check payable in such money. If a payment date is a date other than
a Business Day at a place of payment, payment may be made at that place on the
next succeeding day that is a Business Day and no interest shall accrue for the
intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar.
The Company may change any Paying Agent and Registrar without notice in
accordance with the Indenture. The Company, any Affiliate or any Subsidiary
thereof may act as the Paying Agent or Registrar.
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of
[__________], 1997 (the "Indenture"), between the Company, Orion Network
Systems, Inc., Orion Satellite Corporation, International Private Satellite
Partners, L.P., OrionNet, Inc., Orion Asia Pacific Corporation, Asia Pacific
Space and Communications, Ltd., Orion Atlantic Europe, Inc. and OrionNet Finance
Corporation, as guarantors, and the Bankers Trust Company, as trustee (the
"Trustee"). Capitalized terms herein are used as defined in the Indenture unless
otherwise indicated. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act. The Notes are subject to all such terms, and Holders are referred
to the Indenture and the Trust Indenture Act for a statement of all such terms.
To the extent permitted by applicable law, in the event of any inconsistency
between the terms of this Note and the terms of the Indenture, the terms of the
Indenture shall control.
The Notes are unsecured senior indebtedness of the Company.
The Indenture limits the aggregate principal amount of the Notes to $[ ].
5. Optional Redemption.
The Notes will be redeemable, at the Company's option, in
whole or in part, at any time or from time to time on or after [ ], 2002 and
prior to maturity, upon not less than 30 nor more than 60 days' prior notice, at
the following Redemption Prices (expressed in percentages of their principal
amount), plus accrued and unpaid interest, if any, to the Redemption Date if
redeemed during the 12-month period commencing on October [__] of the applicable
years set forth below:
Year Redemption Price
2002 [_____]%
2003 [_____]%
2004 and thereafter 100.000%
6. Selection of Notes for Partial Redemption; Effect of Redemption Notice.
In the case of any partial redemption, selection of the Notes
for redemption will be made by the Trustee in compliance with the requirements
of the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not listed on a national securities exchange, on a
pro rata basis, by lot or by such method as the Trustee in its sole discretion
shall deem to be fair and appropriate; provided that no Note of $1,000 in
principal amount or less shall be redeemed in part. If any Note is to be
redeemed in part only, the notice of redemption relating to such Note shall
state the portion of the principal amount thereof to be redeemed. A new Note in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon cancellation of the original Note. Upon the
giving of any redemption notice, interest on Notes called for redemption will
cease to accrue from and after the date fixed for redemption (unless the Company
defaults in providing the funds for such redemption) and such Notes will then
cease to be outstanding.
7. Notice of Redemption.
Notice of any optional redemption will be mailed at least 30
days but not more than 60 days before the Redemption Date to the Holders of
Notes to be redeemed at such Holder's registered address as it appears in the
Register.
8. Repurchase upon Change of Control.
Upon the occurrence of any Change of Control, the Company will
be obligated to make an offer to purchase all outstanding Notes pursuant to the
Offer to Purchase described in the Indenture at a purchase price equal to 101%
of the aggregate principal amount thereof plus accrued and unpaid interest, if
any, to the date of purchase (the "Change of Control Payment").
A notice of such Change of Control will be mailed within 30
days after any Change of Control occurs to each Holder of Notes at such Holder's
registered address as it appears in the Register. Notes in original
denominations larger than $1,000 may be sold to the Company in part; provided
that Notes will only be issued in denominations of $1,000 principal amount at
maturity or integral multiples thereof. On and after the Payment Date, interest
ceases to accrue on Notes or portions of Notes surrendered for purchase by the
Company, unless the Company defaults in the payment of the Change of Control
Payment.
9. Denomination.
This Global Note is in fully registered form without coupons
and is denominated in an amount equal to $1,000 of principal amount at maturity
or an integral multiple thereof and is transferable by delivery. This Note is a
Global Note.
