SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES
UNDER THE TRUST INDENTURE ACT OF 1939
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PANAMSAT INTERNATIONAL SYSTEMS, INC.
(Name of applicant)
One Pickwick Plaza
Greenwich, CT 06830
(Address of principal executive offices)
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Securities to be Issued Under the Indenture to be Qualified
Title of Class Amount
12.75% Senior Subordinated
Notes, Due 2005 (the "Exchange Notes") $373,693,550
Approximate date of proposed public offering: September 30, 1997.
Name and Address of agent for service:
Bruce Haymes, Esq.
PanAmSat International Systems, Inc.
One Pickwick Plaza
Greenwich, CT 06830
(203) 622-6664
Copies to:
Dennis J. Friedman, Esq.
Claude S. Serfilippi, Esq.
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, New York 10112
(212) 408-5100
<PAGE>
GENERAL
Item 1. GENERAL INFORMATION. Furnish the following information as to the
applicant:
(a) Form of organization:
A corporation.
(b) State or other sovereign power under the laws of which organized:
Delaware.
Item 2. SECURITIES ACT EXEMPTION APPLICABLE. State briefly the facts relied upon
by the applicant as a basis for the claim that registration of the indenture
securities under the Securities Act of 1933, as amended (the "Securities Act")
is not required.
On August 14, 1997 an Exchange Trigger Date (as defined in the
Certificate of Designation (as defined below)) occurred with respect to all of
the outstanding 12 3/4% Manditorily Exchangeable Senior Redeemable Preferred
Stock, par value $0.01 per share (the "Senior Redeemable Preferred Stock") of
PanAmSat International Systems, Inc. (the "Company"). Pursuant to the
Certificate of Designation relating to the Senior Redeemable Preferred Stock
(the "Certificate of Designation"), within 30 days after an Exchange Trigger
Date the Company is required to send written notice to each holder of Senior
Redeemable Preferred Stock stating, among other things, the date fixed for
exchange of all of its outstanding Senior Redeemable Preferred Stock into
Exchange Notes (the "Exchange Date"). At June 30, 1997 the Company had 352,740
shares of Senior Redeemable Preferred Stock outstanding, all of which have been
registered under the Securities Act pursuant to a Registration Statement (File
No. 33-84836) which was declared effective by the Securities and Exchange
Commission on or about April 13, 1995. Additional shares of Senior Redeemable
Preferred Stock issued after June 30, 1997 to pay interest on outstanding shares
of Senior Redeemable Preferred Stock have also been registered under the
Securities Act pursuant to such Registration Statement.
Pursuant to the Certificate of Designation, the Company intends to
exchange all Senior Redeemable Preferred Stock outstanding on the Exchange Date
into Exchange Notes (the "Exchange"). No sales of any securities of the same
class by the applicant or by or through any underwriter have been or are to be
made at or about the same time as the Exchange. No consideration (including any
commission or other remuneration) has been or will be given, directly or
indirectly, to any person in connection with the Exchange. No cash payment has
been or will be made by any holder of any outstanding securities of the
applicant in connection with the Exchange.
Accordingly, the applicant will rely on Section 3(a)(9) of the
Securities Act in connection with the Exchange.
AFFILIATIONS
Item 3. AFFILIATES. Furnish a list or diagram of all affiliates of the
applicant and indicate the respective percentages of voting securities or other
bases of control.
The only affiliate of the applicant is General Motors Corporation
("GM"). GM is an affiliate of the applicant by virtue of owning 71.5% of the
outstanding common stock of PanAmSat Corporation ("PanAmSat") which owns
indirectly 100% of the capital stock of the applicant.
In addition, pursuant to a Stockholders Agreement with certain other
stockholders of PanAmSat, GM has the right to designate eight of the ten members
of PanAmSat's Board of Directors.
MANAGEMENT AND CONTROL
Item 4. DIRECTORS AND EXECUTIVE OFFICERS. List the names and complete mailing
addresses of all directors and executive officers of the applicant and all
persons chosen to become directors or executive officers. Indicate all offices
with the applicant held or to be held by each person named.
Name Mailing Address Office
Frederick A. Landman c/o PanAmSat Corporation President
One Pickwick Plaza
Greenwich, CT 06830
Carl A. Brown c/o PanAmSat Corporation Executive Vice President
One Pickwick Plaza
Greenwich, CT 06830
Lourdes Saralegui c/o PanAmSat Corporation Executive Vice President
One Pickwick Plaza
Greenwich, CT 06830
Kenneth N. Heintz c/o PanAmSat Corporation Chief Financial Officer
One Pickwick Plaza
Greenwich, CT 06830
James W. Cuminale c/o PanAmSat Corporation Senior Vice President
One Pickwick Plaza and Secretary
Greenwich, CT 06830
Each of the foregoing persons is also a director of the applicant.
Item 5. PRINCIPAL OWNERS OF VOTING SECURITIES. Furnish the following
information as to each person owning 10% or more of the voting securities of
the applicant.
All of the capital stock of the applicant is beneficially owned,
directly or indirectly, by PanAmSat. At August 15, 1997, based on filings with
the Securities and Exchange Commission, the following persons owned 10% or more
of the voting securities of PanAmSat.
Percentage of
Name and Complete Title of Amount Voting Securities
Mailing Address Class Owned Owned Owned
General Motors Corporation Common Stock 106,622,807 71.5%
3044 West Grand Boulevard
Detroit, Michigan 48202-3901
Mary Anselmo Common Stock 15,422,995 10.3%
c/o PanAmSat Corporation
One Pickwick Plaza
Greenwich, CT 06830
UNDERWRITERS
Item 6. UNDERWRITERS. Give the name and complete mailing address of (a) each
person who, within three years prior to the date of filing the application,
acted as an underwriter of any securities of the obligor which were outstanding
on the date of filing the application, and (b) each proposed principal
underwriter of the securities proposed to be offered. As to each person
specified in (a), give the title of each class of securities underwritten.
a)
Underwriter(s) Securities Underwritten Date of Issue
Donaldson, Lufkin & Jenrette 9 3/4% Senior Secured August 5, 1993
Securities Corporation Notes Due 2000
Donaldson, Lufkin & Jenrette 11 3/8% Senior Notes August 5, 1993
Securities Corporation Subordinated Discount
Due 2003
Morgan Stanley & Co. 12 3/4% Manditorily April 13, 1995
Incorporated; Bear Stearns & Exchangeable Senior
Co. Inc.; Donaldson Lufkin & Redeemable Preferred Stock
Jenrette Securities
Corporation
Morgan Stanley & Co. Common Stock September 21, 1995
Incorporated; Bear Stearns &
Co. Inc.; Donaldson Lufkin &
Jenrette Securities
Corporation
b) There will be no underwriters involved in the Exchange
contemplated herein.
CAPITAL SECURITIES
Item 7. CAPITALIZATION
(a) Furnish the following information as to each authorized class of
securities of the applicant.
As of June 30, 1997
Title of Class Amount Authorized Amount Outstanding
- -------------- ----------------- ------------------
12 3/4% Manditorily 20,000,000 352,740*
Exchangeable Senior
Redeemable Preferred
Stock, $0.01 par value
Class A Common Stock, 100,000,000 21,231,415
$0.01 par value
Class B Common Stock, 100,000,000 40,459,431
$0.01 par value
Common Stock, $0.01 par 400,000,000 38,309,154
value
* Does not include 9,389 shares for accrued dividend obligations.
(b) Give a brief outline of the voting rights of each class of voting
securities referred to in paragraph (a) above.
Preferred Stock. Holders of Senior Redeemable Preferred Stock
have no voting rights with respect to general corporate matters
except as provided by law or as set forth in the Certificate of
Designation. The Certificate of Designation provides that if (a)
dividends on the Senior Redeemable Preferred Stock are in arrears
and unpaid (and if after April 15, 2000, such dividends are not
paid in cash) for four quarterly periods (whether or not
consecutive), (b) the Company fails to discharge any redemption
obligation with respect to the Senior Redeemable Preferred Stock,
(c) a breach or violation of the provisions in the Certificate of
Designation relating to the Exchange occurs, or the Company fails
to exchange Exchange Notes for the Senior Redeemable Preferred
Stock on the mandatory Exchange Date (whether or not the Company
satisfies the conditions to permit such exchange), (d) the Company
fails to make an offer to purchase all of the outstanding shares
of Senior Redeemable Preferred Stock following a Change of Control
(as defined in the Certificate of Designation), if such offer to
purchase is required by the Change of Control provisions set forth
in the Certificate of Designation, (e) a breach or violation of
the covenants set forth in the Certificate of Designation occurs
and the breach or violation continues for a period of 30 days or
more or (f) a default occurs on the obligation to pay principal
of, interest on or any other payment obligation when due (a
"Payment Default") at final maturity on one or more classes of
indebtedness of the Company or any subsidiary of the Company,
whether such indebtedness exists on the issue date of the Senior
Redeemable Preferred Stock or is incurred thereafter, having
individually or in the aggregate an outstanding principal amount
of $10.0 million or more, or any other Payment Default occurs on
one or more such classes of indebtedness and such class or classes
of indebtedness are declared due and payable prior to their
respective maturities, then the number of directors constituting
the Board of Directors will be adjusted to permit the holders of
the majority of the then outstanding Senior Redeemable Preferred
Stock, voting separately as a class, to elect two directors. Such
voting rights will continue until such time as all dividends in
arrears on the Senior Redeemable Preferred Stock are paid in full
(and in the case of dividends payable after April 15, 2000, paid
in cash) and any failure, breach or default referred to in clause
(b), (c), (d), (e) or (f) is remedied, at which time the term of
any directors elected pursuant to the provisions of this paragraph
shall terminate. Each such event described in clauses (a) through
(f) above is referred to herein as a "Voting Rights Triggering
Event."
The Company's Certificate of Incorporation provides that upon
the occurrence of a Voting Rights Triggering Event, the number of
directors constituting the Board of Directors will be increased by
the number of directors that the holders of the Senior Redeemable
Preferred Stock are entitled to elect, plus such further number of
directors as is necessary thereafter to permit (i) the holders of
the Class B Common Stock and Common Stock, voting together as a
single class, to elect the number of directors they were entitled
to elect without regard to the voting rights of the Senior
Redeemable Preferred Stock and (ii) the holders of the Class A
Common Stock and the Common Stock, voting together as a single
class, to elect a number of directors that is one greater than the
sum of the number of directors to be elected by the holders of
Class B Common Stock and Common Stock, voting together as a class,
and the number of directors that holders of Senior Redeemable
Preferred Stock are entitled to elect. Whenever the right of the
holders of Senior Redeemable Preferred Stock to elect directors
shall cease, the number of directors constituting the Board of
Directors will be restored to the number of directors constituting
the Board of Directors prior to the time or event which entitled
the holders of Senior Redeemable Preferred Stock to elect
directors.
Any vacancy occurring in the office of a director elected by
holders of the Senior Redeemable Preferred Stock may be filled by
the remaining director elected by such holders unless and until
such vacancy shall be filled by such holders.
The Certificate of Designation also provides that the Company
will not authorize any class of securities ranking senior to or
pari passu with the Senior Redeemable Preferred Stock without the
affirmative vote or consent of holders of at least 66 2/3% of the
shares of Senior Redeemable Preferred Stock then outstanding,
voting or consenting, as the case may be, separately as one class.
The Certificate of Designation also provides that the Company may
not amend the Certificate of Designation so as to affect adversely
the specified rights, preferences, privileges or voting rights of
holders of shares of the Senior Redeemable Preferred Stock, or
authorize the issuance of any additional shares of Senior
Redeemable Preferred Stock, without the affirmative vote or
consent of the holders of at least 66 2/3% of the outstanding
shares of Senior Redeemable Preferred Stock, voting or consenting,
as the case may be, separately as one class. The holders of at
least 66 2/3% of the outstanding shares of Senior Redeemable
Preferred Stock, voting or consenting, as the case may be,
separately as one class, may also waive compliance with any
provision of the Certificate of Designation. The Certificate of
Designation also provides that, except as set forth above, (a) the
creation, authorization or issuance of any shares of securities
ranking junior, senior or pari passu to or with the Senior
Redeemable Preferred Stock or (b) the increase or decrease in the
amount of authorized capital stock of any class, including any
preferred stock, shall not require the consent of the holders of
Senior Redeemable Preferred Stock and shall not be deemed to
affect adversely the rights, preferences, privileges or voting
rights of holders of shares of Senior Redeemable Preferred Stock.
Under Delaware law, holders of preferred stock will be
entitled to vote as a class upon a proposed amendment to the
certificate of incorporation, whether or not entitled to vote
thereon by the certificate of incorporation, if the amendment
would increase or decrease the par value of the shares of such
class, or alter or change the powers, preferences or special
rights of the shares or such class so as to affect them adversely.
Common Stock. Holders of the Common Stock are entitled to
cast one vote per share, and holders of Class A Common Stock and
Class B Common Stock are entitled to cast 15 votes per share on
all matters submitted to a vote of common stockholders. The Common
Stock votes (i) with the Class A Common Stock for the election of
a majority of the directors of the Company and (ii) with the Class
B Common Stock for the remaining directors of the Company, in each
case voting together as a single class. In addition, except as
provided in the Company's Certificate of Incorporation or
otherwise required by law, the affirmative vote of (a) the holders
of a majority of the voting power of the Class A Common Stock and
the Common Stock, voting together as a single class, and (b)
holders of a majority of the voting power of the Class B Common
Stock and the Common Stock, voting together as a single class, is
required to approve all other matters submitted to a vote of the
Company's stockholders.
Approval of the holders of a majority of the voting power of
the Class A Common Stock (so long as the outstanding shares of
Class A Common Stock represent at least 5% of the total of the
outstanding shares of the common stock) and Class B Common Stock
(so long as the outstanding shares of Class B Common Stock
represent at least 5% of the total of the outstanding shares of
the common stock), voting as separate classes, is required in
order to take the following actions: (1) material transactions
outside the ordinary course of business and not provided for in
the Company's business plan; (2) material changes to the Company's
business plan, and material deviations in expenditures, and
material increases in the level of indebtedness for borrowed money
of the Company or incurrence of any guarantees, above the amounts
contemplated by the Company's business plan; (3) subject to
certain exceptions relating to the Senior Redeemable Preferred
Stock, any distributions with respect to or redemptions,
repurchases, acquisitions or other payments in respect of equity
interests of the Company; (4) certain issuances of equity
interests in the Company; (5) any public offering or registration
of securities of the Company; (6) the dissolution, merger,
termination, consolidation or reorganization of the Company; (7)
certain insider or affiliate transactions; (8) any amendment to
certain provisions of the Company's Certificate of Incorporation
or the Company's By-Laws; (9) the creation of any committee of the
Board of Directors; or (10) appointment of the Chief Executive
Officer, if other than one of certain specified individuals.
Under Delaware law, in addition to any other required vote,
the affirmative vote of the holders of a majority of the
outstanding shares of any class of Common Stock is required to
approve any amendment to the Company's Certificate of
Incorporation that would increase or decrease the aggregate number
of authorized shares of any class, increase or decrease the par
value of the shares of any class, or modify or change the powers,
preferences or special rights of the shares of any class so as to
affect such class adversely. As permitted by Delaware law, the
Company's Certificate of Incorporation contains a provision
eliminating the requirement for a separate class vote of the
holders of Common Stock with regard to an amendment which
increases or decreases the number of authorized shares of Common
Stock.
INDENTURE SECURITIES
Item 8. ANALYSIS OF INDENTURE PROVISIONS. Insert at this point the analysis of
indenture provisions required under Section 305(a) (2) of the Trust Indenture
Act of 1939, as amended.
The 12.75% Senior Subordinated Notes, Due 2005 (the "Exchange Notes")
will be issued under a Trust Indenture (the "Indenture") between PanAmSat
International Systems, Inc. (the "Company") and First Trust National
Association, as trustee (the "Trustee"). The following is a summary only of
certain provisions of the Indenture. Capitalized terms used herein and not
otherwise defined will have the definitions assigned to such terms in the
Indenture. This summary does not purport to be complete and is subject to, and
is qualified in its entirety by reference to, the Indenture. A copy of the
Indenture, including the form of Exchange Notes, is included as Exhibit T3C
hereto.
(A) Defaults under the Indenture; Withholding of Notice of any Default.
Each of the following constitutes an "Event of Default" under the
Indenture:
(a) default for 30 days in the payment when due of interest on the
Exchange Notes;
(b) default in the payment when due of principal of or premium on the
Exchange Notes at maturity, upon redemption or otherwise;
(c) default in the performance or breach of covenants relating to
Restricted Payments, Incurrence of Indebtedness and Issuance of Preferred Stock,
Asset Sales or Offer to Repurchase Upon Change of Control;
(d) default by the Company for 60 days after notice from the Trustee or
the Holders of at least 25% in aggregate principal amount of the Exchange Notes
then outstanding in the performance of any other covenant, warranty or other
agreement in this Indenture or the Exchange Notes;
(e) default after the expiration of any applicable grace periods by the
Company under certain material contracts which default would permit termination
of such contracts;
(f) payment default under any Indebtedness for money borrowed by the
Company or any of its Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Subsidiaries) aggregating, together with all such other
defaults, $10.0 million or more;
(g) default under any Indebtedness for money borrowed by the Company or
any of its Subsidiaries (or the payment of which is guaranteed by the Company or
any of its Subsidiaries), which default results in the acceleration of such
Indebtedness aggregating, together with all other payment defaults or maturity
accelerations, $10.0 million or more;
(h) failure by the Company or any of its Subsidiaries to pay final
judgments aggregating in excess of $5.0 million which judgments are not stayed
within 60 days after their entry; or
(i) certain events, including bankruptcy, insolvency or reorganization
of the Company, any Subsidiary Guarantor or any Significant Subsidiary of the
Company pursuant to or within the meaning of Bankruptcy Law.
If a Default or Event of Default occurs and is continuing and if it is
known to a Responsible Officer of the Trustee, the Trustee shall mail to Holders
of Exchange Notes a notice of the Default or Event of Default within 90 days
after it occurs. Except in the case of a Default or Event of Default in payment
of principal of, or premium, if any, or interest on, any Exchange Note, the
Trustee may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of the Holders of the Exchange Notes.
(B) Authentication and Delivery of the Exchange Notes; Application of
Proceeds.
An Officer of the Company shall sign the Exchange Notes for the Company
by manual or facsimile signature. If an Officer whose signature is on an
Exchange Note no longer holds that office at the time the Exchange Note is
authenticated, the Exchange Note shall nevertheless be valid.
An Exchange Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature of the Trustee shall be conclusive
evidence that the Exchange Note has been authenticated under the Indenture. The
form of Trustee's certificate of authentication to be borne by the Exchange
Notes shall be substantially as set forth in Exhibit A to the Indenture. The
Trustee shall, upon a written order of the Company signed by two Officers of the
Company, authenticate Exchange Notes for original issuance.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Exchange Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Exchange Notes whenever
the Trustee may do so.
The Exchange Notes will be issued in exchange for the Preferred Stock.
Consequently, the Company will receive no cash proceeds from the issuance of the
Exchange Notes.
(C) Release and Substitution of Property subject to the Lien of the
Indenture.
The Exchange Notes will be unsecured obligations of the Company.
(D) Satisfaction and Discharge of the Indenture.
The Indenture provides that the Company may elect, through a Board
resolution, to effect either Legal Defeasance or Covenant Defeasance upon
compliance with certain conditions.
Legal Defeasance means that the Company shall be deemed to have paid
and discharged the entire Indebtedness represented by the outstanding Exchange
Notes, and to have satisfied all its other obligations under such Exchange Notes
and the Indenture (and the Trustee, on demand of and 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 under
the Indenture: (a) the rights of Holders of outstanding Exchange Notes to
receive solely from the trust fund described in Section 8.04 of the Indenture,
and as more fully set forth in such Section, payments in respect of the
principal of, and premium, if any, and interest on, such Exchange Notes when
such payments are due, (b) the Company's obligations with respect to such
Exchange Notes under Sections 2.04, 2.06, 2.07, 2.10 and 4.02 of the Indenture,
(c) the rights, powers, trusts, duties and immunities of the Trustee under the
Indenture and the Company's obligations in connection therewith and (d) Article
8 of the Indenture. Subject to compliance with Article 8 of the Indenture, the
Company may exercise its option to effect Legal Defeasance notwithstanding the
prior exercise of its option to effect Covenant Defeasance with respect to the
Exchange Notes.
Upon the Company's election to effect Covenant Defeasance, the Company
shall be released from its obligations under the covenants contained in Sections
4.03, 4.04, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17 and 4.18
of the Indenture and Article 5 of the Indenture with respect to the outstanding
Exchange Notes on and after the date the conditions set forth below are
satisfied, and the Exchange Notes shall thereafter be deemed not "outstanding"
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such covenants,
but shall continue to be deemed "outstanding" for all other purposes. For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
Exchange Notes, 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.
In addition, upon the Company's election to effect Covenant Defeasance, Sections
6.01(d) through 6.01(h) of the Indenture shall not constitute Events of Default.
The following are the conditions to the application of either Legal
Defeasance or Covenant Defeasance to the outstanding Exchange Notes:
(a) 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 Exchange Notes, (a) cash in
U.S. Dollars in an amount, 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, cash in U.S. Dollars in an amount, or (c) a
combination thereof, in such amounts, as will be sufficient, in the opinion
of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge (i) the principal of, and premium, if any, and
interest on, the outstanding Exchange Notes on the stated maturity or on the
applicable redemption date, as the case may be, of such principal or
installment of principal, premium, if any, or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to the
outstanding Exchange Notes on the day on which such payments are due and
payable in accordance with the terms of the Indenture and of such Exchange
Notes; provided that the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such non-callable Government Securities
to said payments with respect to the Exchange Notes;
(b) In the case of an election to effect Legal Defeasance, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United states reasonably acceptable to the Trustee confirming that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (ii) since the date of the 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 Exchange Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance
and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance has not occurred;
(c) In the case of an election to effect Covenant Defeasance, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee to the effect that the
Holders of the outstanding Exchange Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant Defeasance
and will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(d) No Default or Event of Default with respect to the Exchange
Notes shall have occurred and be continuing on the date of such deposit or,
insofar as Section 6.01(i) or 6.01(j) of the Indenture is concerned, at any
time in the period ending on the 91st day after the date of such deposit;
(e) Such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, the Indenture or
any other material agreement or instrument to which the Company is a party
or by which the Company is bound;
(f) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit made by the Company pursuant to its
election to effect either Legal Defeasance or Covenant Defeasance was not
made by the Company with the intent of preferring the Holders over other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others; and
(g) 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 Legal Defeasance or Covenant
Defeasance (as the case may be) have been complied with.
(E) Evidence of Compliance with Conditions and Covenants.
(a) The Company is required to deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether each entity has kept, observed,
performed and fulfilled its obligations under the Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge each entity has kept, observed, performed and fulfilled
each and every covenant contained in the Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of the
Indenture, including, without limitation, a default in the performance or breach
of Section 4.07, Section 4.09, Section 4.10 or Section 4.15 of the Indenture
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action each is taking or proposes to take with respect thereto) and that to the
best of his or her knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal of or interest, if any, on
the Exchange Notes is prohibited or if such event has occurred, a description of
the event and what action each is taking or proposes to take with respect
thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03 of the Indenture shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements,
nothing has come to their attention which would lead them to believe that the
Company has violated any provisions of Article 4 or Article 5 of the Indenture
or, if any such violation has occurred, specifying the nature and period of
existence thereof.
(c) The Company shall, so long as any of the Exchange Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of (i) any Default or Event of Default or (ii) any default under any
Indebtedness referred to in Section 6.01(f) or (g) of the Indenture, an
Officers' Certificate specifying such Default, Event of Default or default and
what action the Company is taking or proposes to take with respect thereto.
(d) Upon any request or application by the Company to the Trustee to
take any action under the Indenture, the Company is required to furnish to the
Trustee:
(i) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(ii) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent and covenants have been satisfied.
Item 9. OTHER OBLIGORS. Give the name and complete mailing address of any
person, other than the applicant, who is an obligor upon the indenture
securities.
There is no person other than the applicant who is an obligor under the
Indenture or otherwise upon the Exchange Notes.
Contents of application for qualification. This application for
qualification comprises:
(a) Pages numbered 1 to 16, consecutively. (1)
(b) The statement of eligibility and qualification of the Trustee under
the Indenture to be qualified on Form T-1.
(c) The following exhibits in addition to those filed as part of the
statement of eligibility and qualification of the Trustee:
Exhibit T3A Restated Certificate of
Incorporation of PanAmSat
International Systems, Inc.,
currently in effect.
Exhibit T3B Restated By-laws of PanAmSat
International Systems, Inc.
Exhibit T3C Form of Indenture to be qualified
(including form of Exchange Note
attached as Exhibit A thereto).
Exhibit T3E Form of Exchange Notice Letter.
Exhibit T3F Cross Reference Sheet showing
the location in the Indenture of the
provisions inserted therein pursuant
to Sections 310 through 318(a),
inclusive, of the Trust Indenture
Act of 1939, as amended (included in
Exhibit T3C hereof).
(1) Pursuant to Rule 309(a) of Regulation ST, requirements as to sequential
numbering shall not apply to this electronic format document.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the applicant, PanAmSat International Systems, Inc., a corporation
organized and existing under the laws of Delaware, has duly caused this
application to be signed on its behalf by the undersigned, thereunto duly
authorized, and its seal to be hereunto affixed and attested all in the City of
Greenwich, State of Connecticut, on the day of , 1997.
PANAMSAT INTERNATIONAL SYSTEMS, INC.
By: /s/ Kenneth N. Heintz
------------------------------
Name: Kenneth N. Heintz
Title: Chief Financial Officer
Attest: /s/ James W. Cuminale
--------------------------
Name: James W. Cuminale
Title: Senior Vice President
and Secretary
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM T-1
Statement of Eligibility Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
FIRST TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 41-0257700
(State of Incorporation) (I.R.S. Employer
Identification No.)
First Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive Offices) (Zip Code)
PANAMSAT INTERNATIONAL SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 06-1407851
(State of Incorporation) (I.R.S. Employer
Identification No.)
One Pickwick Plaza
Greenwich, CT 06830
(Address of Principal Executive Offices) (Zip Code)
12.75% Senior Subordinated Notes, Due 2005 (The "Exchange Notes")
(Title of the Indenture Securities)
<PAGE>
GENERAL
1. General Information Furnish the following information as to the
Trustee.
(a) Name and address of each examining or supervising authority
to which it is subject.
Comptroller of the Currency
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the obligor or any
underwriter for the obligor is an affiliate of the Trustee,
describe each such affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of the Trustee's
knowledge the obligor is not in default under any Indenture for which the
Trustee acts as Trustee.
16. LIST OF EXHIBITS List below all exhibits filed as a part of this
statement of eligibility and qualification.
1. Copy of Articles of Association.*
2. Copy of Certificate of Authority to Commence Business.*
3. Authorization of the Trustee to exercise corporate trust
powers (included in Exhibits 1 and 2; no separate instrument).*
4. Copy of existing By-Laws.*
5. Copy of each Indenture referred to in Item 4. N/A.
6. The consents of the Trustee required by Section 321(b) of the act.
7. Copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority is incorporated by reference to Registration Number 333-24029.
* Incorporated by reference to Registration Number 22-27000.
<PAGE>
NOTE
The answers to this statement insofar as such answers relate to what
persons have been underwriters for any securities of the obligors within three
years prior to the date of filing this statement, or what persons are owners of
10% or more of the voting securities of the obligors, or affiliates, are based
upon information furnished to the Trustee by the obligors. While the Trustee has
no reason to doubt the accuracy of any such information, it cannot accept any
responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, First Trust National Association, an Association organized and existing
under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, and its seal to be hereunto affixed and attested, all
in the City of Saint Paul and State of Minnesota on the 25th day of August,
1997.
FIRST TRUST NATIONAL ASSOCIATION
/s/Richard H. Prokosch
--------------------------------
Richard H. Prokosch
Trust Officer
/s/Kathe M Barrett
- ----------------------------
Kathe M Barrett
Assistant Secretary
<PAGE>
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939,
the undersigned, FIRST TRUST NATIONAL ASSOCIATION hereby consents that reports
of examination of the undersigned by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Dated: August 25, 1997
FIRST TRUST NATIONAL ASSOCIATION
/s/ Richard H. Prokosch
--------------------------------
Richard H. Prokosch
Trust Officer
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PANAMSAT CORPORATION
PanAmSat Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
FIRST: (a) The Corporation's present name is PanAmSat
Corporation.
(b) The date of the filing of its original Certificate
of Incorporation with the Secretary of State of the State of Delaware was
September 21, 1994 under the name of PASAT Corporation.
