Exhibit 99.8
THIS SUPPLEMENTAL INDENTURE NO. 1 dated as of December 21, 2001 (the
"Supplemental Indenture") among Loral Cyberstar, Inc., (formerly) Orion Network
Systems, Inc., a Delaware corporation, as Issuer, (the "Issuer"), the Subsidiary
Guarantors party hereto, and Bankers Trust Company, a New York banking
corporation, as trustee under the indenture referred to below (the "Trustee") to
the Indenture dated as of January 31, 1997 (the "Original Indenture").
WITNESSETH:
WHEREAS, there has previously been executed and delivered to the
Trustee an Indenture providing for the issuance of the Issuer's 12 1/2% Senior
Discount Notes due 2007 (the "Notes");
WHEREAS, the Issuer has solicited consents from the Holders of certain
amendments (the "Amendments") to the Indenture; and
WHEREAS, the Holders of a majority in aggregate principal amount of the
outstanding Notes have consented to the Amendments in accordance with the
provisions of Section 9.02 of the Indenture.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
premises and covenants contained herein and for other good and valuable
consideration, the parties hereto agree, for the equal and proportionate benefit
of the respective Holders from time to time of the Notes, as follows:
ARTICLE ONE
AMENDMENT OF THE INDENTURE
SECTION 1.01. AMENDMENTS TO THE INDENTURE.
Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.12,
4.13, 4.14, 4.15, 4.18, 4.19, 5.01, 5.02, 6.01 and 6.02 of the Indenture and the
penultimate paragraph of Section 10.01 of the Indenture are amended and restated
in their entirety to read as set forth on Schedule 1 hereto.
ARTICLE TWO
MISCELLANEOUS
SECTION 2.01. EFFECT. The provisions set forth in this Supplemental
Indenture shall be deemed to be, and shall be construed as part of, the
Indenture to the same extent as if set forth fully therein. All references to
the Indenture in the Indenture or in any other agreement, document or instrument
delivered in connection therewith or pursuant thereto shall be deemed to refer
to the Indenture as amended by this Supplemental Indenture. Except as amended
hereby, the Indenture shall remain in full force and effect.
SECTION 2.02. TRUST INDENTURE ACT CONTROLS. If any provision of this
Supplemental Indenture limits, qualifies or conflicts with another provision
that is required by or deemed to be
included in this Supplemental Indenture by the Trust Indenture Act (as such term
is defined in the Indenture), the required or incorporated provision shall
control.
SECTION 2.03. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF).
SECTION 2.04. COUNTERPARTS. This Supplemental Indenture may be executed
in any number of counterparts, each of which shall be original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 2.05. EFFECTIVENESS. This Supplemental Indenture shall not be
effective until the time that is the later of (x) time this Supplemental
Indenture is executed and delivered by the Trustee and (7) the moment
immediately prior to the original issuance of the Issuer's 10% Senior Notes due
2006.
SECTION 2.06. SEVERABILITY. In case any provision in this Supplemental
Indenture 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 2.07. EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the day and year first above written.
LORAL CYBERSTAR, INC.1(1)
By: /s/ Janet T. Yeung
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Name: Janet T. Yeung
Title: Vice President and Assistant Secretary
LORAL CYBERSTAR GLOBAL SERVICES, INC.(2)
By: /s/ Janet T. Yeung
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Name: Janet T. Yeung
Title: Vice President and Assistant Secretary
LORAL CYBERSTAR INTERNATIONAL, INC.(3)
By: /s/ Janet T. Yeung
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Name: Janet T. Yeung
Title: Vice President and Assistant Secretary
ORIONNET, INC.(4)
By: /s/ Janet T. Yeung
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Name: Janet T. Yeung
Title: Vice President and Assistant Secretary
LORAL CYBERSTAR GMBH(5)
By: /s/ Herbert Reska
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Name: Herbert Reska
Title: Managing Director
[SENIOR DISCOUNT NOTES SUPPLEMENTAL INDENTURE]
(1) As successor to ORION NETWORK SYSTEMS, INC., ORION SATELLITE CORPORATION,
ORION OLDCO SERVICES, INC. and INTERNATIONAL PRIVATE SATELLITE PARTNERS,
L.P.