10. Persons Deemed Owners.
The holder of this Note shall be treated as the owner of this
Note for all purposes.
11. Unclaimed Money.
If money for the payment of principal, premium, if any, and
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its request. After that, Holders entitled
to the money must look to the Company for payment, unless an applicable law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
If the Company deposits with the Trustee money or U.S.
Government Obligations sufficient to pay the then outstanding principal of,
premium, if any, and accrued interest on the Notes (a) to redemption or Stated
Maturity, the Company will be discharged from the Indenture
and the Notes, except in certain circumstances for certain sections thereof, or
(b) the Company will be discharged from certain covenants set forth in the
Indenture.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may
be amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding, and any
existing default or compliance with any provision may be waived with the consent
of the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not materially and adversely affect the rights of any Holder.
14. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of
the Company and the Restricted Subsidiaries, among other things, to Incur
additional Indebtedness; create Liens; pay dividends or make distributions in
respect of their Capital Stock; make Investments or make certain other
Restricted Payments; engage in Asset Sales; issue or sell stock of Restricted
Subsidiaries; enter into transactions with stockholders or Affiliates; or, with
respect to the Company, consolidate, merge or sell all or substantially all of
its assets. Within 90 days after the end of the last fiscal quarter of each
year, the Company must report to the Trustee on compliance with such
limitations.
15. Successor Persons.
Generally, when a successor person or other entity assumes all
the obligations of its predecessor under the Notes and the Indenture, the
predecessor person will be released from those obligations.
16. Defaults and Remedies.
The following events will be defined as "Events of Default" in
the Indenture: (a) default in the payment of principal of (or premium, if any,
on) any Note when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise; (b) default in the payment of interest on
any Note when the same becomes due and payable, and such default continues for a
period of 30 days; provided that a failure to make any of the first six
scheduled interest payments on the Notes in a timely manner will constitute an
Event of Default with no grace or cure period; (c) defaults in the performance
or breach of the provisions of Section 5.01 of the Indenture or the failure to
make or consummate an Offer to Purchase in accordance with Section 4.11 or
Section 4.13 of the Indenture; (d) the Company defaults in the performance of or
breaches any other covenant or agreement of the Company in the Indenture or
under the Notes (other than a default specified in clause (a), (b) or (c) above)
and such default or breach continues for a period of 30 consecutive days after
written notice by the Trustee or the Holders of 25% or
more in aggregate principal amount at maturity of the Notes; (e) there occurs
with respect to any issue or issues of Indebtedness of the Company or any
Significant Subsidiary having an outstanding principal amount of $10 million or
more in the aggregate for all such issues of all such Persons, whether such
Indebtedness now exists or shall hereafter be created, (I) an event of default
that has caused the holder thereof to declare such Indebtedness to be due and
payable prior to its Stated Maturity and such Indebtedness has not been
discharged in full or such acceleration has not been rescinded or annulled
within 30 days of such acceleration and/or (II) the failure to make a principal
payment at the final (but not any interim) fixed maturity and such defaulted
payment shall not have been made, waived or extended within 30 days of such
payment default; (f) any final judgment or order (not covered by insurance) for
the payment of money in excess of $10 million in the aggregate for all such
final judgments or orders against all such Persons (treating any deductibles,
self-insurance or retention as not so covered) shall be rendered against the
Company or any Significant Subsidiary and shall not be paid or discharged, and
there shall be any period of 30 consecutive days following entry of the final
judgment or order that causes the aggregate amount for all such final judgments
or orders outstanding and not paid or discharged against all such Persons to
exceed $10 million during which a stay of enforcement of such final judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; (g) a
court having jurisdiction in the premises enters a decree or order for (A)
relief in respect of the Company or any Significant Subsidiary in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (B) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) the winding up or
liquidation of the affairs of the Company or any Significant Subsidiary and, in
each case, such decree or order shall remain unstayed and in effect for a period
of 30 consecutive days; or (h) the Company or any Significant Subsidiary (A)
commences a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) effects any general
assignment for the benefit of creditors.
