1
Exhibit 4.1
ORBCOMM GLOBAL, L.P.
AND
ORBCOMM GLOBAL CAPITAL CORP.,
AS ISSUERS,
ORBITAL COMMUNICATIONS CORPORATION,
TELEGLOBE MOBILE PARTNERS,
ORBCOMM USA, L.P.
AND
ORBCOMM INTERNATIONAL PARTNERS, L.P.,
AS GUARANTORS,
AND
MARINE MIDLAND BANK,
AS TRUSTEE
AMENDED AND RESTATED INDENTURE
DATED AS OF FEBRUARY 9, 1999
$170,000,000
14% SENIOR NOTES DUE 2004
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ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Incorporation by Reference of Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . .19
SECTION 1.3. Rules of Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
ARTICLE 2.
THE NOTES
SECTION 2.1. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
SECTION 2.2. Execution and Authentication; Aggregate Principal Amount; Denominations. . . . . . . . . . . . . .21
SECTION 2.3. Registrar, Paying Agent and Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . . . .21
SECTION 2.4. Paying Agent to Hold Assets in Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
SECTION 2.5. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
SECTION 2.6. Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
SECTION 2.7. Replacement Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
SECTION 2.8. Outstanding Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
SECTION 2.9. Treasury Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
SECTION 2.10. Temporary Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
SECTION 2.11. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
SECTION 2.12. Payment of Interest; Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
SECTION 2.13. CUSIP Number. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
SECTION 2.14. Deposit of Moneys. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
SECTION 2.15. Book-Entry Provisions for Global Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
SECTION 2.16. Special Transfer Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
ARTICLE 3.
REDEMPTION
SECTION 3.1. Right of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
SECTION 3.2. Mandatory Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
SECTION 3.3. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
SECTION 3.4. Election to Redeem; Notice to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
SECTION 3.5. Notes to Be Redeemed Pro Rata. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
SECTION 3.6. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
SECTION 3.7. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
SECTION 3.8. Notes Payable on Redemption Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
SECTION 3.9. Notes Redeemed in Part. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
ARTICLE 4.
COVENANTS
SECTION 4.1. Payment of Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
SECTION 4.2. Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
SECTION 4.3. Corporate or Partnership Existence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
SECTION 4.4. Payment of Taxes and Other Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
SECTION 4.5. Maintenance of Properties and Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
SECTION 4.6. Compliance Certificate; Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
SECTION 4.7. Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
SECTION 4.8. Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
SECTION 4.9. Waiver of Stay, Extension or Usury Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
SECTION 4.10. Limitation on Restricted Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
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SECTION 4.11. Limitation on Transactions with Affiliates. . . . . . . . . . . . . . . . . . . . . . . . . . . .36
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness or Issuance of Restricted
Subsidiary Disqualified Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries. . . . . . . . . . .38
SECTION 4.14. Limitation on Change of Control. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
SECTION 4.15. Limitation on Asset Sales. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
SECTION 4.16. Limitation on Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
SECTION 4.17. Additional Subsidiary Guarantees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
SECTION 4.18. Conduct of Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
SECTION 4.19. Partners' Contingent Commitment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
SECTION 4.20. Contingency Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
SECTION 4.21. MetLife Segregated Account. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
ARTICLE 5.
MERGER, CONSOLIDATION OR SALE OF ASSETS
SECTION 5.1. Mergers, Consolidations and Certain Sales of Assets. . . . . . . . . . . . . . . . . . . . . . . .43
SECTION 5.2. Successor Substituted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
ARTICLE 6.
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
SECTION 6.2. Acceleration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46
SECTION 6.3. Other Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47
SECTION 6.4. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47
SECTION 6.5. Control by Majority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47
SECTION 6.6. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47
SECTION 6.7. Rights of Holders To Receive Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48
SECTION 6.8. Collection Suit by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48
SECTION 6.9. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48
SECTION 6.10. Priorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49
SECTION 6.11. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49
ARTICLE 7.
TRUSTEE
SECTION 7.1. Duties of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49
SECTION 7.2. Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50
SECTION 7.3. Individual Rights of Trustee and Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
SECTION 7.4. Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
SECTION 7.5. Notice of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
SECTION 7.6. Reports by Trustee to Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
SECTION 7.7. Compensation and Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
SECTION 7.8. Resignation and Removal; Appointment of Successor. . . . . . . . . . . . . . . . . . . . . . . . .52
SECTION 7.9. Acceptance of Appointment by Successor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53
SECTION 7.10. Successor Trustee by Merger, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53
SECTION 7.11. Trustee Required; Eligibility; Disqualification. . . . . . . . . . . . . . . . . . . . . . . . . .53
SECTION 7.12. Preferential Collection of Claims Against Issuers. . . . . . . . . . . . . . . . . . . . . . . . .54
ARTICLE 8.
DEFEASANCE AND SATISFACTION AND DISCHARGE
SECTION 8.1. Defeasance and Covenant Defeasance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54
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SECTION 8.2. Satisfaction and Discharge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55
SECTION 8.3. Survival of Certain Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56
SECTION 8.4. Acknowledgment of Discharge by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56
SECTION 8.5. Application of Trust Moneys and Government Securities. . . . . . . . . . . . . . . . . . . . . . .56
SECTION 8.6. Repayment to the Issuers or the Guarantors; Unclaimed Money. . . . . . . . . . . . . . . . . . . .57
SECTION 8.7. Reinstatement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57
ARTICLE 9.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. Without Consent of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57
SECTION 9.2. With Consent of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
SECTION 9.3. Execution of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
SECTION 9.4. Effect of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
SECTION 9.5. Compliance with Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
SECTION 9.6. Reference in Notes to Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . . . . .59
SECTION 9.7. Revocation and Effect of Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
ARTICLE 10.
GUARANTEE
SECTION 10.1. Unconditional Guarantee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60
SECTION 10.2. Priority of Guarantee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61
SECTION 10.3. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61
SECTION 10.4. Release of a Subsidiary Guarantor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61
SECTION 10.5. Limitation of Subsidiary Guarantor's Liability. . . . . . . . . . . . . . . . . . . . . . . . . .61
SECTION 10.6. Contribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61
SECTION 10.7. Waiver of Subrogation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
SECTION 10.8. Execution of Guarantee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
SECTION 10.9. Waiver of Stay, Extension or Usury Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
SECTION 10.10. Obligations of the Guarantors Unconditional. . . . . . . . . . . . . . . . . . . . . . . . . . . .62
ARTICLE 11.
MISCELLANEOUS
SECTION 11.1. Trust Indenture Act Controls. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63
SECTION 11.2. Notices to Issuers and Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63
SECTION 11.3. Notices to Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63
SECTION 11.4. Trustee, Paying Agent and Registrar Procedures. . . . . . . . . . . . . . . . . . . . . . . . . .64
SECTION 11.5. Compliance Certificates and Opinions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64
SECTION 11.6. Form of Documents Delivered to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64
SECTION 11.7. Acts of Holders; Registered Holders; Record Dates. . . . . . . . . . . . . . . . . . . . . . . . .65
SECTION 11.8. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66
SECTION 11.9. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66
SECTION 11.10. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66
SECTION 11.11. Governing Law; Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66
SECTION 11.12. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66
SECTION 11.13. No Recourse Against Others; Limitation on Liability. . . . . . . . . . . . . . . . . . . . . . . .66
SECTION 11.14. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67
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This AMENDED AND RESTATED INDENTURE, dated as of February 9, 1999, by
and among ORBCOMM Global, L.P., a Delaware limited partnership (the "Company"
or "ORBCOMM") and ORBCOMM Global Capital Corp., a Delaware corporation
("Capital"), as joint and several obligors (each, an "Issuer" and,
collectively, the "Issuers"), each Issuer having its principal office at 2455
Horse Pen Road, Herndon VA 20171, Orbital Communications Corporation, a
Delaware corporation ("OCC"), Teleglobe Mobile Partners, a Delaware general
partnership ("Teleglobe Mobile"), ORBCOMM USA, L.P., a Delaware limited
partnership ("USA"), and ORBCOMM International Partners, L.P., a Delaware
limited partnership ("International" and, together with OCC, Teleglobe Mobile
and USA, the "Guarantors"), each of USA and International having its principal
office at 2455 Horse Pen Road, Herndon VA 20171 , OCC having its principal
office at 21700 Atlantic Boulevard, Dulles, Virginia 20166 and Teleglobe
Mobile, having its principal office at 1000, rue de La Gauchetiere ouest,
Montreal, Quebec H3B 4X5, Canada and Marine Midland Bank, a New York banking
corporation and trust company, as trustee (the "Trustee").
RECITALS:
WHEREAS, the Issuers, the Guarantors and the Trustee entered into that
certain Indenture dated as of August 7, 1996 (the "Original Indenture") and
wish to amend and restate the Original Indenture, to the extent set forth
herein, (the "Amended Indenture");
WHEREAS, the Issuers have duly authorized the issuance of $170,000,000
aggregate principal amount of their 14% Senior Notes due August 15, 2004 (the
"Notes") of substantially the tenor and amount hereinafter set forth, and to
provide therefor the Issuers and the Guarantors have duly authorized the
execution and delivery of the Original Indenture; and
WHEREAS, all things necessary to make the Notes, when executed by the
Issuers and authenticated and delivered hereunder, duly issued by the Issuers,
the valid obligations of the Issuers and the Guarantors, and to make this
Amended Indenture a valid and binding agreement of the Issuers and the
Guarantors, 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 1.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. DEFINITIONS.
"Acceleration Notice" has the meaning set forth in Section 6.2(a).
"Accrual Period" has the meaning set forth in the form of the Note
attached hereto as Exhibit 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.
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"Act" has the meaning set forth in Section 11.7.
"Administrative Services Agreement" means the Administrative Services
Agreement dated as of September 12, 1995 between Orbital and the Company.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities (or the
equivalent) of a Person shall be deemed to be control.
"Agent Member" shall mean members of, or participants in, the
Depositary.
"Amendment Date" means the date of this Amended Indenture.
"Asset Sale" means:
(i) the sale, lease, conveyance or other disposition of
any assets, other than the sale or other disposition by a Credit Party
of an Equity Interest in any other Credit Party (including, without
limitation, by way of a sale and leaseback) (provided that the sale,
lease, conveyance or other disposition of all or substantially all of
the assets of the Credit Parties and their Restricted Subsidiaries
taken as a whole will be governed by the provisions of Section 4.14
and/or Article V hereof and not by the provisions of Section 4.15);
and
(ii) except to the extent excluded by clause (i) above,
(a) the issuance by any of the Credit Parties' Restricted Subsidiaries
of Equity Interests, (b) the issuance of Equity Interests by any
Special Purpose Entity that is not, immediately prior to such
issuance, a Minority-Owned Special Purpose Entity and only to the
extent a Credit Party or its Restricted Subsidiaries receive cash
proceeds from such issuance or (c) the sale by the Credit Parties or
any of their Restricted Subsidiaries of Equity Interests of any of
their Subsidiaries (except Special Purpose Entities that are,
immediately prior to such sale, Minority-Owned Special Purpose
Entities),
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 $5 million; or (b) for net proceeds in excess of $5 million.
Notwithstanding the foregoing: (i) sales of territory and ORBCOMM System rights
to resellers, grants of licenses and other associated rights to use the ORBCOMM
System to international licensees and sales of services, products or inventory
in the ordinary course of business; (ii) a transfer of assets by any of the
Credit Parties to any other Credit Party or to a Restricted Subsidiary of any
of the Credit Parties or by a Restricted Subsidiary to any of the Credit
Parties or to a Restricted Subsidiary of any of the Credit Parties; (iii) an
issuance of Equity Interests by a Restricted Subsidiary of any of the Credit
Parties to any of the Credit Parties or to a Wholly Owned Restricted Subsidiary
of any Credit Party; and (iv) a Permitted Investment or a Restricted Payment
that is permitted by Section 4.10 will be deemed not 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).
"Authenticating Agent" has the meaning set forth in Section 2.3.
"Bank Credit Facility" means one or more credit facilities (whether a
term or a revolving facility) of the type customarily entered into with
commercial banks, between the Company and any of the other Credit Parties, on
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the one hand, and any commercial banks, financial institutions or other
lenders, on the other hand, which Bank Credit Facilities are by their terms
designated as a "Bank Credit Facility" for purposes of this Indenture.
"Business Day" means any day other than a Saturday, Sunday or legal
holiday 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.
"Canada Service License Agreement" means the Service License Agreement
dated as of December 19, 1995 between ORBCOMM International and ORBCOMM Canada
Inc.
"Capital" means ORBCOMM Global Capital Corp., a Delaware corporation,
or its successor.
"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.
"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
another currency freely convertible into U.S. dollars.
"Cash Equivalents" means:
(i) U.S. 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 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 Moody's 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(c).
3
8
"Change of Control" means:
(i) 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 Credit
Parties and their Restricted Subsidiaries (other than any such
transfer to any other Credit Party or any Wholly Owned Restricted
Subsidiary of a Credit Party);
(ii) the adoption of a plan relating to the liquidation or
dissolution of any of the Credit Parties (other than any such
liquidation or dissolution to or for the benefit of any other Credit
Party or any Wholly Owned Restricted Subsidiary of a Credit Party);
(iii) at any time prior to the date on which at least 20
satellites have been launched and tested and, together with the
related ground systems, are reasonably believed by the Company to be
ready for commercial operation as part of the ORBCOMM System, such
time as Orbital ceases, directly or indirectly, including by way of a
consolidation or merger, either (a) to be the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act) of (1) at least 70% of
the total Voting Equity Interests of OCC or (2) at least 50% of the
total Voting Equity Interests of the Company or (b) to be the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act)
of (1) at least 70% of the total Equity Interests of OCC or (2) at
least 50% of the total Equity Interests of the Company; provided,
however, that in the event Orbital beneficially owns more than 50% of
the total Voting Equity Interests of OCC, then Orbital shall be deemed
to beneficially own 100% of OCC's interest in the Company; and
provided, further, that notwithstanding the foregoing provisions of
this clause (iii), it shall not constitute a Change of Control in the
event OCC sells, transfers, conveys or otherwise disposes of Equity
Interests in the Company to a Strategic Investor, or the Company
issues Equity Interests to a Strategic Investor, in each case such
that, following such sale or issuance, OCC owns not less than 35% of
the fully diluted Equity Interests of the Company (provided that prior
to any such sale or issuance the partners shall amend the Company's
limited partnership agreement so that all actions taken by or on
behalf of the Company that require the approval of OCC pursuant to the
terms of the Company's limited partnership agreement as in effect on
the Issue Date shall continue to require the approval of OCC following
such sale or issuance);
(iv) at any time after the date on which at least 20
satellites have been launched and tested and, together with the
related ground systems, are reasonably believed by the Company to be
ready for commercial operation as part of the ORBCOMM System, such
time as Orbital and Teleglobe, collectively, cease, directly or
indirectly, including by way of a consolidation or merger, either (a)
to be the "beneficial owners" (as defined in Rule 13d-3 under the
Exchange Act) of at least 40% of the total outstanding Voting Equity
Interests of the Company or (b) to be the "beneficial owners" (as
defined in Rule 13d-3 under the Exchange Act) of at least 40% of the
total outstanding Equity Interests of the Company; provided, however,
that in the event Orbital or Teleglobe, as the case may be,
beneficially owns more than 50% of the total outstanding Voting Equity
Interests of OCC or Teleglobe Mobile, respectively, then Orbital or
Teleglobe, as the case may be, shall be deemed to beneficially own
100% of OCC's or Teleglobe Mobile's interest, respectively, in the
Company; or
(v) at any time prior to the date on which at least 20
satellites have been launched and tested and, together with the
related ground systems, are reasonably believed by the Company to be
ready for commercial operation as part of the ORBCOMM System, the
admission of any Person as a general partner of the Company after
which OCC and Teleglobe Mobile do not, collectively, retain the
exclusive power to take all of the actions which they are entitled to
take under the limited partnership agreement of the Company, as in
effect on the Issue Date by vote of a Majority in Interest or a Super
Majority in Interest (as such terms are defined in the Company's
limited partnership agreement as in effect on the Issue Date).
provided, however, that for purposes of any of the foregoing calculations, all
options to acquire, directly or indirectly, Capital Stock of OCC, the Company
or the Public General Partner under the Stock Option Plans and shares of
Capital Stock issued or issuable upon exercise thereof shall not be deemed to
be outstanding.
4
9
"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.
"Company" means ORBCOMM Global, L.P., a Delaware limited partnership,
or its successor.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period, 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 less consolidated
interest income of such Person and its Restricted Subsidiaries for
such period; 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;
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 that is not a Subsidiary Guarantor 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, 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, Revenue Participation Interest on the Notes, 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).
5
10
"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 an Unrestricted Subsidiary or
Person 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
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; and
(iv) the cumulative effect of a change in accounting
principles shall be excluded.
"Consolidated Net Worth" means, with respect to any Person as of any
date:
(i) the common equity 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 the Indenture in the book
value of any asset owned by such Person or a consolidated Restricted
Subsidiary of such Person; minus
(iv) all investments as of such date 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.
"Contingency Event" shall have the meaning set forth in Section 4.19.
"Contingency Fund" shall have the meaning set forth in Section 4.20.
"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).
6
11
"Credit Parties" means, collectively, the Issuers and any Guarantor
other than any Subsidiary Guarantor established after the Issue Date, and any
of their respective successors.
"Credit Parties' Fixed Charge Coverage Ratio" means, for any period,
the ratio of (A) the sum of (without duplication) (1) Consolidated Cash Flow of
the Company (excluding the Consolidated Cash Flow of USA and International),
plus (2) Consolidated Cash Flow of USA, plus (3) Consolidated Cash Flow of
International to (B) the Credit Parties' Fixed Charges for such period.
"Credit Parties' Fixed Charges" means, for any period, the sum of (i)
the sum of (without duplication) Consolidated Interest Expense of each of the
Credit Parties for such period, plus (ii) the sum of (without duplication)
Consolidated Interest Expense of each of the Credit Parties that was
capitalized during such period, plus (iii) to the extent not included above,
any Consolidated Interest Expense on Indebtedness of another Person that is
guaranteed by any of the Credit Parties or secured by a Lien on assets of any
of the Credit Parties (whether or not such guarantee or Lien is called upon).
"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.
"Defeasance" has the meaning set forth in Section 8.1(b).
"Deficiency Amount" has the meaning set forth in Section 4.19.
"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 Capital Contribution" means, with respect to any of the
Credit Parties, any contribution to the equity capital of such Person that (i)
when added to all prior contributions to any of the Credit Parties, results in
total contributed capital equal to or less than $160 million, without
duplication; or (ii) in the case of the Company, comprises proceeds of any
transaction other than (x) a contribution to the equity capital of OCC and/or
Teleglobe Mobile that is in turn contributed to the equity capital of the
Company or (y) a contribution to the equity capital of the Company from a party
other than OCC and Teleglobe Mobile.
"Disqualified Stock" means, with respect to any Person, 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), or upon the happening of any
event: (i) matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise; 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.
"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 Moody's at the time as of which any investment or rollover therein is
made.
"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).
"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 Offer" has the meaning set forth in Section 2.2.
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12
"Exchange Offer Registration Statement" has the meaning set forth in
Section 2.2.
"Exchange Note" means any Note issued in exchange for an Original Note
pursuant to the Exchange Offer or the Private Exchange Offer.
