EXHIBIT 99.1
EXECUTION COPY
LORAL CYBERSTAR, INC.,
AS ISSUER,
LORAL ASIA PACIFIC SATELLITE (HK) LIMITED
AS SUBSIDIARY GUARANTOR
AND
BANKERS TRUST COMPANY,
AS TRUSTEE
------------------------
SENIOR NOTES INDENTURE
DATED AS OF DECEMBER 21, 2001
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10% SENIOR NOTES DUE 2006
CROSS-REFERENCE TABLE
TIA SECTIONS INDENTURE SECTIONS
------------ ------------------
sec.310(a)(1)............................................... 7.10
(a)(2)................................................. 7.10
(b).................................................... 7.03; 7.08
sec.311(a).................................................. 7.03
(b).................................................... 7.03
sec.312(a).................................................. 2.03
sec.313(a).................................................. 7.06
(c).................................................... 7.05; 7.06;
11.02
(d).................................................... 7.06
sec.314(a).................................................. 4.18; 7.05;
11.02
(a)(4)................................................. 4.16; 11.02
(c)(1)................................................. 11.03
(c)(2)................................................. 11.03
(e).................................................... 4.16; 11.04
sec.315(a).................................................. 7.01; 7.02
(b).................................................... 7.05; 11.02
(c).................................................... 7.01; 7.02
(d).................................................... 7.01; 7.02
(e).................................................... 6.11
sec.316(a)(1)(A)............................................ 6.05
(a)(1)(B).............................................. 6.04
(b).................................................... 6.07
(c).................................................... 9.03
sec.317(a)(1)............................................... 6.08
(a)(2)................................................. 6.09
(b).................................................... 2.05
sec.318(a).................................................. 11.01
(c).................................................... 11.01
Note: The Cross-Reference Table shall not for any purpose be deemed to be a part
of the Indenture.
TABLE OF CONTENTS
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RECITALS OF THE COMPANY.................................................... 1
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions................................................. 1
SECTION 1.02 Incorporation by Reference of Trust Indenture Act........... 16
SECTION 1.03 Rules of Construction....................................... 16
ARTICLE TWO
THE NOTES
SECTION 2.01 Form, Dating and Denominations.............................. 16
SECTION 2.02 Execution and Authentication................................ 17
SECTION 2.03 Registrar and Paying Agent.................................. 17
SECTION 2.04 Holders to Be Treated as Owners; Payments................... 18
SECTION 2.05 Paying Agent to Hold Money in Trust......................... 18
SECTION 2.06 Holder Lists................................................ 19
SECTION 2.07 Transfer and Exchange....................................... 19
SECTION 2.08 Replacement Notes........................................... 20
SECTION 2.09 Outstanding Notes........................................... 20
SECTION 2.10 Treasury Notes.............................................. 20
SECTION 2.11 Temporary Notes............................................. 21
SECTION 2.12 Cancellation................................................ 21
SECTION 2.13 Defaulted Interest.......................................... 21
SECTION 2.14 CUSIP, CINS or ISIN Number.................................. 21
SECTION 2.15 Deposit of Moneys........................................... 21
SECTION 2.16 Issuance of Additional Notes................................ 22
ARTICLE THREE
REDEMPTION
SECTION 3.01 Right of Redemption......................................... 22
SECTION 3.02 Notices to Trustee.......................................... 22
SECTION 3.03 Selection of Notes to Be Redeemed........................... 22
SECTION 3.04 Notice of Redemption........................................ 22
SECTION 3.05 Deposit of Redemption Price................................. 23
SECTION 3.06 Payment of Notes Called for Redemption...................... 23
SECTION 3.07 Notes Redeemed in Part...................................... 23
ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Notes............................................ 23
SECTION 4.02 Issuances of Guarantees by New Restricted Subsidiaries...... 24
SECTION 4.03 Limitation on Indebtedness.................................. 24
SECTION 4.04 Limitation on Restricted Payments........................... 26
SECTION 4.05 Intentionally Omitted....................................... 27
SECTION 4.06 Limitation on the Issuance and Sale of Capital Stock of 27
Restricted Subsidiaries.....................................
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SECTION 4.07 Limitation on Transactions with Shareholders and 28
Affiliates..................................................
SECTION 4.08 Limitation on Liens......................................... 28
SECTION 4.09 Limitation on Sale-Leaseback Transactions................... 29
SECTION 4.10 Limitation on Asset Sales................................... 29
SECTION 4.11 Maintenance of Office or Agency............................. 30
SECTION 4.12 Repurchase of Notes upon a Change of Control................ 30
SECTION 4.13 Existence................................................... 30
SECTION 4.14 Payment of Taxes and Other Claims........................... 30
SECTION 4.15 Maintenance of Properties and Insurance..................... 31
SECTION 4.16 Compliance Certificates..................................... 32
SECTION 4.17 Notice of Defaults.......................................... 32
SECTION 4.18 Commission Reports and Reports to Holders................... 32
SECTION 4.19 Waiver of Stay, Extension or Usury Laws..................... 32
SECTION 4.20 Replacement Satellite....................................... 32
SECTION 4.21 Rating...................................................... 32
SECTION 4.22 Business Activities......................................... 32
SECTION 4.23 Payments for Consent........................................ 32
SECTION 4.24 Overriding Provisions Regarding Data Business 33
Subsidiaries................................................
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01 Merger, Consolidation, and Sale of Assets................... 33
SECTION 5.02 Successor Substituted....................................... 34
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01 Events of Default........................................... 34
SECTION 6.02 Acceleration................................................ 35
SECTION 6.03 Other Remedies.............................................. 35
SECTION 6.04 Waiver of Past Defaults..................................... 36
SECTION 6.05 Control by Majority......................................... 36
SECTION 6.06 Limitation on Suits......................................... 36
SECTION 6.07 Rights of Holders to Receive Payment........................ 36
SECTION 6.08 Collection of Indebtedness and Suits for Enforcement by 37
Trustee.....................................................
SECTION 6.09 Trustee May File Proofs of Claim............................ 37
SECTION 6.10 Priorities.................................................. 38
SECTION 6.11 Undertaking for Costs....................................... 38
SECTION 6.12 Restoration of Rights and Remedies.......................... 38
SECTION 6.13 Rights and Remedies Cumulative.............................. 38
SECTION 6.14 Delay or Omission Not Waiver................................ 38
SECTION 6.15 Payment of Make Whole Premium............................... 38
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01 General..................................................... 39
SECTION 7.02 Certain Rights of Trustee................................... 39
SECTION 7.03 Individual Rights of Trustee................................ 40
SECTION 7.04 Trustee's Disclaimer........................................ 40
SECTION 7.05 Notice of Default........................................... 40
SECTION 7.06 Reports by Trustee to Holders............................... 40
SECTION 7.07 Compensation and Indemnity.................................. 40
SECTION 7.08 Replacement of Trustee...................................... 41
SECTION 7.09 Successor Trustee by Merger, Etc............................ 42
SECTION 7.10 Eligibility................................................. 42
SECTION 7.11 Money Held in Trust......................................... 42
SECTION 7.12 Withholding Taxes........................................... 42
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01 Termination of Company's Obligations........................ 42
SECTION 8.02 Defeasance and Discharge of Indenture....................... 43
SECTION 8.03 Defeasance of Certain Obligations........................... 44
SECTION 8.04 Application of Trust Money.................................. 45
SECTION 8.05 Repayment to Company........................................ 45
SECTION 8.06 Reinstatement............................................... 45
SECTION 8.07 Defeasance and Certain Other Events of Default.............. 45
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01 Without Consent of Holders.................................. 45
SECTION 9.02 With Consent of Holders..................................... 46
SECTION 9.03 Revocation and Effect of Consent............................ 46
SECTION 9.04 Notation on or Exchange of Notes............................ 47
SECTION 9.05 Trustee to Sign Amendments, Etc............................. 47
SECTION 9.06 Conformity with Trust Indenture Act......................... 47
ARTICLE TEN
GUARANTEE OF NOTES
SECTION 10.01 Guarantee................................................... 47
SECTION 10.02 Obligations Unconditional................................... 48
SECTION 10.03 Notice to Trustee........................................... 49
SECTION 10.04 This Article Not to Prevent Events of Default............... 49
SECTION 10.05 Net Worth Limitation........................................ 49
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act of 1939................................. 49
SECTION 11.02 Notices..................................................... 49
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SECTION 11.03 Certificate and Opinion as to Conditions Precedent.......... 50
SECTION 11.04 Statements Required in Certificate or Opinion............... 50
SECTION 11.05 Acts of Holders............................................. 51
SECTION 11.06 Rules by Trustee, Paying Agent or Registrar................. 51
SECTION 11.07 Payment Date Other Than a Business Day...................... 51
SECTION 11.08 Governing Law............................................... 52
SECTION 11.09 No Adverse Interpretation of Other Agreements............... 52
SECTION 11.10 No Recourse Against Others.................................. 52
SECTION 11.11 Successors.................................................. 52
SECTION 11.12 Duplicate Originals......................................... 52
SECTION 11.13 Separability................................................ 52
SECTION 11.14 Table of Contents, Headings, Etc............................ 52
EXHIBIT A Form of Global Note......................................... A-1
EXHIBIT B Form of Certificated Note................................... B-1
EXHIBIT C Form of Supplemental Indenture to Be Delivered by Subsidiary C-1
Guarantors..................................................
EXHIBIT D Form of Loral Space Guaranty................................ D-1
INDENTURE, dated as of December 21, 2001, between LORAL CYBERSTAR, INC., a
Delaware corporation, as issuer (together, with its successors and assigns, the
"Company"); Loral Asia Pacific Satellite (HK) Limited, a corporation with
limited liability organized under the laws of Hong Kong, as a Subsidiary
Guarantor; 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 from time to time of its 10% Senior Notes
Due 2006 (the "Notes") issuable as provided in 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, the Company, each Subsidiary Guarantor and the Trustee
mutually covenant and agree, 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.
"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 (or loss) of any Person (other than net income (or loss) 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 paragraph (a) of Section 4.04 of this Indenture (and, in such
case, except to the extent includible 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 Company 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 paragraph (a) 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; (vi) any net income (or loss) of any Subsidiary
Guarantor that ceases to be a Subsidiary Guarantor because it is designated an
Unrestricted Subsidiary; and (vii) the Interest Amortization Credit.
"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 4.18 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 in the Global Notes, 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 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 Disposition shall not include the Data Business
Transfer.
"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 of
this Indenture; provided that "Asset Sale" shall not include the Data Business
Transfer.
"AVERAGE LIFE" means, at any date of 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.
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"BOARD RESOLUTION" means a copy of a resolution, certified by any Executive
Officer 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 authorized by law to close.
"CALLED PRINCIPAL" means the principal amount of a Note to be redeemed
pursuant to Section 3.01.