If an Event of Default (other than an Event of Default
specified in clause (g) or (h) above that occurs with respect to the Company)
occurs and is continuing under the Indenture, the Trustee or the Holders of at
least 25% in aggregate principal amount outstanding, by written notice to the
Company (and to the Trustee if such notice is given by the Holders), may, and
the Trustee at the request of such Holders shall, declare the principal amount
of, premium, if any, and accrued interest on the Notes to be immediately due and
payable. Upon a declaration of acceleration, such principal amount of, premium,
if any, and accrued interest shall be immediately due and payable. In the event
of a declaration of acceleration because an Event of Default set forth in clause
(e) above has occurred and is continuing, such declaration of acceleration shall
be automatically rescinded and annulled if the event of default triggering such
Event of Default pursuant to clause (e) shall be remedied or cured by the
Company or the relevant Significant Subsidiary or waived by the holders of the
relevant Indebtedness within 60 days after the declaration of acceleration with
respect thereto. If an Event of Default specified in clause (g) or
(h) above occurs with respect to the Company, the principal amount of, premium,
if any, and accrued interest on the Notes then outstanding shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder. The Holders of at least a majority in
principal amount at maturity of the outstanding Notes by written notice to the
Company and to the Trustee, may waive all past defaults and rescind and annul a
declaration of acceleration and its consequences if (i) all existing Events of
Default, other than the nonpayment of the principal of, premium, if any, and
interest on the Notes that have become due solely by such declaration of
acceleration, have been cured or waived and (ii) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction.
The Holders of at least a majority in aggregate principal
amount at maturity of the outstanding Notes may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or the Indenture, that
may involve the Trustee in personal liability, or that the Trustee determines in
good faith may be unduly prejudicial to the rights of Holders of Notes not
joining in the giving of such direction and may take any other action it deems
proper that is not inconsistent with any such direction received from Holders of
Notes. A Holder may not pursue any remedy with respect to the Indenture or the
Notes unless: (i) the Holder gives the Trustee written notice of a continuing
Event of Default; (ii) the Holders of at least 25% in aggregate principal amount
at maturity of outstanding Notes make a written request to the Trustee to pursue
the remedy; (iii) such Holder or Holders offer the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense; (iv) the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and (v) during such 60-day period, the
Holders of a majority in aggregate principal amount at maturity of the
outstanding Notes do not give the Trustee a direction that is inconsistent with
the request. However, such limitations do not apply to the right of any Holder
of a Note to receive payment of the principal of, premium, if any, or interest
on, such Note or to bring suit for the enforcement of any such payment, on or
after the due date expressed in the Notes, which right shall not be impaired or
affected without the consent of the Holder.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may become owner or pledgee of Notes and may otherwise deal with
the Company or its Affiliates with the same rights it would have if it were not
the Trustee.
18. No Recourse Against Others.
No recourse for the payment of the principal of, premium, if
any, or interest on any of the Notes or for any claim based thereon or otherwise
in respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in the Indenture, or in any of the Notes or because of
the creation of any Indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer, director, employee or controlling person of
the
Company or of any successor Person thereof. Each Holder, by accepting the Notes,
waives and releases all such liability.
19. Authentication.
This Note shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on the other side
of this Note.
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Notes and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The internal laws of the State of New York shall govern this
Note without regard to principles of conflict of laws.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to Orion Newco
Services, Inc., 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 00, Xxxxxxxxx, Xxxxxxxx 00000,
Attention: [____________].
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT OF INDEBTEDNESS
EVIDENCED BY THIS NOTE
The initial principal amount of indebtedness evidenced by this
Note shall be $__,__,__. The following decreases/increases in the principal
amount evidenced by this Note have been made:
Decrease in Increase in Total Principal Amount of
Principal Principal this Global Note Following Notation Made
Date of Decrease/ Amount of this Amount of this such Decrease/Increase by or on
Increase Global Note Global Note Behalf of
Trustee
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company
pursuant to Section 4.11 or Section 4.13 of the Indenture, check the box:
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 4.11 or Section 4.13 of the Indenture, state the
amount (in principal amount):
$___________________ ($1000 or integral multiple thereof).