"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 price (after
taking into account any liabilities relating to such assets) which could be
negotiated in an arm's-length free market transaction, for cash, 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: (i) prior to the Offering, by the
general partners of the Company, and (ii) subsequent to the Offering, by the
governing body of the Company, provided, however, in the case of a
determination for purposes of clause (vi) of the definition of Permitted
Investment, by the affirmative vote of a majority of the members of the
governing body of the Company, which majority shall include at least one member
that is not affiliated with any of the general partners of the Company (other
than the Public General Partner), in each case acting in good faith and which
determination shall be evidenced by an Officers' Certificate delivered to the
Trustee.
"FCC License" means the FCC authorization granted to OCC on October
20, 1994 to construct, launch and operate 36 satellites for the purpose of
providing two-way data and messaging communications and position determination
services in the United States.
"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.
"Gateway Maintenance Contract" means the Gateway Maintenance Contract
between the Company and Orbital effective as of August 1, 1996, as the same may
be amended, supplemented or otherwise modified from time to time.
"Global Note" has the meaning set forth in Section 2.1.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"Guarantee" means each of the guarantees of the Guarantors pursuant to
Article X hereof.
"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.
"Guarantor" means each of USA, International, OCC and Teleglobe
Mobile, and any other Person that guarantees the obligations of the Issuers
under the Notes and this Indenture in accordance with the provisions of this
Indenture, and their respective successors and assigns.
"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.
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13
"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 the book value or Fair Market Value of
such asset) and, to the extent not otherwise included, the guarantee by such
Person of any indebtedness of any other Person; provided, however, that amounts
outstanding under the MetLife Note shall not constitute "Indebtedness;" and
provided, further, that "Indebtedness" shall be calculated in all cases without
duplication and after elimination of Intercompany Indebtedness.
"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) four times Consolidated Cash Flow of such Person and
its Restricted Subsidiaries for the most recently ended fiscal quarter
for which financial statements of such Person are available (the
"Measurement Period");
provided, however, that: (a) in making such computation, the total Indebtedness
of such Person and its Restricted Subsidiaries shall include the total amount
of funds outstanding and available under any credit facilities; (b) in the
event such Person or any of its Restricted Subsidiaries consummates a material
acquisition or sale of assets 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 or sale of assets as if the same had
occurred at the beginning of the Measurement Period; and (c) in making such
calculation for the Credit Parties, total Indebtedness shall include total
Indebtedness of the Credit Parties and their respective Restricted Subsidiaries
and Consolidated Cash Flow shall include only the sum of (without duplication)
(1) the Consolidated Cash Flow of the Company(excluding the Consolidated Cash
Flow of USA and International), plus (2) the Consolidated Cash Flow of USA,
plus (3) the Consolidated Cash Flow of International.
"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 General Partners of the Company (evidenced by a unanimous
resolution of the General Partners 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
Credit Parties and their Affiliates.
"Initial Deployment Date" has the meaning set forth in Section 4.19.
"Initial Purchasers" means Bear, Stearns & Co. Inc., J.P. Morgan
Securities Inc. and RBC Dominion Securities Corporation.
"Institutional Accredited Investor" shall mean an institutional
investor described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
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14
"Insurance Account" has the meaning set forth in Section 4.5(c).
"Insurance Contingency Event" has the meaning set forth in Section
4.5(c).
"Insurance Launch Deficiency Amount" has the meaning set forth in
Section 4.5(c).
"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, the date specified in such Note as the fixed date on
which such installment of interest is due and payable.
"International" means ORBCOMM International Partners, L.P., a Delaware
limited partnership, or its successors
"Internal VAR Assets" means all the tangible and intangible assets of
the Company as of the Amendment Date, used primarily in or developed primarily
for the Company's internal value-added reseller operations, for marketing,
developing or distributing the Company's monitoring, tracking and messaging
services to end-users or for developing applications with respect to the
foregoing, comprising the tangible and intangible assets of (i) ControlSat and
Vantage (the two internally developed value-added resellers operating as
divisions of the Company as of the Amendment Date that market and distribute
the Company's monitoring and tracking services to the oil and gas and
transportation industries, respectively) and (ii) internal value-added
resellers that will offer monitoring, tracking and/or messaging services to the
heavy equipment, utility, automotive, consumer or remote worker market
segments, regardless of whether such resellers are operating as separate
divisions as of the Amendment Date.
"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 any Credit Party shall not
be deemed to be an Investment.
"Issue Date" means the date on which the Notes are first authenticated
and delivered under this Indenture.
"Issuers" means each of ORBCOMM and Capital.
"Joint Venture" means a Person in a Related Business in which any
Credit Party holds 50% or less of the Voting Equity Interests.
"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 Section 2(e) of the
Registration Rights Agreement dated as of August 7, 1996 among the Issuers, the
Guarantors and the Initial Purchasers, as the same may be amended, supplemented
or otherwise modified from time to time.
"Magellan Agreement" means the Subscriber Communicator Manufacturing
Agreement between the Company and Magellan Corporation dated as of July 31,
1996, as the same may be amended, supplemented or otherwise modified from time
to time.
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"Marketable Securities" means:
(i) Government Securities;
(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 Credit Parties) 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.
"Maturity Date" means August 15, 2004, or such other date principal of
the Notes becomes due and payable under this Indenture.
"MetLife Note" means the Loan and Security Agreement dated December
22, 1994 between the Company and MetLife Capital Corporation, as the same may
be amended, supplemented or otherwise modified from time to time, which loan is
guaranteed by Orbital.
"Monthly Revenue Participation Interest" means, with respect to any
month and any Note, the product of 5.0% of System Revenue for such month times
a fraction, the numerator of which is the principal amount outstanding on such
Note and the denominator of which is $170,000,000.
"Minority-Owned Special Purpose Entity" means a Special Purpose Entity
in which any Credit Party or Restricted Subsidiary or any Person controlled by
a Credit Party or Restricted Subsidiary owns, directly or indirectly, 50% or
less of the outstanding Voting Equity Interests of such Special Purpose Entity.
"Moody's" means Moody's Investors Service, Inc. or its successors.
"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 the aggregate cash proceeds received by any of
the Credit Parties or any of their Restricted Subsidiaries in respect of any
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
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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).
"Non-Recourse Debt" means Indebtedness:
(i) as to which neither any of the Credit Parties nor any
of their 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;
(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 any of the
Credit Parties or any of their 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 Credit Parties or any of their Restricted Subsidiaries.
"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.
"OCC" means Orbital Communications Corporation, a Delaware
corporation, or its successors.
"OCC Stock Option Plan" means the Orbital Communications Corporation
1992 Stock Option Plan, as the same may be amended from time to time.
"Offering" means an underwritten initial public offering of shares of
common stock by the Public General Partner pursuant to an effective
registration statement under the Securities Act of 1933, as amended.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer or President and the chief
financial or accounting officer of such Person, or their equivalent.
"Opinion of Counsel" means a written opinion of legal counsel
acceptable to the Trustee, and delivered to the Trustee.
"ORBCOMM" means ORBCOMM Global, L.P., a Delaware limited partnership,
or its successors.
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"ORBCOMM System" means ORBCOMM's global digital satellite
communications system of low-earth orbit satellites and certain terrestrial
facilities intended to provide two-way data and messaging communications
services throughout the world.
"Orbital" means Orbital Sciences Corporation, a Delaware corporation.
"Original Notes" means the Notes initially issued under this Indenture
prior to the issuance of the Exchange Notes.
"Partnership Agreement" means the amended and restated partnership
agreement of ORBCOMM Global, L.P., dated September 12, 1995, as the same may be
amended or amended and restated from time to time in accordance with the terms
thereof.
"Partners' Contingent Commitment" shall mean a commitment by Orbital
and Teleglobe to provide, in the aggregate, to the Company up to the lesser of
(x) $30 million less amounts drawn under the Partners' Insurance Contingent
Commitment or (y) the Deficiency Amount or (z) the amount required to complete
deployment of, and place in commercial service, 20 satellites, in capital
contributions or debt financing expressly subordinated to the Notes (at then
prevailing interest rates, which subordinated debt financing shall not mature
or be subject to acceleration prior to maturity of the Notes and which shall
not provide for cash interest payments prior to maturity of the Notes) from and
after a Contingency Event through the Initial Deployment Date.
"Partners' Insurance Contingent Commitment" has the meaning set forth
in Section 4.5(c).
"Paying Agent" has the meaning set forth in Section 2.3.
"Permitted Investment" means:
(i) any Investment in any Credit Party or in any
Restricted Subsidiary of any Credit Party;
(ii) any Investments in cash or Cash Equivalents;
(iii) Investments by any of the Credit Parties or any of
their Restricted Subsidiaries in a Person if, as a result of such
Investment:
(a) such Person becomes a Restricted Subsidiary
of any Credit Party; 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, any
Credit Party or any Restricted Subsidiary of any Credit Party;
(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;
(v) any Investment made with Excess Proceeds remaining
after the consummation of an Asset Sale Offer as described in Section
4.15;
(vi) any Investments in any Special Purpose Entity
provided that the aggregate value of all such Investments made since
the Amendment Date, the value of each such Investment being its Fair
Market Value at the time such Investment was made (except that
Investments consisting of assets of the type generally described under
the definition of Internal VAR Assets but developed after the
Amendment Date shall be valued at historical cost), does not exceed
the sum of (x) the amount equal to the aggregate proceeds (less
appropriate fees and expenses and without duplication) received by the
Company from the issuance and sale of its Capital Stock (other than
Disqualified Stock) or from capital contributions made to the Company
by holders of its Capital Stock on or after the Amendment Date but not
including proceeds
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used to make Permitted Investments pursuant to clause (viii) of the
definition thereof or to make Restricted Payments pursuant to clause
(ii) or (iii) of Section 4.10(b) or clause (c)(2) of Section 4.10(a)
hereof, such amount not to exceed $30 million plus (y) cumulative
Consolidated Cash Flow less 2.0 times cumulative Consolidated Interest
Expense as determined from the beginning of the first fiscal quarter
commencing after the Amendment Date to the end of the Company's most
recently completed fiscal quarter for which financial statements are
available, taken as one accounting period, to the extent such amount
under this subclause (y) is greater than zero, provided, however, of
the foregoing amounts, the aggregate value of Investments in all
Minority-Owned Special Purpose Entities (classified as such at the
time of Investment) shall not exceed one-third of the sum of clauses
(x) and (y) above, and provided further, that the contribution or
transfer of Internal VAR Assets to one or more Special Purpose
Entities pursuant to subparagraph (x) shall not be included in
determining the maximum aggregate value of Investments permitted to be
made pursuant to this clause (vi);
(vii) Investments in any 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 made under this
clause (vii) to exceed the greater of (x) $5 million or (y) 5% of the
System Consolidated Net Worth;
(viii) any Investment made by the Credit Parties or any of
their Restricted Subsidiaries in any Unrestricted Subsidiary using the
proceeds of a substantially concurrent contribution to the equity
capital (other than a Disqualified Capital Contribution) of the
Company, OCC and/or Teleglobe Mobile;
(ix) any Investment made by the Credit Parties or any of
their Restricted Subsidiaries in a Related Business; provided that at
the time any such Investment is made, such Investment will not cause
the aggregate amount of Investments at any one time made under this
clause (ix) to exceed (a) $5 million; and
(x) any Investment made by means of a contribution or
transfer of Internal VAR Assets to one or more Special Purpose
Entities.
For purposes of determining compliance with this definition of Permitted
Investment, in the event that any particular Investment meets the criteria of
more than one of the categories described in clause (i) through (x) of this
definition or is entitled to be made pursuant to paragraph (a) of Section 4.10,
the Company shall, in its sole discretion, classify or reclassify such item in
any manner that complies with this definition or paragraph (a) of Section 4.10
and such item will be treated as having been made pursuant to only one of such
clauses or pursuant to paragraph (a) of Section 4.10. To the extent that any
Permitted Investment that was made pursuant to clauses (vi), (vii), (viii) or
(ix) of this definition of Permitted Investment on or after the Amendment Date
is sold for cash or otherwise liquidated or repaid for cash, the amount
available therefor for Permitted Investments shall include the lesser of (a)
the cash return of capital with respect to such Permitted Investment (less the
cost of disposition, if any) and (b) the initial amount of such Permitted
Investment.
"Permitted Liens" means:
(i) Liens securing the Notes;
(ii) Liens in favor of the Credit Parties;
(iii) Liens on property of a Person existing at the time
such Person is merged into or consolidated with any of the Credit
Parties or any of their 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 such Credit Party or its
Restricted Subsidiary;
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(iv) Liens on property existing at the time of acquisition
thereof by any of the Credit Parties or any of their 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 gateways and related ground systems securing up
to $40 million in principal amount at any one time outstanding of: (a)
Indebtedness incurred under clause (vii) of Section 4.12(b), or (b)
Permitted Refinancing Indebtedness incurred pursuant hereto to
refinance Indebtedness under clause (vii) of Section 4.12;
(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 on assets of Unrestricted Subsidiaries that
secure Non-Recourse Debt of Unrestricted Subsidiaries; and
(x) Liens on any assets of the Credit Parties or their
Restricted Subsidiaries securing up to $10 million in principal amount
of Indebtedness at any one time outstanding permitted under Section
4.12(b).
"Permitted Refinancing Indebtedness" has the meaning set forth in
Section 4.12(b).
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"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 Issuers and the Collateral Agent governing
the Pledge Account, as the same may be amended, supplemented or otherwise
modified from time to time.
"Pledged Securities" means the Government Securities purchased by the
Issuers with a portion of the net proceeds from the Offering to be deposited in
the Pledge Account and pledged as security for the Notes.
"Private Exchange Offer" has the meaning set forth in Section 2.2.
"Private Placement Legend" has the meaning set forth in Section 2.1.
"Proceeds Purchase Date" has the meaning set forth in Section 4.15.
"Procurement Agreement" means the ORBCOMM System Procurement Agreement
dated as of September 12, 1995, between ORBCOMM and Orbital, as the same may be
amended, supplemented or otherwise modified from time to time.
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"Public General Partner" means any Person whose common stock is
offered and sold to the public in the Offering and the net proceeds therefrom
are contributed to, or used to acquire a general partner interest, in the
Company.
"Purchase Agreement" means the Purchase Agreement, dated as of August
2, 1996, between the Issuers, the Guarantors and the Initial Purchasers, as the
same may be amended, supplemented or otherwise modified from time to time.
"QIB" means a "qualified institutional buyer" within the meaning of
Rule 144A under the Securities Act.
"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.
"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.
"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 Assets" means all assets used in connection with the design,
development, procurement, installation, operation or marketing of
satellite-based messaging and data communications systems and any activities or
assets ancillary thereto.
"Related Business" means any business relating to the design,
procurement, installation and operation of satellite-based messaging and data
communications systems or the marketing, development or distribution of
satellite-based messaging or data communications products or services.
"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.
"Revenue Participation Interest" means, as of any payment date,
Revenue Participation Interest on the Notes accrued through the Accrual Period
last ended (including any Accrual Period that ends on such payment date) and
any Revenue Participation Interest previously accrued and the payment of which
has been permitted to be deferred.
"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.
"Securities Act" means the Securities Act of 1933, as amended (or any
successor act) and the rules and regulations thereunder.
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"Semi-annual Period" means each period that begins on January 1 and
ends on the next succeeding June 30 or each period that begins on July 1 and
ends on the next succeeding December 31.
"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.
"Special Purpose Entity" means, with respect to any Person, any (i)
Joint Venture in which such Person, directly or indirectly, owns an Equity
Interest, whether or not controlled by such Person, or (ii) a Subsidiary of
such Person, which such Joint Venture or Subsidiary has been designated by such
Person as a Special Purpose Entity that engages primarily in value-added
reseller operations, that markets, develops or distributes the Company's
monitoring, tracking or messaging services or that develops applications in
connection with the foregoing, and, except as specified below, otherwise
qualifies as an Unrestricted Subsidiary. For purposes of this Indenture, a
Special Purpose Entity shall be deemed to be, and treated as, an Unrestricted
Subsidiary except (a) that a Special Purpose Entity does not need to meet the
requirements of clause (v) of the definition of Unrestricted Subsidiary, (b) a
Credit Party may, subject to the limitations contained in clause (vi) of the
definition of Permitted Investments, constitute a lender of Indebtedness to a
Special Purpose Entity notwithstanding clause (i)(c) of the definition of
Non-Recourse Debt and (c) in the case of a Joint Venture or Minority-Owned
Special Purpose Entities so designated, the requirement that an Unrestricted
Subsidiary be a Subsidiary of the Person shall not apply.
"Strategic Investor" means, for purposes of clause (iii) of the
definition of "Change of Control," a Person having a total market
capitalization of at least $750 million and a long-term debt rating assigned by
either of Moody's or S&P of investment grade.
"Stock Option Plans" means the OCC Stock Option Plan and any form of
stock or equity ownership plan of the Public General Partner either by itself
or together with the Company.
"Subsidiary" means, with respect to any Person:
(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 Issuers' obligations
under this Indenture and the Notes given by a Subsidiary Guarantor.
"Subsidiary Guarantor" means USA, International and any Restricted
Subsidiary of a Credit Party that has issued a Guarantee of the Issuers'
obligations under this Indenture and the Notes.
"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.
"System Consolidated Net Worth" means the sum of (without duplication)
the Consolidated Net Worth of each of the Credit Parties, reflecting
elimination of intercompany transactions.
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"System Revenue" means, for any period, the sum of , the gross revenue
of each of the Credit Parties and their Restricted Subsidiaries, without
duplication and reflecting elimination of intercompany transactions and without
giving effect to any consolidation of Persons that are not Credit Parties or
Restricted Subsidiaries of Credit Parties. Such revenue shall include fees
received from Special Purpose Entities for use of the ORBCOMM System.
"Tax Sharing Agreement" means the Tax Sharing Agreement between
Orbital and OCC dated as of August 1, 1996, as the same may be amended,
supplemented or otherwise modified from time to time.
"Teleglobe" means Teleglobe Inc., a Canadian corporation, or its
successors.
"Teleglobe Administrative Services Agreement" means the Administrative
Services Agreement between the Company and Teleglobe dated August 7, 1996, as
the same may be amended, supplemented or otherwise modified from time to time.
"Teleglobe Mobile" means Teleglobe Mobile Partners, a Delaware general
partnership, or its successors.
"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.
"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.
"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 any of the Credit Parties or any Restricted
Subsidiary of any of the Credit Parties unless the terms of any such
agreement, contract, arrangement or understanding are no less
favorable to such Credit Party or such Restricted Subsidiary than
those that might be obtained at the time from Persons who are not
Affiliates of any of the Credit Parties;
(iii) is a Person with respect to which neither any Credit
Party nor any of their 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
Credit Parties or any of their Restricted Subsidiaries (other than
Subsidiary Guarantees under this Indenture); 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 any of the Credit Parties or any of their
Restricted Subsidiaries.
A Credit Party may designate any Restricted Subsidiary of such Credit
Party 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 that in no
event shall all or any portion of the assets or properties (other
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than cash or Internal VAR Assets) owned by the Credit Parties on the Issue Date
be transferred to or held by an Unrestricted Subsidiary of any of the Credit
Parties . For purposes of such designation, all outstanding Investments by the
Credit Parties and their Restricted Subsidiaries (except to the extent repaid
in cash and except for Investments described in clauses (vi) or (viii) 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 subclause (c)(1)
through (c)(3) of Section 4.10(a). 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.
