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Exhibit 4.3
ORBITAL IMAGING CORPORATION
AND
MARINE MIDLAND BANK,
AS TRUSTEE
INDENTURE
DATED AS OF FEBRUARY 25, 1998
$150,000,000
11 5/8% SENIOR NOTES DUE 2005
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............................ 1
Section 1.1 Definitions....................................................... 1
Section 1.2 Incorporation by Reference of Trust Indenture Act................. 23
Section 1.3 Rules of Construction............................................. 23
ARTICLE II THE NOTES .................................................................. 24
Section 2.1 Form and Dating................................................... 24
Section 2.2 Execution and Authentication...................................... 25
Section 2.3 Trustee, Registrar and Paying Agent............................... 26
Section 2.4 Paying Agent to Hold Money in Trust............................... 27
Section 2.5 Holder Lists...................................................... 27
Section 2.6 Transfer and Exchange............................................. 27
Section 2.7 Replacement Notes................................................. 35
Section 2.8 Outstanding Notes................................................. 35
Section 2.9 Treasury Notes.................................................... 36
Section 2.10 Temporary Notes................................................... 36
Section 2.11 Cancellation...................................................... 36
Section 2.12 Defaulted Interest................................................ 36
Section 2.13 Persons Deemed Owners............................................. 37
Section 2.14 CUSIP Numbers..................................................... 37
ARTICLE III REDEMPTION .................................................................. 37
Section 3.1 Optional Redemption............................................... 37
Section 3.2 Mandatory Redemption.............................................. 38
Section 3.3 Election to Redeem; Notice to Trustee............................. 38
Section 3.4 Notes to be Redeemed Pro Rata..................................... 38
Section 3.5 Notice of Redemption.............................................. 39
Section 3.6 Effect of Notice of Redemption.................................... 40
Section 3.7 Deposit of Redemption Price....................................... 40
Section 3.8 Notes Payable on Redemption Date.................................. 40
Section 3.9 Notes Redeemed in Part............................................ 40
ARTICLE IV COVENANTS .................................................................. 41
Section 4.1 Payment of Notes.................................................. 41
Section 4.2 Maintenance of Office or Agency................................... 41
Section 4.3 Corporate Existence............................................... 42
Section 4.4 Payment of Taxes and Other Claims................................. 42
Section 4.5 Maintenance of Properties and Insurance........................... 42
Section 4.6 Compliance Certificate; Notice of Default......................... 44
Section 4.7 Compliance with Laws.............................................. 45
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Section 4.8 Reports........................................................... 45
Section 4.9 Waiver of Stay, Extension or Usury Laws........................... 46
Section 4.10 Limitation on Restricted Payments................................. 46
Section 4.11 Limitation on Transactions with Affiliates........................ 49
Section 4.12 Limitation on Incurrence of Indebtedness or
Issuance of Disqualified Stock.................................. 51
Section 4.13 Dividend and Other Payment Restrictions
Affecting Subsidiaries.......................................... 53
Section 4.14 Limitation on Change of Control................................... 54
Section 4.15 Limitation on Sales of Assets and Subsidiary
Interests....................................................... 56
Section 4.16 Limitation on Liens............................................... 58
Section 4.17 Business Activities and Construction of
OrbView Satellites.............................................. 59
Section 4.18 Limitations on Sale and Leaseback Transactions.................... 59
Section 4.19 Limitation on Sale of Capital Stock of Subsidiaries............... 59
ARTICLE V MERGER, CONSOLIDATION OR SALE OF ASSETS............................................ 60
Section 5.1 Xxxxxxx, Consolidations and Sales of Assets....................... 60
Section 5.2 Successor Substituted............................................. 61
ARTICLE VI EVENTS OF DEFAULT AND REMEDIES..................................................... 61
Section 6.1 Events of Default................................................. 61
Section 6.2 Acceleration...................................................... 63
Section 6.3 Other Remedies.................................................... 64
Section 6.4 Waiver of Past Defaults........................................... 64
Section 6.5 Control by Majority............................................... 64
Section 6.6 Limitation on Suits............................................... 65
Section 6.7 Rights of Holders to Receive Payment.............................. 65
Section 6.8 Collection Suit by Trustee........................................ 66
Section 6.9 Trustee May File Proofs of Claim.................................. 66
Section 6.10 Priorities........................................................ 66
Section 6.11 Undertaking for Costs............................................. 67
ARTICLE VII TRUSTEE .................................................................. 67
Section 7.1 Duties of Trustee................................................. 67
Section 7.2 Rights of Trustee................................................. 68
Section 7.3 Individual Rights of Trustee and Agents........................... 69
Section 7.4 Trustee's Disclaimer.............................................. 69
Section 7.5 Notice of Default................................................. 69
Section 7.6 Reports by Trustee to Holders..................................... 70
Section 7.7 Compensation and Indemnity........................................ 70
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Section 7.8 Resignation and Removal; Appointment of
Successor....................................................... 71
Section 7.9 Acceptance of Appointment by Successor............................ 72
Section 7.10 Successor Trustee by Xxxxxx, Xxx.................................. 73
Section 7.11 Trustee Required; Eligibility; Disqualification................... 73
Section 7.12 Preferential Collection of Claims Against Company................. 73
ARTICLE VIII DEFEASANCE AND SATISFACTION AND DISCHARGE.......................................... 74
Section 8.1 Defeasance and Covenant Defeasance................................ 74
Section 8.2 Satisfaction and Discharge........................................ 76
Section 8.3 Survival of Certain Obligations................................... 76
Section 8.4 Acknowledgment of Discharge by Trustee............................ 77
Section 8.5 Application of Trust Moneys and Government
Securities...................................................... 77
Section 8.6 Repayment to the Company; Unclaimed Money......................... 77
Section 8.7 Reinstatement..................................................... 78
ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS................................................ 78
Section 9.1 Without Consent of Holders........................................ 78
Section 9.2 With Consent of Holders........................................... 79
Section 9.3 Execution of Supplemental Indentures.............................. 80
Section 9.4 Effect of Supplemental Indentures................................. 80
Section 9.5 Compliance with Trust Indenture Act............................... 81
Section 9.6 Reference in Notes to Supplemental Indentures..................... 81
Section 9.7 Revocation and Effect of Consents................................. 81
ARTICLE X SUBSIDIARY GUARANTEES.............................................................. 82
Section 10.1 Unconditional Guarantee........................................... 82
Section 10.2 Priority of Guarantee............................................. 83
Section 10.3 Severability...................................................... 83
Section 10.4 Limitation of Subsidiary Guarantor's Liability.................... 83
Section 10.5 Waiver of Subrogation............................................. 83
Section 10.6 Successors and Assigns............................................ 84
Section 10.7 No Waiver......................................................... 84
Section 10.8 Modification...................................................... 84
Section 10.9 Release of Subsidiary Guarantor................................... 84
Section 10.10 Execution of Supplemental Indenture by Future
Restricted Subsidiaries......................................... 85
Section 10.11 Waiver of Stay, Extension or Usury Laws........................... 85
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ARTICLE XI MISCELLANEOUS .................................................................. 85
Section 11.1 Trust Indenture Act Controls...................................... 85
Section 11.2 Notices to Company and Trustee.................................... 86
Section 11.3 Notices to Holders................................................ 86
Section 11.4 Trustee, Paying Agent and Registrar Procedures.................... 87
Section 11.5 Compliance Certificates and Opinions.............................. 87
Section 11.6 Form of Documents Delivered to Trustee............................ 87
Section 11.7 Acts of Holders; Registered Holders; Record Dates................. 88
Section 11.8 Successors and Assigns............................................ 89
Section 11.9 Severability...................................................... 89
Section 11.10 Benefits of Indenture............................................. 90
Section 11.11 Governing Law; Jurisdiction....................................... 90
Section 11.12 Legal Holidays.................................................... 90
Section 11.13 No Recourse Against Others; Limitation on Liability............... 90
Section 11.14 Counterparts...................................................... 91
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INDENTURE, dated as of February 25, 1998, by and between Orbital
Imaging Corporation (the "Company" or "ORBIMAGE") with its principal office at
00000 Xxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000, and Marine Midland Bank, a New
York banking corporation and trust company, as trustee (the "Trustee").
RECITALS:
WHEREAS, the Company has duly authorized the issuance of $150,000,000
aggregate principal amount of its 11 5/8% Senior Notes Due 2005 (the "Notes") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture; and
WHEREAS, all things necessary to make the Notes, when executed by the
Company and authenticated and delivered hereunder, duly issued by the Company,
the valid obligations of the Company, and to make this Indenture a valid and
binding agreement of Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH: for and in consideration of
the premises and the purchase of the Notes by the Holders (as hereinafter
defined) thereof, each party hereto hereby mutually covenants and agrees, for
the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.
"Acceleration Notice" has the meaning set forth in Section 6.2(a).
"Acquired Debt" means, with respect to any specified Person:
(i) Indebtedness of any other Person existing at the time such
other Person is merged with or into or became a Restricted Subsidiary of such
specified Person, including, without limitation, Indebtedness incurred in
connection with, or in contemplation of, such other Person merging with or into
or becoming a Restricted Subsidiary of such specified Person; and
(ii) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"Act" has the meaning set forth in Section 11.7(a).
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"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of Voting Equity Interests, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the Voting Equity Interests (or the
equivalent) of a Person shall be deemed to be control.
"Affiliate Transaction" has the meaning set forth in Section 4.11.
"Agent Member" shall mean members of, or participants in, the
Depositary.
"Asset Sale" means:
(i) the sale, lease, license, conveyance or other
disposition of any assets or rights (including, without limitation, by way of a
Sale and Leaseback Transaction or similar arrangement) by the Company or a
Restricted Subsidiary (a "disposition"), provided that the disposition of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole will be governed by Sections 4.14 and/or 5.1 of this Indenture,
and not by Section 4.15.
(ii) except to the extent excluded by clause (i) above,
the issuance or disposition by the Company or any of its Restricted Subsidiaries
of Equity Interests of the Company's Restricted Subsidiaries.
in the case of either clause (i) or (ii) above, whether in a single transaction
or a series of related transactions: (a) that have a Fair Market Value in excess
of $2.5 million; or (b) for net proceeds in excess of $2.5 million.
Notwithstanding the foregoing: (i) sales of imagery, imagery
distribution or satellite tasking rights, software or rights in software for
processing and storing imagery, license grants to imagery value-added resellers
or distributors and other associated rights, and sales of services, products or
inventory in the ordinary course of business; (ii) a transfer of assets by the
Company to any of its Restricted Subsidiaries or by a Restricted Subsidiary to
the Company; (iii) an issuance of Equity Interests by a Restricted Subsidiary to
the Company or to a Wholly Owned Restricted Subsidiary of the Company; (iv) an
exchange of an asset held by the Company or a Restricted Subsidiary for an asset
of a third party upon a determination by the disinterested members of the Board
of Directors of the Company made in good faith (evidenced by a resolution
approved by a majority of the disinterested members of the Board of Directors of
the Company and set forth in an Officers' Certificate delivered to the Trustee)
that the asset received by the Company or a Restricted Subsidiary in such
exchange (x) is a Related Asset, (y) has a Fair Market Value at least equal to
the fair market value of the asset transferred by the Company or
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such Restricted Subsidiary and (z) is usable in the ordinary course of the
Company's business to at least the same extent as the asset transferred by the
Company or such Restricted Subsidiary; (v) sales or dispositions of damaged,
worn out or other obsolete property in the ordinary course of business so long
as such property is no longer necessary for the proper conduct of the business
of the Company or any of its Restricted Subsidiaries; and (vi) a Restricted
Payment that is permitted under Section 4.10, will not be deemed to be Asset
Sales.
"Asset Sale Offer" has the meaning set forth in Section 4.15(a).
"Asset Sale Offer Trigger Date" has the meaning set forth in Section
4.15(a).
"Attributable Debt" means, with respect to any sale and leaseback
transaction, the present value at the time of determination (discounted at a
rate consistent with accounting guidelines, as determined in good faith by the
Company) of the payments during the remaining term of the lease (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended) or until the earliest date on which the lessee may
terminate such lease without penalty or upon payment of a penalty (in which case
the rental payments shall include such penalty, after excluding all amounts
required to be paid on account of maintenance and repairs, insurance, taxes,
assessments, water, utilities and similar charges).
"Business Assets" means any hardware, software, technology,
intellectual property, or other rights in or assets (or, in the case of clause
(vi), inventory) relating to (i) the remote imaging satellites owned and/or
operated by ORBIMAGE on the Issue Date, (ii) the OrbView Satellites, (iii) the
Replacement Satellites, (iv) any other remote imaging satellites developed,
constructed or acquired by ORBIMAGE, (v) the ground segment (or any components
thereof) related to the operation of, and processing of data from, the
satellites described in clauses (i)-(v) above, and (vi) the Company's imagery
catalogue and archive.
"Business Day" means any day other than a Saturday, Sunday or day on
which commercial banking institutions in The City of New York, New York are
authorized or obligated by law or executive order to close.
"Capital Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means: (i) in the case of a corporation, corporate
stock; (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock; (iii) in the case of a partnership, partnership
interests (whether general or limited); and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
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"Cash Consideration" means any consideration received from an Asset
Sale in the form of cash or Cash Equivalents, in either case in U.S. dollars or
freely convertible into U.S. dollars.
"Cash Equivalents" means:
(i).United States dollars;
(ii)Government Securities;
(iii) certificates of deposit and eurodollar time deposits
with maturities of six months or less from the date of acquisition, bankers'
acceptances or money market deposit accounts with maturities not exceeding six
months and overnight bank deposits, in each case with any Eligible Institution;
(iv) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses (ii) and
(iii) above entered into with any Eligible Institution;
(v) commercial paper having the highest rating obtainable
from Xxxxx'x or S&P and in each case maturing within six months after the date
of acquisition; and
(vi) mutual funds or other pooled investment vehicles
investing solely in investments of the types described in (i) through (v) above.
"Cash Insurance" has the meaning set forth in Section 4.5.
"Change of Control" means:
(i) the failure by Orbital to hold at least 12,600,000
shares of Common Stock of the Company (being 50% of the shares of Common Stock
held by Orbital on May 8, 1997), adjusted for stock splits, stock combinations
and the like;
(ii) the failure by Orbital to hold at least thirty
percent (30%) of the Common Stock of the Company on a fully diluted basis,
without giving effect to the conversion of Capital Stock of the Company issued
as a dividend paid-in-kind with respect to shares of Series A Preferred Stock or
Capital Stock of the Company issued pursuant to options granted under the Stock
Option Plan or any other option plan adopted for the benefit of the Company's
employees or directors;
(iii) the direct or indirect acquisition of beneficial
ownership of Voting Equity Interests of the Company by any Person or group of
Persons acting in concert, in an amount greater than the amount of Voting Equity
Interests held contemporaneously by Orbital except (x) purchases by record
holders of Series A Preferred Stock as of the Issue Date (and their Affiliates,
to the extent that such holders are permitted to transfer their shares of Series
A Preferred Stock to
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Affiliates under the Stock Purchase Agreement ("Series A Affiliates")) from
other holders of Series A Preferred Stock and their Series A Affiliates and (y)
purchases permitted pursuant to the subscription rights of the holders of Series
A Preferred Stock under Section 4.1 of the Stockholders' Agreement;
(iv) the acquisition of the Company, or the sale, lease,
transfer, conveyance or other disposition, in one transaction or a series of
related transactions, directly or indirectly, including through a liquidation or
dissolution, of all or substantially all of the assets of the Company and its
Restricted Subsidiaries or the combination of the Company or all or
substantially all its assets with another Person (other than any such transfer
to any Wholly Owned Restricted Subsidiary of the Company), unless the acquiring
or surviving Person shall be a corporation more than fifty percent (50%) of the
combined voting power of which corporation's then outstanding Voting Equity
Interests, after giving effect to such acquisition or combination, are owned,
immediately after such acquisition or combination, by the owners of the Voting
Equity Interests of the Company outstanding immediately prior to such
acquisition or combination;
(v) the adoption of a plan relating to the liquidation or
dissolution of the Company (other than any such liquidation or dissolution to or
for the benefit of any Wholly Owned Restricted Subsidiary of the Company);
(vi) the failure by the Company to obtain any applicable
License (or License amendment, as applicable) so that it is in full force and
effect within thirty (30) days prior to the scheduled launch of any of the
OrbView Satellites;
(vii) the revocation of any License necessary to operate
OrbView-2 or the OrbView Satellites consistent with the Company's current and
planned commercial operations and which revocation is not cured within thirty
(30) days of the occurrence thereof or such later date when all applicable
appeals have been finally determined, if during such appeal period the Company
has received regulatory approval to continue operations under the License
pending the outcome of such appeals; or
(viii) at any time prior to the latest to occur of (a) the
successful in-orbit checkout of the imaging satellite known as OrbView-3, (b) a
Qualifying Public Offering or (c) the Business Day next following the end of a
180 consecutive day period during which the average closing price per share of
the Company's Common Stock shall have exceeded the Threshold Price (as defined
in the definition of "Qualifying Public Offering" below) then in effect, and
unless consented to in writing by the holders of at least fifty percent (50%) of
the shares of Series A Preferred Stock then outstanding, the acquisition by any
Person or group of Persons acting in concert of beneficial ownership, direct or
indirect, of securities of Orbital representing thirty-five percent (35%) or
more of the combined voting power of Orbital's then outstanding equity
securities and at any time thereafter either (x) less than a majority of
Orbital's board of directors shall be Continuing Directors or (y) there shall be
an announcement by Orbital or such acquiring Person or group of Persons or the
approval of a business plan by Orbital's
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Board of Directors, in either case that indicates an intention to de-emphasize
or curtail the relationship between the Company and Orbital.
"Change of Control Date" has the meaning set forth in Section 4.14(b).
"Change of Control Offer" has the meaning set forth in Section 4.14(a).
"Change of Control Payment" has the meaning set forth in Section
4.14(a).
"Change of Control Payment Date" has the meaning set forth in Section
4.14(b).
"Collateral Agent" means the collateral agent under the Pledge
Agreement.
"Commission" means the Securities and Exchange Commission, or successor
body performing the duties now assigned to it under the TIA.
"Common Stock" means the common stock, $.01 par value, of the Company.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period,
(a) plus, to the extent deducted or otherwise excluded in
computing such Consolidated Net Income:
(i) an amount equal to any extraordinary loss plus any
net loss realized in connection with a sale of assets;
(ii) provision for taxes based on income or profits of
such Person and its Restricted Subsidiaries for such period;
(iii) Consolidated Interest Expense; and
(iv) depreciation, amortization (including amortization
of goodwill and other intangibles but excluding amortization of prepaid cash
expenses that were paid in a prior period) and other non-cash charges (excluding
any such non-cash charge to the extent that it represents an accrual of or
reserve for cash charges in any future period or amortization of a prepaid cash
expense that was paid in a prior period) of such Person and its Restricted
Subsidiaries for such period;
(b) minus, to the extent added or otherwise included in
computing Consolidated Net Income, consolidated interest income of such Person
and its Restricted Subsidiaries for such period and non-cash items increasing
such Consolidated Net Income (including, without limitation, (x) unrealized
currency exchange gains and (y) amortized non-cash contract revenues related to
(i) cash received prior to the Issue Date and (ii) cash received
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subsequent to the date hereof that is specifically intended to fund capital
expenditures, including, but not limited to that certain contract between
Orbital and the U.S. Air Force with respect to hyperspectral imagery, in each
case, on a consolidated basis and determined in accordance with GAAP).
Notwithstanding the foregoing, the provision for taxes on the income or profits
of, and the depreciation and amortization and other non-cash charges of, a
Restricted Subsidiary of any such Person shall be added to Consolidated Net
Income to compute Consolidated Cash Flow only to the extent (and in the same
proportion) that the Net Income of such Restricted Subsidiary was included in
calculating the Consolidated Net Income of such Person and only if a
corresponding amount would be permitted at the date of determination to be
distributed by dividend to such Person by such Restricted Subsidiary without
prior approval (that has not been obtained), pursuant to the terms of its
charter and all agreements, instruments, judgments, decrees, orders, statutes,
rules and governmental regulations applicable to such Restricted Subsidiary or
its stockholders.
"Consolidated Interest Expense" means, with respect to any Person for
any period, (a) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP, whether paid or accrued and whether or not capitalized
(including, without limitation, amortization of original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financing, and net payments
(if any) pursuant to Hedging Obligations) plus (b) the aggregate amount for such
period of cash or non-cash dividends on any Disqualified Stock of the Company
and its Subsidiaries.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that:
(i) the Net Income of any Person that is not a Subsidiary
Guarantor or that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or distributions actually
paid in cash to the referent Person or a Wholly Owned Restricted Subsidiary
thereof;
(ii) the Net Income of any Restricted Subsidiary that is
not a Subsidiary Guarantor shall be excluded to the extent that the declaration
or payment of dividends or similar distributions by such Restricted Subsidiary
of such Net Income is not at the date of determination permitted without any
prior governmental approval (which has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Restricted Subsidiary or its stockholders;
(iii) the Net Income of any Person acquired in a pooling
of interests transaction for any period prior to the date of such acquisition
shall be excluded;
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(iv) the cumulative effect of a change in accounting
principles shall be excluded; and
(v) the Net Income of any Unrestricted Subsidiary shall
be included only to the extent of the amount of dividends or distributions
actually paid in cash to the referent Person or a Restricted Subsidiary thereof.
"Consolidated Net Worth" means, with respect to any Person as of any
date:
(i) the consolidated equity of the equity holders of such
Person and its consolidated Restricted Subsidiaries as of such date; plus
(ii) the respective amounts reported on such Person's
balance sheet as of such date with respect to any series of preferred Equity
Interests (other than Disqualified Stock) that by its terms is not entitled to
the payment of dividends unless such dividends may be declared and paid only out
of net earnings in respect of the year of such declaration and payment, but only
to the extent of any cash received by such Person upon issuance of such
preferred stock; minus
(iii) all write-ups (other than write-ups resulting from
foreign currency translations and write-ups of tangible assets of a
going-concern business made within 12 months after the acquisition of such
business) subsequent to the date of this Indenture in the book value of any
asset owned by such Person or a consolidated Subsidiary of such Person; minus
(iv) all investments as of such date in unconsolidated
Subsidiaries and in Persons that are not Restricted Subsidiaries; minus
(v) all unamortized debt discount and expense and
unamortized deferred charges as of such date.
"Consolidated Tangible Net Assets" means, with respect to any Person,
the Consolidated Net Worth of such Person less goodwill and any other intangible
assets shown on the consolidated balance sheet of such Person and its Restricted
Subsidiaries.
"Continuing Director" means a director of Orbital that is a director on
the Issue Date or is nominated as a director by a majority of Orbital's Board of
Directors, which majority consists of directors in place for at least 12 months
(other than in connection with replacements or vacancies occurring in the
ordinary course) prior to the acquisition representing 35% or more of the
combined voting power of Orbital's outstanding equity securities.
"Corporate Trust Office" means, with respect to the Trustee or any
agent, the principal corporate trust office of such Person.
"Covenant Defeasance" has the meaning set forth in Section 8.1(c).