Date:________________________
Your Signature:_________________________________________________________________
Signature Guarantee: ______________________________
EXHIBIT B
FORM OF CERTIFICATED NOTE
[FACE OF NOTE]
THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART OF AN
ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF ONE NOTE WITH AMOUNT AT MATURITY OF
$[____] AND ONE WARRANT INITIALLY ENTITLING THE HOLDER THEREOF TO PURCHASE AN
EQUAL NUMBER OF SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE, OF ORION NEWCO
SERVICES, INC. (THE "COMMON STOCK"). PRIOR TO THE CLOSE OF BUSINESS UPON THE
EARLIEST TO OCCUR OF (i) [ ], 1997, (ii) SUCH DATE AS THE UNDERWRITES MAY, IN
THEIR DISCRETION DEEM APPROPRIATE OR (iii) IN THE EVENT OF AN OFFER TO PURCHASE,
THE DATE THE COMPANY MAILS NOTICE THEREOF TO THE HOLDERS OF THE NOTES, THE NOTES
EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY
FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE WARRANTS.
ORION NEWCO SERVICES, INC.
[___]% Senior Note Due 2007
CUSIP [ ________]
No. __________
Issue Date: ______________________
ORION NEWCO SERVICES, INC., a Delaware corporation, with registration
number [_______] (the "Company", which term includes any successor under the
Indenture hereinafter referred to), for value received, promises to pay to the
bearer upon surrender hereof the principal sum of
_________________________________ United States Dollars (U.S.$________________)
on 2007.
Interest Payment Dates: [ ] and [ ], commencing [ ] 1997.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which provisions shall have the same effect as if
set forth hereon.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officer.
Date: ORION NEWCO SERVICES, INC.
By:____________________________
Name:__________________________
Title:_________________________
This is one of the [___]% Senior Notes due 2007 described in the
within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By:____________________________
Authorized Officer
[REVERSE SIDE OF NOTE]
ORION NEWCO SERVICES, INC.
[___]% Senior Note due 2007
1. Principal and Interest.
Orion Newco Services, Inc. (the "Company") will pay the
principal of this Note on [______________], 2007.
The Company promises to pay interest on the principal amount
of this Note on each Interest Payment Date, as set forth below, at the rate per
annum shown above.
Interest on the Notes shall accrue at the rate of [___]% per
annum (the "Interest Rate") and shall be payable in U.S. dollars in cash
semi-annually in arrears on [ ] and [ ] (each an "Interest Payment Date");
provided that the first Interest Payment Date shall be [ ], 2002. Interest on
the Notes will accrue from the most recent date to which interest has been paid
or duly provided for, or if no interest has been paid or duly provided for, from
the date of original issuance hereof. Interest will be computed on the basis of
a 360-day year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal and
premium, if any, and (to the extent lawful) interest on overdue installments of
interest at the rate of [___]% per annum.
2. Method of Payment.
The Company will pay interest on the Notes to the Holder of
this Note upon presentment hereof at the office of the Paying Agent of the
Company maintained for that purpose in the Borough of Manhattan, the City of New
York. Holders must surrender Notes to such Paying Agent to collect principal
payments. The Company will pay principal, premium, if any, and interest in money
of the United States of America that at the time of payment is legal tender for
payment of public and private debts. However, the Company may pay principal,
premium, if any, and interest by check payable in such money. If a payment date
is a date other than a Business Day at a place of payment, payment may be made
at that place on the next succeeding day that is a Business Day and no interest
shall accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar.
The Company may change any Paying Agent and Registrar without notice in
accordance with the Indenture. The Company, any Affiliate or any Subsidiary
thereof may act as the Paying Agent or Registrar.