"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 of such
Person's 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 Sections 2.01, 2.07, 2.08 and 2.16
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 issued and outstanding Voting
Stock of Loral Space; (ii) Loral Space shall not directly or indirectly own all
of the Capital Stock of the Company; (iii) individuals who on the Closing Date
constitute the Board of Directors of Loral Space (together with any new
directors whose election by the Board of Directors of Loral Space or whose
nomination for election by Loral Space's stockholders was approved by a vote of
at least a majority of the members of the Board of Directors of Loral Space then
in office who either were members of the Board of Directors of Loral Space 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 of Loral Space then in office; and (iv) any change in control
(or similar event, however denominated) with respect to Loral Space shall occur
under and as defined in any indenture or agreement in respect of Indebtedness in
an aggregate principal amount in excess of $10,000,000 to which Loral Space is a
party, including the indenture relating to Loral Space's 9 1/2% Senior Notes due
2006.
"CHIEF EXECUTIVE OFFICER" of the Company means the chief executive officer
or, in the event of his termination or inability to perform his duties, such
other Executive 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" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article Five of this
Indenture and thereafter means such successor.
"COMPANY ORDER" means a written request or order signed in the name of the
Company (i) by the Chief Executive Officer or another Executive Officer 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
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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
or impairments 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 INTEREST EXPENSE" means, for any period, the aggregate amount
of interest in respect of Indebtedness (excluding the Interest Amortization
Credit, but 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 interest in respect of
Indebtedness that is Guaranteed or secured by the Company or any of its
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 (excluding the Subordinated Intercompany Note and the Subordinated
Subsidiary Guarantor Guaranties of the Subordinated Intercompany Note) 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 4.18 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 Dispositions) 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 actions 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
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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.
"DATA BUSINESS" means the data services business of the Company and its
Subsidiaries (as determined in good faith by an Executive Officer of the
Company).
"DATA BUSINESS SUBSIDIARY" means each of the following Persons: Loral
CyberStar Services, Inc., Loral CyberStar GmbH, Loral CyberStar de Argentina
SRL, Loral CyberStar do Brasil Ltda, Loral CyberStar Americas do Brasil Ltda,
Tel-Link Communications Private Limited, OrionNet Inc., Loral CyberStar Global
Services, Inc., Loral CyberStar Japan, Inc. and ONS-Mauritius.
"DATA BUSINESS TRANSFER" means a transfer contemplated by Section 4.24.
"DEFAULT" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"DEPOSITARY" means 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 mean or include each Person who is then a Depositary
hereunder.
"DESIGNATED EQUITY PROCEEDS" means the amount of Net Cash Proceeds received
by Loral Space after the Closing Date from the issuance and sale of Capital
Stock (other than Disqualified Stock) of Loral Space to the extent such Net Cash
Proceeds are ultimately contributed to the capital of the Company.
"DISCOUNTED VALUE" means, with respect to any Called Principal of any Note,
the discounted value of all Remaining Scheduled Payments with respect to the
Called Principal from their respective scheduled due dates to the Redemption
Date with respect to such Called Principal, in accordance with accepted
financial practice and at a discount factor (applied on the same periodic basis
as that on which interest on the Notes is payable) equal to the Reinvestment
Yield with respect to such Called Principal.
"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 4.10 and 4.12 of this
Indenture and such Capital Stock specifically provides that such Person will not
repurchase or redeem any such stock pursuant to such provisions prior to the
Company's repurchase of such Notes as are required to be repurchased pursuant to
Sections 4.10 and 4.12 of this Indenture.
"EVENT OF DEFAULT" has the meaning provided in Section 6.01.
5
"EXCESS CASH FLOW" means, for any period of determination, (i) Consolidated
EBITDA for such period, less (ii) all capital expenditures, all cash taxes, all
cash interest expense and bank fees, and all principal payments on the Notes, in
each case actually made for such period, plus (iii) any non-cash restructuring
or special charges taken during such period.
"EXCESS CASH FLOW REDEMPTION PAYMENTS" has the meaning provided in Section
3.01(b).
"EXCESS PROCEEDS" has the meaning provided in Section 4.10.
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934, as
amended.
"EXECUTIVE OFFICER" means the Chairman of the Board, Chief Executive
Officer, President, any Vice President or any other officer that is considered
by the Board of Directors to be an executive officer of the Company.
"EXISTING NOTES" means the Company's 12- 1/2% Senior Discount Notes due
2007 and 11- 1/4% Senior Notes due 2007.
"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 Indenture 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 Indenture 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 or other impairment charges or writedowns of any amount
required or permitted by Accounting Principles Board Opinion Xx. 00 "Xxxxxxxx
Xxxxxxxxxxxx," XXX Xx. 00 "Intangible Assets," Statement of Financial Accounting
Standards ("SFAS") No. 141 "Business Combinations," SFAS No. 142 "Goodwill and
Other Intangible Assets" or SFAS No. 144 "Accounting for the Impairment or
Disposal of Long-Lived Assets."
"GLOBAL NOTE" means the Global Notes, substantially in the form of Exhibit
A hereto, issued in accordance with Sections 2.01, 2.07, 2.08 and 2.16 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.
6
"GUARANTORS" means, collectively, all Subsidiary Guarantors and the Parent
Guarantor.
"HOLDER" means, in the case of any Note, 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; 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 any 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 which is not so assumed 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 that (A) the amount
outstanding at any time with respect to any Indebtedness issued with original
issue discount is the original issue price of such Indebtedness, (B) Permitted
Customer Advances and Prepayment Supports 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 a beneficial interest in a
Global Note through a Participant.
"INTEREST AMORTIZATION CREDIT" means the reduction in interest expense
resulting from the amortization of the difference between the carrying value of
the Notes recorded upon issuance less the actual principal amount of the Notes.
7
"INTEREST PAYMENT DATE" means each semiannual interest payment date of
January 15 and July 15 of each year, commencing July 15, 2002.
"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.
"KINGSTON" means Kingston Communications International Limited, a company
incorporated under the laws of England, and its successors and assigns.
"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).
"LORAL SPACE" means Loral Space & Communications Ltd.
"LORAL SPACE GUARANTY" means the Guaranty pursuant to the Loral Space
Guaranty Agreement of the Company's obligations under the Notes and this
Indenture, substantially in the form of Exhibit D hereto.
"LORAL SPACE GUARANTY AGREEMENT" means the agreement whereby Loral Space
undertakes the Loral Space Guaranty, dated even date herewith.
"MAKE WHOLE PREMIUM" means, with respect to any Note, an amount (which in
no event may be less than zero) equal to the excess, if any, of (x) the
Discounted Value of the Called Principal over (y) the amount of such Called
Principal.
"MATRA" means Matra Marconi Space UK Limited, a company incorporated under
the laws of England that is the parent company of MMS Space Systems, a
subsidiary of Matra Marconi Space N.V. and the manufacturer under the Telstar 12
Satellite Contract.
"MATURITY DATE" means the Stated Maturity of the Notes.
8
"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 issue 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.
"NOTES GUARANTY" means the Loral Space Guaranty and the Subsidiary
Guaranties.
"NOTES" means the Senior Notes due 2006 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 third 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 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 to the unpurchased portion of the Notes surrendered; provided
that each Note purchased and each new Note issued shall be in a principal amount
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
9
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 of the Notes
surrendered, and the Trustee, upon receipt of a Company Order, shall promptly
authenticate and mail to such Holders a new Note equal in principal amount to
any unpurchased portion of the Note surrendered; provided that each Note
purchased and each new Note issued shall be in a principal amount 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.
"OFFICER" means, with respect to the Company, (i) an Executive Officer or
any Director of the Company or (ii) the Treasurer or any Assistant Treasurer, or
the Secretary or any Assistant Secretary of the Company.
"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 outside counsel to the Company. Each such Opinion of
Counsel shall include the statements provided for in TIA Section 314(e), if
applicable.
"ORION ATLANTIC" means International Private Satellite Partners, L.P., a
Delaware limited partnership.
"PARENT GUARANTOR" means Loral Space & Communications Ltd.
"PARTICIPANT" means, with respect to the Depositary or its nominee, an
institution that 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.
10
"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 6 months after the later of the
acquisition, the completion of construction or the commencement of full
operation of such property (or 60 days in the case of clause (i) of paragraph
(a) of Section 4.03) 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), and (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; (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 permitted pursuant to
clause (ix) above; (xi) Liens on property of, or on shares of Capital Stock or
Indebtedness of, any Person existing at the time such Person becomes, or such
property becomes a part of, any Restricted Subsidiary; provided that such Liens
(a) do not extend to or cover any property or assets of the Company or any
Restricted Subsidiary other than the property or assets so acquired and (b) were
not incurred in contemplation of the acquisition thereof; (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
provided that any reserve or other appropriate provision that shall be required
in conformity with GAAP shall have been made therefor; (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;
11
(xviii) [intentionally omitted]; (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.
"PREFERRED STOCK" means, with respect to any Person. all shares, interests,
participations or other equivalents (however designated, whether voting or
non-voting) of such Person's preferred or preference stock, whether now
outstanding or issued after the date of this Indenture, including, without
limitation, all series and classes of such preferred or preference stock.
"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 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 January 1 or July 1 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date.
"REINVESTMENT YIELD" means 50 basis points over the yield to maturity
implied by the Treasury Constant Maturity Series Yields reported, for the latest
day for which such yields have been so reported as of the second Business Day
preceding the Redemption Date with respect to such Called Principal, in Federal
Reserve Statistical Release H.15 (519) (or any comparable successor publication)
for actively traded U.S. Treasury securities having a constant maturity equal to
the Remaining Average Life of such Called Principal as of such Redemption Date.
Such implied yield will be determined, if necessary, by (a) converting U.S.
Treasury xxxx quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly between (1) the actively
traded U.S. Treasury security having a maturity closest to and greater than the
Remaining Average Life and (2) the actively traded U.S. Treasury security having
a maturity closest to and less than the Remaining Average Life.
"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
which the Obligors receive written, unconditional releases from each creditor,
no later than the closing date of such Asset Sale.
12
"REMAINING AVERAGE LIFE" means, with respect to any Called Principal, the
number of years (calculated to the nearest one-twelfth year) obtained by
dividing (i) such Called Principal into (ii) the sum of the products obtained by
multiplying (a) the principal component of each Remaining Scheduled Payment with
respect to such Called Principal by (b) the number of years (calculated to the
nearest one-twelfth year) that will elapse between the Redemption Date with
respect to such Called Principal and the scheduled due date of such Remaining
Scheduled Payment.
"REMAINING SCHEDULED PAYMENTS" means, with respect to the Called Principal
of any Note, all payments of such Called Principal and interest thereon that
would be due after the Redemption Date with respect to such Called Principal if
no payment of such Called Principal were made prior to its scheduled due date,
provided that if such Redemption Date is not a date on which interest payments
are due to be made under the terms of the new notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount of interest
accrued to such Redemption Date and required to be paid on such Redemption Date.