(2) Formerly known as ("f.k.a") LORAL GLOBAL SERVICES, INC.
(3) f.k.a. ORION ATLANTIC EUROPE, INC.; as successor to ORION ASIA PACIFIC
CORPORATION, ASIA PACIFIC SPACE & COMMUNICATIONS, LTD., LORAL ORION
GLOBAL SERVICES, INC. and LORAL ORION NETWORK SYSTEMS - AMERICAS, INC.
(4) As successor to ORIONNET FINANCE CORPORATION.
(5) As successor to TELEPORT EUROPE GMBH.
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LORAL ASIA PACIFIC SATELLITE (HK) LIMITED
By: /s/ Janet T. Yeung
-----------------------------------------------
Name: Janet T. Yeung
Title: Vice President and Assistant Secretary
LORAL CYBERSTAR JAPAN, INC.(6)
By: /s/ Janet T. Yeung
-----------------------------------------------
Name: Janet T. Yeung
Title: Vice President and Assistant Secretary
LORAL CYBERSTAR SERVICES, INC.
By: /s/ Janet T. Yeung
-----------------------------------------------
Name: Janet T. Yeung
Title: Vice President and Assistant Secretary
LORAL CYBERSTAR HOLDINGS, L.L.C.
By: /s/ Janet T. Yeung
-----------------------------------------------
Name: Janet T. Yeung
Title: Vice President and Assistant Secretary
BANKERS TRUST COMPANY, as Trustee
By: /s/ Susan Johnson
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Name: Susan Johnson
Title: Vice President
[SENIOR DISCOUNT NOTES SUPPLEMENTAL INDENTURE]
(6) f.k.a. LORAL ORION JAPAN, INC.
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SCHEDULE 1 TO SUPPLEMENTAL INDENTURE NO. 1
AMENDMENTS TO THE INDENTURE
SECTION 4.02.Intentionally omitted.
SECTION 4.03.Intentionally omitted.
SECTION 4.04.Intentionally omitted.
SECTION 4.05.Intentionally omitted.
SECTION 4.06.Intentionally omitted.
SECTION 4.07.Intentionally omitted.
SECTION 4.08.Intentionally omitted.
SECTION 4.09.Intentionally omitted.
SECTION 4.10.Intentionally omitted.
SECTION 4.12.Intentionally omitted.
SECTION 4.13.Intentionally omitted.
SECTION 4.14.Intentionally omitted.
SECTION 4.15.Intentionally omitted.
SECTION 4.18.Intentionally omitted.
SECTION 4.19.Intentionally omitted.
SECTION 5.01. CONSOLIDATION, MERGER AND SALE OF ASSETS. Each of the
Company and each Guarantor will not consolidate with, merge with or into, or
sell, convey, transfer, lease or otherwise dispose of all or substantially all
of its property and assets (as an entirety or substantially an entirety in one
transaction or a series of related transactions), to, any Person or permit any
Person to merge with or into the Company or any Guarantor unless:
(i) the Company or any Guarantor, as the case may be, shall be
the continuing Person, or the Person (if other than the Company or
Guarantor) formed by such consolidation or into which the Company or
any Guarantor, as the case may be, is merged or that acquired or leased
such property and assets of the Company or as any Guarantor, as the
case may be, shall be a corporation organized and validly existing
under the laws of the United States of America or any jurisdiction
thereof and shall expressly assume, by a supplemental indenture,
executed and delivered to the Trustees, all of the obligations of the
Company or any Guarantor, as the case may be, on all of the Notes and
under the Indenture;
(ii) Intentionally omitted;
(iii) Intentionally omitted;
(iv) Intentionally omitted; or
(v) the Company or Guarantor, as the case may be, delivers to
the Trustee an Officers' certificate and an Opinion of Counsel, in each
case stating that such consolidation, merger or transfer and such
supplemental indenture complies with this provision and that all
conditions precedent provided for herein relating to such transaction
have been complied with.