SECOND: This Amended and Restated Certificate of Incorporation
has been duly adopted pursuant to and in accordance with Sections 242 and 245 of
the General Corporation Law of the State of Delaware and restates and amends the
provisions of the existing Amended and Restated Certificate of Incorporation of
the Corporation.
THIRD: Upon the filing of this Amended and Restated
Certificate of Incorporation, each of the issued and outstanding common shares
of the Corporation shall immediately, and without any action on the part of the
holder thereof, be converted, in a reverse stock split, into a lesser number of
such shares as follows:
(a) The issued and outstanding shares of Class A Common Stock
(as defined below), which, on the date hereof aggregate 49,505,050
shares, shall be converted into an aggregate of 42,544,590 shares of
Class A Common Stock. The number of shares of Class A Common Stock to
which each beneficial owner will be entitled upon effectiveness of the
reverse stock split will be determined by multiplying .859399 by the
number of shares of Class A Common Stock such owner beneficially owns
immediately before the reverse stock split, rounded up or down to a
whole number of shares as determined by the Board of Directors in their
reasonable discretion, without compensation to the beneficial owners
whose fractional shares have been rounded down or from the beneficial
owners whose fractional shares have been rounded up. No fractional
shares shall be issued or issuable in connection with the reverse stock
split.
(b) The issued and outstanding shares of Class B Common Stock
(as defined below), which, on the date hereof aggregate 50,000,000
shares, shall be converted into an aggregate of 42,969,949 shares of
Class B Common Stock.
(c) The issued and outstanding shares of Common Stock (as
defined below), which, on the date hereof aggregate 187,500 shares,
shall be converted into an aggregate of 161,138 shares of Common Stock.
The certificates representing the shares of Class A Common
Stock, Class B Common Stock and Common Stock before the reverse stock split (the
"Old Shares") shall be cancelled by the Corporation upon surrender of such
certificates to the Corporation by the holders thereof and the Corporation shall
issue to the holders thereof new certificates representing the shares of Class A
Common Stock, Class B Common Stock and Common Stock into which the Old Shares
shall have been converted. Until so surrendered, the certificates theretofore
representing the Old Shares shall be deemed to represent the shares of Class A
Common Stock, Class B Common Stock and Common Stock into which the Old Shares
have been converted.
FOURTH: The Certificate of Incorporation of the Corporation is
hereby amended and restated so as to read in its entirety as follows:
ARTICLE ONE
NAME
The name of the Corporation is PANAMSAT CORPORATION (the
"Corporation").
ARTICLE TWO
REGISTERED OFFICE
The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, County of
New Castle 19801, and the name of the registered agent at such address is The
Corporation Trust Company.
ARTICLE THREE
PURPOSES
The nature of the business or purposes of the Corporation is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware, and by such
statement all lawful acts and activities shall be within the purposes of the
Corporation, except for express limitations, if any. The Corporation shall
possess and exercise all the powers and privileges granted by the General
Corporation Law of the State of Delaware (the "General Corporation Law") by any
other law or by this Certificate, together with any powers incidental thereto as
far as such powers and privileges are necessary or convenient to the conduct,
promotion, or attainment of the purposes of the Corporation.
ARTICLE FOUR
CAPITAL STRUCTURE
4.1 Authorized Shares. The total number of shares of capital
stock which the Corporation shall have authority to issue is 620,000,000 shares
consisting of the following classes of capital stock:
(a) 100,000,000 shares of Class A Common Stock, par
value $.01 per share (the "Class A Common Stock");
(b) 100,000,000 shares of Class B Common Stock, par
value $.01 per share (the "Class B Common Stock");
(c) 400,000,000 shares of Common Stock, par value
$.01 per share (the "Common Stock" and, together with the
shares of Class A Common Stock and Class B Common Stock, the
"Common Shares");' and
(d) 20,000,000 shares of Preferred Stock, par value
$.01 per share (the "Preferred Stock").
4.2 Designations, Preferences, etc. The designations,
preferences, powers, qualifications, and special or relative rights, or
privileges of the capital stock of the Corporation shall be as set forth in
ARTICLE FIVE and ARTICLE SIX below:
ARTICLE FIVE
COMMON SHARES
5.1 Identical Rights. Except as herein otherwise expressly
provided in this ARTICLE FIVE, all Common Shares shall be identical and shall
entitle the holders thereof to the same rights and privileges.
5.2 Dividends. (a) Subject to the rights, if any, of the
holders of Preferred Stock then outstanding, the holders of shares of Class A
Common Stock, the holders of shares of Class B Common Stock and the holders of
shares of Common Stock shall be entitled to receive, when, as, and if declared
by the Board of Directors of the Corporation (the "Board of Directors"), out of
the assets of the Corporation which are by law available therefor, dividends
payable either in cash, in property, or in shares of capital stock of the
Corporation. Each holder of Common Shares shall be entitled to share equally in
and to receive, in accordance with the number of Common Shares held by each such
holder, all such dividends, except that if dividends are declared that are
payable in Common Shares, such stock dividends shall be payable at the same rate
on each class of Common Shares and shall be payable only in shares of Class A
Common Stock to holders of Class A Common Stock, in Class B Common Stock to
holders of Class B Common Stock and in Common Stock to holders of Common Stock.
(b) Dividends payable under this Paragraph 5.2 shall be paid
to the holders of record of the outstanding Common Shares as their names shall
appear on the stock register of the Corporation on the record date fixed by the
Board of Directors in advance of declaration and payment of each dividend, or if
no record date is fixed by the Board of Directors, on the record date therefor
established in accordance with the By-Laws or the General Corporation Law. Any
Common Shares issued as a dividend pursuant to this Paragraph 5.2 shall, when so
issued, be duly authorized, validly issued, fully paid and non-assessable, and
free of all liens and charges. The Corporation shall not issue fractions of
Common Shares on payment of such dividend but, at its sole discretion, shall
either (i) issue cash in lieu thereof or (ii) issue a whole number of shares to
such holder of Common Shares rounded up or down in the Corporation's sole
discretion to the nearest whole number, without compensation to the stockholder
whose fractional share has been rounded down or from any stockholder whose
fractional share has been rounded up.
(c) Notwithstanding anything contained herein to the contrary,
no dividends on Common Shares shall be declared by the Corporation's Board of
Directors or paid or set apart for payment by the Corporation at any time that
such declaration, payment, or setting apart is prohibited by applicable law.
5.3 Stock Splits and Combinations. If the Corporation shall in
any manner subdivide (by stock split, reclassification, stock dividend,
recapitalization, or otherwise) or combine (by reverse stock split or otherwise)
the outstanding shares of Class A Common Stock, Class B Common Stock or Common
Stock, then the outstanding shares of each other class of Common Shares shall be
subdivided or combined, as the case may be, to the same extent, share and share
alike.
5.4 Rights Offerings. Without limiting the effect of Paragraph
5.7(b), in the event that rights to subscribe to Common Stock, or options or
warrants to purchase Common Stock, are offered or granted to all of the holders
of Common Stock, provision shall be made to offer or grant simultaneously, to
holders of the Class A Common Stock, rights to subscribe to Class A Common
Stock, or options or warrants to purchase Class A Common Stock, as the case may
be, and to holders of the Class B Common Stock, rights to subscribe to Class B
Common Stock, or options or warrants to purchase Class B Common Stock, as the
case may be, on the same basis as and having identical terms to, those offered
or granted to the holders of Common Stock so that if all such rights, options or
warrants are exercised in their entirety, the number of issued and outstanding
shares of Class A Common Stock and the number of issued and outstanding shares
of Class B Common Stock will be increased in the same proportion as the increase
in the number of shares of issued and outstanding Common Stock.
5.5 Liquidation Rights. Upon any voluntary or involuntary
liquidation, dissolution, or winding-up of the affairs of the Corporation, after
payment shall have been made to holders of outstanding Preferred Stock, if any,
of the full amount to which they are entitled pursuant to this Certificate of
Incorporation and any resolutions that may be adopted from time to time by the
Corporation's Board of Directors, in accordance with ARTICLE SIX below (for the
purpose of fixing the voting rights, designations, preferences, and relative,
participating, optional, or other special rights of any series of Preferred
Stock), the holders of Common Shares shall be entitled, to the exclusion of the
holders of Preferred Stock, if any, to share ratably, in accordance with the
number of Common Shares held by each such holder, without preference or priority
of any one class of Common Shares over the others, in all remaining assets of
the Corporation available for distribution among the holders of Common Shares,
whether such assets are capital, surplus, or earnings. For the purposes of this
Paragraph 5.5, neither the consolidation or merger of the Corporation with or
into any other corporation or business entity in which the stockholders of the
Corporation receive capital stock and/or other securities (including debt
securities) of the acquiring corporation or business entity (or of the direct or
indirect parent of the acquiring corporation or business entity), nor the sale,
lease, or transfer by the Corporation of all or any part of its assets, nor the
reduction of the capital stock of the Corporation, shall be deemed to be a
voluntary or involuntary liquidation, dissolution, or winding up of the
Corporation as those terms are used in this Paragraph 5.5.
5.6 Voting Rights. (a) Each share of Class A Common Stock and
each share of Class B Common Stock shall entitle the holder thereof to fifteen
(15) votes. Each share of Common Stock shall entitle the holder thereof to one
(1) vote.
(b) Except as provided in subparagraphs (d), (e) and (g) of
this Paragraphs 5.6 or as expressly required by applicable law, and subject to
the voting rights, if any, granted to holders of Preferred Stock pursuant to
ARTICLE SIX, all matters with respect to which a vote of the stockholders of the
Corporation is required or permitted under applicable law, this Certificate of
Incorporation or the By-Laws of the Corporation shall be submitted to (i) the
holders of the Class A Common Stock and Common Stock, voting together as a
single class, and (ii) the holders of the Class B Common Stock and Common Stock,
voting together as a single class, and shall be approved only if approved by
both such classes as provided in subparagraph (c).
(c) Except as otherwise required by applicable law, if any
matter is submitted for a vote to holders of any class of capital stock of the
Corporation or to two or more classes of capital stock of the Corporation,
voting as a single class, a majority of the votes of the outstanding shares of
such class or classes, as the case may be, present in person or represented by
proxy, shall constitute a quorum entitled to take action with respect to the
vote on such matter, and the affirmative vote of at least a majority of the
votes of the outstanding shares of such class or classes, as the case may be,
present in person or represented by proxy, shall be the act of the applicable
stockholders of the Corporation.
(d) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors. The number of
directors initially constituting the Board of Directors shall be five with three
of such directors elected by an affirmative vote of a plurality of the votes of
the Class A Common Stock and Common Stock, voting together as a single class
(the "Class A Directors"), and the remaining two directors elected by an
affirmative vote of a plurality of the votes of the Class B Common Stock and the
Common Stock voting together as a single class (the "Class B Directors").
Subject to the next succeeding paragraph of this subparagraph (d), the
affirmative vote of at least a majority of the votes of the outstanding shares
of Class A Common Stock and the outstanding shares of Class B Common Stock, each
voting as separate classes, shall be required to (i) increase or decrease the
number of directors constituting the Board of Directors, (ii) increase or
decrease the number of Class A Directors or (iii) increase or decrease the
number of Class B Directors. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the holders of the Class A Common
Stock and the Common Stock, voting together as a single class, shall be
entitled, exclusive of all other stockholders, to elect at least a majority of
the Corporation's Board of Directors; and, subject to the next succeeding
paragraph of this subparagraph (d), the holders of the Class B Common Stock and
Common Stock, voting together as a single class, shall be entitled, exclusive of
all other stockholders, to elect the remaining directors of the Corporation.
Holders of the Common Shares are not entitled to cumulative votes in the
election of any directors.
If, at any time or upon the occurrence of any event, holders
of the Preferred Stock (or any series thereof) shall be entitled to elect
directors in accordance with the voting rights, if any, granted pursuant to
ARTICLE SIX, then the number of directors constituting the Board of Directors
shall be increased by the number of directors that the holders of the Preferred
Stock are entitled to elect, plus such further number of directors as is
necessary thereafter to permit (i) the holders of the Class B Common Stock and
Common Stock, voting together as a single class, to elect the number of
directors they were entitled to elect without regard to the voting rights of the
Preferred Stock, and (ii) the holders of the Class A Common Stock and the Common
Stock, voting together as a single class, to elect a number of directors that is
one greater than the sum of the number of directors to be elected by the holders
of Class B Common Stock and Common Stock, voting together as a class, and the
number of directors that holders of Preferred Stock are entitled to elect.
Whenever the right of the holders of Preferred Stock to elect directors shall
cease, the number of directors constituting the Board of Directors shall be
restored to the number of directors constituting the Board of Directors, prior
to the time or event which entitled the holders of Preferred Stock to elect
directors.
(e) The affirmative vote of at least a majority of the votes
of the outstanding shares of Class A Common Stock and the Common Stock, voting
together as a single class, shall be required for the removal of any Class A
Director elected pursuant to subparagraph (d) above and the affirmative vote of
at least a majority of the votes of the outstanding shares of Class B Common
Stock and the Common Stock, voting together as a single class, shall be required
for the removal of any Class B Director elected pursuant to subparagraph (d)
above.
(f) In the event of the death, removal or resignation of a
Class A Director elected pursuant to subparagraph (d) above, prior to the
expiration of his or her term, the vacancy on the Board of Directors created
thereby may be filled by a majority of the Class A Directors then in office,
although less than a quorum, and in the event of the death, removal or
resignation of a Class B Director elected pursuant to subparagraph (d) above,
prior to the expiration of his or her term, the vacancy on the Board of
Directors created thereby may be filled by a majority of the Class B Directors
then in office, although less than a quorum.
(g) Notwithstanding anything contained herein to the contrary,
the following actions shall require the affirmative vote of (i) at least a
majority of the votes of the outstanding shares of Class A Common Stock as long
as the outstanding shares of Class A Common Stock represent at least five (5)
percent of the number of outstanding Common Shares and (ii) at least a majority
of the votes of the outstanding shares of Class B Common Stock as long as the
outstanding shares of Class B Common Stock represents at least five (5) percent
of the number of outstanding Common Shares:
(i) the engagement by the Corporation or any of its
subsidiaries in any material transaction or entry
into any material agreement which, in either
case, is outside of the ordinary course of
business and is not specifically contemplated by
the Business Plan (as such term is defined
below);
(ii) any material change to the Business Plan or any
expenditures by the Corporation or its
subsidiaries which Materially Deviate from the
Business Plan (as such term is defined below);
any material increase in the level of
indebtedness for borrowed money of the
Corporation or any of its subsidiaries (including
capitalized lease obligations and sale and
leaseback transactions), or incurrence of any
guaranties, above the amounts contemplated by the
Business Plan;
(iii) any distribution with respect to any Common
Shares or other equity interests in the
Corporation or any purchases, redemptions,
acquisitions or other payments (whether in cash,
property or in obligations or securities) in
respect thereof, other than distributions of
shares of the 23 3/4% Mandatorily Exchangeable
Senior Redeemable Preferred Stock of the Company
(the "Senior Preferred Stock") paid as dividends
with respect to the Senior Preferred Stock in
accordance with the terms thereof;
(iv) any issuance of any Common Shares or other equity
interests in the Corporation or any subsidiary of
the Corporation or any phantom equity interest in
the Corporation or any subsidiary of the
Corporation or in any profits, income, cash flow
or other amounts of the Corporation or any
subsidiary of the Corporation or any options or
conversion or other rights to acquire any of the
foregoing, other than distributions of shares of
the Senior Preferred Stock paid as dividends with
respect to the Senior Preferred Stock in
accordance with the terms thereof;
(v) any public offering of the securities of the
Corporation or any subsidiary of the Corporation;
(vi) the dissolution, liquidation or termination of
the Corporation, including, for purposes of this
Paragraph 5.6, without limitation, any merger,
consolidation or similar transaction including
the Corporation or any of its subsidiaries; or
any reorganization of the Corporation;
(vii) any transaction, agreement or arrangement
involving the Corporation in which any holder of
Class A Common Stock or Class B Common Stock or
any Affiliate (as such term is defined below) of
such holder has any financial interest, directly
or indirectly;
(viii) any amendment to this Certificate of
Incorporation or the By-Laws of the Corporation;
(ix) creation of any Committee of the Board of
Directors; or
(x) the appointment of the Chief Executive Officer of
the Corporation if it is a person other than
Reynold V. Anselmo, Frederick A. Landman or
Lourdes Saralegui.
As used in this subparagraph (g) of this Paragraph 5.6, (i)
the term "Business Plan" shall mean the Business Plan dated December 17, 1992 of
PanAmSat, L.P., the predecessor to the Corporation, which has been authorized
and adopted by the Board of Directors of the Corporation pursuant to a
resolution thereof dated February 28, 1995 and is deemed to incorporate such
additions and/or modifications as are described in the Corporation's
Registration Statement on Form S-1 filed on October 6, 1994 (No. 33-84836), as
amended through December 31, 1994, and as such Business Plan may thereafter be
amended or superseded from time to time in accordance with this Paragraph
5.6(g); (ii) the term "Materially Deviate from the Business Plan" has the
meaning set forth in a resolution adopted by the Board of Directors of the
Corporation on February 28, 1995 and may be amended or superseded from time to
time in accordance with this Paragraph 5.6(g); and (iii) the term "Affiliate"
means, with respect to any person, any other person directly or indirectly,
through one or more intermediaries, controlling, controlled by, or under common
control with such person, or any Family Member thereof. The term "control," as
used in the immediately preceding sentence, means, with respect to any person,
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of the controlled person. "Family
Member," as applied to any individual, means (i) his spouse, children and their
spouses, grandchildren and their spouses, grandparents, parents, brothers,
sisters and spouse's brothers and sisters, (ii) any trust all of the beneficial
interest in which is held by such individual or one or more of the individuals
referred to in clause (i) and (iii) a corporation or other entity all of the
beneficial ownership of which is held by such individual, one or more of the
individuals referred to in clause (i), any trust referred to in clause (ii) or
any other corporation or other entity all of the beneficial ownership of which
is held by the individuals, trusts and companies referred to in this clause
(iii).
(h) The affirmative vote of (i) a majority of the votes of the
outstanding shares of Class A Common Stock and the Common Stock, voting as a
single class, and (ii) a majority of the votes of the outstanding shares of
Class B Common Stock and the Common Stock, voting as a single class, shall be
required to increase or decrease (but not below the number of shares then
outstanding) the number of authorized shares of Common Stock. Such vote shall
satisfy the vote of stockholders required under Section 242(b)(2) of the General
Corporation Law and shall be in lieu of a vote of the holders of the outstanding
shares of Common Stock as a class which might otherwise be required by such
subsection.
5.7 Preemptive or Subscription Rights. (a) Following the
initial issuance of shares of Class A Common Stock and Class B Common Stock, the
Corporation may not, without the affirmative vote of at least a majority of the
votes of the outstanding shares of Common Stock, voting separately as a single
class, exclusive of all other stockholders, issue shares of Class A Common Stock
or Class B Common Stock except (i) pursuant to the terms of subparagraph (b) of
this Paragraph 5.7 or (ii) as authorized under Paragraphs 5.2, 5.3, 5.4 or 5.8
of this Certificate of Incorporation.
(b) If, and when, shares of Common Stock are issued by the
Corporation, otherwise than in accordance with Paragraphs 5.2, 5.3, 5.4 or 5.8
of this Certificate of Incorporation, the holders of the Class A Common Stock
and the holders of the Class B Common Stock shall be entitled to purchase, in
each instance, at the net price per share received by the Corporation for the
Common Stock, if and to the extent necessary to maintain, after giving effect to
such issuance, 51% of the total voting power of the Class A Common Stock and the
Common Stock, voting together as a single class, in the case of the Class A
Common Stock, and 51% of the total voting power of the Class B Common Stock and
the Common Stock, voting together as a single class, in the case of the Class B
Common Stock.
(c) The holders of the Class A Common Stock will lose their
rights under subparagraph (b) of this Paragraph 5.7 at such time as the number
of shares of Class A Common Stock outstanding multiplied by 15 is not greater
than the number of shares of Common Stock outstanding plus 1. The holders of the
Class B Common Stock will lose their rights under subparagraph (b) of this
Paragraph 5.7 at such time as the number of shares of Class B Common Stock
outstanding multiplied by 15 is not greater than the number of shares of Common
Stock outstanding plus 1.
(d) Notwithstanding anything contained herein to the contrary,
any issuance of any shares of Class A Common Stock or Class B Common Stock
pursuant to Paragraph 5.7(b) must comply with the General Corporation Law and
all other applicable laws, rules and regulations, including without limitation,
the Securities Act of 1933, the Securities Exchange Act of 1934 and the rules of
any stock exchange or market on which any of the Common Shares are listed or
quoted.
5.8 Conversion Rights. (a) Automatic Conversion. Each share of
Class A Common Stock and Class B Common Stock shall convert automatically into
one fully paid and non-assessable share of Common Stock (i) upon its sale, gift,
or other transfer, voluntary or involuntary, unless such sale, gift or other
transfer is (A) to a Permitted Transferee (as such term is defined below), or
(B) in accordance with Paragraph 5.9 herein or (ii) if such conversion is
required under the applicable rules and regulations of the Federal Communication
Commission or applicable law. Each event of automatic conversion shall be
referred to hereinafter as an Event of Automatic Conversion.
For purposes of this Paragraph 5.8, a Permitted Transferee
shall be:
(a) (A) any past or present officer or employee of the
Corporation or any of its subsidiaries, or any of their respective
predecessors from time to time (an "Employee"); (B) the estate of an
Employee; (C) the spouse or the former spouse of an Employee; (D) any
lineal descendant of an Employee, any spouse of any such lineal
descendant, an Employee's grandparent, parent, brother or sister, or an
Employee's spouse's brother or sister; (E) any guardian or custodian
(including a custodian for purposes of the Uniform Gift to Minors Act
or Uniform Transfers to Minors Act) for, or any conservator or other
legal representative of, one or more Permitted Transferees; or (F) any
trust or savings or retirement account, including an individual
retirement account for purposes of federal income tax laws, whether or
not involving a trust, principally for the benefit of one or more
Permitted Transferees, including any trust in respect of which a
Permitted Transferee has any general or special testamentary power of
appointment or general or special non-testamentary power of appointment
which is limited to any other Permitted Transferee;
(b) the Corporation;
(c) subject to compliance with applicable rules and
regulations of the Federal Communications Commission, Grupo Televisa,
S.A. and its direct and indirect wholly-owned subsidiaries (including
subsidiaries that have issued directors qualifying shares), including
Univisa Satellite Holdings Inc. ("USHI");
(d) any employee benefit plan or trust thereunder sponsored by
the Corporation or any of its subsidiaries;
(e) any trust principally for the benefit of one or more of
the individuals, persons, firms or entities ("Persons") referred to in
(a) through (d) above;
(f) any corporation, partnership or other entity if all of the
beneficial ownership is held by one or more of the Persons referred to
in (a) through (e) above;
(g) any successor to any of the Persons referred to in (a)
through (f) above pursuant to a merger, consolidation, transfer of all
or substantially all of such Person's assets or other similar
transaction; and
(h) any voting trust for the benefit of one or more of the
Persons referred to in (a) through (g) above.
Notwithstanding anything to the contrary set forth herein, any
holder of Class A Common Stock or Class B Common Stock may pledge his or its
shares of Class A Common Stock or Class B Common Stock to a pledgee pursuant to
a bona fide pledge of such shares as collateral security for indebtedness due to
the pledgee, provided that such shares may not be transferred to or registered
in the name of the pledgee unless such pledgee is a Permitted Transferee. In the
event of foreclosure or other similar action by a pledgee who is not a Permitted
Transferee, such pledged shares of Class A Common Stock or Class B Common Stock
shall convert automatically, without any act or deed on the part of the
Corporation or any other person, into shares of Common Stock as provided in this
Paragraph 5.8, unless within five business days after such foreclosure or
similar event such converted shares are returned to the pledgor or transferred
to a Permitted Transferee.
(b) Automatic Conversion Procedure. Promptly upon the
occurrence of an Event of Automatic Conversion such that shares of Class A
Common Stock or Class B Common Stock are converted automatically into Common
Stock, the holder of such shares shall deliver to the office of the Corporation
or any transfer agent for the Common Stock (i) the certificate or certificates
representing such shares of Class A Common Stock or Class B Common Stock, duly
endorsed in blank or accompanied by proper instruments of transfer, and (ii)
written notice to the Corporation (A) stating that the shares are being
converted pursuant to an Event of Automatic Conversion into Common Stock as
provided in Paragraph 5.8(a) of this ARTICLE FIVE, (B) specifying the Event of
Automatic Conversion (and, if the occurrence of such event is within the control
of the transferor, stating the transferor's intent to effect an Event of
Automatic Conversion), (C) identifying the number of shares of Class A Common
Stock or Class B Common Stock, as the case may be, being converted, and (D)
setting out the name or names (with addresses) and denominations in which the
certificates or certificates for Common Stock shall be issued and including
instructions for delivery thereof. Delivery of such notice together with the
certificates representing such shares of Class A Common Stock or Class B Common
Stock shall obligate the Corporation to issue certificates representing such
shares of Common Stock. Thereupon the Corporation or its transfer agent shall
promptly issue and deliver at such stated address to such holder or to the
transferee a certificate or certificates for the number of shares of Common
Stock to which such holder or transferee is entitled in the name of such holder,
the designee of such holder or transferee, all specified in such notice.
To the extent permitted by law, conversion pursuant to an
Event of Automatic Conversion shall be deemed to have been effected as of the
date on which the Event of Automatic Conversion occurred (such time being the
"Conversion Time"). The person entitled to receive the Common Stock issuable
upon such conversion shall be treated for all purposes as the record holder of
such Common Stock at and as of the Conversion Time, and the right of such person
as a holder of Class A Common Stock or Class B Common Stock, as the case may be,
shall cease and terminate at and as of the Conversion Time, in each case without
regard to any failure by the holder to deliver the certificates or the notice
required by this subparagraph (b).
(c) Voluntary Conversion. Each share of Class A Common Stock
and each share of Class B Common Stock shall be convertible, at the option of
its holder, not one fully paid and non-assessable share of Common Stock at any
time.
(d) Voluntary Conversion Procedure. At the time of a voluntary
conversion, the holder of Class A Common Stock or Class B Common Stock shall
deliver to the office of the Corporation or any transfer agent for the Common
Stock (i) the certificate or certificates representing the Class A Common Stock
or Class B Common Stock to be converted, duly endorsed in blank or accompanied
by proper instruments of transfer, and (ii) written notice to the Corporation
(A) stating that the shares are being converted voluntarily by such holder, (B)
identifying the number of shares of Class A Common Stock or Class B Common
Stock, as the case may be, being converted, and (C) setting out the name or
names (with addresses) and denominations in which the certificate or
certificates for the Common Stock shall be issued and including instructions for
delivery thereof. Delivery of such notice together with the certificates
representing the Class A Common Stock or Class B Common Stock shall obligate the
Corporation to issue certificates representing such shares of Common Stock.
Thereupon the Corporation or its transfer agent shall promptly issue and deliver
at such stated address to such holder or to the transferee a certificate or
certificates for the number of shares of Common Stock to which such holder or
transferee is entitled in the name of such holder, the designee of such holder
or transferee, all as specified in such notice. Conversion shall be deemed to
have been effected at the close of business on the date when such delivery is
made to the Corporation of the shares to be converted, and the person exercising
such voluntary conversion shall be deemed to be the holder of record of the
number of shares of Common Stock issuable upon such conversion at such time.
(e) Unconverted Shares; Notice Required. In the event of the
conversion of less than all of the Class A Common Stock or Class B Common Stock,
as the case may be, evidenced by a certificate surrendered to the Corporation in
accordance with the procedures of Paragraph 5.8(c) or 5.8(d), the Corporation
shall execute and deliver to or upon the written order of the holder of such
certificate, without charge to such holder, a new certificate evidencing the
number of shares of Class A Common Stock or shares of Class B Common Stock not
converted. Class A Common Stock or Class B Common Stock shall not be converted
unless the Corporation shall have received from the holder thereof the written
notice described herein.
(f) Reissue of Shares. Shares of Class A Common Stock and
Class B Common Stock that are converted into Common Stock as provided herein
shall be retired and cancelled and shall not be reissued.
(g) Reservation. The Corporation hereby reserves and shall at
all times reserve and keep available, out of its authorized and unissued Common
Stock, for the purposes of effecting conversions, such number of duly authorized
Common Stock as shall from time to time be sufficient to effect the conversion
of all outstanding Class A Common Stock and Class B Common Stock. All of the
Common Stock so issuable shall, when so issued, be duly and validly issued,
fully paid and non-assessable, and free from liens and charges with respect to
the issue. The Corporation will take all such action as may be necessary to
ensure that all such Common Stock may be so issued without violation of any
applicable law or regulation, or of any requirements of any stock exchange or
market on which any of the Common Shares are listed or quoted.