"USA" means ORBCOMM USA, L.P., a Delaware limited partnership, or its
successors.
"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.
"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; provided, however, that with respect to any Credit
Party, the term "Wholly Owned Restricted Subsidiary" shall mean any Restricted
Subsidiary of such Credit Party all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned, directly or indirectly, by all of the Credit Parties,
considered as one enterprise.
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 Issuers, the Guarantors, or any other obligor on the Notes
or the Guarantees.
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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 words importing the singular numbers shall mean and
include the plural number, and vice versa;
(2) accounting terms used herein and not
otherwise defined have the meanings ascribed to them in
accordance with GAAP;
(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, and any table
of contents or marginal notes appended to copies hereof, 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 2.
THE NOTES
SECTION 2.1. FORMS GENERALLY.
The Original Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Exchange Notes and
the Trustee's certificate of authentication shall be substantially in the form
of Exhibit B hereto. The Notes may have such notations, legends or endorsements
required by this Indenture, applicable law, securities exchange rule or
depository rule or usage. The Issuers, the Guarantors and the Trustee shall
approve the form of the Notes and any notation, legend or endorsement thereon.
Each Note shall be dated the date of its authentication.
The terms and provisions contained in the Notes, annexed hereto as
Exhibit A and Exhibit B, shall constitute, and are hereby expressly made, a
part of this Indenture and, to the extent applicable, the Issuers, the
Guarantors and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent global Notes in registered form,
substantially in the form of Exhibit A hereto (the "Global Note"), registered
in the name of the Depository or its nominee, deposited with the Trustee, as
custodian for the Depository, and shall bear the legend set forth in Exhibit A
hereto (the "Private Placement Legend"), duly executed by the Company and
authenticated by the Trustee as hereinafter provided.
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SECTION 2.2. EXECUTION AND AUTHENTICATION; AGGREGATE PRINCIPAL AMOUNT;
DENOMINATIONS.
The Notes shall be executed on behalf of the Issuers by the Chief
Executive Officer, President, an Executive Vice President or a Vice President
of the Company and Capital. The signature of any of these officers on the Notes
may be manual or facsimile.
Notes bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company and/or Capital shall bind
the Issuers, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such Notes or
did not hold such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuers may deliver Notes executed by the Issuers to the
Trustee for authentication, together with a request for the authentication and
delivery of such Notes, and the Trustee, in accordance with such request, shall
authenticate and deliver such Notes as provided in this Indenture.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee shall authenticate (i) Original Notes for original issue
in the aggregate principal amount not to exceed $170,000,000, and (ii) Exchange
Notes issued, either (x) in an exchange offer (the "Exchange Offer") for the
Original Notes pursuant to a registration statement (the "Exchange Offer
Registration Statement") filed with the Commission from time to time or (y) in
a private exchange offer (the "Private Exchange Offer") pursuant to the Section
2(a) of the Registration Rights Agreement, for issue only in exchange for a
like principal amount of Original Notes, in each case upon written orders of
the Issuers in the form of an Officers' Certificate. The Officers' Certificate
shall specify the amount of Notes to be authenticated and the date on which the
Notes are to be authenticated, whether the Notes are to be Original Notes or
Exchange Notes. Except as contemplated by Section 2.7 hereof, the aggregate
principal amount of Notes outstanding at any time may not exceed $170,000,000.
The Notes shall be issuable in fully registered form only, without
coupons, in denominations of $1,000 and any integral multiple thereof, subject
to a minimum initial purchase amount of $100,000.
SECTION 2.3. REGISTRAR, PAYING AGENT AND AUTHENTICATING AGENT.
The Issuers shall maintain an office or agency (which may be the
Trustee) located in the Borough of Manhattan in The City of New York, State of
New York to which (a) Notes may be presented or surrendered for registration of
transfer or for exchange (the "Registrar"), (b) Notes may be presented or
surrendered for payment (the "Paying Agent") and (c) notices and demands to or
upon the Issuer in respect of the Notes and this Indenture may be served. The
Registrar shall keep a register of the Notes and of their transfer and exchange
(the "Note Register"). The Issuers, upon prior written notice to the Trustee,
may have one or more co-registrars and one or more additional paying agents
reasonably acceptable to the Trustee. The term "Registrar" includes any
co-registrar and the term "Paying Agent" includes any additional paying agent.
Neither the Issuers nor any Affiliate of the Issuers may act as Paying Agent.
The Trustee may appoint an authenticating agent (the "Authenticating
Agent") with respect to the Notes, which Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate the Notes hereunder.
Notes so authenticated shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Notes by the Trustee, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Issuers and otherwise comply in all respects with the eligibility requirements
of the Trustee contained in this Indenture.
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The Issuers shall enter into an appropriate agency agreement with any
agent not a party to this Indenture, which agreement shall incorporate the
provisions of the TIA and implement the provisions of this Indenture that
relate to such agent. The Issuers shall notify the Trustee, in advance, of the
name and address of any such agent. If the Issuers fail to maintain a Registrar
or Paying Agent, or fail to give the foregoing notice, the Trustee shall act as
such.
The Issuers hereby appoint the Trustee as Registrar and Paying Agent
and agent for service of demands and notices in connection with the Notes,
until such time as the Trustee has resigned or a successor has been appointed.
The Registrar or Paying Agent may resign upon 30 days' notice to the Company.
SECTION 2.4. PAYING AGENT TO HOLD ASSETS IN TRUST.
The Company shall require the Paying Agent (other than the Trustee) to
agree in writing that the Paying Agent shall hold in trust for the benefit of
the Holders or the Trustee all assets held by the Paying Agent for the payment
of principal and premium (if any) of, or interest (including Revenue
Participation Interest, if any) and Liquidated Damages (if any) on, the Notes
(whether such assets have been distributed to it by the Issuers or any other
obligor on the Notes), and the Issuers and the Paying Agent shall notify the
Trustee of any Default by the Issuers (or any other obligor on the Notes) in
making any such payment. The Issuers at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any payment
Default, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon such distribution and accounting to the Trustee, the Paying
Agent shall have no further liability for such assets.
SECTION 2.5. PERSONS DEEMED OWNERS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders in the Note Register and shall otherwise comply with TIA Section
312(a). If the Trustee is not the Registrar, the Issuers shall furnish or cause
the Registrar to furnish to the Trustee as of each Record Date and at such
other times as the Trustee may request in writing a list as of such date and in
such form as the Trustee may reasonably require of the names and addresses of
the Holders, which list may be conclusively relied upon by the Trustee.
Prior to due presentment of a Note for registration of transfer, the
Issuers and the Trustee and any agent of the Issuers or the Trustee may treat
the Person in whose name such Note is registered as the owner of such Note for
the purpose of receiving payment of principal and premium (if any) of and
interest (including Revenue Participation Interest, if any) and Liquidated
Damages (if any) on such Note and for all other purposes whatsoever, and none
of the Issuers, the Trustee or any agent of the Issuers or the Trustee shall be
affected by notice to the contrary.
SECTION 2.6. TRANSFER AND EXCHANGE.
Subject to the provisions of Sections 2.15 and 2.16, when Notes are
presented to the Registrar with a request to register the transfer of such
Notes or to exchange such Notes for an equal principal amount of Notes of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transaction are met;
provided, however, that the Notes presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Registrar,
duly executed by the Holder thereof or his attorney duly authorized in writing.
To permit registrations of transfer and exchanges, the Issuers shall execute
and the Trustee shall authenticate Notes at the Registrar's request. No service
charge shall be made for any registration of transfer or exchange, but the
Issuers 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 exchanges or
transfers pursuant to Section 2.10, 3.9, 4.14 or 4.15, in which case the
Issuers shall be responsible for the payment of such taxes).
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The Registrar shall not be required to register the transfer of or
exchange of any Note (i) during a period beginning at the opening of business
on a Business Day 15 days before the mailing of a notice of redemption of Notes
and ending at the close of business on the day of such mailing and (ii)
selected for redemption in whole or in part pursuant to Article III, except the
unredeemed portion of any such Note being redeemed in part.
Any Holder of the Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a book entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in the
Note shall be required to be reflected in a book entry.
SECTION 2.7. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, the Issuers shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Issuers and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice
to the Issuers or the Trustee that such Note has been acquired by a bona fide
purchaser, the Issuers shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
Upon the issuance of any new Note under this Section, the Issuers may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Issuers, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and every such new Note
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
SECTION 2.8. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee, except those cancelled by it, those delivered to
it for cancellation and those otherwise described in this Section as not
outstanding. Subject to the provisions of Section 2.9, a Note does not cease to
be outstanding because the Issuers, the Guarantors or any of their respective
Affiliates holds such Note.
If a Note is replaced pursuant to Section 2.7 (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a
bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender
of such Note and replacement thereof pursuant to Section 2.7.
SECTION 2.9. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver, consent or notice, Notes owned
by the Issuers, the Guarantors or any of their respective Affiliates shall be
considered as though they are 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 which the Trustee actually knows are
so owned shall be so considered. The Issuers and the Guarantors shall notify
the Trustee, in writing, when any of the Issuers, the Guarantors or any of
their Affiliates repurchases or otherwise acquires Notes and the aggregate
principal amount of such Notes so repurchased or otherwise acquired.
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SECTION 2.10. TEMPORARY NOTES.
Pending the preparation of definitive Notes, the Issuers may execute,
and upon written order in the form of an Officers' Certificate the Trustee
shall authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Notes in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Notes may
determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuers shall cause definitive
Notes to be prepared without unreasonable delay. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive
Notes upon surrender of the temporary Notes at any office or agency of the
Issuers designated pursuant to Section 4.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, the Issuers
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like tenor and principal amount of definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same rights, benefits and privileges under this Indenture as
definitive Notes.
SECTION 2.11. CANCELLATION.
The Issuers may at any time deliver to the Trustee for cancellation
any Notes previously authenticated and delivered hereunder which the Issuers
may have acquired in any manner whatsoever. The Registrar and Paying Agent
shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee shall cancel all Notes surrendered
for registration of transfer, exchange, replacement or cancellation and shall
destroy cancelled Notes (subject to the record retention requirements of the
Exchange Act) unless the Company directs the Trustee in writing that such
cancelled Notes shall be returned to them. No Notes shall be authenticated in
lieu of or in exchange for any Notes cancelled as provided in this Section,
except as expressly permitted by this Indenture.
SECTION 2.12. PAYMENT OF INTEREST; DEFAULTED INTEREST.
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Note is registered in the Note Register at the close of business on
the applicable Record Date. With respect to any payment of Revenue
Participation Interest, the Issuers shall deliver to the Trustee, not less than
five (5) Business Days prior to the date on which such Revenue Participation
Interest is payable, and promptly following a written request therefor made by
the Trustee, at any other time, an Officers' Certificate certifying the amount
and the calculations with respect thereto. The Trustee shall be entitled to
rely conclusively on the information set forth in any such Officers'
Certificate and shall have no duty or obligation to recalculate or otherwise
verify the amounts or calculations set forth therein. Subject to the foregoing
provisions of this Section, each Note delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any other Note
shall carry the rights to interest (including Revenue Participation Interest,
if any) accrued and unpaid, and to accrue, which were carried by such other
Note.
If the Issuers default in a payment of interest (including Revenue
Participation Interest, if any) on the Notes, they shall pay the Persons who
are Holders on a subsequent special record date, which date shall be the
fifteenth day next preceding the date fixed by the Issuers for the payment of
defaulted interest, or the next succeeding Business Day if such date is not a
Business Day. At least 15 days before the subsequent special record date, the
Issuers shall mail to each Holder, as of a recent date selected by the Issuers,
with a copy to the Trustee, a notice that states the subsequent special record
date, the payment date and the amount of defaulted interest, and interest
payable on such defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP NUMBER.
The Issuers in issuing the Notes shall use a CUSIP number, and the
Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; provided, however, that no representation is hereby
deemed to be made by the Trustee as to the correctness or accuracy of the CUSIP
number printed in the notice or on
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the certificates representing the Notes, and that reliance may be placed only
on the other identification numbers printed on the certificates representing
the Notes.
SECTION 2.14. DEPOSIT OF MONEYS.
On each Interest Payment Date and each date on which principal of the
Notes is payable, the Issuers shall, not later than 11:00 a.m., New York City
time, deposit with the Paying Agent in immediately available funds money
sufficient to make any cash payments due on such date in a timely manner which
permits the Paying Agent to remit payment to the Holders on such date.
SECTION 2.15. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTE.
(a) The Global Note initially shall (i) be registered in the name
of the Depository or the nominee of the Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit C hereto.
Members of, or participants in, the Depository ("Participants") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Note, and the Depository may be treated by the Issuers, the Trustee and
any agent of the Issuers or the Trustee as the absolute owner of the Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall (x) prevent the Issuers, the Trustee or any agent of the Issuers or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or (y) impair, as between the
Depository and its Participants, the operation of customary practices governing
the exercise of the rights of a Holder of any Note.
(b) Transfers of the Global Note shall be limited to transfers in
whole, but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Note may be transferred
or exchanged for certificated Notes in accordance with the rules and procedures
of the Depository and the provisions of Section 2.16. In addition, certificated
Notes shall be transferred to all beneficial owners in exchange for their
beneficial interests in the Global Note if (i) the Depository notifies the
Issuers that it is unwilling or unable to continue as Depository for the Global
Note and a successor depositary is not appointed by the Issuers within 90 days
of such notice or (ii) an Event of Default has occurred and is continuing and
the Registrar has received a request from the Depository to issue certificated
Notes.
(c) In connection with any transfer or exchange of a portion of
the beneficial interest in the Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more certificated Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver, one or
more certificated Notes of like tenor and amount.
(d) In connection with the transfer of the entire Global Note to
beneficial owners pursuant to paragraph (b), the Global Note shall be deemed to
be surrendered to the Trustee for cancellation, and the Company shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depository in exchange for its beneficial interest in the
Global Note, an equal aggregate principal amount of certificated Notes of
authorized denominations.
(e) Any certificated Note constituting a Restricted Security
delivered in exchange for an interest in the Global Note pursuant to paragraph
(b) or (c) shall, except as otherwise provided by paragraphs (a)(i)(x) and (c)
of Section 2.16, bear the legend regarding transfer restrictions applicable to
the certificated Notes set forth in Exhibit A hereto.
(f) The Holder of the Global Note may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled
to
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take under this Indenture or the Notes.
SECTION 2.16. SPECIAL TRANSFER PROVISIONS.
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Note constituting a Restricted Security to any
Institutional Accredited Investor which is not a QIB:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Security, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after three
years from the Issue Date or (y) (1) in the case of a transfer to an
Institutional Accredited Investor which is not a QIB, the proposed
transferee has delivered to the Registrar a certificate substantially
in the form of Annex A to the Offering Memorandum used in connection
with the sale of the Notes; and
(ii) if the proposed transferor is an Agent Member holding
a beneficial interest in the Global Note, upon receipt by the
Registrar of (x) the certificate, if any, required by paragraph (i)
above and (y) instructions given in accordance with the Depository's
and the Registrar's procedures; whereupon (a) the Registrar shall
reflect on its books and records the date and (if the transfer does
not involve a transfer of outstanding certificated Notes) a decrease
in the principal amount of the Global Note in an amount equal to the
principal amount of the beneficial interest in the Global Note to be
transferred, and (b) the Issuers shall execute and the Trustee shall
authenticate and deliver one or more certificated Notes of like tenor
and amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Note constituting a
Restricted Security to a QIB:
(i) the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the
box provided for on the form of Note stating, or has otherwise advised
the Issuers and the Registrar in writing, that the sale has been made
in compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Note stating, or
has otherwise advised the Issuers and the Registrar in writing, that
it is purchasing the 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 QIB within the meaning of Rule 144A, 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
Issuers as it 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 its foregoing representations in order to
claim the exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and
the Notes to be transferred consist of Certificated Notes which after
transfer are to be evidenced by an interest in the Global Note, upon
receipt by the Registrar of instructions given in accordance with the
Depository's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount of the Global Note in an amount equal to the
principal amount of the Certificated Notes to be transferred, and the
Trustee shall cancel the Certificated Notes so transferred.
(c) Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the registration of transfer, exchange or replacement of Notes bearing the
Private Placement Legend, the Registrar shall deliver only Notes that bear the
Private Placement Legend unless (i) the circumstance contemplated by paragraph
(a)(i)(x) of this Section 2.16 exists or (ii) there is delivered to the
Registrar an Opinion of Counsel reasonably satisfactory to the Issuers, the
Registrar and the Trustee to the effect that neither such legend nor the
related restrictions on transfer are required in order to maintain compliance
with the provisions of the Securities Act.
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(d) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain, for a minimum of two years, copies of all
letters, notices and other written communications received pursuant to Section
2.15 or this Section 2.16. The Issuers shall have the right to inspect and make
copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.
ARTICLE 3.
REDEMPTION
SECTION 3.1. RIGHT OF REDEMPTION.
(a) Optional Redemption. The Notes will be redeemable, at the
option of the Issuers, in whole or in part at any time or from time to time, on
and after August 15, 2001, upon not less than 30 nor more than 60 days' notice,
at the following redemption prices (expressed as percentages of the principal
amount thereof) if redeemed during the twelve month period commencing on August
15 of the years set forth below, plus, in each case, accrued and unpaid
interest (including Revenue Participation Interest, if any) and Liquidated
Damages (if any) thereon to the applicable date of redemption:
REDEMPTION
YEAR PRICE
----------------------------- ---------------
2001 . . . . . . . . . . . 115.000%
2002 . . . . . . . . . . . 107.500%
2003 and thereafter . . . . 100.000%
(b) Optional Redemption Upon Sale of Capital Stock.
Notwithstanding the provisions of paragraph (a) above, at any time, or from
time to time, on or prior to August 15, 1999, the Issuers may, at their option,
use the net proceeds of one or more sales of Capital Stock (other than
Disqualified Stock) of OCC, Teleglobe Mobile or the Company to one or more
Persons to redeem the Notes at a redemption price equal to 115.000% of the
principal amount thereof, plus accrued and unpaid interest (including Revenue
Participation Interest, if any) and Liquidated Damages (if any) thereon to the
redemption date; provided, however, that (i) not less than $127,500,000
aggregate principal amount of Notes remain outstanding immediately after any
such redemption and (ii) such redemption shall occur within 30 days after the
date of closing of such sale of Capital Stock.
SECTION 3.2. MANDATORY REDEMPTION.
The Issuers will not be required to make mandatory redemption or
sinking fund payments with respect to the Notes, except as set forth in
Sections 4.14 and 4.15 hereto.
SECTION 3.3. APPLICABILITY OF ARTICLE.
Redemption of Notes at the election of the Issuers, as permitted or
required by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
SECTION 3.4. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Issuers to redeem any Notes pursuant to this
Article shall be evidenced by an Officers' Certificate of the Issuers. In case
of any redemption at the election of the Issuers of less than all the Notes,
the Issuers shall, at least 60 days prior to the Redemption Date fixed by the
Issuers (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
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redemption provided in the terms of such Notes or elsewhere in this Indenture,
the Issuers shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 3.5. NOTES TO BE REDEEMED PRO RATA.