"REPLACEMENT SATELLITE" means the replacement satellite for the satellite
known as Telstar 11.
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means an
officer within the Corporate Trust and Agency Group (or any successor or group
of the Trustee), including vice president, assistant vice president, secretary
or any other officer or assistant 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.
"REPURCHASE OFFER" has the meaning ascribed thereto in the Warrant
Agreement.
"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.
"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 4.10 or Section 4.12 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.
"SUBORDINATED INTERCOMPANY NOTE" means the 10% subordinated promissory note
due July 30, 2006 to be issued by the Company on the Closing Date to Loral
SpaceCom Corporation in exchange for a portion of the intercompany indebtedness
owed by us to Loral SpaceCom Corporation on the Closing Date.
"SUBORDINATED LORAL SPACE GUARANTY" means the subordinated guaranty of the
Subordinated Intercompany Note executed by Loral Space in favor of the holder of
the Subordinated Intercompany Note.
13
"SUBORDINATED SUBSIDIARY GUARANTOR GUARANTIES" means the subordinated
guaranties of the Subordinated Intercompany Note executed by the Subsidiary
Guarantors in favor of the holder of the Subordinated Intercompany Note.
"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 Restricted
Subsidiary, substantially in the form of Exhibit C hereto.
"SUBSIDIARY GUARANTORS" means, collectively, all Restricted Subsidiaries;
provided that any person that becomes an Unrestricted Subsidiary in compliance
with this Indenture shall not be included in "Subsidiary Guarantors" after
becoming an Unrestricted Subsidiary and none of the Subsidiaries transferred as
part of the Data Business Transfer shall be Subsidiary Guarantors. In addition,
notwithstanding any provision to the contrary in the Indenture, none of Loral
CyberStar Holdings, L.L.C., Loral CyberStar International, Inc. or the Data
Business Subsidiaries shall be required to be Subsidiary Guarantors, provided
that the Company will ensure that Loral CyberStar Holdings, L.L.C. and Loral
CyberStar International, Inc. will each, within 60 days of the effectiveness of
this Indenture, (a) be merged with and into the Company or a Subsidiary
Guarantor, (b) transfer all of its assets (other than the assets forming part of
the Data Business) to the Company or a Subsidiary Guarantor or (c) take other
actions having substantially the same economic effect as the foregoing.
"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.
"TELSTAR 10" means the satellite known as Telstar 10/Apstar IIR (formerly
known as Orion 3), and any replacement for such satellite.
"TELSTAR 11" means the satellite known as Telstar 11 (formerly known as
Orion 1), and any replacement for such satellite.
"TELSTAR 12" means the satellite known as Telstar 12 (formerly known as
Orion 2), and any replacement for such satellite.
"TELSTAR 11 SATELLITE CONTRACT" means the fixed price turnkey contract
originally between British Aerospace Public Limited Company and Orion Atlantic
for the design, construction, launch and delivery in orbit of Telstar 11.
"TELSTAR 12 SATELLITE CONTRACT" means the spacecraft purchase agreement
between us and Matra for construction and launch of Telstar 12.
"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
14
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 sec.sec. 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 debt 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, in
each case which is required to be paid within one year.
"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.
"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.
"TT&C FINANCING" means the agreement, dated November 23, 1993, between
General Electric Capital Corporation and Orion Atlantic, relating to borrowings
by Orion Atlantic, which obligations have been assumed by the Company.
"UNDERWRITERS" has the meaning as set forth in the Underwriting Agreement.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement dated January 28,
1997 between the Company and Xxxxxx Xxxxxxx & Co. Incorporated, 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, (ii) any Subsidiary of an
Unrestricted Subsidiary, (iii) each Data Business Subsidiary and (iv)
International Technology Gateway (U.K.) Limited. 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 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 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 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
15
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.
"VSAT" means very small aperture terminal earth stations that can be
installed on rooftops or elsewhere, with antennas as small as 0.8 meters but
ranging in sizes of up to 3.6 meters in diameter.
"WARRANT AGREEMENT" has the meaning provided in the Recitals to the
Agreement.
"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 Notes.
"WHOLLY OWNED" means, with respect to any Subsidiary of any Person, the
ownership, beneficially and of record, of all of the outstanding Capital Stock
of such Subsidiary (other than any director's qualifying shares and 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, the
Subsidiary Guarantors and 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.
16
ARTICLE TWO
THE NOTES
SECTION 2.01. FORM, DATING AND DENOMINATIONS. The Notes and the Trustee's
certificate of authentication shall be substantially in the form annexed hereto
as Exhibits A and B. The Notes may have notations, legends or endorsements
required by law, stock exchange agreements or requirements to which the Company
is subject or usage. The Company shall approve the form of the Notes and any
notation, legend or endorsement on the Notes. Each Note shall be dated the date
of its authentication.
The terms and provisions contained in the form of the Notes annexed hereto
as Exhibits A and B shall constitute, and are hereby expressly made, a part of
this Indenture. To the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
The Notes shall be issued initially in the form of one or more global notes
in registered form, substantially in the form set forth in Exhibit A (the
"GLOBAL NOTES"), deposited with, or on behalf of, the Depositary, and registered
in the name of the nominee of the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The Depositary shall
credit on its book-entry registration and transfer system, the number of Notes
represented by such Global Notes to the accounts of Participants designated by
the Underwriters. Ownership of beneficial interest in such Global Notes will be
limited to Participants or Indirect Participants. Each Global Note shall bear
such legend as may be required or reasonably requested by the Depositary.
Notes in definitive form, substantially in the form set forth in Exhibit B
(the "CERTIFICATED NOTES"), shall be issuable only in fully registered form
without coupons and only in denominations of $1,000 in principal amount and any
integral multiple thereof. The Certificated Notes shall be typed, printed,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Notes may be listed, all as determined by the officers
executing such Notes, as evidenced by their execution of such Notes.
SECTION 2.02. EXECUTION AND AUTHENTICATION. Subject to Article Four, the
aggregate principal amount of securities which may be authenticated and
delivered under this Indenture is unlimited.
Two Officers shall execute the Notes for the Company by facsimile or manual
signature in the name and on behalf of the Company.
If an Officer whose signature is on a Note no longer holds that office at
the time the Trustee or authenticating agent authenticates the Note, the Note
shall be valid nevertheless.
A Note shall not be valid until the Trustee or authenticating agent
manually signs the certificate of authentication on the Note. Such signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
Pursuant to and based upon a Company Order, the Trustee or an
authenticating agent shall authenticate for original issue Notes registered in
the name of the Depositary or the nominee of the Depositary or other Person, as
specified in the Company Order, and shall deliver such Global Notes to the
Depositary or pursuant to the Depositary's instructions or to such other Person;
provided that the Trustee shall be entitled to receive an Officers' Certificate
and an Opinion of Counsel of the Company that it may reasonably request in
connection with such authentication and delivery of the Notes. Such Company
Order shall specify the amount of the Notes to be authenticated and the date on
which the original issue of Notes is to be authenticated and shall specify the
aggregate principal amount of Notes then authorized.
The Trustee may appoint an authenticating agent to authenticate Notes. If
the appointment of such authenticating agent is not at the discretion and for
the convenience of the Trustee, then such authenticating agent shall be
compensated by the Company. An authenticating agent may authenticate Notes
whenever the Trustee may do so, except with regard to the original issuance of
the Notes. Except as provided in the preceding sentence, each reference in this
Indenture to authentication by the Trustee
17
includes authentication by such authenticating agent. An authenticating agent
has the same rights as an Agent to deal with the Company or an Affiliate of the
Company. The provisions of Sections 7.01, 7.02 and 7.07 hereof shall be
applicable to any authenticating agent.
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. (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. 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 sole owner and holder of such
Notes represented by 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.
(b) The Holder of a Certificated 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
18
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.
(c) Principal of, premium, if any, and interest on the Certificated Notes
shall be payable at the office of the Paying Agent; provided that, at the option
of the Company, payment of interest may be made by check mailed to the address
of the Holder as such address appears in the Register on the relevant record
date. Any payment of principal or interest due on the Global Notes on any
Interest Payment Date or at maturity will be made available by the Company to
the Trustee by such date in accordance with Section 2.15. As soon as possible
thereafter, such Trustee will make such payments to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Notes
representing such Notes in accordance with existing arrangements between the
Trustee and the Depositary. None of the Underwriters, the Company, the Trustees,
or any payment agent for the Global Notes will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in any of the Global Notes or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
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, any Subsidiary or any Affiliate of
any of them 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. 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, if any.
Ownership of beneficial interest in Global Notes will be shown on, and the
transfer of that ownership will be effective only through, records maintained by
the Depositary for such Global Notes or by Participants or Indirect
Participants. None of the Underwriters, the Company, the Trustees, or any Paying
Agent for the Global Notes will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in any of the Global Notes or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
SECTION 2.07. TRANSFER AND EXCHANGE. When Notes are presented to the
Registrar or a co-Registrar with a request to register the transfer or to
exchange them for an equal principal amount of Notes of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
19
requested if its requirements for such transactions are met. To permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Notes at the Registrar's request. No service charge
shall be made for any registration of transfer or exchange of the Notes, but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any such
transfer taxes or other similar governmental charge payable upon exchanges
pursuant to Section 2.11, 3.07 or 9.04).
The Registrar shall not be required (i) to issue, register the transfer of
or exchange any Note during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Notes selected
for redemption under Section 3.03 and ending at the close of business on the day
of such mailing, or (ii) to register the transfer of or exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part.
Except as set forth in this Section 2.07, 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. Global
Notes shall be exchangeable for corresponding Certificated Securities registered
in the name of persons other than the Depositary if (A) the Depositary (i)
notifies the Company that it is unwilling or unable to continue to act as
Depositary for any of the Global Notes or (ii) 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; (B) there shall have occurred and be
continuing an Event of Default with respect to the Notes; or (C) the Company
delivers to the Trustee a Company Order that the Global Notes shall be so
exchangeable. Any Certified Notes so issued shall be registered in such names
and in such denominations as the Depositary shall request.
Upon the exchange of a Global Note for Certificated Notes without coupons,
in authorized denominations, such Global Note shall be cancelled by the Trustee.
Certificated Notes issued in exchange for a Global Note pursuant to this Section
2.07 shall be registered in such names and in such authorized denominations as
the Depositary for such Global Note, pursuant to instructions from its Direct or
Indirect Participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Notes to or as directed by the Persons in whose names such
Notes are so registered.
All Notes issued upon any transfer or exchange of Notes shall be valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Notes surrendered upon such transfer or
exchange.
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 against the Company and the
Trustee with respect to the replacement of mutilated, lost, destroyed or stolen
Notes.
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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 (other than the Company, a Subsidiary or an Affiliate
of the Company), in its capacity as such, holds on the Stated Maturity of a
Note, on any Redemption Date or on any Payment Date, money sufficient to pay all
accrued interest 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, any Subsidiary of 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 Certificated 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 Certificated 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 Certificated Notes
in exchange for temporary Notes. Until such exchange, temporary Notes shall be
entitled to the same rights, benefits and privileges as Certificated 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
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
21
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 the
Trustee, 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.