5.9 Permitted Transfers of Class A Common Stock and Class B
Common Stock. Holders of shares of Class A Common Stock and Class B Common Stock
may transfer such shares to a transferee that is not a Permitted Transferee,
without such transfer being an Event of Automatic Conversion, if (i) the holders
of a majority of the votes of Class A Common Stock and Class B Common Stock,
each voting as separate classes, approve the transfer and (ii) such transferee
(A) makes a tender offer, in accordance with Section 14(d) of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder, or
any successor provision or provisions, to acquire any and all shares of Common
Stock (including shares which may be issued upon conversion of shares of Class A
Common Stock and Class B Common Stock), at the same price per share as paid by
the transferee for the shares of Class A Common Stock or Class B Common Stock,
as the case may be, and (B) purchases any and all shares of Common Stock
tendered thereunder prior to consummation of the transfer of the Class A Common
Stock or Class B Common Stock. A transferee that is not a Permitted Transferee
shall consummate the purchase of Class A Common Stock or Class B Common Stock,
as the case may be, simultaneously with or within thirty days of the
consummation of the tender offer for any and all shares of Common Stock made in
accordance with this Paragraph 5.9.
5.10 Consideration on Merger, Consolidation, etc. In any
merger, consolidation, or business combination, the consideration to be received
per share by the holders of Class A Common Stock, Class B Common Stock, and
Common Stock must be identical for each class of stock, except that in any such
transaction in which shares of common equity are to be distributed, such shares
may differ as to voting rights to the extent that voting rights differ among the
Class A Common Stock, the Class B Common Stock and the Common Stock as provided
in this Certificate of Incorporation.
ARTICLE SIX
PREFERRED STOCK
Shares of Preferred Stock may be issued from time to time in
one or more series as may be determined by the Board of Directors. Subject to
the provisions of this Certificate of Incorporation and this ARTICLE SIX, the
Board of Directors is authorized to determine or alter the rights, preferences,
privileges, and restrictions granted to or imposed upon any wholly unissued
series of Preferred Stock and, within the limits and restrictions stated in any
resolution or resolutions of the Board of Directors originally fixing the number
of shares constituting any such series, to increase or decrease (but not below
the number of shares of such series then outstanding) the number of shares of
any such series subsequent to the issue of shares of that series.
Authorized and unissued shares of Preferred Stock may be
issued with such designations, voting powers, preferences, and relative,
participating, optional or other special rights, and qualifications, limitations
and restrictions on such rights, as the Board of Directors may authorize by
resolutions duly adopted prior to the issuance of any shares of a series of
Preferred Stock, including, but not limited to: (i) the distinctive designation
of each series and the number of shares that will constitute such series; (ii)
the voting rights, if any, of shares of such series and whether the shares of
any such series having voting rights shall have multiple votes per share; (ii)
the dividend rate on the shares of such series, any restriction, limitation, or
condition upon the payment of such dividends, whether dividends shall be
cumulative and the dates on which dividends are payable; (iv) the prices at
which, and the terms and conditions on which, the shares of such series may be
redeemed, if such shares are redeemable; (v) the purchase or sinking fund
provisions, if any, for the purchase or redemption of shares of such series;
(vi) any preferential amount payable upon shares of such series in the event of
the liquidation, dissolution, or winding-up of the Corporation, or the
distribution of its assets; and (vii) the prices or rates of conversion at
which, and the terms and conditions on which, the shares are convertible.
Any and all shares issued and for which full consideration has
been paid or delivered shall be deemed fully paid stock, and the holder thereof
shall not be liable for any further payment thereon.
ARTICLE SEVEN
BY-LAWS
Subject to Section 5.6(g) of the Certificate of Incorporation,
the Board of Directors shall have the power to make, alter, amend, or repeal the
By-Laws of the Corporation, except to the extent that the By-Laws otherwise
provide.
ARTICLE EIGHT
AMENDMENTS
The Corporation reserves the right to rescind, amend, alter,
change or repeal any provision contained in this Certificate of Incorporation
form the time and at any time in the manner now or hereafter prescribed in this
Certificate of Incorporation and by the laws of the State of Delaware, and all
rights herein conferred upon stockholders are granted subject to such
reservation.
ARTICLE NINE
INDEMNIFICATION
The Corporation shall, to the fullest extent permitted by
Delaware law, indemnify any person (the "Indemnitee") who is or was involved in
any manner (including, without limitation, as a party or a witness) in any
threatened, pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative (including,
without limitation, any action, suit or proceeding brought by or in the right of
the Corporation to procure a judgment in its favor) (a "Proceeding") by reason
of the fact that the Indemnitee is or was a director or officer of the
Corporation, or is or was serving another entity in such capacity at the request
of the Corporation, against all expenses and liabilities actually and reasonably
incurred by the Indemnitee in connection with the defense or settlement of such
Proceeding (including attorneys' fees).
ARTICLE TEN
LIMITATION OF LIABILITY OF DIRECTORS
A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, provided, that nothing contained in this ARTICLE
TEN shall eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit.
If the General Corporation Law is hereafter amended to
authorize the further elimination or limitation of the liability of a director,
then the liability of a director of the Corporation shall be eliminated or
limited to the fullest extent permitted by the General Corporation Law, as so
amended.
This ARTICLE TEN may not be amended or modified to increase
the liability of a director, or repealed, except upon the affirmative vote of at
least a majority of the votes of the holders of the Class A Common Stock and
Common Stock, voting together as a single class, and the Class B Common Stock
and Common Stock, voting together as a single class. No such amendment,
modification, or repeal shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or with respect to any
acts or omissions of such director occurring prior to such amendment,
modification, or repeal.
The provisions of this ARTICLE TEN shall not be deemed to
limit or preclude indemnification of a director by the Corporation for any
liability of a director that has not been eliminated by the provisions of this
ARTICLE TEN.
ARTICLE ELEVEN
BUSINESS COMBINATIONS
The Corporation expressly elects not to be governed by Section
203 of the General Corporation Law.
ARTICLE TWELVE
NO WRITTEN BALLOT
Elections of directors need not be by written ballot unless
the By-Laws of the Corporation shall otherwise provide.
IN WITNESS WHEREOF, PanAmSat Corporation has caused this
Amended and Restated Certificate of Incorporation to be executed by Patrick J.
Costello, the Chief Financial Officer of the Corporation, this 15th day of
September, 1995.
PANAMSAT CORPORATION
By: /s/ Patrick J Costello
----------------------
Patrick J. Costello
Chief Financial Officer
<PAGE>
Certificate of Correction
of
Amended and Restated Certificate of Incorporation
of
PanAmSat Corporation
PanAmSat Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies
for purposes of this Certificate of Correction under Section 103(f) of Delaware
General Corporation Law as follows:
FIRST: The Corporation filed an Amended and Restated
Certificate of Incorporation with the Secretary of State of Delaware on
September 15, 1995.
SECOND: The number of shares of Common Stock, par value $.01
per share, into which the 187,500 issued and outstanding shares of Common Stock
were converted through the reverse stock split effected on September 15, 1995,
should have been 161,137 shares, but was inaccurately set forth as 161,138
shares, in clause (c) of Paragraph THIRD of the Amended and Restated Certificate
of Incorporation filed on September 15, 1995.
THIRD: As so corrected, clause (c) of Paragraph THIRD of the
Amended and Restated Certificate of Incorporation reads as follows:
(c) The issued and outstanding shares of Common Stock (as
defined below) which, on the date hereof aggregate 187,500 shares,
shall be converted into an aggregate of 161,137 shares of Common Stock.
IN WITNESS WHEREOF, PanAmSat Corporation has caused this Certificate of
Correction of its Amended and Restated Certificate of Incorporation to be
executed by James W. Cuminale, the General Counsel of the Corporation, this ___
day of September, 1995.
PANAMSAT CORPORATION
By: /s/ James W. Cuminale
----------------------
James W. Cuminale
General Counsel
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 08:50 AM 05/16/1997
971160007 - 2436973
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PANAMSAT CORPORATION
PanAmSat Corporation, a Delaware corporation (the
"Corporation"), does hereby certify:
FIRST: That ARTICLE ONE of the Amended and Restated
Certificate of Incorporation of the Corporation is hereby amended to read in
its entirety as follows:
NAME
The name of the Corporation is PANAMSAT INTERNATIONAL
SYSTEMS, INC. (the "Corporation").
SECOND: That ARTICLE FIVE, paragraph 5.8(a) of the Amended
and Restated Certificate of Incorporation of the Corporation is hereby amended
to read in its entirety as follows:
5.8. Conversion Rights. (a) Automatic Conversion.
Each share of Class A Common Stock and Class B Common Stock
shall convert automatically into one fully paid and
non-assessable share of Common Stock (i) upon its sale, gift,
or other transfer, voluntary or involuntary, unless such sale,
gift or other transfer is (A) to a Permitted Transferee (as
such term is defined below), or (B) in accordance with
Paragraph 5.9 herein or (ii) if such conversion is required
under the applicable rules and regulations of the Federal
Communication Commission or applicable law; provided, however,
that no such conversion shall occur as a result of the
consummation of any of the transactions contemplated by the
Stock Contribution and Exchange Agreement, dated as of
September 20, 1996 (as the same may be amended or otherwise
modified pursuant to the terms thereof, the "Stock
Contribution and Exchange Agreement"), by and among Grupo
Televisa, S.A., a corporation organized under the laws of
Mexico, Satellite Company, L.L.C., a Nevada limited liability
company, Magellan International, Inc., a Delaware corporation
("Magellan"), and Hughes Communications, Inc., a California
corporation ("HCI"), the Agreement and Plan of Reorganization,
dated as of September 20, 1996 (as the same may be amended or
otherwise modified pursuant to the terms thereof, the
"Reorganization Agreement"), among HCI, Hughes Communications
Galaxy, Inc., a California corporation, Hughes Communications
Satellite Services, Inc., a California corporation, Hughes
Communications Services, Inc., a California corporation,
Hughes Communications Carrier Services, Inc., a California
corporation, Hughes Communications Japan, Inc., a California
corporation, Magellan and the Corporation, or the Agreement
and Plan of Merger dated as of April 4, 1997 (as the same may
be amended or otherwise modified pursuant to the terms
thereof, the "Merger Agreement") by and among the Corporation,
PAS Merger Corp., a Delaware corporation ("Merger Sub"), and
Magellan, entered into in connection with the Reorganization
Agreement, and the related agreements thereto. Each event of
automatic conversion shall be referred to hereinafter as an
Event of Automatic Conversion.
For purposes of this Paragraph 5.8, a Permitted
Transferee shall be:
(a) (A) any past or present officer or
employee of the Corporation or any of its
subsidiaries, or any of their respective predecessors
from time to time (an "Employee"); (B) the estate of
an Employee; (C) the spouse or the former spouse of
an Employee; (D) any lineal descendent of an
Employee, any spouse of any such lineal descendent,
an Employee's grandparent, parent, brother or sister,
or an Employee's spouse's brother or sister; (E) any
guardian or custodian (including a custodian for
purposes of the Uniform Gift to Minors Act or Uniform
Transfers to Minors Act) for, or any conservator or
other legal representative of, one or more Permitted
Transferees; or (F) any trust or savings or
retirement account, including an individual
retirement account for purposes of federal income tax
laws, whether or not involving a trust, principally
for the benefit of one or more Permitted Transferees,
including any trust in respect of which a Permitted
Transferee has any general or special testamentary
power of appointment or general or special
non-testamentary power of appointment which is
limited to any other Permitted Transferee;
(b) the Corporation;
(c) subject to compliance with
applicable rules and regulations of the Federal
Communications Commission, Grupo Televisa, S.A. and
its direct and indirect wholly-owned subsidiaries
(including subsidiaries that have issued directors
qualifying shares), including Univirsa Satellite
Holdings, Inc. ("USHI");
(d) any employee benefit plan or trust
thereunder sponsored by the Corporation or any of its
subsidiaries;
(e) any trust principally for the
benefit of one or more of the individuals, persons,
firms or entities ("Persons") referred to in (a)
through (d) above;
(f) any corporation, partnership or
other entity if all of the beneficial ownership is
held by one or more of the Persons referred to in (a)
through (e) above;
(g) any successor to any of the Persons
referred to in (a) through (f) above pursuant to a
merger, consolidation, transfer of all or
substantially all of such Person's assets or other
similar transaction; and
(h) any voting trust for the benefit of
one or more of the Persons referred to in (a) through
(g) above.
Notwithstanding anything to the contrary set forth
herein, any holder of Class A Common Stock or Class B Common
Stock may pledge his or its shares of Class A Common Stock or
Class B Common Stock to a pledgee pursuant to a bona fide
pledge of such shares as collateral security for indebtedness
due to the pledgee, provided that such shares may not be
transferred to or registered in the name of the pledgee unless
such pledgee is a Permitted Transferee. In the event of
foreclosure or other similar action by a pledgee who is not a
Permitted Transferee, such pledged shares of Class A Common
Stock or Class B Common Stock shall convert automatically,
without any act or deed on the part of the Corporation or any
other person, into shares of Common Stock as provided in this
Paragraph 5.8, unless within five business days after such
foreclosure or similar event such converted shares are
returned to the pledgor or transferred to a Permitted
Transferee.
THIRD: That ARTICLE FIVE, paragraph 5.10 of the
Amended and Restated Certificate of Incorporation of the Corporation is hereby
amended to read in its entirety as follows:
5.10. Consideration on Merger, Consolidation, etc. In
any merger, consolidation, or business combination, the
consideration to be received per share by the holders of Class
Common Stock, Class B Common Stock and Common Stock must be
identical for each class of stock, except that in any such
transaction in which shares of common equity are to be
distributed, such shares may differ as to voting rights to the
extent that voting rights differ among the Class A Common
Stock, the Class B Common Stock and the Common Stock as
provided in this Amended and Restated Certificate of
Incorporation; provided; however, that neither this Paragraph
5.10 nor any other provision of this ARTICLE FIVE shall in any
way limit, prevent or restrict the Corporation from emerging
into, consummating or performing, or otherwise apply to, the
transactions contemplated by the Stock Contribution and
Exchange Agreement, the Reorganization Agreement or the Merger
Agreement and the agreements related thereto, including the
consummation of the merger of Merger Sub into the Corporation
contemplated thereby.
FOURTH: That said amendment was duly adopted in
accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be signed by its duly authorized officer, this 16th day of May,
1997.
PANAMSAT CORPORATION
/s/ James W. Cuminale
------------------------------
Name: James W. Cuminale
Title: Senior Vice President
and General Counsel
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 08:52 AM 05/16/1997
971160011 - 2436973
CERTIFICATE OF MERGER
OF
PAS MERGER CORP.
WITH AND INTO
PANAMSAT INTERNATIONAL SYSTEMS, INC.
Pursuant to Section 251 of the
Delaware General Corporation Law
The undersigned corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That the name and state of incorporation of each of
the constituent corporations in the merger is as follows:
State of
Name Incorporation
---- -------------
PAS Merger Corp. Delaware
PanAmSat International Systems, Inc. Delaware
SECOND: That an Agreement and Plan of Merger between PAS
Merger Corp. ("Merger Sub"), PanAmSat International Systems, Inc. ("PAS") and
Magellan International, Inc. (now known as "PanAmSat Corporation") has been
approved, adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with the requirements of Section 251 of
the General Corporation Law of the State of Delaware.
THIRD: That PAS shall be the surviving corporation (the
"Surviving Corporation").
FOURTH: That the certificate of incorporation of PAS will
be the certificate of incorporation of the Surviving Corporation.
FIFTH: That the executed Agreement and Plan of Merger is
on file at an office of the Surviving Corporation. The address of such office
is:
PanAmSat International Systems, Inc.
One Pickwick Plaza
Greenwich, Connecticut 06830
SIXTH: That a copy of the Agreement and Plan of Merger
will be furnished by the Surviving Corporation, on request and without cost, to
any stockholder of any constituent corporation.
In witness whereof, PAS has caused this Certificate of Merger
to be executed by its duly authorized officer this ____ day of May, 1997.
PANAMSAT INTERNATIONAL SYSTEMS,
INC.
By: /s/ Frederick A. Landman
----------------------------
Name: Frederick A. Landman
Title: President
BY-LAWS OF
PANAMSAT CORPORATION
(A Delaware Corporation)
ARTICLE I
Offices
SECTION 1. Registered Office. The registered office of the
Corporation within the State of Delaware is 1209 Orange Street, in the City of
Wilmington, County of New Castle, 19801.
SECTION 2. Principal Office and Other Offices. The principal
place of business of the Corporation may be located in the State of Connecticut
or such other state as the Board of Directors may from time to time determine.
The Corporation may have other offices, either within or without the States of
Delaware and Connecticut, at such place or places as the Board of Directors
shall from time to time determine or as shall be necessary or appropriate for
the conduct of the business of the Corporation.
ARTICLE II
Meetings of Stockholders
SECTION 1. Place of Meetings. All meetings of the stockholders
for the election of directors or for any other purpose shall be held at any such
place, either within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors and stated in the notice of meeting
or in a duly executed waiver thereof.
SECTION 2. Annual Meeting. The annual meeting of stockholders
of the Corporation shall be held within one hundred fifty days after the end of
each fiscal year of the Corporation, on such date and at such time as shall be
designated from time to time by the Board of Directors and stated in the notice
of meeting or in a duly executed waiver thereof.
SECTION 3. Special Meetings. Special meetings of stockholders,
unless otherwise prescribed by statute, may be
<PAGE>
called at any time by the Chairman of the Board, the President, the Board of
Directors or any officer designated by the Board of Directors.
SECTION 4. Notice of Meetings. Except as otherwise expressly
required by the General Corporation Law of the State of Delaware, written notice
of each annual and special meeting of stockholders stating the date, place and
hour of the meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be given to each stockholder of
record entitled to vote at such meeting not less than ten nor more than sixty
days before the date of the meeting. Business transacted at any special meeting
of stockholders shall be limited to the purposes stated in the notice. Notice
shall be given personally or by mail and, if by mail, shall be sent in a postage
prepaid envelope, addressed to the stockholder at his address as it appears on
the records of the Corporation, or, if he shall have filed with the Secretary of
the Corporation a written request that notices to him be mailed to some other
address, then directed to him at such other address. Notice by mail shall be
deemed given at the time when the notice is deposited in the United States mail,
postage prepaid. Notice of any meeting shall not be required to be given to any
person who attends such meeting, except when such person attends the meeting in
person or by proxy for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened, or who, either before or after the meeting, shall submit a
signed written waiver of notice, in person or by proxy. Neither the business to
be transacted at, nor the purpose of, an annual or special meeting of
stockholders need be specified in any written waiver of notice.
SECTION 5. List of Stockholders. The officer who has charge of
the stock ledger of the Corporation shall prepare and make, at least ten days
before each meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in, alphabetical order, showing the
address of and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city, town or
village where the meeting is to be held, which place shall be specified in the
notice of meeting, or, if not specified, at the place where the
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meeting is to be held. The list shall be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
SECTION 6. Quorum, Adjournments. Except as otherwise provided
by law, the Certificate of Incorporation or these By-Laws, the presence, in
person or by proxy, of the holders of record of a majority of the votes of the
outstanding shares entitled to vote at a meeting of stockholders shall
constitute a quorum for the transaction of business at such meeting. If,
however, such quorum is not present at any meeting of stockholders, the
stockholders present in person or by proxy shall have the power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented by proxy. Notice of any
adjourned meeting of the stockholders of the Corporation need not be given if
the place, date and hour thereof are announced at the meeting at which the
adjournment is taken and provided, however, if the adjournment is for more than
thirty days, or if after the adjournment a new record date for the adjourned
meeting is fixed by the Board of Directors, a notice of the adjourned meeting
conforming to the requirements of Section 4 of this Article II, shall be given
to each stockholder of record entitled to vote at such meeting. At any adjourned
meeting at which a quorum is present, any business may be transacted that might
have been transacted on the original date of the meetings.
SECTION 7. Organization; Procedure. At each meeting of
stockholders, the Chairman of the Board, or, in the Chairman's absence, the
President shall act as chairman of the meeting. The Secretary of the Corporation
shall act as Secretary at all meetings of the stockholders; and in the
Secretary's absence, the Chairman, or in the Chairman's absence, the President
shall appoint a person to act as Secretary of the meeting. The order of business
at all meetings of the stockholders shall be as determined by the chairman of
the meeting.
SECTION 8. Proxies; Voting by Ballot. Each stockholder
entitled to vote at any meeting of stockholders may authorize another person or
persons to act for him by a proxy signed by such stockholder or his
attorney-in-fact, but no proxy shall be voted after three years from its date,
unless the proxy provides for a longer period. Any such proxy shall be delivered
to the secretary of the meeting at
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or prior to the time designated in the order of business for so delivering such
proxies. Every proxy shall be revocable at the pleasure of the stockholder
executing it, except in those cases where applicable law provides that a proxy
shall be irrevocable. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or by filing another duly executed
proxy bearing a later date with the Secretary. Unless required by statute, or
determined by the chairman of the meeting to be advisable, the vote on any
question need not be by ballot. On a vote by ballot, each ballot shall be signed
by the stockholder voting, or by his proxy, if there by such proxy, and shall
state the number of shares voted.
SECTION 9. Action by Consent. Subject to the Corporation's
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders of the Corporation, or any action which may be
taken at any annual or special meeting of stockholders of the Corporation may be
taken without a meeting, without prior notice and without a vote, if a consent
or consents in writing, setting forth the action so taken, shall be signed by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted and shall be
delivered to the Corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be made by hand or by certified or registered mail, return receipt
requested.
Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referenced to therein unless, within sixty days of the
date the earliest dated consent is delivered to the Corporation, a written
consent of consents signed by a sufficient number of holders to take action are
delivered to the Corporation in the manner prescribed in the first paragraph of
this Section 9.
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ARTICLE III
Board of Directors
SECTION 1. General Powers. The property, business and
affairs of the Corporation shall be managed by or under the direction of the
Board of Directors.
SECTION 2. Number and Term of Office. The number of directors
constituting the initial Board of Directors shall be five which number may be
modified from time to time as provided in the Certificate of Incorporation of
the Corporation. Except as otherwise provided by law, the Certificate of
Incorporation of the Corporation or these By-Laws, the directors shall be
elected at the annual meeting of stockholders and each director shall hold
office until a successor is elected and qualified, or until such director's
earlier resignation, removal or death. None of the directors need be a
stockholder of the Corporation or a resident of the State of Delaware.
SECTION 3. Place of Meetings. Meetings of the Board of
Directors shall be held at such place or places, within or without the State of
Delaware, as the Board of Directors may from time to time determine or as shall
be specified in the notice of any such meeting.
SECTION 4. Annual Meeting. The Board of Directors shall meet
for the purpose of organization, the election of officers and the transaction of
other business, as soon as practicable after each annual meeting of
stockholders, on the same day and at the same place where such annual meeting
shall be held. Notice of such meeting need not be given. In the event such
annual meeting is not so held, the annual meeting of the Board of Directors may
be held at such other time or place (within or without the State of Delaware) as
shall be specified in a notice thereof given as hereinafter provided in Section
7 of this Article III.
SECTION 5. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such time and place as the Board of Directors may
fix. If any day fixed for a regular meeting shall be a legal holiday at the
place where the meeting is to be held, then the meeting which would otherwise be
held on that day shall be held at the same hour on the next succeeding business
day. After there has been such determination, and notice thereof has been once
given
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to each member of the Board of Directors, regular meetings of the Board of
Directors may be held without further notice being given.
SECTION 6. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman or President on three days' notice to
each director, either personally or by telephone or by telegram; special
meetings shall be called by the Chairman or the President or Secretary in like
manner and in like notice on written request of two directors. Notice of each
special meeting of the Board of Directors shall state the date, time and place
of the meeting and the purpose and purposes for which it is called. Notice of
any such meeting need not be given to any director who shall, either before or
after the meeting, submit a signed waiver of notice or who shall attend such
meeting, except when he shall attend for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
SECTION 7. Quorum and Manner of Acting. The presence of
four-fifths of the entire Board of Directors shall constitute a quorum for the
transaction of business. In the absence of a quorum at any meeting of the Board
of Directors, a majority of the directors present may adjourn the meeting to
another time and place. Notice of the time and place of any such adjourned
meeting shall be given to all of the directors unless such time and place were
announced at the meeting at which the adjournment was taken, in which case such
notice shall only be given to the directors who were not present at such
meeting. At any adjourned meeting at which a quorum is present, any business may
be transacted which might have been transacted at the meeting as originally
called. The directors shall act only as a Board and the individual directors
shall have no power as such.
SECTION 8. Organization. At each meeting of the Board of
Directors, the Chairman or, in the absence of the Chairman, the President (or,
in his absence, another director chosen by a majority of the directors present)
shall act as chairman of the meeting and preside at such meeting. The Secretary
or, in his absence, any person appointed by the chairman shall act as secretary
of the meeting and keep the minutes thereof.
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SECTION 9. Resignations. Any director of the Corporation may
resign at any time by giving written notice of his resignation to the
Corporation. Any such resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall not be specified
therein, immediately upon its receipt by the Chairman, President or Secretary.
Unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
SECTION 10. Vacancies. Whenever any vacancy shall occur in the
Board of Directors, whether arising from death, resignation, removal (with or
without cause), an increase in the number of directors or any other cause, it
may, except as required by applicable law or as otherwise provided in the
Corporation's Certificate of Incorporation, be filled by the vote of a majority
of the directors then in office, though less than a quorum, for the balance of
the term and until a successor shall be duly chosen.
SECTION 11. Removal of Directors. Any Director may be removed
as provided in the Certificate of Incorporation.
SECTION 12. Compensation. The Board of Directors shall have
authority to fix the compensation, including fees and reimbursement of expenses,
of directors for services to the Corporation in any capacity.
SECTION 13. Committees. Subject to any necessary approval of
stockholders in accordance with the Certificate of Incorporation, the Board of
Directors may, by resolution passed by a majority of the whole Board, designate
one or more committees, each committee to consist of one or more of the
directors of the Corporation. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required. The Board
of Directors may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. Any such committee, to the extent provided in the resolution of
the Board of Directors, shall have and may exercise all the powers and authority
of the Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority to amend the Corporation's Certificate of Incorporation (except that a
committee may, to the extent
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authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board of Directors as provided in subsection (a) of
Section 151 of the General Corporation Law of the State of Delaware, fix the
designations and any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
Corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other class
or classes of stock of the Corporation, or fix the number of shares of any
series of stock or authorize the increase or decrease of the shares of any
series), adopt an agreement of merger or consolidation under Section 251 or
Section 252 of the General Corporation Law of the State of Delaware, authorize
or recommend to the stockholders the acquisition, sale, lease or exchange of all
or any substantial part of the Corporation's property or assets other than
specific acquisitions or dispositions designated by the Board of Directors,
recommend to the stockholders a dissolution of the Corporation or a revocation
of a dissolution, or amend the By-Laws of the Corporation; and unless the
resolution of the Board of Directors or the Certificate of Incorporation
expressly so provide, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock pursuant to Section 253
of the General Corporation Law of the State of Delaware.
SECTION 14. Action by Consent. Unless restricted by the
Certificate of Incorporation, any action required or permitted to be taken by
the Board of Directors or any committee thereof may be taken without a meeting
if all members of the Board of Directors or such committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of the proceedings of the Board of Directors or such committee, as the
case may be.
SECTION 15. Telephonic Meeting. Unless restricted by the
Certificate of Incorporation, any one or more members of the Board of Directors
or any committee thereof may participate in a meeting of the Board of Directors
or such committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other. Participation by such means shall constitute presence in person at a
meeting.
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ARTICLE IV
Officers
SECTION 1. Number and Qualifications. The officers of the
Corporation shall be elected by the Board of Directors and shall include a
Chairman, a President, a Chief Executive Officer, a Chief Operating Officer, a
Chief Financial Officer, one or more Vice Presidents, a Secretary and a
Treasurer. Any number of offices may be held by the same person, and no officer
except the Chairman of the Board need be a director. Each officer shall hold
office until his successor shall have been duly elected and shall have
qualified, or until his death, or until he shall have resigned or have been
removed, as hereinafter provided in these By-Laws.
SECTION 2. Resignations. Any officer of the Corporation may
resign at any time by giving written notice of his resignation to the Board of
Directors, Chairman or President, respectively. Any such resignation shall take
effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon receipt. Unless
otherwise specified therein, the acceptance of any such resignation shall not be
necessary to make it effective.