If less than all the Notes are to be redeemed in any redemption, the
Notes to be redeemed shall be selected by the Trustee by prorating, as nearly
as may be practicable, the principal amount of Notes to be redeemed or in such
other manner as the Trustee shall deem fair and appropriate. In any proration
pursuant to this Section, the Trustee shall make such adjustments,
reallocations and eliminations as it shall deem proper (and in compliance with
the requirements of the principal national securities exchange, if any, on
which the Notes are listed) to the end that the principal amount of Notes so
prorated shall be $1,000 or a multiple thereof, by increasing or decreasing or
eliminating the amount which would be allocable to any Holder on the basis of
exact proportion by an amount not exceeding $1,000. The Trustee in its
discretion may determine the particular Notes (if there are more than one)
registered in the name of any Holder which are to be redeemed, in whole or in
part.
The Trustee shall promptly notify the Issuers and each Registrar (if
other than the Trustee) in writing of the Notes selected for redemption and, in
the case of any Notes selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Notes redeemed or to be redeemed only in part, to the portion
of the principal amount of such Notes which has been or is to be redeemed.
SECTION 3.6. 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 Holder'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 (including the method by which Revenue Participation
Interest, if any, will be calculated) and Liquidated Damages (if any)
to be paid;
(iii) the paragraph of the Notes and/or section of this
Indenture 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 (including Revenue Participation 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 Issuers 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;
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(viii) the aggregate principal amount of Notes being
redeemed; and
(ix) the CUSIP number or numbers of the Notes being
redeemed.
(b) Notice of redemption of Notes to be redeemed at the election
of the Issuers shall be given by the Issuers 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 Issuers.
SECTION 3.7. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Issuers shall, by 11:00 a.m.,
New York City time, 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
(including Revenue Participation Interest, if any) 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.
Notice of redemption having been given as aforesaid, the Notes so 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
Issuers shall default in the payment of the Redemption Price, accrued and
unpaid interest (including Revenue Participation Interest, if any) or
Liquidated Damages (if any), such Notes shall cease to bear interest (including
Revenue Participation Interest). Upon surrender of any such Note for redemption
in accordance with said notice, such Note shall be paid by the Issuers at the
Redemption Price, together with accrued and unpaid interest (including Revenue
Participation Interest, if any) 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 (including Revenue Participation 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 Issuers designated for that purpose pursuant to
Section 4.2 (with, if the Issuers or the Trustee so require, due endorsement
by, or a written instrument of transfer in form satisfactory to the Issuers and
the Trustee duly executed by, the Holder thereof or its attorney duly
authorized in writing), and the Issuers 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 Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Note so surrendered.
Upon surrender of a Note that is to be redeemed in part, the Trustee
shall authenticate for the Holder a new Note or Notes equal in principal amount
to the unredeemed portion of the Note surrendered.
ARTICLE 4.
COVENANTS
SECTION 4.1. PAYMENT OF NOTES.
The Issuers shall pay or cause to be paid the principal and premium
(if any) of, and interest (including Revenue Participation Interest, if any)
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 (including Revenue Participation Interest, if
any) and Liquidated Damages (if any) on, the Notes shall be considered paid on
the date it is due if the Trustee or Paying Agent (other than the Issuers or an
Affiliate of the Issuers) 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
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installment in full and is not prohibited from paying such money to the Holders
pursuant to the terms of this Indenture. The Trustee or the Paying Agent, as
the case may be, shall return to the Issuers 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 (including Revenue Participation Interest, if
any) and Liquidated Damages (if any) payable on, the Notes.
The Issuers shall pay, to the extent such payments are lawful,
interest on overdue principal and on overdue installments of interest
(including Revenue Participation Interest, if any) (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 Issuers may, to the extent they are 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 Issuers shall maintain the office or agency required under Section
2.3. The Issuers 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 Issuers 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 Issuers 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 Issuers of their obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York for such purposes. The Issuers 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 Issuers hereby designate the Corporate Trust Office of the Trustee
as such office or agency of the Issuers in accordance with Section 2.3.
SECTION 4.3. CORPORATE OR PARTNERSHIP EXISTENCE.
Except as otherwise permitted by Articles IV and V, each Credit Party
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 or partnership
existence and the corporate or partnership existence of each of its
Subsidiaries in accordance with the respective organizational documents of each
such Credit Party and each such Subsidiary and the material rights (charter and
statutory) and franchises of such Credit Party and each such Subsidiary;
provided, however, that no Credit Party shall be required to preserve, with
respect to itself, any material right or franchise and, with respect to any of
its Subsidiaries, any such existence, material right or franchise, if the Board
of Directors or other applicable governing body of such Credit Party shall
determine in good faith that the preservation thereof is no longer desirable in
the conduct of the business of such Credit Party and its Subsidiaries, taken as
a whole.
SECTION 4.4. PAYMENT OF TAXES AND OTHER CLAIMS.
Each Credit Party shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all material 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 material 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 no Credit Party shall 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
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properly instituted and diligently conducted and for which adequate reserves,
to the extent required under GAAP, have been taken or where the failure to
effect such payment is not adverse in any material respect to the Holders.
SECTION 4.5. MAINTENANCE OF PROPERTIES AND INSURANCE.
(a) Each Credit Party shall, and shall cause each of its
Subsidiaries to, 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; provided, however, that nothing in this
Section 4.5 shall prevent any Credit Party or any of its Subsidiaries from
discontinuing the operation and maintenance of any of its properties if such
discontinuance is, in the good faith judgment of the Board of Directors or
other governing body of the Credit Party or the Subsidiary concerned, as the
case may be, desirable in the conduct of its businesses and is not
disadvantageous in any material respect to the Holders.
(b) Each Credit Party shall maintain insurance (including
appropriate self-insurance) against loss or damage of the kinds that, in the
good faith judgment of such Credit Party, are adequate and appropriate for the
conduct of the business of such Credit Party 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 such Credit Party, for companies similarly situated in the industry
(provided that insurance with respect to the satellites shall be governed by
clause (c) below).
(c) In addition to the foregoing, the Issuers shall maintain in
full force and effect: (i) on or prior to the date on which at least 26
satellites have been launched and tested and, together with the related ground
systems, are reasonably believed by the Company to be ready for commercial
operation as part of the ORBCOMM System, at the time of the launch of each such
satellite, launch insurance in an amount sufficient to provide for the
procurement of a launch vehicle in the event of a launch failure; (ii) at all
times following the date a satellite has been successfully launched and
deployed and is placed in commercial service, in-orbit insurance with respect
to such satellite representing the value of such failed 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); and (iii) in the event (1) the Company is required to use
four or more of the Company's "ground spare" satellites available under the
Procurement Agreement, or (2) the Company loses four or more satellites within
any plane of eight satellites, or six or more satellites within any two planes
of eight satellites, as a result of a launch failure or in-orbit failure prior
to the placement of satellites into commercial service, for the time periods
specified in clause (i) above, insurance sufficient to provide for the
construction and launch of replacement satellites of equivalent capacity and
functionality payable in the event of a loss of four or more satellites within
any plane of eight satellites, or six or more satellites within any two planes
of eight satellites, as a result of a launch failure or in-orbit failure prior
to placement of such satellites into commercial service.
Notwithstanding the foregoing, the Company shall not be obligated to
obtain launch or in-orbit insurance with respect to the two satellites
operational on the Issue Date and the two satellites with respect to which the
Company has the option to launch on a Taurus launch vehicle or launch insurance
with respect to other launches of up to an aggregate of three additional
satellites on a secondary basis.
The obligation of the Issuers to maintain insurance pursuant to clause
(c) above 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
general partners of the Company determine in good faith (evidenced by a
unanimous resolution of the general partners of the Company and set forth in an
Officers' Certificate delivered to the Trustee) that such entity is
credit-worthy 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 clause (c)
above ("Cash Insurance"), and to be held in trust for the sole and express
benefit of the Holders.
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Within 30 days following any date on which the Issuers are required to
obtain insurance pursuant hereto, 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 Issuers, complies with the provisions hereof. In addition, the Issuers will
cause to be delivered to the Trustee within 30 days following January 1 of each
year, commencing January 1, 1997, 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.
In the event that the Issuers maintain any Cash Insurance in
satisfaction of any part of their obligation to maintain insurance pursuant to
this covenant, the Issuers 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 Issuers receive any proceeds of any insurance
that they are required to maintain pursuant to this covenant, the Issuers shall
promptly deposit such proceeds into an escrow account established with an
Eligible Institution for such purpose. If the Issuers maintain any Cash
Insurance in satisfaction of any part of their obligation to maintain insurance
pursuant to this covenant, the Issuers 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 Issuers to the payment of
insurance had the Issuers 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
replacement satellites if: (i) the Company delivers to the Trustee a
certificate of the Company's President certifying that such replacement
satellites are of comparable or superior technological capability as compared
with the satellites being replaced; and (ii) within 30 days following the
receipt of such insurance proceeds, the Company delivers to the Trustee an
Officers' Certificate certifying that (A) such replacement satellites are
scheduled to be launched within 18 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.
In the event (an "Insurance Contingency Event") that (i) four or more
satellites within any plane of eight satellites, or six or more satellites
within any two planes of satellites, suffer an in-orbit failure prior to such
satellites being placed in commercial service, and, as a result thereof, the
Company is required to launch its ground spare satellites; and (ii) there are
not sufficient insurance proceeds to procure a launch vehicle for the launch of
such ground spare satellites (the amount of any such insufficiency being
referred to as the "Insurance Launch Deficiency Amount"), then the Company
shall be required to draw-down on the Partners' Insurance Contingent Commitment
(as defined below) prior to any further borrowings under any Bank Credit
Facility if, but only to the extent that, the Company's existing levels of cash
and cash equivalents are less than $15 million at any time after the Insurance
Contingency Event through the date the Company has 26 satellites in commercial
operation (the "Full Deployment Date"). As used herein, "Partners' Insurance
Contingent Commitment" shall mean a commitment by Teleglobe and Orbital, each
dated August 7, 1996, to provide, in the aggregate, up to the lesser of (x) $15
million less any amounts drawn under the Partners' Insurance Contingent
Commitment or (y) the Insurance Launch Deficiency Amount in capital
contributions or debt financing expressly subordinated to the Notes (at then
prevailing interest rates, which subordinated debt financing shall not mature
or be subject to acceleration prior to maturity of the Notes and which shall
not provide for cash interest payments prior to maturity of the Notes) from and
after an Insurance Contingency Event through the Full Deployment Date. The
Company shall maintain the Partners' Insurance Contingent Commitment in full
force and effect from the Issue Date through the Full Deployment Date (and the
Partners' Insurance Contingent Commitments shall thereafter expire) and the
Company shall enforce all obligations under such Partners' Insurance Contingent
Commitment in accordance with their terms.
Following the Full Deployment Date, Teleglobe and Orbital shall be
permitted to receive a distribution equal to the unused portion of any amounts
drawn under the Partners' Insurance Contingent Commitment.
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SECTION 4.6. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) Each Credit Party shall deliver to the Trustee, within 15 days
after the Company files or would have been required to file a quarterly or
annual report, as the case may be, with the Commission, an Officers'
Certificate stating that a review of its activities during the preceding fiscal
quarter 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
Credit Party during such preceding fiscal quarter has kept, observed, performed
and fulfilled each and every such covenant and no Default or Event of Default
occurred during such quarter 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) 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.
(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.
Each Credit Party 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, except for such noncompliances
as not in the aggregate reasonably likely to have a material adverse effect on
the financial condition or results of operations of such Credit Party and its
Subsidiaries, taken as a whole.
SECTION 4.8. REPORTS.
(a) The Issuers shall furnish to the Holders and the Trustee,
whether or not required by the rules and regulations of the Commission, (i)
within 45 days following the end of each fiscal quarter and 90 days following
the end of each fiscal year, respectively, 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 Issuers 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 Issuers and their Restricted Subsidiaries and, with
respect to the annual information only, a report thereon by the Issuers'
independent certified public accountants, and (ii) all information that would
be required to be filed with the Commission on Form 8-K if the Issuers were
required to file such reports promptly upon the occurrence of any event which
leads to such requirement within the time requirements imposed by the
Commission.
In addition, together with the information provided in clauses (i) and
(ii) above, the Issuers will provide supplemental financial information to the
extent permitted by the Commission in the Management's Discussion and Analysis
of Financial Condition and Results of Operations section of such reports or
other section of such reports as appropriate consisting of revenue (allocated
between domestic and international operations), expense, earnings before
interest and taxes, net income, capital expenditures, cash, Indebtedness,
depreciation and amortization and
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subscriber data for the Company, USA and International and reflecting
elimination of intercompany transactions. In the event the Commission does not
permit such supplemental financial information to be included in such reports,
then the Issuers will supply such information supplementally to the Holders,
unless providing such information supplementally would, in the reasonable
judgment of counsel to the Company, violate applicable laws, rules or
regulations of the Commission.
(b) Whether or not required by the rules and regulations of the
Commission but only if permitted by the Commission, the Issuers 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.
(c) The Issuers, OCC, Teleglobe Mobile, USA and International 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.
(d) Upon qualification of this Indenture under the TIA, the Credit
Parties shall also comply with the provisions of TIA 314(a).
SECTION 4.9. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Issuers covenant (to the extent that they may lawfully do so) that
they 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
or other law that would prohibit or forgive the Issuers from paying all or any
portion of the principal or premium (if any) of, or interest (including Revenue
Participation Interest (if any) or Liquidated Damages (if any) on, the Notes as
contemplated herein, 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 they may lawfully do so) the Issuers hereby expressly waive all
benefit or advantage of any such law, and covenant that they 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 Credit Parties shall not, and shall not cause or permit
any of their Restricted Subsidiaries to, directly or indirectly, (i) declare or
pay any dividend or make any distribution on account of the Equity Interests of
any Credit Party (including, without limitation, any payment in connection with
any merger or consolidation involving the Credit Parties or any of their
Restricted Subsidiaries), other than dividends or distributions payable (a) in
Equity Interests (other than Disqualified Stock) of the Credit Parties or any
of their Restricted Subsidiaries or (b) to any Credit Party or to any
Restricted Subsidiary of a Credit Party, (ii) purchase, redeem, defease, retire
or otherwise acquire or return for value any Equity Interests of any Credit
Party, other than such Equity Interests owned by a Credit Party or any Wholly
Owned Restricted Subsidiary of a Credit Party, (iii) make any principal payment
on (including at maturity), or purchase, defease, redeem, or otherwise acquire
or retire for value, any Indebtedness that is subordinate (whether pursuant to
its terms, by operation of law, structurally or otherwise) to the Notes or (iv)
make any Restricted Investment (each of the foregoing actions set forth in
clauses (i) through (iv) above being referred to as a "Restricted Payment"),
unless, at the time of and after giving effect to such Restricted Payment (a)
no Default or Event of Default shall have occurred and be continuing or would
occur as a consequence thereof; (b) the Issuers 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 the Indebtedness to Cash Flow Ratio test set forth in
Section 4.12; and (c) such Restricted Payment, together with the aggregate of
all other Restricted Payments made by the Credit Parties and their Restricted
Subsidiaries after the Issue Date (excluding Restricted Payments permitted by
clauses (iii) through (v) of the next succeeding paragraph), is less than the
sum of: (1) the sum of (without duplication) 50% of the Consolidated Net Income
of each of the Credit Parties after elimination of any intercompany items and
in each case 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 aggregate
Consolidated
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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 Credit Parties from the
issue or sale since the Issue Date of Equity Interests of any Credit Party or
of debt securities of any Credit Party that have been converted into such
Equity Interests (other than (A) Equity Interests (or convertible debt
securities) sold to a Subsidiary of any Credit Party, (B) Disqualified Stock or
debt securities that have been converted into Disqualified Stock, (C)
Disqualified Capital Contributions and (D) equity capital contributions
described in clauses (vi) and (viii) of the definition of "Permitted
Investment"); 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.
(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)
the redemption, repurchase, retirement or other acquisition of any Equity
Interests of any Credit Party in exchange for, or out of the proceeds of, the
substantially concurrent sale (other than to a Subsidiary of any Credit Party)
of other Equity Interests of any Credit Party (other than any Disqualified
Stock and Disqualified Capital Contributions); 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 the
paragraph (a) above; (iii) 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 any Credit Party) of Equity
Interests of any Credit Party (other than Disqualified Stock and Disqualified
Capital Contributions); 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 (a) above; (iv) the
payment of cash dividends on preferred partnership interests of any Credit
Party that is a partnership if, at the time such preferred partnership
interests were issued, such Credit Party delivered to the Trustee an Officers'
Certificate certifying that (a) the aggregate liquidation preference of the
preferred partnership interest so issued does not exceed the aggregate amount
of Indebtedness that the Company is then permitted to incur pursuant to clause
(vii) of the exceptions to the covenants set forth in Section 4.12(b) and (b)
the Company is electing to reduce permanently the amount of Indebtedness that
any Person is permitted to incur pursuant to such clause (vii) by the amount
of such aggregate liquidation preference; (v) the purchase, redemption or
retirement by OCC of shares of its common stock held by an employee or former
employee of one of the Credit Parties or their Subsidiaries or Orbital issued
under the OCC Stock Option Plan pursuant to the terms of such OCC Stock Option
Plan; provided that (1) the aggregate number of shares of common stock
purchased, redeemed, or retired from and after the Issue Date does not exceed
900,000 OCC shares, and (2) the amount of any such payments in any fiscal year
does not exceed $1,000,000; and provided further, that the limitations set
forth in clauses (1) and (2) of the foregoing proviso do not apply to the
purchase, redemption or retirement of shares of common stock with funds or
other property (including common stock of Orbital) contributed by partners of
OCC, Teleglobe Mobile or the Company (other than Disqualified Capital
Contributions) or amounts paid by any of the Credit Parties for which any of
the Credit Parties receives concurrent reimbursement from any other person
(other than the Credit Parties or their Subsidiaries); (vi) payments and/or
distributions (1) by OCC to its shareholders pursuant to the Tax Sharing
Agreement , (2) by Teleglobe Mobile to its partners to the extent necessary to
pay income tax liabilities of such partners (determined on a hypothetical basis
using the highest marginal income tax rate applicable to such partners at the
time of such payment) arising from income of Teleglobe Mobile allocable to such
partners and attributable to Teleglobe Mobile's investment in the Company, but
only to the extent Teleglobe Mobile is not subject to income tax on such
income, and (3) subsequent to the Offering, by the Company to its general
partners and by such general partners to their partners or members, as the case
may be, to the extent necessary to pay income tax liabilities of each such
general partner or their partners or members, as the case may be (determined on
a hypothetical basis using the highest marginal income tax rate applicable to
such partners at the time of such payment), arising from income of each such
general partner or the partners or members of such general partner, as the case
may be, which is attributable to such general partner's investment in the
Company; (vii) distributions made to Orbital and Teleglobe of unused portions
of any amount drawn under the Partners' Insurance Contingent Commitment (as
described in Section 4.5) and the Partners' Contingent Commitment (as described
in Section 4.19); and (viii) to the extent included within the definition of
"Restricted Payments," reimbursements of expenses of the type described in
clause (x) of Section 4.11(b).