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"Credit Facilities" means, with respect to the Company, one or more
debt facilities or commercial paper facilities with banks or other institutional
lenders providing for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to special purpose
entities formed to borrow from such lenders against such receivables) or letters
of credit, in each case, as amended, restated, modified, renewed, refunded,
replaced or refinanced in whole or in part from time to time.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Definitive Note" has the meaning set forth in Section 2.6.
"Depository" means, with respect to the Notes issuable or issued in
whole or in part in the form of one or more Global Notes, The Depository Trust
Company, for so long as it shall be a clearing agency registered under the
Exchange Act, or such successor as the Company shall designate from time to time
in an Officers' Certificate delivered to the Trustee.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, at the option of the holder thereof), or upon the happening of any
event: (i) matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise at the option of the holder thereof; or (ii) is
redeemable or is convertible or exchangeable for Indebtedness at the option of
the holder thereof, in whole or in part, on or prior to the date on which the
Notes are repaid, redeemed or retired in full; provided, however, that
Disqualified Stock shall not include any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to require
the Company to repurchase such Capital Stock if the terms of such Capital Stock
provide that the Company may not repurchase or redeem any such Capital Stock
pursuant to such provisions unless such repurchase or redemption complies with
Section 4.10 of this Indenture. The Series A Preferred Stock shall not be
Disqualified Stock.
"Eligible Institution" means a domestic commercial banking institution
that has combined capital and surplus of not less than $500 million or its
equivalent in foreign currency, whose debt is rated "A" or higher according to
S&P or Xxxxx'x at the time as of which any investment or rollover therein is
made.
"Eligible Receivables" means the accounts receivable of the Company
(net of accounts more than 90 days past due and reserves and allowances for
doubtful accounts determined in accordance with GAAP).
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
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"Event of Default" has the meaning specified in Section 6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
(or any successor act) and the rules and regulations thereunder.
"Exchange Note" means any Note issued in exchange for an Original Note
pursuant to the Exchange Offer.
"Exchange Offer" means the offer to exchange and issuance by the
Company of a principal amount of Exchange Notes (which shall be registered
pursuant to the Exchange Offer Registration Statement) equal to the outstanding
principal amount of Original Notes that are validly tendered by such Holders in
connection with such exchange and issuance.
"Exchange Offer Registration Statement" means the Registration
Statement relating to the Exchange Offer, including the related Prospectus.
"Existing Indebtedness" means Indebtedness of the Company in existence
on the Issue Date, until such amounts are repaid.
"Fair Market Value" means, with respect to any asset, the sale value
that would be obtained in an arm's-length free market transaction, between a
willing seller and a willing buyer, neither of which is under pressure or
compulsion to complete the transaction; provided that the Fair Market Value of
any such asset or assets shall be determined by the Board of Directors of the
Company, acting in good faith and by unanimous resolution, and which
determination shall be evidenced by an Officers' Certificate delivered to the
Trustee.
"Fixed Asset Financing" means Indebtedness that is secured by
ground-based equipment and other tangible assets of the Company or a sale and
leaseback transaction with respect to such assets, in which case the
Attributable Debt shall be treated as Indebtedness for purposes of this
definition.
"GAAP" means generally accepted accounting principles 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 have been approved by a significant segment of the accounting
profession and which are in effect on the Issue Date.
"Global Note" has the meaning set forth in Section 2.1.
"Government Securities" means securities that are direct obligations
of, or obligations fully guaranteed by, the United States of America for the
payment of which guarantee or obligations the full faith and credit of the
United States is pledged.
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"Guarantee" or "guarantee" means a guarantee (other than by endorsement
of negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under: (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements; (ii) foreign currency
hedge obligations; and (iii) other agreements or arrangements designed to
protect such Person against fluctuations in interest and foreign currency rates.
"Holder" means a Person in whose name a Note is registered in the Note
Register.
"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or bankers' acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable to
the extent that any such accrued expense or trade payable is not more than 90
days overdue or is otherwise being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted, if and to the extent
any of the foregoing indebtedness (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all indebtedness of others secured
by a Lien on any asset of such Person (whether or not such indebtedness is
assumed by such Person and, in the event such indebtedness is not assumed by,
and is otherwise non-recourse to, such Person, the amount of such indebtedness
shall be deemed to equal the greater of book value or Fair Market Value), all
obligations to purchase, redeem, retire, defease or otherwise acquire for value
any Disqualified Stock or any warrants, rights or options to acquire such
Disqualified Stock valued, in the case of Disqualified Stock, at the greatest
amount payable in respect thereof on a liquidation (whether voluntary or
involuntary) plus accrued and unpaid dividends, the liquidation value of any
preferred stock issued by Subsidiaries of such Person, plus accrued and unpaid
dividends, and, to the extent not otherwise included, the Guarantee by such
Person of any indebtedness of any other Person; and provided, that
"Indebtedness" shall be calculated without duplication and after elimination of
Intercompany Indebtedness.
"Indebtedness to Capital Ratio" means, on any date of determination for
the Company and its Restricted Subsidiaries, on a consolidated basis, the ratio
(expressed as a percentage) of Indebtedness on such date to Total Invested
Capital on such date.
"Indebtedness to Cash Flow Ratio" means, with respect to any Person as
of any date of determination, the ratio of: (i) total Indebtedness of such
Person and its Restricted Subsidiaries as of such date; to (ii) two times
Consolidated Cash Flow of such Person and its Restricted Subsidiaries for the
two most recently ended fiscal quarters for which financial statements of such
Person are available (the "Measurement Period"); provided, however, that: (a) in
making
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such computation, the total Indebtedness of such Person and its Restricted
Subsidiaries shall include the total amount of funds outstanding under any
credit facilities; and (b) in the event such Person or any of its Restricted
Subsidiaries consummates a material acquisition or sale of assets, or issues or
redeems Disqualified Stock subsequent to the commencement of the Measurement
Period, then the Indebtedness to Cash Flow Ratio shall be calculated giving pro
forma effect to such material acquisition, sale of assets or issuance or
redemption of Disqualified Stock as if the same had occurred at the beginning of
the Measurement Period. For purposes of this definition, whenever the pro forma
effect is to be given to a transaction, the pro forma calculations shall be made
in good faith by a responsible financial or accounting officer of the Company.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the good
faith judgment of the Board of Directors of the Company (evidenced by a
resolution of the majority of the Board of Directors of the Company as set forth
in an Officers' Certificate delivered to the Trustee), qualified to perform the
task for which it has been engaged and is disinterested and independent with
respect to the Company and its Affiliates.
"Initial Purchasers" means Bear, Xxxxxxx & Co. Inc., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated and NationsBanc Xxxxxxxxxx Securities LLC.
"Insurance Account" has the meaning set forth in Section 4.5.
"Intercompany Indebtedness" has the meaning set forth in Section
4.12(b).
"Interest Payment Date" means, with respect to any installment of
interest on the Notes, March 1 and September 1 of each year.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans, guarantees, advances or capital contributions (excluding
commission, travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities and all other items that
are or would be classified as investments on a balance sheet prepared in
accordance with GAAP; provided that an acquisition of assets, Equity Interests
or other securities by the Company for consideration consisting of common Equity
Interests (other than Disqualified Stock) of the Company shall not be deemed to
be an Investment. Notwithstanding the foregoing, Investments shall not include
advance payments for satellite capacity or imagery related services or products
in the ordinary course of business.
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"Issue Date" means the date on which the Notes are first authenticated
and delivered under this Indenture.
"Joint Venture" means a Person in a Related Business in which the
Company or one of its Subsidiaries holds 50% or less of the Voting Equity
Interests.
"Legal Defeasance" has the meaning set forth in Section 8.1(b).
"License" means any Federal Communications Commission license or
Department of Commerce license issued to the Company relating to the operation
of OrbView-2 or the OrbView Satellites (including the Department of Commerce
license and the Federal Communications Commission license currently owned by
Orbital relating to the operation of OrbView-2).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Liquidated Damages" has the meaning set forth in the Registration
Rights Agreement, dated as of February 25, 1998, between the Company and the
Initial Purchasers, as the same may be amended, supplemented or otherwise
modified from time to time, and the Warrant Registration Rights Agreement, dated
as of February 25, 1998, between the Company and the Initial Purchasers, as the
same may be amended, supplemented or otherwise modified from time to time.
"Marketable Securities" means: (i) Government Securities or, for
purpose of determining whether such Government Securities may serve as
substitute Pledged Securities, Government Securities having a maturity date on
or before the date on which the payments of interest on the Notes to which such
Government Securities are pledged occur; (ii) any certificate of deposit
maturing not more than 270 days after the date of acquisition issued by, or time
deposit of, an Eligible Institution; (iii) commercial paper maturing not more
than 270 days after the date of acquisition issued by a corporation (other than
an affiliate of the Pledgor) with a rating at the time as of which any
investment therein is made, of "A-1" (or higher) according to S&P or "P-1" (or
higher) according to Moody's; (iv) any banker's acceptances or money market
deposit accounts issued or offered by an Eligible Institution; and (v) any fund
investing exclusively in investments of the types described in clauses (i)
through (iv) above; and in the case of (ii) through (iv) above, which have a
maturity date on or before the date on which the payments of interest on the
Notes to which such securities are pledged occur.
"Moody's" means Xxxxx'x Investors Service, Inc. or its successors.
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"Net Income" means, with respect to any Person, the net income (or
loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however,
(i).any gain (but not loss), together with any related
provision for taxes on such gain (but not loss), realized in connection with:
(a) any sale of assets (including, without limitation, dispositions pursuant to
Sale and Leaseback Transactions); or (b) the disposition of any securities by
such Person or any of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries; and
(ii)any extraordinary or nonrecurring gain (but not
loss), together with any related provision for taxes on such extraordinary or
nonrecurring gain (but not loss).
"Net Proceeds" means (a) with respect to any Asset Sale, the aggregate
cash proceeds received by the Company or any of its Restricted Subsidiaries in
respect of such Asset Sale (including, without limitation, any cash received
upon the sale or other disposition of any non-cash consideration received in any
Asset Sale), net of the direct costs relating to such Asset Sale (including,
without limitation, legal, accounting and investment banking fees, and sales
commissions) and any relocation expenses incurred as a result thereof, taxes
paid or payable as a result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements and provided that any
such amount not so required to be paid for taxes shall be deemed to constitute
Net Proceeds at the time such amount is not retained for such purpose), amounts
required to be applied to the repayment of Indebtedness secured by a Lien on the
asset or assets (including Equity Interests) that were the subject of such Asset
Sale and any reserve for adjustment in respect of the sale price of such asset
or asset (including Equity Interests) established in accordance with GAAP
(provided that the amount of any such reserve shall be deemed to constitute Net
Proceeds at the time such reserve shall have been released or is not otherwise
required to be retained for such purpose) and (b) with respect to any issuance
or sale of Capital Stock, the proceeds of such issuance or sale in the form of
cash or Cash Equivalents, including payments in respect of deferred payment
obligations (to the extent corresponding to the principal, but not interest,
component thereof) when received in the form of cash or Cash Equivalents (except
to the extent such obligations are financed or sold with recourse to the Company
or any Restricted Subsidiary of the Company) and proceeds from the conversion of
other property received when converted to cash or Cash Equivalents, net of
legal, accounting and investment banking fees, discounts and sales commissions
and net of taxes paid or payable as a result thereof.
"Non-Recourse Debt" means Indebtedness:
(i) as to which neither the Company nor any of its
Restricted Subsidiaries: (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness); (b) is
directly or indirectly liable (as a guarantor or otherwise); or (c) constitutes
the lender;
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(ii) no default with respect to which (including any
rights that the Holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any
holder of any other Indebtedness of the Company or any of its Restricted
Subsidiaries to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its Stated Maturity; and
(iii) as to which the lenders have been notified in
writing that they will not have any recourse to the stock or assets of any of
the Company or any of its Restricted Subsidiaries.
"Note Custodian" means the Trustee, as custodian with respect to the
Global Notes, or any successor entity thereto.
"Note Register" has the meaning specified in Section 2.3.
"Notes" means the Exchange Notes and the Original Notes.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offer and sale by the Company to the Initial
Purchasers of an aggregate of 150,000 Units consisting of $150,000,000 in
aggregate principal amount at maturity of the Notes and warrants to purchase an
aggregate of 1,312,746 shares of Common Stock.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, President or a Vice-President
and the chief financial and accounting officer of such Person.
"Opinion of Counsel" means a written opinion of legal counsel
acceptable to the Trustee, and delivered to the Trustee.
"Orbital" means Orbital Sciences Corporation, a Delaware corporation,
or any successor entity whether by merger, sale of all or substantially all its
assets or otherwise.
"Orbital Agreements" means each of the Procurement Agreement; the
Amended and Restated ORBIMAGE Services Agreement between Orbital and the
Company, dated as of December 31, 1997; the Non-Compete and Teaming Agreement
between the Company and Orbital, dated as of May 8, 1997; the OrbView-2 License
Agreement between the Company and Orbital, dated as of May 8, 1997; the Software
License Agreement between the Company and Earth Observation Sciences dated March
14, 1996, as amended; and the Software Maintenance and Support Agreement between
the Company and Earth Observation Sciences, dated as of October 1, 1997; each
agreement as in effect as of the Issue Date and as amended from time to time if
such amendment is not prohibited by this Indenture.
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"OrbView Satellites" means each of the high-resolution satellites
currently designated as OrbView-3 and OrbView-4 under the Procurement Agreement,
and any Replacement Satellite.
"Original Notes" means the Notes initially issued under this Indenture
prior to the issuance of the Exchange Notes.
"Paying Agent" has the meaning set forth in Section 2.3.
"Permitted Investment" means:
(i) any Investments in the Company or any Wholly Owned
Restricted Subsidiary of the Company;
(ii) any Investments in cash or Cash Equivalents;
(iii) Investments by the Company or any of its Restricted
Subsidiaries in a Person if, as a result of such Investment: (a) such Person
becomes a Restricted Subsidiary of the Company; or (b) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or any Restricted
Subsidiary of the Company;
(iv) any Investment made as a result of the receipt of
non-Cash Consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.15 of this Indenture;
(v) any Investment made with Excess Proceeds remaining after
the consummation of an Asset Sale Offer as described in Section 4.15 of this
Indenture;
(vi) any Investment made by the Company or any of its
Restricted Subsidiaries in any Unrestricted Subsidiary using the proceeds of a
substantially concurrent contribution to the equity capital of the Company; and
(vii) any Investment made by the Company or any of its
Restricted Subsidiaries in a Related Business, Related Satellite Business or a
Joint Venture; provided that at the time any such Investment is made, such
Investment will not cause the aggregate amount of Investments at any one time
outstanding under this clause (vii) to exceed the greater of (x) $10 million or
(y) 7.5% of the Consolidated Net Worth of the Company.
"Permitted Liens" means:
(i) Liens securing the Notes;
(ii) Liens in favor of the Company;
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(iii) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Company or any of its Restricted
Subsidiaries; provided that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not extend to any assets
other than those of the Person merged into or consolidated with the Company or
its Restricted Subsidiary;
(iv) Liens on property existing at the time of acquisition
thereof by the Company or any of its Restricted Subsidiaries; provided that such
Liens were in existence prior to the contemplation of such acquisition;
(v) Liens to secure the performance of statutory obligations,
surety, appeal or performance bonds or other obligations of a like nature or
mechanics' or purchase money Liens incurred in the ordinary course of business;
(vi) Liens existing on the Issue Date;
(vii) Liens on inventory, accounts receivable or domestic
and/or international ground operation centers and related systems securing
Indebtedness incurred pursuant to clause (i), (vii), (x) or (xi) of Section
4.12(b) of this Indenture, or securing Permitted Refinancing Indebtedness
incurred to refinance Indebtedness pursuant to clause (i), (viii), (x) or (xi)
of Section 4.12(b) of this Indenture;
(viii) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded; provided
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor;
(ix) Liens incurred in the ordinary course of business of the
Company or any Subsidiary of the Company with respect to obligations that do not
exceed $5 million at any one time outstanding and that (a) are not incurred in
connection with the borrowing of money or the obtaining of advances or credit
(other than trade credit in the ordinary course of business), (b) do not in the
aggregate materially detract from the value of the property or materially impair
the use thereof in the operation of business by the Company or its Subsidiaries
and (c) are not for the benefit of an Affiliate of the Company; and
(x) Liens on assets of Unrestricted Subsidiaries that secure
Non-Recourse Debt of Unrestricted Subsidiaries.
"Permitted Refinancing Indebtedness" has the meaning set forth in
Section 4.12(b)(viii).
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
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"Pledge Account" means the account established with the Collateral
Agent pursuant to the terms of the Pledge Agreement for the deposit of the
Pledged Securities.
"Pledge Agreement" means the Pledge Agreement dated as of the date of
this Indenture by and between the Company and the Collateral Agent governing the
Pledge Account.
"Pledged Securities" means the U.S. government securities purchased by
the Company with a portion of the net proceeds from the Offering to be deposited
in the Pledge Account and pledged as security for the Notes.
"Proceeds Purchase Date" has the meaning set forth in Section
4.15(b)(ii).
"Procurement Agreement" means the Procurement Agreement between the
Company and Orbital, dated as of November 18, 1996, as amended on May 8, 1997,
December 31, 1997 and February 25, 1998.
"QIB" means a "qualified institutional buyer" within the meaning of
Rule 144A under the Securities Act.
"Qualifying Public Offering" means a public offering of Common Stock
registered under the Securities Act (i)(a) that shall have resulted in an
aggregate price to the public of not less than $30 million or (b) that involves
the sale to the public of Common Stock constituting at least twenty percent
(20%) of the Common Stock immediately outstanding after the offering, in either
case at a price per share of Common Stock equal to or greater than the Threshold
Price and (ii) that shall have resulted in listing or admission to trading of
the Common Stock on the New York Stock Exchange, any other national securities
exchange, the Nasdaq National Market System or Nasdaq over-the-counter market.
For the purposes of this definition, Threshold Price means (i) as of any date
through May 1, 1999, 100% of the then current conversion price of the Series A
Preferred Stock, (ii) from May 2, 1999 through May 1, 2000, the then current
conversion price of the Series A Preferred Stock, multiplied by the amount
(expressed as a percentage) equal to 100% plus the result of 30% times a
fraction, the numerator of which is the number of days after May 1, 1999 the
calculation of the Threshold Price occurs and the denominator of which is 365,
(iii) from May 2, 2000 through May 1, 2001, the then current conversion price of
the Series A Preferred Stock, multiplied by the amount (expressed as a
percentage) equal to 130% plus the result of 20% times a fraction, the numerator
of which is the number of days after May 1, 2000, the calculation of the
Threshold Price occurs and the denominator of which is 365, and (iv) from May 2,
2001 forward, 150% of the then current conversion price of the Series A
Preferred Stock.
"Record Date" shall have the meaning set forth in the form of the Note
attached hereto as Exhibit A.
"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.
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"Redemption Price," when used with respect to any Note to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Refinanced Indebtedness" has the meaning set forth in Section
4.12(b)(viii).
"Registrar" has the meaning set forth in Section 2.3.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Related Asset" means any asset used in connection with a Related
Business or Related Satellite Business.
"Related Business" means any Related Satellite Business and any
business relating to the worldwide acquisition, marketing, processing and sales
of remote imagery-based products and services.
"Related Satellite Business" means any business relating to the design,
development, and operation of remote imaging satellites and the worldwide
marketing and sales of satellite-based remote imagery-based products and
services.
"Replacement Satellite" means any satellite constructed to replace an
OrbView Satellite in the event of a failure of such OrbView Satellite; provided,
however, that any such Replacement Satellite need not include hyperspectral
imagery capacity, if it is determined in good faith by the Board of Directors of
the Company (evidenced by a resolution approved by at least a majority of the
Board of Directors of the Company and set forth in an Officers' Certificate
delivered to the Trustee) that hyperspectral imagery is not required to maintain
the competitiveness of the Company's satellites.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Payment" has the meaning set forth in Section 4.10.
"Restricted Security" has the meaning set forth in Rule 144(a)(3) under
the Securities Act.
"Restricted Subsidiary" of a Person means any Subsidiary of such Person
that is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"S&P" means Standard & Poor's Ratings Services, or its successors.
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"Sale and Leaseback Transaction" means any direct or indirect
arrangement pursuant to which any property (other than Capital Stock) or assets
is sold by a Person or a Subsidiary and is thereafter leased back from the
purchaser or transferee thereof by such Person or one or more of its
Subsidiaries, except a Fixed Asset Financing.
"Securities Act" means the Securities Act of 1933, as amended (or any
successor act) and the rules and regulations thereunder.
"Separation Date" means the date on which the Notes and the Warrants
comprising the Units are separable, which date shall occur on the earliest to
occur of (i) 90 days from the date of issuance; (ii) such date as the Initial
Purchasers may, in their discretion, deem appropriate; (iii) in the event of a
Change of Control occurs, the date the Company mails notice thereof to Holders
of the Notes; (iv) the date on which the Exchange Offer is consummated; and (v)
the effectiveness of the Shelf Registration Statement.
"Series A Offering" means the sale of additional shares of Series A
Preferred Stock that will be consummated concurrent with the closing of the
Offering.
"Series A Preferred Stock" means the Series A Cumulative Convertible
Preferred Stock, $.01 par value, of the Company.
"Shelf Registration Statement" means with respect the Notes, a shelf
registration statement pursuant to Rule 415 under the Securities Act relating to
the Transfer Restricted Securities.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"Stated Maturity" means, when used with respect to any Note, March 1,
2005.
"Stock Purchase Agreement" means the Series A Preferred Stock Purchase
Agreement, dated May 7, 1997, as amended, by and among the Company and the
purchasers of Series A Preferred Stock, as in effect on the Issue Date.
"Stockholders' Agreement" means the agreement by and among the Company
and its stockholders, dated May 8, 1997, as amended, as in effect on the Issue
Date.
"Stock Option Plan" means the Orbital Imaging Corporation 1996 Stock
Option Plan, adopted as of November 15, 1996 and any successor stock option plan
adopted for the benefit of the Company's directors and/or employees.
"Subsidiary" means, with respect to any Person:
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(i) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of such Person (or a combination thereof); and
(ii) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of such Person
or (b) the only general partners of which are such Person or one or more
Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantee" means any Guarantee of the Company's obligations
under this Indenture and the Notes given by a Subsidiary Guarantor.
"Subsidiary Guarantor" means any Person that becomes a Restricted
Subsidiary of the Company after the date of this Indenture.
"Successor Note" of any particular Note means every Note issued after,
and evidencing all or a portion of the same debt as that evidenced by, such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.7 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"TIA" means the Trust Indenture Act of 1939, as amended, as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act is amended after such date, "TIA" means, to
the extent required by such amendment, the Trust Indenture Act of 1939 as so
amended.
"Transfer Restricted Security" means each Note, until the earliest to
occur of (a) the date on which such Note is exchanged in the Exchange Offer and
entitled to be resold to the public by the Holder thereof without complying with
the prospectus delivery requirements of the Act, (b) the date on which such Note
has been disposed of in accordance with a Shelf Registration Statement, (c) the
date on which such Note is disposed of by a Broker-Dealer pursuant to the "Plan
of Distribution" contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein) or (d) the date on
which such Note is distributed to the public pursuant to Rule 144 under the Act.
