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EXHIBIT 4.5
ORBITAL IMAGING CORPORATION
AND
HSBC BANK USA,
AS TRUSTEE
-----------------------
INDENTURE
DATED AS OF APRIL 22, 1999
-----------------------
$75,000,000
11 5/8% SENIOR NOTES DUE 2005
-----------------------
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Reconciliation and tie between Trust Indenture Act of 1939,
as amended, and Indenture, dated as of April 22, 1999
Trust Indenture Indenture
Act Section Section
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Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8, 7.11
Section 311 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.12
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.12
Section 312 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . __
Section 313 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6, 4.8
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6
Section 314 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
Section 315 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(c)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5, 7.2
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
Section 316 (a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.9
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2, 6.5
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.7
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4
Section 318 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
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Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of this Indenture.
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS OF GENERAL APPLICATION .........................................................1
SECTION 1.1 Definitions ...........................................................................1
SECTION 1.2 Incorporation by Reference of Trust Indenture Act ....................................23
SECTION 1.3 Rules of Contruction .................................................................24
ARTICLE II THE NOTES ................................................................................24
SECTION 2.1 Form and Dating ......................................................................24
SECTION 2.2 Execution and Authentication .........................................................26
SECTION 2.3 Trustee, Registrar and Paying Agent ..................................................27
SECTION 2.4 Paying Agent To Hold Money In Trust ..................................................28
SECTION 2.5 Holder Lists .........................................................................28
SECTION 2.6 Transfer and Exchange ................................................................28
SECTION 2.7 Replacement Notes ....................................................................35
SECTION 2.8 Outstanding Notes ....................................................................35
SECTION 2.9 Treasury Notes .......................................................................36
SECTION 2.10 Temporary Notes .....................................................................36
SECTION 2.11 Cancellation ........................................................................36
SECTION 2.12 Defaulted Interest ..................................................................37
SECTION 2.13 Persons Deemed Owners ...............................................................37
SECTION 2.14 CUSIP Numbers .......................................................................37
ARTICLE III REDEMPTION ..............................................................................38
SECTION 3.1 Optional Redemption ..................................................................38
SECTION 3.2 Mandatory Redemption .................................................................38
SECTION 3.3 Election to Redeem; Notice to Trustee ................................................38
SECTION 3.4 Notes to Be Redeemed Pro Rata ........................................................39
SECTION 3.5 Notice of Redemption .................................................................39
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SECTION 3.6 Effect of Notice of Redemption .......................................................40
SECTION 3.7 Deposit of Redemption ................................................................40
SECTION 3.8 Notes Payable on Redemption Date .....................................................41
SECTION 3.9 Notes Redeemed in Part ...............................................................41
ARTICLE IV COVENANTS ................................................................................41
SECTION 4.1 Payment of Notes .....................................................................41
SECTION 4.2 Maintenance of Office or Agency ......................................................42
SECTION 4.3 Corporate Existence ..................................................................42
SECTION 4.4 Payment of Taxes and Other Claims ....................................................43
SECTION 4.5 Maintenance of Properties and Insurance ..............................................43
SECTION 4.6 Compliance Certificate; Notice of Default ............................................46
SECTION 4.7 Compliance with Laws .................................................................47
SECTION 4.8 Reports ..............................................................................47
SECTION 4.9 Waiver of Stay, Extension or Usury Laws ..............................................47
SECTION 4.10 Limitation on Restricted Payments ...................................................48
SECTION 4.11 Limitation on Transaction with Affiliates ...........................................51
SECTION 4.12 Limitation on Incurrence of Indebtedness or Issuance of Disqualified Stock ..........52
SECTION 4.13 Dividend and Other Payment Restrictions Affecting Subsidiaries ......................54
SECTION 4.14 Limitation on Change of Control .....................................................56
SECTION 4.15 Limitation on Sales of Assets and Subsidiary Interests ..............................58
SECTION 4.16 Limitation on Liens .................................................................61
SECTION 4.17 Business Activities .................................................................61
SECTION 4.18 Limitations on Sale and Leaseback Transactions ......................................61
SECTION 4.19 Limitation on Sale of Capital Stock of Subsidiaries .................................61
ARTICLE V MERGER, CONSOLIDATION OR SALE OF ASSETS ...................................................62
SECTION 5.1 Mergers, Consolidations and Sale of Assets ...........................................62
SECTION 5.2 Successor Substitued .................................................................63
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ARTICLE VI EVENTS OF DEFAULT AND REMEDIES ...........................................................63
SECTION 6.1 Events of Default ....................................................................63
SECTION 6.2 Acceleration .........................................................................65
SECTION 6.3 Other Remedies .......................................................................66
SECTION 6.4 Waiver of Past Defaults ..............................................................67
SECTION 6.5 Control by Majority ..................................................................67
SECTION 6.6 Limitation on Suits ..................................................................67
SECTION 6.7 Rights of Holders to Receive Payment .................................................68
SECTION 6.8 Collection Suit by Trustee ...........................................................68
SECTION 6.9 Trustee May File Proofs of Claim .....................................................68
SECTION 6.10 Priorities ..........................................................................69
SECTION 6.11 Undertaking for Costs ...............................................................69
ARTICLE VII TRUSTEE .................................................................................70
SECTION 7.1 Duties of Trustee ....................................................................70
SECTION 7.2 Rights of Trustee ....................................................................71
SECTION 7.3 Individual Rights of Trustee and Agents ..............................................72
SECTION 7.4 Trustee's Disclaimer .................................................................72
SECTION 7.5 Notice of Default ....................................................................72
SECTION 7.6 Reports by Trustee to Holders ........................................................72
SECTION 7.7 Compensation and Indemnify ...........................................................73
SECTION 7.8 Resignation and Removal; Appointment of Successor ....................................74
SECTION 7.9 Acceptance of Appointment by Successor ...............................................75
SECTION 7.10 Successor Trustee by Merger, Etc. ...................................................76
SECTION 7.11 Trustee Required; Eligibility; Disqualification .....................................76
SECTION 7.12 Preferential Collection of Claims Against Company ...................................76
ARTICLE VIII DEFEASANCE AND SATISFACTION AND DISCHARGE ..............................................76
SECTION 8.1 Legal Defeasance and Covenant Defeasance .............................................76
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SECTION 8.2 Satisfaction and Discharge ...........................................................79
SECTION 8.3 Survival of Certain Obligations ......................................................79
SECTION 8.4 Acknowledgment of Discharge by Trustee ...............................................80
SECTION 8.5 Application of Trust Moneys and Government Securities ................................80
SECTION 8.6 Repayment to the Company; Unclaimed Money ............................................81
SECTION 8.7 Reinstatement ........................................................................81
ARTICLE IX AMENDEMENTS, SUPPLEMENTS AND WAIVERS .....................................................81
SECTION 9.1 Without Consent of Holders ...........................................................81
SECTION 9.2 With Consent of Holders ..............................................................82
SECTION 9.3 Execution of Supplemental Indentures .................................................84
SECTION 9.4 Effect of Supplemental Indentures ....................................................84
SECTION 9.5 Compliance with Trust Indenture Act ..................................................84
SECTION 9.6 Reference in Notes to Supplemental Indentures ........................................84
SECTION 9.7 Revocation and Effect of Consents ....................................................84
ARTICLE X SUBSIDIARY GUARANTEES .....................................................................85
SECTION 10.1 Unconditional Guarantee .............................................................85
SECTION 10.2 Priority of Guarantee ...............................................................86
SECTION 10.3 Severability ........................................................................86
SECTION 10.4 Limitation of Subsidiary Guarantor's Liability ......................................86
SECTION 10.5 Waiver of Subrogation ...............................................................87
SECTION 10.6 Successors and Assigns ..............................................................87
SECTION 10.7 No Waiver ...........................................................................87
SECTION 10.8 Modification ........................................................................88
SECTION 10.9 Release of Subsidiary Guarantor .....................................................88
SECTION 10.10 Execution of Supplemental Indenture by Future Restricted Subsidiaries ..............88
SECTION 10.11 Waiver of Stay, Extension or Usury Laws ............................................89
ARTICLE XI MISCELLANEOUS ............................................................................89
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SECTION 11.1 Trust Indenture Act Controls ........................................................89
SECTION 11.2 Notices to Company and Trustee ......................................................89
SECTION 11.3 Notices to Holders ..................................................................90
SECTION 11.4 Trustee, Paying Agent and Registrar Procedures ......................................90
SECTION 11.5 Compliance Certificates and Opinions ................................................90
SECTION 11.6 Form of Documents Delivered to Trustee ..............................................91
SECTION 11.7 Acts of Holders; Registered Holders; Record Dates ...................................92
SECTION 11.8 Successors and Assigns ..............................................................93
SECTION 11.9 Severability ........................................................................93
SECTION 11.10 Benefits of Indenture ..............................................................94
SECTION 11.11 Governing Law; Jurisdiction ........................................................94
SECTION 11.12 Legal Holdays ......................................................................94
SECTION 11.13 No Recourse Against Others; Limitation on Liability ................................94
SECTION 11.14 Counterparts .......................................................................94
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INDENTURE, dated as of April 22, 1999, by and between Orbital Imaging
Corporation (the "Company" or "ORBIMAGE") with its principal office at 21700
Atlantic Boulevard, Dulles, Virginia 20166, and HSBC Bank USA, a New York
banking corporation and trust company, as trustee (the "Trustee").
RECITALS:
WHEREAS, the Company has duly authorized the issuance of $75,000,000
aggregate principal amount of its 11 5/8% Senior Notes Due 2005 (the "Notes")
of substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture; and
WHEREAS, all things necessary to make the Notes, when executed by the
Company and authenticated and delivered hereunder, duly issued by the Company,
the valid obligations of the Company, and to make this Indenture a valid and
binding agreement of Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH: for and in consideration of
the premises and the purchase of the Notes by the Holders (as hereinafter
defined) thereof, each party hereto hereby mutually covenants and agrees, for
the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.
"Acceleration Notice" has the meaning set forth in Section 6.2(a).
"Acquired Debt" means, with respect to any specified Person:
(i) Indebtedness of any other Person existing at the time
such other Person is merged with or into or became a Restricted Subsidiary of
such specified Person, including, without limitation, Indebtedness incurred in
connection with, or in contemplation of, such other Person merging with or into
or becoming a Restricted Subsidiary of such specified Person; and
(ii) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"Act" has the meaning set forth in Section 11.7(a).
"Affiliate" of any specified Person means any other Person directly or
indirectly
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controlling or controlled by or under direct or indirect common control with
such specified Person. For purposes of this definition, "control" (including,
with correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of Voting Equity Interests, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the Voting Equity Interests (or the
equivalent) of a Person shall be deemed to be control.
"Affiliate Transaction" has the meaning set forth in Section 4.11.
"Agent Member" shall mean members of, or participants in, the
Depositary.
"Asset Sale" means:
(i) the sale, lease, license, conveyance or other
disposition of any assets or rights (including, without limitation, by way of a
Sale and Leaseback Transaction or similar arrangement) by the Company or a
Restricted Subsidiary of the Company (a "disposition"), provided that the
disposition of all or substantially all of the assets of the Company and its
Restricted Subsidiaries taken as a whole will be governed by Sections 4.14
and/or 5.1 of this Indenture, and not by Section 4.15.
(ii) except to the extent excluded by clause (i) above,
the issuance or disposition by the Company or any of its Restricted
Subsidiaries of Equity Interests of the Company's Restricted Subsidiaries.
in the case of either clause (i) or (ii) above, whether in a single transaction
or a series of related transactions: (a) that has a Fair Market Value in excess
of $2.5 million; or (b) for net proceeds in excess of $2.5 million.
Notwithstanding the foregoing: (i) sales of imagery, imagery
distribution or satellite tasking rights, software or rights in software for
processing and storing imagery, license grants to imagery value-added
resellers or distributors and other associated rights, and sales of services,
products or inventory in the ordinary course of business; (ii) a transfer of
assets by the Company to any of its Restricted Subsidiaries or by a Restricted
Subsidiary of the Company to the Company; (iii) an issuance of Equity Interests
by a Restricted Subsidiary of the Company to the Company or to a Wholly Owned
Restricted Subsidiary of the Company; (iv) an exchange of an asset held by the
Company or a Restricted Subsidiary of the Company for an asset of a third party
upon a determination by the disinterested members of the Board of Directors of
the Company made in good faith (evidenced by a resolution approved by a
majority of the disinterested members of the Board of Directors of the Company
and set forth in an Officers' Certificate delivered to the Trustee) that the
asset received by the Company or a Restricted Subsidiary of the Company in such
exchange (x) is a Related Asset, (y) has a Fair Market Value at least equal to
the fair market value of the asset transferred by the Company or such
Restricted
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Subsidiary of the Company and (z) is usable in the ordinary course of the
Company's business to at least the same extent as the asset transferred by the
Company or such Restricted Subsidiary; (v) sales or dispositions of damaged,
worn out or other obsolete property in the ordinary course of business so long
as such property is no longer necessary for the proper conduct of the business
of the Company or any of its Restricted Subsidiaries; and (vi) a Restricted
Payment that is permitted under Section 4.10, will not be deemed to be Asset
Sales.
"Asset Sale Offer" has the meaning set forth in Section 4.15(a).
"Asset Sale Offer Trigger Date" has the meaning set forth in Section
4.15(a).
"Attributable Debt" means, with respect to any sale and leaseback
transaction, the present value at the time of determination (discounted at a
rate consistent with accounting guidelines, as determined in good faith by the
Company) of the payments during the remaining term of the lease (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended) or until the earliest date on which the lessee may
terminate such lease without penalty or upon payment of a penalty (in which
case the rental payments shall include such penalty, after excluding all
amounts required to be paid on account of maintenance and repairs, insurance,
taxes, assessments, water, utilities and similar charges).
"Business Assets" means any hardware, software, technology,
intellectual property, or other rights in or assets (or, in the case of clause
(vi), inventory) relating to (i) the remote imaging satellites owned and/or
operated by ORBIMAGE on the First Issue Date, (ii) the OrbView Satellites,
(iii) the Replacement Satellites, (iv) any other remote imaging satellites
developed, constructed or acquired by ORBIMAGE, (v) the ground segment (or any
components thereof) related to the operation of, and processing of data from,
the satellites described in clauses (i)-(v) above, and (vi) the Company's
imagery catalogue and archive.
"Business Day" means any day other than a Saturday, Sunday or day on
which commercial banking institutions in The City of New York, New York are
authorized or obligated by law or executive order to close.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital
lease that would at such time be required to be capitalized on a balance sheet
in accordance with GAAP.
"Capital Stock" means: (i) in the case of a corporation, corporate
stock; (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock; (iii) in the case of a partnership, partnership
interests (whether general or limited); and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
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"Cash Consideration" means any consideration received from an Asset
Sale in the form of cash or Cash Equivalents, in either case in U.S. dollars or
freely convertible into U.S. dollars.
"Cash Equivalents" means:
(i) United States dollars;
(ii) Government Securities;
(iii) certificates of deposit and eurodollar time deposits
with maturities of six months or less from the date of acquisition, bankers'
acceptances or money market deposit accounts with maturities not exceeding six
months and overnight bank deposits, in each case with any Eligible Institution;
(iv) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses (ii) and
(iii) above entered into with any Eligible Institution;
(v) commercial paper having the highest rating obtainable
from 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.
"Change of Control" means:
(i) the failure by Orbital to hold at least 12,600,000
shares of Common Stock of the Company (being 50% of the shares of Common Stock
held by Orbital on May 8, 1997), adjusted for stock splits, stock combinations
and the like;
(ii) the failure by Orbital to hold at least thirty
percent (30%) of the Common Stock of the Company on a fully diluted basis,
without giving effect to the conversion of Capital Stock of the Company issued
as a dividend paid-in-kind with respect to shares of Series A Preferred Stock
or Capital Stock of the Company issued pursuant to options granted under the
Stock Option Plan or any other option plan adopted for the benefit of the
Company's employees or directors;
(iii) the direct or indirect acquisition of beneficial
ownership of Voting Equity Interests of the Company by any Person or group of
Persons acting in concert, in an amount greater than the amount of Voting
Equity Interests held contemporaneously by Orbital except (x) purchases by
record holders of Series A Preferred Stock as of the First Issue Date (and
their Affiliates, to the extent that such holders are permitted to transfer
their shares of Series A
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Preferred Stock to Affiliates under the Stock Purchase Agreement ("Series A
Affiliates")) from other holders of Series A Preferred Stock and their Series A
Affiliates and (y) purchases permitted pursuant to the subscription rights of
the holders of Series A Preferred Stock under Section 4.1 of the Stockholders'
Agreement;
(iv) the acquisition of the Company, or the sale, lease,
transfer, conveyance or other disposition, in one transaction or a series of
related transactions, directly or indirectly, including through a liquidation
or dissolution, of all or substantially all of the assets of the Company and
its Restricted Subsidiaries or the combination of the Company or all or
substantially all its assets with another Person (other than any such transfer
to any Wholly Owned Restricted Subsidiary of the Company), unless the acquiring
or surviving Person shall be a corporation more than fifty percent (50%) of the
combined voting power of which corporation's then outstanding Voting Equity
Interests, after giving effect to such acquisition or combination, are owned,
immediately after such acquisition or combination, by the owners of the Voting
Equity Interests of the Company outstanding immediately prior to such
acquisition or combination;
(v) the adoption of a plan relating to the liquidation or
dissolution of the Company (other than any such liquidation or dissolution to
or for the benefit of any Wholly Owned Restricted Subsidiary of the Company);
(vi) the failure by the Company to obtain any applicable
License (or License amendment, as applicable) so that it is in full force and
effect within thirty (30) days prior to the scheduled launch of any of the
OrbView Satellites;
(vii) the revocation of any License necessary to operate
OrbView-2 or the OrbView Satellites consistent with the Company's current and
planned commercial operations and which revocation is not cured within thirty
(30) days of the occurrence thereof or such later date when all applicable
appeals have been finally determined, if during such appeal period the Company
has received regulatory approval to continue operations under the License
pending the outcome of such appeals; or
(viii) at any time prior to the latest to occur of (a) the
successful on-orbit checkout of the imaging satellite known as OrbView-3, (b) a
Qualifying Public Offering or (c) the Business Day next following the end of a
180 consecutive day period during which the average closing price per share of
the Company's Common Stock shall have exceeded the Threshold Price (as defined
in the definition of "Qualifying Public Offering" below) then in effect, and
unless consented to in writing by the holders of at least fifty percent (50%)
of the shares of Series A Preferred Stock then outstanding, the acquisition by
any Person or group of Persons acting in concert of beneficial ownership,
direct or indirect, of securities of Orbital representing thirty-five percent
(35%) or more of the combined voting power of Orbital's then outstanding equity
securities and at any time thereafter either (x) less than a majority of
Orbital's board of directors shall be Continuing Directors or (y) there shall
be an announcement by Orbital or such acquiring Person or group of Persons or
the approval of a business plan by Orbital's
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Board of Directors, in either case that indicates an intention to de-emphasize
or curtail the relationship between the Company and Orbital.
"Change of Control Date" has the meaning set forth in Section 4.14(b).
"Change of Control Offer" has the meaning set forth in Section
4.14(a).
"Change of Control Payment" has the meaning set forth in Section
4.14(a).
"Change of Control Payment Date" has the meaning set forth in Section
4.14(b).
"Collateral Agent" means the collateral agent under the Pledge
Agreement.
"Commission" means the Securities and Exchange Commission, or
successor body performing the duties now assigned to it under the TIA.
"Common Stock" means the common stock, $.01 par value, of the Company.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period,
(a) plus, to the extent deducted or otherwise excluded in
computing such Consolidated Net Income:
(i) an amount equal to any extraordinary loss
plus any net loss realized in connection with a sale of assets;
(ii) provision for taxes based on income or
profits of such Person and its Restricted Subsidiaries for such period;
(iii) Consolidated Interest Expense; and
(iv) depreciation, amortization (including
amortization of goodwill and other intangibles but excluding amortization of
prepaid cash expenses that were paid in a prior period) and other non-cash
charges (excluding any such non-cash charge to the extent that it represents an
accrual of or reserve for cash charges in any future period or amortization of
a prepaid cash expense that was paid in a prior period) of such Person and its
Restricted Subsidiaries for such period;
(b) minus, to the extent added or otherwise included in
computing Consolidated Net Income, consolidated interest income of such Person
and its Restricted Subsidiaries for such period and non-cash items increasing
such Consolidated Net Income (including, without limitation, (x) unrealized
currency exchange gains and (y) amortized non-cash contract revenues related to
(i) cash received prior to the First Issue Date and (ii) cash
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received subsequent to the First Issue Date that is specifically intended to
fund capital expenditures, including, but not limited to that certain contract
between Orbital and the U.S. Air Force with respect to hyperspectral imagery
and that certain contract dated as of December 18, 1998 between MacDonald,
Dettwiler and Associates Ltd. and the Canadian Space Agency relating to
RadarSat-2, as the same may be amended from time to time, in each case, on a
consolidated basis and determined in accordance with GAAP). Notwithstanding
the foregoing, the provision for taxes on the income or profits of, and the
depreciation and amortization and other non-cash charges of, a Restricted
Subsidiary of any such Person shall be added to Consolidated Net Income to
compute Consolidated Cash Flow only to the extent (and in the same proportion)
that the Net Income of such Restricted Subsidiary was included in calculating
the Consolidated Net Income of such Person and only if a corresponding amount
would be permitted at the date of determination to be distributed by dividend
to such Person by such Restricted Subsidiary without prior approval (that has
not been obtained), pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to such Restricted Subsidiary or its stockholders.
"Consolidated Interest Expense" means, with respect to any Person for
any period, (a) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP, whether paid or accrued and whether or not capitalized
(including, without limitation, amortization of original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, commissions, discounts and other fees and charges incurred
in respect of letter of credit or bankers' acceptance financing, and net
payments (if any) pursuant to Hedging Obligations) plus (b) the aggregate
amount for such period of cash or non-cash dividends on any Disqualified Stock
of the Company and its Subsidiaries.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that:
(i) the Net Income of any Person that is not a Subsidiary
Guarantor or that is accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or distributions
actually paid in cash to the referent Person or a Wholly Owned Restricted
Subsidiary thereof;
(ii) the Net Income of any Restricted Subsidiary that is
not a Subsidiary Guarantor shall be excluded to the extent that the declaration
or payment of dividends or similar distributions by such Restricted Subsidiary
of such Net Income is not at the date of determination permitted without any
prior governmental approval (which has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to such Restricted Subsidiary or its stockholders;
- 7 -
15
(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;
(iv) the cumulative effect of a change in accounting
principles shall be excluded; and
(v) the Net Income of any Unrestricted Subsidiary shall
be included only to the extent of the amount of dividends or distributions
actually paid in cash to the referent Person or a Restricted Subsidiary
thereof.