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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 Credit Party 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 Issuers shall deliver to the Trustee an
Officers' Certificate stating that such Restricted Payment complies with this
Indenture and setting forth the basis upon which the required calculations were
computed, which calculations may be based upon the latest available internal
quarterly financial statements of ORBCOMM.
SECTION 4.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(a) The Credit Parties shall not, and shall not permit any of
their Restricted Subsidiaries to, sell, lease, transfer or otherwise dispose of
any of their 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 Credit Party or such Restricted Subsidiary
than those that would have been obtained in a comparable transaction by the
Credit Party or such Restricted Subsidiary with an unrelated Person; (ii) such
Credit Party delivers to the Trustee: (A) with respect to any Affiliate
Transaction involving aggregate consideration in excess of $1 million, an
Officers' Certificate certifying that such Affiliate Transaction complies with
clause (i) above; and (B) with respect to any Affiliate Transaction involving
aggregate consideration in excess of $5 million, an opinion as to the fairness
of such Affiliate Transaction to the Credit Party or Restricted Subsidiary
involved in such Affiliate Transaction from a financial point of view issued by
an Independent Financial Advisor or, with respect to communications-related
matters, a recognized expert in the communications industry.
(b) The restrictions set forth in paragraph (a) above shall not
apply to: (i) any employment agreement, stock option or stock purchase
agreement (including the Stock Option Plans) entered into by any Credit Party
or any of their Restricted Subsidiaries with any of their respective employees
in the ordinary course of business; (ii) transactions between or among the
Credit Parties and/or their Wholly-Owned Restricted Subsidiaries; (iii)
Restricted Payments permitted by clauses (i), (ii), (iv), (v), (vi) and (vii)
of Section 4.10(b) and Permitted Investments of a type referred to in clauses
(i), (iii), (vi), (vii), (viii), (ix) and (x) of the definition of Permitted
Investments; (iv) the sale of common Equity Interests (other than Disqualified
Stock) of any Credit Party for cash to Affiliates of the Credit Parties; (v)
transactions pursuant to agreements entered into with resellers of ORBCOMM's
products and services, manufacturers of subscriber communicators and
international licensees on terms substantially the same as ORBCOMM's standard
agreements entered into with such parties in the ordinary course of business,
and transactions pursuant to a service license agreement for Malaysia or a
region including Malaysia with Technology Resources Industries Bhd ("TRI") or
any Person in which TRI holds an interest, provided that such agreement is
approved by the unanimous consent of the general partners of ORBCOMM; (vi)
transactions pursuant to the Procurement Agreement, the Administrative Services
Agreement, the Canada Service License Agreement, the Teleglobe Administrative
Services Agreement, the Magellan Agreement and the Gateway Maintenance
Contract, in each case as in effect on the Issue Date, including the exercise
of any option specified in Section 2.2, 2.6, 2.8, 2.9 or 2.10 of the
Procurement Agreement (including entering into time and material agreements
thereunder pursuant to the terms of the Procurement Agreement) and the exercise
of any option or right under the Gateway Maintenance Contract and amendments,
supplements or other modifications to the Procurement Agreement or the Gateway
Maintenance Contract required to effectuate the exercise of such option or
rights; (vii) amendments, supplements or other modifications effecting design
or other technical specifications changes to the Procurement Agreement that do
not involve the payment of cash by any of the Credit Parties or any of their
Restricted Subsidiaries in connection therewith; provided that any such
amendment, supplement or modification shall have been evidenced by the
unanimous consent of all the general partners of the Company; and (viii) the
sale of securities of any of the Credit Parties for cash to Affiliates of such
Credit Parties; provided that: (A) an amount of such securities at least equal
to the amount sold to such Affiliates have been or are being sold substantially
simultaneously to Persons that are not Affiliates of the Credit Parties; (B)
the price per security paid by such Affiliates is no less than the price paid
by such non-Affiliates; and (C) none of the Credit Parties shall have entered
into any other arrangement with such non-Affiliates to induce such
non-Affiliates to purchase such securities; (ix) the procurement of a launch
vehicle from an Affiliate of the Company, if required to launch the "ground
spare" or replacement satellites, provided such procurement is on terms
substantially similar to those contained in the Procurement Agreement; (x)
reimbursement
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of the Company, subsequent to the Offering, of general administrative and
corporate overhead expenses incurred by or on account of the Public General
Partner in an amount not to exceed $1.0 million per annum plus an additional
$1.5 million per annum as approved by the affirmative vote of a majority of the
members of the governing body of the Company, which majority shall include at
least one member that is not affiliated with any of the general partners of the
Company (other than the Public General Partner); and (xi) the sale of
securities of the Company to the Public General Partner financed by the sale of
securities of the Public General Partner to investors in a registered public
offering or under Rule 144A of the Securities Act.
SECTION 4.12. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS OR
ISSUANCE OF RESTRICTED SUBSIDIARY DISQUALIFIED STOCK.
(a) The Credit Parties shall not, and shall not permit any of
their Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness (including Acquired Debt) or any Disqualified Stock of any
Restricted Subsidiary; provided, however, that the Issuers, USA or
International or any of their Restricted Subsidiaries may incur Indebtedness
(including Acquired Debt) if, after giving pro forma effect to the incurrence
of such Indebtedness and the use of proceeds thereof, the aggregate
Indebtedness to Cash Flow Ratio of the Credit Parties does not exceed 4.0 to 1.
For purposes of the foregoing, the total amount of funds available under any
Bank Credit Facility will be deemed to have been incurred at the time that the
Company entered into the instruments or agreements providing therefor.
(b) The restrictions set forth in clause (a) above shall not apply
to: (i) the incurrence by the Issuers of Indebtedness represented by the Notes
and this Indenture or the incurrence by the Guarantors of Indebtedness
represented by the Guarantees; (ii) Existing Indebtedness; (iii) 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 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; (iv) the incurrence by any Unrestricted
Subsidiary of the Credit Parties 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; (v) Indebtedness of any of the Credit Parties or of any
Restricted Subsidiary of any of the Credit Parties owed to and held by any of
the Credit Parties or any of their Wholly Owned Restricted Subsidiaries or a
Guarantor's obligations under a guarantee thereof, as the case may be (the
Indebtedness incurred pursuant to this clause (v) being hereafter referred to
as "Intercompany Indebtedness"); provided that an incurrence of Indebtedness
shall be deemed to have occurred upon (A) any sale or other disposition of
Intercompany Indebtedness to a Person other than the Credit Parties or any of
their Restricted Subsidiaries, (B) any sale or other disposition of Equity
Interests of any of the Credit Parties' Restricted Subsidiaries which holds
Intercompany Indebtedness such that such Restricted Subsidiary ceases to be a
Restricted Subsidiary after such sale or other disposition or (C) designation
of a Restricted Subsidiary as an Unrestricted Subsidiary; (vi) Indebtedness
(or any portion thereof) for which the sole legal recourse for collection of
principal, premium and interest on such Indebtedness is against specific
property identified in the instruments evidencing or securing such
Indebtedness, which property was acquired with the proceeds of such
Indebtedness, without liability on the part of the Credit Parties or their
Restricted Subsidiaries or for any deficiency with respect to principal,
premium or interest; (vii) the incurrence by any of the Issuers, USA or
International or any of their Restricted Subsidiaries (or by OCC or Teleglobe
Mobile as a guarantor of such Indebtedness) of Indebtedness not to exceed $50
million in aggregate principal amount at any one time outstanding, less the
aggregate liquidation preference of any preferred partnership interests issued
in reliance on clause (iv) of Section 4.10(b) and less the aggregate principal
amount of Indebtedness under this clause (vii) which is refinanced under clause
(viii) below; (viii) Indebtedness of any of the Issuers, USA or International
or any of their Restricted Subsidiaries ("Permitted Refinancing Indebtedness")
incurred to refinance, replace or refund Indebtedness ("Refinanced
Indebtedness") incurred pursuant to the Indebtedness to Cash Flow Ratio test
set forth in the first paragraph of this covenant or pursuant to clause (i),
(ii) or (vii) of this Section 4.12(b); provided that: (A) 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
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thereon); (B) 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; (C) such Permitted Refinancing
Indebtedness shall rank no higher relative to the Notes than the Refinanced
Indebtedness and in no event may any Indebtedness of any of the Issuers, USA or
International or any of their Restricted Subsidiaries be refinanced with
Indebtedness of any Restricted Subsidiary under this clause (viii) (except to
the extent that any such Restricted Subsidiary was, prior to such refinancing,
a guarantor of such Refinanced Indebtedness); and (D) in no event shall ORBCOMM
incur any Indebtedness to refinance, replace or refund the MetLife Note unless
the Liens securing such MetLife Note are released in full; (ix) the incurrence
by OCC and/or Teleglobe Mobile of Indebtedness in an aggregate amount (for OCC
and Teleglobe Mobile, taken together as a whole) at any one time outstanding
not to exceed $10 million; provided that such Indebtedness could then otherwise
have been incurred by the Issuers, USA or International under the Indebtedness
to Cash Flow Ratio test set forth under the first paragraph of this covenant;
and (x) the incurrence of Indebtedness under the Partners' Insurance Contingent
Commitment pursuant to Section 4.5. and the Partners' Contingent Commitment
pursuant to Section 4.19.
For purposes of determining compliance with this Section 4.12, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories described in clauses (i) through (x) above or is entitled to be
incurred pursuant to paragraph (a) of this Section 4.12, the Company shall, in
its sole discretion, classify or reclassify such item of Indebtedness in any
manner that complies with this Section 4.12 and such item of Indebtedness will
be treated as having been incurred pursuant to only one of such clauses or
pursuant to paragraph (a) of this Section 4.12.
SECTION 4.13. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
(a) The Credit Parties shall not, and shall not permit any of
their 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 any Credit Party or any of their 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 any Credit Party
or any of their Restricted Subsidiaries; (iii) make loans or advances to any
Credit Party or any of their Restricted Subsidiaries; or (iv) transfer any of
its properties or assets to any Credit Party or any of their 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, the Notes and the Guarantees; (ii) Existing
Indebtedness; (iii) applicable law; (iv) any instrument governing Indebtedness
or Capital Stock of a Person acquired by any of the Credit Parties or any of
their 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 (a)(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) any instrument governing Indebtedness of a Subsidiary
Guarantor, provided such Indebtedness is incurred in accordance with this
Indenture; or (ix) in the case of clauses (i), (ii), (iv), (v), (vi), (vii) and
(viii) above, any amendments, modifications, restatements, renewals, increases,
supplements, modifications, restatements or refinancing thereof, provided that
such amendments, modifications, restatements, renewals, increases, supplements,
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 a right to require the Issuers
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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 (including Revenue
Participation Interest, if any) and Liquidated Damages (if any) thereon to the
date of purchase (the "Change of Control Payment").
(b) Within 10 days following the date upon which the Change of
Control occurred (the "Change of Control Date"), the Issuers 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 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. Such notice
shall state:
(1) 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;
(2) the purchase price (including the amount of
accrued interest (including the method by which Revenue
Participation Interest, if any, will be calculated)) and
Liquidated Damages (if any) and the purchase date (which shall
be no earlier than 30 days nor later than 45 days from the
date such notice is mailed, other than as may be required by
law) (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to
accrue interest (including Revenue Participation Interest);
(4) that, unless the Issuers default in making
payment therefor, any Note accepted for payment pursuant to
the Change of Control Offer shall cease to accrue interest
(including Revenue Participation Interest) after the Change of
Control Payment Date;
(5) 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;
(6) 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 Holder is withdrawing such Holder's election to have
such Notes purchased;
(7) 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
(8) the circumstances and relevant facts
regarding such Change of Control.
On or before the Change of Control Payment Date, the Issuers 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 by the Issuers. 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 such Holders new Notes equal in principal amount to any
unpurchased portion of the Notes surrendered; provided that
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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
Issuers to the Holder thereof. For purposes of this Section 4.14, the Trustee
shall act as the Paying Agent.
Any amounts remaining after the purchase of Notes pursuant to a Change
of Control Offer shall be returned by the Trustee to the Issuers.
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 Issuers shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date.
(c) The foregoing provisions above shall not apply 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 ASSET SALES.
(a) The Credit Parties shall not, and shall not permit any of
their Restricted Subsidiaries to, engage in an Asset Sale unless (i) the Credit
Party 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; and (ii) the aggregate Fair Market Value
of all non-Cash Consideration received therefor by such Credit Party or
Restricted Subsidiary, as the case may be, when aggregated with the Fair Market
Value of all other non-Cash Consideration received by the Credit Parties and
their respective 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 the sum of (without duplication) 5% of the Consolidated Tangible Net
Assets of all of the Credit Parties at the time of such Asset Sale; provided,
however, that any notes or similar obligations received by any of the Credit
Parties or such Restricted Subsidiaries from such transferees that are
immediately converted by the Credit Parties or such Restricted Subsidiaries
into cash shall be deemed to be cash (to the extent of the net cash received)
for purposes of this clause (a).
Within 270 days after the receipt of any Net Proceeds, the Issuers may
apply such Net Proceeds to: (i) repay, and thereby permanently reduce the
commitments or amounts available to be reborrowed pursuant to clause (vii) of
Section 4.12 or to repay the Notes or the MetLife Note; or (ii) an investment
in Related Assets or a Related Business. Pending the final application of any
such Net Proceeds, the Issuers may temporarily invest such Net Proceeds in any
manner that is not prohibited by this Indenture. Any Net Proceeds 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 cumulative amount of
Excess Proceeds exceeds $5 million (the "Asset Sale Offer Trigger Date"), the
Issuers shall 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 $5 million), at an offer price in cash in an amount equal
to 100% of the principal amount thereof, plus accrued and unpaid interest
(including Revenue Participation Interest, if any) and Liquidated Damages (if
any) thereon to the date of purchase, in accordance with the procedures set
forth in clause (b). To the extent that the offer price of the aggregate amount
of Notes tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Issuers may use any remaining Excess Proceeds for general
business purposes. If the offer price of 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.
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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.
(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 as of a date within 15 days of the
mailing of such notice, with a copy to the Trustee. The notice shall contain
all instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Asset Sale Offer and shall state the following terms:
(1) 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 (including Revenue Participation Interest, if
any) and Liquidated Damages (if any) at the expiration of such
offer exceeds the aggregate amount of the Asset Sale Offer,
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);
(2) the purchase price (including the amount of
accrued interest (including the method by which Revenue
Participation Interest, if any, will be calculated)) 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");
(3) that any Note not tendered will continue to
accrue interest (including Revenue Participation Interest);
(4) that, unless the Issuers default in making
payment therefor, any Note accepted for payment pursuant to
the Asset Sale Offer shall cease to accrue interest (including
Revenue Participation Interest) after the Proceeds Purchase
Date;
(5) 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;
(6) 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 Holder is withdrawing such Holder's election to have such
Note purchased; and
(7) 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 (i) accept
for payment Notes or portions thereof tendered pursuant to the Asset Sale Offer
which are to be purchased in accordance with item (b)(1) above, (ii) deposit
with the Paying Agent in U.S. dollars, an amount sufficient to pay the purchase
price plus accrued interest (including Revenue Participation Interest, if any)
and Liquidated Damages (if any) of all Notes to be purchased and (iii) deliver
to the Trustee Notes so accepted together with an Officers' Certificate stating
the Notes or portions thereof being purchased by the Issuers. 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 (including Revenue
Participation Interest, if any) and Liquidated Damages, if any. For purposes of
this Section 4.15, the Trustee shall act as the Paying Agent.
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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
either of the Issuers, OCC or Teleglobe Mobile, which shall be governed by the
provisions of Article V.
SECTION 4.16. LIMITATION ON LIENS.
The Credit Parties shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien on any asset of any of the Credit Parties whether owned on the
Issue Date or acquired after the Issue Date, or any income or profits
therefrom, or assign or convey any right to receive income therefrom, except
Permitted Liens.
SECTION 4.17. ADDITIONAL SUBSIDIARY GUARANTEES.
In the event: (i) the Credit Parties or any other Guarantor shall
transfer or cause to be transferred, in one transaction or a series of related
transactions, any assets, businesses, divisions or other property having a book
value determined in accordance with GAAP or a Fair Market Value which, when
aggregated with all Investments described in clause (vii) of the definition of
"Permitted Investment," would be in excess of the greater of (x) $5 million or
(y) 5% of the System Consolidated Net Worth as of the date of transfer to any
Restricted Subsidiary that is not a Subsidiary Guarantor; (ii) the Credit
Parties or any other Guarantor shall acquire another Restricted Subsidiary with
assets having either a book value determined in accordance with GAAP or a Fair
Market Value which, when aggregated with all Investments described in clause
(vii) of the definition of "Permitted Investment," would be in excess of the
greater of (x) $5 million or (y) or 5% of the System Consolidated Net Worth as
of the date on which any such acquisition is consummated; or (iii) at any time
after the Issue Date, Restricted Subsidiaries of the Credit Parties and any
Guarantors which are not Subsidiary Guarantors shall, in the aggregate, hold,
own or otherwise control assets, businesses, divisions or property having
either a book value determined in accordance with GAAP or a Fair Market Value
which, when aggregated with all Investments described in clause (vii) of the
definition of "Permitted Investment," would be in excess of the greater or (x)
$5 million or (y) 5% of the System Consolidated Net Worth as of any date, then,
in each such case, the Credit Parties or the Guarantor shall cause such
Restricted Subsidiary or any number of Restricted Subsidiaries, as the case may
be, to (i) execute and deliver to the Trustee a supplemental indenture in form
reasonably satisfactory to the Trustee pursuant to which such Restricted
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 that such supplemental
indenture has been duly authorized, executed and delivered by such Restricted
Subsidiary and constitutes a legal, valid, binding and enforceable obligation
of such Subsidiary. Thereafter, such Restricted Subsidiary shall be a
Guarantor for all purposes of this Indenture.
SECTION 4.18. CONDUCT OF BUSINESS.
The Credit Parties shall not, and shall not permit any of their
Restricted Subsidiaries to, engage in any businesses other than that which is
related to the design, development, procurement, installation, marketing and
operation of telecommunications systems and businesses. Capital shall not own
any operating assets or other property or conduct any business other than to
serve as Issuer and obligor with respect to the Notes.
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SECTION 4.19. PARTNERS' CONTINGENT COMMITMENT.
In the event (a "Contingency Event") that (i) at least 20 satellites
have not been placed in commercial service by December 31, 1998 and (ii) the
Company's existing levels of cash and cash equivalents are less than $25
million (the amount of any such shortfall at any time prior to the Initial
Deployment Date (as defined below) being referred to as the "Deficiency
Amount"), then the Company shall draw-down on the Partners' Contingent
Commitment from time to time after the Contingency Event through the date the
Company has 20 satellites in commercial operation (the "Initial Deployment
Date"). The Company shall maintain the Partners' Contingent Commitment in full
force and effect from the Issue Date through the Initial Deployment Date (and
the Partners' Contingent Commitment thereafter shall expire) and the Company
shall enforce all obligations under such Partners' Contingent Commitment in
accordance with their terms. Following the Initial Deployment Date, Teleglobe
and Orbital shall be permitted to receive a distribution equal to the unused
portion of any amounts drawn under the Partners' Contingent Commitment.
SECTION 4.20. CONTINGENCY FUND.