"Total Invested Capital" means, as of any date of determination, the
sum of (a) total Indebtedness as of such date and (b) $88 million plus the
aggregate proceeds received by the Company or any Restricted Subsidiary in
respect of the issuance of Capital Stock (other than Disqualified Stock) of the
Company or such Restricted Subsidiary, including the fair value of property
other than cash (as determined in good faith by the Board of Directors of the
Company (evidenced by a resolution approved by at least a majority of the Board
of Directors of the Company and set forth in an Officers' Certificate delivered
to the Trustee), less any redemptions
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of, or dividends or other distributions on, Capital Stock of the Company made
after the Issue Date and on or prior to the date of determination.
"Trustee" means Marine Midland Bank until a successor Trustee shall
have been appointed pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean such successor Trustee.
"Units" means 150,000 Units consisting of the Notes and the Warrants.
"Unit Legend" has the meaning set forth in Section 2.6(k).
"Unrestricted Subsidiary" of a Person means any Subsidiary of such
Person that is designated by such Person as an Unrestricted Subsidiary, but only
if and for so long as such Subsidiary:
(i) has no Indebtedness other than Non-Recourse Debt;
(ii) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary unless the terms of
any such agreement, contract, arrangement or understanding are no less favorable
to the Company or such Restricted Subsidiary than those that might be obtained
at the time from Persons who are not Affiliates of the Company;
(iii) is a Person with respect to which neither the Company
nor any of its Restricted Subsidiaries has any direct or indirect obligation:
(1) to subscribe for additional Equity Interests; or (2) to maintain or preserve
such Person's financial condition or to cause such Person to achieve any
specified levels of operating results;
(iv) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of any of the Company or any of its
Restricted Subsidiaries; and
(v) in the case of a corporate entity or limited liability
company, has at least one director on its board of directors and at least one
executive officer, in each case who is not a director or executive officer of
the Company or any of its Restricted Subsidiaries.
"Voting Equity Interests" means the Equity Interest in a
corporation or other Person with voting power under ordinary circumstances
entitling the holders thereof to elect or appoint the board of directors,
executive committee or other governing body of such corporation or Person,
whether at all times or only so long as no senior class of securities has such
voting power by reason of any contingency.
"Warrant Agent" means Marine Midland Bank, as Warrant Agent under the
Warrant Agreement, or its successors in such capacity.
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"Warrant Agreement" means that certain warrant agreement by and between
the Company and the Warrant Agent, dated as of February 25, 1998.
"Warrants" mean warrants to purchase an aggregate of 1,312,746 shares
of Common Stock issued pursuant to the Warrant Agreement.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing: (i) the sum
of the products obtained by multiplying: (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment; by (ii) the then outstanding principal
of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person and one or more other Wholly Owned Restricted
Subsidiaries of such Person.
SECTION 1.2. 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: (1)
"indenture securities" means the Notes; (2) "indenture security holder" means a
Holder; (3) "indenture to be qualified" means this Indenture; (4) "indenture
trustee" or "institutional trustee" means the Trustee; and (5) "obligor" on the
indenture securities means the Company or any other obligor on the Notes. All
other TIA terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by Commission rule under the TIA and
not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.3. RULES OF CONSTRUCTION.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and, where appropriate, words of the masculine
gender shall mean and include correlative words of the feminine and neutral
genders and where applicable words in the singular shall mean and include the
plural, and vice versa;
(2) accounting terms used herein and not otherwise defined
have the meanings ascribed to them in accordance with GAAP;
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(3) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(4) Articles and Sections referred to by number shall mean the
corresponding Articles and Sections of this Indenture;
(5) any headings preceding the texts of the several Articles
and Sections of this Indenture, shall be solely for convenience of reference,
and shall not constitute a part of this Indenture, nor shall they affect its
meaning, construction or effect; and
(6) any reference to a statute shall be construed to include
any statutory provision consolidating, amending or replacing the statute
referred to.
ARTICLE II
THE NOTES
SECTION 2.1. FORM AND DATING.
(a) General Form of Notes. The Notes and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A
hereto, which Exhibit is part of this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. Each Note
shall be dated the date of its authentication. The Notes shall be issued only in
registered form without coupons and only in minimum denominations of $1,000 and
integral multiples thereof. The terms and provisions contained in the Notes
shall constitute, and are hereby expressly made, a part of this Indenture and
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
will initially be issued in global form (the "Global Notes"). One or more Global
Notes will be issued to evidence each of the following: (i) Notes sold in
reliance on Rule 144A under the Securities Act, (ii) Notes sold outside of the
United States to a non-U.S. Person in reliance on Regulation S under the
Securities Act, and (iii) Notes sold to an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act) in reliance on an exemption from the registration requirements
of the Securities Act other than Rule 144A. Global Notes shall be substantially
in the form of Exhibit A attached hereto (including the text and schedule called
for by footnotes 1 and 4 thereto). Definitive Notes shall be substantially in
the form of Exhibit A attached hereto (excluding the text and schedule called
for by footnotes 1 and 4 thereto). Global Notes or Definitive Notes issued as
Exchange Notes will not include the legend called for by footnote 2 of Exhibit
A. Global Notes or Definitive Notes issued after the Separation Date will not
include the legend called for by footnote 3 of Exhibit A.
(b) Form of Global Notes. Each Global Note (i) shall represent
such portion of the outstanding Notes as shall be specified therein, (ii) shall
provide that it shall represent the
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aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from time
to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions, (iii) shall be registered in the name of the Depositary or its
nominee, duly executed by the Company and authenticated by the Trustee as
provided herein, for credit to the respective accounts of the Agent Members (or
such accounts as they may direct) at the Depositary, (iv) shall be delivered by
the Trustee or its agent to the Depositary or a Note Custodian pursuant to the
Depositary's instructions and (v) shall bear a legend substantially to the
following effect:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK,
NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUIRED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON 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.
Agent Members shall have no rights under this Indenture with respect to
any Global Note held on their behalf by the Depositary, and the Depositary may
be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee, or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished to the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Note.
Any endorsement of a Global Note to reflect the amount of any increase
or decrease in the amount of outstanding Notes represented thereby shall be made
by the Trustee or the Note Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.6 hereof.
(c) Form of Definitive Notes. Definitive Notes may be produced
in any manner determined by the Officers of the Company executing such Notes, as
evidenced by their execution of such Notes. The Trustee must register Definitive
Notes so issued in the name of, and cause the same to be delivered to, such
Person (or its nominee). Except as provided in this Section 2.1 or Section 2.6,
no Person having a beneficial interest in the Global Note may exchange such
beneficial interest for fully certificated Definitive Notes in duly registered
form.
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(d) Provisions Applicable to Forms of Notes. The Notes may
also have such additional provisions, omissions, variations or substitutions as
are not inconsistent with the provisions of this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with this Indenture,
any applicable law or with any rules made pursuant thereto or with the rules of
any securities exchange or governmental agency or as may be determined
consistently herewith by the Officers of the Company executing such Notes, as
conclusively evidenced by their execution of such Notes. All Notes shall be
otherwise substantially identical except as provided herein.
Subject to the provisions of this Article II, the Holder of a Global
Note may grant proxies and otherwise authorize any Person to take any action
that a Holder is entitled to take under this Indenture or the Notes.
SECTION 2.2. EXECUTION AND AUTHENTICATION.
An Officer of the Company shall sign the Notes for the Company by
manual or facsimile signature. The Company's seal may be reproduced on the Notes
and may be in facsimile form. If an Officer of the Company whose signature is on
a Note no longer holds that office at the time a Note is authenticated, the Note
shall nevertheless be valid. A Note shall not be valid or obligatory for any
purpose or entitled to the benefits of this Indenture until authenticated by the
manual signature of the Trustee or its authenticating agent. The signature shall
be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee shall, upon the delivery to the Trustee of a written order
of the Company signed by two Officers, from time to time, authenticate Notes for
original issue up to an aggregate principal amount of $150,000,000. The
aggregate principal amount of Notes outstanding at any time may not exceed such
amount except as provided in Section 2.7 hereof.
The Trustee may appoint an authenticating agent to authenticate Notes.
An authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Trustee to deal with the Company or an Affiliate of the Company.
SECTION 2.3. TRUSTEE, REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a note register ("Note Register") of the Notes and of their
transfer and exchange. The Company may also from time to time appoint one or
more co-registrars and one or more additional paying agents. The term
"Registrar" includes any co-registrar and the term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent or Registrar
upon notice to the Holders. The Company shall notify the Trustee in writing of
the name and address of any Paying Agent or
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Registrar not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act,
subject to the last paragraph of this Section 2.3, as such. The Company or any
of its Subsidiaries may act as Paying Agent or Registrar; provided, however,
that none of the Company, its Subsidiaries or the Affiliates of the foregoing
shall act (i) as Paying Agent in connection with any redemption, offer to
purchase, discharge or defeasance, as otherwise specified in this Indenture, and
(ii) as Paying Agent or Registrar if a Default or Event of Default has occurred
and is continuing.
The Company hereby appoints Marine Midland Bank, at its Corporate Trust
Office, as the Trustee hereunder and Marine Midland Bank, hereby accepts such
appointment. The Trustee shall have the powers and authority granted to and
conferred upon it in the Notes and hereby and such further powers and authority
to act on behalf of the Company as may be mutually agreed upon in writing by the
Company and the Trustee, and the Trustee shall keep a copy of this Indenture
available for inspection during normal business hours at its Corporate Trust
Office.
The Company initially appoints The Depository Trust Company to act as
Depositary with respect to the Global Notes. The Company initially appoints the
Trustee to act as the Registrar and Paying Agent and to act as Note Custodian
with respect to the Global Notes.
All of the terms and provisions with respect to such powers and
authority contained in the Notes are subject to and governed by the terms and
provisions hereof.
The Trustee may resign as Registrar or Paying Agent upon 30 days prior
written notice to the Company.
SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of the
Holders and the Trustee all money held by the Paying Agent for the payment of
principal of, premium, if any, interest and Liquidated Damages, if any, on, the
Notes, and shall notify the Trustee of any default by the Company in making any
such payment. While any such default or an Event of Default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment of all such money over to the Trustee,
the Paying Agent (if other than the Company or a Subsidiary) shall have no
further liability for the money. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as
Paying Agent for the Notes.
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SECTION 2.5. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable to it the most recent list available to it of the names and
addresses of all Holders and, after the consummation of the Exchange Offer,
shall otherwise strictly comply with TIA Section 312(a). If the Trustee is not
the Registrar, the Company shall furnish to the Trustee at least ten 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 require of the names and addresses of the Holders of Notes and, after the
consummation of the Exchange Offer, the Company shall otherwise strictly comply
with TIA Section 312(a).
SECTION 2.6. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Definitive Notes. If notes in
definitive form ("Definitive Notes") are presented by a Holder to the Registrar
with a request: (x) to register the transfer of the Definitive Notes; or (y) to
exchange such Definitive Notes for an equal principal amount of Definitive Notes
of other authorized denominations, the Registrar shall register the transfer or
make the exchange as requested if its requirements for such transactions are
met; provided, however, that the Definitive Notes presented or surrendered for
registration of transfer or exchange: (i) shall be duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by such Xxxxxx's attorney, duly authorized in
writing; and (ii) in the case of a Definitive Note that is a Transfer Restricted
Security, such request shall be accompanied by the following additional
information and documents, as applicable:
(i) if such Transfer Restricted Security is being
delivered to the Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification to that effect from such Holder (in
substantially the form of Exhibit B hereto);
(ii) if such Transfer Restricted Security is being
transferred (1) to a QIB in accordance with Rule 144A under the Securities Act
or (2) pursuant to an effective registration statement under the Securities Act,
a certification to that effect (in substantially the form of Exhibit B hereto);
(iii) if such Transfer Restricted Security is being
transferred to an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act pursuant to a private
placement exemption from the registration requirements of the Securities Act
(and based on an Opinion of Counsel if the Company so requests in the case of a
transfer of Notes with an aggregate principal amount of $100,000 or less), a
certification to that effect (in substantially the form of Exhibit B hereto) and
a certification of the applicable transferee (in substantially the form of
Exhibit C hereto);
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(iv) if such Transfer Restricted Security is being
transferred pursuant to an exemption from registration in accordance with Rule
904 under the Securities Act, a certification to that effect (in substantially
the form of Exhibit B hereto); or
(v) if such Transfer Restricted Security is being
transferred in reliance on another exemption from the registration requirements
of the Securities Act (and based on an Opinion of Counsel if the Company so
requests) a certification to that effect (in substantially the form of Exhibit B
hereto).
(b) Restrictions on Transfer of a Definitive Note for a
Beneficial Interest in a Global Note. A Definitive Note may not be exchanged for
a beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive Note,
duly endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with: (i) if such Definitive Note is a
Transfer Restricted Security, a certification from the Holder thereof (in
substantially the form of Exhibit B hereto) to the effect that such Definitive
Note is being transferred by such Holder either (A) to QIB in accordance with
Rule 144A under the Securities Act, (B) outside the United States to a foreign
person in a transaction meeting the requirements of Rule 904 under the
Securities Act or (C) to an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act pursuant to
a private placement exemption from the registration requirements of the
Securities Act (provided that the applicable transferee furnishes a certificate
substantially in the form of Exhibit C hereto, and based on an Opinion of
Counsel if the Company so requests in the case of a transfer of Notes with an
aggregate principal amount of $100,000 or less) who wishes to take delivery
thereof in the form of a beneficial interest in a Global Note; and (ii) whether
or not such Definitive Note is a Transfer Restricted Security, written
instructions from the Holder thereof directing the Trustee to make, or to direct
the Note Custodian to make, an endorsement on the appropriate Global Note to
reflect an increase in the aggregate principal amount of the Notes represented
by such Global Note, in which case the Trustee or its agent shall cancel such
Definitive Note in accordance with Section 2.11 hereof and cause, or direct the
Note Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Note Custodian, the aggregate
principal amount of Notes represented by the Global Note to be increased
accordingly. If no Global Notes are then outstanding, the Company shall issue
and, upon receipt of an authentication order in accordance with Section 2.2
hereof, the Trustee shall authenticate a new Global Note in the appropriate
principal amount.
(c) Transfer and Exchange of a Beneficial Interest in a Global
Note. The transfer and exchange of beneficial interests in Global Notes shall be
effected through the Depositary, in accordance with this Indenture and the
procedures of the Depositary therefor, which shall include restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act, provided that if such Global Note is a Transfer Restricted
Security, the Holder thereof will furnish to the Trustee a certification (in
substantially the form of Exhibit B hereto) to the effect that such beneficial
interest is being transferred by such Holder either (A) to a QIB in accordance
with Rule 144A under the Securities Act, (B) outside the United States to a
foreign person in a transaction meeting the requirements of Rule 904 under the
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Securities Act or (C) to an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act pursuant to
a private placement exemption from the registration requirements of the
Securities Act (provided that the applicable transferee furnishes a certificate
substantially in the form of Exhibit C hereto, and based on an Opinion of
Counsel if the Company so requests in the case of a transfer of beneficial
interests in Notes with an aggregate principal amount of $100,000 or less) who
wishes to take delivery thereof in the form of a beneficial interest in a Global
Note. Any Notes evidenced by the Regulation S Global Note may only be
transferred in accordance with the provisions of Regulation S under the
Securities Act. Notwithstanding the foregoing, in the case of a Transfer
Restricted Security, a beneficial interest in a Global Note being transferred in
reliance on an exemption from the registration requirements of the Securities
Act (other than in accordance with Rule 144A, Rule 144 or Rule 904 under the
Securities Act) may only be transferred for a Definitive Note and pursuant to
the provisions of Section 2.6(d) below.
(d) Transfer and Exchange of a Beneficial Interest in a Global
Note for a Definitive Note.
(i) Any Person having a beneficial interest in a
Global Note may upon request exchange such beneficial interest for a Definitive
Note. Upon receipt by the Trustee of written instructions or such other form of
instructions as is customary for the Depositary from the Depositary or its
nominee on behalf of any Person having a beneficial interest in a Global Note
and, in the case of any Transfer Restricted Security, the following additional
information and documents (all of which may be submitted by facsimile):
(A) if such beneficial interest is being
delivered to the Person designated by the Depositary as being the beneficial
owner, a certification to that effect (in substantially the form of Exhibit B
hereto);
(B) if such beneficial interest is being
transferred (1) to a QIB in accordance with Rule 144A under the Securities Act
or (2) pursuant to an effective registration statement under the Securities Act,
a certification to that effect (in substantially the form of Exhibit B hereto);
(C) if such beneficial interest is being
transferred to any institutional "accredited investor" within the meaning of
Rule 501(a)(1), (2), (3) or (7) under the Securities Act pursuant to a private
placement exemption from the registration requirements of the Securities Act
(and based on an Opinion of Counsel if the Company so requests in the case of a
transfer of with an aggregate principal amount of $100,000 or less), a
certification to that effect (in substantially the form of Exhibit B hereto) and
a certification from the applicable transferee (in substantially the form of
Exhibit C hereto);
(D) if such beneficial interest is being
transferred pursuant to an exemption from registration in accordance with Rule
904 under the Securities Act, a certification to that effect (in substantially
the form of Exhibit B hereto), provided that no Notes represented
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by the Regulation S Global Note may be exchanged for Definitive Notes until
expiration of the applicable restricted period under Regulation S of the
Securities Act; or
(E) if such beneficial interest is being
transferred in reliance on another exemption from the registration requirements
of the Securities Act (and based on an Opinion of Counsel if the Company so
requests), a certification to that effect (in substantially the form of Exhibit
B hereto);
in which case the Trustee or the Note Custodian, at the direction of the
Trustee, shall, in accordance with the standing instructions and procedures
existing between the Depositary and the Note Custodian, cause the aggregate
principal amount of Global Notes to be reduced accordingly and, following such
reduction, the Company shall execute and, upon receipt of an authentication
order in accordance with Section 2.2 hereof, the Trustee shall authenticate and
deliver to the transferee a Definitive Note in the principal amount.
(ii) Definitive Notes issued in exchange for a
beneficial interest in a Global Note pursuant to this Section 2.6(d) shall be
registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Definitive Notes to
the Persons in whose names such Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (f) of this Section 2.6), a Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
(f) Authentication of Definitive Notes in Absence of
Depositary. If at any time: (i) the Depositary for the Notes notifies the
Company that the Depositary is unwilling or unable to continue as Depositary for
the Global Notes or, if at any time such Depositary ceases to be a "clearing
agency" registered under the Exchange Act, and a successor Depositary for the
Global Notes is not appointed by the Company within 90 days after delivery of
such notice; or (ii) the Company, at its sole discretion, notifies the Trustee
in writing that it elects to cause the issuance of Definitive Notes under this
Indenture in exchange for all or any part of the Notes represented by a Global
Note or Global Notes, the Depositary or the Note Custodian shall surrender such
Global Note to the Trustee, without charge, and then the Company shall execute,
and the Trustee shall, upon receipt of an authentication order in accordance
with Section 2.2 hereof, authenticate and deliver in exchange for such Global
Notes, Definitive Notes in an aggregate principal amount equal to the principal
amount of such Global Notes. Such Definitive Notes shall be registered in such
names as the Depositary shall direct in writing.
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(g) Legends. (i) Except as permitted by the following
paragraphs (ii), and (iii), each Note evidencing Global Notes and Definitive
Notes (and Notes issued in exchange therefor or substitution thereof) shall bear
legends in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD, ASSIGNED, TRANSFERRED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO (A) OFFER, SELL, PLEDGE OR
OTHERWISE TRANSFER THIS SECURITY ONLY (1) TO THE COMPANY, (2) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (3) TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (4) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN A MEETING THE
REQUIREMENTS OF RULE 904 OF REGULATIONS UNDER THE SECURITIES ACT, (5)
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1)
(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AN "IAI")
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING THE TRANSFER
OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE) AND, IN THE CASE OF ANY TRANSFER TO ANY IAI OF SECURITIES WITH
AN AGGREGATE PRINCIPAL AMOUNT OF $100,000 OR LESS, AN OPINION OF
COUNSEL IF THE COMPANY SO REQUESTS OR (PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT
(AND BASED ON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS),
SUBJECT IN EACH OF THE FOREGOING CASES TO APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(THAT IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.
(ii) Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer Restricted Security represented by a
Global Note) pursuant to an effective registration statement under the
Securities Act or pursuant to Rule 144 under the
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Securities Act (pursuant to an Opinion of Counsel reasonably satisfactory to the
Company that no legend is required):
(A) in the case of any Transfer Restricted
Security that is a Definitive Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Security for a Definitive Note that
does not bear the legend set forth in (i) above and rescind any restriction on
the transfer of such Transfer Restricted Security;
(B) in the case of any Transfer Restricted
Security represented by a Global Note, such Transfer Restricted Security shall
not be required to bear the legend set forth in (i) above, but shall continue to
be subject to the provisions of Section 2.6(c) hereof; provided, however, that
with respect to any request for an exchange of a Transfer Restricted Security
that is represented by a Global Note for a Definitive Note that does not bear
the legend set forth in (i) above, which request is made in reliance upon Rule
144 (and based upon an Opinion of Counsel if the Company so requests), the
Holder thereof shall certify in writing to the Registrar that such request is
being made pursuant to Rule 144 (such certification to be substantially in the
form of Exhibit B hereto).
(iii) Notwithstanding the foregoing, upon
consummation of the Exchange Offer, the Company shall issue and, upon receipt of
an authentication order in accordance with Section 2.2 hereof, the Trustee shall
authenticate Exchange Notes in exchange for Original Notes accepted for exchange
in the Exchange Offer, which Exchange Notes shall not bear the legend set forth
in (i) above, and the Registrar shall rescind any restriction on the transfer of
such Notes, in each case unless the Holder of such Original Notes fails to
certify that in connection with the Exchange Offer that it is not (A) a
broker-dealer, (B) a Person participating in the distribution of the Original
Notes or (C) a Person who is an affiliate (as defined in Rule 144A) of the
Company.
(h) Cancellation and/or Adjustment of Global Notes. At such
time as all beneficial interests in Global Notes have been exchanged for
Definitive Notes, redeemed, repurchased or canceled, all Global Notes shall be
returned to or retained and canceled by the Trustee or its agent in accordance
with Section 2.11 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for Definitive Notes,
redeemed, repurchased or canceled, the principal amount of Notes represented by
such Global Note shall be reduced accordingly and an endorsement shall be made
on such Global Note, by the Trustee or the Note Custodian, at the direction of
the Trustee, to reflect such reduction.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate
Definitive Notes and Global Notes at the Registrar's request.
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(ii) No service charge shall be made to the Holder
for any registration of transfer or exchange, 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
similar governmental charge payable upon exchange or registration of transfer
pursuant to Sections 2.2, 2.10, 3.5, 3.8 and 4.14 hereto).
(iii) All Definitive Notes and Global Notes issued
upon any registration of transfer or exchange of Definitive Notes or Global
Notes shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Definitive Notes
or Global Notes surrendered upon such registration of transfer or exchange.
(iv) Neither the Registrar nor the Company shall be
required:
(A) to issue, to register the transfer of or
to exchange Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under Section 3.1 hereof
and ending at the close of business on the day of selection; or
(B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to
exchange a Note between a Record Date and the next succeeding Interest Payment
Date.
(v) The Trustee shall authenticate Definitive Notes
and Global Notes in accordance with the provisions of Section 2.2 hereof.