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of
[__________], 1997 (the "Indenture"), between the Company, Orion Network
Systems, Inc., Orion Satellite Corporation, International Private Satellite
Partners, L.P., OrionNet, Inc., Orion Asia Pacific Corporation, Asia Pacific
Space and Communications, Ltd., Orion Atlantic Europe, Inc. and OrionNet Finance
Corporation, as guarantors, and the Bankers Trust Company, as trustee (the
"Trustee"). Capitalized terms herein are used as defined in the Indenture unless
otherwise indicated. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act. The Notes are subject to all such terms, and Holders are referred
to the Indenture and the Trust Indenture Act for a statement of all such terms.
To the extent permitted by applicable law, in the event of any inconsistency
between the terms of this Note and the terms of the Indenture, the terms of the
Indenture shall control.
The Notes are unsecured senior indebtedness of the Company.
The Indenture limits the aggregate principal amount of the Notes to $[ ].
5. Optional Redemption.
The Notes will be redeemable, at the Company's option, in
whole or in part, at any time or from time to time on or after [ ], 2002 and
prior to maturity, upon not less than 30 nor more than 60 days' prior notice, at
the following Redemption Prices (expressed in percentages of their principal
amount), plus accrued and unpaid interest, if any, to the Redemption Date if
redeemed during the 12-month period commencing on October [__] of the applicable
years set forth below:
Year Redemption Price
2002 [_____]%
2003 [_____]%
2004 and thereafter 100.000%
6. Selection of Notes for Partial Redemption; Effect of Redemption Notice.
In the case of any partial redemption, selection of the Notes
for redemption will be made by the Trustee in compliance with the requirements
of the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not listed on a national securities exchange, on a
pro rata basis, by lot or by such method as the Trustee in its sole discretion
shall deem to be fair and appropriate; provided that no Note of $1,000 in
principal amount or less shall be redeemed in part. If any Note is to be
redeemed in part only, the notice of redemption relating to such Note shall
state the portion of the principal amount thereof to be redeemed. A new Note in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon cancellation of the original Note. Upon the
giving of any redemption notice, interest on Notes called for redemption will
cease to accrue from and
after the date fixed for redemption (unless the Company defaults in providing
the funds for such redemption) and such Notes will then cease to be outstanding.
7. Notice of Redemption.
Notice of any optional redemption will be mailed at least 30
days but not more than 60 days before the Redemption Date to the Holders of
Notes to be redeemed at such Holder's registered address as it appears in the
Register.
8. Repurchase upon Change of Control.
Upon the occurrence of any Change of Control, the Company will
be obligated to make an offer to purchase all outstanding Notes pursuant to the
Offer to Purchase described in the Indenture at a purchase price equal to 101%
of the aggregate principal amount thereof plus accrued and unpaid interest, if
any, to the date of purchase (the "Change of Control Payment").
A notice of such Change of Control will be mailed within 30
days after any Change of Control occurs to each Holder of Notes at such Holder's
registered address as it appears in the Register. Notes in original
denominations larger than $1,000 may be sold to the Company in part; provided
that Notes will only be issued in denominations of $1,000 principal amount at
maturity or integral multiples thereof. On and after the Payment Date, interest
ceases to accrue on Notes or portions of Notes surrendered for purchase by the
Company, unless the Company defaults in the payment of the Change of Control
Payment.
9. Denomination.
This Certificated Note is in fully registered form without
coupons and is denominated in an amount equal to $1,000 of principal amount at
maturity or an integral multiple thereof and is transferable by presentation or
surrender to the registrar for registration of transfer either endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
registrar.
10. Persons Deemed Owners.
The holder of this Note shall be treated as the owner of this
Note for all purposes.
11. Unclaimed Money.
If money for the payment of principal, premium, if any, and
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its request. After that, Holders entitled
to the money must look to the Company for payment, unless an applicable law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
If the Company deposits with the Trustee money or U.S.