"Consolidated Net Worth" means, with respect to any Person as of any
date:
(i) the consolidated equity of the equity holders of such
Person and its consolidated Restricted Subsidiaries as of such date; plus
(ii) the respective amounts reported on such Person's
balance sheet as of such date with respect to any series of preferred Equity
Interests (other than Disqualified Stock) that by its terms is not entitled to
the payment of dividends unless such dividends may be declared and paid only
out of net earnings in respect of the year of such declaration and payment, but
only to the extent of any cash received by such Person upon issuance of such
preferred stock; minus
(iii) all write-ups (other than write-ups resulting from
foreign currency translations and write-ups of tangible assets of a
going-concern business made within 12 months after the acquisition of such
business) subsequent to the First Issue Date in the book value of any asset
owned by such Person or a consolidated Subsidiary of such Person; minus
(iv) all investments as of such date in unconsolidated
Subsidiaries and in Persons that are not Restricted Subsidiaries; minus
(v) all unamortized debt discount and expense and
unamortized deferred charges as of such date.
"Consolidated Tangible Net Assets" means, with respect to any Person,
the Consolidated Net Worth of such Person less goodwill and any other
intangible assets shown on the consolidated balance sheet of such Person and
its Restricted Subsidiaries.
"Continuing Director" means a director of Orbital that is a director
on the First Issue Date or is nominated as a director by a majority of
Orbital's Board of Directors, which majority consists of directors in place for
at least 12 months (other than in connection with replacements or vacancies
occurring in the ordinary course) prior to the acquisition representing 35% or
more of the combined voting power of Orbital's outstanding equity securities.
"Corporate Trust Office" means, with respect to the Trustee or any
agent, the principal corporate trust office of such Person.
- 8 -
16
"Covenant Defeasance" has the meaning set forth in Section 8.1(c).
"Credit Facilities" means, with respect to the Company, one or more
debt facilities or commercial paper facilities with banks or other
institutional lenders providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Definitive Note" has the meaning set forth in Section 2.6.
"Depository" means, with respect to the Notes issuable or issued in
whole or in part in the form of one or more Global Notes, The Depository Trust
Company, for so long as it shall be a clearing agency registered under the
Exchange Act, or such successor as the Company shall designate from time to
time in an Officers' Certificate delivered to the Trustee.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, at the option of the holder thereof), or upon the happening of
any event: (i) matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise at the option of the holder thereof; or (ii) is
redeemable or is convertible or exchangeable for Indebtedness at the option of
the holder thereof, in whole or in part, on or prior to the date on which the
Notes are repaid, redeemed or retired in full; provided, however, that
Disqualified Stock shall not include any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to require
the Company to repurchase such Capital Stock if the terms of such Capital Stock
provide that the Company may not repurchase or redeem any such Capital Stock
pursuant to such provisions unless such repurchase or redemption complies with
Section 4.10 of this Indenture. The Series A Preferred Stock shall not be
Disqualified Stock.
"Eligible Institution" means a domestic commercial banking institution
that has combined capital and surplus of not less than $500 million or its
equivalent in foreign currency, whose debt is rated "A" or higher according to
S&P or Moody's at the time as of which any investment or rollover therein is
made.
"Eligible Receivables" means the accounts receivable of the Company
(net of accounts more than 90 days past due and reserves and allowances for
doubtful accounts determined in accordance with GAAP).
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17
"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 Note" means any Note issued in exchange for an Original Note
pursuant to the Exchange Offer.
"Exchange Offer" means the offer to exchange and issuance by the
Company of a principal amount of Exchange Notes (which shall be registered
pursuant to the Exchange Offer Registration Statement) equal to the outstanding
principal amount of Original Notes that are validly tendered by such Holders in
connection with such exchange and issuance.
"Exchange Offer Registration Statement" means the Registration
Statement relating to the Exchange Offer, including the related Prospectus.
"Existing Indebtedness" means Indebtedness of the Company in existence
on the First Issue Date, until such amounts are repaid.
"Fair Market Value" means, with respect to any asset, the sale value
that would be obtained in an arm's-length free market transaction, between a
willing seller and a willing buyer, neither of which is under pressure or
compulsion to complete the transaction; provided that the Fair Market Value of
any such asset or assets shall be determined by the Board of Directors of the
Company, acting in good faith and by unanimous resolution, and which
determination shall be evidenced by an Officers' Certificate delivered to the
Trustee.
"First Issue Date" means February 25, 1998, the date on which the
Company issued 150,000 units consisting of the 1998 Notes and warrants to
purchase 1,312,746 shares of Common Stock.
"Fixed Asset Financing" means Indebtedness that is secured by
ground-based equipment and other tangible assets of the Company or a sale and
leaseback transaction with respect to such assets, in which case the
Attributable Debt shall be treated as Indebtedness for purposes of this
definition.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession and which are in effect on the Issue Date.
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18
"Global Note" has the meaning set forth in Section 2.1.
"Government Securities" means securities that are direct obligations
of, or obligations fully guaranteed by, the United States of America for the
payment of which guarantee or obligations the full faith and credit of the
United States is pledged.
"Guarantee" or "guarantee" means a guarantee (other than by
endorsement of negotiable instruments for collection in the ordinary course of
business), direct or indirect, in any manner (including, without limitation,
letters of credit and reimbursement agreements in respect thereof), of all or
any part of any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under: (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements; (ii) foreign currency
hedge obligations; and (iii) other agreements or arrangements designed to
protect such Person against fluctuations in interest and foreign currency
rates.
"Holder" means a Person in whose name a Note is registered in the Note
Register.
"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or bankers' acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable to
the extent that any such accrued expense or trade payable is not more than 90
days overdue or is otherwise being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted, if and to the extent
any of the foregoing indebtedness (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, as well as all indebtedness of others secured
by a Lien on any asset of such Person (whether or not such indebtedness is
assumed by such Person and, in the event such indebtedness is not assumed by,
and is otherwise non-recourse to, such Person, the amount of such indebtedness
shall be deemed to equal the greater of book value or Fair Market Value of such
assets), all obligations to purchase, redeem, retire, defease or otherwise
acquire for value any Disqualified Stock or any warrants, rights or options to
acquire such Disqualified Stock valued, in the case of Disqualified Stock, at
the greatest amount payable in respect thereof on a liquidation (whether
voluntary or involuntary) plus accrued and unpaid dividends, the liquidation
value of any preferred stock issued by Subsidiaries of such Person, plus
accrued and unpaid dividends, and, to the extent not otherwise included, the
Guarantee by such Person of any indebtedness of any other Person; and provided,
that "Indebtedness" shall be calculated without duplication and after
elimination of Intercompany Indebtedness.
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19
"Indebtedness to Capital Ratio" means, on any date of determination
for the Company and its Restricted Subsidiaries, on a consolidated basis, the
ratio (expressed as a percentage) of Indebtedness on such date to Total
Invested Capital on such date.
"Indebtedness to Cash Flow Ratio" means, with respect to any Person as
of any date of determination, the ratio of: (i) total Indebtedness of such
Person and its Restricted Subsidiaries as of such date; to (ii) two times
Consolidated Cash Flow of such Person and its Restricted Subsidiaries for the
two most recently ended fiscal quarters for which financial statements of such
Person are available (the "Measurement Period"); provided, however, that: (a)
in making such computation, the total Indebtedness of such Person and its
Restricted Subsidiaries shall include the total amount of funds outstanding
under any credit facilities; and (b) in the event such Person or any of its
Restricted Subsidiaries consummates a material acquisition or sale of assets,
or issues or redeems Disqualified Stock subsequent to the commencement of the
Measurement Period, then the Indebtedness to Cash Flow Ratio shall be
calculated giving pro forma effect to such material acquisition, sale of assets
or issuance or redemption of Disqualified Stock as if the same had occurred at
the beginning of the Measurement Period. For purposes of this definition,
whenever the pro forma effect is to be given to a transaction, the pro forma
calculations shall be made in good faith by a responsible financial or
accounting officer of the Company.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"1998 Indenture" means the Indenture, dated as of February 25, 1998
between the Company and HSBC Bank USA (formerly known as Marine Midland Bank),
governing the 1998 Notes.
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in the good
faith judgment of the Board of Directors of the Company (evidenced by a
resolution of the majority of the Board of Directors of the Company as set
forth in an Officers' Certificate delivered to the Trustee), qualified to
perform the task for which it has been engaged and is disinterested and
independent with respect to the Company and its Affiliates.
"Initial Purchasers" means Bear, Stearns & Co. Inc. and Merrill Lynch,
Pierce, Fenner & Smith Incorporated.
"Insurance Account" has the meaning set forth in Section 4.5.
"Intercompany Indebtedness" has the meaning set forth in Section
4.12(b).
"Interest Payment Date" means, with respect to any installment of
interest on the Notes, March 1 and September 1 of each year.
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20
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans, guarantees, advances or capital contributions (excluding
commission, travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities and all other items that
are or would be classified as investments on a balance sheet prepared in
accordance with GAAP; provided that an acquisition of assets, Equity Interests
or other securities by the Company for consideration consisting of common
Equity Interests (other than Disqualified Stock) of the Company shall not be
deemed to be an Investment. Notwithstanding the foregoing, Investments shall
not include advance payments for satellite capacity or imagery related services
or products in the ordinary course of business.
"Issue Date" means April 22, 1999, the date on which the Notes are
first authenticated and delivered under this Indenture.
"Joint Venture" means a Person in a Related Business in which the
Company or one of its Subsidiaries holds 50% or less of the Voting Equity
Interests.
"Legal Defeasance" has the meaning set forth in Section 8.1(b).
"License" means any Federal Communications Commission license or
Department of Commerce license issued to the Company relating to the operation
of OrbView-2 or the OrbView Satellites (including the Department of Commerce
license and the Federal Communications Commission license currently owned by
Orbital relating to the operation of OrbView-2).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease
in the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"Liquidated Damages" has the meaning set forth in the Registration
Rights Agreement, dated as of April 22, 1999, between the Company and the
Initial Purchasers, as the same may be amended, supplemented or otherwise
modified from time to time.
"Marketable Securities" means: (i) Government Securities or, for
purpose of determining whether such Government Securities may serve as
substitute Pledged Securities, Government Securities having a maturity date on
or before the date on which the payments of interest on the Notes to which such
Government Securities are pledged occur; (ii) any certificate of deposit
maturing not more than 270 days after the date of acquisition issued by, or
time deposit of, an Eligible Institution; (iii) commercial paper maturing not
more than 270 days after the date of acquisition issued by a corporation (other
than an Affiliate of the Pledgor) with a rating at the time as of which any
investment therein is made, of "A-1" (or higher) according to S&P or "P-1"
- 13 -
21
(or higher) according to Moody's; (iv) any banker's acceptances or money market
deposit accounts issued or offered by an Eligible Institution; and (v) any fund
investing exclusively in investments of the types described in clauses (i)
through (iv) above; and in the case of (ii) through (iv) above, which have a
maturity date on or before the date on which the payments of interest on the
Notes to which such securities are pledged occur.
"Moody's" means 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 (a) with respect to any Asset Sale, the aggregate
cash proceeds received by the Company or any of its Restricted Subsidiaries in
respect of such Asset Sale (including, without limitation, any cash received
upon the sale or other disposition of any non-cash consideration received in
any Asset Sale), net of the direct costs relating to such Asset Sale
(including, without limitation, legal, accounting and investment banking fees,
and sales commissions) and any relocation expenses incurred as a result
thereof, taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing arrangements and
provided that any such amount not so required to be paid for taxes shall be
deemed to constitute Net Proceeds at the time such amount is not retained for
such purpose), amounts required to be applied to the repayment of Indebtedness
secured by a Lien on the asset or assets (including Equity Interests) that were
the subject of such Asset Sale and any reserve for adjustment in respect of the
sale price of such asset or assets (including Equity Interests) established in
accordance with GAAP (provided that the amount of any such reserve shall be
deemed to constitute Net Proceeds at the time such reserve shall have been
released or is not otherwise required to be retained for such purpose) and (b)
with respect to any issuance or sale of Capital Stock, the proceeds of such
issuance or sale in the form of cash or Cash Equivalents, including payments in
respect of deferred payment obligations (to the extent corresponding to the
principal, but not interest, component thereof) when received in the form of
cash or Cash Equivalents (except to the extent such obligations are financed or
sold with recourse to the Company or any Restricted Subsidiary of the Company)
and proceeds from the conversion of other property received when converted to
cash or Cash Equivalents, net of legal, accounting and investment banking fees,
discounts and sales commissions and net of taxes paid or payable as a result
thereof.
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22
"Non-Recourse Debt" means Indebtedness:
(i) as to which neither the Company nor any of its
Restricted Subsidiaries: (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness); (b)
is directly or indirectly liable (as a guarantor or otherwise); or (c)
constitutes the lender;
(ii) no default that (including any rights that the
Holders thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit (upon notice, lapse of time or both) any holder of any
other Indebtedness of the Company or any of its Restricted Subsidiaries to
declare a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its Stated Maturity; and
(iii) as to which the lenders have been notified in writing
that they will not have any recourse to the stock or assets of any of the
Company or any of its Restricted Subsidiaries.
"Note Custodian" means the Trustee, as custodian with respect to the
Global Notes, or any successor entity thereto.
"Note Register" has the meaning specified in Section 2.3.
"Notes" means the Exchange Notes and the Original Notes.
"1998 Notes" means the 11-5/8% Senior Notes due 2005 issued pursuant
to the 1998 Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offer and sale by the Company to the Initial
Purchasers of $75,000,000 in aggregate principal amount at maturity of the
Notes at a purchase price of $70,830,000.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, President or a
Vice-President and the chief financial and accounting officer of such Person.
"Opinion of Counsel" means a written opinion of legal counsel
acceptable to the Trustee, and delivered to the Trustee.
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23
"Orbital" means Orbital Sciences Corporation, a Delaware corporation,
or any successor entity whether by merger, sale of all or substantially all its
assets or otherwise.
"Orbital Agreements" means each of the Amended and Restated
Procurement Agreement between the Company and Orbital, dated as of February 25,
1998 and amended as of December 31, 1998, the Amended and Restated ORBIMAGE
Services Agreement between Orbital and the Company, dated as of December 31,
1997; the Non-Compete and Teaming Agreement between the Company and Orbital,
dated as of May 8, 1997; the OrbView-2 License Agreement between the Company
and Orbital, dated as of May 8, 1997; the Software License Agreement between
the Company and Earth Observation Sciences dated March 14, 1996, as amended;
the RadarSat-2 License Agreement, dated as of December 31, 1998 and amended as
of April 1, 1999, among the Company, Orbital and MacDonald, Dettwiler and
Associates Ltd., a wholly owned subsidiary of Orbital, and the Software
Maintenance and Support Agreement between the Company and Earth Observation
Sciences, dated as of October 1, 1997; each agreement as in effect as of the
Issue Date and as amended from time to time if such amendment is not prohibited
by this Indenture or the 1998 Indenture.
"OrbView Satellites" means each of the high-resolution satellites
currently designated as OrbView-3 and OrbView-4 under the Procurement
Agreement, and any Replacement Satellite.
"Original Notes" means the Notes initially issued under this Indenture
prior to the issuance of the Exchange Notes.
"Paying Agent" has the meaning set forth in Section 2.3.
"Permitted Investment" means:
(i) any Investments in the Company or any Wholly Owned
Restricted Subsidiary of the Company;
(ii) any Investments in cash or Cash Equivalents;
(iii) Investments by the Company or any of its Restricted
Subsidiaries in a Person if, as a result of such Investment: (a) such Person
becomes a Restricted Subsidiary of the Company; or (b) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or any Restricted
Subsidiary of the Company;
(iv) any Investment made as a result of the receipt of
non-Cash Consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.15 of this Indenture;
(v) any Investment made with Excess Proceeds remaining
after the consummation of an Asset Sale Offer as described in Section 4.15 of
this Indenture;
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24
(vi) any Investment made by the Company or any of its
Restricted Subsidiaries in any Unrestricted Subsidiary using the proceeds of a
substantially concurrent contribution to the equity capital of the Company; and
(vii) any Investment made by the Company or any of its
Restricted Subsidiaries in a Related Business, Related Satellite Business or a
Joint Venture; provided that at the time any such Investment is made, such
Investment will not cause the aggregate amount of Investments at any one time
outstanding under clause (vii) of the defined term "Permitted Investment" in
Section 1.1 of the 1998 Indenture and this clause (vii) to exceed the greater
of (x) $10 million or (y) 7.5% of the Consolidated Net Worth of the Company.
"Permitted Liens" means:
(i) Liens securing the Notes;
(ii) Liens in favor of the Company;
(iii) Liens on property of a Person existing at the time
such Person is merged into or consolidated with the Company or any of its
Restricted Subsidiaries; provided that such Liens were in existence prior to
the contemplation of such merger or consolidation and do not extend to any
assets other than those of the Person merged into or consolidated with the
Company or its Restricted Subsidiary;
(iv) Liens on property existing at the time of acquisition
thereof by the Company or any of its Restricted Subsidiaries; provided that
such Liens were in existence prior to the contemplation of such acquisition;
(v) Liens to secure the performance of statutory
obligations, surety, appeal or performance bonds or other obligations of a like
nature or mechanics' or purchase money Liens incurred in the ordinary course of
business;
(vi) Liens existing on the First Issue Date and Liens
created between the First Issue Date and the Issue Date pursuant to Section
4.16 of the 1998 Indenture or that constitute "Permitted Liens" as such term is
defined in Section 1.1 of the 1998 Indenture;
(vii) Liens on inventory, accounts receivable or domestic
and/or international ground operation centers and related systems securing
Indebtedness incurred pursuant to clause (i), (vii), (x) or (xi) of Section
4.12(b) of this Indenture, or securing Permitted Refinancing Indebtedness
incurred to refinance Indebtedness pursuant to clause (i), (viii), (x) or (xi)
of Section 4.12(b) of this Indenture;
(viii) Liens for taxes, assessments or governmental charges
or claims that are not yet delinquent or that are being contested in good faith
by appropriate proceedings promptly
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25
instituted and diligently concluded; provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor;
(ix) Liens incurred in the ordinary course of business of
the Company or any Subsidiary of the Company with respect to obligations that
do not exceed $5 million at any one time outstanding (whether incurred under
this clause (ix) or under clause (ix) of the defined term "Permitted Liens" in
Section 1.1 of the 1998 Indenture) and that (a) are not incurred in connection
with the borrowing of money or the obtaining of advances or credit (other than
trade credit in the ordinary course of business), (b) do not in the aggregate
materially detract from the value of the property or materially impair the use
thereof in the operation of business by the Company or its Subsidiaries and (c)
are not for the benefit of an Affiliate of the Company; and
(x) Liens on assets of Unrestricted Subsidiaries that
secure Non-Recourse Debt of Unrestricted Subsidiaries.
"Permitted Refinancing Indebtedness" has the meaning set forth in
Section 4.12(b)(viii).
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Pledge Account" means the account established with the Collateral
Agent pursuant to the terms of the Pledge Agreement for the deposit of the
Pledged Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of the date of
this Indenture, by and between the Company and the Collateral Agent governing
the Pledge Account.
"Pledged Securities" means the portfolio of securities, initially
consisting of U.S. government securities (including any Marketable Securities
substituted in respect thereof), purchased by the Company with a portion of the
net proceeds from the Offering to be deposited in the Pledge Account and
pledged as security for the Notes.
"Proceeds Purchase Date" has the meaning set forth in Section
4.15(b)(ii).
"Procurement Agreement" means the Amended and Restated Procurement
Agreement between the Company and Orbital dated February 25, 1998, as amended
on December 31, 1998.
"QIB" means a "qualified institutional buyer" within the meaning of
Rule 144A under the Securities Act.
"Qualifying Public Offering" means a public offering of Common Stock
registered under the Securities Act (i)(a) that shall have resulted in an
aggregate price to the public of not less than $30 million or (b) that involves
the sale to the public of Common Stock constituting at least twenty percent
(20%) of the Common Stock immediately outstanding after the offering, in either
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26
case at a price per share of Common Stock equal to or greater than the
Threshold Price and (ii) that shall have resulted in listing or admission to
trading of the Common Stock on the New York Stock Exchange, a national
securities exchange, the Nasdaq National Market System or Nasdaq
over-the-counter market. For the purposes of this definition, Threshold Price
means (i) as of any date through May 1, 1999, 100% of the then current
conversion price of the Series A Preferred Stock, (ii) from May 2, 1999 through
May 1, 2000, the then current conversion price of the Series A Preferred Stock,
multiplied by the amount (expressed as a percentage) equal to 100% plus the
result of 30% times a fraction, the numerator of which is the number of days
after May 1, 1999 the calculation of the Threshold Price occurs and the
denominator of which is 365, (iii) from May 2, 2000 through May 1, 2001, the
then current conversion price of the Series A Preferred Stock, multiplied by
the amount (expressed as a percentage) equal to 130% plus the result of 20%
times a fraction, the numerator of which is the number of days after May 1,
2000, the calculation of the Threshold Price occurs and the denominator of
which is 365, and (iv) from May 2, 2001 forward, 150% of the then current
conversion price of the Series A Preferred Stock.
"RadarSat-2 License" means the ten-year license for (i) the exclusive
distribution and marketing rights for RadarSat-2 imagery products and services
and (ii) the non-exclusive right to use the mark "RadarSat" to market and
distribute RadarSat-2 imagery products and services, including renewal options,
granted to the Company by MacDonald, Dettwiler and Associates Ltd., a wholly
owned subsidiary of Orbital, under the RadarSat-2 License Agreement, dated as
of December 31, 1998 and amended as of April 1, 1999, among the Company,
Orbital and MacDonald, Dettwiler and Associates Ltd.
"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.
"Refinanced Indebtedness" has the meaning set forth in Section
4.12(b)(viii).
"Registrar" has the meaning set forth in Section 2.3.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Related Asset" means any asset used in connection with a Related
Business or Related Satellite Business.
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"Related Business" means any Related Satellite Business and any
business relating to the worldwide acquisition, marketing, processing and sales
of remote imagery-based products and services.
"Related Satellite Business" means any business relating to the
design, development, and operation of remote imaging satellites and the
worldwide marketing and sales of satellite-based remote imagery-based products
and services.
"Replacement Satellite" means any satellite constructed to replace an
OrbView Satellite in the event of a failure of such OrbView Satellite;
provided, however, that any such Replacement Satellite need not include
hyperspectral imagery capacity, if it is determined in good faith by the Board
of Directors of the Company (evidenced by a resolution approved by at least a
majority of the Board of Directors of the Company and set forth in an Officers'
Certificate delivered to the Trustee) that hyperspectral imagery is not
required to maintain the competitiveness of the Company's satellites.
"Responsible Officer" when used with respect to the Trustee, means any
officer within the corporate trust department of the Trustee (or any successor
group of the Trustee) with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Payment" has the meaning set forth in Section 4.10.
"Restricted Security" has the meaning set forth in Rule 144(a)(3)
under the Securities Act.
"Restricted Subsidiary" of a Person means any Subsidiary of such
Person that is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"S&P" means Standard & Poor's Ratings Services, or its successors.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement pursuant to which any property (other than Capital Stock) or assets
is sold by a Person or a Subsidiary and is thereafter leased back from the
purchaser or transferee thereof by such Person or one or more of its
Subsidiaries, except a Fixed Asset Financing.