SECTION 2.16. ISSUANCE OF ADDITIONAL NOTES. The Company may, subject to
Article Four of this Indenture, issue additional Notes under this Indenture. The
Notes offered hereby and any additional Notes subsequently issued shall be
treated as a single class for all purposes under this Indenture.
ARTICLE THREE
REDEMPTION
SECTION 3.01. RIGHT OF REDEMPTION. (a) The Notes will be redeemable at
the Company's option, in whole or in part, at any time or from time to time
prior to maturity, upon not less than 30 nor more than 60 days' prior notice
mailed by first class mail to each Holder's last address as it appears in the
Security Register, at a Redemption Price equal to (i) the principal amount of
the new notes being redeemed, plus (ii) accrued and unpaid interest, if any, to
the Redemption Date, plus (iii) the Make Whole Premium.
(b) The Notes will also be redeemable, at the Company's option, in whole or
in part, at any time or from time to time 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 Security Register, in an aggregate
principal amount not to exceed $100 million, at a redemption price equal to (i)
101% of the principal amount of the Notes being redeemed, plus (ii) accrued and
unpaid interest, if any, to the Redemption Date. Any such redemption shall be
payable only out of Excess Cash Flow. The aggregate cumulative amount of any
such redemption(s) shall be called the "EXCESS CASH FLOW REDEMPTION PAYMENTS."
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.
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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 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.
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;
(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; and
(i) the aggregate principal amount at Stated Maturity of Notes being
redeemed.
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 refined 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 denied 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.
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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), in accordance with Section 2.15, 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, at its expense, 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,
if any, or 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 10:00 A.M.
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. A Subsidiary Guarantor shall be released from its Subsidiary
Guaranty in the event all the Capital Stock of such Subsidiary Guarantor is sold
in compliance with the provisions of this Indenture to a person other than the
Company or any of its Restricted Subsidiaries.
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, the Subsidiary Guarantees and Indebtedness existing on
the Closing Date, including the Existing Notes not exchanged for Notes, the
Subordinated Intercompany Note and the Subordinated Subsidiary Guarantor
Guaranties); 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 5 to 1.
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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 Incurred to finance
the purchase or construction of (and related launch, insurance, and other
costs with respect to) the Replacement Satellite; provided, however, that
the amount of any such Indebtedness shall not exceed (x) $100,000,000 plus
(y) the aggregate amount of all Excess Cash Flow Redemption Payments
actually made as of such date plus (z) the amount of any Designated Equity
Proceeds: except to the extent such amount of Designated Equity Proceeds is
used as a basis to Incur Indebtedness pursuant to clause (viii) of this
paragraph (a), to make Investments or to make Restricted Payments; provided
further, that any such Indebtedness shall be Incurred contemporaneously
with the purchase of the Replacement Satellite or within sixty (60) days
thereafter (or Incurred to refinance, renew or replace such Indebtedness);
and provided further, that if such Indebtedness is Incurred to finance the
construction of the Replacement Satellite, any such Indebtedness shall be
Incurred within 60 days after the completion of construction of such
Replacement Satellite;
(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 (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 Subsidiary Guaranties 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 Subsidiary Guaranties are refinanced in part or the Indebtedness to be
refinanced is pari passu with the Notes or the Subsidiary Guaranties, 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 Subsidiary Guaranties, as the case may be, (B) in
case the Indebtedness to be refinanced is subordinated in right of payment
to the Notes or the Subsidiary Guaranties, 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 Subsidiary Guaranties
at least to the extent that the Indebtedness to be refinanced is
subordinated to the Notes or the Subsidiary Guaranties, 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
25
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 Guaranty of such
Indebtedness is permitted by and made in accordance with Section 4.02;
(vii) Indebtedness not to exceed $5,000,000 at any time outstanding
Incurred to finance the cost (including the cost of design, development,
construction, installation, improvement, transportation or integration) of
equipment (other than satellites) 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, the Net Cash Proceeds received by the Company after the
Closing Date from Designated Equity Proceeds, except to the extent such
amount of Designated Equity Proceeds is used to Incur Indebtedness pursuant
to clause (i) of this paragraph, to make Investments or to make Restricted
Payments; 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) indemnification obligations by the Company and its Restricted
Subsidiaries in favor of former Subsidiaries ("Transferred Subsidiaries")
of the Company transferred pursuant to the Data Business Transfer against
amounts (including guarantee payments) paid or expenses incurred by such
Transferred Subsidiaries under their Guarantees of the Existing Notes.
(b) For purposes of determining any particular amount of Indebtedness under
this Section 4.03, 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. 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.
(c) 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 of this Indenture, the aggregate amount of Indebtedness which may otherwise
be Incurred under clause (viii) 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.
(d) Notwithstanding any other provision of this Section 4.03, (i) the
maximum amount of Indebtedness that the Company or any Restricted Subsidiary may
Incur pursuant to this Section 4.03 shall not be deemed to be exceeded due
solely to fluctuations in the exchange rates of currencies and (ii) the Company
and each Subsidiary Guarantor may not incur any Indebtedness other than Acquired
Indebtedness that is expressly subordinated to any other Indebtedness of the
Company or such Subsidiary Guarantor, as the case may be, unless such
Indebtedness, by its terms or the terms of any agreement or instrument pursuant
to which such Indebtedness is outstanding, is also expressly made subordinate to
the Notes or the Note Guarantee of such Subsidiary Guarantor, as the case may
be, at least to the extent that such Indebtedness is subordinated to such other
Indebtedness; provided that the limitation in this clause (ii) shall not apply
to distinctions between categories of unsubordinated Indebtedness which exist by
reason of (a) any liens or other encumbrances arising or created in respect of
some but not all unsubordinated Indebtedness, (b) intercreditor agreements
between holders of different classes of unsubordinated Indebtedness or (c)
different maturities or prepayment provisions.
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SECTION 4.04. LIMITATION ON RESTRICTED PAYMENTS. (a) 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
Subsidiary 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
Subsidiary Guarantor that is subordinated to the Subsidiary Guaranties (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) an Event of Default shall have occurred
and be continuing, (B) except with respect to Investments in Restricted
Subsidiaries and dividends on the Common Stock of any Subsidiary Guarantor paid
to the Company or any Restricted Subsidiary, the Company could not Incur at
least $1.00 of Indebtedness under the first sentence of paragraph (a) 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 (after giving pro forma effect to the proposed
Restricted Payment) 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 Section 4.18 plus (2) the aggregate amount
of Designated Equity Proceeds received by the Company after the Closing Date,
except to the extent such amount of Designated Equity Proceeds is used as a
basis to Incur Indebtedness pursuant to clause (i) or (viii) of paragraph (a)
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.
(b) 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 such date of declaration, such payment would
comply with the foregoing paragraph (a);
(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 paragraph (a) of Section 4.03;
27
(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) [intentionally omitted];
(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 Article Five;
(vi) [intentionally omitted]; and
(vii) Investments to the extent the amount invested consists solely of
an amount of Designated Equity Proceeds received within six months of the
Investment, except to the extent such amount of Designated Equity Proceeds
was used as a basis to Incur Indebtedness pursuant to clause (i) or (viii)
of paragraph (a) of Section 4.03 or to make other Restricted Payments.
provided that, except in the case of clauses (i) and (iii), no 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) thereof) and the Net Cash Proceeds from any issuance of Capital
Stock referred to in clause (iii)) 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.
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. [Intentionally omitted].
SECTION 4.06. LIMITATION ON THE ISSUANCE AND SALE 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
(i)(A) or (i)(B) of the second paragraph of Section 4.10 of this Indenture;
provided that at no time may a Restricted Subsidiary, the Common Stock of
which his been issued or sold pursuant to this clause (iv), be the owner of
a satellite.
SECTION 4.07. 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
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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 Trustee 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, (vi) Kingston's and Matra's rights to commissions
and other payments under sales representation or ground operation agreements,
Matra's rights to payments, including without limitation incentive payments,
under the Telstar 11 Satellite Contract and Telstar 12 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 or its Restricted Subsidiaries, as the case may be, as the terms
of agreements in effect on the Closing Date, or (vii) the Data Business Transfer
or the issuance of the Subordinated Intercompany Note. Notwithstanding the
foregoing, any transaction covered by the first paragraph of this Section 4.07
and not covered by clauses (ii) through (vii) 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 4.08. 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
Indenture 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 the following:
(i) Liens existing on the Closing Date provided that such Liens shall
secure only those obligations which they secure 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 paragraph (a) of Section 4.03 of this Indenture; 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 Telstar 11, Telstar 12 or
Telstar 10 (or any replacement satellite therefor) that secures Indebtedness,
other than pursuant to clauses (vi) or (xxi) of the definition of Permitted
Liens.
SECTION 4.09. 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
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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 constitutes Indebtedness and 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 12 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 or transfer in accordance with clause (i)(A) or (i)(B)
of the second paragraph of Section 4.10 of this Indenture.
SECTION 4.10. LIMITATION ON ASSET SALES. The Company will not, and will
not permit any Restricted Subsidiary to, consummate any Asset Sale unless (i)
such sale is on an arms-length basis and 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, as determined (a) by the Board of Directors of the seller thereof
or (b) if the purchase price for such Asset Sale equals or exceeds $10,000,000,
a fairness opinion by a nationally recognized appraisal, accounting or
investment banking firm addressed to the Company and delivered by the Company to
the Trustee, and (ii) at least 85% of the consideration received (excluding the
amount of any Released Indebtedness) consists of cash or Temporary Cash
Investments or any property or assets that are referred to in clause (B) of the
next paragraph.
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 12 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 12 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 12-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
4.10. The amount of such excess Net Cash Proceeds required to be applied (or to
be committed to be applied) during such 12-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 4.10 totals at least $10 million, the Company must commence, not later
than the 15th 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
outstanding principal amount of the Notes, plus accrued interest (if any) to the
Payment Date.
SECTION 4.11. 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
30
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 11.02.
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 4.12. 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 outstanding principal amount of the Notes, plus
accrued interest (if any) to the Payment Date.
SECTION 4.13. 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), 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; and provided further that any
Restricted Subsidiary may consolidate with, merge into, or sell, convey
transfer, lease or otherwise dispose of all or part of its property and assets
to the Company or any Wholly Owned Restricted Subsidiary.
SECTION 4.14. 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, providedthat
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 4.15. MAINTENANCE OF PROPERTIES AND INSURANCE. The Company shall
maintain (a) in-orbit insurance with respect to Telstar 11, Telstar 12 and
Telstar 10 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 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
31
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 4.15 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 Section 4.15 shall name the Company
and/or any Subsidiary Guarantor as the sole loss payee or payees, as the case
may be, thereof.