The Company shall establish a segregated account with a recognized
financial institution and shall deposit $13 million into such account from the
proceeds of the Notes (the "Contingency Fund"). The Company shall not expend
monies in the Contingency Fund unless and until it has already expended all of
the remaining proceeds of the offering of the Notes, and shall only expend
monies in the Contingency Fund to fund development and deployment of the
ORBCOMM System and related operating expenses. The Company may invest amounts
in such segregated account comprising the Contingency Fund in cash or Cash
Equivalents in accordance with the terms hereof.
SECTION 4.21. METLIFE SEGREGATED ACCOUNT.
Promptly following the Issue Date, the Company shall establish a
segregated account with a recognized financial institution and shall deposit
into such account from the proceeds of the Notes an amount sufficient to pay in
full when due all remaining scheduled interest and principal payments on the
MetLife Note. Interest earned on such account shall be payable to the Company.
In the event the funds held in such segregated account exceed the amount
sufficient to provide for payment in full of the principal of and interest on
the MetLife Note, the Company shall be permitted to receive from such
segregated account any such excess amount. At all times that the Company is
complying with the terms of this Section 4.21, amounts outstanding under the
MetLife Note shall not constitute Indebtedness and amounts held in such
segregated account shall not constitute assets of any Credit Party hereunder.
ARTICLE 5.
MERGER, CONSOLIDATION OR SALE OF ASSETS
SECTION 5.1. MERGERS, CONSOLIDATIONS AND CERTAIN SALES OF ASSETS.
(a) Neither the Credit Parties nor any Guarantor (to the extent
not permitted by the sale provisions under Article X) may, in a single
transaction or a series of related transactions, consolidate or merge with or
into (whether or not any such Credit Party or such Guarantor, as the case may
be, 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 (other than any
consolidation or merger of a Credit Party or Guarantor with or into, or the
sale, assignment, transfer, lease, conveyance or disposal by a Credit Party or
Guarantor to, any other Credit Party or Guarantor), unless:
(i) such Credit Party or Guarantor, as the case may be,
is the surviving Person or the Person formed by or surviving any such
consolidation or merger (if other than such Credit Party or Guarantor,
as the case may be) 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;
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(ii) the Person formed by or surviving any such
consolidation or merger (if other than such Credit Party or Guarantor,
as the case may be) 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 such Credit Party or
Guarantor, as the case may be, under the Notes, this Indenture, the
Pledge Agreement and the Guarantees pursuant to a supplemental
indenture in form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction, no Default or
Event of Default exists;
(iv) such Credit Party or Guarantor, as the case may be,
or the Person formed by or surviving any such consolidation or merger
(if other than such Credit Party or Guarantor, as the case may be) 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 such Credit Party or such Guarantor
immediately preceding the transaction;
(v) the Issuers will, 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,
be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Indebtedness to Cash Flow Ratio set forth in the first
paragraph of Section 4.12;
(vi) each Guarantor, unless it is the other party to the
transaction, shall have by supplemental indenture in form and
substance satisfactory to the Trustee confirmed that after
consummation of such transaction its Guarantee shall apply, as such
Guarantee applied on the date it was granted, to the obligations of
the Issuers under this Indenture and the Notes; and
(vii) such Credit Party or Guarantor, as the case may be,
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 Issuers, the Capital Stock of which constitutes all or
substantially all of the properties and assets of such Issuer, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
such Issuer.
SECTION 5.2. SUCCESSOR SUBSTITUTED.
Upon any consolidation of either of the Issuers with, or merger of
either of the Issuers with or into, any other Person or any conveyance,
transfer or lease of the properties and assets of either of the Issuers
substantially as an entity in accordance with Section 5.1, the successor Person
formed by such consolidation or into which either of the Issuers 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, such Issuer under
this Indenture with the same effect as if such successor Person had been named
as such Issuer herein.
ARTICLE 6.
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):
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(i) default for 30 days in the payment when due of
interest (including Revenue Participation Interest, if any) 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
(including Revenue Participation Interest, if any) or Liquidated
Damages (if any) on Notes required to be purchased pursuant to Section
4.14 or Section 4.15 or failure by the Credit Parties to comply with
the provisions of Article V;
(iv) failure by any of the Credit Parties or any of their
Restricted Subsidiaries for 30 days after notice 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 any of the Credit
Parties or any of their Restricted Subsidiaries (or the payment of
which is guaranteed by any of the Credit Parties or any of their
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 any of the Credit Parties or any of their
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 million) aggregating in excess of $5 million, which
judgments are not paid, discharged or stayed within 60 days after
their entry;
(vii) breach by the Issuers of any representation or
warranty set forth in the Pledge Agreement, or default by the Issuers
in the performance of any covenant set forth in the Pledge Agreement,
or repudiation by the Issuers of any of their obligations under the
Pledge Agreement or the unenforceability of the Pledge Agreement
against the Issuers for any reason which in any one case or in the
aggregate results in a material impairment of the rights intended to
be afforded thereby;
(viii) termination or loss, for any reason, of the FCC
License; provided, however, that the transfer of the FCC License to
any of the Credit Parties shall not constitute an Event of Default;
(ix) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of any Issuer,
Guarantor, Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant
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 any Issuer, Guarantor,
Significant Subsidiary or any group of Restricted Subsidiaries that,
taken together, would constitute a Significant Subsidiary, a bankrupt
or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of any Issuer, Guarantor, Significant Subsidiary or any group
of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary, under any applicable Federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of any Issuer, Guarantor,
Significant Subsidiary or any group of Restricted Subsidiaries that,
taken together, would
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constitute a Significant 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 60
consecutive days;
(x) the commencement by any Issuer, Guarantor,
Significant Subsidiary or any group of Restricted Subsidiaries that,
taken together, would constitute a Significant 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 any Issuer, Guarantor, Significant Subsidiary or any group
of Restricted Subsidiaries that, taken together, would constitute a
Significant 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 any Issuer, Guarantor, Significant
Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant 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 any Issuer, Guarantor, Significant Subsidiary
or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary, in furtherance of any such
action; or
(xi) any Guarantee of the Notes shall be held in a
judicial proceeding to be unenforceable or invalid or shall cease for
any reason to be in full force and effect, or any Guarantor, or any
Person acting on behalf of any Guarantor, shall deny or disaffirm its
obligations under its Guarantee of any Notes.
SECTION 6.2. ACCELERATION.
(a) If an Event of Default, other than an Event of Default
specified in Section 6.1(ix) or (x), 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 outstanding Notes may declare the principal of and
accrued interest (including Revenue Participation Interest, if any) and
Liquidated Damages (if any) on all the outstanding Notes to be due and payable
by notice in writing to the Issuers and the Trustee specifying the respective
Event of Default, such notice to be deemed a "notice of acceleration" (the
"Acceleration Notice"), and the same shall become immediately due and payable.
(b) If an Event of Default specified in Section 6.1(ix) or (x)
occurs and is continuing, then all unpaid principal of, and premium (if any)
and accrued and unpaid interest (including Revenue Participation Interest, if
any) and Liquidated Damages (if any) on all of the outstanding Notes shall ipso
facto become and be immediately due and payable without any declaration or
further act 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 (including Revenue
Participation Interest, if any) 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 (including
Revenue Participation Interest, if any) and overdue principal, which has become
due otherwise than by such declaration of acceleration, has been paid, (iv) if
the Issuers have 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
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(or not taken) by or on behalf of the Issuers with the intention of avoiding
payment of the premium that the Issuers would have had to pay if the Issuers
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 6.1(a) or (b). If an Event of Default occurs prior to August 15, 2001
by reason of any such willful action (or inaction) by or on behalf of the
Issuers with the intention of avoiding the prohibition on redemption of the
Notes prior to August 15, 2001, 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) of or interest (including Revenue
Participation Interest, if any) 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, the Holders of not less than a
majority in principal amount of the outstanding Notes, by notice to the
Trustee, may waive an existing Default or Event of Default and its
consequences, except a Default in the payment of principal or premium (if any)
of or interest (including Revenue Participation Interest, if any) 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;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of satisfactory indemnity; and
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(e) during such 60-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 (including Revenue Participation Interest, if any) 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 (including Revenue
Participation Interest, if any) 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 (including
Revenue Participation Interest, if any) 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 Issuers or any other obligor on the Notes for the
whole amount of principal and accrued interest (including Revenue Participation
Interest, if any) 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.
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 Issuers 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
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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 (including Revenue Participation
Interest, if any) 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 (including Revenue Participation
Interest, if any) and Liquidated Damages, respectively; and
Fourth: to the Issuers, the Guarantors 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.
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 7.
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 a Default or 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 a Default or 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.
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(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.
(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 Issuers, to
examine the books, records, and premises of the Issuers, personally or by agent
or attorney and to consult with the officers and representatives of the
Issuers, including the Issuers' 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.
(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 Issuers or any Holder.
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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 Issuers, the Guarantors, or any of their respective
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 Issuers' use of the proceeds from the
Notes, and it shall not be responsible for any statement of the Issuers 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
(including Revenue Participation Interest, if any) 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).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Issuers 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 Issuers agree:
(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
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acceptance or administration of this trust, including the costs and
expenses of enforcing this Indenture against the Issuers (including,
without limitation, this Section 7.7) and of defending itself against
any claim (whether asserted by any Holder or the Issuers) or liability
in connection with the exercise or performance of any of its powers or
duties hereunder.
(b) The Trustee shall notify the Issuers promptly of any claim
asserted against the Trustee for which it may seek indemnity. Failure by the
Trustee to so notify the Issuers shall not relieve the Issuers of their
obligations hereunder.
(c) The Issuers 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 Issuers' 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 (including Revenue
Participation Interest, if any) 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 Issuers.
(e) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(ix) or (x) 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
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 Issuers. 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 Issuers.
(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
Issuers 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 Issuers by an appropriate partnership or 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
Issuers, by an appropriate partnership or 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 Issuers
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 Issuers. If no successor
Trustee shall have been so appointed by the Issuers 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 Issuer 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 Issuers 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 Issuers 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 Issuers
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 Issuers 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.
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
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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 ISSUERS.
If and when the Trustee shall be or become a creditor of either of the
Issuers (or any other obligor upon the Notes), the Trustee shall be subject to
the provisions of the TIA regarding the collection of claims against such
Issuer (or any such other obligor).
ARTICLE 8.
DEFEASANCE AND SATISFACTION AND DISCHARGE
SECTION 8.1. SECTION 8.1. DEFEASANCE AND COVENANT DEFEASANCE.
(a) Issuers' Option to Effect Defeasance or Covenant Defeasance.
The Issuers may at their option, by an appropriate partnership or 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.
(b) Defeasance and Discharge. Upon the Issuers' exercise of the
option provided in Section 8.1(a) applicable to this Section, the Issuers and
the Guarantors shall be deemed to have been discharged from their obligations
with respect to the outstanding Notes on the date the conditions set forth
below are satisfied (hereinafter, "Defeasance"). For this purpose, such
Defeasance means that the Issuers shall be deemed to have paid and discharged
the entire indebtedness represented by the outstanding Notes and to have
satisfied all their other obligations under such Notes and this Indenture
insofar as such Notes are concerned (and the Trustee, at the expense of the
Issuers, 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 (including Revenue Participation Interest, if any) and Liquidated
Damages (if any) on such Notes when such payments are due, (ii) the Issuers'
and the Guarantors' 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 Issuers may exercise their option under this
Section 8.1(b) notwithstanding the prior exercise of their option under Section
8.1(c).
(c) Covenant Defeasance. Upon the Issuers' exercise of the option
provided in Section 8.1(a) applicable to this Section, (i) the Issuers and the
Guarantors shall be released from their obligations under Sections 4.5 through
4.18, 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 Issuers
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 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 Issuers 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
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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 (including Revenue Participation
Interest, if any) and Liquidated Damages (if any) on the Notes on the
Maturity Date of such principal or installment of interest on the day
on 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 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 Issuers;
(iv) Such 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 Issuers 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 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
Issuers shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Issuers have 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
Issuers 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 Issuers shall have delivered to the Trustee an
Opinion of Counsel to the effect that such deposit and 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.
SECTION 8.2. SATISFACTION AND DISCHARGE.
In addition to the Issuers' rights under Section 8.1, the Issuers may
terminate all of their obligations under this Indenture, and the obligations of
the Guarantors shall terminate (subject to Section 8.3), 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
Issuers and thereafter repaid to the Issuers 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 Issuers have irrevocably
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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 (including Revenue
Participation Interest, if any) and Liquidated Damages (if any) on the Notes
not theretofore delivered to the Trustee for cancellation;
(b) the Issuers have paid or caused to be paid all other sums
payable hereunder;
(c) the Issuers have 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 Issuers have 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 Issuers, the Guarantors 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 Issuers, the Guarantors 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 Issuers have paid or caused to be paid all other sums payable
hereunder and (iii) the Issuers have 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 writing the discharge of the Issuers' and
Guarantors' 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
(including Revenue Participation Interest, if any) 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 Issuers and the Guarantors 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 Issuers 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.
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SECTION 8.6. REPAYMENT TO THE ISSUERS OR THE GUARANTORS; 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 (including Revenue Participation Interest, if any) 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 Issuers (or, if deposited by a
Guarantor, to such Guarantor) upon written request in the form of an Officers'
Certificate, and the Holder of such security shall thereafter, as a creditor,
look only to the Issuers (or such Guarantor) 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 Issuers (or such Guarantor).
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 Issuers' and
the Guarantors' 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 Issuers or the Guarantors make any payment of
principal and premium (if any) on any Note following the reinstatement of their
obligations, the Issuers and the Guarantors 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 9.
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 Issuers and the Guarantors, when authorized by
an appropriate partnership or 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 the Notes, the Guarantees or the Pledge Agreement, for any of the
following purposes:
(1) to cure any ambiguity, defect or
inconsistency; provided that such amendment or supplement does
not, in the opinion of the Trustee, adversely affect the legal
rights of any Holder;
(2) to comply with Article V;
(3) to provide for uncertificated Notes in
addition to or in place of certificated Notes;
(4) to comply with any requirements of the
Commission in order to effect or maintain the qualification of
this Indenture under the TIA;
(5) to make any change that would provide any
additional benefit or rights to the Holders or that does not
adversely affect the legal rights of any Holder;
(6) 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
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restrictions contained in the Original Notes will be modified
or eliminated as appropriate, and which will be treated
together with any outstanding Original Notes as a single issue
of securities); or
(7) to make any other change that does not, in
the opinion of the Trustee, adversely affect in any material
respect the legal rights of any Holder;
provided that the Issuers deliver to the Trustee an Opinion of Counsel and an
Officer's 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 and the Guarantors, when
authorized by an appropriate partnership or board resolution evidenced by an
Officers' Certificate and the Trustee, together with the written consent of the
Holder or Holders of at least a majority in aggregate principal amount of the
outstanding Notes, may amend or supplement this Indenture, the Notes, the
Guarantee or the Pledge Agreement without notice to or the consent of any other
Holder. Subject to Section 6.7, the Holder or Holders of at least a majority in
aggregate principal amount of the outstanding Notes may waive compliance by the
Company with any provision of this Indenture or the Notes without notice to or
the consent of any other Holder (including consents obtained in connection with
a tender offer or exchange offer for Notes). No amendment, supplement or
waiver, including a waiver pursuant to Section 6.4, shall, without the consent
of each Holder of each Note affected thereby:
(1) reduce the principal amount of Notes whose
Holders must consent to an amendment, supplement or waiver of
any provision of this Indenture, the Notes, the Guarantee or
the Pledge Agreement;
(2) reduce the rate of or change or have the
effect of changing the time for payment of any interest
(including Revenue Participation Interest, if any) on any
Note;
(3) reduce the principal of or change or have the
effect of changing the fixed maturity of any Note, or change
the date on which any Notes may be subject to redemption, or
reduce the redemption price therefor;
(4) make any Note payable in money other than
that stated in the Notes;
(5) 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 (including Revenue
Participation Interest, if any) or Liquidated Damages (if any)
on, the Notes;
(6) waive a Default or Event of Default in the
payment of principal and premium (if any) of, and interest
(including Revenue Participation Interest, if any) or
Liquidated Damages (if any) on, the Notes (except a recision
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);
(7) waive a redemption payment with respect to
any Note (other than a payment required by Section 4.14 and
4.15);
(8) release any Guarantor from any of its
obligations under its Guarantee or this Indenture otherwise
than in accordance with the terms of this Indenture; or
(9) make any change in the amendment and waiver
provisions of this Section 9.2.
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Upon the request of the Issuers accompanied by an Officers'
Certificate in form satisfactory to the Trustee certifying corporate or
partnership resolutions, as the case may be, 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 Issuers 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.
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 Issuers shall so
determine, new Notes so modified as to conform, in the opinion of the Trustee
and the Issuers, to any such supplemental indenture may be prepared and
executed by the Issuers 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 Issuers received before the date on which the
Trustee receives an Officers'
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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 Issuers 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, which record date , if so fixed, shall be fixed pursuant
to Section 11.7(e) hereof.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (1)
through (9) 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 (including Revenue Participation 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.
ARTICLE 10.
GUARANTEE
SECTION 10.1. UNCONDITIONAL GUARANTEE.
Each Guarantor hereby fully and unconditionally guarantees, jointly
and severally, 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 Guarantors under this Indenture or the Notes that: (i) the principal of
and premium (if any) and interest (including Revenue Participation Interest, if
any) 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 (including Revenue Participation Interest, if any), to
the extent lawful, on the Notes and all other obligations of the Issuers 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 10.5. Each Guarantor hereby agrees that its
obligations hereunder shall be unconditional, irrespective of the validity, or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Issuers, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
Each Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Issuers,
any right to require a proceeding first against the Issuers, protest, notice
and all demands whatsoever and covenants that this Guarantee will not be
discharged (except to the extent released pursuant to Section 8.1) except by
complete performance of the obligations contained in the Notes, this Indenture
and in this Guarantee. If any Holder or the Trustee is required by any court or
otherwise to return to the Issuers, any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Issuers or any
Guarantor, any amount paid by the Issuers or any Guarantor to the Trustee or
such Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect (except to the extent released pursuant to
Section 8.1). Each Guarantor further agrees that, as between each 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 this 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 Guarantor for the
purpose of this Guarantee.
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SECTION 10.2. PRIORITY OF GUARANTEE.
The obligations of each Guarantor to the Holders of Notes and to the
Trustee pursuant to this Guarantee and this Indenture will rank senior in right
and priority of payment to all other indebtedness of such Guarantor that is
expressly subordinated to this Guarantee and will rank pari passu in right and
priority of payment with all other indebtedness of such Guarantor that is not
expressly so subordinated to such Guarantee, except to the extent of any
collateral securing such other indebtedness.
SECTION 10.3. SEVERABILITY.
In case any provision of this 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. RELEASE OF A SUBSIDIARY GUARANTOR.
Upon the sale or disposition (whether by merger, stock purchase, asset
sale or otherwise) of a Subsidiary Guarantor (or all or substantially all its
assets) to a Person which is not a Subsidiary of the Company and which sale or
disposition is otherwise in compliance with the terms of this Indenture, such
Subsidiary Guarantor shall be deemed released from all obligations under this
Article X without any further action required on the part of the Trustee or any
Holder.
The Trustee shall deliver an appropriate instrument evidencing such
release upon receipt of a request by the Issuers accompanied by an Officers'
Certificate 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 (including Revenue Participation
Interest) and Liquidated Damages (if any) on the Notes as provided in this
Article X.