SECTION 3. Removal. Any officer of the Corporation may be
removed, either with or without cause, at any time, by resolution adopted by the
Board of Directors at any regular meeting of the Board of Directors or at any
special meeting of the Board of Directors called for that purpose at which a
quorum is present.
SECTION 4. Chairman of the Board. The Chairman of the Board
shall be a member of the Board, the chief executive officer of the Corporation
and, if present, shall preside at each meeting of the Board of Directors or the
stockholders. He shall advise and counsel with the President, and in his absence
with other executives of the Corporation, and shall perform such other duties as
may from time to time be assigned to him by the Board of Directors.
SECTION 5. The President. The President shall be the chief
operating officer of the Corporation. He shall, in the absence of the Chairman
of the Board, preside at each meeting of the Board of Directors or the
stockholders. He shall perform all duties incident to the office of President
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and chief executive officer and such other duties as may from time to time be
assigned to him by the Board of Directors.
SECTION 6. Vice President. Each Vice President shall perform
all such duties as from time to time may be assigned to him by the Board of
Directors or the President or the Chairman. At the request of the President or
in his absence or in the event of his inability or refusal to act, the Vice
President, or if there shall be more than one, the Vice Presidents in the order
determined by the Board of Directors (or if there be no such determination, then
the Vice Presidents in the order of their election), shall perform the duties of
the President, and, when so acting, shall have the powers of and be subject to
the restrictions placed upon the President in respect of the performance of such
duties.
SECTION 7. Treasurer. The Treasurer shall:
(a) have charge and custody of, and be responsible for, all
the funds and securities of the Corporation;
(b) keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation;
(c) deposit all moneys and other valuables to the credit of
the Corporation in such depositaries as may be designated by the Board
of Directors or pursuant to its direction;
(d) receive, and give receipts for, moneys due and payable to
the Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the
investments of its funds,
(f) render to the Board of Directors, whenever the Board of
Directors may require, an account of the financial condition of the
Corporation; and
(g) in general, perform all duties incident to the office of
Treasurer and such other duties as from time to time may be assigned to
him by the Board of Directors.
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In the event that any officer of the Corporation other than the Treasurer shall
be designated as the Corporation's chief financial officer, the Treasurer shall
share the foregoing powers and duties with such chief financial officer, and all
references in these By-Laws to the Treasurer shall be deemed to include such
chief financial officer of the Corporation.
SECTION 8. Secretary. The Secretary shall:
(a) keep or cause to be kept in one or more books provided for
the purpose, the minutes of all meetings of the Board of Directors, the
committees of the Board of Directors and the stockholders;
(b) see that all notices are duly given in accordance with the
provisions of these By-Laws and as required by law;
(c) be custodian of the records and the seal of the
Corporation and affix and attest the seal to all certificates for
shares of the Corporation (unless the seal of the Corporation on such
certificates shall be a facsimile, as hereinafter provided) and affix
and attest the seal to all other documents to be executed on behalf of
the Corporation under its seal;
(d) see that the books, reports, statements, certificates and
other documents and records required by law to be kept and filed are
properly kept and filed; and
(e) in general, perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned to
him by the Board of Directors.
SECTION 9. Additional Officers. The Board of Directors may
appoint such other officers and agents as it may deem appropriate, and such
other officers and agents shall hold their offices for such terms and shall
exercise such powers and perform such duties as may be determined from time to
time by the Board of Directors. The Board of Directors from time to time may
delegate to any officer or agent the power to appoint subordinate officers or
agents and to prescribe their respective rights, terms of office, authorities
and duties. Any such officer or agent may remove any such subordinate officer or
agent appointed by him, for or without cause.
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SECTION 10. Officers' Bonds or Other Security. If required by
the Board of Directors, any officer of the Corporation shall give a bond or
other security for the faithful performance of his duties, in such amount and
with such surety as the Board of Directors may require.
SECTION 11. Compensation. The compensation of the officers of
the Corporation for their services as such officers shall be fixed from time to
time by the Board of Directors upon the recommendation of the chief executive
officer. An officer of the Corporation shall not be prevented from receiving
compensation by reason of the fact that he is also a director of the
Corporation.
ARTICLE V
Stock Certificates and Their Transfer
SECTION 1. Stock Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by, or in the name
of the Corporation by, the Chairman of the Board or the President or a
Vice-President and by the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of the Corporation, certifying the number of shares
owed by him in the Corporation. If the Corporation shall be authorized to issue
more than one class of stock or more than one series of any class, the
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restriction of such preferences and/or rights shall he set forth
in full or summarized on the face or back of the certificate which the
Corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided in Section 202 of the General Corporation Law
of the State of Delaware, in lieu of the foregoing requirements, there may be
set forth on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock, a statement that the
Corporation will furnish without charge to each stockholder who so requests the
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
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SECTION 2. Facsimile Signatures. Any or all of the signatures
on a certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
SECTION 3. Lost Certificates. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen, or destroyed. When authorizing such issue of a new
certificate or certificates, the Board of Directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen, or destroyed certificate or certificates, or his legal
representative, to give the Corporation a bond in such sum as it may direct
sufficient to indemnify it against any claim that may be made against the
Corporation on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
SECTION 4. Transfers of Stock. Subject to any restrictions
imposed on the ownership of the Corporation's stock by applicable law or the
Certificate of Incorporation, upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer as the Corporation or its agents may require, it shall be the duty of
the Corporation to issue a new certificate to the person entitled thereto,
cancel the old certificate and record the transaction upon its records;
provided, however, that the Corporation shall be entitled to recognize and
enforce any lawful restriction on transfer. Whenever any transfer of stock shall
be made for collateral security, and not absolutely, it shall be so expressed in
the entry of transfer if, when the certificates are presented to the Corporation
for transfer, both the transferor and the transferee request the Corporation to
do so.
SECTION 5. Transfer Agents and Registrars. The Board of
Directors may appoint one or more transfer agents and one or more registrars,
and may require all certificates
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representing shares to bear the signature of any such transfer agents or
registrars.
SECTION 6. Fixing the Record Date. In order that the
Corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
SECTION 7. Registered Stockholders. Prior to due surrender of
a certificate for registration of transfer, the Corporation shall be entitled to
recognize the exclusive right of a person registered on its records as the owner
of shares of stock to receive dividends and other distributions, to vote, to
receive notice and otherwise to exercise all the rights and powers of the owner
of the shares represented by such certificate, and the Corporation shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares of stock on the part of any other person, whether or not it shall have
express or other notice thereof.
ARTICLE VI
Indemnification of Directors and Officers
SECTION 1. General. The Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of
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another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
SECTION 2. Derivative Actions. The Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation, provided that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
SECTION 3. Indemnification in Certain Cases. To the extent
that a director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 1 and 2 of this Article VI, or in
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defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
SECTION 4. Procedure. Any indemnification under Sections 1 and
2 of this Article VI (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
such Sections 1 and 2. Such determination shall be made (a) by the Board of
Directors by a majority vote of those directors who were not parties to such
action, suit or proceeding, whether or not they constitute a quorum of the Board
of Directors, or (b) if such a quorum is not obtainable, or, even if obtainable
a quorum of disinterested directors so directs, by independent legal counsel in
a written opinion, or (c) by the stockholders.
SECTION 5. Advances for Expenses. Expenses incurred in
defending a civil or criminal action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount if it shall be ultimately
determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article VI.
SECTION 6. Rights Not Exclusive. The indemnification and
advancement of expenses provided by, or granted pursuant to, the other
subsections of this Article VI shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any law, by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
SECTION 7. Insurance. The Corporation shall have power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him
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and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article VI.
SECTION 8. Definition of Corporation. For the purposes of this
Article VI, references to "the Corporation" include all constituent corporations
absorbed in a consolidation or merger as well as the resulting or surviving
corporation so that any person who is or was a director, officer, employee or
agent of such a constituent corporation or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise shall
stand in the same position under the provisions of this Article VI with respect
to the resulting or surviving corporation as he would if he had served the
resulting or surviving corporation in the same capacity.
SECTION 9. Survival of Rights. The indemnification and
advancement of expenses provided by, or granted pursuant to this Article VI
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE VII
General Provisions
SECTION 1. Dividends. Subject to any applicable provisions of
law and the Certificate of Incorporation, dividends upon the shares o(pound)
capital stock of the Corporation may be declared by the Board of Directors at
any regular or special meeting of the Board of Directors in such amounts and at
such time or times as the Board of Directors may determine, and any such
dividend.
SECTION 2. Reserves. Before payment of any dividend, there may
be set aside out of any funds of the Corporation available for dividends such
sum or sums as the Board of Directors may, from time to fume, in its absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Corporation or for such other purpose as the Board of Directors may think
conducive
17
<PAGE>
to the interests of the Corporation. The Board of Directors may modify or
abolish any such reserves in the manner in which it was created.
SECTION 3. Seal. The seal of the Corporation shall be circular
in form and shall contain the name of the Corporation, the year of its
incorporation and the words "Corporate Seal" and "Delaware". The form of such
seal shall be subject to alteration by the Board of Directors. The seal may be
used by causing it or a facsimile thereof to be impressed, affixed or
reproduced, or may be used in any other lawful manner.
SECTION 4. Fiscal Year. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors.
SECTION 5. Checks, Notes, Drafts Etc. All checks, notes,
drafts or other orders for the payment of money of the Corporation shall be
signed, endorsed or accepted in the name of the Corporation by such officer or
officers, or such agent or agents of the Corporation and in such manner as from
time to time may be designated by the Board of Directors the Chairman or the
President of the Corporation.
SECTION 6. Execution of Instruments. Except as may otherwise
be required by law or the Certificate of Incorporation, the Chairman, the
President, any Vice President, the Secretary or the Treasurer may enter into any
contract or execute and deliver any instrument in the name and on behalf of the
Corporation. Except as may otherwise be required by law or the Certificate of
Incorporation, the Board of Directors, the Chairman or the President may
authorize any other officer or agent to enter into any contract or execute and
deliver any instrument in the name and on behalf of the Corporation. Any such
authorization may be general or limited to specific contracts or instruments.
SECTION 7. Corporate Indebtedness. No loan shall be contracted
on behalf of the Corporation, and no evidence of indebtedness shall be issued in
its name, unless authorized by the Board of Directors, the Chairman, the
President, or any other officer designated by resolution of the Board of
Directors, subject to any applicable provisions of law and the Certificate of
Incorporation. Such authorization may be general or confined to specific
18
<PAGE>
instances. Loans so authorized may be effected at any time for the Corporation
from any bank, trust company or other institution, or from any firm, corporation
or individual. All bonds, debentures, notes and other obligations or evidences
of indebtedness of the Corporation issued for such loans shall be made, executed
and delivered as the Board of Directors, the Chairman, the President or the
officer designated by the Board of Directors under this Section shall authorize.
When so authorized, any part of or all the properties, including contract
rights, assets, business or good will of the Corporation, whether then owned or
thereafter acquired, may be mortgaged, pledged, hypothecated or conveyed or
assigned in trust as security for the payment of such bonds, debentures, notes
and other obligations or evidences of indebtedness of the Corporation, and of
the interest thereon, by installments executed and delivered in the name of the
Corporation.
SECTION 8. Deposits. Any funds of the Corporation may be
deposited from time to time in such banks, trust companies or other depositaries
as may be determined by the Board of Directors, the Chairman or the President,
or by such officers or agents as may be authorized by the Board of Directors,
the Chairman or the President to make such determination.
SECTION 9. Voting as Stockholder. Unless otherwise determined
by resolution of the Board of Directors, the Chairman, the President or any Vice
President or such other officer or individual as the Board of Directors may
authorize shall have full power and authority on behalf of the Corporation to
attend any meeting of stockholders of any corporation in which the Corporation
may hold stock, and to act, vote (or execute proxies to vote) and exercise in
person or by proxy all other rights, powers and privileges incident to the
ownership of such stock, subject to any applicable provisions of law and the
Certificate of Incorporation. Such officers acting on behalf of the Corporation
shall have full power and authority to execute any instrument expressing consent
to or dissent from any action of any such corporation without a meeting, subject
to any applicable provisions of law and the Certificate of Incorporation. The
Board of Directors may by resolution from time to time confer such power and
authority upon any other person or persons.
SECTION 10. Books and Records: Inspection. Except to the
extent otherwise required by law, the books
19
<PAGE>
and records of the Corporation shall be kept at such place or places within or
without the State of Delaware as may be determined from time to time by the
Board of Directors.
ARTICLE VIII
Amendments
Except as set forth in the Certificate of Incorporation, these
By-Laws may be amended or repealed or new by-laws adopted (a) by action of the
stockholders entitled to vote thereon at any annual meeting of stockholders or
any special meeting thereof, if notice thereof is contained in the notice of
such special meeting, by the affirmative vote of a majority of the votes of the
shares entitled to vote thereon or (b) by action of the Board of Directors at a
regular or special meeting thereof. Except as set forth in the Certificate of
Incorporation, the Board of Directors shall have power without the assent or
vote of the stockholders to make, alter, amend, change, add to, or repeal the
By-Laws of the Corporation, but any by-law adopted by the Board of Directors may
be amended or repealed by action of the stockholders at any annual or special
meeting of stockholders.
ARTICLE IX
Inconsistent Provisions
In the event of any conflict between the provisions of these
By-Laws as in effect from time to time and the provisions of the Certificate of
Incorporation of the Corporation as in effect from time to time, the provisions
of such Certificate of Incorporation shall be controlling.
20
===============================================================================
PANAMSAT INTERNATIONAL SYSTEMS, INC.
123/4% SENIOR SUBORDINATED NOTES DUE 2005
----------------------------------------
----------------------------------------
INDENTURE
Dated as of September 30, 1997
----------------------------------------
----------------------------------------
First Trust National Association
----------------------------------------
Trustee
===============================================================================
<PAGE>
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310 (a)(1)................................................... 7.10
(a)(2)................................................... 7.10
(a)(3)................................................... N.A.
(a)(4)................................................... N.A.
(a)(5)................................................... 7.10
(b)...................................................... 7.10
(c)...................................................... N.A.
311 (a)...................................................... 7.11
(b)...................................................... 7.11
(c)...................................................... N.A.
312 (a)...................................................... 2.05
(b)...................................................... 11.03
(c)...................................................... 11.03
313 (a)...................................................... 7.06
(b)(1)................................................... N.A.
(b)(2)................................................... 7.06
(c)...................................................... 7.06; 11.02
(d)...................................................... 7.06
314 (a)...................................................... 4.03; 11.02
(b)...................................................... N.A.
(c)(1)................................................... 11.04
(c)(2)................................................... 11.04
(c)(3)................................................... N.A.
(d)...................................................... N.A.
(e)...................................................... 11.05
(f)...................................................... N.A.
315 (a)...................................................... 7.01
(b)...................................................... 7.05; 11.02
(c)...................................................... 7.01
(d)...................................................... 7.01
(e)...................................................... 6.11
316 (a)(last sentence)....................................... 2.09
(a)(1)(A)................................................ 6.05
(a)(1)(B)................................................ 6.04
(a)(2)................................................... N.A.
(b)...................................................... 6.07
(c)...................................................... 2.13
317 (a)(1)................................................... 6.08
(a)(2)................................................... 6.09
(b)...................................................... 2.04
318 (a)...................................................... 11.01
(b)...................................................... N.A.
(c)...................................................... 11.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY
REFERENCE.................................... 1
Section 1.01. Definitions.............................. 1
Section 1.02. Other Definitions........................ 15
Section 1.03. Incorporation by Reference of
Trust Indenture Act................... 15
Section 1.04. Rules of Construction.................... 16
ARTICLE 2 THE EXCHANGE DEBENTURES........................ 16
Section 2.01. Form and Dating.......................... 16
Section 2.02. Execution and Authentication............. 17
Section 2.03. Registrar and Paying Agent............... 18
Section 2.04. Paying Agent to Hold Money in Trust...... 18
Section 2.05. List of Holders of the Exchange
Debentures............................ 19
Section 2.06. Transfer and Exchange.................... 19
Section 2.07. Replacement Exchange Debentures.......... 20
Section 2.08. Outstanding Exchange Debentures.......... 21
Section 2.09. Treasury Exchange Debentures............. 21
Section 2.10. Temporary Exchange Debentures............ 22
Section 2.11. Cancellation............................. 22
Section 2.12. Defaulted Interest....................... 22
Section 2.13. Record Date.............................. 23
Section 2.14. CUSIP Number............................. 23
ARTICLE 3 REDEMPTION................................... 23
Section 3.01. Notices to Trustee....................... 23
Section 3.02. Selection of Exchange Debentures
to be Redeemed........................ 24
Section 3.03. Notice of Redemption..................... 24
Section 3.04. Effect of Notice of Redemption........... 25
Section 3.05. Deposit of Redemption Price.............. 26
Section 3.06. Exchange Debentures Redeemed in Part..... 26
Section 3.07. Optional Redemption...................... 26
Section 3.08. Offer to Purchase by Application
of Excess Proceeds.................... 27
ARTICLE 4 COVENANTS.................................... 30
Section 4.01. Payment of Exchange Debentures........... 30
Section 4.02. Maintenance of Office or Agency.......... 31
Section 4.03. Reports.................................. 31
Section 4.04. Compliance Certificate................... 32
Section 4.05. Taxes.................................... 33
Section 4.06. Stay, Extension and Usury Laws........... 33
Section 4.07. Restricted Payments...................... 33
Section 4.08. Dividend and Other Payment Restrictions
Affecting Subsidiaries................ 35
Section 4.09. Incurrence of Indebtedness and Issuance of
Preferred Stock....................... 36
Section 4.10. Asset Sales.............................. 38
Section 4.11. Transactions with Affiliates............. 39
Section 4.12. Liens.................................... 40
Section 4.13. Subsidiary Guarantees.................... 40
Section 4.14. Corporate Existence...................... 43
Section 4.15. Offer to Repurchase Upon Change
of Control............................ 43
Section 4.16. Maintenance of Insurance................. 45
Section 4.17. Activities of the Company................ 47
Section 4.18. Senior Subordinated Debt................. 48
ARTICLE 5 SUCCESSORS................................... 48
Section 5.01. Merger, Consolidation or Sale of
Assets................................ 48
Section 5.02. Successor Corporation Substituted........ 49
ARTICLE 6 DEFAULTS AND REMEDIES
Section 6.01. Events of Default........................ 49
Section 6.02. Acceleration............................. 51
Section 6.03. Other Remedies........................... 52
Section 6.04. Waiver of Past Defaults.................. 53
Section 6.05. Control by Majority...................... 53
Section 6.06. Limitation on Suits...................... 53
Section 6.07. Rights of Holders of Exchange
Debentures to Receive Payment......... 54
Section 6.08. Collection Suit by Trustee............... 54
Section 6.09. Trustee May File Proofs of Claim......... 55
Section 6.10. Priorities............................... 56
Section 6.11. Undertaking for Costs.................... 56
ARTICLE 7 TRUSTEE...................................... 57
Section 7.01. Duties of Trustee........................ 57
Section 7.02. Rights of Trustee........................ 58
Section 7.03. Individual Rights of Trustee............. 59
Section 7.04. Trustee's Disclaimer..................... 59
Section 7.05. Notice of Defaults....................... 59
Section 7.06. Reports by Trustee to Holders of the
Exchange Debentures................... 60
Section 7.07. Compensation and Indemnity............... 60
Section 7.08. Replacement of Trustee................... 61
Section 7.09. Successor Trustee by Merger, Etc......... 63
Section 7.10. Eligibility; Disqualification............ 63
Section 7.11. Preferential Collection of Claims
Against Company....................... 63
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE..... 63
Section 8.01. Option to Effect Legal Defeasance
or Covenant Defeasance................ 63
Section 8.02. Legal Defeasance and Discharge........... 64
Section 8.03. Covenant Defeasance...................... 64
Section 8.04. Conditions to Legal or Covenant
Defeasance............................ 65
Section 8.05. Deposited Money and Government
Securities to be Held in Trust........ 67
Section 8.06. Repayment to Company..................... 68
Section 8.07. Reinstatement............................ 68
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER............. 69
Section 9.01. Without Consent of Holders of
Exchange Debentures................... 69
Section 9.02. With Consent of Holders and Exchange
Debentures............................ 70
Section 9.03. Compliance with Trust Indenture Act...... 72
Section 9.04. Revocation and Effect of Consents........ 72
Section 9.05. Notation on or Exchange of Exchange
Debentures............................ 73
Section 9.06. Trustee to Sign Amendments, Etc.......... 73
Section 9.07. Payment for Consents..................... 73
ARTICLE 10 SUBORDINATION................................ 74
Section 10.01. Agreement to Subordinate................. 74
Section 10.02. Liquidation; Dissolution; Bankruptcy..... 74
Section 10.03. Default on Designated Senior Debt........ 75
Section 10.04. Acceleration of Securities............... 76
Section 10.05. When Distribution Must be Paid Over...... 76
Section 10.06. Notice by Company........................ 77
Section 10.07. Subrogation.............................. 77
Section 10.08. Relative Rights.......................... 78
Section 10.09. Subordination May Not be Impaired
by Company............................ 78
Section 10.10. Distribution or Notice to
Representative........................ 78
Section 10.11. RIGHTS OF TRUSTEE AND PAYING AGENT....... 79
Section 10.12. Authorization to Effect Subordination.... 79
Section 10.13. Amendments............................... 80
ARTICLE 11 MISCELLANEOUS................................ 80
Section 11.01. Trust Indenture Act Controls............. 80
Section 11.02. Notices.................................. 80
Section 11.03. Communication by Holders of Exchange
Debentures With Other Holders of
Exchange Debentures................... 81
Section 11.04. Certificate and Opinion as to
Conditions Precedent.................. 82
Section 11.05. Statements Required in Certificate or
Opinion............................... 82
Section 11.06. Rules by Trustee and Agents.............. 83
Section 11.07. No Personal Liability of Directors,
Officers, Employees, Incorporator
and Stockholders...................... 83
Section 11.08. Governing Law............................ 83
Section 11.09. No Adverse Interpretation of Other
Agreements............................ 83
Section 11.10. Successors............................... 83
Section 11.11. Severability............................. 84
Section 11.12. Counterpart Originals.................... 84
Section 11.13. Table of Contents, Headings, Etc......... 84
<PAGE>
EXHIBITS
Exhibit A Form of Exchange Debenture
<PAGE>
INDENTURE dated as of September 30, 1997 between PanAmSat
International Systems, Inc., a Delaware corporation (the "Company"), and First
Trust National Association, as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit
of each other and for the equal and ratable benefit of the Holders of the 12 3/4
% Senior Subordinated Notes due 2005 (the "Exchange Debentures"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"Acquired Debt" means, with respect to any specified Person,
Indebtedness of any other Person existing at the time such other Person merged
with or into or became a Subsidiary of such specified Person, or Indebtedness
incurred by such Person in connection with the acquisition of assets, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a Subsidiary of such specified Person or
the acquisition of such assets, as the case may be.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise;
provided, however, that beneficial ownership of 10% or more of the voting
securities of a Person shall be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Arianespace" means Arianespace, S.A., a company organized
under the laws of France, and its successors.
"Arianespace Launch Contract" means the Agreement for the
Launching into Geostationary Transfer Orbit of the PanAmSat 2, 3 and 4
Satellites by an Ariane Launch Vehicle, Contract No. 92.5.930/DC, dated June 5,
1992, between Arianespace and the Company, as amended from time to time.
"Board of Directors" means the Board of Directors of the
Company, or any authorized committee of the Board of Directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease" means, at the time any determination thereof
is made, any lease of property, real or personal, in respect of which the
present value of the minimum rental commitment would be capitalized on a balance
sheet of the lessee in accordance with GAAP.
"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 so required to be capitalized on the
balance sheet in accordance with GAAP.
"Capital Stock" means any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock or partnership interests, whether common or preferred.
"Change of Control" means any transaction or series of
transactions (including, without limitation, a tender offer, merger or
consolidation) the result of which is that (a) the Principals or their Related
Parties or an entity controlled by the Principals or their Related Parties cease
(i) to elect a majority of the Board of Directors or (ii) to be the "beneficial
owners" (as defined in Rule 13(d)(3) under the Exchange Act) of at least 20
percent of the total Equity Interests in, and aggregate voting power of all
classes of the voting stock of, the Company or (b) Televisa or its Related
Parties or an entity controlled by Televisa or its Related Parties cease to be
the "beneficial owners" (as defined in Rule 13(d)(3) under the Exchange Act) of
at least 20 percent of the total Equity Interests in the Company.
"Consolidated Cash Flow" means, with respect to any Person for
any period, the Consolidated Net Income of such Person for such period plus, to
the extent deducted in calculating such Consolidated Net Income, (a) provision
for taxes based on income or profits, (b) consolidated interest expense of such
Person for such period, whether paid or accrued (including amortization of
original issue discount and deferred financing costs, non-cash interest payments
and the interest component of Capital Lease Obligations), (c) depreciation and
amortization (including amortization of goodwill and other intangibles and
non-cash expense charged to "cost of transponder sold") of such Person for such
period and (d) an amount equal to any extraordinary loss plus any net loss
realized in connection with an Asset Sale, in each case, on a consolidated basis
and determined in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person
for any period, the aggregate of the Net Income of such Person and its
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided, however, that (a) the Net Income of any Person that is not
a Subsidiary 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 paid
to the referent Person or a Wholly Owned Subsidiary, (b) the Net Income of any
Person that is a Subsidiary that is not a Wholly Owned Subsidiary shall be
included only to the extent of the amount of dividends or distributions paid to
the referent Person or a Wholly Owned Subsidiary thereof, (c) 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, (d) the Net Income of any
Wholly Owned Subsidiary of such Person shall be excluded to the extent that the
declaration or payment of dividends or similar distributions is not at the time
permitted by operation of the terms of its charter or bylaws or any other
agreement, instrument, judgment, decree, order, statute, rule or government
regulation to which it is subject and (e) the cumulative effect of a change in
accounting principles shall be excluded; and provided, further, that, in
addition to but not in duplication of the amount referred to in clauses (a) and
(b) of this definition, Consolidated Net Income shall include the amount of all
dividends or distributions paid to the referent Person during such period by a
Person that is not a Subsidiary or that is accounted for by the equity method of
accounting or by a Subsidiary that is not a Wholly Owned Subsidiary out of the
Net Income of such Person or such Subsidiary earned in any prior period.
"Consolidated Net Worth" means, with respect to any Person,
the sum of (a) the stockholders' or partnership equity of such Person plus (b)
the respective amounts reported on such Person's most recent balance sheet with
respect to any series of preferred stock (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, less (i) 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 Preferred Stock Issue Date in the book value
of any asset owned by such Person or a consolidated Subsidiary of such Person
and (ii) all unamortized debt discount and expense and unamortized deferred
charges, all of the foregoing determined in accordance with GAAP.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 11.02 or such other address as to
which the Trustee may give notice to the Company.
"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.
"Designated Senior Debt" means (a) Indebtedness under the
Senior Secured Notes and the indenture relating thereto, (b) Bank Debt and (c)
any other Senior Debt permitted to be incurred pursuant to this Indenture in a
principal amount of not less than $20 million designated by the Company as
Designated Senior Debt.
"Disqualified Stock" means any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the maturity, or earlier redemption, of the Exchange Debentures.
"DTH Joint Venture" means the joint venture between the
Company and Televisa entered into pursuant to a Memorandum of Understanding
dated as of March 27, 1995.
"Eligible Institution" means a commercial banking institution
that has combined capital and surplus of not less than $500 million or its
equivalent in foreign currency, whose debt is rated "A" (or higher) according to
S&P or Moody's at the time as of which any investment or rollover therein is
made.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock or that are measured by the
value of Capital Stock (but excluding any debt security that is convertible
into, or exchangeable for Capital Stock).
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Exchange Debenture Issue Date" means the date on which the
Exchange Debentures are issued under this Indenture.
"Existing Indebtedness" means any Indebtedness of the Company
and its Subsidiaries in existence on the Exchange Debenture Issue Date, until
such amounts are repaid.
"Existing Investments" means any Investments of the Company
and its Subsidiaries in existence on the Exchange Debenture Issue Date.