In the event that the Company (or a Subsidiary Guarantor) receives proceeds
from insurance relating to any satellite, the Company (or a Subsidiary
Guarantor) may use a portion of such proceeds to repay any vendor or third-party
purchase money financing pertaining to such satellite (other than Telstar 11)
that is required to be repaid by reason of the loss giving rise to such
insurance proceeds. The Company (or a Subsidiary 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 26 months of the
receipt of such proceeds. Any such proceeds not used as permitted by this
Section 4.15 shall be applied, within 90 days, to reduce Indebtedness of the
Company or shall constitute "Excess Proceeds" for purposes of Section 4.10.
The Company shall 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 shall 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 4.15
shall prevent the Company from discontinuing the maintenance of any of such
properties if such discontinuance is not disadvantageous in any material respect
to the Holders.
SECTION 4.16. COMPLIANCE CERTIFICATES. Both of the two principal
accounting officers of the Company and each Subsidiary Guarantor shall certify,
on or before a date not more than 90 days after the end of each fiscal year of
the Company, that a review has been conducted of the activities of the Company
and its Restricted Subsidiaries or such Subsidiary Guarantor, as the case may
be, and the Company's and its Restricted Subsidiaries' or such Subsidiary
Guarantor's, as the case may be, performance under the Indenture and that the
Company and each Subsidiary Guarantor have fulfilled all obligations thereunder,
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default and the nature and status thereof. The Company
shall also notify the Trustee of any default or defaults in the performance of
any covenants or agreements under the Indenture. The Company shall also comply
with the other provisions of Section 314(a) of the TIA.
SECTION 4.17. NOTICE OF DEFAULTS. In the event that the Company or any
Subsidiary Guarantor becomes aware of any Event of Default, the Company or such
Subsidiary Guarantor, as the case may be, promptly after it becomes aware
thereof, will deliver to the Trustee an Officer's Certificate specifying such
Event of Default and what actions the Company or such Subsidiary Guarantor, as
the case may be, is taking or proposes to take with respect thereto.
32
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
Exchange Act if it were subject thereto. The Company shall, at the Company's
expense, supply the Trustee 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.
SECTION 4.20. REPLACEMENT SATELLITE. Prior to the purchase or
construction of the Replacement Satellite, the Company shall provide to the
Trustee a written opinion from an independent party qualified in making such
determination that the purchase price or construction cost, as the case may be,
of the Replacement Satellite is consistent with then prevailing market prices
for comparable satellites.
SECTION 4.21. RATING. The Company shall use its best efforts from the
Closing Date to obtain a rating from Xxxxx'x or, if no such rating can be so
obtained from Xxxxx'x, S&P, with respect to the Notes.
SECTION 4.22. BUSINESS ACTIVITIES. The Company will not, and will not
permit any of its Restricted Subsidiaries to, engage in (i) any business other
than any of the lines of business conducted by it or by such Restricted
Subsidiaries on the Closing Date, including the ownership and operation of
geosynchronous satellites through which the Company and the Restricted
Subsidiaries provide fixed satellite services such as video distribution and
other satellite transmission services such as transmission capacity for cable
and television programmers, news and information networks, telecommunications
companies, internet services providers and other carriers for a variety of
applications, and (ii) any business reasonably related thereto.
SECTION 4.23. PAYMENTS FOR CONSENT. The Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, pay or
cause to be paid any consideration to or for the benefit of any Holder for or as
an inducement to any consent, waiver or amendment of any of the terms or
provisions of the Loral Space Guaranty or the Notes unless such consideration is
offered to be paid and is paid to all Holders that consent, waive or agree to
amend in the time frame set forth in the solicitation documents relating to such
consent, waiver or agreement.
SECTION 4.24. OVERRIDING PROVISIONS REGARDING DATA BUSINESS
SUBSIDIARIES. Each Data Business Subsidiary shall be permitted to transfer
assets and liabilities owned or owed by it comprising the Data Business (as
determined in good faith by any Executive Officer of the Company) to the
Company. The Company and each Data Business Subsidiary shall each be permitted
to transfer assets and liabilities comprising the Data Business (as reasonably
determined by any Executive Officer of the Company) to Loral SpaceCom
Corporation, a Delaware Corporation ("LSC") or any of its affiliates (including
Loral Space & Communications Corporation, a Delaware corporation, and its
Subsidiaries); provided, that, in consideration for such transfers by the
Company to LSC or its affiliates, LSC or such affiliates shall reduce
indebtedness owing by the Company to LSC or such affiliates by $50,000,000 in
the aggregate. The Company may issue notes to any Data Business Subsidiary in
consideration for all or a portion of the purchase price for such assets. If
determined by the relevant parties to the transfers, the Company and its
Subsidiaries may, in connection with such asset transfers in which transfer of
title is delayed for any reason, continue to operate such Data Business
Subsidiaries and the Data Business (and provide funds to the Data Business
Subsidiaries for such purpose) for the benefit (and at the direction) of the
Company
33
(in the case of transfers to the Company by any Data Business Subsidiary) and
for the benefit (and at the direction) of LSC or its affiliates (in the case of
any asset transfer to LSC or any of its affiliates), as applicable, provided
that, in the case of any transfer to LSC or its affiliates, LSC or one or more
affiliates shall have agreed to bear all the costs of operating such assets
pending completion of such transfer. The Company and its Subsidiaries shall not
be required to comply with any provision of this Indenture in connection with
the transactions contemplated by this Section 4.24. The provisions of this
Section 4.24 shall override any provisions in the Indenture or the Notes that
are in conflict or inconsistent with the provisions of this Section 4.24.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. MERGER, CONSOLIDATION, AND SALE OF ASSETS. Each of the
Company and each Subsidiary 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 a series of related actions) to, any Person or permit any Person to
merge with or into the Company or any Subsidiary Guarantor unless:
(i) the Company or any Subsidiary Guarantor, as the case may be, shall
be the continuing Person, or the Person (if other than the Company or
Subsidiary Guarantor) formed by such consolidation or into which the
Company or any Subsidiary Guarantor, as the case may be, is merged or that
acquired or leased such property and assets of the Company or any
Subsidiary 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 Subsidiary Guarantor, as the case may be, on all of
the Notes and under the Indenture;
(ii) immediately after giving effect to such transaction, no 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 action 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 sentence of paragraph (a) 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 Subsidiary Guarantor, as the case may be, delivers
to the Trustee an Officers' Certificate (attaching the arithmetic
computations to demonstrate compliance with clauses (iii) and (iv), if
applicable) and an Opinion of Counsel, in each case stating that such
consolidation, merger or transfer and such supplemental indenture complies
with this provision and that a 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.
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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 or any Subsidiary Guarantor, as the
case may be, in accordance with Section 5.01 of this Indenture, the successor
Person formed by such consolidation or into which the Company or such Subsidiary
Guarantor is merged or to which such sale, conveyance, or other disposition is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company or such Subsidiary Guarantor under this Indenture with the
same effect as if such successor Person had been named as the Company or such
Subsidiary Guarantor herein and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture, the Notes and its Subsidiary Guarantee.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" shall occur with
respect to the Notes if:
(a) the Company defaults 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) the Company defaults 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;
(c) the Company defaults in the performance of or breaches Section
5.01 of this Indenture or fails to make or consummate an Offer to Purchase
in accordance with Section 4.10 or Section 4.12 of this Indenture;
(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 of the Notes;
(e) there occurs with respect to (A) any issue or issues of
Indebtedness of the Company, any Subsidiary 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
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 Subsidiary 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 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 Subsidiary 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 Subsidiary Guarantor
or any Significant Subsidiary or for all or substantially all of the
property and assets of the Company, any Subsidiary Guarantor or any
Significant Subsidiary or (C) the
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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 Subsidiary 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 Subsidiary Guarantor or any Significant Subsidiary or
for all or substantially all of the property and assets of the Company, any
Subsidiary Guarantor or any Significant Subsidiary or (C) effects any
general assignment for the benefit of creditors;
(i) any Notes Guaranty 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 a "Loral Space Event of Default" described in
the Loral Space Guaranty.
SECTION 6.02. ACCELERATION. If an Event of Default (other than an Event
of Default specified in clause (g) or (h) of Section 6.01 of this Indenture that
occurs with respect to the Company or any Subsidiary Guarantor, as the case may
be, or an Event of Default of the type described in clause 8 or 9 of the
definition of Event of Default under the Loral Space Guaranty occurs with
respect to Loral Space) occurs and is continuing under the Indenture, the
Trustee or the Holders of at least 25% in aggregate principal amount 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
Company or the relevant Subsidiary Guarantor or 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 or an Event of Default of
the type described in clause 8 or 9 of the definition of Event of Default under
the Loral Space Guaranty occurs with respect to Loral Space, 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 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, by written notice
to the Company and 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 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.
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SECTION 6.05. CONTROL BY MAJORITY. The Holders of at least a majority in
aggregate principal amount 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 not
joining in the giving of such direction and may take any other action it deems
proper that is not consistent with any such direction received from Holders of
such Notes.
SECTION 6.06. LIMITATION ON SUITS. A Holder may not pursue any remedy
with respect to this 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 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 of the outstanding Notes do not give the Trustee a
direction that is inconsistent with the request.
For purposes of Section 6.05 and this Section 6.06, the Trustee shall
comply with TIA Section 316(a) in making any determination of whether the
Holders of the required aggregate principal amount of outstanding Notes have
concurred in any request or direction of the Trustee to pursue any remedy
available to the Trustee or the Holders, with respect to this Indenture or the
Notes or otherwise under law. A Holder may not use this Indenture to prejudice
the rights of another Holder or to obtain a preference or priority over such
other Holder.
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,
on or after the due date expressed in the Notes, which 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 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.
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
37
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. The Trustee may file such
proofs of claim and 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 any other amounts due the Trustee under Section
7.07) and the Holders allowed in any judicial proceedings relative to the
Company (or any other obligor of the Notes), its creditors or its property and
shall be entitled and empowered to collect and receive any monies, securities or
other property payable or deliverable upon conversion or exchange of the Notes
or upon any such claims and to distribute the same. 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
38
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 test 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 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.
SECTION 6.15. PAYMENT OF MAKE WHOLE PREMIUM. In the case of any Event of
Default occurring by reason of any willful action or inaction taken or not taken
by or on behalf of the Company with the intention of avoiding payment of the
premium that it would have had to pay if it then had elected to redeem the Notes
pursuant to the optional redemption provisions of this Indenture, an equivalent
Make Whole Premium shall also become and be immediately due and payable to the
extent permitted by law upon the acceleration of the Notes.
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
39
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 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 may rely upon any document reasonably believed by it
to be genuine and to have been signed or presented by the proper person and
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;
(h) 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;
(i) 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; and
(j) before the Trustee acts or refrains from acting, it may require an
Officer's Certificate or an Opinion of Counsel, which shall conform to
Section 11.04. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such certificate or opinion.
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.
