-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VRjzn0UukG6jAusz+qqx5KZcTl7Wt/siakSaBU4iSf0JQbcLGS4WDSBy/vgjBPT4 6SwORiId2U+E9L946+4EjA== 0001005150-97-000035.txt : 19970124 0001005150-97-000035.hdr.sgml : 19970124 ACCESSION NUMBER: 0001005150-97-000035 CONFORMED SUBMISSION TYPE: S-1/A PUBLIC DOCUMENT COUNT: 21 FILED AS OF DATE: 19970123 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: ORION NEWCO SERVICES INC CENTRAL INDEX KEY: 0001029850 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-1/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-19167 FILM NUMBER: 97509313 BUSINESS ADDRESS: STREET 1: 2440 RESEARCH BLVD SUITE 400 CITY: ROCKVILLE STATE: MD ZIP: 20850 BUSINESS PHONE: 3012588101 MAIL ADDRESS: STREET 1: 2440 RESEARCH BLVD STREET 2: SUITE 400 CITY: ROCKVILLE STATE: MD ZIP: 20850 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ORION SATELLITE CORP CENTRAL INDEX KEY: 0000712187 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 521564318 FILING VALUES: FORM TYPE: S-1/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-19167-01 FILM NUMBER: 97509314 BUSINESS ADDRESS: STREET 1: 2440 RESEARCH BLVD STREET 2: SUITE 400 CITY: ROCKVILLE STATE: MD ZIP: 20850 BUSINESS PHONE: 3012583370 FILER: COMPANY DATA: COMPANY CONFORMED NAME: INTERNATIONAL PRIVATE SATELLITE PARTNERS LP CENTRAL INDEX KEY: 0000949695 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 521648586 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-1/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-19167-02 FILM NUMBER: 97509315 BUSINESS ADDRESS: STREET 1: 2440 RESEARCH BLVD STREET 2: STE 400 CITY: ROCKVILLE STATE: MD ZIP: 20850 BUSINESS PHONE: 3012586101 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ORIONNET INC CENTRAL INDEX KEY: 0001030701 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 521564601 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-1/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-19167-03 FILM NUMBER: 97509316 BUSINESS ADDRESS: STREET 1: 2440 RESEARCH BLVD STREET 2: SUITE 400 CITY: ROCKVILLE STATE: MD ZIP: 20850 BUSINESS PHONE: 3012583370 MAIL ADDRESS: STREET 1: 2440 RESEARCH BLVD STREET 2: SUITE 400 CITY: ROCKVILLE STATE: MD ZIP: 20850 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ORION ASIA PACIFIC CORP CENTRAL INDEX KEY: 0001030702 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 521959361 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-1/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-19167-04 FILM NUMBER: 97509317 BUSINESS ADDRESS: STREET 1: 2440 RESEARCH BLVD STREET 2: SUITE 400 CITY: ROCKVILLE STATE: MD ZIP: 20850 BUSINESS PHONE: 3012583370 MAIL ADDRESS: STREET 1: 2440 RESEARCH BLVD STREET 2: SUITE 400 CITY: ROCKVILLE STATE: MD ZIP: 20850 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ASIA PACIFIC SPACE & COMMUNICATIONS LTD CENTRAL INDEX KEY: 0001030703 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 521611027 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-1/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-19167-05 FILM NUMBER: 97509318 BUSINESS ADDRESS: STREET 1: 2440 RESEARCH BLVD STREET 2: SUITE 400 CITY: ROCKVILLE STATE: MD ZIP: 20850 BUSINESS PHONE: 3012583370 MAIL ADDRESS: STREET 1: 2440 RESEARCH BLVD STREET 2: SUITE 400 CITY: ROCKVILLE STATE: MD ZIP: 20850 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ORION ATLANTIC EUROPE INC CENTRAL INDEX KEY: 0001030704 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 521959360 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-1/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-19167-06 FILM NUMBER: 97509319 BUSINESS ADDRESS: STREET 1: 2440 RESEARCH BLVD STREET 2: SUITE 400 CITY: ROCKVILLE STATE: MD ZIP: 20850 BUSINESS PHONE: 3012583370 MAIL ADDRESS: STREET 1: 2440 RESEARCH BLVD STREET 2: SUITE 400 CITY: ROCKVILLE STATE: MD ZIP: 20850 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ORIONNET FINANCE CORP CENTRAL INDEX KEY: 0001030705 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 521959361 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-1/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-19167-07 FILM NUMBER: 97509320 BUSINESS ADDRESS: STREET 1: 2440 RESEARCH BLVD STREET 2: SUITE 400 CITY: ROCKVILLE STATE: MD ZIP: 20850 BUSINESS PHONE: 3012583370 MAIL ADDRESS: STREET 1: 2440 RESEARCH BLVD STREET 2: SUITE 400 CITY: ROCKVILLE STATE: MD ZIP: 20850 S-1/A 1 FORM S-1/A AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 22, 1997 REGISTRATION NO. 333-19167 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 AMENDMENT NO. 2 TO FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ORION NETWORK SYSTEMS, INC.* (Exact name of registrant as specified in its charter)
Delaware 4899 52-2008654 (State of organization) (Primary S.I.C. Code Number) (I.R.S. Employer & Identification Number)
2440 RESEARCH BOULEVARD, SUITE 400, ROCKVILLE, MARYLAND 20850, (301) 258-8101 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) RICHARD H. SHAY, ESQ. 2440 RESEARCH BOULEVARD, SUITE 400, ROCKVILLE, MARYLAND 20850, (301) 258-8101 (Name, address, including zip code, and telephone number, including area code, of agent for service) For Information regarding additional registrants, see "Table of Additional Registrants." Copies to:
Anthony S. Harrington, Esq. Jerry V. Elliott, Esq. Steven M. Kaufman, Esq. James S. Scott, Sr., Esq. HOGAN & HARTSON L.L.P. SHEARMAN & STERLING 555 Thirteenth Street, N.W., Washington, D.C. 20004-1109 599 Lexington Avenue, New York, New York 10022 (202) 637-5600 (212) 848-4000
Approximate date of commencement of proposed sale to the public: As soon as practicable after the Registration Statement becomes effective. If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, check the following box: [ ] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of this prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. EXPLANATORY NOTE This Amendment is being filed for the purposes of filing the exhibits indicated in Part II of the Registration Statement. The Amendment also refiles page 70 of the Registration Statement to correct certain references to Exhibit 99.2 hereto. accurate way to value Orion 1 would be to identify recent, closely comparable sales of transponders or satellites serving similar markets. Ascent did not use this method since it was unable to identify any closely comparable sales. However, Ascent's did identify the most comparable satellite sales as a check on approach in appraising Orion 1. Because events and circumstances frequently do not occur as expected and for the reasons described under "Risk Factors" and elsewhere in this Prospectus, there will usually be differences between assumed and actual results, and those differences may be material. Therefore, no assurance may be given that the appraised value of Orion 1 will be achieved and reliance should not be placed on such appraised value. The Company has obtained an appraisal from Ascent because it believes that the value of Orion 1 may be of interest to purchasers of the Notes as creditors of the Company, and that such purchasers might be interested in an expert appraiser's assessment of the value of Orion 1. INSURANCE Orion has obtained satellite in-orbit life insurance for Orion 1 covering the period from May 1996 to May 1997 in an initial amount of approximately $245 million providing protection against partial or total loss of the satellite's communications capability, including loss of transponders, power or ability to control the positioning of the satellite. The aggregate premium for in-orbit insurance for Orion 1 is approximately $6 million per annum. Orion intends to procure launch insurance for the construction, launch and insurance costs of Orion 2 and Orion 3. In the past, satellite launch insurance was generally procured approximately six months prior to launch. Recently, it has become possible to obtain a commitment from insurance underwriters well before that time, which fixes the rate and certain terms of launch insurance. Orion intends shortly to seek such a commitment from insurance underwriters to provide launch insurance for Orion 2 and Orion 3. Such insurance is expected to be quite costly, with present insurance rates ranging at or above 16% of the insured amount, depending upon such factors as the launch history and recent performance of the launch vehicle to be used and general availability of launch insurance in the insurance marketplace (although such rates have reached 20% or higher in the past several years). Such insurance can be expected to include certain contract terms, exclusions, deductibles and material change conditions that are customary in the industry. After launch of Orion 2 and Orion 3, the Company will need to procure satellite in-orbit life insurance for Orion 2 and Orion 3. There can be no assurance that such insurance will be available or that the price of such insurance or the terms and exclusions in the actual insurance policies will be favorable to the Company. Launch and in-orbit insurance for its satellites will not protect the Company against business interruption, loss or delay of revenues and similar losses and may not fully reimburse the Company for its expenditures. Accordingly, an unsuccessful launch of Orion 2 or Orion 3 or any significant loss of performance with respect to any of its satellites would have a material adverse effect on Orion and would impair Orion's ability to service its indebtedness, including the Notes. See "Risk Factors -- Risks of Satellite Loss or Reduced Performance -- Limited Insurance for Satellite Launch and Operation." COMPETITION As a provider of data networking and Internet-related services, Orion competes with a large number of telecommunications service providers and value-added resellers of transmission capacity. As a provider of satellite transmission capacity, Orion competes with other providers of satellite and terrestrial facilities. Many of these competitors have significant competitive advantages, including long-standing customer relationships, close ties with regulatory and local authorities, control over connections to local telephone networks and have financial resources, experience, marketing capabilities and name recogni 70 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 13. Other Expenses of Issuance and Distribution. The following table sets forth the various expenses to be paid by the Registrant in connection with the sale and distribution of the securities being registered hereby, other than underwriting discounts and commissions. All amounts are estimated except the Securities and Exchange Commission registration fee and the National Association of Securities Dealers, Inc. filing and listing fees. Securities and Exchange Commission registration fee ...... $105,152 National Association of Securities Dealers, Inc. filing fee....................................................... $ 30,500 Blue sky fees and expenses (including fees of counsel) ... * Printing and engraving expenses........................... * Fees and expenses of counsel for the Company.............. * Accounting fees and expenses.............................. * Appraisal fees and expenses............................... * Transfer agent and registrar fees......................... * Miscellaneous............................................. * Total.................................................... $ * =========== - ---------- * To be filed by amendment. ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Orion. Orion's Certificate of Incorporation provides that its directors will not be liable for monetary damages for breach of the directors' fiduciary duty of care to the Company and its stockholders. This provision in the Certificate of Incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as an injunction or other forms of non-monetary relief would remain available under Delaware law. In accordance with the requirements of Delaware law, as amended, the Certificate of Incorporation provide that the Company=s directors would remain subject to liability for monetary damages (i) for any breach of their duty of loyalty to the corporation or its shareholders, (ii) for acts or omissions not in good faith or involving intentional misconduct or knowing violation of law, (iii) under Section 174 of the Delaware Code for approval of an unlawful dividend or an unlawful stock purchase or redemption and (iv) for any transaction from which the director derived an improper personal benefit. This provision also does not affect a director's responsibilities under any other laws, such as the federal securities laws or state or federal environmental laws. Orion's Certificate of Incorporation also provides that, except as expressly prohibited by law, Orion shall indemnify any person who was or is a party (or threatened to be made a party) to any threatened, pending or completed action, suit or proceeding by reason of the fact that such person is or was a director or officer of Orion (or is or was serving at the request of Orion as a director or officer of another enterprise), against expenses, liabilities and losses (including attorney's fees), judgments, fines and amounts paid or to be paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and a manner such person reasonably believed to be in or not opposed to the best interests of Orion, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. Such indemnification shall not be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to Orion unless (and only to the extent that) the Delaware Court of Chancery or the court in which such action or suit was brought determines that, in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity. Old ONSI. Old ONSI's Certificate of Incorporation provides that its directors will not be liable for monetary damages for breach of the directors' fiduciary duty of care to Old ONSI and its stockholders. This provision in the Certificate of Incorporation does not eliminate the duty of care, and in appropriate II-1 PART II INFORMATION NOT REQUIRED IN PROSPECTUS (Continued) circumstances equitable remedies such as an injunction or other forms of non-monetary relief would remain available under Delaware law. In accordance with the requirements of Delaware law, as amended, the Certificate of Incorporation provide that Old ONSI's directors would remain subject to liability for monetary damages (i) for any breach of their duty of loyalty to the corporation or its shareholders, (ii) for acts or omissions not in good faith or involving intentional misconduct or knowing violation of law, (iii) under Section 174 of the Delaware Code for approval of an unlawful dividend or an unlawful stock purchase or redemption and (iv) for any transaction from which the director derived an improper personal benefit. This provision also does not affect a director's responsibilities under any other laws, such as the federal securities laws or state or federal environmental laws. Old ONSI's Certificate of Incorporation also provides that, except as expressly prohibited by law, Old ONSI shall indemnify any person who was or is a party (or threatened to be made a party) to any threatened, pending or completed action, suit or proceeding by reason of the fact that such person is or was a director or officer of Old ONSI (or is or was serving at the request of Old ONSI as a director, officer, employee or agent of another enterprise), against expenses, liabilities and losses (including attorney's fees), judgments, fines and amounts paid or to be paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. OrionSat. OrionSat's Certificate of Incorporation provides that its directors will not be liable for monetary damages for breach of the directors' fiduciary duty of care to OrionSat and its stockholders. This provision in the Certificate of Incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as an injunction or other forms of non-monetary relief would remain available under Delaware law. In accordance with the requirements of Delaware law, as amended, the Certificate of Incorporation provides that OrionSat's directors would remain subject to liability for monetary damages (i) for any breach of their duty of loyalty to the corporation or its shareholders, (ii) for acts or omissions not in good faith or involving intentional misconduct or knowing violation of law, (iii) under Section 174 of the Delaware Code for approval of an unlawful dividend or an unlawful stock purchase or redemption and (iv) for any transaction from which the director derived an improper personal benefit. This provision also does not affect a director's responsibilities under any other laws, such as the federal securities laws or state or federal environmental laws. OrionSat's Bylaws provide that, except as expressly prohibited by law, OrionSat shall indemnify any person who was or is a party (or threatened to be made a party) to any threatened, pending or completed action, suit or proceeding by reason of the fact that such person is or was a director, officer, employee or agent of OrionSat (or is or was serving any other enterprise at the request of OrionSat), against expenses, liabilities and losses (including attorney's fees), judgments, fines and amounts paid or to be paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. OrionNet Finance Corporation. OrionNet Finance Corporation's Certificate of Incorporation provides that its directors will not be liable for monetary damages for breach of the directors' fiduciary duty of care to OrionNet Finance Corporation and its stockholders. This provision in the Certificate of Incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as an injunction or other forms of non-monetary relief would remain available under Delaware law. In accordance with the requirements of Delaware law, as amended, the Certificate of Incorporation provides that OrionNet Finance Corporation's directors would remain subject to liability for monetary damages (i) for any breach of their duty of loyalty to the corporation or its shareholders, (ii) for acts or omissions not in good faith or involving intentional misconduct or knowing violation of law, (iii) under Section 174 of the Delaware Code for approval of an unlawful dividend or an unlawful stock purchase or redemption and (iv) for any transaction from which the director derived an improper personal benefit. This provision also does not affect a director's responsibilities under any other laws, such as the federal securities laws or state or federal environmental laws. OrionNet Finance Corporation's Bylaws provide that, except as expressly prohibited by law, OrionNet Finance Corporation shall indemnify any person who was or is a party (or threatened to be made a party) to any threatened, pending or completed action, suit or proceeding by reason of the fact II-2 PART II INFORMATION NOT REQUIRED IN PROSPECTUS (Continued) that such person is or was a director, officer, employee or agent of OrionNet Finance Corporation (or is or was serving any other enterprise at the request of OrionNet Finance Corporation), against expenses, liabilities and losses (including attorney's fees), judgments, fines and amounts paid or to be paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Asia Pacific Space and Communications, Ltd. ("APSC"). APSC's Certificate of Incorporation provides that the personal liability of its directors shall be eliminated to the fullest extent provided by Section 7 of Subsection (b) of Section 102 of the Delaware Code. This paragraph allows for the elimination of all personal liability, provided that liability shall not be eliminated or limited (i) for any breach of their duty of loyalty to the corporation or its shareholders, (ii) for acts or omissions not in good faith or involving intentional misconduct or knowing violation of law, (iii) under Section 174 of the Delaware Code for approval of an unlawful dividend or an unlawful stock purchase or redemption and (iv) for any transaction from which the director derived an improper personal benefit. This provision in the Certificate of Incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as an injunction or other forms of non-monetary relief would remain available under Delaware law. This provision also does not affect a director's responsibilities under any other laws, such as the federal securities laws or state or federal environmental laws. APSC's Certificate of Incorporation also provides that APSC shall indemnify its directors, officers, employees and agents to the fullest extent permitted by Section 145 of the Delaware Code, as the same exists or may hereafter be amended. Section 145 currently covers expenses, liabilities and losses (including attorney's fees), judgments, fines and amounts paid or to be paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and a manner such person reasonably believed to be in or not opposed to the best interests of APSC, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. Such indemnification shall not be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to APSC unless (and only to the extent that) the Delaware Court of Chancery or the court in which such action or suit was brought determines that, in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity. Orion Asia Pacific. Orion Asia Pacific's Certificate of Incorporation provides that its directors will not be liable for monetary damages for breach of the directors' fiduciary duty of care to Orion Asia Pacific and its stockholders. This provision in the Certificate of Incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as an injunction or other forms of non-monetary relief would remain available under Delaware law. In accordance with the requirements of Delaware law, as amended, the Certificate of Incorporation provides that Orion Asia Pacific=s directors would remain subject to liability for monetary damages (i) for any breach of their duty of loyalty to the corporation or its shareholders, (ii) for acts or omissions not in good faith or involving intentional misconduct or knowing violation of law, (iii) under Section 174 of the Delaware Code for approval of an unlawful dividend or an unlawful stock purchase or redemption and (iv) for any transaction from which the director derived an improper personal benefit. This provision also does not affect a director's responsibilities under any other laws, such as the federal securities laws or state or federal environmental laws. Orion Asia Pacific's Bylaws provide that, except as expressly prohibited by law, Orion Asia Pacific shall indemnify any person who was or is a party (or threatened to be made a party) to any threatened, pending or completed action, suit or proceeding by reason of the fact that such person is or was a director, officer, employee or agent of Orion Asia Pacific (or is or was serving any other enterprise at the request of Orion Asia Pacific), against expenses, liabilities and losses (including attorney's fees), judgments, fines and amounts paid or to be paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. OrionNet. OrionNet's Certificate of Incorporation provides that its directors will not be liable for monetary damages for breach of the directors' fiduciary duty of care to OrionNet and its stockholders. This provision in the Certificate of Incorporation does not eliminate the duty of care, and in appropriate II-3 PART II INFORMATION NOT REQUIRED IN PROSPECTUS (Continued) circumstances equitable remedies such as an injunction or other forms of non-monetary relief would remain available under Delaware law. In accordance with the requirements of Delaware law, as amended, the Certificate of Incorporation provides that OrionNet's directors would remain subject to liability for monetary damages (i) for any breach of their duty of loyalty to the corporation or its shareholders, (ii) for acts or omissions not in good faith or involving intentional misconduct or knowing violation of law, (iii) under Section 174 of the Delaware Code for approval of an unlawful dividend or an unlawful stock purchase or redemption and (iv) for any transaction from which the director derived an improper personal benefit. This provision also does not affect a director's responsibilities under any other laws, such as the federal securities laws or state or federal environmental laws. OrionNet's Bylaws provide that, except as expressly prohibited by law, OrionNet shall indemnify any person who was or is a party (or threatened to be made a party) to any threatened, pending or completed action, suit or proceeding by reason of the fact that such person is or was a director, officer, employee or agent of OrionNet (or is or was serving any other enterprise at the request of OrionNet), against expenses, liabilities and losses (including attorney's fees), judgments, fines and amounts paid or to be paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Orion Atlantic Europe, Inc. Orion Atlantic Europe, Inc.'s Certificate of Incorporation provides that its directors will not be liable for monetary damages for breach of the directors' fiduciary duty of care to Orion Atlantic Europe, Inc. and its stockholders. This provision in the Certificate of Incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as an injunction or other forms of non-monetary relief would remain available under Delaware law. In accordance with the requirements of Delaware law, as amended, the Certificate of Incorporation provides that Orion Atlantic Europe, Inc.'s directors would remain subject to liability for monetary damages (i) for any breach of their duty of loyalty to the corporation or its shareholders, (ii) for acts or omissions not in good faith or involving intentional misconduct or knowing violation of law, (iii) under Section 174 of the Delaware Code for approval of an unlawful dividend or an unlawful stock purchase or redemption and (iv) for any transaction from which the director derived an improper personal benefit. This provision also does not affect a director's responsibilities under any other laws, such as the federal securities laws or state or federal environmental laws. Orion Atlantic Europe, Inc.'s Certificate of Incorporation also provides that, except as expressly prohibited by law, Orion Atlantic Europe, Inc. shall indemnify any person who was or is a party (or threatened to be made a party) to any threatened, pending or completed action, suit or proceeding by reason of the fact that such person is or was a director or officer of Orion Atlantic Europe, Inc. (or is or was serving at the request of Orion Atlantic Europe, Inc. as a director or officer of another enterprise), against expenses, liabilities and losses (including attorney's fees), judgments, fines and amounts paid or to be paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Section 145 of the Delaware Code empowers a corporation incorporated under that statute to indemnify its directors, officers, employees and agents and its former directors, officers, employees and agents and those who serve in such capacities with another enterprise at its request against expenses, as well as judgments, fines and settlements in nonderivative lawsuits, actually and reasonably incurred by them in connection with the defense of any action, suit or proceeding in which they or any of them were or are made parties or are threatened to be made parties by reason of their serving or having served in such capacity. The power to indemnify shall only exist where such officer, director, employee or agent has acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and, in the case of a criminal action, where such person had no reasonable cause to believe his conduct was unlawful. However, in an action or suit by or in the right of the corporation, unless a court shall determine to the contrary, where such a person has been adjudged liable to the corporation, the corporation shall have no power of indemnification. Indemnity is mandatory to the extent a claim, issue or matter has been successfully defended. Indemnification is not deemed exclusive of any other rights to which those indemnified may be entitled, under any by-law, agreement, vote of stockholders or otherwise. A Delaware corporation also has the power to purchase and maintain II-4 PART II INFORMATION NOT REQUIRED IN PROSPECTUS (Continued) insurance on behalf of the persons it has the power to indemnify, whether or not indemnity against such liability would be allowed under the statute. International Private Satellite Partners, L.P. ("IPSP"). The Third Amended and Restated Agreement of Limited Partnership of International Private Satellite Partners, L.P. (the "IPSP Partnership Agreement") provides that neither the general partner (OrionSat) nor any of its affiliates , nor any of their respective partners, officers, directors, employees or agents, shall be liable to IPSP or its limited partners for any losses sustained or liabilities incurred as a result of any act or omission, so long as such conduct does not constitute bad faith, fraud, gross negligence, willful misconduct or breach of any fiduciary duty. The IPSP Partnership Agreement also provides that, except as expressly prohibited by law, IPSP shall indemnify OrionSat, its affiliates and their respective partners, officers, directors, employees and agents from any and all expenses, liabilities and losses (including attorney's fees), judgments, fines and amounts paid or to be paid in settlement arising from any claims, demands, actions, suits or proceedings, arising out of or incidental to the business or activities relating to IPSP. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "Securities Act"), may be permitted to directors, officers and controlling persons of Orion pursuant to the foregoing provision or otherwise, Orion has been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and therefore unenforceable. In the event that a claim for indemnification against such liabilities is asserted by such person in connection with the offering of the Securities (other than for the payment by the corporation of expenses incurred or paid by a director, officer or controlling person of the corporation in the successful defense of any action, suit or proceeding), the either corporation will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of the issue. Orion has insurance policies which will insure directors and officers against damages from actions and claims incurred in the course of their duties and will insure the corporations against expenses incurred in defending lawsuits arising from certain alleged acts of the directors and officers. ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES. During the past three years, Orion (which completed an initial public offering in August 1995) issued the following unregistered securities, adjusted to reflect a 1.00-for-1.36 reverse stock split effected in July 1995. No underwriting discounts or commissions were paid in connection with any of such transactions, although a fee of $250,000 was paid to Salomon Brothers Inc for serving as a financial advisor to Orion in connection with Orion's 1994 private placement. There was no public offering in such transactions, and the transactions were exempt from the registration requirements of the Securities Act by reason of Sections 4(2) and 3(b) thereof, and Regulation D promulgated thereunder. In each instance, the shares of Common Stock, shares of Preferred Stock or warrants of Orion were issued to a limited group of purchasers, each of which had access to and/or was furnished information concerning Orion. The purchasers acquired the securities for investment only and not with a view to the distribution thereof, and each of the certificates representing the shares of Common Stock and Preferred Stock of Orion issued to such purchasers was stamped with a legend restricting the transfer of the shares of Common Stock and Preferred Stock representing thereby. Common Stock In December 1993, Orion issued an aggregate of 178,097 shares of Common Stock as part of a private placement of its Common Stock to certain of its Directors and affiliates of those Directors at a purchase price of $10.20 per share. The terms of such issuance permitted the purchasers to receive the benefit of any lower price at which Common Stock subsequently was issued in the private placement or to receive any other security subsequently issued in the private placement. In June 1994, when Orion issued shares of Common Stock as part of the private placement of its Common Stock to a limited number of institutions and other investors (including 64,705 shares to affiliates of Directors) at a pur II-5 PART II INFORMATION NOT REQUIRED IN PROSPECTUS (Continued) chase price of $8.50 per share, Orion issued 100,326 additional shares to the Directors and affiliates of Directors who purchased Common Stock in December 1993. In addition, after Orion issued Series A Preferred Stock (along with warrants and options to make an additional investment) to CIBC, Fleet and Chisholm in June 1994, the Directors and affiliates of Directors who purchased Common Stock in December 1993 each exercised his or its right to receive Series A Preferred Stock (along with warrants and options to make an additional investment) in exchange for the Common Stock previously acquired, and Orion issued an aggregate of $3,000,000 of Series A Preferred Stock to such persons and entities. In May 1994, Orion entered into an agreement with SS/L whereby SS/L agreed to purchase 588,235 shares of Common Stock for an aggregate purchase price of $5,000,000. The agreement with SS/L includes a possible sale, under certain circumstances, of an additional 588,235 shares of Common Stock for an aggregate purchase price of $5,000,000. SS/L has the right to require the Company to repurchase the 588,235 shares from SS/L if Orion selects a company other than SS/L as the prime contractor in a contract for construction of a satellite to serve the Asia Pacific region. SS/L has the right, during the three year period after the sale of the initial shares of Common Stock, to receive more shares of Common Stock; under certain circumstances, if Orion issues Common Stock or a security convertible into or exchangeable for Common Stock for a price of less than $8.50 per share. In June 1994, Orion issued an aggregate of 174,844 shares of Common Stock as part of a private placement of its Common Stock to a limited number of institutions and other investors at a purchase price of $8.50 per share. The terms of such issuance permitted the purchasers to receive the benefit of any lower price at which Common Stock subsequently was issued in the private placement or to receive any other security subsequently issued in the private placement. When Orion issued Series A Preferred Stock (along with warrants and options to make an additional investment) to CIBC, Fleet and Chisholm in June 1994, the institutions and other investors who purchased Common Stock in June 1994 each exercised his, her or its right to receive Series A Preferred Stock (along with warrants and options to make an additional investment) in exchange for the Common Stock previously acquired, and Orion issued an aggregate of $3,000,000 of Series A Preferred Stock to such persons and entities. In March 1995 (but pursuant to a contract signed in January 1994) Orion issued an aggregate of 2,941 shares of Common Stock to a recruiting firm as compensation for work performed for Orion. In January 1997, Orion issued an aggregate of approximately 86,500 shares of Common Stock to British Aerospace, one of the Company's principal stockholders which has a representative on the Company's Board of Directors. Such issuance was pursuant to the exercise of a warrant granted in December 1991 in connection with the formation of Orion Atlantic. Orion has, from time to time, issued Common Stock upon conversion of Series A and Series B Preferred Stock. Preferred Stock In June 1994, CIBC, Fleet and Chisholm purchased $11.5 million in Series A 8% Cumulative Redeemable Convertible Preferred Stock, which shares are convertible into shares of Common Stock at an exercise price of $8.50 per share. See "Description of Capital Stock -- Preferred Stock." CIBC, Fleet, and Chisholm also were granted the right to invest an additional $3.8 million in similar preferred stock, except that such similar preferred stock would be convertible at any time into Common Stock at a price within a range from $10.20 to $17.00 per share of Common Stock based upon when the option is exercised and certain other factors. CIBC, Fleet, and Chisholm also were granted a contractual "preemptive" right to purchase a pro rata portion of any equity securities sold by Orion in the future on the same terms and conditions as sold to others, subject to certain exceptions for securities sold or granted to employees, certain small offerings, and existing rights to acquire equity securities. CIBC, Fleet and Chisholm also were granted certain warrants (issued concurrently with the Series A Preferred Stock) to purchase Common Stock at the conversion price of such Series A Preferred Stock. These warrants do not become exercisable unless Orion exercise its right to repurchase the Series A Preferred Stock at the liquidation value (plus accrued and unpaid dividends). In connection with the transaction, CIBC and Fleet each were granted the right to elect one member of Orion's Board of Directors. II-6 PART II INFORMATION NOT REQUIRED IN PROSPECTUS (Continued) After Orion issued Series A Preferred Stock (along with warrants and options to make an additional investment) to CIBC, Fleet and Chisholm in June 1994, the Directors and affiliates of Directors who purchased Common Stock in December 1993 and the institutions and other investors who purchased Common Stock in June 1994 each exercised his, her or its right to receive Series A Preferred Stock (along with warrants and options to make an additional investment) in exchange for the Common Stock previously acquired and Orion issued an aggregate of $3.0 million of Series A Preferred Stock to such persons and entities. In June 1995, CIBC and certain Directors and affiliates of Directors who purchased Series A Preferred Stock in June 1994 purchased approximately $4.2 million in Series B Preferred Stock of Orion. This purchase was pursuant to an option granted in June 1994 to purchase $1 of preferred stock similar to the Series A Preferred Stock for each $3 of Series A Preferred Stock purchased in June 1994, except that such similar preferred stock would be convertible at any time into Common Stock at a price within a range from $10.20 to $17.00 per share of Common Stock based upon when the option is exercised. The Series B Preferred Stock has rights, designations and preferences substantially similar to those of the Series A Preferred Stock discussed above, except that the Series B Preferred Stock is convertible into Common Stock at an initial price of $10.20 per share, subject to certain anti-dilution adjustments, and purchase of Series B Preferred Stock did not result in the purchasers receiving any rights to purchase additional preferred stock. The purchasers of the Series B Preferred Stock also were granted certain warrants (issued concurrently with the Preferred Stock) to purchase Common Stock at the conversion price of such Series B Preferred Stock. These warrants do not become exercisable unless Orion exercises its right to repurchase the Series B Preferred Stock at the liquidation value (plus accrued and unpaid dividends). Warrants In May 1994, in connection with the sale of Common Stock to SS/L discussed under "Common Stock" above, Orion granted an option to SS/L to purchase 588,235 shares of Common Stock at a price of $8.50 per share prior to January 1, 1995, which option has expired. In June 1994, in connection with the sale of Series A Preferred Stock discussed under "Preferred Stock" above, Orion granted an option to the holders of Series A Preferred Stock to invest an additional $4.8 million in similar preferred stock (except that such similar preferred stock would be convertible at any time into Common Stock at a price based upon when the option is exercised within a range from $10.20 to $17.00 per share of Common Stock). The purchase of Series B Preferred Stock in June 1995 represented an exercise of the right to invest approximately $4.5 million of this amount. Orion also granted the holders of Preferred Stock certain warrants to purchase Common Stock at the conversion price of such Preferred Stock. These warrants do not become exercisable unless Orion exercises its right to repurchase the Preferred Stock at the liquidation value (plus accrued and unpaid dividends). In December 1996, Orion issued an option to DACOM to purchase 50,000 shares of Common Stock at a price of $14.00 per share. The warrant is exercisable for a six (6) month period beginning six (6) months after the commencement date, as defined in the Joint Investment Agreement, and ending one (1) year after the commencement date and will terminate at that time or at any time the Joint Investment Agreement between DACOM and Orion is terminated. II-7 ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES. (a) Exhibits. EXHIBIT NUMBER DESCRIPTION ------ ----------- 1.1 Form of Underwriting Agreement 2.1 Agreement and Plan of Merger, dated January 8, 1997, by and among Orion Network Systems, Inc., Orion Newco Services, Inc. and Orion Merger Company, Inc. (Incorporated by reference to exhibit number 2.1 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 3.1 Form of Restated Certificate of Incorporation of Orion Newco Services, Inc. (Incorporated by reference to exhibit number 3.1 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 3.2 Bylaws of Orion Newco Services, Inc. (Incorporated by reference to exhibit number 3.2 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 3.3 Certificate of Incorporation of Orion Network Systems, Inc. (Incorporated by reference to exhibit number 3.1 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 3.4 Bylaws of Orion Network Systems, Inc. (Incorporated by reference to exhibit number 3.2 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 3.5 Certificate of Incorporation of Orion Satellite Corporation 3.6 Bylaws of Orion Satellite Corporation 3.7 Certificate of Limited Partnership of International Private Satellite Partners, L.P. 3.8 Form of Third Amended and Restated Agreement of Limited Partnership of International Private Satellite Partners, L.P. 3.9 Certificate of Incorporation of OrionNet, Inc. 3.10 Bylaws of OrionNet, Inc. 3.11 Certificate of Incorporation of Orion Asia Pacific Corporation* 3.12 Bylaws of Orion Asia Pacific Corporation 3.13 Certificate of Incorporation OrionNet Finance Corporation 3.14 Bylaws of OrionNet Finance Corporation 3.15 Certificate of Incorporation of Asia Pacific Space and Communications, Ltd. 3.16 Amended and Restated Bylaws of Asia Pacific Space and Communications, Ltd. 3.17 Certificate of Incorporation of Orion Atlantic Europe, Inc. 3.18 Bylaws of Orion Atlantic Europe, Inc. 4.1 Form of Senior Note Indenture and Form of Note included therein 4.2 Form of Senior Discount Note Indenture and Form of Note included therein 4.3 Form of Collateral Pledge and Securitiy Agreement 4.4 INTENTIONALLY OMITTED 4.5 Form of Warrant Agreement, by and between Orion and Bankers Trust Company, and Form of Warrant included therein 4.6 Forms of Warrant issued by Orion. (Incorporated by reference to exhibit number 4.1 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 4.7 Forms of Warrant issued by Orion to holders of Preferred Stock. (Incorporated by reference to exhibit number 4.2 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 4.8 Forms of Certificates of Designation of Series A 8% Cumulative Redeemable Convertible Preferred Stock, Series B 8% Cumulative Redeemable Convertible Preferred Stock and Series C 6% Cumulative Redeemable Convertible Preferred Stock of Orion. (Incorporated by reference to exhibit number 4.3 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) II-9 EXHIBIT NUMBER DESCRIPTION ------ ----------- 4.9 Forms of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock certificates of Orion. (Incorporated by reference to exhibit number 4.4 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 4.10 Form of Common Stock Certificate of Orion. (Incorporated by reference to exhibit number 4.5 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 4.11 Forms of Certificates of Designation of Series A 8% Cumulative Redeemable Convertible Preferred Stock and Series B 8% Cumulative Redeemable Convertible Preferred Stock of Orion Network Systems, Inc. (Incorporated by reference to exhibit number 4.4 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.). 4.12 Form of Warrant issued to DACOM Corp. (Incorporated by reference to exhibit number 4.6 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 4.13 Debenture Purchase Agreement, dated January 13, 1997, with British Aerospace and Matra Marconi Space (Incorporated by reference to exhibit number 4.7 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 5.1 Opinion of Hogan & Hartson L.L.P.* 8.1 Opinion of Hogan & Hartson L.L.P. with respect to certain tax matters* 10.1 Second Amended and Restated Purchase Agreement, dated September 26, 1991 ("Satellite Contract") by and between OrionSat and British Aerospace PLC and the First Amendment, dated as of September 15, 1992, Second Amendment, dated as of November 9, 1992, Third Amendment, dated as of March 12, 1993, Fourth Amendment, dated as of April 15, 1993, Fifth Amendment, dated as of September 22, 1993, Sixth Amendment, dated as of April 6, 1994, Seventh Amendment, dated as of August 9, 1994, Eighth Amendment, dated as of December 8, 1994, and Amendment No. 9 dated October 24, 1995, thereto. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THESE DOCUMENTS.] (Incorporated by reference to exhibits number 10.13 and 10.14 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.2 Restated Amendment No. 10 dated December 10, 1996, between Orion Atlantic and Matra Marconi Space to the Second Amended and Restated Purchase Agreement, dated September 26, 1991 by and between OrionSat and British Aerospace PLC (which contract and prior exhibits thereto were incorporated by reference as exhibit number 10.1). (Incorporated by reference to exhibit number 10.2 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 10.3 Ground Support System Agreement, dated as of August 2, 1991, by and between Orion Atlantic and Telespazio S.p.A. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.25 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.4 Italian Facility and Services Agreement, dated as of August 2, 1991, by and between OrionSat and Telespazio S.p.A. as amended by the amendment thereto, dated March 19, 1994. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THESE DOCUMENTS.] (Incorporated by reference to exhibit number 10.26 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.5 Contract for a Satellite Control System, dated December 7, 1992, by and between Orion Atlantic, Telespazio S.p.A. and Martin Marietta Corporation. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.31 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.6 Credit Agreement, dated as of November 23, 1993, by and between Orion Atlantic, OrionSat and General Electric Capital Corporation ("GECC"). [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.32 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.7 Security Agreement, dated as of November 23, 1993, by and between Orion Atlantic, OrionSat and GECC. (Incorporated by reference to exhibit number 10.33 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.8 Assignment and Security Agreement, dated as of November 23, 1993, by and between Orion Atlantic, OrionSat and GECC. (Incorporated by reference to exhibit number 10.34 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) II-10 EXHIBIT NUMBER DESCRIPTION ------ ----------- 10.9 Consent and Agreement, dated as of November 23, 1993, by and between Orion Atlantic, Martin Marietta Corporation and GECC. (Incorporated by reference to exhibit number 10.35 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.10 Deed of Trust, dated as of November 23, 1993, by and between Orion Atlantic, W. Allen Ames, Jr. and Michael J. Schwel, as Trustees, and GECC. (Incorporated by reference to exhibit number 10.37 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.11 Lease Agreement, dated as of November 23, 1993, by and between OrionNet, Inc. and Orion Atlantic, as amended by an Amendment, dated January 3, 1995. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THESE DOCUMENTS.] (Incorporated by reference to exhibit number 10.38 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.12 Note for Interim Loans, dated as of November 23, 1993, by and between Orion Atlantic and GECC. (Incorporated by reference to exhibit number 10.42 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.13 Sales Representation Agreement and Ground Operations Service Agreement, each dated as of May 1, 1994 and June 30, 1994, by and between each of OrionNet, Inc. and Kingston Communications, respectively, and Orion Atlantic, as amended by side agreements, dated May 1, 1994, July 12, 1994 and February 1, 1995. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THESE DOCUMENTS.] (Incorporated by reference to exhibit number 10.43 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.14 Lease Agreement, dated as of October 2, 1992, by and between OrionNet and Research Grove Associates, as amended by Amendment No. 1, dated March 26, 1993, Amendment No. 2, dated August 23, 1993, and Amendment No. 3, dated December 20, 1993. (Incorporated by reference to exhibit number 10.39 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.15 Sales Representation Agreement and Ground Operations Service Agreement, dated as of June 30, 1995, by and between MCN Sat Service, S.A. and Orion Atlantic. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.69 in Orion's Registration Statement No. 33-80518 on Form S-1.) 10.16 Volume Purchase Agreement, dated January 18, 1995, by and between the Company and Dornier GmbH. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.66 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.17 Product Development, License and Marketing Agreement, dated January 18, 1995, by and between the Company and Dornier GmbH. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.65 in Orion's Registration Statement No. 33-80518 on Form S-1.) 10.18 Sales Representation Agreement, dated as of June 8, 1995, by and between Nortel Dasa Network Systems GmbH & Co. KG and Orion Atlantic. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.70 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.19 Orion 2 Spacecraft Purchase Contract, dated July 31, 1996, between Orion Atlantic and Matra Marconi Space. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.19 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 10.20 Orion's Amended and Restated 1987 Stock Option Plan as amended. (Incorporated by reference to exhibit number 10.23 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.21 Purchase Contract, dated December 4, 1991, by and between OrionNet, Inc., Shenandoah Valley Leasing Company and MCI Telecommunications Corporation. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTION OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.30 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.22 Amended and Restated Partnership Agreement of Orion Financial Partnership, dated as of April 15, 1994, by and between OrionNet and Computer Leasing Inc. ("CLI"). (Incorporated by reference to exhibit number 10.44 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.23 Continuing Guaranty, dated as of April 15, 1994, of the Company of the obligations of OrionNet Finance Corporation. (Incorporated by reference to exhibit number 10.45 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) II-11 EXHIBIT NUMBER DESCRIPTION ------ ----------- 10.24 Release of Continuing Guaranty, dated as of December 29, 1994, by the Orion Financial Partnership. (Incorporated by reference to exhibit number 10.46 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.25 Confirmation of Continuing Guaranty, dated as of December 29, 1994, of the Company of the obligation of OFC. (Incorporated by reference to exhibit number 10.47 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.26 Continuing Guarantee, dated as of December 29, 1994, by Lessor Capital Funding Limited Partnership in favor of Orion Financial Partnership. (Incorporated by reference to exhibit number 10.48 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.27Master Lease Agreement, dated as of April 15, 1994, by and between OrionNet and Orion Financial Partnership. (Incorporated by reference to exhibit number 10.49 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.28 Collateral Assignment and Pledge and Security Agreement, dated April 22, 1994, by and between CLI and Orion Financial Partnership. (Incorporated by reference to exhibit number 10.50 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.29 Purchase Agreement, dated as of April 22, 1994, by and between OrionNet and Orion Financial Partnership. (Incorporated by reference to exhibit number 10.51 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.30 Stock Purchase Agreement, dated as of April 29, 1994, by and between the Company and SS/L. (Incorporated by reference to exhibit number 10.53 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.31 Registration Rights Agreement, dated as of April 29, 1994, by and between the Company and SS/L. (Incorporated by reference to exhibit number 10.54 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.32 Purchase Agreement, dated as of June 17, 1994, by and between the Company, CIBC, Fleet and Chisholm. (Incorporated by reference to exhibit number 10.55 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.33 Stockholders Agreement, dated as of June 17, 1994, by and between the Company, CIBC, Fleet, Chisholm and certain principal stockholders of the Company. (Incorporated by reference to exhibit number 10.56 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.34Registration Rights Agreement, dated as of June 17, 1994, by and between the Company, CIBC, Fleet and Chisholm. (Incorporated by reference to exhibit number 10.57 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.35 Purchase Agreement, dated as of June 19, 1995, by and among the Company, CIBC, Fleet and an affiliate of Fleet. (Incorporated by reference to exhibit number 10.58 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.36 Definitive Agreement, dated April 26, 1990, by and between Orion Asia Pacific and the Republic of the Marshall Islands and a Stock Option Agreement related thereto. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THESE DOCUMENTS.] (Incorporated by reference to exhibit number 10.60 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.37 Option Agreement, dated December 10, 1996, by and between Orion Atlantic and Matra Marconi Space. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.37 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 10.38 Memorandum of Agreement for the Procurement of Orion 2 Spacecraft, dated December 19, 1996, by and between Orion Atlantic and Matra Marconi Space. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.38 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 10.39 TT&C Earth Station Agreement, dated as of November 11, 1996, by and between Orion Asia Pacific and DACOM Corp. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.39 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) II-12 EXHIBIT NUMBER DESCRIPTION ------ ----------- 10.40 Joint Investment Agreement, dated as of November 11, 1996, by and between Orion Asia Pacific and DACOM Corp. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.40 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 10.41 Orion Network Systems, Inc. Employee Stock Purchase Plan (Incorporated by reference to exhibit number 4.4 in Registration Statement No. 333-19021 on Form S-8 of Orion Network Systems, Inc.) 10.42 Orion Network Systems, Inc. 401(k) Profit Sharing Plan (Incorporated by reference to exhibit number 4.5 in Registration Statement No. 333-19021 on Form S-8 of Orion Network Systems, Inc.) 10.43 Orion Network Systems, Inc. Non-Employee Director Stock Option Plan (Incorporated by reference to exhibit number 10.43 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 10.44 Exchange Agreement dated June 1996 among Orion Network Systems, Orion Atlantic, OrionSat and the Limited Partners (Incorporated by reference to exhibit 10 in Current Report on Form 8-K dated December 20, 1996, of Orion Network Systems, Inc.) 10.45 First Amendment to Exchange Agreement dated December 1996 among Orion Network Systems, Orion Atlantic, OrionSat and the Limited Partners. (Incorporated by reference to exhibit number 10.45 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 10.46 Redemption Agreement dated November 21, 1995, by and between STET and Orion Atlantic, the promissory notes delivered thereunder and Instrument of Redemption relating thereto. (Incorporated by reference to exhibit number 10.1 in Current Report on Form 8-K dated November 21, 1995 of Orion Network Systems, Inc.) 10.47 IPSP-Telecom Italia Agreement dated November 21, 1995, by and between Telecom Italia and Orion Atlantic. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.2 in Current Report on Form 8-K dated November 21, 1995 of Orion Network Systems, Inc.) 10.48 Indemnity Agreement dated November 21, 1995, by and among Telecom Italia, Orion Atlantic, Orion and STET. (Incorporated by reference to exhibit number 10.3 in Current Report on Form 8-K dated November 21, 1995 of Orion Network Systems, Inc.) 10.49 Subscription Agreement dated November 21, 1995, by and between Orion and Orion Atlantic, and the promissory note delivered thereunder. (Incorporated by reference to exhibit number 10.5 in Current Report on Form 8-K dated November 21, 1995 of Orion Network Systems, Inc.). 10.50 First Amendment to the Italian Facility and Services Agreement dated November 21, 1995, by and between Orion Atlantic and Nuova Telespazio. (Incorporated by reference to exhibit number 10.7 in Current Report on Form 8-K dated November 21, 1995 of Orion Network Systems, Inc.). 10.51 Registration Rights Agreement, dated January 13, 1997, by and among Orion Newco Services, Inc., British Aerospace Holdings, Inc. and Matra Marconi Space. (Incorporated by reference to exhibit number 10.51 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 10.52 Orion 3 Spacecraft Purchase Contract, dated January 15, 1997, by and among Hughes Space and Communications International, Inc., Orion Asia Pacific Corporation and Orion Network Systems. {CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS DOCUMENT. THE CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARTELY WITH THE COMMISSION.]* 12.1 Statement Regarding Computation of Ratio of Earnings to Fixed Charges. 21.1 List of subsidiaries of Orion. (Incorporated by references to exhibit number 21.1 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 23.1 Consent of Ernst & Young LLP 23.2 Consent of Hogan & Hartson L.L.P. (included in their opinion filed as Exhibit 5.1).* 23.3 Consent of Ascent Communications Advisors, L.P. 24.1 Powers of Attorney (included on the signature pages of the Registration Statement). 26.1 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended of Bankers Trust Company as trustee (Separately Bound)* 99.1 Orders of FCC regarding OrionSat. (Incorporated by reference to exhibit number 99.1 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.). 99.2 Valuation for Orion Atlantic as of December 1, 1996, by Ascent Communications Advisors, L.P. (Included as Attachement A to the Prospectus which is a part of this Registration Statement.) - ---------- * To be filed by amendment. II-12 (b) Financial Statements and Schedules: (1) Financial Statements The financial statements filed as part of this Registration Statement are listed in the Index to Financial Statements on page F-1. (2) Schedules The financial statement schedules of the Company have been omitted because the information required to be set forth therein is not applicable or is shown in the Financial Statements or Notes thereto. ITEM 17. UNDERTAKINGS. The undersigned Registrants hereby undertake: (a)(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement; (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high and of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement. (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) That, for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in the form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective; and (c) That, for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrants pursuant to the foregoing provisions, or otherwise, the Registrants have been advised that in the opinion of the Securities and Exchange Commission such II-13 indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrants of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrants will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-14 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rockville, State of Maryland, on the 22nd day of January, 1997. ORION NEWCO SERVICES, INC. By: /s/ W. Neil Bauer ------------------------- W. Neil Bauer President Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 1 to Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ W. Neil Bauer - ------------------------------- President and Director January 22, 1997 W. Neil Bauer (Principal Executive Officer) /s/ David J. Frear - ------------------------------- Vice President, Chief Financial January 22, 1997 David J. Frear Officer and Director (Principal Financial Officer and Principal Accounting Officer) /s/ Richard H. Shay* - -------------------------------- Secretary and Director January 22, 1997 Richard H. Shay *By: /s/ David J. Frear ----------------------------- David J. Frear Attorney-in-Fact
II-15 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rockville, State of Maryland, on the 22nd day of January, 1997. ORION NETWORK SERVICES, INC. By: /s/ W. Neil Bauer ------------------------- W. Neil Bauer President Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 1 to Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE - ------------------------------ -------------------------------------- -------------------- /s/ W. Neil Bauer President, Chief Executive - ------------------------------ Officer and Director W. Neil Bauer (Principal Executive Officer) January 22, 1997 /s/ David J. Frear Vice President, Chief Financial - ------------------------------ Officer and Treasurer David J. Frear (Principal Financial Officer and Principal Accounting Officer) January 22, 1997 /s/ Gustave M. Hauser* Chairman and Director January 22, 1997 - ----------------------------- Gustave M. Hauser /s/ John V. Saeman* Director January 22, 1997 - ---------------------------- John V. Saeman /s/ John G. Puente* Director January 22, 1997 - ---------------------------- John G. Puente /s/ Richard J. Brekka* Director January 22, 1997 - ---------------------------- Richard J. Brekka /s/ Warren B. French, Jr.* Director January 22, 1997 - ---------------------------- Warren B. French, Jr. /s/ Sidney S. Kahn* Director January 22, 1997 - ---------------------------- Sidney S. Kahn Director January __, 1997 - ---------------------------- W. Anthony Rice II-16 SIGNATURES (Continued) SIGNATURE TITLE DATE - ------------------------------ -------------------------------------- -------------------- /s/ Robert M. Van Degna* Director January 22, 1997 - ---------------------------- Robert M. Van Degna /s/ Barry Horowitz* Director January 22, 1997 - ---------------------------- Barry Horowitz
*By: /s/ David J. Frear ---------------------- David J. Frear Attorney-in-Fact II-17 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rockville, State of Maryland, on the 22nd day of January, 1997. ORION SATELLITE CORPORATION By: /s/ W. Neil Bauer -------------------------------- W. Neil Bauer Chairman and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 1 to Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ W. Neil Bauer Chairman, Chief Executive January 22, 1997 - ------------------------------- Officer and Director W. Neil Bauer (Principal Executive Officer) /s/ Douglas Newman* President and Director January 22, 1997 - ------------------------------- Douglas Newman /s/ David J. Frear Vice President, Chief Financial January 22, 1997 - -------------------------------- Officer and Director David J. Frear (Principal Financial Officer and Principal Accounting Officer) *By: /s/ David J. Frear -------------------------- David J. Frear Attorney-in-Fact
II-18 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rockville, State of Maryland, on the 22nd day of January, 1997. INTERNATIONAL PRIVATE SATELLITE PARTNERS, L.P. BY: ORION SATELLITE CORPORATION By: /s/ W. Neil Bauer ----------------------------------- W. Neil Bauer Chairman and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 1 to Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ W. Neil Bauer Chairman, Chief Executive January 22, 1997 - ------------------------------- Officer and Director W. Neil Bauer (Principal Executive Officer) /s/ Douglas Newman* President and Director January 22, 1997 - ------------------------------- Douglas Newman /s/ David J. Frear Vice President, Chief Financial January 22, 1997 - -------------------------------- Officer and Director David J. Frear (Principal Financial Officer and Principal Accounting Officer) *By: /s/ David J. Frear -------------------------- David J. Frear Attorney-in-Fact
II-19 - SIGNATURES (Continued) SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rockville, State of Maryland, on the 22nd day of January, 1997. ORIONNET, INC. By: /s/ W. Neil Bauer ----------------------------------- W. Neil Bauer President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE - ----------------------- ------------------------------------ ----------------- /s/ W. Neil Bauer President, Chief Executive January 22, 1997 - ----------------------- Officer and Director W. Neil Bauer (Principal Executive Officer) /s/ David J. Frear Vice President, Chief Financial January 22, 1997 - ----------------------- Officer and Director David J. Frear (Principal Financial Officer and Principal Accounting Officer)
*By: /s/ David J. Frear ------------------------ David J. Frear Attorney-in-Fact II-20 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rockville, State of Maryland, on the 22nd day of January, 1997. ORION ASIA PACIFIC CORPORATION By: /s/ W. Neil Bauer ----------------------------------- W. Neil Bauer President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 1 to Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE - ----------------------- ------------------------------------ ----------------- /s/ W. Neil Bauer President, Chief Executive January 22, 1997 - ----------------------- Officer and Director W. Neil Bauer (Principal Executive Officer) /s/ David J. Frear Vice President, Chief Financial January 22, 1997 - ----------------------- Officer and Treasurer and David J. Frear Director (Principal Financial Officer and Principal Accounting Officer)
*By: /s/ David J. Frear ------------------------ David J. Frear Attorney-in-Fact II-21 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rockville, State of Maryland, on the 22nd day of January, 1997. ASIA PACIFIC SPACE AND COMMUNICATIONS, INC. By: /s/ W. Neil Bauer --------------------------------- W. Neil Bauer President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 1 to Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE - ----------------------- ------------------------------------ ----------------- /s/ W. Neil Bauer President, Chief Executive January 22, 1997 - ----------------------- Officer and Director W. Neil Bauer (Principal Executive Officer) /s/ David J. Frear Vice President, Chief Financial January 22, 1997 - ----------------------- Officer and Director David J. Frear (Principal Financial Officer and Principal Accounting Officer)
*By: /s/ David J. Frear ------------------------ David J. Frear Attorney-in-Fact II-22 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rockville, State of Maryland, on the 22nd day of January, 1997. ORIONNET FINANCE CORPORATION By: /s/ W. Neil Bauer ------------------------------------ W. Neil Bauer President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 1 to Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE - ----------------------- ------------------------------------ ----------------- /s/ W. Neil Bauer President, Chief Executive January 22, 1997 - ----------------------- Officer and Director W. Neil Bauer (Principal Executive Officer) /s/ David J. Frear Vice President, Chief Financial January 22, 1997 - ----------------------- Officer and Treasurer and David J. Frear Director (Principal Financial Officer and Principal Accounting Officer)
*By: /s/ David J. Frear ---------------------- David J. Frear Attorney-in-Fact II-23 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rockville, State of Maryland, on the 22nd day of January, 1997. ORION ATLANTIC EUROPE, INC. By: /s/ W. Neil Bauer -------------------------------- W. Neil Bauer President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 1 to Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE - ----------------------- ------------------------------------ ----------------- /s/ W. Neil Bauer President, Chief Executive January 22, 1997 - ----------------------- Officer and Director W. Neil Bauer (Principal Executive Officer) /s/ David J. Frear Vice President, Chief Financial January 22, 1997 - ----------------------- Officer and Treasurer and David J. Frear Director (Principal Financial Officer and Principal Accounting Officer)
*By: /s/ David J. Frear ---------------------- David J. Frear Attorney-in-Fact II-24 EXHIBIT INDEX
EXHIBIT PAGE NUMBER DESCRIPTION NUMBER - ----------- ----------------------------------------------------------------------------------------------------- ----------- 1.1 Form of Underwriting Agreement 2.1 Agreement and Plan of Merger, dated January 8, 1997, by and among Orion Network Systems, Inc., Orion Newco Services, Inc. and Orion Merger Company, Inc. (Incorporated by reference to exhibit number 2.1 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 3.1 Form of Restated Certificate of Incorporation of Orion Newco Services, Inc. (Incorporated by reference to exhibit number 3.1 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 3.2 Bylaws of Orion Newco Services, Inc. (Incorporated by reference to exhibit number 3.2 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 3.3 Certificate of Incorporation of Orion Network Systems, Inc. (Incorporated by reference to exhibit number 3.1 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 3.4 Bylaws of Orion Network Systems, Inc. (Incorporated by reference to exhibit number 3.2 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 3.5 Certificate of Incorporation of Orion Satellite Corporation 3.6 Bylaws of Orion Satellite Corporation 3.7 Certificate of Limited Partnership of International Private Satellite Partners, L.P. 3.8 Form of Third Amended and Restated Agreement of Limited Partnership of International Private Satellite Partners, L.P. 3.9 Certificate of Incorporation of OrionNet, Inc. 3.10 Bylaws of OrionNet, Inc. 3.11 Certificate of Incorporation of Orion Asia Pacific Corporation* 3.12 Bylaws of Orion Asia Pacific Corporation 3.13 Certificate of Incorporation OrionNet Finance Corporation 3.14 Bylaws of OrionNet Finance Corporation 3.15 Certificate of Incorporation of Asia Pacific Space and Communications, Ltd. 3.16 Amended and Restated Bylaws of Asia Pacific Space and Communications, Ltd. 3.17 Certificate of Incorporation of Orion Atlantic Europe, Inc. 3.18 Bylaws of Orion Atlantic Europe, Inc. 4.1 Form of Senior Note Indenture and Form of Note included therein 4.2 Form of Senior Discount Note Indenture and Form of Note included therein 4.3 Form of Collateral Pledge and Security Agreement 4.4 INTENTIONALLY OMITTED 4.5 Form of Warrant Agreement, by and between Orion and Bankers Trust Company, and Form of Warrant included therein 4.6 Forms of Warrant issued by Orion. (Incorporated by reference to exhibit number 4.1 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 4.7 Forms of Warrant issued by Orion to holders of Preferred Stock. (Incorporated by reference to exhibit number 4.2 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 4.8 Forms of Certificates of Designation of Series A 8% Cumulative Redeemable Convertible Preferred Stock, Series B 8% Cumulative Redeemable Convertible Preferred Stock and Series C 6% Cumulative Redeemable Convertible Preferred Stock of Orion. (Incorporated by reference to exhibit number 4.3 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) EXHIBIT PAGE NUMBER DESCRIPTION NUMBER - ----------- ----------------------------------------------------------------------------------------------------- ----------- 4.9 Forms of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock certificates of Orion. (Incorporated by reference to exhibit number 4.4 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 4.10 Form of Common Stock Certificate of Orion. (Incorporated by reference to exhibit number 4.5 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 4.11 Forms of Certificates of Designation of Series A 8% Cumulative Redeemable Convertible Preferred Stock and Series B 8% Cumulative Redeemable Convertible Preferred Stock of Orion Network Systems, Inc. (Incorporated by reference to exhibit number 4.4 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.). 4.12 Form of Warrant issued to DACOM Corp. (Incorporated by reference to exhibit number 4.6 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 4.13 Debenture Purchase Agreement, dated January 13, 1997, with British Aerospace and Matra Marconi Space (Incorporated by reference to exhibit number 4.7 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 5.1 Opinion of Hogan & Hartson L.L.P.* 8.1 Opinion of Hogan & Hartson L.L.P. with respect to certain tax matters* 10.1 Second Amended and Restated Purchase Agreement, dated September 26, 1991 ("Satellite Contract") by and between OrionSat and British Aerospace PLC and the First Amendment, dated as of September 15, 1992, Second Amendment, dated as of November 9, 1992, Third Amendment, dated as of March 12, 1993, Fourth Amendment, dated as of April 15, 1993, Fifth Amendment, dated as of September 22, 1993, Sixth Amendment, dated as of April 6, 1994, Seventh Amendment, dated as of August 9, 1994, Eighth Amendment, dated as of December 8, 1994, and Amendment No. 9 dated October 24, 1995, thereto. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THESE DOCUMENTS.] (Incorporated by reference to exhibits number 10.13 and 10.14 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.2 Restated Amendment No. 10 dated December 10, 1996, between Orion Atlantic and Matra Marconi Space to the Second Amended and Restated Purchase Agreement, dated September 26, 1991 by and between OrionSat and British Aerospace PLC (which contract and prior exhibits thereto were incorporated by reference as exhibit number 10.1). (Incorporated by reference to exhibit number 10.2 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 10.3 Ground Support System Agreement, dated as of August 2, 1991, by and between Orion Atlantic and Telespazio S.p.A. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.25 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.4 Italian Facility and Services Agreement, dated as of August 2, 1991, by and between OrionSat and Telespazio S.p.A. as amended by the amendment thereto, dated March 19, 1994. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THESE DOCUMENTS.] (Incorporated by reference to exhibit number 10.26 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.5 Contract for a Satellite Control System, dated December 7, 1992, by and between Orion Atlantic, Telespazio S.p.A. and Martin Marietta Corporation. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.31 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.6 Credit Agreement, dated as of November 23, 1993, by and between Orion Atlantic, OrionSat and General Electric Capital Corporation ("GECC"). [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.32 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) EXHIBIT PAGE NUMBER DESCRIPTION NUMBER - ----------- ----------------------------------------------------------------------------------------------------- ----------- 10.7 Security Agreement, dated as of November 23, 1993, by and between Orion Atlantic, OrionSat and GECC. (Incorporated by reference to exhibit number 10.33 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.8 Assignment and Security Agreement, dated as of November 23, 1993, by and between Orion Atlantic, OrionSat and GECC. (Incorporated by reference to exhibit number 10.34 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.9 Consent and Agreement, dated as of November 23, 1993, by and between Orion Atlantic, Martin Marietta Corporation and GECC. (Incorporated by reference to exhibit number 10.35 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.10 Deed of Trust, dated as of November 23, 1993, by and between Orion Atlantic, W. Allen Ames, Jr. and Michael J. Schwel, as Trustees, and GECC. (Incorporated by reference to exhibit number 10.37 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.11 Lease Agreement, dated as of November 23, 1993, by and between OrionNet, Inc. and Orion Atlantic, as amended by an Amendment, dated January 3, 1995. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THESE DOCUMENTS.] (Incorporated by reference to exhibit number 10.38 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.12 Note for Interim Loans, dated as of November 23, 1993, by and between Orion Atlantic and GECC. (Incorporated by reference to exhibit number 10.42 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.13 Sales Representation Agreement and Ground Operations Service Agreement, each dated as of May 1, 1994 and June 30, 1994, by and between each of OrionNet, Inc. and Kingston Communications, respectively, and Orion Atlantic, as amended by side agreements, dated May 1, 1994, July 12, 1994 and February 1, 1995. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THESE DOCUMENTS.] (Incorporated by reference to exhibit number 10.43 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.14 Lease Agreement, dated as of October 2, 1992, by and between OrionNet and Research Grove Associates, as amended by Amendment No. 1, dated March 26, 1993, Amendment No. 2, dated August 23, 1993, and Amendment No. 3, dated December 20, 1993. (Incorporated by reference to exhibit number 10.39 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.15 Sales Representation Agreement and Ground Operations Service Agreement, dated as of June 30, 1995, by and between MCN Sat Service, S.A. and Orion Atlantic. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.69 in Orion's Registration Statement No. 33-80518 on Form S-1.) 10.16 Volume Purchase Agreement, dated January 18, 1995, by and between the Company and Dornier GmbH. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.66 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.17 Product Development, License and Marketing Agreement, dated January 18, 1995, by and between the Company and Dornier GmbH. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.65 in Orion's Registration Statement No. 33-80518 on Form S-1.) 10.18 Sales Representation Agreement, dated as of June 8, 1995, by and between Nortel Dasa Network Systems GmbH & Co. KG and Orion Atlantic. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.70 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.19 Orion 2 Spacecraft Purchase Contract, dated July 31, 1996, between Orion Atlantic and Matra Marconi Space. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.19 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) EXHIBIT PAGE NUMBER DESCRIPTION NUMBER - ----------- ----------------------------------------------------------------------------------------------------- ----------- 10.20 Orion's Amended and Restated 1987 Stock Option Plan as amended. (Incorporated by reference to exhibit number 10.23 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.21 Purchase Contract, dated December 4, 1991, by and between OrionNet, Inc., Shenandoah Valley Leasing Company and MCI Telecommunications Corporation. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTION OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.30 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.22 Amended and Restated Partnership Agreement of Orion Financial Partnership, dated as of April 15, 1994, by and between OrionNet and Computer Leasing Inc. ("CLI"). (Incorporated by reference to exhibit number 10.44 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.23 Continuing Guaranty, dated as of April 15, 1994, of the Company of the obligations of OrionNet Finance Corporation. (Incorporated by reference to exhibit number 10.45 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.24 Release of Continuing Guaranty, dated as of December 29, 1994, by the Orion Financial Partnership. (Incorporated by reference to exhibit number 10.46 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.25 Confirmation of Continuing Guaranty, dated as of December 29, 1994, of the Company of the obligation of OFC. (Incorporated by reference to exhibit number 10.47 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.26 Continuing Guarantee, dated as of December 29, 1994, by Lessor Capital Funding Limited Partnership in favor of Orion Financial Partnership. (Incorporated by reference to exhibit number 10.48 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.27Master Lease Agreement, dated as of April 15, 1994, by and between OrionNet and Orion Financial Partnership. (Incorporated by reference to exhibit number 10.49 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.28 Collateral Assignment and Pledge and Security Agreement, dated April 22, 1994, by and between CLI and Orion Financial Partnership. (Incorporated by reference to exhibit number 10.50 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.29 Purchase Agreement, dated as of April 22, 1994, by and between OrionNet and Orion Financial Partnership. (Incorporated by reference to exhibit number 10.51 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.30 Stock Purchase Agreement, dated as of April 29, 1994, by and between the Company and SS/L. (Incorporated by reference to exhibit number 10.53 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.31 Registration Rights Agreement, dated as of April 29, 1994, by and between the Company and SS/L. (Incorporated by reference to exhibit number 10.54 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.32 Purchase Agreement, dated as of June 17, 1994, by and between the Company, CIBC, Fleet and Chisholm. (Incorporated by reference to exhibit number 10.55 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.33 Stockholders Agreement, dated as of June 17, 1994, by and between the Company, CIBC, Fleet, Chisholm and certain principal stockholders of the Company. (Incorporated by reference to exhibit number 10.56 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.34Registration Rights Agreement, dated as of June 17, 1994, by and between the Company, CIBC, Fleet and Chisholm. (Incorporated by reference to exhibit number 10.57 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.35 Purchase Agreement, dated as of June 19, 1995, by and among the Company, CIBC, Fleet and an affiliate of Fleet. (Incorporated by reference to exhibit number 10.58 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) EXHIBIT PAGE NUMBER DESCRIPTION NUMBER - ----------- ----------------------------------------------------------------------------------------------------- ----------- 10.36 Definitive Agreement, dated April 26, 1990, by and between Orion Asia Pacific and the Republic of the Marshall Islands and a Stock Option Agreement related thereto. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THESE DOCUMENTS.] (Incorporated by reference to exhibit number 10.60 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.) 10.37 Option Agreement, dated December 10, 1996, by and between Orion Atlantic and Matra Marconi Space. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.37 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 10.38 Memorandum of Agreement for the Procurement of Orion 2 Spacecraft, dated December 19, 1996, by and between Orion Atlantic and Matra Marconi Space. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.38 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 10.39 TT&C Earth Station Agreement, dated as of November 11, 1996, by and between Orion Asia Pacific and DACOM Corp. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.39 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 10.40 Joint Investment Agreement, dated as of November 11, 1996, by and between Orion Asia Pacific and DACOM Corp. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.40 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 10.41 Orion Network Systems, Inc. Employee Stock Purchase Plan (Incorporated by reference to exhibit number 4.4 in Registration Statement No. 333-19021 on Form S-8 of Orion Network Systems, Inc.) 10.42 Orion Network Systems, Inc. 401(k) Profit Sharing Plan (Incorporated by reference to exhibit number 4.5 in Registration Statement No. 333-19021 on Form S-8 of Orion Network Systems, Inc.) 10.43 Orion Network Systems, Inc. Non-Employee Director Stock Option Plan (Incorporated by reference to exhibit number 10.43 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 10.44 Exchange Agreement dated June 1996 among Orion Network Systems, Orion Atlantic, OrionSat and the Limited Partners (Incorporated by reference to exhibit 10 in Current Report on Form 8-K dated December 20, 1996, of Orion Network Systems, Inc.) 10.45 First Amendment to Exchange Agreement dated December 1996 among Orion Network Systems, Orion Atlantic, OrionSat and the Limited Partners. (Incorporated by reference to exhibit number 10.45 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 10.46 Redemption Agreement dated November 21, 1995, by and between STET and Orion Atlantic, the promissory notes delivered thereunder and Instrument of Redemption relating thereto. (Incorporated by reference to exhibit number 10.1 in Current Report on Form 8-K dated November 21, 1995 of Orion Network Systems, Inc.) 10.47 IPSP-Telecom Italia Agreement dated November 21, 1995, by and between Telecom Italia and Orion Atlantic. [CONFIDENTIAL TREATMENT HAS BEEN GRANTED FOR PORTIONS OF THIS DOCUMENT.] (Incorporated by reference to exhibit number 10.2 in Current Report on Form 8-K dated November 21, 1995 of Orion Network Systems, Inc.) 10.48 Indemnity Agreement dated November 21, 1995, by and among Telecom Italia, Orion Atlantic, Orion and STET. (Incorporated by reference to exhibit number 10.3 in Current Report on Form 8-K dated November 21, 1995 of Orion Network Systems, Inc.) EXHIBIT PAGE NUMBER DESCRIPTION NUMBER - ----------- ----------------------------------------------------------------------------------------------------- ----------- 10.49 Subscription Agreement dated November 21, 1995, by and between Orion and Orion Atlantic, and the promissory note delivered thereunder. (Incorporated by reference to exhibit number 10.5 in Current Report on Form 8-K dated November 21, 1995 of Orion Network Systems, Inc.). 10.50 First Amendment to the Italian Facility and Services Agreement dated November 21, 1995, by and between Orion Atlantic and Nuova Telespazio. (Incorporated by reference to exhibit number 10.7 in Current Report on Form 8-K dated November 21, 1995 of Orion Network Systems, Inc.). 10.51 Registration Rights Agreement, dated January 13, 1997, by and among Orion Newco Services, Inc., British Aerospace Holdings, Inc. and Matra Marconi Space. (Incorporated by reference to exhibit number 10.51 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 10.52 Orion 3 Spacecraft Purchase Contract, dated January 15, 1997, by and among Hughes Space and Communications International, Inc., Orion Asia Pacific Corporation and Orion Network Systems. {CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS DOCUMENT. THE CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND FILED SEPARTELY WITH THE COMMISSION.]* 12.1 Statement Regarding Computation of Ratio of Earnings to Fixed Charges. 21.1 List of subsidiaries of Orion. (Incorporated by references to exhibit number 21.1 in Registration Statement No. 333-19795 on Form S-4 of Orion Newco Services, Inc.) 23.1 Consent of Ernst & Young LLP 23.2 Consent of Hogan & Hartson L.L.P. (included in their opinion filed as Exhibit 5.1).* 23.3 Consent of Ascent Communications Advisors, L.P. 24.1 Powers of Attorney (included on the signature pages of the Registration Statement). 26.1 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended of Bankers Trust Company as trustee (Separately Bound)* 99.1 Orders of FCC regarding OrionSat. (Incorporated by reference to exhibit number 99.1 in Registration Statement No. 33-80518 on Form S-1 of Orion Network Systems, Inc.). 99.2 Valuation for Orion Atlantic as of December 1, 1996, by Ascent Communications Advisors, L.P. (Included as Attachement A to the Prospectus which is a part of this Registration Statement.) - ---------- * To be filed by amendment.