"Securities Act" means the Securities Act of 1933, as amended.
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"Series A Offering" means the sale of shares of Series A Preferred
Stock that was consummated on February 25, 1998.
"Series A Preferred Stock" means the Series A Cumulative Convertible
Preferred Stock, $.01 par value, of the Company.
"Shelf Registration Statement" means with respect the Notes, a shelf
registration statement pursuant to Rule 415 under the Securities Act relating
to the Transfer Restricted Securities.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"Stated Maturity" means, when used with respect to any Note, March 1,
2005.
"Stock Purchase Agreement" means the Series A Preferred Stock Purchase
Agreement, dated May 7, 1997, as amended, by and among the Company and the
purchasers of Series A Preferred Stock, as in effect on the First Issue Date.
"Stockholders' Agreement" means the agreement by and among the Company
and its stockholders, dated May 8, 1997, as amended, as in effect on the First
Issue Date.
"Stock Option Plan" means the Orbital Imaging Corporation 1996 Stock
Option Plan, adopted as of November 15, 1996 and any successor stock option
plan adopted for the benefit of the Company's directors and/or employees.
"Subsidiary" means, with respect to any Person:
(i) any corporation, association or other business entity
of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of such Person (or a combination thereof); and
(ii) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of such Person
or (b) the only general partners of which are such Person or one or more
Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantee" means any Guarantee of the Company's
obligations under this Indenture and the Notes given by a Subsidiary Guarantor.
"Subsidiary Guarantor" means any Person that becomes a Restricted
Subsidiary of the Company after the Issue Date.
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"Successor Note" of any particular Note means every Note issued after,
and evidencing all or a portion of the same debt as that evidenced by, such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.7 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"TIA" means the Trust Indenture Act of 1939, as amended, as in force
at the date as of which this instrument was executed; provided, however, that
in the event the Trust Indenture Act is amended after such date, "TIA" means,
to the extent required by such amendment, the Trust Indenture Act of 1939 as so
amended.
"Transfer Restricted Security" means each Note, until the earliest to
occur of (a) the date on which such Note is exchanged in the Exchange Offer and
entitled to be resold to the public by the Holder thereof without complying
with the prospectus delivery requirements of the Securities Act, (b) the date
on which such Note has been disposed of in accordance with a Shelf Registration
Statement, (c) the date on which such Note is disposed of by a Broker-Dealer
pursuant to the "Plan of Distribution" contemplated by the Exchange Offer
Registration Statement (including delivery of the Prospectus contained therein)
or (d) the date on which such Note is distributed to the public pursuant to
Rule 144 under the Securities Act.
"Total Invested Capital" means, as of any date of determination, the
sum of (a) total Indebtedness as of such date and (b) $91.5 million plus the
aggregate proceeds received by the Company or any Restricted Subsidiary of the
Company in respect of the issuance of Capital Stock (other than Disqualified
Stock) of the Company or such Restricted Subsidiary, including the fair value
of property other than cash (as determined in good faith by the Board of
Directors of the Company (evidenced by a resolution approved by at least a
majority of the Board of Directors of the Company and set forth in an Officers'
Certificate delivered to the Trustee)), less any redemptions of, or dividends
or other distributions on, Capital Stock of the Company made after the First
Issue Date and on or prior to the date of determination.
"Trustee" means HSBC Bank USA until a successor Trustee shall have
been appointed pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean such successor Trustee.
"Units Offering" means the issuance by the Company on February 25,
1998 of 150,000 units consisting of the 1998 Notes and warrants to purchase
1,312,746 shares of Common Stock, resulting in gross proceeds of $150 million.
"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;
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(ii) is not party to any agreement, contract, arrangement
or understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the
Company;
(iii) is a Person with respect to which neither the Company
nor any of its Restricted Subsidiaries has any direct or indirect obligation:
(1) to subscribe for additional Equity Interests; or (2) to maintain or
preserve such Person's financial condition or to cause such Person to achieve
any specified levels of operating results;
(iv) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of any of the Company
or any of its Restricted Subsidiaries; and
(v) in the case of a corporate entity or limited
liability company, has at least one director on its board of directors and at
least one executive officer, in each case who is not a director or executive
officer of the Company or any of its Restricted Subsidiaries.
"Voting Equity Interests" means the Equity Interest in a corporation
or other Person with voting power under ordinary circumstances entitling the
holders thereof to elect or appoint the board of directors, executive committee
or other governing body of such corporation or Person, whether at all times or
only so long as no senior class of securities has such voting power by reason
of any contingency.
"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/or one or more other Wholly Owned
Restricted Subsidiaries of such Person.
SECTION 1.2. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
(1) "indenture securities" means the Notes; (2) "indenture security holder"
means a Holder; (3) "indenture to be qualified" means this Indenture; (4)
"indenture trustee" or "institutional trustee" means the Trustee; and (5)
"obligor" on the indenture securities
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means the Company or any other obligor on the Notes. All other TIA terms used
in this Indenture that are defined by the TIA, defined by TIA reference to
another statute or defined by Commission rule under the TIA and not otherwise
defined herein have the meanings assigned to them therein.
SECTION 1.3. RULES OF CONSTRUCTION.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and, where appropriate, words of the masculine
gender shall mean and include correlative words of the feminine and neutral
genders and where applicable words in the singular shall mean and include the
plural, and vice versa;
(2) accounting terms used herein and not otherwise
defined have the meanings ascribed to them in accordance with GAAP;
(3) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(4) Articles and Sections referred to by number shall
mean the corresponding Articles and Sections of this Indenture;
(5) any headings preceding the texts of the several
Articles and Sections of this Indenture, shall be solely for convenience of
reference, and shall not constitute a part of this Indenture, nor shall they
affect its meaning, construction or effect; and
(6) any reference to a statute shall be construed to
include any statutory provision consolidating, amending or replacing the
statute referred to.
ARTICLE II
THE NOTES
SECTION 2.1. FORM AND DATING.
(a) General Form of Notes. The Notes and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A
hereto, which Exhibit is part of this Indenture. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. Each
Note shall be dated the date of its authentication. The Notes shall be issued
only in registered form without coupons and only in minimum denominations of
$1,000 and integral multiples thereof. The terms and provisions contained in
the Notes shall constitute, and are hereby expressly made, a part of this
Indenture and the Company and the
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Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. The Notes will initially be
issued in global form (the "Global Notes"). One or more Global Notes will be
issued to evidence each of the following: (i) Notes sold in reliance on Rule
144A under the Securities Act, (ii) Notes sold outside of the United States to
a non-U.S. Person in reliance on Regulation S under the Securities Act, and
(iii) Notes sold to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) in
reliance on an exemption from the registration requirements of the Securities
Act other than Rule 144A. Global Notes shall be substantially in the form of
Exhibit A attached hereto (including the text and schedule called for by
footnotes 1 and 2 thereto). Definitive Notes shall be substantially in the
form of Exhibit A attached hereto (excluding the text and schedule called for
by footnotes 1). Global Notes or Definitive Notes issued as Exchange Notes
will not include the legend called for by footnote 2 of Exhibit A.
(b) Form of Global Notes. Each Global Note (i) shall
represent such portion of the outstanding Notes as shall be specified therein,
(ii) shall provide that it shall represent the aggregate amount of outstanding
Notes from time to time endorsed thereon and that the aggregate amount of
outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions, (iii) shall be
registered in the name of the Depositary or its nominee, duly executed by the
Company and authenticated by the Trustee as provided herein, for credit to the
respective accounts of the Agent Members (or such accounts as they may direct)
at the Depositary, (iv) shall be delivered by the Trustee or its agent to the
Depositary or a Note Custodian pursuant to the Depositary's instructions and
(v) shall bear a legend substantially to the following effect:
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by
the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or
by the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary. Unless this certificate is
presented by an authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), New York, New York, to the
Company or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede
& Co. or such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such
other entity as may be requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Agent Members shall have no rights under this Indenture with respect
to any Global Note held on their behalf by the Depositary, and the Depositary
may be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the
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33
Company, the Trustee, or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished to
the Depositary or impair, as between the Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
Holder of any Note.
Any endorsement of a Global Note to reflect the amount of any increase
or decrease in the amount of outstanding Notes represented thereby shall be
made by the Trustee or the Note Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.6 hereof.
(c) Form of Definitive Notes. Definitive Notes may be
produced in any manner determined by the Officers of the Company executing such
Notes, as evidenced by their execution of such Notes. The Trustee must
register Definitive Notes so issued in the name of, and cause the same to be
delivered to, such Person (or its nominee). Except as provided in this Section
2.1 or Section 2.6, no Person having a beneficial interest in the Global Note
may exchange such beneficial interest for fully certificated Definitive Notes
in duly registered form.
(d) Provisions Applicable to Forms of Notes. The Notes
may also have such additional provisions, omissions, variations or
substitutions as are not inconsistent with the provisions of this Indenture,
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may be required to comply with this
Indenture, any applicable law or with any rules made pursuant thereto or with
the rules of any securities exchange or governmental agency or as may be
determined consistently herewith by the Officers of the Company executing such
Notes, as conclusively evidenced by their execution of such Notes. All Notes
shall be otherwise substantially identical except as provided herein.
Subject to the provisions of this Article II, the Holder of a Global
Note may grant proxies and otherwise authorize any Person to take any action
that a Holder is entitled to take under this Indenture or the Notes.
SECTION 2.2. EXECUTION AND AUTHENTICATION.
An Officer of the Company shall sign the Notes for the Company by
manual or facsimile signature. The Company's seal may be reproduced on the
Notes and may be in facsimile form. If an Officer of the Company whose
signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note shall nevertheless be valid. A Note shall not be valid
or obligatory for any purpose or entitled to the benefits of this Indenture
until authenticated by the manual signature of the Trustee or its
authenticating agent. The signature shall be conclusive evidence that the Note
has been authenticated under this Indenture.
The Trustee shall, upon the delivery to the Trustee of a written order
of the Company signed by two Officers, from time to time, authenticate Notes
for original issue up to an aggregate principal amount of $75,000,000. The
aggregate principal amount of Notes outstanding at any time may not exceed such
amount except as provided in Section 2.7 hereof.
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The Trustee may appoint an authenticating agent to authenticate Notes.
An authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as
the Trustee to deal with the Company or an Affiliate of the Company.
SECTION 2.3. TRUSTEE, REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar shall keep a note register ("Note Register") of the Notes and of
their transfer and exchange. The Company may also from time to time appoint
one or more co-registrars and one or more additional paying agents. The term
"Registrar" includes any co-registrar and the term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent or Registrar
upon notice to the Holders. The Company shall notify the Trustee in writing of
the name and address of any Paying Agent or Registrar not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act, subject to the last paragraph
of this Section 2.3, as such. The Company or any of its Subsidiaries may act as
Paying Agent or Registrar; provided, however, that none of the Company, its
Subsidiaries or the Affiliates of the foregoing shall act (i) as Paying Agent
in connection with any redemption, offer to purchase, discharge or defeasance,
as otherwise specified in this Indenture, and (ii) as Paying Agent or Registrar
if a Default or Event of Default has occurred and is continuing.
The Company hereby appoints HSBC Bank USA, at its Corporate Trust
Office, as the Trustee hereunder and HSBC Bank USA, hereby accepts such
appointment. The Trustee shall have the powers and authority granted to and
conferred upon it in the Notes and hereby and such further powers and authority
to act on behalf of the Company as may be mutually agreed upon in writing by
the Company and the Trustee, and the Trustee shall keep a copy of this
Indenture available for inspection during normal business hours at its
Corporate Trust Office.
The Company initially appoints The Depository Trust Company to act as
Depositary with respect to the Global Notes. The Company initially appoints
the Trustee to act as the Registrar and Paying Agent and to act as Note
Custodian with respect to the Global Notes.
All of the terms and provisions with respect to such powers and
authority contained in the Notes are subject to and governed by the terms and
provisions hereof.
The Trustee may resign as Registrar or Paying Agent upon 30 days prior
written notice to the Company.
SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST.
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The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
the Holders and the Trustee all money held by the Paying Agent for the payment
of principal of, premium, if any, interest and Liquidated Damages, if any, on
the Notes, and shall notify the Trustee of any default by the Company in making
any such payment. While any such default or an Event of Default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon payment of all such money over to the Trustee,
the Paying Agent (if other than the Company or a Subsidiary) shall have no
further liability for the money. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as
Paying Agent for the Notes.
SECTION 2.5. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable to it the most recent list available to it of the names and
addresses of all Holders and, after the consummation of the Exchange Offer,
shall otherwise strictly comply with TIA Section 312(a). If the Trustee is not
the Registrar, the Company shall furnish to the Trustee at least ten Business
Days before each Interest Payment Date and at such other times as the Trustee
may request in writing, a list in such form and as of such date as the Trustee
may require of the names and addresses of the Holders of Notes and, after the
consummation of the Exchange Offer, the Company shall otherwise strictly comply
with TIA Section 312(a).
SECTION 2.6. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Definitive Notes. If notes
in definitive form ("Definitive Notes") are presented by a Holder to the
Registrar with a request: (x) to register the transfer of the Definitive
Notes; or (y) to exchange such Definitive Notes for an equal principal amount
of Definitive Notes of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested if its requirements for
such transactions are met; provided, however, that the Definitive Notes
presented or surrendered for registration of transfer or exchange: (i) shall
be duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by such Holder's
attorney, duly authorized in writing; and (ii) in the case of a Definitive Note
that is a Transfer Restricted Security, such request shall be accompanied by
the following additional information and documents, as applicable:
(i) if such Transfer Restricted Security is being
delivered to the Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification to that effect from such Holder (in
substantially the form of Exhibit B hereto);
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(ii) if such Transfer Restricted Security is being
transferred (1) to a QIB in accordance with Rule 144A under the Securities Act
or (2) pursuant to an effective registration statement under the Securities
Act, a certification to that effect (in substantially the form of Exhibit B
hereto);
(iii) if such Transfer Restricted Security is being
transferred to an institutional "accredited investor" within the meaning of
Rule 501(a)(1), (2), (3) or (7) under the Securities Act pursuant to a private
placement exemption from the registration requirements of the Securities Act
(and based on an Opinion of Counsel if the Company so requests in the case of a
transfer of Notes with an aggregate principal amount of $100,000 or less), a
certification to that effect (in substantially the form of Exhibit B hereto)
and a certification of the applicable transferee (in substantially the form of
Exhibit C hereto);
(iv) if such Transfer Restricted Security is being
transferred pursuant to an exemption from registration in accordance with Rule
904 under the Securities Act, a certification to that effect (in substantially
the form of Exhibit B hereto); or
(v) if such Transfer Restricted Security is being
transferred in reliance on another exemption from the registration requirements
of the Securities Act (and based on an Opinion of Counsel if the Company so
requests) a certification to that effect (in substantially the form of Exhibit
B hereto).
(b) Restrictions on Transfer of a Definitive Note for a
Beneficial Interest in a Global Note. A Definitive Note may not be exchanged
for a beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
Note, duly endorsed or accompanied by appropriate instruments of transfer, in
form satisfactory to the Trustee, together with: (i) if such Definitive Note is
a Transfer Restricted Security, a certification from the Holder thereof (in
substantially the form of Exhibit B hereto) to the effect that such Definitive
Note is being transferred by such Holder either (A) to a QIB in accordance with
Rule 144A under the Securities Act, (B) outside the United States to a foreign
person in a transaction meeting the requirements of Rule 904 under the
Securities Act or (C) to an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act pursuant to
a private placement exemption from the registration requirements of the
Securities Act (provided that the applicable transferee furnishes a certificate
substantially in the form of Exhibit C hereto, and based on an Opinion of
Counsel if the Company so requests in the case of a transfer of Notes with an
aggregate principal amount of $100,000 or less) who wishes to take delivery
thereof in the form of a beneficial interest in a Global Note; and (ii) whether
or not such Definitive Note is a Transfer Restricted Security, written
instructions from the Holder thereof directing the Trustee to make, or to
direct the Note Custodian to make, an endorsement on the appropriate Global
Note to reflect an increase in the aggregate principal amount of the Notes
represented by such Global Note, in which case the Trustee or its agent shall
cancel such Definitive Note in accordance with Section 2.11 hereof and cause,
or direct the Note Custodian to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the Note
Custodian, the aggregate principal amount of Notes represented by
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the Global Note to be increased accordingly. If no Global Notes are then
outstanding, the Company shall issue and, upon receipt of an authentication
order in accordance with Section 2.2 hereof, the Trustee shall authenticate a
new Global Note in the appropriate principal amount.
(c) Transfer and Exchange of a Beneficial Interest in a
Global Note. The transfer and exchange of beneficial interests in Global Notes
shall be effected through the Depositary, in accordance with this Indenture and
the procedures of the Depositary therefor, which shall include restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act, provided that if such Global Note is a Transfer Restricted
Security, the Holder thereof will furnish to the Trustee a certification (in
substantially the form of Exhibit B hereto) to the effect that such beneficial
interest is being transferred by such Holder either (A) to a QIB in accordance
with Rule 144A under the Securities Act, (B) outside the United States to a
foreign person in a transaction meeting the requirements of Rule 904 under the
Securities Act or (C) to an institutional "accredited investor" within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act pursuant to
a private placement exemption from the registration requirements of the
Securities Act (provided that the applicable transferee furnishes a certificate
substantially in the form of Exhibit C hereto, and based on an Opinion of
Counsel if the Company so requests in the case of a transfer of Notes with an
aggregate principal amount of $100,000 or less) who wishes to take delivery
thereof in the form of a beneficial interest in a Global Note. Any Notes
evidenced by the Regulation S Global Note may only be transferred in accordance
with the provisions of Regulation S under the Securities Act. Notwithstanding
the foregoing, in the case of a Transfer Restricted Security, a beneficial
interest in a Global Note being transferred in reliance on an exemption from
the registration requirements of the Securities Act (other than in accordance
with Rule 144A, Rule 144 or Rule 904 under the Securities Act) may only be
transferred for a Definitive Note and pursuant to the provisions of Section
2.6(d) below.
(d) Transfer and Exchange of a Beneficial Interest in a
Global Note for a Definitive Note.
(i) Any Person having a beneficial interest in a
Global Note may upon request exchange such beneficial interest for a Definitive
Note. Upon receipt by the Trustee of written instructions or such other form of
instructions as is customary for the Depositary from the Depositary or its
nominee on behalf of any Person having a beneficial interest in a Global Note
and, in the case of any Transfer Restricted Security, the following additional
information and documents (all of which may be submitted by facsimile):
(A) if such beneficial interest is being
delivered to the Person designated by the Depositary as being the beneficial
owner, a certification to that effect (in substantially the form of Exhibit B
hereto);
(B) if such beneficial interest is being
transferred (1) to a QIB in accordance with Rule 144A under the Securities Act
or (2) pursuant to an effective registration
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statement under the Securities Act, a certification to that effect (in
substantially the form of Exhibit B hereto);
(C) if such beneficial interest is being
transferred to any institutional "accredited investor" within the meaning of
Rule 501(a)(1), (2), (3) or (7) under the Securities Act pursuant to a private
placement exemption from the registration requirements of the Securities Act
(and based on an Opinion of Counsel if the Company so requests in the case of a
transfer of Notes with an aggregate principal amount of $100,000 or less), a
certification to that effect (in substantially the form of Exhibit B hereto)
and a certification from the applicable transferee (in substantially the form
of Exhibit C hereto);
(D) if such beneficial interest is being
transferred pursuant to an exemption from registration in accordance with Rule
904 under the Securities Act, a certification to that effect (in substantially
the form of Exhibit B hereto), provided that no Notes represented by the
Regulation S Global Note may be exchanged for Definitive Notes until expiration
of the applicable restricted period under Regulation S of the Securities Act;
or
(E) if such beneficial interest is being
transferred in reliance on another exemption from the registration requirements
of the Securities Act (and based on an Opinion of Counsel if the Company so
requests), a certification to that effect (in substantially the form of Exhibit
B hereto);
in which case the Trustee or the Note Custodian, at the direction of the
Trustee, shall, in accordance with the standing instructions and procedures
existing between the Depositary and the Note Custodian, cause the aggregate
principal amount of Global Notes to be reduced accordingly and, following such
reduction, the Company shall execute and, upon receipt of an authentication
order in accordance with Section 2.2 hereof, the Trustee shall authenticate
and deliver to the transferee a Definitive Note in the principal amount.
(ii) Definitive Notes issued in exchange for a
beneficial interest in a Global Note pursuant to this Section 2.6(d) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Definitive Notes to the Persons in whose names such Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global
Notes. Notwithstanding any other provision of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.6), a Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) Authentication of Definitive Notes in Absence of
Depositary. If at any time: (i) the Depositary for the Notes notifies the
Company that the Depositary is unwilling or
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unable to continue as Depositary for the Global Notes or, if at any time such
Depositary ceases to be a "clearing agency" registered under the Exchange Act,
and a successor Depositary for the Global Notes is not appointed by the Company
within 90 days after delivery of such notice; or (ii) the Company, at its sole
discretion, notifies the Trustee in writing that it elects to cause the
issuance of Definitive Notes under this Indenture in exchange for all or any
part of the Notes represented by a Global Note or Global Notes, the Depositary
or the Note Custodian shall surrender such Global Note to the Trustee, without
charge, and then the Company shall execute, and the Trustee shall, upon receipt
of an authentication order in accordance with Section 2.2 hereof, authenticate
and deliver in exchange for such Global Notes, Definitive Notes in an aggregate
principal amount equal to the principal amount of such Global Notes. Such
Definitive Notes shall be registered in such names as the Depositary shall
direct in writing.
(g) Legends. (i) Except as permitted by the following
paragraphs (ii), and (iii), each Note evidencing Global Notes and Definitive
Notes (and Notes issued in exchange therefor or substitution thereof) shall
bear legends in substantially the following form:
THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED
HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE NOTE EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF ORBITAL IMAGING CORPORATION AND ITS
SUCCESSORS (THE "COMPANY") THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE
UNITED STATES TO A PERSON THAT IS NOT A U.S. PERSON (AS DEFINED IN
RULE 902 UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, (d) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT, PRIOR
TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE NOTES (THE FORM
OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) OR (e) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE
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COMPANY OR TRUSTEE, REGISTRAR OR TRANSFER AGENT FOR THE SECURITIES SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE NOTE EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET
FORTH IN (A) ABOVE.