SECTION 5.02. SUCCESSOR SUBSTITUTED. Upon any consolidation or merger,
or any sale, conveyance, transfer or other disposition of all of substantially
all of the property and assets of the Company or any Guarantor, as the case may
be, in accordance with Section 5.01 of this Indenture, the successor Person
formed by such consolidation or into which the Company or such Guarantor is
merged or to which such sale, conveyance, transfer or other disposition is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company or such Guarantor under this Indenture with the same effect as
if such successor Person had been named as the Company or such Guarantor herein
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the Notes.
SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" shall occur with
respect to the Notes if:
(a) the Company defaults in the payment of principal of (or
premium, if any, on) any Note when the same becomes due and payable at
maturity, upon acceleration, redemption or otherwise;
(b) the Company defaults in the payment of interest on any
Note when the same becomes due and payable, and such default continues
for a period of 30 days;
(c) Intentionally omitted;
(d) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company in this Indenture or under
the Notes (other than a default specified in clause (a) or (b) above)
and such default or breach continues for a period of 30 consecutive
days after written notice by the Trustee or the Holders of 25% or more
in aggregate principal amount at maturity of the Notes;
(e) Intentionally omitted;
(f) Intentionally omitted;
(g) Intentionally omitted;
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(h) Intentionally omitted;
(i) the Note Guarantee shall cease to be, or shall be asserted
in writing by the Company or any Guarantor not to be, in full force and
effect or enforceable in accordance with their respective terms; or
(j) Intentionally omitted.
SECTION 6.02 ACCELERATION. If an Event of Default occurs and is
continuing under the Indenture, the Trustee of the Holders of at least 25% in
aggregate principal amount at maturity of the Notes then outstanding, by written
notice to the Company (and to the Trustee if such notice is given by the
Holders), may, and the Trustee at the request of such Holders shall, declare the
Accreted Value of, premium, if any, and accrued interest on the Notes to be
immediately due and payable. Upon a declaration of acceleration, such Accreted
Value of, premium, if any, and accrued interest shall be immediately due and
payable.
The penultimate of Section 10.01 is amended and restated in its
entirety to read as follows:
Each Guarantor hereby irrevocably defers, until the principal of,
premium, if any, and interest on the Notes shall have been paid in full, any
claim or other rights which it may now or hereafter acquire against the Company
that arise from the existence, payment, performance or enforcement of its
obligations under its Guarantee and this Indenture, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution,
indemnification, any right to participate in any claim or remedy of the Holders
against the Company or any collateral which any such Holder or the Trustee on
behalf of such Holder hereafter acquires, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off of in any other manner,
payment or security on account of such claim or other rights, except (a) each
Transferred Guarantor shall not be subject to the foregoing limitations and (b)
the Company and the Guarantors (other than Transferred Guarantors) shall, at the
request of any Transferred Guarantor, indemnify such Transferred Guarantor for
any amount (including guarantee payments) or expense incurred by such
Transferred Guarantor under its Guarantee. If any amount shall be paid to any
Guarantor (other than a Transferred Guarantor) in violation of the preceding
sentence and the principal of, premium, if any, and accrued interests on the
Notes shall not have been paid in full, such amount shall be deemed to have been
paid to such Guarantor for the benefit of, and held in trust for the benefit of,
the Holders, and shall forthwith be paid to the Trustee for the benefit of the
Holders to be credited and applied upon the principal of, premium, if any, and
accrued interest on the Notes. Each Guarantor acknowledges that it will receive
direct and indirect benefits from the issuance of the Notes pursuant to this
Indenture and that the waivers set forth in this Section 10.01 are knowingly
made in contemplation of such benefits. As used herein, the term "Transferred
Guarantor" refers to any Guarantor engaged in the data business the stock of
which (or the stock of any direct or indirect owner of such stock) is
transferred to a Person other than the Company or another Guarantor.
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