(j) Certain Transfers in Connection with and after the
Exchange Offer. Notwithstanding any other provision of this Indenture: (i) no
Exchange Note may be exchanged by the Holder thereof for an Original Note; (ii)
accrued and unpaid interest on the Original Notes being exchanged in the
Exchange Offer shall be due and payable on the next Interest Payment Date for
the Exchange Notes following the Exchange Offer; and (iii) interest on the
Exchange Notes to be issued in the Exchange Offer shall accrue from the date of
the Exchange Offer.
(k) Separability of Notes and Warrants. (i) Except as provided
in this Section 2.6(k), each Definitive Note and each Global Note shall bear the
following legend (the "Unit Legend") on the face thereof:
THE NOTES EVIDENCED HEREBY WERE INITIALLY ISSUED AS PART OF AN ISSUANCE
OF UNITS (THE "UNITS"), EACH OF WHICH CONSISTS OF $1,000 PRINCIPAL
AMOUNT OF 11 5/8% SENIOR NOTES DUE 2005 (THE "NOTES") OF ORBITAL
IMAGING CORPORATION (THE "COMPANY") AND ONE WARRANT TO PURCHASE 8.75164
SHARES OF
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COMMON STOCK, $0.01 PAR VALUE, OF THE COMPANY (THE "WARRANTS"). THE
NOTES EVIDENCED HEREBY ARE NOT TRANSFERABLE SEPARATELY FROM THE
WARRANTS UNTIL THE EARLIEST TO OCCUR OF (i) 90 DAYS FROM THE DATE OF
ISSUANCE, (ii) SUCH DATE AS THE INITIAL PURCHASERS MAY, IN THEIR
DISCRETION, DEEM APPROPRIATE, (iii) IN THE EVENT A CHANGE OF CONTROL
(AS DEFINED IN THE INDENTURE RELATING TO THE NOTES) OCCURS, THE DATE
THE COMPANY MAILS NOTICE THEREOF TO HOLDERS OF THE NOTES, (iv) THE DATE
ON WHICH THE EXCHANGE OFFER (AS DEFINED IN THE REGISTRATION RIGHTS
AGREEMENT RELATING TO THE NOTES) IS CONSUMMATED, AND (v) THE
EFFECTIVENESS OF THE SHELF REGISTRATION STATEMENT RELATING TO THE NOTES
PURSUANT TO THE REGISTRATION RIGHTS AGREEMENT. THE DATE ON WHICH THE
NOTES AND THE WARRANTS ARE SEPARABLE IS THE "SEPARATION DATE."
(ii) By its acceptance of any Note represented by a
certificate bearing the Unit Legend, each Holder of, and each beneficial owner
of an interest in, such Note acknowledges that the Notes have been issued as
part of the issuance of the Units and agrees that prior to the Separation Date,
Notes shall not be transferable except as part of a transfer of Units. The
Registrar shall not register the transfer of any Note prior to the Separation
Date unless the Company receives evidence reasonably satisfactory to it that
such transfer is part of a transfer of a Unit or Units; provided that the
Registrar shall not be required to determine (but may rely on the determination
made by the Company with respect to) the sufficiency of any such evidence.
Notice from the Warrant Agent of a proposed transfer of Warrants (in a number
that together with the principal amounts of Notes proposed to be transferred
will constitute a Unit or Units) by the same Holder requesting transfer of such
Notes to the same proposed transferee to which such Notes are to be transferred,
shall constitute satisfactory evidence for purposes of this subsection.
(iii) The Company shall notify the Trustee and the
Depositary in writing of the occurrence of the Separation Date on such
Separation Date. Any Notes issued after the Separation Date shall not include
the Unit Legend.
SECTION 2.7. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Note, the Company shall, upon the written request of the Holder
thereof, issue and the Trustee, upon the written order of the Company signed by
two Officers of the Company, shall authenticate a replacement Note if the
Trustee's requirements are met. If required by the Trustee or the Company, an
indemnity bond must be supplied by such Holder that is sufficient in the
judgment of the Trustee and the Company to protect the Company, the Trustee, any
Paying Agent, the Registrar and any authenticating agent from any loss that any
of them may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
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Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
The provisions of this Section 2.7 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.8. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it (or its agent), those delivered to
it (or its agent) for cancellation, those reductions in the interest in a Global
Note effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section 2.9
hereof, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.7 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note (other than a mutilated Note surrendered for replacement) is held
by a "protected purchaser" (as such term is defined in Section 8-303 of the
Uniform Commercial Code as in effect in the State of New York).
If the principal amount of any Note is considered paid under Section
4.1 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
SECTION 2.9. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that a Responsible Officer of the Trustee has actual knowledge are so
owned shall be so disregarded.
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SECTION 2.10. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Notes upon a written order of the
Company signed by two Officers of the Company. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall prepare
and the Trustee shall authenticate definitive Notes in exchange for temporary
Notes.
Until such exchange, Holders of temporary Notes shall be entitled to
all of the benefits of this Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee or its agent
for cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee (or its agent) and no one else shall cancel all Notes surrendered
for registration of transfer, exchange, payment, replacement or cancellation and
shall destroy canceled Notes (subject to the record retention requirement of the
Exchange Act) in accordance with its usual procedures. Certification of the
destruction of all canceled Notes shall be delivered to the Company from time to
time. The Company may not issue new Notes to replace Notes that it has paid or
that have been delivered to the Trustee (or its agent) for cancellation. If the
Company acquires any of the Notes, 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 (or its agent) for
cancellation pursuant to this Section 2.11.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.1 hereof. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date, provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) shall mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
defaulted interest to be paid.
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SECTION 2.13. PERSONS DEEMED OWNERS.
Prior to due presentment for the registration of a transfer of any
Note, the Trustee, any Paying Agent, the Registrar, the Company and any agent of
the foregoing shall deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for all purposes (including the
purpose of receiving payment of principal of and interest on such Notes;
provided that defaulted interest shall be paid as set forth in Section 2.12),
and none of the Trustee, Paying Agent, the Registrar, the Company or any agent
of the foregoing shall be affected by notice to the contrary.
SECTION 2.14. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will print CUSIP numbers on the
Notes, and the Trustee may use CUSIP numbers in notices of redemption and
purchase as a convenience to Holders; provided, however, that any such notices
may state that no representation is made as to the correctness of such numbers
as printed on the Notes, and any such redemption or purchase shall not be
affected by any defect or omission in such numbers.
ARTICLE III
REDEMPTION
SECTION 3.1. OPTIONAL REDEMPTION.
(a) The Notes will not be redeemable prior to March 1, 2002.
Thereafter, the Notes will be subject to redemption at the option of the
Company, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued and unpaid interest and Liquidated Damages (if
any) thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on March 1 of the years indicated below:
Redemption
Year Price
---- -----
2002................................................................................ 105.8125%
2003................................................................................ 102.9063%
2004 and thereafter................................................................. 100.0000%
(b) Notwithstanding the foregoing, prior to March 1, 2001, the
Company may, on one or more occasions, redeem outstanding Notes with the net
cash proceeds of one or more sales of Capital Stock (other than Disqualified
Stock) of the Company to one or more Persons (but only to the extent the
proceeds of such sales of Capital Stock consist of cash or Cash Equivalents) at
a redemption price equal to 111.625% of the principal amount thereof, plus
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accrued and unpaid interest and Liquidated Damages (if any) thereon to the
redemption date; provided, however, that: (i) not less than 65% of the aggregate
principal amount of the Notes initially issued remains outstanding immediately
after any such redemption; and (ii) such redemption shall occur within 60 days
after the date of closing of such sale of Capital Stock.
SECTION 3.2. MANDATORY REDEMPTION.
The Company will not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
SECTION 3.3. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Notes pursuant to Section 3.1
shall be evidenced by an Officers' Certificate of the Company. In case of any
redemption at the election of the Company of less than all the Notes, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee in writing of such Redemption Date and of the principal amount of
Notes to be redeemed. In the case of any redemption of Notes prior to the
expiration of any restriction on such redemption provided in the terms of such
Notes or elsewhere in this Indenture, the Company shall furnish the Trustee with
an Officers' Certificate evidencing compliance with such restriction.
SECTION 3.4. NOTES TO BE REDEEMED PRO RATA.
If less than all of the Notes are to be redeemed or repurchased
pursuant to any purchase offer required under this Indenture at any time,
selection of Notes for redemption or repurchase 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 so listed, on a
pro rata basis, selected by lot or by such method as the Trustee shall deem fair
and appropriate; provided that no Note with a principal amount of $1,000 or less
shall be redeemed or repurchased in part.
Notices of redemption or repurchase shall be mailed by first class mail
at least 30 but not more than 60 days before the redemption or repurchase date
to each Holder of Notes to be redeemed or repurchased at its registered address.
If any Note is to be redeemed or repurchased in part only, the notice that
relates to such Note shall state the portion of the principal amount thereof to
be redeemed or repurchased. A new Note in principal amount equal to the
unredeemed or unrepurchased portion will be issued in the name of the Holder
thereof upon cancellation of the original Note. On and after the redemption or
repurchase date (unless the Company shall default in the payment of the
Redemption Price, accrued and unpaid interest or Liquidated Damages, if any),
interest will cease to accrue on the Notes or portions thereof called for
redemption or repurchase.
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SECTION 3.5. NOTICE OF REDEMPTION.
(a) Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Notes to be redeemed, at such Xxxxxx's
address appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price, and the amount of accrued interest
and Liquidated Damages (if any) to be paid;
(iii) the paragraph of the Notes and/or section of this
Indenture pursuant to which the redemption is being made;
(iv) if less than all the outstanding Notes are to be
redeemed, the identification (and, in the case of partial redemption of any
Notes, the principal amounts) of the particular Notes to be redeemed;
(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Note to be redeemed and that interest
thereon will cease to accrue on and after said date;
(vi) the place or places where such Notes are to be
surrendered for payment of the Redemption Price;
(vii) that in the case that a Note is only redeemed in part,
upon surrender of such Note, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Note without charge a new Note or
Notes in an aggregate principal amount equal to the unredeemed portion of the
Note;
(viii) the aggregate principal amount of Notes being redeemed;
and
(ix) the CUSIP number or numbers of the Notes being redeemed,
and that no representation is made as to the correctness or accuracy of the
CUSIP number, if any, as listed on such notice or printed on the Notes.
(b) Notice of redemption of Notes to be redeemed at the
election of the Company shall be given by the Company or, if request is made to
the Trustee no less than 45 days prior to the Redemption Date, by the Trustee in
the name and at the expense of the Company.
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SECTION 3.6. EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
Redemption Date at the Redemption Price. A notice of redemption may not be
conditional.
SECTION 3.7. DEPOSIT OF REDEMPTION PRICE.
The Company shall, by 11:00 a.m., New York City time, on any Redemption
Date, deposit with the Trustee or with the Paying Agent an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued and unpaid interest and Liquidated
Damages (if any) with respect to all the Notes which are to be redeemed on that
date.
SECTION 3.8. NOTES PAYABLE ON REDEMPTION DATE.
Upon notice of redemption, the Notes or any portion thereof to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price, accrued and unpaid interest or
Liquidated Damages (if any)), such Notes shall cease to bear interest. If a Note
is redeemed on or after a Record Date but on or prior to the related Interest
Payment Date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such Record
Date. Upon surrender of any such Note for redemption in accordance with said
notice, such Note or portion thereof shall be paid by the Company at the
Redemption Price, together with accrued and unpaid interest and Liquidated
Damages (if any) to the Redemption Date. If any Note called for redemption shall
not be so paid upon surrender thereof for redemption, the principal and premium
(if any) shall, until paid, bear interest from the Redemption Date at the rate
provided by the Note.
SECTION 3.9. NOTES REDEEMED IN PART.
Any Note that is to be redeemed only in part shall be surrendered at an
office or agency of the Company designated for that purpose pursuant to Section
4.2 (with, if the Company or the Trustee so require, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or its attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Note without service charge, a new Note or Notes
of like tenor, of any authorized denomination as requested by such Xxxxxx, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Note so surrendered.
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ARTICLE IV
COVENANTS
SECTION 4.1. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal and premium (if
any) of, and interest and Liquidated Damages (if any) on, the Notes on the dates
and in the manner provided in the Notes and in this Indenture. An installment of
principal and premium (if any) of, or interest and Liquidated Damages (if any)
on, the Notes shall be considered paid on the date it is due if the Paying Agent
(other than the Company or an Affiliate of the Company) holds no later than
11:00 a.m., New York City time, on that date U.S. dollars designated for and
sufficient to pay the installment in full and is not prohibited from paying such
money to the Holders pursuant to the terms of this Indenture. The Paying Agent
shall return to the Company no later than five days following the date of
payment, any money that exceeds such installment of principal and premium (if
any) of, and interest and Liquidated Damages (if any) payable on, the Notes.
The Company shall pay, to the extent such payments are lawful, interest
on overdue principal and on overdue installments of interest (without regard to
any applicable grace periods) from time to time on demand at the rate borne by
the Notes plus 1% per annum. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
Notwithstanding anything to the contrary contained in this Indenture,
the Company may, to the extent it is required to do so by law, deduct or
withhold income or other similar taxes imposed by the United States of America
from principal or interest payments hereunder.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain the office or agency required under Section
2.3. The Company shall give prior 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 11.2.
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; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company shall give prior
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 designates the Corporate Trust Office of the Trustee
as such office or agency of the Company in accordance with Section 2.3.
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SECTION 4.3. CORPORATE EXISTENCE.
Except as otherwise permitted by Articles IV and V, the Company shall
do or cause to be done, at its own cost and expense, all things necessary to
preserve and keep in full force and effect its corporate existence and the
corporate existence of each of its Subsidiaries (if any) in accordance with the
respective organizational documents of the Company and each such Subsidiary and
the material rights (charter and statutory) and franchises of the Company and
each such Subsidiary;
SECTION 4.4. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon it or any of its Subsidiaries or
its properties or any of its Subsidiaries' properties and (ii) all lawful claims
for labor, materials and supplies that, if unpaid, would by law become a Lien
upon its properties or any of its Subsidiaries' properties; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith and by appropriate
proceedings properly instituted and diligently conducted and for which adequate
reserves, to the extent required under GAAP, have been taken.
SECTION 4.5. MAINTENANCE OF PROPERTIES AND INSURANCE.
(a) The Company shall maintain its properties in good working
order and condition (subject to ordinary wear and tear) and make all reasonably
necessary repairs, renewals, replacements, additions and improvements required
for it to actively conduct and carry on its business;
(b) The Company shall maintain insurance (including
appropriate self-insurance) against loss or damage of the kinds that, in the
good faith judgment of the Company, are adequate and appropriate for the conduct
of the business of the Company and its Subsidiaries in a prudent manner, with
reputable insurers or with the government of the United States of America or an
agency or instrumentality thereof, in such amounts, with such deductibles, and
by such methods as shall be customary, in the good faith judgment of the
Company, for companies similarly situated in the industry (provided that
insurance with respect to the OrbView Satellites and the Replacement Satellites
shall be governed by clause (c) below).
(c) In addition to the foregoing, the Company shall obtain or
maintain (as applicable) in full force and effect:
(i) launch and in-orbit checkout insurance with
respect to each OrbView Satellite, which insurance shall be procured promptly
prior to the launch of each such
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satellite and shall be in effect on the launch date and remain in effect through
the launch and the initial check-out period of such OrbView Satellite, in an
amount sufficient to provide for the construction, launch and insurance of a
Replacement Satellite to be payable in the event of a launch or satellite
failure during the initial check-out period; provided, however, that at the
time the Company is required to procure launch and in-orbit check-out insurance
with respect to an OrbView Satellite, the Company may reduce the amount to be
insured if another OrbView Satellite is fully operational, is being used in
commercial service and is insured in accordance with clause (ii) below, by (x)
the amount of cash, Cash Equivalents and short-term investments (excluding
proceeds of the Offering and the Series A Offering and amounts allocated or
expected to be allocated for capital expenditures) currently available to the
Company to construct a Replacement Satellite as determined in good faith by the
Board of Directors of the Company (evidenced by a resolution approved by at
least a majority of the Board of Directors of the Company and set forth in an
Officers' Certificate delivered to the Trustee), and (y) the value of any long
lead-time spare parts that the Company has procured to date for any satellite
that is comparable to the technological capability of the OrbView Satellite
being insured, as such value is determined in good faith by the Board of
Directors of the Company (evidenced by a resolution approved by at least a
majority of the Board of Directors of the Company and set forth in an Officers'
Certificate delivered to the Trustee); and
(ii) in-orbit operations insurance with respect to
each OrbView Satellite, at all times following the date an OrbView Satellite is
placed in commercial service, representing the value of such satellite (taking
into account the foregone useful life of such satellite) and the pro rata cost
of a launch vehicle, payable in the event that such satellite ceases to be used
for commercial revenue producing service (provided that such insurance may
contain customary provisions for deductible payments and minimum thresholds for
satellite failure); provided, however, that at the time the Company is required
to procure or renew in-orbit operations insurance with respect to an OrbView
Satellite, the Company may reduce the amount to be insured if another OrbView
Satellite is fully operational, is being used in commercial service, and is
insured in accordance with this clause (ii), by (x) the amount of cash, Cash
Equivalents and short-term investments (excluding proceeds of the Offering and
the Series A Offering and amounts allocated or expected to be allocated for
capital expenditures), currently available to the Company to construct a
Replacement Satellite as determined in good faith by the Board of Directors of
the Company (evidenced by a resolution approved by at least a majority of the
Board of Directors of the Company and set forth in an Officers' Certificate
delivered to the Trustee), and (y) the value of any long lead-time spare parts
that the Company has procured to date for any satellite that is comparable to
the technological capability of the OrbView Satellite being insured, as such
value is determined in good faith by the Board of Directors of the Company
(evidenced by a resolution approved by at least a majority of the Board of
Directors of the Company and set forth in an Officers' Certificate delivered to
the Trustee);
The obligation of the Company to maintain insurance pursuant to this
clause (c) may be satisfied by any combination of (i) insurance commitments
obtained from any recognized insurance provider; (ii) insurance commitments
obtained from any entity other than an entity referred to in clause (i) if the
Board of Directors of the Company determines in good faith
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(evidenced by a majority resolution of the Board of Directors of the Company and
set forth in an Officers' Certificate delivered to the Trustee) that such entity
is creditworthy and otherwise capable of bearing the financial risk of providing
such insurance and making payments in respect of any claims on a timely basis;
and (iii) unrestricted cash segregated and maintained by the Company in a
segregated account established with an Eligible Institution (the "Insurance
Account") solely for disbursement in accordance with the terms of this covenant
("Cash Insurance"), and to be held in trust for the sole and express benefit of
the Holders of the Notes.
Within 30 days following any date on which the Company is required to
obtain insurance pursuant to this clause (c), the Company will deliver to the
Trustee an insurance certificate certifying the amount of insurance then
carried, and in full force and effect, and an Officers' Certificate stating that
such insurance, together with any other insurance or Cash Insurance maintained
by the Company, complies with this Indenture. In addition, the Company will
cause to be delivered to the Trustee no less than once each year an insurance
certificate setting forth the amount of insurance then carried, which insurance
certificate shall entitle the Trustee to (i) notice of any claim under any such
insurance policy; and (ii) at least 30 days' notice from the provider of such
insurance prior to the cancellation of any such insurance and an Officers'
Certificate that complies with the first sentence of this paragraph.
In the event that the Company maintains any Cash Insurance in
satisfaction of any part of its obligation to maintain insurance pursuant to
this Section 4.5(c), the Company shall deliver, in lieu of any insurance
certificate otherwise required by this covenant, an Officers' Certificate to the
Trustee certifying the amount of such Cash Insurance.
In the event that the Company receives any proceeds of any insurance
that it is required to maintain pursuant to this Section 4.5(c), the Company
shall promptly deposit such proceeds into an escrow account established with an
Eligible Institution for such purpose. If the Company maintains any Cash
Insurance in satisfaction of any part of its obligation to maintain insurance
pursuant to this clause (c), the Company shall transfer the cash maintained in
the Insurance Account to such escrow account upon the occurrence of the event
(e.g., a launch failure) that would have entitled the Company to the payment of
insurance had the Company purchased insurance from a recognized insurance
provider. The Company may use monies on deposit in such escrow account for the
design, development, construction, procurement, launch and insurance of any
Replacement Satellite if: (i) the Company delivers to the Trustee a certificate
of the Company's President certifying that such Replacement Satellite is
comparable to the technological capability of the satellite being replaced, (ii)
within 30 days following the receipt of such insurance proceeds, the Company
delivers to the Trustee an Officers' Certificate certifying that (A) the Company
will use its reasonable best efforts to ensure that such Replacement Satellite
is launched within 24 months following delivery from the escrow account of such
insurance proceeds; and (B) the Company will have sufficient funds to service
the Company's projected debt service requirements until the scheduled launch of
such Replacement Satellite and to develop, construct, launch and insure such
Replacement Satellite.
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SECTION 4.6. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each of the Company's fiscal years, an Officers' Certificate
stating that a review of its activities during the preceding fiscal year has
been made under the supervision of the signing officers with a view to
determining whether it has kept, observed, performed and fulfilled its
obligations under this Indenture and further stating, as to each such officer
signing such certificate, that to the best of such officer's knowledge, the
Company during such preceding fiscal year has kept, observed, performed and
fulfilled each and every such covenant and no Default or Event of Default
occurred during such year and that, to each officer's knowledge, at the date of
such certificate there is no Default or Event of Default that has occurred and
is continuing or, if such signers do know of such Default or Event of Default,
the certificate shall describe the Default or Event of Default and its status
with particularity.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
annual financial statements delivered pursuant to Section 4.8 shall be
accompanied by a written report of the Company's independent accountants (who
shall be a firm of established national reputation) that in conducting their
audit of such financial statements nothing has come to their attention that
would lead them to believe that the Company has violated any provisions of
Article IV, V or VI of this Indenture insofar as they relate to accounting
matters or, if any such violation has occurred, specifying the nature and period
of existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain knowledge
of any such violation. In the event that such written report of the Company's
independent accountants cannot be obtained, the Company shall deliver an
Officers' Certificate certifying that it has used its best efforts to obtain
such written report but was unable to do so.
(c) If any Default or Event of Default has occurred and is
continuing or if any Holder seeks to exercise any remedy hereunder with respect
to a claimed Default under this Indenture or the Notes, the Company shall
deliver to the Trustee, at its address set forth in Section 11.2 hereof, by
registered or certified mail or by telegram or facsimile transmission followed
by hard copy by registered or certified mail an Officers' Certificate specifying
such event, notice or other action within five Business Days of its becoming
aware of such occurrence.
SECTION 4.7. COMPLIANCE WITH LAWS.
The Company shall, and shall cause each of its Subsidiaries to, comply
with all applicable statutes, rules, regulations and orders of the United States
of America, all states and municipalities thereof, and of any governmental
department, commission, board, regulatory authority, bureau, agency and
instrumentality of the foregoing, in respect of the conduct of its businesses
and the ownership of its properties.
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SECTION 4.8. REPORTS.
Whether or not required by the rules and regulations of the Commission,
so long as any Notes are outstanding, the Company will furnish to the Holders of
Notes:
(i) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and 10-K
if the Company were required to file such Forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" that
describes the financial condition and results of operations of the Company and
its Restricted Subsidiaries and, with respect to the annual information only, a
report thereon by the Company's independent certified public accountants; and
(ii) all information that would be required to be filed with the
Commission on Form 8-K if the Company was required to file such reports.