(ii) Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer Restricted Security represented by
a Global Note) pursuant to an effective registration statement under the
Securities Act or pursuant to Rule 144 under the Securities Act (pursuant to an
Opinion of Counsel reasonably satisfactory to the Company that no legend is
required):
(A) in the case of any Transfer
Restricted Security that is a Definitive Note, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security for a Definitive
Note that does not bear the legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted Security;
(B) in the case of any Transfer
Restricted Security represented by a Global Note, such Transfer Restricted
Security shall not be required to bear the legend set forth in (i) above, but
shall continue to be subject to the provisions of Section 2.6(c) hereof;
provided, however, that with respect to any request for an exchange of a
Transfer Restricted Security that is represented by a Global Note for a
Definitive Note that does not bear the legend set forth in (i) above, which
request is made in reliance upon Rule 144 under the Securities Act (and based
upon an Opinion of Counsel if the Company so requests), the Holder thereof
shall certify in writing to the Registrar that such request is being made
pursuant to Rule 144 under the Securities Act (such certification to be
substantially in the form of Exhibit B hereto).
(iii) Notwithstanding the foregoing, upon
consummation of the Exchange Offer, the Company shall issue and, upon receipt
of an authentication order in accordance with Section 2.2 hereof, the Trustee
shall authenticate Exchange Notes in exchange for Original Notes accepted for
exchange in the Exchange Offer, which Exchange Notes shall not bear the legend
set forth in (i) above, and the Registrar shall rescind any restriction on the
transfer of such Notes, in each case unless the Holder of such Original Notes
certifies that in connection with the Exchange Offer that it is not (A) a
broker-dealer, (B) a Person participating in the distribution of the Original
Notes or (C) a Person who is an affiliate (as defined in Rule 144A) of the
Company.
(h) Cancellation and/or Adjustment of Global Notes. At
such time as all beneficial interests in Global Notes have been exchanged for
Definitive Notes, redeemed, repurchased or canceled, all Global Notes shall be
returned to or retained and canceled by the
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Trustee or its agent in accordance with Section 2.11 hereof. At any time prior
to such cancellation, if any beneficial interest in a Global Note is exchanged
for Definitive Notes, redeemed, repurchased or canceled, the principal amount
of Notes represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note, by the Trustee or the Note
Custodian, at the direction of the Trustee, to reflect such reduction.
(i) General Provisions Relating to Transfers and
Exchanges.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate
Definitive Notes and Global Notes at the Registrar's request.
(ii) No service charge shall be made to the Holder
for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or registration of transfer
pursuant to Sections 2.2, 2.10, 3.5, 3.8 and 4.14 hereto).
(iii) All Definitive Notes and Global Notes issued
upon any registration of transfer or exchange of Definitive Notes or Global
Notes shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Definitive Notes
or Global Notes surrendered upon such registration of transfer or exchange.
(iv) Neither the Registrar nor the Company shall
be required:
(A) to issue, to register the transfer
of or to exchange Notes during a period beginning at the opening of business 15
days before the day of any selection of Notes for redemption under Section 3.1
hereof and ending at the close of business on the day of selection; or
(B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to
exchange a Note between a Record Date and the next succeeding Interest Payment
Date.
(v) The Trustee shall authenticate Definitive
Notes and Global Notes in accordance with the provisions of Section 2.2 hereof.
(j) Certain Transfers in Connection with and after the
Exchange Offer. Notwithstanding any other provision of this Indenture: (i) no
Exchange Note may be exchanged by the Holder thereof for an Original Note; (ii)
accrued and unpaid interest on the Original Notes being exchanged in the
Exchange Offer shall be due and payable on the next Interest Payment
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Date for the Exchange Notes following the Exchange Offer; and (iii) interest on
the Exchange Notes to be issued in the Exchange Offer shall accrue from the
date of the Exchange Offer.
SECTION 2.7. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the Company
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Note, the Company shall, upon the written request of the Holder
thereof, issue and the Trustee, upon the written order of the Company signed by
two Officers of the Company, shall authenticate a replacement Note if the
Trustee's requirements are met. If required by the Trustee or the Company, an
indemnity bond must be supplied by such Holder that is sufficient in the
judgment of the Trustee and the Company to protect the Company, the Trustee,
any Paying Agent, the Registrar and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
The provisions of this Section 2.7 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.8. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it (or its agent), those delivered to
it (or its agent) for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof,
and those described in this Section as not outstanding. Except as set forth in
Section 2.9 hereof, a Note does not cease to be outstanding because the Company
or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.7 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note (other than a mutilated Note surrendered for replacement) is held
by a "protected purchaser" (as such term is defined in Section 8-303 of the
Uniform Commercial Code as in effect in the State of New York).
If the principal amount of any Note is considered paid under Section
4.1 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
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SECTION 2.9. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company, shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Responsible Officer of the
Trustee has actual knowledge are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY NOTES.
Until definitive Notes are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Notes upon a written order of the
Company signed by two Officers of the Company. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive Notes in exchange for
temporary Notes.
Until such exchange, Holders of temporary Notes shall be entitled to
all of the benefits of this Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee or its agent
for cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee (or its agent) and no one else shall cancel all Notes
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall destroy canceled Notes (subject to the record retention
requirement of the Exchange Act) in accordance with its usual procedures.
Certification of the destruction of all canceled Notes shall be delivered to
the Company from time to time. The Company may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Trustee (or its
agent) for cancellation. If the Company acquires any of the Notes, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Notes unless and until the same are
surrendered to the Trustee (or its agent) for cancellation pursuant to this
Section 2.11.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.1 hereof. The Company shall notify the Trustee
in writing
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of the amount of defaulted interest proposed to be paid on each Note and the
date of the proposed payment. The Company shall fix or cause to be fixed each
such special record date and payment date, provided that no such special record
date shall be less than 10 days prior to the related payment date for such
defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders
a notice that states the special record date, the related payment date and the
amount of such defaulted interest to be paid.
SECTION 2.13. PERSONS DEEMED OWNERS.
Prior to due presentment for the registration of a transfer of any
Note, the Trustee, any Paying Agent, the Registrar, the Company and any agent
of the foregoing shall deem and treat the Person in whose name any Note is
registered as the absolute owner of such Note for all purposes (including the
purpose of receiving payment of principal of and interest on such Notes;
provided that defaulted interest shall be paid as set forth in Section 2.12),
and none of the Trustee, Paying Agent, the Registrar, the Company or any agent
of the foregoing shall be affected by notice to the contrary.
SECTION 2.14. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will print CUSIP numbers on the
Notes, and the Trustee may use CUSIP numbers in notices of redemption and
purchase as a convenience to Holders; provided, however, that any such notices
may state that no representation is made as to the correctness of such numbers
as printed on the Notes, and any such redemption or purchase shall not be
affected by any defect or omission in such numbers.
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ARTICLE III
REDEMPTION
SECTION 3.1. OPTIONAL REDEMPTION.
(a) The Notes will not be redeemable prior to March 1,
2002. Thereafter, the Notes will be subject to redemption at the option of the
Company, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued and unpaid interest and Liquidated Damages (if
any) thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on March 1 of the years indicated below:
Redemption
Year Price
- ---- -----------------
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105.8125%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102.9063%
2004 and thereafter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100.0000%
(b) Notwithstanding the foregoing, prior to March 1,
2001, the Company may, on one or more occasions, redeem outstanding Notes with
the net cash proceeds of one or more sales of Capital Stock (other than
Disqualified Stock) of the Company to one or more Persons (but only to the
extent the proceeds of such sales of Capital Stock consist of cash or Cash
Equivalents) at a redemption price equal to 111.625% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages (if any)
thereon to the redemption date; provided, however, that: (i) not less than 65%
of the aggregate principal amount of the Notes initially issued remains
outstanding immediately after any such redemption; and (ii) such redemption
shall occur within 60 days after the date of closing of such sale of Capital
Stock.
SECTION 3.2. MANDATORY REDEMPTION.
The Company will not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
SECTION 3.3. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Notes pursuant to Section
3.1 shall be evidenced by an Officers' Certificate of the Company. In case of
any redemption at the election of the Company of less than all the Notes, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee in writing of such Redemption Date and of the principal amount of
Notes to be redeemed. In the case of any redemption of Notes prior to the
expiration of any
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restriction on such redemption provided in the terms of such Notes or elsewhere
in this Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
SECTION 3.4. NOTES TO BE REDEEMED PRO RATA.
If less than all of the Notes are to be redeemed or repurchased
pursuant to any purchase offer required under this Indenture at any time,
selection of Notes for redemption or repurchase will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are not so listed, on a
pro rata basis, selected by lot or by such method as the Trustee shall deem
fair and appropriate; provided that no Note with a principal amount of $1,000
or less shall be redeemed or repurchased in part.
Notices of redemption or repurchase shall be mailed by first class
mail at least 30 but not more than 60 days before the redemption or repurchase
date to each Holder of Notes to be redeemed or repurchased at its registered
address. If any Note is to be redeemed or repurchased in part only, the notice
that relates to such Note shall state the portion of the principal amount
thereof to be redeemed or repurchased. A new Note in principal amount equal to
the unredeemed or unrepurchased portion will be issued in the name of the
Holder thereof upon cancellation of the original Note. On and after the
redemption or repurchase date (unless the Company shall default in the payment
of the Redemption Price, accrued and unpaid interest or Liquidated Damages, if
any), interest will cease to accrue on the Notes or portions thereof called for
redemption or repurchase.
SECTION 3.5. NOTICE OF REDEMPTION.
(a) Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to
the Redemption Date, to each Holder of Notes to be redeemed, at such 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 and Liquidated Damages (if any) to be paid;
(iii) the paragraph of the Notes and/or section of this
Indenture pursuant to which the redemption is being made;
(iv) if less than all the outstanding Notes are to be
redeemed, the identification (and, in the case of partial redemption of any
Notes, the principal amounts) of the particular Notes to be redeemed;
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(v) that on the Redemption Date the Redemption Price will
become due and payable upon each such Note to be redeemed and that interest
thereon will cease to accrue on and after said date;
(vi) the place or places where such Notes are to be
surrendered for payment of the Redemption Price;
(vii) that in the case that a Note is only redeemed in
part, upon surrender of such Note, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Note without charge a new
Note or Notes in an aggregate principal amount equal to the unredeemed portion
of the Note;
(viii) the aggregate principal amount of Notes being
redeemed; and
(ix) the CUSIP number or numbers of the Notes being
redeemed, and that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, as listed on such notice or printed on the Notes.
(b) Notice of redemption of Notes to be redeemed at the
election of the Company shall be given by the Company or, if request is made to
the Trustee no less than 45 days prior to the Redemption Date, by the Trustee
in the name and at the expense of the Company.
SECTION 3.6. EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
Redemption Date at the Redemption Price. A notice of redemption may not be
conditional.
SECTION 3.7. DEPOSIT OF REDEMPTION PRICE.
The Company shall, by 11:00 a.m., New York City time, on any
Redemption Date, deposit with the Trustee or with the Paying Agent an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued and unpaid interest and
Liquidated Damages (if any) with respect to all the Notes which are to be
redeemed on that date.
SECTION 3.8. NOTES PAYABLE ON REDEMPTION DATE.
Upon notice of redemption, the Notes or any portion thereof to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price, accrued and
unpaid interest or Liquidated Damages (if any)), such Notes shall cease to bear
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interest. If a Note is redeemed on or after a Record Date but on or prior to
the related Interest Payment Date, then any accrued and unpaid interest shall
be paid to the Person in whose name such Note was registered at the close of
business on such Record Date. Upon surrender of any such Note for redemption
in accordance with said notice, such Note or portion thereof shall be paid by
the Company at the Redemption Price, together with accrued and unpaid interest
and Liquidated Damages (if any) to the Redemption Date. If any Note called for
redemption shall not be so paid upon surrender thereof for redemption, the
principal and premium (if any) shall, until paid, bear interest from the
Redemption Date at the rate provided by the Note.
SECTION 3.9. NOTES REDEEMED IN PART.
Any Note that is to be redeemed only in part shall be surrendered at
an office or agency of the Company designated for that purpose pursuant to
Section 4.2 (with, if the Company or the Trustee so require, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or its attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Note without service charge, a
new Note or Notes of like tenor, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Note so surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal and premium
(if any) of, and interest and Liquidated Damages (if any) on, the Notes on the
dates and in the manner provided in the Notes and in this Indenture. An
installment of principal and premium (if any) of, or interest and Liquidated
Damages (if any) on, the Notes shall be considered paid on the date it is due
if the Paying Agent (other than the Company or an Affiliate of the Company)
holds no later than 11:00 a.m., New York City time, on that date U.S. dollars
designated for and sufficient to pay the installment in full and is not
prohibited from paying such money to the Holders pursuant to the terms of this
Indenture. The Paying Agent shall return to the Company no later than five
days following the date of payment, any money that exceeds such installment of
principal and premium (if any) of, and interest and Liquidated Damages (if
any) payable on, the Notes.
The Company shall pay, to the extent such payments are lawful,
interest on overdue principal and on overdue installments of interest (without
regard to any applicable grace periods) from time to time on demand at the rate
borne by the Notes plus 1% per annum. Interest will be computed on the basis
of a 360-day year comprised of twelve 30-day months.
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Notwithstanding anything to the contrary contained in this Indenture,
the Company may, to the extent it is required to do so by law, deduct or
withhold income or other similar taxes imposed by the United States of America
from principal or interest payments hereunder.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain the office or agency required under Section
2.3. The Company shall give prior written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 11.2.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company
shall give prior written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as such office or agency of the Company in accordance with Section 2.3.
SECTION 4.3. CORPORATE EXISTENCE.
Except as otherwise permitted by Articles IV and V, the Company shall
do or cause to be done, at its own cost and expense, all things necessary to
preserve and keep in full force and effect its corporate existence and the
corporate existence of each of its Subsidiaries (if any) in accordance with the
respective organizational documents of the Company and each such Subsidiary and
the material rights (charter and statutory) and franchises of the Company and
each such Subsidiary;
SECTION 4.4. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon it or any of its Subsidiaries or
its properties or any of its Subsidiaries' properties and (ii) all lawful
claims for labor, materials and supplies that, if unpaid, would by law become a
Lien upon its properties or any of its Subsidiaries' properties; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith and by
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appropriate proceedings properly instituted and diligently conducted and for
which adequate reserves, to the extent required under GAAP, have been taken.
SECTION 4.5. MAINTENANCE OF PROPERTIES AND INSURANCE.
(a) The Company shall maintain its properties in good
working order and condition (subject to ordinary wear and tear) and make all
reasonably necessary repairs, renewals, replacements, additions and
improvements required for it to actively conduct and carry on its business;
(b) The Company shall maintain insurance (including
appropriate self-insurance) against loss or damage of the kinds that, in the
good faith judgment of the Company, are adequate and appropriate for the
conduct of the business of the Company and its Subsidiaries in a prudent
manner, with reputable insurers or with the government of the United States of
America or an agency or instrumentality thereof, in such amounts, with such
deductibles, and by such methods as shall be customary, in the good faith
judgment of the Company, for companies similarly situated in the industry
(provided that insurance with respect to the OrbView Satellites, the
Replacement Satellites and the RadarSat-2 Satellite shall be governed by clause
(c) below).
(c) In addition to the foregoing, the Company shall
obtain or maintain (as applicable) in full force and effect:
(i) launch and on-orbit checkout insurance with
respect to each OrbView Satellite, which insurance shall be procured promptly
prior to the launch of each such satellite and shall be in effect on the launch
date and remain in effect through the launch and the initial check-out period
of such OrbView Satellite, in an amount sufficient to provide for the
construction, launch and insurance of a Replacement Satellite to be payable in
the event of a launch or satellite failure during the initial check-out
period; provided, however, that at the time the Company is required to procure
launch and on-orbit check- out insurance with respect to an OrbView Satellite,
the Company may reduce the amount to be insured if another OrbView Satellite is
fully operational, is being used in commercial service and is insured in
accordance with clause (ii) below, by (x) the amount of cash, Cash Equivalents
and short-term investments (excluding proceeds of this Offering, the Units
Offering and the Series A Offering and amounts allocated or expected to be
allocated for capital expenditures) currently available to the Company to
construct a Replacement Satellite as determined in good faith by the Board of
Directors of the Company (evidenced by a resolution approved by at least a
majority of the Board of Directors of the Company and set forth in an Officers'
Certificate delivered to the Trustee), and (y) the value of any long lead-time
spare parts that the Company has procured to date for any satellite that is
comparable to the technological capability of the OrbView Satellite being
insured, as such value is determined in good faith by the Board of Directors of
the Company (evidenced by a resolution approved by at least a majority of the
Board of Directors of the Company and set forth in an Officers' Certificate
delivered to the Trustee);
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(ii) on-orbit operations insurance with respect to
each OrbView Satellite, at all times following the date an OrbView Satellite is
placed in commercial service, representing the value of such satellite (taking
into account the foregone useful life of such satellite) and the pro rata cost
of a launch vehicle, payable in the event that such satellite ceases to be used
for commercial revenue producing service (provided that such insurance may
contain customary provisions for deductible payments and minimum thresholds for
satellite failure); provided, however, that at the time the Company is required
to procure or renew on- orbit operations insurance with respect to an OrbView
Satellite, the Company may reduce the amount to be insured if another OrbView
Satellite is fully operational, is being used in commercial service, and is
insured in accordance with this clause (ii), by (x) the amount of cash, Cash
Equivalents and short-term investments (excluding proceeds of this Offering,
the Units Offering and the Series A Offering and amounts allocated or expected
to be allocated for capital expenditures), currently available to the Company
to construct a Replacement Satellite as determined in good faith by the Board
of Directors of the Company (evidenced by a resolution approved by at least a
majority of the Board of Directors of the Company and set forth in an Officers'
Certificate delivered to the Trustee), and (y) the value of any long lead-time
spare parts that the Company has procured to date for any satellite that is
comparable to the technological capability of the OrbView Satellite being
insured, as such value is determined in good faith by the Board of Directors of
the Company (evidenced by a resolution approved by at least a majority of the
Board of Directors of the Company and set forth in an Officers' Certificate
delivered to the Trustee);
(iii) launch and on-orbit checkout insurance with
respect to the RadarSat-2 satellite in the amount of $55 million, which
insurance shall be procured promptly prior to the launch of the RadarSat-2
satellite and shall be in effect on the launch date and remain in effect
through the launch and the initial checkout period of the RadarSat-2 satellite
and be payable to ORBIMAGE in the event of a launch or satellite failure during
the initial checkout period; and
(iv) following the date the RadarSat-2 satellite
is placed in commercial operation, on-orbit operations insurance with respect
to the RadarSat-2 satellite in an amount representing the book value of the
undepreciated portion of the $60 million component of the fee for the
RadarSat-2 License as recorded on the Company's balance sheet, and payable to
ORBIMAGE 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).
The obligation of the Company to maintain insurance pursuant to this
clause (c) may be satisfied by any combination of (i) insurance commitments
obtained from any recognized insurance provider; (ii) insurance commitments
obtained from any entity other than an entity referred to in clause (i) if the
Board of Directors of the Company determines in good faith (evidenced by a
majority resolution of the Board of Directors of the Company and set forth in
an Officers' Certificate delivered to the Trustee) that such entity is
creditworthy and otherwise capable of bearing the financial risk of providing
such insurance and making payments in respect
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of any claims on a timely basis; and (iii) unrestricted cash segregated and
maintained by the Company in a segregated account established with an Eligible
Institution (the "Insurance Account") solely for disbursement in accordance
with the terms of this covenant ("Cash Insurance"), and to be held in trust for
the sole and express benefit of the Holders of the Notes.
Within 30 days following any date on which the Company is required to
obtain insurance pursuant to this clause (c), the Company will deliver to the
Trustee an insurance certificate certifying the amount of insurance then
carried, and in full force and effect, and an Officers' Certificate stating
that such insurance, together with any other insurance or Cash Insurance
maintained by the Company, complies with this Indenture. In addition, the
Company will cause to be delivered to the Trustee no less than once each year
an insurance certificate setting forth the amount of insurance then carried,
which insurance certificate shall entitle the Trustee to (i) notice of any
claim under any such insurance policy; and (ii) at least 30 days' notice from
the provider of such insurance prior to the cancellation of any such insurance
and an Officers' Certificate that complies with the first sentence of this
paragraph.
In the event that the Company maintains any Cash Insurance in
satisfaction of any part of its obligation to maintain insurance pursuant to
this Section 4.5(c), the Company shall deliver, in lieu of any insurance
certificate otherwise required by this covenant, an Officers' Certificate to
the Trustee certifying the amount of such Cash Insurance.
In the event that the Company receives any proceeds of any insurance
that it is required to maintain pursuant to this Section 4.5(c), the Company
shall promptly deposit such proceeds into an escrow account established with an
Eligible Institution for such purpose. If the Company maintains any Cash
Insurance in satisfaction of any part of its obligation to maintain insurance
pursuant to this clause (c), the Company shall transfer the cash maintained in
the Insurance Account to such escrow account upon the occurrence of the event
(e.g., a launch failure) that would have entitled the Company to the payment of
insurance had the Company purchased insurance from a recognized insurance
provider. The Company may use monies on deposit in such escrow account for the
design, development, construction, procurement, launch and insurance of any
Replacement Satellite or replacement radar satellite or to procure a license
substantially similar to the RadarSat-2 License, if: (i) the Company delivers
to the Trustee a certificate of the Company's President certifying that such
Replacement Satellite or replacement radar satellite is comparable to the
technological capability of the satellite being replaced and with respect to a
replacement license, that such license is substantially similar to the
RadarSat-2 License, (ii) within 30 days following the receipt of such insurance
proceeds, the Company delivers to the Trustee an Officers' Certificate
certifying that (A) the Company will use its reasonable best efforts to ensure
that such Replacement Satellite or replacement radar satellite is launched
within 24 months following delivery from the escrow account of such insurance
proceeds; and (B) the Company will have sufficient funds to service the
Company's projected debt service requirements until the scheduled launch of
such Replacement Satellite or replacement radar satellite and to develop,
construct, launch and insure such Replacement Satellite or replacement radar
satellite.
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SECTION 4.6. COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT.
(a) The Company shall deliver to the Trustee, within 90
days after the end of each of the Company's fiscal years, an Officers'
Certificate stating that a review of its activities during the preceding fiscal
year has been made under the supervision of the signing officers with a view to
determining whether it has kept, observed, performed and fulfilled its
obligations under this Indenture and further stating, as to each such officer
signing such certificate, that to the best of such officer's knowledge, the
Company during such preceding fiscal year has kept, observed, performed and
fulfilled each and every such covenant and no Default or Event of Default
occurred during such year and that, to each officer's knowledge, at the date of
such certificate there is no Default or Event of Default that has occurred and
is continuing or, if such signers do know of such Default or Event of Default,
the certificate shall describe the Default or Event of Default and its status
with particularity.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
annual financial statements delivered pursuant to Section 4.8 shall be
accompanied by a written report of the Company's independent accountants (who
shall be a firm of established national reputation) that in conducting their
audit of such financial statements nothing has come to their attention that
would lead them to believe that the Company has violated any provisions of
Article IV, V or VI of this Indenture insofar as they relate to accounting
matters or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall
not be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation. In the event that such written report of the
Company's independent accountants cannot be obtained, the Company shall deliver
an Officers' Certificate certifying that it has used its best efforts to obtain
such written report but was unable to do so.