EX-1.1 2 EXHIBIT 1.1 S&S DRAFT 1/20/97 ORION NETWORK SYSTEMS, INC. ORION NEWCO SERVICES, INC. [_____] Units, each Unit consisting of One % Senior Note Due 2007 and One Warrant to Purchase [______] Shares of Common Stock [_____] Units, each Unit consisting of One % Senior Discount Note Due 2007 and One Warrant to Purchase [______] Shares of Common Stock UNDERWRITING AGREEMENT [__________], 1997 [__________], 1997 Morgan Stanley & Co. Incorporated Merrill Lynch, Pierce, Fenner & Smith, Incorporated c/o Morgan Stanley & Co. Incorporated 1585 Broadway New York, New York 10036 Dear Sirs: Orion Newco Services, Inc., a newly formed Delaware corporation ("Newco") that is a wholly owned subsidiary of Orion Network Systems, Inc., a Delaware corporation (collectively, with its successors and assigns, "Orion"), proposes to issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters") [_____] Senior Note Units (collectively, the "Senior Note Units") and [_____] Senior Discount Note Units (collectively, the "Senior Discount Note Units"; and together with the Senior Note Units, the "Units"). Each Senior Note Unit will consist of (i) one [____]% Senior Note due 2007 with a principal amount of $1,000 (collectively, the "Senior Notes") to be issued pursuant to the provisions of a Senior Note Indenture (the "Senior Note Indenture") to be dated as of the Closing Date (as defined below) between Newco, certain subsidiaries of Orion, as guarantors (the "Guarantors") and Bankers Trust Company, as trustee (the "Trustee") and (ii) a Warrant (collectively, the "Warrants"), each Warrant entitling the holder thereof to purchase [______] shares of Common Stock, par value $.01 per share (the "Common Stock"), of Newco, to be issued pursuant to the provisions of a Warrant Agreement to be dated as of the Closing Date (the "Warrant Agreement") between Newco and Bankers Trust Company, as warrant agent (the "Warrant Agent"). Each Senior Discount Note Unit will consist of (i) one [___]% Senior Unsecured Discount Note due 2007 with a principal amount at maturity of $1,000 (collectively, the "Senior Discount Notes"; and together with the Senior Notes, the "Notes") to be issued pursuant to the provisions of a Senior Discount Note Indenture to be dated as of the Closing Date (the "Senior Discount Note Indenture") between Newco, the Guarantors, as guarantors, and Bankers Trust Company, as trustee and (ii) a Warrant. Pursuant to the Section 351 Exchange Agreement and Plan of Conversion dated as of June [__], 1996, and amended as of December [__], 1996, (as amended, the "Exchange Agreement"), among Orion, International Private Satellite Partners, L.P., a Delaware limited partnership ("Orion Atlantic"), Orion Satellite Corporation, a Delaware corporation ("OrionSat") that is a wholly owned subsidiary of Orion and the sole general partner of Orion Atlantic, and each of the existing limited partners of Orion Atlantic other than Orion (the "Exchanging Partners"), the Exchanging Partners have agreed to transfer their limited partnership interests in Orion Atlantic and other rights relating thereto to Newco in exchange (collectively, the "Exchange") for 121,988 shares of a newly created class of Newco's Series C 6% Cumulative Convertible Redeemable Preferred Stock. Upon consummation of the Exchange, Newco will own all of the limited partnership interests in Orion Atlantic (directly and indirectly through Orion). In addition, Newco will acquire certain rights held by certain of the Exchanging Partners, including certain of the Exchanging Partners' rights to receive repayment of various advances. Simultaneously with the Exchange, under an Agreement and Plan of Merger dated as of January 8, 1997 (the "Merger Agreement"), among Orion, Newco and Orion Merger Company, Inc., a newly formed Delaware corporation that is a wholly owned subsidiary of Newco ("Merger Sub"), Orion will merge with and into Merger Sub in a tax-free reorganization (the "Merger"). Orion will be the surviving corporation in the Merger and will thereby become the wholly owned subsidiary of Newco, and the holders of preferred and common stock of Orion will receive substantially identical preferred and common stock of Newco in exchange for such stock. Effective upon consummation of the Merger, Newco will change its name to Orion Network System, Inc. and Orion will change its name to __________. The Merger and the Exchange will close concurrently with the closing of the offering of the Units (the "Offering"). Newco has filed with the Securities and Exchange Commission (the "Commission") a registration statement, including a prospectus, relating to the Units, Notes, Warrants and Common Stock underlying the Warrants.* The registration statement as amended at the time it becomes effective, including the exhibits thereto and the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A under the Securities Act of 1933 (the "Securities Act"), is hereinafter referred to as the "Original Registration Statement;" any registration statement filed pursuant to Rule 462(b) under the Securities Act is hereinafter referred to as the "Rule 462(b) Registration Statement;" the Original Registration Statement and any Rule 462(b) Registration Statement are hereinafter referred to collectively as the "Registration Statement;" and the prospectus in the form first used to confirm sales of Units is hereinafter referred to as the "Prospectus." I. Each of Orion and Newco (collectively, the "Orion Entities") jointly and severally represents and warrants to each of the Underwriters that: (a) The Original Registration Statement has become effective and, if Newco has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective not later than the earlier of (i) 10:00 p.m. Eastern time on the date hereof and (ii) the time confirmations are sent or given, as specified by Rule 462(b)(2) under the Securities Act; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission. (b) (i) Each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph I(b) do not apply (A) to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to either of the Orion Entities in writing by such Underwriter expressly for use therein or (B) to that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), of each of the Senior Note Trustee and the Senior Discount Note Trustee. (c) Each of the Orion Entities has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on either Orion and its subsidiaries or Newco and its subsidiaries, in each case taken as a whole. (d) Each of the subsidiaries of the Orion Entities has been duly incorporated, or in the case of a partnership, duly organized, is validly existing as a corporation or partnership, as the case may be, in good standing under the laws of the jurisdiction of its organization, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on either Orion and its subsidiaries or Newco and its subsidiaries, in each case taken as a whole; all of the issued shares of capital stock of each subsidiary of the Orion Entities have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly by either Orion, Newco or a subsidiary of Orion or Newco, free and clear of all liens, encumbrances, equities or claims. Each of the Significant Subsidiaries, as defined in Regulation S-X under the Securities Act, of the Orion Entities is identified on Schedule II hereto. (e) This Agreement has been duly authorized, executed and delivered by each of the Orion Entities. (f) Each of the Senior Note Indenture and the Senior Discount Note Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized by Newco and each of the Guarantors, and when executed and delivered by Newco and each of the Guarantors, will be a valid and binding agreement of Newco and each of the Guarantors, enforceable in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (g) The Warrant Agreement has been duly authorized and when executed and delivered by Newco will be a valid and binding agreement of Newco, enforceable in accordance with its terms except as (i) the enforceability thereof may be limited by the effect of applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability. (h) Each of the Senior Notes and the Senior Discount Notes have been duly authorized by Newco and each of the Guarantors and, when executed and authenticated in accordance with the terms of the Senior Note Indenture and the Senior Discount Note Indenture, respectively, and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be entitled to the benefits of the Senior Note Indenture and the Senior Discount Note Indenture, respectively, and will be valid and binding obligations of Newco and each of the Guarantors, enforceable in accordance with their terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (i) The Warrants have been duly authorized and when executed and countersigned in accordance with the provisions of the Warrant Agreement, and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be entitled to the benefits of the Warrant Agreement and will be valid and binding obligations of Newco enforceable in accordance with their terms, except as (A) the enforceability thereof may be limited by the effect of applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (B) the availability of equitable remedies may be limited by equitable principles of general applicability. (j) The shares of Common Stock issuable upon exercise of the Warrants (the "Warrant Shares") have been duly authorized and reserved by Newco and, when issued and delivered upon exercise of the Warrants in accordance with the terms of the Warrant Agreement, will be validly issued, fully paid and non-assessable and will not be subject to any preemptive or similar rights or taxes, liens, charges and security interests. (k) The Exchange, the Merger, the issuance and sale of approximately $50 million of Newco's convertible subordinated debentures (the "BA Debentures") to British Aerospace Public Limited Company (the "British Aerospace Offering"), the issuance and sale of approximately $10 million of Newco debentures (the "MMS Debentures") to Matra Marconi Space (or an affiliate) ("the MMS Offering"), the acquisition by Orion of the only outstanding minority interest (17%) in Orion Asia Pacific, a Delaware corporation ("Orion Asia Pacific") for 86,000 shares of Orion common stock (the "OAP Minority Interest Acquisition"), the repayment of the Orion 1 Credit Facility (as defined in the Preliminary Prospectus) and the satisfaction of the interest rate hedging obligations with respect thereto [LIST ADDITIONAL TRANSACTIONS, AS APPROPRIATE] (collectively, the "Transactions") and delivery and performance of the Exchange Agreement, the Merger Agreement, the Orion 2 Satellite Contract (as hereinafter defined), the Orion 3 Satellite Contract (as hereinafter defined) and the other agreements necessary to consummate the Transactions (collectively, the "Transaction Agreements") have been duly and validly authorized by the Orion Entities and each of their direct and indirect subsidiaries (and Orion Atlantic) that is a party thereto, and to the knowledge of the Orion Entities (based on representations made therein), by the other parties thereto, all action necessary to approve the Transactions has been accomplished and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the consummation of the Transactions, except such as may have been obtained, including any consents or approvals required by the Communications Act of 1934, as amended, and the rules, regulations and policies of the United States Federal Communications Commission (the "FCC") thereunder and the Merger and the Exchange were duly approved by the stockholders of Orion owning not less than a majority of the shares of the capital stock of Orion entitled to vote thereon at a meeting held on January 30, 1997. (l) The execution and delivery by Newco and the Guarantors (as applicable) of, and the performance by Newco and the Guarantors (as applicable) of their obligations under, this Agreement, the Senior Note Indenture, the Senior Discount Note Indenture, the Notes, the Warrant Agreement, the Warrants, the Transaction Agreements, the issuance, sale and delivery of the Notes, the Warrants, the BA Debentures, the MMS Debentures and the Warrant Shares upon exercise of the Warrants and the consummation of the Transactions will not contravene any provision of applicable law or the certificate of incorporation or by-laws of Newco or any of the Guarantors or any agreement or other instrument binding upon Newco or any of the Guarantors or any of their subsidiaries that is material to Newco and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over Newco, any subsidiary of Newco or any of the Guarantors, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by Newco and the Guarantors (as applicable) of their obligations under this Agreement, the Senior Note Indenture, the Senior Discount Note Indenture, the Notes, the Warrant Agreement, the Warrants, the Transaction Agreements, the issuance, sale and delivery of the Notes, the BA Debentures, the MMS Debentures, the Warrants, the Warrant Shares upon exercise of the Warrants in accordance with the terms of the Warrant Agreement or any of the Transaction Agreements, except such as have been obtained or such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Units, Notes, Warrants, BA Debentures, MMS Debentures or Warrant Shares. (m) The execution and delivery by Orion of, and the performance by Orion of its obligations under, this Agreement and the Transaction Agreements and the consummation of the Transactions will not contravene any provision of applicable law or the certificate of incorporation or by-laws of Orion or any agreement or other instrument binding upon Orion or any of its subsidiaries that is material to Orion and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over Orion or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by Orion of its obligations under this Agreement or any of the Transaction Agreements, except such as have been obtained or such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Units, Notes, Warrants, BA Debentures, MMS Debentures or Warrant Shares. (n) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of either Orion and its subsidiaries or Newco and its subsidiaries, in each case taken as a whole, from that set forth in the Prospectus. (o) There are no legal or governmental proceedings pending or threatened to which either of the Orion Entities or any of their subsidiaries is a party or to which any of the properties of either Orion Entity or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required. (p) Each of the Orion Entities and its subsidiaries has all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and has made all declarations and filings with, all federal, state, local and other governmental, administrative or regulatory authorities, all self-regulatory organizations and all courts and other tribunals, to own, lease, license and use its properties and assets and to conduct its business in the manner described in the Prospectus, except to the extent that the failure to obtain such consents, authorizations, approvals, orders, certificates and permits or make such declarations and filings would not have a material adverse effect on either Orion and its subsidiaries or Newco and its subsidiaries, in each case taken as a whole. (q) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 or Rule 462 under the Securities Act, complied when so filed in all material respects with the Securities Act and the rules and regulations of the Commission thereunder. (r) Neither Newco nor Orion is and, after the giving effect to the offering and sale of the Units and the application of the proceeds thereof as described in the Prospectus, neither Newco nor Orion will be an "investment company" as such term is defined in the Investment Company Act of 1940, as amended. (s) Each of the Orion Entities and its subsidiaries are (i) in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on such Orion Entity and its subsidiaries, taken as a whole. (t) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a material adverse effect on either Orion and its subsidiaries or Newco and its subsidiaries, in each case taken as a whole. (u) The Orion Entities have complied with all provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida). (v) Each of the parties to the Transaction Agreements has waived the conditions to the performance of its obligations under such Transaction Agreements (other than the conditions that the Notes be issued and that the Orion 1 Credit Facility be repaid) and attached as Exhibits [___ through ___] are such waivers. (w) The Escrow Agreement has been amended to [remove any discretion of the limited partners of Orion Atlantic to stop the release of payment from the escrow account]. (x) Orion Asia Pacific will be a wholly owned subsidiary of Newco immediately after consummation of the Transactions. (y) Orion has entered into, and delivered to you, satellite procurement contracts with Matra Marconi Space for Orion 2 (the "Orion 2 Satellite Contract") and Hughes Space and Communications International for Orion 3 (the "Orion 3 Satellite Contract"). II. Newco hereby agrees to sell to the Underwriters, and the Underwriters, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agree, severally and not jointly, to purchase from Newco the respective number of Senior Note Units and Senior Discount Note Units set forth in Schedule I hereto opposite their names at $[____] per Senior Note Unit and $[____] per Senior Discount Note Unit -- the "Senior Note Unit purchase price" and the "Senior Discount Note Unit purchase price," respectively -- plus (i) accrued interest on the Senior Notes, if any, and (ii) accrued amortization of original issue discount on the Senior Discount Notes, if any, in each case from [_____], 1997 to the date of payment and delivery. III. Each of the Orion Entities is advised by you that the Underwriters propose to make a public offering of their respective portions of the Units as soon after the Original Registration Statement and this Agreement have become effective as in your judgment is advisable. Each of the Orion Entities is further advised by you that the Units are to be offered to the public initially at $[____] per Senior Note Unit and $[____] per Senior Discount Note Unit -- the "Senior Note Unit public offering price" and the "Senior Discount Note Unit offering price," respectively -- plus (i) accrued interest on the Senior Notes, if any, and (ii) accrued amortization of original issue discount on the Senior Discount Notes, if any, and to certain dealers selected by you at a price that represents a concession not in excess of $[____] per Unit, and that any Underwriter may allow, and such dealers may reallow, a concession, not in excess of $[____] per Unit, to any Underwriter or to certain other dealers. IV. Payment for the Units shall be made against delivery of the Units as described in the paragraph below at a closing (the "Closing") to be held at the office of Shearman & Sterling, 599 Lexington Avenue, New York, New York, 10022, at 10:00 A.M., local time, on [___________], 1997, or at such other time on the same or such other date, not later than [______], 1997, as shall be designated in writing by you (the "Closing Date"). Payment for the Units shall be made to the account or accounts specified by Newco in writing delivered to you. At the closing, the Units shall be delivered to you for the respective accounts of the Underwriters of the Units registered in such names and in such denominations as you shall request in writing not later than two full business day prior to the date of delivery, with any transfer taxes payable in connection with the transfer of the Units to the Underwriters duly paid. V. The obligations of the Orion Entities and the several obligations of the Underwriters hereunder are subject to the condition that the Registration Statement shall have become effective not later than the date hereof. The several obligations of the Underwriters hereunder are subject to the following further conditions: (a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of Orion's securities by any "nationally recognized statistical rating organization", as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, of either Orion and its subsidiaries or Newco and its subsidiaries, in each case taken as a whole, from that set forth in the Registration Statement, that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Units on the terms and in the manner contemplated in the Prospectus. (b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of Orion, on behalf of Orion, to the effect set forth in clause (a)(i) above and to the effect that the representations and warranties of the Orion Entities contained in this Agreement are true and correct as of the Closing Date and that the Orion Entities have complied with all of the agreements and satisfied all of the conditions contained in this Agreement on their part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened. (c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of Newco, on behalf of such entity, to the effect that the representations and warranties of the Orion Entities contained in this Agreement are true and correct in all material respects as of the Closing Date and that the Orion Entities have complied with all of the agreements and satisfied all of the conditions contained in this Agreement on their part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened. (d) No stop order suspending the effectiveness of the Registration Statement shall be in effect and no proceedings for such purpose shall be pending before or, to the knowledge of the Orion Entities or the Underwriters, threatened by the Commission. (e) You shall have received on the Closing Date an opinion of Hogan & Hartson L.L.P., counsel for the Orion Entities, dated the Closing Date, in the form attached hereto as Exhibit A. The opinion of Hogan & Hartson L.L.P. shall be rendered to you at the request of the Orion Entities and shall so state therein. (f) You shall have received on the Closing Date an opinion of Shaw, Pittman, Potts & Trowbridge, special FCC counsel for the Orion Entities, dated the Closing Date, in the form attached hereto as Exhibit B. (g) You shall have received on the Closing Date an opinion of [___________], special Delaware counsel for the Orion Entity, dated the Closing Date, in the form attached hereto as Exhibit C. (h) You shall have received on the Closing Date an opinion of Shearman & Sterling, counsel for the Underwriters, dated the Closing Date with respect to the Registration Statement and the Prospectus and such other related matters as you may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters. (i) You shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to you, from Ernst & Young, L.L.P., independent public accountants for Orion, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus. (j) The Orion Entities shall have complied with the provisions of Section VI(a) hereof with respect to the furnishing of Prospectuses on the business day next succeeding the date of this Agreement, in such quantities as you shall have reasonably requested. (k) The Exchange, the Merger, the BA Offering, the MMS Offering, the OAP Minority Interest Acquisition, the repayment of the Orion 1 Credit Facility and satisfaction of the interest rate hedging obligations with respect thereto and [LIST ADDITIONAL TRANSACTIONS, AS APPROPRIATE] shall have occurred, or shall occur concurrently with the Closing, as provided in the Proxy Statement/Prospectus, dated January ___, 1997, of Orion. (l) The Certificate of Merger shall have been, or concurrently with the Closing shall be, filed with the Secretary of State of the State of Delaware. (m) You shall have received such other documents and certificates as are reasonably requested by you or your counsel. VI. In further consideration of the agreements of the Underwriters herein contained, each of the Orion Entities covenants as follows: (a) To furnish to you, without charge, three signed copies of the Registration Statement (including exhibits thereto) and, during the period mentioned in paragraph (c) below, as many copies of the Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request. In the case of the Prospectus, to furnish to you copies of the Prospectus in New York City, prior to 3:00 p.m., on the business day next succeeding the date of this Agreement, in such quantities as you reasonably request. (b) Before amending or supplementing the Registration Statement or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object. (c) If, during such period after the first date of the public offering of the Units as in the opinion of your counsel the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of your counsel, it is necessary to amend or supplement the Prospectus to comply with law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to Newco) to which Units may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law. (d) To endeavor to qualify the Units, Notes and Warrants for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request and to pay all expenses (including fees and disbursements of counsel) in connection with such qualification and in connection with (i) the determination of the eligibility of the Units, Notes and Warrants for investment under the laws of such jurisdiction as you may designate and (ii) any review of the Offering by the National Association of Securities Dealers, Inc. (e) If the Orion Entities elect to rely on Rule 462(b) under the Securities Act, the Orion Entities shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) under the Securities Act no later than the earlier of (i) 10:00 p.m. Eastern time on the date hereof and (ii) the time confirmations are sent or given, as specified by Rule 462(b)(2) under the Securities Act, and shall pay the applicable fees in accordance with Rule 111 under the Securities Act. (f) To make generally available to Newco's security holders and to you, as soon as practicable but not later than 60 days after the end of the twelve-month period beginning at the end of Newco's fiscal quarter during which the effective date of the Original Registration Statement occurs, an earnings statement of Newco covering such twelve-month period that satisfies the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder. (g) During the period beginning on the date hereof and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise dispose of any debt securities of Newco or warrants to purchase securities of Newco substantially similar to the Units, Notes, Warrants or Common Stock (other than (i) the Units, Notes and Warrants, (ii) securities of Newco to be issued in connection with the Exchange and the Merger as described in the Proxy Statement/Prospectus, (iii) the issuance and sale of the BA Debentures pursuant to the British Aerospace Offering and (iv) the issuance and sale of the MMS Debentures pursuant to the MMS Offering, without your prior written consent. (h) To use its best efforts to maintain the effectiveness of the Registration Statement covering the issuance of the Warrant Shares until the earlier of (i) such time as all Warrants have been exercised and (ii) [_____], 2007. (i) To use its best efforts to have the Warrant Shares included for trading on the Nasdaq National Market prior to the time the Warrants first become exercisable and to use its best efforts to have the Warrant Shares included for trading on any other exchange or quotation system where the Common Stock is included for trading. (j) To use the net proceeds received by Newco from the sale of (i) Units hereunder, (ii) the BA Debentures pursuant to the British Aerospace Offering and (iii) the MMS Debentures pursuant to the MMS Offering, in the manner specified in the Prospectus under the caption "Use of Proceeds." (k) Whether or not the transactions contemplated hereby are consummated or this Agreement is terminated, the Orion Entities agree to pay, or reimburse if paid by or on behalf of you, all costs and expenses incident to the public offering of the Units and the performance of the obligations of the Orion Entities under this Agreement including those relating to: (i) the fees, disbursements and expenses of the Orion Entities' counsel and accountants in connection with the issuance of the Units, the preparation, printing, filing and distribution of the Registration Statement including financial statements and all exhibits, each preliminary prospectus, the Prospectus, all amendments and supplements to the Registration Statement, and the Prospectus, and the printing, filing and distribution of this Agreement (including all document production charges and expenses of counsel for the Underwriters in connection with the preparation of this Agreement); (ii) the preparation and delivery of any certificates for the Units to the Underwriters; (iii) all expenses in connection with the registration or qualification of the Units, Notes, Warrants and Warrant Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall request, including the reasonable fees and disbursements of counsel for the Underwriters in connection with such registration and qualification and the preparation, printing, distribution and shipment of preliminary and supplementary Blue Sky memoranda; (iv) the furnishing (including costs of shipping and mailing) to you and to the Underwriters of copies of each preliminary prospectus, the Prospectus and all amendments or supplements to the Prospectus, and of the several documents required by this paragraph to be so furnished, as may be reasonably requested for use in connection with the offering and sale of the Units by the Underwriters or by dealers to whom Units may be sold; (v) the filing fees and expenses (including the reasonable fees and disbursements of counsel to the Underwriters), if any, incurred with respect to any filing with the National Association of Securities Dealers, Inc. in connection with its review of the terms of the public offering; (vi) any expenses incurred by the Orion Entities in connection with a "road show" presentation to potential investors; and (vii) all transfer taxes, if any, with respect to the sale and delivery of the Units by the Orion Entities to the Underwriters. (l) To use the net proceeds of the British Aerospace Offering and the MMS Offering to make payments to the manufacturers under the Orion 2 Satellite Contract and the Orion 3 Satellite Contract. VII. Each of the Orion Entities agrees, jointly and severally, to indemnify and hold harmless each Underwriter and each person, if any, who controls such Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred by any Underwriter or any such controlling person in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if Newco shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to either of the Orion Entities in writing by such Underwriter through you expressly for use therein. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless each of the Orion Entities, their respective directors, their respective officers who sign the Registration Statement and each person, if any, who controls the Orion Entities within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Orion Entities to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Orion Entities in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto. In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by Morgan Stanley & Co. Incorporated, in the case of parties indemnified pursuant to the second preceding paragraph, and by the Orion Entities, in the case of parties indemnified pursuant to the first preceding paragraph. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding. If the indemnification provided for in the first or second paragraph of this Article VII is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Orion Entities on the one hand and the Underwriters on the other hand from the offering of the Units or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Orion Entities on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Orion Entities on the one hand and the Underwriters on the other hand in connection with the offering of the Units shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Units (before deducting expenses) received by the Orion Entities and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate public offering price of the Units. The relative fault of the Orion Entities on the one hand and of the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Orion Entities or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Article VII are several in proportion to the respective principal amounts of Units they have purchased hereunder, and not joint. The Orion Entities and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Article VII were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Article VII, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Units underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Article VII are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity. The indemnity and contribution provisions contained in this Article VII and the representations and warranties of the Orion Entities contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter or any person controlling any Underwriter or by or on behalf of either Orion Entity, its officers or directors or any person controlling either Orion Entity and (iii) acceptance of and payment for any of the Units. VIII. This Agreement shall be subject to termination by notice given by you to Newco, if (a) after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange, the National Association of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any securities of Orion or Newco shall have been suspended on any exchange or in any over-the-counter market, (iii) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis that, in your judgment, is material and adverse and (b) in the case of any of the events specified in clauses (a)(i) through (iv), such event singly or together with any other such event makes it, in your judgment, impracticable to market the Units on the terms and in the manner contemplated in the Prospectus. IX. This Agreement shall become effective upon the later of (x) execution and delivery hereof by the parties hereto and (y) release of notification of the effectiveness of the Original Registration Statement by the Commission. If, on the Closing Date, any one of the Underwriters shall fail or refuse to purchase Units that it has agreed to purchase hereunder on such date, and the number of Units which such defaulting Underwriter agreed but failed or refused to purchase is not more than one-tenth of the total number of the Units to be purchased on such date, the other Underwriter shall be obligated to purchase the Units which such defaulting Underwriter agreed but failed or refused to purchase on such date; provided that in no event shall the number of Units that any Underwriter has agreed to purchase pursuant to Article II be increased pursuant to this Article IX by an amount in excess of one-ninth of such number of Units without the written consent of such Underwriter. If, on the Closing Date, any Underwriter shall fail or refuse to purchase Units and the aggregate number of Units with respect to which such default occurs is more than one-tenth of the number of Units to be purchased on such date, and arrangements satisfactory to you and the Orion Entities for the purchase of such Units are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any nondefaulting Underwriter or the Orion Entities. In any such case either you or the Orion Entities shall have the right to postpone the Closing Date but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and in the Prospectus or in any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement. If this Agreement shall be terminated by the Underwriters, or any one of them, because of any failure or refusal on the part of either of the Orion Entities to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason either of the Orion Entities shall be unable to perform its obligations under this Agreement, the Orion Entities will reimburse the Underwriters, or such Underwriter as has so terminated this Agreement with respect to itself, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall be governed by the laws of the State of New York. Very truly yours, ORION NETWORK SYSTEMS, INC. By ORION NEWCO SERVICES, INC. By Accepted, [_________], 1997 Morgan Stanley & Co. Incorporated Merrill Lynch & Co. By Morgan Stanley & Co. Incorporated By_______________________
SCHEDULE I Underwriter Number of Senior Note Number of Senior Units to Be Purchased Discount Note Units to be Purchased Morgan Stanley & Co. Incorporated Merrill Lynch & Co. __________ __________ Total . . . . . . . . . . . . . __________ __________ ---------- ----------
SCHEDULE II List of Significant Subsidiaries [TO BE PROVIDED BY ORION] EXHIBIT A Form of Opinion of Hogan & Hartson L.L.P. (i) Each of the Orion Entities has been duly incorporated, is validly existing as a corporation in good standing under the laws of Delaware, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on either Orion and its subsidiaries or Newco and its subsidiaries, in each case taken as a whole. (ii) Each of the subsidiaries of the Orion Entities has been duly incorporated, or in the case of a partnership, duly organized, is validly existing as a corporation or partnership, as the case may be, in good standing under the laws of the jurisdiction of its organization, has the power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on either Orion and its subsidiaries or Newco and its subsidiaries, in each case taken as a whole; all of the issued shares of capital stock of each subsidiary of the Orion Entities have been validly authorized and issued, are fully paid and non-assessable and are owned directly by either Orion, Newco or a subsidiary of Orion or Newco, free and clear of all liens, encumbrances, equities or claims. (iii) The authorized capital stock of the Orion Entities conforms in all material respects to the description thereof set forth in the Prospectus under the caption "Description of Capital Stock." (iv) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Orion Entities. (v) Each of the Senior Note Indenture and the Senior Discount Note Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized by Newco and each of the Guarantors, and when executed and delivered by Newco and each of the Guarantors, will be a valid and binding agreement of Newco and each of the Guarantors, enforceable in accordance with its terms except as (i) the enforceability thereof may belimited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (vi) The Warrant Agreement has been duly authorized and when executed and delivered by Newco will be a valid and binding agreement of Newco, enforceable in accordance with its terms except as (i) the enforceability thereof may be limited by the effect of applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability. (vii) Each of the Senior Notes and the Senior Discount Notes have been duly authorized and, when executed and authenticated in accordance with the terms of the Senior Note Indenture and the Senior Discount Note Indenture, respectively, and delivered to and paid for by the Underwriters in accordance with the terms of the Underwriting Agreement, will be entitled to the benefits of the Senior Note Indenture and the Senior Discount Note Indenture, respectively, and will be valid and binding obligations of Newco, enforceable in accordance with their terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (viii) The Warrants have been duly authorized and when executed and countersigned in accordance with the provisions of the Warrant Agreement, and delivered to and paid for by the Underwriters in accordance with the terms of the Underwriting Agreement, will be entitled to the benefits of the Warrant Agreement and will be valid and binding obligations of Newco enforceable in accordance with their terms, except as (A) the enforceability thereof may be limited by the effect of applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (B) the availability of equitable remedies may be limited by equitable principles of general applicability. (ix) The Warrant Shares have been duly authorized and reserved by Newco and, when issued and delivered upon exercise of the Warrants in accordance with the terms of the Warrant Agreement, will be validly issued, fully paid and non-assessable and will not be subject to any preemptive or similar rights or taxes, liens, charges and security interests. (x) The Transactions and delivery and performance of the Transaction Agreements have been duly and validly authorized by the Orion Entities and each of their direct and indirect subsidiaries (and Orion Atlantic) that is a party thereto, and to the knowledge of the Orion Entities (based on representations made therein), by the other parties thereto , all action necessary to approve the Transactions has been accomplished and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the consummation of the Transactions, except such as may have been obtained, including any consents or approvals required by the Communications Act of 1934, as amended, and the rules, regulations and policies of the United States Federal Communications Commission thereunder and the Exchange and the Merger were duly approved by the stockholders of Orion owning not less than a majority of the shares of the capital stock of Orion entitled to vote thereon at a meeting held on January __, 1997. (xi) The execution and delivery by Newco and the Guarantors (as applicable) of, and the performance by Newco and the Guarantors (as applicable) of their obligations under, the Underwriting Agreement, the Senior Note Indenture, the Senior Discount Note Indenture, the Notes, the Warrant Agreement, the Warrants, the Transaction Agreements, the issuance, sale and delivery of the Notes, the Warrants, the BA Debentures, the MMS Debentures and the Warrant Shares upon exercise of the Warrants and the consummation of the Transactions will not contravene any provision of applicable law or the certificate of incorporation or by-laws of Newco or any of the Guarantors or any agreement or other instrument binding upon Newco or any of the Guarantors or any of their subsidiaries that is material to Newco and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over Newco, any subsidiary of Newco or any of the Guarantors, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by Newco and the Guarantors (as applicable) of their obligations under the Underwriting Agreement, the Senior Note Indenture, the Senior Discount Note Indenture, the Notes, the Warrant Agreement, the Warrants, the Transaction Agreements, the issuance, sale and delivery of the Notes, the BA Debentures, the MMS Debentures, the Warrants, the Warrant Shares upon exercise of the Warrants in accordance with the terms of the Warrant Agreement or any of the Transaction Agreements, except such as have been obtained or such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Units, Notes, Warrants, BA Debentures, the MMS Debentures or Warrant Shares. (xii) The execution and delivery by Orion of, and the performance by Orion of its obligations under, the Underwriting Agreement, the Transaction Agreements and the consummation of the Transactions will not contravene any provision of applicable law or the certificate of incorporation or by-laws of Orion or any agreement or other instrument binding upon Orion or any of its subsidiaries that is material to Orion and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over Orion or any subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by Orion of its obligations under the Underwriting Agreement or any of the Transaction Agreements, except such as have been obtained or such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Units, Notes, Warrants, BA Debentures, MMS Debentures or the Warrant Shares. (xiii) The Original Registration Statement has become effective and, if Newco has elected to rely upon Rule 462(b) under the Securities Act, the Rule 462(b) Registration Statement shall have become effective not later than the earlier of (i) 10:00 p.m. Eastern time on the date hereof and (ii) the time confirmations are sent or given, as specified by Rule 462(b)(2) under the Securities Act; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission. (xiv) (i) Each part of the Registration Statement, when such part became effective, did not contain and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph (xiv) do not apply (A) to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to either of the Orion Entities in writing by such Underwriter expressly for use therein or (B) to that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), of each of the Senior Note Trustee and the Senior Discount Note Trustee. (xv) The information in the Prospectus under the captions "The Merger and the Exchange," "Certain Transactions," "Description of Units," "Description of Notes," "Description of Warrants," "Description of Capital Stock," "Description of Other Indebtedness of the Company," and "Certain United States Federal Income Tax Consequences," to the extent that such information constitutes matters of law or legal conclusions, or purports to describe certain provisions of specified documents, has been reviewed by us and is correct in all material respects. The statements in the Prospectus under the captions "Risk Factors - - Approvals Needed; Regulation of Industry," and "United States Regulatory Restrictions," insofar as such statements purport to describe certain provisions of the Communications Act and rules and regulations of the FCC promulgated thereunder, have been reviewed by us and are correct in all material respects. The information in Item 14 of the Registration Statement, to the extent such information constitutes matters of law or legal conclusions or purports to describe certain provisions of specified documents, has been reviewed by us and is correct in all material respects. (xvi) Neither Newco nor Orion is an "investment company" or an entity "controlled" by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended. (xvii) The deposit of the pledged securities in the pledged account in favor of the trustee on behalf of the holders of the Senior Notes will constitute a perfected first priority interest in the pledged securities and the proceeds thereof. EXHIBIT B Form of FCC Counsel Opinion (i) (A) the execution and delivery of the Underwriting Agreement by the Orion Entities and the consummation of the transactions contemplated thereby do not violate (1) the Federal Communications Act of 1934, as amended (the "Communications Act"), (2) any rules or regulations of the Federal Communications Commission ("FCC") applicable to the Orion Entities, (3) any state telecommunications law, rules or regulations ("State Law") applicable to the Orion Entities, and (4) to the best of such counsel's knowledge, any decree from any court, and (B) no authorization of or filing with the FCC or any state authority overseeing telecommunications matters ("State Authority"), is necessary for the execution and delivery of the Underwriting Agreement by the Orion Entities and the consummation of the transactions contemplated thereby in accordance with the terms thereof; (ii) the Orion Entities and certain of their subsidiaries (named on Schedule I hereto) are nondominant carriers authorized by the FCC to provide interstate interexchange telecommunications services. The Orion Entities and certain of their subsidiaries (named on Schedule II hereto) have been granted Section 214 authority by the FCC to provide international message telecommunications services through the resale of international switched voice and private line services and each of the Orion Entities and such subsidiaries has on file with the FCC tariffs applicable to its domestic interstate and international services. No further FCC authority is required by the Orion Entities or any of such subsidiaries to conduct its business as described in the Prospectus; (iii) the Orion Entities and certain of their subsidiaries (named on Schedule III hereto) are certified and/or registered to resell intrastate interexchange telecommunications services in, and are not required to be certified to resell intrastate interexchange telecommunications services in, the respective states listed on Schedule IV hereto. Each of the Orion Entities and such subsidiaries has a tariff on file in each of the states. No further authority is required from any of the State Authorities by the Orion Entities to conduct their business as described in the Prospectus, (iv) (A) each of the Orion Entities and its subsidiaries (1) has made all reports and filings, and paid all fees, required by the FCC and the State Authorities; and (2) has all certificates, orders, permits, licenses, authorizations, consents and approvals of and from, and has made all filings and registrations, with the FCC and the State Authorities necessary to own, lease, license and use its properties and assets and to conduct its business in the manner described in the Prospectus; and (B) neither of the Orion Entities nor any of their subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificates, orders, permits, licenses, authorizations, consents or approvals, or the qualification or rejection of any such filing or registration, the effect of which, singly or in the aggregate, would have a material adverse effect on the prospects, condition, financial or otherwise, or in the earnings, business or operations of either Orion and its subsidiaries or Newco and its subsidiaries, in each case taken as a whole; (v) neither of the Orion Entities nor any of its subsidiaries is in violation of, or in default under the Communications Act, the telecommunications rules or regulations of the FCC or State Law, the effect of which, singly or in the aggregate, would have a material adverse effect on the prospects, condition, financial or otherwise, or in the earnings, business or operations of either Orion and its subsidiaries or Newco and its subsidiaries, in each case taken as a whole; (vi) to the best of such counsel's knowledge after due inquiry (A) no decree or order of the FCC or any State Authority has been issued against either of the Orion Entities or any of its subsidiaries and (B) no litigation, proceeding, inquiry or investigation has been commenced or threatened, and no notice of violation or order to show cause has been issued, against either of the Orion Entities or any of its subsidiaries before or by the FCC or any State Authority. To the best of such counsel's knowledge after due inquiry, there are no rulemakings or other administrative proceedings pending before the FCC or any State Authority which (A) are generally applicable to telecommunications services or the resale thereof and (B) which, if decided adversely to the Orion Entities' interests, would have a material adverse effect on either Orion and its subsidiaries or Newco and its subsidiaries, in each case taken as a whole; and (vii) the statements in the Prospectus under the captions "Risk Factors -- Approvals Needed; Regulation of Industry," and "United States Regulatory Restrictions," insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, are accurate in all material respects and fairly summarize all matters referred to therein. EXHIBIT C Form of Delaware Counsel Opinion (i) Upon the filing of the Certificate of Merger in accordance with the Merger Agreement and the General Corporation Law of the State of Delaware, the Merger will become effective, Orion will become the surviving corporation of the Merger and each share of Orion preferred and common stock outstanding immediately prior to the Merger will be converted into the right to receive substantially identical preferred and common stock of Newco. - -------- * Because Newco believed that it would be more informative and less confusing for potential investors and existing stockholders, the Original Registration Statement and the prospectus included therein refer to the registrant as Orion Network Systems, Inc. EX-3.1 3 EXHIBIT 3.1 RESTATED CERTIFICATE OF INCORPORATION OF ORION NEWCO SERVICES, INC. Orion Newco Services, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify that: 1. The present name of the Corporation is Orion Newco Services, Inc. The Corporation was originally incorporated under the same name, and its original certificate of incorporation was filed with the Secretary of State of the State of Delaware on June 26, 1996. 2. This Restated Certificate of Incorporation restates and integrates and further amends the certificate of incorporation of the Corporation (the "Certificate of Incorporation"), and has been duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware (the "DGCL"). 3. The text of the Certificate of Incorporation is hereby restated and integrated and further amended to read in its entirety as set forth on Exhibit A attached hereto and incorporated herein by this reference. IN WITNESS WHEREOF, the Corporation has caused this Certificate to be duly executed and acknowledged in accordance with Section 103 of the DGCL. ORION NEWCO SERVICES, INC. By: ----------------------- Name: --------------------- Title: -------------------- RESTATED CERTIFICATE OF INCORPORATION OF ORION NEWCO SERVICES, INC. FIRST: The name of the Corporation is Orion Newco Services, Inc. (hereinafter called the "Corporation"). SECOND: The registered office of the Corporation in the State of Delaware is 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the Corporation's registered agent at said address is The Corporation Trust Company. THIRD: The purpose of the Corporation is to engage in any lawful acts or activities for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of all classes of stock that the Corporation shall have authority to issue is Forty-One Million (41,000,000) shares, consisting of Forty Million (40,000,000) shares of common stock, par value $.01 per share, and One Million (1,000,000) shares of preferred stock, par value $.01 per share. A. Common Stock. Each holder of shares of common stock shall be entitled to one vote for each share of common stock held of record on all matters on which the holders of common stock are entitled to vote. There shall be no cumulative voting rights for the election of directors. B. Preferred Stock. The Board of Directors is authorized, subject to limitations prescribed by the Delaware General Corporation Law and the provisions of this Article FOURTH to provide, by resolution or resolutions from time to time adopted without further stockholder approval, and filing a Certificate pursuant to the applicable provision of the Delaware General Corporation Law, for the issuance of the shares of Preferred Stock in series, to establish from time to time the number of shares to be included in each such series, and to fix the designation, powers, preferences and such rights of the shares of each such series and the qualifications, limitations and restrictions thereof. The authority of the Board of Directors with respect to each series shall include, but not be limited to, determination of the following: 1. The number of shares constituting that series and the distinctive designation of that series. 1 2. The dividend rate on the shares of that series, whether dividends shall be cumulative, and, if so, from which date or dates, and the relative rights of priority, if any, of payment of dividends on shares of that series; 3. Whether that series shall have voting rights, in addition to the voting rights provided by law, and, if so, the terms of such voting rights; 4. Whether that series shall have conversion privileges, and, if so, the terms and conditions of such conversion, including provision for adjustment of the conversion rate in such events as the Board of Directors shall determine; 5. Whether or not the shares of that series shall be redeemable, and, if so, the terms and conditions of such redemption, including the dates upon or after which they shall be redeemable, and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates; 6. Whether that series shall have a sinking fund for the redemption or purchase of shares of that series, and, if so, the terms and amount of such sinking fund; 7. The rights of the shares of that series in the event of voluntary or involuntary liquidation, dissolution or winding up of the Corporation, and the relative rights of priority, if any, of payment of shares of that series; and 8. Any other relative rights, preferences and limitations of that series. FIFTH: The name and mailing address of the incorporator (the "Incorporator") are Daniel M. Pattarini, 555 Thirteenth Street, NW, Washington, D.C. 20004. The powers of the Incorporator shall terminate upon the filing of this Certificate of Incorporation, and the names and mailing addresses of the persons who are to serve as the directors of the Corporation until the first annual meeting of the stockholders of the Corporation or until their successors are elected and qualified are as follows: NAME MAILING ADDRESS W. Neil Bauer 2440 Research Boulevard Rockville, MD 20850 2 David J. Frear 2440 Research Boulevard Rockville, MD 20850 Richard H. Shay 2440 Research Boulevard Rockville, MD 20850 SIXTH: The authorized number of directors of this corporation shall be not less than 3 and not more than 15. The number of directors within this range shall be stated in the Corporation's Bylaws, as may be amended from time to time. When the number of directors is changed the Board of Directors shall determine the class or classes to which the increased or decreased number of directors shall be apportioned; provided that the directors in each class shall be as nearly equal in number as possible. No decrease in the number of directors shall have the effect of shortening the term of any incumbent director. Effective as of the annual meeting of stockholders in 1997, the Board of Directors shall be divided into three classes, designated as Class I, Class II, and Class III, as nearly equal in number as possible, and the term of office of directors of one class shall expire at each annual meeting of stockholders, and in all cases until their successors shall be elected and shall qualify, or until their earlier resignation, removal from office, death or incapacity. The initial term of office of Class I shall expire at the annual meeting of stockholders in 1998, that of Class II shall expire at the annual meeting in 1999, and that of Class III shall expire at the annual meeting in 2000, and in all cases as to each director until his successor shall be elected and shall qualify, or until his earlier resignation, removal from office, death or incapacity. Subject to the foregoing, at each annual meeting of stockholders the successors to the class of directors whose term shall then expire shall be elected to hold office for a term expiring at the third succeeding annual meeting and until their successors shall be elected and qualified. The directors remaining in office acting by a majority vote, although less than a quorum, or by a sole remaining director, are hereby expressly delegated the power to fill any vacancies in the Board of Directors, however occurring, whether by an increase in the number of directors, death, resignation, retirement, disqualification, removal from office or otherwise, and any director so chosen shall hold office until the next election of the class for which such director shall have been chosen and until his successor shall have been elected and qualified, or until his earlier resignation, removal from office death or incapacity. 3 SEVENTH: In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized and empowered to adopt, amend and repeal bylaws of the Corporation. EIGHTH: No director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages for breach or fiduciary duty as a director, provided that nothing contained in this Article EIGHTH 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 which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. NINTH: The Corporation reserves the right at any time and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law, except that Articles FOURTH, FIFTH, TENTH, ELEVENTH, TWELFTH, THIRTEENTH, FOURTEENTH and this Article NINTH may not be altered, amended, or repealed except by the affirmative vote of at least two-thirds (2/3) of the shares entitled to vote thereon and the affirmative vote of the Board of Directors; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this Article NINTH. TENTH: Notwithstanding any other provision of this Certificate of Incorporation to the contrary, outstanding shares of stock of the Corporation shall always be subject to redemption by the Corporation, by action of the Board of Directors, if in the judgment of the Board of Directors such action should be taken, pursuant to Section 151(b) of the Delaware General Corporation Law or any other applicable provision of law, to the extent necessary to prevent the loss or secure the reinstatement of any license or franchise from any governmental agency held by the Corporation or any of its subsidiaries to conduct any portion of the business of the Corporation or any of its subsidiaries, which license or franchise is conditioned upon some or all of the holders of the Corporation's stock possessing prescribed qualifications. The terms and conditions of such redemption shall be as follows: (a) the redemption price of the shares to be redeemed pursuant to this Article TENTH shall be determined by the Board of Directors and shall be at least equal to the lesser of (i) the Redemption Value or (ii) if such stock was purchased by such Disqualified Holders within one year 4 of the Redemption Date, such Disqualified Holder's purchase price for such shares; (b) the redemption price of such shares may be paid in cash, Redemption Securities or any combination thereof; (c) if less than all the shares held by Disqualified Holders are to be redeemed, the shares to be redeemed shall be selected in such manner as shall be determined by the Board of Directors, which may include selection first of the most recently purchased shares thereof, selection by lot or selection in any other manner determined by the Board of Directors; (d) at least 30 days' written notice of the Redemption Date shall be given to the record holders of the shares selected to be redeemed (unless waived in writing by any such holder), provided that the Redemption Date may be the date on which written notice shall be given to record holders if the cash or Redemption Securities necessary to effect the redemption shall have been deposited in trust for the benefit of such record holders and subject to immediate withdrawal by them upon surrender of the stock certificates of their shares to be redeemed; (e) from and after the Redemption Date, any and all rights of whatever nature which may be held by the owners of shares selected for redemption (including without limitation any rights to vote or participate in dividends declared on stock of the same class or series as such shares) shall cease and terminate and such owners shall thenceforth be entitled only to receive the cash or Redemption Securities payable upon redemption; and (f) such other terms and conditions as the Board of Directors shall determine. For purposes of this Article TENTH: (i) "Disqualified Holder" shall mean any holder of shares of stock of the Corporation whose holding of such stock, either individually or when taken together with the holding of shares of stock of the Corporation by any other holders, may result, in the judgment of the Board of Directors, in the loss of, or the failure to secure the reinstatement of, any license or franchise from any governmental agency held by the Corporation on any of its subsidiaries to conduct any portion of the business of the Corporation or any of its subsidiaries. 5 (ii) "Redemption Value" of a share of the Corporation's stock of any class or series shall mean the average Closing Price for such a share for each of the 45 most recent days on which shares of stock of such class or series shall have been traded preceding the day on which notice of redemption shall be given pursuant to paragraph (d) of this Article TENTH; provided, however, that if shares of stock of such class or series are not traded on any securities exchange or in the over-the-counter market, "Redemption Value" shall be determined by the Board of Directors in good faith. "Closing Price" on any day means the reported closing sales price or, in case no such sale takes place, the average of the reported closing bid and asked prices on the principal United States securities exchange registered under the Securities Exchange Act of 1934 on which such stock is listed, or, if such stock is not listed on any such exchange, the highest closing sales price or bid quotation for such stock on the National Association of Securities Dealers, Inc. Automated Quotations System or any system then in use, or if no such prices or quotations are available, the fair market value on the day in question as determined by the Board of Directors in good faith. (iii) "Redemption Date" shall mean the date fixed by the Board of Directors for the redemption of any shares of stock of the Corporation pursuant to this Article TENTH. (iv) "Redemption Securities" shall mean any debt or equity securities of the Corporation, any of its subsidiaries or any other corporation, or any combination thereof, having such terms and conditions (including, without limitation, in the case of debt securities, repayment over a period of up to thirty years, or a longer period) as shall be approved by the Board of Directors and which, together with any cash to be paid as part of the redemption price, in the opinion of any nationally recognized investment banking firm selected by the Board of Directors (which may be a firm which provides other investment banking, brokerage or other services to the Corporation), has a value, at the time notice of redemption is given pursuant to paragraph (d) of this Article, at least equal to the price required to be paid pursuant to paragraph (a) of this Article TENTH (assuming, in the case of Redemption Securities to be publicly traded, such Redemption Securities were fully distributed and subject only to normal trading activity). 6 ELEVENTH: Control Share Acquisitions A. Control Shares. As used in this Article ELEVENTH, "control share" means shares of the Corporation that would have voting power that when added to all the other shares of the Corporation owned by a person or in respect to which that person may exercise or direct the exercise of voting power, would entitle that person, immediately after acquisition of the shares (directly or indirectly, alone or as part of a group), to exercise or direct the exercise of the voting power of the Corporation in the election of directors within any of the following ranges of voting power: (1) One-fifth or more but less that a third of all voting power. (2) One-third or more but less than a majority of all voting power. (3) A majority or more of all voting power. B. Control Share Acquisition. 1. As used in this Article ELEVENTH, "control share acquisition" means the acquisition (directly or indirectly) by any person of ownership of, or the power to direct the exercise of voting power with respect to, issued and outstanding control shares. 2. For purposes of this Article ELEVENTH, shares acquired within ninety (90) days or shares acquired pursuant to a plan to make a control share acquisition are considered to have been acquired in the same acquisition. 3. For purposes of this Article ELEVENTH, a person who acquires shares in the ordinary course of business for the benefit of others in good faith and not for the purpose of circumventing this Article ELEVENTH has voting power only of shares in respect of which that person would be able to exercise or direct the vote without further instruction from others. 4. The acquisition of any shares of the Corporation does not constitute a control share acquisition if the acquisition is consummated in any of the following circumstances: (1) Before April 1, 1992. (2) Pursuant to a binding contract existing before April 1, 1992. 7 (3) Pursuant to the laws of descent and distribution. (4) Pursuant to the satisfaction of a pledge or other security interest created in good faith and not for the purpose of circumventing this Article ELEVENTH. (5) Pursuant to a merger or plan of share exchange if the Corporation is a party to the agreement of merger of plan of share exchange. (6) Pursuant to a tender or exchange offer that is made pursuant to an agreement to which the Corporation is a party. (7) Directly from the Corporation, or from any of its wholly owned subsidiaries. 5. The acquisition of any shares of the Corporation in good faith and not for the purpose of circumventing this Article ELEVENTH by or from (1) any person whose voting rights had previously been authorized by stockholders in compliance with this Article ELEVENTH, or (2) any person whose previous acquisition of shares of the Corporation would have constituted a control share acquisition but for the circumstances specified in the paragraph above, does not constitute a control share acquisition, unless the acquisition entitles the person (directly or indirectly, alone or as a part of a group) to exercise or direct the exercise of voting power of the Corporation in the election of directors in excess of the voting power otherwise authorized. C. Interested Shares. As used in this Article ELEVENTH, "interested shares" mean the shares of the Corporation in respect of which any of the following persons may exercise or direct the exercise of the voting power of the Corporation in the election of directors: (1) An acquiring person or member of a group with respect to a control share acquisition. (2) Any officer of the Corporation. (3) Any employee of the Corporation who is also a director of the Corporation. D. Acquiring Person Statement. Any person who proposes to make or has made a control share acquisition may at the person's election deliver an 8 acquiring person statement to the Corporation at the Corporation's principal office. The acquiring person statement must set forth all of the following: (1) The identity of the acquiring person and each other member of any group of which the person is a part for purposes of determining control shares. (2) A statement that the acquiring person statement is given pursuant to this Article ELEVENTH. (3) The number of shares of the Corporation owned (directly or indirectly) by the acquiring person and each other member of the group. (4) The range of voting power under which the control share acquisition falls or would, if consummated, fall. (5) If the control share acquisition has not taken place: (a) a description in reasonable detail of the terms of the proposed control share acquisition; and (b) representations of the acquiring person, together with a statement in reasonable detail of the facts upon which they are based, that the proposed control share acquisition, if consummated, will not be contrary to law and that the acquiring person has the financial capacity to make to proposed control share acquisition. E. Special Meeting of Stockholders. 1. If the acquiring person so requests at the time of delivery of an acquiring person statement and gives an undertaking to pay the Corporation's expenses of a special meeting, within ten (10) days thereafter, the directors of the Corporation shall call a special meeting of the stockholders of the Corporation for the purpose of considering the voting rights to be accorded to the shares acquired or to be acquired in the control share acquisition. 2. Unless the acquiring person agrees in writing to another date, the special meeting of the stockholders shall be held within fifty (50) days after the receipt by the Corporation of the request. 3. If no request is made, the voting rights to be accorded the shares acquired in the control share 9 acquisition shall be presented at the next special or annual meeting of stockholders. 4. If the acquiring person so requests in writing at the time of the delivery of the acquiring person statement, the special meeting must not be held sooner than thirty (30) days after the receipt by the Corporation of the acquiring person's statement. F. Notice. ------ 1. If a special meeting is requested, notice of the special meeting of stockholders shall be given as promptly as reasonably practicable by the Corporation to all stockholders of record as of the record date set for the meeting, whether or not entitled to vote at the meeting. 2. Notice of the special or annual stockholder meeting at which the voting rights are to be considered must include or be accompanied by both of the following: (1) a copy of the acquiring person statement delivered to the Corporation pursuant to this Article ELEVENTH. (2) A statement by the Board of the Directors of the Corporation, authorized by its directors, of its position or recommendation, or that it is taking no position or making no recommendation, with respect to the proposed control share acquisition. G. Voting Rights. ------------- 1. Control shares acquired in a control share acquisition have the same voting rights as were accorded the shares before the control share acquisition only to the extent granted by resolutions approved by the stockholders of the Corporation. 2. To be adopted under this section, the resolutions shall be approved by a majority of all the votes which could be cast in a vote on the election of directors by all the outstanding shares other than interested shares. Interested shares shall not be entitled to vote on the matter, and in determining whether a quorum exists, all interested shares shall be disregarded. For the purpose of this subsection, the interested share shall be determined as of the record date for determining the stockholders entitled to vote at the meeting. H. Redemption. ---------- 10 1. Control shares acquired in a control share acquisition with respect to which no acquiring person statement has been filed with the Corporation may, at any time during the period ending sixty (60) days after the last acquisition of control shares by the acquiring person, be subject to redemption by the Corporation at the redemption price specified in paragraph 3 of this subsection. 2. Control shares acquired in a control share acquisition are not subject to redemption after an acquiring person statement has been filed unless the shares are not accorded full voting rights by the stockholders as provided above. 3. The redemption price for shares to be redeemed under this section shall be the number of such shares multiplied by the dollar amount (rounded to the nearest cent) equal to the average per share price, including any brokerage commissions, transfer taxes and soliciting dealer's fees, paid by the acquiring person for such shares. The Corporation may rely conclusively on public announcements by, or filings with the Securities and Exchange Commission by, the acquiring person as to the prices so paid. I. Dissenters Rights. ----------------- 1. In the event control shares acquired in a control share acquisition are accorded full voting rights and the acquiring person has acquired control shares with a majority or more of all voting power, all shareholders of the Corporation, other than the acquiring person, have the right to dissent from the granting of voting rights and to demand payment of the fair value of their shares under Section 262 of the Delaware General Corporation Law as though such granting of voting rights were a corporate action described in paragraph (b) of Section 262, except that the provisions of subsection (1) of paragraph (b) of Section 262 shall not be applicable. 2. For purposes of this section "fair value" of shares under Section 262 of the Delaware General Corporation Law shall in no event be less than the highest price per share paid in the control share acquisition, as adjusted for any subsequent stock dividends or reverse stock splits or similar changes. TWELFTH: Certain Business Combinations A. Vote Required for Certain Business Combinations. ----------------------------------------------- 1. Higher Vote for Certain Business Combinations. In addition to any affirmative vote required by law or this Certificate of Incorporation, and except as otherwise 11 expressly provided in subsection B of this Article TWELFTH: (a) any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with (i) any Interested Stockholder (as hereinafter defined) or (ii) any other corporation (whether or not itself an Interested Stockholder) which is, or after such merger or consolidation would be, an Affiliate (as hereinafter defined) of an Interested Stockholder; or (b) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions) to or with any Interested Stockholder or any Affiliate of any Interested Stockholder of any assets of the Corporation or any Subsidiary having an aggregate Fair Market Value (as hereinafter defined) of $1,000,000 or more, or (c) the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate Fair Market Value of $1,000,000 or more; or (d) the adoption of any plan or proposal for the liquidation or dissolution of the Corporation proposed by or on behalf of an Interested Stockholder or any Affiliate of any Interested Stockholder; or (e) any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any other transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or 12 indirectly owned by any Interested Stockholder or any Affiliate of any Interested Stockholder; shall require the affirmative vote of (A) the holders of at least a majority of the voting power of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors (the "Voting Stock"), voting together as a single class and (B) the holders of at least a majority of the Voting Stock, voting together as a single class, excluding for purposes of calculating both the affirmative vote and the number of outstanding shares of Voting Stock all shares of Voting Stock of which the beneficial owner is an Interested Stockholder or any Affiliate of an Interested Stockholder referred to in clauses (a) through (e) in this paragraph 1. Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that a lesser percentage may be specified, by law. 2. "Definition of "Business Combination." The term "Business Combination" as used in this Article TWELFTH shall mean any transaction which is referred to in any one or more of clauses (a) through (e) of paragraph 1 of this subsection A. B. When Higher Vote is Not Required. The provisions of subsection A of this Article TWELFTH shall not be applicable to any particular Business Combination, and such Business Combination shall require only such affirmative vote as is required by law and any other provision of this Certificate of Incorporation, if all of the conditions specified in either of the following paragraphs 1 and 2 are met: 1. Approval by Continuing Directors. The Business Combination shall have been approved by a majority of the Continuing Directors (as hereinafter defined). 2. Price and Procedure Requirements. All of the following conditions shall have been met: (a) The aggregate amount of the cash and the Fair Market Value (as hereinafter defined) as of the date of the consummation of the Business Combination of consideration other than cash to be received per 13 share by holders of common stock in such Business Combination shall be at least equal to the highest of the following: (i) (if applicable) the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the Interested Stockholder for any shares of common stock acquired by it (A) within the two-year period immediately prior to the first public announcement of the proposal of the Business Combination (the "Announcement Date") or (B) in the transaction in which it became an Interested Stockholder, whichever is higher; or (ii) the Fair Market Value per share of common stock on the Announcement Date or on the date on which the Interested Stockholder became an Interested Stockholder (such latter date is referred to in this Article TWELFTH as the "Determination Date"), whichever is higher. (b) The aggregate amount of the cash and the Fair Market Value as of the date of the consummation of the Business Combination of consideration other than cash to be received per share by holders of shares of any other class of outstanding Voting Stock shall be at least equal to the highest of the following (it being intended that the requirements of this paragraph 2(b) shall be required to be met with respect to every class of outstanding Voting Stock, whether or not the Interested Stockholder has previously acquired any shares of a particular class of Voting Stock): (i) (if applicable) the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the Interested Stockholder for any shares of such class of Voting Stock acquired by it (A) within the two-year period immediately prior to the Announcement Date or (B) in the transaction in which it became an Interested Stockholder, whichever is higher; 14 (ii) (if applicable) the highest preferential amount per share to which the holders of shares of such class of Voting Stock are entitled in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation; and (iii) The Fair Market Value per share of such class of Voting Stock on the Announcement Date or on the Determination Date, whichever is higher. (c) The consideration to be received by holders of a particular class of Voting Stock (including common stock) in the Business Combination shall be in cash or in the same form as the Interested Stockholder has previously paid for shares of such Voting Stock. If the Interested Stockholder has paid for shares of any class of Voting Stock with varying forms of consideration, the form of consideration for such Voting Stock shall be either cash or the form used to acquire the largest number of shares of such Voting Stock previously acquired by it. (d) After such Interested Stockholder has become an Interested Stockholder and prior to the consummation of such Business Combination: (i) there shall have been (A) no reduction in the annual rate of dividends paid on the capital stock (except as necessary to reflect any subdivision of the capital stock), except as approved by a majority of the Continuing Directors, and (B) an increase in such annual rate of dividends as necessary to reflect any reclassification (including any reverse stock split), recapitalization, reorganization or any similar transaction which has the effect of reducing the number of outstanding shares of common stock, unless the failure so to increase such annual rate is approved by a majority of the Continuing Directors; and (ii) such Interested Stockholder shall have not become the beneficial owner of any additional shares of Voting Stock except as part of the transaction which results in such Interested Stockholder becoming an Interested Stockholder. 15 (e) After such Interested Stockholder has become an Interested Stockholder, such Interested Stockholder shall not have received the benefit, directly or indirectly (except proportionately as a stockholder), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided by the Corporation, whether in anticipation of or in connection with such Business Combination or otherwise. (f) A proxy or information statement describing the proposed Business Combination and complying with the requirements of the Securities Exchange Act of 1934 (the "Exchange Act") and the rules and regulations thereunder (or any subsequent provisions replacing such Act, rules or regulations) shall be mailed to public stockholders of the Corporation at least 20 days prior to the consummation of such Business Combination (whether or not such proxy or information statement is required to be mailed pursuant to such Act or subsequent provisions). C. Certain Definitions. For the purposes of this Article TWELFTH: 1. A "person" shall mean any individual, firm, corporation or other entity. 2. "Interested Stockholder" shall mean any person (other than the Corporation or any Subsidiary) who or which: (a) is the beneficial owner, directly or indirectly, of more than 20% of the voting power of the outstanding Voting Stock; or (b) is an Affiliate of the Corporation and at any time within the two-year period immediately prior to the date in question was the beneficial owner, directly or indirectly, of 20% or more of the voting power of the then outstanding Voting Stock; or (c) is an assignee of or has otherwise succeeded to any shares of Voting Stock which were at any time within the two-year period immediately prior to the 16 date in question beneficially owned by any Interested Stockholder, if such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. 3. A person shall be a "beneficial owner" of any Voting Stock: (a) which such person or any of its Affiliates or Associates (as hereinafter defined) beneficially owns, directly or indirectly; or (b) which such person or any of its Affiliates or Associates has (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii) the right to vote pursuant to any agreement, arrangement or understanding; or (c) which are beneficially owned, directly or indirectly, by any other person with which such person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of Voting Stock. 4. For the purposes of determining whether a person is an Interested Stockholder pursuant to paragraph 2 of this subsection C, the number of shares of Voting Stock deemed to be outstanding shall include shares deemed owned through application of paragraph 3 of this subsection C but shall not include any other shares of Voting Stock which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise. 5. "Affiliate" or "Associate" shall have the respective meanings ascribed to such terms in Rule l2b-2 of the General Rules and Regulations under the Exchange Act. 17 6. "Subsidiary" means any corporation of which a majority of any class of equity security is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Interested Stockholder set forth in paragraph 2 of this subsection C, the term "Subsidiary" shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation. 7. "Continuing Director" means any member of the Board of Directors of the Corporation who is unaffiliated with the Interested Stockholder and was a member of the Board of Directors of the Corporation prior to the time that the Interested Stockholder became an Interested Stockholder, and any successor of a Continuing Director who is unaffiliated with the Interested Stockholder and is recommended to succeed a Continuing Director by a majority of Continuing Directors then on the Board of Directors of the Corporation. 8. "Fair Market Value" means: (a) in the case of stock, the highest closing sale price during the 30-day period immediately preceding the date in question of a share of such stock on the principal United States securities exchange registered under the Exchange Act on which such stock is listed, or, if such stock is not listed on any such exchange, the highest closing bid quotation with respect to a share of such stock during the 30-day period preceding the date in question on the National Association of Securities Dealers, Inc. Automated Quotations System or any system then in use, or if no such quotations are available, the fair market value on the date in question of a share of such stock as determined by the Board of Directors of the Corporation in good faith; and (b) In the case of property other than cash or stock, the fair market value of such property on the date in question as determined by the Board of Directors of the Corporation in good faith. 18 D. Powers of the Board of Directors. A majority of the directors of the Corporation shall have the power and duty to determine for the purposes of this Article TWELFTH, on the basis of information known to them after reasonable inquiry, (1) whether a person is an Interested Stockholder, (2) the number of shares of Voting Stock beneficially owned by any person, (3) whether a person is an Affiliate or Associate of another, and (4) whether the assets which are the subject of any Business Combination have, or the consideration to be received for the issuance or transfer of securities by the Corporation or any Subsidiary in any Business Combination has an aggregate Fair Market Value of $1,000,000 or more. E. No Effect on Fiduciary Obligations of Interested Stockholders. Nothing contained in this Article TWELFTH shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law. THIRTEENTH: Indemnification. A. Authorization of Indemnification. Each person who was or is a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether by or in the right of the corporation or otherwise (a "proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, shall be (and shall be deemed to have a contractual right to be) indemnified and held harmless by the corporation (and any successor to the corporation by merger or otherwise) to the fullest extent authorized by, and subject to the conditions and (except as provided herein) procedures set forth in the Delaware General Corporation Law, as the same exists or may hereafter be amended (but any such amendment shall not be deemed to limit or prohibit the rights of indemnification hereunder for past acts or omissions of any such person insofar as such amendment limits or prohibits the indemnification rights that said law permitted the corporation to provide prior to such amendment), against all expenses, liabilities and losses (including attorney's fees, judgments, fines, ERISA taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith; provided, however, that the corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person (except for a suit or action pursuant to subsection B only if such proceeding (or part thereof) was authorized by the board of directors of the corporation. 19 Persons who are not directors or officers of the corporation may be similarly indemnified in respect of such service to the extent authorized at any time by the board of directors of the corporation. The indemnification conferred in this subsection A also shall include the right to be paid by the corporation (and such successor) the expenses (including attorney's fees) incurred in the defense of or other involvement in any such proceeding in advance of its final disposition (including in the case of a director or former director expenses of separate legal counsel, up to a maximum of $50,000, but only in the event that the director or former director as the indemnified party reasonably determines, assuming an outcome unfavorable to such indemnified party, that there is a reasonable probability that such proceeding may materially and adversely affect such indemnified party, or that there may be legal defenses available to such indemnified party that are different from or in addition to those available to the corporation); provided, however, that, if and to the extent the Delaware General Corporation Law requires, the payment of such expenses (including attorney's fees) incurred by a director or officer in advance of the final disposition of a proceeding shall be made only upon delivery to the corporation of an undertaking by or on behalf of such director or officer to repay all amounts so paid in advance if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this subsection A or otherwise; and provided further, that, such expenses incurred by other employees and agents may be so paid in advance upon such terms and conditions, if any, as the board of directors deems appropriate. B. Right of Claimant to Bring Action against the Corporation. If a claim under subsection A of this section is not paid in full by the corporation within sixty days after a written claim has been received by the corporation, the claimant may at any time thereafter bring an action against the corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expenses of prosecuting such action. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in connection with any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the Delaware General Corporation Law for the corporation to indemnify the claimant for the amount claimed or is otherwise not entitled to indemnification under subsection A of this section but the burden of proving such defense shall be on the corporation. The failure of the corporation (in the manner provided under the Delaware General Corporation Law) to have made a determination prior to or after the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General Corporation Law shall not be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. An actual determination by the corporation (in the manner provided under the Delaware 20 General Corporation Law) after the commencement of such action that the claimant has not met such applicable standard of conduct shall not be a defense to the action, but shall create a presumption that the claimant has not met the applicable standard of conduct. C. Non-exclusivity. The rights to indemnification and advance payment of expenses provided by subsection A of this section shall not be deemed exclusive of any other rights to which those seeking indemnification and advance payment of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office. D. Survival of Indemnification. The indemnification and advance payment of expenses and rights thereto provided by, or granted pursuant to, subsection A of this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the personal representatives, heirs, executors and administrators of such person. E. 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 or of a partnership, joint venture, trust or other enterprise, against any liability asserted against such person or incurred by such person in any such capacity, or arising out of such person's status as such, and related expenses, whether or not the corporation would have the power to indemnify such person against such liability under the provisions of the Delaware General Corporation Law. 21 FOURTEENTH: Any actions required or permitted to be taken by the stockholders must be effected at a duly called annual or special meeting of such stockholders and may not be effected by any consent in writing by such stockholders. IN WITNESS WHEREOF, the undersigned, being the Incorporator hereinabove named, for the purpose of forming a corporation pursuant to the Delaware General Corporation Law, hereby certifies that the facts hereinabove stated are truly set forth, and accordingly executes this Certificate of Incorporation this 26th day of June, 1996. Incorporator By: -------------------------------- 22 EX-3.5 4 EXHIBIT 3.5 CERTIFICATE OF INCORPORATION OF ORION SATELLITE CORPORATION FIRST: The name of the Corporation is Orion Satellite Corporation (hereinafter called the "Corporation"). SECOND: The registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington. Delaware 19801, County of New Castle. The name of the Corporation's registered agent at said address is The Corporation Trust Company. THIRD: The purpose of the Corporation is to engage in any lawful acts or activities for which corporations may be organized under the General Corporation Law of Deleware. FOURTH: The total number of shares of stock which the Corporation shall have the authority to issue is One Thousand (1,000) shares of Common Stock, all of one class, having a par value of $.01 per share. FIFTH: The name and mailing address of the incorporator is John G. Puente, 1350 Piccard Drive, Rockville, MD 20850 (the "Incorporator"). SIXTH: The powers of the Incorporator shall terminate upon the filing of this Certificate of Incorporation, and the following persons, having the indicated mailing addresses, shall serve as the directors of the Corporation until the first annual meeting of the stockholders of the Corporation or until successor or successors are elected and qualify: Name Mailing Address John G. Puente 1350 Piccard Drive Rockville, Maryland 20850 Christopher J. Vizas, II 1835 K Street, N.W., Suite 201 Washington, DC 20006 C. Elliott Bardsley 1350 Piccard Drive Rockville, Maryland 20850 SEVENTH: The number of directors of the Corporation shall be such number as from time to time shall be fixed by, or in the manner provided in, the by-laws of the Corporation. Unless and except to the extent that the by-laws of the Corporation shall otherwise require, the election of directors of the Corporation need not be by written ballot. EIGHTH: In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized and empowered to adopt, amend and repeal by-laws of the Corporation. NINTH: No director of the Corporation shall be 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 Ninth 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 which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. TENTH: The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this Article Tenth. IN WITNESS WHEREOF, the undersigned, being the Incorporator hereinabove named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, hereby certifies that the facts hereinabove stated are truly set forth, and accordingly I have hereunto set my hand this 20th day of January, 1988. /s/ John G. Puente ---------------------------- John G. Puente EX-3.6 5 EXHIBIT 3.6 BY-LAWS OF ORION SATELLITE CORPORATION 1. Offices. 1.1 Registered Office. The registered office of the corporation shall be in the City of Wilmington, County of New Castle, State of Delaware, and the registered agent in charge thereof shall be The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. 1.2 Other Offices. The corporation may also have offices at such other places, both within and without the State of Delaware, as the board of directors may from time to time determine or the business of the corporation may require. 2. Meetings of Stockholders. ------------------------ 2.1 Place of Meetings. All meetings of the stockholders for the election of directors shall be held in Washington, D.C. at such place as may be fixed from time to time by the board of directors, or at such other place, 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 the meeting or in a duly executed waiver of notice thereof. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. 2.2 Annual Meetings. Annual meetings of stockholders, commencing with the year 1988, shall be held on the first Thursday of May, if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 a.m., or at such other date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof, at which stockholders shall elect a board of directors and transact such other business as may properly be brought before the meeting. 2.3 Special Meetings. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the board of directors or by the president, and shall be called by the president or secretary at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall include a statement of the purpose or purposes of the proposed meeting. 2.4 Notice of Meetings. Written notice of the annual meeting, stating the place, date and hour of the meeting, shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Written notice of a special meeting of stockholders, stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given to - 2 - each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. 2.5 Business at Special Meetings. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. 2.6 List of Stockholders. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder 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 where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also 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. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this section or the books of the corporation, or to vote in person or by proxy at any meeting of stockholders. - 3 - 2.7 Quorum at Meetings. Except as otherwise provided by statute or by the certificate of incorporation, the holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. If, however, such quorum shall not be present or represented at any such meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time to another time and place, without notice other than announcement at the meeting of such other time and place. At the adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. 2.8 Voting and Proxies. Unless otherwise provided in the certificate of incorporation, and subject to the provisions of Section 6.4 of these by-laws, each stockholder shall be entitled to one vote on each matter, in person or by proxy, for each share of the corporation's capital stock having voting power which is held by such stockholder. No proxy shall be voted or acted upon after three years from its date, unless the proxy - 4 - provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. 2.9 Required Vote. When a quorum is present at any meeting of stockholders, all matters shall be determined, adopted and approved by the vote (which need not be by ballot) of a majority of the votes cast with respect to the matter, unless the proposed action is one upon which, by express provision of statutes or of the certificate of incorporation, a different vote is specified and required, in which case such express provision shall govern and control the decision of such question. Notwithstanding the foregoing, candidates for election as members of the board of directors who receive the highest number of votes, up to the number of directors to be chosen, shall stand elected, and an absolute majority of the votes cast shall not be a prerequisite to the election of any candidate to the board of directors. 2.10 Action Without a Meeting. Unless otherwise provided in the 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 - 5 - or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, is 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. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who shall not have consented in writing. 3. Directors. --------- 3.1 Powers. The business and affairs of the corporation shall be managed by or under the direction of the board of directors, which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. 3.2 Number and Election. The number of directors which shall constitute the whole board shall not be less than one nor more than ten. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors. The directors shall be elected at the annual - 6 - meeting of the stockholders, except as provided in Section 3.3 hereof, and each director elected shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Directors need not be stockholders. 3.3 Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director, and each director so chosen shall hold office until the next annual election and until his successor is elected and qualified, or until his earlier resignation or removal. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery of the State of Delaware may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the then outstanding shares having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office, in accordance with the General Corporation Law of the State of Delaware. In the event that one or more directors resigns from the board, effective at a future - 7 - date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office until the next annual election and until his successor is elected and qualified, or until his earlier resignation or removal. 