"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 may be approved by a significant segment of
the accounting profession of the United States, which are applicable as of the
date of determination; provided, however, that these definitions and all ratios
and calculations contained in the Sections 4.07, 4.08, 4.09 and 4.10 shall be
determined in accordance with GAAP as in effect and applied by the Company on
the Preferred Stock Issue Date, consistently applied; provided, further, that,
in the event of any change in GAAP or in any change by the Company in GAAP
applied that would result in any change in any such ratio or calculation, the
Company shall deliver to the Trustee, each time any such ratio or calculation is
required to be determined or made, an Officers' Certificate setting forth the
computations showing the effect of such change or application on such ratio or
calculation.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States is
pledged.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Guarantor" means any entity that executes a Guarantee of the
obligations of the Company under the Exchange Debentures and this Indenture in
accordance with the provisions of this Indenture, and their respective
successors and assigns.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (a) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (b) other agreements
or arrangements designed to protect such Person against fluctuations in interest
rates.
"Holder" means a Person in whose name an Exchange Debenture
is registered.
"Hughes" means Hughes Aircraft Company, a Delaware
corporation, and its successors.
"Hughes Satellite Contract" means the PAS-2 Satellite Purchase
Contract, dated as of November 2, 1991, and the PAS-3 and PAS-4 Satellites
Purchase Contract, dated as of January 4, 1993, between Hughes and the Company,
as successor-in-interest to Alpha Lyracom Space Communications, Inc., as amended
from time to time.
"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 representing the
balance deferred and unpaid of the purchase price of any property (including
pursuant to Capital Leases) or representing any Hedging Obligations, except any
such balance that constitutes an accrued expense or trade payable, if and to the
extent any of the foregoing (other than Hedging Obligations) would appear as a
liability upon a balance sheet of such Person prepared in accordance with GAAP,
and also includes, to the extent not otherwise included, the Guarantee of items
that would be included within this definition.
"Indebtedness to Cash Flow Ratio" means, with respect to any
Person, the ratio of (a) such Person's total Indebtedness as of the date of
determination, to (b) such Person's Consolidated Cash Flow for the most recently
ended four full fiscal quarters for which internal financial statements are
available immediately preceding the date on which such event for which such
calculation is being made shall occur (the "Measurement Period"); provided,
however, that (i) in making such computation, Indebtedness will include the
total amount of funds outstanding and available under any revolving credit
facilities and (ii) in the event that the Company or any of its Subsidiaries
consummates a material acquisition or an Asset Sale or other disposition of
assets subsequent to the commencement of the Measurement Period but prior to the
event for which the calculation of the Indebtedness to Cash Flow Ratio is made,
then the Indebtedness to Cash Flow Ratio shall be calculated giving pro forma
effect to such material acquisition or Asset Sale or other disposition of
assets, as if the same had occurred at the beginning of the Measurement Period.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in the forms
of loans (including 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.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
"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).
"Marketable Securities" means (a) Government Securities, (b)
any certificate of deposit maturing not more than 270 days after the date of
acquisition issued by, or time deposit of, an Eligible Institution, (c)
commercial paper maturing not more than 270 days after the date of acquisition
issued by a corporation (other than an Affiliate of the Company) with a rating,
at the time as of which any investment therein is made, of "A-1" (or higher)
according to S&P or "P-1" (or higher) according to Moody's, (d) any bankers
acceptances or money market deposit accounts issued or offered by an Eligible
Institution and (e) any fund investing exclusively in investments of the types
described in clauses (a) through (d) above.
"Moody's" means Moody's Investors Service, Inc. and its
successors.
"Net Income" means, with respect to any Person for any period,
the net income (loss) of such Person for such period, determined in accordance
with GAAP, less (a) to the extent included therein, any gain (but not loss), net
of any related provision for taxes on such gain (but not loss), realized in
connection with any Asset Sale (including, without limitation, dispositions
pursuant to sale and leaseback transactions) and (b) to the extent included
therein, any extraordinary gain (but not loss), net of any related provision for
taxes on such extraordinary gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by
the Company or any of its Subsidiaries in respect of 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), amounts required to be applied to
the repayment of Indebtedness secured by a Lien on the asset or assets that are
the subject of such Asset Sale and any reserve for adjustment in respect of the
sale price of such asset or assets. Net Proceeds shall exclude any non-cash
proceeds received from any Asset Sale, but shall include such proceeds when and
as converted by the Company or any Subsidiary to cash.
"Notes" means the Senior Secured Notes and the Senior
Subordinated Notes.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
Controller, Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf
of the Company by two Officers of the Company, one of whom must be the principal
executive officer, principal financial officer, treasurer or principal
accounting officer of the Company.
"Opinion of Counsel" means an opinion from legal counsel, who
may be an employee of or counsel to the Company, any Subsidiary of the Company
or the Trustee.
"PAS-l," "PAS-2," "PAS-3," "PAS-4", "PAS-5" and "PAS-6" mean
the communications satellites of the Company described in the Prospectus dated
April 13, l995 relating to the sale of the Preferred Stock as PAS-1, PAS-2,
PAS-3, PAS-4, PAS-5 and PAS-6, respectively.
"Permitted Investments" means (a) any Investments in the
Company or in a Subsidiary of the Company; (b) any Investments in Marketable
Securities; (c) Investments by the Company or any Subsidiary of the Company in a
Person, if as a result of such Investment (i) such Person becomes a Subsidiary
of the Company or (ii) 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 a Subsidiary of the Company; and (d) any
Existing Investments.
"Permitted Liens" means (a) Liens on assets of the Company
securing the Senior Secured Notes; (b) Liens securing vendor or third-party
purchase money financing in connection with the acquisition and launch of one or
more satellites; (c) Liens on the Company's and its Subsidiaries' accounts
receivable and "banker's liens" on bank deposits made by the Company and its
Subsidiaries in the ordinary course of business with the lender of the Bank
Debt, in each case securing such Bank Debt; (d) Liens securing purchase money
Indebtedness, provided that such Indebtedness was permitted to be incurred by
the terms of this Indenture and such Liens do not extend to any assets of the
Company or its Subsidiaries other than the assets so acquired; (e) Liens on
property of a Person existing at the time such Person is merged into or
consolidated with the Company or any Subsidiary of the Company, provided, that
such Liens were not incurred in connection with, or in contemplation of, such
merger or consolidation; (f) Liens on property existing at the time of
acquisition thereof by the Company or any Subsidiary of the Company; provided
that such Liens (1) were not incurred in connection with, or in contemplation
of, such acquisition and (2) do not extend to any assets of the Company or any
of its Subsidiaries other than the property so acquired; (g) Liens to secure the
performance of statutory obligations, surety or appeal bonds or performance
bonds, or landlords', carriers', warehousemen's, mechanics', suppliers',
materialmen's or other like Liens, in any case incurred in the ordinary course
of business and with respect to amounts not yet delinquent or being contested in
good faith by appropriate process of law, if a reserve or other appropriate
provision, if any, as is required by GAAP shall have been made therefore; (h)
Liens existing on the Exchange Debenture Issue Date; (i) Liens for taxes,
assessments or governmental charges or claims that are not yet delinquent or
that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded; provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (j) 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 $2.0 million in principal amount in the aggregate at any one time
outstanding; (k) Liens in favor of the Company or any Subsidiary of the Company;
(l) any agreement for the sale, lease or other provision of transmission
services with respect to any transponder on a satellite, and (m) extensions,
renewals or refundings of any Liens referred to in clauses (a) through (l)
above, provided that any such extension, renewal or refunding does not extend to
any assets or secure any Indebtedness not securing or secured by the Liens being
extended, renewed or refinanced.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust or unincorporated organization
(including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).
"Preferred Stock" means the 12 3/4% Mandatorily Exchangeable
Senior Redeemable Preferred Stock of the Company.
"Preferred Stock Issue Date" means the date on which the
Preferred Stock is originally issued under the Certificate of Designation
relating thereto.
"Principals" means Rene Anselmo and Frederick A. Landman.
"Related Parties" means, with respect to any Principal or
Televisa, (a) any controlling stockholder, 80% (or more) owned Subsidiary, or
spouse or immediate family member (in the case of an individual) of such
Principal or Televisa, as the case may be, or (b) any trust, corporation,
partnership or other entity, the beneficiaries, stockholders, partners, owners
or Persons beneficially holding an 80% or more controlling interest of which
consist of such Principal or Televisa, as the case may be, and/or such other
Persons referred to in the immediately preceding clause (a).
"Responsible Officer," when used with respect to the Trustee,
means any officer within the Corporate Trust Administration of the Trustee (or
any successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"S&P" means Standard & Poor's Corporation and its successors.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means (a) Indebtedness under the Senior Secured
Notes and the indenture relating thereto, (b) Bank Debt and (c) any other
Indebtedness permitted to be incurred by the Company under the provisions
hereof, unless the instrument under which such Indebtedness in incurred
expressly provides that such Indebtedness shall be subordinated in right of
payment to any Senior Debt. Notwithstanding the foregoing, Senior Debt shall not
include (i) any liability for federal, state, local or other taxes owed or owing
by the Company, (ii) any Indebtedness of the Company to any of its Subsidiaries
or other Affiliates, (iii) any trade payables or (iv) any Indebtedness that is
incurred in violation of this Indenture.
"Senior Secured Notes" means the 9 3/4% Senior Secured Notes
due 2000 of the Company issued pursuant to an indenture, dated August 5, 1993,
among the Company, PanAmSat Capital Corporation and the Senior Secured Note
Trustee.
"Senior Secured Note Trustee" means First Trust National
Association, as trustee under the indenture relating to the Senior Secured
Notes.
"Senior Subordinated Notes" means the 11 3/8% Senior
Subordinated Discount Notes due 2003 of the Company issued pursuant to an
indenture, dated August 5, 1993, among the Company, PanAmSat Capital Corporation
and the Senior Subordinated Note Trustee.
"Senior Subordinated Note Trustee" means United States Trust
Company of New York, as trustee under the indenture relating to the Senior
Subordinated Notes.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date of this Indenture.
"Subsidiary" means 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 any Person or one or more of the
other Subsidiaries of that Person or a combination thereof, other than
Unrestricted Subsidiaries (except as used in the definition thereof).
"Subsidiary Guarantee" means any Guarantee given by any
Subsidiary Guarantor pursuant to the terms of this Indenture.
"Subsidiary Guarantor" means any Subsidiary that becomes a
Guarantor pursuant to the terms of this Indenture.
"Successful Launch" means, with respect to any satellite, the
placing into orbit of such satellite in its assigned orbital position with, to
the extent applicable, a Successfully Operating C-band Payload and a
Successfully Operating Ku-band Payload (as each such term is defined in the
Hughes Satellite Contract as in effect on the Preferred Stock Issue Date) and,
based upon reasonable engineering evaluation standards used in the satellite
industry, the launch of such satellite has not been a "constructive total
failure" (as such term is defined in the Arianespace Launch Contract as in
effect on the Preferred Stock Issue Date).
"Televisa" means Grupo Televisa, S.A., a Mexican corporation,
and its successors.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA; provided, however, that in the event the TIA is amended after
such date, "TIA" means to the extent required by any such amendment, the TIA as
so amended.
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
"Unrestricted Subsidiaries" means any Subsidiary of the
Company designated as an Unrestricted Subsidiary in a resolution of the Board of
Directors of the Company (a) no portion of the Indebtedness or any other
obligation (contingent or otherwise) of which, at the time of such designation
(except to the extent permitted as a Restricted Payment), (i) is guaranteed by
the Company or any other Subsidiary (other than another Unrestricted
Subsidiary), (ii) is recourse to or obligates the Company or any other
Subsidiary (other than another Unrestricted Subsidiary) in any way or (iii)
subjects any property or asset of the Company or any other Subsidiary (other
than another Unrestricted Subsidiary), directly or indirectly, contingently or
otherwise, to satisfaction thereof, (b) with which neither the Company nor any
other Subsidiary (other than another Unrestricted Subsidiary) has any contract,
agreement, arrangement, understanding or is subject to an obligation of any
kind, written or oral, other than on terms no less favorable to the Company or
such other Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Company and (c) with which, at the time of such
designation (except to the extent permitted as a Restricted Payment), neither
the Company nor any other Subsidiary of the Company (other than another
Unrestricted Subsidiary) has any obligation (i) to subscribe for additional
shares of Capital Stock or other equity interests therein or (ii) to maintain or
preserve such Subsidiary's financial condition or to cause such Subsidiary to
achieve certain levels of operating results.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding principal amount of such Indebtedness into (b) the total of the
products obtained by multiplying (i) 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 (ii) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment.
"Wholly Owned Subsidiary" means any Subsidiary all of the
outstanding voting stock (other than directors' qualifying shares) of which is
owned by the Company or another Wholly Owned Subsidiary of the Company or a
combination thereof.
Section 1.02. Other Definitions.
Defined in
Section
Term
"Affiliate Transaction"............................... 4.11
"Asset Sale".......................................... 4.10
"Bank Debt"........................................... 4.09
"Bankruptcy Law"...................................... 4.01
"Change of Control Offer"............................. 4.15
"Change of Control Payment"........................... 4.15
"Change of Control Payment Date"...................... 4.15
"Covenant Defeasance"................................. 8.03
"Custodian"........................................... 4.13
"Event of Default".................................... 6.01
"Excess Proceeds"..................................... 4.10 and 4.16
"Excess Proceeds Offer"............................... 3.08
"incur"............................................... 4.09
"Legal Defeasance".................................... 8.02
"Offer Amount"........................................ 3.08
"Offer Period"........................................ 3.08
"Paying Agent"........................................ 2.03
"Payment Default"..................................... 6.01
"Payment Blockage Notice"............................. 10.03
"Permitted Refinancing"............................... 4.09
"Purchase Date"....................................... 3.08
"Refinancing Indebtedness"............................ 4.09
"Registrar"........................................... 2.03
"Representative"...................................... 10.03
"Restricted Payments"................................. 4.07
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"Indenture securities" means the Exchange Debentures and any
Subsidiary Guarantee;
"Indenture security holder" means a Holder of an Exchange
Debenture;
"Indenture to be qualified" means this Indenture;
"Indenture trustee" or "Institutional trustee" means the
Trustee;
"Obligor" on the Exchange Debentures means each of the Company
and any successor obligor upon the Exchange Debentures or any Subsidiary
Guarantor.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE 2
THE EXCHANGE DEBENTURES
Section 2.01. Form and Dating.
The Exchange Debentures and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto, the terms
of which are incorporated in and made a part of this Indenture. The Exchange
Debentures may have notations, legends or endorsements approved as to form by
the Company and required by law, stock exchange rule, agreements to which the
Company is subject or usage. Each Exchange Debenture shall be dated the date of
its authentication. The Exchange Debentures shall be issuable only in
denominations of S1,000 and integral multiples thereof; provided, however, that
in connection with the payment of interest on the Exchange Debentures in
additional Exchange Debentures and the original issuance of Exchange Debentures
hereunder in exchange for shares of the Preferred Stock, the Company may elect
to pay any amount remaining after issuance of Exchange Debentures in
denominations of S1,000 and/or integral multiples thereof, in cash or in
additional Exchange Debentures in denominations of less than S1,000.
Section 2.02. Execution and Authentication.
An Officer of the Company shall sign the Exchange Debentures
for the Company by manual or facsimile signature. The Company's seal shall be
reproduced on the Exchange Debentures.
If an Officer whose signature is on an Exchange Debenture no
longer holds that office at the time the Exchange Debenture is authenticated,
the Exchange Debenture shall nevertheless be valid.
An Exchange Debenture shall not be valid until authenticated
by the manual signature of the Trustee. The signature of the Trustee shall be
conclusive evidence that the Exchange Debenture has been authenticated under
this Indenture. The form of Trustee's certificate of authentication to be borne
by the Exchange Debentures shall be substantially as set forth in Exhibit A
hereto.
The Trustee shall, upon a written order of the Company signed
by two Officers of the Company, authenticate Exchange Debentures for original
issue up to an aggregate principal amount stated in paragraph 4 of the Exchange
Debentures and additional Exchange Debentures for issuance pursuant to paragraph
2 of the Exchange Debentures. The aggregate principal amount of Exchange
Debentures outstanding at any time shall not exceed the amount set forth therein
except as provided in Section 2.07.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Exchange Debentures. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Exchange Debentures
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 an Agent to deal with the Company or
an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain (i) an office or agency where
Exchange Debentures may be presented for registration of transfer or for
exchange (including any co-registrar, the "Registrar") and (ii) an office or
agency where Exchange Debentures may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Exchange Debentures and of their
transfer and exchange. The Company may appoint one or more co-registrars and one
or more additional paying agents. The term "Paying Agent" includes any
additional paying agent. The Company may change any Paying Agent, Registrar or
co-registrar without prior notice to any Holder of an Exchange Debenture. The
Company shall notify the Trustee and the Trustee shall notify the Holders of the
Exchange Debentures of the name and address of any Agent not a party to this
Indenture. The Company or any Subsidiary Guarantor may act as Paying Agent,
Registrar or co-registrar. The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, which shall incorporate
the provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. If the Company fails to maintain a
Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee
shall act as such, and shall be entitled to appropriate compensation in
accordance with Section 7.07.
The Company initially appoints the Trustee as Registrar,
Paying Agent and agent for service of notices and demands in connection with the
Exchange Debentures.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of the Holders of the Exchange Debentures or the Trustee all money or
Exchange Debentures held by the Paying Agent for the payment of principal of,
and premium, if any, and interest on, the Exchange Debentures, and shall notify
the Trustee of any Default by the Company or any Subsidiary Guarantor in making
any such payment. While any such 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 over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary Guarantor) shall have no further liability for the money or Exchange
Debentures delivered to the Trustee. If the Company or a Subsidiary Guarantor
acts as Paying Agent, it shall segregate and hold in a separate trust fund for
the benefit of the Holders of the Exchange Debentures all money or Exchange
Debentures held by it as Paying Agent.
Section 2.05. List of Holders of the Exchange Debentures.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders of the Exchange Debentures and shall otherwise comply with
TIA ss. 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven Business Days before each interest payment date
and at such other times as the Trustee may request in writing a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of Holders of the Exchange Debentures, including the aggregate
principal amount of the Exchange Debentures held by each thereof, and the
Company and each Subsidiary Guarantor shall otherwise comply with TIA ss.
312(a).
Section 2.06. Transfer and Exchange.
When Exchange Debentures are presented to the Registrar with a
request to register the transfer or to exchange them for an equal principal
amount of Exchange Debentures of other denominations, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met; provided, however, that any Exchange Debenture presented
or surrendered for registration of transfer or exchange shall be duly endorsed
or accompanied by a written instruction of transfer in form satisfactory to the
Registrar and the Trustee duly executed by the Holder thereof or by his attorney
duly authorized in writing. To permit registrations of transfer and exchanges,
the Company shall issue and the Trustee shall authenticate Exchange Debentures
(which may be in any denominations, including denominations of less than S1,000)
at the Registrar's request, subject to such rules as the Trustee may reasonably
require.
Neither the Company nor the Registrar shall be required to (i)
issue, register the transfer of or Exchange Debentures during a period beginning
at the opening of business on a Business Day 15 days before the day of any
selection of Exchange Debentures for redemption under Section 3.02 or (ii)
register the transfer of or exchange any Exchange Debenture so selected for
redemption in whole or in part, except the unredeemed portion of any Exchange
Debenture being redeemed in part.
No service charge shall be made to any Holder of an Exchange
Debenture for any registration of transfer or exchange (except as otherwise
expressly permitted herein), 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 such transfer tax or similar governmental
charge payable upon exchanges pursuant to Sections 2.10, 3.06 or 9.05, which
shall be paid by the Company).
Prior to due presentment to the Trustee for registration of
the transfer of any Exchange Debenture, the Trustee, any Agent and the Company
may deem and treat the Person in whose name any Exchange Debenture is registered
as the absolute owner of such Exchange Debenture for the purpose of receiving
payment of principal of, and premium, if any, and interest on, such Exchange
Debenture and for all other purposes whatsoever, whether or not such Exchange
Debenture is overdue, and neither the Trustee, any Agent nor the Company shall
be affected by notice to the contrary.
Section 2.07. Replacement Exchange Debentures.
If any mutilated Exchange Debenture is surrendered to the
Trustee, or the Company and the Trustee receive evidence to their satisfaction
of the destruction, loss or theft of any Exchange Debenture, the Company shall
issue and the Trustee shall authenticate a replacement Exchange Debenture if the
Trustee's requirements for replacements of Exchange Debentures are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent or any authenticating agent from any
loss which any of them may suffer if an Exchange Debenture is replaced. Each of
the Company and the Trustee may charge for its expenses in replacing an Exchange
Debenture.
Every replacement Exchange Debenture is an additional
obligation of the Company.
Section 2.08. Outstanding Exchange Debentures.
The Exchange Debentures outstanding at any time are all the
Exchange Debentures authenticated by the Trustee except for those canceled by
it, those delivered to it for cancellation and those described in this Section
as not outstanding.
If an Exchange Debenture is replaced pursuant to Section 2.07,
it ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Exchange Debenture is held by a bona fide purchaser.
If the principal amount of any Exchange Debenture is
considered paid under Section 4.01, it ceases to be outstanding and interest on
it ceases to accrue.
Subject to Section 2.09, an Exchange Debenture does not cease
to be outstanding because the Company, a Subsidiary of the Company or an
Affiliate of the Company holds the Exchange Debenture.
Section 2.09. Treasury Exchange Debentures.
In determining whether the Holders of the required principal
amount of Exchange Debentures have concurred in any direction, waiver or
consent, Exchange Debentures owned by the Company, any Subsidiary of the Company
or any Affiliate of the Company shall be considered as though not outstanding,
except that for purposes of determining whether the Trustee shall be protected
in relying on any such direction, waiver or consent, only Exchange Debentures
which a Responsible Officer knows to be so owned shall be so considered.
Notwithstanding the foregoing, Exchange Debentures that are to be acquired by
the Company, any Subsidiary of the Company or an Affiliate of the Company
pursuant to an exchange offer, tender offer or other agreement shall not be
deemed to be owned by the Company, a Subsidiary of the Company or an Affiliate
of the Company until legal title to such Exchange Debentures passes to the
Company, Subsidiary or Affiliate, as the case may be.
Section 2.10. Temporary Exchange Debentures.
Until definitive Exchange Debentures are ready for delivery,
the Company may prepare and the Trustee shall authenticate temporary Exchange
Debentures. Temporary Exchange Debentures shall be substantially in the form of
definitive Exchange Debentures but may have variations that the Company and the
Trustee consider appropriate for temporary Exchange Debentures. Without
unreasonable delay, the Company shall prepare and the Trustee, upon receipt of
the written order of the Company signed by two Officers of the Company, shall
authenticate definitive Exchange Debentures in exchange for temporary Exchange
Debentures. Until such exchange, temporary Exchange Debentures shall be entitled
to the same rights, benefits and privileges as definitive Exchange Debentures.
Section 2.11. Cancellation.
The Company at any time may deliver Exchange Debentures to the
Trustee for cancellation. The Registrar and Paying Agent shall forward to the
Trustee any Exchange Debentures surrendered to them for registration of
transfer, exchange or payment. The Trustee shall cancel all Exchange Debentures
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall destroy canceled Exchange Debentures (subject to the
record retention requirements of the Exchange Act), unless the Company directs
canceled Exchange Debentures to be returned to them. The Company may not issue
new Exchange Debentures to replace Exchange Debentures that they have redeemed
or paid or that have been delivered to the Trustee for cancellation. All
canceled Exchange Debentures held by the Trustee shall be destroyed and
certification of their destruction delivered to the Company, unless by a written
order, signed by two Officers of the Company, the Company shall direct that
canceled Exchange Debentures be returned to them.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the
Exchange Debentures, 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 of the Exchange Debentures on a subsequent special
record date, which date shall be at the earliest practicable date but in all
events at least five Business Days prior to the payment date, in each case at
the rate provided in the Exchange Debentures and in Section 4.01. The Company
shall, with the consent of the Trustee, fix or cause to be fixed each such
special record date and payment date. At least 15 days before the special record
date, the Company (or the Trustee, in the name of and at the expense of the
Company) shall mail to Holders of the Exchange Debentures a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
Section 2.13. Record Date.
The record date for purposes of determining the identity of
Holders of the Exchange Debentures entitled to vote or consent to any action by
vote or consent authorized or permitted under this Indenture shall be determined
as provided for in TIA ss.316(c).
Section 2.14. CUSIP Number.
The Company in issuing the Exchange Debentures may use a
"CUSIP" number and, if it does so, the Trustee shall use the CUSIP number in
notices of redemption or exchange as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Exchange Debentures
and that reliance may be placed only on the other identification numbers printed
on the Exchange Debentures. The Company will promptly notify the Trustee of any
change in the CUSIP number.
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.
If the Company elects to redeem Exchange Debentures pursuant
to the optional redemption provisions of Section 3.07, it shall furnish to the
Trustee, at least 45 days (unless a shorter period is acceptable to the Trustee)
but not more than 60 days before a redemption date, an Officers' Certificate
setting forth (i) the redemption date, (ii) the principal amount of Exchange
Debentures to be redeemed and (iii) the redemption price.
Section 3.02. Selection of Exchange Debentures to be Redeemed.
If less than all of the Exchange Debentures are to be redeemed
at any time, the Trustee shall select the Exchange Debentures to be redeemed
among the Holders of the Exchange Debentures on a pro rata basis, by lot or in
accordance with any other method the Trustee considers fair and appropriate (and
in such manner as complies with applicable legal and stock exchange
requirements, if any), proved that no Exchange Debentures with a principal
amount of S1,000 or less shall be redeemed in part. In the event of partial
redemption by lot, the particular Exchange Debentures to be redeemed shall be
selected, unless otherwise provided herein, not less than 35 nor more than 60
days prior to the redemption date by the Trustee from the outstanding Exchange
Debentures not previously called for redemption.
The Trustee shall promptly notify the Company in writing of
the Exchange Debentures selected for redemption and, in the case of any Exchange
Debenture selected for partial redemption, the principal amount thereof to be
redeemed. Exchange Debentures and portions of them selected shall be in amounts
of S1,000 or whole multiples of S1,000 (except that Exchange Debentures with a
principal amount of less than S1,000 shall not be redeemed in part); except that
if all of the Exchange Debentures of a Holder are to be redeemed, the entire
outstanding amount of Exchange Debentures held by such Holder, even if not a
multiple of S1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Exchange Debentures called
for redemption also apply to portions of Exchange Debentures called for
redemption.
Section 3.03. Notice of Redemption.
Subject to the provisions of Section 3.08, at least 30 days
but not more than 60 days before a redemption date, the Company shall mail or
cause to be mailed, by first class mail, a notice of redemption to each Holder
whose Exchange Debentures are to be redeemed at its registered address.
The notice shall identify the Exchange Debentures to be
redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Exchange Debenture is being redeemed in part, the
portion of the principal amount of such Exchange Debenture to be
redeemed and that, after the redemption date upon surrender of such
Exchange Debenture, a new Exchange Debenture or Exchange Debentures in
principal amount equal to the unredeemed portion shall be issued;
(d) the name and address of the Paying Agent;
(e) that Exchange Debentures called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Exchange Debentures called for
redemption ceases to accrue on and after the redemption date;
(g) the paragraph of the Exchange Debentures and/or Section of
this Indenture pursuant to which the Exchange Debentures called for
redemption are being redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Exchange Debentures.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03, Exchange Debentures called for redemption become due and payable on the
redemption date at the redemption price.
Section 3.05. Deposit of Redemption Price.
On or prior to any redemption date, the Company shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the redemption
price of and accrued interest on all Exchange Debentures to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption price of, and accrued interest on,
all Exchange Debentures to be redeemed.
On and after the redemption date, interest shall cease to
accrue on the Exchange Debentures or the portions of Exchange Debentures called
for redemption. If an Exchange Debenture is redeemed on or after an interest
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
Exchange Debenture was registered at the close of business on such record date.
If any Exchange Debenture called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest shall be paid on the unpaid principal, from
the redemption date until such principal is paid, and to the extent lawful on
any interest not paid on such unpaid principal, in each case at the rate
provided in the Exchange Debentures and in Section 4.01.
Section 3.06. Exchange Debentures Redeemed in Part.
Upon surrender of an Exchange Debenture that is redeemed in
part, the Company shall issue and the Trustee shall authenticate for the Holder
of the Exchange Debentures at the expense of the Company a new Exchange
Debenture equal in principal amount to the unredeemed portion of the Exchange
Debenture surrendered.
Section 3.07. Optional Redemption.
The Company shall not have the option to redeem the Exchange
Debentures prior to April 15, 2000. Thereafter, the Exchange Debentures 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 a percentage of principal amount) set forth below plus accrued and
unpaid interest thereon to the applicable redemption date, if redeemed during
the twelve-month period beginning on April 15 of the years indicated below:
Year Percentage
---- ----------
2000..................................... 106.375%
2001..................................... 103.188%
2002 and thereafter...................... 100.000%
In addition, on or prior to April 15, 1998, the Company may
redeem up to 35% in aggregate principal amount of the Exchange Debentures then
outstanding, at a redemption price equal to 110% of the principal amount
thereof, plus accrued and unpaid interest to the redemption date, with the
proceeds of a public offering of common stock of the Company, provided that such
redemption occurs within 90 days after consummation of such public offering.