(c) If any Default or Event of Default has occurred and
is continuing or if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Notes, the Company
shall deliver to the Trustee, at its address set forth in Section 11.2 hereof,
by registered or certified mail or by telegram or facsimile transmission
followed by hard copy by registered or certified mail an Officers' Certificate
specifying such event, notice or other action within five Business Days of its
becoming aware of such occurrence.
SECTION 4.7. COMPLIANCE WITH LAWS.
The Company shall, and shall cause each of its Subsidiaries to, comply
with all applicable statutes, rules, regulations and orders of the United
States of America, all states and municipalities thereof, and of any
governmental department, commission, board, regulatory authority, bureau,
agency and instrumentality of the foregoing, in respect of the conduct of its
businesses and the ownership of its properties.
SECTION 4.8. REPORTS.
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Whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding, the Company will furnish to
the Holders of Notes:
(i) all Forms 8-K, 10-Q and 10-K filed with the Commission and,
with respect to the annual information only, a report thereon by the Company's
independent certified public accountants; and
(ii) if the Company is not required to file such reports with the
Commission, all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and 10-K
if the Company were required to file such Forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" that
describes the financial condition and results of operations of the Company and
its Restricted Subsidiaries and, with respect to the annual information only, a
report thereon by the Company's independent certified public accountants, and
all information that would be required to be filed with the Commission on Form
8-K if the Company were required to file such reports.
In addition, following the consummation of the Exchange Offer, whether
or not required by the rules and regulations of the Commission, but only if
then permitted by the Commission, the Company will file a copy of all such
information and reports with the Commission for public availability and make
such information available to securities analysts and prospective investors
upon request. In addition, for so long as any Notes remain outstanding, the
Company will furnish to the Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
SECTION 4.9. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury
law, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 4.10. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any
dividend or make any distribution on account of the Equity Interests of the
Company (including, without limitation, any payment in connection with any
merger or consolidation involving the Company or any of its Restricted
Subsidiaries), other than dividends or distributions declared and payable (x)
in Equity Interests (other than Disqualified Stock) of the Company or any of
its Restricted Subsidiaries or (y) to the
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Company or to any Restricted Subsidiary of the Company; (ii) purchase, redeem,
defease, retire for value or otherwise acquire or return for value any Equity
Interests of the Company, other than any such Equity Interests owned by the
Company or any Wholly Owned Restricted Subsidiary of the Company; (iii) make
any principal payment on (except at maturity) or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is subordinated
(whether pursuant to its terms, by operation of law, structurally or otherwise)
to the Notes; or (iv) make any Restricted Investment (all such payments and
other actions set forth in clauses (i) through (iv) above being collectively
referred to as "Restricted Payments"), unless, at the time of and after giving
effect to such Restricted Payment:
(x) no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof;
(y) the Company would, at the time of such Restricted
Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at the beginning of the immediately
preceding fiscal quarter, have been permitted to incur at least $1.00
of additional Indebtedness pursuant to Section 4.12(a) hereof and
pursuant to Section 4.12(a) of the 1998 Indenture; and
(z) such Restricted Payment, together with the aggregate
of all other Restricted Payments made by the Company and its
Restricted Subsidiaries after the First Issue Date (excluding
Restricted Payments permitted by clauses (ii), (iii) and (iv) of
paragraph (b) below), is less than the sum, without duplication, of:
(1) 50% of the Consolidated Net Income of the Company for the period
(taken as one accounting period) from the beginning of the first
fiscal quarter commencing after the First Issue Date to the end of the
Company's most recently ended fiscal quarter for which financial
statements are available at the time of such Restricted Payment (or,
if such Consolidated Net Income for such period is a deficit, less
100% of such deficit); plus (2) 100% of the aggregate net cash
proceeds received by the Company since the First Issue Date as a
contribution to its common equity capital or from the issue or sale of
Equity Interests of the Company (other than Disqualified Stock) or
from the issue of Disqualified Stock or debt securities of the Company
that have been converted into such Equity Interests (other than (A)
Equity Interests (or Disqualified Stock or convertible debt
securities) sold to a Subsidiary of the Company, (B) Disqualified
Stock or debt securities that have been converted into Disqualified
Stock, (C) equity capital contributions described in clause (vi) of
the definition of "Permitted Investment," (D) to the extent that the
net cash proceeds of the issuance of such Equity Interests are used to
redeem the Notes as permitted under Section 3 hereof and (E) Series A
Preferred Stock issued in the Series A Offering); plus (3) to the
extent that any Restricted Investment that was made after the First
Issue Date is sold for cash or otherwise liquidated or repaid for
cash, the lesser of (A) the cash return of capital with respect to
such Restricted Investment (less the cost of disposition, if any) and
(B) the initial amount of such Restricted Investment; plus (4) to the
extent that any Unrestricted Subsidiary is designated by the Company
as a Restricted Subsidiary, an amount equal to
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the lesser of (A) the Fair Market Value of such Restricted Investment
and (B) the Company's Investment in such Unrestricted Subsidiary at
the time of such designation.
(b) Notwithstanding the foregoing, the provisions set
forth in paragraph (a) above shall not prohibit:
(i) the payment of any dividend within 60 days
after the date of declaration thereof, if at said date of declaration such
payment would have complied with the provisions of this Indenture;
(ii) so long as no Default has occurred and is
continuing or will arise therefrom, the redemption, repurchase, retirement or
other acquisition of any Equity Interests of the Company in exchange for, or
out of the proceeds of, the substantially concurrent sale (other than to a
Subsidiary of the Company) of other Equity Interests of the Company (other than
any Disqualified Stock); provided that the amount of any such net cash proceeds
that are utilized for any such redemption, repurchase, retirement or other
acquisition shall be excluded from clause (2) of paragraph (z) above;
(iii) so long as no Default has occurred and is
continuing or will arise therefrom, the repayment, defeasance, redemption or
repurchase of Intercompany Indebtedness or Indebtedness with the net cash
proceeds from an incurrence of Permitted Refinancing Indebtedness or the
substantially concurrent sale (other than to a Subsidiary of the Company) of
Equity Interests of the Company (other than Disqualified Stock); provided that
the amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement or other acquisition shall be excluded from
clause (2) of paragraph (z) above;
(iv) the issuance of shares of Series A Preferred
Stock as paid-in-kind dividends in accordance with the terms of the Series A
Preferred Stock as in effect on the First Issue Date;
(v) the purchase, redemption or retirement by the
Company of shares of its Common Stock held by an employee or former employee of
the Company or its Subsidiaries issued under the Stock Option Plan; provided
that the amount of any such payments in any fiscal year does not exceed
$1,000,000; and provided, further, that the limitation set forth in the
foregoing proviso does not apply to the purchase, redemption or retirement of
shares of common stock with funds or other property or amounts paid by the
Company for which the Company receives concurrent reimbursement from any other
Person (other than the Company's Subsidiaries); and
(vi) payments made in respect of (x) the
cancellation of fractional shares of Common Stock in connection with the
conversion of the Series A Preferred Stock and the exercise of the warrants in
the Units Offering and (y) the repurchase or redemption of any shares of Series
A Preferred Stock in an aggregate amount in the case of (x) and (y) not to
exceed $500,000.
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In determining the amount of Restricted Payments permissible under
clause (z) of Section 4.10(a) above, amounts expended pursuant to clauses (i),
(v) and (vi) of this Section 4.10(b) shall be included as Restricted Payments.
Notwithstanding the foregoing, payments made by the Company to Orbital pursuant
to the Orbital Agreements shall not be deemed Restricted Payments.
The Company may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if such designation would not cause a Default and, at
the time of and after giving effect to such designation, the Company could
incur $1.00 of additional Indebtedness under the applicable provisions of the
first paragraph under Section 4.12(a); provided, however, that in no event
shall all or any portion of the material assets or properties (other than cash)
owned by the Company on the First Issue Date be transferred to or held by an
Unrestricted Subsidiary of the Company and provided, further, that such ability
to incur $1.00 of additional Indebtedness shall not be required in the case of
any newly created Unrestricted Subsidiary funded solely with an Investment
described in clause (vi) of the definition of "Permitted Investment." For
purposes of making such determination, all Investments by the Company and its
Restricted Subsidiaries outstanding on the First Issue Date (except to the
extent repaid in cash and except for Investments described in clause (vi) of
the definition of "Permitted Investment") in the Subsidiary so designated will
be deemed to be Restricted Payments at the time of such designation and will
reduce the amount available for Restricted Payments under Section 4.10. All
such outstanding Investments will be deemed to constitute Investments in an
amount equal to the greatest of: (1) the net book value of such Investments at
the time of such designation; (2) the Fair Market Value of such Investments at
the time of such designation; and (3) the original Fair Market Value of such
Investments at the time they were made. Such designation will only be
permitted if such Restricted Payment would be permitted at such time and if
such Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
The amount of all Restricted Payments, if not made in cash, shall be
the Fair Market Value on the date of the Restricted Payment of the asset(s)
proposed to be transferred by the Company or such Restricted Subsidiary, as the
case may be, pursuant to the Restricted Payment. Not later than the date of
making any Restricted Payment, the Company shall deliver to the Trustee an
Officers' Certificate stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required by this covenant
were computed, which calculations may be based upon the latest available
financial statements of the Company.
SECTION 4.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(a) The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, sell, lease transfer or otherwise dispose of
any of its properties or assets to, or purchase any property or assets from, or
enter into or make any contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate (each of the foregoing, an
"Affiliate Transaction"), unless:
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(i) such Affiliate Transaction is on terms that
are no less favorable to the Company or such Restricted Subsidiary than those
that would have been obtained in a comparable transaction by the Company or
such Restricted Subsidiary with an unrelated Person;
(ii) the Company delivers to the Trustee: (a) with
respect to any Affiliate Transaction involving aggregate consideration in
excess of $2.5 million, (x) a determination by the disinterested members of the
Board of Directors of the Company made in good faith (evidenced by a resolution
approved by at least a majority of the disinterested members of the Board of
Directors of the Company and set forth in an Officers' Certificate delivered to
the Trustee) or (y) an opinion as to the fairness of such Affiliate Transaction
to the Company or Restricted Subsidiary of the Company involved in such
Affiliate Transaction from a financial point of view issued by an Independent
Financial Advisor or, with respect to development, launch and operations of
satellites and remote imaging-related matters, a nationally recognized expert
in the respective applicable industry; and (b) with respect to any Affiliate
Transaction involving aggregate consideration in excess of $10 million, an
opinion as to the fairness of such Affiliate Transaction to the Company or
Restricted Subsidiary of the Company involved in such Affiliate Transaction
from a financial point of view issued by an Independent Financial Advisor or,
with respect to development, launch and operations of satellites and remote
imaging-related matters, a nationally recognized expert in the respective
applicable industry.
(b) The following shall not be deemed Affiliate
Transactions:
(i) any employment agreement, stock option or
stock purchase agreement entered into by the Company or any of its Restricted
Subsidiaries with any of their respective employees in the ordinary course of
business;
(ii) transactions between or among the Company and/or its Wholly Owned
Restricted Subsidiaries;
(iii) Restricted Payments permitted by clauses (i),
(ii), (iv), (v) and (vi) of the Section 4.10(b) and Permitted Investments of a
type referred to in clauses (i), (iii) and (vi) of the definition of Permitted
Investments;
(iv) the sale of common Equity Interests (other
than Disqualified Stock, except as contemplated by the Stock Purchase
Agreement) of the Company for cash to an Affiliate of the Company;
(v) transactions pursuant to agreements entered
into with resellers of the Company's products and services on terms
substantially the same as the Company's standard agreements entered into with
such parties in the ordinary course of business;
(vi) transactions pursuant to the Orbital
Agreements, including transactions pursuant to any amendments to the
Procurement Agreement with respect to the
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selection of the launch vehicle for the satellite designated on the First Issue
Date as the OrbView-4 satellite;
(vii) amendments, supplements or other
modifications to the Orbital Agreements that do not involve the payment of cash
by the Company or any of its Restricted Subsidiaries;
(viii) payment of reasonable directors fees to
Persons who are not otherwise Affiliates of the Company; and
(ix) the sale of securities (other than common
Equity Interests) of the Company for cash to an Affiliate of the Company;
provided that: (A) an amount of such securities at least equal to the amount
sold to such Affiliate have been or are being sold substantially simultaneously
to Persons that are not Affiliates of the Company; (B) the price per security
paid by such Affiliate is no less than the price paid by such non-Affiliates;
and (C) the Company shall not have entered into any other arrangement with such
non-Affiliates to induce such non-Affiliates to purchase such securities.
SECTION 4.12. LIMITATION ON INCURRENCE OF INDEBTEDNESS
OR ISSUANCE OF DISQUALIFIED STOCK.
(a) The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guaranty or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness (including Acquired Debt) or any Disqualified Stock; provided,
however, that the Company may incur Indebtedness (including Acquired Debt) or
issue shares of Disqualified Stock and the Restricted Subsidiaries may incur
Indebtedness if, after giving pro forma effect to the incurrence of such
Indebtedness or the issuance of such Disqualified Stock and the use of proceeds
thereof, the aggregate Indebtedness to Cash Flow Ratio of the Company does not
exceed 4.0 to 1. Notwithstanding the foregoing, prior to June 30, 2001, the
Company or any Restricted Subsidiary of the Company may incur Indebtedness if
immediately after giving pro forma effect to the incurrence of such
Indebtedness and the receipt and application of the proceeds thereof, the
Indebtedness to Capital Ratio would be less than or equal to 65.0%.
(b) The provisions set forth in clause (a) above shall
not apply to:
(i) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness under Credit Facilities; provided that
the aggregate principal amount of all Indebtedness (with letters of credit
being deemed to have a principal amount equal to the maximum potential
liability of the Company and its Subsidiaries thereunder) outstanding under all
Credit Facilities after giving effect to such incurrence does not exceed an
amount equal to the greater of (A) $25 million and (B) 85% of Eligible
Receivables;
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(ii) the incurrence by the Company of Indebtedness
represented by the Notes and this Indenture or the issuance of shares of Series
A Preferred Stock as paid-in-kind dividends;
(iii) Existing Indebtedness or Indebtedness
incurred after the First Issue Date and before the Issue Date pursuant to
Section 4.12(b) of the 1998 Indenture;
(iv) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness under (A) Hedging Obligations, provided
that (1) the notional principal amount of any interest rate protection
agreement does not significantly exceed the principal amount of the
Indebtedness to which such interest rate protection agreement relates and (2)
any agreements related to fluctuations in currency rates do not increase the
outstanding Indebtedness other than as a result of fluctuations in foreign
currency exchange rates, and (B) performance, surety and workers' compensation
bonds or other obligations of a like nature incurred in the ordinary course of
business;
(v) the incurrence by any Unrestricted
Subsidiary of the Company of Non-Recourse Debt; provided that if any such
Indebtedness ceases to be Non-Recourse Debt of an Unrestricted Subsidiary such
event shall be deemed to constitute an incurrence of Indebtedness by a
Restricted Subsidiary;
(vi) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness owed to and held by the Company or any
of its Wholly Owned Restricted Subsidiaries (the Indebtedness incurred pursuant
to this clause (vi) being hereafter referred to as "Intercompany
Indebtedness"); provided that an incurrence of Indebtedness shall be deemed to
have occurred upon (x) any sale or other disposition of Intercompany
Indebtedness to a Person other than the Company or any of its Restricted
Subsidiaries, (y) any sale or other disposition of Equity Interests of the
Company's Restricted Subsidiaries which holds Intercompany Indebtedness such
that such Restricted Subsidiary ceases to be a Restricted Subsidiary after such
sale or other disposition or (z) designation of a Restricted Subsidiary as an
Unrestricted Subsidiary;
(vii) the incurrence by the Company or any of its
Restricted Subsidiaries of Non-Recourse Debt to finance purchase money
obligations;
(viii) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness ("Permitted Refinancing Indebtedness")
incurred to refinance, replace or refund Indebtedness ("Refinanced
Indebtedness") incurred pursuant to paragraph (a) of this Section 4.12 or
pursuant to clause (i) or (iii) of this paragraph (b); provided that: (x) the
aggregate principal amount of such Permitted Refinancing Indebtedness does not
exceed the aggregate principal amount of the Refinanced Indebtedness (including
accrued and unpaid interest thereon); (y) such Permitted Refinancing
Indebtedness shall have a final maturity equal to or later than, and a Weighted
Average Life to Maturity equal to or greater than, the final maturity and
Weighted Average Life to Maturity of the Refinanced Indebtedness, respectively;
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and (z) such Permitted Refinancing Indebtedness shall rank no higher relative
to the Notes than the Refinanced Indebtedness and in no event may any
Indebtedness of the Company, or any of its Restricted Subsidiaries be
refinanced with Indebtedness of any Restricted Subsidiary under this clause
(viii);
(ix) the incurrence by the Company or any of its
Restricted Subsidiaries of Capital Lease Obligations in an aggregate amount for
all such Persons not to exceed $15 million at any one time outstanding;
(x) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness not to exceed $15 million outstanding
at any time pursuant to a Fixed Asset Financing; and
(xi) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness in addition to that described in
clauses (i) through (x) of this Section 4.12(b), so long as the aggregate
principal amount of all such Indebtedness, including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any Indebtedness incurred
pursuant to this clause (xi), together with any Indebtedness incurred pursuant
to Section 4.12(b)(xi) of the 1998 Indenture prior to the Issue Date, shall not
exceed $10 million outstanding at any one time in the aggregate.
SECTION 4.13. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES.
(a) The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective any encumbrance or restriction on
the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions
to the Company or any of its Restricted Subsidiaries on its Capital Stock or
with respect to any other interest or participation in, or measured by, its
profits;
(ii) pay any Indebtedness owed to the Company or
any of its Restricted Subsidiaries;
(iii) make loans or advances to the Company or any
of its Restricted Subsidiaries; or
(iv) transfer any of its properties or assets to
the Company or any of its Restricted Subsidiaries.
(b) The restrictions set forth in clause (a) above shall
not apply to encumbrances or restrictions existing under or by reason of:
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(i) this Indenture, the 1998 Indenture, the
Pledge Agreement, the Notes or the 1998 Notes;
(ii) Existing Indebtedness;
(iii) applicable law;
(iv) any instrument governing Indebtedness or
Capital Stock of a Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to the extent
such Indebtedness was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired;
(v) customary non-assignment provisions in leases
or other agreements entered into in the ordinary course of business;
(vi) purchase money obligations for property
acquired in the ordinary course of business that impose restrictions of the
nature described in clause (iv) above on the property so acquired;
(vii) Permitted Refinancing Indebtedness; provided
that the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive than those contained in the
agreements governing the Refinanced Indebtedness;
(viii) restrictions on cash or other deposits or net
worth imposed by customers under contracts entered into in the ordinary course
of business;
(ix) secured Indebtedness otherwise permitted to
be incurred pursuant to Section 4.16 hereof that limits the right of the debtor
to dispose of the assets securing such Indebtedness; or
(x) in the case of clauses (i), (ii), (iv), (v),
(vi), (vii), (viii) and (ix) above, any amendments, modifications,
restatements, renewals, increases, supplements, modifications, restatements or
refinancings thereof, provided that such amendments, modifications,
restatements or refinancings are not materially more restrictive with respect
to such dividend and other payment restrictions than those contained in such
instruments as in effect on the date of their incurrence.
SECTION 4.14. LIMITATION ON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each
Holder shall have the right to require the Company to repurchase all or any
part (equal to $1,000 or an integral multiple thereof) of such Holder's Notes
pursuant to the offer described below (the "Change of Control
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Offer") at an offer price in cash equal to 101% of the aggregate principal
amount thereof, plus accrued and unpaid interest and Liquidated Damages (if
any) thereon to the date of purchase (the "Change of Control Payment").
(b) Within ten days following the date on which any
Change of Control occurs (the "Change of Control Date"), the Company shall
send, by first class mail, a notice to each Holder, with a copy to the Trustee,
which notice shall govern the terms of the Change of Control Offer. The notice
to the Holders shall contain all instructions and materials necessary to enable
such Holders to tender Notes pursuant to the Change of Control Offer. The
notice shall state:
(i) that the Change of Control Offer is being
made pursuant to this Section 4.14 and that all Notes tendered and not
withdrawn shall be accepted for payment;
(ii) the purchase price (including the amount of
accrued interest and Liquidated Damages, if any) and the purchase date (which
shall be no earlier than 30 days nor later than 40 days from the date such
notice is mailed, other than as may be required by law) (the "Change of Control
Payment Date");
(iii) that any Note not tendered will continue to
accrue interest;
(iv) that, unless the Company defaults in making
payment therefor, any Note accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control
Payment Date;
(v) that Holders electing to have a Note
purchased pursuant to a Change of Control Offer will be required to surrender
the Note, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the third Business Day prior to
the Change of Control Payment Date;
(vi) that Holders will be entitled to withdraw
their election if the Paying Agent receives, not later than five Business Days
prior to the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Notes the Holder delivered for purchase and a statement that such
Holder is withdrawing such Holder's election to have such Notes purchased;
(vii) that Holders whose Notes are purchased only
in part will be issued new Notes in a principal amount equal to the unpurchased
portion of the Notes surrendered; provided that each Note purchased and each
new Note issued shall be in an original principal amount of $1,000 or integral
multiples thereof; and
(viii) the circumstances and relevant facts
regarding such Change of Control.
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(c) On or before the Change of Control Payment Date, the
Company shall, to the extent lawful: (i) accept for payment all Notes or
portions thereof tendered pursuant to the Change of Control Offer; (ii) deposit
with the Paying Agent in U.S. dollars, an amount equal to the Change of
Control Payment in respect of all Notes or portions thereof so tendered; and
(iii) deliver or cause to be delivered to the Trustee, Notes so accepted
together with an Officers' Certificate stating the aggregate principal amount
of Notes or portions thereof being purchased by the Company. The Paying Agent
shall promptly mail to the Holders of Notes so accepted the Change of Control
Payment for such Notes, and the Trustee shall promptly authenticate and mail
(or cause to be transferred by book entry) to each Holder a new Note equal in
principal amount to any unpurchased portion of the Note surrendered; provided
that each such new Note will be in a principal amount of $1,000 or an integral
multiple thereof. Any Notes not so accepted shall be promptly mailed by the
Company to the Holder thereof. Any amounts remaining after the purchase of
Notes pursuant to a Change of Control Offer shall be returned by the Trustee to
the Company.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent the
provisions of any securities laws or regulations conflict with the provisions
under this Section 4.14, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.14 by virtue thereof. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date. Any amounts remaining
after the purchase of Notes pursuant to a Change of Control Offer shall be
returned by the Trustee to the Company.
(d) The Company will not be required to make a Change of
Control Offer upon a Change of Control if a third party makes the Change of
Control Offer in the manner, at the time and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control
Offer made by the Company and purchases all Notes validly tendered and not
withdrawn under such Change of Control Offer.
SECTION 4.15. LIMITATION ON SALES OF ASSETS AND SUBSIDIARY INTERESTS.