3.4 Place of Meetings. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. 3.5 First Meeting of Each Board. The first meeting of each newly elected board of directors shall be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver of notice signed by all of the directors. 3.6 Regular Meetings. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board of directors. 3.7 Special Meetings. Special meetings of the board may be called by the president on one day's notice to each director, either personally or by telephone, by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of one-third of the total number of directors. - 8 - 3.8 Quorum and Vote at Meetings. At all meetings of the board, one director if a board of one director is authorized, or such greater number of directors as is not less than a majority of the total number of directors, shall constitute a quorum for the transaction of business. The vote of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting to another time and place, without notice other than announcement at the meeting of such other time and place. 3.9 Telephone Meetings. Members of the board of directors or any committee designated by the board may participate in a meeting of such board or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this section shall constitute presence in person at such meeting. 3.10 Action Without Meeting. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as - 9 - the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board of directors or committee. 3.11 Committees of Directors. 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. The board 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. If a member of a committee shall be absent from any meeting, or disqualified from voting thereat, the remaining member or members present and not disqualified from voting, whether or not such member or members constitute a quorum, may, by unanimous vote, appoint another member of the board of directors to act at the meeting in the place of such absent or disqualified member. 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 in reference to amending the certificate of incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors - 10 - pursuant to Section 151(a) of the General Corporation Law of the State of Delaware [hereinafter the "GCL"], fix 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), adopting an agreement of merger or consolidation pursuant to Sections 251 or 252 of the GCL, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless otherwise expressly provided in the resolution, no such committee shall have the power or authority to declare a dividend, to authorize the issuance of stock, or to adopt a certificate of ownership and merger pursuant to Section 253 of the GCL. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Unless otherwise specified in the resolution of the board of directors designating the committee, at all meetings of each such committee of directors, a majority of the total number of members of the committee shall constitute a quorum for the transaction of business, and the vote of a majority of the members of the committee present at any - 11 - meeting at which there is a quorum shall be the act of the committee. Each committee shall keep regular minutes of its meetings and report the same to the board of directors, when required. 3.12 Compensation of Directors. Unless otherwise restricted by the certificate of incorporation, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be paid like compensation for attending committee meetings. 4. Notices of Meetings. ------------------- 4.1 Notice Procedure. Whenever, whether under the provisions of any statute or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, such requirement shall not be construed to require the giving of personal notice. Such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall - 12 - be deemed to be given at the time when the same is deposited in the United States mail. Notice to directors may also be given by telex, telegram or telephone. 4.2 Waivers of Notice. Whenever the giving of any notice is required by statute, the certificate of incorporation or these by-laws, a waiver thereof, in writing, signed by the person or persons entitled to said notice, whether before or after the event as to which such notice is required, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting 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. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice, unless so required by the certificate of incorporation, by statute or by these by-laws. 5. Officers. -------- 5.1 Positions. The officers of the corporation shall be a chairman, a president and a secretary, and such other officers as the board of directors may appoint, including a vice chairman, one or more vice presidents, a treasurer, assistant secretaries and assistant treasurers, who shall exercise such - 13 - powers and perform such duties as shall be determined from time to time by the board. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide; provided, however, that in no event shall the chairman and the secretary be the same person. 5.2 Appointment. The officers of the corporation shall be chosen by the board of directors at its first meeting after each annual meeting of stockholders. 5.3 Compensation. The compensation of all officers of the corporation shall be fixed by the board of directors. 5.4 Term of Office. The officers of the corporation shall hold office until their successors are chosen and qualify or until their earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. Any officer elected or appointed by the board of directors may be removed at any time, with or without cause, by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. 5.5 Fidelity Bonds. The corporation may secure the fidelity of any or all of its officers or agents by bond or otherwise. 5.6 Chairman. The chairman shall (when present) preside at all meetings of the Board of Directors and stockholders, and shall ensure that all orders and resolutions of the Board of Directors and stockholders are carried - 14 - into effect. In addition, the chairman shall exercise such powers and perform such other duties as from time to time may be specified by the Board of Directors. The chairman shall have the authority to execute bonds, mortgages and other contracts under the seal of the corporation, except where required by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. 5.7 President. The president shall be the chief executive officer of the Corporation, and shall have overall responsibility and authority for management of the business of the corporation, subject to the authority of the Board of Directors. In the absence of the chairman or in the event of the chairman's inability or failure to act, the president shall perform the duties of the chairman (except to the extent that any vice chairman is authorized to perform such duties), and when so acting shall have all the powers of, and be subject to all the restrictions upon, the chairman. The president shall have the authority to execute bonds, mortgages and other contracts under the seal of the corporation, except where required by law to be otherwise signed and executed and except where the signing and execution thereof shall be - 15 - expressly delegated by the board of directors to some other officer or agent of the corporation. 5.8 Vice Chairman or Vice Presidents. If the directors shall appoint a vice chairman or one or more vice presidents, such vice chairman or vice presidents shall perform such duties and have such powers as may be vested in such vice chairman or vice presidents by the board of directors or by the president. One of such vice presidents may be designated the chief operating officer of the corporation and have general management of the day-to-day operations of the corporation, subject to the authority of the president. 5.9 Secretary. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders, and shall record all the proceedings of the meetings of the stockholders and of the board of directors in a book to be kept for that purpose, and shall perform like duties for the standing committees, when required. The secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or by the president, under whose supervision the secretary shall be. The secretary shall have custody of the corporate seal of the corporation, and the secretary, or an assistant secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed it may be attested by the signature of the - 16 - secretary or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by such officer's signature. The secretary or an assistant secretary may also attest all instruments signed by the chairman, the president or any vice president. 5.10 Assistant Secretary. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there shall have been no such determination, then in the order of their election), shall, in the absence of the secretary or in the event of the secretary's inability or refusal to act, perform the duties and exercise the powers of the secretary, and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 5.11 Treasurer. ---------- 5.11.1 Duties. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation, and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. The treasurer shall disburse the funds of the corporation as ordered by the board of directors, taking - 17 - proper vouchers for such disbursements, and shall render to the president, and to the board of directors at its regular meetings, or when the board of directors so requires, an account of all transactions as treasurer and of the financial condition of the corporation. 5.11.2 Bond. If required by the board of directors, the treasurer shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of the treasurer's office and for the restoration to the corporation, in case of the treasurer's death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind, in the treasurer's possession or under the treasurer's control and belonging to the corporation. 5.12 Assistant Treasurer. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there shall have been no such determination, then in the order of their election), shall, in the absence of the treasurer or in the event of the treasurer's inability or refusal to act, perform the duties and exercise the powers of the treasurer, and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. - 18 - 6. Capital Stock. ------------- 6.1 Certificates of Stock; Uncertificated Shares. The shares of the corporation shall be represented by certificates, provided that the board of directors may provide by resolution or resolutions that some or all of any or all classes or series of the corporation's stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the corporation. Notwithstanding the adoption of such a resolution by the board of directors, every holder of stock represented by certificates and upon request every holder of uncertificated shares shall be entitled to have a certificate signed by, or in the name of the corporation by the chairman or vice chairman of the board of directors, or the president or vice president, and by the treasurer and/or assistant treasurer, or the secretary or an assistant secretary of such corporation representing the number of shares registered in certificate form. Any or all the signatures on the certificate may be facsimile. In case any officer, transfer agent or registrar whose signature or facsimile signature appears on 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 such person were such officer, transfer agent or registrar at the date of issue. - 19 - 6.2 Lost Certificates. The board of directors may direct a new certificate or certificates of stock or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation and alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming that the certificate of stock has been lost, stolen or destroyed. When authorizing such issuance 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 such owner's legal representative, to advertise the same in such manner as the board shall require and/or to give the corporation a bond, in such sum as the board may direct, as indemnity against any claim that may be made against the corporation on account of the certificate alleged to have been lost, stolen or destroyed or on account of the issuance of such new certificate or uncertificated shares. 6.3 Transfers. The transfer of stock and certificates that represent the stock and the transfer of uncertificated shares shall be effected in accordance with the laws of the State of Delaware. Any restriction on the transfer of a security imposed by the corporation shall be noted conspicuously on the security. - 20 - 6.4 Fixing 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. 6.5 Registered Stockholders. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, to receive notifications, to vote as such owner, and to exercise all the rights and powers of an owner; and the corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware. - 21 - 7. Indemnification. --------------- Unless expressly prohibited by law, the corporation shall fully indemnify any person made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that such person, or such person's testator or intestate, is or was a director or officer, employee or agent of the corporation or serves or served any other enterprise at the request of the corporation, against all expenses (including attorneys' fees), judgments, fines and amounts paid or to be paid in settlement incurred in connection with such action, suit or proceeding. 8. General Provisions. ------------------ 8.1 Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation and the laws of the State of Delaware, may be declared by the board of directors at any regular or special meeting. Subject to the provisions of the General Corporation Law of the State of Delaware, such dividends may be paid either out of surplus, as defined in the General Corporation Law of the State of Delaware, or in the event that there shall be no such surplus, out of the net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year. Dividends may be paid in cash, in property, or in shares of the corporation's capital stock, subject to the provisions, if any, of the certificate of incorporation. - 22 - 8.2 Reserves. The directors of the corporation may set apart, out of the funds of the corporation available for dividends, a reserve or reserves for any proper purpose and may abolish any such reserve. 8.3 Execution of Instruments. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. 8.4 Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the board of directors. 8.5 Seal. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced. 9. Amendments. ---------- These by-laws may be altered, amended or repealed and new by-laws may be adopted by the board of directors. * * * * - 23 - The foregoing by-laws were adopted by the board of directors on January 15, 1988. The foregoing by-laws were amended by the board of directors on December 20, 1991 to replace Article 5. EX-3.7 6 EXHIBIT 3.7 INTERNATIONAL PRIVATE SATELLITE PARTNERS, L.P. CERTIFICATE OF LIMITED PARTNERSHIP The undersigned, being the sole general partner of the above-named limited partnership (the "Partnership"), for the purpose of forming a limited partnership pursuant to Section 17-201 of the Delaware Revised Uniform Limited Partnership Act, as amended, hereby certifies that: 1. The name of the Partnership shall be International Private Satellite Partners, L.P. 2. The address of the registered office of the Partnership shall be 1013 Centre Road, Wilmington, Delaware 19805, and the name and address of the registered agent of the Partnership for service of process shall be the Corporation Service Company, 1013 Centre Road, Wilmington, Delaware 19805. 3. The name and business address of the sole general partner of the Partnership are: Orion Satellite Corporation, 1350 Piccard Drive, Suite 400, Rockville, Maryland 20850. GENERAL PARTNER: Orion Satellite Corporation Dated: August 15, 1989 By: /s/ INTERNATIONAL PRIVATE SATELLITE PARTNERS, L.P. CERTIFICATE OF AMENDMENT OF CERTIFICATE OF LIMITED PARTNERSHIP The undersigned, being the sole general partner of the above-named limited partnership (the "Partnership"), for the purpose of amending its Certificate of Limited Partnership pursuant to Section 17-202 of the Delaware Revised Uniform Limited Partnership Act, as amended, hereby certifies that: 1. The name of the Partnership is International Private Satellite Partners, L.P. 2. The Certificate of Limited Partnership of the Partnership is hereby amended to change the business address of the sole general partner of the Partnership to: Orion Satellite Corporation, 2440 Research Boulevard, Suite 400, Rockville, Maryland 20850. GENERAL PARTNER: Orion Satellite Corporation Dated: March 1, 1993 By: /s/ John. G. Puente ------------------- Name: John G. Puente -------------- Title: Chairman & CEO EX-3.8 7 EXHIBIT 3.8 THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF INTERNATIONAL PRIVATE SATELLITE PARTNERS, L.P. TABLE OF CONTENTS Page ---- ARTICLE I CERTAIN DEFINITIONS.................................................2 ARTICLE II PARTNERSHIP CONTINUATION, NAME, PLACE OF BUSINESS........................................9 2.01. Continuation of Partnership; Certificate of Limited Partnership; Determination of Partnership Rights and Duties............................................................9 2.02. Name of Partnership...............................................9 2.03. Place of Business................................................10 2.04. Registered Office and Registered Agent...........................10 ARTICLE III PURPOSES AND POWERS OF PARTNERSHIP...............................10 3.01. Purposes.........................................................10 3.02. Powers...........................................................10 3.03. Limitation on Powers of the Partnership..........................12 ARTICLE IV TERM OF PARTNERSHIP..............................................12 4.01. Term.............................................................12 ARTICLE V CAPITAL..........................................................12 5.01. Capital Contribution of General Partner..........................12 5.02. [Intentionally omitted.].........................................12 5.03. Capital Contributions of Limited Partners........................12 5.04. Capital Accounts.................................................13 5.05. Negative Capital Accounts........................................15 5.06. No Interest on Amounts in Capital Account........................16 5.07. Advances to Partnership..........................................16 5.08. Liability of Limited Partners....................................16 5.09. Return of Capital................................................16 ARTICLE VI ALLOCATION OF PROFITS AND LOSSES; DISTRIBUTIONS OF CASH FLOW AND CERTAIN PROCEEDS........................17 6.01. Certain Definitions..............................................17 6.02. Allocation of Net Income or Net Loss.............................18 6.03. Allocation of Income and Loss With Respect to Partnership Interests Transferred............................................20 6.04. Distribution of Cash Flow........................................20 6.05. Distribution of Proceeds from Terminating Capital Transactions.....................................................21 6.06. Special Allocation Rules.........................................22 6.07. Contributed Property; Revaluations Pursuant to Section 704(b) Regulations...............................................26 6.08. Taxes............................................................26 ARTICLE VII MANAGEMENT.......................................................28 7.01. Management and Control of Partnership Business...................28 7.02. Powers of General Partner........................................29 7.03. Power of Attorney................................................30 -i- 7.04. Limitation on Authority of General Partner.......................32 7.05. Working Capital Reserve..........................................33 7.06. Other Activities of Partners.....................................33 7.07. Transactions with General Partner or Affiliates..................34 7.08. Liability of General Partner and Affiliates to Partnership and Limited Partners.............................................34 7.09. Indemnification of General Partner and Limited Partners..........35 7.10. No Management by Limited Partners................................36 7.11. Partners Planning and Policy Review Committee....................37 7.12. Meetings of Limited Partners.....................................40 7.13. Transfer of Limited Partnership Interest to the General Partner..........................................................41 7.14. Technical Committee..............................................41 ARTICLE VIII COMPENSATION OF GENERAL PARTNER; PAYMENT OF PARTNERSHIP EXPENSES.........................................43 8.01. Compensation of General Partner..................................43 8.02. Partnership Expenses.............................................43 8.03. Acquisition, Organizational, and Offering Expenses...............43 ARTICLE IX BANK ACCOUNTS; BOOKS AND RECORDS; STATEMENTS; TAXES; FISCAL YEAR; ANNUAL BUDGET...........................43 9.01. Bank Accounts and Investments....................................43 9.02. Books and Records................................................44 9.03. Financial Statements and Information.............................44 9.04. Accounting Decisions.............................................46 9.05. Where Maintained.................................................46 9.06. Tax Returns and Tax Matters......................................46 9.07. Federal Income Tax Elections.....................................47 9.08. Fiscal Year......................................................47 9.09. Annual Budget....................................................47 ARTICLE X TRANSFER OF INTERESTS..............................................49 10.01. Transfer........................................................49 10.02. Transfer of Interest of General Partner.........................50 10.03. Transfer of Interest of Limited Partner.........................50 10.04. Partners' Rights of First Refusal...............................51 10.05. Restriction on Certain Transfers................................53 ARTICLE XI OFFERING OF ADDITIONAL PARTNERSHIP INTERESTS; ADMISSION OF ADDITIONAL PARTNERS; WITHDRAWAL OF PARTNERS; REMOVAL OF GENERAL PARTNER.................................................................53 11.01. Offering of Additional Partnership Interests....................53 11.02. Admission of Additional Limited Partners........................55 11.03. Admission of Successor General Partner..........................55 11.04. Withdrawal of General Partner...................................56 11.05. Withdrawal of Limited Partner...................................56 11.06. Removal of General Partner......................................56 -ii- ARTICLE XII DISSOLUTION AND LIQUIDATION......................................58 12.01. Events Causing Dissolution......................................58 12.02. Right to Continue Business of Partnership.......................60 12.03. Liquidation.....................................................60 12.04. Termination of Partnership......................................60 ARTICLE XIII MISCELLANEOUS PROVISIONS........................................61 13.01. Additional Actions and Documents................................61 13.02. Notices.........................................................61 13.03. Severability....................................................62 13.04. Survival........................................................62 13.05. Waivers.........................................................62 13.06. Exercise of Rights..............................................63 13.07. Binding Effect..................................................63 13.08. Limitation on Benefits of this Agreement........................63 13.09. Amendment Procedure.............................................63 13.10. Waiver of Partition.............................................65 13.11. Consolidation...................................................65 13.12. Entire Agreement................................................65 13.13. Pronouns........................................................65 13.14. Headings........................................................65 13.15. Governing Law...................................................65 13.16. Execution in Counterparts.......................................66 13.17. Interest Rates..................................................66 ARTICLE XIV STET REDEMPTION..................................................66 14.01. Ratification of STET Redemption, Issuance of New Interest to ONS..........................................................66 14.02. STET's Unrecovered Contingent Contributions.....................67 14.03. Termination and Modification of STET Agreements.................67 14.04. BA Waiver.......................................................68 ARTICLE XV PARTNERSHIP APPROVALS.............................................69 ARTICLE XVI EXECUTION.........................................................70 iii THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF INTERNATIONAL PRIVATE SATELLITE PARTNERS, L.P. THIS THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP is entered into as of _______________, 1996 by and among Orion Satellite Corporation, a Delaware corporation, as the General Partner, the persons named as Limited Partners on Schedule A and any other persons or entities who shall in the future execute and deliver this Agreement as additional or substitute Partners pursuant to the provisions hereof. The principal place of business of the General Partner and each Limited Partner are set forth on Schedule A. WHEREAS, the General Partner and the Orion Network Systems, Inc., a Delaware corporation, as the organizational limited partner (the "Organizational Limited Partner"), in accordance with the Delaware Revised Uniform Limited Partnership Act, formed a limited partnership under the name "International Private Satellite Partners, L.P." (the "Partnership") pursuant to an initial agreement of limited partnership (the "Initial Agreement"), dated as of August 15, 1989 and a Certificate of Limited Partnership dated as of August 15, 1989 and filed with the office of the Secretary of State of Delaware on August 17, 1989; and WHEREAS, counterparts of an Amended and Restated Agreement of Limited Partnership and first, second and third amendments thereto (collectively, the "First Amended and Restated Agreement") were executed and deposited into escrow by the General Partner and certain proposed limited partners of the Partnership; and WHEREAS, pursuant to a Second Amended and Restated Agreement of Limited Partnership entered into as of December 20, 1991 (the "Second Amended and Restated Agreement") the parties thereto amended and restated the Initial Agreement and the First Amended and Restated Agreement as provided therein, the Organizational Limited Partner withdrew from the Partnership, and the General Partner and the limited partners of the Partnership continued the Partnership for the purposes set forth therein, subject to the terms and conditions thereof; WHEREAS, the General Partner and the limited partners of the Partnership entered into the First Amendment to the Second Amended and Restated Agreement of Limited Partnership of International Private Satellite Partners, L.P., effective as of December 20, 1991, the Second Amendment to the Second Amended and Restated Agreement of Limited Partnership of International Private Satellite Partners, L.P. dated April 2, 1992, the Third Amendment to the Second Amended and Restated Agreement of Limited Partnership of International Private Satellite Partners, L.P. dated April 2, 1992, the Fourth Amendment to the Second Amended and Restated Agreement of Limited Partnership of International Private Satellite Partners, L.P. dated March 22, 1994, the Fifth Amendment to the Second Amended and Restated Agreement of Limited Partnership of International Private Satellite Partners, L.P., dated May 2, 1994 and the Sixth Amendment to the Second Amended and Restated Agreement of Limited Partnership of International Private Satellite Partners, L.P., dated November ____, 1995; and WHEREAS, the parties hereto desire to amend and restate the Second Amended and Restated Agreement, as amended by the six amendments listed in the prior paragraph, and the General Partner and the Limited Partners desire to continue the Partnership for the purposes hereinafter set forth, subject to the terms and conditions hereof. NOW, THEREFORE, in consideration of the foregoing, and of the covenants and agreements hereinafter set forth, the parties hereto hereby agree as follows: ARTICLE I CERTAIN DEFINITIONS Unless the context otherwise specifies or requires, the terms defined in this Article I shall, for the purposes of this Agreement, have the meanings herein specified. Unless otherwise specified, all references herein to Articles, Sections, or Schedules are to Articles or Sections of, or Schedules attached to, this Agreement. Adjusted Basis: The basis for determining gain or loss for federal income tax purposes from the sale or other disposition of property, as defined in section 1011 of the Code. Affiliate: With respect to a specified Person, (a) any other Person directly or indirectly owning, controlling, or holding power to vote ten percent (10%) or more of the voting securities, on a fully diluted basis of such specified Person; (b) any other Person ten percent (10%) or more of the voting securities, on a fully diluted basis of which are directly or indirectly owned, controlled, or held with power to vote by such specified Person; (c) any other Person directly or indirectly controlling, controlled by, or under common control with such specified Person; (d) if such specified Person is a corporation, any executive officer or director of such specified Person or of any corporation directly or indirectly controlling such specified Person; and (e) if such specified Person is a partnership, any general partner owning or controlling ten percent (10%) or more, on a fully diluted basis of either the capital or profits interest in such partnership. As used in this definition of "Affiliate," the term "control" means the possession, directly or indirectly, of the -2- power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. As used herein, this definition of "Affiliate" excludes an Affiliate of an Affiliate, unless such Person would otherwise be an Affiliate under this definition. Agreement: This Third Amended and Restated Agreement of Limited Partnership, as it may be further amended or supplemented from time to time. Book Tax Gain and Book Tax Loss: The amount of taxable gain or loss for federal income tax purposes that would result from a sale or other disposition of a Partnership Asset if, at the time of such sale or disposition, the Adjusted Basis of the Partnership Asset sold or otherwise disposed of were equal to the Carrying Value of such Partnership Asset at such time. Business Day: Monday through Friday of each week, except that a legal holiday recognized as such by the Government of the United States or the State of Maryland shall not be regarded as a Business Day. Capacity Option Agreement: Each of the Option Agreements, including any amendments thereto, entered into effective as of December 20, 1991 between the Partnership and each Limited Partner or its Affiliate, any substantially similar agreement entered into by the Partnership and a Limited Partner or its Affiliate after December 20, 1991 and any substantially similar agreement which may be entered into by the Partnership and a Limited Partner or its Affiliate after the date of this Agreement. Capital Account: The capital account established and maintained for each Partner pursuant to Section 5.04. Capital Contribution: Any property (including cash), whether tangible or intangible, contributed to the Partnership by or on behalf of a Partner. Carrying Value: (a) With respect to any asset contributed to the Partnership or revalued on the Partnership's books pursuant to Section 5.04(d), the fair market value of such asset (as determined by the Partners) at the time of contribution or revaluation, reduced, but not below zero, by all deductions for Depreciation (as defined in the definition of Net Income and Net Loss) debited to the Capital Accounts of the Partners pursuant to Section 5.04(a) with respect to such asset from the later of the time of contribution or the most recent revaluation to the time the Carrying Value is to be determined; and (b) with respect to any other asset of the Partnership, the Adjusted Basis of such asset as of the time the Carrying Value is to be determined. Cash Flow: As defined in Section 6.01(a). -3- Certificate: The Certificate of Limited Partnership, and any and all amendments thereto, filed on behalf of the Partnership with the Recording Office as required under the Delaware RULPA. Code: The Internal Revenue Code of 1986, as in effect and hereafter amended, and, unless the context otherwise requires, applicable regulations thereunder. Any reference herein to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of future law. Communications Satellite Capacity Agreement: Each of the Communications Satellite Capacity Agreements, including any amendments thereto, effective as of December 20, 1991 between the Partnership and each Limited Partner or its Affiliate, any substantially similar agreement entered into by the Partnership and a Limited Partner or its Affiliate after December 20, 1991 and any substantially similar agreement which may be entered into by the Partnership and a Limited Partner or its Affiliate after the date of this Agreement. Contingent Communications Satellite Capacity Agreement: Each of the Contingent Communications Satellite Capacity Agreements, including any amendments thereto, effective as of December 20, 1991 between the Partnership and each Limited Partner or its Affiliate, any substantially similar agreement entered into by the Partnership and a Limited Partner or its Affiliate after December 20, 1991 and any substantially similar agreement which may be entered into by the Partnership and a Limited Partner or its Affiliate after the date of this Agreement. Delaware RULPA: The Delaware Revised Uniform Limited Partnership Act (Del. Code Ann. tit. 6 ss. 17-101 et seq.), as amended to date and as it may be amended from time to time hereafter, and any successor to such Act. Excess Negative Balance: The negative balance, if any, in a Partner's Capital Account as of the end of a Fiscal Year after crediting the Partner's Capital Account for the amount of any deficit balance in such Capital Account that the Partner is obligated to restore or is treated as being obligated to restore pursuant to Regulations sections 1.704-1(b)(2)(ii) (b)(3) and 1.704-1(b)(2)(ii)(c), including the amount of such Partner's share of the Partnership's Minimum Gain, determined pursuant to Regulations sections 1.704-1T(b)(4)(iv)(f) and 1.704-1T(b)(4)(iv)(h)(5); and debiting the Partner's Capital Account for any adjustment, allocation, or distribution described in paragraph (4), (5), or (6) of Regulations section 1.704-1(b)(2)(ii)(d). FCC: The United States Federal Communications Commission or any successor thereto. FCC License: The FCC license to construct, launch and operate two in-orbit satellites at 37.5(degree) West Longitude and 47(degree) West Longitude and all rights granted under that license. -4- Fiscal Year: The fiscal year of the Partnership for financial accounting purposes, and for federal, state, and local income tax purposes, which shall be the calendar year unless changed by the General Partner in accordance with Section 9.08. General Partner: Orion Satellite Corporation, or any other Person admitted to the Partnership as a general partner in accordance with this Agreement. Independent Party: A panel of three individuals, as constituted or reconstituted from time to time, each of which persons shall be a fit and impartial person (where "impartial" means that such person, at the time of such person's appointment to the panel, is not and has never been an officer, director, partner, employee, or Affiliate of the General Partner or any Limited Partner), of which one of such persons shall be chosen by the General Partner, one of such persons shall be chosen by the Limited Partners pursuant to the approval of an LP Majority, and one of such persons shall be chosen by the other two so chosen. Limited Partner: Any Person named as a Limited Partner on Schedule A, as it may be amended from time to time, and any other persons or entities who shall in the future execute and deliver this Agreement as additional or substitute Partners pursuant to the provisions hereof. LP Majority: Limited Partners holding a majority of the total Percentage Interests then held by all Limited Partners. Minimum Gain: The amount determined by computing, with respect to each Nonrecourse Debt of the Partnership, the amount of Book Tax Gain (of whatever character), if any, that the Partnership would realize if it disposed of (in a taxable transaction) the Partnership Assets subject to such Nonrecourse Debt in full satisfaction thereof and for no other consideration, and by then aggregating the amounts so computed. For purposes of computing the amount of Minimum Gain, (i) the Carrying Value of a Partnership Asset subject to two or more Nonrecourse Debts of equal priority shall be allocated among such Nonrecourse Debts in proportion to the outstanding principal balances of such Nonrecourse Debts; (ii) the Carrying Value of a Partnership Asset subject to two or more Nonrecourse Debts of unequal priority shall be allocated to the Nonrecourse Debts of an inferior priority (in accordance with clause (i) above) only to the extent of the excess, if any, of the Carrying Value of the Partnership Asset over the aggregate outstanding balance of the Nonrecourse Debts of superior priority; and (iii) only the portion of Carrying Value of a Partnership Asset allocated to Nonrecourse Debts of the Partnership shall be used in computing the Minimum Gain. Net Income and Net Loss: For any taxable period, (i) the gross income of the Partnership from all sources, as calculated for federal income tax purposes by the Partnership (but excluding any item of income or gain taken into account in computing Book Tax Gain or Book Tax Loss), plus (ii) any Book Tax Gain -5- recognized by the Partnership during such period, plus (iii) any income of the Partnership that is exempt from federal income tax and not otherwise taken into account in computing gross income for federal income tax purposes, reduced by (iv) Depreciation (as defined below), further reduced by (v) all other items of expense or deduction (other than Depreciation (as defined below)) that are allowable as deductions to the Partnership under the Code for such period (but excluding any item of expense or deduction taken into account in computing Book Tax Gain or Book Tax Loss), further reduced by (vi) any Book Tax Loss recognized by the Partnership during such period, and further reduced by (vii) any expenditures of the Partnership described in section 705(a)(2)(B) of the Code or treated as expenditures described in section 705(a)(2)(B) of the Code pursuant to Regulations section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing taxable income (including for the purposes hereof, any foreign income taxes paid or deemed paid by the Partnership for purposes of section 901, et seq. of the Code). In computing Net Income and Net Loss, all items of income, gain, loss, or deduction required to be specially allocated to one or more Partners pursuant to Section 6.06 shall be excluded. "Depreciation" means, for each taxable period, an amount equal to the depreciation, amortization, or other cost recovery deductions allowable with respect to a Partnership Asset for such period for federal income tax purposes computed (using the same method used by the Partnership in computing depreciation, amortization, or other cost recovery deductions in preparing its federal income tax returns, or if the Adjusted Basis of the Partnership Asset is zero, such method as is reasonably determined by the General Partner) as if the Adjusted Basis of such Partnership Asset were equal to their Carrying Values. Except as otherwise specifically provided herein or in the Regulations under section 704 of the Code, for purposes of computing the amount of any item of income, gain, deduction, or loss in determining Net Income or Net Loss, the determination, recognition, and classification of such item shall be the same as its determination, recognition, and classification for federal income tax purposes. All items of income, gain, loss, deduction, and credit recognized by the Partnership for federal income tax purposes and allocated to the Partners in accordance with the provisions of Article VI shall be determined without regard to any election that may be made by the Partnership under section 754 of the Code except as expressly contemplated under the Regulations section 1.704-1(b)(2)(iv)(m)(4); provided, however, that such allocations, once made, shall be adjusted as necessary to take into account those adjustments authorized under sections 734 and 743 of the Code. Net Proceeds of a Terminating Capital Transaction: As defined in Section 6.01(b). Nonrecourse Debt: Any liability that is considered nonrecourse for purposes of Regulations section 1.1001-2 (without regard to whether such liability is a recourse liability under Regulations section 1.752-1T(d)(2)) and any other liability for which the creditor's right to repayment is limited to one or more of the assets of the Partnership (within the meaning of Regulations section 1.752-1T(d)(3)(ii)(B)(4)(ii). -6- Nonrecourse Liability: Any Nonrecourse Debt (or portion thereof) for which no Partner bears (or is deemed to bear) the economic risk of loss within the meaning of Regulations section 1.704-1T(b)(4)(iv)(k)(3). Organizational Limited Partner: Orion Network Systems, Inc. Partner: A General Partner or a Limited Partner. Partner Nonrecourse Debt: Any Nonrecourse Debt (or portion thereof) for which a Partner bears (or is deemed to bear) the economic risk of loss within the meaning of Regulations section 1.704-1T(b)(4)(iv)(k)(1). Partnership: The limited partnership created pursuant to the Certificate and continued by this Agreement. Partnership Assets: All assets and property, whether tangible or intangible and whether real, personal, or mixed, at any time owned by or held for the benefit of the Partnership. Partnership Interest: As to any Partner, all of the interest of such Partner in the Partnership, including, without limitation, such Partner's (i) right to a distributive share of the income, gain, losses and deductions of the Partnership in accordance herewith, (ii) right to a distributive share of Partnership Assets, (iii) rights, if a General Partner, with respect to the management of the business and affairs of the Partnership and (iv) consensual and voting rights, if a Limited Partner, with respect to certain matters as provided herein. Partnership Liabilities: All debts, liabilities, and other obligations of the Partnership. Percentage Interest: As defined in Section 6.01(c). Person: Any individual, corporation, association, partnership, joint venture, trust, estate, or other entity or organization. Recording Office: The office of the Secretary of State of the State of Delaware. Regulations: The regulations issued by the United States Department of the Treasury under the Code, as now in effect and as they may be amended from time to time, and any successor regulations. Review Committee: As defined in Section 7.11(a). Satellite Authorizations: The FCC License, any other satellite licenses and authorizations or rights thereunder granted by the FCC or other governmental agencies which may be held by the General Partner or the Partnership, and all other permits, approvals, consents, authorizations, registrations, consultations, -7- notifications, coordinations, and licenses necessary or appropriate for the construction, launch or operation of each satellite owned by the Partnership. Satellite Construction Contract: The Second Amended and Restated Purchase Contract, dated as of September 24, 1991, between the General Partner and British Aerospace Public Limited Company, as amended, as such agreement has been assigned by the General Partner to the Partnership pursuant to an Assignment and Assumption of Satellite Construction Contract between the General Partner and the Partnership effective as of December 20, 1991. Section 754 Election: An election under section 754 of the Code relating to the adjustment of the Adjusted Basis of Partnership Assets, as provided in sections 734 and 743 of the Code. Ten Year Projection: As defined in Section 7.11(b)(ii). Terminating Capital Transaction: Any sale, condemnation, exchange, abandonment, or other disposition, whether by foreclosure or otherwise, of all or substantially all of the then remaining Partnership Assets and/or any other transaction which will result in a dissolution of the Partnership, or any sale or other disposition of the Partnership Assets or any portion thereof or any other transactions in connection with the dissolution and liquidation of the Partnership pursuant to Article XII. Termination Date: December 31, 2039. Unrealized Gain: As to any Partnership Asset, the Book Tax Gain, if any, that would be realized if such Partnership Asset were sold for its fair market value on the date of determination. Unrealized Loss: As to any Partnership Asset, the Book Tax Loss, if any, that would be realized if such Partnership Asset were sold for its fair market value on the date of determination. Unrecovered Contingent Contributions: With respect to each Limited Partner, the aggregate amount, if any, of contingent payments made by the Limited Partner or its Affiliate to the Partnership pursuant to Article II of the Contingent Communications Satellite Capacity Agreement or to a payment guarantee agreement in accordance with Article III of the Contingent Communications Satellite Capacity Agreement and treated as contributions by such Partner to the capital of the Partnership pursuant to Section 5.01 of the Contingent Communications Satellite Capacity Agreement, reduced, as and when made, by the amounts distributed to the Limited Partner in reduction of such amounts pursuant to Section 6.04(a)(i). Unrecovered Initial Contributions: In the case of the General Partner, $10,000,000, and in the case of the Limited Partners, the amounts set forth on -8- Schedule A. A Partner's Unrecovered Initial Contribution shall be reduced, as and when made, by the amounts distributed to such Partner pursuant to Section 6.04(a)(ii). Working Capital Reserve: The reserve for working capital established by the General Partner pursuant to Section 7.05. ARTICLE II PARTNERSHIP CONTINUATION, NAME, PLACE OF BUSINESS 2.01. CONTINUATION OF PARTNERSHIP; CERTIFICATE OF LIMITED PARTNERSHIP; DETERMINATION OF PARTNERSHIP RIGHTS AND DUTIES. The Partnership was formed on August 17, 1989, pursuant to the provisions of the Delaware RULPA. The Partners hereby execute this Agreement for the purpose of continuing the existence of the Partnership, and setting forth the rights, duties, and relationship of the Partners. If the laws of any jurisdiction in which the Partnership transacts business so require, the General Partner also shall file, with the appropriate office in that jurisdiction, a copy of the Certificate as filed with the Recording Office or any other documents necessary for the Partnership to qualify to transact business and to establish and maintain the Limited Partners' limited liability under the Delaware RULPA. The Partners further agree and obligate themselves to execute, acknowledge, and cause to be filed for record, in the place or places and manner prescribed by law, any amendments to the Certificate as may be required, either by the Delaware RULPA, by the laws of a jurisdiction in which the Partnership transacts business, or by this Agreement, to reflect changes in the information contained therein or otherwise to comply with the requirements of law for the continuation, preservation, and operation of the Partnership as a limited partnership under the Delaware RULPA. 2.02. NAME OF PARTNERSHIP. The name under which the Partnership shall conduct its business is "International Private Satellite Partners, L.P." The business of the Partnership may be conducted under any other name permitted by the Delaware RULPA that is deemed necessary or desirable by the General Partner, in its sole and absolute discretion. The General Partner promptly shall execute, file, and record any assumed or fictitious name certificates required by the laws of the State of Delaware or any state in which the Partnership conducts business and shall take such other action as the General Partner determines are required by the laws of the State of Delaware, or any other state in which the Partnership conducts business, to use the name or names under which the Partnership conducts business. -9- 2.03. PLACE OF BUSINESS. The principal place of business of the Partnership shall be located at 2440 Research Blvd., Suite 400, Rockville, Maryland 20858-3238. The General Partner may hereafter change the principal place of business of the Partnership to such other place or places within the United States as the General Partner may from time to time determine, in its sole and absolute discretion, provided that the General Partner shall give written notice thereof to the Limited Partners within thirty (30) days after the effective date of any such change and, if necessary, shall amend the Certificate in accordance with the applicable requirements of the Delaware RULPA. The General Partner may, in its sole and absolute discretion, establish and maintain such other offices and additional places of business of the Partnership, either within or without the State of Delaware, as it deems appropriate. 2.04. REGISTERED OFFICE AND REGISTERED AGENT. The street address of the registered office of the Partnership shall be 1013 Centre Road, Wilmington, Delaware 19805, and the Partnership's registered agent at such address shall be the Corporation Service Company. ARTICLE III PURPOSES AND POWERS OF PARTNERSHIP 3.01. PURPOSES. The purposes of the Partnership shall be: 3.01(a)to develop international communications satellite facilities and to engage in the business of providing communications and communications-related services; 3.01(b) to acquire, hold, own, operate, lease, manage, maintain, improve, repair, replace, reconstruct, sell, or otherwise dispose of and otherwise use the Partnership Assets; and 3.01(c) to enter into any lawful transaction and engage in any lawful activity incidental to or in furtherance of the foregoing purposes. 3.02. POWERS. The Partnership shall have the power to do any and all acts and things necessary, appropriate, advisable, or convenient for the furtherance and accomplishment of the purposes of the Partnership, including, without limitation, the following: -10- 3.02(a) to borrow (on a secured or unsecured basis) money and issue evidences of indebtedness, and to secure the same by mortgages, deeds of trust, security interests, pledges, or other liens on all or any part of the Partnership Assets; 3.02(b) to secure and maintain insurance against liability or other loss with respect to the activities and assets of the Partnership (including, without limitation, insurance against liabilities under Section 7.09(e)); 3.02(c) to employ or retain such persons as may be necessary or appropriate for the conduct of the Partnership's business, including permanent, temporary, or part-time employees and independent attorneys, accountants, consultants, and contractors; 3.02(d) to acquire, own, hold, maintain, use, lease, sublease, manage, operate, sell, exchange, transfer, or otherwise deal in assets and property as may be necessary or convenient for the purposes of the Partnership; 3.02(e) to incur expenses and to enter into, guarantee, perform, and carry out contracts, agreements, leases, subleases, and commitments of any kind, to assume obligations, and to execute, deliver, acknowledge, and file documents in furtherance of the purposes of the Partnership; 3.02(f) to pay, collect, compromise, arbitrate, litigate, or otherwise adjust, contest, or settle any and all claims or demands of or against the Partnership; 3.02(g) to establish and maintain one or more bank accounts in the name of the Partnership at such banks as may be selected by the General Partner, to deposit in such account(s) the funds received from time to time by or on behalf of the Partnership, and to pay the debts, expenses, and obligations of the Partnership by checks drawn on such accounts and signed by the General Partner or by such other signatory as the General Partner shall designate; 3.02(h) to invest in interest-bearing accounts and short-term investments, including, without limitation, obligations of federal, state, and local governments and their agencies, mutual funds (including money market funds), commercial paper, time deposits, and certificates of deposit of commercial banks, savings banks, or savings and loan associations; and 3.02(i) to engage in any kind of activity and to enter into and perform obligations of any kind necessary to or in connection with, or incidental to, the accomplishment of the purposes of the Partnership, so long as said activities and obligations may be lawfully engaged in or performed by a limited partnership under the Delaware RULPA. -11- 3.03. Limitation on Powers of the Partnership. Notwithstanding any provision in this Agreement, the FCC License shall not be transferred, assigned or disposed of in any manner, voluntarily or involuntarily, including by any transfer of control of any corporation holding that license, to any person except upon a finding by the FCC that the public convenience and necessity will be served thereby. ARTICLE IV TERM OF PARTNERSHIP 4.01. TERM. The Partnership commenced when the Certificate was duly filed with the Recording Office on August 17, 1989, and shall continue until the Termination Date unless extended beyond the Termination Date in accordance with the provisions of Section 12.02, or unless dissolved and liquidated before the Termination Date in accordance with the provisions of Article XII. ARTICLE V CAPITAL 5.01. CAPITAL CONTRIBUTION OF GENERAL PARTNER. 5.01(a) Prior to the effectiveness of this Agreement, the General Partner has contributed to the Partnership certain tangible and intangible assets as set forth on Schedule A. It is acknowledged and agreed that such Capital Contributions of the General Partner have Carrying Value of Thirty Million Dollars ($30,000,000.00). 5.01(b) The General Partner shall not be required to make any contributions to the capital of the Partnership other than as set forth in this Section 5.01. 5.02. [INTENTIONALLY OMITTED.] 5.03. CAPITAL CONTRIBUTIONS OF LIMITED PARTNERS. 5.03(a) Concurrently with or immediately preceding the effectiveness of this Agreement, and pursuant to the terms of a Subscription Agreement executed by each Limited Partner, each Limited Partner listed on Schedule A is making or has made a Capital Contribution in the amount set forth -12- opposite its name on Schedule A. The Capital Contribution of each Limited Partner shall be made in cash, by wire transfer, by certified or cashier's check payable to the order of the Partnership or its designated agent, or in such other form as is approved by the General Partner, and shall be reflected on Schedule A. 5.03(b) Contemporaneously with the execution of this Agreement, each of certain Limited Partners or their Affiliates are entering into a Contingent Communications Satellite Capacity Agreement pursuant to which the Limited Partner or its Affiliate may be required from time to time to make contingent payments to the Partnership. Any such contingent payments and any contingent payments pursuant to a Payment Guarantee Agreement entered into in accordance with the Contingent Communications Satellite Capacity Agreement made by a Limited Partner or its Affiliate will be treated as capital contributions to the Partnership by the Limited Partner to the extent provided in Section 5.01 of the Contingent Communications Satellite Capacity Agreement. 5.03(c) The Limited Partners shall not be required to make any contributions to the capital of the Partnership other than as set forth in this Section 5.03. 5.04. CAPITAL ACCOUNTS. 5.04(a) A separate Capital Account shall be established and maintained for each Partner in all events in accordance with the rules of Regulations section 1.704-1(b)(2)(iv), as amended from time to time. In general, the Capital Account of each Partner shall be credited with: (i) the amount of cash and the Carrying Value of any property (net of liabilities assumed by the Partnership and liabilities to which the contributed property is subject) contributed to the Partnership by such Partner, plus (ii) all Net Income and items of income and gain of the Partnership specially allocated pursuant to Section 6.06 (computed in accordance with Section 5.04(b)) allocated to such Partner pursuant to Sections 6.02(a) and 6.06 (including for purposes of this Section 5.04(a) income and gain exempt from tax); and shall be debited with the sum of: (iii) all Net Losses and items of loss or deduction of the Partnership specially allocated pursuant to Section 6.06 (computed in accordance with Section 5.04(b)) allocated to such Partner pursuant to Sections 6.02(b) and 6.06, and -13- (iv) all cash and the fair market value of any property (net of liabilities assumed by such Partner and liabilities to which such property is subject) distributed by the Partnership to such Partner. Any reference in this Agreement to the Capital Account of a Partner shall be deemed to refer to such Capital Account as the same may be credited or debited from time to time as set forth above. 5.04(b) Except as otherwise required pursuant to the Regulations under section 704 of the Code, for purposes of computing the amount of any item of income, gain, deduction, or loss to be reflected in Capital Accounts, the determination, recognition, and classification of each such item shall be the same as its determination, recognition, and classification of Net Income and Net Loss, provided that: (i) immediately prior to decreasing a Partner's Capital Account to reflect any distribution of a Partnership Asset to him (other than cash), all Partners' Capital Accounts shall be adjusted to reflect the manner in which the Unrealized Gain or Unrealized Loss inherent in such Partnership Asset (that has not been reflected in the Capital Accounts previously) would be allocated among the Partners if there were a taxable disposition of such Partnership Asset for its fair market value (but not less than the amount of any Nonrecourse Debt secured by such Partnership Asset); and (ii) adjustment to a Partner's Capital Account in respect of Partnership income, gain, loss, deduction, and Code section 705(a)(2)(B) expenditures (as described in Regulations section 1.704-1(b)(2)(iv)(i)) (or items thereof) shall be made with reference to the federal tax treatment of such items (and, in the case of book tax items, with reference to the federal tax treatment of the corresponding tax items) at the Partnership level, without regard to any required or elective tax treatment of such items at the Partner level. 5.04(c) A Partner shall be considered to have only one Capital Account. 5.04(d) The General Partner, with the review and concurrence of the Partnership's certified public accountants, shall have the discretion to increase or decrease the Capital Account balances of the Partners to reflect a revaluation of Partnership Assets on the Partnership's books to the extent required or permitted by the Regulations. Any such adjustments must be based on the fair market value of the Partnership Assets as reasonably determined by the General Partner (provided that no Partnership Asset shall be valued at an amount less than any Nonrecourse Debt to which such Partnership Asset is subject on the date of adjustment) and must reflect the manner in which the Unrealized Gain or Unrealized Loss inherent in such Partnership Assets (that has not been reflected in -14- a Capital Account previously) would be allocated among the Partners if there were a taxable disposition of such Partnership Assets for such fair market value on that date. 5.04(e) Subject to Section 5.04(g), any permitted transferee of a Partnership Interest hereunder shall succeed to the Capital Account relating to the Partnership Interest transferred. 5.04(f) Any special basis adjustments resulting from an election by the Partnership pursuant to section 754 of the Code shall not be taken into account for any purpose in establishing and maintaining Capital Accounts for the Partners, except as provided in Regulations section 1.704-1(b)(2)(iv)(m). 5.04(g) If any transfer of a Partner's Partnership Interest causes a termination of the Partnership under section 708(b)(1)(B) of the Code, the Capital Account that carries over to the transferee Partner shall be adjusted in accordance with Regulations section 1.704-1(b)(2)(iv)(e) in connection with the constructive liquidation of the Partnership under Regulations section 1.708-1(b)(1)(iv). Moreover, the constructive reformation of the Partnership will be treated as the formation of a new Partnership, and the Capital Accounts of the Partners in such new Partnership will be determined and maintained accordingly taking into account, for example, the difference between the fair market value of the Partnership Asset and its Carrying Value on the date of such constructive reformation. 5.04(h) The foregoing provisions of this Section 5.04 and any other provisions of the Agreement relating to the maintenance of Capital Accounts are intended to comply with Regulations section 1.704-1(b)(2)(iv) as they currently exist and as they subsequently may be amended, and they shall be interpreted and applied in a manner consistent with such Regulations. In the event the General Partner determines in its reasonable discretion, subject to the review and concurrence of the Partnership's certified public accountants, that it is prudent to modify the manner in which the Capital Accounts, or any debits or credits thereto, are computed in order to comply with such Regulations, the General Partner may make such modification, provided that it is not likely to have a material effect on the amounts distributable to any Partner upon dissolution of the Partnership. 5.05. NEGATIVE CAPITAL ACCOUNTS. Except to the extent the Partners are required or elect to make contributions to the capital of the Partnership under Sections 5.01 and 5.03, no Partner shall be required to pay to the Partnership or to any other Partner any deficit or negative balance which may exist from time to time in such Partner's Capital Account. -15- 5.06. NO INTEREST ON AMOUNTS IN CAPITAL ACCOUNT. No Partner shall be entitled to receive any interest on its outstanding Capital Account balance. 5.07. ADVANCES TO PARTNERSHIP. If any Partner shall advance funds to the Partnership in excess of the amounts required hereunder to be contributed by it to the capital of the Partnership and which do not constitute Unrecovered Contingent Contributions, the making of such advances shall not result in any increase in the amount of such Partner's Capital Account or entitle it to any increase in its Percentage Interest. The amounts of such advances shall be a debt of the Partnership to the Partner and shall be payable or collectible only out of the Partnership Assets in accordance with the terms and conditions upon which such advances are made. Any such advances shall be repayable upon demand and shall bear interest at the rate equal to two (2) percentage points above the "Federal Short-Term Rate" as defined in Code section 1274(d)(1)(C)(i) or the maximum rate permitted under applicable law, whichever is less, calculated upon the outstanding principal balance of such advances as of the first day of each month. 5.08. LIABILITY OF LIMITED PARTNERS. Except as provided in the Delaware RULPA, none of the Limited Partners shall be personally liable for any debts, liabilities, contracts or obligations of the Partnership. A Limited Partner shall be liable only to make payments of such Limited Partner's Capital Contribution pursuant to Section 5.03. Except as provided in the Delaware RULPA, after such Limited Partner's Capital Contribution has been fully paid, no Limited Partner shall be required to make any further capital contributions or to lend any funds to the Partnership. 5.09. RETURN OF CAPITAL. Except upon the dissolution of the Partnership or as may be specifically provided in this Agreement, no Partner shall have the right to demand or to receive the return of all or any part of its Capital Account or its contributions to the capital of the Partnership. -16- ARTICLE VI ALLOCATION OF PROFITS AND LOSSES; DISTRIBUTIONS OF CASH FLOW AND CERTAIN PROCEEDS 6.01. CERTAIN DEFINITIONS. 6.01(a) "Cash Flow" shall mean and refer to the sum of the following: (i) the Net Income (or Net Loss) of the Partnership for the period for which such determination is being made, excluding items of income, gain, loss, or deduction from any Terminating Capital Transaction, increased to reflect any items of income or gain and decreased to reflect any items of loss or deduction required to be specially allocated to one or more Partners pursuant to Sections 6.06(a) through 6.06(e) (collectively, "Specially Allocated Items") increased by (A) the amount of Depreciation and similar deductions in lieu thereof deductible by the Partnership in computing such Net Income or Net Loss or treated as Specially Allocated Items, and any other deductions taken into account in determining Net Income or Net Loss or treated as Specially Allocated Items for such period that are not matched by cash payments during such period, and (B) any receipts of the Partnership for such period that are not either includible in determining Net Income or Net Loss or treated as Specially Allocated Items for such period and the proceeds of any loans to the Partnership but excluding proceeds from any Terminating Capital Transaction; and reduced by (AA) payments from the sum of the foregoing during such period on the principal of any loan to the Partnership or in satisfaction of other obligations to holders of Partnership debt (other than distributions to Partners pursuant to this Article VI) to the extent such payments have not otherwise reduced the Net Income (or increased the Net Loss or been treated as Specially Allocated Items) of the Partnership for such period, (BB) all other expenditures from the sum of the foregoing not financed through any reserves previously set aside by the Partnership for such purposes and not deducted in determining Net Income or Net Loss or treated as Specially Allocated Items for such period, (CC) any amounts included in determining Net Income or Net Loss or treated as Specially Allocated Items for such period that were not received by the Partnership during such period, and (DD) transfers from the sum of the foregoing to the Working Capital Reserve pursuant to Section 7.05; plus (ii) any other funds (including amounts previously set aside in the Working Capital Reserve by the General Partner if and to the extent the General Partner no longer regards such amounts as -17- reasonably needed in connection with the operation of the business of the Partnership) deemed available for distribution and designated as Cash Flow by the General Partner. 6.01(b) "Net Proceeds of a Terminating Capital Transaction" means the proceeds received by the Partnership in connection with a Terminating Capital Transaction, after the payment of all costs and terminating expenses of any kind or nature incurred by the Partnership in connection with such Terminating Capital Transaction. 6.01(c) "Percentage Interests" of the General Partner and the Limited Partners are as set forth on Schedule B, as it may be amended from time to time. 6.02. Allocation of Net Income or Net Loss. Net Income or Net Loss of the Partnership for each Fiscal Year (or portion thereof) during the term of this Agreement shall be allocated to the Partners (after allocating to the Partners any amounts required to be allocated to them with respect to such Fiscal Year (or portion thereof) pursuant to Section 6.06 and after reducing their respective Capital Accounts for all Cash Flow distributed during or with respect to such Fiscal Year under Section 6.04, but before taking into account any allocations of Net Income or Net Loss pursuant to this Section 6.02 with respect to such Fiscal Year (or portion thereof)), as follows: 6.02(a) Subject to Section 6.06 (including Section 6.06(f)), any Net Income of the Partnership with respect to a Fiscal Year shall be allocated to the Partners as follows and in the following order of priority: (i) First: If a Terminating Capital Transaction has occurred, to the Partners, if any, with negative balances in their Capital Accounts, pro rata, in proportion to the negative balances in their respective Capital Accounts until their respective Capital Account balances equal zero; (ii) Second: To the Limited Partners, to the extent of, and in proportion to, the amounts (if any) by which their Unrecovered Contingent Contributions exceed their respective Capital Account balances (after giving effect to the preceding provisions of this Section 6.02(a)); (iii) Third: To the Partners, to the extent of, and in proportion to, the amounts (if any) by which the sum of their Unrecovered Contingent Contributions and their Unrecovered Initial Contributions exceed their respective Capital Account balances (after giving effect to the preceding provisions of this Section 6.02(a)); -18- (iv) Fourth: To the Partners, in the amounts necessary to cause their Capital Account balances (after giving effect to the preceding provisions of this Section 6.02(a)) in excess of the sum of their respective Unrecovered Contingent Contributions (if any) and their respective Unrecovered Initial Contributions (if any) to be in the same proportion as their respective Percentage Interests; and (v) Fifth: The balance of such Net Income, if any, shall be allocated to the Partners, pro rata, in accordance with their Percentage Interests. 6.02(b) Subject to Section 6.06 (including Section 6.06(f), any Net Loss of the Partnership with respect to a Fiscal Year shall be allocated to the Partners as follows and in the following order of priority: (i) First: To the Partners, until the Capital Account balances of the Partners in excess of the sum of their respective Unrecovered Contingent Contributions (if any) and their respective Unrecovered Initial Contributions (if any) are eliminated, with such Net Loss to be allocated first so as to cause all Partners' Capital Accounts in excess of the sum of their respective Unrecovered Contingent Contributions and their respective Unrecovered Initial Contributions (if any) to be in the same proportion as their Percentage Interests, and thereafter in accordance with the Partners' Percentage Interests; (ii) Second: To the Partners, until the Capital Account balances of the Partners in excess of their respective Unrecovered Contingent Contributions (if any) are eliminated, with such Net Loss to be allocated first so as to cause all Partners' Capital Accounts in excess of their respective Unrecovered Contingent Contributions to be in the same proportion as their respective Unrecovered Initial Contributions, and thereafter in the same proportion as the Partners' respective Unrecovered Initial Contributions: (iii) Third: To the Limited Partners, to the extent of, and in proportion to, the amounts of their respective Unrecovered Contingent Contributions; and (iv) Fourth: The balance of such Net Loss, if any, shall be allocated to the Partners in accordance with their Percentage Interests. -19- 6.03. ALLOCATION OF INCOME AND LOSS WITH RESPECT TO PARTNERSHIP INTERESTS TRANSFERRED. If any Partnership Interest is transferred during any Fiscal Year, the Net Income or Net Loss attributable to such Partnership Interest for such Fiscal Year shall be divided and allocated proportionately between the transferor and the transferee based upon the number of days during such calendar year for which each party was the owner of the interest transferred, provided that such method of allocating Net Income and Net Loss with respect to a transferred Partnership Interest is not prohibited under the Code or the Regulations. Notwithstanding any provision herein to the contrary, any Book Tax Gain or Book Tax Loss of the Partnership realized in connection with a Terminating Capital Transaction shall be allocated only to Persons who are holders of Partnership Interests as of the date such Terminating Capital Transaction occurs. 6.04. DISTRIBUTION OF CASH FLOW. 6.04(a) Cash Flow of the Partnership shall be determined for each Fiscal Year. Cash Flow as so determined shall be distributed to the Partners as follows: (i) First: To the Limited Partners, to the extent of, and in proportion to, the amounts of their Unrecovered Contingent Contributions (if any); (ii) Second: To the Partners, to the extent of, and in proportion to, the amounts of their Unrecovered Initial Contributions; and (iii) Third: To the Partners, pro rata, in accordance with their Percentage Interests. 6.04(b) Cash Flow, if any, shall be distributed at least annually within seventy-five (75) days after the end of each Fiscal Year, commencing with the Fiscal Year ending December 31, 1990. Distributions of Cash Flow made within the first seventy-five (75) days of a subsequent Fiscal Year and designated by the General Partner as made with respect to the immediately prior Fiscal Year shall be considered made with respect to such prior Fiscal Year for purposes of Section 6.02 and shall be distributed based upon Unrecovered Contingent Contributions, Unrecovered Initial Contributions, and Percentage Interests as of the last day of such prior Fiscal Year. Cash Flow also may be distributed, in the sole and absolute discretion of the General Partner, at such other time or times during any Fiscal Year in anticipation of the year-end determination thereof, and such distributions shall be subject to year-end adjustment. The Partners agree that, within thirty (30) days after determination by the Partnership that an overpayment was made to any Partner for any Fiscal Year pursuant to this Section 6.04, such Partner shall repay, allow as a credit against future distributions, or make such other adjustments as -20- the General Partner determines to be appropriate to remedy such overpayment. Likewise, appropriate adjustment shall be made to remedy any underpayment. 6.05. DISTRIBUTION OF PROCEEDS FROM TERMINATING CAPITAL TRANSACTIONS. 6.05(a) The Net Proceeds of a Terminating Capital Transaction and any other remaining assets of the Partnership to be distributed to the Partners in connection with dissolution and liquidation of the Partnership pursuant to Article XII, after the payment of, or provision for, all debts and liabilities of the Partnership to all creditors of the Partnership (including, without limitation, all amounts owing to a Partner under this Agreement (other than this Article VI) or under any other agreement between the Partnership and a Partner), the payment of expenses of liquidation of the Partnership, and the establishment of a reasonable reserve (including, without limitation, an amount estimated by the General Partner to be sufficient to pay any amount reasonably anticipated to be required pursuant to Section 7.09), shall be distributed (i) if such dissolution occurs pursuant to Section 12.01(h), by distributing to the General Partner the property contributed by it to the Partnership as listed on Schedule A of this Agreement, and distributing all remaining Partnership Assets to the Limited Partners pro rata in proportion to the amounts of their respective Capital Contributions as set forth on Schedule A of this Agreement, and (ii) if such dissolution occurs under any other circumstances, to the Partners as follows: (A) First: To the Limited Partners, to the extent of, and in proportion to, the amounts of their Unrecovered Contingent Contributions (if any); (B) Second: To the Partners, to the extent of, and in proportion to, the amounts of their Unrecovered Initial Contributions; and (C) Third: To the Partners, pro rata, in accordance with their Percentage Interests. Distributions pursuant to this Section 6.05(a) shall be made by the end of the Fiscal Year in which such Terminating Capital Transaction occurs or, if later, within ninety (90) days of such Terminating Capital Transaction. 6.05(b) Notwithstanding any provision in this Section 6.05 to the contrary, in the event that the Net Proceeds of the Terminating Capital Transaction are to be paid to the Partnership in more than one installment, each such installment (including any interest thereon) shall be allocated among the Partners in accordance with their respective "Installment Percentages". The "Installment Percentage" of each Partner shall be (i) the aggregate amount of cash that would have been distributed to that Partner under this Section 6.05 had the Net Proceeds of the Terminating Capital Transaction been paid in one lump sum -21- divided by (ii) the total Net Proceeds that would have been distributed to all of the Partners under this Section under such circumstances. 6.06. SPECIAL ALLOCATION RULES. The following allocation rules shall apply notwithstanding the provisions of Section 6.02, and the provisions of Section 6.02 shall be applied only after giving effect to the following rules. In the event there is a conflict between any of the following rules, the earlier listed rule shall govern. 6.06(a) If in any Fiscal Year there is a net increase during such year in the amount of Minimum Gain attributable to Partner Nonrecourse Debts, the Partner(s) that bear the economic risk of loss with respect thereto (within the meaning of Regulations section 1.704-1T(b)(4)(iv)(k)(1)) shall be specially allocated items of Partnership loss or deduction in an amount equal to the excess of (i) the amount of such net increase, over (ii) the aggregate amount of any distributions during such Fiscal Year to such Partner(s) of the proceeds of such debt that are allocable to such increase in Minimum Gain. Items to be so allocated shall be determined in accordance with Regulations section 1.704-1T(b)(4)(iv)(h). 6.06(b) If in any Fiscal Year there is a net decrease in the Partnership's Minimum Gain attributable to Nonrecourse Liabilities during such Fiscal Year, each Partner shall be specially allocated items of Partnership income and gain for such Fiscal Year (and, if necessary, for subsequent Fiscal Years) in proportion to, and to the extent of, an amount equal to the greater of the following: (i) the portion of such Partner's share of the net decrease in such Minimum Gain during such Fiscal Year (as such share is determined pursuant to Regulations section 1.704-1T(b)(4)(iv)(f)) that is allocable to the disposition of Partnership property subject to one or more Nonrecourse Liabilities (as such allocable portion is determined pursuant to Regulations section 1.704-1T(b)(4)(iv)(e)(2)); or (ii) such Partner's Excess Negative Balance at the end of such Fiscal Year. It is the intent of the Partners that items to be so allocated shall be determined and the allocations made in accordance with Regulations section 1.704-1T(b)(4)(iv)(e). 6.06(c) If in any Fiscal Year there is a net decrease in the Partnership's Minimum Gain attributable to Partner Nonrecourse Debts during such Fiscal Year, the Partner(s) that bear the economic risk of loss with respect to such Partner Nonrecourse Debts (within the meaning of Regulations section 1.704-1T(b)(4)(iv)(k)(1)) shall be specially allocated items of Partnership income and gain for such Fiscal Year (and, if necessary, for subsequent Fiscal Years) in an amount equal to the greater of the following: -22- (i) the net decrease in such Minimum Gain during such Fiscal Year that is allocable to the disposition of Partnership property subject to one or more Partner Nonrecourse Debts (as such allocable portion is determined pursuant to Regulations section 1.704-1T(b)(4)(iv)(h)(6)); or (ii) such Partner's (Partners') Excess Negative Balance at the end of such Fiscal Year. It is the intent of the Partners that items to be so allocated shall be determined and the allocation made in accordance with Regulations section 1.704-1T(b)(4)(iv)(h)(6). 6.06(d) For purposes of allocating Partnership Nonrecourse Liabilities among the Partners pursuant to Regulations section 1.752-1T(a)(2)(i), the respective interests of the Partners in Partnership profits shall be equal to their respective Percentage Interests as of the date with respect to which the determination is made. 6.06(e) No Net Loss or Partnership deductions for any Fiscal Year shall be allocated to any Partner to the extent such allocation would cause or increase an Excess Negative Balance in such Partner's Capital Account. In the event a Partner receives with respect to a Fiscal Year an adjustment, allocation, or distribution (whether or not expected) described in subparagraphs (4), (5), or (6) of Regulations section 1.704-1(b)(2)(ii)(d) that causes or increases an Excess Negative Balance in such Partner's Capital Account, such Partner shall be specially allocated for such Fiscal Year (and if necessary, in subsequent Fiscal Years) items of income and gain in an amount and manner sufficient to eliminate such Excess Negative Balance as promptly as possible as provided in Regulations section 1.704-1(b)(2)(ii)(d). 6.06(f) For purposes of determining the balances in the Capital Accounts of the Partners in order to allocate Net Income or Net Loss pursuant to Section 6.02, each Partner's Capital Account balance shall be deemed to include any amount that such Partner is deemed to be obligated to restore pursuant to the penultimate sentences of sections 1.704-1T(b)(iv)(f) and 1.704-1T(b)(4)(iv)(h)(5) of the Treasury Regulations (determined after taking into account any changes during such year in Minimum Gain). 6.06(g) Notwithstanding the provisions of Section 6.02, in the event that any fees, interest, or other amounts paid to a Partner, or an Affiliate of a Partner, pursuant to this Agreement, or any agreement between the Partnership and the Partner or Affiliate providing for the payment of such amounts, and deducted by the Partnership for federal or other income tax purposes, whether in reliance on sections 162, 163, 707(a), and/or 707(c) of the Code or otherwise, are disallowed as deductions to the Partnership on its applicable income tax return for the Fiscal Year in or with respect to which such amounts are claimed, and are treated instead as Partnership distributions, then there shall be allocated to the Partner who received (or whose Affiliate received) such payments, prior to the -23- allocations pursuant to Sections 6.02(a) and 6.02(b), an amount of gross income of the Partnership for the Fiscal Year in or with respect to which such claimed deduction was disallowed equal to the amount of such deduction that was so disallowed and treated as a Partnership distribution. 6.06(h) Notwithstanding the provisions of Section 6.02, in the event that the Partnership is a party to an agreement with a Partner or an Affiliate of a Partner and the Partnership is deemed to have taxable income in respect of such agreement in excess of the amount payable to the Partnership by such Partner or Affiliate thereunder, then: (i) there shall be allocated to the Partner who is a party (or whose Affiliate is a party) to such agreement, prior to the allocations pursuant to Sections 6.02(a) and 6.02(b), an amount of gross income of the Partnership for the Fiscal Year in or with respect to which the Partnership is deemed to have such additional income equal to the amount of such additional income; and (ii) the Partnership shall be deemed to have distributed to such Partner, in addition to all other amounts distributable hereunder, during such Fiscal Year an additional amount of cash equal to the amount of such additional income. 6.06(i) Notwithstanding the provisions of Section 6.02, in the event that the Partnership is a party to an agreement with a Partner or an Affiliate of a Partner and the Partnership is deemed by any applicable taxing authority to have a tax deduction in respect of either amounts deemed payable by the Partnership under such agreement or amounts distributable to the Partner under this Agreement, then: (i) there shall be allocated to the Partner who is the party (or whose Affiliate is a party) to such agreement or who is to receive the amount distributable under this Agreement, prior to the allocations pursuant to Sections 6.02(a) and 6.02(b), an amount of deductions of the Partnership for the Fiscal Year in or with respect to which the Partnership is deemed to have such additional deduction equal to the amount of such additional deduction; and (ii) the Partnership shall be deemed to have received from such Partner, in addition to all other amounts contributed hereunder, an additional contribution of cash equal to the amount of such additional deduction. 6.06(j) Except as otherwise specifically provided in this Agreement or applicable Treasury Regulations and as provided in the next sentence below, the distributive share of a Partner of each specific deduction and item of income, gain, loss, and credit of the Partnership for federal income tax purposes for -24- any Fiscal Year and each other item taken into account in computing Net Income or Net Loss for such Fiscal Year (including, without limitation, income exempt from federal income tax and expenditures described in section 705(a)(2)(B) of the Code or treated as such expenditures in the Regulations under section 704(b) of the Code) shall be the same as such Partner's proportionate share (determined as set forth in Section 6.02) of Net Income or Net Loss, as the case may be, for such Fiscal Year, provided that if there is not Net Income or Net Loss for such Fiscal Year, all such items shall be allocated among the Partners in accordance with their respective Percentage Interests. Notwithstanding the foregoing, (i) any income recognized pursuant to sections 1245 and 1250 of the Code with respect to a Fiscal Year and allocated to the Partners pursuant to Section 6.02 shall be allocated, to the extent possible, to the Partners to whom (or to whose predecessors in interest) the prior depreciation deductions giving rise to such income or recapture were allocated, provided that the amount of income allocable to a Partner pursuant to this clause with respect to a Fiscal Year shall not exceed the total amount of income otherwise allocable to such Partner under Sections 6.02 and 6.06 with respect to such Fiscal Year, and (ii) any foreign tax credits for any Fiscal Year shall be allocated to the Partners in accordance with their respective Percentage Interests at the time the foreign tax giving rise to such credit was paid. 6.06(k) It is the intent of the Partners that each Partner's distributive share of income, gain, loss, and credit (or items thereof) shall be determined and allocated in each Fiscal Year in accordance with this Article VI to effect the distributions (including distributions of proceeds of Terminating Capital Transactions) in the order of priority contemplated by Section 6.04(a) to the extent permitted by Code section 704(b) and the applicable Regulations. In order to achieve the contemplated distributions provided for in this Article VI, the General Partner is authorized and directed to allocate income, gain, loss, and credit (or items thereof) with respect to any Fiscal Year in a manner different from that otherwise provided for in this Article VI if, and to the extent that, (i) an allocation of income, gain, loss, or credit (or items thereof) in the manner provided for in this Article VI would not achieve the intended economic result desired by the Partners or (ii) based on the advice of the Partnership's counsel or accountants, an allocation provided for in this Article VI is unlikely to be respected under Code section 704(b) and the alternative allocation to be made by the General Partner is reasonably likely to be respected (referred to as a "new allocation"). The General Partner is authorized to make a new allocation under this Section 6.06(k) only after having determined both (i) that the new allocation either more accurately effects all distributions in the order of priority contemplated by the Partners as set forth in Section 6.04(a) or is not inconsistent with those distributions and (ii) that the new allocation will not have a material adverse effect on the economic interests of the Partners (including, without limitation, causing them to recognize income that they would not otherwise be required to recognize or to lose the benefit of deductions that they otherwise would have been permitted to recognize). New allocations by the General Partner in accordance with this Section 6.06(k) shall not require the consent of the other Partners. -25- 6.07. CONTRIBUTED PROPERTY; REVALUATIONS PURSUANT TO SECTION 704(B) REGULATIONS. 6.07(a) In the event that any property contributed to the Partnership or revalued pursuant to the provisions of Regulations section 1.704-1(b)(2)(iv)(f) has a Carrying Value that differs from the Adjusted Basis of such property at the time of its contribution or revaluation, any income, depreciation, gain, or loss with respect to such property shall, solely for tax purposes, be allocated among the Partners in a manner that takes such difference into account and is consistent with Code section 704(c), the Regulations thereunder, and Regulations section 1.704-1(b)(2)(iv)(f)(4), 1.704-1(b)(2)(iv)(g), and 1.704-1(b)(4)(i). The allocations made pursuant to this Section 6.07 shall be made solely for tax purposes and shall not affect or in any way be taken into account in computing any Partner's Capital Account or share of Net Income, Net Loss, Book Tax Gain, Book Tax Loss, or other allocations or distributions under this Agreement. 6.07(b) The Partners acknowledge that the Carrying Value of the assets contributed to the Partnership by the General Partner pursuant to Section 5.01(a) (the "Contributed Assets") exceeds the Adjusted Basis of such assets at the time of their contribution to the Partnership (such excess being referred to as the "Built-in Gain"). The Adjusted Basis of such assets shall be determined and agreed to between the General Partner and the Review Committee (as defined in Section 7.11). Without limiting Section 6.07, the General Partner acknowledges that it will be required to be specially allocated income of the Partnership, not later than the time at which the Contributed Assets are disposed of by the Partnership, an amount of taxable income and gain equal to the lesser of (i) the Built-in Gain, reduced by any depreciation and/or amortization deductions with respect to the Contributed Assets specially allocated to Partners other than the General Partner pursuant to Section 704(c) of the Code, the Regulations thereunder, or Regulations sections 1.704-1(b)(2)(iv)(f), 1.704-1(b)(2)(iv)(g), or 1.704-1(b)(4)(i), which special allocation of depreciation and/or amortization shall be made to the extent required by the Code and the Regulations thereunder notwithstanding any provision of this Agreement, or (ii) the taxable gain recognized by the Partnership in connection with the disposition of the Contributed Assets. 6.08. TAXES. 6.08(a) The General Partner is authorized and directed to cause the Partnership to withhold from or pay on behalf of any Partner the amount of federal, state, local or foreign taxes that the General Partner, after consultation with such Partner, reasonably believes the Partnership is required to withhold or pay with respect to any amount distributable or allocable to such Partner pursuant to this Agreement, including, without limitation, any taxes required to be paid by the Partnership pursuant to sections 1441, 1442, 1445, or 1446 of the Code and any taxes imposed by any taxing jurisdiction on the Partnership as an entity. Without limiting the foregoing, the General Partner shall cause the Partnership to withhold -26- (and remit to the appropriate governmental authority) from amounts otherwise distributable to a Partner any taxes that such Partner notifies the General Partner in writing should be withheld, which notice shall specifically set forth, inter alia, the rate at which tax should be withheld and the name and address to which amounts withheld should be remitted. Any amount paid on behalf of a Partner pursuant to this Section 6.08 (except to the extent withheld from an amount that otherwise would have been distributed by the Partnership to such Partner) shall constitute an advance by the Partnership to such Partner that shall be secured by the Partner's Partnership Interest. An advance to a Partner pursuant to this Section 6.08(a) shall be repaid to the Partnership, in whole or in part, as determined by the General Partner in its sole discretion, either (i) out of any distributions from the Partnership which the Partner may be or become entitled to receive, or (ii) by the Partner in cash upon demand by the Partnership. Any such advance shall bear interest at the rate equal to two (2) percentage points above the "Federal Short-Term Rate" as defined in Code section 1274(d)(1)(C)(i) or the maximum rate permitted under applicable law, whichever is less, calculated upon the outstanding principal balance of such advance as of the first day of each month. 6.08(b) The Partners agree to cooperate fully with all efforts of the Partnership to comply with its tax withholding and information reporting obligations and to provide the Partnership with such information as the General Partner may reasonably request from time to time in connection with such obligations. Without limiting the foregoing, each Partner shall complete a Certification of Non-foreign Status (to the extent applicable) in such form as may be reasonably requested by the General Partner (or shall provide such other information as the General Partner may require) at the time that it executes this Agreement, and each permitted transferee of a Partnership Interest pursuant to Article X, whether or not such transferee is admitted to the Partnership as a Partner, shall complete such Certification at the time of its acquisition of an interest in the Partnership. Any Partner or permitted transferee of a Partnership Interest that does not provide such a Certification with this Section 6.08(b) shall be liable to the Partnership for the amount of any taxes, penalties, and interest for which the Partnership becomes liable as a result of any such failure, provided that the foregoing shall not relieve the General Partner of responsibility for withholding (and remitting to the appropriate governmental authority) from amounts otherwise distributable to a Partner any amount that such Partner specifically notified the General Partner pursuant to Section 6.08(a) should be so withheld and remitted. -27- ARTICLE VII MANAGEMENT 7.01. MANAGEMENT AND CONTROL OF PARTNERSHIP BUSINESS. 7.01(a) Except as otherwise expressly provided or limited by the provisions of this Agreement, the General Partner shall have full, exclusive, and complete discretion in the management and control of the business and affairs of the Partnership, to make all decisions affecting the business and affairs of the Partnership, and to take all such actions as it deems necessary or appropriate to accomplish the purposes of the Partnership as set forth herein. The General Partner shall use its best efforts to continue the Partnership's existence for the term specified in Section 4.01 (unless the Partnership is previously dissolved or wound-up pursuant to this Agreement) and to carry out the purposes of the Partnership and shall devote to the management of the business and affairs of the Partnership such time as shall be required for the operation thereof. Except as otherwise expressly set forth in this Agreement, the Limited Partners shall not have any authority, right, or power to bind the Partnership, or to manage or control, or to participate in the management or control of, the business and affairs of the Partnership. 7.01(b) The General Partner shall be under a fiduciary duty and obligation to conduct the affairs of the Partnership in the best interests of the Partnership and of the Limited Partners, including the safekeeping of all Partnership funds and assets (whether or not in the immediate possession or control of the General Partner) and the use thereof for the exclusive benefit of the Partnership. 7.01(c) The General Partner shall at all times conduct its affairs and the affairs of the Partnership in such a manner that no Limited Partner or Affiliate of any Limited Partner shall have any personal liability with respect to any Partnership indebtedness (provided, however, that nothing herein shall be construed as requiring that the General Partner attempt to control or influence the conduct of any Limited Partner even if the General Partner believes that actions of the Limited Partner would cause the Limited Partner to have such personal liability). The General Partner shall use its best efforts, in the conduct of the Partnership's business, to put all suppliers and other Persons with whom the Partnership does business on notice that the Limited Partners and their Affiliates are not liable for Partnership obligations, and all agreements to which the Partnership is a party shall include a statement to the effect that the Partnership is a limited partnership organized under the laws of Delaware. 7.01(d) The General Partner shall use its best efforts to assure that in correspondence, contracts, agreements and other documents relating to the Partnership (1) it shall plainly appear, or be so stated, that the Partnership is a -28- limited partnership organized under the laws of Delaware, (2) the full name of the Partnership shall at all times be used and (3) wherever appropriate it shall be expressly stated that, for purposes of determining the liability of the Limited Partners, the laws of Delaware shall be controlling. 7.01(e) The General Partner shall cause the Partnership to be protected by adequate public liability, property damage and other insurance, including insurance necessary to continue and conduct the business of the Partnership in a reasonable and prudent manner. 7.01(f) The General Partner warrants that it will maintain in full force and effect the Satellite Authorizations. The General Partner has assigned to the Partnership the FCC License, and shall use its best efforts to cause the Partnership to maintain the Satellite Authorizations in full force and effect. 7.01(g) The General Partner shall take all necessary actions to (x) successfully assure the completion of the International Telecommunications Union procedures with respect to other satellite systems for all Partnership services prior to the launch of each of the Partnership's satellites as well as, at an appropriate time, for any other Partnership service that may be proposed within the lifetime of such satellites, and (y) obtain all other Satellite Authorizations. 7.01(h) The General Partner shall take all necessary actions to enforce the provisions of the Satellite Construction Contract for the benefit of the Partnership and all of the Partners (subject to any requirements set forth in the credit documents with respect to the financing of the Partnership's proposed satellites). 7.01(i) The General Partner shall not, either on its own behalf or on behalf of the Partnership, enter into contracts or agreements with any Person or Persons which conflict with or prejudice in any material respect the rights of the Limited Partners under the provisions of this Agreement, the Communications Satellite Capacity Agreements, Contingent Communications Satellite Capacity Agreements or Capacity Option Agreements, or any other contract or agreement between the Partnership and a Partner, and warrants that it has not done so as of the date hereof. 7.02. POWERS OF GENERAL PARTNER. Subject to the limitations of Section 7.04 and any other express limitation on the authority of the General Partner set forth herein, the General Partner (acting on behalf of the Partnership) shall have the right, power, and authority, in the management of the business and affairs of the Partnership, to do or cause to be done any and all acts, at the expense of the Partnership, deemed by the General Partner to be necessary or appropriate to effectuate the purposes of the Partnership. Subject to the provisions of this Agreement, all decisions made and -29- actions taken on behalf of the Partnership by the General Partner shall be binding upon the Partnership (provided, however, that the powers of the General Partner shall not be construed as permitting the General Partner to directly bind any Limited Partner in such Limited Partner's capacity as an entity separate from the Partnership). The power and authority of the General Partner pursuant to this Agreement shall be liberally construed to encompass all acts and activities in which a limited partnership may engage under the Delaware RULPA. The power and authority of the General Partner shall include, without limitation, the power and authority on behalf of the Partnership: 7.02(a) to do any acts or things that the Partnership has power to do pursuant to Section 3.02; 7.02(b) to purchase and maintain, in its sole and absolute discretion (subject to any obligation under Section 7.01(e) hereof) and at the expense of the Partnership, liability, indemnity, and any other insurance, sufficient to protect the Partnership, the General Partner, their respective officers, directors, employees, agents, and Affiliates, or any other Person, from those liabilities and hazards which may be insured against in the conduct of the business and the management of the business and affairs of the Partnership; 7.02(c) to make, execute, deliver, perform, assign, acknowledge, and file on behalf of the Partnership any and all documents or instruments of any kind which the General Partner may deem necessary or appropriate in carrying out the purposes of the Partnership, including, without limitation, powers of attorney, agreements of indemnification, sales contracts, deeds, options, loan obligations, mortgages, deeds of trust, notes, documents, or instruments of any kind or character, and amendments thereto (and no person, firm or corporation dealing with the General Partner shall be required to determine or inquire into the authority or power of the General Partner to bind the Partnership or to execute, acknowledge, or deliver any and all documents in connection therewith); 7.02(d) to possess and exercise any additional rights and powers of a general partner under the partnership laws of Delaware (including, without limitation, the Delaware RULPA) and any other applicable laws, to the extent not inconsistent with this Agreement. 