Government Obligations sufficient to pay the then outstanding principal of,
premium, if any, and accrued interest on the Notes (a) to redemption or Stated
Maturity, the Company will be discharged from the Indenture and the Notes,
except in certain circumstances for certain sections thereof, or (b) the Company
will be discharged from certain covenants set forth in the Indenture.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may
be amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the Notes then outstanding, and any
existing default or compliance with any provision may be waived with the consent
of the Holders of at least a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not materially and adversely affect the rights of any Holder.
14. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of
the Company and the Restricted Subsidiaries, among other things, to Incur
additional Indebtedness; create Liens; pay dividends or make distributions in
respect of their Capital Stock; make Investments or make certain other
Restricted Payments; engage in Asset Sales; issue or sell stock of Restricted
Subsidiaries; enter into transactions with stockholders or Affiliates; or, with
respect to the Company, consolidate, merge or sell all or substantially all of
its assets. Within 90 days after the end of the last fiscal quarter of each
year, the Company must report to the Trustee on compliance with such
limitations.
15. Successor Persons.
Generally, when a successor person or other entity assumes all
the obligations of its predecessor under the Notes and the Indenture, the
predecessor person will be released from those obligations.
16. Defaults and Remedies.
The following events will be defined as "Events of Default" in
the Indenture: (a) default in the payment of principal of (or premium, if any,
on) any Note when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise; (b) default in the payment of interest on
any Note when the same becomes due and payable, and such default continues for a
period of 30 days; provided that a failure to make any of the first six
scheduled interest payments on the Notes in a timely manner will constitute an
Event of Default with no grace or cure period; (c) defaults in the performance
or breach of the provisions of Section 5.01
of the Indenture or the failure to make or consummate an Offer to Purchase in
accordance with Section 4.11 or Section 4.13 of the Indenture; (d) the Company
defaults in the performance of or breaches any other covenant or agreement of
the Company in the Indenture or under the Notes (other than a default specified
in clause (a), (b) or (c) above) and such default or breach continues for a
period of 30 consecutive days after written notice by the Trustee or the Holders
of 25% or more in aggregate principal amount at maturity of the Notes; (e) there
occurs with respect to any issue or issues of Indebtedness of the Company or any
Significant Subsidiary having an outstanding principal amount of $10 million or
more in the aggregate for all such issues of all such Persons, whether such
Indebtedness now exists or shall hereafter be created, (I) an event of default
that has caused the holder thereof to declare such Indebtedness to be due and
payable prior to its Stated Maturity and such Indebtedness has not been
discharged in full or such acceleration has not been rescinded or annulled
within 30 days of such acceleration and/or (II) the failure to make a principal
payment at the final (but not any interim) fixed maturity and such defaulted
payment shall not have been made, waived or extended within 30 days of such
payment default; (f) any final judgment or order (not covered by insurance) for
the payment of money in excess of $10 million in the aggregate for all such
final judgments or orders against all such Persons (treating any deductibles,
self-insurance or retention as not so covered) shall be rendered against the
Company or any Significant Subsidiary and shall not be paid or discharged, and
there shall be any period of 30 consecutive days following entry of the final
judgment or order that causes the aggregate amount for all such final judgments
or orders outstanding and not paid or discharged against all such Persons to
exceed $10 million during which a stay of enforcement of such final judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; (g) a
court having jurisdiction in the premises enters a decree or order for (A)
relief in respect of the Company or any Significant Subsidiary in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (B) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) the winding up or
liquidation of the affairs of the Company or any Significant Subsidiary and, in
each case, such decree or order shall remain unstayed and in effect for a period
of 30 consecutive days; or (h) the Company or any Significant Subsidiary (A)
commences a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) effects any general
assignment for the benefit of creditors.