Section 3.08. Offer to Purchase by Application of
Excess Proceeds.
Subject to the last paragraph of this Section 3.08, when the
cumulative amount of Excess Proceeds that have not been applied in accordance
with this Section 3.08 exceeds $5.0 million, the Company shall, within 30 days
thereafter, make an offer to all Holders of Exchange Debentures (an "Excess
Proceeds Offer") to purchase the maximum principal amount of Exchange Debentures
that may be purchased out of such Excess Proceeds, at an offer price in cash in
an amount equal to 101% of the outstanding principal amount thereof plus accrued
and unpaid interest, if any, to the date fixed for the closing of such offer in
accordance with the procedures specified below.
The Excess Proceeds Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Offer Period"). No
later than five Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the maximum principal amount of
Exchange Debentures that may be purchased with such Excess Proceeds (which
maximum principal amount of Exchange Debentures shall be the "Offer Amount") or,
if less than the Offer Amount has been tendered, all Exchange Debentures
tendered in response to the Excess Proceeds Offer.
If the Purchase Date is on or after an interest record date
and on or before the related interest payment date, any accrued interest shall
be paid to the Person in whose name an Exchange Debenture is registered at the
close of business on such record date, and no additional interest shall be
payable to Holders who tender Exchange Debentures pursuant to the Excess
Proceeds Offer.
Upon the commencement of any Excess Proceeds Offer, the
Company shall send, by first class mail, a notice to the Trustee and each of the
Holders of the Exchange Debentures, with a copy to the Trustee. The notice shall
contain all instructions and materials necessary to enable such Holders to
tender Exchange Debentures pursuant to the Excess Proceeds Offer. The notice,
which shall govern the terms of the Excess Proceeds Offer, shall state:
(a) that the Excess Proceeds Offer is being made pursuant to
this Section 3.08 and the length of time the Excess Proceeds Offer
shall remain open;
(b) the Offer Amount, the purchase price and the Purchase
Date;
(c) that any Exchange Debenture not tendered or accepted for
payment shall continue to accrue interest;
(d) that any Exchange Debenture accepted for payment pursuant
to the Excess Proceeds Offer shall cease to accrue interest after the
Purchase Date;
(e) that Holders electing to have an Exchange Debenture
purchased pursuant to any Excess Proceeds Offer shall be required to
surrender the Exchange Debenture, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Exchange Debenture
completed, to the Company, a depositary, if appointed by the Company,
or a Paying Agent at the address specified in the notice at least three
business days before the Purchase Date;
(f) that Holders shall be entitled to withdraw their election
if the Company, depositary or Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Exchange Debenture the
Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have the Exchange Debenture purchased;
(g) that, if the aggregate principal amount of Exchange
Debentures surrendered by Holders exceeds the Offer Amount, the Company
shall select the Exchange Debentures to be purchased on a pro rata
basis (with such adjustments as may be deemed appropriate by the
Company so that Exchange Debentures surrendered by Holders in
denominations of $1,000, or integral multiples thereof, are purchased
in integral multiples of $1,000 and Exchange Debentures in
denominations of less than $1,000 may be purchased in full, if at all,
at the option of the Company); and
(h) that Holders whose Exchange Debentures were purchased only
in part shall be issued new Exchange Debentures equal in principal
amount to the unpurchased portion of the Exchange Debentures
surrendered.
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary,
the Offer Amount of Exchange Debentures or portions thereof tendered pursuant to
the Excess Proceeds Offer, or if less than the Offer Amount has been tendered,
all Exchange Debentures or portion thereof tendered, and deliver to the Trustee
an Officers' Certificate stating that such Exchange Debentures or portions
thereof were accepted for payment by the Company in accordance with the terms of
this Section 3.08. The Company, depository or Paying Agent, as the case may be,
shall promptly (but in any case not later than five Business Days after the
Purchase Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Exchange Debenture tendered by such Holder and accepted by
the Company for purchase, and the Company shall promptly issue a new Exchange
Debenture, and the Trustee shall authenticate and mail or deliver such new
Exchange Debenture to such Holder equal in principal amount to any unpurchased
portion of the Exchange Debenture surrendered. Any Exchange Debenture not so
accepted shall be promptly mailed or delivered by the Company to the Holder
thereof. The Company shall publicly announce the results of the Excess Proceeds
Offer on the Purchase Date. In the event that the aggregate amount of Excess
Proceeds exceeds the aggregate principal amount of Exchange Debentures
surrendered by holders thereof pursuant to an Excess Proceeds Offer, the Company
may use the remaining Excess Proceeds for general purposes. Upon completion of
an Excess Proceeds Offer, the amount of Excess Proceeds shall be deemed to be
reset at zero.
Other than as specifically provided in this Section 3.08, any
purchase pursuant to this Section 3.08 shall be made pursuant to the provisions
of Sections 3.01 through 3.06.
Notwithstanding the foregoing, the Company shall not make an
Excess Proceeds Offer or comply with the other provisions of this Section 3.08
at any time that any of the Notes are outstanding.
ARTICLE 4
COVENANTS
As long as any Exchange Debentures shall be outstanding, the
Company shall comply with the covenants in this Article 4.
Section 4.01. Payment of Exchange Debentures.
The Company shall pay or cause to be paid the principal of,
and premium, if any, and interest on, the Exchange Debentures on the dates and
in the manner provided in the Exchange Debentures. Principal, and premium, if
any, and interest shall be considered paid on the date due if the Paying Agent,
if other than the Company, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds (or, in the case
of payments of interest prior to April 15, 2000, Exchange Debentures in an
aggregate principal amount equal to the amount of interest (rounded to the
nearest whole cent) that would be payable with respect to such Exchange
Debentures if such interest were paid in cash) and designated for and sufficient
to pay all principal, premium, if any, and interest then due.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to the then applicable interest rate on the Exchange Debentures to
the extent lawful; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
The term "Bankruptcy Law" means title 11, U.S. Code or any
similar federal or state law for the relief of debtors.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain an office or agency (which may be
an office of the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) where Exchange Debentures may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Exchange Debentures and this Indenture may be served. The Company
shall give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Exchange Debentures 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
for such purposes. The Company shall give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any
such other office or agency.
The Company hereby designates the Corporate Trust Office of
the Trustee as one such office or agency of the Company in accordance with
Section 2.03.
Section 4.03. Reports.
So long as any Exchange Debentures are outstanding, the
Company shall file with the SEC the annual reports, quarterly reports and the
information, documents and other reports required to be filed by the Company
with the SEC pursuant to Sections 13 or 15 of the Exchange Act, whether or not
the Company has or is required to have a class of securities registered under
the Exchange Act, at the time it is or would be required to file the same with
the SEC and, within 15 days after the Company is or would be required to file
such reports, information or documents with the SEC, shall mail such reports,
information and documents to the Trustee and to holders of the Exchange
Debentures.
Section 4.04. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether each 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 his or her
knowledge each entity has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture,
including, without limitation, a default in the performance or breach of Section
4.07, Section 4.09, Section 4.10 or Section 4.15 (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action each is taking or proposes
to take with respect thereto) and that to the best of his or her knowledge no
event has occurred and remains in existence by reason of which payments on
account of the principal of or interest, if any, on the Exchange Debentures is
prohibited or if such event has occurred, a description of the event and what
action each is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered pursuant to Section 4.03 above shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements,
nothing has come to their attention which would lead them to believe that the
Company has violated any provisions of Article 4 or Article 5 of this Indenture
or, if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be liable
directly or indirectly to any Person for any failure to obtain knowledge of any
such violation.
(c) The Company shall, so long as any of the Exchange
Debentures are outstanding, deliver to the Trustee, forthwith upon any Officer
becoming aware of (i) any Default or Event of Default or (ii) any default under
any Indebtedness referred to in Section 6.01(f) or (g), an Officers' Certificate
specifying such Default, Event of Default or default and what action the Company
is taking or proposes to take with respect thereto.
Section 4.05. Taxes.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and
governmental levies except as contested in good faith and by appropriate
proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of the Exchange Debentures.
Section 4.06. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.
Section 4.07. Restricted Payments.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, (i) declare or pay any dividend or make
any distribution on account of any Equity Interests of the Company or any of its
Subsidiaries (other than dividends or distributions payable in Equity Interests
(other than Disqualified Stock) of the Company or dividends or distributions
payable to the Company or any of its Subsidiaries), (ii) purchase, redeem or
otherwise acquire or retire for value any Equity Interests of the Company or any
of its Subsidiaries (other than any such Equity Interests owned by the Company
or any Subsidiary of the Company), (iii) purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is pari passu with or
subordinated in right of payment to the Exchange Debentures (other than any such
Indebtedness held by the Company or any Subsidiary of the Company), except in
accordance with the scheduled redemption or repayment provisions set forth in
the original documentation governing such Indebtedness 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 such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(b) in the case of a Restricted Payment that is not a
Restricted Investment, after giving effect to such Restricted Payment
and the incurrence of any Indebtedness the net proceeds of which are
used to finance such Restricted Payment, the Company's Indebtedness to
Cash Flow Ratio would not have exceeded 7.5 to 1, if such Restricted
Payment is made before April 15, 1997, and 6.5 to 1, if such Restricted
Payment is made on or after April 15, 1997; and
(c) such Restricted Payment, together with the aggregate of
all other Restricted Payments made by the Company and its Subsidiaries
after the Preferred Stock Issue Date, is less than the sum of (x) 50 %
of the Consolidated Net Income of the Company for the period (taken as
one accounting period) from the Preferred Stock Issue Date to the end
of the Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period is a
deficit, minus 100% of such deficit), plus (y) 100% of the aggregate
net cash proceeds received by the Company from the issue or sale of
Equity Interests of the Company (other than (1) Equity Interests sold
to a Subsidiary or Unrestricted Subsidiary of the Company, (2)
Disqualified Stock and (3) Equity Interests referred to in (ii) below)
since the Preferred Stock Issue Date.
The foregoing provisions will not prohibit (i) the payment of
any dividend within 60 days after the date of declaration thereof, if at such
date of declaration such payment would have complied with the provisions of this
Indenture, (ii) the redemption, repurchase, retirement or other acquisition of
any Equity Interests of the Company in exchange for, or out of the net proceeds
of the substantially concurrent sale (other than to a Subsidiary or Unrestricted
Subsidiary of the Company) of, other Equity Interests of the Company (other than
Disqualified Stock), (iii) a Permitted Refinancing, (iv) the repurchase,
redemption or other acquisition or retirement for value of any Equity Interests
of the Company (or any predecessor) or any Subsidiary of the Company held by
employees of, or consultants or advisors to, the Company or any of its
Subsidiaries, provided that the aggregate price paid for all such Equity
Interests shall not exceed $5.0 million, (v) Investments in an amount not to
exceed $50 million, provided that no more than $20 million relates to
Investments in Persons other than (A) Persons that directly or indirectly
provide DTH services or (B) Persons the principal assets of which are securities
of, or ownership interests in, other Persons directly or indirectly engaged in
the provision of DTH services, or (vi) repurchases of Senior Subordinated Notes
pursuant to Section 3.09 or Section 4.15 of the indenture governing the Senior
Subordinated Notes (as in effect on the date of this Indenture). The amounts
referred to in clauses (i) through (vi) shall not be included as Restricted
Payments in any computation made pursuant to paragraph (c) of this Section 4.07.
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 Section 4.07 were computed, which calculations may
be based upon the Company's latest available financial statements.
Section 4.08. Dividend and Other Payment Restrictions
Affecting Subsidiaries.
The Company will not, and will not permit any of its
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
Subsidiary (other than a Guarantor) to (a)(i) pay dividends or make any other
distributions to the Company or any of its Subsidiaries on its Capital Stock or
with respect to any other interest or participation in, or measured by, its
profits, or (ii) pay any indebtedness owed to the Company or any of its
Subsidiaries, (b) make loans or advances to the Company or any of its
Subsidiaries or (c) transfer any of its properties or assets to the Company or
any of its Subsidiaries, except for such encumbrances or restrictions existing
under or by reason of (i) Existing Indebtedness, (ii) applicable law, (iii) any
instrument governing Acquired Debt as in effect at the time of 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, provided that
the Consolidated Cash Flow of such Person shall not be taken into account in
determining whether such acquisition was permitted by the terms of this
Indenture, (iv) by reason of customary non-assignment provisions in leases
entered into in the ordinary course of business and consistent with past
practices, (v) permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Refinancing Indebtedness
are no more restrictive than those contained in the agreements governing the
Indebtedness being refinanced or (vi) the Bank Debt.
Section 4.09. Incurrence of Indebtedness and Issuance of
Preferred Stock.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guaranty
or otherwise become directly or indirectly liable with respect to (collectively,
"incur") any Indebtedness (including Acquired Debt), and the Company shall not
issue any Disqualified Stock and shall not permit any of its Subsidiaries to
issue any shares of preferred stock; provided, however, that the Company and any
Subsidiary of the Company that is a Guarantor may incur Indebtedness or issue
shares of preferred stock if, after giving effect to the incurrence of such
Indebtedness or the issuance of such preferred stock and the application of the
proceeds thereof, the Company's Indebtedness to Cash Flow Ratio would not have
exceeded 7.5 to 1, if such additional Indebtedness is incurred or such preferred
stock is issued before April 15, 1997, and 6.5 to 1, if such additional
Indebtedness is incurred or such preferred stock is issued on or after April 15,
1997.
The foregoing limitation will not apply to (a) the incurrence
by the Company of vendor or third-party purchase money financing in connection
with the acquisition and launch of one or more satellites; (b) the incurrence of
bank Indebtedness (the "Bank Debt") in an aggregate amount not to exceed the
Company's Consolidated Cash Flow for the most recently ended four full fiscal
quarters preceding such incurrence for which internal financial statements are
available (and any amendment, extension, refinancing, renewal, restatement,
replacement or refunding thereof); (c) Indebtedness in an amount not to exceed
S15 million at any one time outstanding which may be incurred only upon a
finding by the Company (evidenced by a resolution of the Board of Directors set
forth in an Officers' Certificate delivered to the Trustee) that such
Indebtedness is necessary to finance unanticipated costs in connection with the
development, construction, launch or insurance of PAS-3, PAS-4, PAS-5 or PAS-6
(or any permitted replacement thereof arising from any loss relating to any such
satellite); (d) Indebtedness in an amount not to exceed $25 million at any one
time outstanding incurred in connection with the acquisition and installation of
communications equipment and related land, buildings and other property; (e)
Indebtedness between and among the Company and/or any of its Subsidiaries; (f)
Acquired Debt of a Person incurred prior to the date upon which such Person was
acquired by the Company (excluding Indebtedness incurred by such entity in
connection with, or in contemplation of, such entity being acquired by the
Company) in an aggregate principal amount not to exceed $10 million at any one
time outstanding, provided that such Indebtedness and the holders thereof do
not, at any time, have direct or indirect recourse to any property or assets of
the Company and its Subsidiaries other than the property and assets of such
acquired entity and its Subsidiaries; (g) Existing Indebtedness and Indebtedness
represented by the Exchange Debentures and this Indenture; or (h) the incurrence
by the Company or its Subsidiaries of Indebtedness issued in exchange for, or
the proceeds of which are used to extend, refinance, renew, replace, or refund
Indebtedness referred to in the immediately preceding paragraph clauses (a) and
(c) through (g) above ("Refinancing Indebtedness"), provided that (1) the
principal amount of such Refinancing Indebtedness shall not exceed the principal
amount of, premium and accrued interest on, and expenses (including consent and
similar payments) in connection with the refinancing of, the Indebtedness so
extended, refinanced, renewed, replaced, substituted or refunded; (2) the
Refinancing Indebtedness shall have a final maturity 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 Indebtedness being extended,
refinanced, renewed, replaced or refunded; and (3) the Refinancing Indebtedness
shall be subordinated in right of payment to the Exchange Debentures on terms at
least as favorable to the holders of Exchange Debentures as those contained in
the documentation governing the Indebtedness being extended, refinanced,
renewed, replaced or refunded (a "Permitted Refinancing").
Section 4.10. Asset Sales.
(a) The Company shall not, and shall not permit any of its
Subsidiaries to, whether in a single transaction or a series of related
transactions, (i) sell, lease, convey or otherwise dispose of any assets
(including by way of a sale-and-leaseback) other than sales, leases, conveyances
or other dispositions (A) in the ordinary course of business, (B) of any
Investment in an Unrestricted Subsidiary and (C) to the Company or a Subsidiary
of the Company by any Subsidiary of the Company (provided that the sale, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company shall be governed by Section 5.01 of this Indenture, and provided,
further, that all transponder service agreements, transponder contracts and
transponder sales in transactions at fair market value (or at discounts
consistent with the Company's past practices) shall be deemed to be in the
ordinary course of business) or (ii) issue or sell equity securities of any
Subsidiary of the Company (other than an issuance or sale of equity securities
of any such Subsidiary to the Company or a Subsidiary of the Company, which
issuance or sale does not violate Section 4.07 or Section 4.13), in the case of
either (i) or (ii) above, (1) that have a fair market value in excess of S10
million or (2) for net proceeds in excess of S10 million (each of the foregoing,
an "Asset Sale"), unless (x) the Company (or such Subsidiary, as the case may
be) receives consideration at the time of such Asset Sale at least equal to the
fair market value (evidenced by a resolution of the Board of Directors set forth
in an Officers' Certificate delivered to the Trustee; provided, however, that if
the fair market value of such assets exceeds S15 million, the fair market value
shall be determined by an investment banking firm of national standing selected
by the Company) of the assets sold or otherwise disposed of and (y) at least 85%
of the consideration therefor received by the Company or such Subsidiary is in
the form of cash.
(b) Within 180 days after any Asset Sale, the Company (or the
applicable Subsidiary) may irrevocably commit to apply the Net Proceeds from
such Asset Sale to the purchase of tangible assets of the same kind as those
sold or to reduce Senior Debt or the Senior Subordinated Notes, provided that
such Net Proceeds are so used within 365 days after such Asset Sale, and
provided, further, if the Company sells a satellite, the Company may apply the
Net Proceeds from the sale of such satellite to purchase a replacement satellite
only if such replacement satellite is of comparable or superior technological
capability as compared with the satellite sold and is scheduled to be launched
within six months from the date of such sale. Any Net Proceeds from any Asset
Sale that are not applied or invested as provided in the preceding sentence,
plus, to the extent not included therein, the net proceeds from the sale by the
Company and its Subsidiaries of any transponders, whether or not in the ordinary
course of business, to the extent such net proceeds exceed $20 million in any
calendar year, shall constitute "Excess Proceeds" and, subject to the last
paragraph of Section 3.08, shall be applied to an offer to purchase Exchange
Debentures as set forth in Section 3.08; provided, however, that a transaction
involving a transponder shall be deemed to be a sale only if it is classified as
a sale in the financial statements of the Company.
(c) Notwithstanding the foregoing, the Company shall not, and
shall not permit any of its Subsidiaries or Unrestricted Subsidiaries to, grant
any Lien on or otherwise sell, transfer or convey any orbital slot, license or
other right to operate a satellite to any entity or Person, whether or not
controlled by the Principals, that engages or intends to engage in a business
substantially similar to, or in competition with, that of the Company and its
Subsidiaries, except as permitted by clause (b) of the definition of "Permitted
Liens."
Section 4.11. Transactions with Affiliates.
The Company shall not, and shall not permit any of its
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
any contract, agreement, understanding, loan, advance or guarantee with, or for
the benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless (a) such Affiliate Transaction is on terms that are no
less favorable to the Company or the relevant Subsidiary than those that would
have been obtained in a comparable transaction by the Company or such Subsidiary
with an unrelated Person and (b) other than in connection with transactions with
Televisa or its Affiliates in the ordinary course of the Company's business of
providing satellite services (including in connection with the DTH Joint
Venture), the Company delivers to the Trustee (i) with respect to any Affiliate
Transaction involving aggregate payments in excess of S1 million, a resolution
of the Board of Directors set forth in an Officers' Certificate certifying that
such Affiliate Transaction complies with clause (a) above and such Affiliate
Transaction is approved by a majority of the members of the Board of Directors
who have no financial interest in such transactions (other than solely by reason
of their interests in the Company) and (ii) an opinion as to the fairness to the
Company or such Subsidiary from a financial point of view issued by an
investment banking firm of national standing with respect to any Affiliate
Transaction involving aggregate payments in excess of $5 million; provided,
however, that (i) any employment agreement entered into by the Company or any of
its Subsidiaries in the ordinary course of business and consistent with the past
practice of the Company or such Subsidiary, (ii) transactions between or among
the Company and/or its Subsidiaries and (iii) transactions permitted by the
provisions of Section 4.07 shall not be deemed Affiliate Transactions.
Section 4.12. Liens.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly create, incur, assume or suffer to exist
any Lien on any asset now owned or hereafter acquired, or on any income or
profits therefrom, or assign or convey any right to receive income therefrom,
except Permitted Liens.
Section 4.13. Subsidiary Guarantees.
If the Company transfers or causes to be transferred, in one
or a series of related transactions, property or assets (including, without
limitation, businesses, divisions, real property, assets or equipment) having a
fair market value (evidenced by a resolution of the Board of Directors set forth
in an Officers' Certificate delivered to the Trustee) exceeding $5 million to
any Subsidiary of the Company, the Company shall cause such transferee
Subsidiary to (a) execute and deliver to the Trustee a supplemental indenture in
form and substance reasonably satisfactory to the Trustee pursuant to which such
transferee Subsidiary shall unconditionally Guarantee, on a senior subordinated
basis (pursuant to subordination provisions substantially similar to Article
10), all of the Company's obligations under the Exchange Debentures on the terms
set forth in this Indenture and (b) deliver to the Trustee an Opinion of Counsel
reasonably satisfactory to the Trustee that such supplemental indenture has been
duly executed and delivered by such transferee Subsidiary.
The foregoing provisions of this Section 4.13 shall not apply
to (i) transfers of property or assets (other than cash) by the Company to
Subsidiaries in exchange for cash in an amount equal to the fair market value of
such property or assets, as determined by the Board of Directors and evidenced
by a resolution set forth in an Officers' Certificate or (ii) Restricted
Payments permitted by Section 4.07.
In the event a Subsidiary becomes a Subsidiary Guarantor
pursuant to this Section 4.13, each such Subsidiary Guarantor shall
unconditionally guarantee, on a senior subordinated basis (pursuant to
subordination provisions substantially similar to Article 10), to each Holder of
an Exchange Debenture authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Exchange Debentures or the obligations of
the Company hereunder or thereunder, that: (a) the principal of and interest on
the Exchange Debentures shall be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Exchange Debentures, if any, if lawful, and all
other obligations of the Company to the Holders or the Trustee hereunder or
thereunder shall be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and (b) in case of any extension of time of
payment or renewal of any Exchange Debentures or any of such other obligations,
that same shall be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. Failing payment when due of any amount so guaranteed
or any performance so guaranteed for whatever reason, each such Subsidiary
Guarantor shall be jointly and severally obligated to pay the same immediately.
Each such Subsidiary Guarantor shall agree that its obligations under its
Subsidiary Guarantee shall be unconditional, irrespective of the validity,
regularity or enforceability of the Exchange Debentures or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder
of the Exchange Debentures with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each such Subsidiary Guarantor shall waive
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 covenant that such Subsidiary Guarantee will not be discharged except by
complete performance of the obligations contained in the Exchange Debentures and
this Indenture. If any Holder of an Exchange Debenture or the Trustee is
required by any court or otherwise to return to the Company or any such
Subsidiary Guarantor, or any Custodian, trustee, liquidator or other similar
official acting in relation to either the Company or any Subsidiary Guarantor,
any amount paid by either to the Trustee or such Holder of an Exchange
Debenture, such Subsidiary Guarantor's Subsidiary Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. Each such
Subsidiary Guarantor shall agree that it shall not be entitled to any right of
subrogation in relation to the Holders of the Exchange Debentures in respect of
any obligations guaranteed until payment in full of all obligations guaranteed.
Each such Subsidiary Guarantor shall further agree that, as between the
Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed may be accelerated as
provided in Article 6 for the purposes of the Subsidiary Guarantees,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed, and (y) in the event of
any declaration of acceleration of such obligations as provided in Article 6,
such obligations (whether or not due and payable) shall forthwith become due and
payable by such Subsidiary Guarantors for the purpose of the Subsidiary
Guarantees. Such Subsidiary Guarantors shall have the right to seek contribution
from any non-paying Subsidiary Guarantor so long as the exercise of such right
does not impair the rights of the Holders of the Exchange Debentures under the
Subsidiary Guarantees.
Each Subsidiary Guarantee shall provide that, in the event
that a Subsidiary Guarantee would constitute or result in a violation of any
applicable fraudulent conveyance or similar law of any relevant jurisdiction,
the liability of a Subsidiary Guarantor under such Subsidiary Guarantee shall be
reduced to the maximum amount permissible under such fraudulent conveyance or
similar law.
The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
Section 4.14. Corporate Existence.
Subject to Article 5, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
existence as a corporation, and the corporate, partnership or other existence of
any Subsidiary, in accordance with the respective organizational documents (as
the same may be amended from time to time) of the Company or any such Subsidiary
and (ii) the rights (charter and statutory), licenses and franchises of the
Company and its Subsidiaries; provided, however, that the Company shall not be
required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Subsidiaries if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to the
Holders of the Exchange Debentures.
Section 4.15. Offer to Repurchase Upon Change of
Control.
(a) Upon the occurrence of a Change of Control, the Company
shall make an offer (the "Change of Control Offer") to each Holder of Exchange
Debentures to repurchase all or any part of such Holder's Exchange Debentures at
a purchase price equal to 101% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the date of purchase (the "Change of Control
Payment"), provided that if the date of purchase is on or after an interest
record date and on or before the related interest payment date, any accrued
interest shall be paid to the Person in whose name an Exchange Debenture is
registered at the close of business on such record date, and no additional
interest shall be paid or payable to Holders who tender Exchange Debentures
pursuant to the Change of Control Offer. Within 15 days following any Change of
Control, the Company shall mail a notice to the Trustee and each Holder stating:
(1) that the Change of Control Offer is being made pursuant to this Section and
that all Exchange Debentures tendered will be accepted for payment; (2) the
purchase price and the purchase date, which shall be no earlier than 30 days nor
later than 40 days from the date such notice is mailed (the "Change of Control
Payment Date"); (3) that any Exchange Debenture not tendered will continue to
accrue interest in accordance with its terms; (4) that, unless the Company
defaults in the payment of the Change of Control Payment, all Exchange
Debentures accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date; (5) that
Holders electing to have any Exchange Debentures purchased pursuant to a Change
of Control Offer will be required to surrender the Exchange Debentures, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Exchange Debentures completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the third Business Day preceding
the Change of Control Payment Date; (6) that Holders will be entitled to
withdraw their election if the Paying Agent receives, not later than the close
of business on the second Business Day preceding the Change of Control Payment
Date, a telegram, telex, facsimile transmission or letter setting forth the name
of the Holder, the principal amount of Exchange Debentures delivered for
purchase, and a statement that such Holder is withdrawing his election to have
such Exchange Debentures purchased; and (7) that Holders whose Exchange
Debentures are being purchased only in part will be issued new Exchange
Debentures equal in principal amount to the unpurchased portion of the Exchange
Debentures surrendered. 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 the Exchange Debentures in connection with a Change of
Control.
(b) On the Change of Control Payment Date, the Company shall,
to the extent lawful, (1) accept for payment Exchange Debentures or portions
thereof tendered pursuant to the Change of Control Offer, (2) deposit with the
Paying Agent an amount equal to the Change of Control Payment in respect of all
Exchange Debentures or portions thereof so tendered and (3) deliver or cause to
be delivered to the Trustee the Exchange Debentures so accepted together with an
Officers' Certificate stating the Exchange Debentures or portions thereof
tendered to the Company. The Paying Agent shall promptly mail to each Holder of
Exchange Debentures so accepted payment in an amount equal to the purchase price
for such Exchange Debentures, and the Trustee shall promptly authenticate and
mail to each Holder a new Exchange Debenture equal in principal amount to any
unpurchased portion of the Exchange Debentures surrendered, if any. The Company
will publicly announce the results of the Change of Control Offer on or as soon
as practicable after the Change of Control Payment Date.