In addition, following the consummation of the Exchange Offer, whether
or not required by the rules and regulations of the Commission, but only if then
permitted by the Commission, the Company will file a copy of all such
information and reports with the Commission for public availability and make
such information available to securities analysts and prospective investors upon
request. In addition, for so long as any Notes remain outstanding, the Company
will furnish to the Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
SECTION 4.9. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law,
wherever enacted, now or at any time hereafter in force, or which 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 will suffer and permit
the execution of every such power as though no such law had been enacted.
SECTION 4.10. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any
dividend or make any distribution on account of the Equity Interests of the
Company (including, without limitation, any payment in connection with any
merger or consolidation involving the Company or any of its Restricted
Subsidiaries), other than dividends or distributions declared and payable (x) in
Equity Interests (other than Disqualified Stock) of the Company or any of its
Restricted Subsidiaries or (y) to the Company or to any Restricted Subsidiary of
the Company; (ii) purchase, redeem, defease, retire
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for value or otherwise acquire or return for value any Equity Interests of the
Company, other than any such Equity Interests owned by the Company or any Wholly
Owned Restricted Subsidiary of the Company; (iii) make any principal payment on
(except at maturity) or purchase, redeem, defease or otherwise acquire or retire
for value any Indebtedness that is subordinated (whether pursuant to its terms,
by operation of law, structurally or otherwise) to the Notes; or (iv) make any
Restricted Investment (all such payments and other actions set forth in clauses
(i) through (iv) above being collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment:
(x) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(y) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the immediately preceding fiscal
quarter, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to Section 4.12(a) hereof; and
(z) such Restricted Payment, together with the aggregate of
all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the Issue Date (excluding Restricted Payments
permitted by clauses (ii), (iii) and (iv) of paragraph (b) below), is
less than the sum, without duplication, of: (1) 50% of the Consolidated
Net Income of the Company for the period (taken as one accounting
period) from the beginning of the first fiscal quarter commencing after
the Issue Date to the end of the Company's most recently ended fiscal
quarter for which financial statements are available at the time of
such Restricted Payment (or, if such Consolidated Net Income for such
period is a deficit, less 100% of such deficit); plus (2) 100% of the
aggregate net cash proceeds received by the Company since the Issue
Date as a contribution to its common equity capital or from the issue
or sale of Equity Interests of the Company (other than Disqualified
Stock) or from the issue of Disqualified Stock or debt securities of
the Company that have been converted into such Equity Interests (other
than (A) Equity Interests (or Disqualified Stock or convertible debt
securities) sold to a Subsidiary of the Company, (B) Disqualified Stock
or debt securities that have been converted into Disqualified Stock,
(C) equity capital contributions described in clause (vi) of the
definition of "Permitted Investment," (D) to the extent that the net
cash proceeds of the issuance of such Equity Interests are used to
redeem the Notes as permitted under Section 3 hereof and (E) Series A
Preferred Stock issued in the Series A Offering); plus (3) to the
extent that any Restricted Investment that was made after the Issue
Date is sold for cash or otherwise liquidated or repaid for cash, the
lesser of (A) the cash return of capital with respect to such
Restricted Investment (less the cost of disposition, if any) and (B)
the initial amount of such Restricted Investment; plus (4) to the
extent that any Unrestricted Subsidiary is designated by the Company as
a Restricted Subsidiary, an amount equal to the lesser of (A) the Fair
Market Value of such Restricted Investment and (B) the Company's
Investment in such Unrestricted Subsidiary at the time of such
designation.
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(b) Notwithstanding the foregoing, the provisions set forth in
paragraph (a) above shall not prohibit:
(i) the payment of any dividend within 60 days after
the date of declaration thereof, if at said date of declaration such payment
would have complied with the provisions of this Indenture;
(ii) so long as no Default has occurred and is
continuing or will arise therefrom, the redemption, repurchase, retirement or
other acquisition of any Equity Interests of the Company in exchange for, or out
of the proceeds of, the substantially concurrent sale (other than to a
Subsidiary of the Company) of other Equity Interests of the Company (other than
any Disqualified Stock); provided that the amount of any such net cash proceeds
that are utilized for any such redemption, repurchase, retirement or other
acquisition shall be excluded from clause (2) of paragraph (z) above;
(iii) so long as no Default has occurred and is
continuing or will arise therefrom, the repayment, defeasance, redemption or
repurchase of Intercompany Indebtedness or Indebtedness with the net cash
proceeds from an incurrence of Permitted Refinancing Indebtedness or the
substantially concurrent sale (other than to a Subsidiary of the Company) of
Equity Interests of the Company (other than Disqualified Stock); provided that
the amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement or other acquisition shall be excluded from
clause (2) of paragraph (z) above;
(iv) the issuance of shares of Series A Preferred
Stock as paid-in-kind dividends in accordance with the terms of the Series A
Preferred Stock as in effect on the Issue Date;
(v) the purchase, redemption or retirement by the
Company of shares of its Common Stock held by an employee or former employee of
the Company or its Subsidiaries issued under the Stock Option Plan; provided
that the amount of any such payments in any fiscal year does not exceed
$1,000,000; and provided, further, that the limitation set forth in the
foregoing proviso does not apply to the purchase, redemption or retirement of
shares of common stock with funds or other property or amounts paid by the
Company for which the Company receives concurrent reimbursement from any other
Person (other than the Company's Subsidiaries); and
(vi) payments made in respect of (x) the cancellation
of fractional shares of Common Stock in connection with the conversion of the
Series A Preferred Stock and the exercise of the Warrants and (y) the repurchase
or redemption of any shares of Series A Preferred Stock in an aggregate amount
in the case of (x) and (y) not to exceed $500,000.
In determining the amount of Restricted Payments permissible under
clause (z) of Section 4.10(a) above, amounts expended pursuant to clauses (i),
(v) and (vi) of this Section 4.10(b) shall be included as Restricted Payments.
Notwithstanding the foregoing, payments made by the
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Company to Orbital pursuant to the Orbital Agreements shall not be deemed
Restricted Payments.
The Company may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if such designation would not cause a Default and, at
the time of and after giving effect to such designation, the Company could incur
$1.00 of additional Indebtedness under the applicable provisions of the first
paragraph under Section 4.12(a); provided, however, that in no event shall all
or any portion of the material assets or properties (other than cash) owned by
the Company on the Issue Date be transferred to or held by an Unrestricted
Subsidiary of the Company and provided, further, that such ability to incur
$1.00 of additional Indebtedness shall not be required in the case of any newly
created Unrestricted Subsidiary funded solely with an Investment described in
clause (vi) of the definition of "Permitted Investment." For purposes of making
such determination, all outstanding Investments by the Company and its
Restricted Subsidiaries (except to the extent repaid in cash and except for
Investments described in clause (vi) of the definition of "Permitted
Investment") in the Subsidiary so designated will be deemed to be Restricted
Payments at the time of such designation and will reduce the amount available
for Restricted Payments under Section 4.10. All such outstanding Investments
will be deemed to constitute Investments in an amount equal to the greatest of:
(1) the net book value of such Investments at the time of such designation; (2)
the Fair Market Value of such Investments at the time of such designation; and
(3) the original Fair Market Value of such Investments at the time they were
made. Such designation will only be permitted if such Restricted Payment would
be permitted at such time and if such Restricted Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary.
The amount of all Restricted Payments, if not made in cash, shall be
the Fair Market Value on the date of the Restricted Payment of the asset(s)
proposed to be transferred by the Company or such Restricted Subsidiary, as the
case may be, pursuant to the Restricted Payment. Not later than the date of
making any Restricted Payment, the Company shall deliver to the Trustee an
Officers' Certificate stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required by this covenant
were computed, which calculations may be based upon the latest available
financial statements of the Company.
SECTION 4.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, sell, lease transfer or otherwise dispose of any of
its properties or assets to, or purchase any property or assets from, or enter
into or make any contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless:
(i) such Affiliate Transaction is on terms that are
no less favorable to the Company or such Restricted Subsidiary than those that
would have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person;
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(ii) the Company delivers to the Trustee: (a) with
respect to any Affiliate Transaction involving aggregate consideration in excess
of $2.5 million, (x) a determination by the disinterested members of the Board
of Directors of the Company made in good faith (evidenced by a resolution
approved by at least a majority of the disinterested members of the Board of
Directors of the Company and set forth in an Officers' Certificate delivered to
the Trustee) or (y) an opinion as to the fairness of such Affiliate Transaction
to the Company or Restricted Subsidiary involved in such Affiliate Transaction
from a financial point of view issued by an Independent Financial Advisor or,
with respect to development, launch and operations of satellites and remote
imaging-related matters, a nationally recognized expert in the respective
applicable industry; and (b) with respect to any Affiliate Transaction involving
aggregate consideration in excess of $10 million, an opinion as to the fairness
of such Affiliate Transaction to the Company or Restricted Subsidiary involved
in such Affiliate Transaction from a financial point of view issued by an
Independent Financial Advisor or, with respect to development, launch and
operations of satellites and remote imaging-related matters, a nationally
recognized expert in the respective applicable industry.
(b) The following shall not be deemed Affiliate Transactions:
(i) any employment agreement, stock option or stock
purchase agreement entered into by the Company or any of its Restricted
Subsidiaries with any of their respective employees in the ordinary course of
business;
(ii) transactions between or among the Company and/or
its Wholly Owned Restricted Subsidiaries;
(iii) Restricted Payments permitted by clauses (i),
(ii), (iv), (v) and (vi) of the Section 4.10(b) and Permitted Investments of a
type referred to in clauses (i), (iii) and (vi) of the definition of Permitted
Investments;
(iv) the sale of common Equity Interests (other than
Disqualified Stock, except as contemplated by the Stock Purchase Agreement) of
the Company for cash to an Affiliate of the Company;
(v) transactions pursuant to agreements entered into
with resellers of the Company's products and services on terms substantially the
same as the Company's standard agreements entered into with such parties in the
ordinary course of business;
(vi) transactions pursuant to the Orbital Agreements,
including transactions pursuant to any amendments to the Procurement Agreement
with respect to the selection of the launch vehicle for the satellite designated
on the Issue Date as the OrbView-4 satellite;
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(vii) amendments, supplements or other modifications
to the Orbital Agreements that do not involve the payment of cash by the Company
or any of its Restricted Subsidiaries;
(viii) payment of reasonable directors fees to
Persons who are not otherwise Affiliates of the Company; and
(ix) the sale of securities (other than common Equity
Interests) of the Company for cash to an Affiliate of the Company; provided
that: (A) an amount of such securities at least equal to the amount sold to such
Affiliate have been or are being sold substantially simultaneously to Persons
that are not Affiliates of the Company; (B) the price per security paid by such
Affiliate is no less than the price paid by such non-Affiliates; and (C) the
Company shall not have entered into any other arrangement with such
non-Affiliates to induce such non-Affiliates to purchase such securities.
SECTION 4.12. LIMITATION ON INCURRENCE OF INDEBTEDNESS OR ISSUANCE OF
DISQUALIFIED STOCK.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guaranty or otherwise become directly or indirectly liable, contingently
or otherwise, with respect to (collectively, "incur") any Indebtedness
(including Acquired Debt) or any Disqualified Stock; provided, however, that the
Company may incur Indebtedness (including Acquired Debt) or issue shares of
Disqualified Stock and the Restricted Subsidiaries may incur Indebtedness if,
after giving pro forma effect to the incurrence of such Indebtedness or the
issuance of such Disqualified Stock and the use of proceeds thereof, the
aggregate Indebtedness to Cash Flow Ratio of the Company does not exceed 4.0 to
1. Notwithstanding the foregoing, prior to June 30, 2001, the Company or any
Restricted Subsidiary may incur Indebtedness if immediately after giving pro
forma effect to the incurrence of such Indebtedness and the receipt and
application of the proceeds thereof, the Indebtedness to Capital Ratio would be
less than or equal to 65.0%.
(b) The provisions set forth in clause (a) above shall not
apply to:
(i) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness under Credit Facilities; provided that
the aggregate principal amount of all Indebtedness (with letters of credit being
deemed to have a principal amount equal to the maximum potential liability of
the Company and its Subsidiaries thereunder) outstanding under all Credit
Facilities after giving effect to such incurrence does not exceed an amount
equal to the greater of (A) $25 million and (B) 85% of Eligible Receivables;
(ii) the incurrence by the Company of Indebtedness
represented by the Notes and this Indenture or the issuance of shares of Series
A Preferred Stock as paid-in-kind dividends;
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(iii) Existing Indebtedness;
(iv) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness under (A) Hedging Obligations, provided
that (1) the notional principal amount of any interest rate protection agreement
does not significantly exceed the principal amount of the Indebtedness to which
such interest rate protection agreement relates and (2) any agreements related
to fluctuations in currency rates do not increase the outstanding Indebtedness
other than as a result of fluctuations in foreign currency exchange rates, and
(B) performance, surety and workers' compensation bonds or other obligations of
a like nature incurred in the ordinary course of business;
(v) the incurrence by any Unrestricted Subsidiary of
the Company of Non- Recourse Debt; provided that if any such Indebtedness ceases
to be Non-Recourse Debt of an Unrestricted Subsidiary such event shall be deemed
to constitute an incurrence of Indebtedness by a Restricted Subsidiary;
(vi) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness owed to and held by the Company or any
of its Wholly Owned Restricted Subsidiaries (the Indebtedness incurred pursuant
to this clause (vi) being hereafter referred to as "Intercompany Indebtedness");
provided that an incurrence of Indebtedness shall be deemed to have occurred
upon (x) any sale or other disposition of Intercompany Indebtedness to a Person
other than the Company or any of its Restricted Subsidiaries, (y) any sale or
other disposition of Equity Interests of the Company's Restricted Subsidiaries
which holds Intercompany Indebtedness such that such Restricted Subsidiary
ceases to be a Restricted Subsidiary after such sale or other disposition or (z)
designation of a Restricted Subsidiary as an Unrestricted Subsidiary;
(vii) the incurrence by the Company or any of its
Restricted Subsidiaries of Non-Recourse Debt to finance purchase money
obligations;
(viii) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness ("Permitted Refinancing Indebtedness")
incurred to refinance, replace or refund Indebtedness ("Refinanced
Indebtedness") incurred pursuant to paragraph (a) of this Section 4.12 or
pursuant to clause (i) or (iii) of this paragraph (b); provided that: (x) the
aggregate principal amount of such Permitted Refinancing Indebtedness does not
exceed the aggregate principal amount of the Refinanced Indebtedness (including
accrued and unpaid interest thereon); (y) such Permitted Refinancing
Indebtedness shall have a final maturity equal to or later than, and a Weighted
Average Life to Maturity equal to or greater than, the final maturity and
Weighted Average Life to Maturity of the Refinanced Indebtedness, respectively;
and (z) such Permitted Refinancing Indebtedness shall rank no higher relative to
the Notes than the Refinanced Indebtedness and in no event may any Indebtedness
of the Company, or any of its Restricted Subsidiaries be refinanced with
Indebtedness of any Restricted Subsidiary under this clause (viii);
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(ix) the incurrence by the Company or any of its
Restricted Subsidiaries of Capital Lease Obligations in an aggregate amount for
all such Persons not to exceed $15 million at any one time outstanding;
(x) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness not to exceed $15 million outstanding at
any time pursuant to a Fixed Asset Financing; and
(xi) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness in addition to that described in clauses
(i) through (x) of this Section 4.12(b), so long as the aggregate principal
amount of all such Indebtedness, including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any Indebtedness incurred
pursuant to this clause (xi), shall not exceed $10 million outstanding at any
one time in the aggregate.
SECTION 4.13. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions to
the Company or any of its Restricted Subsidiaries on its Capital Stock or with
respect to any other interest or participation in, or measured by, its profits;
(ii) pay any Indebtedness owed to the Company or any
of its Restricted Subsidiaries;
(iii) make loans or advances to the Company or any of
its Restricted Subsidiaries; or
(iv) transfer any of its properties or assets to the
Company or any of its Restricted Subsidiaries.
(b) The restrictions set forth in clause (a) above shall not
apply to encumbrances or restrictions existing under or by reason of:
(i) this Indenture, the Pledge Agreement or the
Notes;
(ii) Existing Indebtedness;
(iii) applicable law;
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(iv) any instrument governing Indebtedness or Capital
Stock of a Person acquired by the Company or any of its Restricted Subsidiaries
as in effect at the time of such acquisition (except to the extent such
Indebtedness was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired;
(v) customary non-assignment provisions in leases or
other agreements entered into in the ordinary course of business;
(vi) purchase money obligations for property acquired
in the ordinary course of business that impose restrictions of the nature
described in clause (iv) above on the property so acquired;
(vii) Permitted Refinancing Indebtedness; provided
that the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive than those contained in the
agreements governing the Refinanced Indebtedness;
(viii) restrictions on cash or other deposits or net
worth imposed by customers under contracts entered into in the ordinary course
of business;
(ix) secured Indebtedness otherwise permitted to be
incurred pursuant to Section 4.16 hereof that limits the right of the debtor to
dispose of the assets securing such Indebtedness; or
(x) in the case of clauses (i), (ii), (iv), (v),
(vi), (vii), (viii) and (ix) above, any amendments, modifications, restatements,
renewals, increases, supplements, modifications, restatements or refinancings
thereof, provided that such amendments, modifications, restatements or
refinancings are not materially more restrictive with respect to such dividend
and other payment restrictions than those contained in such instruments as in
effect on the date of their incurrence.
SECTION 4.14. LIMITATION ON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Holder
shall have the right to require the Company to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of such Holder's Notes pursuant to
the offer described below (the "Change of Control Offer") at an offer price in
cash equal to 101% of the aggregate principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages (if any) thereon to the date of purchase
(the "Change of Control Payment").
(b) Within ten days following the date on which any Change of
Control occurs (the "Change of Control Date"), the Company shall send, by first
class mail, a notice to each Holder, with a copy to the Trustee, which notice
shall govern the terms of the Change of
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Control Offer. The notice to the Holders shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Change of Control Offer. The notice shall state:
(i) that the Change of Control Offer is being made
pursuant to this Section 4.14 and that all Notes tendered and not withdrawn
shall be accepted for payment;
(ii) the purchase price (including the amount of
accrued interest and Liquidated Damages, if any) and the purchase date (which
shall be no earlier than 30 days nor later than 40 days from the date such
notice is mailed, other than as may be required by law) (the "Change of Control
Payment Date");
(iii) that any Note not tendered will continue to
accrue interest;
(iv) that, unless the Company defaults in making
payment therefor, any Note accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control Payment
Date;
(v) that Holders electing to have a Note purchased
pursuant to a Change of Control Offer will be required to surrender the Note,
with the form entitled "Option of Holder to Elect Purchase" on the reverse 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 prior to the Change of
Control Payment Date;
(vi) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than five Business Days prior
to the Change of Control Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the
Notes the Holder delivered for purchase and a statement that such Xxxxxx is
withdrawing such Xxxxxx's election to have such Notes purchased;
(vii) that Holders whose Notes are purchased only in
part will be issued new Notes in a principal amount equal to the unpurchased
portion of the Notes surrendered; provided that each Note purchased and each new
Note issued shall be in an original principal amount of $1,000 or integral
multiples thereof; and
(viii) the circumstances and relevant facts regarding
such Change of Control.
(c) On or before the Change of Control Payment Date, the
Company shall, to the extent lawful: (i) accept for payment all Notes or
portions thereof tendered pursuant to the Change of Control Offer; (ii) deposit
with the Paying Agent in U.S. dollars, an amount equal to the Change of Control
Payment in respect of all Notes or portions thereof so tendered; and (iii)
deliver or cause to be delivered to the Trustee, Notes so accepted together with
an Officers' Certificate stating the aggregate principal amount of Notes or
portions thereof being purchased
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by the Company. The Paying Agent shall promptly mail to the Holders of Notes so
accepted the Change of Control Payment for such Notes, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Note surrendered; provided that each such new Note will be in a principal
amount of $1,000 or an integral multiple thereof. Any Notes not so accepted
shall be promptly mailed by the Company to the Holder thereof. Any amounts
remaining after the purchase of Notes pursuant to a Change of Control Offer
shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent the
provisions of any securities laws or regulations conflict with the provisions
under this Section 4.14, the Company shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations
under this Section 4.14 by virtue thereof. The Company shall publicly announce
the results of the Change of Control Offer on or as soon as practicable after
the Change of Control Payment Date. Any amounts remaining after the purchase of
Notes pursuant to a Change of Control Offer shall be returned by the Trustee to
the Company.
(d) The Company will not be required to make a Change of
Control Offer upon a Change of Control if a third party makes the Change of
Control Offer in the manner, at the time and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control Offer
made by the Company and purchases all Notes validly tendered and not withdrawn
under such Change of Control Offer.
SECTION 4.15. LIMITATION ON SALES OF ASSETS AND SUBSIDIARY INTERESTS.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to consummate an Asset Sale unless:
(i) the Company or such Restricted Subsidiary, as the
case may be, receives consideration at the time of such Asset Sale at least
equal to the Fair Market Value of the assets sold or otherwise disposed of;
(ii) at least 75% of the consideration received in
the Asset Sale by the Company or such Restricted Subsidiary, as the case may be,
consists of (a) cash or Cash Equivalents or (b) the assumption of Indebtedness
(other than Indebtedness that is subordinated) of the Company or such Restricted
Subsidiary and the release of the Company and the Restricted Subsidiaries, as
applicable, from all liability on the Indebtedness assumed; and
(iii) the aggregate Fair Market Value of all non-Cash
Consideration received therefor by the Company or such Restricted Subsidiary, as
the case may be, when aggregated with the Fair Market Value of all other
non-Cash Consideration received by the
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Company and its Restricted Subsidiaries from all other Asset Sales since the
Issue Date that has not yet been converted into cash or Cash Equivalents (in
either case, in U.S. dollars or freely convertible into U.S. dollars), does not
exceed (without duplication) 5% of the aggregate Consolidated Tangible Net
Assets of the Company at the time of such Asset Sale; provided, however, that
any securities, notes or similar obligations received by any of the Company or
such Restricted Subsidiaries from such transferees that are contemporaneously
(subject to ordinary settlement periods) converted by the Company or such
Restricted Subsidiaries into cash, shall be deemed to be cash (to the extent of
the net cash received) for purposes of clauses (ii) and (iii).
Within 270 days after the receipt of any Net Proceeds from an Asset
Sale, the Company may apply such Net Proceeds to: (i) make capital expenditures
or acquire Business Assets, (ii) acquire 100% of the Equity Interests of a
Related Satellite Business, (iii) market imagery products and services, (iv)
repay Indebtedness under a Credit Facility, and (v) provide working capital.