7.03. POWER OF ATTORNEY. 7.03(a) In furtherance of the foregoing, each of the Limited Partners hereby irrevocably makes, constitutes and appoints and empowers the General Partner, and the President, any Vice President and the Treasurer of the General Partner, and any successor of the General Partner as general partner of the Partnership acting singly or jointly, in each case with full power of substitution, such Limited Partners true and lawful agent and attorney-in-fact to negotiate, -30- execute, acknowledge, deliver and file, on behalf of each such Limited Partners, any and all of the following: (i) all counterparts of this Agreement, and any amendment or restatement thereof, including all certificates and instruments, which the General Partner deems appropriate to form, qualify, or continue the Partnership as a limited partnership (or a partnership in which the Limited Partners will have limited liability comparable to that provided by the Delaware RULPA) in the jurisdictions in which the Partnership may conduct business or in which such formation, qualification, or continuation is, in the opinion of the General Partner, necessary or desirable to protect the limited liability of the Limited Partners; (ii) all amendments to this Agreement adopted in accordance with Section 13.09 and all instruments which the General Partner deems appropriate to reflect a change or modification of the Agreement in accordance with the terms hereof; or (iii) all documents or instruments which the General Partner deems appropriate to reflect the admission of a Partner in accordance with this Agreement, the dissolution of the Partnership (including a certificate of cancellation), sales or transfers of Partnership property, sales or transfers of Partnership Interests, or the initial amount or increase or reduction in amount of any Partner's Capital Contribution or reduction in any Partner's Capital Account in accordance with the terms of this Agreement. 7.03(b) The appointment by all Limited Partners of the General Partner (and any successor General Partner), and the President, any Vice President and the Treasurer of the General Partner as attorney-in-fact shall be deemed to be a power coupled with an interest, in recognition of the fact that each of the Limited Partners under this Agreement will be relying upon the power of the General Partner to act as contemplated by this Agreement in any filing and other action by it on behalf of the Partnership, and shall survive, and not be affected by the subsequent bankruptcy, death, incapacity, disability, adjudication of incompetence or insanity, or dissolution of any Person hereby giving such power and the transfer of all or any part of the Partnership Interest of such Person; provided, however, that in the event of the transfer by a Limited Partner of all of such Limited Partner's Partnership Interest, the foregoing power of attorney of a transferor Partner shall survive such transfer only until such time as the transferee shall have been admitted to the Partnership as a Limited Partner and all required documents and instruments shall have been duly executed, filed, and recorded to effect such substitution. -31- 7.04. LIMITATION ON AUTHORITY OF GENERAL PARTNER. Notwithstanding anything in this Agreement to the contrary, but subject to the provisions of Section 7.11(b) herein, the General Partner shall not, without the prior written consent of the Limited Partners holding a majority of the total Percentage Interests then held by the Limited Partners, cause or permit the Partnership to: (a) dissolve and wind-up the affairs of the Partnership, except as provided in Article XII; (b) merge or consolidate with any other partnership or other entity; (c) sell, assign, lease or otherwise dispose of a material portion of the Partnership Assets other than in the ordinary course of the Partnership's business (in any transaction or series of related transactions); (d) cause the Partnership to incur (in any transaction or series of related transactions) any indebtedness in excess of $25 million; provided, however, that this provision shall not in any way restrict the General Partner's authority to cause the Partnership to incur indebtedness in connection with the initial financing (or refinancing in accordance with Section 7.04(e)) of the Partnership's proposed satellite system; (e) cause the Partnership to refinance (in any transaction or series of related transactions) any indebtedness of the Partnership in excess of $50 million other than on terms (taken as a whole) which are no less favorable to the Partnership than the terms (taken as a whole) of the indebtedness being refinanced; in making the determination of whether such terms are no less favorable to the Partnership, the General Partner may, but shall not be required to, obtain the opinion of an internationallyrecognized investment banker engaged by the Partnership, which opinion shall be conclusive for purposes of this subsection; (f) enter into a material agreement, or use any material portion of the Partnership Assets in a manner, which is not consistent with the purposes of the Partnership as set forth in Section 3.01; or (g) commingle the funds or accounts of the Partnership with any funds or accounts of the General Partner or any of its Affiliates. -32- 7.05. WORKING CAPITAL RESERVE. The General Partner shall have the right to set up a Working Capital Reserve and to set aside therein such Partnership funds as the General Partner determines to be reasonable in connection with the operation of the business of the Partnership, including, without limitation, funds for the acquisition, improvement, development, and replacement of property, for the repayment of loans and other indebtedness, for security deposits and other necessary escrows and deposits, and for meeting other reasonably anticipated expenses. The amount of funds set aside in the Working Capital Reserve during any Fiscal Year shall not exceed the amount provided in the Ten Year Projection or most recent Approved Budget, as applicable, as operating expenses for the immediately following Fiscal Year. Any funds set aside for such Working Capital Reserve may be invested by the General Partner with a view to the appropriate degree of safety of and return on such invested funds, and such funds shall not be available for current distribution under Section 6.04; provided, however, some or all of such funds may subsequently be made available for distribution pursuant to Section 6.04 should the General Partner, in its sole and absolute discretion, so elect. 7.06. OTHER ACTIVITIES OF PARTNERS. Except as otherwise provided is this Section 7.06, any Limited Partner or Affiliate thereof may have other business interests or may engage in other business ventures of any nature or description whatsoever, whether presently existing or hereafter created, and may compete, directly or indirectly, with the business of the Partnership. The General Partner shall not engage in any business other than management of the business and affairs of the Partnership without the prior written unanimous consent of the Limited Partners. Neither the General Partner nor Orion Network Systems, Inc. may have other business interests or may engage in other business ventures which compete, directly or indirectly, with the business of the Partnership; provided, however, that (i) this provision shall not prohibit Orion Network Systems, Inc. from having business interests or engaging in any business (x) in which the Partnership is not then legally permitted to engage or in which the Partnership is not then able technically to engage, or (y) which is permitted by Section 7.07(x) to be engaged in by an Affiliate of the General Partner; and (ii) in the event that a business interest of Orion Network Systems, Inc. or a business venture in which it is engaged competes, directly or indirectly, with the business of the Partnership as a result of the Partnership entering into a new business or taking other actions, Orion Network Systems, Inc. shall offer to sell such business interest or its interest in such business venture within a reasonable period of time to the Partnership, which, at the option of the Partnership, pursuant to the approval of an LP Majority, may purchase such business interest or interests in such business venture, at fair market value (as determined by a mutually agreed appraiser). If the Partnership declines such offer, Orion Network Systems shall exercise its best efforts to sell such business interest or interests in such business venture to a third party, and, if it is unable to do so, may continue to hold such -33- business interest or engage in such business venture. No Limited Partner or Affiliate thereof shall incur any liability to the Partnership as a result of such Limited Partner's or Affiliate's pursuit of such other business interest, ventures and competitive activity, and nothing in this Agreement shall be construed as granting the Partnership or the other Partners any right to participate in such other business ventures or to receive or share in any income or profits derived therefrom. 7.07. TRANSACTIONS WITH GENERAL PARTNER OR AFFILIATES. The Partnership shall not be permitted in the normal course of its business to enter into transactions with the General Partner or with any Affiliate of the General Partner or with any Affiliate of an Affiliate of the General Partner without the written consent of an LP Majority, except that the Partnership shall be permitted to enter into (w) Communications Satellite Capacity Agreements, Contingent Communications Satellite Capacity Agreements and Capacity Option Agreements with any Affiliate of the General Partner, (x) other contracts, agreements or transactions with any Affiliate of the General Partner if each Limited Partner is or becomes, or has been or is offered the opportunity to become, a party to such contract, agreement or transaction (or a contract, agreement or transaction containing substantially similar terms, including any contract, agreement or transaction where the amounts of services, property, cash or other items to be provided to Limited Partners are pro rata based upon Percentage Interests), (y) contracts, agreements or transactions with any Affiliate of the General Partner relating to the provision of management or similar support by such Affiliate to the General Partner within the limits of the then-applicable budget of the Partnership, to the extent that the provision of such services by the Affiliate does not conflict with the duty of the General Partner to directly manage the affairs of the Partnership, and (z) contracts, agreements or transactions with any Affiliate of the General Partner relating to the provision of marketing or sales representation or operations services within the United States. 7.08. LIABILITY OF GENERAL PARTNER AND AFFILIATES TO PARTNERSHIP AND LIMITED PARTNERS. Except as otherwise expressly agreed in writing by the Partners, neither the General Partner nor any of its Affiliates, nor any of their respective partners, officers, directors, employees, or agents, shall be liable to the Partnership or to the Limited Partners for any losses sustained or liabilities incurred as a result of any act or omission of any of such Persons, so long as the conduct of such Person did not constitute bad faith, fraud, gross negligence, willful misconduct or breach of fiduciary duty (either as interpreted under Delaware law, this Agreement or any other contract between the Partnership and Limited Partners generally). -34- 7.09. INDEMNIFICATION OF GENERAL PARTNER AND LIMITED PARTNERS. 7.09(a) The Partnership shall indemnify and hold harmless the General Partner and its Affiliates and their respective partners, officers, directors, employees and agents (individually, in each case, an "Indemnitee") to the fullest extent permitted by law from and against any and all losses, claims, demands, costs, damages, liabilities (joint or several), expenses of any nature (including attorneys' fees and disbursements), judgments, fines, settlements, and other amounts arising from any and all claims, demands, actions, suits, or proceedings, whether civil, criminal, administrative or investigative, in which the Indemnitee may be involved or threatened to be involved as a party or otherwise, arising out of or incidental to the business or activities of or relating to the Partnership, regardless of whether the Indemnitee continues to be the General Partner or an Affiliate thereof or one of their respective partners, officers, directors, employees and agents at the time any such liability or expense is paid or incurred, if (x) a final, non-appealable judgment favorable to the Indemnitee(s) is entered in a court of competent jurisdiction, or (y) pursuant to a request by any Limited Partner or the General Partner for such a determination by an Independent Party, the Independent Party determines with regard to the Indemnitee's conduct which gave rise to or resulted in any actual or threatened action, case, complaint or other proceeding which was the subject of a final settlement, that had the Indemnitee(s) not settled the dispute at issue, they would have received a final, non-appealable judgment in their favor. 7.09(b) Expenses incurred by an Indemnitee in defending any claim, demand, action, suit, or proceeding subject to this Section 7.09, other than any such proceeding in which any claim is made by a Limited Partner against the Indemnitee, shall, from time to time and upon request by the Indemnitee, be advanced by the Partnership prior to the final disposition of such claim, demand, action, suit, or proceeding, upon receipt by the Partnership of an undertaking by or on behalf of the Indemnitee to repay such amount promptly, with interest calculated at the rate equal to two (2) percentage points above the "Federal Short-Term Rate" as defined in Code ss. 1274(d)(1)(C)(i) or the maximum rate permitted under applicable law, whichever is less, calculated upon the outstanding principal balance of such amount, if it shall be determined in a judicial proceeding or a binding arbitration or by the Independent Party pursuant to Section 7.09(a) that such Indemnitee is not entitled to be indemnified as authorized in this Section 7.09. In the event that an Indemnitee does not receive from the Partnership advances on expenses pursuant to this Section 7.09(b) because a Limited Partner asserted a claim against the Indemnitee in the proceeding at issue, and the Indemnitee is entitled to indemnification pursuant to Section 7.09(a), the Partnership shall reimburse the Indemnitee for all expenses incurred in defending the proceeding, plus interest at the rate equal to two (2) percentage points above the "Federal Short-Term Rate" as defined in Code ss. 1274(d)(1)(C)(i), or the maximum rate permitted under applicable law, whichever is less. -35- 7.09(c) The indemnification provided by this Section 7.09 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, vote of the Partners, as a matter of law or equity, or otherwise, both as to an action in the Indemnitee's capacity as the General Partner or an Affiliate thereof, and as to an action in another capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns, and administrators of the Indemnitee. 7.09(d) An Indemnitee pursuant to this Section 7.09 shall not be denied indemnification in whole or in part under this Section 7.09 or otherwise by reason of the fact that the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted or not expressly prohibited by the terms of this Agreement. 7.09(e) The General Partner including its Affiliates (other than any executive officer or director of the General Partner) shall fully indemnify and hold harmless the Limited Partners and their Affiliates and their respective partners, officers, directors, employees and agents to the fullest extent permitted by law from and against any and all losses, claims, demands, costs, damages, liabilities (joint or several), expenses of any nature (including attorneys' fees and disbursements), judgments, fines, settlements, and other amounts including, but not limited to, those arising directly or indirectly from or relating to any civil, criminal, administrative or investigative proceeding, arising out of or incidental to conduct by the General Partner or one of its Affiliates with respect to the business or activities of or relating to the Partnership which constituted fraud, bad faith, gross negligence, willful misconduct or breach of fiduciary duty (either as interpreted under Delaware law, this Agreement or any other contract between the Partnership and Limited Partners generally). 7.09(f) The provisions of this Section 7.09 are for the benefit of the indemnitees as set forth herein and shall not be deemed to create any rights for the benefit of any other Persons. 7.10. NO MANAGEMENT BY LIMITED PARTNERS. 7.10(a) No Limited Partner shall take part in the day-to-day management, operation or control of the business and affairs of the Partnership or have any right, power, or authority to act for or on behalf of or to bind the Partnership or transact any business in the name of the Partnership. In the event any laws, rules or regulations applicable to the Partnership, or to its sale or issuance of interests in the Partnership, require a Limited Partner, or any group or class thereof, to have certain rights, options, privileges or consents not granted by the terms of this Agreement, then such Limited Partners shall have and enjoy such rights, options, privileges and consents so long as (but only so long as) the existence thereof does not result in a loss of the limitation on liability enjoyed by the Limited -36- Partners under the Delaware RULPA or the applicable laws of any other jurisdiction. 7.10(b) No Limited Partner (if not a natural person, its directors, officers, partners, etc.) shall act as an employee of the Partnership if such Limited Partner's functions, directly or indirectly, relate to the Partnership's international communications satellite facilities. 7.10(c) No Limited Partner shall serve, in any material capacity, as an independent contractor or agent with respect to the management or operation of the Partnership's international communications satellite facilities (except with regard to tracking, telemetry and command and related services). 7.10(d) No Limited Partner shall communicate with the General Partner on matters pertaining to the day-to-day operations of the Partnership's international communications satellite facilities. 7.10(e) No Limited Partner shall perform any services to the Partnership materially relating to the management or operation of the Partnership's international communications satellite facilities, with the exception of making loans to, or acting as a surety for, the Partnership. 7.10(f) No Limited Partner shall become actively involved in the management or operation of the Partnership's international communications satellite facilities. 7.10(g) The General Partner may contract with any Limited Partner or any Affiliate of any Limited Partner for any purpose not otherwise restricted by this Agreement, in particular for provision of customer support, marketing and related services with respect to the sale of the Partnership's international communications satellite facilities; provided, however, that any such activity undertaken by a Limited Partner shall be pursuant to independently-executed agreements which shall be non-exclusive in nature and under which any sales to the Partnership's customers shall be governed by contractual terms and conditions set by the General Partner. 7.11. PARTNERS PLANNING AND POLICY REVIEW COMMITTEE. 7.11(a) A committee of the Partnership known as the Partners Planning and Policy Review Committee (the "Review Committee"), consisting of one representative of each Partner, shall be established for the purposes set forth in Section 7.11(b). Review Committee representatives shall be entitled to bring to Review Committee meetings such staff and other personnel which they reasonably deem necessary. The Review Committee shall meet at such times, dates and places as the General Partner may deem appropriate. Meetings of the Review Committee may be called by the General Partner from time to time and shall be called by the -37- General Partner upon its receipt of a request in writing signed by at least two Limited Partners holding in the aggregate at least [twenty percent (20%)] of the total Percentage Interests then held by the Limited Partners, which request shall specify the purpose of such a meeting. Notification of a meeting of the Review Committee shall be sent by the General Partner, not less than fifteen (15) days prior to the date of such meeting, to the representatives of the Limited Partners at their record addresses (as may be changed by written notice to the General Partner) and shall specify the time, date, place and purpose of such meeting. Notification of a meeting called at the request of the requisite number of Limited Partners shall be sent within ten (10) business days after the General Partner's receipt of such a request and such meeting shall be held not less than fifteen (15) nor more than thirty (30) days after receipt of such request. The members of the Review Committee may designate one of such members as chairman of the Review Committee and may establish such other procedures for the functioning of the Review Committee as the members of the Review Committee may approve, subject to the requirements and approval procedures of this Section 7.11. Voting of the representatives of the Limited Partners may be in person or by proxy, duly signed by the representatives of the Limited Partners or their respective attorneys-in-fact. All actions that could be taken at a meeting of the Review Committee may also be taken by the written consent of the representatives of Limited Partners holding such Percentage Interests as is required to take such action pursuant to this Section 7.11. 7.11(b) The General Partner shall submit the following actions to the Review Committee which, by vote of the representatives of an LP Majority (except as set forth below in Section 13.09(e)), which shall have the right to approve or disapprove of any such actions: (i) Establishment of any standard pricing policies with respect to the Partnership's sale of services which are intended to result in (x) the sale of satellite transmission capacity to customers generally at prices which are lower than those charged to Limited Partners in agreements entered into on or about the date of this Agreement or (y) the sale of satellite transmission capacity to certain Partners at prices or on terms materially different from the prices and terms offered or available to Partners generally. (ii) Establishment of any amended budget pursuant to Section 9.09(c) or establishment of any budget relating to any period of one year or longer (including any annual budget proposed by the General Partner under Section 9.09) (a "Proposed Budget") which calls for a percentage increase, from the applicable amount specified, for the year to which the Proposed Budget relates, in the Ten Year Projection dated July 12, 1991 (the "Ten Year Projection") (attached hereto as Exhibit A) in (x) an aggregate annual amount of 10 percent or more, or (y) any individual line item annual amount of 20 percent or more; provided, -38- however, that if under this Section 7.11(b)(ii) and Section 13.09(e), a budget is approved which covers the period to which the Proposed Budget relates (an "Approved Budget"), the percentage increase in aggregate annual operating expenses or in individual line items shall be measured from the amount specified in the most recent Approved Budget, rather than from the applicable amount in the Ten Year Projection. (iii) Causing the Partnership to make expenditures or incur obligations in excess of those permitted by Section 9.09(c). (iv) Settlement of any matters with federal, state, local or foreign tax authorities that requires the payment by, or the increase in tax liabilities of, either the Partnership or the Partners in the aggregate in excess of $3 million, or consent to an extension of the statute of limitations applicable to the assessment and collection of taxes from the Partners in connection with any federal or state income tax audit of the Partnership involving a potential tax liability for the Partners in the aggregate in excess of $3 million. (v) Characterization (including determination of source and whether such item should be separately stated by the Partners in their respective returns) of major categories of income, gain, deduction, and loss for purposes of the Partnership's federal income tax returns, provided that any characterization determined by the Review Committee pursuant to this Section 7.11(b)(v) shall be used in filing the Partnership's returns only if the Partnership's tax accountants or tax counsel determine that there is a realistic possibility (within the meaning of section 6694 of the Code) of such characterization being sustained on its merits and that either there is "substantial authority" (within the meaning of section 6662 of the Code) for such characterization or there is adequate disclosure of the relevant facts affecting such characterization in the Partnership's return so that the penalties applicable under section 6662(c) of the Code would not apply to the Partnership or the Partners if such characterization were not sustained. For the purposes hereof, a "major category" shall mean an amount in excess of $1,000,000 for the particular taxable year at issue. (vi) Offering to sell any additional Partnership Interest pursuant to the terms of Section 11.01. (vii) Designation by the General Partner of a member of its executive management to be the general manager to direct the management of IPSP Services (as defined in Section 7.14(c)). 7.11(c) Any action required to be submitted by the General Partner to the Review Committee pursuant to this Section 7.11 shall be submitted -39- by written notice to the Limited Partners (the "Review Notice"), together with the notice concerning the meeting and a description of the action(s) proposed to be taken at the meeting. 7.11(d) At each meeting of the Review Committee, the General Partner shall report to the members of the Review Committee on significant developments of IPSP Services (as defined in Section 7.14(c)) during the period since the preceding meeting of the Review Committee. Such report shall be in such form as the General Partner may deem appropriate, but shall include information concerning the execution of the business plan, including the strategy for market entry, the development of service offerings, and the appointment or removal of representative agents and distributors, the terms and conditions of any such appointment, the relation of any such appointment to existing agreements and the grounds for any such removal. In addition, when the General Partner prepares and presents the annual budget (or any other Budget Subject to Approval) to the members of the Review Committee, the General Partner shall present to members of the Review Committee the work program for IPSP Services as it is reflected in the budget. 7.12. MEETINGS OF LIMITED PARTNERS. Meetings of the Limited Partners regarding any matters with respect to which the Limited Partners have the right to vote or consent (other than pursuant to Section 7.11) may be called by the General Partner from time to time and shall be called by the General Partner upon its receipt of a request in writing signed by at least two Limited Partners holding in the aggregate at least twenty percent (20%) of the total Percentage Interests then held by the Limited Partners, which request shall specify the purpose of such a meeting. Notification of a meeting of the Limited Partners shall be sent by the General Partner, not less than fifteen (15) days prior to the date of such meeting, to the Limited Partners at their record addresses (as may be changed by written notice to the General Partner) and shall specify the time, date, place and purpose of such meeting. Notification of a meeting called at the request of the requisite number of Limited Partners shall be sent within ten (10) business days after the General Partner's receipt of such a request and shall be held not less than fifteen (15) nor more than sixty (60) days after receipt of such request. Any meeting of Limited Partners may be held at the principal office of the Partnership or at such other location as the General Partner may deem appropriate. Voting of the Limited Partners may be in person or by proxy, duly signed by the Limited Partner or its attorney-in-fact. All actions that could be taken at a meeting of the Limited Partners may also be taken by the written consent of Limited Partners holding such Percentage Interests as is required to take such action pursuant to this Agreement. -40- 7.13. TRANSFER OF LIMITED PARTNERSHIP INTEREST TO THE GENERAL PARTNER. In the event that the Percentage Interest of the General Partner is ever less than twenty five percent (25%) or in the event that Limited Partners of the Partnership ever own, in the aggregate, more than twenty five percent (25%) of the voting power with respect to the outstanding stock of Orion Network Systems, Inc. ("ONS"), determined based upon the higher of the percentage of votes that can be cast for the election of directors or the percentage of directors that can be selected, ONS shall transfer to the General Partner any interest as a Limited Partner that ONS then owns in the Partnership, and the General Partner shall thereafter have, in addition to all of its rights under this Agreement as a General Partner, all of the rights of a Limited Partner under this Agreement attributable to such interest. 7.14. TECHNICAL COMMITTEE. 7.14(a) A committee of the Partnership known as the Technical Committee (the "Technical Committee"), consisting of one representative (and, if requested by a Limited Partner, an alternate representative) of each Partner, shall be established for the purposes set forth in Section 7.14(b). Technical Committee representatives shall be entitled to bring to Technical Committee meetings such staff and other personnel which they reasonably deem necessary. Meetings of the Technical Committee may be called by the General Partner from time to time, and shall be called by the General Partner upon its receipt of a request in writing signed by at least two Limited Partners, which request shall specify the purpose of such a meeting. Notification of a meeting of the Technical Committee shall be sent by the General Partner, not less than fifteen (15) days prior to the date of such meeting, to the representatives of the Limited Partners at their record addresses (as may be changed by written notice to the General Partner) and shall specify the time, date, place and purpose of such meeting. Notification of a meeting called at the request of the requisite number of Limited Partners shall be sent within ten (10) business days after the General Partner's receipt of such a request and such meeting shall be held not less than fifteen (15) nor more than thirty (30) days after receipt of such request. The General Partner shall serve as chairman of the Technical Committee. The members of the Technical Committee may establish such procedures for the functioning of the Technical Committee as the members of the Technical Committee may approve, subject to the requirements and approval procedures of this Section 7.14. If any matter is submitted to the Technical Committee at a meeting of the Technical Committee for that Committee's advice concerning such matter (whether by the General Partner or upon receipt by the General Partner of a request in writing signed by at least two Limited Partners), such matter shall be submitted by written notice to the Limited Partners, together with the notice concerning the meeting and a description of the matter on which advice is to be given at the meeting. -41- 7.14(b) The Technical Committee will advise the General Partner and the Review Committee on all matters relating to the technology and operation of the Partnership's satellite system and transmission networks. The Technical Committee also will review and recommend to the General Partner and the Limited Partners the final and definitive main technical and performance specifications for the Partnership's satellites, as well as of any material amendment thereof during the construction period. With regard to IPSP Services, the Technical Committee will recommend technical standards for equipment and operations and will seek to ensure that any such standards are consistent with the operating standards and procedures of the satellite system. The Technical Committee will review the technical aspects of any general policies or procedures proposed by the General Partner regarding IPSP Services; provided, however, that the Technical Committee shall not have the power to disapprove any action taken by the General Partner or the Review Committee. If the Technical Committee does not reach a unanimous conclusion concerning particular advice to be given to the General Partner or the Review Committee, only matters approved by the representatives of an LP Majority shall be deemed to be the advice of the Technical Committee; provided, however, that the report of the Technical Committee which contains such advice also shall set forth any advice provided by the representatives of any Limited Partner not included in such LP Majority. Unless all representatives on the Technical Committee otherwise agree, advice by the Technical Committee shall be in writing. 7.14(c) "IPSP Services" means: transmission-based telecommunication services (other than the mere sale or lease of units of transmission capacity on the Partnership's satellite system) which consist of international private transmission links and networks, either as turnkey facilities management or as a service, and in particular include (i) any and all transmission services provided by the Partnership primarily over the Partnership's satellite system that involve the transport of information, but not its manipulation, and satellite connectivity services, and (ii) the provision of, installation, maintenance, repair, operation, customer network support and monitoring for, and associated services related to ground facilities used to communicate to or from the satellite system, including (without limitation), turnkey facilities management, VSAT and hub/control earth station services and terrestrial links, and (iii) Value Added Services, which means those services which involve not simply the transmission of information, but its manipulation as well. Any non-public switched telecommunications network or international transmission service (other than the mere sale or lease of transmission capacity on the Partnership's satellite system) is intended to be included in IPSP Services. -42- ARTICLE VIII COMPENSATION OF GENERAL PARTNER; PAYMENT OF PARTNERSHIP EXPENSES 8.01. COMPENSATION OF GENERAL PARTNER. Except as expressly provided in Section 8.03 or pursuant to arrangements contemplated by Section 7.07, the General Partner shall not receive any compensation from the Partnership for services rendered in its capacity as a general partner of the Partnership. 8.02. PARTNERSHIP EXPENSES. Subject to Section 7.11(b)(iii), notwithstanding any other provision of this Agreement, the Partnership shall bear all costs and expenses, including, without limitation, all costs and expenses (including overhead expenses) reasonably incurred by the General Partner in connection with the management and operation of the business and affairs of the Partnership, or in carrying out the purposes of the Partnership. In the event that the General Partner at any time or from time to time advances its own funds to pay any such costs or expenses, it shall be entitled to reimbursement of such funds from the Partnership promptly upon demand. 8.03. Acquisition, Organizational, and Offering Expenses. The Partnership shall reimburse the General Partner for all fees, costs, and expenses actually incurred by the General Partner and its Affiliates in connection with the organization of the Partnership, the offering and sale of Partnership Interests to the Limited Partners, and the arrangements for the placement of Partnership debt, and including, without limitation, legal (including tax advice), financial advisor, consulting and accounting fees, filing and recordation fees, printing costs, telephone and travel expenses. ARTICLE IX BANK ACCOUNTS; BOOKS AND RECORDS; STATEMENTS; TAXES; FISCAL YEAR; ANNUAL BUDGET 9.01. BANK ACCOUNTS AND INVESTMENTS. All funds of the Partnership shall be deposited in its name in such checking and savings accounts, time deposits or certificates of deposit, or other accounts at such banks or in such other investments permitted by Section 3.02(h), as shall be designated by the General Partner from time to time, and the General Partner shall arrange for the appropriate management of such account or accounts. -43- 9.02. BOOKS AND RECORDS. The General Partner shall keep, or cause to be kept, books and accounts showing assets, liabilities, income, operations, transactions and the financial condition of the Partnership. Such books and accounts shall be prepared on the accrual basis for accounting and U.S. federal income tax purposes and in accordance with generally accepted accounting principles unless the General Partner adopts an alternative basis in accordance with applicable accounting and tax standards. The Limited Partners, or their respective designees, shall have access to the books and records of the Partnership with respect to all information which the Limited Partners are lawfully permitted to require, including but not limited to budgets, financial projections and any amendment thereto, quarterly and annual income statements, quarterly and annual balance sheets, quarterly and annual funds flow statements and forecasts, the credit documents with respect to the financing of the Partnership's proposed satellites, and the Satellite Construction Contract (other than trade secrets and other proprietary information, or any information of any kind received from third parties pursuant to a confidentiality agreement or understanding) at any reasonable time during regular business hours and shall have the right to copy said records at their expense. 9.03. FINANCIAL STATEMENTS AND INFORMATION. 9.03(a) All financial statements prepared pursuant to this Section 9.03 shall present fairly, in all material respects, the financial position and operating results of the Partnership in accordance with generally accepted accounting principles, and shall be prepared on the accrual, cash or other basis, as provided in Section 9.02, for each Fiscal Year of the Partnership during the term of this Agreement. 9.03(b) Within forty-five (45) days after the end of each quarterly period (the "Fiscal Quarter") of each Fiscal Year, commencing with the first full Fiscal Quarter after December 20, 1991, the General Partner shall prepare and submit or cause to be prepared and submitted to the Limited Partners an unaudited statement of profit and loss for the Partnership for such Fiscal Quarter and an unaudited balance sheet of the Partnership dated as of the end of such Fiscal Quarter, in each case prepared in accordance with generally accepted accounting principles. 9.03(c) Within ninety (90) days after the end of each Fiscal Year, the General Partner shall prepare and submit or cause to be prepared and submitted to the Limited Partners (i) an audited balance sheet, together with audited statements of profit and loss, Partners' equity and changes in financial position for the Partnership during such Fiscal Year and (ii) an audited statement showing any Cash Flow and any Net Proceeds of a Capital Transaction distributed to the Partners in respect of such Fiscal Year. -44- 9.03(d) At least ten (10) days prior to each meeting of the Review Committee, the General Partner shall prepare and submit or cause to be prepared and submitted to the members of the Review Committee a general report on significant developments of or affecting the Partnership during the period since the most recent prior meeting of the Review Committee. Such report shall be in such form as the General Partner may deem appropriate. 9.03(e) The General Partner shall provide to the Limited Partners such other reports and information concerning the business and affairs of the Partnership as may be required by the Delaware RULPA or by any other law or regulation of any regulatory body applicable to the Partnership. Nothing in this Agreement shall restrict the right of any Limited Partner to communicate with the General Partner on matters pertaining to general policy, planning and direction to the extent permitted by Section 17-303 of Delaware RULPA. 9.03(f) Within forty-five (45) days after the end of each Fiscal Quarter, commencing with the first full Fiscal Quarter after December 20, 1991, until commencement of commercial operations of each of the Partnership's satellites, the General Partner shall prepare and submit or cause to be prepared and submitted to the Limited Partners progress reports regarding the construction and launch of the Partnership's proposed satellites under the Satellite Construction Contract in such form as will reasonably inform the Limited Partners about the matters set forth below. Such reports shall include reports from the manufacturer under the Satellite Construction Contract regarding the status of the construction, from the launch services company that will perform launch services for such manufacturer regarding the launch status, and from the Partnership regarding regulatory matters (including those of any state, governmental commission (including the FCC) or other authority affecting the construction, launch or operation of the satellites). Within forty-five (45) days after the end of each Fiscal Quarter, commencing with the first full Fiscal Quarter after the commencement of commercial operations of the first of the Partnership's satellites, the General Partner shall prepare and submit or cause to be prepared and submitted to the Limited Partners status reports regarding the health of the Partnership's satellites and all transponders, the use of transponder spares, updated predictions regarding satellite life, and full information about any effected transfer or lease of capacity (including name of user, bandwidth, price, duration and transponder occupancy). The General Partner shall inform each Limited Partner in writing about any event which has or may have a material adverse effect on the health or the performance of any of the Partnership's satellite promptly after occurrence of such event. 9.03(g) The provision by the General Partner to one or more Limited Partners of reports or information described in Section 9.03 or otherwise pursuant to this Agreement, by itself, shall not imply in any manner whatsoever the acceptance by or involvement of any Limited Partner with respect to such reports or information, and such reports or information shall be construed only as having been prepared and distributed by the General Partner. -45- 9.04. ACCOUNTING DECISIONS. All decisions as to accounting matters, except as specifically provided to the contrary herein, shall be made by the General Partner. 9.05. WHERE MAINTAINED. The books, accounts and records of the Partnership at all times shall be maintained at the Partnership's principal office as set forth in Section 2.03 above, or, at the option of the General Partner, at the principal place of business of the General Partner. 9.06. TAX RETURNS AND TAX MATTERS. 9.06(a) The General Partner shall, at the expense of the Partnership, cause to be prepared and delivered to the Partners, in a timely fashion after the end of each Fiscal Year, copies of all Federal, state, local, and foreign income tax returns for the Partnership for such Fiscal Year, one copy of which shall be filed by the General Partner. Such returns shall be prepared on the accrual basis (or as otherwise determined pursuant to Section 9.02) and shall accurately reflect the results of operations of the Partnership for such Fiscal Year. The General Partner is designated as the "tax matters partner" (as defined in the Code) of the Partnership and is authorized and required to represent the Partnership (at the expense of the Partnership), subject to Section 7.11(b)(iv), in connection with all examinations of the affairs of the Partnership by any Federal, state, or local tax authorities, including any resulting administrative and judicial proceedings, and to expend funds of the Partnership for professional services and costs associated therewith. Each Partner agrees to cooperate with the General Partner and to do or refrain from doing any or all things reasonably required by the General Partner in connection with the conduct of such proceedings; provided, however, that in no event shall any Limited Partner be required to do or refrain from doing anything which would cause such Limited Partner to be deemed a general partner of the Partnership. 9.06(b) Upon receipt by the General Partner of any notice, request, inquiry, or statement of a material nature from the IRS in connection with an examination of the Partnership involving a potential federal income tax liability for the Partners, in the aggregate, in excess of $3 million, the General Partner shall within 20 days send all other Partners a copy of the documents so received. In the event that General Partner intends to respond in writing to any documents from the IRS required to be provided to the other Partners under the preceding sentence, (i) if the potential federal income tax liability for the Partners, in the aggregate, exceeds $10 million, the General Partner shall provide a copy of its proposed response to all other Partners not less than 10 days before such response is to be submitted to the IRS and shall consider in good faith any comments received from other Partners with respect to such proposed response, and (ii) if the potential -46- federal income tax liability for the Partners, in the aggregate is greater than $3 million, the General Partner shall provide a copy of its actual response to all other Partners promptly after submission to the IRS. 9.06(c) The General Partner, at the expense of the Partnership shall provide Limited Partners with such other information as they may reasonably request for use in the preparation of their respective income tax returns. 9.07. FEDERAL INCOME TAX ELECTIONS. If there is a distribution of any Partnership Assets or other property as described in Section 734 of the Code, or if there is a transfer of an interest in the Partnership as described in Section 743 of the Code, then, upon the request of any Partner, the General Partner shall cause the Partnership to file a Section 754 Election, provided the Partner requesting such election shall have agreed in writing to reimburse the Partnership for all incremental accounting and other administrative costs incurred as a result of such election. 9.08. FISCAL YEAR. The Fiscal Year of the Partnership for financial and Federal, state and local income tax purposes shall initially be the calendar year. The General Partner shall have authority to change the beginning and ending dates of the Fiscal Year if the General Partner, in its sole and absolute discretion, deems such change to be necessary or appropriate to the business of the Partnership, provided such change is permitted by the Code, and shall give written notice of any such change to the Limited Partners within thirty (30) days after the occurrence thereof. 9.09. ANNUAL BUDGET. 9.09(a) Distribution of Annual Budgets. Prior to the commencement of each new Fiscal Year, the General Partner shall prepare and distribute to the members of the Review Committee a budget setting forth the anticipated expenditures, aggregate annual operating expenses and revenues of the Partnership with respect to such Fiscal Year, including the proposed overhead expenses of the General Partner which budget shall contain at least the same line items as the Ten Year Projection or most recent Approved Budget, as applicable. This budget may, in the discretion of the General Partner, also relate to years other than such Fiscal Year. 9.09(b) Approval of Budgets Subject to Approval. All budgets required to be submitted to the Review Committee as provided in Section 7.11 and Section 13.09(e) (a "Budget Subject to Approval") shall be so submitted, subject to such provisions. When a proposed Budget Subject to Approval is approved (or deemed approved) by the Review Committee, then such Budget Subject to Approval shall become the operative budget for the Fiscal Year to which it relates. In the -47- event that any proposed Budget Subject to Approval (or revised proposed Budget Subject to Approval) is disapproved by the Review Committee, then the General Partner shall submit a revised proposed budget to the Review Committee within thirty (30) days after such disapproval. If the revised proposed budget is a Budget Subject to Approval, the Review Committee and the General Partner shall attempt in good faith to reach agreement on such revised budget. During any Fiscal Quarter (or portion thereof) of any Fiscal Year in which no budget is in effect because a Budget Subject to Approval has been disapproved by the Review Committee, or has not yet been approved (or deemed approved) by the Review Committee, then the operative budget for such Fiscal Quarter shall be deemed to include (a) all liabilities or obligations of the Partnership that were previously incurred or committed to by or on behalf of the Partnership in good faith and that became due and payable during such Fiscal Quarter, (b) all liabilities or obligations that the General Partner, in good faith, believes should be incurred or committed to by or on behalf of the Partnership for the operation of its business or the carrying out of the purposes of the Partnership during such Fiscal Quarter (including, without limitation, the payment or settlement of any claims or potential claims against the Partnership) and (c) all other operating expenses in an amount equal to one hundred ten percent (110%) of the operating expenses for such Fiscal Quarter as set forth in the most recent Approved Budget which relates to the Fiscal Year in which such Fiscal Quarter occurs or, if there is no such Approved Budget, as set forth in the Ten Year Projection, provided that, for purposes of this clause (c), if such Approved Budget or the Ten Year Projection, as applicable, sets forth operating expenses on a fiscal year basis rather than on a fiscal quarter basis, the operating expenses for such Fiscal Quarter shall equal one-fourth of the operating expenses for the Fiscal Year in which such Fiscal Quarter occurs, as set forth in such Approved Budget or the Ten Year Projection, as applicable. Any operative budget for a Fiscal Quarter (or portion thereof) of any Fiscal Year in which no budget is in effect because a Budget Subject to Approval has been disapproved by the Review Committee, or has not yet been approved (or deemed approved) by the Review Committee, shall be superseded by the budget, if any, ultimately approved (or deemed approved) by the Review Committee or any revised budget prepared and distributed by the General Partner to the members of the Review Committee which is not a Budget Subject to Approval. 9.09(c) In the event that the General Partner shall determine that the total expenditures of the Partnership for a Fiscal Year will exceed by ten percent (10%) or more all expenditures of the Partnership, or that expenditures by the Partnership for a Fiscal Year with respect to any individual line item will exceed by twenty percent (20%) or more the corresponding amount, reflected in the Approved Budget for such Fiscal Year or Ten Year Projection, as applicable, the General Partner shall promptly prepare and submit to the Review Committee for approval pursuant to Section 7.10(b)(iii) an amended budget for such Fiscal Year pursuant to Section 9.09(b). Notwithstanding the foregoing, the General Partner shall be permitted to cause the Partnership to make expenditures that (a) do not exceed by ten percent (10%) or more in the aggregate the aggregate annual -48- expenditures and by twenty percent (20%) or more the annual expenditures with respect to any individual line item, reflected in the Approved Budget for such Fiscal Year or Ten Year Projection, as applicable, or (b) that are beyond the control of the General Partner, or (c) that the General Partner determines must reasonably be paid prior to the approval of an amended budget pursuant to this Section 9.09(c) in order to protect the Partnership, the Partnership Assets, the business of the Partnership or its customers. 9.09(d) No budget, amended budget, Approved Budget or increase in any of the foregoing shall require an increase in the amount of the Capital Contribution of any Partner (unless such increase in the Capital Contribution is contained in an amendment to this Agreement which has received the written consent of all of the Partners under Section 13.09). ARTICLE X TRANSFER OF INTERESTS 10.01. TRANSFER. 10.01(a) The term "transfer", when used in this Article X with respect to a Partnership Interest, shall include any sale, assignment, gift, pledge, hypothecation, mortgage or other encumbrance, exchange, or other disposition, whether voluntary or involuntary, by operation of law or otherwise, and whether effected directly or indirectly (including without limitation any change of control of any Partner or of any Person who controls such Partner, other than a change of control of the ultimate parent company or other entity controlling such Partner or Person or in the event such Partner or Person has no ultimate controlling parent company or other controlling entity, a change of control of the Partner or Person itself), except that "transfer" shall not include any pledge, mortgage, or hypothecation of or granting of a security interest in a Partnership Interest in connection with any financing obtained on behalf of the Partnership (so long as such financing, to the extent required to be submitted to the Limited Partners under Section 7.04(d) or 7.04(e), has been so submitted and has been approved). As used in this Article X, the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. 10.01(b) No Partnership Interest shall be transferred, in whole or in part, except in accordance with the terms and conditions set forth in this Article X. Any transfer or purported transfer of any Partnership Interest not made in accordance with this Article X shall be null and void. -49- 10.02. TRANSFER OF INTEREST OF GENERAL PARTNER. The General Partner may not transfer, or otherwise permit any Person to hold, its Partnership Interest as a General Partner unless: 10.02(a) such transfer in the written opinion of legal counsel acceptable to the Review Committee, in its reasonable discretion, (i) would not violate the then applicable federal and state securities and other laws and rules and regulations of the Securities and Exchange Commission, state securities commissions and any other governmental authorities with jurisdiction over such disposition, (ii) would not result in the Partnership being classified for Federal income tax purposes as an "association taxable as a corporation" rather than as a partnership, (iii) would not prejudice or affect the continuity of the Partnership for the purposes of Section 708 of the Code, and (iv) would not affect the Partnership's existence as a limited partnership under the Delaware RULPA; 10.02(b) a successor General Partner is admitted to the Partnership in accordance with Section 11.03; and 10.02(c) with respect to the transfer of its Partnership Interest, other than a transfer of the right to a distributive share of the income, gain, losses, deductions, and assets of the Partnership in accordance with the terms of this Agreement which does not reduce the General Partner's distributive share of such items below five percent (5%), such transfer and the admission of the transferee to the Partnership as a General Partner is approved by written consent of an LP Majority. 10.03. TRANSFER OF INTEREST OF LIMITED PARTNER. A Limited Partner may transfer all or any portion of its Partnership Interest except as prohibited under this Section 10.03. Notwithstanding the foregoing, no transferee of a Limited Partner's Partnership Interest shall become a Limited Partner or have any of the rights of a Limited Partner, other than the right to a distributive share of the income, gain, losses, deductions, distributions, and assets of the Partnership in accordance with the terms of this Agreement, unless such transferee is admitted to the Partnership as a Limited Partner in accordance with Section 11.02. A Limited Partner may not transfer, or otherwise permit any Person to hold, all or any portion of its Partnership Interest as a Limited Partner unless: 10.03(a) if the transferee is not a Person that controls, is controlled by, or is under common control with, the transferring Limited Partner, the transferring Limited Partner first offers the other Partners the right to purchase such Partnership Interest on a pro rata basis in accordance with their respective Percentage Interests pursuant to Section 10.04; and -50- 10.03(b) if the transferee is a Person who controls, is controlled by, or is under common control with, the transferring Limited Partner, the ability of the transferee to perform its obligations to the Partnership (including without limitation obligations under this Agreement and any agreement or contract between such transferee and the Partnership) is reasonably satisfactory to the General Partner and the creditworthiness of the transferee is satisfactory to the Partnership's lenders. 10.04. PARTNERS' RIGHTS OF FIRST REFUSAL. 10.04(a) If a Limited Partner has received a bona fide written offer from a prospective third party purchaser (including another Partner) (a "Third Party Offer") then, before accepting such Third Party Offer, such Limited Partner (the "Offeror") shall first offer, to the other Partners (the "Offerees"), on a pro rata basis in accordance with their respective Percentage Interests, the Partnership Interest that the Offeror proposes to be transferred to such third party. Such Partnership Interest shall be offered to the Offerees at an offering price which shall be the same as, and on the same terms and conditions as, those contained in the Third Party Offer, or if the Third Party Offer provides for consideration or other terms and conditions not practically attainable by the Offerees, then for consideration and upon terms and conditions substantially equivalent to those contained in the Third Party Offer. The offer shall be made by a written notice to the Offerees which offer notice shall be accompanied by a copy of the Third Party Offer. The Offerees shall have thirty (30) days after the date of such offer notice (the "Offerees Election Period") within which to elect to purchase all (but not less than all) of the Partnership Interest proposed to be transferred. Such election shall be made by a written notice of election given to the Offeror and the other Partners. The right of the Offerees or any of them to elect to make such purchase is conditioned upon the purchase by the participating Offerees collectively of all of the Partnership Interest which is subject to the Third Party Offer; provided, however, that any portion of a Partnership Interest not purchased by any particular Offeree may be purchased by the other Offerees on a pro rata basis in accordance with their respective Percentage Interests, or on such other basis as they may agree, by written notice to the Offeror within ten (10) days after the end of the Offerees Election Period. The closing date of any purchase by the Offerees shall be twenty (20) days after expiration of the Offerees Election Period (or if not a business day, then on the next business day thereafter). 10.04(b) If the Offerees shall fail to elect, pursuant to the terms of Section 10.04(a), to purchase all of the Partnership Interest that is the subject of the Third Party Offer or at any time shall notify the Offeror of their elections not to purchase all of such Partnership Interest, or shall elect to purchase but fail to close the purchase on the closing date, then the Offeror shall be free for a period of ninety (90) days thereafter to sell such Partnership Interest to the Person that made the Third Party Offer and under terms and conditions no less favorable to the Offeror than those contained in the Third Party Offer, subject to the limitations set forth in -51- Section 11.02 regarding admission of additional Limited Partners. If such Partnership Interest is not so sold by the Offeror within such 90-day period, the Offeror's right to transfer such Partnership Interest shall again be subject to the foregoing restrictions. 10.04(c) If a Limited Partner (the "Offeror Limited Partner") wishes to transfer a Partnership Interest (other than to a transferee who is a Person that controls, is controlled by, or is under common control with, such Offeror Limited Partner), and if such Offeror Limited Partner has not yet received a bona fide offer that such Offeror Limited Partner wishes to accept, then such Offeror Limited Partner may elect to offer such Partnership Interest to the other Partners (the "Offeree Partners") on a pro rata basis in accordance with their respective Percentage Interests, at a price and on terms proposed by such Offeror Limited Partner. Such offer shall be made by a written notice (the "Proposed Sale Notice") to the Offeree Partners setting forth the price and the terms and conditions proposed by such Offeror Limited Partner. The Offeree Partners shall have thirty (30) days after the date of such Proposed Sale Notice (the "Offeree Partners Election Period") within which to elect to purchase all (but not less than all) of the Partnership Interest proposed to be transferred. Such election shall be made by a written notice of election given to the Offeror Limited Partner and the other Partners. The right of the Offeree Partners or any of them to elect to make such purchase is conditioned upon the purchase by the participating Offeree Partners collectively of all of the Partnership Interest proposed to be transferred; provided, however, that any portion of such Partnership Interest not purchased by any particular Offeree may be purchased by the other Offeree Partners on a pro rata basis in accordance with their respective Percentage Interests, or on such other basis as they may agree, by written notice to the Offeror Limited Partner within ten (10) days after the end of the Offeree Partners Election Period. The closing date of any purchase by the Offeree Partners shall be twenty (20) days after expiration of the Offeree Partners Election Period (or if not a business day, then on the next business day thereafter). 10.04(d) If the Offeree Partners shall fail to elect, pursuant to the terms of Section 10.04(c), to purchase all of such Partnership Interest or at any time shall notify the Offeror Limited Partner of their elections not to purchase all of the Partnership Interest proposed to be transferred, or shall elect to purchase but fail to close the purchase on the closing date, then the Offeror Limited Partner shall be free for a period of one hundred twenty (120) days thereafter to sell such Partnership Interest at a price and on terms and conditions no less favorable to the Offeror Limited Partner than those contained in the Proposed Sale Notice, subject to the limitations in Section 11.02(a) regarding admission of additional Limited Partners. If such Partnership Interest is not so sold by the Offeror Limited Partner within such 120-day period, the Offeror Limited Partner's right to transfer such Partnership Interest shall again be subject to the provisions of Section 10.04(c). -52- 10.05. RESTRICTION ON CERTAIN TRANSFERS. Notwithstanding any provision in this Agreement, the FCC License shall not be transferred, assigned or disposed of in any manner, voluntarily or involuntarily, including by any transfer of control of any corporation holding that license, to any person except upon application to the FCC and upon a finding by the FCC that the public convenience and necessity will be served thereby. ARTICLE XI OFFERING OF ADDITIONAL PARTNERSHIP INTERESTS; ADMISSION OF ADDITIONAL PARTNERS; WITHDRAWAL OF PARTNERS; REMOVAL OF GENERAL PARTNER 11.01. OFFERING OF ADDITIONAL PARTNERSHIP INTERESTS. 11.01(a) If, following the admission of the Limited Partners to the Partnership on the date hereof, the General Partner wishes to cause the Partnership to offer and sell to third parties (including other Partners) additional limited partner Partnership Interests (a "Third Party Offering"), the General Partner shall give notice to each Limited Partner of the identity and background of the proposed purchaser (if not already a Limited Partner) and the terms and conditions of the offer and shall submit such proposed sale to a vote of the Limited Partners pursuant to Section 7.11(b). In exercising their right to vote pursuant to Section 7.11(b) concerning the proposed offer and sale of additional limited partner Partnership Interests and admission of third party purchasers, the Limited Partners shall not unreasonably withhold their approval. One basis, but not the exclusive basis, for the Limited Partners to reasonably withhold their approval shall be the Limited Partners' belief that the admission of such third party purchasers as Limited Partners will present a risk to the business, operations, goals, finances or regulatory approvals of the Partnership. In addition, it shall be reasonable for the Limited Partners to condition their approval on the Partnership first offering all the then-existing Partners the right to purchase such additional Partnership Interests on the same terms as are proposed to be offered to such third parties and on a pro rata basis in accordance with their respective Percentage Interests pursuant to Sections 11.01(b) and (c). The Limited Partners may, in their discretion, by a vote of Limited Partners holding a majority of the total Percentage Interests then held by the Limited Partners, require that as a condition to any such sale and admission that the Partnership obtain a written opinion of legal counsel acceptable to the General Partner, in its reasonable discretion, that such sale and admission would not result in the Partnership being classified for Federal income tax purposes as an "association taxable as a corporation" rather than as a partnership. In addition, unless such offer and sale of additional limited partner Partnership Interests and admission of such third party purchasers are approved, pursuant to the vote of Limited Partners under Section 7.11(b), by an LP Majority, -53- the Partnership must first offer all the then-existing Partners the right to purchase such additional Partnership Interests on the same terms as are proposed to be offered to such third parties and on a pro rata basis in accordance with their respective Percentage Interests pursuant to Sections 11.01(b) and (c). It is acknowledged and agreed that the sale of additional Partnership Interests will reduce, or otherwise alter, proportionally the Percentage Interests of the Partners existing immediately prior to such sale except to the extent that such existing Partners purchase any of such additional Partnership Interests. Any such reductions or other alterations in the Partners' Percentage Interests shall be reflected on Schedule B. 11.01(b) If the General Partner is required to offer all the then-existing Limited Partners the right to purchase additional Partnership Interests pursuant to Section 11.01(a), the Partnership shall offer to all the Partners, on a pro rata basis in accordance with their respective Percentage Interests, the additional Partnership Interests that the Partnership proposes to offer to such third party purchasers. Such additional Partnership Interests shall be offered to the partners at an offering price which shall be the same as, and on the same terms and conditions as, those proposed for the Third Party Offering. The offer shall be made by a written notice to Partners which shall also identify the designated third party purchasers, if then known by the Partnership. The Partners shall have thirty (30) days after the date of such offer notice (the "Partner Subscription Period") within which to elect to purchase any or all of such additional Partnership Interests proposed to be offered to third party purchasers. Such election shall be made by a written notice of subscription given to the Partnership and all the other Partners. In the event that any of the Partners do not purchase the maximum amount of such additional Partnership Interests to which they are entitled pursuant to this Section 11.01(b), any of such additional Partnership Interests not so purchased may be purchased by the other Partners on a pro rata basis in accordance with their respective Percentage Interests, or on such other basis as they may agree, by written notice to the Partnership within ten (10) days after the end of the Partner Subscription Period. The closing date of any purchase by the Partners of such additional Partnership Interests shall be on such date as the General Partner shall reasonably determine. Notwithstanding any provision of this Section 11.01 to the contrary, the Partnership shall not be required to make an offer to sell additional Partnership Interests to the Partners if, in the reasonable opinion of the General Partner, after consultation with its legal counsel, no exemption would be available for such offer from the registration requirements of the Securities Act of 1933 or applicable state securities laws. 11.01(c) If the Partners shall fail to elect to purchase or shall be foreclosed from purchasing, pursuant to the terms of Section 11.01(b), all of the additional Partnership Interests proposed to be offered to third parties, or shall elect to purchase but fail to close the purchase on the closing date, then the Partnership shall be free for a period of two hundred seventy (270) days thereafter to sell any such additional Partnership Interests not purchased by the Partners -54- pursuant to the terms of Section 11.01(b) to the offeror whose identity was disclosed to the Limited Partners pursuant to Section 11.01(a), upon terms and conditions no less favorable to the Partnership than those proposed for the Third Party Offering. If such additional Partnership Interests are not sold by the Partnership within such 270-day period, the Partnership's right to make any offering of additional Partnership Interests to third parties (including other Partners) shall again be subject to the foregoing restrictions. 11.02. ADMISSION OF ADDITIONAL LIMITED PARTNERS. 11.02(a) Following the admission of the Limited Partners to the Partnership on the date hereof, additional Limited Partners (including substituted Limited Partners) may be admitted to the Partnership at such times as the conditions set forth in Section 11.02(b) have been satisfied and the admission of such Limited Partners is reflected on the books and records of the Partnership. 11.02(b) No Person shall have the right to become a Limited Partner unless: (i) the General Partner consents in writing to the admission of such Person as a Limited Partner, which consent shall be in the sole and absolute discretion of the General Partner; (ii) such Person accepts and agrees in writing to be bound by all of the terms and provisions of the Agreement; and (iii) such Person (and, in the case of the transfer of any Partnership Interest of a Limited Partner pursuant to Sections 10.03 and 16.05, the transferor Limited Partner) executes and delivers such other instruments as are necessary to effect, and as a condition to, such action, including, without limitation, amendments to this Agreement and to the Certificate or any other instrument filed with the State of Delaware or any other state. 11.03. ADMISSION OF SUCCESSOR GENERAL PARTNER. A transferee of all of the Partnership Interest of the General Partner pursuant to Section 10.02, or a Person elected to be a successor General Partner upon the removal of the former General Partner pursuant to Section 11.06, shall be admitted to the Partnership as a General Partner (in the place of the transferor or former General Partner, as the case may be), effective as of the date that an amendment of the Certificate, adding the name of such successor General Partner and other required information, is recorded pursuant to Section 2.01 (which date, in the event the successor General Partner is in the place in whole of the transferor or former General Partner, shall be immediately prior to the withdrawal of such -55- transferor or former General Partner), and upon prior receipt by the Partnership of all of the following: 11.03(a) the successor General Partner's acceptance of, and agreement to be bound by, all of the terms and provisions of this Agreement, in form and substance satisfactory to the Partnership and all other agreements then in effect between the General Partner and any Limited Partner (and any other parties); 11.03(b) evidence of the authority of such successor General Partner to become a General Partner and to be bound by all of the terms and conditions of the Agreement including without limitation the provisions of Sections 3.03, 7.01(f) and 10.05 with regard to the assignment of the FCC License; 11.03(c) the written agreement of the successor General Partner to continue the business of the Partnership in accordance with the terms and provisions of the Agreement; and 11.03(d) such other documents or instruments as may be required in order to effect the admission of the successor General Partner as a General Partner under this Agreement. 11.04. WITHDRAWAL OF GENERAL PARTNER. The General Partner may voluntarily withdraw from the Partnership only upon a transfer of all of such General Partner's Partnership Interest as a General Partner in accordance with Article X. The voluntary withdrawal of the General Partner shall not affect the benefits to IPSP under such license. The General Partner shall have no liability to the Partnership or the Partners on account of any withdrawal in accordance with the terms of this Section 11.04, but such withdrawal shall not relieve the General Partner of its outstanding obligations and liabilities towards the Partnership, the Limited Partners and third parties. 11.05. Withdrawal of Limited Partner. Any Limited Partner may voluntarily withdraw from the Partnership at any time upon a transfer of all of such Limited Partner's Partnership Interest as a Limited Partner in accordance with Article X or transfer of such Limited Partner's Partnership Interest to the Partnership. 11.06. REMOVAL OF GENERAL PARTNER. 11.06(a) Subject to the provisions of Sections 3.03 and 11.03 with regard to the transfer or control of the FCC License, the General Partner shall be removed as a general partner if (i) it is found by a court of competent jurisdiction, by a final non-appealable judgment, that any of the General Partner's actions as -56- general partner constituted actual fraud, gross negligence, willful misconduct or breach of fiduciary duty (under Delaware law, this Agreement or any other contract between the Partnership and Limited Partners generally) and (ii) the Limited Partners, by the affirmative vote of Limited Partners holding two-thirds of the Percentage Interests then held by Limited Partners, vote to remove the General Partner. The General Partner may be removed as a general partner of the Partnership for "cause" (as hereinafter defined) upon the affirmative vote of Limited Partners holding two-thirds of the Percentage Interests then held by Limited Partners. Any such action by the Limited Partners must also provide for the prompt election of a successor General Partner by Limited Partners holding two-thirds of the Percentage Interests then held by Limited Partners, and shall become effective only upon the admission of the successor General Partner pursuant to Section 11.03. As used herein, "cause" shall mean (i) actual fraud, gross negligence, or willful misconduct or breach of fiduciary duty (under Delaware law, this Agreement or any other contract between the Partnership and Limited Partners generally) of the General Partner, (ii) the Bankruptcy (as defined in Section 12.01) of the General Partner, or (iii) the declaration of an event of default under the credit documents with respect to the financing of the Partnership's proposed satellites by the banks (or their agent, as applicable) under the terms of such credit documents and an indication by such banks (or such agent, as applicable) in writing that the banks intended to foreclose upon any Partnership Assets or other collateral (as defined in such credit documents), unless such event of default is due principally to circumstances that are reasonably beyond the control of the General Partner, in each case as determined by the Independent Party. The removal of the General Partner pursuant to this Section 11.06(a) shall not be deemed to be an election of remedies by the Partnership or the Limited Partners, and such removal shall not relieve the General Partner of its outstanding obligations and liabilities towards the Partnership, the Limited Partners and third parties. 11.06(b) Written notice of removal of the General Partner pursuant to this Section 11.06 shall be provided to the General Partner in the manner provided in Section 13.02. 11.06(c) In the event the General Partner is removed pursuant to this Section 11.06, the removed General Partner's Partnership Interest as a General Partner automatically shall be converted into the Partnership Interest of a Limited Partner and the removed General Partner shall retain all its Percentage Interest and thereupon be admitted as and be deemed a Limited Partner for all purposes. 11.06(d) Any successor General Partner elected pursuant to Section 11.06(a) shall, at the effective date of its admission to the Partnership as the General Partner, make a Capital Contribution to the Partnership in an amount such that, immediately following such Capital Contribution, the balance of the successor General Partner's Capital Account shall be no less than one percent (1%) of the aggregate balances of all Partners' Capital Accounts. -57- 11.06(e) Prior to any removal of the General Partner under this Agreement, notice shall be given to the FCC of such proposed removal, and any successor General Partner shall, prior to the effective date of its admission to the Partnership as the General Partner, comply with the provisions of Section 3.03. The General Partner agrees that, if the FCC License is then held by the General Partner and not the Partnership, it will take any action and execute any instruments necessary to obtain from the FCC such approval as may be necessary for the assignment to a Person designated by the Partnership as the successor General Partner of such license, the rights under which shall have been contributed by the General Partner to the Partnership pursuant to this Agreement. The General Partner hereby appoints each Limited Partner as its attorney-in-fact, with full power of substitution, for the purpose of taking any action and executing any instruments, in the event of the General Partner's removal under this Agreement, necessary for obtaining such approval of the FCC. The General Partner hereby agrees that the subject matter of this Section 11.06(e) is unique, and that in addition to any other remedies which the Limited Partners may have at law or in equity, the General Partner hereby agrees that the Limited Partners shall have the right to have all obligations, undertakings, agreements, covenants and other provisions of this Section 11.06(e) specifically performed by the General Partner, that the General Partner waives any equitable defenses it may have to such specific performance, and that the Limited Partners shall have the right to obtain an order or decree of such specific performance in any of the courts of the United States or of any state or other political subdivision thereof. ARTICLE XII DISSOLUTION AND LIQUIDATION 12.01. EVENTS CAUSING DISSOLUTION. The Partnership shall be dissolved and its affairs wound up upon the occurrence of any of the following events: 12.01(a) expiration of the term of the Partnership on the Termination Date; 12.01(b) the election in writing of the General Partner and the Limited Partners holding two-thirds of the total Percentage Interests of the Limited Partners to dissolve and wind up the affairs of the Partnership; 12.01(c) the sale or other disposition by the Partnership (other than in the ordinary course of business) of all or substantially all of the Partnership Assets and the collection of all amounts derived from any such sale or disposition, including all amounts payable to the Partnership under any promissory notes or other evidences of indebtedness taken by the Partnership in connection with such -58- sale or other disposition (unless the General Partner shall elect to distribute such indebtedness to the Partners in liquidation); 12.01(d) the Bankruptcy (as hereinafter defined) of the General Partner; 12.01(e) the Bankruptcy (as hereinafter defined) of the Partnership and the determination of the General Partner not to continue the business of the Partnership; or 12.01(f) except as provided in Section 12.01(d) above, the occurrence of any event that would cause the General Partner to cease to be a general partner of the Partnership under Section 17-402 of the Delaware RULPA; or 12.01(g) the entry of a decree of judicial dissolution under Section 17-802 of the Delaware RULPA. For the purposes of this Agreement, the term "Bankruptcy" of the General Partner or the Partnership, as applicable, shall mean, and the General Partner or the Partnership, as applicable, shall be deemed "Bankrupt," if it: a. makes an assignment for the benefit of creditors; b. files a voluntary petition in bankruptcy; c. is adjudged a bankrupt or insolvent, or has entered against it an order of relief in any bankruptcy or insolvency proceeding and such adjudication or order is final and not subject to appeal; d. files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation; e. files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature; or f. seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Partnership or of all or any substantial part of its properties. The term "Bankruptcy," as defined above and as used in this Agreement, is intended and shall be deemed to supersede and replace the event of withdrawal described in Sections 17-402(a)(4) and (5) of the Delaware RULPA. -59- 12.02. RIGHT TO CONTINUE BUSINESS OF PARTNERSHIP. Upon an event described in Sections 12.01(d) or 12.01(f), the Partnership shall not be dissolved or be required to be wound up if (A) at the time of such event there is at least one remaining General Partner who carries on the business of the Partnership (and each such remaining General Partner is hereby authorized to carry on the business of the Partnership without dissolution), or (B) within ninety (90) days after such event, all remaining Partners agree in writing (a) to continue the business of the Partnership and (b) to the appointment, effective as of the date of such event, of one or more additional General Partners if necessary or desired. 12.03. LIQUIDATION. 12.03(a) Upon the dissolution of the Partnership, the General Partner (or other person responsible for winding up the affairs of the Partnership) shall promptly notify the Partners of such dissolution and shall proceed without any unnecessary delay to sell or otherwise liquidate the Partnership Assets and pay or make due provision for the payment of all debts, liabilities and obligations of the Partnership. 12.03(b) After adequate provision has been made for the payment of all debts, liabilities and obligations of the Partnership (other than liabilities for distributions to Partners), the General Partner (or other person responsible for winding up the affairs of the Partnership) shall distribute the net liquidation proceeds and any other liquid assets of the Partnership to the Partners in accordance with Section 6.05. No distribution in kind of Partnership Assets, other than cash and other liquid assets, shall be made without the approval of the Review Committee. 12.03(c) A reasonable time shall be allowed for the orderly winding up of the business and affairs of the Partnership and the liquidation of its assets pursuant to this Section 12.03 in order to minimize any losses otherwise attendant upon such a winding up. 12.04. TERMINATION OF PARTNERSHIP. Except as otherwise provided in this Agreement, the Partnership shall terminate when all of the assets of the Partnership shall have been converted into cash, the net proceeds therefrom, as well as any other liquid assets of the Partnership, after payment of or due provision for the payment of all debts, liabilities and obligations of the Partnership, shall have been distributed to the Partners as provided for in Section 6.05 and Section 12.03, and the Certificate shall have been cancelled in the manner required by the Delaware RULPA. -60- ARTICLE XIII MISCELLANEOUS PROVISIONS 13.01. ADDITIONAL ACTIONS AND DOCUMENTS. Each of the Partners hereby agrees to take or cause to be taken such further actions, to execute, acknowledge, deliver and file or cause to be executed, acknowledged, delivered and filed such further documents and instruments, and to use best efforts to obtain such consents, as may be necessary or as may be reasonably requested in order to fully effectuate the purposes, terms and conditions of this Agreement, whether before, at or after the closing of the transactions contemplated by this Agreement. 13.02. NOTICES. All notices, demands, requests or other communications which may be or are required to be given, served, or sent by a Partner or the Partnership pursuant to this Agreement shall be in writing and shall be hand delivered (including delivery by courier), mailed by first-class, registered or certified mail, return receipt requested, postage prepaid or by "overnight" or express mail or courier service, or transmitted by telegram, telex or facsimile transmission (if an additional copy is sent by "overnight" or express mail or courier service in addition to the facsimile transmission), addressed as follows: (i) If to the General Partner: Orion Satellite Corporation 2440 Research Blvd. Suite 400 Rockville, Maryland 20858-3238 Attention: Telex/Fax Nos.: (ii) If to a Limited Partner: At the address specified for such Limited Partner in Schedule A (iii) If to the Partnership: International Private Satellite Partners, L.P. 2440 Research Drive Suite 400 Rockville, Maryland 20858-3238 Attention: Telex/Fax Nos.: -61- Each Partner and the Partnership may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent. Each notice, demand, request or communication which shall be delivered, mailed or transmitted in the manner described above, shall be deemed sufficiently given, served, sent or received for all purposes at such time as it is delivered to the addressee (with an affidavit of personal delivery (and in the case of communications by facsimile transmission, the affidavit of the "overnight" or express mail or courier service delivering the additional copy), the return receipt, the delivery receipt, or (with respect to a telex) the answer back being deemed conclusive, but not exclusive, evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation. 13.03. SEVERABILITY. Except as otherwise expressly provided in this Agreement, the invalidity of any one or more provisions hereof or of any other agreement or instrument given pursuant to or in connection with this Agreement shall not affect the remaining portions of this Agreement or any such other agreement or instrument or any part thereof, all of which are inserted conditionally on their being held valid in law; and in the event that one or more of the provisions contained herein or therein should be invalid, or should operate to render this Agreement or any such other agreement or instrument invalid, this Agreement and such other agreements and instruments shall be construed as if such invalid provisions had not been inserted; provided, however, that such severability of the remaining portions shall be conditional upon the good faith and diligent efforts of IPSP and the Limited Partner(s) whose rights and/or duties were declared invalid to negotiate and agree upon new provision(s) which will closely replicate the void provision(s) and which will be valid and enforceable. 13.04. SURVIVAL. It is the express intention and agreement of the Partners that all covenants, agreements, statements, representations, warranties and indemnities made in this Agreement shall survive the execution and delivery of this Agreement. 13.05. WAIVERS. Neither the waiver by a Partner of a breach of or a default under any of the provisions of this Agreement, nor the failure of a Partner, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right, remedy or privilege hereunder shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such provisions, rights, remedies or privileges hereunder. -62- 13.06. EXERCISE OF RIGHTS. No failure or delay on the part of a Partner or the Partnership in exercising any right, power or privilege hereunder and no course of dealing between the Partners or between a Partner and the Partnership shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein expressly provided are cumulative and not exclusive of any other rights or remedies which a Partner or the Partnership would otherwise have at law or in equity or otherwise. 13.07. BINDING EFFECT. Subject to any provisions hereof restricting assignment, this Agreement shall be binding upon and shall inure to the benefit of the Partners and their respective heirs, devises, executors, administrators, legal representatives, successors and assigns. 13.08. LIMITATION ON BENEFITS OF THIS AGREEMENT. It is the explicit intention of the Partners that, except as otherwise expressly agreed in writing by the Partners, no person or entity other than the Partners and the Partnership is or shall be entitled to bring any action to enforce any provision of this Agreement against any Partner or the Partnership, and that the covenants, undertakings and agreements set forth in this Agreement shall be solely for the benefit of, and shall be enforceable only by, the Partners (or their respective successors and assigns as permitted hereunder) and the Partnership. 13.09. AMENDMENT PROCEDURE. This Agreement may not be modified or amended except as expressly set forth below. 13.09(a) This Agreement may be modified or amended by the General Partner, without the consent or approval of the Limited Partners, except as set forth in Section 13.09(c), (i) to cure any ambiguity, to correct or supplement any provision herein which would be inconsistent with any other provision herein, or to make any other provision with respect to matters or questions arising under this Agreement which will not be inconsistent with the provisions of this Agreement; (ii) to delete or add any provision of this Agreement required to be so deleted or added by any federal agency or by a state "Blue Sky" commissioner or similar official, which addition or deletion is deemed by such agency or official to be for the benefit or protection of the Limited Partners; (iii) to amend Schedules A and B to reflect the admission of additional or substitute Limited Partners pursuant to Section 11.02; or (iv) to permit the allocations provided for in Article VI to be respected for federal income tax purposes or to avoid the Partnership being treated as an "association" -63- for federal income tax purposes; provided however, that no amendment shall be adopted pursuant to this Section 13.09(a) unless the adoption thereof (A) is not adverse to the interest of the Limited Partners; (B) does not affect the method of distribution of cash or allocation of net profits or net losses provided in Article VI among the Limited Partners or between the Limited Partners and the General Partner; and (C) does not adversely affect the limited liability of the Limited Partners contemplated by this Agreement or the status of the Partnership as a partnership for federal income tax purposes. The power of attorney granted pursuant to Section 7.03 may be used by the General Partner to execute on behalf of a Limited Partner any document evidencing or effecting an amendment adopted in accordance with this Section 13.09. 13.09(b) This Agreement also may be modified or amended with the written consent of the General Partner and of an LP Majority; provided however, that any modification or amendment which would (i) increase the amount of Capital Contributions payable by the Limited Partners, (ii) affect the rights of the Partners under Article VI, or (iii) except as provided in Section 13.09(a), amend Article V, Article VI, Article XII, or this Section 13.09, shall require the written consent of all the Partners. 13.09(c) [Intentionally Omitted.] 13.09(d) Notwithstanding anything to the contrary in this Agreement, this Agreement may not be modified or amended in any manner which, in the view of the FCC or in the reasonable judgment of the General Partner or its counsel, would (i) result in any violation (either through the possession of such power or through the taking of any specific action) of any law, rule or regulation applicable to the Partnership and its proposed business, including without limitation the United States' Communications Act of 1934, as amended, or the rules and regulations of the FCC as now or hereafter in effect, or (ii) result in a transfer of control (as defined in the rules and regulations of the FCC as now or hereafter in effect) of the General Partner, the business or operations of the General Partner or the licenses issued by the FCC relating to the construction, launch and operation of the satellite(s) owned by IPSP. 13.09(e) The Ten Year Projection constitutes an integral and substantial part of this Agreement and cannot be amended without the unanimous approval of the Limited Partners. In addition, if any Proposed Budget relating to a period of longer than one Fiscal Year or that requires multi-year expenditures calls for a percentage increase for any Fiscal Year, other than the first Fiscal Year of the Proposed Budget, of 2 percent or more over the budget for such Fiscal Year as reflected in the Ten Year Projection or Approved Budget, whichever is applicable, then the entire Proposed Budget shall require the unanimous approval of the Limited Partners. -64- 13.10. WAIVER OF PARTITION. Each Partner hereby irrevocably waives any and all rights that it may have to maintain an action for partition of any of the Partnership Assets. 13.11. CONSOLIDATION. In interpreting this Agreement, it is understood that the operations of any corporation or other entity in which the Partnership has an ownership interest and which is controlled by the Partnership or the General Partner will be consolidated to the extent appropriate with those of the Partnership. 13.12. ENTIRE AGREEMENT. Except as set forth in this Section 13.12, this Agreement (including the Schedules and annexes hereto) contains the entire agreement among the Partners with respect to the transactions contemplated herein, and supersedes all prior (but not contemporaneous) written and all oral agreements, commitments or understandings with respect to the matters provided for herein and therein. Notwithstanding this Section 13.12, each of the Partners have entered into other agreements prior to the date hereof or contemporaneously with the execution of this Agreement, all of which relate to the transactions contemplated herein, and the terms of which are no less binding upon the signatories thereto than are the terms of this Agreement binding upon the signatories hereto. 13.13. PRONOUNS. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the person or entity may require. 13.14. HEADINGS. Article, Section and subsection headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof. 13.15. GOVERNING LAW. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes relating thereto, shall be governed by and construed in accordance with the laws of the State of Delaware (but not including the choice of law rules thereof). -65- 13.16. EXECUTION IN COUNTERPARTS. To facilitate execution, this Agreement may be executed in as many counterparts as may be required; and it shall not be necessary that the signatures of, or on behalf of, each party, or that the signatures of all persons required to bind any party, appear on each counterpart; but it shall be sufficient that the signature of, or on behalf of, each party, or that the signatures of the persons required to bind any party, appear on one or more of the counterparts. All counterparts shall collectively constitute a single agreement. It shall not be necessary in making proof of this Agreement to produce or account for more than a number of counterparts containing the respective signatures of, or on behalf of, all of the parties hereto. 13.17. INTEREST RATES. Any provision of this Agreement containing, or requiring the use of, a stated interest rate shall be deemed to refer to the lower of such stated rate and the highest rate permitted by applicable law. ARTICLE XIV STET REDEMPTION 14.01. RATIFICATION OF STET REDEMPTION, ISSUANCE OF NEW INTEREST TO ONS. Notwithstanding anything in this Agreement to the contrary, the following actions are hereby authorized, approved, ratified and confirmed in all respects and do not violate or constitute a breach of or a default under any provision of this Agreement: (i) the redemption by the Partnership in 1995 of the 8.33% limited partnership interest of Societa Finanziaria Telefonica-per Azioni ("STET"), and the withdrawal of STET as a limited partner from the Partnership pursuant to Section 11.05 of the Agreement; (ii) the issuance of a new 8.33% limited partnership interest to existing limited partner Orion Network Systems, Inc. ("ONS"); (iii) recognition of the assumption by ONS of the obligations of an Affiliate of STET, Telecom Italia S.p.A. ("Telecom Italia"), to make contingent payments pursuant to the Contingent Communications Satellite Capacity Agreement to which Telecom Italia and the Partnership are parties (the "STET/Telecom Italia Contingent Payment Obligations"); (iv) the modification or termination of certain bilateral and multilateral agreements between the Partnership and STET (or Telecom Italia, as the case may be) or among the Partnership, STET (or Telecom Italia, as the case may be) and some or all of the Limited Partners; (v) the amendment of certain provisions of the Second Amended and Restated Agreement, including the deletion of provisions of Article XVI thereof relating to certain specific rights of STET and its affiliates, amendment of Schedules A and B to the Second Amended and Restated Agreement to reflect the redemption of STET's 8.33% limited partnership interest, -66- the withdrawal of STET from the Partnership, the sale to ONS of an additional limited partnership interest, and the adjustment by the General Partner, in consultation with the accounting firm that prepares the Federal income tax returns of the Partnership, of the Partners' Capital Accounts in accordance with Regulations sections 1.704-1(b)(2)(iv)(f) and 1.704-1(b)(2)(iv)(g)(1) to reflect the redemption of STET's limited partnership interest and the acquisition by ONS of an additional limited partner interest; and (vi) the execution, delivery and performance by the Partnership of a Redemption Agreement, dated as of November ___, 1995, between the Partnership and STET (the "STET Redemption Agreement"), a Subscription Agreement, dated as of November ___, 1995, between the Partnership and ONS (the "Subscription Agreement"), an Indemnity Agreement dated as of November ___, 1995, among the Partnership, Telecom Italia and ONS (the "Indemnity Agreement"), and an IPSP-Telecom Italia Agreement, dated as of November ___, 1995, between the Partnership and Telecom Italia S.p.A. (the "IPSP-Telecom Italia Agreement"), and the agreements, documents and instruments referred to therein. 14.02. STET's UNRECOVERED CONTINGENT CONTRIBUTIONS. Notwithstanding anything in this Agreement to the contrary, (i) all Unrecovered Contingent Contributions of STET prior to November ___, 1995 shall constitute Unrecovered Contingent Contributions of ONS from and after November __, 1995, and (ii) all STET/Telecom Italia Contingent Payment Obligations paid by ONS (or on its behalf) from and after November __, 1995 (including without limitation pursuant to the Indemnity Agreement) shall constitute (including for purposes of determining Unrecovered Contingent Contributions) contingent payments made by ONS or its Affiliate to the Partnership pursuant to Article II of the Contingent Communications Satellite Capacity Agreement (or to a payment guarantee agreement in accordance with Article III of the Contingent Communications Satellite Capacity Agreement) and treated as contributions by ONS to the capital of the Partnership pursuant to Section 5.01 of the Contingent Communications Satellite Capacity Agreement. 14.03. TERMINATION AND MODIFICATION OF STET AGREEMENTS. The parties hereby consent to and ratify the termination, as of the effective date of the STET Redemption Agreement and IPSP-Telecom Italia Agreement, of each of the bilateral and multilateral agreements, as amended through such effective date, set forth on Annex 1 hereto between the Partnership and STET (or Telecom Italia, as the case may be) or among the Partnership, STET (or Telecom Italia, as the case may be) and some or all of the Limited Partners, and agree that (and such agreements are hereby amended to the extent necessary so that) such agreements are terminated in their entirety as of the effective date of the STET Redemption Agreement and IPSP-Telecom Italia Agreement. -67- The parties hereby consent to and ratify the modification, as of the effective date of the STET Redemption Agreement and IPSP-Telecom Italia Agreement, of each of the multilateral agreements, as amended through such effective date, set forth on Annex 2 hereto among the Partnership, STET (or Telecom Italia, as the case may be) and some or all of the Limited Partners, to remove STET (or Telecom Italia, as the case may be) as a party to such agreements and to provide that such agreements, as so modified, continue in full force and effect, such modification to be effective as of the effective date of the STET Redemption Agreement and IPSP-Telecom Italia Agreement. The parties hereby consent to and ratify the modification, as of the effective date of the STET Redemption Agreement and IPSP-Telecom Italia Agreement, of each of the agreements set forth on Annex 3 hereto, as amended through such effective date, between the Partnership and STET (or Telecom Italia, as the case may be), which modifications are described on Annex 3 or the attachments thereto and to provide that such agreements, as so modified (and with such additional modifications not material to the Partnership or any Limited Partner and agreed to by the General Partner on behalf of the Partnership and set forth on the applicable modification documents), continue in full force and effect, such modification to be effective as of the effective date of the STET Redemption Agreement and IPSP-Telecom Italia Agreement. In the event that the parties to the agreements set forth on Annexes 1, 2 or 3 hereto include affiliates of Limited Partners rather than the Limited Partners themselves, the consents given under this Section 14.03 are given both on behalf of such affiliates and their affiliated Limited Partners, and the affiliated Limited Partners agree to cause such affiliates to supply additional consents to the effect of the applicable provisions of this Section 14.03 upon the reasonable written request of any party hereto. 