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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 or the Notes,
(ii) shall not be accountable for the Company's use or application of the
proceeds from the Notes, (iii) shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee and
(iv) shall not be responsible for any statement of any other party contained
herein or in the Notes. The Trustee shall not be charged with knowledge of any
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 Event of Default occurs and is
continuing and if the Trustee shall have received written notification or a
Responsible Officer charged with the administration of this Indenture shall have
obtained knowledge, the Trustee shall mail to each Holder in the manner and to
the extent provided in TIA Section 313(c) notice of such Event of Default within
90 days after such knowledge, unless such 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
2002 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 agent. 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 and each of its directors, officers
and employees for, and hold each such Person harmless against, any loss or
liability or expense incurred by such Person without negligence or bad faith on
the Trustee's part in connection with the acceptance or administration of this
Indenture and its duties under this Indenture 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 and the Notes.
41
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 win 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.
The provisions of this Section 7.07 shall survive the termination of the
Indenture.
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. 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.
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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
under Article Eight of this Indenture.
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 herewith, 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 and the Guarantors 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 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 Government Securities 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 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 (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,
2.13, 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
43
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 Subsidiary 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 and the
Guarantors 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 and the provisions of
this Indenture will no longer be in effect with respect to the Notes 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 money and/or Government
Securities that, through the payment of interest and principal in respect
thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of, premium, if any, and accrued interest
on the Notes on the Stated Maturity of such payments in accordance with the
terms of the Indenture and Notes;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, 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 Event of Default, or event that after the giving of notice or
lapse of time or both could become an 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 deposit, defeasance and
discharge had not occurred, 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 Closing Date 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, 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;
(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
such deposit, defeasance and discharge; 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, 2.13, 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
44
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 and each Guarantor's
obligations under the Notes, any Notes Guaranty and this Indenture except for
those surviving obligations in the immediately preceding paragraph.
SECTION 8.03. DEFEASANCE OF CERTAIN OBLIGATIONS. The Company and the
Subsidiary Guarantors may omit to comply with any term, provision or condition
set forth in clauses (iii) and (iv) of Section 5.01 and Sections 4.02 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 and Loral Space
shall not be required to comply with analogous provisions of the Loral Space
Guaranty and the analogous provisions of the Loral Space Guaranty shall not be
Loral Space Events of Default if:
(a) with reference to this Section 8.03, 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 money and/or Government
Securities that, through the payment of interest and principal in respect
thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of, premium, if any, and accrued interest
on the Notes on the Stated Maturity of such payments in accordance with the
terms of the Indenture and Notes;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, 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 Event of Default, or event that after the giving of notice or
lapse of time or both could become an 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 8.03 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, deference and
discharge had not occurred, 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 Closing Date such
that a ruling from the Internal Revenue Service is no longer required and
(ii) an Opinion of Counsel 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, 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;
45
(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
such deposit, defeasance and discharge; 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 8.03 have been complied with.
SECTION 8.04. APPLICATION OF TRUST MONEY. Subject to Sections 8.05 and
8.06, the Trustee or Paying Agent shall hold in trust money or Government
Securities 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 Government
Securities 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 Government Securities 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 and the
Subsidiary Guarantors' obligations under this Indenture 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 Government Securities 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 Government Securities held by the Trustee
or Paying Agent.
SECTION 8.07. DEFEASANCE AND CERTAIN OTHER EVENTS OF DEFAULT. If, in the
event the Company exercises its option to omit compliance with certain covenants
and provisions of the Indenture with respect to the Notes pursuant to Section
8.03 and such Notes are declared due and payable because of an Event of Default
that remains applicable, and the amount of money and/or Government Securities on
deposit with the Trustee is insufficient to pay amounts due on such Notes due to
a declaration of acceleration under Section 6.02, the Company will remain liable
for such payments.
46
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, and
the Notes without notice to, or the consent of, any Holder:
(a) to cure any ambiguity, defect or inconsistency in this Indenture,
provided that, in the good faith opinion of the Board of Directors as
evidenced by the Board Resolution providing authorization therefor, such
amendments or supplements do not materially and adversely affect the
interests of the Holders;
(b) to comply with Article Five;
(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;
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes;
(e) to make any change that, in the good faith opinion of the Board of
Directors evidenced by a Board Resolution providing authorization therefor,
does not materially and adversely affect the rights of the Holders;
(f) to add any additional Events of Default; or
(g) to add a Subsidiary 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), the Subsidiary
Guarantors and the Trustee May amend this Indenture and the Notes with the
consent of the Holders of not less than a majority in aggregate principal amount
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 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 their Note Guarantees except
pursuant to Section 4.02.
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.
47
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
GUARANTEE OF NOTES
SECTION 10.01. SUBSIDIARY GUARANTEE. Subject to the provisions of this
Article Ten, each Subsidiary Guarantor hereby jointly and severally, fully,
unconditionally and irrevocably guarantees on a senior basis 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 accrued interest on each Note, when and as
the same
48
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. Each Subsidiary 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 its 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, Section 8.02 and Section 8.03 (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 Ten. 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 each Subsidiary Guarantor jointly and severally, for
the purpose of this Article Ten. 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 each
Guarantee provided for in this Article Ten.
If the Trustee or the Holder of any Note is required by any court or
otherwise to return to the Company or any Subsidiary Guarantor, or any
custodian, receiver, liquidator, trustee, sequestrator or other similar official
acting in relation to the Company or such Subsidiary 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.
Each Subsidiary 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 its
Guarantee, notwithstanding any stay, injunction or other prohibition extant
under any applicable bankruptcy law preventing such acceleration in respect of
the obligations guaranteed hereby.
Each Subsidiary Guarantor hereby further agrees that its obligations under
this Indenture and the Notes shall be unconditional, regardless of the validity,
regularity or enforceability of this Indenture or the Notes, the absence of any
action to enforce this Indenture or the Notes, any waiver or consent by any
Holder with respect to any provisions of this Indenture or the Notes, any
modification or amendment of, or supplement to, this Indenture or the Notes, the
recovery of any judgment against the Company or any action to enforce any such
judgment, or any other circumstance that might otherwise constitute a legal or
equitable discharge or defense of a Subsidiary Guarantor.
Each Subsidiary Guarantor that makes or is required to make any payment in
respect of its Guarantee shall be entitled to seek contribution from the other
Subsidiary Guarantors to the extent permitted by applicable law; provided that
each Subsidiary Guarantor agrees that any such claim for contribution that such
Subsidiary Guarantor may have against any other Subsidiary Guarantor shall be
subrogated to the prior payment in full, in cash, of all obligations owed to
Holders under or in respect of the Notes.
Each Subsidiary Guarantor hereby irrevocably defers, until the principal
of, premium, if any, and interest on the Notes shall have been paid in full, 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 its 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
49
security on account of such claim or other rights. If any amount shall be paid
to any Subsidiary 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 such
Subsidiary 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. Each Subsidiary 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 10.01
are knowingly made in contemplation of such benefits.
Each Subsidiary Guarantee set forth in this Section 10.01 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 10.02. OBLIGATIONS UNCONDITIONAL. Subject to Section 10.05,
nothing contained in this Article Ten or elsewhere in this Indenture or in the
Notes is intended to or shall impair, as among each Subsidiary Guarantor and the
Holders, the obligation of each Subsidiary Guarantor, which is absolute and
unconditional, upon failure by the Company, to pay to the Holders 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 and creditors of each Subsidiary
Guarantor, nor shall anything herein or therein prevent any Holder or the
Trustee on its 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 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 10.03. NOTICE TO TRUSTEE. Each Subsidiary Guarantor shall give
prompt written notice to the Trustee of any fact known to such Subsidiary
Guarantor which would prohibit the making of any payment to or by the Trustee in
respect of its Guarantee pursuant to the provisions of this Article Ten.
SECTION 10.04. THIS ARTICLE NOT TO PREVENT EVENTS OF DEFAULT. The failure
to make a payment on account of principal of, premium, if any, or accrued
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 10.05. NET WORTH LIMITATION. Notwithstanding any other provision
of this Indenture or the Notes, the Guarantee shall not be enforceable against
any Subsidiary Guarantor in an amount in excess of the net worth of such
Subsidiary Guarantor at the time that determination of such net worth is, under
applicable law, relevant to the enforceability of such Guarantee. The Subsidiary
Guarantor's net worth shall include any claim of the Subsidiary Guarantor
against the Company or any other Guarantor (including the Parent Guarantor) for
reimbursement and any claim against any other Guarantor (including the Parent
Guarantor) for contribution.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. 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.
50
SECTION 11.02. 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 or the Subsidiary Guarantors:
Loral CyberStar, Inc.
c/o Loral SpaceCom Corporation
000 Xxxxx Xxxxxx
XX, XX 00000
Telecopier No: (000) 000-0000
Attention: Xxx Xxxx
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
if to the Trustee:
Bankers Trust Company
0 Xxxxxx Xxxxxx, 0xx Xxxxx
Mailstop 5041
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust and Agency Group
with a copy to:
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
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 11.02, 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.
51
In case by xxxxx 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 11.03. 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 11.04. 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 11.05. 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 11.05.
(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 or 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.
52
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 11.06. 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 11.07. 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 amount 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 11.08. GOVERNING LAW. This Indenture and the Notes shall be
governed by the laws of the State of
New York.
SECTION 11.09. 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 11.10. 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 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
any 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 and the issue of the Notes.
SECTION 11.11. 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 11.12. 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 11.13. 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 11.14. 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.
53
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
LORAL CYBERSTAR, INC. BANKERS TRUST COMPANY, as Trustee
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxxx
-------------------------------------- ------------------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx Xxxxxxx
Title: Vice President and Assistant Title: Vice President
Secretary
SUBSIDIARY GUARANTOR
LORAL ASIA PACIFIC SATELLITE (HK) LIMITED
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and Assistant
Secretary
EXHIBIT A
FORM OF GLOBAL NOTE
[FACE OF NOTE]
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 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 LORAL CYBERSTAR, INC.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
LORAL CYBERSTAR, INC.
10% SENIOR NOTE DUE 2006
CUSIP 543868 AC 7
$________
No. _____
Issue Date: [December [ ], 2001]
LORAL CYBERSTAR, INC., a Delaware corporation (the "COMPANY", which term
includes any successor under the Indenture hereinafter referred to), for value
received, promises to pay to Cede & Co., or its registered assigns, the
principal sum of United States Dollars (U.S.$ ) on July 15,
2006.
Interest Payment Dates: January 15 and July 15, commencing July 15, 2002.
Regular Record Dates: January 1 and July 1.
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.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by its duly authorized officer.
Date: LORAL CYBERSTAR, INC.
By:
------------------------------------
Name:
Title:
This is one of the 10% Senior Notes due 2006 described in the within-mentioned
Indenture.
BANKERS TRUST COMPANY,
as Trustee
By:
------------------------------------
Authorized Signatory
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[REVERSE SIDE OF NOTE]
LORAL CYBERSTAR, INC.