Pending the final application of any such Net Proceeds, the Company may
temporarily invest such Net Proceeds in any manner that is not prohibited by
this Indenture. Any Net Proceeds from an Asset Sale that are not applied or
invested as provided in the first sentence of this paragraph will be deemed to
constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds
exceeds $7.5 million (the "Asset Sale Offer Trigger Date"), the Company will be
required to make an offer to all Holders of Notes (an "Asset Sale Offer") to
purchase on a date not less than 30 nor more than 45 days following the Asset
Sale Offer Trigger Date the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds (and not solely the amount in excess of
$7.5 million), at an offer price in cash in an amount equal to 100% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages (if any) thereon to the date of purchase, in accordance with the
procedures set forth in clause (b) below. To the extent that the aggregate
amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company may use any remaining Excess Proceeds for general business
purposes. If the aggregate amount of Notes surrendered by Holders thereof
exceeds the amount of Excess Proceeds, the Trustee will select the Notes to be
purchased on a pro rata basis in accordance with the procedures set forth in
Section 3.4.
Upon completion of such offer to purchase, the amount of Excess
Proceeds will be reset at zero. The Asset Sale Offer shall remain open for a
period of 20 Business Days or such longer period as may be required by law.
If the Purchase Date is on or after a Record Date and on or before the
related Interest Payment Date, any accrued and unpaid interest shall be paid to
the Person in whose name a Note is registered at the close of business on such
Record Date, and no additional interest shall be payable to Holders who tender
Notes pursuant to the Asset Sale Offer.
(b) Each notice of an Asset Sale Offer pursuant to this
Section 4.15 shall be mailed or caused to be mailed, by first class mail, by the
Company not more than 25 days after the Asset Sale Offer Trigger Date to all
Holders at their last registered addresses determined as of a date within 15
days of the mailing of such notice, with a copy to the Trustee. The notice shall
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contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Asset Sale Offer and shall state the following
terms:
(i) that the Asset Sale Offer is being made pursuant
to Section 4.15 and that all Notes tendered will be accepted for payment;
provided, however, that if the aggregate principal amount of Notes tendered in
an Asset Sale Offer plus accrued interest and Liquidated Damages (if any) at the
expiration of such offer exceeds the aggregate amount of the Excess Proceeds,
the Trustee shall select the Notes to be purchased on a pro rata basis (with
such adjustments as may be deemed appropriate by the Trustee so that only Notes
in denominations of $1,000 or multiples thereof shall be purchased);
(ii) the purchase price (including the amount of
accrued interest and Liquidate Damages, if any) and the purchase date (which
shall be 20 Business Days from the date of mailing of notice of such Asset Sale
Offer, or such longer period as required by law) (the "Proceeds Purchase Date");
(iii) that any Note not tendered will continue to
accrue interest;
(iv) that, unless the Company defaults in making
payment therefor, any Note accepted for payment pursuant to the Asset Sale Offer
shall cease to accrue interest after the Proceeds Purchase Date;
(v) that Holders electing to have a Note purchased
pursuant to an Asset Sale Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse 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 prior to the Proceeds Purchase
Date;
(vi) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than five Business Days prior
to the Proceeds Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the Notes
the Holder delivered for purchase and a statement that such Xxxxxx is
withdrawing such Xxxxxx's election to have such Note purchased; and
(vii) that Holders whose Notes are purchased only in
part will be issued new Notes in a principal amount equal to the unpurchased
portion of the Notes surrendered; provided that each Note purchased and each new
Note issued shall be in an original principal amount of $1,000 or integral
multiples thereof.
On or before the Proceeds Purchase Date, the Company shall, to the
extent lawful, (i) accept for payment Notes or portions thereof tendered
pursuant to the Asset Sale Offer which are to be purchased in accordance with
this Section 4.15, (ii) deposit with the Paying Agent in U.S. dollars, an amount
sufficient to pay the purchase price plus accrued interest and Liquidated
Damages (if any) of all Notes to be purchased and (iii) deliver to the Trustee
Notes so accepted
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together with an Officers' Certificate stating the Notes or portions thereof
being purchased 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
plus accrued interest and Liquidated Damages, if any.
Any amounts remaining after the purchase of Notes pursuant to an Asset
Sale Offer shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.15, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under
Section 4.15 by virtue thereof.
(c) The foregoing provisions shall not apply to the sale,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company, which shall be governed by the provisions of Article V.
SECTION 4.16. LIMITATION ON LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien on any asset or property now owned or hereafter acquired, or any
income or profits therefrom, or assign or convey any right to receive income
therefrom, unless (i) in the case of Liens securing obligations subordinate to
the Notes, the Notes are secured by a valid, perfected Lien on such asset or
property that is senior in priority to such Liens, (ii) in the case of Liens
securing obligations subordinate to a Subsidiary Guarantee, such Subsidiary
Guarantee is secured by a valid, perfected Lien on such asset or property that
is senior in priority to such Liens, and (iii) in all other cases, the Notes
(and, if such Lien secures obligations of a Restricted Subsidiary, a Subsidiary
Guarantee of such Restricted Subsidiary) are equally and ratably secured;
provided, however, that the foregoing shall not prohibit or restrict Permitted
Liens.
SECTION 4.17. BUSINESS ACTIVITIES AND CONSTRUCTION OF ORBVIEW
SATELLITES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in any business other than that which is related to the
design, development and operation of remote imaging satellites and the worldwide
marketing and sales of remote imagery-based products and services.
SECTION 4.18. LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any Restricted Subsidiary
of the Company to, directly or indirectly, enter into any Sale and Leaseback
Transaction with respect to any property or assets (whether now owned or
hereafter acquired), except for a Sale and Leaseback
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Transaction not exceeding 365 days, unless (i) the sale or transfer of such
property or assets to be leased is treated as an Asset Sale and complies with
the covenants contained in Section 4.15 hereof and (ii) the Company or such
Restricted Subsidiary would be entitled under Section 4.12 hereof to incur
Indebtedness (with the lease obligations being treated as Indebtedness for
purposes of ascertaining compliance with this covenant) in respect of such Sale
and Leaseback Transaction.
SECTION 4.19. LIMITATION ON SALE OF CAPITAL STOCK OF SUBSIDIARIES.
The Company shall not, and shall not permit any Restricted Subsidiary
to, issue, transfer, convey, lease or otherwise dispose of any shares of Capital
Stock or other ownership interests in a Restricted Subsidiary or securities
convertible or exchangeable into, or options, warrants, rights or other interest
with respect to, Capital Stock of or other ownership interests in a Restricted
Subsidiary to any Person (other than to the Company or a Wholly Owned Restricted
Subsidiary) except in a transaction that consists of a sale of all of the
Capital Stock of or other ownership interests in such Subsidiary owned by the
Company and any Subsidiary of the Company that complies with the provisions
contained in Section 4.15 hereof to the extent such provisions apply.
ARTICLE V
MERGER, CONSOLIDATION OR SALE OF ASSETS
SECTION 5.1. MERGERS, CONSOLIDATIONS AND SALES OF ASSETS.
(a) The Company may not consolidate or merge with or into
(whether or not the Company is the surviving Person), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its properties
or assets in one or more related transactions to, another Person unless:
(i) the Company is the surviving Person or the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made is a corporation organized and existing under
the laws of the United States, any state thereof or the District of Columbia;
(ii) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or Person to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes all the obligations of the Company under the Notes,
the Indenture and the Pledge Agreement pursuant to a supplemental indenture in
form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction, no Default
or Event of Default exists;
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(iv) the Company, or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made will have Consolidated Net Worth immediately after the
transaction equal to or greater than the Consolidated Net Worth of the Company
immediately preceding the transaction;
(v) the Company, or the Person formed by or surviving
any such consolidation or merger (if other than the Company) or to which such
sale, assignment, transfer, lease, conveyance or other disposition shall have
been made, at the time of such transaction and after giving pro forma effect
thereto as if such transaction had occurred at the beginning of the immediately
preceding fiscal quarter, will be permitted to incur at least $1.00 of
additional Indebtedness pursuant to Section 4.12(a) hereof; and
(vii) the Company and the surviving entity shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, sale, assignment, transfer, lease,
conveyance or other disposition and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, comply with all
applicable provisions of this Indenture and that all conditions precedent in
this Indenture relating to such transaction have been satisfied.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
SECTION 5.2. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of either of the
Company with or into, any other Person or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entity in
accordance with Section 5.1, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein.
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ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(i) default for 30 days in the payment when due of
interest on, or Liquidated Damages (if any) with respect to, the Notes;
(ii) default in payment when due (whether at
maturity, upon redemption or repurchase, or otherwise) of the principal of or
premium (if any) on the Notes;
(iii) default in the payment of principal, interest
or Liquidated Damages (if any) on Notes required to be purchased pursuant to
Section 4.14 or Section 4.15 or failure by the Company to comply with the
provisions of Article V;
(iv) failure by the Company or any of its Restricted
Subsidiaries for 30 days after notice to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% of the outstanding
principal amount of the Notes, to comply with any of their other covenants in
this Indenture or the Notes;
(v) default under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by any the
Company or any of its Restricted Subsidiaries), whether such Indebtedness or
guarantee now exists, or is created after the date of this Indenture, which
default:
(A) is caused by a failure to pay principal
of, or premium, if any, or interest on, such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness on the date of such
default (a "Payment Default"); or
(B) results in the acceleration (which
acceleration has not been rescinded) of such Indebtedness prior to its express
maturity, and, in each case described in clause (a) and (b) of this paragraph,
the principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $5 million
or more;
(vi) failure by the Company or any of its Restricted
Subsidiaries to pay final judgments (other than any judgments as to which a
reputable insurance company has accepted full liability and whose bond, premium
or similar charge therefor is not in excess of $5
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million) aggregating in excess of $5 million, which judgments are not paid,
discharged or stayed within 60 days after their entry;
(vii) (x) breach by the Company of any representation
or warranty set forth in the Pledge Agreement upon notice of such breach to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% of the outstanding principal amount of the Notes; (y) failure by the
Company or any of its Restricted Subsidiaries for 30 days after notice to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% of the outstanding principal amount of the Notes, to cure any default
by the Company in the performance of any covenant set forth in the Pledge
Agreement; or (z) repudiation by the Company of any of its obligations under the
Pledge Agreement or the unenforceability of the Pledge Agreement against the
Company for any reason;
(viii) the entry by a court having jurisdiction in
the premises of (A) a decree or order for relief in respect of the Company or
any Restricted Subsidiary in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company or any Restricted
Subsidiary bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company or any Restricted Subsidiary under any applicable federal or
state law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of either of the Company or any
Restricted Subsidiary or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and in
effect for a period of 30 consecutive days; or
(ix) the commencement by the Company or any
Restricted Subsidiary of a voluntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in respect of the
Company or any Restricted Subsidiary in an involuntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the either of Company or any
Restricted Subsidiary, or of any substantial part of its property, or the making
by it of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company or any Restricted Subsidiary in
furtherance of any such action.
SECTION 6.2. ACCELERATION.
(a) If an Event of Default, other than an Event of Default
specified in Section 6.1(viii) or (ix) with respect to the Company, any
Significant Subsidiary or any group of
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Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary, occurs and is continuing and has not been waived pursuant to Section
6.4, then the Trustee or the Holders of at least 25% in principal amount of the
then outstanding Notes may declare the principal of and accrued interest and
Liquidated Damages (if any) on all the outstanding Notes to be due and payable
by notice in writing to the Company and the Trustee specifying the respective
Event of Default, such notice to be deemed a "notice of acceleration" (an
"Acceleration Notice"), and the same shall become immediately due and payable.
(b) If an Event of Default specified in Section 6.1(viii) or
(ix) with respect to the Company, any Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary occurs and is continuing, then all unpaid principal of, and premium
(if any) and accrued and unpaid interest and Liquidated Damages (if any) on all
of the outstanding Notes shall become due and payable without further action or
notice on the part of the Trustee or any Holder.
(c) At any time after a declaration of acceleration with
respect to the Notes in accordance with Section 6.2(a), the Holders of a
majority in principal amount of the Notes may rescind and cancel such
declaration and its consequences, but only: (i) if the rescission would not
conflict with any judgment or decree, (ii) if all existing Events of Default
have been cured or waived except nonpayment of principal or interest or
Liquidated Damages (if any) that has become due solely because of the
acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iv) if the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and all
other amounts due the Trustee pursuant to Section 7.7, and (v) if the Trustee
shall have received an Officers' Certificate that such Event of Default has been
cured or waived. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
(d) 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 the Company
would have had to pay if the Company then had elected to redeem the Notes
pursuant to the optional redemption provisions of this Indenture, an equivalent
premium shall also become and be immediately due and payable upon the
acceleration of the Notes pursuant to Section 6.2(a) or (b). If an Event of
Default occurs prior to March 1, 2002 by reason of any such willful action (or
inaction) by or on behalf of the Company with the intention of avoiding the
prohibition on redemption of the Notes prior to March 1, 2002, then the premium
specified herein shall also become immediately due and payable to the extent
permitted by law upon the acceleration of the Notes pursuant to Section 6.2(a)
or (b).
SECTION 6.3. 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 or premium (if any)
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of or interest or Liquidated Damages (if any) 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. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative to the extent permitted by
law.
SECTION 6.4. WAIVER OF PAST DEFAULTS.
Subject to Sections 2.9, 6.7 and 9.2, at any time prior to a
declaration of acceleration with respect to the Notes in accordance with Section
6.2(a), the Holders of a majority in aggregate principal amount of the Notes
then outstanding, by notice to the Trustee may, on behalf of the Holders of all
the Notes, waive an existing Default or Event of Default and its consequences,
except a continuing Default or Event of Default in the payment of principal or
premium (if any) of or interest or Liquidated Damages (if any) on any Note as
specified in clauses (i) and (ii) of Section 6.1.
SECTION 6.5. CONTROL BY MAJORITY.
Subject to Section 2.9, the Holders of a majority in 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 it, including, without limitation, any remedies provided for
in Section 6.3. Subject to Section 7.1, however, the Trustee may refuse to
follow any direction that the Trustee reasonably believes conflicts with any law
or this Indenture or that the Trustee determines may be unduly prejudicial to
the rights of another Holder. Notwithstanding any provision to the contrary
herein, the Trustee shall not be obligated to take any action with respect to
the provisions of Section 6.2(d) unless directed to do so pursuant to this
Section 6.5.
SECTION 6.6. LIMITATION ON SUITS.
A Holder may not pursue any remedy with respect to this Indenture or
the Notes unless:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) Holders of at least 25% in principal amount of the
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holders offer to the Trustee indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense to be
incurred in compliance with such request;
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(d) the Trustee does not comply with the request within 30
days after receipt of the request and the offer of satisfactory indemnity; and
(e) during such 30-day period the Holders of a majority in
principal amount of the outstanding Notes do not give the Trustee a direction
which, in the opinion of the Trustee, is inconsistent with the request.
The foregoing limitations shall not apply to a suit instituted by a
Holder for the enforcement of the payment of principal and premium (if any) or
interest and Liquidated Damages (if any) on such Note on or after the respective
due dates set forth in such Note (including upon acceleration thereof) or the
institution of any proceeding with respect to this Indenture or any remedy
hereunder, including, without limitation, acceleration, by the Holders of a
majority in principal amount of outstanding Notes, provided that upon
institution of any proceeding or exercise of any remedy, such Holders provide
the Trustee with prompt notice thereof.
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, it being
understood and intended that no one or more Holders shall have any right by
virtue of any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders, or to obtain or to seek to obtain priority or
preference over any other Holders, or to enforce any right under this Indenture
except in the manner herein provided and for the equal and ratable benefit of
all the Holders.
SECTION 6.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of, and interest and Liquidated Damages
(if any) on a Note, on or after the respective due dates expressed in such Note,
or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
SECTION 6.8. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of principal or interest or
Liquidated Damages (if any) specified in clause (i) or (ii) of Section 6.1
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company or any other
obligor on the Notes for the whole amount of principal and accrued interest
remaining unpaid and Liquidated Damages, if any, together with interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, and such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due to the Trustee pursuant to
Section 7.7.
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SECTION 6.9. 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, taxes,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee pursuant to Section 7.7) and the Holders allowed in
any judicial proceedings relating to the Company or any other obligor upon the
Notes, any of their respective creditors or any of their respective property and
shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator or other similar
official in any such judicial proceedings 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 to the
Trustee any amount due to it for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.7. The Company's payment obligations to
the Trustee under this Section 6.9 shall be secured in accordance with the
provisions of Section 7.7.
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 or property pursuant to this Article
VI, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.7;
Second: if the Holders are forced to proceed against the
Company directly without the Trustee, to the Holders for their collection costs;
Third: to Holders for amounts due and unpaid on the Notes for
principal and premium (if any) and interest and Liquidated Damages (if any),
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal and premium, and interest and
Liquidated Damages, respectively; and
Fourth: to the Company or any other obligor on the Notes, as
their interests may appear, or as a court of competent jurisdiction may direct.
The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Holders pursuant to this Section 6.10.
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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 in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.7, or a suit by a Holder or Holders of more than 10% in
principal amount of the outstanding Notes.
ARTICLE VII
TRUSTEE
SECTION 7.1. DUTIES OF TRUSTEE.
(a) The duties and responsibilities of the Trustee shall be as
provided by the TIA and this Indenture. 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.
(b) If 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 thereof as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(c) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties as are
required by the TIA or specifically set forth in this Indenture and no other
covenants or obligations shall be implied in this Indenture against the Trustee.
(ii) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(d) Notwithstanding anything to the contrary herein contained,
the Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct.
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(e) Every provision of this Indenture that relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.1.
(f) The Trustee shall not be liable for interest on any money
or assets received by it except as the Trustee may agree in writing. Assets held
in trust by the Trustee need not be segregated from other assets except to the
extent required by law.
SECTION 7.2. RIGHTS OF TRUSTEE.
Subject to Section 7.1:
(a) The Trustee may rely and shall be fully protected in
acting or refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or an Opinion of
Counsel, or both. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officers' Certificate or Opinion
of Counsel.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action that it
takes or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, 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, upon reasonable notice to the Company, to
examine the books, records, and premises of the Company, personally or by agent
or attorney and to consult with the officers and representatives of the Company,
including the Company's accountants and attorneys.
(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, order or
direction of any of the Holders pursuant to the provisions of this Indenture,
including, without limitation, the provisions of Section 6.5 hereof, unless such
Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities which
may be incurred by it in compliance with such request, order or direction.
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(g) The Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties hereunder.
(h) the Trustee shall not be charged with knowledge of any
Default or Event of Default unless either (1) a Responsible Officer of the
Trustee shall have actual knowledge of such Default or Event of Default or (2)
written notice of such Default or Event of Default shall have been given to the
Trustee by the Company or any Holder.
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE AND AGENTS.
Each of the Trustee, any Paying Agent and any Registrar, in its
individual or any other capacity, may become the owner or pledgee of Notes and
may otherwise deal with the Company or any of its Subsidiaries or Affiliates
with the same rights it would have if it were not Trustee or such agent.
SECTION 7.4. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of
this Indenture, the Pledge Agreement, the Pledged Securities or the Notes, and
it shall not be accountable for the Company's use of the proceeds from the
Notes, and it shall not be responsible for any statement of the Company in this
Indenture or the Notes, other than the Trustee's certificate of authentication.
SECTION 7.5. NOTICE OF DEFAULT.
If a Default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Holder notice of the
uncured Default or Event of Default within 30 days after such Default or Event
of Default becomes known to the Trustee. Except in the case of a Default or an
Event of Default in payment of principal of, premium, if any, interest or
Liquidated Damages (if any) on any Note, including an accelerated payment and
the failure to make payment on the Change of Control Payment Date pursuant to a
Change of Control Offer or on to the Proceeds Purchase Date pursuant to an Asset
Sale Offer, and, except in the case of a failure to comply with Article V
hereof, the Trustee may withhold the notice if and so long as it in good faith
determines that withholding such notice is in the interest of the Holders.
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15, the Trustee shall, to the extent that
any of the events described in TIA Section 313(a) occurred within the previous
twelve months, but not otherwise, mail to each Holder a report dated as of such
date that complies with TIA Section 313(a). The Trustee also shall comply with
TIA Sections 313(b) and (c).
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A copy of each report at the time of its mailing to Holders shall be
mailed to the Company and filed with the Commission and each securities
exchange, if any, on which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes become
listed on any securities exchange and the Trustee shall comply with TIA Section
313(d).
SECTION 7.7. COMPENSATION AND INDEMNITY.
(a) The Company agrees:
(i) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein,
to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(iii) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense (including the reasonable
compensation, expenses and disbursements of its agents, accountants, experts and
counsel) incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of this trust, including the
costs and expenses of enforcing this Indenture against the Company (including,
without limitation, this Section 7.7) and of defending itself against any claim
(whether asserted by any Holder or the Company) or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
(b) The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder.
(c) The Company need not reimburse any expense or indemnify
the Trustee against any loss or liability to the extent incurred by the Trustee
through its negligence, bad faith or willful misconduct.
(d) To secure the Company's payment obligations in this
Section 7.7, the Trustee shall have a lien prior to the Notes on all assets or
money held or collected by the Trustee, in its capacity as Trustee, except
assets or money held in trust to pay principal of, or interest or Liquidated
Damages (if any) on, particular Notes. The Trustee's right to receive payment of
any amounts due under this Section 7.7 shall not be subordinate to any other
liability or indebtedness of the Company.
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(e) When the Trustee incurs expenses or renders services after
an Event of Default specified in Section 6.1(viii) or (ix) occurs, such expenses
and the compensation for such services are intended to constitute expenses of
administration under Title 11, U.S. Code, or any similar federal or state law.
(f) The provisions of this Section 7.7 shall survive the
resignation or removal of the Trustee and the satisfaction and discharge of this
Indenture.
(g) The Trustee shall comply with the provisions of TIA
Section 313(b)(2) to the extent possible.
SECTION 7.8. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article VII shall become
effective until the acceptance of appointment by the successor Trustee under
Section 7.9, at which time the retiring Trustee shall be fully discharged from
its obligations hereunder.
(b) The Trustee may resign at any time by giving at least 30
days' advance written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(c) The Trustee may be removed at any time by notice, in
writing, of the Holders of a majority in principal amount of the outstanding
Notes, delivered to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section
7.11 hereof; or
(ii) the Trustee shall cease to be eligible under
Section 7.11 and shall fail to resign after written request therefor by the
Company or by any such Holder; or
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case (1) the Company by an
appropriate board resolution evidenced by an Officers' Certificate may remove
the Trustee, or (2) subject to Section 6.11, any Holder may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
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(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by an appropriate board resolution evidenced by an
Officers' Certificate shall promptly appoint a successor Trustee. If, within one
year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the outstanding Notes delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner herein provided, any Holder may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(f) If the Trustee, after written request by the Company or by
any Holder who has been a Holder for at least six months, fails to comply with
Section 7.11 hereof, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee or the appointment of a successor
Trustee.
(g) The Company shall give or cause to be given notice of each
resignation and each removal of the Trustee and each appointment of a successor
Trustee to all Holders in the manner provided herein. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 7.9. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee a written instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee. Upon request of the Company
or the successor Trustee, the retiring Trustee shall execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder, in each case subject to the lien of the retiring Trustee granted
pursuant hereto. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article VII.
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SECTION 7.10. 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, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee, provided that such
corporation shall be otherwise qualified and eligible under this Article VII. In
case any Notes shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Notes so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes.
SECTION 7.11. TRUSTEE REQUIRED; ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the TIA to act as such, and has a combined capital
and surplus of at least $50,000,000 and its Corporate Trust Office in the
Borough of Manhattan, The City of New York, New York. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of a federal, state, territorial or District of Columbia supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Article VII. If the Trustee has or shall acquire a
conflicting interest within the meaning of the TIA, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the TIA and this Indenture.