14.04. BA WAIVER. British Aerospace Communications, Inc. ("BA"), as of the effective date of the STET Redemption Agreement and IPSP-Telecom Italia Agreement, waived its rights pursuant to the Consent and Agreement dated December 20, 1991 among the Partnership and the Limited Partners with respect to the additional limited partnership interest that was purchased by ONS (the "New Interest"), including BA's rights to (i) have the Partnership refrain from offering the New Interest until certain of BA's limited partnership interests have been repurchased, or require the purchaser of the New Interest to acquire certain of BA's limited partnership interests or (ii) have certain of BA's limited partnership interests purchased by the Partnership with the proceeds of the sale of the New Interest. -68- ARTICLE XV PARTNERSHIP APPROVALS Notwithstanding anything in this Agreement to the contrary, except as set forth below in this Article XV, the execution, delivery and performance by the Partnership of the following agreements, documents and instruments (of which there may be one or more versions), among the Partnership and Partners or prospective partners of the Partnership or their Affiliates and other Persons which are dated on or prior to the date of this Agreement, or any amendments or amendment and restatements of such agreements, documents and instruments, are hereby authorized, approved, ratified and confirmed in all respects and do not violate or constitute a breach of or a default under any provision of this Agreement: subscription agreements, escrow agreements, communications satellite capacity agreements, option agreements, contingent communications satellite capacity agreements, Agreements of Principles regarding service offerings by the Partnership, agreements relating to marketing and related services with respect to the sale of the Partnership's international communications satellite facilities, agreements relating to distribution and sales representation with respect to the Partnership's services (which such agreements, consistent with the terms of Section 7.10, may be exclusive in nature and pursuant to which sales are not governed by contractual terms and conditions set solely by the General Partner), consent and agreement concerning the rights of one limited partner to transfer certain partnership interests, assignment and assumption between the General Partner and the Partnership, agreement regarding certain possible conveyances, agreement regarding preferred bidding, and such other agreements, documents and instruments to which the Partnership is a party dated on or prior to the date of this Agreement that have been entered into or executed by the Partnership. Nothing contained herein, however, shall constitute or reflect any approval or waiver of rights by any Limited Partner with respect to the execution, delivery or performance by the Partnership or the General Partner of any agreement which was not provided by the Partnership or the General Partner to such Limited Partner prior to the date hereof. [Signatures commence on next page] -69- ARTICLE XVI EXECUTION IN WITNESS WHEREOF, the undersigned have duly executed this Agreement, or have caused this Agreement to be duly executed on their behalf, as of the day and year first hereinabove set forth. General Partner: ORION SATELLITE CORPORATION By: ------------------------------ Title: ------------------------------ LIMITED PARTNERS: ----------------------------------- By: ------------------------------ Title: ------------------------------ ----------------------------------- By: ------------------------------ Title: ------------------------------ ----------------------------------- By: ------------------------------ Title: ------------------------------ -70- ----------------------------------- By: ------------------------------ Title: ------------------------------ ----------------------------------- By: ------------------------------ Title: ------------------------------ ----------------------------------- By: ------------------------------ Title: ------------------------------ ----------------------------------- By: ------------------------------ Title: ------------------------------ -71- SCHEDULE A ---------- NAMES AND ADDRESSES AND CAPITAL CONTRIBUTIONS OF PARTNERS --------------------------------- GENERAL PARTNER - --------------- Orion Satellite Corporation $30,000,000 (consisting of the 2440 Research Blvd, Suite 400 assignment of the rights of the General Rockville, MD 20850-3238 Partner to use, sell, lease or otherwise convey the communications transmission capacity on the satellite system which is the subject of the FCC license to construct and operate two in-orbit satellites at 37.5(degree) West Longitude and 47(degree) West Longitude held by the General Partner, but excluding the assignment of any FCC construction permit or license with respect to said satellite system, under the authorizations by other governments, and under its IFRB registration and under the INTELSAT consultation; certain contract rights; and certain other tangible and intangible assets). LIMITED PARTNERS - ---------------- Martin Marietta Commercial $10,000,000 Launch Services, Inc. 9444 Balboa Avenue, Suite 200 San Diego, CA 92123 British Aerospace $30,000,000 Communications, Inc. Suite 500 13873 Park Center Road Herndon, Virginia 22071 A-1 SCHEDULE A (Cont'd) ------------------- NAMES AND ADDRESSES AND CAPITAL CONTRIBUTIONS OF PARTNERS --------------------------------- LIMITED PARTNERS - ---------------- MCN Sat U.S., Inc. $10,000,000 c/o Matra Aerospace 1735 Jefferson Davis Highway Suite 807 Arlington, VA 22202 Trans-Atlantic Satellite, Inc. $10,000,000 1211 Avenue of the Americas 41st Floor New York, NY 10036 Kingston Communications $ 5,000,000 International Limited Telephone House Carr Lane Kingston-upon-Hull HU1 3RE England COM DEV Satellite Communications Limited $ 5,000,000 155 Sheldon Drive Cambridge, Ontario Canada N1R 7H6 Orion Network Systems, Inc. $18,000,000 2440 Research Blvd, Suite 400 Rockville, MD 20850-3238 A-2 SCHEDULE B ---------- PERCENTAGE INTERESTS OF PARTNERS -------------------------------- GENERAL PARTNER - --------------- Orion Satellite Corporation 25.00% LIMITED PARTNERS - ---------------- Martin Marietta Commercial 8.33% Launch Services, Inc. British Aerospace25.00% Com MCN Sat U.S., Inc. 8.33% Trans-Atlantic Satellite, Inc. 8.33% Kingston Communications 4.17% International Limited COM DEV Satellite 4.17% Communications Limited Orion Network Systems, Inc. 16.66% ------ Total 100.00% B-1 EXHIBIT A --------- TEN YEAR PROJECTION ------------------- Annex 1 ------- Agreements Being Terminated --------------------------- 1. Service Provision and Representative Agent Agreement for Eastern Europe, dated as of August 7, 1991, as amended, between the Partnership and STET, and assigned by STET to Telecom Italia (or a predecessor thereof) as of December 21, 1993. 2. First Refusal Agreement for Italy, dated as of August 7, 1991, by and between the Partnership and STET, and assigned by STET to Telecom Italia (or a predecessor thereof) as of December 21, 1993. 3. Service Provision and Distribution Agreement for Italy, dated as of August 7, 1991, by and between the Partnership and STET, as amended, and assigned by STET to Telecom Italia (or a predecessor thereof) as of December 21, 1993. 4. Representative Agent Agreement for the Sale of Satellite Capacity in Eastern Europe, dated August 7, 1991, by and between the Partnership and STET, as amended, and assigned by STET to Telecom Italia (or a predecessor thereof) as of December 21, 1993. 5. Side Agreement for Eastern Europe, dated as of December 20, 1991, by and among the Partnership, STET and the Limited Partners, and assigned by STET to Telecom Italia (or a predecessor thereof) as of December 21, 1993. 6. Side Agreement for Italy, dated December 20, 1991, by and among the Partnership, STET and the Limited Partners, and assigned by STET to Telecom Italia (or a predecessor thereof) as of December 21, 1993. 7. Option Agreement, dated as of December 22, 1991, by and between the Partnership and STET and assigned by STET to Telecom Italia (or a predecessor thereof), as of December 21, 1993. 8. Subscription Agreement, dated as of August 7, 1991, by and between OrionSat and STET. 9. Consulting Agreement, dated as of August 2, 1991, by and between the Partnership and Telespazio S.p.A., and assigned by STET to Telecom Italia (or a predecessor thereof) as of December 21, 1993. 10. Agreement on Letter of Credit, dated as of December 20, 1991, by and among the Partnership, OrionSat, Orion and STET. Annex 2 ------- Agreements Being Modified to Remove STET (or Telecom Italia) as a Party --------------------------------------------- 1. Amended and Restated Preferred Bidders Agreement, dated as of December 20, 1991, by and among the Partnership, OrionSat, STET and the Limited Partners and assigned by STET to Telecom Italia (or a predecessor thereof) as of December 21, 1993. 2. Agreement of Principles, dated as of April 2, 1992, by and among the Partnership, OrionSat, STET and the Limited Partners, and assigned by STET to Telecom Italia (or a predecessor thereof) as of December 21, 1993, which superseded the earlier "Amended and Restated Agreement in Principle." 3. Consent and Agreement, dated as of December 20, 1991, relating to certain sales of partnership interests, by and among the Partnership, STET and the Limited Partners. Annex 3 ------- Agreements Being Modified As Specified Herein ------------------- 1. Communications Satellite Capacity Agreement, dated as of October 22, 1991, by and between the Partnership and STET and assigned by STET to Telecom Italia (or a predecessor thereof) as of December 21, 1993: modifications regarding a change in Telecom Italia's selected capacity and change in the termination date to December 31, 1997 (subject to the completion of a bond financing, bank loan refinancing, bank approval or occurrence of other conditions permitting termination under existing agreements between the Partnership and its senior lenders), with certain options for Telecom Italia to extend the term, with respect to part or all of the capacity covered thereby, through December 31, 1999. 2. Contingent Communications Satellite Capacity Agreement, dated as of October 22, 1991, by and between the Partnership and STET and assigned by STET to Telecom Italia (or a predecessor thereof) as of December 21, 1993: modifications to cause termination to occur upon the completion of a bond financing, bank loan refinancing, bank approval or occurrence of other conditions permitting termination under existing agreements between the Partnership and its senior lenders. 3. Italian Facility and Services Agreement, dated as of August 2, 1991, by and between OrionSat and Telespazio S.p.A., as amended by the amendment thereto, dated March 19, 1994 and assigned to Telecom Italia (or a predecessor thereof) as of December 21, 1993: modifications regarding revisions to the statement of work, reduction of the payment obligations of the Partnership by approximately $1.5 million and changes to the ratio for payments by the Partnership between cash and capacity credits. 4. Telespazio Communications Capacity Agreement dated as of August 2, 1991 by and between the Partnership and Telespazio S.p.A.: modification regarding use of capacity credits earned pursuant to the Italian Facility and Services Agreement referred to in item 3 of this Annex 3. 5. STET-IPSP Agreement, dated as of December 25, 1991, by and among the Partnership, OrionSat, STET and the Limited Partners: modifications to provide that Section 2 thereof (limitations on financial exposure), will survive, Sections 3 through 7 will not survive and the remaining provisions will survive only to the extent they relate to surviving provisions or agreements. EX-3.9 8 EXHIBIT 3.9 CERTIFICATE OF INCORPORATION OF ORIONNET, INC. FIRST: The name of the Corporation is OrionNet, Inc. (hereinafter called the "Corporation"). SECOND: The registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the Corporation's registered agent at said address is The Corporation Trust Company. THIRD: The purpose of the Corporation is to engage in any lawful acts or activities for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have the authority to issue is One Thousand (1,000) shares of Common Stock, all of one class, having a par value of $.01 per share. FIFTH: The name and mailing address of the incorporator is C. Elliott Bardsley, 1350 Piccard Drive, Rockville, MD 20850 (the "Incorporator"). SIXTH: The powers of the Incorporator shall terminate upon the filing of this Certificate of Incorporation, and the following persons, having the indicated mailing addresses, shall serve as the directors, of the Corporation until the first annual meeting of the stockholders of the Corporation or until successor or successors are elected and qualify: Name Mailing Address ---- --------------- John G. Puente 1350 Piccard Drive Rockville, Maryland 20850 Christopher J. Vizas, II 1835 K Street, N.W., Suite 201 Washington, DC 20006 C. Elliott Bardsley 1350 Piccard Drive Rockville, Maryland 20850 SEVENTH: The number of directors of the Corporation shall be such number as from time to time shall be fixed by, or in the manner provided in, the by-laws of the Corporation. Unless and except to the extent that the by-laws of the Corporation shall otherwise require, the election of directors of the Corporation need not be by written ballot. EIGHTH: In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized and empowered to adopt, amend and repeal by-laws of the Corporation. NINTH: No director of the Corporation shall be 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 Ninth 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 which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. TENTH: The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provisions contained in this Certificate or Incorporation, and other provisions authorized by the laws of the State of Delaware at a time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this contained in this Certificate or Incorporation, and other provisions authorized by the laws of the State of Delaware at a time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this Article Tenth. IN WITNESS WHEREOF, the undersigned, being the Incorporator hereinabove named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, hereby certifies that the facts hereinabove stated are truly set forth, and accordingly, I have hereunto set my hand this 15 day of January, 1988. /S/ C.Elliot Bardsley ------------------------ C. Elliott Bardsley EX-3.10 9 EXHIBIT 3.10 BY-LAWS OF ORIONNET, INC. 1. Offices. 1.1 Registered Office. The registered office of the corporation shall be in the City of Wilmington, County of New Castle, State of Delaware, and the registered agent in charge thereof shall be The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. 1.2 Other Offices. The corporation may also have offices at such other places, both within and without the State of Delaware, as the board of directors may from time to time determine or the business of the corporation may require. 2. Meetings of Stockholders. 2.1 Place of Meetings. All meetings of the stockholders for the election of directors shall be held in Washington, D.C. at such place as may be fixed from time to time by the board of directors, or at such other place, 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 the meeting or in a duly executed waiver of notice thereof. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. 2.2 Annual Meetings. Annual meetings of stockholders, commencing with the year 1988, shall be held on the first Thursday of May, if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 a.m., or at such other date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof, at which stockholders shall elect a board of directors and transact such other business as may properly be brought before the meeting. 2.3 Special Meetings. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the board of directors or by the president, and shall be called by the president or secretary at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall include a statement of the purpose or purposes of the proposed meeting. 2.4 Notice of Meetings. Written notice of the annual meeting, stating the place, date and hour of the meeting, shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Written notice of a special meeting of stockholders, stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. 2.5 Business at Special Meetings. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. 2.6 List of Stockholders. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder 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 where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also 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. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this section or the books of the corporation, or to vote in person or by proxy at any meeting of stockholders. 2.7 Quorum at Meetings. Except as otherwise provided by statute or by the certificate of incorporation, the holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. If, however, such quorum shall not be present or represented at any such meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time to another time and place, without notice other than announcement at the meeting of such other time and place. At the adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. 2.8 Voting and Proxies. Unless otherwise provided in the certificate of incorporation, and subject to the provisions of Section 6.4 of these by-laws, each stockholder shall be entitled to one vote on each matter, in person or by proxy, for each share of the corporation's capital stock having voting power which is held by such stockholder. No proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. 2.9 Required Vote. When a quorum is present at any meeting of stockholders, all matters shall be determined, adopted and approved by the vote (which need not be by ballot) of a majority of the votes cast with respect to the matter, unless the proposed action is one upon which, by express provision of statutes or of the certificate of incorporation, a different vote is specified and required, in which case such express provision shall govern and control the decision of such question. Notwithstanding the foregoing, candidates for election as members of the board of directors who receive the highest number of votes, up to the number of directors to be chosen, shall stand elected, and an absolute majority of the votes cast shall not be a prerequisite to the election of any candidate to the board of directors. 2.10 Action Without a Meeting. Unless otherwise provided in the 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 such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, is 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. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who shall not have consented in writing. 3. Directors. 3.1 Powers. The business and affairs of the corporation shall be managed by or under the direction of the board of directors, which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. 3.2 Number and Election. The number of directors which shall constitute the whole board shall not be less than one nor more than ten. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 3.3 hereof, and each director elected shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Directors need not be stockholders. 3.3 Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director, and each director so chosen shall hold office until the next annual election and until his successor is elected and qualified, or until his earlier resignation or removal. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery of the State of Delaware may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the then outstanding shares having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office, in accordance with the General Corporation Law of the State of Delaware. In the event that one or more directors resigns from the board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office until the next annual election and until his successor is elected and qualified, or until his earlier resignation or removal. 3.4 Place of Meetings. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. 3.5 First Meeting of Each Board. The first meeting of each newly elected board of directors shall be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver of notice signed by all of the directors. 3.6 Regular Meetings. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board of directors. 3.7 Special Meetings. Special-meetings of the board may be called by the president on one day's notice to each director, either personally or by telephone, by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of one-third of the total number of directors. 3.8 Quorum and Vote at Meetings. At all meetings of the board, one director if a board of one director is authorized, or such greater number of directors as is not less than a majority of the total number of directors, shall constitute a quorum for the transaction of business. The vote of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting to another time and place, without notice other than announcement at the meeting of such other time and place. 3.9 Telephone Meetings. Members of the board of directors or any committee designated by the board may participate in a meeting of such board or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this section shall constitute presence in person at such meeting. 3.10 Action Without Meeting. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board of directors or committee. 3.11 Committees of Directors. 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. The board 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. If a member of a committee shall be absent from any meeting, or disqualified from voting thereat, the remaining member or members present and not disqualified from voting, whether or not such member or members constitute a quorum, may, by unanimous vote, appoint another member of the board of directors to act at the meeting in the place of such absent or disqualified member. 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 in reference to amending the certificate of incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors pursuant to Section 151(a) of the General Corporation Law of the State of Delaware [hereinafter the "GCL"], fix 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), adopting an agreement of merger or consolidation pursuant to Sections 251 or 252 of the GCL, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless otherwise expressly provided in the resolution, no such committee shall have the power or authority to declare a dividend, to authorize the issuance of stock, or to adopt a certificate of ownership and merger pursuant to Section 253 of the GCL. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Unless otherwise specified in the resolution of the board of directors designating the committee, at all meetings of each such committee of directors, a majority of the total number of members of the committee shall constitute a quorum for the transaction of business, and the vote of a majority of the members of the committee present at any meeting at which there is a quorum shall be the act of the committee. Each committee shall keep regular minutes of its meetings and report the same to the board of directors, when required. 3.12 Compensation of Directors. Unless otherwise restricted by the certificate of incorporation, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be paid like compensation for attending committee meetings. 4. Notices of Meetings. 4.1 Notice Procedure. Whenever, whether under the provisions of any statute or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, such requirement shall not be construed to require the giving of personal notice. Such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same is deposited in the United States mail. Notice to directors may also be given by telex, telegram or telephone. 4.2 Waivers of Notice. Whenever the giving of any notice is required by statute, the certificate of incorporation or these by-laws, a waiver thereof, in writing, signed by the person or persons entitled to said notice, whether before or after the event as to which such notice is required, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting 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. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice, unless so required by the certificate of incorporation, by statute or by these by-laws. 5. Officers. 5.1 Positions. The officers of the corporation shall be a president, a secretary and a treasurer, and such other officers as the board of directors may appoint, including a chairman of the board, and one or more vice presidents, assistant secretaries and assistant treasurers, who shall exercise such powers and perform such duties as shall be determined from time to time by the board. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide; provided, however, that in no event shall the president and the secretary be the same person. 5.2 Appointment. The officers of the corporation shall be chosen by the board of directors at its first meeting after each annual meeting of stockholders. 5.3 Compensation. The compensation of all officers of the corporation shall be fixed by the board of directors. 5.4 Term of Office. The officers of the corporation shall hold office until their successors are chosen and qualify or until their earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. Any officer elected or appointed by the board of directors may be removed at any time, with or without cause, by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. 5.5 Fidelity Bonds. The corporation may secure the fidelity of any or all of its officers or agents by bond or otherwise. 5.6 President. The president shall be the chief executive officer of the corporation, shall be ex officio a member of all standing committees, shall have general and active management of the business of the corporation, shall ensure that all orders and resolutions of the board of directors are carried into effect, and, unless otherwise provided by the board of directors, shall preside at all meetings of the stockholders and the board of directors. The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. 5.7 Vice President. In the absence of the president or in the event of the president's inability or refusal to act, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting shall have all the powers of, and be subject to all the restrictions upon, the president. The vice presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 5.8 Chairman of the Board. If the directors shall appoint a chairman of the board, the chairman shall, when present, preside at all meetings of the board of directors and shall perform such other duties and have such other powers as may be vested in the chairman by the board of directors. 5.9 Secretary. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders, and shall record all the proceedings of the meetings of the stockholders and of the board of directors in a book to be kept for that purpose, and shall perform like duties for the standing committees, when required. The secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or by the president, under whose supervision the secretary shall be. The secretary shall have custody of the corporate seal of the corporation, and the secretary, or an assistant secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed it may be attested by the signature of the secretary or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by such officer's signature. The secretary or an assistant secretary may also attest all instruments signed by the chairman of the board, the president or any vice president. 5.10 Assistant Secretary. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there shall have been no such determination, then in the order of their election), shall, in the absence of the secretary or in the event of the secretary's inability or refusal to act, perform the duties and exercise the powers of the secretary, and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 5.11 Treasurer. 5.11.1 Duties. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation, and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. The treasurer shall disburse the funds of the corporation as ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president, and to the board of directors at its regular meetings, or when the board of directors so requires, an account of all transactions as treasurer and of the financial condition of the corporation. 5.11.2 Bond. If required by the board of directors, the treasurer shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of the treasurer's office and for the restoration to the corporation, in case of the treasurer's death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind, in the treasurer's possession or under the treasurer's control and belonging to the corporation. 5.12 Assistant Treasurer. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there shall have been no such determination, then in the order of their election), shall, in the absence of the treasurer or in the event of the treasurer's inability or refusal to act, perform the duties and exercise the powers of the treasurer, and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 6. Capital Stock. 6.1 Certificates of Stock; Uncertificated Shares. The shares of the corporation shall be represented by certificates, provided that the board of directors may provide by resolution or resolutions that some or all of any or all classes or series of the corporation's stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the corporation. Notwithstanding the adoption of such a resolution by the board of directors, every holder of stock represented by certificates and upon request every holder of uncertificated shares shall be entitled to have a certificate signed by, or in the name of the corporation by the chairman or vice chairman of the board of directors, or the president or vice president, and by the treasurer and/or assistant treasurer, or the secretary or an assistant secretary of such corporation representing the number of shares registered in certificate form. Any or all the signatures on the certificate may be facsimile. In case any officer, transfer agent or registrar whose signature or facsimile signature appears on 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 such person were such officer, transfer agent or registrar at the date of issue. 6.2 Lost Certificates. The board of directors may direct a new certificate or certificates of stock or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation and alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming that the certificate of stock has been lost, stolen or destroyed. When authorizing such issuance 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 such owner's legal representative, to advertise the same in such manner as the board shall require and/or to give the corporation a bond, in such sum as the board may direct, as indemnity against any claim that may be made against the corporation on account of the certificate alleged to have been lost, stolen or destroyed or on account of the issuance of such new certificate or uncertificated shares. 6.3 Transfers. The transfer of stock and certificates that represent the stock and the transfer of uncertificated shares shall be effected in accordance with the laws of the State of Delaware. Any restriction on the transfer of a security imposed by the corporation shall be noted conspicuously on the security. 6.4 Fixing 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. 6.5 Registered Stockholders. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, to receive notifications, to vote as such owner, and to exercise all the rights and powers of an owner; and the corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware. 7. Indemnification. Unless expressly prohibited by law, the corporation shall fully indemnify any person made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that such person, or such person's testator or intestate, is or was a director or officer, employee or agent of the corporation or serves or served any other enterprise at the request of the corporation, against all expenses (including attorneys' fees), judgments, fines and amounts paid or to be paid in settlement incurred in connection with such action, suit or proceeding. 8. General Provisions. 8.1 Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation and the laws of the State of Delaware, may be declared by the board of directors at any regular or special meeting. Subject to the provisions of the General Corporation Law of the State of Delaware, such dividends may be paid either out of surplus, as defined in the General Corporation Law of the State of Delaware, or in the event that there shall be no such surplus, out of the net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year. Dividends may be paid in cash, in property, or in shares of the corporation's capital stock, subject to the provisions, if any, of the certificate of incorporation. 8.2 Reserves. The directors of the corporation may set apart, out of the funds of the corporation available for dividends, a reserve or reserves for any proper purpose and may abolish any such reserve. 8.3 Execution of Instruments. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. 8.4 Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the board of directors. 8.5 Seal. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced. 9. Amendments. These by-laws may be altered, amended or repealed and new by-laws may be adopted by the board of directors. * * * The foregoing by-laws were adopted by the board of directors on January 18, 1988. /s/ Assistant Secretary EX-3.12 10 EXHIBIT 3.12 BY-LAWS OF ORION ASIA PACIFIC CORPORATION 1. Offices. ------- 1.1 Registered Office. The registered office of the corporation shall be in the City of Wilmington, County of New Castle, State of Delaware, and the registered agent in charge thereof shall be The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. 1.2 Other Offices. The corporation may also have offices at such other places, both within and without the State of Delaware, as the board of directors may from time to time determine or the business of the corporation may require. 2. Meetings of Stockholders. ------------------------ 2.1 Place of Meetings. All meetings of the stockholders for the election of directors shall be held in Washington, D.C. at such place as may be fixed from time to time by the board of directors, or at such other place, 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 the meeting or in a duly executed waiver of notice thereof. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. -#- 2.2 Annual Meetings. Annual meetings of stockholders, commencing with the year 1992, shall be held on the first Thursday of May, if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 a.m., or at such other date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof, at which stockholders shall elect a board of directors and transact such other business as may properly be brought before the meeting. 2.3 Special Meetings. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the board of directors or by the president, and shall be called by the president or secretary at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall include a statement of the purpose or purposes of the proposed meeting. 2.4 Notice of Meetings. Written notice of the annual meeting, stating the place, date and hour of the meeting, shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Written notice of a special meeting of stockholders, stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given to -#- each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. 2.5 Business at Special Meetings. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. 2.6 List of Stockholders. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder 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 where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also 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. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this section or the books of the corporation, or to vote in person or by proxy at any meeting of stockholders. -#- 2.7 Quorum at Meetings. Except as otherwise provided by statute or by the certificate of incorporation, the holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. If, however, such quorum shall not be present or represented at any such meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time to another time and place, without notice other than announcement at the meeting of such other time and place. At the adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. 2.8 Voting and Proxies. Unless otherwise provided in the certificate of incorporation, and subject to the provisions of Section 6.4 of these by-laws, each stockholder shall be entitled to one vote on each matter, in person or by proxy, for each share of the corporation's capital stock having voting power which is held by such stockholder. No proxy shall be voted or acted upon after three years from its date, unless the proxy -#- provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. 2.9 Required Vote. When a quorum is present at any meeting of stockholders, all matters shall be determined, adopted and approved by the vote (which need not be by ballot) of a majority of the votes cast with respect to the matter, unless the proposed action is one upon which, by express provision of statutes or of the certificate of incorporation, a different vote is specified and required, in which case such express provision shall govern and control the decision of such question. Notwithstanding the foregoing, candidates for election as members of the board of directors who receive the highest number of votes, up to the number of directors to be chosen, shall stand elected, and an absolute majority of the votes cast shall not be a prerequisite to the election of any candidate to the board of directors. 2.10 Action Without a Meeting. Unless otherwise provided in the 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 such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, is 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. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who shall not have consented in writing. 3. Directors. --------- 3.1 Powers. The business and affairs of the corporation shall be managed by or under the direction of the board of directors, which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. 3.2 Number and Election. The number of directors which shall constitute the whole board shall not be less than one nor more than ten. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors. The directors shall be elected at the annual -#- meeting of the stockholders, except as provided in Section 3.3 hereof, and each director elected shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Directors need not be stockholders. 3.3 Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director, and each director so chosen shall hold office until the next annual election and until his successor is elected and qualified, or until his earlier resignation or removal. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery of the State of Delaware may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the then outstanding shares having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office, in accordance with the General Corporation Law of the State of Delaware. In the event that one or more directors resigns from the board, effective at a future -#- date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office until the next annual election and until his successor is elected and qualified, or until his earlier resignation or removal. 3.4 Place of Meetings. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. 3.5 First Meeting of Each Board. The first meeting of each newly elected board of directors shall be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver of notice signed by all of the directors. 3.6 Regular Meetings. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board of directors. 3.7 Special Meetings. Special meetings of the board may be called by the president on one day's notice to each director, either personally or by telephone, by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of one-third of the total number of directors. -#- 3.8 Quorum and Vote at Meetings. At all meetings of the board, one director if a board of one director is authorized, or such greater number of directors as is not less than a majority of the total number of directors, shall constitute a quorum for the transaction of business. The vote of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting to another time and place, without notice other than announcement at the meeting of such other time and place. 3.9 Telephone Meetings. Members of the board of directors or any committee designated by the board may participate in a meeting of such board or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this section shall constitute presence in person at such meeting. 3.10 Action Without Meeting. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as -#- the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board of directors or committee. 3.11 Committees of Directors. 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. The board 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. If a member of a committee shall be absent from any meeting, or disqualified from voting thereat, the remaining member or members present and not disqualified from voting, whether or not such member or members constitute a quorum, may, by unanimous vote, appoint another member of the board of directors to act at the meeting in the place of such absent or disqualified member. 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 in reference to amending the certificate of incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors -#- pursuant to Section 151(a) of the General Corporation Law of the State of Delaware [hereinafter the "GCL"], fix 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), adopting an agreement of merger or consolidation pursuant to Sections 251 or 252 of the GCL, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless otherwise expressly provided in the resolution, no such committee shall have the power or authority to declare a dividend, to authorize the issuance of stock, or to adopt a certificate of ownership and merger pursuant to Section 253 of the GCL. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Unless otherwise specified in the resolution of the board of directors designating the committee, at all meetings of each such committee of directors, a majority of the total number of members of the committee shall constitute a quorum for the transaction of business, and the vote of a majority of the members of the committee present at any -#- meeting at which there is a quorum shall be the act of the committee. Each committee shall keep regular minutes of its meetings and report the same to the board of directors, when required. 3.12 Compensation of Directors. Unless otherwise restricted by the certificate of incorporation, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be paid like compensation for attending committee meetings. 4. Notices of Meetings. ------------------ 4.1 Notice Procedure. Whenever, whether under the provisions of any statute or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, such requirement shall not be construed to require the giving of personal notice. Such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall -#- be deemed to be given at the time when the same is deposited in the United States mail. Notice to directors may also be given by telex, telegram or telephone. 4.2 Waivers of Notice. Whenever the giving of any notice is required by statute, the certificate of incorporation or these by-laws, a waiver thereof, in writing, signed by the person or persons entitled to said notice, whether before or after the event as to which such notice is required, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting 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. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice, unless so required by the certificate of incorporation, by statute or by these by-laws. 5. Officers. -------- 5.1 Positions. The officers of the corporation shall be a chairman and a secretary, and such other officers as the board of directors may appoint, including a president, vice chairman, one or more vice presidents, a treasurer, assistant secretaries and assistant treasurers, who shall exercise such -#- powers and perform such duties as shall be determined from time to time by the board. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide; provided, however, that in no event shall the chairman and the secretary be the same person. 5.2 Appointment. The officers of the corporation shall be chosen by the board of directors at its first meeting after each annual meeting of stockholders. 5.3 Compensation. The compensation of all officers of the corporation shall be fixed by the board of directors. 5.4 Term of Office. The officers of the corporation shall hold office until their successors are chosen and qualify or until their earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. Any officer elected or appointed by the board of directors may be removed at any time, with or without cause, by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. 5.5 Fidelity Bonds. The corporation may secure the fidelity of any or all of its officers or agents by bond or otherwise. 5.6 Chairman. The chairman shall be the chief executive officer of the corporation, shall be ex officio a member of all standing committees, shall have general and active -#- management of the business of the corporation, shall ensure that all orders and resolutions of the board of directors are carried into effect, and, unless otherwise provided by the board of directors, shall preside at all meetings of the stockholders and the board of directors. The chairman shall have the authority to execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. 5.7 President. The president shall be the chief operating officer of the corporation, shall have general management of the day-to-day operations of the business of the corporation, subject to the authority of the chairman. In the absence of the chairman or in the event of the chairman's inability or refusal to act, the president shall perform the duties of the chairman (except to the extent that the vice chairman is authorized to perform such duties), and when so acting shall have all the powers of, and be subject to all the restrictions upon, the chairman. The president shall have the authority to execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be -#- expressly delegated by the board of directors to some other officer or agent of the corporation. 5.8 Vice Chairman or Vice Presidents. If the directors shall appoint a vice chairman or one or more vice presidents, such vice chairman or vice presidents shall perform such duties and have such powers as may be vested in such vice chairman or vice presidents by the board of directors or by the chairman. In the absence of the chairman, the vice chairman shall preside at all meetings of stockholders and the board of directors, and the vice chairman shall report to the chairman and be subject to his authority and direction. 5.9 Secretary. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders, and shall record all the proceedings of the meetings of the stockholders and of the board of directors in a book to be kept for that purpose, and shall perform like duties for the standing committees, when required. The secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or by the president, under whose supervision the secretary shall be. The secretary shall have custody of the corporate seal of the corporation, and the secretary, or an assistant secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed it may be attested by the signature of the -#- secretary or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by such officer's signature. The secretary or an assistant secretary may also attest all instruments signed by the chairman, the president or any vice president. 5.10 Assistant Secretary. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there shall have been no such determination, then in the order of their election), shall, in the absence of the secretary or in the event of the secretary's inability or refusal to act, perform the duties and exercise the powers of the secretary, and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 5.11 Treasurer. ---------- 5.11.1 Duties. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation, and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. The treasurer shall disburse the funds of the corporation as ordered by the board of directors, taking -#- proper vouchers for such disbursements, and shall render to the president, and to the board of directors at its regular meetings, or when the board of directors so requires, an account of all transactions as treasurer and of the financial condition of the corporation. 5.11.2 Bond. If required by the board of directors, the treasurer shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of the treasurer's office and for the restoration to the corporation, in case of the treasurer's death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind, in the treasurer's possession or under the treasurer's control and belonging to the corporation. 5.12 Assistant Treasurer. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there shall have been no such determination, then in the order of their election), shall, in the absence of the treasurer or in the event of the treasurer's inability or refusal to act, perform the duties and exercise the powers of the treasurer, and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. -#- 6. Capital Stock. ------------- 6.1 Certificates of Stock; Uncertificated Shares. The shares of the corporation shall be represented by certificates, provided that the board of directors may provide by resolution or resolutions that some or all of any or all classes or series of the corporation's stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the corporation. Notwithstanding the adoption of such a resolution by the board of directors, every holder of stock represented by certificates and upon request every holder of uncertificated shares shall be entitled to have a certificate signed by, or in the name of the corporation by the chairman or vice chairman of the board of directors, or the president or vice president, and by the treasurer and/or assistant treasurer, or the secretary or an assistant secretary of such corporation representing the number of shares registered in certificate form. Any or all the signatures on the certificate may be facsimile. In case any officer, transfer agent or registrar whose signature or facsimile signature appears on 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 such person were such officer, transfer agent or registrar at the date of issue. -#- 6.2 Lost Certificates. The board of directors may direct a new certificate or certificates of stock or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation and alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming that the certificate of stock has been lost, stolen or destroyed. When authorizing such issuance 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 such owner's legal representative, to advertise the same in such manner as the board shall require and/or to give the corporation a bond, in such sum as the board may direct, as indemnity against any claim that may be made against the corporation on account of the certificate alleged to have been lost, stolen or destroyed or on account of the issuance of such new certificate or uncertificated shares. 6.3 Transfers. The transfer of stock and certificates that represent the stock and the transfer of uncertificated shares shall be effected in accordance with the laws of the State of Delaware. Any restriction on the transfer of a security imposed by the corporation shall be noted conspicuously on the security. -#- 6.4 Fixing 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. 6.5 Registered Stockholders. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, to receive notifications, to vote as such owner, and to exercise all the rights and powers of an owner; and the corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware. -#- 7. Indemnification. --------------- Unless expressly prohibited by law, the corporation shall fully indemnify any person made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that such person, or such person's testator or intestate, is or was a director or officer, employee or agent of the corporation or serves or served any other enterprise at the request of the corporation, against all expenses (including attorneys' fees), judgments, fines and amounts paid or to be paid in settlement incurred in connection with such action, suit or proceeding. 8. General Provisions. ------------------ 8.1 Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation and the laws of the State of Delaware, may be declared by the board of directors at any regular or special meeting. Subject to the provisions of the General Corporation Law of the State of Delaware, such dividends may be paid either out of surplus, as defined in the General Corporation Law of the State of Delaware, or in the event that there shall be no such surplus, out of the net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year. Dividends may be paid in cash, in property, or in shares of the corporation's capital stock, subject to the provisions, if any, of the certificate of incorporation. -#- 8.2 Reserves. The directors of the corporation may set apart, out of the funds of the corporation available for dividends, a reserve or reserves for any proper purpose and may abolish any such reserve. 8.3 Execution of Instruments. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. 8.4 Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the board of directors. 8.5 Seal. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced. 9. Amendments. ---------- These by-laws may be altered, amended or repealed and new by-laws may be adopted by the board of directors. * * * * -#- The foregoing by-laws were adopted by the board of directors on April , 1992. --- -#- EX-3.13 11 EXHIBIT 3.13 CERTIFICATE OF INCORPORATION OF ORIONNET FINANCE CORPORATION FIRST: The name of the Corporation is OrionNet Finance Corporation (hereinafter called the "Corporation"). SECOND: The registered office of the Corporation in the State of Delaware is 1013 Centre Road, Wilmington, Delaware 19805, County of New Castle. The name of the Corporation's registered agent in Corporation Service Company. THIRD: The purpose of the Corporation is to engage in any lawful acts or activities for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of stock which the Corporation shall have the authority to issue is One Thousand (1,000) shares of Common Stock, all of one class, have a par value of $.01 per share. FIFTH: The name and mailing address of the incorporator is Richard H. Shay, 2440 Research Boulevard, Rockville, Marlyand 20850 (the "Incorporator"). SIXTH: The powers of the Incorporator shall terminate upon the filing of this Certificate of Incorporation, and the following persons, having the indicated mailing addresses, shall serve as the directors of the Corporation until the first annual meeting of the stockholders of the Corporation or until successor or successors are elected and qualify: Name Mailing Address ------------------------------------------------------------- John G. Puente 2440 Research Boulevard Rockville, Maryland 20850 W. Neil Bauer 2440 Research Boulevard Rockville, Maryland 20850 John Mattingly 2440 Research Boulevard Rockville, Maryland 20850 SEVENTH: The number of directors of the Corporation shall be such number as from time to time shall be fixed by, or in the manner provided in, the by-laws of the Corporation. Unless and except to the extent that the by-laws of the Corporation shall otherwise require, the election of directors of the Corporation need not be by written ballot. EIGHTH: In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized and empowered to adopt, amend and repeal by-laws of the Corporation. NINTH: No director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that nothing contained in the Article Ninth 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 if good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. TENTH: The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this Article Tenth. IN WITNESS WHEREOF, the undersigned, being the Incorporator hereinabove named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, hereby certifies that the facts hereinabove stated are truly set forth, and accordingly I have hereunto set my hand this day of , 1993. ------ ----- -------------------------- Richard H. Shay EX-3.14 12 EXHIBIT 3.14 BY-LAWS OF ORIONNET FINANCE CORPORATION 1. Offices. 1.1 Registered Office. The registered office of the corporation shall be in the City of Wilmington, County of New Castle, State of Delaware, and the registered agent in charge thereof shall be Corporation Service Company, 1013 Centre Road, Wilmington, Delaware 19805. 1.2 Other Offices. The corporation may also have offices at such other places, both within and without the State of Delaware, as the board of directors may from time to time determine or the business of the corporation may require. 2. Meetings of Stockholders. 2.1 Place of Meetings. All meetings of the stockholders for the election of directors shall be held in Washington, D.C. at such place as may be fixed from time to time by the board of directors, or at such other place, 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 the meeting or in a duly executed waiver of notice thereof. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. 2.2 Annual Meetings. Annual meetings of stockholders, commencing with the year 1993, shall be held on the first Thursday of May, if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 a.m., or at such other date and time as shall be designated from time to time by the board of directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof, at which stockholders shall elect a board of directors and transact such other business as may properly be brought before the meeting. 2.3 Special Meetings. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the board of directors or by the president, and shall be called by the president or secretary at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall include a statement of the purpose or purposes of the proposed meeting. 2.4 Notice of Meetings. Written notice of the annual meeting, stating the place, date and hour of the meeting, shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. Written notice of a special meeting of stockholders, stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. 2.5 Business at Special Meetings. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. 2.6 List of Stockholders. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder 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 where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also 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. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this section or the books of the corporation, or to vote in person or by proxy at any meeting of stockholders. 2.7 Quorum at Meetings. Except as otherwise provided by statute or by the certificate of incorporation, the holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. If, however, such quorum shall not be present or represented at any such meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time to another time and place, without notice other than announcement at the meeting of such other time and place. At the adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. 2.8 Voting and Proxies. Unless otherwise provided in the certificate of incorporation, and subject to the provisions of Section 6.4 of these by-laws, each stockholder shall be entitled to one vote on each matter, in person or by proxy, for each share of the corporation's capital stock having voting power which is held by such stockholder. No proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. 2.9 Required Vote. When a quorum is present at any meeting of stockholders, all matters shall be determined, adopted and approved by the vote (which need not be by ballot) of a majority of the votes cast with respect to the matter, unless the proposed action is one upon which, by express provision of statutes or of the certificate of incorporation, a different vote is specified and required, in which case such express provision shall govern and control the decision of such question. Notwithstanding the foregoing, candidates for election as members of the board of directors who receive the highest number of votes, up to the number of directors to be chosen, shall stand elected, and an absolute majority of the votes cast shall not be a prerequisite to the election of any candidate to the board of directors. 2.10 Action Without a Meeting. Unless otherwise provided in the 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 such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, is 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. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who shall not have consented in writing. 3. Directors. 3.1 Powers. The business and affairs of the corporation shall be managed by or under the direction of the board of directors, which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. 3.2 Number and Election. The number of directors which shall constitute the whole board shall not be less than one nor more than ten. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the board of directors. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 3.3 hereof, and each director elected shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Directors need not be stockholders. 3.3 Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director, and each director so chosen shall hold office until the next annual election and until his successor is elected and qualified, or until his earlier resignation or removal. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery of the State of Delaware may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the then outstanding shares having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office, in accordance with the General Corporation Law of the State of Delaware. In the event that one or more directors resigns from the board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office until the next annual election and until his successor is elected and qualified, or until his earlier resignation or removal. 3.4 Place of Meetings. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. 3.5 First Meeting of Each Board. The first meeting of each newly elected board of directors shall be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver of notice signed by all of the directors. 3.6 Regular Meetings. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board of directors. 3.7 Special Meetings. Special meetings of the board may be called by the president on one day's notice to each director, either personally or by telephone, by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of one-third of the total number of directors. 3.8 Quorum and Vote at Meetings. At all meetings of the board, one director if a board of one director is authorized, or such greater number of directors as is not less than a majority of the total number of directors, shall constitute a quorum for the transaction of business. The vote of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting to another time and place, without notice other than announcement at the meeting of such other time and place. 3.9 Telephone Meetings. Members of the board of directors or any committee designated by the board may participate in a meeting of such board or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this section shall constitute presence in person at such meeting. 3.10 Action Without Meeting. Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board of directors or committee. 3.11 Committees of Directors. 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. The board 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. If a member of a committee shall be absent from any meeting, or disqualified from voting thereat, the remaining member or members present and not disqualified from voting, whether or not such member or members constitute a quorum, may, by unanimous vote, appoint another member of the board of directors to act at the meeting in the place of such absent or disqualified member. 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 in reference to amending the certificate of incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors pursuant to Section 151(a) of the General Corporation Law of the State of Delaware [hereinafter the "GCL"], fix 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), adopting an agreement of merger or consolidation pursuant to Sections 251 or 252 of the GCL, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless otherwise expressly provided in the resolution, no such committee shall have the power or authority to declare a dividend, to authorize the issuance of stock, or to adopt a certificate of ownership and merger pursuant to Section 253 of the GCL. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. Unless otherwise specified in the resolution of the board of directors designating the committee, at all meetings of each such committee of directors, a majority of the total number of members of the committee shall constitute a quorum for the transaction of business, and the vote of a majority of the members of the committee present at any meeting at which there is a quorum shall be the act of the committee. Each committee shall keep regular minutes of its meetings and report the same to the board of directors, when required. 3.12 Compensation of Directors. Unless otherwise restricted by the certificate of incorporation, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be paid like compensation for attending committee meetings. 4. Notices of Meetings. 4.1 Notice Procedure. Whenever, whether under the provisions of any statute or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, such requirement shall not be construed to require the giving of personal notice. Such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same is deposited in the United States mail. Notice to directors may also be given by telex, telegram or telephone. 4.2 Waivers of Notice. Whenever the giving of any notice is required by statute, the certificate of incorporation or these by-laws, a waiver thereof, in writing, signed by the person or persons entitled to said notice, whether before or after the event as to which such notice is required, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting 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. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice, unless so required by the certificate of incorporation, by statute or by these by-laws. 5. Officers. 5.1 Positions. The officers of the corporation shall be a president, a secretary and a treasurer, and such other officers as the board of directors may appoint, including a chairman of the board, and one or more vice presidents, assistant secretaries and assistant treasurers, who shall exercise such powers and perform such duties as shall be determined from time to time by the board. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide; provided, however, that in no event shall the president and the secretary be the same person. 5.2 Appointment. The officers of the corporation shall be chosen by the board of directors at its first meeting after each annual meeting of stockholders. 5.3 Compensation. The compensation of all officers of the corporation shall be fixed by the board of directors. 5.4 Term of Office. The officers of the corporation shall hold office until their successors are chosen and qualify or until their earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. Any officer elected or appointed by the board of directors may be removed at any time, with or without cause, by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. 5.5 Fidelity Bonds. The corporation may secure the fidelity of any or all of its officers or agents by bond or otherwise. 5.6 President. The president shall be the chief executive officer of the corporation, shall be ex officio a member of all standing committees, shall have general and active management of the business of the corporation, shall ensure that all orders and resolutions of the board of directors are carried into effect, and, unless otherwise provided by the board of directors, shall preside at all meetings of the stockholders and the board of directors. The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. 5.7 Vice President. In the absence of the president or in the event of the president's inability or refusal to act, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting shall have all the powers of, and be subject to all the restrictions upon, the president. The vice presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 5.8 Chairman of the Board. If the directors shall appoint a chairman of the board, the chairman shall, when present, preside at all meetings of the board of directors and shall perform such other duties and have such other powers as may be vested in the chairman by the board of directors. 5.9 Secretary. The secretary shall attend all meetings of the board of directors and all meetings of the stockholders, and shall record all the proceedings of the meetings of the stockholders and of the board of directors in a book to be kept for that purpose, and shall perform like duties for the standing committees, when required. The secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or by the president, under whose supervision the secretary shall be. The secretary shall have custody of the corporate seal of the corporation, and the secretary, or an assistant secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed it may be attested by the signature of the secretary or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by such officer's signature. The secretary or an assistant secretary may also attest all instruments signed by the chairman of the board, the president or any vice president. 5.10 Assistant Secretary. The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there shall have been no such determination, then in the order of their election), shall, in the absence of the secretary or in the event of the secretary's inability or refusal to act, perform the duties and exercise the powers of the secretary, and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 5.11 Treasurer. 5.11.1 Duties. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation, and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. The treasurer shall disburse the funds of the corporation as ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president, and to the board of directors at its regular meetings, or when the board of directors so requires, an account of all transactions as treasurer and of the financial condition of the corporation. 5.11.2 Bond. If required by the board of directors, the treasurer shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of the treasurer's office and for the restoration to the corporation, in case of the treasurer's death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind, in the treasurer's possession or under the treasurer's control and belonging to the corporation. 5.12 Assistant Treasurer. The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there shall have been no such determination, then in the order of their election), shall, in the absence of the treasurer or in the event of the treasurer's inability or refusal to act, perform the duties and exercise the powers of the treasurer, and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 6. Capital Stock. 6.1 Certificates of Stock; Uncertificated Shares. The shares of the corporation shall be represented by certificates, provided that the board of directors may provide by resolution or resolutions that some or all of any or all classes or series of the corporation's stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the corporation. Notwithstanding the adoption of such a resolution by the board of directors, every holder of stock represented by certificates and upon request every holder of uncertificated shares shall be entitled to have a certificate signed by, or in the name of the corporation by the chairman or vice chairman of the board of directors, or the president or vice president, and by the treasurer and/or assistant treasurer, or the secretary or an assistant secretary of such corporation representing the number of shares registered in certificate form. Any or all the signatures on the certificate may be facsimile. In case any officer, transfer agent or registrar whose signature or facsimile signature appears on 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 such person were such officer, transfer agent or registrar at the date of issue. 6.2 Lost Certificates. The board of directors may direct a new certificate or certificates of stock or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the corporation and alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming that the certificate of stock has been lost, stolen or destroyed. When authorizing such issuance 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 such owner's legal representative, to advertise the same in such manner as the board shall require and/or to give the corporation a bond, in such sum as the board may direct, as indemnity against any claim that may be made against the corporation on account of the certificate alleged to have been lost, stolen or destroyed or on account of the issuance of such new certificate or uncertificated shares. 6.3 Transfers. The transfer of stock and certificates that represent the stock and the transfer of uncertificated shares shall be effected in accordance with the laws of the State of Delaware. Any restriction on the transfer of a security imposed by the corporation shall be noted conspicuously on the security. 6.4 Fixing 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. 6.5 Registered Stockholders. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, to receive notifications, to vote as such owner, and to exercise all the rights and powers of an owner; and the corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware. 7. Indemnification. Unless expressly prohibited by law, the corporation shall fully indemnify any person made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that such person, or such persons testator or intestate, is or was a director or officer, employee or agent of the corporation or serves or served any other enterprise at the request of the corporation, against all expenses (including attorneys' fees), judgments, fines and amounts paid or to be paid in settlement incurred in connection with such action, suit or proceeding. 8. General Provisions. 8.1 Dividends. Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation and the laws of the State of Delaware, may be declared by the board of directors at any regular or special meeting. Subject to the provisions of the General Corporation Law of the State of Delaware, such dividends may be paid either out of surplus, as defined in the General Corporation Law of the State of Delaware, or in the event that there shall be no such surplus, out of the net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year. Dividends may be paid in cash, in property, or in shares of the corporation's capital stock, subject to the provisions, if any, of the certificate of incorporation. 8.2 Reserves. The directors of the corporation may set apart, out of the funds of the corporation available for dividends, a reserve or reserves for any proper purpose and may abolish any such reserve. 8.3 Execution of Instruments. All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. 8.4 Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of the board of directors. 8.5 Seal. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced. 9. Amendments. These by-laws may be altered, amended or repealed and new by-laws may be adopted by the board of directors. * * * * The foregoing by-laws were adopted by the board of directors on ______________, 1993. ---------------------------------- Secretary EX-3.15 13 EXHIBIT 3.15 CERTIFICATE OF INCORPORATION OF Asia Pacific Space And Communications, Ltd. The undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to as the "General Corporation Law of the State of Delaware"), hereby certifies that: FIRST: The name of the corporation (hereinafter called the "corporation") is Asia Pacific Space And Communications, Ltd. SECOND: The address, including street, number, city, and county, of the registered office of the corporation in the State of Delaware is 229 South State Street, City of Dover, County of Kent; and the name of the registered agent of the corporation in the State of Delaware is The Prentice-Hall Corporation System, Inc. THIRD: The purpose 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. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is Ten Million (10,000,000). The par value of each of such shares is One Cent ($.01). All such shares are of one class and are shares of Common Stock. FIFTH: The name and the mailing address of the incorporator are as follows: NAME MAILING ADDRESS T. M. Bonovich 229 South State Street, Dover, Delaware SIXTH: The corporation is to have perpetual existence. SEVENTH: Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under the provisions of section 291 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation. EIGHTH: For the management of the business and for the conduct of the affairs of the corporation, and in further definition, limitation and regulation of the powers of the corporation and of its directors and of its stockholders or any class thereof, as the case may be, it is further provided: 1. The management of the business and the conduct of the affairs of the corporation shall be vested in its Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the By-Laws. The phrase "whole Board" and the phrase "total number of directors" shall be deemed to have the same meaning, to wit, the total number of directors which the corporation would have if there were no vacancies. No election of directors need be by written ballot. 2. After the original or other By-Laws of the corporation have been adopted, amended, or repealed, as the case may be, in accordance with the provisions of Section 109 of the General Corporation Law of the State of Delaware, and, after the corporation has received any payment for any of its stock, the power to adopt, amend, or repeal the By-Laws of the corporation may be exercised by the Board of Directors of the corporation; provided, however, that any provision for the classification of directors of the corporation for staggered terms pursuant to the provisions of subsection (d) of Section 141 of the General Corporation Law of the State of Delaware shall be set forth in an initial By-Law or in a By-Law adopted by the stockholders entitled to vote of the corporation unless provisions for such classification shall be set forth in this certificate of incorporation. 3. Whenever the corporation shall be authorized to issue only one class of stock, each outstanding share shall entitle the holder thereof to notice of, and the right to vote at, any meeting of stockholders. Whenever the corporation shall be authorized to issue more than one class of stock, no outstanding share of any class of stock which is denied voting power under the provisions of the certificate of incorporation shall entitle the holder thereof to the right to vote at any meeting of stockholders except as the provisions of paragraph (2) of subsection (b) of section 242 of the General Corporation Law of the State of Delaware shall otherwise require; provided, that no share of any such class which is otherwise denied voting power shall entitle the holder thereof to vote upon the increase or decrease in the number of authorized shares of said class. NINTH: The personal liability of the directors of the corporation is hereby eliminated to the fullest extent permitted by paragraph (7) of subsection (b) of Section 102 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented. TENTH: The corporation shall, to the fullest extent permitted by Section 145 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify under said section from and against any and all of the expenses, liabilities or other matters referred to in or covered by said section, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any 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, and 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. ELEVENTH: From time to time any of the provisions of this certificate of incorporation may be amended, altered or repealed, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted in the manner and at the time prescribed by said laws, and all rights at any time conferred upon the stockholders of the corporation by this certificate of incorporation are granted subject to the provisions of this Article ELEVENTH. Signed on October 13, 1987. /s/ T. M. Bonavich -------------------------- T. M. Bonovich Incorporator EX-3.16 14 EXHIBIT 3.16 AMENDED AND RESTATED BYLAWS OF Asia Pacific Space And Communications, Ltd. (a Delaware corporation) ARTICLE I STOCKHOLDERS 1. CERTIFICATES REPRESENTING STOCK. Certificates representing stock in the corporation shall be signed by, or in the name of, the corporation by the Chairman or Vice-Chairman of the Board of Directors, if any, or by the President or a Vice-President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the corporation. Any or all the signatures on any such 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. Whenever the corporation shall be authorized to issue more than one class of stock or more than one series of any class of stock, and whenever the corporation shall issue any shares of its stock as partly paid stock, the certificates representing shares of any such class or series or of any such partly paid stock shall set forth thereon the statements prescribed by the General Corporation Law. Any restrictions on the transfer or registration of transfer of any shares of stock of any class or series shall be noted conspicuously on the certificate representing such shares. The corporation may issue a new certificate of stock or uncertificated shares in place of any certificate theretofore issued by it, alleged to have been lost, stolen, or destroyed, and the Board of Directors may require the owner of the lost, stolen, or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against it on account of the alleged loss, theft, or destruction of any such certificate or the issuance of any such new certificate or uncertificated shares. 2. UNCERTIFICATED SHARES. Subject to any conditions imposed by the General Corporation Law, the Board of Directors of the corporation may provide by resolution or resolutions that some or all of any or all classes or series of the stock of the corporation shall be uncertificated shares. Within a reasonable time after the issuance or transfer of any uncertificated shares, the corporation shall send to the registered owner thereof any written notice prescribed by the General Corporation Law. 3. FRACTIONAL SHARE INTERESTS. The corporation may, but shall not be required to, issue fractions of a share. If the corporation does not issue fractions of a share, it shall (1) arrange for the disposition of fractional interests by those entitled thereto, (2) pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined, or (3) issue scrip or warrants in registered form (either represented by a certificate or uncertificated) or bearer form (represented by a certificate) which shall entitle the holder to receive a full share upon the surrender of such scrip or warrants aggregating a full share. A certificate for a fractional share or an uncertificated fractional share shall, but scrip or warrants shall not unless otherwise provided therein, entitle the holder to exercise voting rights, to receive dividends thereon, and to participate in any of the assets of the corporation in the event of liquidation. The Board of Directors may cause scrip or warrants to be issued subject to the conditions that they shall became void if not exchanged for certificates representing the full shares or uncertificated full shares before a specified date, or subject to the conditions that the shares for which scrip or warrants are exchangeable may be sold by the corporation and the proceeds thereof distributed to the holders of scrip or warrants, or subject to any other conditions which the Board of Directors may impose. 4. STOCK TRANSFERS. Upon compliance with provisions restricting the transfer or registration of transfer of shares of stock, if any, transfers or registration of transfers of shares of stock of the corporation shall be made only on the stock ledger of the corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the corporation or with a transfer agent or a registrar, if any, and, in the case of shares represented by certificates, on surrender of the certificate or certificates for such shares of stock properly endorsed and the payment of all taxes due thereon. 5. RECORD DATE FOR STOCKHOLDERS. 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, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. 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. In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining the stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by the General Corporation Law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is 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 by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by the General Corporation Law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders 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 a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. 6. MEANING OF CERTAIN TERMS. As used herein in respect of the right to notice of a meeting of stockholders or a waiver thereof or to participate or vote thereat or to consent or dissent in writing in lieu of a meeting, as the case may be, the term "share" or "shares" or "share of stock" or "shares of stock" or "stockholder" or "stockholders" refers to an outstanding share or shares of stock and to a holder or holders of record of outstanding shares of stock when the corporation is authorized to issue only one class of shares of stock, and said reference is also intended to include any outstanding share or shares of stock and any holder or holders of record of outstanding shares of stock of any class upon which or upon whom the certificate of incorporation confers such rights where there are two or more classes or series of shares of stock or upon which or upon whom the General Corporation Law confers such rights notwithstanding that the certificate of incorporation may provide for more than one class or series of shares of stock, one or more of which are limited or denied such rights thereunder; provided, however, that no such right shall vest in the event of an increase or a decrease in the authorized number of shares of stock of any class or series which is otherwise denied voting rights under the provisions of the certificate of incorporation, except as any provision of law may otherwise require. 7. STOCKHOLDER MEETINGS. - TIME. The annual meeting shall be held on the date and at the time fixed, from time to time, by the directors, provided, that the first annual meeting shall be held on a date within thirteen months after the organization of the corporation, and each successive annual meeting shall be held on a date within thirteen months after the date of the preceding annual meeting. A special meeting shall be held on the date and at the time fixed by the directors. - PLACE. Annual meetings and special meetings shall be held at such place, within or without the State of Delaware, as the directors may, from time to time, fix. Whenever the directors shall fail to fix such place, the meeting shall be held at the registered office of the corporation in the State of Delaware. - CALL. Annual meetings and special meetings may be called by the directors or by any officer instructed by the directors to call the meeting. - NOTICE OR WAIVER OF NOTICE. Written notice of all meetings shall be given, stating the place, date, and hour of the meeting and stating the place within the city or other municipality or community at which the list of stockholders of the corporation may be examined. The notice of an annual meeting shall state that the meeting is called for the election of directors and for the transaction of other business which may properly come before the meeting, and shall (if any other action which could be taken at a special meeting is to be taken at such annual meeting) state the purpose or purposes. The notice of a special meeting shall in all instances state the purpose or purposes for which the meeting is called. The notice of any meeting shall also include, or be accompanied by, any additional statements, information, or documents prescribed by the General Corporation Law. Except as otherwise provided by the General Corporation Law, a copy of the notice of any meeting shall be given, personally or by mail, not less than ten days nor more than sixty days before the date of the meeting, unless the lapse of the prescribed period of time shall have been waived, and directed to each stockholder at his record address or at such other address which he may have furnished by request in writing to the Secretary of the corporation. Notice by mail shall be deemed to be given when deposited, with postage thereon prepaid, in the United States Mail. If a meeting is adjourned to another time, not more than thirty days hence, and/or to another place, and if an announcement of the adjourned time and/or place is made at the meeting, it shall not be necessary to give notice of the adjourned meeting unless the directors, after adjournment, fix a new record date for the adjourned meeting. Notice need not be given to any stockholder who submits a written waiver of notice signed by him before or after the time stated therein. Attendance of a stockholder at a meeting of stockholders shall constitute a waiver of notice of such meeting, except when the stockholder attends the meeting 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. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver of notice. - STOCKHOLDER LIST. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders, arranged in alphabetical order, and showing the address of each stockholder 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 or other municipality or community where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held. The list shall also 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. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this section or the books of the corporation, or to vote at any meeting of stockholders. - CONDUCT OF MEETING. Meetings of the stockholders shall be presided over by one of the following officers in the order of seniority and if present and acting - the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, the President, a Vice-President, or, if none of the foregoing is in office and present and acting, by a chairman to be chosen by the stockholders. The Secretary of the corporation, or in his absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present the Chairman of the meeting shall appoint a secretary of the meeting. - PROXY REPRESENTATION. Every stockholder may authorize another person or persons to act for him by proxy in all matters in which a stockholder is entitled to participate, whether by waiving notice of any meeting, voting or participating at a meeting, or expressing consent or dissent without a meeting. Every proxy must be signed by the stockholder or by his attorney-in-fact. No proxy shall be voted or acted upon after three years from its date unless such proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and, if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. - INSPECTORS. The directors, in advance of any meeting, may, but need not, appoint one or more inspectors of election to act at the meeting or any adjournment thereof. If an inspector or inspectors are not appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors. In case any person who may be appointed as an inspector fails to appear or act, the vacancy may be filled by appointment made by the directors in advance of the meeting or at the meeting by the person plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Any other action shall be authorized by a majority of the votes cast except where the General Corporation Law prescribes a different percentage of votes and/or a different exercise of voting power, and except as may be otherwise prescribed by the provisions of the certificate of incorporation and these Bylaws. In the election of directors, and for any other action, voting need not be by ballot. 8. STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required by the General Corporation Law to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent 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. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law. ARTICLE II DIRECTORS 1. FUNCTIONS AND DEFINITION. The business and affairs of the corporation shall be managed by or under the direction of the Board of Directors of the corporation. The Board of Directors shall have the authority to fix the compensation of the members thereof. The use of the phrase "whole board" herein refers to the total number of directors which the corporation would have if there were no vacancies. 2. QUALIFICATIONS AND NUMBER. A director need not be a stockholder, a citizen of the United States, or a resident of the State of Delaware. The initial Board of Directors shall consist of one person. Thereafter the number of directors constituting the whole board shall be at least one. Subject to the foregoing limitation and except for the first Board of Directors, such number may be fixed from time to time by action of the stockholders or of the directors, or, if the number is not fixed, the number shall be one. The number of directors may be increased or decreased by action of the stockholders or of the directors.* 3. ELECTION AND TERM. The first Board of Directors, unless the members thereof shall have been named in the certificate of incorporation, shall be elected by the incorporator or incorporators and shall hold office until the first annual meeting of stockholders and until their successors are elected and qualified or until their earlier resignation or removal. Any director may resign at any time upon written notice to the corporation. Thereafter, directors who are elected at an annual meeting of stockholders, and directors who are elected. Except as the General Corporation Law may otherwise require, in the interim to fill vacancies and newly created directorships, shall hold office until the next annual meeting of stockholders and until their successors are elected and qualified or until their earlier resignation or removal. In the interim between annual meetings of stockholders or of special meetings of stockholders called for the election of directors and/or for the removal of one or more directors and for the filling of any vacancy in that connection, newly created directorships and any vacancies in the Board of Directors, including unfilled vacancies resulting - -------- * Maximum number of directors fixed at three as of 14 Oct 1989; fixed at seven as of 22 Jan 1989. from the removal of directors for cause or without cause, may be filled by the vote of a majority of the remaining directors then in office, although less than a quorum, or by the sole remaining director. 4. MEETINGS. - TIME. Meetings shall be held at such time as the Board shall fix, except that the first meeting of a newly elected Board shall be held as soon after its election as the directors may conveniently assemble. - PLACE. Meetings shall be held at such place within or without the State of Delaware as shall be fixed by the Board. - CALL. No call shall be required for regular meetings for which the time and place have been fixed. Special meetings may be called by or at the direction of the Chairman of the Board, if any, the Vice-Chairman of the Board, if any, of the President, or of a majority of the directors in office. - NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be required for regular meetings for which the time and place have been fixed. Written, oral, or any other mode of notice of the time and place shall be given for special meetings in sufficient time for the convenient assembly of the directors thereat. Notice need not be given to any director or to any member of a committee of directors who submits a written waiver of notice signed by him before or after the time stated therein. Attendance of any such person at a meeting shall constitute a waiver of notice of such meeting, except when he attends a meeting 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. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the directors need be specified in any written waiver of notice. - QUORUM AND ACTION. A majority of the whole Board shall constitute a quorum except when a vacancy or vacancies prevents such majority, whereupon a majority of the directors in office shall constitute a quorum, provided, that such majority shall constitute at least one-third of the whole Board. A majority of the directors present, whether or not a quorum is present, may adjourn a meeting to another time and place. Except as herein otherwise provided, and except as otherwise provided by the General Corporation Law, the vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board. The quorum and voting provisions herein stated shall not be construed as conflicting with any provisions of the General Corporation Law and these Bylaws which govern a meeting of directors held to fill vacancies and newly created directorships in the Board or action of disinterested directors. Any member or members of the Board of Directors or of any committee designated by the Board, may participate in a meeting of the Board, or any such committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. - CHAIRMAN OF THE MEETING. The Chairman of the Board, if any and if present and acting, shall preside at all meetings. Otherwise, the Vice-Chairman of the Board, if any and if present and acting, or the President, if present and acting, or any other director chosen by the Board, shall preside. 5. REMOVAL OF DIRECTORS. Except as may otherwise be provided by the General Corporation Law, any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. 6. COMMITTEES. 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. The Board 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. In the absence or disqualification of any member of any such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the corporation with the exception of any authority the delegation of which is prohibited by Section 141 of the General Corporation Law, and may authorize the seal of the corporation to be affixed to all papers which may require it. 7. WRITTEN ACTION. Any action required or permitted to be taken at any meeting of the Board of Directors or any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee. ARTICLE III OFFICERS The officers of the corporation shall consist of a President, a Secretary, a Treasurer, and, if deemed necessary, expedient, or desirable by the Board of Directors, a Chairman of the Board, a Vice-Chairman of the Board, an Executive Vice-President, one or more other Vice-Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers with such titles as the resolution of the Board of Directors choosing them shall designate. Except as may otherwise be provided in the resolution of the Board of Directors choosing him, no officer other than the Chairman or Vice-Chairman of the Board, if any, need be a director. Any number of offices may be held by the same person, as the directors may determine. Unless otherwise provided in the resolution choosing him, each officer shall be chosen for a term which shall continue until the meeting of the Board of Directors following the next annual meeting of stockholders and until his successor shall have been chosen and qualified. All officers of the corporation shall have such authority and perform such duties in the management and operation of the corporation as shall be prescribed in the resolutions of the Board of Directors designating and choosing such officers and prescribing their authority and duties, and shall have such additional authority and duties as are incident to their office except to the extent that such resolutions may be inconsistent therewith. The Secretary or an Assistant Secretary of the corporation shall record all of the proceedings of all meetings and actions in writing of stockholders, directors, and committees of directors, and shall exercise such additional authority and perform such additional duties as the Board shall assign to him. Any officer may be removed, with or without cause, by the Board of Directors. Any vacancy in any office may be filled by the Board of Directors. ARTICLE IV CORPORATE SEAL The corporate seal shall be in such form as the Board of Directors shall prescribe. ARTICLE V FISCAL YEAR The fiscal year of the corporation shall be fixed, and shall be subject to change, by the Board of Directors. ARTICLE VI CONTROL OVER BYLAWS Subject to the provisions of the certificate of incorporation and the provisions of the General Corporation Law, the power to amend, alter, or repeal these Bylaws and to adopt new Bylaws may be exercised by the Board of Directors or by the stockholders. EX-3.17 15 EXHIBIT 3.17 CERTIFICATE OF INCORPORATION OF ORION ATLANTIC EUROPE, INC. 1. NAME The name of this corporation is Orion Atlantic Europe, Inc. (the "Corporation"). 