10% SENIOR NOTE DUE 2006
1. PRINCIPAL AND INTEREST.
Loral CyberStar, Inc. (the "COMPANY") will pay the principal of this Note
on July 15, 2006.
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 10% per annum (the
"INTEREST RATE") and shall be payable in U.S. dollars in cash semi-annually on
January 15 and July 15 (each an "INTEREST PAYMENT DATE") to be paid to the
person in whose name this Note is registered as of the close of business on the
Regular Record Date for such interest, which shall be January 1 or July 1
(whether or not a Business Day); provided that no interest shall be payable on
the principal amount of the note prior to July 15, 2002. From and after July 15,
2002, the Notes will pay interest semi-annually in cash on January 15 and July
15 of each year. Interest on the Notes will accrue from the most recent date to
which interest has been paid. Interest will accrue from October 15, 2001 for the
first Interest Payment Date of July 15, 2002. 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 12% 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
or wire transfer 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; ISSUANCE OF ADDITIONAL NOTES.
This Note is one of a duly authorized issue of Notes of the Company
designated as its 10% Senior Notes due 2006, issued and to be issued under an
Indenture dated as of December 21, 2001 (the "INDENTURE"), between the Company,
certain subsidiaries of the Company, as Subsidiary Guarantors, and 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 Company
may, subject to Article Four of the Indenture, issue additional Notes under the
Indenture.
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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 prior to maturity, upon not less than 30 nor
more than 60 days' prior notice mailed by first class mail to each holder's last
address as it appears in the Security Register, at a Redemption Price equal to
(i) the principal amount of the new notes being redeemed, plus (ii) accrued and
unpaid interest, if any, to the Redemption Date, plus (iii) the Make Whole
Premium.
The Notes will also be redeemable, at the Company's option, in whole or in
part, at any time or from time to time 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 Security Register, in an aggregate principal
amount not to exceed $100 million, at a redemption price equal to (i) 101% of
the principal amount of the Notes being redeemed, plus (ii) accrued and unpaid
interest, if any, to the Redemption Date. Any such redemption shall be payable
only out of Excess Cash Flow.
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 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. 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 or an integral
multiple thereof and is transferable only in accordance with the Indenture. 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.
A-5
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 written 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 Government Securities
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; (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 4.10 or Section 4.12 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 of the
Notes; (e) there occurs with respect to (A) any issue or issues of Indebtedness
of the Company, any Subsidiary 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,
A-6
(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 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,
any Subsidiary 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
Subsidiary Guarantor or any Significant Subsidiary or for all or substantially
all of the property and assets of the Company, any Subsidiary 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 Subsidiary 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
Subsidiary Guarantor or any Significant Subsidiary or for all or substantially
all of the property and assets of the Company, any Subsidiary Guarantor or any
Significant Subsidiary or (C) effects any general assignment for the benefit of
creditors; (i) any Notes Guaranty shall cease to be, or shall be asserted in
writing by the Company or any Subsidiary 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 the Loral Space Guaranty.
If an Event of Default (other than an Event of Default specified in clause
(g) or (h) of Section 6.01 of the Indenture that occurs with respect to the
Company or any Subsidiary Guarantor, as the case may be, or an Event of Default
of the type described in clause 8 or 9 of the definition of Event of Default
under the Loral Space Guaranty occurs with respect to Loral Space) occurs and is
continuing under the Indenture, the Trustee or the Holders of at least 25% in
aggregate principal amount 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 Company or the relevant Subsidiary Guarantor or
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 or an Event of Default of the type described in clause 8 or 9 of the
definition of Event of Default under the Loral Space Guaranty occurs with
respect to Loral Space, 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.
A-7
The Holders of at least a majority in principal amount 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, 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 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 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. 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 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 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.
In the case of any Event of Default occurring by reason of any willful
action or inaction taken or not taken by or on behalf of the Company with the
intention of avoiding payment of the premium that it would have had to pay if it
then had elected to redeem the Notes pursuant to the optional redemption
provisions of the Indenture, an equivalent Make Whole Premium shall also be come
and be immediately due and payable to the extent permitted by law upon the
acceleration of the Notes.
17. GUARANTEES.
Payment of principal, premium, if any, and interest (including interest on
overdue principal and overdue interest, to the extent lawful) on the Notes and
all other obligations of the Company to the Holders or the Trustee under the
Indenture and the Notes (a) is, jointly and severally, unconditionally
guaranteed by each of the Subsidiary Guarantors pursuant to and subject to the
terms of Article Ten of the Indenture; and (b) is unconditionally guaranteed by
Loral Space and Communications Ltd. pursuant to the Loral Space Guaranty.
18. 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.
19. 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 or any Guarantor in the Indenture or any Guaranty of
the Notes, 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 any
Guarantor or of any successor Person thereof. Each Holder, by accepting the
Notes, waives and releases all such liability.
A-8
20. 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.
21. 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.
22. GOVERNING LAW.
THIS NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
23. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder or an assignee,
such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts of Minors Act).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to Loral CyberStar, Inc.,
c/o Loral Spacecom Corporation 000 Xxxxx Xxxxxx Xxx Xxxx, X.X. 00000, Attention:
Secretary.
A-9
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:
TOTAL PRINCIPAL AMOUNT
DECREASE IN INCREASE IN OF THIS GLOBAL NOTE
DATE OF PRINCIPAL AMOUNT PRINCIPAL AMOUNT FOLLOWING SUCH NOTATION MADE BY OR
DECREASE/INCREASE OF THIS GLOBAL NOTE OF THIS GLOBAL NOTE DECREASE/INCREASE ON BEHALF OF TRUSTEE
--------------------- ------------------- ------------------- ---------------------- --------------------
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A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to Section
4.10 or Section 4.12 of the Indenture, check the box: [ ]
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 4.10 or Section 4.12 of the Indenture, state the amount (in
principal amount): $ ($1,000 or integral multiple thereof).
Date:
------------------------------
Your Signature:
--------------------------------------------------------------------------------
Signature Guarantee:(1)
--------------------------------------------------------------------------------
---------------
(1 )The Holder's signature must be guaranteed by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible Subsidiary Guarantor
institution" as defined by Rule 17Ad-15 under the Exchange Act.
A-11
ASSIGNMENT FORM
I OR WE ASSIGN AND TRANSFER THIS NOTE TO:
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Print or type name, address and zip code of assignee and irrevocably appoint
____________________, as agent, to transfer this Note on the books of the
Company.
The agent may substitute another to act for him.
Dated -------------------- Signed
--------------------------------------------------------
(Sign exactly as name appears on the other side of this Note)
Signature Guarantee:(1)
--------------------------------------------------------------------------------
---------------
(1 )The Holder's signature must be guaranteed by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible Subsidiary Guarantor
institution" as defined by Rule 17Ad-15 under the Exchange Act.
A-12
EXHIBIT B
FORM OF CERTIFICATED NOTE
[FACE OF NOTE]
LORAL CYBERSTAR, INC.
10% SENIOR NOTE DUE 2006
CUSIP 543868 AC 7
No. __________
$____________
Issue Date: [December [ ], 2001]
LORAL CYBERSTAR, INC., a Delaware corporation (the "COMPANY", which term
includes any successor under the Indenture hereinafter referred to), for value
received, promises to pay , or its registered assigns the
principal sum of United States Dollars (U.S. $ ) on July
15, 2006.
Interest Payment Dates: January 15 and July 15, commencing July 15,
2002.
Regular Record Dates: January 1 and July 1.
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 officers.
Date: December [ ], 2001 LORAL CYBERSTAR, INC.
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
This is one of the 10% Senior Notes due 2006 described in the
within-mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
By:
--------------------------------------
Name:
Title:
B-2
[REVERSE SIDE OF NOTE]
LORAL CYBERSTAR, INC.
10% SENIOR NOTE DUE 2006
1. PRINCIPAL AND INTEREST.
Loral CyberStar, Inc. (the "COMPANY") will pay the principal of this Note
on July 15, 2006.
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 10% per annum (the
"INTEREST RATE") and shall be payable in U.S. dollars in cash semi-annually on
January 15 and July 15 (each an "INTEREST PAYMENT DATE") to be paid to the
person in whose name this Note is registered as of the close of business on the
Regular Record Date for such interest, which shall be January 1 or July 1
(whether or not a Business Day); provided that no interest shall be payable on
the principal amount of this Note prior to July 15, 2002. From and after July
15, 2002, the Notes will pay interest semi-annually in cash on January 15 and
July 15 of each year. Interest on the Notes will accrue from the most recent
date to which interest has been paid. Interest will accrue from October 15, 2001
for the first Interest Payment Date of July 15, 2002. 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 12% 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; ISSUANCE OF ADDITIONAL NOTES.
This Note is one of a duly authorized issue of Notes of the Company
designated as its 10% Senior Notes due 2006, issued and to be issued under an
Indenture dated as of December 21, 2001 (the "INDENTURE"), between the Company,
certain subsidiaries of the Company, as Subsidiary Guarantors, and 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 Company
may, subject to Article Four of the Indenture, issue additional Notes under the
Indenture.
B-3
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 prior to maturity, upon not less than 30 nor
more than 60 days' prior notice mailed by first class mail to each holder's last
address as it appears in the Security Register, at a Redemption Price equal to
(i) the principal amount of the new notes being redeemed, plus (ii) accrued and
unpaid interest, if any, to the Redemption Date, plus (iii) the Make Whole
Premium.
The Notes will also be redeemable, at the Company's option, in whole or in
part, at any time or from time to time 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 Security Register, in an aggregate principal
amount not to exceed $100 million, at a redemption price equal to (i) 101% of
the principal amount of the Notes being redeemed, plus (ii) accrued and unpaid
interest, if any, to the Redemption Date. Any such redemption shall be payable
only out of Excess Cash Flow.
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 $l,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 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. 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 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.
B-4
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 written 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 Government Securities
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; (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 4.10 or Section 4.12 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
B-5
the Trustee or the Holders of 25% or more in aggregate principal amount of the
Notes; (e) there occurs with respect to (A) any issue or issues of Indebtedness
of the Company, any Subsidiary 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, (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 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 Subsidiary 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
Subsidiary Guarantor or any Significant Subsidiary or for all or substantially
all of the property and assets of the Company, any Subsidiary 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 Subsidiary 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
Subsidiary Guarantor or any Significant Subsidiary or for all or substantially
all of the property and assets of the Company, any Subsidiary Guarantor or any
Significant Subsidiary or (C) effects any general assignment for the benefit of
creditors; (i) any Notes Guaranty shall cease to be, or shall be asserted in
writing by the Company or any Subsidiary 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 the Loral Space Guaranty.