(a) The Company shall not, and shall not permit any of
its Restricted Subsidiaries to consummate an Asset Sale unless:
(i) the Company or such Restricted Subsidiary, as
the case may be, receives consideration at the time of such Asset Sale at least
equal to the Fair Market Value of the assets sold or otherwise disposed of;
(ii) at least 75% of the consideration received in
the Asset Sale by the Company or such Restricted Subsidiary, as the case may
be, consists of (a) cash or Cash
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Equivalents or (b) the assumption of Indebtedness (other than Indebtedness that
is subordinated) of the Company or such Restricted Subsidiary and the release
of the Company and the Restricted Subsidiaries, as applicable, from all
liability on the Indebtedness assumed; and
(iii) the aggregate Fair Market Value of all
non-Cash Consideration received therefor by the Company or such Restricted
Subsidiary, as the case may be, when aggregated with the Fair Market Value of
all other non-Cash Consideration received by the Company and its Restricted
Subsidiaries from all other Asset Sales since the First Issue Date that has not
yet been converted into cash or Cash Equivalents (in either case, in U.S.
dollars or freely convertible into U.S. dollars), does not exceed (without
duplication) 5% of the aggregate Consolidated Tangible Net Assets of the
Company at the time of such Asset Sale; provided, however, that any securities,
notes or similar obligations received by any of the Company or such Restricted
Subsidiaries from such transferees that are contemporaneously (subject to
ordinary settlement periods) converted by the Company or such Restricted
Subsidiaries into cash, shall be deemed to be cash (to the extent of the net
cash received) for purposes of clauses (ii) and (iii).
Within 270 days after the receipt of any Net Proceeds from an Asset
Sale, the Company may apply such Net Proceeds to: (i) make capital expenditures
or acquire Business Assets, (ii) acquire 100% of the Equity Interests of a
Related Satellite Business, (iii) market imagery products and services, (iv)
repay Indebtedness under a Credit Facility, and (v) provide working capital.
Pending the final application of any such Net Proceeds, the Company may
temporarily invest such Net Proceeds in any manner that is not prohibited by
this Indenture. Any Net Proceeds from an Asset Sale that are not applied or
invested as provided in the first sentence of this paragraph will be deemed to
constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds
exceeds $7.5 million (the "Asset Sale Offer Trigger Date"), the Company will be
required to make an offer to all Holders of Notes (an "Asset Sale Offer") to
purchase on a date not less than 30 nor more than 45 days following the Asset
Sale Offer Trigger Date the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds (and not solely the amount in excess of
$7.5 million), at an offer price in cash in an amount equal to 100% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages (if any) thereon to the date of purchase, in accordance with the
procedures set forth in clause (b) below. To the extent that the aggregate
amount of Notes tendered pursuant to an Asset Sale Offer is less than the
Excess Proceeds, the Company may use any remaining Excess Proceeds for general
business purposes. If the aggregate amount of Notes surrendered by Holders
thereof exceeds the amount of Excess Proceeds, the Trustee will select the
Notes to be purchased on a pro rata basis in accordance with the procedures set
forth in Section 3.4.
Upon completion of such offer to purchase, the amount of Excess
Proceeds will be reset at zero. The Asset Sale Offer shall remain open for a
period of 20 Business Days or such longer period as may be required by law.
If the Purchase Date is on or after a Record Date and on or before the
related Interest Payment Date, any accrued and unpaid interest shall be paid to
the Person in whose name a Note
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is registered at the close of business on such Record Date, and no additional
interest shall be payable to Holders who tender Notes pursuant to the Asset
Sale Offer.
(b) Each notice of an Asset Sale Offer pursuant to this
Section 4.15 shall be mailed or caused to be mailed, by first class mail, by
the Company not more than 25 days after the Asset Sale Offer Trigger Date to
all Holders at their last registered addresses determined as of a date within
15 days of the mailing of such notice, with a copy to the Trustee. The notice
shall contain all instructions and materials necessary to enable such Holders
to tender Notes pursuant to the Asset Sale Offer and shall state the following
terms:
(i) that the Asset Sale Offer is being made
pursuant to Section 4.15 and that all Notes tendered will be accepted for
payment; provided, however, that if the aggregate principal amount of Notes
tendered in an Asset Sale Offer plus accrued interest and Liquidated Damages
(if any) at the expiration of such offer exceeds the aggregate amount of the
Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro
rata basis (with such adjustments as may be deemed appropriate by the Trustee
so that only Notes in denominations of $1,000 or multiples thereof shall be
purchased);
(ii) the purchase price (including the amount of
accrued interest and Liquidated Damages, if any) and the purchase date (which
shall be 20 Business Days from the date of mailing of notice of such Asset Sale
Offer, or such longer period as required by law) (the "Proceeds Purchase
Date");
(iii) that any Note not tendered will continue to
accrue interest;
(iv) that, unless the Company defaults in making
payment therefor, any Note accepted for payment pursuant to the Asset Sale
Offer shall cease to accrue interest after the Proceeds Purchase Date;
(v) that Holders electing to have a Note
purchased pursuant to an Asset Sale Offer will be required to surrender the
Note, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the third Business Day prior to
the Proceeds Purchase Date;
(vi) that Holders will be entitled to withdraw
their election if the Paying Agent receives, not later than five Business Days
prior to the Proceeds Purchase Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the
Notes the Holder delivered for purchase and a statement that such Holder is
withdrawing such Holder's election to have such Note purchased; and
(vii) that Holders whose Notes are purchased only
in part will be issued new Notes in a principal amount equal to the unpurchased
portion of the Notes surrendered;
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provided that each Note purchased and each new Note issued shall be in an
original principal amount of $1,000 or integral multiples thereof.
On or before the Proceeds Purchase Date, the Company shall, to the
extent lawful, (i) accept for payment Notes or portions thereof tendered
pursuant to the Asset Sale Offer which are to be purchased in accordance with
this Section 4.15, (ii) deposit with the Paying Agent in U.S. dollars, an
amount sufficient to pay the purchase price plus accrued interest and
Liquidated Damages (if any) of all Notes to be purchased and (iii) deliver to
the Trustee Notes so accepted together with an Officers' Certificate stating
the Notes or portions thereof being purchased by the Company. The Paying Agent
shall promptly mail to the Holders of Notes so accepted payment in an amount
equal to the purchase price plus accrued interest and Liquidated Damages, if
any.
Any amounts remaining after the purchase of Notes pursuant to an Asset
Sale Offer shall be returned by the Trustee to the Company.
The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.15, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under
Section 4.15 by virtue thereof.
(c) The foregoing provisions shall not apply to the sale,
lease, conveyance or other disposition of all or substantially all of the
assets of the Company, which shall be governed by the provisions of Article V.
SECTION 4.16. LIMITATION ON LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien on any asset or property now owned or hereafter acquired, or any
income or profits therefrom, or assign or convey any right to receive income
therefrom, unless (i) in the case of Liens securing obligations subordinate to
the Notes, the Notes are secured by a valid, perfected Lien on such asset or
property that is senior in priority to such Liens, (ii) in the case of Liens
securing obligations subordinate to a Subsidiary Guarantee, such Subsidiary
Guarantee is secured by a valid, perfected Lien on such asset or property that
is senior in priority to such Liens, and (iii) in all other cases, the Notes
(and, if such Lien secures obligations of a Restricted Subsidiary, a Subsidiary
Guarantee of such Restricted Subsidiary) are equally and ratably secured;
provided, however, that the foregoing shall not prohibit or restrict Permitted
Liens.
SECTION 4.17. BUSINESS ACTIVITIES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in any business other than that which is related to the
design, development and operation of
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remote imaging satellites and the worldwide marketing and sales of remote
imagery-based products and services.
SECTION 4.18. LIMITATIONS ON SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any Restricted Subsidiary
of the Company to, directly or indirectly, enter into any Sale and Leaseback
Transaction with respect to any property or assets (whether now owned or
hereafter acquired), except for a Sale and Leaseback Transaction not exceeding
365 days, unless (i) the sale or transfer of such property or assets to be
leased is treated as an Asset Sale and complies with the covenants contained in
Section 4.15 hereof and (ii) the Company or such Restricted Subsidiary would be
entitled under Section 4.12 hereof to incur Indebtedness (with the lease
obligations being treated as Indebtedness for purposes of ascertaining
compliance with this covenant) in respect of such Sale and Leaseback
Transaction.
SECTION 4.19. LIMITATION ON SALE OF CAPITAL STOCK OF SUBSIDIARIES.
The Company shall not, and shall not permit any Restricted Subsidiary
of the Company to, issue, transfer, convey, lease or otherwise dispose of any
shares of Capital Stock or other ownership interests in a Restricted Subsidiary
of the Company or securities convertible or exchangeable into, or options,
warrants, rights or other interest with respect to, Capital Stock of or other
ownership interests in a Restricted Subsidiary of the Company to any Person
(other than to the Company or a Wholly Owned Restricted Subsidiary of the
Company) except in a transaction that consists of a sale of all of the Capital
Stock of or other ownership interests in such Subsidiary owned by the Company
and any Subsidiary of the Company that complies with the provisions contained
in Section 4.15 hereof to the extent such provisions apply.
ARTICLE V
MERGER, CONSOLIDATION OR SALE OF ASSETS
SECTION 5.1. MERGERS, CONSOLIDATIONS AND SALES OF ASSETS.
(a) The Company may not consolidate or merge with or into
(whether or not the Company is the surviving Person), or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to, another Person
unless:
(i) the Company is the surviving Person or the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized and existing
under the laws of the United States, any state thereof or the District of
Columbia;
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(ii) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or Person to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes all the obligations of the Company under the
Notes, this Indenture and the Pledge Agreement pursuant to a supplemental
indenture in form reasonably satisfactory to the Trustee;
(iii) immediately after such transaction, no
Default or Event of Default exists;
(iv) the Company, or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made will have Consolidated Net Worth immediately after the
transaction equal to or greater than the Consolidated Net Worth of the Company
immediately preceding the transaction;
(v) the Company, or the Person formed by or
surviving any such consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made, at the time of such transaction and after giving pro
forma effect thereto as if such transaction had occurred at the beginning of
the immediately preceding fiscal quarter, will be permitted to incur at least
$1.00 of additional Indebtedness pursuant to Section 4.12(a) hereof; and
(vi) the Company and the surviving entity shall
have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale, assignment,
transfer, lease, conveyance or other disposition and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture, comply with all applicable provisions of this Indenture and that all
conditions precedent in this Indenture relating to such transaction have been
satisfied.
(b) For purposes of the foregoing, the transfer (by
lease, assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
SECTION 5.2. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of either of the
Company with or into, any other Person or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entity in
accordance with Section 5.1, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein.
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ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) default for 30 days in the payment when due
of interest on, or Liquidated Damages (if any) with respect to, the Notes;
(ii) default in payment when due (whether at
maturity, upon redemption or repurchase, or otherwise) of the principal of or
premium (if any) on the Notes;
(iii) default in the payment of principal, interest
or Liquidated Damages (if any) on the Notes required to be purchased pursuant
to Section 4.14 or Section 4.15 or failure by the Company to comply with the
provisions of Article V;
(iv) failure by the Company or any of its
Restricted Subsidiaries for 30 days after notice to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% of the
outstanding principal amount of the Notes, to comply with any of their other
covenants in this Indenture, the Notes, the 1998 Indenture or the 1998 Notes;
(v) default under the 1998 Indenture or any other
indenture, mortgage or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by any the Company or any of its Restricted Subsidiaries), whether
such Indebtedness or guarantee now exists, or is created after the date of this
Indenture, which default:
(A) is caused by a failure to pay
principal of, or premium, if any, or interest on, such Indebtedness prior to
the expiration of the grace period provided in such Indebtedness on the date of
such default (a "Payment Default"); or
(B) results in the acceleration (which
acceleration has not been rescinded) of such Indebtedness prior to its express
maturity, and, in each case described in clause (a) and (b) of this paragraph,
the principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $5 million
or more;
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(vi) failure by the Company or any of its
Restricted Subsidiaries to pay final judgments (other than any judgments as to
which a reputable insurance company has accepted full liability and whose bond,
premium or similar charge therefor is not in excess of $5 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 Company of any representation
or warranty set forth in the Pledge Agreement, or default by the Company in the
performance of any covenant set forth in the Pledge Agreement, or repudiation
by the Company of any of its obligations under the Pledge Agreement or the
unenforceability of the Pledge Agreement against the Company for any reason
which in any one case or in the aggregate results in an impairment of the
rights intended to be afforded thereby;
(viii) the entry by a court having jurisdiction in
the premises of (A) a decree or order for relief in respect of the Company or
any Restricted Subsidiary of the Company in an involuntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company or any
Restricted Subsidiary of the Company bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Restricted Subsidiary of the
Company under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of either of the Company or any Restricted Subsidiary of the Company or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 30
consecutive days; or
(ix) the commencement by the Company or any
Restricted Subsidiary of the Company of a voluntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company or any Restricted Subsidiary of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the either of Company or any Restricted Subsidiary of the
Company, or of any substantial part of its property, or the making by it of an
assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due, or the taking of
corporate action by the Company or any Restricted Subsidiary of the Company in
furtherance of any such action.
SECTION 6.2. ACCELERATION.
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(a) If an Event of Default, other than an Event of
Default specified in Section 6.1(viii) or (ix) with respect to the Company, any
Significant Subsidiary of the Company or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Significant Subsidiary,
occurs and is continuing and has not been waived pursuant to Section 6.4, then
the Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare the principal of and accrued interest and
Liquidated Damages (if any) on all the outstanding Notes to be due and payable
by notice in writing to the Company and the Trustee specifying the respective
Event of Default, such notice to be deemed a "notice of acceleration" (an
"Acceleration Notice"), and the same shall become immediately due and payable.
(b) If an Event of Default specified in Section 6.1(viii)
or (ix) with respect to the Company, any Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary occurs and is continuing, then all unpaid principal of, and premium
(if any) and accrued and unpaid interest and Liquidated Damages (if any) on
all of the outstanding Notes shall become due and payable without further
action or notice on the part of the Trustee or any Holder.
(c) At any time after a declaration of acceleration with
respect to the Notes in accordance with Section 6.2(a), the Holders of a
majority in principal amount of the Notes may rescind and cancel such
declaration and its consequences, but only: (i) if the rescission would not
conflict with any judgment or decree, (ii) if all existing Events of Default
have been cured or waived except nonpayment of principal or interest or
Liquidated Damages (if any) that has become due solely because of the
acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iv) if the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances and all
other amounts due the Trustee pursuant to Section 7.7, and (v) if the Trustee
shall have received an Officers' Certificate that such Event of Default has
been cured or waived. No such rescission shall affect any subsequent Default
or impair any right consequent thereto.
(d) In the case of any Event of Default occurring by
reason of any willful action (or inaction) taken (or not taken) by or on behalf
of the Company with the intention of avoiding payment of the premium that the
Company would have had to pay if the Company then had elected to redeem the
Notes pursuant to the optional redemption provisions of this Indenture, an
equivalent premium shall also become and be immediately due and payable upon
the acceleration of the Notes pursuant to Section 6.2(a) or (b). If an Event
of Default occurs prior to March 1, 2002 by reason of any such willful action
(or inaction) by or on behalf of the Company with the intention of avoiding the
prohibition on redemption of the Notes prior to March 1, 2002, then the premium
specified herein shall also become immediately due and payable to the extent
permitted by law upon the acceleration of the Notes pursuant to Section 6.2(a)
or (b).
SECTION 6.3. OTHER REMEDIES.
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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 or Liquidated Damages
(if any) on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.4. WAIVER OF PAST DEFAULTS.
Subject to Sections 2.9, 6.7 and 9.2, at any time prior to a
declaration of acceleration with respect to the Notes in accordance with
Section 6.2(a), the Holders of a majority in aggregate principal amount of the
Notes then outstanding, by notice to the Trustee may, on behalf of the Holders
of all the Notes, waive an existing Default or Event of Default and its
consequences, except a continuing Default or Event of Default in the payment of
principal or premium (if any) of or interest or Liquidated Damages (if any) on
any Note as specified in clauses (i) and (ii) of Section 6.1.
SECTION 6.5. CONTROL BY MAJORITY.
Subject to Section 2.9, the Holders of a majority in principal amount
of the outstanding Notes may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on it, including, without limitation, any remedies provided
for in Section 6.3. Subject to Section 7.1, however, the Trustee may refuse to
follow any direction that the Trustee reasonably believes conflicts with any
law or this Indenture or that the Trustee determines may be unduly prejudicial
to the rights of another Holder. Notwithstanding any provision to the contrary
herein, the Trustee shall not be obligated to take any action with respect to
the provisions of Section 6.2(d) unless directed to do so pursuant to this
Section 6.5.
SECTION 6.6. LIMITATION ON SUITS.
A Holder may not pursue any remedy with respect to this Indenture or
the Notes unless:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) Holders of at least 25% in principal amount of the
outstanding Notes make a written request to the Trustee to pursue the remedy;
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(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
30 days after receipt of the request and the offer of satisfactory indemnity;
and
(e) during such 30-day period the Holders of a majority
in principal amount of the outstanding Notes do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
The foregoing limitations shall not apply to a suit instituted by a
Holder for the enforcement of the payment of principal and premium (if any) or
interest and Liquidated Damages (if any) on such Note on or after the
respective due dates set forth in such Note (including upon acceleration
thereof) or the institution of any proceeding with respect to this Indenture or
any remedy hereunder, including, without limitation, acceleration, by the
Holders of a majority in principal amount of outstanding Notes, provided that
upon institution of any proceeding or exercise of any remedy, such Holders
provide the Trustee with prompt notice thereof.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder, it being
understood and intended that no one or more Holders shall have any right by
virtue of any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders, or to obtain or to seek to obtain priority or
preference over any other Holders, or to enforce any right under this Indenture
except in the manner herein provided and for the equal and ratable benefit of
all the Holders.
SECTION 6.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of, and interest and Liquidated
Damages (if any) on a Note, on or after the respective due dates expressed in
such Note, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
SECTION 6.8. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of principal or interest or
Liquidated Damages (if any) specified in clause (i) or (ii) of Section 6.1
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company or any other
obligor on the Notes for the whole amount of principal and accrued interest
remaining unpaid and Liquidated Damages, if any, together with interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, and such further amount as shall
be sufficient to cover the costs and expenses of collection, including
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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 Company or any other obligor upon the
Notes, any of their respective creditors or any of their respective property
and shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator or other similar
official in any such judicial proceedings is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses, taxes,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.7. The Company's payment obligations
to the Trustee under this Section 6.9 shall be secured in accordance with the
provisions of Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money or property pursuant to this Article
VI, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.7;
Second: if the Holders are forced to proceed against the
Company directly without the Trustee, to the Holders for their collection
costs;
Third: to Holders for amounts due and unpaid on the Notes for
principal and premium (if any) and interest and Liquidated Damages (if any),
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal and premium, and interest and
Liquidated Damages, respectively; and
Fourth: to the Company or any other obligor on the Notes, as
their interests may appear, or as a court of competent jurisdiction may direct.
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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 VII
TRUSTEE
SECTION 7.1. DUTIES OF TRUSTEE.
(a) The duties and responsibilities of the Trustee shall
be as provided by the TIA and this Indenture. No provision of this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(b) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
thereof as a prudent person would exercise or use under the circumstances in
the conduct of his own affairs.
(c) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties as
are required by the TIA or specifically set forth in this Indenture and no
other covenants or obligations shall be implied in this Indenture against the
Trustee.
(ii) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
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(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 Company, to examine the books, records, and premises of the Company,
personally or by agent or attorney and to consult with the officers and
representatives of the Company, including the Company's accountants and
attorneys.
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of this
Indenture, including, without limitation, the provisions of Section 6.5 hereof,
unless such Holders shall have offered to the Trustee security or indemnity
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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 Company or any Holder.
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE AND AGENTS.
Each of the Trustee, any Paying Agent and any Registrar, in its
individual or any other capacity, may become the owner or pledgee of Notes and
may otherwise deal with the Company or any of its Subsidiaries or Affiliates
with the same rights it would have if it were not Trustee or such agent.
SECTION 7.4. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of
this Indenture, the Pledge Agreement, the Pledged Securities or the Notes, and
it shall not be accountable for the Company's use of the proceeds from the
Notes, and it shall not be responsible for any statement of the Company in this
Indenture or the Notes, other than the Trustee's certificate of authentication.
SECTION 7.5. NOTICE OF DEFAULT.
If a Default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Holder notice of the
uncured Default or Event of Default within 30 days after such Default or Event
of Default becomes known to the Trustee. Except in the case of a Default or an
Event of Default in payment of principal of, premium, if any, interest or
Liquidated Damages (if any) on any Note, including an accelerated payment and
the failure to make payment on the Change of Control Payment Date pursuant to a
Change of Control Offer or on the Proceeds Purchase Date pursuant to an Asset
Sale Offer, and, except in the case of a failure to comply with Article V
hereof, the Trustee may withhold the notice if and so long as it in good faith
determines that withholding such notice is in the interest of the Holders.
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15, the Trustee shall, to the extent
that any of the events described in TIA Section 313(a) occurred within the
previous twelve months, but not otherwise, mail to each Holder a report dated
as of such date that complies with TIA Section 313(a). The Trustee also shall
comply with TIA Sections 313(b) and (c).
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A copy of each report at the time of its mailing to Holders shall be
mailed to the Company and filed with the Commission and each securities
exchange, if any, on which the Notes are listed.
The Company shall promptly notify the Trustee if the Notes become
listed on any securities exchange and the Trustee shall comply with TIA Section
313(d).
SECTION 7.7. COMPENSATION AND INDEMNITY.
(a) The Company agrees:
(i) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided
herein, to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(iii) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense (including the reasonable
compensation, expenses and disbursements of its agents, accountants, experts
and counsel) incurred without negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of this trust,
including the costs and expenses of enforcing this Indenture against the
Company (including, without limitation, this Section 7.7) and of defending
itself against any claim (whether asserted by any Holder or the Company) or
liability in connection with the exercise or performance of any of its powers
or duties hereunder.
(b) The Trustee shall notify the Company promptly of any
claim asserted against the Trustee for which it may seek indemnity. Failure by
the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder.
(c) The Company need not reimburse any expense or
indemnify the Trustee against any loss or liability to the extent incurred by
the Trustee through its negligence, bad faith or willful misconduct.
(d) To secure the Company's payment obligations in this
Section 7.7, the Trustee shall have a lien prior to the Notes on all assets or
money held or collected by the Trustee, in its capacity as Trustee, except
assets or money held in trust to pay principal of, or interest or Liquidated
Damages (if any) on, particular Notes. The Trustee's right to receive
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payment of any amounts due under this Section 7.7 shall not be subordinate to
any other liability or indebtedness of the Company.
(e) When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.1(viii) or (ix) occurs, such
expenses and the compensation for such services are intended to constitute
expenses of administration under Title 11, U.S. Code, or any similar federal or
state law.
(f) The provisions of this Section 7.7 shall survive the
resignation or removal of the Trustee and the satisfaction and discharge of
this Indenture.