(c) Notwithstanding the foregoing, the Company shall not make
a Change of Control Offer if any of the Notes are outstanding upon the
occurrence of a Change of Control unless all of the Notes are redeemed or
repurchased as a result of such Change of Control, in which case, for purposes
of this Section 4.15, the date on which all Notes shall have been so redeemed or
repurchased shall be deemed to be the date on which such Change of Control shall
have occurred.
Section 4.16. Maintenance of Insurance.
The Company shall maintain (a) in-orbit insurance with respect
to PAS-1 in an amount equal to or greater than $60 million, (b) in-orbit
insurance with respect to PAS-2 in an amount at least equal to the cost to
replace such satellite with a satellite of comparable or superior technological
capability (as estimated by the Board of Directors and evidenced by an Officers'
Certificate delivered to the Trustee) and (c) with respect to PAS-3, PAS-4,
PAS-5 and PAS-6, and each permitted replacement satellite therefor, (i) launch
insurance with respect to each such satellite covering the period from the
launch to 180 days following the launch of such satellite in an amount equal to
or greater than the sum of (A) the cost to replace such satellite pursuant to
the contract pursuant to which a replacement satellite will be constructed, (B)
the cost to launch a replacement satellite pursuant to the contract pursuant to
which a replacement satellite will be launched and (C) the cost of launch
insurance for such satellite or, in the event that the Company has reason to
believe that the cost of obtaining comparable insurance for a replacement
satellite would be materially higher, the Company's best estimate of the cost of
such comparable insurance; provided, however, that in no event shall the Company
be required to maintain launch insurance with respect to any such satellite in
an amount in excess of S235 million, and (ii) at all times subsequent to 180
days after the launch (if it is a Successful Launch) of each such satellite,
in-orbit insurance in an amount at least equal to the cost to replace such
satellite with a satellite of comparable or superior technological capability
(as estimated by the Board of Directors and evidenced by an Officers'
Certificate delivered to the Trustee); provided, however, that the Company may
reduce the amount of in-orbit insurance with respect to PAS-3, PAS-4, PAS-5 or
PAS-6 (or a permitted replacement satellite) (A) to the extent that the cost to
replace any such satellite with a satellite of comparable or superior
technological capability will be reduced by the Company's ownership of a "ground
spare" satellite or of components for use in a replacement satellite and (B) by
the amount of any segregated, uncommitted cash shown on the Company's most
recent consolidated balance sheet for so long as such cash remains so segregated
and uncommitted. The in-orbit insurance required by this paragraph shall provide
that if 50% or more of a satellite's remaining capacity is lost, the full amount
of insurance will become due and payable, and that if a satellite is able to
maintain more than 50% but less than 90% of its remaining capacity, a portion of
such insurance will become due and payable.
In the event that the Company (or a named loss payee) receives
proceeds from insurance relating to any satellite other than PAS-1 at a time
when the Company has less than four operating satellites, the Company may use a
portion of such proceeds to repay any vendor or third-party purchase money
financing pertaining to such satellite that is required to be repaid by reason
of the loss giving rise to such insurance proceeds. The Company may use the
remainder of such proceeds to develop, construct, launch and insure a
replacement satellite (including components for a related ground spare) if (i)
the Company delivers to the Trustee a certificate of the Company's chief
engineer certifying that such replacement satellite is of comparable or superior
technological capability as compared with the satellite being replaced, (ii)
within 90 days of the receipt of such proceeds, the Company delivers to the
Trustee an Officers' Certificate certifying that the Company will have
sufficient funds to service the Company's projected debt service requirements
until the scheduled launch of such replacement satellite and for one year
thereafter and to develop, construct, launch and insure (in the amounts required
by the preceding paragraph) such replacement satellite, that such replacement
satellite is scheduled to be launched within 15 months of the receipt of such
proceeds and that all other conditions precedent pursuant to this paragraph have
been satisfied, and (iii) each 90 days following delivery of the certificate
required by clause (ii) of this paragraph, until the Successful Launch of such
replacement satellite, the Company delivers to the Trustee an Officers'
Certificate certifying that the Company will have sufficient funds to service
the Company's projected debt service requirements until the scheduled launch of
such replacement satellite and for one year thereafter and to develop,
construct, launch and insure (in the amounts required by the preceding
paragraph) such replacement satellite. Any such proceeds not used as permitted
by this paragraph shall be applied, within 90 days, to reduce Senior Debt or
shall constitute "Excess Proceeds" and, subject to the last paragraph of Section
3.08, shall be applied to an offer to purchase Exchange Debentures pursuant to
Section 3.08. In addition, if at any time the Company fails to satisfy any of
the conditions set forth in this paragraph to develop, construct, launch and
insure a replacement satellite, any insurance proceeds remaining at such time
shall be applied, within 90 days, to reduce Senior Debt or shall constitute
"Excess Proceeds" and, subject to the last paragraph of Section 3.08, shall be
applied to an offer to purchase Exchange Debentures pursuant to Section 3.08.
Notwithstanding the foregoing, if the Company receives proceeds from insurance
at a time when the Company has four or more operating satellites, the Company
may use such proceeds for general corporate purposes.
Section 4.17. Activities of the Company.
The Company shall not, and shall not permit any of its
Subsidiaries to, engage in any business other than developing, owning, engaging
in and dealing with all or any part of the business of intranational and
international telecommunications, including but not limited to the purchase,
ownership, operation, leasing and selling of, and generally dealing in or with
one or more satellites and the transponders thereon, including without
limitation the Company's global satellite system and provision of direct-to-home
services.
Section 4.18. Senior Subordinated Debt.
The Company shall not, and shall not permit any Guarantor to,
incur, create, issue, assume, guarantee or otherwise become liable for any
Indebtedness that is subordinate or junior in right of payment to any Senior
Debt or any Guarantee thereof and senior in any respect in right of payment to
the Exchange Debentures or any Guarantee thereof.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of
Assets.
The Company shall not consolidate or merge with or into
(whether or not the Company is the surviving entity), 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 corporation, Person or
entity unless: (a) the Company is the surviving entity or the entity or 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 or existing under
the laws of the United States, any state thereof or the District of Columbia;
(b) the Person formed by or surviving any such consolidation or merger (if other
than the Company) or the Person to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made assumes all the obligations
of the Company, pursuant to a supplemental indenture in a form reasonably
satisfactory to the Trustee, under the Exchange Debentures and this Indenture;
(c) immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred or be continuing; and (d) the Company or any entity
or Person formed by or surviving any such consolidation or merger, or to which
such sale, assignment, transfer, lease, conveyance or other disposition shall
have been made, shall have a Consolidated Net Worth (immediately after such
transaction but prior to any purchase accounting adjustments resulting from the
transaction) not less than the Consolidated Net Worth of the Company immediately
preceding the transaction.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease,
conveyance or other disposition of all or substantially all of the assets of the
Company in accordance with Section 5.01, the successor corporation formed by
such consolidation or into or with which the Company is merged or to which such
sale, lease, conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such consolidation, merger,
sale, lease, conveyance or other disposition, the provisions of this Indenture
referring to the Company shall refer instead to the successor corporation and
not to the Company), and may exercise every right and power of the Company under
this Indenture with the same effect as if such successor Person has been named
as the Company herein.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
Each of the following constitutes an "Event of Default":
(a) default for 30 days in the payment when due of interest
on the Exchange Debentures;
(b) default in the payment when due of principal of or
premium on the Exchange Debentures at maturity, upon redemption or otherwise;
(c) default in the performance or breach of Section 4.07,
Section 4.09, Section 4.10 or Section 4.15;
(d) default by the Company for 60 days after notice from the
Trustee or the Holders of at least 25% in aggregate principal amount of
the Exchange Debentures then outstanding in the performance of any
other covenant, warranty or other agreement in this Indenture or the
Exchange Debentures;
(e) prior to the time that the Company has at least four
operating satellites, default after expiration of any applicable grace
periods by the Company or any of its Affiliates under the Hughes
Satellite Contract or the Arianespace Launch Contract, of which the
Trustee or the Company has received notice from Hughes or Arianespace,
as the case may be, and which default would permit the other party
thereto to terminate such contract;
(f) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Subsidiaries (or the payment of which is guaranteed by the Company or
any of its Subsidiaries), which default is caused by a failure to pay
when due principal or interest on such Indebtedness within the grace
period provided in such Indebtedness (a "Payment Default"), and 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, aggregates $10.0 million or more;
(g) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Subsidiaries (or the payment of which is guaranteed by the Company or
any of its Subsidiaries), which default results in the acceleration
(which acceleration has not been rescinded) of such Indebtedness prior
to its express maturity and the principal amount of any such
Indebtedness, together with the principal amount of any other
Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $10.0 million or
more;
(h) failure by the Company or any of its Subsidiaries to pay
final judgments (other than any judgment as to which a reputable
insurance company has accepted full liability or any judgment entered
against the Company in a jurisdiction outside of the United States
which the Company in good faith after consultation with counsel
believes is not enforceable against the Company outside of such
jurisdiction) aggregating in excess of $5.0 million which judgments are
not stayed within 60 days after their entry; or
(i) the Company, any Subsidiary Guarantor or any Significant
Subsidiary of the Company pursuant to or within the meaning of
Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief
against it in an involuntary case;
(iii) consents to the appointment of a Custodian of
it or for all or substantially all of its property; or
(iv) makes a general assignment for the benefit of
its creditors; and
(j) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company, any
Subsidiary Guarantor or any Significant Subsidiary of the
Company in an involuntary case;
(ii) appoints a Custodian of the Company, any
Subsidiary Guarantor or any Significant Subsidiary of the
Company or for all or substantially all of the property of the
Company, any Subsidiary Guarantor or any Significant
Subsidiary of the Company; or
(iii) orders the liquidation of the Company, any
Subsidiary Guarantor or any Significant Subsidiary of the
Company,
and the order or decree remains unstayed and in effect for 60
consecutive days.
Section 6.02. Acceleration.
If any Event of Default (other than an Event of Default
specified in clause (i) or (j) of Section 6.01) occurs and is continuing, the
Trustee by notice to the Company, or the Holders of at least 25 % in aggregate
principal amount of the then outstanding Exchange Debentures by written notice
to the Company and the Trustee, may declare all the Exchange Debentures to be
due and payable immediately. Upon such declaration, the principal of, and
premium, if any, and interest on, the Exchange Debentures shall be due and
payable immediately. If an Event of Default specified in clause (i) or (j) of
Section 6.01 occurs, such an amount shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder. The Holders of a majority in aggregate principal amount of the
then outstanding Exchange Debentures by written notice to the Trustee may on
behalf of all of the Holders rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal, interest or premium that has
become due solely because of the acceleration) have been cured or waived.
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
or any of its Subsidiaries with the intention of avoiding restrictions on or
payment of the premium that the Company would have had to pay if the Company
then had elected to redeem the Exchange Debentures pursuant to Section 3.07, an
equivalent premium shall also become and be immediately due and payable to the
extent permitted by law. If an Event of Default occurs prior to April 15, 2000
by reason of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding the prohibition on
redemption of the Exchange Debentures prior to such date pursuant to Section
3.07, then the premium payable for purposes of this paragraph for the 12-month
period beginning on April 15 of the years set forth below shall be as set forth
in the following table, expressed as a percentage of the amount that would
otherwise be due but for the provisions of this paragraph, plus accrued
interest, if any, to the date of payment:
Year Percentage
1995................................................. 122.313%
1996................................................. 119.125%
1997................................................. 115.938%
1998................................................. 112.750%
1999................................................. 109.563%
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Exchange Debentures or to enforce the performance of
any provision of the Exchange Debentures or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Exchange Debentures or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder of an Exchange
Debenture 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. All remedies are cumulative to the extent permitted by
law.
Section 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal
amount of the then outstanding Exchange Debentures by notice to the Trustee may
on behalf of the Holders of all of the Exchange Debentures waive an existing
Default or Event of Default and its consequences, except a continuing Default or
Event of Default in the payment of the principal of, premium, if any, or
interest on, the Exchange Debentures. Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.
Section 6.05. Control by Majority.
Holders of a majority in aggregate principal amount of the
then outstanding Exchange Debentures may direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with the law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of other Holders of
Exchange Debentures or that may involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder of an Exchange Debenture may pursue a remedy with
respect to this Indenture or the Exchange Debentures only if:
(a) the Holder of an Exchange Debenture gives to the Trustee
written notice of a continuing Event of Default;
(b) the Holders of at least 25 % in aggregate principal amount
of the then outstanding Exchange Debentures make a written request to
the Trustee to pursue the remedy;
(c) such Holder of an Exchange Debenture or Holders of
Exchange Debentures offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or
expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Exchange Debentures do not
give the Trustee a direction inconsistent with the request.
A Holder of an Exchange Debenture may not use this Indenture to prejudice the
rights of another Holder of an Exchange Debenture or to obtain a preference or
priority over another Holder of an Exchange Debenture.
Section 6.07. Rights of Holders of Exchange Debentures to
Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of an Exchange Debenture to receive payment of principal,
premium, if any, and interest on the Exchange Debenture, on or after the
respective due dates expressed in the Exchange Debenture, 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 the Holder of the Exchange
Debenture.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b)
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 for the whole
amount of principal of, premium, if any, and interest remaining unpaid on the
Exchange Debentures and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders of the Exchange Debentures allowed in any judicial proceedings
relative to the Company (or any other obligor upon the Exchange Debentures), the
Company's creditors or the Company's property and shall be entitled and
empowered to collect, receive and distribute any money or other property payable
or deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder of an Exchange Debenture 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 of the Exchange Debentures,
to pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be paid out
of, any and all distributions, dividends, money, securities and other properties
which the Holders of the Exchange Debentures may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder of an Exchange Debenture any plan of reorganization, arrangement,
adjustment or composition affecting the Exchange Debentures or the rights of any
Holder of an Exchange Debenture thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder of an Exchange Debenture in any such
proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Exchange Debentures for amounts due and
unpaid on the Exchange Debentures for principal, premium, if any, and interest,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Exchange Debentures for principal, premium, if any and
interest, respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Exchange Debentures.
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 a 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 does not apply to a suit by the Trustee, a suit by a
Holder of an Exchange Debenture pursuant to Section 6.07, or a suit by Holders
of more than 10% in aggregate principal amount of the then outstanding Exchange
Debentures.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) 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 their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee, and
(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.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of clause (b) of
this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
clauses (a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders of Exchange Debentures, unless such
Holder shall have offered to the Trustee security and indemnity satisfactory to
the Trustee against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely 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
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. The Trustee may
consult with counsel and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(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 it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company or any Subsidiary
Guarantor shall be sufficient if signed by an Officer of the Company or such
Subsidiary Guarantor.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledge of Exchange Debentures and may otherwise deal with the
Company or any Affiliate of the Company with the same rights it would have if it
were not Trustee. However, in the event that the Trustee acquires any
conflicting interest it must eliminate such conflict within 90 days, apply to
the SEC for permission to continue as trustee or resign. Any Agent may do the
same with like rights and duties. The Trustee is also subject to Sections 7.10
and 7.11.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Exchange
Debentures, it shall not be accountable for the Company's use of the proceeds
from the Exchange Debentures or any money paid to the Company or upon the
Company's direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying Agent
other than the Trustee, and it shall not be responsible for any statement or
recital herein or any statement in the Exchange Debentures or any other document
in connection with the sale of the Exchange Debentures or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and
if it is known to a Responsible Officer of the Trustee, the Trustee shall mail
to Holders of Exchange Debentures a notice of the Default or Event of Default
within 90 days after it occurs. Except in the case of a Default or Event of
Default in payment of principal of, or premium, if any, or interest on, any
Exchange Debenture, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Exchange Debentures.
Section 7.06. Reports by Trustee to Holders of
the Exchange Debentures.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, the Trustee shall mail to the Holders of
the Exchange Debentures a brief report dated as of such reporting date that
complies with TIA ss. 313(a) (but if no event described in TIA ss. 313(a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted). The Trustee also shall comply with TIA ss. 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the
Holders of Exchange Debentures shall be mailed to the Company and filed with the
SEC and each stock exchange on which the Exchange Debentures are listed. The
Company shall promptly notify the Trustee when the Exchange Debentures are
listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Indenture, except
any such loss, liability or expense as may be attributable to the negligence or
bad faith of the Trustee. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Exchange Debentures on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Exchange Debentures. Such Lien shall
survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(i) or (j) occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of Exchange Debentures of a majority in aggregate principal amount of
the then outstanding Exchange Debentures may remove the Trustee by so notifying
the Trustee and the Company in writing. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Exchange
Debentures may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of Exchange Debentures of at least 10% in aggregate
principal amount of the then outstanding Exchange Debentures may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee after written request by any Holder of an
Exchange Debenture who has been a Holder of an Exchange Debenture for at least
six months fails to comply with Section 7.10, such Holder of an Exchange
Debenture may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Exchange Debentures. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
provided all sums owing to the Trustee hereunder have been paid and subject to
the Lien provided for in Section 7.07. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Company's obligations under Section
7.07 shall continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be
a corporation organized and doing business under the laws of the United States
of America or of any state thereof authorized under such laws to exercise
corporate trustee power, shall be subject to supervision or examination by
federal or state authority and shall have a combined capital and surplus of at
least $25 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
Section 7.11. Preferential Collection of Claims
Against Company.
The Trustee is subject to TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
Legal Defeasance and Covenant Defeasance
Section 8.01. Option to Effect Legal Defeasance or
Covenant Defeasance.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
with respect to the Exchange Debentures, elect to have either Section 8.02 or
8.03 be applied to all outstanding Exchange Debentures upon compliance with the
conditions set forth below in this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 of the option
applicable to this Section 8.02, the Company shall be deemed to have been
discharged from its obligations with respect to all outstanding Exchange
Debentures 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 Exchange Debentures, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section 8.05
and the other Sections of this Indenture referred to in (a) and (b) below, and
to have satisfied all its other obligations under such Exchange Debentures and
this Indenture (and the Trustee, on demand of and 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: (a) the rights of Holders of outstanding Exchange Debentures to
receive solely from the trust fund described in Section 8.04, and as more fully
set forth in such Section, payments in respect of the principal of, and premium,
if any, and interest on, such Exchange Debentures when such payments are due,
(b) the Company's obligations with respect to such Exchange Debentures under
Sections 2.04, 2.06, 2.07, 2.10 and 4.02, (c) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and the Company's obligations in
connection therewith and (d) this Article 8. Subject to compliance with this
Article 8, the Company may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03 with respect
to the Exchange Debentures.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 of the option
applicable to this Section 8.03, the Company shall be released from its
obligations under the covenants contained in Sections 4.03, 4.04, 4.07, 4.08,
4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17 and 4.18 and Article 5 with
respect to the outstanding Exchange Debentures on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"),
and the Exchange Debentures shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Exchange Debentures shall not be deemed outstanding for
accounting purposes). For this purpose, such Covenant Defeasance means that,
with respect to the outstanding Exchange Debentures, 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 and such omission to comply shall not constitute a Default or an Event
of Default under Section 6.01(c), but, except as specified above, the remainder
of this Indenture and such Exchange Debentures shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 of the option
applicable to this Section 8.03, Sections 6.01(d) through 6.01(h) shall not
constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of
either Section 8.02 or Section 8.03 to the outstanding Exchange Debentures:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10 who shall agree to comply with the
provisions of this Article 8 applicable to it) 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 Exchange Debentures, (a) cash in U.S. Dollars in an amount, 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, cash in U.S. Dollars in an amount, or (c) a combination
thereof, in such amounts, as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge (i) the principal of, and
premium, if any, and interest on, the outstanding Exchange Debentures
on the stated maturity or on the applicable redemption date, as the
case may be, of such principal or installment of principal, premium, if
any, or interest and (ii) any mandatory sinking fund payments or
analogous payments applicable to the outstanding Exchange Debentures on
the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Exchange Debentures; provided
that the Trustee shall have been irrevocably instructed to apply such
money or the proceeds of such non-callable Government Securities to
said payments with respect to the Exchange Debentures.
(b) In the case of an election under Section 8.02, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (ii) since the date hereof, 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 Exchange Debentures will not recognize
income, gain or loss for federal income tax purposes as a result of
such Legal Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance has not occurred;
(c) In the case of an election under Section 8.03, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee to the effect that the
Holders of the outstanding Exchange Debentures will not recognize
income, gain or loss for federal income tax purposes as a result of
such Covenant Defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not occurred;
(d) No Default or Event of Default with respect to the
Exchange Debentures shall have occurred and be continuing on the date
of such deposit or, insofar as Section 6.01(i) or 6.01(j) is concerned,
at any time in the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period);
(e) 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 material agreement or instrument to which the
Company is a party or by which the Company is bound;
(f) In the case of an election under either Section 8.02 or
8.03, the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit made by the Company pursuant to
its election under Section 8.02 or 8.03 was not made by the Company
with the intent of preferring the Holders over other creditors of the
Company or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others; and
(g) 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 8.02 or the Covenant Defeasance under Section
8.03 (as the case may be) have been complied with as contemplated by
this Section 8.04.
SECTION 8.05. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06, all money and Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the "Trustee") pursuant
to Section 8.04 in respect of the outstanding Exchange Debentures shall be held
in trust and applied by the Trustee, in accordance with the provisions of such
Exchange Debentures and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company or a Subsidiary Guarantor, if
any, acting as Paying Agent) as the Trustee may determine, to the Holders of
such Exchange Debentures of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, but such money 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 cash or Government
Securities deposited pursuant to Section 8.04 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 Exchange Debentures.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or Government Securities held by it as provided
in Section 8.04 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(a)), are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06. Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, and
premium, if any, or interest on, any Exchange Debenture and remaining unclaimed
for two years after such principal, and premium, if any, or interest has become
due and payable shall be paid to the Company on its request or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Exchange Debenture shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, 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 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States Dollars or Government Securities in accordance with Section 8.02 or 8.03,
as the case may be, 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
Exchange Debentures shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.02 or 8.03 until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03, as the case may be; provided, however, that, if the Company makes
any payment of principal of, or premium, if any, or interest on, any Exchange
Debenture following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Exchange Debentures to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Exchange
Debentures.
Notwithstanding Section 9.02 of this Indenture, the Company
and the Trustee may amend or supplement this Indenture or the Exchange
Debentures without the consent of any Holder of an Exchange Debenture:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Exchange Debentures in
addition to or in place of certificated Exchange Debentures;
(c) to provide for the assumption of the Company's obligations
to the Holders of the Exchange Debentures in the case of a merger or
consolidation pursuant to Article 5;
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Exchange Debentures or that
does not adversely affect the legal rights hereunder of any Holder of
the Exchange Debenture; or
(e) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of
the Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 9.06, the Trustee shall join with the Company in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations which may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture which affects its
own rights, duties or immunities under this Indenture or otherwise.
Section 9.02. With Consent of Holders and
Exchange Debentures.
The Company and the Trustee may amend or supplement this
Indenture or the Exchange Debentures or any amended or supplemental Indenture
with the written consent of the Holders of not less than a majority in aggregate
principal amount of the Exchange Debentures then outstanding (including consents
obtained in connection with a tender offer or exchange offer for the Exchange
Debentures), and any existing Default and its consequences or compliance with
any provision of this Indenture or the Exchange Debentures may be waived with
the consent of the Holders of a majority in aggregate principal amount of the
then outstanding Exchange Debentures (including consents obtained in connection
with a tender offer or exchange offer for the Exchange Debentures).
Notwithstanding the foregoing, Sections 4.10 and 4.15 of this Indenture
(including the related definitions) may not be amended or waived without the
written consent of at least 66 2/3% in aggregate principal amount of the
Exchange Debentures then outstanding (including consents obtained in connection
with a tender offer or exchange offer for the Exchange Debentures).
Upon the request of the Company accompanied by a resolution of
the Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Exchange Debentures
as aforesaid, and upon receipt by the Trustee of the documents described in
Section 9.06, 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 of
Exchange Debentures under this Section 9.02 to approve the particular form of
any proposed amendment or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Exchange Debentures
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 amended
or supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07, the
Holders of a majority in aggregate principal amount of the Exchange Debentures
then outstanding may waive compliance in a particular instance by the Company
with any provision of this Indenture or the Exchange Debentures. However,
without the consent of each Holder affected, an amendment or waiver may not
(with respect to any Exchange Debentures held by a non-consenting Holder of
Exchange Debentures):
(a) reduce the aggregate principal amount of the then
outstanding Exchange Debentures whose Holders must consent to an
amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of
any Exchange Debenture or alter the provisions with respect to the
redemption of the Exchange Debentures;
(c) reduce the rate of or change the time for payment of
interest on any Exchange Debenture;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Exchange Debentures
(except a rescission of acceleration of the Exchange Debentures by the
Holders of at least a majority in aggregate principal amount of the
then outstanding Exchange Debentures and a waiver of the payment
default that resulted from such acceleration);
(e) make any Exchange Debenture payable in money other than
that stated in the Exchange Debentures;
(f) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of
Exchange Debentures to receive payments of principal of or interest on
the Exchange Debentures;
(g) waive a redemption payment with respect to any Exchange
Debenture; or
(h) make any change in the foregoing amendment and waiver
provisions.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the
Exchange Debentures shall be set forth in a amended or supplemental Indenture
that complies with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of an Exchange Debenture is a continuing consent by
the Holder of an Exchange Debenture and every subsequent Holder of an Exchange
Debenture or portion of an Exchange Debenture that evidences the same debt as
the consenting Holder's Exchange Debenture, even if notation of the consent is
not made on any Exchange Debenture. However, any such Holder of an Exchange
Debenture or subsequent Holder of an Exchange Debenture may revoke the consent
as to its Exchange Debenture if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder of an Exchange Debenture.
The Company may fix a record date for determining which
Holders of the Exchange Debentures must consent to such amendment, supplement or
waiver. If the Company fixes a record date, the record date shall be fixed at
(i) the later of 30 days prior to the first solicitation of such consent or the
date of the most recent list of Holders of Exchange Debentures furnished to the
Trustee prior to such solicitation pursuant to Section 2.05 or (ii) such other
date as the Company shall designate.
Section 9.05. Notation on or Exchange of Exchange\
Debentures.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Exchange Debenture thereafter
authenticated. The Company in exchange for all Exchange Debentures may issue and
the Trustee shall authenticate new Exchange Debentures that reflect the
amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new
Exchange Debenture shall not affect the validity and effect of such amendment,
supplement or waiver.
Section 9.06. Trustee to Sign Amendments, Etc.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental Indenture until the Board
of Directors approves it.
Section 9.07. Payment for Consents.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any holder of
Exchange Debentures for or as an inducement to any consent, waiver or amendment
of any of the terms or provisions of this Indenture or the Exchange Debentures
unless such consideration is offered to be paid or agreed to be paid to all
holders of the Exchange Debentures that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement to Subordinate.
The Company agrees, and each Holder by accepting an Exchange
Debenture agrees, that the Indebtedness evidenced by each Exchange Debenture is
subordinated in right of payment, to the extent and in the manner provided
herein, to the prior payment in full of the principal of, and premium, if any,
and accrued and unpaid interest on, all existing and future Senior Debt (whether
outstanding on the date hereof or hereafter created, incurred, assumed or
guaranteed), and that the subordination is for the benefit of the holders of
Senior Debt.
Section 10.02. Liquidation; Dissolution; Bankruptcy.
Upon (a) any distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property or (b) an assignment for the benefit of creditors or any marshalling of
the Company's assets and liabilities:
(i) the holders of Senior Debt shall be entitled to receive
payment in full of all Obligations due in respect of such Senior Debt
(including interest after the commencement of any such proceeding at
the rate specified in the applicable Senior Debt) before Holders of the
Exchange Debentures shall be entitled to receive any payment with
respect to the Exchange Debentures (except that Holders of the Exchange
Debentures may receive securities that are subordinated, at least to
the same extent as the Exchange Debentures, to (A) Senior Debt and (B)
any securities issued in exchange for Senior Debt); and
(ii) until all Obligations with respect to Senior Debt (as
provided in clause (i) above) are paid in full, any distribution to
which Holders of the Exchange Debentures would be entitled but for this
Article 10 shall be made to holders of Senior Debt (except that holders
of the Exchange Debentures may receive securities that are
subordinated, at least to the same extent as the Exchange Debentures,
to (A) Senior Debt and (B) any securities issued in exchange for Senior
Debt), as their interests may appear.
Section 10.03. Default on Designated Senior Debt.