SECTION 10.5. LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY.
Each Subsidiary Guarantor, and by its acceptance hereof each Holder,
hereby confirms that it is the intention of all such parties that the guarantee
by such Subsidiary Guarantor pursuant to Section 10.1 not constitute a
fraudulent transfer or conveyance for purposes of the Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar Federal or state law. To effectuate the foregoing intention, the
Holders and each Subsidiary Guarantor hereby irrevocably agree that the
obligations of such Subsidiary Guarantor under its Guarantee 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 or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor
under its Guarantee or pursuant to Section 10.6, result in the obligations of
such Subsidiary Guarantor under this Guarantee not constituting such fraudulent
transfer or conveyance.
SECTION 10.6. CONTRIBUTION.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under this Guarantee, such Funding Guarantor shall be
entitled to a contribution from all other Subsidiary Guarantors in a pro rata
amount based on the Adjusted Net Assets of each Subsidiary Guarantor (including
the Funding Guarantor) for all payments, damages and expenses incurred by that
Funding Guarantor in discharging the Issuers' obligations with respect to the
Notes or any other Subsidiary Guarantor's obligations with respect to this
Guarantee. "Adjusted Net Assets" of such Subsidiary Guarantor at any date shall
mean the lesser of the amount by which (x) the fair value of the property of
such Subsidiary Guarantor exceeds the total amount of liabilities, including,
without limitation, contingent liabilities (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date (other than
liabilities of such Subsidiary Guarantor under Indebtedness of such Subsidiary
Guarantor that is subordinated in right of payment to this Guarantee of such
Subsidiary Guarantor)), but excluding liabilities under this Guarantee, of such
Subsidiary Guarantor at such date and (y) the
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present fair salable value of the assets of such Subsidiary Guarantor at such
date exceeds the amount that will be required to pay the probable liability of
such Subsidiary Guarantor on its debts (after giving effect to all other fixed
and contingent liabilities incurred or assumed on such date and after giving
effect to any collection from any Subsidiary of such Subsidiary Guarantor in
respect of the obligations of such Subsidiary under this Guarantee), excluding
debt in respect of this Guarantee of such Subsidiary Guarantor, as they become
absolute and matured.
SECTION 10.7. WAIVER OF SUBROGATION.
Until all Obligations are paid in full each Guarantor hereby
irrevocably waives any claim or other rights which it may now or hereafter
acquire against the Issuers that arise from the existence, payment, performance
or enforcement of such Guarantor's obligations under this 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 Issuers, whether or not
such claim, remedy or right arises in equity, or under contract, statute or
common law, including, without limitation, the right to take or receive from
the Company, directly or indirectly, in cash or other property or by set-off or
in any other manner, payment or security on account of such claim or other
rights. If any amount shall be paid to any 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 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. Each Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by
this Indenture and that the waiver set forth in this Section 10.7 is knowingly
made in contemplation of such benefits.
SECTION 10.8. EXECUTION OF GUARANTEE.
This Indenture shall evidence the Guarantee to the Holders as set
forth in this Article X. Each Guarantor hereby certifies that this Guarantee
has been duly authorized by all requisite partnership or corporate action, as
the case may be, and that the execution and delivery of this Indenture to the
Trustee shall constitute due delivery of such Guarantee on behalf of such
Guarantor.
SECTION 10.9. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each 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 or other law that would prohibit or forgive each such Guarantor from
performing its Guarantee as contemplated herein, 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 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.
SECTION 10.10. OBLIGATIONS OF THE GUARANTORS UNCONDITIONAL.
Nothing contained in this Indenture is intended to or shall impair, as
between the Guarantors and the Holders, the obligation of the Guarantors, which
is absolute and unconditional, to pay to the Holders all amounts due and
payable under the Guarantees as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of the Guarantors, nor shall anything
herein or therein prevent the Trustee or any Holder from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture in respect of cash, property or securities of the Guarantors received
upon the exercise of any such remedy. Upon any payment or distribution of
assets of any Guarantor referred to in this Article X, the Trustee and the
Holders shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which any dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the receiver,
trustee in bankruptcy, liquidating trustee or agent or other Person making any
payment or distribution to the Trustee or to the Holders for the purpose of
ascertaining the Persons entitled to
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participate in such payment or distribution, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article X.
ARTICLE 11.
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.
SECTION 11.2. NOTICES TO ISSUERS 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 Issuers or the c/o ORBCOMM Global, L.P.
Guarantors (other than 2455 Horse Pen Road
OCC and Teleglobe Herndon, Virginia 20171
Mobile):
Attn: General Counsel
Facsimile: 703- 406-5933
If to OCC: Orbital Communications Corp.
21700 Atlantic Boulevard
Dulles, Virginia 20166
Attn: General Counsel
Facsimile: 703-406-5572
If to Teleglobe Mobile: c/o Teleglobe Inc.
1000 rue de La Gauchetiere ouest
Montreal, Quebec H3B 4X5 Canada
Attn: General Counsel
Facsimile: 514-868-7719
If to the Trustee: Marine Midland Bank
140 Broadway, 12th Floor
New York, New York 10005-1180
Attn: Corporate Trust Services
Facsimile: 212-658-6425
Each of the Issuers, the Guarantors 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
Issuers, the Guarantors 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
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mail to the Depository; and (ii) in the case of securities 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 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 Issuers to the Trustee
to take any action under any provision of this Indenture, the Issuers 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 Issuers, 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.
(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 Issuers 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.
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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
Issuers. 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 Issuers, 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
Issuers in reliance thereon, whether or not notation of such action is made upon
such Note.
(e) The Issuers 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 Indenture to be given, made or taken by
Holders of Notes; provided that the Issuers 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 Issuers 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 Issuers 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 Issuers, at their 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
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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 Issuers' expense, shall cause notice of such
record date, the proposed action by Holders to be given to the Issuers 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 Issuers and the Guarantors in this
Indenture, the Notes and the Guarantees shall bind their successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 11.9. SEVERABILITY.
In case any one or more of the provisions in this Indenture or in the
Notes or in the Guarantees 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 or in the Guarantees,
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, THE NOTES AND THE GUARANTEES 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 Guarantees, payment of interest (including Revenue
Participation Interest, if any) 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 Issuers and the Guarantors to the extent
provided in clause (ii) below, no person or entity (including, without
limitation, the past, present or future general, limited partners and/or
shareholders of OCC and Teleglobe Mobile and the directors,
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officers and employees of the Issuers and the Guarantors) shall have any
liability whatsoever with respect to or arising out of this Indenture, the
Notes, the Guarantees or any of the Issuers' or the Guarantors' obligations
thereunder or any agreements or documents executed by the Issuers or the
Guarantors in connection therewith and (ii) claims with respect to this
Indenture, the Notes and the Guarantees and any obligations thereunder or under
any agreements or documents executed in connection therewith shall be satisfied
solely from the assets of the Issuers and the Guarantors. 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 Amended
Indenture to be duly executed as of the day and year first above written,
ORBCOMM GLOBAL, L.P.
By /s/ Scott L. Webster
--------------------------
Name: Scott L. Webster
Title: Chairman and Chief Executive Officer
ORBCOMM GLOBAL CAPITAL CORP.
By /s/ Scott L. Webster
--------------------------
Name: Scott L. Webster
Title: President
ORBITAL COMMUNICATIONS CORPORATION
By /s/ Scott L. Webster
--------------------------
Name: Scott L. Webster
Title: President
TELEGLOBE MOBILE PARTNERS
By: Teleglobe Mobile Investment Inc.,
its managing partner
By /s/ Claude SEGUIN
---------------------------
Name: Claude Seguin
Title: Chief Executive Officer and Treasurer
ORBCOMM USA, L.P.
By /s/ Robert F. Latham
--------------------------
Name: Robert F. Latham
Title: President
ORBCOMM INTERNATIONAL PARTNERS, L.P.
By /s/ W. Bartlett Snell
---------------------------
Name: W. Bartlett Snell
Title: Vice President and Treasurer
MARINE MIDLAND BANK,
as Trustee
By /s/ Frank J. Godino
--------------------------
Name: Frank J. Godino
Title: Vice President
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EXHIBIT A
FACE OF NOTE
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE
(THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS THREE YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH ORBCOMM
GLOBAL, L.P. AND ORBCOMM GLOBAL CAPITAL CORP. (THE "ISSUERS") OR ANY AFFILIATE
OF EITHER OF THE ISSUERS WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
THIS SECURITY) ONLY (A) TO THE ISSUERS, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR
SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT THAT IS ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT, OR FOR
THE ACCOUNT OF AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE ISSUERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND IN THE CASE OF THE FOREGOING CLAUSE (E), A CERTIFICATE OF TRANSFER
IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY TO BE COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE ISSUERS AND THE TRUSTEE.
A-1
74
CUSIP No.:
ORBCOMM GLOBAL, L.P.
ORBCOMM GLOBAL CAPITAL CORP.
14% SENIOR NOTE DUE 2004
No. $
ORBCOMM Global, L.P., a Delaware limited partnership ("ORBCOMM"), and
ORBCOMM Global Capital Corp., a Delaware corporation ("Capital" and, together
with ORBCOMM, the "Issuers"), for value received, jointly and severally,
promise to pay to ______________ or registered assigns, the principal sum of
____________________ Dollars on August 15, 2004.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
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, each of the Issuers has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
ORBCOMM GLOBAL, L.P.
By:
---------------------------------------
Name:
Title:
ORBCOMM GLOBAL CAPITAL CORP.
By:
---------------------------------------
Name:
Title:
Dated:
------------
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Trustee's Certificate of Authentication
This is one of the 14% Senior Notes due 2004 referred to in the
within-mentioned Indenture.
MARINE MIDLAND BANK,
as Trustee
By:
----------------------------------------
Authorized Signatory
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(REVERSE OF NOTE)
14% Senior Note due 2004
Capitalized terms used herein shall have the meanings ascribed
to them in the Indenture (as defined below) unless otherwise indicated.
1. Interest. ORBCOMM Global, L.P., a Delaware limited
partnership ("ORBCOMM"), and ORBCOMM Global Capital Corp., a Delaware
corporation ("Capital" and, together with ORBCOMM, the "Issuers"), promise 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 August 7, 1996.
The Issuers will pay interest semi-annually in arrears on each Interest Payment
Date, commencing February 15, 1997. Interest will be computed on the basis of
a 360-day year of twelve 30-day months.
The Issuers shall pay interest on overdue principal and on overdue
installments of interest (including Revenue Participation Interest, if any)
from time to time on demand at the rate borne by the Notes plus 1.0% per annum
(without regard to any applicable grace periods) to the extent lawful.
In addition, the Notes shall bear Revenue Participation
Interest, calculated as described below, from the Issue Date to the date of
payment of the Notes. Installments of Revenue Participation Interest accrued
through the Accrual Period (as defined below) last ended or previously deferred
shall become due and payable semi-annually on each February 15 and August 15
after the Issue Date, commencing on February 15, 1997, to the Holders of record
at the close of business on the preceding February 1 or August 1.
Additionally, all installments of accrued or deferred Revenue Participation
Interest will become due and payable (and may not be further deferred) with
respect to any principal amount of the Notes upon maturity (whether at stated
maturity, upon acceleration, maturity of repurchase obligation or otherwise) of
such principal amount of the Notes.
The Issuers, at their option, may defer payment of all or a
portion of Revenue Participation Interest then otherwise due if, and only to
the extent that, (a) the payment of such portion of Revenue Participation
Interest will cause the Credit Parties' Fixed Charge Coverage Ratio for the
four consecutive fiscal quarters last completed prior to such interest payment
date to be less than 2.0:1 on a pro forma basis after giving effect to the
assumed payment of such Revenue Participation Interest (as if such payment were
made during such four quarter period) (but may not defer such portion which, if
paid, will not cause such Credit Parties' Fixed Charge Coverage Ratio to be
less than 2.0:1); provided, however, that for purposes of calculating such
Credit Parties' Fixed Charge Coverage Ratio for any period, (x) the amount
representing Revenue Participation Interest that has been or will be deferred
for such period shall not be included in the calculation of Credit Parties'
Fixed Charges for such period and (y) the amount representing Revenue
Participation Interest paid in such period (whether relating to such period or
any prior period) shall be included in the calculation of Credit Parties' Fixed
Charge Coverage for such period, and (b) the principal of the Notes
corresponding to such Revenue Participation Interest has not then matured and
become due and payable (at stated maturity, upon acceleration, upon maturity of
repurchase obligation or otherwise). Revenue Participation Interest that is
deferred shall become due and payable on the earlier of (i) the next succeeding
Interest Payment Date on which such Revenue Participation Interest is not
permitted to be deferred, and (ii) upon the maturity of the corresponding
principal of the Notes (whether at stated maturity, upon acceleration, upon
maturity of repurchase obligation or otherwise). No interest will accrue on
any deferred Revenue Participation Interest that has not yet become due and
payable.
Each installment of Revenue Participation Interest will be
calculated to accrue (an "Accrual Period") from, but not including, the most
recent date through which Revenue Participation Interest has been paid or
provided for or through which Revenue Participation Interest has been
calculated and deferred (or from and including the Issue Date if no installment
of Revenue Participation Interest has
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been paid, provided for or deferred) to, and including, either (a) the last day
of the next Semi-annual Period if the corresponding principal of the Notes has
not become due and payable (or December 31, 1996 if no installment of Revenue
Participation Interest has been paid, provided for or deferred) or (b) the date
of payment if the corresponding principal of the Notes has become due and
payable (whether at stated maturity, upon acceleration, upon maturity of
repurchase obligation or otherwise). With respect to each Accrual Period,
Revenue Participation Interest will accrue daily on the principal of each Note
outstanding during such period as follows: (i) for each day during each month
that ends during such Accrual Period and which month ends at least 25 days
prior to the date of payment, an amount equal to 1/30th of the Monthly Revenue
Participation Interest on the Note for such month until all of such Monthly
Revenue Participation Interest on the Note shall be accrued (and all of such
month's Monthly Revenue Participation Interest on the Note shall be accrued by
the last day of such month) and (ii) for any day in any remaining period,
1/30th of the prior month's Monthly Revenue Participation Interest on the
Notes. For purposes hereof, "Monthly Revenue Participation Interest" means,
with respect to any month and any Note, the product of 5.0% of System Revenue
for such month times a fraction, the numerator of which is the principal amount
outstanding on such Note and the denominator of which is $170,000,000.
Any reference in this Note to "accrued and unpaid interest" includes
the amount of unpaid Revenue Participation Interest and Liquidated Damages, if
any, due and payable thereon.
2. Method of Payment. The Issuers shall pay interest
(including Revenue Participation Interest, if any) on the Notes (except
defaulted interest) and Liquidated Damages, if any, to the Persons who are the
Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date even if the Notes are cancelled on registration of
transfer or registration of exchange after such Record Date. Holders must
surrender Notes to a Paying Agent to collect principal payments. The Issuers
shall pay principal and interest in U.S. dollars. The Issuers may pay
principal and interest by their check payable in such U.S. dollars or by wire
transfer as provided in the Indenture. The Issuers may deliver any such
interest payment to the Paying Agent or to a Holder at the Holder's registered
address.
3. Paying Agent and Registrar. Initially, Marine
Midland Bank, a New York banking corporation and trust company (the "Trustee",
which term includes any successor trustee under the Indenture referred to
below), will act as Paying Agent and Registrar. The Issuers may change the
Paying Agent or Registrar without notice to or consent of the Holders.
4. Indenture and Guarantee. The Issuers issued the Note
under an Indenture, dated as of August 7, 1996 (the "Indenture"), among the
Issuers, Orbital Communications Corporation, a Delaware corporation ("OCC"),
Teleglobe Mobile Partners, a Delaware general partnership ("Teleglobe Mobile"),
ORBCOMM USA, L.P., a Delaware limited partnership ("USA"), and ORBCOMM
International Partners, L.P., a Delaware limited partnership ("International"
and, together with OCC, Teleglobe Mobile and USA, the "Guarantors"), 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 Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date
of the Indenture until such time as the Indenture is qualified under the TIA,
and thereafter as in effect on the date on which the Indenture is qualified
under the TIA. 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 Issuers limited in aggregate principal amount to $170,000,000. Payment
on each Note is guaranteed on an unsecured basis by the Guarantors pursuant to
Article X of the 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.
5. Redemption.
(a) Optional Redemption. The Notes will be redeemable,
at the option of the Issuers, in whole or in part at any time or from time to
time, on and after August 15, 2001, upon not less than 30 nor more than 60
days' notice, at the following redemption prices (expressed as percentages of
the
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principal amount thereof) if redeemed during the twelve-month period commencing
on August 15 of the years set forth below, plus, in each case, accrued and
unpaid interest (including Revenue Participation Interest, if any) and
Liquidated Damages (if any) thereon to the applicable date of redemption:
Year Redemption Price
---- ----------------
2001 . . . . . . . . . . . . . . . 115.000%
2002 . . . . . . . . . . . . . . . 107.500%
2003 and thereafter . . . . . . . . 100.000%
(b) Optional Redemption Upon Sale of Capital Stock.
Notwithstanding the provisions of paragraph (a) above, at any time, or from
time to time, on or prior to August 15, 1999, the Issuers may, at their option,
use the net proceeds of one or more sales of Capital Stock (other than
Disqualified Stock) of OCC, Teleglobe Mobile or the Company to redeem the Notes
at a redemption price equal to 115.000% of the principal amount thereof, plus
accrued and unpaid interest (including Revenue Participation Interest, if any)
and Liquidated Damages (if any) thereon to the redemption date; provided,
however, that (i) not less than $127,500,000 aggregate principal amount of
Notes shall remain outstanding immediately after any such redemption and (ii)
such redemption shall occur within 30 days after the date of closing of such
sale of Capital Stock.
6. Redemption. The Issuers shall not be required to
make mandatory redemption or sinking fund payments with respect to the Notes,
except as provided in Section 8 hereof and Sections 4.14 and 4.15 of the
Indenture.
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
(including Revenue Participation Interest, if any) and Liquidated Damages (if
any).
8. Offers to Purchase. 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 Issuers 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 (including Revenue Participation Interest, if any) and Liquidated
Damages (if any) to the date of purchase.
9. Registration Rights. Pursuant to the Registration
Rights Agreement among the Issuers, the Guarantors and the Initial Purchasers,
the Issuers will be obligated to consummate an exchange offer pursuant to which
the Holder of this Note shall have the right to exchange this Note for the
Issuers' Series B 14% Senior Notes due 2004 (the "Exchange Notes"), which will
be registered under the Securities Act, in like principal amount and having
terms identical in all material respects as the Original Notes. The Holders of
the Original Notes shall be entitled to receive certain additional interest
payments in the event such exchange offer is not consummated and upon certain
other conditions, all pursuant to and in accordance with the terms of the
Registration Rights Agreement.
10. Denomination; Transfer; Exchange. The Notes are
issued in fully registered form in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register any transfer or exchange of Notes
in accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to
pay certain transfer taxes or
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similar governmental charges payable in connection therewith as provided in the
Indenture. The Registrar need not register the transfer of or exchange of any
Notes or portions thereof selected for redemption.
11. Persons Deemed Owners. The Holder of a Note shall be
treated as the owner of such Note for all purposes.