(g) The Trustee shall comply with the provisions of TIA
Section 313(b)(2) to the extent possible.
SECTION 7.8. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article VII shall become
effective until the acceptance of appointment by the successor Trustee under
Section 7.9, at which time the retiring Trustee shall be fully discharged from
its obligations hereunder.
(b) The Trustee may resign at any time by giving at least
30 days' advance written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(c) The Trustee may be removed at any time by notice, in
writing, of the Holders of a majority in principal amount of the outstanding
Notes, delivered to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section
7.11 hereof; or
(ii) the Trustee shall cease to be eligible under
Section 7.11 and shall fail to resign after written request therefor by the
Company or by any such Holder; or
(iii) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case (1) the
Company by an appropriate board resolution evidenced by an Officers'
Certificate may remove the Trustee, or (2) subject to Section 6.11, any Holder
may, on behalf of himself and all others similarly
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situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by an appropriate board resolution evidenced by an
Officers' Certificate shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the outstanding Notes delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner herein provided, any Holder may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(f) If the Trustee, after written request by the Company
or by any Holder who has been a Holder for at least six months, fails to comply
with Section 7.11 hereof, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee or the appointment of a successor
Trustee.
(g) The Company shall give or cause to be given notice of
each resignation and each removal of the Trustee and each appointment of a
successor Trustee to all Holders in the manner provided herein. Each notice
shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 7.9. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee a written instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee. Upon request of the Company
or the successor Trustee, the retiring Trustee shall execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder, in each case subject to the lien of the retiring Trustee granted
pursuant hereto. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article VII.
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SECTION 7.10. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee, provided that such
corporation shall be otherwise qualified and eligible under this Article VII.
In case any Notes shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the Notes
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes.
SECTION 7.11. TRUSTEE REQUIRED; ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the TIA to act as such, and has a combined
capital and surplus of at least $50,000,000 and its Corporate Trust Office in
the Borough of Manhattan, The City of New York, New York. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of a federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect specified in this Article VII. If the Trustee has or shall
acquire a conflicting interest within the meaning of the TIA, the Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the TIA and this Indenture.
SECTION 7.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Notes), the Trustee shall be subject to the
provisions of the TIA regarding the collection of claims against the Company
(or any such other obligor).
ARTICLE VIII
DEFEASANCE AND SATISFACTION AND DISCHARGE
SECTION 8.1. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
(a) Company's Option to Effect Defeasance or Covenant
Defeasance. The Company may at its option, by an appropriate board resolution
evidenced by an Officers' Certificate, at any time (subject to 10-day prior
written notification to the Trustee), elect to have the provisions of either
Section 8.1(b) or (c) applied to the outstanding Notes upon compliance with the
conditions set forth below in this Article VIII.
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(b) Legal Defeasance and Discharge. Upon the Company's
exercise of the option provided in Section 8.1(a) applicable to this Section,
the Company shall be deemed to have been discharged from its obligations with
respect to the outstanding Notes on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the outstanding Notes and to have
satisfied all its other obligations under such Notes and this Indenture insofar
as such Notes are concerned (and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of outstanding Notes to receive, solely
from the trust fund described in Section 8.1(d) and as more fully set forth in
such Section, payments in respect of the principal and premium (if any) of and
interest and Liquidated Damages (if any) on such Notes when such payments are
due, (ii) the Company's obligations with respect to such Notes under Sections
2.4, 2.6, 2.7, 2.10 and 4.2, (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (iv) this Article VIII. Subject to
compliance with this Article VIII, the Company may exercise its option under
this Section 8.1(b) notwithstanding the prior exercise of its option under
Section 8.1(c).
(c) Covenant Defeasance. Upon the Company's exercise of
the option provided in Section 8.1(a) applicable to this Section, (i) the
Company shall be released from its obligations under Sections 4.5 through 4.19,
inclusive, and (ii) the occurrence of an event specified in Section 6.1(iv)
shall not be deemed to be an Event of Default, on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any
other document, but the remainder of this Indenture and such Notes shall be
unaffected thereby.
(d) Conditions to Legal Defeasance or Covenant
Defeasance. The following shall be the conditions to application of either
Section 8.1(b) or 8.1(c) to the outstanding Notes:
(i) The Company shall irrevocably have deposited
or caused to be deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Notes: (A) cash in
U.S. dollars, or (B) non-callable Government Securities which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee to pay
and discharge, the principal and premium (if any) of, and interest and
Liquidated Damages (if any) on the Notes at the Stated Maturity of such
principal or installment of interest on the day on
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which such payments are due and payable in accordance with the terms of this
Indenture and of such Notes;
(ii) No Default or Event of Default shall have
occurred and be continuing on the date of such deposit;
(iii) Such Legal Defeasance or Covenant Defeasance
shall not cause the Trustee to have a conflicting interest as described in
Section 7.11 and for purposes of the TIA with respect to any securities of the
Company;
(iv) Such Legal Defeasance or Covenant Defeasance
shall not result in a breach or violation of, or constitute a default under,
this Indenture or any other agreement or instrument to which any Issuer or
Guarantor is a party or by which it is bound;
(v) The Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that after the 91st day (or such
applicable date) following the deposit, the trust funds will not be subject to
the effect of any applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally;
(vi) The Company shall have delivered to the
Trustee an Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of Notes over the other
creditors of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others;
(vii) The Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for relating to either the Legal Defeasance
under Section 8.1(b) or the Covenant Defeasance under Section 8.1(c), as the
case may be, have been complied with;
(viii) In the case of an election under Section
8.1(b), the Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling, or (y) since the date of this Indenture
there has been a change in the applicable federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm that, the
Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred;
(ix) In the case of an election under Section
8.1(c), the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of the outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such
deposit and Covenant Defeasance and will be subject to federal income tax on
the
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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
(x) The Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that such deposit and Legal
Defeasance or Covenant Defeasance shall not result in the trust arising from
such deposit constituting an investment company as defined in the Investment
Company Act of 1940, as amended, or such trust shall be qualified under such
act or exempt from regulation thereunder.
SECTION 8.2. SATISFACTION AND DISCHARGE.
In addition to the Company's rights under Section 8.1, the Company may
terminate all of its obligations under this Indenture when:
(a) all Notes theretofore authenticated and delivered
(other than Notes which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.7 and Notes for whose payment money
has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust)
have been delivered to the Trustee for cancellation or all such Notes not
theretofore delivered to the Trustee for cancellation have become due and
payable and the Company has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust solely for that purpose an amount of
money sufficient to pay and discharge the entire principal and premium (if any)
of and interest and Liquidated Damages (if any) on the Notes not theretofore
delivered to the Trustee for cancellation;
(b) the Company has paid or caused to be paid all other
sums payable hereunder;
(c) the Company has delivered irrevocable instructions to
the Trustee to apply the deposited money toward the payment of the Notes at
maturity or redemption, as the case may be; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, stating that all conditions precedent
specified herein relating to the satisfaction and discharge of this Indenture
have been complied with.
SECTION 8.3. SURVIVAL OF CERTAIN OBLIGATIONS.
Notwithstanding the satisfaction and discharge of this Indenture and
of the Notes referred to in Section 8.1 or 8.2, the respective obligations of
the Company and the Trustee under Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.10,
2.12, 2.13, 4.1, 4.2, 6.7, Article VII, and Sections 8.5, 8.6 and 8.7 shall
survive until no Notes are outstanding, and thereafter the obligations of the
Company and the Trustee under Sections 7.7, 8.5, 8.6 and 8.7 shall survive.
Nothing contained
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in this Article VIII shall abrogate any of the obligations or duties of the
Trustee under this Indenture.
SECTION 8.4. ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE.
After (i) the conditions of Section 8.1 or 8.2 have been satisfied,
(ii) the Company has paid or caused to be paid all other sums payable hereunder
and (iii) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent referred to
in clause (i) above relating to the satisfaction and discharge of this
Indenture have been complied with, the Trustee, upon written request, shall
acknowledge in writing the discharge of the Company's obligations under this
Indenture, except for those surviving obligations specified in Section 8.3.
SECTION 8.5. APPLICATION OF TRUST MONEYS AND GOVERNMENT SECURITIES.
Subject to the provisions of Section 2.4, all money and Government
Securities (including the proceeds thereof) deposited with the Trustee pursuant
to Section 8.1(d)(i) in respect of the Notes shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent as the
Trustee may determine, to the Holders of such Notes, of all sums due and to
become due thereon in respect of principal and premium (if any) of and interest
and Liquidated Damages (if any) on the Notes, but such money and Government
Securities need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Securities
deposited pursuant to Section 8.1(d)(i) or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon request by
an Officers' Certificate any money or Government Securities held by it as
provided in Section 8.1(d)(i) which, in the opinion of a nationally recognized
firm of independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
defeasance or covenant defeasance.
SECTION 8.6. REPAYMENT TO THE COMPANY; UNCLAIMED MONEY.
Any money or Government Securities deposited with the Trustee or the
Paying Agent in trust for the payment of the principal and premium (if any) of
and interest and Liquidated Damages (if any) on the Notes and remaining
unclaimed for two years after it has become due and payable shall be paid to
the Company upon written request in the form of an Officers' Certificate, and
the Holder of such Notes shall thereafter, as a creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such
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trust money shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and
The Wall Street Journal (national edition), notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such notification or publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 8.7. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money or
Government Securities in accordance with Section 8.1(b) or 8.1(c) by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to this Article VIII until such time
as the Trustee or Paying Agent is permitted to apply all such money or
Government Securities in accordance with Section 8.1(b) or 8.1(c); provided,
however, that if the Company makes any payment of principal and premium (if
any) on any Note following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Notes to receive such
payment from the money held by the Trustee or the Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. WITHOUT CONSENT OF HOLDERS.
Notwithstanding Section 9.2 of this Indenture, without notice to or
the consent of any Holder, the Company, when authorized by an appropriate board
resolution evidenced by an Officers' Certificate, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, and may amend this Indenture, the Notes or the
Pledge Agreement, for any of the following purposes:
(a) to cure any ambiguity, defect or inconsistency;
provided that such amendment or supplement does not, as evidenced by an Opinion
of Counsel delivered to the Trustee, adversely affect the legal rights of any
Holder;
(b) to comply with Article V;
(c) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(d) to comply with any requirements of the Commission in
order to effect or maintain the qualification of this Indenture under the TIA;
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(e) to make any change that would provide any additional
benefit or rights to the Holders or that does not, as evidenced by an Opinion
of Counsel delivered to the Trustee, adversely affect the legal rights of any
Holder;
(f) to provide for issuance of the Exchange Notes (which
will have terms substantially identical in all material respects to the
Original Notes, except that the transfer restrictions contained in the Original
Notes will be modified or eliminated as appropriate, and which will be treated
together with any outstanding Original Notes as a single issue of securities);
or
(g) to make any other change that does not, as evidenced
by an Opinion of Counsel delivered to the Trustee, adversely affect the legal
rights of any Holder;
provided that the Company deliver to the Trustee an Opinion of Counsel and an
Officers' Certificate stating that such amendment or supplement complies with
the provisions of this Section.
SECTION 9.2. WITH CONSENT OF HOLDERS.
Subject to Section 6.7, the Company, when authorized by an appropriate
board resolution evidenced by an Officers' Certificate, and the Trustee, the
Indenture, the Notes and the Pledge Agreement may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount of
the Notes then outstanding (including consents obtained in connection with a
purchase of, or tender offer or exchange offer for, Notes), and any existing
default or compliance with any provision of the Indenture, the Notes or the
Pledge Agreement may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (including consents obtained in
connection with a purchase of, or tender offer or exchange offer for Notes).
Without the consent of each Holder of each Note affected thereby, an
amendment, supplement or waiver may not (with respect to any Note held by a
non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity
of any Note, or alter the provisions with respect to the redemption of the
Notes (other than provisions set forth in Sections 4.14 and 4.15 of this
Indenture);
(c) reduce the rate of or change the time for payment of
interest on any Note;
(d) waive a Default or Event of Default in the payment of
principal and premium (if any) of, and interest or Liquidated Damages (if any)
on, the Notes (except a
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rescission of acceleration of the Notes by the Holders of at least a majority
in aggregate principal amount of the Notes and a waiver of the payment default
that resulted from such acceleration);
(e) make any Note payable in money other than that stated
in the Notes;
(f) make any change in provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of Notes to
receive payments of principal and premium (if any) of, and interest or
Liquidated Damages (if any) on, the Notes;
(g) waive a redemption payment with respect to any Note
(other than a payment required by Section 4.14 and 4.15); or
(h) make any change in the amendment and waiver
provisions of this Section 9.2.
Upon the request of the Company accompanied by an Officers'
Certificate in form satisfactory to the Trustee certifying corporate
resolutions, authorizing the execution of any amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory of the
consent of the Holders as aforesaid, and upon receipt by the Trustee of the
documents described in Section 11.5 hereof, the Trustee shall join with the
Company in the execution of such amended or supplemental indenture unless such
amended or supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such amended or
supplemental Indenture. It shall not be necessary for the consent of the
Holders under this Section to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof. After an amendment, supplement or waiver under
this Section 9.2 becomes effective, the Company shall mail to the Holders
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 9.3. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article IX or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 7.1) shall be fully protected in relying
upon, in addition to the documents required by Section 11.5, an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.4. EFFECT OF SUPPLEMENTAL INDENTURES.
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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 Company shall so
determine, new Notes so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for outstanding Notes.
SECTION 9.7. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. Subject to the following paragraph, any such Holder or subsequent Holder
may revoke the consent as to such Holder's Note or portion of such Note by
notice to the Trustee or the Company received before the date on which the
Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount of Notes have consented (and not theretofore revoked
such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the last
sentence of the immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. No such consent shall
be valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (a)
through (h) of Section 9.2, in which case, the amendment, supplement or waiver
shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt
as the consenting Holder's Note; provided that any such waiver shall not impair
or affect the right of any Holder to receive payment of principal of, and
interest and Liquidated Damages (if any)
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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 X
SUBSIDIARY GUARANTEES
SECTION 10.1. UNCONDITIONAL GUARANTEE.
Each Subsidiary Guarantor, upon execution and delivery of a
supplemental indenture pursuant to Section 10.10, hereby fully and
unconditionally guarantees, jointly and severally with each other Subsidiary
Guarantor, if any, to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture or the Notes or the obligations
of the Subsidiary Guarantors under this Indenture or the Notes that: (i) the
principal of and premium (if any) and interest and Liquidated Damages (if any)
on the Notes will be paid in full when due, subject to any applicable grace
period, whether at maturity, by acceleration or otherwise and interest on the
overdue principal, if any, and interest on any interest (if any) to the extent
lawful, on the Notes and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and (ii) in case of any
extension of time of payment or renewal of any Notes or of any such other
obligations, the same will be paid in full when due or performed in accordance
with the terms of the extension or renewal, subject to any applicable grace
period, whether at stated maturity, by acceleration or otherwise, subject,
however, in the case of clauses (i) and (ii) above, to the limitations set
forth in Section 10.4. Each Subsidiary Guarantor hereby agrees that its
obligations hereunder shall be unconditional, irrespective of the validity or
enforceability of the Notes or this Indenture. Each Subsidiary Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with
a court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all demands
whatsoever and covenants that its Subsidiary Guarantee will not be discharged
(except to the extent released pursuant to Section 10.9) except by complete
performance of the obligations contained in the Notes, this Indenture and in
its Subsidiary Guarantee. If any Holder or the Trustee is required by any
court or otherwise to return to the Company, any Subsidiary Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to
the Company or any Subsidiary Guarantor, any amount paid by the Company or any
Subsidiary Guarantor to the Trustee or such Holder, each Subsidiary Guarantee,
to the extent theretofore discharged, shall be reinstated in full force and
effect (except to the extent released pursuant to Section 10.9). Each
Subsidiary Guarantor further agrees that, as between each Subsidiary Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article VI for the purposes of its Subsidiary Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect
of the obligations guaranteed hereby, and (y) in the event of any acceleration
of such obligations as provided in Article VI, such obligations (whether or
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not due and payable) shall forthwith become due and payable by each Subsidiary
Guarantor for the purpose of its Subsidiary Guarantee.
SECTION 10.2. PRIORITY OF GUARANTEE.
The obligations of each Subsidiary Guarantor to the Holders of Notes
and to the Trustee pursuant to its Subsidiary Guarantee and this Indenture will
rank senior in right and priority of payment to all other indebtedness of such
Subsidiary Guarantor that is expressly subordinated to its Subsidiary Guarantee
and will rank pari passu in right and priority of payment with all other
indebtedness of such Subsidiary Guarantor that is not expressly so subordinated
to such Subsidiary Guarantee, except to the extent of any collateral securing
such other indebtedness.
SECTION 10.3. SEVERABILITY.
In case any provision of a Subsidiary Guarantee shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.4. LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY.
Any term or provision of this Indenture to the contrary
notwithstanding, the maximum aggregate amount of the obligations guaranteed
hereunder by any Subsidiary Guarantor shall not exceed the maximum amount that
can be hereby guaranteed without rendering this Indenture, as it relates to
such Subsidiary Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally. To effectuate the foregoing intention, the obligations of
each Subsidiary Guarantor shall be limited to the maximum amount as will, after
giving effect to all other contingent and fixed liabilities of such Subsidiary
Guarantor and after giving effect to any collections from, rights to receive
contributions from, or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor
under its Subsidiary Guarantee or pursuant to its contribution obligations
hereunder, result in the obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under any applicable law. Each Subsidiary Guarantor that makes a
payment or distribution under a Subsidiary Guarantee shall be entitled to a
contribution from each other Subsidiary Guarantor so long as the exercise of
such right does not impair the rights of the Holders under the Subsidiary
Guarantees.
SECTION 10.5. WAIVER OF SUBROGATION.
Until all Obligations are paid in full, each Subsidiary Guarantor
hereby irrevocably waives any claim or other rights which it may now or
hereafter acquire against the Company that arise from the existence, payment,
performance or enforcement of such Subsidiary Guarantor's obligations under its
Subsidiary Guarantee and this Indenture, including, without limitation, any
right of subrogation, reimbursement, exoneration, indemnification, and any
right to participate in
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any claim or remedy of any Holder of Notes against the Company, whether or not
such claim, remedy or right arises in equity, or under contract, statute or
common law, including, without limitation, the right to take or receive from
the Company, directly or indirectly, in cash or other property or by set-off or
in any other manner, payment or security on account of such claim or other
rights. If any amount shall be paid to any Subsidiary Guarantor in violation
of the preceding sentence and the Notes shall not have been paid in full, such
amount shall have been deemed to have been paid to such Subsidiary Guarantor
for the benefit of, and held in trust for the benefit of, the Holders of the
Notes, and shall forthwith be paid to the Trustee for the benefit of such
Holders to be credited and applied upon the Notes, whether matured or
unmatured, in accordance with the terms of this Indenture.
SECTION 10.6. SUCCESSORS AND ASSIGNS.
This Article X shall be binding upon each Subsidiary Guarantor and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Notes shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture.
SECTION 10.7. NO WAIVER.
Neither a failure nor a delay on the part of either the Subsidiary
Guarantors, the Trustee or the Holders in exercising any right, power or
privilege under this Article X shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of
any right, power or privilege. The rights, remedies and benefits of the
Subsidiary Guarantors, the Trustee and the Holders herein expressly specified
are cumulative and not exclusive of any other rights, remedies or benefits
which either may have under this Article X at law, in equity, by statute or
otherwise.
SECTION 10.8. MODIFICATION.
No modification, amendment or waiver of any provision of this Article
X, nor the consent to any departure by any Subsidiary Guarantor therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Trustee, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No notice to or demand
on any Subsidiary Guarantor in any case shall entitle such Subsidiary Guarantor
to any other or further notice or demand in the same, similar or other
circumstances.
SECTION 10.9. RELEASE OF SUBSIDIARY GUARANTOR.
Upon the sale or disposition of all the capital stock of a Subsidiary
Guarantor (or substantially all of its assets) by way of merger, consolidation
or otherwise or the designation of a Subsidiary Guarantor as an Unrestricted
Subsidiary pursuant to and in compliance with the
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terms of this Indenture, such Subsidiary shall be released from and relieved of
its obligations under its Subsidiary Guarantee. The Trustee shall deliver an
appropriate instrument evidencing such release upon receipt of a request by the
Company accompanied by an Officers' Certificate and Opinion of Counsel
certifying as to the compliance with this Section. Any Subsidiary Guarantor
not so released shall remain liable for the full amount of principal of and
interest and Liquidated Damages (if any) on the Notes as provided in this
Article X.
SECTION 10.10. EXECUTION OF SUPPLEMENTAL INDENTURE
BY FUTURE RESTRICTED SUBSIDIARIES.
The Company shall cause each Person that becomes a Restricted
Subsidiary, upon becoming a Restricted Subsidiary, to become a Subsidiary
Guarantor with respect to the Notes. The Company shall cause any such
Restricted Subsidiary to execute and deliver to the Trustee (i) a supplemental
indenture, in form and substance satisfactory to the Trustee, pursuant to which
such Subsidiary shall unconditionally guarantee all of the Company's
obligations under the Notes and this Indenture on the terms set forth in this
Indenture and (ii) deliver to the Trustee an Opinion of Counsel to the effect
that such supplemental indenture has been duly authorized, executed and
delivered by such Subsidiary Guarantor and, subject to the application of
bankruptcy, insolvency, moratorium, fraudulent conveyance or transfer and other
similar laws relating to creditors' rights generally and to the principles of
equity, whether considered in a proceeding at law or in equity, the Subsidiary
Guarantee of such Subsidiary Guarantor is a legal, valid and binding obligation
of such Subsidiary Guarantor, enforceable against such Subsidiary Guarantor in
accordance with its terms. Thereafter, such Subsidiary shall be a Subsidiary
Guarantor for all purposes of this Indenture.
SECTION 10.11. WAIVER OF STAY, EXTENSION OR USURY LAWS.
Each Subsidiary Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law, wherever enacted, now or at any time hereafter
in force, or which may affect the covenants or the performance of this
Indenture, and (to the extent that it may lawfully do so) each such Subsidiary
Guarantor hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
a provision of the TIA that is required under the TIA to be a part of and
govern this Indenture, such required provision
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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 COMPANY AND TRUSTEE.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by facsimile, or by registered or certified mail, postage prepaid, return
receipt requested, and addressed as follows:
If to the Company:
Orbital Imaging Corporation
21700 Atlantic Boulevard
Dulles, Virginia 20166
Attn: General Counsel
Facsimile: 703-406-5572
If to the Trustee:
HSBC Bank USA
140 Broadway, 12th Floor
New York, New York 10005-1180
Attn: Corporate Trust Department
Facsimile: 212-658-6425
Each of the Company and the Trustee by written notice as specified herein to
each other Person may designate additional or different addresses for notices
to such Person. Any notice or communication to the Company or the Trustee
shall be deemed to have been given or made: as of the date delivered, if
personally delivered; when receipt is confirmed, if sent by facsimile; and five
calendar days after mailing, if sent by registered or certified mail, postage
prepaid; provided that a notice of change of address shall not be deemed to
have been given until actually received by the addressee.