The Company shall not make any payment or distribution to the
Trustee or any Holder of Exchange Debentures upon or in respect of Obligations
with respect to the Exchange Debentures and may not acquire from the Trustee or
any Holder of Exchange Debentures any Exchange Debentures for cash or property
(other than securities that are subordinated, at least to the same extent as the
Exchange Debentures, to (A) Senior Debt and (B) any securities issued in
exchange for Senior Debt) until all principal and other Obligations with respect
to the Senior Debt have been paid in full if:
(a) a default in the payment of any principal, premium, if
any, interest or other Obligations with respect to any Designated
Senior Debt occurs and is continuing beyond any applicable grace period
in the agreement, indenture or other document governing such Designated
Senior Debt (whether upon maturity, as a result of acceleration or
otherwise); or
(b) any other default occurs and is continuing with respect to
any Designated Senior Debt that permits holders of such Designated
Senior Debt to accelerate its maturity, and the Company and the Trustee
receive a notice of such default (a "Payment Blockage Notice") from the
holders, or from the trustee, agent or other representative (the
"Representative") of the holders, of any such Designated Senior Debt.
If the Trustee receives any such notice, a subsequent notice received
within 360 days thereafter shall not be effective for purposes of this
Section 10.03. No nonpayment default that existed or was continuing on
the date of delivery of any Payment Blockage Notice to the Trustee
shall be, or be made, the basis for a subsequent Payment Blockage
Notice unless such default shall have been cured or waived for a period
of not less than 180 days.
The Company may and shall resume payments on and distributions
in respect of the Exchange Debentures and may acquire them upon the earlier of:
(i) the date upon which the default is cured or waived, or
(ii) in the case of a default referred to in clause (b) of
this Section 10.03, 179 days after the date on which the applicable
Payment Blockage Notice is received, unless the maturity of any
Designated Senior Debt has been accelerated,
if this Article 10 otherwise permits such payment, distribution or acquisition
at the time of such payment or acquisition.
Section 10.04. Acceleration of Securities.
If payment of the Exchange Debentures is accelerated because
of an Event of Default, the Company shall promptly notify holders of Senior Debt
of such acceleration.
Section 10.05. When Distribution Must be Paid Over.
In the event that the Trustee or any Holder of Exchange
Debentures receives any payment of any Obligations with respect to the Exchange
Debentures at a time when a Responsible Officer of the Trustee has actual
knowledge that such payment is prohibited by Section 10.03, such payment shall
be held by the Trustee or such Holder of Exchange Debentures in trust for the
benefit of, and shall be paid forthwith over and delivered upon written request
to, the holders of Senior Debt (or their Representative under the indenture or
other agreement (if any) pursuant to which Senior Debt may have been issued), as
their respective interests may appear, for application to the payment of all
Obligations with respect to Senior Debt remaining unpaid to the extent necessary
to pay such Obligations in full in accordance with their terms, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Debt.
If a distribution is made to the Trustee or any Holder of
Exchange Debentures that because of this Article 10 should not have been made to
it, the Trustee or such Holder of Exchange Debentures who receives the
distribution shall hold it in trust for the benefit of, and upon written request
pay it over to, the holders of Senior Debt (or their Representative under the
indenture or other agreement (if any) pursuant to which Senior Debt may have
been issued), as their respective interests may appear, for application to the
payment of all Obligations with respect to Senior Debt remaining unpaid to the
extent necessary to pay such Obligations in full in accordance with their terms,
after giving effect to any concurrent payment or distribution to or for the
holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt, and shall not be liable to any
such holders if the Trustee shall pay over or distribute to or on behalf of
Holders of Exchange Debentures or the Company or any other Person money or
assets to which any holders of Senior Debt shall be entitled by virtue of this
Article 10, except if such payment is made as a result of the willful misconduct
or gross negligence of the Trustee.
Section 10.06. Notice by Company.
The Company shall promptly notify the Trustee and the Paying
Agent of any facts known to the Company that would cause a payment of any
Obligations with respect to the Exchange Debentures to violate this Article 10,
but failure to give such notice shall not affect the subordination of the
Exchange Debentures to Senior Debt as provided in this Article 10.
Section 10.07. Subrogation.
After all Senior Debt is paid in full and until the Exchange
Debentures are paid in full, Holders of the Exchange Debentures shall be
subrogated (equally and ratably with all other Indebtedness pari passu with the
Exchange Debentures) to the rights of holders of Senior Debt to receive
distributions applicable to Senior Debt to the extent that distributions
otherwise payable to the Holders of the Exchange Debentures have been applied to
the payment of Senior Debt. A distribution made under this Article 10 to holders
of Senior Debt that otherwise would have been made to Holders of the Exchange
Debentures is not, as between the Company and Holders of the Exchange
Debentures, a payment by the Company on the Exchange Debentures.
Section 10.08. Relative Rights.
This Article 10 defines the relative rights of Holders of the
Exchange Debentures and holders of Senior Debt. Nothing in this Indenture shall:
(a) impair, as between the Company and Holders of the Exchange
Debentures, the obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on the Exchange
Debentures in accordance with their terms;
(b) affect the relative rights of Holders of the Exchange
Debentures and creditors of the Company other than their rights in
relation to holders of Senior Debt; or
(c) prevent the Trustee or any Holder of Exchange Debentures
from exercising its available remedies upon a Default or Event of
Default, subject to the rights of holders and owners of Senior Debt to
receive distributions and payments otherwise payable to Holders of the
Exchange Debentures.
If the Company fails because of this Article 10 to pay
principal of or interest on an Exchange Debenture on the due date, such failure
shall still constitute a Default or Event of Default.
Section 10.09. Subordination May Not be Impaired by Company.
No right of any holder of Senior Debt to enforce the
subordination of the Indebtedness evidenced by the Exchange Debentures shall be
impaired by any act or failure to act by the Company or any Holder of the
Exchange Debentures or by the failure of the Company any Holder of the Exchange
Debentures to comply with this Indenture.
Section 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to
holders of Senior Debt, the distribution may be made and the notice given to
their Representative.
Upon any payment or distribution of assets of the Company
referred to in this Article 10, the Trustee and the Holders of the Exchange
Debentures shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction or upon any certificate of such Representative or of
the liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders of the Exchange Debentures for the purpose of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Debt and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 10.
Section 10.11. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Exchange Debentures, unless the Trustee shall have
received, at least five Business Days prior to the date of such payment, written
notice of facts that would cause the payment of any Obligations with respect to
the Exchange Debentures to violate this Article 10. Only the Company or a
Representative may give the notice. Nothing in this Article 10 shall impair the
claims of, or payments to, the Trustee under or pursuant to Section 7.07.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights.
Section 10.12. Authorization to Effect Subordination.
Each Holder of Exchange Debentures by such Holder's acceptance
thereof authorizes and directs the Trustee on such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in this Article 10, and appoints the Trustee such Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 6.09 at least 30 days before the expiration of the time
to file such claim, the Representatives are hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Exchange Debentures.
Section 10.13. Amendments.
The provisions of this Article 10 (including the related
definitions) shall not be amended or modified without the written consent of the
holders of all Senior Debt.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA ss.318(c), the imposed duties shall
control.
Section 11.02. Notices.
Any notice or communication by the Company or the Trustee to
the other is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
other's address:
If to the Company:
PanAmSat International Systems, Inc.
One Pickwick Plaza
Greenwich, CT 06830
Telecopier No.: (203) 622-9163
Attention: James W. Cuminale
With a copy to:
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, NY 10112
Telecopier No.: (212) 541-5369
Attention: Dennis J. Friedman
If to the Trustee:
First Trust National Association
First Trust Center
180 East Fifth Street
St. Paul, MN 55101
Telecopier No: (612) 244-0711
Attention: Richard H. Prokosch
The Company or the Trustee, by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders of Exchange Debentures) shall be deemed to have been duly given: at the
time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder of an Exchange
Debenture shall be mailed by first class mail, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed to any Person
described in TIA ss. 313(c), to the extent required by the TIA. Failure to mail
a notice or communication to a Holder of an Exchange Debenture or any defect in
it shall not affect its sufficiency with respect to other Holders of Exchange
Debentures.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders of
Exchange Debentures, it shall mail a copy to the Trustee and each Agent at the
same time.
SECTION 11.03. Communication by Holders of Exchange
Debentures with other Holders of Exchange Debentures.
Holders of the Exchange Debentures may communicate pursuant to
TIA ss. 312(b) with other Holders of Exchange Debentures with respect to their
rights under this Indenture or the Exchange Debentures. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA ss.
312(c).
Section 11.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.05) stating that, in the opinion of the signers,
all conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.05) stating that, in the opinion of such counsel,
all such conditions precedent and covenants have been satisfied.
Section 11.05. Statements Required in Certificate
or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders of Exchange Debentures. The Registrar or Paying Agent may
make reasonable rules and set reasonable requirements for its functions.
Section 11.07. No Personal Liability of Directors, Officers,
Employees, Incorporator and Stockholders.
No director, officer, employee, incorporator or stockholder of
the Company, as such, shall have any liability for any obligations of the
Company under the Exchange Debentures or this Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Exchange Debentures, by accepting an Exchange Debenture, waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Exchange Debentures.
Section 11.08. Governing Law.
The internal law of the State of New York shall govern and be
used to construe this Indenture, the Exchange Debentures and the Subsidiary
Guarantees, if any.
Section 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or their Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
Section 11.10. Successors.
All agreements of the Company in this Indenture and the
Exchange Debentures shall bind its successors. All agreements of the Trustee in
this Indenture shall bind its successor.
Section 11.11. Severability.
In case any provision in this Indenture or in the Exchange
Debentures shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 11.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
Section 11.13. Table of Contents, Headings, Etc..
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
<PAGE>
SIGNATURES
Dated as of_______,______ PANAMSAT INTERNATIONAL
SYSTEMS, INC.
(SEAL)
By:________________________________
Name:
Title:
Attest:
_________________________
Name:
Title:
Dated as of_______,______ FIRST TRUST NATIONAL
ASSOCIATION, Trustee
(SEAL)
By:________________________________
Name:
Title:
Attest:
_________________________
Name:
Title:
<PAGE>
EXHIBIT A
(Face of Exchange Debenture)
12 3/4% Senior Subordinated Notes due 2005
No. $_______
PanAmSat International Systems, Inc.
promises to pay to
____________________________
or its registered assigns
the principal sum of_______
Dollars on ______, 2005.
Interest Payment Dates: April 15 and October 15,
commencing _______, ___.
Record Dates: March 30 and September 30 (whether or not a Business Day).
Dated:
PANAMSAT INTERNATIONAL
SYSTEMS, INC.
By:________________________________
Title:
(SEAL)
This is one of the Exchange Debentures
referred to in the within-
mentioned Indenture:
First Trust National Association, as Trustee
By:__________________________________________
Authorized Signatory
<PAGE>
(Back of Exchange Debenture)
12 3/4% Senior Subordinated Note due 2005
Capitalized terms used herein have the meanings assigned to
them in the Indenture (as defined below) unless otherwise indicated.
1. Interest. PanAmSat International Systems, Inc., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount of
this Exchange Debenture at the rate and in the manner specified below. Interest
will accrue at the rate of 12 3/4% per annum and will be payable semi-annually
in cash (on or prior to April 15, 2000, in additional Exchange Debentures, at
the option of the Company) in arrears on each April 15 and October 15,
commencing with the first such date after the Exchange Debenture Issue Date, or
if any such day is not a Business Day on the next succeeding Business Day (each
an "Interest Payment Date") to Holders of record of the Exchange Debentures at
the close of business on the immediately preceding March 30 and September 30,
whether or not a Business Day. Interest will be computed on the basis of a
360-day year consisting of twelve 30-day months and the actual number of days
elapsed. Interest shall accrue from the Exchange Debenture Issue Date or from
the most recent interest payment date to which interest has been paid or
provided for. To the extent lawful, the Company shall pay interest on overdue
principal at the rate of the then applicable interest rate on the Exchange
Debentures; it shall pay interest on overdue installments of interest (without
regard to any applicable grace periods) at the same rate to the extent lawful.
2. Method of Payment. The Company will pay interest on the
Exchange Debentures (except defaulted interest) to the Persons who are
registered Holders of Exchange Debentures at the close of business on the record
date next preceding the Interest Payment Date, even if such Exchange Debentures
are canceled after such record date and on or before such Interest Payment Date.
On or prior to April 15, 2000, interest shall be payable, at the option of the
Company, in (i) cash, (ii) additional Exchange Debentures with a principal
amount equal to such interest or (iii) in any combination of (i) and (ii). Any
amount not in denominations of $1,000 or integral multiples thereof, shall, at
the Company's option, be payable in cash or additional Exchange Debentures in
denominations of less than $1,000. After April 15, 2000, interest shall be paid
only in cash. The Holder hereof must surrender this Exchange Debenture to a
Paying Agent to collect principal payments. The Company will pay principal and
(except as provided above) interest in money of the United States that at the
time of payment is legal tender for payment of public and private debts. The
Exchange Debentures will be payable both as to principal and interest at the
office or agency of the Company maintained for such purpose or, at the option of
the Company, payment of interest, to the extent paid in cash, may be made by
check mailed to the Holders of Exchange Debentures at their respective addresses
set forth in the register of Holders of Exchange Debentures. Unless otherwise
designated by the Company, the Company's office or agency will be the office of
the Trustee maintained for such a purpose.
3. Paying Agent and Registrar. Initially, the Trustee will act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-registrar without prior notice to any Holder of an Exchange
Debenture. The Company may act in any such capacity.
4. Indenture. The Company issued the Exchange Debentures under
an Indenture, dated as of September 30, 1997 (the "Indenture"), between the
Company and the Trustee. The terms of the Exchange Debentures include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code ss.ss. 77aaa-77bbbb), as
in effect on the date of the Indenture. The Exchange Debentures are subject to
all such terms, and Holders of Exchange Debentures are referred to the Indenture
and such act for a statement of such terms. The terms of the Indenture shall
govern any inconsistencies between the Indenture and the Exchange Debentures.
The Exchange Debentures are general unsecured obligations of the Company limited
in aggregate principal amount to the aggregate liquidation preference of the
Preferred Stock, plus accrued and unpaid dividends, on the Exchange Debenture
Issue Date (plus any additional Exchange Debentures issued in lieu of cash
interest as described in paragraph 2 above).
5. Optional Redemption. The Company shall not have the option
to redeem the Exchange Debentures prior to April 15, 2000. Thereafter, the
Exchange Debentures 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 a percentage of principal amount) set forth
below plus accrued and unpaid interest thereon to the applicable redemption
date, if redeemed during the twelve-month period beginning on April 15 of the
years indicated below:
Year Percentage
2000.......................................... 106.375%
2001.......................................... 103.188%
2002 and thereafter........................... 100.000%
In addition, on or prior to April 15, 1998, the Company may
redeem up to 35% in aggregate principal amount of the Exchange Debentures then
outstanding, at a redemption price equal to 110% of the principal amount
thereof, plus accrued and unpaid interest to the redemption date, with the
proceeds of a public offering of common stock of the Company, provided that such
redemption occurs within 90 days after consummation of such public offering.
6. Repurchase at Option of Holder. (a) If there is a Change of
Control, the Company shall be required to offer to purchase on the Change of
Control Payment Date all outstanding Exchange Debentures at a purchase price
equal to 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, to the Change of Control Payment Date. Holders of Exchange Debentures
that are subject to an offer to purchase will receive a Change of Control Offer
from the Company prior to any related Change of Control Payment Date and may
elect to have such Exchange Debentures purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below. Notwithstanding the
foregoing, the Company shall not make a Change of Control Offer if any of the
Notes are outstanding upon the occurrence of a Change of Control unless all of
the Notes are redeemed or repurchased as a result of such Change of Control, in
which case, for purposes of Section 4.15 of the Indenture, the date on which all
Notes shall have been redeemed or repurchased shall be deemed to be the date on
which such Change of Control shall have occurred.
(b) When the cumulative amount of Excess Proceeds exceeds $5.0
million, the Company shall be required, within 30 days thereafter, to offer to
purchase the maximum principal amount of Exchange Debentures that may be
purchased out of such Excess Proceeds, at an offer price in cash in an amount
equal to 101% of the outstanding principal amount thereof, plus accrued and
unpaid interest, if any, to the date fixed for the closing of such offer. If the
aggregate principal amount of Exchange Debentures surrendered by Holders thereof
exceeds the amount of Excess Proceeds, the Exchange Debentures to be redeemed
shall be selected on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that Exchange Debentures surrendered by Holders in
denominations of S1,000, or integral multiples thereof, are purchased in
integral multiples of $1,000 and Exchange Debentures in denominations of less
than $1,000 may be purchased in full, if at all, at the option of the Company).
Holders of Exchange Debentures that are the subject of an offer to purchase will
receive an Excess Proceeds Offer from the Company (or the applicable Subsidiary)
prior to any related purchase date and may elect to have such Exchange
Debentures purchased by completing the form entitled "Option of Holder to Elect
Purchase" appearing below. Notwithstanding the foregoing, the Company shall not
make an Excess Proceeds Offer or comply with the other provisions of Section
3.08 of the Indenture at any time that any of the Notes are outstanding.
7. Notice of Redemption. Notice of redemption shall be mailed
at least 30 days but not more than 60 days before the redemption date to each
Holder whose Exchange Debentures are to be redeemed at its registered address.
On and after the redemption date, interest ceases to accrue on Exchange
Debentures or portions of them called for redemption.
8. Denominations, Transfer, Exchange. The Exchange Debentures
are in registered form without coupons in denominations of $1,000 and integral
multiples of $1,000; provided, however, that in connection with the payment of
interest on the Exchange Debentures in additional Exchange Debentures and the
original issuance of Exchange Debentures hereunder in exchange for shares of the
Preferred Stock, the Company may elect to pay any amount remaining after
issuance of Exchange Debentures in denominations of $1,000 and/or integral
multiples thereof, in cash or in additional Exchange Debentures in denominations
of less than $1,000. The transfer of Exchange Debentures may be registered and
Exchange Debentures may be exchanged as provided in the Indenture. The Registrar
and the Trustee may require a Holder of an Exchange Debenture, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
need not exchange or register the transfer of any Exchange Debenture or portion
of an Exchange Debenture selected for redemption. Also, the Registrar need not
exchange or register the transfer of any Exchange Debentures for a period of 15
days before a selection of Exchange Debentures to be redeemed.
9. Persons Deemed Owners. Prior to due presentment to the
Trustee for registration of the transfer of this Exchange Debenture, the
Trustee, any Agent and the Company may deem and treat the Person in whose name
this Exchange Debenture is registered as its absolute owner for the purpose of
receiving payment of principal of, premium, if any, and interest on this
Exchange Debenture and for all other purposes whatsoever, whether or not this
Exchange Debenture is overdue, and neither the Trustee, any Agent nor the
Company shall be affected by notice to the contrary. The registered Holder of an
Exchange Debenture shall be treated as its owner for all purposes.
10. Amendments, Supplement and Waivers. Subject to certain
exceptions, the Indenture or the Exchange Debentures may be amended or
supplemented with the consent of the Holders of at least a majority in aggregate
principal amount of the then outstanding Exchange Debentures, and any existing
default or compliance with any provision of the Indenture or the Exchange
Debentures may be waived with the consent of the Holders of a majority in
aggregate principal amount of the then outstanding Exchange Debentures. Without
the consent of the Holders of at least 66 2/3% in aggregate principal amount of
the Exchange Debentures then outstanding, an amendment or waiver may not make
any change to Section 4.10 or 4.15 of the Indenture. Without the consent of any
Holder of an Exchange Debenture, the Indenture or the Exchange Debentures may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Exchange Debentures in addition to or in place of
certificated Exchange Debentures, to provide for the assumption of the Company's
obligations to Holders of the Exchange Debentures in case of a merger or
consolidation, to make any change that would provide any additional rights or
benefits to the Holders of the Exchange Debentures or that does not adversely
affect the legal rights under the Indenture of any such Holder, or to comply
with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act. However, without
the consent of each Holder affected, an amendment or waiver may not (with
respect to any Exchange Debentures held by a non-consenting Holder of Exchange
Debentures) reduce the aggregate principal amount of the then outstanding
Exchange Debentures whose Holders must consent to an amendment, supplement or
waiver, reduce the principal of or change the fixed maturity of any Exchange
Debenture or alter the provisions with respect to the redemption of the Exchange
Debentures, reduce the rate of or change the time for payment of interest on any
Exchange Debenture, waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Exchange Debentures (except
a rescission of acceleration of the Exchange Debentures by the Holders of at
least a majority in aggregate principal amount of the then outstanding Exchange
Debentures and a waiver of the payment default that resulted from such
acceleration), make any Exchange Debenture payable in money other than that
stated in the Exchange Debentures, make any change in the provisions of the
Indemnification relating to waivers of past Defaults or the rights of Holders of
Exchange Debentures to receive payments of principal of or interest on the
Exchange Debentures, waive a redemption payment with respect to any Exchange
Debenture or make any change in the foregoing amendment and waiver provisions.
Notwithstanding the foregoing, the provisions of the Indenture relating to
subordination shall not be amended or modified without the written consent of
the holders of all Senior Debt.
11. Defaults and Remedies. Events of Default include: default
for 30 days in the payment when due of interest on the Exchange Debentures;
default in the payment when due of principal of or premium on the Exchange
Debentures at maturity, upon redemption or otherwise; default in the performance
or breach of the provisions of Section 4.07, Section 4.09, Section 4.10 or
Section 4.15 of the Indenture; default by the Company for 60 days after notice
from the Trustee or the Holders of at least 25% in aggregate principal amount of
the Exchange Debentures then outstanding in the performance of any other
covenant, warranty or other agreement in the Indenture or the Exchange
Debentures; prior to the time that the Company has at least four operating
satellites, default after expiration of any applicable grace periods by the
Company, or any of its Affiliates under the Hughes Satellite Contract or the
Arianespace Launch Contract, of which the Trustee or the Company has received
notice from Hughes or Arianespace, as the case may be, and which default would
permit the other party thereto to terminate such contract; default under any
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any Indebtedness for money borrowed by the
Company or any of its Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Subsidiaries), which default is caused by a failure to pay
when due principal or interest on such Indebtedness within the grace period
provided in such Indebtedness (a "Payment Default"), and 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, aggregates $10.0
million or more; default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Subsidiaries (or
the payment of which is guaranteed by the Company or any of its Subsidiaries),
which default results in the acceleration (which acceleration has not been
rescinded) of such Indebtedness prior to its express maturity and the principal
amount of any such Indebtedness, together with the principal amount of any other
Indebtedness under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $10.0 million or more; failure by the
Company or any of its Subsidiaries to pay final judgments (other than any
judgment as to which a reputable insurance company has accepted full liability
or any judgment entered against the Company in a jurisdiction outside of the
United States which the Company in good faith after consultation with counsel
believes is not enforceable against the Company outside of such jurisdiction)
aggregating in excess of $5.0 million which judgments are not stayed within 60
days after their entry; or certain events of bankruptcy or insolvency with
respect to the Company, any Subsidiary Guarantor or any Significant Subsidiary
of the Company. If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in aggregate principal amount of the then
outstanding Exchange Debentures may declare all the Exchange Debentures to be
due and payable immediately. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency, all
outstanding Exchange Debentures will become due and payable without further
action or notice. Holders of the Exchange Debentures may not enforce the
Indenture or the Exchange Debentures except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in aggregate principal
amount of the then outstanding Exchange Debentures may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Exchange Debentures notice of any continuing Default or Event of Default (except
a Default or Event of Default relating to the payment of principal or interest)
if it determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount of the Exchange Debentures then
outstanding, by notice to the Trustee, may on behalf of the Holders of all of
the Exchange Debentures waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default
in the payment of interest or premium on, or the principal of, the Exchange
Debentures. The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company is required
upon becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default.
12. Subordination. Each Holder by accepting an Exchange
Debenture agrees that the Indebtedness evidenced by each Exchange Debenture is
subordinated in right of payment, to the extent and in the manner provided in
the Indenture, to the prior payment in full of the principal of, and premium if
any, and accrued and unpaid interest on, all existing and future Senior Debt
(whether outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed), and that the subordination is for the benefit
of the holders of Senior Debt.
13. Trustee Dealings with Company. The Trustee under the
Indenture, 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 Trustee;
however, if the Trustee acquires any conflicting interest it must eliminate such
conflict within 90 days, apply to the SEC for permission to continue as Trustee
or resign.
14. No Personal Liabilities of Directors, Officers, Employees,
Incorporator and Stockholders. No director, officer, employee, incorporator or
stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Exchange Debentures or the Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Exchange Debentures, by accepting an Exchange
Debenture, waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Exchange Debentures.
15. Authentication. This Exchange Debenture shall not be
valid until authenticated by the manual signature of the Trustee or an
authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the
name of a Holder of an Exchange Debenture 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 WIG/MIA (= Uniform Gifts to Minors Act).
17. 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 Exchange Debentures and have directed
the Trustee to use CUSIP numbers in notices of redemption as a convenience to
Holders of Exchange Debentures. No representation is made as to the accuracy of
such numbers either as printed on the Exchange Debentures or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The Company will furnish to any Holder of an Exchange
Debenture upon written request and without charge a copy of the Indenture.
Request may be made to:
PanAmSat International Systems, Inc.
One Pickwick Plaza
Greenwich, CT 06830
Attention: James W. Cuminale
<PAGE>
ASSIGNMENT FORM
To assign this Exchange Debenture, fill in the form below: (I)
or (we) assign and transfer this Exchange Debenture to
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________________
agent to transfer this Exchange Debenture on the books of the Company. The
agent may substitute another to act for him.
_______________________________________________________________________________
Date:____________
Your Signature:_______________________________
(Sign exactly as your name appears
on the face of this Exchange
Debenture)
Signature Guarantee.
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Exchange
Debenture purchased by the Company pursuant to Section 3.08 or Section 4.15 of
the Indenture check the appropriate box:
|_| Section 3.08 |_| Section 4.15
If you want to have only part of the Exchange Debenture
purchased by the Company pursuant to Section 4.10 or Section 4.15 of the
Indenture, state the amount you elect to have purchased:
$__________________
Date:______________
Your Signature:_______________________________
(Sign exactly as your name appears on the face
of this Exchange Debenture)
Signature Guarantee.
FORM OF EXCHANGE NOTICE
September , 1997
To the Holders of the 12 3/4% Mandatorily Exchangeable Senior Redeemable
Preferred Stock of PanAmSat International Systems, Inc. (formerly PanAmSat
Corporation)
On August 14, 1997 PanAmSat International Systems, Inc., a Delaware
corporation (the "Company" or "PanAmSat") and the successor corporation to
PanAmSat Corporation, filed with the Securities and Exchange Commission its Form
10-Q for the quarter ended June 30, 1997. As a result, the Company is obligated
to consummate the exchange (the "Exchange") of all of its outstanding shares of
12 3/4% Mandatorily Exchangeable Senior Redeemable Preferred Stock ("Senior
Redeemable Preferred Stock") into Exchange Debentures (the "Exchange
Debentures") having the terms and conditions specified in the Indenture attached
as an Exhibit to the Certificate of Designation relating to the Senior
Redeemable Preferred Stock (the "Certificate of Designation"). Subject to the
satisfaction of certain conditions precedent contained in the Certificate of
Designation, the Exchange will be consummated on September 30, 1997 (the
"Mandatory Exchange Date"). Accordingly, each holder of Senior Redeemable
Preferred Stock should surrender to the Company, on or before 5:00 p.m., New
York City time, on the Mandatory Exchange Date, at the offices of
, certificates representing its shares of Senior Redeemable
Preferred Stock. Unless the Company shall default in the delivery of the
Exchange Debentures, dividends on shares of Senior Redeemable Preferred Stock
shall cease to accrue on the Mandatory Exchange Date whether or not certificates
for shares of Senior Redeemable Preferred Stock are surrendered for exchange on
or before the Mandatory Exchange Date. Interest on the Exchange Debentures shall
accrue from the Mandatory Exchange Date whether or not certificates for shares
of Senior Redeemable Preferred Stock are surrendered for exchange on the
Mandatory Exchange Date.
Upon consummation of the Exchange, each holder of Senior Redeemable
Preferred Stock will receive an aggregate principal amount of Exchange
Debentures equal to the aggregate liquidation preference, plus accumulated and
unpaid dividends (including a prorated dividend for the period from the
immediately preceding dividend payment date to the Mandatory Exchange Date) with
respect to the Senior Redeemable Preferred Stock exchanged by such holder
pursuant to the Exchange; provided that the Company may pay cash in lieu of
issuing an Exchange Debenture in a principal amount of less than $1,000.
Any questions or requests for assistance may be directed to Boston
Equiserve, the Transfer Agent for the Senior Redeemable Preferred Stock at (617)
575-3377 or (800)-736-3001. You may also contact your broker, dealer, commercial
bank, trust company or other nominee for assistance concerning the Exchange.
PANAMSAT INTERNATIONAL SYSTEMS, INC.
(formerly PANAMSAT CORPORATION)