If an Event of Default (other than an Event of Default
specified in clause (g) or (h) above that occurs with respect to the Company)
occurs and is continuing under the Indenture, the Trustee or the Holders of at
least 25% in aggregate principal amount outstanding, by written notice to the
Company (and to the Trustee if such notice is given by the Holders), may, and
the Trustee at the request of such Holders shall, declare the principal amount
of, premium, if any, and accrued interest on the Notes to be immediately due and
payable. Upon a declaration of acceleration, such principal amount of, premium,
if any, and accrued interest shall be immediately due and payable. In the event
of a declaration of acceleration because an Event of Default set
forth in clause (e) above has occurred and is continuing, such declaration of
acceleration shall be automatically rescinded and annulled if the event of
default triggering such Event of Default pursuant to clause (e) shall be
remedied or cured by the Company or the relevant Significant Subsidiary or
waived by the holders of the relevant Indebtedness within 60 days after the
declaration of acceleration with respect thereto. If an Event of Default
specified in clause (g) or (h) above occurs with respect to the Company, the
principal amount of, premium, if any, and accrued interest on the Notes then
outstanding shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder. The
Holders of at least a majority in principal amount at maturity of the
outstanding Notes by written notice to the Company and to the Trustee, may waive
all past defaults and rescind and annul a declaration of acceleration and its
consequences if (i) all existing Events of Default, other than the nonpayment of
the principal of, premium, if any, and interest on the Notes that have become
due solely by such declaration of acceleration, have been cured or waived and
(ii) the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction.
The Holders of at least a majority in aggregate principal
amount at maturity of the outstanding Notes may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or the Indenture, that
may involve the Trustee in personal liability, or that the Trustee determines in
good faith may be unduly prejudicial to the rights of Holders of Notes not
joining in the giving of such direction and may take any other action it deems
proper that is not inconsistent with any such direction received from Holders of
Notes. A Holder may not pursue any remedy with respect to the Indenture or the
Notes unless: (i) the Holder gives the Trustee written notice of a continuing
Event of Default; (ii) the Holders of at least 25% in aggregate principal amount
at maturity of outstanding Notes make a written request to the Trustee to pursue
the remedy; (iii) such Holder or Holders offer the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense; (iv) the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and (v) during such 60-day period, the
Holders of a majority in aggregate principal amount at maturity of the
outstanding Notes do not give the Trustee a direction that is inconsistent with
the request. However, such limitations do not apply to the right of any Holder
of a Note to receive payment of the principal of, premium, if any, or interest
on, such Note or to bring suit for the enforcement of any such payment, on or
after the due date expressed in the Notes, which right shall not be impaired or
affected without the consent of the Holder.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may become owner or pledgee of Notes and may otherwise deal with
the Company or its Affiliates with the same rights it would have if it were not
the Trustee.
18. No Recourse Against Others.
No recourse for the payment of the principal of, premium, if
any, or interest on any of the Notes or for any claim based thereon or otherwise
in respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in the Indenture, or in any of the Notes or because of
the creation of any Indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer, director, employee or controlling person of
the Company or of any successor Person thereof. Each Holder, by accepting the
Notes, waives and releases all such liability.
19. Authentication.
This Note shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on the other side
of this Note.
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Notes and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The internal laws of the State of New York shall govern this
Note without regard to principles of conflict of laws.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to Orion Newco
Services, Inc., 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 00, Xxxxxxxxx, Xxxxxxxx 00000,
Attention: [____________].
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT OF INDEBTEDNESS
EVIDENCED BY THIS NOTE
The initial principal amount of indebtedness evidenced by this
Note shall be $ __,__,__. The following decreases/increases in the principal
amount evidenced by this Note have been made:
Decrease in Increase in Total Principal Amount of
Principal Principal this Global Note Following Notation Made
Date of Decrease/ Amount of this Amount of this such Decrease/Increase by or on
Increase Global Note Global Note Behalf of
Trustee
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company
pursuant to Section 4.11 or Section 4.13 of the Indenture, check the box:
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 4.11 or Section 4.13 of the Indenture, state the
amount (in principal amount):
$___________________ ($1000 or integral multiple thereof).
Date:________________
Your Signature:____________________________________________________________
Signature Guarantee: ______________________________