If an Event of Default (other than an Event of Default specified in clause
(g) or (h) of Section 6.01 of the Indenture that occurs with respect to the
Company or any Subsidiary Guarantor, as the case may be, or an Event of Default
of the type described in clause 8 or 9 of the definition of Event of Default
under the Loral Space Guaranty occurs with respect to Loral Space) occurs and is
continuing under the Indenture, the Trustee or the Holders of at least 25% in
aggregate principal amount 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 Company or the relevant Subsidiary Guarantor or
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 or an Event of Default of the type described in clause 8 or 9 of the
definition of Event of Default under the Loral Space Guaranty occurs with
respect to Loral Space, the principal amount of,
B-6
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 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, 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 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 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. 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 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 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.
In the case of any Event of Default occurring by reason of any willful
action or inaction taken or not taken by or on behalf of the Company with the
intention of avoiding payment of the premium that it would have had to pay if it
then had elected to redeem the Notes pursuant to the optional redemption
provisions of the Indenture, an equivalent Make Whole Premium shall also be come
and be immediately due and payable to the extent permitted by law upon the
acceleration of the Notes.
17. GUARANTEES.
Payment of principal, premium, if any, and interest (including interest on
overdue principal and overdue interest, to the extent lawful) on the Notes and
all other obligations of the Company to the Holders or the Trustee under the
Indenture and the Notes (a) is, jointly and severally, unconditionally
guaranteed by each of the Subsidiary Guarantors pursuant to and subject to the
terms of Article Ten of the Indenture; and (b) is unconditionally guaranteed by
Loral Space and Communications Ltd. pursuant to the Loral Space Guaranty.
18. 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.
19. 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 or any Guarantor in the Indenture or any Guaranty of
the Notes, or in any of the Notes or because of the creation of any Indebtedness
represented thereby, shall be had
B-7
against any incorporator, stockholder, officer, director, employee or
controlling person of the Company or any Guarantor or of any successor Person
thereof. Each Holder, by accepting the Notes, waives and releases all such
liability.
20. 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.
21. 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.
22. GOVERNING LAW.
THIS NOTE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
23. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder or an assignee,
such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties),
JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts of Minors Act).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to Loral CyberStar, Inc.,
c/o Loral Spacecom Corporation, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention:
Secretary.
B-8
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company pursuant to Section
4.10 or Section 4.12 of the Indenture, check the box: [ ]
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 4.10 or Section 4.12 of the Indenture, state the amount (in
principal amount): $________ ($1,000 or integral multiple thereof).
Date:
------------------------------------
Your Signature:
--------------------------------------------------------------------------------
Signature Guarantee:(1)
-------------------------------------------
---------------
(1 )The Holder's signature must be guaranteed by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible Subsidiary Guarantor
institution" as defined by Rule 17Ad-15 under the Exchange Act.
B-9
ASSIGNMENT FORM
I OR WE ASSIGN AND TRANSFER THIS NOTE TO:
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
----------------------------------------------------
----------------------------------------------------
Print or type name, address and zip code of assignee and irrevocably appoint
________, as agent, to transfer this Note on the books of the Company.
The agent may substitute another to act for him.
Dated _______________ Signed
__________________________________________
(Sign exactly as name appears on the other side of this Note)
Signature Guarantee:(1)
-------------------------------
---------------
(1 )The Holder's signature must be guaranteed by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible Subsidiary Guarantor
institution" as defined by Rule 17Ad-15 under the Exchange Act.
B-10
EXHIBIT C
FORM OF SUPPLEMENTAL INDENTURE TO BE
DELIVERED BY SUBSIDIARY GUARANTORS
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE") dated as of
, between (the "SUBSIDIARY GUARANTOR"), a
subsidiary of Loral CyberStar, Inc. (or its successor), a Delaware corporation
(the "COMPANY"), and Bankers Trust Company, as trustee under the indenture
referred to below (the "TRUSTEE").
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture (the "INDENTURE"), dated as of December 21, 2001 providing for the
issuance of up to $675,000,000 of 10% Senior Notes due 2006 (the "NOTES");
WHEREAS, Section 4.02 of the Indenture provides that, the Company will
provide to the Trustee, on the date that any Person becomes a Restricted
Subsidiary, a supplemental indenture to the 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 the Indenture; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Subsidiary Guarantor and the Trustee mutually covenant and agree for the equal
and ratable benefit of the holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. ISSUANCES OF GUARANTEES BY NEW RESTRICTED SUBSIDIARIES. This
Supplemental Indenture is being executed and delivered pursuant to Section
4.02 of the Indenture.
3. AGREEMENTS TO GUARANTEE. The Subsidiary Guarantor hereby agrees as
follows:
(a) The Subsidiary Guarantor, jointly and severally with all other
Subsidiary Guarantors, if any, unconditionally guarantees on a senior
basis to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, regardless of
the validity and enforceability of the Indenture, the Notes and the
obligations of the Company under the Indenture and the Notes, that:
(i) the principal of, premium, if any, and interest on the Notes
shall be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue
principal of, premium, if any, and interest on the Notes, to the
extent lawful, and all other obligations of the Company to the
Holders or the Trustee thereunder shall be promptly paid in full, all
in accordance with the terms thereof; and
(ii) in case of any extension of time for payment or renewal of
any Notes or any of such other obligations, that the same shall be
promptly paid in full when due in accordance with the terms of the
extension or renewal whether at Stated Maturity, by acceleration or
otherwise.
Notwithstanding the foregoing, in the event that this Subsidiary
Guarantee would constitute or result in a violation of any applicable
fraudulent conveyance or similar law of any relevant jurisdiction, the
liability of the Subsidiary Guarantor under this Supplemental Indenture
and its Subsidiary Guarantee shall be limited to such amount as will
not, after giving effect thereto, and
to all other liabilities of the Subsidiary Guarantor, result in such
amount constituting a fraudulent transfer or conveyance.
4. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES.
(a) To evidence its Subsidiary Guarantee set forth in this Supplemental
Indenture, the Subsidiary Guarantor hereby agrees that a notation of such
Subsidiary Guarantee substantially in the form of Annex A hereto shall be
endorsed by an officer of such Subsidiary Guarantor on each Note authenticated
and delivered by the Trustee after the date hereof.
(b) Notwithstanding the foregoing, the Subsidiary Guarantor hereby agrees
that its Subsidiary Guarantee set forth herein shall remain in full force and
effect notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
(c) If an officer whose signature is on this Supplemental Indenture or on
the Subsidiary Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which a Subsidiary Guarantee is endorsed, the
Subsidiary Guarantee shall be valid nevertheless.
(d) The delivery of the Note by the Trustee, after the authentication
thereof under the Indenture, shall constitute due delivery of the Subsidiary
Guarantee set forth in this Supplemental Indenture on behalf of the Subsidiary
Guarantor.
(e) The Subsidiary Guarantor hereby agrees that its obligations hereunder
shall be unconditional, regardless of the validity, regularity or enforceability
of the Notes or the Indenture, the absence of any action to enforce the same,
any waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgement against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor.
(f) The Subsidiary Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever and covenants that its
Subsidiary Guarantee made pursuant to this Supplemental Indenture will not be
discharged except by complete performance of the obligations contained in the
Notes and the Indenture or pursuant to Section 5(b) of this Supplemental
Indenture.
(g) If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Supplemental 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 Subsidiary Guarantor, the Trustee and the
Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Subsidiary Guarantor,
the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
(h) The Subsidiary Guarantor hereby 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 Subsidiary Guarantor as a result of any payment by such Subsidiary
Guarantor under its Subsidiary Guarantee. The Subsidiary Guarantor further
agrees that, as between the Subsidiary Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand:
(i) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six of the Indenture for the purposes of
the Subsidiary Guarantee made pursuant to this Supplemental Indenture,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby; and
(ii) 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
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Subsidiary Guarantor for the purpose of the Subsidiary Guarantee made
pursuant to this Supplemental Indenture.
(i) The Subsidiary Guarantor shall have the right to seek contribution from
any other non-paying Subsidiary Guarantor, if any, so long as the exercise of
such right does not impair the rights of the Holders under the Subsidiary
Guarantee made pursuant to this Supplemental Indenture.
5. SUBSIDIARY GUARANTOR MAY CONSOLIDATE, ETC. ON CERTAIN
TERMS. Except as set forth in Articles Four and Five of the Indenture,
nothing contained in the Indenture, this Supplemental Indenture or in the
Notes shall prevent any consolidation or merger of the Subsidiary Guarantor
with or into the Company or any other Subsidiary Guarantor or shall prevent
any transfer, sale or conveyance of the property of the Subsidiary
Guarantor as an entirety or substantially as an entirety, to the Company or
any other Subsidiary Guarantor.
6. RELEASES UPON RELEASE OF GUARANTEE OF GUARANTEED
INDEBTEDNESS. Concurrently with the release or discharge of the Subsidiary
Guarantor's guarantee of the Guaranteed Indebtedness (other than a release
or discharge by or as a result of payment under such guarantee of
Guaranteed Indebtedness), the Subsidiary Guarantor shall automatically be
released from and relieved of its obligations under this Supplemental
Indenture and its Subsidiary Guarantee made pursuant hereto or Section 4 of
this Supplemental Indenture, as the case may be. Upon delivery by the
Company to the Trustee of an Officers' Certificate to the effect that such
release or discharge has occurred, the Trustee shall execute any documents
reasonably required in order to evidence the release of the Subsidiary
Guarantor from its obligations under this Supplemental Indenture and its
Subsidiary Guarantee made pursuant hereto.
7. NEW YORK LAW TO GOVERN. This Supplemental Indenture shall be
governed by the laws of the State of New York.
8. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
9. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not effect the construction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: , [SUBSIDIARY GUARANTOR]
By:
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Name:
Title:
Dated: , BANKERS TRUST COMPANY, as Trustee
By:
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Name:
Title:
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ANNEX A TO SUPPLEMENTAL INDENTURE
FORM OF NOTATION OF SUBSIDIARY GUARANTEE ON NOTE
Each Subsidiary Guarantor (as defined in the Indenture) has jointly and
severally unconditionally guaranteed (a) the due and punctual payment of the
principal of, premium, if any, and interest on the Notes, whether at Stated
Maturity or an Interest Payment Date, by acceleration, call for redemption or
otherwise, (b) the due and punctual payment of interest on the overdue principal
and premium of, and interest to the extent lawful, on the Notes and (c) that in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, the same will be promptly paid in full when due in accordance
with the terms of the extension or renewal, whether at Stated Maturity, by
acceleration or otherwise.
Notwithstanding the foregoing, in the event that the Subsidiary Guarantee
would constitute or result in a violation of any applicable fraudulent
conveyance or similar law of any relevant jurisdiction, the liability of the
Subsidiary Guarantor under its Subsidiary Guarantee shall be limited to such
amount as will not, after giving effect thereto, and to all other liabilities of
the Subsidiary Guarantor, result in such amount constituting a fraudulent
transfer or conveyance.
The Subsidiary Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Note upon which the Subsidiary
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual or facsimile signature of one of its authorized officers.
[SUBSIDIARY GUARANTOR]
By:
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Name:
Title:
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