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SECTION 11.3. NOTICES TO HOLDERS.
Where this Indenture provides for notice to Holders, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in
writing and: (i) in the case of a Global Note, by facsimile or by overnight
mail to the Depository; and (ii) in the case of Notes other than a Global Note,
by first-class mail, postage prepaid, in each case to each Holder affected at
his address as it appears in the Note Register, and shall be sufficiently given
if sent not later than the latest date (if any) and not earlier than the
earliest date (if any) prescribed for the giving of such notice. Neither the
failure to mail any such notice nor any defect in any notice so mailed to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Notice may be waived in writing by any Person entitled to
receive such notice, either before or after the event requiring notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 11.4. TRUSTEE, PAYING AGENT AND REGISTRAR PROCEDURES.
The Trustee may make reasonable rules in accordance with the Trustee's
customary practices for action by or at meetings of Holders, and the Paying
Agent and the Registrar may make reasonable rules for their functions.
SECTION 11.5. COMPLIANCE CERTIFICATES AND OPINIONS.
(a) Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee such certificates and opinions as may be required
under the TIA and under this Indenture. Each such certificate or opinion
required to be made under this Indenture shall be given in the form of an
Officers' Certificate, if to be given by the Company, or an Opinion of Counsel,
if to be given by counsel, and shall comply with the requirements of the TIA
and any other requirement set forth in this Indenture.
(b) Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
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(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 Company submitted
therewith stating the information on which such counsel is relying, unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate with respect to such matters is erroneous.
SECTION 11.7. ACTS OF HOLDERS; REGISTERED HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more written
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 7.1)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing pursuant to this Section may be proved by the
affidavit of a witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
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(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Note shall bind every
future Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Note.
(e) The Company may set any day as a record date for the
purpose of determining the Holders of outstanding Notes entitled to give, make
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made or
taken by Holders of Notes; provided that the Company may not set a record date
for, and the provisions of this paragraph shall not apply with respect to, the
giving or making of any notice, declaration, request or direction referred to
in paragraph (f) below. If not set by the Company prior to the first
solicitation of a Holder made by any Person in respect of any such matter
referred to in the foregoing sentence, the record date for any such matter
shall be the 30th day (or, if later, the date of the most recent list of
Holders required pursuant to Section 2.5) prior to such first solicitation. If
any record date is set pursuant to this paragraph, the Holders of outstanding
Notes on such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record
date. Nothing in this paragraph shall be construed to prevent the Company from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of outstanding
Notes on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders to be given to the Trustee
in writing and to each Holder of Notes in the manner set forth in Section 11.2.
(f) The Trustee may set any day as a record date for the
purpose of determining the Holders of outstanding Notes entitled to join in the
giving or making of (i) any notice hereunder, (ii) any declaration of
acceleration referred to in Section 6.2, (iii) any request to institute
proceedings referred to in Section 6.6 or (iv) any direction referred to in
Section 6.5. If any record date is set pursuant to this paragraph, the Holders
of outstanding Notes on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically
and with no action by any Person be canceled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by
Holders of the requisite principal amount of outstanding Notes on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Trustee, at the Company's
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expense, shall cause notice of such record date, the proposed action by Holders
to be given to the Company in writing and to each Holder of Notes in the manner
set forth in Section 11.2.
(g) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular Note may
do so with regard to all or any part of the principal amount of such Note or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
SECTION 11.8. SUCCESSORS AND ASSIGNS.
All covenants and agreements of the Company in this Indenture and the
Notes shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 11.9. SEVERABILITY.
In case any one or more of the provisions in this Indenture or in the
Notes shall be held invalid, illegal or unenforceable in any jurisdiction, in
any respect for any reason, the validity, legality and enforceability of any
such provision in every other jurisdiction and in every other respect, and of
the remaining provisions, shall not in any way be affected or impaired thereby,
it being intended that all of the provisions hereof shall be enforceable to the
full extent permitted by law.
SECTION 11.10. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder and the Holders of Notes, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 11.11. GOVERNING LAW; JURISDICTION.
This Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York, as applied to contracts made
and performed entirely within the State of New York, without regard to
principles of conflict of laws. Each of the parties hereto agrees to submit to
the jurisdiction of the courts of the State of New York in any action or
proceeding arising out of or relating to this Indenture.
SECTION 11.12. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, Proceeds
Purchase Date or Change of Control Payment Date of any Note shall not be a
Business Day, then, notwithstanding any other provision of this Indenture or of
the Notes or the Subsidiary Guarantees, payment of interest or Liquidated
Damages (if any) on or principal and premium (if any) of the Notes need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on such Interest Payment Date,
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Redemption Date, Proceeds Purchase Date or Change of Control Payment Date, as
the case may be.
SECTION 11.13. NO RECOURSE AGAINST OTHERS; LIMITATION ON LIABILITY.
Notwithstanding anything contained in this Indenture or the Notes to
the contrary, (i) except for the Company to the extent provided in clause (ii)
below, no Person shall have any liability whatsoever with respect to or arising
out of this Indenture, the Notes, or the Company's obligations thereunder or
any agreements or documents executed by the Company in connection therewith and
(ii) claims with respect to this Indenture, the Notes and any obligations
thereunder or under any agreements or documents executed in connection
therewith shall be satisfied solely from the assets of the Company. Each
Holder, by accepting a Note, waives and releases all such liability. Such
waiver and release are part of the consideration for the issuance of the Notes.
SECTION 11.14. COUNTERPARTS.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
ORBITAL IMAGING CORPORATION
By:
------------------------------------------
Name:
Title:
HSBC BANK USA,
as Trustee
By:
------------------------------------------
Name:
Title:
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EXHIBIT A
(FORM OF FACE OF NOTE)
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
New York, New York, to the Company or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as may be requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.[1]
THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE NOTE
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE NOTE EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF ORBITAL IMAGING CORPORATION AND ITS SUCCESSORS (THE
"COMPANY") THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A PERSON THAT IS NOT A U.S. PERSON (AS DEFINED IN RULE 902 UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT,
PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE NOTES (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE) OR (e) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL IF THE COMPANY OR TRUSTEE, REGISTRAR OR
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TRANSFER AGENT FOR THE SECURITIES SO REQUESTS), (2) TO THE COMPANY OR (3)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND,
IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
NOTE EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE. [2]
[1] This paragraph should be included only if the Note is issued in
global.
[2] This legend not required in the case of (1) a Note issued pursuant to
Section 2.6(g)(ii) of the Indenture of (2) a Exchange Note issued pursuant to
Section 2.6(g)(iii) of the Indenture.
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ORBITAL IMAGING CORPORATION
11 5/8% SENIOR NOTES DUE 2005, [SERIES C][SERIES D]
NO. ___
CUSIP #_________
ORBITAL IMAGING CORPORATION, a Delaware corporation (the "Company"),
promises to pay to ________ or its registered assigns, the principal sum
indicated on Schedule A on March 1, 2005.
Interest Payment Dates: March 1 and September 1, commencing on
September 1, 1999.
Interest will accrue from the most recent date on which interest has
been paid or, if no interest has been paid, from April 22, 1999.
Record Dates: February 15 and August 15.
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at
this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officer.
ORBITAL IMAGING CORPORATION
By:
------------------------------------------
Name: Armand D. Mancini
Title: Vice President and Chief Financial
Officer
Dated: ________
105
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 11 5/8% Senior Notes due 2005 referred to in the
within-mentioned Indenture.
HSBC BANK USA,
as Trustee
By:
-----------------------------------
Authorized Signatory
106
(FORM OF REVERSE SIDE OF NOTE)
11 5/8% Senior Notes due 2005, [Series C][Series D]
Capitalized terms used herein shall have the meanings ascribed to them
in the Indenture (as defined below) unless otherwise indicated.
1. Interest. ORBITAL IMAGING CORPORATION, a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at the rate per annum shown above. Interest on the Notes will accrue from the
most recent date on which interest has been paid or, if no interest has been
paid, from April 22, 1999. The Company will pay interest semi-annually in
arrears on each Interest Payment Date, commencing September 1, 1999.
The Company shall pay, to the extent such payments are lawful,
interest on overdue principal, from time to time on demand at the rate equal to
1% per annum in excess of the rate then in effect; it shall pay interest on
overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent such
payments are lawful. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
Notwithstanding any other provision of the Indenture or this Note:
(i) accrued and unpaid interest on the Original Notes being exchanged in the
Exchange Offer shall be due and payable on the next Interest Payment Date for
the Exchange Notes following the Exchange Offer; (ii) interest on the Exchange
Notes to be issued in the Exchange Offer shall accrue from the date the
Exchange Offer is consummated; and (iii) the Exchange Notes shall have no
provisions for Liquidated Damages.
2. Method of Payment. The Company shall pay the principal of,
and premium, interest and Liquidated Damages (if any) on, the Notes on the
dates and in the manner provided herein, in the Indenture and in the
Registration Rights Agreement. Principal of, and premium, interest and
Liquidated Damages on, Definitive Notes will be payable, and Definitive Notes
may be presented for registration of transfer or exchange, at the office or
agency of the Company maintained for such purpose. Principal of, and premium,
interest and Liquidated Damages on, Global Notes will be payable by the Company
through the Trustee to the Depositary by wire transfer of immediately available
funds. Holders of Definitive Notes will be entitled to receive interest
payments by wire transfer in immediately available funds if appropriate wire
transfer instructions have been received in writing by the Trustee not less
than 15 days prior to the applicable Interest Payment Date. Such wire
instructions, upon receipt by the Trustee, shall remain in effect until revoked
by such Holder. If wire instructions have not been received by the Trustee
with respect to any Holder of a Definitive Note, payment of interest and
Liquidated Damages, if any, may be made by check in immediately available funds
mailed to such Holder at the address set forth upon the Register maintained by
the Registrar.
107
3. Paying Agent and Registrar. Initially, HSBC Bank USA, 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 Company may change the Paying Agent or
Registrar without notice to or consent of the Holders.
4. Indenture. The Company issued the Note under an Indenture,
dated as of April 22, 1999 (the "Indenture"), between the Company and the
Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S. Code Section 77aaa-77bbbb) (the "TIA"), as in effect on the date
of the Indenture, except as otherwise provided in the Indenture.
Notwithstanding anything to the contrary herein, the Notes are subject to all
such terms, and Holders of Notes are referred to the Indenture and the TIA for
a statement of such terms. The Notes are general obligations of the Company
limited in aggregate principal amount to $75,000,000. Each Holder, by
accepting a Note, agrees to be bound by all of the terms and provisions of the
Indenture, as the same may be amended from time to time.
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and its Restricted Subsidiaries to incur
additional Indebtedness, pay dividends or make other distributions, repurchase
any capital stock or subordinated Indebtedness, make certain investments,
create certain Liens, enter into certain transactions with Affiliates, sell
assets, enter into certain mergers and consolidations, restrict such Restricted
Subsidiaries from making certain dividend and other payments, entering into
Sale and Leaseback Transactions, and issuing or selling capital stock of
Restricted Subsidiaries of the Company. Such limitations are subject to
important qualifications and exceptions. The Company must annually report to
the Trustee on compliance with such limitations. The Indenture requires the
Company to cause any Person that becomes a Restricted Subsidiary of the Company
after the Issue Date to execute and deliver to the Trustee a supplemental
indenture pursuant to which such Restricted Subsidiary will Guarantee the
Notes.
5. Redemption.
(a) The Notes will not be redeemable prior to March 1,
2002. Thereafter, the Notes will be subject to redemption at the option of the
Company, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued and unpaid interest and Liquidated Damages (if
any) thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on March 1 of the years indicated below:
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108
Redemption
Year Price
- ---- -----------------
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105.8125%
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102.9063%
2004 and thereafter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100.0000%
(b) Notwithstanding the foregoing, prior to March 1,
2001, the Company may, on one or more occasions, redeem outstanding Notes with
the net cash proceeds of one or more sales of Capital Stock (other than
Disqualified Stock) of the Company to one or more Persons (but only to the
extent the proceeds of such sales of Capital Stock consist of cash or Cash
Equivalents) at a redemption price equal to 111.625% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages (if any)
thereon to the redemption date; provided, however, that: (i) not less than 65%
of the aggregate principal amount of the Notes initially issued remains
outstanding immediately after any such redemption; and (ii) such redemption
shall occur within 60 days after the date of closing of such sale of Capital
Stock.
6. Mandatory Redemption; Offer to Purchase. The Company shall
not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.
Sections 4.14 and 4.15 of the Indenture provide that, after certain
Asset Sales and upon the occurrence of a Change of Control, and subject to the
conditions and limitations contained therein, the Company will make an offer to
purchase certain amounts of the Notes in accordance with the procedures set
forth in the Indenture at a purchase price equal to 101% in the case of a
Change of Control and 100% in the case of Asset Sales, of the principal amount
thereof plus accrued and unpaid interest and Liquidated Damages (if any) to the
date of purchase.
7. Notice of Redemption. Notice of redemption will be given by
first-class mail, postage prepaid, mailed not less than 30 days nor more than
60 days prior to the Redemption Date to each Holder of Notes to be redeemed at
such Holder's registered address as it appears in the Note Register.
Notes to be redeemed shall cease to bear interest from and after the
Redemption Date and the only right of the Holders of such Notes will be to
receive payment of the Redemption Price plus accrued and unpaid interest and
Liquidated Damages (if any).
8. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any
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109
Note being redeemed in part. Also, it need not exchange or register the
transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed or during the period between a Record Date and the corresponding
Interest Payment Date.
9. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
10. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company, after which all liability of the Trustee and
Paying Agent with respect to such money shall cease.
11. Discharge Prior to Redemption or Maturity. If the Company at
any time deposits with the Trustee U.S. dollars or Government Securities
sufficient to pay the principal of and interest on the Notes to redemption or
maturity, and complies with the other provisions of the Indenture relating
thereto, the Company will be discharged from certain provisions of the
Indenture and the Notes (including certain covenants, but excluding its
obligation to pay the principal of, and interest and Liquidated Damages (if
any) payable on, the Notes).
12. Amendment; Supplement; Waiver. Subject to certain exceptions,
the Indenture, the Notes and the Pledge Agreement may be amended or
supplemented with the written consent of the Holders of at least a majority in
aggregate principal amount of the Notes then outstanding, and certain existing
Defaults or Events of Default or noncompliance with any provision may be waived
with the written consent of the Holders of a majority in aggregate principal
amount of the Notes then outstanding. Without notice to or consent of any
Holder, the parties thereto may make such amendments or supplements to, among
other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Notes in addition to or in place of certificated Notes, comply
with Article V of the Indenture (dealing with certain mergers and
consolidations) or make any other change that does not adversely affect the
legal rights of any Holder of a Note.
13. Defaults and Remedies. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of Notes then outstanding may declare all the Notes to be due and
payable in the manner, at the time and with the effect provided in the
Indenture. Holders of Notes may not enforce the Indenture or the Notes except
as provided in the Indenture. The Trustee is not obligated to enforce the
Indenture or the Notes unless it has received security or indemnity reasonably
satisfactory to the Trustee. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Notes then outstanding to direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of Notes notice of
any continuing Default or Event of Default (except a Default in payment of
principal of, or interest or Liquidated Damages, if any, payable on the Notes)
if it determines that withholding notice is in the Holders' interest.
14. Pledge Agreement. In order to secure the due and punctual
payment of the principal of, premium, interest and Liquidated Damages, if any,
on the Notes and the payment
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and performance of all other obligations of the Company to the Holders of the
Notes or the Trustee under the Indenture, the Company has granted a first
priority Lien on certain Pledged Securities to the Trustee for the benefit of
the Holders, as more particularly described in the Pledge Agreement. If the
Pledged Securities exceed the amount sufficient, in the opinion of a nationally
recognized firm of independent public accountants selected by the Company, to
provide for payment in full of the first two scheduled interest payments due on
the Notes (or, in the event an interest payment or interest payments have been
made, an amount sufficient to provide for payment in full of any interest
payments remaining, up to and including the second scheduled interest payment),
and no Default or Event of Default is then continuing, upon the satisfaction of
certain conditions specified in the Pledge Agreement, any such excess amount of
Pledged Securities shall be returned to the Company. Upon such release and
delivery to the Company, the Lien of the Trustee thereon for the benefit of the
Holders shall be released.
15. Trustee's Dealings with Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee, subject to the
provisions of TIA Section 310.
16. No Recourse Against Others; Limitation on Liability.
Notwithstanding anything contained in the Indenture or the Notes to the
contrary, (i) except for the Company to the extent provided in clause (ii)
below, no person or entity (including, without limitation, the past, present or
future directors, officers, shareholders and employees of the Company) shall
have any liability whatsoever with respect to or arising out of the Indenture,
the Notes or any of the Company's obligations thereunder or any agreements or
documents executed by the Company in connection therewith and (ii) claims with
respect to the Indenture, the Notes and any obligations thereunder or under any
agreements or documents executed in connection therewith shall be satisfied
solely from the assets of the Company. Each Holder, by accepting a Note,
waives and releases all such liability. Such waiver and release are part of
the consideration for the issuance of the Notes.
17. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
18. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(=Uniform Gifts to Minors Act).
19. Additional Rights of Holders of Transfer Restricted
Securities. In addition to the rights provided to Holders under the Indenture,
Holders of Transfer Restricted Securities shall have all the rights set forth
in the Registration Rights Agreement.
20. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a
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111
convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption.
21. Governing Law. THE INDENTURE AND THIS NOTE SHALL BE GOVERNED
BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE
STATE OF NEW YORK AS APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
22. Indenture. Each Holder, by accepting a Note, agrees to be
bound by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.
The Company will furnish without charge to any Holder of a Note upon
written request a copy of the Indenture, which has the text of this Note
printed therein. Requests may be made c/o Orbital Imaging Corporation, 21700
Atlantic Boulevard, Dulles, Virginia 20166, Attn: Secretary.
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112
SCHEDULE A
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount at maturity of this Global Note shall be
$________. The following increases or decreases in this Global Note have been
made:
Principal Amount
-----------------
Amount of :
decrease in
--------
increase in
--------
of this Global Note (or Exchange Note)
Principal Amount of the Global Note (or Exchange Note) following such increase
or decrease
$
----------------
HSBC BANK USA
By:
------------------------------------
Authorized Officer
Date:
-----------------
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113
EXHIBIT B
ASSIGNMENT FORM
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 Company. The agent may
substitute another to act for it.
Date:
--------------------
Signed:
------------------
(Signed exactly as your name appears on the other side of this Note)
Signature Guarantee:
- -----------------------------------------
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114
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) April 22, 2001, the undersigned confirms
that it has not utilized any general solicitation or general advertising in
connection with the transfer and that this Note is being transferred:
- ---------------------------
(Check One)
(1) __ to the Company 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 can
be obtained from the Trustee); or
(4) __ outside the United States to a "foreign person" in compliance
with Regulation S under the Securities Act; or
(5) __ pursuant to the exemption from registration provided by Rule
144 under the Securities Act; or
(6) __ pursuant to an effective registration statement under the
Securities Act; or
(7) __ pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the name of any
Person other than the Holder thereof; provided that if box (3), (4), (5) or (7)
is checked, the Company or the Trustee may require, prior to registering any
such transfer of the Notes, in its sole discretion, such legal opinions,
certifications (including an investment letter in the case of box (3) or (4))
and other information as the Trustee or the Company may reasonably request to
confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities
Act.
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
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115
conditions to any such transfer of registration set forth herein and in Section
2.6 of the Indenture shall have been satisfied.
Date:
--------------------
Signed:
------------------
(Signed exactly as your name appears on the other side of this Note)
Signature Guarantee:
- -----------------------------------------
NOTICE: Your signature must be guaranteed by an Institution which is a member
of one of the following recognized signature Guarantee Programs: (i) The
Securities Transfer Agent Medallion Program; (ii) The New York Stock Exchange
Medallion Program; (iii) The Stock Exchange Medallion Program; or (iv) any
other guarantee program acceptable to the Trustee.
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
----------------------
NOTICE: To be executed by an executive officer
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116
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Company pursuant to
Section 4.14 or Section 4.15 of the Indenture, check the appropriate box:
Section 4.14 [ ]
Section 4.15 [ ]
If you elect to have only part of this Note purchased by the Company
pursuant to Section 4.14 or Section 4.15 of the Indenture, state the amount you
elect to have purchased:
$
----------------
Dated:
------------------------
NOTICE: The signature on this assignment must correspond with the name as it
appears upon the face of the within Note in every particular without alteration
or any change whatsoever and be guaranteed by the endorser's bank or broker.
Signature Guarantee:
- ---------------------------------
NOTICE: Your signature must be guaranteed by an Institution which is a member
of one of the following recognized signature Guarantee Programs: (i) The
Securities Transfer Agent Medallion Program; (ii) The New York Stock Exchange
Medallion Program; (iii) The Stock Exchange Medallion Program; or (iv) any
other guarantee program acceptable to the Trustee.
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117
EXHIBIT C
FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL
ACCREDITED INVESTOR
Orbital Imaging Corporation
21700 Atlantic Boulevard
Dulles, VA 20166
Attention: General Counsel
HSBC Bank USA
140 Broadway, 12th Floor
New York, New York 10005
Attention: Corporate Trust Department
Re: 11 5/8% Senior Notes Due 2005
Reference is hereby made to the Indenture, dated as of April 22, 1999
(the "Indenture"), between Orbital Imaging Corporation., as issuer (the
"Company") and HSBC Bank USA, as trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Indenture. In
connection with our proposed purchase of $____________ aggregate principal
amount of Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A)(1) to a person who we reasonably
believe is a "qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) in a transaction meeting the requirements of Rule 144A, (2) in
a transaction meeting the requirements of Rule 144 under the Securities Act,
(3) outside the United States to a person that is not a U.S. person (as defined
in Rule 902 under the Securities Act) in a transaction meeting the requirements
of Rule 904 under the Securities Act, (4) to an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act) that, prior to such transfer, furnishes to you a signed
letter containing certain representations and agreements relating to the Notes
(the form of which letter can be obtained from the Trustee), or (5) in
accordance with another exemption from the registration requirements of the
Securities Act (and in the case of any transfer with an aggregate principal
amount of $100,000 or less, based upon an Opinion of Counsel if the Company or
Trustee, Registrar or Transfer Agent for the Notes so requests), (B) to
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118
the Company or (C) pursuant to an effective registration statement and, in each
case, in accordance with any applicable securities laws of any state of the
United States or any other applicable jurisdiction, and we further agree to
provide to any Person purchasing the Certificated Notes or interests therein
from us in a transaction meeting the requirements of clauses (A) through (C) of
this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or any
interests therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect. We further understand that any
subsequent transfer by us of the Notes or interests therein acquired by us must
be effected through one of the Initial Purchasers.
4. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.
5. We are acquiring the Notes or interests therein for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion. You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
[Insert Name of Accredited Investor]
By:
--------------------------------
Name:
Title:
Dated:
------------------
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