SECTION 7.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Notes), the Trustee shall be subject to the
provisions of the TIA regarding the collection of claims against the Company (or
any such other obligor).
ARTICLE VIII
DEFEASANCE AND SATISFACTION AND DISCHARGE
SECTION 8.1. DEFEASANCE AND COVENANT DEFEASANCE.
(a) Company's Option to Effect Defeasance or Covenant
Defeasance. The Company may at its option, by an appropriate board resolution
evidenced by an Officers' Certificate, at any time (subject to 10-day prior
written notification to the Trustee), elect to have the provisions of either
Section 8.1(b) or (c) applied to the outstanding Notes upon compliance with the
conditions set forth below in this Article VIII.
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(b) Legal Defeasance and Discharge. Upon the Company's
exercise of the option provided in Section 8.1(a) applicable to this Section,
the Company shall be deemed to have been discharged from its obligations with
respect to the outstanding Notes on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the outstanding Notes and to have
satisfied all its other obligations under such Notes and this Indenture insofar
as such Notes are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of outstanding Notes to receive, solely
from the trust fund described in Section 8.1(d) and as more fully set forth in
such Section, payments in respect of the principal and premium (if any) of and
interest and Liquidated Damages (if any) on such Notes when such payments are
due, (ii) the Company's obligations with respect to such Notes under Sections
2.4, 2.6, 2.7, 2.10 and 4.2, (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (iv) this Article VIII. Subject to
compliance with this Article VIII, the Company may exercise its option under
this Section 8.1(b) notwithstanding the prior exercise of its option under
Section 8.1(c).
(c) Covenant Defeasance. Upon the Company's exercise of the
option provided in Section 8.1(a) applicable to this Section, (i) the Company
shall be released from its obligations under Sections 4.5 through 4.19,
inclusive, and (ii) the occurrence of an event specified in Section 6.1(iv)
shall not be deemed to be an Event of Default, on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document, but the remainder of this Indenture and such Notes shall be unaffected
thereby.
(d) Conditions to Legal Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 8.1(b) or
8.1(c) to the outstanding Notes:
(i) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Notes: (A) cash in U.S.
dollars, or (B) non-callable Government Securities which through the scheduled
payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, in the opinion of
a nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee to pay and discharge,
the principal and premium (if any) of, and interest and Liquidated Damages (if
any) on the Notes at the Stated Maturity of such principal or installment of
interest on the day on
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which such payments are due and payable in accordance with the terms of this
Indenture and of such Notes;
(ii) No Default or Event of Default shall have
occurred and be continuing on the date of such deposit;
(iii) Such Legal Defeasance or Covenant Defeasance
shall not cause the Trustee to have a conflicting interest as described in
Section 7.11 and for purposes of the TIA with respect to any securities of the
Company;
(iv) Such Legal Defeasance or Covenant Defeasance
shall not result in a breach or violation of, or constitute a default under,
this Indenture or any other agreement or instrument to which any Issuer or
Guarantor is a party or by which it is bound;
(v) The Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the Legal Defeasance under
Section 8.1(b) or the Covenant Defeasance under Section 8.1(c), as the case may
be, have been complied with;
(vi) In the case of an election under Section 8.1(b),
the Company shall have delivered to the Trustee an Opinion of Counsel stating
that (x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this Indenture there
has been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the Holders
of the outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit, defeasance and discharge and
will be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such deposit, defeasance
and discharge had not occurred;
(vii) In the case of an election under Section
8.1(c), the Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such deposit and
Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred; and
(viii) The Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that such deposit and Legal
Defeasance or Covenant Defeasance shall not result in the trust arising from
such deposit constituting an investment company as defined in the Investment
Company Act of 1940, as amended, or such trust shall be qualified under such act
or exempt from regulation thereunder.
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SECTION 8.2. SATISFACTION AND DISCHARGE.
In addition to the Company's rights under Section 8.1, the Company may
terminate all of its obligations under this Indenture when:
(a) all Notes theretofore authenticated and delivered (other
than Notes which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.7 and Notes for whose payment money
has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust) have
been delivered to the Trustee for cancellation or all such Notes not theretofore
delivered to the Trustee for cancellation have become due and payable and the
Company has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust solely for that purpose an amount of money sufficient to
pay and discharge the entire principal and premium (if any) of and interest and
Liquidated Damages (if any) on the Notes not theretofore delivered to the
Trustee for cancellation;
(b) the Company has paid or caused to be paid all other sums
payable hereunder;
(c) the Company has delivered irrevocable instructions to the
Trustee to apply the deposited money toward the payment of the Notes at maturity
or redemption, as the case may be; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, stating that all conditions precedent
specified herein relating to the satisfaction and discharge of this Indenture
have been complied with.
SECTION 8.3. SURVIVAL OF CERTAIN OBLIGATIONS.
Notwithstanding the satisfaction and discharge of this Indenture and of
the Notes referred to in Section 8.1 or 8.2, the respective obligations of the
Company and the Trustee under Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.10, 2.12,
2.13, 4.1, 4.2, 6.7, Article VII, and Sections 8.5, 8.6 and 8.7 shall survive
until no Notes are outstanding, and thereafter the obligations of the Company
and the Trustee under Sections 7.7, 8.5, 8.6 and 8.7 shall survive. Nothing
contained in this Article VIII shall abrogate any of the obligations or duties
of the Trustee under this Indenture.
SECTION 8.4. ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE.
After (i) the conditions of Section 8.1 or 8.2 have been satisfied,
(ii) the Company has paid or caused to be paid all other sums payable hereunder
and (iii) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent referred to in
clause (i) above relating to the satisfaction and discharge of this Indenture
have been complied with, the Trustee, upon written request, shall acknowledge in
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writing the discharge of the Company's obligations under this Indenture, except
for those surviving obligations specified in Section 8.3.
SECTION 8.5. APPLICATION OF TRUST MONEYS AND GOVERNMENT SECURITIES.
Subject to the provisions of Section 2.4, all money and Government
Securities (including the proceeds thereof) deposited with the Trustee pursuant
to Section 8.1(d)(i) in respect of the Notes shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent as the
Trustee may determine, to the Holders of such Notes, of all sums due and to
become due thereon in respect of principal and premium (if any) of and interest
and Liquidated Damages (if any) on the Notes, but such money and Government
Securities need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Securities deposited
pursuant to Section 8.1(d)(i) or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon request by an
Officers' Certificate any money or Government Securities held by it as provided
in Section 8.1(d)(i) which, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent defeasance or
covenant defeasance.
SECTION 8.6. REPAYMENT TO THE COMPANY; UNCLAIMED MONEY.
Any money or Government Securities deposited with the Trustee or the
Paying Agent in trust for the payment of the principal and premium (if any) of
and interest and Liquidated Damages (if any) on the Notes and remaining
unclaimed for two years after it has become due and payable shall be paid to the
Company upon written request in the form of an Officers' Certificate, and the
Holder of such Notes shall thereafter, as a creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in the New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
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SECTION 8.7. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money or
Government Securities in accordance with Section 8.1(b) or 8.1(c) by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to this Article VIII until such time
as the Trustee or Paying Agent is permitted to apply all such money or
Government Securities in accordance with Section 8.1(b) or 8.1(c); provided,
however, that if the Company makes any payment of principal and premium (if any)
on any Note following 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 held by the Trustee or the Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. WITHOUT CONSENT OF HOLDERS.
Notwithstanding Section 9.2 of this Indenture, without notice to or the
consent of any Holder, the Company, when authorized by an appropriate board
resolution evidenced by an Officers' Certificate, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, and may amend this Indenture, the Notes or the
Pledge Agreement, for any of the following purposes:
(a) to cure any ambiguity, defect or inconsistency; provided
that such amendment or supplement does not, as evidenced by an Opinion of
Counsel delivered to the Trustee, adversely affect the legal rights of any
Holder;
(b) to comply with Article V;
(c) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(d) to comply with any requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the TIA;
(e) to make any change that would provide any additional
benefit or rights to the Holders or that does not, as evidenced by an Opinion of
Counsel delivered to the Trustee, adversely affect the legal rights of any
Holder;
(f) to provide for issuance of the Exchange Notes (which will
have terms substantially identical in all material respects to the Original
Notes, except that the transfer restrictions contained in the Original Notes
will be modified or eliminated as appropriate, and
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which will be treated together with any outstanding Original Notes as a single
issue of securities); or
(g) to make any other change that does not, as evidenced by an
Opinion of Counsel delivered to the Trustee, adversely affect the legal rights
of any Holder;
provided that the Company deliver to the Trustee an Opinion of Counsel and an
Officers' Certificate stating that such amendment or supplement complies with
the provisions of this Section.
SECTION 9.2. WITH CONSENT OF HOLDERS.
Subject to Section 6.7, the Company, when authorized by an appropriate
board resolution evidenced by an Officers' Certificate, and the Trustee, the
Indenture, the Notes and the Pledge Agreement may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount of
the Notes then outstanding (including consents obtained in connection with a
purchase of, or tender offer or exchange offer for, Notes), and any existing
default or compliance with any provision of the Indenture, the Notes or the
Pledge Agreement may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (including consents obtained in
connection with a purchase of, or tender offer or exchange offer for Notes).
Without the consent of each Holder of each Note affected thereby, an
amendment, supplement or waiver may not (with respect to any Note held by a
non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of
any Note, or alter the provisions with respect to the redemption of the Notes
(other than provisions set forth in Sections 4.14 and 4.15 of this Indenture);
(c) reduce the rate of or change the time for payment of
interest on any Note;
(d) waive a Default or Event of Default in the payment of
principal and premium (if any) of, and interest or Liquidated Damages (if any)
on, the Notes (except a rescission of acceleration of the Notes by the Holders
of at least a majority in aggregate principal amount of the Notes and a waiver
of the payment default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in
the Notes;
(f) make any change in provisions of this Indenture relating
to waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal and premium (if any) of, and interest or Liquidated
Damages (if any) on, the Notes;
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(g) waive a redemption payment with respect to any Note (other
than a payment required by Section 4.14 and 4.15); or
(h) make any change in the amendment and waiver provisions of
this Section 9.2.
Upon the request of the Company accompanied by an Officers' Certificate
in form satisfactory to the Trustee certifying corporate resolutions,
authorizing the execution of any amended or supplemental indenture, and upon the
filing with the Trustee of evidence satisfactory of the consent of the Holders
as aforesaid, and upon receipt by the Trustee of the documents described in
Section 11.5 hereof, the Trustee shall join with the Company in the execution of
such amended or supplemental indenture unless such amended or supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental Indenture. It
shall not be necessary for the consent of the Holders under this Section to
approve the particular form of any proposed amendment, supplement or waiver, but
it shall be sufficient if such consent approves the substance thereof. After an
amendment, supplement or waiver under this Section 9.2 becomes effective, the
Company shall mail to the Holders affected thereby a notice briefly describing
the amendment, supplement or waiver. 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.
SECTION 9.3. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article IX or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 7.1) shall be fully protected in relying upon,
in addition to the documents required by Section 11.5, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.4. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article IX,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
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SECTION 9.5. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment, waiver or supplement of this Indenture or the Notes
shall comply with the TIA as then in effect.
SECTION 9.6. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article IX may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
outstanding Notes.
SECTION 9.7. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement 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
consenting Holder's Note, even if notation of the consent is not made on any
Note. Subject to the following paragraph, any such Holder or subsequent Holder
may revoke the consent as to such Holder's Note or portion of such Note by
notice to the Trustee or the Company received before the date on which the
Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount of Notes have consented (and not theretofore revoked
such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the last
sentence of the immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. No such consent shall be
valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (a)
through (h) of Section 9.2, in which case, the amendment, supplement or waiver
shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note; provided that any such waiver shall not impair or
affect the right of any Holder to receive payment of principal of, and interest
and Liquidated Damages (if any) on, a Note, on or after the respective due dates
expressed in such Note, or to bring suit for the enforcement of any such payment
on or after such respective dates without the consent of such Holder.
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ARTICLE X
SUBSIDIARY GUARANTEES
SECTION 10.1. UNCONDITIONAL GUARANTEE.
Each Subsidiary Guarantor, upon execution and delivery of a
supplemental indenture pursuant to Section 10.10, hereby fully and
unconditionally guarantees, jointly and severally with each other Subsidiary
Guarantor, if any, to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture or the Notes or the obligations of
the Subsidiary Guarantors under this Indenture or the Notes that: (i) the
principal of and premium (if any) and interest and Liquidated Damages (if any)
on the Notes will be paid in full when due, subject to any applicable grace
period, whether at maturity, by acceleration or otherwise and interest on the
overdue principal, if any, and interest on any interest (if any) to the extent
lawful, on the Notes and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and (ii) in case of any
extension of time of payment or renewal of any Notes or of any such other
obligations, the same will be paid in full when due or performed in accordance
with the terms of the extension or renewal, subject to any applicable grace
period, whether at stated maturity, by acceleration or otherwise, subject,
however, in the case of clauses (i) and (ii) above, to the limitations set forth
in Section 10.4. Each Subsidiary Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity or enforceability
of the Notes or this Indenture. Each 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 will not be discharged (except to
the extent released pursuant to Section 10.9) except by complete performance of
the obligations contained in the Notes, this Indenture and in its Subsidiary
Guarantee. If any Holder or the Trustee is required by any court or otherwise to
return to the Company, any Subsidiary Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or any
Subsidiary Guarantor, any amount paid by the Company or any Subsidiary Guarantor
to the Trustee or such Holder, each Subsidiary Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect (except to
the extent released pursuant to Section 10.9). Each Subsidiary Guarantor further
agrees that, as between each Subsidiary Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article VI for the purposes
of its Subsidiary Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article VI, such obligations (whether or not due and payable)
shall forthwith become due and payable by each Subsidiary Guarantor for the
purpose of its Subsidiary Guarantee.
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SECTION 10.2. PRIORITY OF GUARANTEE.
The obligations of each Subsidiary Guarantor to the Holders of Notes
and to the Trustee pursuant to its Subsidiary Guarantee and this Indenture will
rank senior in right and priority of payment to all other indebtedness of such
Subsidiary Guarantor that is expressly subordinated to its Subsidiary Guarantee
and will rank pari passu in right and priority of payment with all other
indebtedness of such Subsidiary Guarantor that is not expressly so subordinated
to such Subsidiary Guarantee, except to the extent of any collateral securing
such other indebtedness.
SECTION 10.3. SEVERABILITY.
In case any provision of this Subsidiary Guarantee 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 10.4. LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY.
Any term or provision of this Indenture to the contrary
notwithstanding, the maximum aggregate amount of the obligations guaranteed
hereunder by any Subsidiary Guarantor shall not exceed the maximum amount that
can be hereby guaranteed without rendering this Indenture, as it relates to such
Subsidiary Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally. To effectuate the foregoing intention, the obligations of
each Subsidiary Guarantor shall be limited to the maximum amount as will, after
giving effect to all other contingent and fixed liabilities of such Subsidiary
Guarantor and after giving effect to any collections from, rights to receive
contributions from, or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Subsidiary Guarantee or pursuant to its contribution obligations hereunder,
result in the obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
any applicable law. Each Subsidiary Guarantor that makes a payment or
distribution under a Subsidiary Guarantee shall be entitled to a contribution
from each other Subsidiary Guarantor so long as the exercise of such right does
not impair the rights of the Holders under the Subsidiary Guarantees.
SECTION 10.5. WAIVER OF SUBROGATION.
Until all Obligations are paid, in full each Subsidiary Guarantor
hereby irrevocably waives any claim or other rights which it may now or
hereafter acquire against the Company that arise from the existence, payment,
performance or enforcement of such Subsidiary Guarantor's obligations under its
Subsidiary Guarantee and this Indenture, including, without limitation, any
right of subrogation, reimbursement, exoneration, indemnification, and any right
to participate in any claim or remedy of any Holder of Notes against the
Company, 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
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property or by set-off or in any other manner, payment or security on account of
such claim or other rights. If any amount shall be paid to any Subsidiary
Guarantor in violation of the preceding sentence and the Notes shall not have
been paid in full, such amount shall have been deemed to have been paid to such
Subsidiary Guarantor for the benefit of, and held in trust for the benefit of,
the Holders of the Notes, and shall forthwith be paid to the Trustee for the
benefit of such Holders to be credited and applied upon the Notes, whether
matured or unmatured, in accordance with the terms of this Indenture.
SECTION 10.6. SUCCESSORS AND ASSIGNS.
This Article X shall be binding upon each Subsidiary Guarantor and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Notes shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions of this Indenture.
SECTION 10.7. NO WAIVER.
Neither a failure nor a delay on the part of either the Subsidiary
Guarantors, the Trustee or the Holders in exercising any right, power or
privilege under this Article X shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege. The rights, remedies and benefits of the Subsidiary
Guarantors, the Trustee and the Holders herein expressly specified are
cumulative and not exclusive of any other rights, remedies or benefits which
either may have under this Article X at law, in equity, by statute or otherwise.
SECTION 10.8. MODIFICATION.
No modification, amendment or waiver of any provision of this Article
X, nor the consent to any departure by any Subsidiary Guarantor therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Trustee, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on any
Subsidiary Guarantor in any case shall entitle such Subsidiary Guarantor to any
other or further notice or demand in the same, similar or other circumstances.
SECTION 10.9. RELEASE OF SUBSIDIARY GUARANTOR.
Upon the sale or disposition of all the capital stock of a Subsidiary
Guarantor (or substantially all of its assets) by way of merger, consolidation
or otherwise or the designation of a Subsidiary Guarantor as an Unrestricted
Subsidiary pursuant to and in compliance with the terms of this Indenture, such
Subsidiary shall be released from and relieved of its obligations under its
Subsidiary Guarantee. The Trustee shall deliver an appropriate instrument
evidencing such release upon receipt of a request by the Company accompanied by
an Officers' Certificate
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and Opinion of Counsel certifying as to the compliance with this Section. Any
Subsidiary Guarantor not so released shall remain liable for the full amount of
principal of and interest and Liquidated Damages (if any) on the Notes as
provided in this Article X.
SECTION 10.10. EXECUTION OF SUPPLEMENTAL INDENTURE BY FUTURE RESTRICTED
SUBSIDIARIES.
The Company shall cause each Person that becomes a Restricted
Subsidiary, upon becoming a Restricted Subsidiary, to become a Subsidiary
Guarantor with respect to the Notes. The Company shall cause any such Restricted
Subsidiary to execute and deliver to the Trustee (i) a supplemental indenture,
in form and substance satisfactory to the Trustee, pursuant to which such
Subsidiary shall unconditionally guarantee all of the Company's obligations
under the Notes and this Indenture on the terms set forth in this Indenture and
(ii) deliver to the Trustee an Opinion of Counsel to the effect that such
supplemental indenture has been duly authorized, executed and delivered by such
Subsidiary Guarantor and, subject to the application of bankruptcy, insolvency,
moratorium, fraudulent conveyance or transfer and other similar laws relating to
creditors' rights generally and to the principles of equity, whether considered
in a proceeding at law or in equity, the Subsidiary Guarantee of such Subsidiary
Guarantor is a legal, valid and binding obligation of such Subsidiary Guarantor,
enforceable against such Subsidiary Guarantor in accordance with its terms.
Thereafter, such Subsidiary shall be a Subsidiary Guarantor for all purposes of
this Indenture.
SECTION 10.11. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each Subsidiary Guarantor covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture, and (to the
extent that it may lawfully do so) each such Subsidiary Guarantor 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 will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
a provision of the TIA that is required under the TIA to be a part of and govern
this Indenture, such required provision shall control. If any provision of this
Indenture modifies or excludes any provision of the TIA that may be so modified
or excluded, the provision of the TIA shall be deemed to apply to this Indenture
as so modified or excluded, as the case may be.
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SECTION 11.2. NOTICES TO COMPANY AND TRUSTEE.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by facsimile, or by registered or certified mail, postage prepaid, return
receipt requested, and addressed as follows:
If to the Company:
Orbital Imaging Corporation
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Facsimile: 000-000-0000
If to the Trustee:
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-1180
Attn: Corporate Trust Department
Facsimile: 000-000-0000
Each of the Company and the Trustee by written notice as specified herein to
each other Person may designate additional or different addresses for notices to
such Person. Any notice or communication to the Company or the Trustee shall be
deemed to have been given or made: as of the date delivered, if personally
delivered; when receipt is confirmed, if sent by facsimile; and five calendar
days after mailing, if sent by registered or certified mail, postage prepaid;
provided that a notice of change of address shall not be deemed to have been
given until actually received by the addressee.
SECTION 11.3. NOTICES TO HOLDERS.
Where this Indenture provides for notice to Holders, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and: (i) in the case of a Global Note, by facsimile or by overnight mail to the
Depository; and (ii) in the case of Notes other than a Global Note, by
first-class mail, postage prepaid, in each case to each Holder affected at his
address as it appears in the Note Register, and shall be sufficiently given if
sent not later than the latest date (if any) and not earlier than the earliest
date (if any) prescribed for the giving of such notice. Neither the failure to
mail any such notice nor any defect in any notice so mailed to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Notice may be waived in writing by any Person entitled to receive such
notice, either before or after the event requiring notice. Waivers of notice by
Holders shall be filed with the Trustee, but such
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filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 11.4. TRUSTEE, PAYING AGENT AND REGISTRAR PROCEDURES.
The Trustee may make reasonable rules in accordance with the Trustee's
customary practices for action by or at meetings of Holders, and the Paying
Agent and the Registrar may make reasonable rules for their functions.
SECTION 11.5. COMPLIANCE CERTIFICATES AND OPINIONS.
(a) Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee such certificates and opinions as may be required
under the TIA and under this Indenture. Each such certificate or opinion
required to be made under this Indenture shall be given in the form of an
Officers' Certificate, if to be given by the Company, or an Opinion of Counsel,
if to be given by counsel, and shall comply with the requirements of the TIA and
any other requirement set forth in this Indenture.
(b) Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
individual, 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
(iv) a statement as to whether, in the opinion of
each such individual, such condition or covenant has been complied with.
SECTION 11.6. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
(a) In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.
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(b) Any Officers' Certificate may be based, insofar as it
relates to legal matters, upon an Opinion of Counsel submitted therewith, unless
such officer knows, or in the exercise of reasonable care should know, that the
opinion with respect to the matters upon which his certificate is based is
erroneous. Any Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate of officers of the Company submitted therewith
stating the information on which such counsel is relying, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
with respect to such matters is erroneous.
SECTION 11.7. ACTS OF HOLDERS; REGISTERED HOLDERS; RECORD DATES.
(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 written instruments
of substantially similar tenor signed by such Holders in person or by 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. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. 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 (subject to Section 7.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing pursuant to this Section may be proved by the
affidavit of a witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Note.