12. 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 Issuers or the Guarantors, as the
case may be, after which all liability of the Trustee and Paying Agent with
respect to such money shall cease.
13. Discharge Prior to Redemption or Maturity. If the
Issuers and/or the Guarantors at any time deposit with the Trustee U.S. dollars
or Government Securities sufficient to pay the principal of and interest
(including Revenue Participation Interest, if any, and Liquidated Damages, if
any) on the Notes to redemption or maturity, and comply with the other
provisions of the Indenture relating thereto, the Issuers and the Guarantors
will be discharged from certain provisions of the Indenture and the Notes
(including certain covenants, but excluding their obligation to pay the
principal of, and interest (including Revenue Participation Interest, if any)
and Liquidated Damages (if any) payable on, the Notes).
14. Amendment; Supplement; Waiver. Subject to certain
exceptions, the Indenture, the Notes, the Pledge Agreement or the Guarantees
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.
15. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Issuers, the Guarantors and their Restricted
Subsidiaries to, among other things, incur additional Indebtedness, pay
dividends or make other distributions, repurchase Equity Interests, repay
subordinated Indebtedness, make certain other Restricted Payments, create
certain Liens, enter into certain transactions with Affiliates, sell assets,
issue or sell Equity Interests of the Issuers' Restricted Subsidiaries, or
enter into certain mergers or consolidations. Such limitations are subject to
important qualifications and exceptions. The Issuers must annually report to
the Trustee on compliance with such limitations.
16. 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 (including Revenue Participation Interest, if any) or
Liquidated Damages, if any) payable on, the Notes if it determines that
withholding notice is in the Holders' interest.
17. Individual Rights of Trustee. Each of the Trustee,
the Paying Agent and the Registrar under the Indenture, in its individual or
any other capacity, may become the owner or pledgee of Notes and may otherwise
deal with the Issuers, the Guarantors or any of their respective Subsidiaries
or Affiliates as if it were not the Trustee or such agent.
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18. No Recourse Against Others; Limitation on Liability.
Notwithstanding anything contained in the Indenture or the Notes to the
contrary, (i) except for the Issuers and the Guarantors to the extent provided
in clause (ii) below, no person or entity (including, without limitation, the
past, present or future general and limited partners and/or shareholders of OCC
and Teleglobe Mobile and the directors, officers and employees of the Issuers
and the Guarantors) shall have any liability whatsoever with respect to or
arising out of the Indenture, the Notes, the Guarantees or any of the Issuers'
or the Guarantors' obligations thereunder or any agreements or documents
executed by the Issuers or the Guarantors in connection therewith and (ii)
claims with respect to the Indenture, the Notes and the Guarantees and any
obligations thereunder or under any agreements or documents executed in
connection therewith shall be satisfied solely from the assets of the Issuers
and the Guarantors. 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.
19. Authentication. This Note shall not be valid until
the Trustee or Authenticating Agent manually signs the certificate of
authentication on this Note.
20. Governing Law. This Note, the Indenture and the
Guarantees 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.
21. Abbreviations and Defined Terms. Customary
abbreviations may be used in the name of a Holder of a Note 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).
22. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Issuers have caused CUSIP numbers to be printed on the Notes as a convenience
to the Holders of the Notes. No representation is made as to the accuracy of
such numbers as printed on the Notes and reliance may be placed only on the
other identification numbers printed hereon.
23. 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 Issuers 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 ORBCOMM Global, L.P., 21700
Atlantic Boulevard, Dulles, Virginia 20166, Attn: Secretary.
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ASSIGNMENT FORM
If you the Holder want 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 Issuers. The agent may substitute
another to act for him.
Date: Signed:
-------------------------------------- --------------------------------------------------
(Signed exactly as your
name appears on the other
side of this Note)
Signature Guarantee:
------------------------------------------------------------
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) August 7, 1999, 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:
- --------------------
(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.
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(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 the Securities Act; or
(6) __ pursuant to an effective registration statement under the Act;
or
(7) __ pursuant to another available exemption from the registration
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
Issuers 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 Issuers 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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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 Sections 2.6, 2.15 and 2.16 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 Issuers 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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[OPTION OF HOLDER TO ELECT PURCHASE]
If you elect to have this Note purchased by the Issuers 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 Issuers
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
with the name as it appears upon the of the
within Note in every particular alteration or
any change whatsoever and be 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.
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EXHIBIT B
CUSIP No.:
ORBCOMM GLOBAL, L.P.
ORBCOMM GLOBAL CAPITAL CORP.
SERIES B 14% SENIOR NOTE DUE 2004
No. $
ORBCOMM Global, L.P., a Delaware limited partnership
("ORBCOMM"), and ORBCOMM Global Capital Corp., a Delaware corporation
("Capital" and, together with ORBCOMM, the "Issuers"), for value received,
jointly and severally, promise to pay to ______________ or registered assigns,
the principal sum of _____________________ Dollars on August 15, 2004.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
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, each of the Issuers has caused this Note
to be signed manually or by facsimile by its duly authorized officers.
ORBCOMM GLOBAL, L.P.
By:
-------------------------------------------
Name:
Title:
ORBCOMM GLOBAL CAPITAL CORP.
By:
-------------------------------------------
Name:
Title:
Dated:
------------------
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Trustee's Certificate of Authentication
This is one of the 14% Senior Notes due 2004 referred to in the
within-mentioned Indenture.
MARINE MIDLAND BANK,
as Trustee
By:
---------------------------------
Authorized Signatory
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(REVERSE OF NOTE)
Series B 14% Senior Note due 2004
Capitalized terms used herein shall have the meanings ascribed
to them in the Indenture (as defined below) unless otherwise indicated.
5. Interest. ORBCOMM Global, L.P., a Delaware limited
partnership ("ORBCOMM"), and ORBCOMM Global Capital Corp., a Delaware
corporation ("Capital" and, together with ORBCOMM, the "Issuers"), promise 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 August 7, 1996.
The Issuers will pay interest semi-annually in arrears on each Interest Payment
Date, commencing February 15, 1997. Interest will be computed on the basis of
a 360-day year of twelve 30-day months.
The Issuers shall pay interest on overdue principal and on
overdue installments of interest (including Revenue Participation Interest, if
any) from time to time on demand at the rate borne by the Notes plus 1.0% per
annum (without regard to any applicable grace periods) to the extent lawful.
In addition, the Notes shall bear Revenue Participation
Interest, calculated as described below, from the Issue Date to the date of
payment of the Notes. Installments of Revenue Participation Interest accrued
through the Accrual Period (as defined below) last ended or previously deferred
shall become due and payable semi-annually on each February 15 and August 15
after the Issue Date, commencing on February 15, 1997, to the Holders of record
at the close of business on the preceding February 1 or August 1.
Additionally, all installments of accrued or deferred Revenue Participation
Interest will become due and payable (and may not be further deferred) with
respect to any principal amount of the Notes upon maturity (whether at stated
maturity, upon acceleration, maturity of repurchase obligation or otherwise) of
such principal amount of the Notes.
The Issuers, at their option, may defer payment of all or a
portion of Revenue Participation Interest then otherwise due if, and only to
the extent that, (a) the payment of such portion of Revenue Participation
Interest will cause the Credit Parties' Fixed Charge Coverage Ratio for the
four consecutive fiscal quarters last completed prior to such interest payment
date to be less than 2.0:1 on a pro forma basis after giving effect to the
assumed payment of such Revenue Participation Interest (as if such payment were
made during such four quarter period) (but may not defer such portion which, if
paid, will not cause such Credit Parties' Fixed Charge Coverage Ratio to be
less than 2.0:1); provided, however, that for purposes of calculating such
Credit Parties' Fixed Charge Coverage Ratio for any period, (x) the amount
representing Revenue Participation Interest that has been or will be deferred
for such period shall not be included in the calculation of Credit Parties'
Fixed Charges for such period and (y) the amount representing Revenue
Participation Interest paid in such period (whether relating to such period or
any prior period) shall be included in the calculation of Credit Parties' Fixed
Charge Coverage for such period, and (b) the principal of the Notes
corresponding to such Revenue Participation Interest has not then matured and
become due and payable (at stated maturity, upon acceleration, upon maturity of
repurchase obligation or otherwise). Revenue Participation Interest that is
deferred shall become due and payable on the earlier of (i) the next succeeding
Interest Payment Date on which such Revenue Participation Interest is not
permitted to be deferred, and (ii) upon the maturity of the corresponding
principal of the Notes (whether at stated maturity, upon acceleration, upon
maturity of repurchase obligation or otherwise). No interest will accrue on
any deferred Revenue Participation Interest that has not yet become due and
payable.
Each installment of Revenue Participation Interest will be
calculated to accrue (an "Accrual Period") from, but not including, the most
recent date through which Revenue Participation Interest has been paid or
provided for or through which Revenue Participation Interest has been
calculated and deferred (or from and including the Issue Date if no installment
of Revenue Participation Interest has been paid, provided for or deferred) to,
and including, either (a) the last day of the next Semi-annual Period if the
corresponding principal of the Notes has not become due and payable (or
December 31, 1996 if no installment of Revenue Participation Interest has been
paid, provided for or deferred) or (b) the date of payment if the corresponding
principal of the Notes has become
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due and payable (whether at stated maturity, upon acceleration, upon maturity
of repurchase obligation or otherwise). With respect to each Accrual Period,
Revenue Participation Interest will accrue daily on the principal of each Note
outstanding during such period as follows: (i) for each day during each month
that ends during such Accrual Period and which month ends at least 25 days
prior to the date of payment, an amount equal to 1/30th of the Monthly Revenue
Participation Interest on the Note for such month until all of such Monthly
Revenue Participation Interest on the Note shall be accrued (and all of such
month's Monthly Revenue Participation Interest on the Note shall be accrued by
the last day of such month) and (ii) for any day in any remaining period,
1/30th of the prior month's Monthly Revenue Participation Interest on the
Notes. For purposes hereof, "Monthly Revenue Participation Interest" means,
with respect to any month and any Note, the product of 5.0% of System Revenue
for such month times a fraction, the numerator of which is the principal amount
outstanding on such Note and the denominator of which is $170,000,000.
Any reference in this Note to "accrued and unpaid interest"
includes the amount of unpaid Revenue Participation Interest and Liquidated
Damages, if any, due and payable thereon.
6. Method of Payment. The Issuers shall pay interest
(including Revenue Participation Interest, if any) on the Notes (except
defaulted interest) and Liquidated Damages, if any, to the Persons who are the
Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date even if the Notes are cancelled on registration of
transfer or registration of exchange after such Record Date. Holders must
surrender Notes to a Paying Agent to collect principal payments. The Issuers
shall pay principal and interest in U.S. dollars. The Issuers may pay
principal and interest by their check payable in such U.S. dollars or by wire
transfer as provided in the Indenture. The Issuers may deliver any such
interest payment to the Paying Agent or to a Holder at the Holder's registered
address.
7. Paying Agent and Registrar. Initially, Marine
Midland Bank, a New York banking corporation and trust company (the "Trustee",
which term includes any successor trustee under the Indenture referred to
below), will act as Paying Agent and Registrar. The Issuers may change the
Paying Agent or Registrar without notice to or consent of the Holders.
8. Indenture and Guarantee. The Issuers issued the Note
under an Indenture, dated as of August 7, 1996 (the "Indenture"), among the
Issuers, Orbital Communications Corporation, a Delaware corporation ("OCC"),
Teleglobe Mobile Partners, a Delaware general partnership ("Teleglobe Mobile"),
ORBCOMM USA, L.P., a Delaware limited partnership ("USA"), and ORBCOMM
International Partners, L.P., a Delaware limited partnership ("International"
and, together with OCC, Teleglobe Mobile and USA, the "Guarantors"), 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 Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date
of the Indenture until such time as the Indenture is qualified under the TIA,
and thereafter as in effect on the date on which the Indenture is qualified
under the TIA. 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 Issuers limited in aggregate principal amount to $170,000,000. Payment
on each Note is guaranteed on an unsecured basis by the Guarantors pursuant to
Article X of the 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.
9. Redemption.
(a) Optional Redemption. The Notes will be redeemable,
at the option of the Issuers, in whole or in part at any time or from time to
time, on and after August 15, 2001, upon not less than 30 nor more than 60
days' notice, at the following redemption prices (expressed as percentages of
the principal amount thereof) if redeemed during the twelve-month period
commencing on August 15 of the years set forth below, plus, in each case,
accrued and unpaid interest (including Revenue Participation Interest, if any)
and Liquidated Damages (if any) thereon to the applicable date of redemption:
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Year Redemption Price
---- ----------------
[S] [C]
2001 . . . . . . . . . . . 115.000%
2002 . . . . . . . . . . . 107.500%
2003 and thereafter . . . . 100.000%
(b) Optional Redemption Upon Sale of Capital Stock.
Notwithstanding the provisions of paragraph (a) above, at any time, or from
time to time, on or prior to August 15, 1999, the Issuers may, at their option,
use the net proceeds of one or more sales of Capital Stock (other than
Disqualified Stock) of OCC, Teleglobe Mobile or the Company to redeem the Notes
at a redemption price equal to 115.000% of the principal amount thereof, plus
accrued and unpaid interest (including Revenue Participation Interest, if any)
and Liquidated Damages (if any) thereon to the redemption date; provided,
however, that (i) not less than $127,500,000 aggregate principal amount of
Notes shall remain outstanding immediately after any such redemption and (ii)
such redemption shall occur within 30 days after the date of closing of such
sale of Capital Stock.
10. Mandatory Redemption. The Issuers shall not be
required to make mandatory redemption or sinking fund payments with respect to
the Notes, except as provided in Section 8 hereof and Sections 4.14 and 4.15 of
the Indenture.
11. 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
(including Revenue Participation Interest, if any) and Liquidated Damages (if
any).
12. Offers to Purchase. 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 Issuers 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 (including Revenue Participation Interest, if any) and Liquidated
Damages (if any) to the date of purchase.
13. Denomination; Transfer; Exchange. The Notes are
issued in fully registered form in denominations of $1,000 and integral
multiples of $1,000. A Holder shall register any transfer or exchange of Notes
in accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to
pay certain transfer taxes or similar governmental charges payable in
connection therewith as provided in the Indenture. The Registrar need not
register the transfer of or exchange of any Notes or portions thereof selected
for redemption.
14. Persons Deemed Owners. The Holder of a Note shall be
treated as the owner of such Note for all purposes.
15. 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 Issuers or the Guarantors, as the
case may be, after which all liability of the Trustee and Paying Agent with
respect to such money shall cease.
16. Discharge Prior to Redemption or Maturity. If the
Issuers and/or the Guarantors at any time deposit with the Trustee U.S. dollars
or Government Securities sufficient to pay the principal of and interest
(including Revenue Participation Interest, if any, and Liquidated Damages, if
any) on the Notes to redemption or maturity, and comply with the other
provisions of the Indenture relating thereto, the Issuers and the Guarantors
will be discharged from certain provisions of the Indenture and the Notes
(including certain covenants, but excluding
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their obligation to pay the principal of, and interest (including Revenue
Participation Interest, if any) and Liquidated Damages (if any) payable on, the
Notes).
17. Amendment; Supplement; Waiver. Subject to certain
exceptions, the Indenture, the Notes, the Pledge Agreement or the Guarantees
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.
18. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Issuers, the Guarantors and their Restricted
Subsidiaries to, among other things, incur additional Indebtedness, pay
dividends or make other distributions, repurchase Equity Interests, repay
subordinated Indebtedness, make certain other Restricted Payments, create
certain Liens, enter into certain transactions with Affiliates, sell assets,
issue or sell Equity Interests of the Issuers' Restricted Subsidiaries, or
enter into certain mergers or consolidations. Such limitations are subject to
important qualifications and exceptions. The Issuers must annually report to
the Trustee on compliance with such limitations.
19. 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 (including Revenue Participation Interest, if any) or
Liquidated Damages, if any) payable on, the Notes if it determines that
withholding notice is in the Holders' interest.
20. Individual Rights of Trustee. Each of the Trustee,
the Paying Agent and the Registrar under the Indenture, in its individual or
any other capacity, may become the owner or pledgee of Notes and may otherwise
deal with the Issuers, the Guarantors or any of their respective Subsidiaries
or Affiliates as if it were not the Trustee or such agent.
21. No Recourse Against Others; Limitation on Liability.
Notwithstanding anything contained in the Indenture or the Notes to the
contrary, (i) except for the Issuers and the Guarantors to the extent provided
in clause (ii) below, no person or entity (including, without limitation, the
past, present or future general and limited partners and/or shareholders of OCC
and Teleglobe Mobile and the directors, officers and employees of the Issuers
and the Guarantors) shall have any liability whatsoever with respect to or
arising out of the Indenture, the Notes, the Guarantees or any of the Issuers'
or the Guarantors' obligations thereunder or any agreements or documents
executed by the Issuers or the Guarantors in connection therewith and (ii)
claims with respect to the Indenture, the Notes and the Guarantees and any
obligations thereunder or under any agreements or documents executed in
connection therewith shall be satisfied solely from the assets of the Issuers
and the Guarantors. 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.
22. Authentication. This Note shall not be valid until
the Trustee or Authenticating Agent manually signs the certificate of
authentication on this Note.
23. Governing Law. This Note, the Indenture and the
Guarantees shall be governed by and construed in accordance with the laws of
the State of New York, as applied to contracts made and performed
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entirely within the State of New York, without regard to principles of conflict
of laws.
24. Abbreviations and Defined Terms. Customary
abbreviations may be used in the name of a Holder of a Note 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).
25. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Issuers have caused CUSIP numbers to be printed on the Notes as a convenience
to the Holders of the Notes. No representation is made as to the accuracy of
such numbers as printed on the Notes and reliance may be placed only on the
other identification numbers printed hereon.
26. 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 Issuers 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 ORBCOMM Global, L.P., 21700
Atlantic Boulevard, Dulles, Virginia 20166, Attn: Secretary.
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ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below and
have your signature guaranteed:
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 Issuers. The agent may substitute
another to act for him.
Date: Signed:
---------------------------------------------- ---------------------------------------------------
(Signed exactly as your
name appears on the other
side of this Note)
Signature
Guarantee:
----------------------------------------------------------------------
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.
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[OPTION OF HOLDER TO ELECT PURCHASE]
If you elect to have this Note purchased by the Issuers
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
Issuers 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 with the
name as it appears upon the of the within Note in every
particular alteration or any change whatsoever and be 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.
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EXHIBIT C
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN
EXCHANGE FOR THIS CERTIFICATE OR ANY PORTION HEREOF IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON OTHER THAN THE DEPOSITORY TRUST COMPANY
OR A NOMINEE THEREOF IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE REFERRED TO HEREINAFTER. THIS GLOBAL SECURITY MAY NOT BE EXCHANGED,
IN WHOLE OR IN PART, FOR A SECURITY REGISTERED IN THE NAME OF ANY PERSON OTHER
THAN THE DEPOSITORY TRUST COMPANY OR A NOMINEE THEREOF EXCEPT IN THE
CIRCUMSTANCES SET FORTH IN SECTION 2.15 OF THE INDENTURE, AND MAY NOT BE
TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 2.15 OF THE INDENTURE. BENEFICIAL INTEREST IN THIS GLOBAL
SECURITY MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH SECTION 2.15 OF THE
INDENTURE.
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