(e) The Company may set any day as a record date for the
purpose of determining the Holders of outstanding Notes entitled to give, make
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this
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Indenture to be given, made or taken by Holders of Notes; provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in paragraph (f) below. If not set
by the Company prior to the first solicitation of a Holder made by any Person in
respect of any such matter referred to in the foregoing sentence, the record
date for any such matter shall be the 30th day (or, if later, the date of the
most recent list of Holders required pursuant to Section 2.5) prior to such
first solicitation. If any record date is set pursuant to this paragraph, the
Holders of outstanding Notes on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders
after such record date. Nothing in this paragraph shall be construed to prevent
the Company from setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph (whereupon the record
date previously set shall automatically and with no action by any Person be
cancelled and of no effect), and nothing in this paragraph shall be construed to
render ineffective any action taken by Holders of the requisite principal amount
of outstanding Notes on the date such action is taken. Promptly after any record
date is set pursuant to this paragraph, the Company, at its own expense, shall
cause notice of such record date, the proposed action by Holders to be given to
the Trustee in writing and to each Holder of Notes in the manner set forth in
Section 11.2.
(f) The Trustee may set any day as a record date for the
purpose of determining the Holders of outstanding Notes entitled to join in the
giving or making of (i) any notice hereunder, (ii) any declaration of
acceleration referred to in Section 6.2, (iii) any request to institute
proceedings referred to in Section 6.6 or (iv) any direction referred to in
Section 6.5. If any record date is set pursuant to this paragraph, the Holders
of outstanding Notes on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of outstanding Notes on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Company's expense, shall cause notice of such record date, the
proposed action by Holders to be given to the Company in writing and to each
Holder of Notes in the manner set forth in Section 11.2.
(g) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular Note may do
so with regard to all or any part of the principal amount of such Note or by one
or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
SECTION 11.8. SUCCESSORS AND ASSIGNS.
All covenants and 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.
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SECTION 11.9. SEVERABILITY.
In case any one or more of the provisions in this Indenture or in the
Notes shall be held invalid, illegal or unenforceable in any jurisdiction, in
any respect for any reason, the validity, legality and enforceability of any
such provision in every other jurisdiction and in every other respect, and of
the remaining provisions, shall not in any way be affected or impaired thereby,
it being intended that all of the provisions hereof shall be enforceable to the
full extent permitted by law.
SECTION 11.10. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders of Notes, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 11.11. GOVERNING LAW; JURISDICTION.
This Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York, as applied to contracts made
and performed entirely within the State of New York, without regard to
principles of conflict of laws. Each of the parties hereto agrees to submit to
the jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to this Indenture.
SECTION 11.12. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, Proceeds
Purchase Date or Change of Control Payment Date of any Note shall not be a
Business Day, then, notwithstanding any other provision of this Indenture or of
the Notes or the Subsidiary Guarantees, payment of interest or Liquidated
Damages (if any) on or principal and premium (if any) of the Notes 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 such Interest Payment Date, Redemption Date,
Proceeds Purchase Date or Change of Control Payment Date, as the case may be.
SECTION 11.13. NO RECOURSE AGAINST OTHERS; LIMITATION ON LIABILITY.
Notwithstanding anything contained in this Indenture or the Notes to
the contrary, (i) except for the Company to the extent provided in clause (ii)
below, no Person shall have any liability whatsoever with respect to or arising
out of this Indenture, the Notes, or the Company's obligations thereunder or any
agreements or documents executed by the Company in connection therewith and (ii)
claims with respect to this Indenture, the Notes and any obligations thereunder
or under any agreements or documents executed in connection therewith shall be
satisfied solely
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from the assets of the Company. Each Holder, by accepting a Note, waives and
releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
SECTION 11.14. COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
ORBITAL IMAGING CORPORATION
By:_____________________________________
Name:
Title:
MARINE MIDLAND BANK,
as Trustee
By:_____________________________________
Name:
Title:
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(FORM OF FACE OF NOTE)
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), New York, New
York, to the Company or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as may be requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or such other entity as may be 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.[1]
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF ORBITAL IMAGING CORPORATION AND ITS
SUCCESSORS (THE "COMPANY") THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c)
OUTSIDE THE UNITED STATES TO A PERSON THAT IS NOT A U.S. PERSON (AS DEFINED IN
RULE 902 UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 904 UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE NOTES
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) OR (e) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY OR TRUSTEE, REGISTRAR OR
TRANSFER AGENT FOR THE SECURITIES SO REQUESTS), (2) TO THE COMPANY OR (3)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN
EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
101
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.[2]
THIS NOTE WAS INITIALLY ISSUED AS PART OF AN ISSUANCE OF UNITS (THE "UNITS"),
EACH OF WHICH CONSISTS OF $1,000 PRINCIPAL AMOUNT OF 11 5/8% SENIOR NOTES DUE
2005 (THE "NOTES") OF THE COMPANY AND ONE WARRANT TO PURCHASE 8.75164 SHARES OF
COMMON STOCK, $0.01 PAR VALUE, OF THE COMPANY (THE "WARRANTS"). THIS NOTE IS NOT
TRANSFERABLE SEPARATELY FROM THE WARRANTS COMPRISING THE UNIT OF WHICH THIS NOTE
IS A PART UNTIL THE EARLIEST TO OCCUR OF (i) 90 DAYS FROM THE DATE OF ISSUANCE,
(ii) SUCH DATE AS THE INITIAL PURCHASERS MAY, IN THEIR DISCRETION, DEEM
APPROPRIATE, (iii) IN THE EVENT A CHANGE OF CONTROL (AS DEFINED IN THE INDENTURE
RELATING TO THE NOTES) OCCURS, THE DATE THE COMPANY MAILS NOTICE THEREOF TO
HOLDERS OF THE NOTES, (iv) THE DATE OF WHICH THE EXCHANGE OFFER (AS DEFINED IN
THE REGISTRATION RIGHTS AGREEMENT RELATING TO THE NOTES) IS CONSUMMATED, AND (v)
THE EFFECTIVENESS OF THE SHELF REGISTRATION STATEMENT RELATING TO THE NOTES
PURSUANT TO THE REGISTRATION RIGHTS AGREEMENT. THE DATE ON WHICH THE NOTES AND
THE WARRANTS ARE SEPARABLE IS THE "SEPARATION DATE."[3]
[1] This paragraph should be included only if the Note is issued in global.
[2] This legend not required in the case of (1) a Note issued pursuant to
Section 2.6(g)(ii) of the Indenture of (2) a Exchange Note issued pursuant to
Section 2.6(g)(iii) of the Indenture.
[3] This legend is not required in the case of certain Notes as more
particularly described in Section 2.6(k) of the Indenture.
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ORBITAL IMAGING CORPORATION
11 5/8% SENIOR NOTES DUE 2005, [SERIES A] [SERIES B]
NO. ___
CUSIP #__________
ORBITAL IMAGING CORPORATION, a Delaware corporation (the "Company"),
promises to pay to _______ or registered assigns, the principal sum indicated on
Schedule A on March 1, 2005.
Interest Payment Dates: March 1 and September 1, commencing on
September 1, 1998.
Record Dates: February 15 and August 15.
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officer.
ORBITAL IMAGING CORPORATION
By:_____________________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President, Finance
Dated: February 25, 1998
103
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 11 5/8% Senior Notes due 2005 referred to in the
within-mentioned Indenture.
MARINE MIDLAND BANK,
as Trustee
By:_____________________________________
Authorized Signatory
104
(FORM OF REVERSE SIDE OF NOTE)
11 5/8% Senior Notes due 2005, [Series A] [Series B]
Capitalized terms used herein shall have the meanings ascribed to them
in the Indenture (as defined below) unless otherwise indicated.
1. Interest. ORBITAL IMAGING CORPORATION, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at the
rate per annum shown above. Interest on the Notes will accrue from the most
recent date on which interest has been paid or, if no interest has been paid,
from February 25, 1998. The Company will pay interest semi-annually in arrears
on each Interest Payment Date, commencing September 1, 1998.
The Company shall pay, to the extent such payments are lawful, interest
on overdue principal, from time to time on demand at the rate equal to 1% per
annum in excess of the rate then in effect; it shall pay interest on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent such payments are lawful.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
Notwithstanding any other provision of the Indenture or this Note: (i)
accrued and unpaid interest on the Original Notes being exchanged in the
Exchange Offer shall be due and payable on the next Interest Payment Date for
the Exchange Notes following the Exchange Offer; (ii) interest on the Exchange
Notes to be issued in the Exchange Offer shall accrue from the date the Exchange
Offer is consummated; and (iii) the Exchange Notes shall have no provisions for
Liquidated Damages.
2. Method of Payment. The Company shall pay the principal of, and
premium, interest and Liquidated Damages (if any) on, the Notes on the dates and
in the manner provided herein, in the Indenture and in the Registration Rights
Agreement. Principal of, and premium, interest and Liquidated Damages on,
Definitive Notes will be payable, and Definitive Notes may be presented for
registration of transfer or exchange, at the office or agency of the Company
maintained for such purpose. Principal of, and premium, interest and Liquidated
Damages on, Global Notes will be payable by the Company through the Trustee to
the Depositary by wire transfer of immediately available funds. Holders of
Definitive Notes will be entitled to receive interest payments by wire transfer
in immediately available funds if appropriate wire transfer instructions have
been received in writing by the Trustee not less than 15 days prior to the
applicable Interest Payment Date. Such wire instructions, upon receipt by the
Trustee, shall remain in effect until revoked by such Holder. If wire
instructions have not been received by the Trustee with respect to any Holder of
a Definitive Note, payment of interest and Liquidated Damages, if any, may be
made by check in immediately available funds mailed to such Holder at the
address set forth upon the Register maintained by the Registrar.
3. Paying Agent and Registrar. Initially, Marine Midland Bank, a New
York banking corporation and trust company (the "Trustee"), which term includes
any successor
105
trustee under the Indenture referred to below), will act as Paying Agent and
Registrar. The Company may change the Paying Agent or Registrar without notice
to or consent of the Holders.
4. Indenture. The Company issued the Note under an Indenture, dated as
of February 25, 1998 (the "Indenture"), between the Company and the Trustee. 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 of 1939 (15 U.S. Code
Section 77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture,
except as otherwise provided in the Indenture. Notwithstanding anything to the
contrary herein, the Notes are subject to all such terms, and Holders of Notes
are referred to the Indenture and the TIA for a statement of such terms. The
Notes are general obligations of the Company limited in aggregate principal
amount to $150,000,000. Each Holder, by accepting a Note, agrees to be bound by
all of the terms and provisions of the Indenture, as the same may be amended
from time to time.
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and its Restricted Subsidiaries to incur
additional Indebtedness, pay dividends or make other distributions, repurchase
any capital stock or subordinated Indebtedness, make certain investments, create
certain liens, enter into certain transactions with Affiliates, sell assets,
enter into certain mergers and consolidations, allow Restricted Subsidiaries to
create certain dividend and other payment restrictions, enter into Sale and
Leaseback Transactions, and issue or sell capital stock of Restricted
Subsidiaries. Such limitations are subject to important qualifications and
exceptions. The Company must annually report to the Trustee on compliance with
such limitations. The Indenture requires the Company to cause any Person that
becomes a Restricted Subsidiary after the Closing Date to execute and deliver to
the Trustee a supplemental indenture pursuant to which such Restricted
Subsidiary will Guarantee the Notes.
5. Redemption.
(a) The Notes will not be redeemable prior to March 1, 2002.
Thereafter, the Notes will be subject to redemption at the option of the
Company, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued and unpaid interest and Liquidated Damages (if
any) thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on March 1 of the years indicated below:
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Redemption
Year Price
---- -----
2002................................................................................ 105.8125%
2003................................................................................ 102.9063%
2004 and thereafter................................................................. 100.0000%
(b) Notwithstanding the foregoing, prior to March 1, 2001, the
Company may, on one or more occasions, redeem outstanding Notes with the net
cash proceeds of one or more sales of Capital Stock (other than Disqualified
Stock) of the Company to one or more Persons (but only to the extent the
proceeds of such sales of Capital Stock consist of cash or Cash Equivalents) at
a redemption price equal to 111.625% of the principal amount thereof, plus
accrued and unpaid interest and Liquidated Damages (if any) thereon to the
redemption date; provided, however, that: (i) not less than 65% of the aggregate
principal amount of the Notes initially issued remains outstanding immediately
after any such redemption; and (ii) such redemption shall occur within 60 days
after the date of closing of such sale of Capital Stock.
6. Mandatory Redemption; Offer to Purchase. The Company shall not be
required to make mandatory redemption or sinking fund payments with respect to
the Notes.
Sections 4.14 and 4.15 of the Indenture provide that, after certain
Asset Sales and upon the occurrence of a Change of Control, and subject to the
conditions and limitations contained therein, the Company will make an offer to
purchase certain amounts of the Notes in accordance with the procedures set
forth in the Indenture at a purchase price equal to 101% in the case of a Change
of Control and 100% in the case of Asset Sales, of the principal amount thereof
plus accrued and unpaid interest and Liquidated Damages (if any) to the date of
purchase.
7. Notice of Redemption. Notice of redemption will be given by
first-class mail, postage prepaid, mailed not less than 30 days nor more than 60
days prior to the Redemption Date to each Holder of Notes to be redeemed at such
Holder's registered address as it appears in the Note Register.
Notes to be redeemed shall cease to bear interest from and after the
Redemption Date and the only right of the Holders of such Notes will be to
receive payment of the Redemption Price plus accrued and unpaid interest and
Liquidated Damages (if any).
8. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any
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107
Note being redeemed in part. Also, it need not exchange or register the transfer
of any Notes for a period of 15 days before a selection of Notes to be redeemed
or during the period between a Record Date and the corresponding Interest
Payment Date.
9. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
10. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company, after which all liability of the Trustee and Paying
Agent with respect to such money shall cease.
11. Discharge Prior to Redemption or Maturity. If the Company at any
time deposits with the Trustee U.S. dollars or Government Securities sufficient
to pay the principal of and interest on the Notes to redemption or maturity, and
complies with the other provisions of the Indenture relating thereto, the
Company will be discharged from certain provisions of the Indenture and the
Notes (including certain covenants, but excluding its obligation to pay the
principal of, and interest and Liquidated Damages (if any) payable on, the
Notes).
12. Amendment; Supplement; Waiver. Subject to certain exceptions, the
Indenture, the Notes and the Pledge Agreement may be amended or supplemented
with the written consent of the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding, and certain existing Defaults or
Events of Default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in aggregate principal amount of
the Notes then outstanding. Without notice to or consent of any Holder, the
parties thereto may make such amendments or supplements to, among other things,
cure any ambiguity, defect or inconsistency, provide for uncertificated Notes in
addition to or in place of certificated Notes, comply with Article V of the
Indenture (dealing with certain mergers and consolidations) or make any other
change that does not adversely affect the legal rights of any Holder of a Note.
13. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Notes then outstanding may declare all the Notes to be due and payable
in the manner, at the time and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has received security or indemnity reasonably satisfactory to
the Trustee. The Indenture permits, subject to certain limitations therein
provided, Holders of a majority in aggregate principal amount of the Notes then
outstanding to direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of Notes notice of any continuing Default or
Event of Default (except a Default in payment of principal of, or interest or
Liquidated Damages, if any, payable on the Notes) if it determines that
withholding notice is in the Holders' interest.
14. Pledge Agreement. In order to secure the due and punctual payment
of the principal of, premium, interest and Liquidated Damages, if any, on the
Notes and the payment
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and performance of all other obligations of the Company to the Holders of the
Notes or the Trustee under the Indenture, the Company has granted a first
priority Lien on certain Pledged Securities to the Trustee for the benefit of
the Holders, as more particularly described in the Pledge Agreement. If the
Pledged Securities exceed the amount sufficient, in the opinion of a nationally
recognized firm of independent public accountants selected by the Company, to
provide for payment in full of the first four scheduled interest payments due on
the Notes (or, in the event an interest payment or interest payments have been
made, an amount sufficient to provide for payment in full of any interest
payments remaining, up to and including the fourth scheduled interest payment),
and no Default or Event of Default is then continuing, upon the satisfaction of
certain conditions specified in the Pledge Agreement, any such excess amount of
Pledged Securities shall be returned to the Company. Upon such release and
delivery to the Company, the Lien of the Trustee thereon for the benefit of the
Holders shall be released.
15. Trustee's Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee, subject to the
provisions of TIA Section 310.
16. No Recourse Against Others; Limitation on Liability.
Notwithstanding anything contained in the Indenture or the Notes to the
contrary, (i) except for the Company to the extent provided in clause (ii)
below, no person or entity (including, without limitation, the past, present or
future directors, officers, shareholders and employees of the Company) shall
have any liability whatsoever with respect to or arising out of the Indenture,
the Notes or any of the Company's obligations thereunder or any agreements or
documents executed by the Company in connection therewith and (ii) claims with
respect to the Indenture, the Notes and any obligations thereunder or under any
agreements or documents executed in connection therewith shall be satisfied
solely from the assets of the Company. Each Holder, by accepting a Note, waives
and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
17. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
18. 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 to Minors Act).
19. Additional Rights of Holders of Transfer Restricted Securities. In
addition to the rights provided to Holders under the Indenture, Holders of
Transfer Restricted Securities shall have all the rights set forth in the
Registration Rights Agreement.
20. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a
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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.
21. Governing Law. THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE OF
NEW YORK AS APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
22. Indenture. Each Holder, by accepting a Note, agrees to be bound by
all of the terms and provisions of the Indenture, as the same may be amended
from time to time.
The Company will furnish without charge to any Holder of a Note upon
written request a copy of the Indenture, which has the text of this Note printed
therein. Requests may be made c/o Orbital Imaging Corporation, 00000 Xxxxxxxx
Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000, Attn: Secretary.
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ASSIGNMENT FORM
To assign this Note, fill in the form below and have your signature
guaranteed:(1)
I or we assign and transfer this Note to:
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
(Print or type name, address and zip code and social security or tax ID number
of assignee)
and irrevocably appoint -------------------------------------------------, agent
to transfer this Note on the books of the Company. The agent may substitute
another to act for it.
Date: ---------------------
Signed: -------------------
(Signed exactly as your name appears on the other side of this Note)
Signature Guarantee:
-----------------------------------------
--------
(1) Your Signature must be guaranteed by an Institution which is a member
of one of the following recognized signature Guarantee Programs: (i)
The Securities Transfer Agent Medallion Program; (ii) The New York
Stock Exchange Medallion Program; (iii) The Stock Exchange Medallion
Program; or (iv) any other guarantee program acceptable to the Trustee.
111
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of the declaration by the Securities
and Exchange Commission of the effectiveness of a registration statement under
the Securities Act of 1933, as amended (the "Securities Act") covering resales
of this Note (which effectiveness shall not have been suspended or terminated at
the date of the transfer) and (ii) February 25, 2000, the undersigned confirms
that it has not utilized any general solicitation or general advertising in
connection with the transfer and that this Note is being transferred:
---------------------------
(Check One)
(1) __ to an Issuer or a subsidiary thereof; or
(2) __ pursuant to and in compliance with Rule 144A under the Securities Act; or
(3) __ to an institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act) that has furnished to the Trustee a signed letter containing
certain representations and agreements (the form of which letter is set forth in Annex A to
the Offering Memorandum and which can be obtained from the Trustee); or
(4) __ outside the United States to a "foreign person" in compliance with Regulation S under the
Securities Act; or
(5) __ pursuant to the exemption from registration provided by Rule 144 under the Securities Act;
or
(6) __ pursuant to an effective registration statement under the Securities Act; or
(7) __ pursuant to another available exemption from the registration requirements of the Securities
Act.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Notes evidenced by this certificate in the name of any Person other
than the Holder thereof; provided that if box (3), (4), (5) or (7) is checked,
the Company or the Trustee may require, prior to registering any such transfer
of the Notes, in its sole discretion, such legal opinions, certifications
(including an investment letter in the case of box (3) or (4)) and other
information as the Trustee or the Company may reasonably request to confirm that
such transfer is being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act.
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112
If none of the foregoing boxes is checked, the Trustee or Registrar
shall not be obligated to register this Note in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.6 of the Indenture shall have
been satisfied.
Date: ____________________
Signed: __________________
(Signed exactly as your name appears on the other side of this Note)
Signature Guarantee:
____________________
NOTICE: Your signature must be guaranteed by an Institution which is a member of
one of the following recognized signature Guarantee Programs: (i) The Securities
Transfer Agent Medallion Program; (ii) The New York Stock Exchange Medallion
Program; (iii) The Stock Exchange Medallion Program; or (iv) any other guarantee
program acceptable to the Trustee.
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: ______________________
NOTICE: To be executed by an executive officer
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113
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Company pursuant to
Section 4.14 or Section 4.15 of the Indenture, check the appropriate box:
Section 4.14 [ ]
Section 4.15 [ ]
If you elect to have only part of this Note purchased by the Company
pursuant to Section 4.14 or Section 4.15 of the Indenture, state the amount you
elect to have purchased:
$----------------
Dated: -------------------------
NOTICE: The signature on this assignment must correspond with the name as it
appears upon the face of the within Note in every particular without alteration
or any change whatsoever and be guaranteed by the endorser's bank or broker.
Signature Guarantee:
---------------------------------
NOTICE: Your signature must be guaranteed by an Institution which is a member of
one of the following recognized signature Guarantee Programs: (i) The Securities
Transfer Agent Medallion Program; (ii) The New York Stock Exchange Medallion
Program; (iii) The Stock Exchange Medallion Program; or (iv) any other guarantee
program acceptable to the Trustee.
114
SCHEDULE A
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount at maturity of this Global Note shall be
$_____. The following increases or decreases in this Global Note have been made:
Principal Amount _________________
Amount of :
________ decrease in
________ increase in
of this Global Note (or Exchange Note)
Principal Amount of the Global Note (or Exchange Note) following such increase
or decrease $_______________
MARINE MIDLAND BANK
By:_____________________________________
Authorized Officer
Date: _________________
115
EXHIBIT C
FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL
ACCREDITED INVESTOR
Orbital Imaging Corporation
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, XX 20166
Attention: General Counsel
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Re: 11 5/8% Senior Notes Due 2005
Reference is hereby made to the Indenture, dated as of February 25,
1998 (the "Indenture"), between Orbital Imaging Corporation., as issuer (the
"Company") and Marine Midland Bank, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture. In
connection with our proposed purchase of $____________ aggregate principal
amount of Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A)(1) to a person who we reasonably believe is a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act) in a
transaction meeting the requirements of Rule 144A, (2) in a transaction meeting
the requirements of Rule 144 under the Securities Act, (3) outside the United
States to a person that is not a U.S. person (as defined in Rule 902 under the
Securities Act) in a transaction meeting the requirements of Rule 904 under the
Securities Act, (4) to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) that,
prior to such transfer, furnishes to you a signed letter containing certain
representations and agreements relating to the Notes, or (5) in accordance with
another exemption from the registration requirements of the Securities Act (in
the case of 2, 3, 4 or 5, based upon an opinion of counsel if the Company or the
Trustee so requests), (B) to the Company or (C) pursuant to an effective
registration statement and, in each case, in accordance with any applicable
securities laws of any state of the United States or any other applicable
jurisdiction, and we further agree to provide to any person purchasing the
Certificated Securities or interests therein from us in a transaction meeting
the
C-1
116
requirements of clauses (A) through (C) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or any
interests therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect. We further understand that any subsequent
transfer by us of the Notes or interests therein acquired by us must be effected
through one of the Initial Purchasers.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or interests therein for our own account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion. You and
the Company are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby.
[Insert Name of Accredited Investor]
By:_____________________________________
Name:
Title:
Dated: _________________