2. REGISTERED OFFICE AND AGENT The registered office of the Corporation shall be located at Corporation Service Comany, 1013 Centre Road, Wilmington, Delaware 19805 in the County of New Castle. The registered agent of the Corporation at such address shall be The Corporation Trust Company. 3. PURPOSE AND POWERS The purpose 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, as amended (the "Delaware General Corporation Law"). The Corporation shall have all power necessary or helpful to engage in such acts and activities. 4. CAPITAL STOCK 4.1. Authorized Shares The total number of shares of all classes of stock that the Corporation shall have the authority to issue is One Thousand shares of Common Stock, all of one class, having a par value of $.01 per share ("Common Stock"). 5. INCORPORATOR; INITIAL DIRECTORS 5.1. Incorporator The name and mailing address of the incorporator (the "Incorporator") are Sharon Branscome, Corporation Service Company, 1013 Centre Road, Wilmington, DE 19805. The powers of the Incorporator shall terminate upon the filing of this Certificate of Incorporation. 5.2. Initial Directors The following persons, having the following mailing addresses, shall serve as the directors of the Corporation until the first annual meeting of the stockholders of the Corporation or until their successors are elected and qualified: NAME MAILING ADDRESS John G. Puente 2440 Research Boulevard, Suite 400, Rockville, Maryland 20850 W. Neil Bauer 2440 Research Boulevard, Suite 400, Rockville, Maryland 20850 David J. Frear 2440 Research Boulevard, Suite 400, Rockville, Maryland 20850 6. BOARD OF DIRECTORS 6.1. Number; Election The number of directors of the Corporation shall be such number as from time to time shall be fixed by, or in the manner provided in, the bylaws of the Corporation. Unless and except to the extent that the bylaws of the Corporation shall otherwise require, the election of directors of the Corporation need not be by written ballot. 6.2. Limitation of Liability No director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that this provision shall not eliminate or limit the liability of a director (a) for any breach of the director's duty of loyalty to the Corporation or its stockholders; (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (c) for the types of liability set forth in Section 174 of the Delaware General Corporation Law; or (d) for any transaction from which the director received any improper personal benefit. -2- 7. INDEMNIFICATION To the extent permitted by law, the Corporation shall fully 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) by reason of the fact that such person is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. The Corporation shall advance expenses (including attorneys' fees) incurred by a director or officer in advance of the final disposition of such action, suit or proceeding upon the receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that such director or officer is not entitled to indemnification. The Corporation may advance expenses (including attorneys' fees) incurred by an employee or agent in advance of the final disposition of such action, suit or proceeding upon such terms and conditions, if any, as the Board of Directors deems appropriate. 8. AMENDMENT OF BYLAWS In furtherance and not in limitation of the powers conferred by the Delaware General Corporation Law, the Board of Directors of the Corporation is expressly authorized and empowered to adopt, amend and repeal the bylaws of the Corporation. -3- IN WITNESS WHEREOF, the undersigned, being the Incorporator hereinabove named, for the purpose of forming a corporation pursuant to the Delaware General Corporation Law, hereby certifies that the facts hereinabove stated are truly set forth, and accordingly executes this Certificate of Incorporation this 21 day of August, 1995. - -- Inrporator By: /s/Sharon Branscome --------------------------- -4- EX-3.18 16 EXHIBIT 3.18 ORION ATLANTIC EUROPE, INC. BYLAWS Adopted as of August 24, 1995 TABLE OF CONTENTS Page ---- 1. OFFICES..................................................................1 1.1. Registered Office...............................................1 1.2. Other Offices...................................................1 2. MEETINGS OF STOCKHOLDERS.................................................1 2.1. Place of Meetings...............................................1 2.2. Annual Meetings.................................................1 2.3. Special Meetings................................................1 2.4. Notice of Meetings..............................................2 2.5. Waivers of Notice...............................................2 2.6. Business at Special Meetings....................................2 2.7. List of Stockholders............................................2 2.8. Quorum at Meetings..............................................3 2.9. Voting and Proxies..............................................3 2.10. Required Vote...................................................3 2.11. Action Without a Meeting........................................4 3. DIRECTORS................................................................4 3.1. Powers..........................................................4 3.2. Number and Election.............................................4 3.3. Nomination of Directors.........................................4 3.4. Vacancies.......................................................5 3.5. Meetings........................................................5 3.5.1. Regular Meetings........................................5 3.5.2. Special Meetings........................................5 3.5.3. Telephone Meetings......................................6 3.5.4. Action Without Meeting..................................6 3.5.5. Waiver of Notice of Meeting.............................6 3.6. Quorum and Vote at Meetings.....................................6 3.7. Committees of Directors.........................................6 3.8. Compensation of Directors.......................................7 4. OFFICERS.................................................................7 4.1. Positions.......................................................7 4.2. President.......................................................7 4.3. Vice President..................................................8 4.4. Secretary.......................................................8 4.5. Assistant Secretary.............................................8 4.6. Treasurer.......................................................8 4.7. Assistant Treasurer.............................................8 4.8. Term of Office..................................................8 4.9. Compensation....................................................9 4.10. Fidelity Bonds..................................................9 -i- 5. CAPITAL STOCK............................................................9 5.1. Certificates of Stock; Uncertificated Shares....................9 5.2. Lost Certificates...............................................9 5.3. Record Date....................................................10 5.3.1. Actions by Stockholders................................10 5.3.2. Payments ..............................................10 5.4. Stockholders of Record.........................................11 6. INSURANCE...............................................................11 7. GENERAL PROVISIONS......................................................11 7.1. Inspection of Books and Records................................11 7.2. Dividends......................................................12 7.3. Reserves.......................................................12 7.4. Execution of Instruments.......................................12 7.5. Fiscal Year....................................................12 7.6. Seal...........................................................12 8. AMENDMENT...............................................................12 -ii- ' BYLAWS OF ORION ATLANTIC EUROPE, INC. 1. OFFICES 1.1. Registered Office The initial registered office of the Corporation shall be in Wilmington, Delaware, and the initial registered agent in charge thereof shall be Corporation Service Company. 1.2. Other Offices The Corporation may also have offices at such other places, both within and without the State of Delaware, as the Board of Directors may from time to time determine or as may be necessary or useful in connection with the business of the Corporation. 2. MEETINGS OF STOCKHOLDERS 2.1. Place of Meetings All meetings of the stockholders shall be held at such place as may be fixed from time to time by the Board of Directors. 2.2. Annual Meetings The Corporation shall hold annual meetings of stockholders, commencing with the year 1996, on the first Thursday of May, if not a legal holiday, and if a legal holiday, then on the next secular day following, at 2:00 p.m., or at such other date and time as shall be designated from time to time by the Board of Directors, and stated in the notice of the meeting or in a duly executed waiver thereof, at which stockholders shall elect a Board of Directors and transact such other business as may properly be brought before the meeting. 2.3. Special Meetings Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the Board of Directors or the President, and shall be called by the President or Secretary at the request in writing of stockholders owning a majority in amount of the entire capital stock of the Corporation issued and outstanding and entitled to vote. Such request shall include a statement of the purpose or purposes of the proposed meeting. 2.4. Notice of Meetings Written notice of any meeting of stockholders, stating the place, date and hour of the meeting, and (if it is a special meeting) the purpose or purposes for which the meeting is called, shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting (except to the extent that such notice is waived or is not required as provided in the General Corporation Law of the State of Delaware, as amended (the "Delaware General Corporation Law") or these Bylaws). Such notice shall be given in accordance with, and shall be deemed effective as set forth in, Section 222 (or any successor section) of the Delaware General Corporation Law. 2.5. Waivers of Notice Whenever the giving of any notice is required by statute, the Certificate of Incorporation or these Bylaws, a waiver thereof, in writing and delivered to the Corporation, signed by the person or persons entitled to said notice, whether before or after the event as to which such notice is required, shall be deemed equivalent to notice. Attendance of a stockholder at a meeting shall constitute a waiver of notice (1) of such meeting, except when the stockholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting, and (2) (if it is a special meeting) of consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the stockholder objects to considering the matter at the beginning of the meeting. 2.6. Business at Special Meetings Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice (except to the extent that such notice is waived or is not required as provided in the Delaware General Corporation Law or these Bylaws). 2.7. List of Stockholders After the record date for a meeting of stockholders has been fixed, at least ten days before such meeting, the officer who has charge of the stock ledger of the Corporation shall make a list of all stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder 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 in the city where the meeting is to be held, which place is to be specified in the notice of the meeting, or at the place where the meeting is to be held. Such list shall also, for the duration of the meeting, be produced and kept -2- open to the examination of any stockholder who is present at the time and place of the meeting. Such list shall be the only evidence as to who are the stockholders entitled to examine the list, the list required by this section or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders. 2.8. Quorum at Meetings Stockholders may take action on a matter at a meeting only if a quorum exists with respect to that matter. Except as otherwise provided by statute or by the Certificate of Incorporation, the holders of a majority of the stock issued and outstanding and entitled to vote at the meeting, and who are present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. Once a share is represented for any purpose at a meeting (other than solely to object (1) to holding the meeting or transacting business at the meeting, or (2) (if it is a special meeting) to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice), it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for the adjourned meeting. The holders of a majority of the voting shares represented at a meeting, whether or not a quorum is present, may adjourn such meeting from time to time. At the adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. 2.9. Voting and Proxies Unless otherwise provided in the Delaware General Corporation Law or in the Certificate of Incorporation, and subject to the other provisions of these Bylaws, each stockholder shall be entitled to one vote on each matter, in person or by proxy, for each share of the Corporation's capital stock that has voting power and that is held by such stockholder. No proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed appointment of proxy shall be irrevocable if the appointment form states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. 2.10. Required Vote If a quorum exists, action on a matter (other than the election of directors) is approved if the votes cast favoring the action exceed the votes cast opposing the action, unless the Certificate of Incorporation or the Delaware General Corporation Law requires a greater number of affirmative votes (in which case such different requirement shall apply). Directors shall be elected by a plurality of the -3- votes cast by the shares entitled to vote in the election (provided a quorum exists), and the election of directors need not be by written ballot. 2.11. Action Without a Meeting Any action required or permitted to be taken at a stockholders' meeting may be taken without a meeting if the action is taken by persons who would be entitled to vote at a meeting and who hold shares having voting power to cast not less than the minimum number of votes that would be necessary to authorize or take the action at a meeting at which all stockholders entitled to vote were present and voted. The action must be evidenced by one or more written consents describing the action taken, signed by the stockholders entitled to take action without a meeting, and delivered to the Corporation for inclusion in the minute book. No consent shall be effective to take the corporate action specified unless the number of consents required to take such action are delivered to the Corporation within sixty days of the delivery of the earliest-dated consent. All stockholders entitled to vote on the record date of such written consent who do not participate in taking the action shall be given written notice thereof in accordance with the Delaware General Corporation Law. 3. DIRECTORS 3.1. Powers The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things, subject to any limitation set forth in the Certificate of Incorporation, these Bylaws, or agreements among stockholders which are otherwise lawful. 3.2. Number and Election The number of directors which shall constitute the whole board shall not be fewer than one nor more than ten. The first board shall consist of three directors. Thereafter, within the limits above specified, the number of directors shall be determined by resolution of the Board of Directors. 3.3. Nomination of Directors The Board of Directors shall nominate candidates to stand for election as directors; and other candidates also may be nominated by any Corporation stockholder, provided such other nomination(s) are submitted in writing to the Secretary of the Corporation no later than 90 days prior to the meeting of stockholders at which such directors are to be elected, together with the identity of the nominor and the number of shares of the Corporation's stock owned, directly or indirectly, by the nominor. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 3.4. hereof, and each director elected -4- shall hold office until such director's successor is elected and qualified or until the director's earlier resignation or removal. Directors need not be stockholders. 3.4. Vacancies Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by the stockholders or by a majority of the directors then in office, although fewer than a quorum, or by a sole remaining director. Each director so chosen shall hold office until the next election of directors, and until such director's successor is elected and qualified, or until the director's earlier resignation or removal. In the event that one or more directors resigns from the board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office until the next election of directors, and until such director's successor is elected and qualified, or until the director's earlier resignation or removal. In the event that one or more directors resigns from the board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office until the next annual election and until his successor is elected and qualified, or until his earlier resignation or removal. 3.5. Meetings 3.5.1. Regular Meetings Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board of Directors. 3.5.2. Special Meetings Special meetings of the Board may be called by the President on one day's notice to each director, either personally or by telephone, express delivery service (so that the scheduled delivery date of the notice is at least one day in advance of the meeting), telegram or facsimile transmission, and on five days' notice by mail (effective upon deposit of such notice in the mail). The notice need not describe the purpose of a special meeting. 3.5.3. Telephone Meetings Members of the Board of Directors may participate in a meeting of the board by any communication by means of which all participating directors can simultaneously hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting. -5- 3.5.4. Action Without Meeting Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if the action is taken by all members of the Board. The action must be evidenced by one or more written consents describing the action taken, signed by each director, and delivered to the Corporation for inclusion in the minute book. 3.5.5. Waiver of Notice of Meeting A director may waive any notice required by statute, the Certificate of Incorporation or these Bylaws before or after the date and time stated in the notice. Except as set forth below, the waiver must be in writing, signed by the director entitled to the notice, and delivered to the Corporation for inclusion in the minute book. Notwithstanding the foregoing, a director's attendance at or participation in a meeting waives any required notice to the director of the meeting unless the director at the beginning of the meeting objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. 3.6. Quorum and Vote at Meetings At all meetings of the board, a quorum of the Board of Directors consists of a majority of the total number of directors prescribed pursuant to Section 3.2. of these Bylaws (or, if no number is prescribed, the number in office immediately before the meeting begins). The vote of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by statute or by the Certificate of Incorporation or by these bylaws. 3.7. Committees of Directors The Board of Directors may by resolution create one or more committees and appoint members of the Board of Directors to serve on the committees at the pleasure of the Board of Directors. To the extent specified in a resolution adopted by the Board of Directors, each committee may exercise the full authority of the Board of Directors, except as limited by Section 141 (or any successor section) of the Delaware General Corporation Law. All provisions of the Delaware General Corporation Law and these Bylaws relating to meetings, action without meetings, notice (and waiver thereof), and quorum and voting requirements of the Board of Directors apply, as well, to such committees and their members. 3.8. Compensation of Directors The Board of Directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of -6- attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be paid like compensation for attending committee meetings. 4. OFFICERS 4.1. Positions The officers of the Corporation shall be, a President, a Secretary and a Treasurer, and such other officers as the Board of Directors (or an officer authorized by the Board of Directors) from time to time may appoint, including one or more, Executive Vice Presidents, Vice Presidents, Assistant Secretaries and Assistant Treasurers. Each such officer shall exercise such powers and perform such duties as shall be set forth below and such other powers and duties as from time to time may be specified by the Board of Directors or by any officer(s) authorized by the Board of Directors to prescribe the duties of such other officers. Any number of offices may be held by the same person, except that in no event shall the President and the Secretary be the same person. Each of the, President, and/or any Vice President may execute bonds, mortgages and other documents under the seal of the Corporation, except where required or permitted by law to be otherwise executed and except where the execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the Corporation. 4.2. President The President shall be the chief operating officer of the Corporation and shall have full responsibility and authority for management of the day-to-day operations of the Corporation, subject to the authority of the Board of Directors. The President may execute bonds, mortgages and other contracts, under the seal of the Corporation, if required, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the Corporation. 4.3. Vice President In the absence of the President or in the event of the President's inability or refusal to act, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated, or in the absence of any designation, then in the order of their election) shall perform the duties of the President, and when so acting shall have all the powers of, and be subject to all the restrictions upon, the President. -7- 4.4. Secretary The Secretary shall have responsibility for preparation of minutes of meetings of the Board of Directors and of the stockholders and for authenticating records of the Corporation. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors. The Secretary or an Assistant Secretary may also attest all instruments signed by any other officer of the Corporation. 4.5. Assistant Secretary The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors (or if there shall have been no such determination, then in the order of their election), shall, in the absence of the Secretary or in the event of the Secretary's inability or refusal to act, perform the duties and exercise the powers of the Secretary. 4.6. Treasurer The Treasurer shall be the chief financial officer of the Corporation and shall have responsibility for the custody of the corporate funds and securities and shall see to it that full and accurate accounts of receipts and disbursements are kept in books belonging to the Corporation. The Treasurer shall render to, the President, and the Board of Directors, upon request, an account of all financial transactions and of the financial condition of the Corporation. 4.7. Assistant Treasurer The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors (or if there shall have been no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer's inability or refusal to act, perform the duties and exercise the powers of the Treasurer. 4.8. Term of Office The officers of the Corporation shall hold office until their successors are chosen and qualify or until their earlier resignation or removal. Any officer may resign at any time upon written notice to the Corporation. Any officer elected or appointed by the Board of Directors may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board of Directors. 4.9. Compensation The compensation of officers of the Corporation shall be fixed by the Board of Directors or by any officer(s) authorized by the Board of Directors to prescribe the compensation of such other officers. -8- 4.10. Fidelity Bonds The Corporation may secure the fidelity of any or all of its officers or agents by bond or otherwise. 5. CAPITAL STOCK 5.1. Certificates of Stock; Uncertificated Shares The shares of the Corporation shall be represented by certificates, provided that the Board of Directors may provide by resolution that some or all of any or all classes or series of the Corporation's stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Notwithstanding the adoption of such a resolution by the Board of Directors, every holder of stock represented by certificates, and upon request every holder of uncertificated shares, shall be entitled to have a certificate (representing the number of shares registered in certificate form) signed in the name of the Corporation by the President or any Vice President, and by the Treasurer, Secretary or any Assistant Treasurer or Assistant Secretary of the Corporation. Any or all the signatures on the certificate may be facsimile. In case any officer, transfer agent or registrar whose signature or facsimile signature appears on 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 such person were such officer, transfer agent or registrar at the date of issue. 5.2. Lost Certificates The Board of Directors, President or Secretary may direct a new certificate of stock to be issued in place of any certificate theretofore issued by the Corporation and alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming that the certificate of stock has been lost, stolen or destroyed. When authorizing such issuance of a new certificate, the board or any such officer may, as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or such owner's legal representative, to advertise the same in such manner as the board or such officer shall require and/or to give the Corporation a bond, in such sum as the board or such officer may direct, as indemnity against any claim that may be made against the Corporation on account of the certificate alleged to have been lost, stolen or destroyed or on account of the issuance of such new certificate or uncertificated shares. -9- 5.3. Record Date 5.3.1. Actions by Stockholders In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders (or to take any other action), the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and shall not be less than ten nor more than sixty days before the meeting or action requiring a determination of stockholders. In order that the Corporation may determine the stockholders entitled to consent to corporate action without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. 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, unless the Board of Directors fixes a new record date. If no record date is fixed by the Board of Directors, the record date shall be at the close of business on the day next preceding the day on which notice is given, or if notice is not required or is waived, at the close of business on the day next preceding the day on which the meeting is held or such other action is taken, except that (if no record date is established by the Board of Directors) the record date for determining stockholders entitled to consent to corporate action without a meeting is the first date on which a stockholder delivers a signed written consent to the Corporation for inclusion in the minute book. 5.3.2. Payments In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders 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 a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. -10- 5.4. Stockholders of Record The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, to receive notifications, to vote as such owner, and to exercise all the rights and powers of an owner. The Corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise may be provided by the Delaware General Corporation Law. 6. INSURANCE The Corporation may 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, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise) against liability asserted against or incurred by such person in such capacity or arising from such person's status as such (whether or not the Corporation would have the power to indemnify such person against the same liability). 7. GENERAL PROVISIONS 7.1. Inspection of Books and Records Any stockholder, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the Corporation's stock ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean a purpose reasonably related to such person's interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the Corporation at its registered office or at its principal place of business. 7.2. Dividends The Board of Directors may declare dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation and the laws of the State of Delaware. -11- 7.3. Reserves The directors of the Corporation may set apart, out of the funds of the Corporation available for dividends, a reserve or reserves for any proper purpose and may abolish any such reserve. 7.4. Execution of Instruments All checks, drafts or other orders for the payment of money, and promissory notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. 7.5. Fiscal Year The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors. 7.6. Seal The corporate seal shall be in such form as the Board of Directors shall approve. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced. 8. AMENDMENT These bylaws may be altered, amended or repealed and new bylaws may be adopted by the Board of Directors. -12- * * * * * The foregoing Bylaws were adopted by the Board of Directors on Aug. 24, 1995. - ------- /s/Richard H. Shay --------------------------------- Secretary EX-4.1 17 EXHIBIT 4.1 ORION NEWCO SERVICES, INC., as Issuer, and BANKERS TRUST COMPANY as Trustee ------------------------- Senior Notes Indenture Dated as of [_______________], 1997 ------------------------- [________]% Senior Notes due 2007 CROSS-REFERENCE TABLE TIA Sections Indenture Sections ss. 310(a)(1).............................................................7.10 (a)(2).............................................................7.10 (b)................................................................7.08 ss. 313(c)................................................................7.06 ss. 314(a)................................................................4.18 (a)(4).............................................................4.19 ss. 315(b)................................................................7.05 ss. 316(a)(1)(A)..........................................................6.05 (a)(1)(B)..........................................................6.04 (b)................................................................6.07 ss. 317(a)(1).............................................................6.08 (a)(2).............................................................6.09 - ---------- Note: The Cross-Reference Table shall not for any purpose be deemed to be a part of the Indenture. TABLE OF CONTENTS
Page RECITALS OF THE COMPANY 1 ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.01. Definitions 2 SECTION 1.02. Incorporation by Reference of Trust Indenture Act 21 SECTION 1.03. Rules of Construction 21 ARTICLE TWO THE NOTES SECTION 2.01 Form and Dating 22 SECTION 2.02. Execution and Authentication 23 SECTION 2.03. Registrar and Paying Agent 24 SECTION 2.04. Holders to Be Treated as Owners; Payments of Interest 24 SECTION 2.05. Paying Agent to Hold Money in Trust 25 SECTION 2.06. Holder Lists 26 SECTION 2.07. Transfer and Exchange 26 SECTION 2.08. Replacement Notes 29 SECTION 2.09. Outstanding Notes 30 SECTION 2.10. Treasury Notes 30 SECTION 2.11. Temporary Notes 30 SECTION 2.12. Cancellation 31 SECTION 2.13. Defaulted Interest 31 SECTION 2.14. CUSIP, CINS or ISIN Number 31 SECTION 2.15. Deposit of Moneys 31 ARTICLE THREE REDEMPTION SECTION 3.01. Right of Redemption 32 SECTION 3.02. Notices to Trustee 32 SECTION 3.03. Selection of Notes to Be Redeemed 32 SECTION 3.04. Notice of Redemption 33 SECTION 3.05. Deposit of Redemption Price 34 SECTION 3.06. Payment of Notes Called for Redemption 34 SECTION 3.07. Notes Redeemed in Part 34 ARTICLE FOUR COVENANTS SECTION 4.01. Payment of Notes 34 SECTION 4.02. Issuances of Guarantees by New Restricted Subsidiaries 35 SECTION 4.03. Limitation on Indebtedness 35 SECTION 4.04. Limitation on Restricted Payments 37 SECTION 4.05. Limitation on Dividend and Other Payment Restrictions Affect- ing Restricted Subsidiaries 40 SECTION 4.06. Limitation on the Issuance of Capital Stock of Restricted Subsidiaries 41 SECTION 4.07. Limitation on Issuances of Guarantees by Restricted Subsidiaries 42 SECTION 4.08. Limitation on Transactions with Shareholders and Affiliates 42 SECTION 4.09. Limitation on Liens 43 SECTION 4.10. Limitation on Sale-Leaseback Transactions 43 SECTION 4.11. Limitation on Asset Sales 44 SECTION 4.12. Maintenance of Office or Agency 45 SECTION 4.13. Repurchase of Notes upon a Change of Control 45 SECTION 4.14. Existence 45 SECTION 4.15. Payment of Taxes and Other Claims 45 SECTION 4.16. Maintenance of Properties and Insurance 46 SECTION 4.17. Notice of Defaults 47 SECTION 4.18. Commission Reports and Reports to Holders 47 SECTION 4.19. Waiver of Stay, Extension or Usury Laws 47 ARTICLE FIVE SUCCESSOR CORPORATION SECTION 5.01. Consolidation, Merger and Sale of Assets 48 SECTION 5.02. Successor Substituted 49 ARTICLE SIX DEFAULT AND REMEDIES SECTION 6.01. Events of Default 49 SECTION 6.02. Acceleration 51 SECTION 6.03. Other Remedies 51 SECTION 6.04. Waiver of Past Defaults 51 SECTION 6.05. Control by Majority 51 SECTION 6.06. Limitation on Suits 52 SECTION 6.07. Rights of Holders to Receive Payment 52 SECTION 6.08. Collection of Indebtedness and Suits for Enforcement by Trustee 52 SECTION 6.09. Trustee May File Proofs of Claim 53 SECTION 6.10. Priorities 54 SECTION 6.11. Undertaking for Costs 54 SECTION 6.12. Restoration of Rights and Remedies 54 SECTION 6.13. Rights and Remedies Cumulative 55 SECTION 6.14. Delay or Omission Not Waiver 55 ARTICLE SEVEN TRUSTEE SECTION 7.01. General 55 SECTION 7.02. Certain Rights of Trustee 55 SECTION 7.03. Individual Rights of Trustee 57 SECTION 7.04. Trustee's Disclaimer 57 SECTION 7.05. Notice of Default 57 SECTION 7.06. Reports by Trustee to Holders 57 SECTION 7.07. Compensation and Indemnity 58 SECTION 7.08. Replacement of Trustee 58 SECTION 7.09. Successor Trustee by Merger, Etc 59 SECTION 7.10. Eligibility 59 SECTION 7.11. Money Held in Trust 59 SECTION 7.12. Withholding Taxes 60 ARTICLE EIGHT DISCHARGE OF INDENTURE SECTION 8.01. Termination of Company's Obligations 60 SECTION 8.02. Defeasance and Discharge of Indenture 61 SECTION 8.03. Defeasance of Certain Obligations 63 SECTION 8.04. Application of Trust Money 64 SECTION 8.05. Repayment to Company 65 SECTION 8.06. Reinstatement 65 ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS SECTION 9.01. Without Consent of Holders 65 SECTION 9.02. With Consent of Holders 66 SECTION 9.03. Revocation and Effect of Consent 67 SECTION 9.04. Notation on or Exchange of Notes 67 SECTION 9.05. Trustee to Sign Amendments, Etc 67 SECTION 9.06. Conformity with Trust Indenture Act 68 ARTICLE TEN SECURITY SECTION 10.01. Security 68 ARTICLE ELEVEN GUARANTEE OF NOTES SECTION 11.01. Guarantee 69 SECTION 11.02. Obligations Unconditional 70 SECTION 11.03. Notice to Trustee 71 SECTION 11.04. This Article Not to Prevent Events of Default 71 SECTION 11.05. Net Worth Limitation 71 ARTICLE TWELVE MISCELLANEOUS SECTION 12.01. Trust Indenture Act of 1939 71 SECTION 12.02. Notices 71 SECTION 12.03. Certificate and Opinion as to Conditions Precedent 73 SECTION 12.04. Statements Required in Certificate or Opinion 73 SECTION 12.05. Acts of Holders 74 SECTION 12.06. Rules by Trustee, Paying Agent or Registrar 74 SECTION 12.07. Agent for Service; Submission to Jurisdiction; Waiver of Immunities 75 SECTION 12.08. Payment Date Other Than a Business Day 75 SECTION 12.09. Governing Law 75 SECTION 12.10. No Adverse Interpretation of Other Agreements 75 SECTION 12.11. No Recourse Against Others 75 SECTION 12.12. Successors 76 SECTION 12.13. Duplicate Originals 76 SECTION 12.14. Separability 76 SECTION 12.15. Table of Contents, Headings, Etc. 76 EXHIBIT A Form A-1Global Note EXHIBIT B Form of Definitive Registered Note B-1 EXHIBIT C Form of Pledge Agreement C-1
- ---------- Note: The Table of Contents shall not for any purposes be deemed to be a part of the Indenture. INDENTURE, dated as of [____________], 1997, between ORION NEWCO SERVICES, INC., a Delaware corporation, as issuer (together, with its successors and assigns, the "Company"); ORION NETWORK SYSTEMS, INC., ORION SATELLITE CORPORATION, INTERNATIONAL PRIVATE SATELLITE PARTNERS, L.P., ORIONNET, INC., ORION ASIA PACIFIC CORPORATION, ASIA PACIFIC SPACE AND COMMUNICATIONS, LTD., ORION ATLANTIC EUROPE, Ltd., ORION ATLANTIC EUROPE Inc; A. and ORION NET FINANCE CORPORATION Net Finance Corporation, all Delaware Corporations, as guarantors; and BANKERS TRUST COMPANY, a New York Banking Corporation, as trustee (the "Trustee"). RECITALS OF THE COMPANY The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of up to $[ ] aggregate principal amount of the Company's [ ]% Senior Notes Due 2007 (the "Notes") issuable as provided in this Indenture. Pursuant to the terms of a Underwriting Agreement dated as of [____________], 1997 (the "Underwriting Agreement") between the Company and Morgan Stanley & Co. Incorporated, as the manager for itself and the several other placement agents therein (the "Manager"), the Company has agreed to issue and sell [ ] units (the "Units"), each Unit consisting of $[________] principal amount of the Notes and one warrant (the "Warrant") to purchase initially an equal number of shares of Common Stock, par value $.01 per share, of the Company (the "Common Stock"), issuable pursuant to the terms of a Warrant Agreement dated as of [________], 1997 (the "Warrant Agreement") between the Company and [ ], as the warrant agent (the "Warrant Agent"), and [ ] Senior Discount Note Units (the "Senior Discount Note Units"), each Senior Note Unit consisting of $[________] principal amount at maturity of the [ ]% Senior Discount Notes Due 2007 (the "Senior Discount Notes") and one Warrant to purchase initially [ ] shares of Common Stock, issuable pursuant to the terms of the Warrant Agreement. The Notes will be secured pursuant to the terms of a Pledge Agreement (as defined herein) by Government Securities as provided by Article Ten of this Indenture. All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done, and the Company has done all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee hereunder and duly issued by the Company, the valid obligations of the Company as hereinafter provided. This Indenture is subject to, and shall be governed by, the provisions of the United States Trust Indenture Act of 1939, as amended, that are required to be a part of and to govern indentures qualified under the United States Trust Indenture Act of 1939, as amended. For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders, as follows. ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.01. Definitions . "Acquired Indebtedness" means Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary or assumed in connection with an Asset Acquisition by a Restricted Subsidiary and not Incurred in connection with, or in anticipation of, such Person becoming a Restricted Subsidiary or such Asset Acquisition; provided that Indebtedness of such Person which is redeemed, defeased, retired or otherwise repaid at the time of or immediately upon consummation of the transactions by which such Person becomes a Restricted Subsidiary or such Asset Acquisition shall not be Indebtedness. "Adjusted Consolidated Net Income" means, for any period, the aggregate net income (or loss) of the Company and its Subsidiaries for such period determined in conformity with GAAP; provided that the following items shall be excluded in computing Adjusted Consolidated Net Income (without duplication): (i) the net income of any Person (other than net income attributable to a Restricted Subsidiary) in which any Person (other than the Company or any of its Restricted Subsidiaries) has a joint interest and the net income (or loss) of any Unrestricted Subsidiary, except that Adjusted Consolidated Net Income for any period shall include the amount of dividends or other distributions actually paid to the Company or any of its Restricted Subsidiaries by such other Person or such Unrestricted Subsidiary during such period; (ii) solely for the purposes of calculating the amount of Restricted Payments that may be made pursuant to clause (C) of the first paragraph of Section 4.04 of this Indenture (and, in such case, except to the extent includable pursuant to clause (i) above), the net income (or loss) of any Person accrued prior to the date it becomes a Restricted Subsidiary or is merged into or consolidated with the Guarantor or any of its Restricted Subsidiaries or all or substantially all of the property and assets of such Person are acquired by the Company or any of its Restricted Subsidiaries; (iii) any gains or losses (on an after-tax basis) attributable to Asset Sales; (iv) except for purposes of calculating the amount of Restricted Payments that may be made pursuant to clause (C) of the first paragraph of Section 4.04 of this Indenture , any amount paid or accrued as dividends on Preferred Stock of the Company or any Restricted Subsidiary owned by Persons other than the Company and any of its Restricted Subsidiaries; (v) all extraordinary gains and extraordinary losses; and (vi) any net income (or loss) of any Guarantor that ceases to be a Guarantor because it is designated an Unrestricted Subsidiary. "Adjusted Consolidated Net Tangible Assets" means the total amount of assets of the Company and its Restricted Subsidiaries (less applicable depreciation, amortization and other valuation reserves), except to the extent resulting from write-ups of capital assets (excluding write-ups in connection with accounting for acquisitions in conformity with GAAP), after deducting therefrom (i) all current liabilities of the Company and its Restricted Subsidiaries (excluding intercompany items) and (ii) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles, all as set forth on the most recent quarterly or annual consolidated balance sheet of the Company and its Restricted Subsidiaries, prepared in conformity with GAAP and filed with the Commission pursuant to Section 4.19 of this Indenture. "Affiliate" means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlling," "controlled by" and "under common control with"), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. "Agent" means any Registrar, Paying Agent, authenticating agent or co-Registrar. "Applicable Procedures" means, with respect to any transfer or exchange of beneficial interests, the rules and procedures of the Depositary that apply to such transfer or exchange. "Asset Acquisition" means (i) an investment by the Company or any of its Restricted Subsidiaries in any other Person pursuant to which such Person shall become a Restricted Subsidiary or shall be merged into or consolidated with the Company or any of its Restricted Subsidiaries; provided that such Person's primary business is related, ancillary or complementary to the businesses of the Company and its Restricted Subsidiaries on the date of such investment or (ii) an acquisition by the Company or any of its Restricted Subsidiaries of the property and assets of any Person other than the Company or any of its Restricted Subsidiaries that constitute substantially all of a division or line of business of such Person; provided that the property and assets acquired are related, ancillary or complementary to the businesses of the Company and its Restricted Subsidiaries on the date of such acquisition. "Asset Disposition" means the sale or other disposition by the Company or any of its Restricted Subsidiaries (other than to the Company or another Restricted Subsidiary) of (i) all or substantially all of the Capital Stock of any Restricted Subsidiary of the Company or (ii) all or substantially all of the assets that constitute a division or line of business of the Company or any of its Restricted Subsidiaries. "Asset Sale" means any sale, transfer or other disposition (including by way of merger, consolidation or sale-leaseback transaction) in one transaction or a series of related transactions by the Company or any of its Restricted Subsidiaries to any Person other than the Company or any of its Restricted Subsidiaries of (i) all or any of the Capital Stock of any Restricted Subsidiary, (ii) all or substantially all of the property and assets of an operating unit or business of the Company or any of its Restricted Subsidiaries or (iii) any other property and assets of the Company or any of its Restricted Subsidiaries outside the ordinary course of business of the Company or such Restricted Subsidiary and, in each case, that is not governed by Section 5.01; provided that "Asset Sale" shall not include (a) sales or other dispositions of inventory, receivables and other current assets or (b) sales or other dispositions of assets for consideration received would satisfy clause (B) of Section 4.11 of this Indenture. "Average Life" means, at any date determination with respect to any debt security, the quotient obtained by dividing (i) the sum of the products of (a) the number of years from such date of determination to the dates of each successive scheduled principal payment of such debt security and (b) the amount of such principal payment by (ii) the sum of all such principal payments. "Board of Directors" means the Board of Directors of the Company or any committee of such Board of Directors duly authorized to act with respect to this Indenture from time to time. "Board Resolution" means a copy of a resolution, certified by any Director of the Company or the Secretary or Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Business Day" means a day except Saturday, Sunday or other day on which commercial banks in the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorize by law to close. "Capital Stock" means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) in equity of such Person, whether now outstanding or issued after the Closing Date, including, without limitation, all Common Stock and Preferred Stock. "Capitalized Lease" means, as applied to any Person, any lease of any property (whether real, personal or mixed) of which the discounted present value of the rental obligations of such Person as lessee, in conformity with GAAP, is required to be capitalized on the balance sheet of such Person; and "Capitalized Lease Obligations" means the discounted present value of the rental obligations under such lease. "Certificated Note" means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.07(a) hereof, substantially in the form of Exhibit B hereto. "Change of Control" means such time as (i) a "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) becomes the ultimate "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of more than 35% of the total voting power of the Voting Stock of the Company on a fully diluted basis and such ownership is greater than the amount of voting power of the Voting Stock of the Company, on a fully diluted basis, held by the Existing Stockholders and their Affiliates on such date; (ii) individuals who on the Closing Date constitute the Board of Directors (together with any new directors whose election by the Board of Directors or whose nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the members of the Board of Directors then in office who either were members of the Board of Directors on the Closing Date or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the members of the Board of Directors then in office; or (iii) the Company does not beneficially own 100% of the equity interests in Orion Atlantic Partners, L.P. or such other entity as then owns the Orion 1 satellite. "Chief Executive Officer" of the Company means W. Neil Bauer or, in the event of his death or termination of his office, such other Officer of the Company as the Company may designate. "Closing Date" means the date on which the Notes are originally issued under the Indenture. "Commission" means the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the TIA, then the body performing such duties at such time. "Common Stock" means, the shares of Common Stock, par value $.01 per share, of the Company. "Company Order" means a written request or order signed in the name of the Company (i) by the Chairman of the Board, the Chief Executive Officer or an Executive Director and (ii) by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee; provided, however, that such written request or order may be signed by any two of the officers or directors listed in clause (i) above in lieu of being signed by one of such officers or directors listed in such clause (i) and one of the officers listed in clause (ii) above. "Consolidated EBITDA" means, for any period, the sum of the amounts for such period of (i) Adjusted Consolidated Net Income, (ii) Consolidated Interest Expense, to the extent such amount was deducted in calculating Adjusted Consolidated Net Income, (iii) income taxes, to the extent such amount was deducted in calculating Adjusted Consolidated Net Income (other than income taxes (either positive or negative) attributable to extraordinary and non-recurring gains or losses or sales of assets), (iv) depreciation expense, to the extent such amount was deducted in calculating Adjusted Consolidated Net Income, (v) amortization expense, to the extent such amount was deducted in calculating Adjusted Consolidated Net Income, and (vi) all other non-cash items reducing Adjusted Consolidated Net Income (other than items that will require cash payments and for which an accrual or reserve is, or is required by GAAP to be, made), less all non-cash items increasing Adjusted Consolidated Net Income, all as determined on a consolidated basis for the Company and its Restricted Subsidiaries in conformity with GAAP. "Consolidated Indebtedness" means the aggregate amount of Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis. "Consolidated Interest Expense" means, for any period, the aggregate amount of interest in respect of Indebtedness (including, without limitation, amortization of original issue discount on any Indebtedness and the interest portion of any deferred payment obligation, calculated in accordance with the effective interest method of accounting; all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers' acceptance financing; the net costs associated with Interest Rate Agreements; and in respect of Indebtedness that is Guaranteed or secured by any Restricted Subsidiaries) and all but the principal component of rentals in respect of Capitalized Lease Obligations paid, accrued or scheduled to be paid or to be accrued by the Company and its Restricted Subsidiaries during such period; excluding, however, any premiums, fees and expenses (and any amortization thereof) payable in connection with the offering of the Notes, all as determined on a consolidated basis (without taking into account Unrestricted Subsidiaries) in conformity with GAAP. "Consolidated Leverage Ratio" means, on any Transaction Date, the ratio of (i) the aggregate amount of Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis outstanding on such Transaction Date to (ii) the aggregate amount of Consolidated EBITDA for the then most recent four fiscal quarters for which financial statements of the Company have been filed with the Commission pursuant to Section 4.19 of this Indenture (such four fiscal quarter period being the "Four Quarter Period"); provided that (A) pro forma effect shall be given to Asset Dispositions and Asset Acquisitions (including giving pro forma effect to the application of proceeds of any Asset Disposition) that occur from the beginning of the Four Quarter Period through the Transaction Date (the "Reference Period"), as if they had occurred and such proceeds had been applied on the first day of such Reference Period; and (B) pro forma effect shall be given to asset dispositions and asset acquisitions (including giving pro forma effect to the application of proceeds of any asset disposition) that have been made by any Person that has become a Restricted Subsidiary or has been merged with or into the Company or any Restricted Subsidiary during such Reference Period and that would have constituted Asset Dispositions or Asset Acquisitions had such transactions occurred when such Person was a Restricted Subsidiary as if such asset dispositions or asset acquisitions were Asset Dispositions or Asset Acquisitions that occurred on the first day of such Reference Period; provided that to the extent that clause (A) or (B) of this sentence requires that pro forma effect be given to an Asset Acquisition or Asset Disposition, such pro forma calculation shall be based upon the four full fiscal quarters immediately preceding the Transaction Date of the Person, or division or line of business of the Person, that is acquired or disposed of for which financial information is available. "Consolidated Net Worth" means, at any date of determination, stockholders' equity as set forth on the most recently available quarterly or annual consolidated balance sheet of the Company and its Restricted Subsidiaries (which shall be as of a date not more than 90 days prior to the date of such computation), less any amounts attributable to Disqualified Stock or any equity security convertible into or exchangeable for Indebtedness, the cost of treasury stock and the principal amount of any promissory notes receivable from the sale of the Capital Stock of the Company or any of its Restricted Subsidiaries, each item to be determined in conformity with GAAP (excluding the effects of foreign currency exchange adjustments under Financial Accounting Standards Board Statement of Financial Accounting Standards No. 52). "Corporate Trust Office" means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be principally administered, which office is, at the date of this Indenture, located at Bankers Trust Company, 4 Albany Street, New York, N.Y. 10006. "Currency Agreement" means any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect the Company or any Restricted Subsidiary against fluctuations in currency values. "Default" means any event that is, or after notice or passage of time or both would be, an Event of Default. "Disqualified Stock" means any class or series of Capital Stock of any Person that by its terms or otherwise is (i) required to be redeemed prior to the Stated Maturity of the Notes, (ii) redeemable at the option of the holder of such class or series of Capital Stock at any time prior to the Stated Maturity of the Notes or (iii) convertible into or exchangeable for Capital Stock referred to in clause (i) or (ii) above or Indebtedness having a scheduled maturity prior to the Stated Maturity of the Notes; provided that any Capital Stock that would not constitute Disqualified Stock but for provisions thereof giving holders thereof the right to require such Person to repurchase or redeem such Capital Stock upon the occurrence of an "asset sale" or "change of control" occurring prior to the Stated Maturity of the Notes shall not constitute Disqualified Stock if the "asset sale" or "change of control" provisions applicable to such Capital Stock are no more favorable to the holders of such Capital Stock than the provisions contained in Sections 4.11 and 4.13 of this Indenture and such Capital Stock specifically provides that such Person will not repurchase or redeem any such stock pursuant to such provision prior to the Company's repurchase of such Notes as are required to be repurchased pursuant to Sections 4.11 and 4.13 of this Indenture. "Depositary" shall mean The Depository Trust Company, its nominees and their respective successors, until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Depositary" shall been or include each Person who is then a Despositary hereunder. "Depositary Interest" means a certificateless depositary interest representing a 100% beneficial interest in a Global Note. "Existing Stockholders" means British Aerospace Space Systems, Inc., Lockheed Martin Commercial Launch Services, Inc., MCN Sat. U.S., Inc., Trans-Atlantic Satellite, Inc., Kingston Communications International Limited, COM DEV Satellite Communications Limited, J.V. Saeman & Co., CIBC Wood Gundy Ventures, Inc., Cumberland Associates, Fleet Venture Resources, Inc., Space Systems/Loral and any Subsidiary of any of the foregoing. "Event of Default" has the meaning provided in Section 6.01. "Excess Proceeds" has the meaning provided in Section 4.11. "Exchange Act" means the United States Securities Exchange Act of 1934, as amended. "fair market value" means the price that would be paid in an arm's-length transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy, as determined in good faith by the Board of Directors, whose determination shall be conclusive if evidenced by a Board Resolution. "GAAP" means generally accepted accounting principles in the United States of America as in effect as of the Closing Date, including, without limitation, those 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 approved by a significant segment of the accounting profession. All ratios and computations contained or referred to in the Indentures shall be computed in conformity with GAAP applied on a consistent basis, except that calculations made for purposes of determining compliance with the terms of the covenants and with other provisions of the Indentures shall be made without giving effect to (i) the amortization of any expenses incurred in connection with the offering of the Notes and (ii) except as otherwise provided, the amortization of any amounts required or permitted by Accounting Principles Board Opinion No. 16 and 17. "Global Note" means the Global Notes, substantially in the form of Exhibit A hereto issued in accordance with Section 2.01 or 2.07(a) hereof. "Government Securities" means direct obligations of, obligations fully guaranteed by, or participations in pools consisting solely of 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 of America is pledged and which are not callable or redeemable at the option of the issuer thereof. "Guarantee" means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation of such other Person (whether arising by virtue of partnership arrangements or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise) or (ii) entered into for purposes of assuring in any other manner the obligee of such Indebtedness or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided that the term "Guarantee" shall not include endorsements for collection or deposit in the ordinary course of business. The term Guarantee used as a verb has a corresponding meaning. "Guarantors" means collectively, Orion Network Systems, Inc., Orion Satellite Corporation, International Private Satellite Partners, L.P., OrionNet, Inc., Orion Asia Pacific Corporation, Asia Pacific Space and Communications, Ltd., Orion Atlantic Europe, Inc. and OrionNet Finance Corporation, and all other Restricted Subsidiaries; provided that any Person that becomes an Unrestricted Subsidiary in compliance with Section 4.04 shall not be included in "Guarantors" after becoming an Unrestricted Subsidiary. "Holder" means the Person in whose name such Note is registered in the Register. "Incur" means, with respect to any Indebtedness, to incur, create, issue, assume, Guarantee or otherwise become liable for or with respect to, or become responsible for, the payment of, contingently or otherwise, such Indebtedness, including an "Incurrence" of Indebtedness by reason of a Person becoming a Restricted Subsidiary of the Company; provided that neither the accrual of interest nor the accretion of original issue discount shall be considered an Incurrence of Indebtedness. "Indebtedness" means, with respect to any Person at any date of determination (without duplication), (i) all indebtedness of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person in respect of letters of credit or other similar instruments (including reimbursement obligations with respect thereto, but excluding obligations with respect to letters of credit (including trade letters of credit) securing obligations (other than obligations described in clause (i) or (ii) above or clause (v), (vi) or (vii) below) entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if drawn upon, to the extent such drawing is reimbursed no later than the third Business Day following receipt by such Person of a demand for reimbursement), (iv) all obligations of such Person to pay the deferred and unpaid purchase price of property or services, which purchase price is due more than six months after the date of placing such property in service or taking delivery and title thereto or the completion of such services, except Trade Payables, (v) all obligations of such Person as lessee under Capitalized Leases, (vi) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided that the amount of such Indebtedness shall be the lesser of (A) the fair market value of such asset at such date of determination and (B) the amount of such Indebtedness, (vii) all Indebtedness of other Persons Guaranteed by such Person to the extent such Indebtedness is Guaranteed by such Person and (viii) to the extent not otherwise included in this definition, obligations under Currency Agreements and Interest Rate Agreements. The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and, with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation, provided (A) that the amount outstanding at any time of any Indebtedness issued with original issue discount is the original issue price of such Indebtedness, (B) Permitted Customer Advances, Prepayment Supports and any money borrowed, at the time of the Incurrence of any Indebtedness, in order to pre-fund the payment of interest on such Indebtedness, shall be deemed not to be "Indebtedness" and (C) Indebtedness shall not include any liability for federal, state, local or other taxes. "Indenture" means this Indenture as originally executed or as it may be amended or supplemented from time to time by one or more indentures supplemental to this Indenture entered into pursuant to the applicable provisions of this Indenture. "Independent Financial Advisor" means an investment banking firm, accounting firm or other financial advisory firm of national standing in the United States, as the case may be, (i) which, in the judgment of the Board of Directors, does not, and whose directors, officers or Affiliates do not, have a material direct or indirect financial interest in the Company (provided that ownership of Capital Stock of the Company constituting less than 2% of all outstanding Capital Stock of the Company shall not constitute a material direct or indirect financial interest), and (ii) which, in the judgment of the Board of Directors, is otherwise independent and qualified to perform the task for which it is to be engaged. "Indirect Participant" means a Person who holds an interest through a Participant. "Interest Payment Date" means each semiannual interest payment date of [______________] and [_____________] of each year, commencing [___________], 1997. "Interest Rate Agreement" means any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement designed to protect the Company or any of its Restricted Subsidiaries against fluctuations in interest rates in respect of Indebtedness to or under which the Company or any of its Restricted Subsidiaries is a party or a beneficiary on the date of this Indenture or becomes a party or a beneficiary hereafter; provided that the notional principal amount thereof does not exceed the principal amount of the Indebtedness of the Company and its Restricted Subsidiaries that bears interest at floating rates. "Investment" in any Person means any direct or indirect advance, loan or other extension of credit (including, without limitation, by way of Guarantee or similar arrangement; but excluding advances to customers in the ordinary course of business that are, in conformity with GAAP, recorded as accounts receivable on the balance sheet of the Company or its Restricted Subsidiaries) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition of Capital Stock, bonds, notes, debentures or other similar instruments issued by, such Person and shall include (i) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary and (ii) the fair market value of the Capital Stock (or any other Investment), held by the Company or any of its Restricted Subsidiaries, of (or in) any Person that has ceased to be a Restricted Subsidiary, including, without limitation, by reason of any transaction permitted by clause (iii) of Section 4.06 of this Indenture. For purposes of the definition of "Unrestricted Subsidiary" and Section 4.04 of this Indenture, (i) "Investment" shall include the fair market value of the assets (net of liabilities (other than liabilities to the Company or any of its Subsidiaries)) of any Restricted Subsidiary at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary, (ii) the fair market value of the assets (net of liabilities (other than liabilities to the Company or any of its Subsidiaries)) of any Unrestricted Subsidiary at the time that such Unrestricted Subsidiary is designated a Restricted Subsidiary shall be considered a reduction in outstanding Investments and (iii) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer. "Issue Date" means the original date of issuance of the Notes. "Junior Subordinated Convertible Debentures" means the 8.75% Convertible Junior Subordinated Debentures Due 2012 of the Company. "Kingston" means Kingston Communications International Limited. "Lien" means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including, without limitation, any conditional sale or other title retention agreement or lease in the nature thereof or any agreement to give any security interest). "Manager" means Morgan Stanley & Co. Incorporated, as manager for itself and the several other underwriters agents named in the Underwriting Agreement. "Matra" means Matra Marconi Space UK Limited, the parent Company of MMS Space Systems and a subsidiary of Matra Marconi Space N.V., and the manufacturer under the Orion 2 Satellite Contract. "Maturity Date" means the Stated Maturity of the Notes. "Merger" means the merger pursuant to an Agreement and Plan of Merger dated January 8, 1997, of Old ONSI with a Wholly Owned subsidiary of the Company. "Moody's" means Moody's Investors Service, Inc. and its successors. "Net Cash Proceeds" means, (a) with respect to any Asset Sale, the proceeds of such Asset Sale in the form of cash or cash equivalents, including payments in respect of deferred payment obligations (to the extent corresponding to the principal, but not interest, component thereof) when received in the form of cash or cash equivalents (except to the extent such obligations are financed or sold with recourse to the Company or any Restricted Subsidiary) and proceeds from the conversion of other property received when converted to cash or cash equivalents (including cash or cash equivalents that are deposited in escrow pending satisfaction of conditions specified in the relevant sale documents or that secures Prepayment Supports, in each case when such cash or cash equivalents are released to the Company or a Restricted Subsidiary), net of (i) brokerage commissions and other fees and expenses (including fees and expenses of counsel and investment bankers) related to such Asset Sale, (ii) provisions for all taxes (whether or not such taxes will actually be paid or are payable) as a result of such Asset Sale without regard to the consolidated results of operations of the Company and its Restricted Subsidiaries, taken as a whole, (iii) payments made to repay Indebtedness or any other obligation outstanding at the time of such Asset Sale that either (A) is secured by a Lien on the property or assets sold or (B) is required to be paid as a result of such sale and (iv) appropriate amounts to be provided by the Company or any Restricted Subsidiary of the Company as a reserve against any liabilities associated with such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale, all as determined in conformity with GAAP and (b) with respect to any issuance or sale of Capital Stock, the proceeds of such issuance or sale in the form of cash or cash equivalents, including payments in respect of deferred payment obligations (to the extent corresponding to the principal, but not interest, component thereof) when received in the form of cash or cash equivalents (except to the extent such obligations are financed or sold with recourse to the Company or any Restricted Subsidiary of the Company) and proceeds from the conversion of other property received when converted to cash or cash equivalents, net of attorney's fees, accountants' fees, underwriters' or placement agents' fees, discounts or commissions and brokerage, consultant and other fees incurred in connection with such issuance or sale and net of taxes paid or payable as a result thereof. "Note Guarantee" means the Guarantee by the Guarantors of the Company's obligations under the Notes and the Indenture, pursuant to the Indenture, and the Guarantee by any other Person that becomes a Guarantor of the Company's obligations under the Notes and the Indenture. "Notes" means the [___________]% Senior Notes due 2007 of the Company issued pursuant to this Indenture. "Offer to Purchase" means an offer to purchase Notes by the Company from the Holders commenced by mailing a notice to the Trustee and each Holder stating: (i) the covenant pursuant to which the offer is being made and that all Notes validly tendered will be accepted for payment on a pro rata basis; (ii) the purchase price and the date of purchase (which shall be a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed) (the "Payment Date"); (iii) that any Note not tendered will continue to accrue interest pursuant to its terms; (iv) that, unless the Company defaults in the payment of the purchase price, any Note accepted for payment pursuant to the Offer to Purchase shall cease to accrue interest on and after the Payment Date; (v) that Holders electing to have a Note purchased pursuant to the Offer to Purchase will be required to surrender the Note, together with the form entitled "Option of the Holder to Elect Purchase" on the reverse side of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day immediately preceding the Payment Date; (vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the third Business Day immediately preceding the Payment Date, a telegram, facsimile transmission or letter setting forth the name of such Holder, the principal amount at maturity of Notes delivered for purchase and a statement that such Holder is withdrawing his election to have such Notes purchased; and (vii) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount at maturity to the unpurchased portion of the Notes surrendered; provided that each Note purchased and each new Note issued shall be in a principal amount at maturity of $1,000 or integral multiples thereof. On the Payment Date, the Company shall (i) accept for payment on a pro rata basis Notes or portions thereof tendered pursuant to an Offer to Purchase; (ii) deposit with the Paying Agent money sufficient to pay the purchase price of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee all Notes or portions thereof so accepted together with an Officers' Certificate specifying the Notes or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount equal to the purchase price, and the Trustee shall promptly authenticate and mail to such Holders a new Note equal in principal amount at maturity to any unpurchased portion of the Note surrendered; provided that each Note purchased and each new Note issued shall be in a principal amount at maturity of $1,000 or integral multiples thereof. The Company will publicly announce the results of an Offer to Purchase as soon as practicable after the Payment Date. The Trustee shall act as the Paying Agent for an Offer to Purchase. The Company will comply with 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 the event that the Company is required to repurchase Notes pursuant to an Offer to Purchase. "Old ONSI" means the Delaware corporation known as "Orion Network Systems, Inc." prior to the consummation of the Merger. "Orion Atlantic" means International Private Satellite Partners, L.P., a Delaware Limited Partnership. "Orion 1" means the high-power Ku-band communications satellite operated over the Atlantic Ocean by Orion. "Orion 2" and "Orion 3" mean, respectively, each of the first two satellites with respect to which the Company has a Successful Launch after the Closing Date, and any replacement for either of such satellites. "Orion 1 Satellite Contract" means the fixed price turnkey contract originally entered into between British Aerospace and Orion Atlantic for the design, construction, launch and delivery in orbit of Orion 1. "Orion 2 Satellite Contract" means the spacecraft purchase agreement between Orion and Matra Marconi Space for construction and launch of Orion 2. "Officer" means, with respect to the Company, (i) the Chairman of the Board, the Chief Executive Officer or any other Director of the Company or (ii) the Treasurer or any Assistant Treasurer, the Company Secretary or any Company Assistant Secretary. "Officers' Certificate" means a certificate signed by one Officer listed in clause (i) of the definition thereof and one Officer listed in clause (ii) of the definition thereof; provided, however, that any such certificate may be signed by any two of the Officers listed in clause (i) of the definition thereof in lieu of being signed by one Officer listed in clause (i) of the definition thereof and one Officer listed in clause (ii) of the definition thereof. Each Officers' Certificate (other than certificates provided pursuant to TIA Section 314(a)(4)) shall include the statements provided for in TIA Section 314(e), if applicable. "Opinion of Counsel" means a written opinion signed by legal counsel who may be an employee of or counsel to the Company. Each such Opinion of Counsel shall include the statements provided for in TIA Section 314(e), if applicable. "Participant" means, with respect to a the Depositary, a Person who has an account therewith. "Paying Agent" has the meaning provided in Section 2.03, except that, for the purposes of Article Eight, the Paying Agent shall not be the Company or a Subsidiary of the Company or an Affiliate of any of them. The term "Paying Agent" includes any additional Paying Agent. "Payment Date" means with respect to any Offer to Purchase, the date of purchase of the Notes pursuant thereto, which shall be a Business Day no earlier than 30 days nor later than 60 days from the date a notice is mailed pursuant to such Offer to Purchase. "Permitted Customer Advances" means obligations of the Company or any Restricted Subsidiary to repay money received by the Company or such Restricted Subsidiary from customers as bona fide prepayment for services to be provided by, or purchases to be made from, the Company or such Restricted Subsidiary. "Permitted Investment" means (i) an Investment in the Company or a Restricted Subsidiary or a Person which will, upon the making of such Investment, become a Restricted Subsidiary or be merged or consolidated with or into or transfer or convey all or substantially all its assets to, the Company or a Restricted Subsidiary; provided that such person's primary business is related, ancillary or complementary to the businesses of the Company and its Restricted Subsidiaries on the date of such Investment; (ii) Temporary Cash Investments; (iii) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses in accordance with GAAP; and (iv) stock, obligations or securities received in satisfaction of judgments. "Permitted Liens" means (i) Liens for taxes, assessments, governmental charges or claims that are being contested in good faith by appropriate legal proceedings promptly instituted and diligently conducted and for which a reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made; (ii) statutory and common law Liens of landlords and carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or other similar Liens arising in the ordinary course of business and with respect to amounts not yet delinquent or being contested in good faith by appropriate legal proceedings promptly instituted and diligently conducted and for which a reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made; (iii) Liens incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security; (iv) Liens incurred or deposits made to secure the performance of tenders, bids, leases, statutory or regulatory obligations, bankers' acceptances, surety and appeal bonds, government contracts, performance and return-of-money bonds and other obligations of a similar nature incurred in the ordinary course of business (exclusive of obligations for the payment of borrowed money); (v) easements, rights-of-way, municipal and zoning ordinances and similar charges, encumbrances, title defects or other irregularities that do not materially interfere with the ordinary course of business of the Company or any of its Restricted Subsidiaries; (vi) Liens (including extensions and renewals thereof) upon real or personal property acquired after the Closing Date; provided that (a) such Lien is created solely for the purpose of securing Indebtedness Incurred, in accordance with Section 4.03 of this Indenture, (1) to finance the cost (including the cost of improvement, transportation, development and design, installation, integration or construction) of the item of property or assets subject thereto and such Lien is created prior to, at the time of or within six months after the later of the acquisition, the completion of construction or the commencement of full operation of such property or (2) to refinance any Indebtedness previously so secured, (b) the principal amount of the Indebtedness secured by such Lien does not exceed 100% of such cost (plus, in the case of any refinancing Indebtedness referred to in clause (vi)(a)(2) above, premiums, accrued interest, fees and expenses), (c) any Lien permitted by this clause shall not extend to or cover any property or assets other than such item of property or assets and any improvements on such item and (d) such Liens may not relate to Orion 2 or Orion 3; (vii) leases or subleases granted to others that do not materially interfere with the ordinary course of business of the Company and its Restricted Subsidiaries, taken as a whole; (viii) Liens encumbering property or assets under construction arising from progress or partial payments by a customer of the Company or its Restricted Subsidiaries relating to such property or assets; (ix) any interest or title of a lessor in the property subject to any Capitalized Lease or operating lease; (x) Liens arising from filing Uniform Commercial Code financing statements regarding leases; (xi) Liens on property of, or on shares of Capital Stock or Indebtedness of, any Person existing at the time such Person becomes, or becomes a part of, any Restricted Subsidiary; provided that such Liens do not extend to or cover any property or assets of the Company or any Restricted Subsidiary other than the property or assets acquired; (xii) Liens in favor of the Company or any Restricted Subsidiary; (xiii) Liens arising from the rendering of a final judgment or order against the Company or any Restricted Subsidiary of the Company that does not give rise to an Event of Default; (xiv) Liens securing reimbursement obligations with respect to letters of credit that encumber documents and other property relating to such letters of credit and the products and proceeds thereof; (xv) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; (xvi) Liens encumbering customary initial deposits and margin deposits, and other Liens that are within the general parameters customary in the industry and incurred in the ordinary course of business, in each case, securing Indebtedness under Interest Rate Agreements and Currency Agreements and forward contracts, options, future contracts, futures options or similar agreements or arrangements designed solely to protect the Company or any of its Restricted Subsidiaries from fluctuations in interest rates, currencies or the price of commodities; (xvii) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business in accordance with the past practices of the Company and its Restricted Subsidiaries prior to the Closing Date; (xviii) Liens on or sales of receivables; (xix) Liens (including Liens securing Prepayment Supports) on amounts of money or Temporary Cash Investments that each represent bona fide prepayments of at least $5 million on agreements for the long-term sale or lease of capacity on any satellite owned by the Company or a Restricted Subsidiary, but only to the extent that the amount of money or Temporary Cash Investments subject to any such Lien does not exceed the amount of such prepayment and reasonable interest thereon; (xx) Liens encumbering contracts between the Company or any Restricted Subsidiary and any third party customer relating to the use of a VSAT owned by the Company or any Restricted Subsidiary but only if, and so long as, the Indebtedness secured by any such Lien is also secured by a Lien permitted under clause (vi) of this definition encumbering such VSAT; and (xxi) Liens upon a satellite and components thereof during the period in which such satellite is being constructed, provided that (a) such Liens (1) are for the benefit of only the manufacturer of such satellite or components and (2) secure only the obligation of the Company or any Restricted Subsidiary to pay the purchase price for such satellite or components and (b) such Liens are actually released upon, or prior to, the completion of construction of such satellite and prior to the launch or commencement of full operations of such satellite. "Person" means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof. "Pledge Account" means an account established with the Trustee pursuant to the terms of the Pledge Agreement for the deposit of the Pledged Securities purchased by the Company with a portion of the proceeds from the sale of the Senior Notes. "Pledge Agreement" means the Collateral Pledge and Security Agreement, dated as of the date of this Indenture, made by the Company in favor of the Trustee, governing the disbursement of funds from the Pledge Account, as such Agreement may be amended, restated, supplemented or otherwise modified from time to time. "Pledged Securities" means the securities originally purchased by the Company with a portion of the proceeds from the sale of the Senior Notes, which shall consist of Government Securities, to be deposited in the Pledge Account, all in accordance with the terms of the Pledge Agreement. "Prepayment Support" means the reimbursement obligations of the Company or any Restricted Subsidiary in connection with any fully secured letter of credit or similar credit support issued by any third party in connection with the obligations of the Company or such Restricted Subsidiary to repay amounts received as bona fide prepayments of at least $5 million on agreements for the long-term sale or lease of capacity on a satellite owned by the Company or a Restricted Subsidiary. "Redemption Date," when used with respect to any Note to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. "Redemption Indebtedness" means Indebtedness of the Company which is (i) subordinated in right of payment of the Notes on terms substantially similar to the terms contained, on the Closing Date, in Article 14 of the Debenture Purchase Agreement (but excluding the terms contained, on the Closing Date, in Section 14.7 of the Debenture Purchase Agreement) and (ii) Incurred for the sole purpose of financing the redemption, repurchase or acquisition of shares of Series A Preferred Stock or Series B Preferred Stock. "Redemption Price," when used with respect to any Note to be redeemed, means the price at which such Note is to be redeemed pursuant to this Indenture. "Register" has the meaning provided in Section 2.03. "Registrar" has the meaning provided in Section 2.03. "Regular Record Date" for the interest payable on any Interest Payment Date means the [_______] or [_______] (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. "Related Person" means any holder (or any Affiliate of such holder) of 5% or more of any class of Capital Stock of the Company and any Affiliate of the Company or any Restricted Subsidiary. "Released Indebtedness" means, with respect to any Asset Sale, Indebtedness (i) which is owed by the Company or any Restricted Subsidiary (the "Obligors") prior to such Asset Sale, (ii) which is assumed by the purchaser or any affiliate thereof in connection with such Asset Sale and (iii) with respect to the Obligors receive written, unconditional releases from each creditor, no later than the closing date of such Asset Sale. "Responsible Officer," when used with respect to the Trustee, means the chairman or any vice chairman of the board of directors, the chairman or any vice chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, any assistant vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller 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 or her knowledge of and familiarity with the particular subject. "Restricted Payments" has the meaning provided in Section 4.04. "Restricted Subsidiary" means any Subsidiary of the Company other than an Unrestricted Subsidiary. "S&P" means Standard & Poor's Ratings Group and its successors. "Securities Act" means the United States Securities Act of 1933, as amended. "Separation Date" means the earliest of (i) six months after the date of issuance, (ii) such date as the Underwriters may, in their discretion, deem appropriate and (ii) in the event of an Offer to Purchase, the date the Company mails notice thereof to holders of the Notes. "Series A Preferred Stock" means the Company's Series A 8% Cumulative Redeemable Convertible Preferred Stock, par value $0.01 per share. "Series B Preferred Stock" means the Company's Series B 8% Cumulative Redeemable Convertible Preferred Stock, par value $0.01 per share. "Significant Subsidiary" means, at any date of determination, any Restricted Subsidiary that, together with its Subsidiaries, (i) for the most recent fiscal year of the Company, accounted for more than 10% of the consolidated revenues of the Company and its Restricted Subsidiaries or (ii) as of the end of such fiscal year, was the owner of more than 10% of the consolidated assets of the Company and its Restricted Subsidiaries, all as set forth on the most recently available consolidated financial statements of the Company for such fiscal year. "Specified Date" means any Redemption Date, any Payment Date for an Offer to Purchase pursuant to Section 4.11 or Section 4.13 or any date on which the Securities are due and payable after an Event of Default. "Stated Maturity" means, (i) with respect to any debt security, the date specified in such debt security as the fixed date on which the final installment of principal of such debt security is due and payable and (ii) with respect to any scheduled installment of principal of or interest on any debt security, the date specified in such debt security as the fixed date on which such installment is due and payable. "Subsidiary" means, with respect to any Person, any corporation, association or other business entity of which more than 50% of the voting power of the outstanding Voting Stock is owned, directly or indirectly, by such Person and one or more other Subsidiaries of such Person. "Subsidiary Guarantee" means the Guarantee of the Notes by any Subsidiary of the Company substantially in the form of Exhibit F hereto. "Successful Launch" means, with respect to any satellite, the placing into orbit of such satellite in its assigned orbital position with at least 40% of the transponder capacity fully operational. "Tax" means any tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and any other liabilities related thereto). "Taxing Authority" means any government or political subdivision or territory or possession of any government or any authority or agency therein or thereof having power to tax. "Temporary Cash Investment" means any of the following: (i) direct obligations of the United States of America or any agency thereof or obligations fully and unconditionally guaranteed by the United States of America or any agency thereof, (ii) time deposit accounts, certificates of deposit and money market deposits maturing within 180 days of the date of acquisition thereof issued by a bank or trust company which is organized under the laws of the United States of America, any state thereof or any foreign country recognized by the United States, and which bank or trust company has capital, surplus and undivided profits aggregating in excess of $50 million (or the foreign currency equivalent thereof) and has outstanding debt which is rated "A" (or such similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act) or any money-market fund sponsored by a registered broker dealer or mutual fund distributor, (iii) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (i) above entered into with a bank meeting the qualifications described in clause (ii) above, (iv) commercial paper, maturing not more than 90 days after the date of acquisition, issued by a corporation (other than an Affiliate of the Company) organized and in existence under the laws of the United States of America, any state thereof or any foreign country recognized by the United States of America with a rating at the time as of which any investment therein is made of "P-1" (or higher) according to Moody's or "A-1" (or higher) according to S&P, and (v) securities with maturities of six months or less from the date of acquisition issued or fully and unconditionally guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least "A" by S&P or Moody's. "TIA" or "Trust Indenture Act" means the United States Trust Indenture Act of 1939, as amended (15 U.S. Code ss.ss. 77aaa-77bbb), as in effect on the date this Indenture was executed, except as provided in Section 9.06. "Trade Payables" means, with respect to any Person, any accounts payable or any other indebtedness or monetary obligation to trade creditors created, assumed or Guaranteed by such Person or any of its Subsidiaries arising in the ordinary course of business in connection with the acquisition of goods or services. "Transaction Date" means, with respect to the Incurrence of any Indebtedness by the Company or any of its Restricted Subsidiaries, the date such Indebtedness is to be Incurred and, with respect to any Restricted Payment, the date such Restricted Payment is to be made. "TT&C Financing" means the agreement, dated November 23, 1993, between General Electric Capital Corporation and International Satellite Partners, L.P. ("Orion Atlantic"), relating to borrowings by Orion Atlantic. "Trustee" means the party named as such in the first paragraph of this Indenture until a successor replaces it in accordance with the provisions of Article Seven of this Indenture and thereafter means such successor. "Underwriters" has the meaning as set forth in the Underwriting Agreement. "Underwriting Agreement" means the Underwriting Agreement date [ ] 1997 between the Company and the Manager, for itself and the other Underwriters named therein. "Units" has the meaning provided in the recitals to this Indenture. "Unrestricted Subsidiary" means (i) any Subsidiary of the Company that at the time of determination shall be designated an Unrestricted Subsidiary by the Board of Directors in the manner provided below and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate any Restricted Subsidiary (including any newly acquired or newly formed Subsidiary of the Company) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property of, the Company or any Restricted Subsidiary; provided that (A) any Guarantee by the Company or any Restricted Subsidiary of any Indebtedness of the Subsidiary being so designated shall be deemed an "Incurrence" of such Indebtedness and an "Investment" by the Company or such Restricted Subsidiary (or both, if applicable) at the time of such designation; (B) either (I) the Subsidiary to be so designated has total assets of $1,000 or less or (II) if such Subsidiary has assets greater than $1,000, such designation would be permitted under the Section 4.04 of this Indenture, and (C) if applicable, the Incurrence of Indebtedness and the Investment referred to in clause (A) of this proviso would be permitted under the Section 4.03 and Section 4.04 of this Indenture. The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that immediately after giving effect to such designation (x) the Company could Incur $1.00 of additional Indebtedness under the first paragraph of Section 4.03 of this Indenture and (y) no Default or Event of Default shall have occurred and be continuing. Any such designation by the Board of Directors shall be evidenced to the Trustee by promptly filing with the Trustee a copy of the Board Resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing provisions. "Voting Stock" means, with respect to any Person, Capital Stock of any class or kind ordinarily having the power to vote for the election of directors, managers or other voting members of the governing body of such Person. "Warrants" means the warrants to purchase Common Stock of the Company issued as part of a unit with each of the Notes and the Senior Discount Notes. "Wholly Owned" means, with respect to any Subsidiary of any Person, the ownership of all of the outstanding Capital Stock of such Subsidiary (other than any director's qualifying shares or Investments by foreign nationals mandated by applicable law) by such Person or one or more Wholly Owned Subsidiaries of such Person. SECTION 1.02. Incorporation by Reference of Trust Indenture Act . Whenever this Indenture refers to a provision of the TIA, such provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings: "indenture securities" means the Notes; "indenture security holder" means a Holder; "indenture to be qualified" means this Indenture; "indenture trustee" or "institutional trustee" means the Trustee; and "obligor" on the indenture securities means the Company or any other obligor on the Notes. All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by a rule of the Commission and not otherwise defined herein have the meanings assigned to them therein. SECTION 1.03. Rules of Construction . Unless the context otherwise requires: (i) a term has the meaning assigned to it; (ii) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (iii) "or" is not exclusive; (iv) words in the singular include the plural, and words in the plural include the singular; (v) provisions apply to successive events and transactions; (vi) "herein," "hereof" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; (vii) all references to Sections, Articles or Exhibits refer to Sections, Articles or Exhibits of this Indenture unless otherwise indicated; and (viii) references to sections of or rules under the Securities Act shall be deemed to include substitute, replacement or successor sections of the Securities Act or rules adopted by the Commission from time to time. ARTICLE TWO THE NOTES SECTION 2.01. Form and Dating . (a) Global Notes. The Notes offered and sold shall be issued in the form of one or more fully registered Notes in global form ("Global Notes"), which shall be deposited on behalf of the purchasers of the Notes represented thereby with the at its New York corporate trust office, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Notes in definitive form ("Certificated Notes") shall not be issued except as provided in Section 2.07(a). The aggregate principal amount of each of the Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee as hereinafter provided. Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, redemptions and transfers of interests therein in accordance with the terms of this Indenture. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the principal amount of outstanding Notes represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 2.07 hereof. Except as set forth in Section 2.07(a) hereof, the Global Notes may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by the nominee of the Depositary to the Depositary or another nominee of the Depositary or by the nominee of the Depositary or by the Depositary of any such nominee to a successor of the Depositary or a nominee of each successor. (b) Book-Entry Provisions. The Company shall execute and the Trustee shall, in accordance with this Section 2.01(b) and Section 2.02 hereof, authenticate and deliver the Global Notes to the Depositary. Upon receipt of each Global Note authenticated and delivered by the Trustee, the Depositary shall credit, on its internal book-entry registration and transfer system, its Participant's accounts with the respective interests owned by such Participants. Beneficial ownership in the Global Notes shall be limited to Participants and Indirect Participants. So long as the Depositary is the registered holder of any Global Note, the Participants and Indirect Participants shall have no rights under this Indenture or under any Global Note with respect to such Global Note held on their behalf by the Depositary, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Note for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, interest on the Global Notes and for all other purposes. Notwithstanding the foregoing, nothing herein shall impair the operation of customary practices of the Depositary governing the exercise of the rights of an owner of a beneficial interest in any Global Note. No beneficial owner of an interest in any Global Note shall be able to transfer such interest except in accordance with the Applicable Procedures. (c) Note Forms. The provisions of the form of Global Note contained in Exhibits A hereto are incorporated herein by reference. (d) Dating. Each Note shall be dated the date of its authentication. SECTION 2.02. Execution and Authentication. Any director of the Company shall execute the Notes on behalf of the Company by manual or facsimile signature. The Company's common seal may be reproduced on the Notes and may be in facsimile form. If the director whose manual or facsimile signature is on a Note no longer holds that office at the time the Trustee authenticates the Note or at any time thereafter, the Note nevertheless shall be valid. A Note shall not be valid until an authorized officer of the Trustee manually signs the certificate of authentication on the Note. Such signature shall be conclusive evidence that the Note has been authenticated under this Indenture. The Trustee shall authenticate Notes for original issue in an aggregate principal amount at maturity not to exceed $[ ] upon receipt of a certificate signed by any Officer or attorney-in-fact therefor directing the Trustee to authenticate the Notes. The Global Notes shall be issuable only in fully registered form and the Certificated Notes shall be issuable only in registered form. The Notes shall be issued without coupons and only in denominations of U.S. $1,000 principal amount at maturity or any integral multiple thereof. The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. Unless limited by the terms of such appointment, an authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. Such authenticating agent shall have the same rights as the Trustee in any dealings hereunder with the Company or with any of the Company's Affiliates. SECTION 2.03. Registrar and Paying Agent. The Company shall maintain an office or agency where Certificated Notes may be presented for registration of transfer or for exchange (the "Registrar"), an office or agency where Notes may be presented for payment (the "Paying Agent"), and an office or agency where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served, in each case, located in the Borough of Manhattan, The City of New York, State of New York. The Registrar shall keep a register containing the names and addresses of all Holders (the "Register") and of the transfer and exchange of Certificated Notes. Any notice to be given under this Indenture or under the Notes by the Trustee or the Company to Holders shall be mailed by first class mail to each Holder at its address as it appears at the time of such mailing in the Register. The Company may have one or more co-Registrars and one or more additional paying agents. The term "Paying Agent" includes any additional paying agent. Except as otherwise provided herein, the Company or any Subsidiary thereof may act as Paying Agent. The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Company will 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 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. The Company shall notify the Trustee of the name and address of any 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 Corporate Trust Office of the Trustee in the Borough of Manhattan located at the address set forth in Section 11.02 as Registrar, Paying Agent and agent for service of notices and demands in connection with the Notes and this Indenture. SECTION 2.04. Holders to Be Treated as Owners; Payments of Interest . (a) The Company, the Paying Agent, the Registrar, the Trustee and any agent of the Company, the Paying Agent, the Registrar or the Trustee may deem and treat each Holder of a Note as the absolute owner of such Note for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, and interest on such Note and for all other purposes. Neither the Company, the Paying Agent, the Registrar, the Trustee nor any agent of the Company, the Paying Agent, the Registrar or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such Person, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any Note. (b) The Holder of Certificated a Note at the close of business on the Regular Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date notwithstanding any transfer or exchange of such Certificated Note subsequent to the Regular Record Date and prior to such Interest Payment Date, except if and to the extent the Company shall default in the payment of the interest due on such Interest Payment Date, in which case such defaulted interest shall be paid in accordance with Section 2.13; provided that, in the event of an exchange of a Certificated Note for a beneficial interest in any Global Note subsequent to a Regular Record Date or any special record date and prior to or on the related Interest Payment Date, any payment of interest payable on such payment date with respect to any such Certificated Note shall be made to the Person in whose name such Certificated Note was registered on such record date. Payments of interest on the Global Notes will be made to the Holder of the Global Note on each Interest Payment Date; provided that, in the event of an exchange of all or a portion of the Global Note for Certificated Notes subsequent to the Regular Record Date or any special record date and prior to or on the related Interest Payment Date or other payment date under Section 2.13, any payment of interest payable on such payment date with respect to the Certificated Note shall be made to the Holder of the Global Note. (c) The Trustee shall pay interest to the Depositary, with respect to any Global Note held by the Depositary, in accordance with instructions received from the at least five business days before the applicable Interest Payment Date. SECTION 2.05. Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that such Paying Agent will hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal of or interest on the Notes (whether such money has been paid to it by the Company or any other obligor on the Notes), and the Company and the Paying Agent shall notify the Trustee of any default by the Company (or any other obligor on the Notes) in making any such payment. Unless the Company or any Subsidiary is the Paying Agent, money held in trust by the Paying Agent need not be segregated except as required by law and in no event shall the Paying Agent be liable for any interest on any money received by it hereunder. The Company at any time may require the Paying Agent to pay all money held by it to the Trustee and account for any funds disbursed and the Trustee may at any time during the continuance of any Event of Default specified in Section 6.01(a) or (b), upon written request to the Paying Agent, require such Paying Agent to pay forthwith all money so held by it to the Trustee and to account for any funds disbursed. Upon making such payment, the Paying Agent shall have no further liability for the money delivered to the Trustee. If the Company or any Subsidiary of the Company acts as Paying Agent it shall, on or before each due date of the principal of or interest on the Notes, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act. SECTION 2.06. Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it from the Registrar of the names and addresses of the Holders of Notes. If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least five 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 the Holders of Notes, if any. SECTION 2.07. Transfer and Exchange. (a) Transfer and Exchange of Global Notes. Except as provided below, transfers of Global Notes shall be limited to transfers of such Global Notes in whole, but not in part, to the Depositary. Certificated Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in the Global Notes if (i) the Depositary or Company delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary for the Global Notes or at any time ceases to be a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Company within 120 days after the date of such notice from the Depositary; or (ii) the Company in its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged for Certificated Notes and delivers a written notice to such effect to the Trustee. (i) In connection with any transfer of a portion of the beneficial interests in the Global Notes to beneficial owners pursuant to paragraph (a) above, the Registrar shall reflect on its books and records the date and a decrease in the principal amount of such Global Notes in an amount equal to the principal amount of the beneficial interest in such Global Notes to be transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Certificated Notes of like tenor and amount. (ii) In connection with the transfer of an entire Global Note to beneficial owners pursuant to paragraph (a) above, the Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in the Global Note an equal aggregate principal amount of Certificated Notes of authorized denominations. (b) Transfer and Exchange of Beneficial Interests in the Global Note. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with this Indenture and Applicable Procedures of the Depositary therefor. (c) Transfer and Exchange of Certificated Notes. When Certificated Notes are presented by a Holder to the Registrar with a request to register the transfer of the Certificated Notes or to exchange such Certificated Notes for an equal principal amount of Certificated Notes of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested only if the Certificated Notes are presented or surrendered for registration of transfer or exchange and are endorsed or accompanied by a written instrument of transfer in form satisfactory to the Registrar duly executed by such Holder or by his attorney, duly authorized in writing and upon receipt of such certificates. (d) Legends. (i) Global Note Legend. Each Global Note shall bear a legend in substantially the following form: "THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (III) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF ORION NEWCO SERVICES, INC." (ii) Unit Legend. Each Note issued prior to the Separation Date shall bear the following legend (the "Unit Legend") on the face thereof: "THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF $[ ] PRINCIPAL AMOUNT OF THE NOTES AND ONE WARRANT (EACH, A "WARRANT" AND COLLECTIVELY, THE "WARRANTS") INITIALLY ENTITLING THE HOLDER THEREOF TO PURCHASE [ ] SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE, (THE "COMMON STOCK")." (e) General Provisions Relating to All Transfers and Exchanges. (i) To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Global Notes and Certificated Notes upon the Company's order or at the Registrar's request. (i) No service charge shall be made to a Holder for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any stamp or transfer tax or similar governmental charge payable in connection therewith (other than any such stamp or transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.11, 3.07, 4.11, 4.13 and 9.04 hereof). (ii) All Global Notes and Certificated Notes issued upon any registration of transfer or exchange of Global Notes or Certificated Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Certificated Notes surrendered upon such registration of transfer or exchange. (iii) The Company shall not be required (A) to issue, to register the transfer of or to exchange Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.03 hereof and ending at the close of business on the day of selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part or (C) to register the transfer of or to exchange a Note between a record date and the next succeeding Interest Payment Date. (iv) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and neither the Trustee, any Agent nor the Company shall be affected by notice to the contrary. (v) The Trustee shall authenticate Global Notes and Certificated Notes in accordance with the provisions of Section 2.02 hereof. SECTION 2.08. Replacement Notes . If a mutilated Certificated Note is surrendered to the Registrar or the Trustee, if a mutilated Global Note is surrendered to the Company or the Trustee or if the Company and the Trustee receive evidence to their satisfaction that any Note has been lost, destroyed or stolen, the Company shall issue and the Trustee shall authenticate a replacement Note in such form as the Notes mutilated, lost, destroyed or wrongfully taken if (i) in the case of a lost, destroyed or stolen Note, the Holder of such Note furnishes to the Company, the Trustee and, in the case of a Certificated Note, the Registrar, evidence reasonably acceptable to them of the ownership and the destruction, loss or theft of such Note and (ii) an indemnity bond shall be posted by the Holder requesting replacement, sufficient in the judgment of each to protect the Company, the Registrar (in the case of a Certificated Note ), the Trustee or any Agent from any loss that any of them may suffer if such Note is replaced. Prior to the issuance of any such replacement Note, the Trustee shall notify the Company of any request therefor. The Company may charge such Holder for the Company's out-of-pocket expenses in replacing such Note and the Trustee may charge the Holder for the Trustee's expenses in replacing such Note. Every replacement Note shall constitute an additional obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionally with all other Notes issued hereunder. The provisions of this Section 2.08 are exclusive and shall preclude (to the extent permitted by applicable law) all other rights and remedies with respect to the replacement of mutilated, lost, destroyed or stolen Notes. SECTION 2.09. Outstanding Notes . The Notes outstanding at any time are all Notes that have been authenticated by the Trustee except for (a) those cancelled by it, (b) those delivered to it for cancellation, (c) to the extent set forth in Sections 8.01 and 8.02, on or after the date on which the conditions set forth in Section 8.01 or 8.02 have been satisfied, those Notes theretofore authenticated and delivered by the Trustee hereunder and (d) those described in this Section 2.09 as not outstanding. Subject to Section 2.10, a Note does not cease to be outstanding because the Company or one of its Affiliates holds the Note. If a Note is replaced pursuant to Section 2.08, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser in whose hands such Note is a legal, valid and binding obligation of the Company. If the principal amount of any Note is considered to be paid under Section 4.01, it ceases to be outstanding and interest thereon shall cease to accrue. If the Paying Agent holds, in its capacity as such, on the Stated Maturity of a Note, on any Redemption Date or on any Payment Date, money sufficient to pay all accrued interest and Liquidated Damages and principal with respect to such Notes payable on that date and is not prohibited from paying such money to the Holders thereof pursuant to the terms of this Indenture, then on and after that date such Notes cease to be outstanding and interest on them ceases to accrue. SECTION 2.10. Treasury Notes . In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent or any amendment, modification or other change to this Indenture, Notes owned by the Company or an Affiliate of the Company shall be disregarded as though they were not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent or any amendment, modification or other change to this Indenture, only Notes that the Trustee actually knows are so owned shall be so disregarded. SECTION 2.11. Temporary Notes . Until definitive Notes are prepared and ready for delivery, the Company may prepare and the Trustee shall, upon receipt of a Company Order, authenticate temporary Notes. Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes. Until such exchange, temporary Notes shall be entitled to the same rights, benefits and privileges as definitive Notes. SECTION 2.12. Cancellation . All Notes surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Notes previously authenticated hereunder which the Company has not issued and sold, and all Notes so delivered shall be promptly cancelled by the Trustee. If the Company shall so acquire any of the Notes, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section 2.12, except as expressly permitted by this Indenture. All cancelled Notes held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures and certification of their disposal delivered to the Company unless by Company Order the Company shall direct that cancelled Notes be returned to it. SECTION 2.13. Defaulted Interest . If the Company defaults on a payment of interest on the Notes, it shall pay the defaulted interest plus (to the extent permitted by law) any interest payable on the defaulted interest in accordance with the terms hereof, to (a) the Persons who are Holders of Certificated Notes, if any, on a subsequent special record date, which date shall be at least five Business Days prior to the payment date for such defaulted interest, and (b) if any Global Notes are outstanding on such payment date, to the Holder of the Global Notes on such payment date. The Company shall fix such special record date and payment date in a manner reasonably satisfactory to the Trustee. At least 15 days before such special record date, the Company shall mail to each Holder of Certificated Notes, if any, and if the Global Notes are still outstanding, to the Holder thereof and the Depositary, a notice that states the special record date, the payment date and the amount of defaulted interest and interest payable on such defaulted interest to be paid. SECTION 2.14. CUSIP, CINS or ISIN Number . The Company in issuing the Notes may use a "CUSIP," "CINS" or "ISIN" number, and if so, such CUSIP, CINS or ISIN number shall be included in notices of redemption, repurchase or exchange as a convenience to Holders, provided, however, that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP, CINS or ISIN number printed in the notice or on the Notes, and that reliance may be placed only on the other identification numbers printed on the Notes; and provided, further that failure to use CUSIP, CINS or ISIN numbers in any notice of redemption, repurchase or exchange shall not affect the validity or sufficiency of such notice. The Company will promptly notify the Trustee of any change in the CUSIP, CINS or ISIN number. SECTION 2.15. Deposit of Moneys . Prior to 12:00 noon, New York City time, on each Interest Payment Date, at the Stated Maturity of the Notes, on each Redemption Date, on each Payment Date and on the Business Day immediately following any acceleration of the Notes pursuant to Section 6.02, the Company shall deposit with the Paying Agent in immediately available funds money (in United States dollars) sufficient to make cash payments, if any, due on such Interest Payment Date, Stated Maturity, Redemption Date, Payment Date or Business Day, as the case may be, in a timely manner which permits the Trustee to remit payment to the Holders on such Interest Payment Date, Stated Maturity, Redemption Date, Payment Date or Business Day, as the case may be. ARTICLE THREE REDEMPTION SECTION 3.01. Right of Redemption . The Notes will be redeemable, at the Company's option, in whole or in part, at any time or from time to time, on or after [ ], 2002 and prior to maturity, upon not less than 30 nor more than 60 days' prior notice mailed by first class mail to each Holders' last address as it appears in the Note Register, at the following Redemption Prices (expressed in percentages of principal amount at maturity), plus accrued and unpaid interest, if any, to the Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date that is on or prior to the Redemption Date to receive interest due on an Interest Payment Date), if redeemed during the 12-month period commencing [ ], of the years set forth below: Year Redemption Price ---- ---------------- 2002 [_____]% 2003 [_____]% 2004 and thereafter 100.000% SECTION 3.02. Notices to Trustee . If the Company elects to redeem Notes pursuant to Section 3.01, it shall notify the Trustee in writing of (i) the clause of the Indenture pursuant to which the redemption shall occur, (ii) the Redemption Date, (iii) the principal amount at stated maturity of Notes to be redeemed plus interest accrued thereon, if any, to the Redemption Date and (iv) the Redemption Price. The Company shall give each notice provided for in this Section 3.02 in an Officers' Certificate at least 15 days before mailing the notice to Holders referred to in Section 3.01. SECTION 3.03. Selection of Notes to Be Redeemed . In the case of any partial redemption, selection of the Notes for redemption will be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not listed on a national securities exchange, on a pro rata basis, by lot or by such other method as the Trustee in its sole discretion shall deem to be fair and appropriate; provided that no Note of $1,000 in principal amount at maturity or less shall be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption relating to such Note shall state the portion of the principal amount at maturity thereof to be redeemed. A new Note in principal amount at maturity equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Note. SECTION 3.04. Notice of Redemption . With respect to any redemption of Notes pursuant to Section 3.01, at least 30 days but not more than 60 days before a Redemption Date, the Company shall mail a notice of redemption by first class mail to each Holder whose Notes are to be redeemed at such Holder's registered address. The notice shall identify the Notes to be redeemed and shall state: (a) the Redemption Date; (b) the Redemption Price; (c) the name and address of the Paying Agent; (d) that Notes called for redemption must be surrendered to the Paying Agent in order to collect the Redemption Price; (e) the paragraph of the Notes and/or the Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; (f) that, unless the Company defaults in making the redemption payment, interest on Notes called for redemption ceases to accrue on and after the Redemption Date and the only remaining right of the Holders is to receive payment of the Redemption Price plus accrued interest to the Redemption Date upon surrender of the Notes to the Paying Agent; (g) that, if any Note is being redeemed in part, the portion of the principal amount (equal to $1,000 in principal amount or any integral multiple thereof) of such Note to be redeemed and that, on and after the Redemption Date, upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion thereof will be reissued; and (h) that, if any Note contains a CUSIP, CINS, ISIN or other identification number as provided in Section 2.14, no representation is being made as to the correctness of the CUSIP, CINS, ISIN or other identification number either as printed on the Notes or as contained in the notice of redemption and that reliance may be placed only on the other identification numbers printed on the Notes. At the Company's request contained in a Company Order (which request may be revoked by the Company at any time prior to the time at which the Trustee shall have given such notice to the Holders), made to the Trustee at least 15 days before mailing the notice to Holders referred to in Section 3.01, the Trustee shall give such notice of redemption in the name and at the expense of the Company. If, however, the Company gives such notice to the Holders, the Company shall concurrently deliver to the Trustee an Officers' Certificate stating that such notice has been given. Notice of redemption shall be deemed to be given when mailed, whether or not the Holder receives the notice. In any event, failure to give such notice, or any defect therein, shall not affect the validity of the proceedings for the redemption of Notes held by Holders to whom such notice was properly given. SECTION 3.05. Deposit of Redemption Price . On or prior to any Redemption Date, the Company shall deposit with the Paying Agent (or, if the Company is acting as its own Paying Agent, shall segregate and hold in trust as provided in section 2.05 )money sufficient to pay the Redemption Price of, and accrued and unpaid interest on all Notes to be redeemed on that date other than Notes or portions thereof called for redemption on that date that have been delivered by the Company to the Trustee for cancellation. SECTION 3.06. Payment of Notes Called for Redemption . If notice of redemption has been given to Holders in the manner provided above, the Notes or portion of Notes specified in such notice to be redeemed shall become irrevocably due and payable on the Redemption Date at the Redemption Price stated therein, together with accrued interest to such Redemption Date, and on and after any such Redemption Date (unless the Company shall default in the payment of Notes to be redeemed on such date at the Redemption Price, plus accrued interest to the Redemption Date, in which case the principal, until paid, shall bear interest from the Redemption Date at the rate prescribed in the Notes), such Notes shall cease to accrue interest. Upon surrender of any Note for redemption in accordance with a notice of redemption, such Note shall be paid and redeemed by the Company at the Redemption Price, plus accrued interest to the Redemption Date, provided that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders registered as such at the close of business on the relevant Regular Record Date. SECTION 3.07. Notes Redeemed in Part . Upon cancellation of any Note that is redeemed in part, the Company shall issue and the Trustee shall authenticate and deliver to the Holder a new Note equal in principal amount to the unredeemed portion of such surrendered Note. ARTICLE FOUR COVENANTS SECTION 4.01. Payment of Notes . The Company shall pay the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes and this Indenture. An installment of principal, premium, interest shall be considered paid on the date due if the Trustee or Paying Agent (other than the Company, a Subsidiary of the Company, or any Affiliate of any of them) holds as of 10:00AM New York City time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay the installment. SECTION 4.02. Issuances of Guarantees by New Restricted Subsidiaries. The Company will provide to the Trustee, on the date that any Person becomes a Restricted Subsidiary, a supplemental indenture to this Indenture, executed by such new Restricted Subsidiary, providing for a full and unconditional guarantee on a senior basis by such new Restricted Subsidiary of the Company's obligations under the Notes and this Indenture; provided that, in the case of any new Restricted Subsidiary that becomes a Restricted Subsidiary through the acquisition of a majority of its voting Capital Stock by the Company or any other Restricted Subsidiary, such guarantee may be subordinated to the extent required by the obligations of such new Restricted Subsidiary existing on the date of such acquisition that were not incurred in contemplation of such acquisition. SECTION 4.03. Limitation on Indebtedness . (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness (other than the Notes and Indebtedness existing on the Closing Date); provided that the Company may Incur Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Consolidated Leverage Ratio would be greater than zero and less than 6 to 1. Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of the following: (i) Indebtedness outstanding at any time that is (A) Incurred to finance the purchase, construction, launch, insurance for and other costs with respect to Orion 2 and Orion 3 or (B) in an aggregate principal amount not to exceed (1) until Orion 2 or Orion 3 has been successfully delivered in orbit, $50 million, (2) after the first of Orion 2 or Orion 3 has been successfully delivered in orbit, $100 million and (3) after the second of Orion 2 or Orion 3 has been successfully delivered in orbit, $150 million, in each case under this clause (i)(B); (ii) Indebtedness owed (A) to the Company or (B) to any of its Restricted Subsidiaries; provided that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or another Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (ii); (iii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness, other than Indebtedness Incurred under clause (i)(B), (ii), (iv), (vi) or (viii) of this paragraph, and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to refinance or refund the Notes, the Note Guarantee or Indebtedness that is pari passu with, or subordinated in right of payment to, the Notes shall only be permitted under this clause (iii) if (A) in case the Notes or the Note Guarantee are refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes or the Note Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes or the Note Guarantee, as the case may be, (B) in case the Indebtedness to be refinanced is subordinated in right of payment to the Notes or the Note Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes or the Note Guarantee at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes or the Note Guarantee, as the case may be, and (C) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded; (iv) Indebtedness (A) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements (a) are designed solely to protect the Company or its Subsidiaries against fluctuations in foreign currency exchange rates or interest rates and (b) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder and (C) arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary of the Company for the purpose of financing such acquisition), in a principal amount not to exceed the gross proceeds actually received by the Company or any Restricted Subsidiary in connection with such disposition; (v) Indebtedness of the Company, to the extent the net proceeds thereof are promptly (A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change in Control or (B) deposited to defease the Notes as described in Section 8.02 of this Indenture; (vi) Guarantees of the Notes and Guarantees of Indebtedness of the Company by any Restricted Subsidiary provided the Guarantee of such Indebtedness is permitted by and made in accordance with the Section 4.07 of this Indenture; (vii) Indebtedness Incurred to finance the cost (including the cost of design, development, construction, installation, improvement, transportation or integration) of equipment (other than Orion 2 and Orion 3) or inventory acquired by the Company or a Restricted Subsidiary after the Closing Date; (viii) Indebtedness of the Company not to exceed, at any one time outstanding, two times the Net Cash Proceeds received by the Company after the Closing Date from the issuance and sale of its Capital Stock (other than Disqualified Stock) to a Person that is not a Subsidiary of the Company (less the amount of such proceeds applied as provided in clause (C)(2) of the first paragraph or clause (iii) or (iv) of the second paragraph of the Section 4.04 of this Indenture); provided that such Indebtedness does not mature prior to the Stated Maturity of the Notes and has an Average Life longer than the Notes; and (ix) Redemption Indebtedness. (b) Notwithstanding any other provision of this Section covenant, the maximum amount of Indebtedness that the Company or a Restricted Subsidiary may incur pursuant to this Section 4.03 shall not be deemed to be exceeded, with respect to any outstanding Indebtedness, due solely to the result of fluctuations in the exchange rates of currencies. (c) For purposes of determining any particular amount of Indebtedness under this Section, (1) Guarantees, Liens or obligations with respect to letters of credit supporting Indebtedness otherwise included in the determination of such particular amount shall not be included and (2) any Liens granted pursuant to the equal and ratable provisions referred to in the Section 4.09 of this Indenture shall not be treated as Indebtedness. For purposes of determining compliance with this Section 4.03, in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in the above clauses, the Company, in its sole discretion, shall classify such item of Indebtedness and only be required to include the amount and type of such Indebtedness in one of such clauses. (d) In the event that the Company or any Restricted Subsidiary shall repay any Indebtedness (other than the Notes) pursuant to clause (i)(A) of Section 4.11, the aggregate amount of Indebtedness which may otherwise be Incurred under clauses (i)(B) and (viii) of the second paragraph of paragraph (a) of this Section 4.03 shall be reduced by the amount of such repayment. The Company shall designate how much of such reduction shall be applied to each such clause. SECTION 4.04. Limitation on Restricted Payments . The Company will not, and will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Guarantor that is subordinated to the Note Guarantee (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "Restricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments and dividends on the Common Stock of any Guarantor, the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to plus (2) the aggregate Net Cash Proceeds received by the Company or any Guarantor after the Closing Date from the issuance and sale permitted by the Indentures of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company or any Guarantor or from the issuance to a Person who is not a Subsidiary of the Company or any Guarantor of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes), in each case except to the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in right of payment to the Notes including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, Indebtedness Incurred under clause (iii) of the second paragraph of part (a) of Section 4.03; (iii) the repurchase, redemption or other acquisition of Capital Stock of the Company (or options, warrants or other rights to acquire such Capital Stock) in exchange for, or out of the proceeds of a substantially concurrent offering of, shares of Capital Stock (other than Disqualified Stock) of the Company; (iv) the making of any principal payment or the repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness of the Company which is subordinated in right of payment to the Notes in exchange for, or out of the proceeds of, a substantially concurrent offering of, shares of the Capital Stock of the Company (other than Disqualified Stock); (v) payments or distributions, to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with the provisions of the Indentures applicable to mergers, consolidations and transfers of all or substantially all of the property and assets of the Company; (vi) the repurchase, redemption or other acquisition of outstanding shares of Series A Preferred Stock or Series B Preferred Stock, which shares either (A) were outstanding on the Closing Date or (B) are shares of Series A Preferred Stock which were issued pursuant to the exercise of options that were outstanding on the Closing Date, in exchange for, or out of the proceeds of, an issuance of Indebtedness Incurred under clause (ix) of the second paragraph of part (a) of Section 4.03; or (vii) Investments to the extent the amount invested consists solely of Net Cash Proceeds received by the Company or any Guarantor, within six months of the making of such Investment, from the issuance and sale permitted by the Indentures of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company or any Guarantor; (viii) Investments, the sum of which does not exceed $5 million at any one time outstanding; (ix) cash payments, not to exceed $3 million, in lieu of the issuance of fractional shares of Capital Stock of the Company upon the exercise of the Warrants or any other warrants to buy, or upon the conversion of any securities convertible into, Capital Stock of the Company; and (x) a one-time cash payment of up to $3.0 million to the holders of the Junior Subordinated Convertible Debentures in connection with the disposition of the Junior Subordinated Convertible Debentures in an underwritten public offering pursuant to Section 11.4 of the Debenture Purchase Agreement; provided that, except in the case of clauses (i) and (iii), no Default or Event of Default shall have occurred and be continuing or occur as a consequence of the actions or payments set forth therein. Each Restricted Payment permitted pursuant to the preceding paragraph (other than the Restricted Payment referred to in clause (ii) thereof and an exchange of Capital Stock for Capital Stock or Indebtedness referred to in clause (iii) or (iv) thereof) and the Net Cash Proceeds from any issuance of Capital Stock referred to in clauses (iii) and (iv) shall be included in calculating whether the conditions of clause (C) of the first paragraph of this Section 4.04 have been met with respect to any subsequent Restricted Payments. In the event the proceeds of an issuance of Capital Stock of the Company are used for the redemption, repurchase or other acquisition of the Notes, or Indebtedness that is pari passu with the Notes, then the Net Cash Proceeds of such issuance shall be included in clause (C) of the first paragraph of this Section 4.04 only to the extent such proceeds are not, within six months, used for such redemption, repurchase or other acquisition of Indebtedness. Any Restricted Payments made other than in cash shall be valued at fair market value. The amount of any Investment "outstanding" at any time shall be deemed to be equal to the amount of such Investment on the date made, less the return of capital to the Company and its Restricted Subsidiaries with respect to such Investment (up to the amount of such Investment on the date made). SECTION 4.05. Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries . The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions: (i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced; (ii) existing under or by reason of applicable law; (iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary and existing at the time of such acquisition, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired; (iv) in the case of clause (iv) of the first paragraph of this Section 4.05, (A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset, (B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary; or (v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries. SECTION 4.06. Limitation on the Issuance of Capital Stock of Restricted Subsidiaries . The Company will not sell, and will not permit any Restricted Subsidiary, directly or indirectly, to issue or sell, any shares of Capital Stock of a Restricted Subsidiary (including options, warrants or other rights to purchase shares of such Capital Stock) except: (i) to the Company or a Wholly Owned Restricted Subsidiary; (ii) issuances of director's qualifying shares or sales to foreign nationals of shares of Capital Stock of foreign Restricted Subsidiaries, to the extent required by applicable law; (iii) if, immediately after giving effect to such issuance or sale, such Restricted Subsidiary would no longer constitute a Restricted Subsidiary, provided any Investment in such Person remaining after giving effect to such issuance or sale would have been permitted to be made under Section 4.04, if made on the date of such issuance or sale; and (iv) issuances or sales of Common Stock of any Restricted Subsidiary, the Net Cash Proceeds of which are promptly applied pursuant to clause (A) or (B) of Section 4.11 of this Indenture; provided that at no time may a Restricted Subsidiary, the Common Stock of which has been issued or sold pursuant to this clause (iv), be the owner of a satellite. SECTION 4.07. Limitation on Issuances of Guarantees by Restricted Subsidiaries . The Company will not permit any Restricted Subsidiary, directly or indirectly, to Guarantee any Indebtedness of the Company which is pari passu with or subordinate in right of payment to the Notes ("Guaranteed Indebtedness"), unless such Restricted Subsidiary waives and will not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Company or any other Restricted Subsidiary as a result of any payment by such Restricted Subsidiary under its Subsidiary Guarantee; provided that this paragraph shall not be applicable to any Guarantee of any Restricted Subsidiary that existed at the time such Person became a Restricted Subsidiary and was not Incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary. If the Guaranteed Indebtedness is (A) pari passu with the Notes or the Note Guarantee, then the Guarantee of such Guaranteed Indebtedness shall be pari passu with, or subordinated to, the Subsidiary Guarantee or (B) subordinated to the Notes or the Note Guarantee, then the Guarantee of such Guaranteed Indebtedness shall be subordinated to the Subsidiary Guarantee at least to the extent that the Guaranteed Indebtedness is subordinated to the Notes or the Note Guarantee, as the case may be. SECTION 4.08. Limitation on Transactions with Shareholders and Affiliates . The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, enter into, renew or extend any transaction (including, without limitation, the purchase, sale, lease or exchange of property or assets, or the rendering of any service) with any holder (or any Affiliate of such holder) of 5% or more of any class of Capital Stock of the Company or with any Affiliate of the Company or any Restricted Subsidiary, except upon fair and reasonable terms no less favorable to the Company or such Restricted Subsidiary than could be obtained, at the time of such transaction or, if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefor, in a comparable arm's-length transaction with a Person that is not such a holder or an Affiliate. The foregoing limitation does not limit, and shall not apply to (i) transactions (A) approved by a majority of the disinterested members of the Board of Directors or (B) for which the Company or a Restricted Subsidiary delivers to the Trustees a written opinion of a nationally recognized investment banking firm stating that the transaction is fair to the Company or such Restricted Subsidiary from a financial point of view, (ii) any transaction solely between the Company and any of its Wholly Owned Restricted Subsidiaries or solely between Wholly Owned Restricted Subsidiaries, (iii) the payment of reasonable and customary regular fees to directors of the Company who are not employees of the Company, (iv) any payments or other transactions pursuant to any tax-sharing agreement between the Company and any other Person with which the Company files a consolidated tax return or with which the Company is part of a consolidated group for tax purposes, (v) any Restricted Payments not prohibited by Section 4.04 or (vii) Kingston's and Matra's rights to commissions and other payments under sales representation agreements; Matra's rights to payments, including without limitation incentive payments, under the Orion 1 Satellite Contract and Orion 2 Satellite Contract; and Kingston's rights to payments for services under network monitoring contracts, in each case as in effect on the Closing Date and with such extensions, amendments and renewals that may be entered into on terms at least as favorable to the Company as the terms of agreements in effect on the Closing Date. Notwithstanding the foregoing, any transaction covered by the first paragraph of this Section 4.08 and not covered by clauses (ii) through (v) of this paragraph, the aggregate amount of which exceeds $5 million in value, must be approved or determined to be fair in the manner provided for in clause (i)(A) or (B) above. SECTION 4.09. Limitation on Liens . The Company will not, and will not permit any Restricted Subsidiary to, create, incur, assume or suffer to exist any Lien on any of its assets or properties of any character, or any shares of Capital Stock or Indebtedness of any Restricted Subsidiary, without making effective provision for all of the Notes and all other amounts due under the Indentures to be directly secured equally and ratably with (or, if the obligation or liability to be secured by such Lien is subordinated in right of payment to the Notes, prior to) the obligation or liability secured by such Lien. The foregoing limitation does not apply to: (i) Liens existing on the Closing Date; (ii) Liens granted after the Closing Date on any assets or Capital Stock of the Company or its Restricted Subsidiaries created in favor of the Holders; (iii) Liens with respect to the assets of a Restricted Subsidiary granted by such Restricted Subsidiary to the Company or a Wholly Owned Restricted Subsidiary to secure Indebtedness owing to the Company or such other Restricted Subsidiary; (iv) Liens securing Indebtedness which is Incurred to refinance secured Indebtedness which is permitted to be Incurred under clause (iii) of the second paragraph of Section 4.03; provided that such Liens do not extend to or cover any property or assets of the Company or any Restricted Subsidiary other than the property or assets securing the Indebtedness being refinanced; or (v) Permitted Liens. The Company will not, and will not permit any Restricted Subsidiary to, create, incur, assume or suffer to exist any Lien on Orion 1, Orion 2 or Orion 3 that secures Indebtedness, other than pursuant to clause (xxi) of the definition of Permitted Liens. SECTION 4.10. Limitation on Sale-Leaseback Transactions . The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, enter into any sale-leaseback transaction involving any of its assets or properties whether now owned or hereafter acquired, whereby the Company or a Restricted Subsidiary sells or transfers such assets or properties and then or thereafter leases such assets or properties or any part thereof or any other assets or properties which the Company or such Restricted Subsidiary, as the case may be, intends to use for substantially the same purpose or purposes as the assets or properties sold or transferred. The foregoing restriction does not apply to any sale-leaseback transaction if (i) the lease is for a period, including renewal rights, of not in excess of three years; (ii) the lease secures or relates to industrial revenue or pollution control bonds; (iii) the transaction is solely between the Company and any Wholly Owned Restricted Subsidiary or solely between Wholly Owned Restricted Subsidiaries; or (iv) the Company or such Restricted Subsidiary, within twelve months after the sale or transfer of any assets or properties is completed, applies an amount not less than the net proceeds received from such sale in accordance with clause (A) or (B) of the first paragraph of Section 4.11 of this Indenture. SECTION 4.11. Limitation on Asset Sales. The Company will not, and will not permit any Restricted Subsidiary to, consummate any Asset Sale unless (i) the consideration received by the Company or such Restricted Subsidiary (including the amount of any Released Indebtedness) is at least equal to the fair market value of the assets sold or disposed of and (ii) at least 85% of the consideration received (excluding the amount of any Released Indebtedness) consists of cash or Temporary Cash Investments. In the event and to the extent that the Net Cash Proceeds received by the Company or any of its Restricted Subsidiaries from one or more Asset Sales occurring on or after the Closing Date in any period of 12 consecutive months exceed 10% of Adjusted Consolidated Net Tangible Assets (determined as of the date closest to the commencement of such 12-month period for which a consolidated balance sheet of the Company and its subsidiaries has been filed pursuant to Section 4.18, then the Company shall or shall cause the relevant Restricted Subsidiary to (i) within twelve months after the date Net Cash Proceeds so received exceed 10% of Adjusted Consolidated Net Tangible Assets (A) apply an amount equal to such excess Net Cash Proceeds to permanently repay unsubordinated Indebtedness of the Company or any Restricted Subsidiary owing to a Person other than the Company or any of its Restricted Subsidiaries or (B) invest an equal amount, or the amount not so applied pursuant to clause (A) (or enter into a definitive agreement committing to so invest within twelve months after the date of such agreement), in property or assets (other than current assets) of a nature or type or that are used in a business (or in a company having property and assets of a nature or type, or engaged in a business) similar or related to the nature or type of the property and assets of, or the business of, the Company and its Restricted Subsidiaries existing on the date of such investment and (ii) apply (no later than the end of the twelve-month period referred to in clause (i)) such excess Net Cash Proceeds (to the extent not applied pursuant to clause (i)) as provided in the following paragraph of this Section 4.11. The amount of such excess Net Cash Proceeds required to be applied (or to be committed to be applied) during such twelve-month period as set forth in clause (i) of the preceding sentence and not applied as so required by the end of such period shall constitute "Excess Proceeds." If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to this Section 4.11 totals at least $10 million, the Company must commence, not later than the fifteenth Business Day of such month, and consummate an Offer to Purchase from the Holders on a pro rata basis an aggregate principal amount Notes equal to the Excess Proceeds on such date, at a purchase price equal to 101% of the principal amount of the Notes plus, accrued interest (if any) to the Payment Date. SECTION 4.12. Maintenance of Office or Agency . The Company will maintain an office or agency where the Notes may be surrendered for registration of transfer or exchange or for presentation for payment and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company will 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 address of the Trustee set forth in Section 12.02. The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. 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 initially designates the Corporate Trust Office of the Trustee as such office of the Company in accordance with Section 2.03. SECTION 4.13. Repurchase of Notes upon a Change of Control . The Company shall commence, within 30 days of the occurrence of a Change of Control, and consummate an Offer to Purchase for all Notes then outstanding, at a purchase price equal to 101% of the principal amount of the Notes plus accrued interest (if any) to the Payment Date. SECTION 4.14. Existence . Subject to Articles Four and Five of this Indenture, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence and the existence of each Restricted Subsidiary in accordance with the respective organizational documents of the Company and each such Restricted Subsidiary and the rights (whether pursuant to charter, partnership certificate, agreement, statute or otherwise), material licenses and franchises of the Company and each such Restricted Subsidiary, provided that the Company shall not be required to preserve any such right, license or franchise, or the existence of any Restricted Subsidiary (other than of the Company), if the maintenance or preservation thereof is no longer desirable in the conduct of the business of the Company and its Restricted Subsidiaries taken as a whole. SECTION 4.15. Payment of Taxes and Other Claims . The Company will pay or discharge and shall cause each Restricted Subsidiary to pay or discharge, or cause to be paid or discharged, before the same shall become delinquent (i) all material taxes, assessments and governmental charges levied or imposed upon (a) the Company or any such Restricted Subsidiary, (b) the income or profits of any such Restricted Subsidiary which is a corporation or (c) the property of the Company or any such Restricted Subsidiary and (ii) all material lawful claims for labor, materials and supplies that, if unpaid, might by law become a Lien upon the property of the Company or any such Restricted Subsidiary, provided that the Company shall not be required to pay or discharge, or cause to be paid or discharged, any such tax, assessment, charge or claim the amount, applicability or validity of which is being contested in good faith by appropriate proceedings or by the Company and its Restricted Subsidiaries where the failure to effect such payment is not adverse in any material respect to the Holders. SECTION 4.16. Maintenance of Properties and Insurance . The Company will maintain (a) in-orbit insurance with respect to Orion 1 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 having at least as much transmission capacity as such satellite, and (b) with respect to Orion 2, Orion 3, each other satellite to be launched by the Company or any Restricted Subsidiary and each replacement satellite therefor, (i) launch insurance with respect to each such satellite covering the period from the launch of such satellite to 180 days following such launch 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 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 having at least as much transmission capacity as such satellite was designed to have. The in-orbit insurance required by this Section 4.16 shall provide that if 50% or more of a satellite's initial 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 initial capacity, a pro-rata portion of such insurance will become due and payable. The insurance required by this paragraph shall name the Company and/or any Guarantor as the sole loss payee or payees, as the case may be, thereof. In the event that the Company (or a Guarantor) receives proceeds from insurance relating to any satellite, the Company (or a Guarantor) may use a portion of such proceeds to repay any vendor or third-party purchase money financing pertaining to such satellite (other than Orion 1) that is required to be repaid by reason of the loss giving rise to such insurance proceeds. The Company (or a Guarantor) 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) such replacement satellite is of comparable or superior technological capability as compared with the satellite being replaced and has at least as much transmission capacity as the satellite being replaced and (ii) 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, provided that such replacement satellite is scheduled to be launched within 15 months of the receipt of such proceeds. Any such proceeds not used as permitted by this Section 4.16 shall be applied, within 90 days, to reduce Indebtedness of the Company or shall constitute "Excess Proceeds" for purposes of Section 4.11. The Company will further provide or cause to be provided, for itself and its Restricted Subsidiaries, insurance (including appropriate self-insurance) against loss or damage of the kinds considered reasonable by the Company in the conduct of its business. The Company will cause all properties owned by the Company or any Subsidiary or used or held for use in the conduct of its business or the business of any Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section 4.16 shall prevent the Company from discontinuing the maintenance of any of such properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business or the business of any Subsidiary and not disadvantageous in any material respect to the Holders. SECTION 4.17. Notice of Defaults . In the event that the Company becomes aware of any Default or Event of Default, the Company, promptly after it becomes aware thereof, will give written notice thereof to the Trustee. SECTION 4.18. Commission Reports and Reports to Holders . Whether or not the Company is required to file reports with the Commission, the Company shall file with the Commission all such reports and other information as it would be required to file with the Commission by Sections 13(a) or 15(d) under the Notes Exchange Act of 1934 if it were subject thereto. The Company shall supply the Trustees and each Holder or shall supply to the Trustees for forwarding to each such Holder, without cost to such Holder, copies of such reports and other information. SECTION 4.19. Waiver of Stay, Extension or Usury Laws . The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of, premium, if any, or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of this Indenture, and (to the extent that it may lawfully do so) the Company hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted. ARTICLE FIVE SUCCESSOR CORPORATION SECTION 5.01. Consolidation, Merger and Sale of Assets . Each of the Company and each Guarantor will not consolidate with, merge with or into, or sell, convey, transfer, lease or otherwise dispose of all or substantially all of its property and assets (as an entirety or substantially an entirety in one transaction or a series of related transactions) to, any Person or permit any Person to merge with or into the Company or any Guarantor unless: (i) the Company or any Guarantor, as the case may be, shall be the continuing Person, or the Person (if other than the Company or Guarantor) formed by such consolidation or into which the Company or any Guarantor, as the case may be, is merged or that acquired or leased such property and assets of the Company or any Guarantor, as the case may be, shall be a corporation organized and validly existing under the laws of the United States of America or any jurisdiction thereof and shall expressly assume, by a supplemental indenture, executed and delivered to the Trustees, all of the obligations of the Company or any Guarantor, as the case may be, on all of the Notes and under the Indenture; (ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; (iii) if such transaction involves the Company or any Significant Subsidiary thereof, immediately after giving effect to such transaction on a pro forma basis, the Company, or any Person becoming the successor to the Company as obligor on the Notes shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction; (iv) if such transaction involves the Company or any Significant Subsidiary thereof, immediately after giving effect to such transaction on a pro forma basis, the Company, or any Person becoming the successor obligor of the Notes, as the case may be, could Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03; provided that this clause (iv) shall not apply to a consolidation or merger with or into a Wholly Owned Restricted Subsidiary with a positive net worth; provided that, in connection with any such merger or consolidation, no consideration (other than Common Stock in the surviving Person or the Company) shall be issued or distributed to the stockholders of the Company; and (v) the Company or Guarantor, as the case may be, delivers to the Trustees an Officers' Certificate (attaching the arithmetic computations to demonstrate compliance with clauses (iii) and (iv)) and Opinion of Counsel, in each case stating that such consolidation, merger or transfer and such supplemental indenture complies with this provision and that all conditions precedent provided for herein relating to such transaction have been complied with; provided, however, that clauses (iii) and (iv) above do not apply if, in the good faith determination of the Board of Directors of the Company, whose determination shall be evidenced by a Board Resolution, the principal purpose of such transaction is to change the state of incorporation of the Company; and provided further that any such transaction shall not have as one of its purposes the evasion of the foregoing limitations. Notwithstanding the foregoing, the provisions of this Section 5.01 shall not apply to the Merger. SECTION 5.02. Successor Substituted . Upon any consolidation or merger, or any sale, conveyance, transfer or other disposition of all or substantially all of the property and assets of the Company in accordance with Section 5.01 of this Indenture, the successor Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Notes. ARTICLE SIX DEFAULT AND REMEDIES SECTION 6.01. Events of Default . An "Event of Default" shall occur with respect to the Notes if: (a) default in the payment of principal of (or premium, if any, on) any Note when the same becomes due and payable at maturity, upon acceleration, redemption or otherwise; (b) default in the payment of interest on any Note when the same becomes due and payable, and such default continues for a period of 30 days; provided that a failure to make any of the first six scheduled interest payments on the Notes in a timely manner will constitute an Event of Default with no grace or cure period; (c) default in the performance or breach of Section 5.01 or the failure to make or consummate an Offer to Purchase in accordance with Section 4.11 or Section 4.13; (d) the Company defaults in the performance of or breaches any other covenant or agreement of the Company in this Indenture or under the Notes (other than a default specified in clause (a), (b) or (c) above) and such default or breach continues for a period of 30 consecutive days after written notice by the Trustee or the Holders of 25% or more in aggregate principal amount at maturity of the Notes; (e) there occurs with respect to (A) any issue or issues of Indebtedness of the Company, any Guarantor or any Significant Subsidiary having an outstanding principal amount of $10 million or more in the aggregate for all such issues of all such Persons, whether such Indebtedness now exists or shall hereafter be created or (B) the TT&C Financing or any refinancing thereof which is secured by substantially the same collateral, (I) an event of default that has caused the holder thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity and such Indebtedness has not been discharged in full or such acceleration has not been rescinded or annulled within 30 days of such acceleration and/or (II) the failure to make a principal payment at the final (but not any interim) fixed maturity and such defaulted payment shall not have been made, waived or extended within 30 days of such payment default; (f) any final judgment or order (not covered by insurance) for the payment of money in excess of $10 million in the aggregate for all such final judgments or orders against all such Persons (treating any deductibles, self-insurance or retention as not so covered) shall be rendered against the Company, any Guarantor or any Significant Subsidiary and shall not be paid or discharged, and there shall be any period of 30 consecutive days following entry of the final judgment or order that causes the aggregate amount for all such final judgments or orders outstanding and not paid or discharged against all such Persons to exceed $10 million during which a stay of enforcement of such final judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; (g) a court having jurisdiction in the premises enters a decree or order for (A) relief in respect of the Company, any Guarantor or any Significant Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (B) appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company, any Guarantor or any Significant Subsidiary or for all or substantially all of the property and assets of the Company, any Guarantor or any Significant Subsidiary or (C) the winding up or liquidation of the affairs of the Company or any Significant Subsidiary and, in each case, such decree or order shall remain unstayed and in effect for a period of 30 consecutive days; (h) the Company, any Guarantor or any Significant Subsidiary (A) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (B) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company, any Guarantor or any Significant Subsidiary or for all or substantially all of the property and assets of the Company, any Guarantor or any Significant Subsidiary or (C) effects any general assignment for the benefit of creditors; (i) the Note Guarantee shall cease to be, or shall be asserted in writing by the Company or any Guarantor not to be, in full force and effect or enforceable in accordance with their respective terms; or (j) the occurrence of an "Event of Default" described in paragraph (i), (j), (k), (l), (m) or (n) of Section 18.1 of the Debenture Purchase Agreement. SECTION 6.02. Acceleration . If an Event of Default (other than an Event of Default specified in clause (g) or (h) above that occurs with respect to the Company) occurs and is continuing under the Indenture, the Trustee or the Holders of at least 25% in aggregate principal amount at maturity of the Notes, then outstanding, by written notice to the Company (and to the Trustee if such notice is given by the Holders), may, and the Trustee at the request of such Holders shall, declare the principal amount of, premium, if any, and accrued interest on the Notes to be immediately due and payable. Upon a declaration of acceleration, such principal amount of, premium, if any, and accrued interest shall be immediately due and payable. In the event of a declaration of acceleration because an Event of Default set forth in clause (e) above has occurred and is continuing, such declaration of acceleration shall be automatically rescinded and annulled if the event of default triggering such Event of Default pursuant to clause (e) shall be remedied or cured by the Guarantor, the Company or the relevant Significant Subsidiary or waived by the holders of the relevant Indebtedness within 60 days after the declaration of acceleration with respect thereto. If an Event of Default specified in clause (g) or (h) above occurs with respect to the Guarantor or the Company, the principal amount of, premium, if any, and accrued interest on the Notes then outstanding 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. SECTION 6.03. Other Remedies . If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of, premium, if any, interest on the Notes or to enforce the performance of any provision of the Notes, the Pledge Agreement or this Indenture. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. SECTION 6.04. Waiver of Past Defaults . Subject to Section 9.02, at any time after a declaration of acceleration, but before a judgment or decree for the payment of the money due has been obtained by the Trustee, the Holders of at least a majority in principal amount of the outstanding Notes at Maturity, by notice to the Trustee, may waive all past Defaults and Events of Default and rescind and annul a declaration of acceleration (except a Default in the payment of principal of, premium, if any, interest on any Note as specified in clause (a) or (b) of Section 6.01 (but not as a result of such acceleration) or in respect of a covenant or provision of this Indenture which cannot be modified or amended without the consent of the holder of each outstanding Note affected) if all existing Events of Default, other than the nonpayment of principal of, premium, if any, interest on the Notes that have become due solely by such declaration of acceleration, have been cured or waived and the rescission would not conflict with any judgment or decree of a court of competent jurisdiction. 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 Event of Default or impair any right consequent thereto. SECTION 6.05. Control by Majority . The Holders of at least a majority in aggregate principal amount at maturity of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture, that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of Notes not joining in the giving of such direction and may take any other action it deems proper that is not inconsistent with any such direction received from Holders of Notes. SECTION 6.06. Limitation on Suits . A Holder may not pursue any remedy with respect to the Indenture or the Notes unless: (i) the Holder gives the Trustee written notice of a continuing Event of Default; (ii) the Holders of at least 25% in aggregate principal amount at maturity of outstanding Notes make a written request to the Trustee to pursue the remedy; (iii) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee against any costs, liability or expense; (iv) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and (v) during such 60-day period, the Holders of a majority in aggregate principal amount at maturity of the outstanding Notes do not give the Trustee a direction that is inconsistent with the request. SECTION 6.07. Rights of Holders to Receive Payment . Subject to Sections 6.04 and 9.02, notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal of, premium, if any, or interest on, such Note or to bring suit for the enforcement of any such payment or after the due date expressed in the Notes shall not be impaired or affected without the consent of such Holder provided, however, that no recourse for the payment of the principal of, premium, if any, or interest on any of the Notes or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indentures, the Pledge Agreement or in any of the Notes or because of the creation of any Indebtedness represented thereby, shall be had against any incorporator, stockholder, officer, director, employee or controlling person of the Company or of any successor Person thereof. Each Holder, by accepting the Notes, waives and releases all such liability. SECTION 6.08. Collection of Indebtedness and Suits for Enforcement by Trustee . The Company covenants that if (a) default is made in the payment of any installment of interest on any Note when such interest becomes due and payable and such default continues for a period of 30 days, or (b) default is made in the payment of the principal of (or premium, if any, on) any Note at the Maturity thereof, the Company will, upon demand of the Trustee, pay to the Trustee for the benefit of the Holders of such Notes, the whole amount then due and payable on such Notes for principal (and premium, if any) and interest, and interest on any overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installment of interest, at the rate borne by the Notes, and, in addition thereto, 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. If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Notes, wherever situated. If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. SECTION 6.09. Trustee May File Proofs of Claim . In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Notes or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal, premium, if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, (i) to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Notes and to file such 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 of the Holders allowed in such judicial proceeding, and (ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay the Trustee any amount due 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. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. SECTION 6.10. Priorities . If the Trustee collects any money pursuant to this Article Six, it shall pay out the money in the following order: First: to the Trustee for all amounts due under Section 7.07; Second: to Holders for amounts then due and unpaid for principal of, premium, if any, and interest, if any, on the Notes in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Notes for principal, premium, if any, and interest, if any, respectively; and Third: the balance, if any, to the Person or Persons entitled thereto. The Trustee, upon prior written notice to the Company, may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10. [SECTION 6.11. Undertaking for Costs . In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of the suit, and the court may assess reasonable costs, including reasonable attorneys' fees, against any party litigant in the suit having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 of this Indenture, or a suit by Holders of more than 10% in principal amount of the outstanding Notes.] [SECTION 6.12. Restoration of Rights and Remedies . If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then, and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Company, the Trustee and the Holders shall continue as though no such proceeding had been instituted.] SECTION 6.13. Rights and Remedies Cumulative . Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.08, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. SECTION 6.14. Delay or Omission Not Waiver . No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article Six or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. ARTICLE SEVEN TRUSTEE SECTION 7.01. General . The duties and responsibilities of the Trustee shall be as provided by the TIA and as set forth herein. Whether or not herein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article Seven. SECTION 7.02. Certain Rights of Trustee . Subject to TIA Sections 315(a) through (d): (a) except during the continuance of an Event of Default, the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee and in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth and correctness of the statements and certificates or opinions furnished to it and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture; (b) in case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs; (c) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; (d) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers Certificate; (e) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (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 pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; (g) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; (8) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; and (9) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture. The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. SECTION 7.03. Individual Rights of Trustee . The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not the Trustee. Any Agent may do the same with like rights. However, the Trustee is subject to TIA Sections 310(b) and 311. SECTION 7.04. Trustee's Disclaimer . The Trustee (i) makes no representation as to the validity or adequacy of this Indenture, the Pledge Agreement or the Notes, (ii) shall not be accountable for the Company's use or application of the proceeds from the Notes and (iii) shall not be responsible for any statement contained herein, in the Pledge Agreement or in the Notes other than its certificate of authentication. The Trustee shall not be charged with knowledge of any Default or Event of Default unless (i) a Responsible Officer of the Trustee assigned to its Corporate Trustee Administration Department (or successor department or group) shall have actual knowledge thereof or (ii) the Trustee shall have received written notice thereof at its Corporate Trust office from the Company or any Holder. No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. SECTION 7.05. Notice of Default . If any Default or any Event of Default occurs and is continuing and if such Default or Event of Default is known to a trust officer of the Trustee, the Trustee shall mail to each Holder in the manner and to the extent provided in TIA Section 313(c) notice of such Default or Event of Default within 90 days after it occurs, unless such Default or Event of Default has been cured; provided, however, that, except in the case of a default in the payment of the principal of, premium, if any, or interest on any Note, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders. SECTION 7.06. Reports by Trustee to Holders . To the extent required by TIA Section 313(a), within 60 days after May 15 of each year commencing with 1997 and for as long as there are Notes outstanding hereunder, the Trustee shall mail to each Holder the Trustee's brief report dated as of such date that complies with TIA Section 313(a). The Trustee also shall comply with TIA Section 313(b) and TIA Section 313(c) and (d). A copy of such report at the time of its mailing to Holders shall be filed with the Commission, if required, and each stock exchange, if any, on which the Notes are listed. The Company shall promptly notify the Trustee if the Notes become listed on any stock exchange, and the Trustee shall comply with TIA Section 313(d). SECTION 7.07. Compensation and Indemnity . The Company shall pay to the Trustee from time to time such reasonable compensation as shall be agreed upon in writing for its services. The reasonable compensation of the Trustee shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses and advances incurred or made by the Trustee. Such expenses shall include the reasonable compensation and expenses of the Trustee's agents and counsel. The Company shall indemnify the Trustee for, and hold it harmless against, any loss or liability or expense incurred by it without negligence or bad faith on its part in connection with the acceptance or administration of this Indenture and the Pledge Agreement and its duties under this Indenture, the Pledge Agreement and the Notes, including, without limitation, the costs and expenses of defending itself against any claim or liability and of complying with any process served upon it or any of its officers in connection with the exercise or performance of any of its powers or duties under this Indenture, the Pledge Agreement and the Notes. To secure the Company's payment obligations in this Section 7.07, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee, in its capacity as Trustee, except money or property held in trust to pay principal of, premium, if any, and interest on particular Notes. Without prejudice to any other rights available to the Trustee under applicable law, if the Trustee incurs expenses or renders services after the occurrence of an Event of Default specified in clause (g) or (h) of Section 6.01, the expenses and the compensation for the services will be intended to constitute expenses of administration under Title 11 of the United States Bankruptcy Code or any applicable federal or state law for the relief of debtors. 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 at any time by so notifying the Company in writing at least 30 days prior to the date of the proposed resignation. The Holders of a majority in principal amount of the outstanding Notes may remove the Trustee by so notifying the Trustee in writing and may appoint a successor Trustee with the consent of the Company. The Company may at any time remove the Trustee, by Company Order given at least 30 days prior to the date of the proposed removal; provided that at such date no Event of Default shall have occurred and be continuing. Except as provided in the second sentence of the preceding paragraph, 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 outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company. If the successor Trustee does not deliver its written acceptance required by the next succeeding paragraph of this Section 7.08 within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in principal amount of the outstanding Notes may petition any court of competent jurisdiction for 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. Immediately after the delivery of such written acceptance, subject to the lien provided in Section 7.07, (i) the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee, (ii) the resignation or removal of the retiring Trustee shall become effective and (iii) the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture and the Pledge Agreement. A successor Trustee shall mail notice of its succession to each Holder. Subject to Section 6.11, if the Trustee is no longer qualified or eligible under Section 7.10, any Holder who satisfies the requirements of TIA Section 310(b) may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. The Company shall give notice of any resignation and any removal of the Trustee and each appointment of a successor Trustee to all Holders. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company's obligations under Section 7.07 shall continue indefinitely for the benefit of the retiring Trustee. SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or national banking association, the resulting, surviving or transferee corporation or national banking association without any further act shall be the successor Trustee with the same effect as if the successor Trustee had been named as the Trustee herein. SECTION 7.10. Eligibility . This Indenture shall always have a Trustee that satisfies the requirements of TIA Section 310(a)(1) and (5). The Trustee shall have a combined capital and surplus of at least $100,000,000 as set forth in its most recent published annual report of condition. The Trustee shall be subject to TIA Section 310(b), subject to the penultimate paragraph thereof. SECTION 7.11. Money Held in Trust . 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, and except for money held in trust under Article Eight of this Indenture and money held in trust pursuant to the Pledge Agreement. SECTION 7.12. Withholding Taxes . The Trustee, as agent for the Company, shall exclude and withhold from each payment of principal and interest and other amounts due hereunder or under the Notes any and all U.S. withholding taxes applicable thereto as required by law. The Trustee agrees to act as such withholding agent and, in connection therewith, whenever any present or future taxes or similar charges are required to be withheld with respect to any amounts payable in respect of the Notes, to withhold such amounts and timely pay the same to the appropriate authority in the name of and on behalf of the Holders of the Notes, that it will file any necessary withholding tax returns or statements when due, and that, as promptly as possible after the payment thereof, it will deliver to each Holder of a Note appropriate documentation showing the payment thereof, together with such additional documentary evidence as such Holders may reasonably request from time to time. ARTICLE EIGHT DISCHARGE OF INDENTURE SECTION 8.01. Termination of Company's Obligations . Except as otherwise provided in this Section 8.01, each of the Company may terminate its obligations under the Notes and this Indenture if: (a) all Notes previously authenticated and delivered (other than destroyed, lost or stolen Notes that have been replaced or Notes for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Company, as provided in Section 8.05) have been delivered to the Trustee for cancellation and the Company has paid all sums payable by it hereunder; or (b) (i) all such Notes mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (ii) the Company irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Notes for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay principal, premium, if any, and interest on such Notes to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Notes shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound [, (v) if at such time the Notes are listed on a national securities exchange, the Notes will not be delisted as a result of such deposit, defeasance and discharge,] [and] [(v)] [(vi)] the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (a), the Company's obligations under Section 7.07 shall survive. With respect to the foregoing clause (b), the Company's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until the Notes have matured or have been redeemed. Thereafter, only the Company's obligations in Sections 7.07, 8.05 and 8.06 shall survive. After any such irrevocable deposit, the Trustee upon request shall acknowledge in writing the discharge of the Company's obligations under the Notes and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above. SECTION 8.02. Defeasance and Discharge of Indenture . The Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Notes on the 123rd day after the date of the deposit referred to in clause (a) of this Section 8.02 if: (a) with reference to this Section 8.02, the Company has irrevocably deposited or caused to be irrevocably deposited with the Trustee and has conveyed all right, title and interest for the benefit of the Holders, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee as trust funds in trust, specifically pledged to the Trustee for the benefit of the Holders as security for payment of the principal of, premium, if any, and interest, if any, on the Notes, and dedicated solely to, the benefit of the Holders, in and to (i) money in an amount, (ii) U.S. Government Obligations that, through the payment of interest, premium, if any, and principal in respect thereof in accordance with their terms, will provide, not later than one day before the due date of any payment referred to in this clause (a), money in an amount or (iii) a combination thereof in an amount 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, without consideration of the reinvestment of such interest and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, the principal of, premium, if any, and accrued interest on the outstanding Notes at the Stated Maturity of such principal or interest or upon earlier redemption; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such U.S. Government Obligations to the payment of such principal, premium, if any, and interest with respect to the Notes and to give any related notice of redemption; (b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; (c) immediately after giving effect to such deposit on a pro forma basis, no Default or Event of Default, or event that after the giving of notice or lapse of time or both could become a Default or Event of Default, shall have occurred and be continuing on the date of such deposit or during the period ending on the 123rd day after the date of such deposit; (d) the Company shall have delivered to the Trustee (i) either (A) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders will not recognize additional income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such option had not been exercised or (B) an Opinion of Counsel to the same effect as the ruling described in clause (A) above accompanied by a ruling to that effect published by the Internal Revenue Service, unless there has been a change in the applicable federal income tax law since the date of this Indenture such that a ruling from the Internal Revenue Service is no longer required and (ii) an Opinion of Counsel to the effect that (A) the creation of the defeasance trust does not violate the Investment Company Act of 1940 and (B) after the passage of 123 days following the deposit (except, with respect to any trust funds for the account of any Holder who may be deemed to be "connected" with the Company for purposes of the Insolvency Act 1986 after two years following the deposit), the trust funds will not be subject to the effect of Section 547 of the United States Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law and either (I) the trust funds will no longer remain the property of the Company (and therefore will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally) or (II) if a court were to rule under any such law in any case or proceeding that the trust funds remained property of the Company (a) assuming such trust funds remained in the possession of the Trustee prior to such court ruling to the extent not paid to the Holders, the Trustee will hold, for the benefit of the Holders, a valid and perfected security interest in such trust funds that is not avoidable in bankruptcy or otherwise and (b) no property, rights in property or other interests granted to the Trustee or the Holders in exchange for, or with respect to, such trust funds will be subject to any prior rights of holders of other Indebtedness of the Company or any of its Notes; (e) if at such time the Notes are listed on a national securities exchange, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Notes will not be delisted as a result of the Company's exercise of its opinion under this Section 8.02; and (f) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 have been complied with. Notwithstanding the foregoing, prior to the end of the post deposit period referred to in clause (d)(ii)(B) of this Section 8.02, none of the Company's obligations under this Indenture shall be discharged. Subsequent to the end of such period with respect to this Section 8.02, the Company's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until the Notes mature or are redeemed. Thereafter, only the Company's obligations in Sections 7.07, 8.05 and 8.06 shall survive. If and when a ruling from the Internal Revenue Service or an Opinion of Counsel referred to in clause (d)(i) of this Section 8.02 may be provided specifically without regard to, and not in reliance upon, the continuance of the Company's obligations under the first sentence of Section 4.01, then the Company's obligations under such sentence shall cease upon delivery to the Trustee of such ruling or Opinion of Counsel and compliance with the other conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02. After any such irrevocable deposit, the Trustee upon request shall acknowledge in writing the discharge of the Company's obligations under the Notes, any Subsidiary Guarantee, if any, and this Indenture except for those surviving obligations in the immediately preceding paragraph. SECTION 8.03. Defeasance of Certain Obligations . The Company may omit to comply with any term, provision or condition set forth in clauses (iii) and (iv) of Section 5.01 and Sections 4.03 through 4.17 (except for any covenant otherwise required by the TIA), and clauses (c) and (d) of Section 6.01 with respect to clauses (iii) and (iv) of Section 5.01, clause (e) of Section 6.01 with respect to Sections 4.03 through 4.17, except as aforesaid, and clause (f) of Section 6.01 shall be deemed not to be Events of Default, in each case with respect to the outstanding Notes if: (a) with reference to this Section 8.03, the Company has irrevocably deposited or caused to be irrevocably deposited with the Trustee and conveyed all right, title and interest to the Trustee for the benefit of the Holders, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee as trust funds in trust, specifically pledged to the Trustee for the benefit of the Holders as security for payment of the principal of, premium, if any, and interest, if any, on the Notes, and dedicated solely to, the benefit of the Holders, in and to (i) money in an amount, (ii) U.S. Government Obligations that, through the payment of interest and principal in respect thereof in accordance with their terms, will provide, not later than one day before the due date of any payment referred to in this clause (a), money in an amount or (iii) a combination thereof in an amount 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, without consideration of the reinvestment of such interest and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, the principal of, premium, if any, and interest on the outstanding Notes on the Stated Maturity or upon earlier redemption of such principal or interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such U.S. Government Obligations to the payment of such principal, premium, if any, and interest with respect to the Notes and to give any related notice of redemption; (b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; (c) immediately after giving effect to such deposit or a pro forma basis, no Default or Event of Default, or event that after the giving of notice or lapse of time or both would become a Default or Event of Default, shall have occurred and be continuing on the date of such deposit or during the period ending on the 123rd day after the day of such deposit; (d) the Company has delivered to the Trustee an Opinion of Counsel to the effect that (i) the creation of the defeasance trust does not violate the Investment Company Act of 1940, (ii) the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance of the obligations referred to in the first paragraph of this Section 8.03 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred and (iii) after the passage of 123 days following the deposit (except with respect to any trust funds for the account of any Holder who may be deemed to be "connected" with the Company for purposes of the Insolvency Act 1986 after two years following the deposit), the trust funds will not be subject to the effect of Section 547 of the United States Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law, and either (A) the trust funds will no longer remain the property of the Company (and therefore will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditor's rights generally) or (B) if a court were to rule under any such law in any case or proceeding that the trust funds remained property of the Company (1) assuming such trust funds remained in the possession of the Trustee prior to such court ruling to the extent not paid to the Holders, the Trustee will hold, for the benefit of the Holders, a valid and perfected security interest in such trust funds that is not avoidable in bankruptcy or otherwise and (2) no property, rights in property or other interests granted to the Trustee or the Holders in exchange for, or with respect to, such trust funds will be subject to any prior rights or holders of other Indebtedness of the Company or any of its Notes; (e) if at such time the Notes are listed on a national securities exchange, the Company has delivered to the Trustee an Opinion of Counsel to the effect that the Notes will not be delisted as a result of the Company's exercise of its option under Section 8.03; and (f) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.03 have been complied with. SECTION 8.04. Application of Trust Money . Subject to Section 8.06, the Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the case may be, and shall apply the deposited money and the money from U.S. Government Obligations in accordance with the Notes and this Indenture to the payment of principal of, premium, if any, and interest on the Notes; but such money need not be segregated from other funds except to the extent required by law. SECTION 8.05. Repayment to Company . Subject to Sections 7.07, 8.01, 8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the Company upon request set forth in an Officers' Certificate any excess money held by them at any time and thereupon shall be relieved from all liability with respect to such money. The Trustee and the Paying Agent shall pay to the Company any money held by them for the payment of principal, premium, if any, or interest that remains unclaimed for two years; provided that the Trustee or such Paying Agent before being required to make any payment may cause to be published at the expense of the Company once in a newspaper of general circulation in the City of New York or mail to each Holder entitled to such money notice that such money remains unclaimed and that after a date specified therein (which shall be at least 30 days from the date of such publication or mailing) any unclaimed balance of such money then remaining will be repaid to the Company. After payment to the Company, Holders entitled to such money must look to the Company for payment as general creditors unless an applicable law designates another Person, and all liability of the Trustee and such Paying Agent with respect to such money shall cease. SECTION 8.06. Reinstatement . If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 8.01, 8.02 or 8.03, as the case may be, by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company's obligations under this Indenture, the Guarantee, and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.01, 8.02 or 8.03, as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with Section 8.01, 8.02 or 8.03, as the case may be; provided that, if the Company has made any payment of principal of, premium, if any, or interest on any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent. ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS SECTION 9.01. Without Consent of Holders . The Company, when authorized by Board Resolution, and the Trustee may amend or supplement this Indenture, the Notes and the Pledge Agreement without notice to or the consent of any Holder: (a) to cure any ambiguity, defect or inconsistency in this Indenture; provided that such amendments or supplements shall not adversely affect the interests of the Holders in any material respect; (b) to comply with Article Five and to provide for amendments to the Pledge Agreement pursuant to Section 10.01 and to add Pledged Notes to the Pledge Account; (c) to add to the covenants of the Company for the benefit of the Holders or to surrender any right or power herein conferred upon the Company; or (d) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Notes; (e) to add any additional Events of Default; or (f) to add a Guarantor. SECTION 9.02. With Consent of Holders . Subject to Sections 6.04 and 6.07 and without prior notice to the Holders, the Company, when authorized by its Board of Directors (as evidenced by a Board Resolution), and the Trustee may amend this Indenture [, the Notes and the Pledge Agreement] with the consent of the Holders of not less than a majority in aggregate principal amount at maturity of the Notes then outstanding. Notwithstanding the provisions of this Section 9.02, without the consent of each Holder affected, an amendment or waiver, including a waiver pursuant to Section 6.04, may not: (i) change the Stated Maturity of the principal of, or any installment of interest on, any Note; (ii) reduce the principal amount of, or premium, if any, or interest on, any Note; (iii) change the place or currency of payment of principal of, or premium, if any, or interest on, any Note; (iv) impair the right to institute suit for the enforcement of any payment on or after the Stated Maturity (or, in the case of a redemption, on or after the Redemption Date) of any Note; (v) reduce the above-stated percentage of outstanding Notes the consent of whose Holders is necessary to modify or amend the Indenture; (vi) waive a default in the payment of principal of, premium, if any, or interest on the Notes; (vii) reduce the percentage or aggregate principal amount at maturity of outstanding Notes the consent of whose Holders is necessary for waiver of compliance with certain provisions of the Indenture or for waiver of certain defaults; or (viii) release the Guarantors from the Note Guarantee. It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof. After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall mail to the Holders affected thereby a notice briefly describing such amendment, supplement or waiver. The Company will mail supplemental indentures to Holders upon request. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver. SECTION 9.03. Revocation and Effect of Consent . Until an amendment or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the Note of the consenting Holder, even if notation of the consent is not made on any Note. However, any such Holder or subsequent Holder may revoke the consent as to its Note or portion of its Note. Such revocation shall be effective only if the Trustee receives the notice of revocation before the date any such amendment, supplement or waiver becomes effective. An amendment, supplement or waiver shall become effective on receipt by the Trustee of written consents from the Holders of the requisite percentage in principal amount of the outstanding Notes. The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders of Certificated Notes entitled to consent to any amendment, supplement or waiver. If a record date is fixed, then, notwithstanding the last two sentences of the immediately preceding paragraph, those persons who were Holders of Certificated Notes at such record date (or their duly designated proxies) and only those persons shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously given, whether or not such persons continue to be Holders of such Certificated Notes after such record date. No such consent shall be valid or effective for more than 90 days after such record date. After an amendment, supplement or waiver becomes effective, it shall bind every Holder unless it is of the type described in any of clauses (a) through (h) of Section 9.02. In case of an amendment or waiver of the type described in clauses (a) through (h) of Section 9.02, the amendment or waiver shall bind each Holder who has consented to it and every subsequent Holder of a Note that evidences the same indebtedness as the Note of such consenting Holder. SECTION 9.04. Notation on or Exchange of Notes . If an amendment, supplement or waiver changes the terms of a Note, the Trustee may require the Holder to deliver such Note to the Trustee. The Trustee may place an appropriate notation on the Note about the changed terms and return it to the Holder and the Trustee may place an appropriate notation on any Note thereafter authenticated. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article Nine is authorized or permitted by this Indenture. The Trustee shall execute any such amendment, supplement or waiver upon satisfaction of the conditions precedent thereto contained herein, unless such amendment, supplement or waiver adversely affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. SECTION 9.06. Conformity with Trust Indenture Act . Every supplemental indenture executed pursuant to this Article Nine shall conform to the requirements of the TIA as then in effect. ARTICLE TEN SECURITY SECTION 10.01. Security . (a) The Company shall (i) enter into the Pledge Agreement (in the form attached hereto as Exhibit G) and comply with the terms and provisions thereof and (ii) use a portion of the net proceeds of the placement of Notes on the Closing Date to purchase the Pledged Notes to be pledged to the Trustee for the benefit of the Holders of the Notes in such amount as will be sufficient upon receipt of scheduled interest and principal payments of the Pledged Notes, in the opinion of a nationally recognized firm of independent public accountants selected by the Company, to provide for payment in full of the first six scheduled interest payments due on the Notes. The Pledged Notes shall be pledged by the Company to the Trustee for the benefit of the Holders of the Notes and shall be held by the Trustee in the Pledge Account pending disbursement pursuant to the Pledge Agreement. (b) Each Holder, by its acceptance of a Note, consents and agrees to the terms of the Pledge Agreement (including, without limitation, the provisions providing for foreclosure and release of the Pledged Notes) as the same may be in effect or may be amended from time to time in accordance with its terms, and authorizes and directs the Trustee to enter into the Pledge Agreement and to perform its respective obligations and exercise its respective rights thereunder in accordance therewith. The Company will do or cause to be done all such acts and things as may be necessary or proper, or as may be required by the provisions of the Pledge Agreement, to assure and confirm to the Trustee the security interest in the Pledged Notes contemplated hereby, by the Pledge Agreement or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Notes secured hereby, according to the intent and purposes herein expressed. The Company shall take, or shall cause to be taken, upon request of the Trustee, any and all actions reasonably required to cause the Pledge Agreement to create and maintain, as security for the obligations of the Company under this Indenture and the Notes, valid and enforceable first priority liens in and on all the Pledge Notes, in favor of the Trustee, superior to and prior to the rights of all third Persons and subject to no other Liens other than as provided herein. (c) The release of any Pledged Notes pursuant to the Pledge Agreement will not be deemed to impair the security under this Indenture in contravention of the provisions hereof if and to the extent the Pledged Notes are released pursuant to this Indenture and the Pledge Agreement. To the extent applicable, the Company shall cause TIA Section 314(d) relating to the release of property or securities from the Lien and security interest of the Pledge Agreement and relating to the substitution therefor of any property or securities to be subjected to the Lien and security interest of the Pledge Agreement to be complied with. Any certificate or opinion required by TIA Section 314(d) may be made by an officer of the Company, except in cases where TIA Section 314(d) requires that such certificate or opinion be made by an independent Person, which Person shall be an independent engineer, appraiser or other expert selected or approved by the Trustee in the exercise of reasonable care. (d) The Company shall cause TIA Section 314(b), relating to opinions of counsel regarding the Lien under the Pledge Agreement, to be complied with. The Trustee may, to the extent permitted by Sections 7.01 and 7.02 hereof, accept as conclusive evidence of compliance with the foregoing provisions the appropriate statements contained in such instruments. (e) The Trustee may, in its sole discretion and without the consent of the Holders, on behalf of the Holders, take all actions it deems necessary or appropriate in order to (i) enforce any of the terms of the Pledge Agreement and (ii) collect and receive any and all amounts payable in respect of the obligations of the Company thereunder. The Trustee shall have power to institute and to maintain such suits and proceedings as the Trustee may deem expedient to preserve or protect its interests and the interests of the Holders in the Pledged Notes (including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of the Holders or of the Trustee). ARTICLE ELEVEN GUARANTEE OF NOTES SECTION 11.01. Guarantee . Subject to the provisions of this Article Eleven, the Guarantors hereby fully, unconditionally and irrevocably guarantee to each Holder and to the Trustee on behalf of the Holders: (i) the due and punctual payment of the principal of, premium, if any, and interest on each Note, when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and interest, if any, on the Notes, to the extent lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee, all in accordance with the terms of such Note and this Indenture [and (ii) in the case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, at Stated Maturity, by acceleration or otherwise]. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company, the benefit of discussion, protest or notice with respect to any such Note or the debt evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged as to any such Note except by payment in full of the principal thereof and interest thereon and as provided in Section 8.01 and Section 8.02 (subject to Section 8.06). The maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six for the purposes of this Article Eleven. In the event of any declaration of acceleration of such obligations as provided in Article Six, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Article Eleven. In addition, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article Six, the Trustee shall promptly make a demand for payment on the Notes under the Guarantee provided for in this Article Eleven. If the Trustee or the Holder of any Note is required by any court or otherwise to return to the Company or the Guarantor, or any custodian, receiver, liquidator, trustee, sequestrator or other similar official acting in relation to the Company or the Guarantor, any amount paid to the Trustee or such Holder in respect of a Note, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. The Guarantor further agrees, to the fullest extent that it may lawfully do so, that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition extant under any applicable bankruptcy law preventing such acceleration in respect of the obligations guaranteed hereby. The Guarantor hereby irrevocably waives any claim or other rights which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of its obligations under this Guarantee and this Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, any right to participate in any claim or remedy of the Holders against the Company or any collateral which any such Holder or the Trustee on behalf of such Holder hereafter acquires, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim or other rights. If any amount shall be paid to the Guarantor in violation of the preceding sentence and the principal of, premium, if any, and accrued interest on the Notes shall not have been paid in full, such amount shall be deemed to have been paid to the Guarantor for the benefit of, and held in trust for the benefit of, the Holders, and shall forthwith be paid to the Trustee for the benefit of the Holders to be credited and applied upon the principal of, premium, if any, and accrued interest on the Notes. The Guarantor acknowledges that it will receive direct and indirect benefits from the issuance of the Notes pursuant to this Indenture and that the waivers set forth in this Section 11.01 are knowingly made in contemplation of such benefits. The Guarantee set forth in this Section 11.01 shall not be valid or become obligatory for any purpose with respect to a Note until the certificate of authentication on such Note shall have been signed by or on behalf of the Trustee. SECTION 11.02. Obligations Unconditional . Subject to Section 11.05, nothing contained in this Article Eleven or elsewhere in this Indenture or in the Notes is intended to or shall impair, as among the Guarantor and the holders of the Notes, the obligation of the Guarantor, which is absolute and unconditional, upon failure by the Company, to pay to the holders of the Notes the principal of, premium, if any, and interest on the Notes as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the holders of the Notes and creditors of the Guarantor, nor shall anything herein or therein prevent the holder of any Notes or the Trustee on their behalf from exercising all remedies otherwise permitted by applicable law upon default under this Indenture. Without limiting the foregoing, nothing contained in this Article Eleven will restrict the right of the Trustee or the holders of the Notes to take any action to declare the Guarantee to be due and payable prior to the Stated Maturity of the Notes pursuant to Section 6.02 or to pursue any rights or remedies hereunder. SECTION 11.03. Notice to Trustee . The Guarantor shall give prompt written notice to the Trustee of any fact known to the Guarantor which would prohibit the making of any payment to or by the Trustee in respect of the Guarantee pursuant to the provisions of this Article Eleven. SECTION 11.04. This Article Not to Prevent Events of Default . The failure to make a payment on account of principal of, premium, if any, or interest on the Notes by reason of any provision of this Article will not be construed as preventing the occurrence of an Event of Default. SECTION 11.05. Net Worth Limitation . Notwithstanding any other provision of this Indenture or the Notes, the Guarantee shall not be enforceable against the Guarantor in an amount in excess of the net worth of the Guarantor at the time that determination of such net worth is, under applicable law, relevant to the enforceability of the Guarantee. Such net worth shall include any claim of the Guarantor against the Company for reimbursement and any claim against any grantor of a Guarantee for contribution. ARTICLE TWELVE MISCELLANEOUS SECTION 12.01. Trust Indenture Act of 1939 . This Indenture shall be subject to the provisions of the TIA that are required to be a part of this Indenture and shall, to the extent applicable, be governed by such provisions. SECTION 12.02. Notices . Any notice or communication shall be sufficiently given if in writing and delivered in person or mailed by first class mail or telecopier communication, addressed as follows, and received by the addressee: if to the Company: Orion Newco Services, Inc. 2440 Research Boulevard Suite 40 Rockville, Maryland 20850 Telecopier No: (301) 258-8101 Attention: [________] with a copy to: Hogan & Hartson, L.L.P. Columbia Square 555 Thirteenth Street, N.W. Washington, D.C. 20004 Telecopier No.: (202) 637-5910 Attention: [________] if to the Trustee: Bankers Trust Company 4 Albany Street Mailstop 5041 New York, N.Y. 10006 Telecopier No.: (212) 250-6392 Attention: Corporate Trustee Administration Department with a copy to: Leboeuf, Lamb, Greene & MacRae, L.L.P. 125 West 55th Street New York, N.Y. 10019 Telecopier No.: (212) 424-8500 Attention: Joan Monahan The Company, the Trustee or the Depositary by notice to the other may designate additional or different addresses for subsequent notices or communications. Any notice or communication mailed to a Holder of a Certificated Note shall be mailed to him at his address as it appears on the Register by first class mail and shall be sufficiently given to him if so mailed within the time prescribed. Copies of any such communication or notice to a Holder shall also be mailed to the Trustee and each Agent at the same time. Failure to mail a notice or communication to a Holder as provided herein or any defect in it shall not affect its sufficiency with respect to other Holders. Except for a notice to the Trustee, which is deemed given only when received, and except as otherwise provided in this Indenture, if a notice or communication is mailed in the manner provided in this Section 12.02, it is duly given, whether or not the addressee receives it. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. SECTION 12.03. 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 stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and (b) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with. SECTION 12.04. Statements Required in Certificate or Opinion . Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (a) a statement that each person signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statement or opinion contained in such certificate or opinion is based; (c) a statement that, in the opinion of each 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 complied with; and (d) a statement as to whether or not, in the opinion of each such person, such condition or covenant has been complied with; provided, however, that, with respect to matters of fact, an Opinion of Counsel may rely on an Officers' Certificate or certificates of public officials. SECTION 12.05. Acts of Holders . (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 10.05. (b) The ownership of Notes shall be proved by the Register. (c) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future Holder of the same Note or the Holder of every Note issued upon the transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done, suffered or omitted to be done by the Trustee, any Paying Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Note. (d) If the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver of other act, the Company may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of such Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other act, but the Company shall have no obligation to do so. Notwithstanding Trust Indenture Act Section 316(c), any such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not more than 30 days prior to the first solicitation of Holders generally in connection therewith and no later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for purposes of determining whether Holders of the requisite proportion of Notes then outstanding have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other act, and for this purpose the Notes then outstanding shall be computed as of such record date; provided that no such request, demand, authorization, direction, notice, consent, waiver or other act by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date. SECTION 12.06. Rules by Trustee, Paying Agent or Registrar. The Trustee may make reasonable rules for action by or at a meeting of Holders. The Paying Agent or Registrar may make reasonable rules for its functions. SECTION 12.07. Agent for Service; Submission to Jurisdiction; Waiver of Immunities . By the execution and delivery of this Indenture, each of the Company and the Guarantor (i) acknowledges that it has designated and appointed [______], as its authorized agent upon which process may be served in any suit, action or proceeding arising out of or relating to the Notes or this Indenture that may be instituted in any federal or state court in the State of New York, Borough of Manhattan, or brought under federal or state securities laws or brought by the Trustee (whether in its individual capacity or in its capacity as Trustee hereunder), and acknowledges that [______] has accepted such designation, (ii) submits to the non-exclusive jurisdiction of any such court in any such suit, action or proceeding, and (iii) agrees that service of process upon [______] and written notice of said service to the Company (mailed or delivered to its General Counsel at its principal office as specified in Section 12.02) shall be deemed in every respect effective service of process upon it in any such suit or proceeding. The Company further agrees to take any and all action, including the execution and filing of any and all such documents and instruments as may be necessary to continue such designation and appointment of [______] in full force and effect so long as this Indenture shall be in full force and effect or any of the Notes shall be outstanding. To the extent that the Company has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Company hereby irrevocably waives such immunity in respect of its obligations under this Indenture and the Notes, to the extent permitted by law. SECTION 12.08. Payment Date Other Than a Business Day . If an Interest Payment Date, Redemption Date, Payment Date or Stated Maturity of any Note shall not be a Business Day, then payment of principal of, premium, if any, or interest on such Note, as the case may be, need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date, Payment Date or Redemption Date, or at the Stated Maturity of such Note, provided that no interest shall accrue for the period from and after such Interest Payment Date, Payment Date, Redemption Date or Stated Maturity, as the case may be. SECTION 12.09. Governing Law . This Indenture and the Notes shall be governed by the laws of the State of [New York] excluding (to the greatest extent permissible by law) any rule of law that would cause the application of the laws of any jurisdiction other than the State of [New York]. SECTION 12.10. No Adverse Interpretation of Other Agreements . This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or any Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture. SECTION 12.11. No Recourse Against Others . No recourse for the payment of the principal of, premium, if any, or interest on any of the Notes, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company contained in this Indenture, the Pledge Agreement or in any of the Notes, or because of the creation of any Indebtedness represented thereby, shall be had against any incorporator, stockholder, officer, director, employee or controlling person, as such, of the Company or the Guarantor or of any successor Person thereof, either directly or through the Company or any successor Person, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture, the Pledge Agreement and the issue of the Notes. SECTION 12.12. Successors . All agreements of the Company in this Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors. SECTION 12.13. Duplicate 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 12.14. Separability . In case any provision in this Indenture or in the Notes 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 12.15. 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 hereof and shall in no way modify or restrict any of the terms and provisions hereof. SIGNATURES IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the date first written above. ORION NEWCO SERVICES, INC. BANKERS TRUST COMPANY By:_____________________________ By:____________________________ Name: __________________________ Name:__________________________ Title:__________________________ Title:_________________________ ORION NETWORK SYSTEMS, INC. ORION SATELLITE CORPORATION By:_____________________________ By:____________________________ Name: __________________________ Name:__________________________ Title:__________________________ Title:_________________________ ORIONNET, INC. ORION ATLANTIC EUROPE, INC. By:_____________________________ By:____________________________ Name: __________________________ Name:__________________________ Title:__________________________ Title:_________________________ ORION ASIA PACIFIC CORPORATION ORIONNET FINANCE CORPORATION By:_____________________________ By:____________________________ Name: __________________________ Name:__________________________ Title:__________________________ Title:_________________________ ASIA PACIFIC SPACE AND INTERNATIONAL PRIVATE SATELLITE COMMUNICATIONS, LTD. PARTNERS, L.P. By:_____________________________ By:____________________________ Name: __________________________ Name:__________________________ Title:__________________________ Title:_________________________ EXHIBIT A FORM OF GLOBAL NOTE [FACE OF NOTE] THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF ONE NOTE WITH A PRINCIPAL AMOUNT AT MATURITY OF [ ] AND ONE WARRANT INITIALLY ENTITLING THE HOLDER THEREOF TO PURCHASE [ ] SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE, OF ORION NEWCO SERVICES, INC. (THE "COMMON STOCK"). PRIOR TO THE CLOSE OF BUSINESS UPON THE EARLIEST TO OCCUR OF (i) [ ], 1997, (ii) SUCH DATE AS THE UNDERWRITES MAY, IN THEIR DISCRETION DEEM APPROPRIATE OR (iii) IN THE EVENT OF AN OFFER TO PURCHASE, THE DATE THE COMPANY MAILS NOTICE THEREOF TO THE HOLDERS OF THE NOTES, THE NOTES EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE WARRANTS. THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (III) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF ORION NEWCO SERVICES, INC. ORION NEWCO SERVICES, INC. [___]% Senior Note Due 2007 CUSIP [ ________] No. __________ Issue Date: ______________________ ORION NEWCO SERVICES, INC., a Delaware corporation, with registration number [_______] (the "Company", which term includes any successor under the Indenture hereinafter referred to), for value received, promises to pay to the bearer upon surrender hereof the principal sum of _________________________________ United States Dollars (U.S.$________________) on 2007. Interest Payment Dates: [ ] and [ ], commencing [ ] 1997. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which provisions shall have the same effect as if set forth hereon. IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officer. Date: ORION NEWCO SERVICES, INC. By:____________________________ Name:__________________________ Title:_________________________ This is one of the [___]% Senior Notes due 2007 described in the within-mentioned Indenture. BANKERS TRUST COMPANY, as Trustee By: _______________________________ Authorized Officer [REVERSE SIDE OF NOTE] ORION NEWCO SERVICES, INC. [___]% Senior Note due 2007 1. Principal and Interest. Orion Newco Services, Inc. (the "Company") will pay the principal of this Note on [ ], 2007. The Company promises to pay interest on the principal amount of this Note on each Interest Payment Date, as set forth below, at the rate per annum shown above. Interest on the Notes shall accrue at the rate of [___]% per annum (the "Interest Rate") and shall be payable in U.S. dollars in cash semi-annually in arrears on [ ] and [ ] (each an "Interest Payment Date"); provided that the first Interest Payment Date shall be [ ], 1997. Interest on the Notes will accrue from the most recent date to which interest has been paid or duly provided for, or if no interest has been paid or duly provided for, from the date of original issuance hereof. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. The Company shall pay interest on overdue principal and premium, if any, and (to the extent lawful) interest on overdue installments of interest at the rate of [___]% per annum. 2. Method of Payment. The Company will pay interest and principal to the Depositary, with respect to any Global Note held by the Depositary. The Company will pay principal, premium, if any, and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. However, the Company may pay principal, premium, if any, and interest by check payable in such money. If a payment date is a date other than a Business Day at a place of payment, payment may be made at that place on the next succeeding day that is a Business Day and no interest shall accrue for the intervening period. 3. Paying Agent and Registrar. Initially, the Trustee will act as Paying Agent and Registrar. The Company may change any Paying Agent and Registrar without notice in accordance with the Indenture. The Company, any Affiliate or any Subsidiary thereof may act as the Paying Agent or Registrar. 4. Indenture; Limitations. The Company issued the Notes under an Indenture dated as of [__________], 1997 (the "Indenture"), between the Company, Orion Network Systems, Inc., Orion Satellite Corporation, International Private Satellite Partners, L.P., OrionNet, Inc., Orion Asia Pacific Corporation, Asia Pacific Space and Communications, Ltd., Orion Atlantic Europe, Inc. and OrionNet Finance Corporation, as guarantors, and the Bankers Trust Company, as trustee (the "Trustee"). Capitalized terms herein are used as defined in the Indenture unless otherwise indicated. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act. The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Note and the terms of the Indenture, the terms of the Indenture shall control. The Notes are unsecured senior indebtedness of the Company. The Indenture limits the aggregate principal amount of the Notes to $[ ]. 5. Optional Redemption. The Notes will be redeemable, at the Company's option, in whole or in part, at any time or from time to time on or after [ ], 2002 and prior to maturity, upon not less than 30 nor more than 60 days' prior notice, at the following Redemption Prices (expressed in percentages of their principal amount), plus accrued and unpaid interest, if any, to the Redemption Date if redeemed during the 12-month period commencing on October [__] of the applicable years set forth below: Year Redemption Price 2002 [_____]% 2003 [_____]% 2004 and thereafter 100.000% 6. Selection of Notes for Partial Redemption; Effect of Redemption Notice. In the case of any partial redemption, selection of the Notes for redemption will be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not listed on a national securities exchange, on a pro rata basis, by lot or by such method as the Trustee in its sole discretion shall deem to be fair and appropriate; provided that no Note of $1,000 in principal amount or less shall be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption relating to such Note shall state the portion of the principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Note. Upon the giving of any redemption notice, interest on Notes called for redemption will cease to accrue from and after the date fixed for redemption (unless the Company defaults in providing the funds for such redemption) and such Notes will then cease to be outstanding. 7. Notice of Redemption. Notice of any optional redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holders of Notes to be redeemed at such Holder's registered address as it appears in the Register. 8. Repurchase upon Change of Control. Upon the occurrence of any Change of Control, the Company will be obligated to make an offer to purchase all outstanding Notes pursuant to the Offer to Purchase described in the Indenture at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase (the "Change of Control Payment"). A notice of such Change of Control will be mailed within 30 days after any Change of Control occurs to each Holder of Notes at such Holder's registered address as it appears in the Register. Notes in original denominations larger than $1,000 may be sold to the Company in part; provided that Notes will only be issued in denominations of $1,000 principal amount at maturity or integral multiples thereof. On and after the Payment Date, interest ceases to accrue on Notes or portions of Notes surrendered for purchase by the Company, unless the Company defaults in the payment of the Change of Control Payment. 9. Denomination. This Global Note is in fully registered form without coupons and is denominated in an amount equal to $1,000 of principal amount at maturity or an integral multiple thereof and is transferable by delivery. This Note is a Global Note. 10. Persons Deemed Owners. The holder of this Note shall be treated as the owner of this Note for all purposes. 11. Unclaimed Money. If money for the payment of principal, premium, if any, and interest remains unclaimed for two years, the Trustee and the Paying Agent will pay the money back to the Company at its request. After that, Holders entitled to the money must look to the Company for payment, unless an applicable law designates another Person, and all liability of the Trustee and such Paying Agent with respect to such money shall cease. 12. Discharge Prior to Redemption or Maturity. If the Company deposits with the Trustee money or U.S. Government Obligations sufficient to pay the then outstanding principal of, premium, if any, and accrued interest on the Notes (a) to redemption or Stated Maturity, the Company will be discharged from the Indenture and the Notes, except in certain circumstances for certain sections thereof, or (b) the Company will be discharged from certain covenants set forth in the Indenture. 13. Amendment; Supplement; Waiver. Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding, and any existing default or compliance with any provision may be waived with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding. Without notice to or the consent of any Holder, the parties thereto may amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency and make any change that does not materially and adversely affect the rights of any Holder. 14. Restrictive Covenants. The Indenture imposes certain limitations on the ability of the Company and the Restricted Subsidiaries, among other things, to Incur additional Indebtedness; create Liens; pay dividends or make distributions in respect of their Capital Stock; make Investments or make certain other Restricted Payments; engage in Asset Sales; issue or sell stock of Restricted Subsidiaries; enter into transactions with stockholders or Affiliates; or, with respect to the Company, consolidate, merge or sell all or substantially all of its assets. Within 90 days after the end of the last fiscal quarter of each year, the Company must report to the Trustee on compliance with such limitations. 15. Successor Persons. Generally, when a successor person or other entity assumes all the obligations of its predecessor under the Notes and the Indenture, the predecessor person will be released from those obligations. 16. Defaults and Remedies. The following events will be defined as "Events of Default" in the Indenture: (a) default in the payment of principal of (or premium, if any, on) any Note when the same becomes due and payable at maturity, upon acceleration, redemption or otherwise; (b) default in the payment of interest on any Note when the same becomes due and payable, and such default continues for a period of 30 days; provided that a failure to make any of the first six scheduled interest payments on the Notes in a timely manner will constitute an Event of Default with no grace or cure period; (c) defaults in the performance or breach of the provisions of Section 5.01 of the Indenture or the failure to make or consummate an Offer to Purchase in accordance with Section 4.11 or Section 4.13 of the Indenture; (d) the Company defaults in the performance of or breaches any other covenant or agreement of the Company in the Indenture or under the Notes (other than a default specified in clause (a), (b) or (c) above) and such default or breach continues for a period of 30 consecutive days after written notice by the Trustee or the Holders of 25% or more in aggregate principal amount at maturity of the Notes; (e) there occurs with respect to any issue or issues of Indebtedness of the Company or any Significant Subsidiary having an outstanding principal amount of $10 million or more in the aggregate for all such issues of all such Persons, whether such Indebtedness now exists or shall hereafter be created, (I) an event of default that has caused the holder thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity and such Indebtedness has not been discharged in full or such acceleration has not been rescinded or annulled within 30 days of such acceleration and/or (II) the failure to make a principal payment at the final (but not any interim) fixed maturity and such defaulted payment shall not have been made, waived or extended within 30 days of such payment default; (f) any final judgment or order (not covered by insurance) for the payment of money in excess of $10 million in the aggregate for all such final judgments or orders against all such Persons (treating any deductibles, self-insurance or retention as not so covered) shall be rendered against the Company or any Significant Subsidiary and shall not be paid or discharged, and there shall be any period of 30 consecutive days following entry of the final judgment or order that causes the aggregate amount for all such final judgments or orders outstanding and not paid or discharged against all such Persons to exceed $10 million during which a stay of enforcement of such final judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; (g) a court having jurisdiction in the premises enters a decree or order for (A) relief in respect of the Company or any Significant Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (B) appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or any Significant Subsidiary or for all or substantially all of the property and assets of the Company or any Significant Subsidiary or (C) the winding up or liquidation of the affairs of the Company or any Significant Subsidiary and, in each case, such decree or order shall remain unstayed and in effect for a period of 30 consecutive days; or (h) the Company or any Significant Subsidiary (A) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (B) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or any Significant Subsidiary or for all or substantially all of the property and assets of the Company or any Significant Subsidiary or (C) effects any general assignment for the benefit of creditors. If an Event of Default (other than an Event of Default specified in clause (g) or (h) above that occurs with respect to the Company) occurs and is continuing under the Indenture, the Trustee or the Holders of at least 25% in aggregate principal amount outstanding, by written notice to the Company (and to the Trustee if such notice is given by the Holders), may, and the Trustee at the request of such Holders shall, declare the principal amount of, premium, if any, and accrued interest on the Notes to be immediately due and payable. Upon a declaration of acceleration, such principal amount of, premium, if any, and accrued interest shall be immediately due and payable. In the event of a declaration of acceleration because an Event of Default set forth in clause (e) above has occurred and is continuing, such declaration of acceleration shall be automatically rescinded and annulled if the event of default triggering such Event of Default pursuant to clause (e) shall be remedied or cured by the Company or the relevant Significant Subsidiary or waived by the holders of the relevant Indebtedness within 60 days after the declaration of acceleration with respect thereto. If an Event of Default specified in clause (g) or (h) above occurs with respect to the Company, the principal amount of, premium, if any, and accrued interest on the Notes then outstanding 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 at least a majority in principal amount at maturity of the outstanding Notes by written notice to the Company and to the Trustee, may waive all past defaults and rescind and annul a declaration of acceleration and its consequences if (i) all existing Events of Default, other than the nonpayment of the principal of, premium, if any, and interest on the Notes that have become due solely by such declaration of acceleration, have been cured or waived and (ii) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction. The Holders of at least a majority in aggregate principal amount at maturity of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or the Indenture, that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of Notes not joining in the giving of such direction and may take any other action it deems proper that is not inconsistent with any such direction received from Holders of Notes. A Holder may not pursue any remedy with respect to the Indenture or the Notes unless: (i) the Holder gives the Trustee written notice of a continuing Event of Default; (ii) the Holders of at least 25% in aggregate principal amount at maturity of outstanding Notes make a written request to the Trustee to pursue the remedy; (iii) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee against any costs, liability or expense; (iv) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and (v) during such 60-day period, the Holders of a majority in aggregate principal amount at maturity of the outstanding Notes do not give the Trustee a direction that is inconsistent with the request. However, such limitations do not apply to the right of any Holder of a Note to receive payment of the principal of, premium, if any, or interest on, such Note or to bring suit for the enforcement of any such payment, on or after the due date expressed in the Notes, which right shall not be impaired or affected without the consent of the Holder. 17. Trustee Dealings with Company. The Trustee under the Indenture, in its individual or any other capacity, may become owner or pledgee of Notes and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not the Trustee. 18. No Recourse Against Others. No recourse for the payment of the principal of, premium, if any, or interest on any of the Notes or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture, or in any of the Notes or because of the creation of any Indebtedness represented thereby, shall be had against any incorporator, stockholder, officer, director, employee or controlling person of the Company or of any successor Person thereof. Each Holder, by accepting the Notes, waives and releases all such liability. 19. Authentication. This Note shall not be valid until the Trustee or authenticating agent signs the certificate of authentication on the other side of this Note. 20. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. The internal laws of the State of New York shall govern this Note without regard to principles of conflict of laws. The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to Orion Newco Services, Inc., 2440 Research Boulevard, Suite 40, Rockville, Maryland 20850, Attention: [____________]. SCHEDULE A SCHEDULE OF PRINCIPAL AMOUNT OF INDEBTEDNESS EVIDENCED BY THIS NOTE The initial principal amount of indebtedness evidenced by this Note shall be $__,__,__. The following decreases/increases in the principal amount evidenced by this Note have been made:
Decrease in Increase in Total Principal Amount of Principal Principal this Global Note Following Notation Made Date of Decrease/ Amount of this Amount of this such Decrease/Increase by or on Increase Global Note Global Note Behalf of Trustee
OPTION OF HOLDER TO ELECT PURCHASE If you wish to have this Note purchased by the Company pursuant to Section 4.11 or Section 4.13 of the Indenture, check the box: If you wish to have a portion of this Note purchased by the Company pursuant to Section 4.11 or Section 4.13 of the Indenture, state the amount (in principal amount): $___________________ ($1000 or integral multiple thereof). Date:________________________ Your Signature:_________________________________________________________________ Signature Guarantee: ______________________________ EXHIBIT B FORM OF CERTIFICATED NOTE [FACE OF NOTE] THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF ONE NOTE WITH AMOUNT AT MATURITY OF $[____] AND ONE WARRANT INITIALLY ENTITLING THE HOLDER THEREOF TO PURCHASE AN EQUAL NUMBER OF SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE, OF ORION NEWCO SERVICES, INC. (THE "COMMON STOCK"). PRIOR TO THE CLOSE OF BUSINESS UPON THE EARLIEST TO OCCUR OF (i) [ ], 1997, (ii) SUCH DATE AS THE UNDERWRITES MAY, IN THEIR DISCRETION DEEM APPROPRIATE OR (iii) IN THE EVENT OF AN OFFER TO PURCHASE, THE DATE THE COMPANY MAILS NOTICE THEREOF TO THE HOLDERS OF THE NOTES, THE NOTES EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE WARRANTS. ORION NEWCO SERVICES, INC. [___]% Senior Note Due 2007 CUSIP [ ________] No. __________ Issue Date: ______________________ ORION NEWCO SERVICES, INC., a Delaware corporation, with registration number [_______] (the "Company", which term includes any successor under the Indenture hereinafter referred to), for value received, promises to pay to the bearer upon surrender hereof the principal sum of _________________________________ United States Dollars (U.S.$________________) on 2007. Interest Payment Dates: [ ] and [ ], commencing [ ] 1997. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which provisions shall have the same effect as if set forth hereon. IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officer. Date: ORION NEWCO SERVICES, INC. By:____________________________ Name:__________________________ Title:_________________________ This is one of the [___]% Senior Notes due 2007 described in the within-mentioned Indenture. BANKERS TRUST COMPANY, as Trustee By:____________________________ Authorized Officer [REVERSE SIDE OF NOTE] ORION NEWCO SERVICES, INC. [___]% Senior Note due 2007 1. Principal and Interest. Orion Newco Services, Inc. (the "Company") will pay the principal of this Note on [______________], 2007. The Company promises to pay interest on the principal amount of this Note on each Interest Payment Date, as set forth below, at the rate per annum shown above. Interest on the Notes shall accrue at the rate of [___]% per annum (the "Interest Rate") and shall be payable in U.S. dollars in cash semi-annually in arrears on [ ] and [ ] (each an "Interest Payment Date"); provided that the first Interest Payment Date shall be [ ], 2002. Interest on the Notes will accrue from the most recent date to which interest has been paid or duly provided for, or if no interest has been paid or duly provided for, from the date of original issuance hereof. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. The Company shall pay interest on overdue principal and premium, if any, and (to the extent lawful) interest on overdue installments of interest at the rate of [___]% per annum. 2. Method of Payment. The Company will pay interest on the Notes to the Holder of this Note upon presentment hereof at the office of the Paying Agent of the Company maintained for that purpose in the Borough of Manhattan, the City of New York. Holders must surrender Notes to such Paying Agent to collect principal payments. The Company will pay principal, premium, if any, and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. However, the Company may pay principal, premium, if any, and interest by check payable in such money. If a payment date is a date other than a Business Day at a place of payment, payment may be made at that place on the next succeeding day that is a Business Day and no interest shall accrue for the intervening period. 3. Paying Agent and Registrar. Initially, the Trustee will act as Paying Agent and Registrar. The Company may change any Paying Agent and Registrar without notice in accordance with the Indenture. The Company, any Affiliate or any Subsidiary thereof may act as the Paying Agent or Registrar. 4. Indenture; Limitations. The Company issued the Notes under an Indenture dated as of [__________], 1997 (the "Indenture"), between the Company, Orion Network Systems, Inc., Orion Satellite Corporation, International Private Satellite Partners, L.P., OrionNet, Inc., Orion Asia Pacific Corporation, Asia Pacific Space and Communications, Ltd., Orion Atlantic Europe, Inc. and OrionNet Finance Corporation, as guarantors, and the Bankers Trust Company, as trustee (the "Trustee"). Capitalized terms herein are used as defined in the Indenture unless otherwise indicated. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act. The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Note and the terms of the Indenture, the terms of the Indenture shall control. The Notes are unsecured senior indebtedness of the Company. The Indenture limits the aggregate principal amount of the Notes to $[ ]. 5. Optional Redemption. The Notes will be redeemable, at the Company's option, in whole or in part, at any time or from time to time on or after [ ], 2002 and prior to maturity, upon not less than 30 nor more than 60 days' prior notice, at the following Redemption Prices (expressed in percentages of their principal amount), plus accrued and unpaid interest, if any, to the Redemption Date if redeemed during the 12-month period commencing on October [__] of the applicable years set forth below: Year Redemption Price 2002 [_____]% 2003 [_____]% 2004 and thereafter 100.000% 6. Selection of Notes for Partial Redemption; Effect of Redemption Notice. In the case of any partial redemption, selection of the Notes for redemption will be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not listed on a national securities exchange, on a pro rata basis, by lot or by such method as the Trustee in its sole discretion shall deem to be fair and appropriate; provided that no Note of $1,000 in principal amount or less shall be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption relating to such Note shall state the portion of the principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Note. Upon the giving of any redemption notice, interest on Notes called for redemption will cease to accrue from and after the date fixed for redemption (unless the Company defaults in providing the funds for such redemption) and such Notes will then cease to be outstanding. 7. Notice of Redemption. Notice of any optional redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holders of Notes to be redeemed at such Holder's registered address as it appears in the Register. 8. Repurchase upon Change of Control. Upon the occurrence of any Change of Control, the Company will be obligated to make an offer to purchase all outstanding Notes pursuant to the Offer to Purchase described in the Indenture at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase (the "Change of Control Payment"). A notice of such Change of Control will be mailed within 30 days after any Change of Control occurs to each Holder of Notes at such Holder's registered address as it appears in the Register. Notes in original denominations larger than $1,000 may be sold to the Company in part; provided that Notes will only be issued in denominations of $1,000 principal amount at maturity or integral multiples thereof. On and after the Payment Date, interest ceases to accrue on Notes or portions of Notes surrendered for purchase by the Company, unless the Company defaults in the payment of the Change of Control Payment. 9. Denomination. This Certificated Note is in fully registered form without coupons and is denominated in an amount equal to $1,000 of principal amount at maturity or an integral multiple thereof and is transferable by presentation or surrender to the registrar for registration of transfer either endorsed or accompanied by a written instrument of transfer in form satisfactory to the registrar. 10. Persons Deemed Owners. The holder of this Note shall be treated as the owner of this Note for all purposes. 11. Unclaimed Money. If money for the payment of principal, premium, if any, and interest remains unclaimed for two years, the Trustee and the Paying Agent will pay the money back to the Company at its request. After that, Holders entitled to the money must look to the Company for payment, unless an applicable law designates another Person, and all liability of the Trustee and such Paying Agent with respect to such money shall cease. 12. Discharge Prior to Redemption or Maturity. If the Company deposits with the Trustee money or U.S. Government Obligations sufficient to pay the then outstanding principal of, premium, if any, and accrued interest on the Notes (a) to redemption or Stated Maturity, the Company will be discharged from the Indenture and the Notes, except in certain circumstances for certain sections thereof, or (b) the Company will be discharged from certain covenants set forth in the Indenture. 13. Amendment; Supplement; Waiver. Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding, and any existing default or compliance with any provision may be waived with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding. Without notice to or the consent of any Holder, the parties thereto may amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency and make any change that does not materially and adversely affect the rights of any Holder. 14. Restrictive Covenants. The Indenture imposes certain limitations on the ability of the Company and the Restricted Subsidiaries, among other things, to Incur additional Indebtedness; create Liens; pay dividends or make distributions in respect of their Capital Stock; make Investments or make certain other Restricted Payments; engage in Asset Sales; issue or sell stock of Restricted Subsidiaries; enter into transactions with stockholders or Affiliates; or, with respect to the Company, consolidate, merge or sell all or substantially all of its assets. Within 90 days after the end of the last fiscal quarter of each year, the Company must report to the Trustee on compliance with such limitations. 15. Successor Persons. Generally, when a successor person or other entity assumes all the obligations of its predecessor under the Notes and the Indenture, the predecessor person will be released from those obligations. 16. Defaults and Remedies. The following events will be defined as "Events of Default" in the Indenture: (a) default in the payment of principal of (or premium, if any, on) any Note when the same becomes due and payable at maturity, upon acceleration, redemption or otherwise; (b) default in the payment of interest on any Note when the same becomes due and payable, and such default continues for a period of 30 days; provided that a failure to make any of the first six scheduled interest payments on the Notes in a timely manner will constitute an Event of Default with no grace or cure period; (c) defaults in the performance or breach of the provisions of Section 5.01 of the Indenture or the failure to make or consummate an Offer to Purchase in accordance with Section 4.11 or Section 4.13 of the Indenture; (d) the Company defaults in the performance of or breaches any other covenant or agreement of the Company in the Indenture or under the Notes (other than a default specified in clause (a), (b) or (c) above) and such default or breach continues for a period of 30 consecutive days after written notice by the Trustee or the Holders of 25% or more in aggregate principal amount at maturity of the Notes; (e) there occurs with respect to any issue or issues of Indebtedness of the Company or any Significant Subsidiary having an outstanding principal amount of $10 million or more in the aggregate for all such issues of all such Persons, whether such Indebtedness now exists or shall hereafter be created, (I) an event of default that has caused the holder thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity and such Indebtedness has not been discharged in full or such acceleration has not been rescinded or annulled within 30 days of such acceleration and/or (II) the failure to make a principal payment at the final (but not any interim) fixed maturity and such defaulted payment shall not have been made, waived or extended within 30 days of such payment default; (f) any final judgment or order (not covered by insurance) for the payment of money in excess of $10 million in the aggregate for all such final judgments or orders against all such Persons (treating any deductibles, self-insurance or retention as not so covered) shall be rendered against the Company or any Significant Subsidiary and shall not be paid or discharged, and there shall be any period of 30 consecutive days following entry of the final judgment or order that causes the aggregate amount for all such final judgments or orders outstanding and not paid or discharged against all such Persons to exceed $10 million during which a stay of enforcement of such final judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; (g) a court having jurisdiction in the premises enters a decree or order for (A) relief in respect of the Company or any Significant Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (B) appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or any Significant Subsidiary or for all or substantially all of the property and assets of the Company or any Significant Subsidiary or (C) the winding up or liquidation of the affairs of the Company or any Significant Subsidiary and, in each case, such decree or order shall remain unstayed and in effect for a period of 30 consecutive days; or (h) the Company or any Significant Subsidiary (A) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (B) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or any Significant Subsidiary or for all or substantially all of the property and assets of the Company or any Significant Subsidiary or (C) effects any general assignment for the benefit of creditors. If an Event of Default (other than an Event of Default specified in clause (g) or (h) above that occurs with respect to the Company) occurs and is continuing under the Indenture, the Trustee or the Holders of at least 25% in aggregate principal amount outstanding, by written notice to the Company (and to the Trustee if such notice is given by the Holders), may, and the Trustee at the request of such Holders shall, declare the principal amount of, premium, if any, and accrued interest on the Notes to be immediately due and payable. Upon a declaration of acceleration, such principal amount of, premium, if any, and accrued interest shall be immediately due and payable. In the event of a declaration of acceleration because an Event of Default set forth in clause (e) above has occurred and is continuing, such declaration of acceleration shall be automatically rescinded and annulled if the event of default triggering such Event of Default pursuant to clause (e) shall be remedied or cured by the Company or the relevant Significant Subsidiary or waived by the holders of the relevant Indebtedness within 60 days after the declaration of acceleration with respect thereto. If an Event of Default specified in clause (g) or (h) above occurs with respect to the Company, the principal amount of, premium, if any, and accrued interest on the Notes then outstanding 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 at least a majority in principal amount at maturity of the outstanding Notes by written notice to the Company and to the Trustee, may waive all past defaults and rescind and annul a declaration of acceleration and its consequences if (i) all existing Events of Default, other than the nonpayment of the principal of, premium, if any, and interest on the Notes that have become due solely by such declaration of acceleration, have been cured or waived and (ii) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction. The Holders of at least a majority in aggregate principal amount at maturity of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or the Indenture, that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of Notes not joining in the giving of such direction and may take any other action it deems proper that is not inconsistent with any such direction received from Holders of Notes. A Holder may not pursue any remedy with respect to the Indenture or the Notes unless: (i) the Holder gives the Trustee written notice of a continuing Event of Default; (ii) the Holders of at least 25% in aggregate principal amount at maturity of outstanding Notes make a written request to the Trustee to pursue the remedy; (iii) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee against any costs, liability or expense; (iv) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and (v) during such 60-day period, the Holders of a majority in aggregate principal amount at maturity of the outstanding Notes do not give the Trustee a direction that is inconsistent with the request. However, such limitations do not apply to the right of any Holder of a Note to receive payment of the principal of, premium, if any, or interest on, such Note or to bring suit for the enforcement of any such payment, on or after the due date expressed in the Notes, which right shall not be impaired or affected without the consent of the Holder. 17. Trustee Dealings with Company. The Trustee under the Indenture, in its individual or any other capacity, may become owner or pledgee of Notes and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not the Trustee. 18. No Recourse Against Others. No recourse for the payment of the principal of, premium, if any, or interest on any of the Notes or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture, or in any of the Notes or because of the creation of any Indebtedness represented thereby, shall be had against any incorporator, stockholder, officer, director, employee or controlling person of the Company or of any successor Person thereof. Each Holder, by accepting the Notes, waives and releases all such liability. 19. Authentication. This Note shall not be valid until the Trustee or authenticating agent signs the certificate of authentication on the other side of this Note. 20. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. The internal laws of the State of New York shall govern this Note without regard to principles of conflict of laws. The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to Orion Newco Services, Inc., 2440 Research Boulevard, Suite 40, Rockville, Maryland 20850, Attention: [____________]. SCHEDULE A SCHEDULE OF PRINCIPAL AMOUNT OF INDEBTEDNESS EVIDENCED BY THIS NOTE The initial principal amount of indebtedness evidenced by this Note shall be $ __,__,__. The following decreases/increases in the principal amount evidenced by this Note have been made:
Decrease in Increase in Total Principal Amount of Principal Principal this Global Note Following Notation Made Date of Decrease/ Amount of this Amount of this such Decrease/Increase by or on Increase Global Note Global Note Behalf of Trustee
OPTION OF HOLDER TO ELECT PURCHASE If you wish to have this Note purchased by the Company pursuant to Section 4.11 or Section 4.13 of the Indenture, check the box: If you wish to have a portion of this Note purchased by the Company pursuant to Section 4.11 or Section 4.13 of the Indenture, state the amount (in principal amount): $___________________ ($1000 or integral multiple thereof). Date:________________ Your Signature:____________________________________________________________ Signature Guarantee: ______________________________ EX-4.2 18 EXHIBIT 4.2 ORION NETWORK SYSTEMS, INC., as Issuer, and [__________________________], as Trustee Senior Discount Notes Indenture Dated as of [ ], 1997 [ ]% Senior Discount Notes due 2007 CROSS-REFERENCE TABLE TIA Sections Indenture Sections ss. 310(a)(1)..........................................................7.10 (a)(2)..........................................................7.10 (b).............................................................7.08 ss. 313(c).............................................................7.06 ss. 314(a).............................................................4.17 (a)(4)..........................................................4.18 ss. 315(b).............................................................7.05 ss. 316(a)(1)(A).......................................................6.05 (a)(1)(B).......................................................6.04 (b).............................................................6.07 ss. 317(a)(1)..........................................................6.08 (a)(2)..........................................................6.09 - ---------- Note: The Cross-Reference Table shall not for any purpose be deemed to be a part of the Indenture. TABLE OF CONTENTS Page RECITALS OF THE COMPANY 1 ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.01. Definitions 2 SECTION 1.02. Incorporation by Reference of Trust Indenture Act 22 SECTION 1.03. Rules of Construction 22 ARTICLE TWO THE NOTES SECTION 2.01. Form and Dating 23 SECTION 2.02. Execution and Authentication 24 SECTION 2.03. Registrar and Paying Agent 24 SECTION 2.04. Holders to Be Treated as Owners; Payments of Interest 25 SECTION 2.05. Paying Agent to Hold Money in Trust 26 SECTION 2.06. Holder Lists 26 SECTION 2.07. Transfer and Exchange 27 SECTION 2.08. Replacement Notes 30 SECTION 2.09. Outstanding Notes 31 SECTION 2.10. Treasury Notes 31 SECTION 2.11. Temporary Notes 31 SECTION 2.12. Cancellation 31 SECTION 2.13. Defaulted Interest 32 SECTION 2.14. CUSIP, CINS or ISIN Number 48 SECTION 2.15. Deposit of Moneys 32 ARTICLE THREE REDEMPTION SECTION 3.01. Right of Redemption 33 SECTION 3.02. Notices to Trustee 33 SECTION 3.03. Selection of Notes to Be Redeemed 33 SECTION 3.04. Notice of Redemption 34 SECTION 3.05. Deposit of Redemption Price 35 SECTION 3.06. Payment of Notes Called for Redemption 35 SECTION 3.07. Notes Redeemed in Part 35 - ---------- Note: The Table of Contents shall not for any purpose be deemed to be a part of the Indenture. ARTICLE FOUR COVENANTS SECTION 4.01. Payment of Notes 35 SECTION 4.02. Issuances of Guarantees by New Restricted Subsidiaries 35 SECTION 4.03. Limitation on Indebtedness 36 SECTION 4.04. Limitation on Restricted Payments 38 SECTION 4.05. Limitation on Dividend and Other Payment Restrictions Affect- ing Restricted Subsidiaries 41 SECTION 4.06. Limitation on the Issuance of Capital Stock of Restricted Subsidiaries 42 SECTION 4.07. Limitation on Issuances of Guarantees by Restricted Subsidiaries 43 SECTION 4.08. Limitation on Transactions with Shareholders and Affiliates 43 SECTION 4.09. Limitation on Liens 44 SECTION 4.10. Limitation on Sale-Leaseback Transactions 44 SECTION 4.11. Limitation on Asset Sales 45 SECTION 4.12. Maintenance of Office or Agency SECTION 4.13. Repurchase of Notes upon a Change of Control 46 SECTION 4.14. Existence 46 SECTION 4.15. Payment of Taxes and Other Claims 46 SECTION 4.16. Maintenance of Properties and Insurance 47 SECTION 4.17. Compliance Certificates 48 SECTION 4.18. Commission Reports and Reports to Holders 48 SECTION 4.19. Waiver of Stay, Extension or Usury Laws 48 ARTICLE FIVE SUCCESSOR CORPORATION SECTION 5.01. Consolidation, Merger and Sale of Assets 49 SECTION 5.02. Successor Substituted 50 ARTICLE SIX DEFAULT AND REMEDIES SECTION 6.01. Events of Default 50 SECTION 6.02. Acceleration 52 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 to Receive Payment 54 SECTION 6.08. Collection of Indebtedness and Suits for Enforcement by Trustee 55 SECTION 6.09. Trustee May File Proofs of Claim 55 SECTION 6.10. Priorities 55 SECTION 6.11. Undertaking for Costs 56 SECTION 6.12. Restoration of Rights and Remedies 56 SECTION 6.13. Rights and Remedies Cumulative 56 SECTION 6.14. Delay or Omission Not Waiver 56 ARTICLE SEVEN TRUSTEE SECTION 7.01. General 57 SECTION 7.02. Certain Rights of Trustee 57 SECTION 7.03. Individual Rights of Trustee 58 SECTION 7.04. Trustee's Disclaimer 58 SECTION 7.05. Notice of Default 59 SECTION 7.06. Reports by Trustee to Holders 59 SECTION 7.07. Compensation and Indemnity 59 SECTION 7.08. Replacement of Trustee 60 SECTION 7.09. Successor Trustee by Merger, Etc 61 SECTION 7.10. Eligibility 61 SECTION 7.11. Money Held in Trust 61 SECTION 7.12. Withholding Taxes 61 ARTICLE EIGHT DISCHARGE OF INDENTURE SECTION 8.01. Termination of Company's Obligations 61 SECTION 8.03. Defeasance of Certain Obligations 64 SECTION 8.04. Application of Trust Money 66 SECTION 8.05. Repayment to Company 66 SECTION 8.06. Reinstatement 66 ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS SECTION 9.01. Without Consent of Holders 67 SECTION 9.02. With Consent of Holders 67 SECTION 9.03. Revocation and Effect of Consent 68 SECTION 9.04. Notation on or Exchange of Notes 69 SECTION 9.05. Trustee to Sign Amendments, Etc 69 SECTION 9.06. Conformity with Trust Indenture Act 69 ARTICLE TEN GUARANTEE OF NOTES SECTION 10.01. Guarantee 69 SECTION 10.02. Obligations Unconditional 71 SECTION 10.03. Notice to Trustee 71 SECTION 10.04. This Article Not to Prevent Events of Default 71 SECTION 10.05. Net Worth Limitation 71 ARTICLE ELEVEN MISCELLANEOUS SECTION 11.01. Trust Indenture Act of 1939 71 SECTION 11.02. Notices 72 SECTION 11.03. Certificate and Opinion as to Conditions Precedent 73 SECTION 11.04. Statements Required in Certificate or Opinion 73 SECTION 11.06. Rules by Trustee, Paying Agent or Registrar 75 SECTION 11.07. Agent for Service; Submission to Jurisdiction; Waiver of Immunities 75 SECTION 11.08. Payment Date Other Than a Business Day 75 SECTION 11.09. Governing Law 75 SECTION 11.10. No Adverse Interpretation of Other Agreements 76 SECTION 11.10. No Recourse Against Others 76 SECTION 11.11. Successors 76 SECTION 11.12. Duplicate Originals 76 SECTION 11.13. Separability 76 SECTION 11.14. Table of Contents, Headings, Etc. 76 EXHIBIT A Form of Global Note A-1 EXHIBIT B Form of Definitive Registered Note B-1 INDENTURE, dated as of [ ], 1997, between ORION NEWCO SERVICES, INC., a Delaware corporation, as issuer (together, with its successors and assigns, the "Company"); ORION NETWORK SYSTEMS, INC., Inc., ORION SATELLITE CORPORATION, INTERNATIONAL PRIVATE SATELLITE PARTNERS, L.P., ORIONNET, INC.., ORION ASIA PACIFIC CORPORATION, ASIA PACIFIC SPACE AND COMMUNICATIONS, LTD., ORION ATLANTIC EUROPE, Ltd., ORION ATLANTIC EUROPE Inc; A. and ORION NET FINANCE CORPORATION Net Finance Corporation., all Delaware Corporations, as guarantors; and BANKERS TRUST COMPANY, a New York Banking Corporation, as trustee (the "Trustee"). RECITALS OF THE COMPANY The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of up to $[ ] aggregate principal amount at maturity of the Company's [ ]% Senior Discount Notes Due 2007 (the "Notes") issuable as provided in this Indenture. Pursuant to the terms of an Underwriting Agreement dated as of [ ], 1997 (the "Underwriting Agreement") between the Company and Morgan Stanley & Co. Incorporated, as the manager for itself and the several other placement agents therein (the "Manager"), the Company has agreed to issue and sell [ ] Units (the "Units"), each Senior Discount Note Unit consisting of $[________] principal amount of the Notes and one warrant (the "Warrant") to purchase initially [ ] shares of Common Stock, par value $.01 per share, of the Company (the "Common Stock"), issuable pursuant to the terms of a Warrant Agreement dated as of [________], 1997 (the "Warrant Agreement") between the Company and [ ], as the warrant agent (the "Warrant Agent") and [ ] Senior Note Units (the "Senior Note Units"), each Senior Note Unit consisting of $[________] principal amount of the [ ]% Senior Notes Due 2007 (the "Senior Notes") and one Warrant to purchase initially [ ] shares of Common Stock, issuable pursuant to the terms of the Warrant Agreement. All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done, and the Company has done all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee hereunder and duly issued by the Company, the valid obligations of the Company as hereinafter provided. This Indenture is subject to, and shall be governed by, the provisions of the United States Trust Indenture Act of 1939, as amended, that are required to be a part of and to govern indentures qualified under the United States Trust Indenture Act of 1939, as amended. For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders, as follows. ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.01. Definitions . "Accreted Value" is defined to mean, for any Specified Date, the amount calculated pursuant to (i), (ii), (iii) or (iv) for each $1,000 principal amount at maturity of Senior Discount Notes: (i) if the Specified Date occurs on one or more of the following dates (each a "Semi-Annual Accrual Date"), the Accreted Value will equal the amount set forth below for such Semi-Annual Accrual Date: Semi-Annual Accreted Accrual Date Value ------------ ----- [ ], 1997 $[ ] -------------- ---------- [ ], 1998 $[ ] -------------- ---------- [ ], 1998 $[ ] -------------- ---------- [ ], 1999 $[ ] -------------- ---------- [ ], 1999 $[ ] -------------- ---------- [ ], 2000 $[ ] -------------- ---------- [ ], 2000 $[ ] -------------- ---------- [ ], 2001 $[ ] -------------- ---------- [ ], 2001 $[ ] -------------- ---------- [ ], 2002 $1,000.00 -------------- (ii) if the Specified Date occurs before the first Semi-Annual Accrual Date, the Accreted Value will equal the sum of (a) the original issue price and (b) an amount equal to the product of (1) the Accreted Value for the first Semi-Annual Accrual Date less the original issue price multiplied by (2) a fraction, the numerator of which is the number of days from the issue date of the Notes to the Specified Date, using a 360-day year of twelve 30-day months, and the denominator of which is the number of days elapsed from the issue date of the Notes to the first Semi-Annual Accrual Date, using a 360-day year of twelve 30-day months; (iii) if the Specified Date occurs between two Semi-Annual Accrual Dates, the Accreted Value will equal the sum of (a) the Accreted Value for the Semi-Annual Accrual Date immediately preceding such Specified Date and (b) an amount equal to the product of (1) the Accreted Value for the immediately following Semi-Annual Accrual Date less the Accreted Value for the immediately preceding Semi-Annual Accrual Date multiplied by (2) a fraction, the numerator of which is the number of days from the immediately preceding Semi-Annual Accrual Date to the Specified Date, using a 360-day year of twelve 30-day months, and the denominator of which is 180; or (iv) if the Specified Date occurs after the last Semi-Annual Accrual Date, the Accreted Value will equal $1,000. "Acquired Indebtedness" means Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary or assumed in connection with an Asset Acquisition by a Restricted Subsidiary and not Incurred in connection with, or in anticipation of, such Person becoming a Restricted Subsidiary or such Asset Acquisition; provided that Indebtedness of such Person which is redeemed, defeased, retired or otherwise repaid at the time of or immediately upon consummation of the transactions by which such Person becomes a Restricted Subsidiary or such Asset Acquisition shall not be Indebtedness. "Adjusted Consolidated Net Income" means, for any period, the aggregate net income (or loss) of the Company and its Subsidiaries for such period determined in conformity with GAAP; provided that the following items shall be excluded in computing Adjusted Consolidated Net Income (without duplication): (i) the net income of any Person (other than net income attributable to a Restricted Subsidiary) in which any Person (other than the Company or any of its Restricted Subsidiaries) has a joint interest and the net income (or loss) of any Unrestricted Subsidiary, except that Adjusted Consolidated Net Income for any period shall include the amount of dividends or other distributions actually paid to the Company or any of its Restricted Subsidiaries by such other Person or such Unrestricted Subsidiary during such period; (ii) solely for the purposes of calculating the amount of Restricted Payments that may be made pursuant to clause (C) of the first paragraph of Section 4.04 of this Indenture (and, in such case, except to the extent includable pursuant to clause (i) above), the net income (or loss) of any Person accrued prior to the date it becomes a Restricted Subsidiary or is merged into or consolidated with the Guarantor or any of its Restricted Subsidiaries or all or substantially all of the property and assets of such Person are acquired by the Company or any of its Restricted Subsidiaries; (iii) any gains or losses (on an after-tax basis) attributable to Asset Sales; (iv) except for purposes of calculating the amount of Restricted Payments that may be made pursuant to clause (C) of the first paragraph of Section 4.04 of this Indenture, any amount paid or accrued as dividends on Preferred Stock of the Company or any Restricted Subsidiary owned by Persons other than the Company and any of its Restricted Subsidiaries; (v) all extraordinary gains and extraordinary losses; and (vi) any net income (or loss) of any Guarantor that ceases to be a Guarantor because it is designated an Unrestricted Subsidiary. "Adjusted Consolidated Net Tangible Assets" means the total amount of assets of the Company and its Restricted Subsidiaries (less applicable depreciation, amortization and other valuation reserves), except to the extent resulting from write-ups of capital assets (excluding write-ups in connection with accounting for acquisitions in conformity with GAAP), after deducting therefrom (i) all current liabilities of the Company and its Restricted Subsidiaries (excluding intercompany items) and (ii) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles, all as set forth on the most recent quarterly or annual consolidated balance sheet of the Company and its Restricted Subsidiaries, prepared in conformity with GAAP and filed with the Commission pursuant to Section 4.18 of this Indenture. "Affiliate" means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlling," "controlled by" and "under common control with"), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. "Agent" means any Registrar, Paying Agent, authenticating agent or co-Registrar. "Applicable Procedures" means, with respect to any transfer or exchange of beneficial interest in the Global Note, the rules and procedures of the Depositary that apply to such transfer or exchange. "Asset Acquisition" means (i) an investment by the Company or any of its Restricted Subsidiaries in any other Person pursuant to which such Person shall become a Restricted Subsidiary or shall be merged into or consolidated with the Company or any of its Restricted Subsidiaries; provided that such Person's primary business is related, ancillary or complementary to the businesses of the Company and its Restricted Subsidiaries on the date of such investment or (ii) an acquisition by the Company or any of its Restricted Subsidiaries of the property and assets of any Person other than the Company or any of its Restricted Subsidiaries that constitute substantially all of a division or line of business of such Person; provided that the property and assets acquired are related, ancillary or complementary to the businesses of the Company and its Restricted Subsidiaries on the date of such acquisition. "Asset Disposition" means the sale or other disposition by the Company or any of its Restricted Subsidiaries (other than to the Company or another Restricted Subsidiary) of (i) all or substantially all of the Capital Stock of any Restricted Subsidiary of the Company or (ii) all or substantially all of the assets that constitute a division or line of business of the Company or any of its Restricted Subsidiaries. "Asset Sale" means any sale, transfer or other disposition (including by way of merger, consolidation or sale-leaseback transaction) in one transaction or a series of related transactions by the Company or any of its Restricted Subsidiaries to any Person other than the Company or any of its Restricted Subsidiaries of (i) all or any of the Capital Stock of any Restricted Subsidiary, (ii) all or substantially all of the property and assets of an operating unit or business of the Company or any of its Restricted Subsidiaries or (iii) any other property and assets of the Company or any of its Restricted Subsidiaries outside the ordinary course of business of the Company or such Restricted Subsidiary and, in each case, that is not governed by Section 5.01 of this Indenture; provided that "Asset Sale" shall not include (a) sales or other dispositions of inventory, receivables and other current assets or (b) sales or other dispositions of assets for consideration received would satisfy clause (B) of Section 4.11 of this Indenture. "Average Life" means, at any date determination with respect to any debt security, the quotient obtained by dividing (i) the sum of the products of (a) the number of years from such date of determination to the dates of each successive scheduled principal payment of such debt security and (b) the amount of such principal payment by (ii) the sum of all such principal payments. "Board of Directors" means the Board of Directors of the Company or any committee of such Board of Directors duly authorized to act with respect to this Indenture from time to time. "Board Resolution" means a copy of a resolution, certified by any Director of the Company or the Secretary or Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Business Day" means a day except Saturday, Sunday or other day on which commercial banks in the City of New York, or in the city of the Corporate Trust Office of the Trustee, are authorize by law to close. "Capital Stock" means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) in equity of such Person, whether now outstanding or issued after the Closing Date, including, without limitation, all Common Stock and Preferred Stock. "Capitalized Lease" means, as applied to any Person, any lease of any property (whether real, personal or mixed) of which the discounted present value of the rental obligations of such Person as lessee, in conformity with GAAP, is required to be capitalized on the balance sheet of such Person; and "Capitalized Lease Obligations" means the discounted present value of the rental obligations under such lease. "Certificated Note" means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.07(a) hereof, substantially in the form of Exhibit B hereto. "Change of Control" means such time as (i) a "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) becomes the ultimate "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of more than 35% of the total voting power of the Voting Stock of the Company on a fully diluted basis and such ownership is greater than the amount of voting power of the Voting Stock of the Company, on a fully diluted basis, held by the Existing Stockholders and their Affiliates on such date; (ii) individuals who on the Closing Date constitute the Board of Directors (together with any new directors whose election by the Board of Directors or whose nomination for election by the Company's stockholders was approved by a vote of at least two-thirds of the members of the Board of Directors then in office who either were members of the Board of Directors on the Closing Date or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the members of the Board of Directors then in office; or (iii) the Company does not beneficially own 100% of the equity interests in Orion Atlantic or such other entity as then owns the Orion 1 satellite. "Chief Executive Officer" of the Company means W. Neil Bauer or, in the event of his death or termination of his office, such other Officer of the Company as the Company may designate. "Closing Date" means the date on which the Notes are originally issued under the Indenture. "Commission" means the United States Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the TIA, then the body performing such duties at such time. "Common Stock" means, the shares of Common Stock, par value $.01 per share, of the Company. "Company Order" means a written request or order signed in the name of the Company (i) by the Chairman of the Board, the Chief Executive Officer or an Executive Director and (ii) by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee; provided, however, that such written request or order may be signed by any two of the officers or directors listed in clause (i) above in lieu of being signed by one of such officers or directors listed in such clause (i) and one of the officers listed in clause (ii) above. "Consolidated EBITDA" means, for any period, the sum of the amounts for such period of (i) Adjusted Consolidated Net Income, (ii) Consolidated Interest Expense, to the extent such amount was deducted in calculating Adjusted Consolidated Net Income, (iii) income taxes, to the extent such amount was deducted in calculating Adjusted Consolidated Net Income (other than income taxes (either positive or negative) attributable to extraordinary and non-recurring gains or losses or sales of assets), (iv) depreciation expense, to the extent such amount was deducted in calculating Adjusted Consolidated Net Income, (v) amortization expense, to the extent such amount was deducted in calculating Adjusted Consolidated Net Income, and (vi) all other non-cash items reducing Adjusted Consolidated Net Income (other than items that will require cash payments and for which an accrual or reserve is, or is required by GAAP to be, made), less all non-cash items increasing Adjusted Consolidated Net Income, all as determined on a consolidated basis for the Company and its Restricted Subsidiaries in conformity with GAAP. "Consolidated Indebtedness" means the aggregate amount of Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis. "Consolidated Interest Expense" means, for any period, the aggregate amount of interest in respect of Indebtedness (including, without limitation, amortization of original issue discount on any Indebtedness and the interest portion of any deferred payment obligation, calculated in accordance with the effective interest method of accounting; all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers' acceptance financing; the net costs associated with Interest Rate Agreements; and in respect of Indebtedness that is Guaranteed or secured by any Restricted Subsidiaries) and all but the principal component of rentals in respect of Capitalized Lease Obligations paid, accrued or scheduled to be paid or to be accrued by the Company and its Restricted Subsidiaries during such period; excluding, however, any premiums, fees and expenses (and any amortization thereof) payable in connection with the offering of the Notes, all as determined on a consolidated basis (without taking into account Unrestricted Subsidiaries) in conformity with GAAP. "Consolidated Leverage Ratio" means, on any Transaction Date, the ratio of (i) the aggregate amount of Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis outstanding on such Transaction Date to (ii) the aggregate amount of Consolidated EBITDA for the then most recent four fiscal quarters for which financial statements of the Company have been filed with the Commission pursuant to Section 4.18 of this Indenture (such four fiscal quarter period being the "Four Quarter Period"); provided that (A) pro forma effect shall be given to Asset Dispositions and Asset Acquisitions (including giving pro forma effect to the application of proceeds of any Asset Disposition) that occur from the beginning of the Four Quarter Period through the Transaction Date (the "Reference Period"), as if they had occurred and such proceeds had been applied on the first day of such Reference Period; and (B) pro forma effect shall be given to asset dispositions and asset acquisitions (including giving pro forma effect to the application of proceeds of any asset disposition) that have been made by any Person that has become a Restricted Subsidiary or has been merged with or into the Company or any Restricted Subsidiary during such Reference Period and that would have constituted Asset Dispositions or Asset Acquisitions had such transactions occurred when such Person was a Restricted Subsidiary as if such asset dispositions or asset acquisitions were Asset Dispositions or Asset Acquisitions that occurred on the first day of such Reference Period; provided that to the extent that clause (A) or (B) of this sentence requires that pro forma effect be given to an Asset Acquisition or Asset Disposition, such pro forma calculation shall be based upon the four full fiscal quarters immediately preceding the Transaction Date of the Person, or division or line of business of the Person, that is acquired or disposed of for which financial information is available. "Consolidated Net Worth" means, at any date of determination, stockholders' equity as set forth on the most recently available quarterly or annual consolidated balance sheet of the Company and its Restricted Subsidiaries (which shall be as of a date not more than 90 days prior to the date of such computation), less any amounts attributable to Disqualified Stock or any equity security convertible into or exchangeable for Indebtedness, the cost of treasury stock and the principal amount of any promissory notes receivable from the sale of the Capital Stock of the Company or any of its Restricted Subsidiaries, each item to be determined in conformity with GAAP (excluding the effects of foreign currency exchange adjustments under Financial Accounting Standards Board Statement of Financial Accounting Standards No. 52). "Corporate Trust Office" means the office of the Trustee at which the corporate trust business of the Trustee shall, at any particular time, be principally administered, which office is, at the date of this Indenture, located at Bankers Trust Company, 4 Albany Street, New York, N.Y. 10006. "Currency Agreement" means any foreign exchange contract, currency swap agreement or other similar agreement or arrangement designed to protect the Company or any Restricted Subsidiary against fluctuations in currency values. "Default" means any event that is, or after notice or passage of time or both would be, an Event of Default. "Depositary" shall mean The Depository Trust Company, its nominees and their respective successors, until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Depositary" shall been or include each Person who is then a Depositary hereunder. "Depositary Interest" means a certificateless depositary interest representing a 100% beneficial interest in a Global Note. "Disqualified Stock" means any class or series of Capital Stock of any Person that by its terms or otherwise is (i) required to be redeemed prior to the Stated Maturity of the Notes, (ii) redeemable at the option of the holder of such class or series of Capital Stock at any time prior to the Stated Maturity of the Notes or (iii) convertible into or exchangeable for Capital Stock referred to in clause (i) or (ii) above or Indebtedness having a scheduled maturity prior to the Stated Maturity of the Notes; provided that any Capital Stock that would not constitute Disqualified Stock but for provisions thereof giving holders thereof the right to require such Person to repurchase or redeem such Capital Stock upon the occurrence of an "asset sale" or "change of control" occurring prior to the Stated Maturity of the Notes shall not constitute Disqualified Stock if the "asset sale" or "change of control" provisions applicable to such Capital Stock are no more favorable to the holders of such Capital Stock than the provisions contained in Sections 4.11 and 4.13 of this Indenture and such Capital Stock specifically provides that such Person will not repurchase or redeem any such stock pursuant to such provision prior to the Company's repurchase of such Notes as are required to be repurchased pursuant to Sections 4.11 and 4.13 of this Indenture. "Existing Stockholders" means British Aerospace Space Systems, Inc., Lockheed Martin Commercial Launch Services, Inc., MCN Sat. U.S., Inc., Trans-Atlantic Satellite, Inc., Kingston Communications International Limited, COM DEV Satellite Communications Limited, J.V. Saeman & Co., CIBC Wood Gundy Ventures, Inc., Cumberland Associates, Fleet Venture Resources, Inc., Space Systems/Loral and any Subsidiary of any of the foregoing . "Event of Default" has the meaning provided in Section 6.01. "Excess Proceeds" has the meaning provided in Section 4.11. "Exchange Act" means the United States Securities Exchange Act of 1934, as amended. "fair market value" means the price that would be paid in an arm's-length transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy, as determined in good faith by the Board of Directors, whose determination shall be conclusive if evidenced by a Board Resolution. "GAAP" means generally accepted accounting principles in the United States of America as in effect as of the Closing Date, including, without limitation, those 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 approved by a significant segment of the accounting profession. All ratios and computations contained or referred to in the Indentures shall be computed in conformity with GAAP applied on a consistent basis, except that calculations made for purposes of determining compliance with the terms of the covenants and with other provisions of the Indentures shall be made without giving effect to (i) the amortization of any expenses incurred in connection with the offering of the Notes and (ii) except as otherwise provided, the amortization of any amounts required or permitted by Accounting Principles Board Opinion No. 16 and 17. "Global Note" means the Global Notes, substantially in the form of Exhibit A hereto issued in accordance with Section 2.01 or 2.07(a) hereof. "Government Securities" means direct obligations of, obligations fully guaranteed by, or participations in pools consisting solely of 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 of America is pledged and which are not callable or redeemable at the option of the issuer thereof. "Guarantee" means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation of such other Person (whether arising by virtue of partnership arrangements or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise) or (ii) entered into for purposes of assuring in any other manner the obligee of such Indebtedness or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided that the term "Guarantee" shall not include endorsements for collection or deposit in the ordinary course of business. The term Guarantee used as a verb has a corresponding meaning. "Guarantors" means collectively, Orion Network Systems, Inc., Orion Satellite Corporation, International Private Satellite Partners, L.P., OrionNet, Inc., Orion Asia Pacific Corporation, Asia Pacific Space and Communications, Ltd., Orion Atlantic Europe, Inc. and OrionNet Finance Corporation, and all other Restricted Subsidiaries; provided that any Person that becomes an Unrestricted Subsidiary in compliance with Section 4.04 shall not be included in "Guarantors" after becoming an Unrestricted Subsidiary. "Holder" means the Person in whose name such Note is registered in the Register. "Incur" means, with respect to any Indebtedness, to incur, create, issue, assume, Guarantee or otherwise become liable for or with respect to, or become responsible for, the payment of, contingently or otherwise, such Indebtedness, including an "Incurrence" of Indebtedness by reason of a Person becoming a Restricted Subsidiary of the Company; provided that neither the accrual of interest nor the accretion of original issue discount shall be considered an Incurrence of Indebtedness. "Indebtedness" means, with respect to any Person at any date of determination (without duplication), (i) all indebtedness of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person in respect of letters of credit or other similar instruments (including reimbursement obligations with respect thereto, but excluding obligations with respect to letters of credit (including trade letters of credit) securing obligations (other than obligations described in clause (i) or (ii) above or clause (v), (vi) or (vii) below) entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if drawn upon, to the extent such drawing is reimbursed no later than the third Business Day following receipt by such Person of a demand for reimbursement), (iv) all obligations of such Person to pay the deferred and unpaid purchase price of property or services, which purchase price is due more than six months after the date of placing such property in service or taking delivery and title thereto or the completion of such services, except Trade Payables, (v) all obligations of such Person as lessee under Capitalized Leases, (vi) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided that the amount of such Indebtedness shall be the lesser of (A) the fair market value of such asset at such date of determination and (B) the amount of such Indebtedness, (vii) all Indebtedness of other Persons Guaranteed by such Person to the extent such Indebtedness is Guaranteed by such Person and (viii) to the extent not otherwise included in this definition, obligations under Currency Agreements and Interest Rate Agreements. The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and, with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation, provided (A) that the amount outstanding at any time of any Indebtedness issued with original issue discount is the original issue price of such Indebtedness, (B) Permitted Customer Advances, Prepayment Supports and any money borrowed, at the time of the Incurrence of any Indebtedness, in order to pre-fund the payment of interest on such Indebtedness, shall be deemed not to be "Indebtedness" and (C) Indebtedness shall not include any liability for federal, state, local or other taxes. "Indenture" means this Indenture as originally executed or as it may be amended or supplemented from time to time by one or more indentures supplemental to this Indenture entered into pursuant to the applicable provisions of this Indenture. "Independent Financial Advisor" means an investment banking firm, accounting firm or other financial advisory firm of national standing in the United States, as the case may be, (i) which, in the judgment of the Board of Directors, does not, and whose directors, officers or Affiliates do not, have a material direct or indirect financial interest in the Company (provided that ownership of Capital Stock of the Company constituting less than 2% of all outstanding Capital Stock of the Company shall not constitute a material direct or indirect financial interest), and (ii) which, in the judgment of the Board of Directors, is otherwise independent and qualified to perform the task for which it is to be engaged. "Indirect Participant" means a Person who holds an interest through a Participant. "Interest Payment Date" means each semiannual interest payment date of [ ] and [ ] of each year, commencing [ ] 2002. "Interest Rate Agreement" means any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or other similar agreement or arrangement designed to protect the Company or any of its Restricted Subsidiaries against fluctuations in interest rates in respect of Indebtedness to or under which the Company or any of its Restricted Subsidiaries is a party or a beneficiary on the date of this Indenture or becomes a party or a beneficiary hereafter; provided that the notional principal amount thereof does not exceed the principal amount of the Indebtedness of the Company and its Restricted Subsidiaries that bears interest at floating rates. "Investment" in any Person means any direct or indirect advance, loan or other extension of credit (including, without limitation, by way of Guarantee or similar arrangement; but excluding advances to customers in the ordinary course of business that are, in conformity with GAAP, recorded as accounts receivable on the balance sheet of the Company or its Restricted Subsidiaries) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition of Capital Stock, bonds, notes, debentures or other similar instruments issued by, such Person and shall include (i) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary and (ii) the fair market value of the Capital Stock (or any other Investment), held by the Company or any of its Restricted Subsidiaries, of (or in) any Person that has ceased to be a Restricted Subsidiary, including, without limitation, by reason of any transaction permitted by clause (iii) of Section 4.06 of this Indenture. For purposes of the definition of "Unrestricted Subsidiary" and Section 4.04 of this Indenture, (i) "Investment" shall include the fair market value of the assets (net of liabilities (other than liabilities to the Company or any of its Subsidiaries)) of any Restricted Subsidiary at the time that such Restricted Subsidiary is designated an Unrestricted Subsidiary, (ii) the fair market value of the assets (net of liabilities (other than liabilities to the Company or any of its Subsidiaries)) of any Unrestricted Subsidiary at the time that such Unrestricted Subsidiary is designated a Restricted Subsidiary shall be considered a reduction in outstanding Investments and (iii) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the time of such transfer. "Issue Date" means the original date of issuance of the Notes. "Junior Subordinated Convertible Debentures" means the 8.75% Convertible Junior Subordinated Debentures Due 2012 of the Company. "Kingston" means Kingston Communications International Limited. "Lien" means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including, without limitation, any conditional sale or other title retention agreement or lease in the nature thereof or any agreement to give any security interest). "Manager" means Morgan Stanley & Co. Incorporated, as manager for itself and the several other underwriters named in the Underwriting Agreement. "Matra" means Matra Marconi Space UK Limited, the parent Company of MMS Space Systems and a subsidiary of Matra Marconi Space N.V., and the manufacturer under the Orion 2 Satellite Contract. "Maturity Date" means the Stated Maturity of the Notes. "Merger" means the merger pursuant to an Agreement and Plan of Merger dated January 8, 1997, of Old ONSI with a Wholly Owned subsidiary of the Company. "Moody's" means Moody's Investors Service, Inc. and its successors. "Net Cash Proceeds" means, (a) with respect to any Asset Sale, the proceeds of such Asset Sale in the form of cash or cash equivalents, including payments in respect of deferred payment obligations (to the extent corresponding to the principal, but not interest, component thereof) when received in the form of cash or cash equivalents (except to the extent such obligations are financed or sold with recourse to the Company or any Restricted Subsidiary) and proceeds from the conversion of other property received when converted to cash or cash equivalents (including cash or cash equivalents that are deposited in escrow pending satisfaction of conditions specified in the relevant sale documents or that secures Prepayment Supports, in each case when such cash or cash equivalents are released to the Company or a Restricted Subsidiary), net of (i) brokerage commissions and other fees and expenses (including fees and expenses of counsel and investment bankers) related to such Asset Sale, (ii) provisions for all taxes (whether or not such taxes will actually be paid or are payable) as a result of such Asset Sale without regard to the consolidated results of operations of the Company and its Restricted Subsidiaries, taken as a whole, (iii) payments made to repay Indebtedness or any other obligation outstanding at the time of such Asset Sale that either (A) is secured by a Lien on the property or assets sold or (B) is required to be paid as a result of such sale and (iv) appropriate amounts to be provided by the Company or any Restricted Subsidiary of the Company as a reserve against any liabilities associated with such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale, all as determined in conformity with GAAP and (b) with respect to any issuance or sale of Capital Stock, the proceeds of such issuance or sale in the form of cash or cash equivalents, including payments in respect of deferred payment obligations (to the extent corresponding to the principal, but not interest, component thereof) when received in the form of cash or cash equivalents (except to the extent such obligations are financed or sold with recourse to the Company or any Restricted Subsidiary of the Company) and proceeds from the conversion of other property received when converted to cash or cash equivalents, net of attorney's fees, accountants' fees, underwriters' or placement agents' fees, discounts or commissions and brokerage, consultant and other fees incurred in connection with such issuance or sale and net of taxes paid or payable as a result thereof. "Note Guarantee" means the Guarantee by the Guarantors of the Company's obligations under the Notes and the Indenture, pursuant to the Indenture, and the Guarantee by any other Person that becomes a Guarantor of the Company's obligations under the Notes and the Indenture. "Notes" means the [___________]% Senior Discount Notes due 2007 of the Company issued pursuant to this Indenture. "Offer to Purchase" means an offer to purchase Notes by the Company from the Holders commenced by mailing a notice to the Trustee and each Holder stating: (i) the covenant pursuant to which the offer is being made and that all Notes validly tendered will be accepted for payment on a pro rata basis; (ii) the purchase price and the date of purchase (which shall be a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed) (the "Payment Date"); (iii) that any Note not tendered will continue to accrue interest pursuant to its terms; (iv) that, unless the Company defaults in the payment of the purchase price, any Note accepted for payment pursuant to the Offer to Purchase shall cease to accrue interest on and after the Payment Date; (v) that Holders electing to have a Note purchased pursuant to the Offer to Purchase will be required to surrender the Note, together with the form entitled "Option of the Holder to Elect Purchase" on the reverse side of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day immediately preceding the Payment Date; (vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the third Business Day immediately preceding the Payment Date, a telegram, facsimile transmission or letter setting forth the name of such Holder, the principal amount at maturity of Notes delivered for purchase and a statement that such Holder is withdrawing his election to have such Notes purchased; and (vii) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount at maturity to the unpurchased portion of the Notes surrendered; provided that each Note purchased and each new Note issued shall be in a principal amount at maturity of $1,000 or integral multiples thereof. On the Payment Date, the Company shall (i) accept for payment on a pro rata basis Notes or portions thereof tendered pursuant to an Offer to Purchase; (ii) deposit with the Paying Agent money sufficient to pay the purchase price of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee all Notes or portions thereof so accepted together with an Officers' Certificate specifying the Notes or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount equal to the purchase price, and the Trustee shall promptly authenticate and mail to such Holders a new Note equal in principal amount at maturity to any unpurchased portion of the Note surrendered; provided that each Note purchased and each new Note issued shall be in a principal amount at maturity of $1,000 or integral multiples thereof. The Company will publicly announce the results of an Offer to Purchase as soon as practicable after the Payment Date. The Trustee shall act as the Paying Agent for an Offer to Purchase. The Company will comply with 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 the event that the Company is required to repurchase Notes pursuant to an Offer to Purchase. "Old ONSI" means the Delaware corporation known as "Orion Network Systems, Inc." prior to the consummation of the Merger. "Orion Atlantic" means International Private Satellite Partners, L.P., a Delaware Limited Partnership. "Orion 1" means the high-power Ku-band communications satellite operated over the Atlantic Ocean by Orion. "Orion 2" and "Orion 3" mean, respectively, each of the first two satellites with respect to which the Company has a Successful Launch after the Closing Date, and any replacement for either of such satellites. "Orion 1 Satellite Contract" means the fixed price turnkey contract originally entered into between British Aerospace and Orion Atlantic for the design, construction, launch and delivery in orbit of Orion 1. "Orion 2 Satellite Contract" means the spacecraft purchase agreement between Orion and Matra Marconi Space for construction and launch of Orion 2. "Officer" means, with respect to the Company, (i) the Chairman of the Board, the Chief Executive Officer or any other Director of the Company or (ii) the Treasurer or any Assistant Treasurer, the Company Secretary or any Company Assistant Secretary. "Officers' Certificate" means a certificate signed by one Officer listed in clause (i) of the definition thereof and one Officer listed in clause (ii) of the definition thereof; provided, however, that any such certificate may be signed by any two of the Officers listed in clause (i) of the definition thereof in lieu of being signed by one Officer listed in clause (i) of the definition thereof and one Officer listed in clause (ii) of the definition thereof. Each Officers' Certificate (other than certificates provided pursuant to TIA Section 314(a)(4)) shall include the statements provided for in TIA Section 314(e), if applicable. "Opinion of Counsel" means a written opinion signed by legal counsel who may be an employee of or counsel to the Company. Each such Opinion of Counsel shall include the statements provided for in TIA Section 314(e), if applicable. "Participant" means, with respect to the Depositary, a Person who has an account therewith. "Paying Agent" has the meaning provided in Section 2.03, except that, for the purposes of Article Eight, the Paying Agent shall not be the Company or a Subsidiary of the Company or an Affiliate of any of them. The term "Paying Agent" includes any additional Paying Agent. "Payment Date" means with respect to any Offer to Purchase, the date of purchase of the Notes pursuant thereto, which shall be a Business Day no earlier than 30 days nor later than 60 days from the date a notice is mailed pursuant to such Offer to Purchase. "Permitted Customer Advances" means obligations of the Company or any Restricted Subsidiary to repay money received by the Company or such Restricted Subsidiary from customers as bona fide prepayment for services to be provided by, or purchases to be made from, the Company or such Restricted Subsidiary. "Permitted Investment" means (i) an Investment in the Company or a Restricted Subsidiary or a Person which will, upon the making of such Investment, become a Restricted Subsidiary or be merged or consolidated with or into or transfer or convey all or substantially all its assets to, the Company or a Restricted Subsidiary; provided that such person's primary business is related, ancillary or complementary to the businesses of the Company and its Restricted Subsidiaries on the date of such Investment; (ii) Temporary Cash Investments; (iii) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses in accordance with GAAP; and (iv) stock, obligations or securities received in satisfaction of judgments. "Permitted Liens" means (i) Liens for taxes, assessments, governmental charges or claims that are being contested in good faith by appropriate legal proceedings promptly instituted and diligently conducted and for which a reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made; (ii) statutory and common law Liens of landlords and carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or other similar Liens arising in the ordinary course of business and with respect to amounts not yet delinquent or being contested in good faith by appropriate legal proceedings promptly instituted and diligently conducted and for which a reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made; (iii) Liens incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security; (iv) Liens incurred or deposits made to secure the performance of tenders, bids, leases, statutory or regulatory obligations, bankers' acceptances, surety and appeal bonds, government contracts, performance and return-of-money bonds and other obligations of a similar nature incurred in the ordinary course of business (exclusive of obligations for the payment of borrowed money); (v) easements, rights-of-way, municipal and zoning ordinances and similar charges, encumbrances, title defects or other irregularities that do not materially interfere with the ordinary course of business of the Company or any of its Restricted Subsidiaries; (vi) Liens (including extensions and renewals thereof) upon real or personal property acquired after the Closing Date; provided that (a) such Lien is created solely for the purpose of securing Indebtedness Incurred, in accordance with Section 4.03 of this Indenture, (1) to finance the cost (including the cost of improvement, transportation, development and design, installation, integration or construction) of the item of property or assets subject thereto and such Lien is created prior to, at the time of or within six months after the later of the acquisition, the completion of construction or the commencement of full operation of such property or (2) to refinance any Indebtedness previously so secured, (b) the principal amount of the Indebtedness secured by such Lien does not exceed 100% of such cost (plus, in the case of any refinancing Indebtedness referred to in clause (vi)(a)(2) above, premiums, accrued interest, fees and expenses), (c) any Lien permitted by this clause shall not extend to or cover any property or assets other than such item of property or assets and any improvements on such item and (d) such Liens may not relate to Orion 2 or Orion 3; (vii) leases or subleases granted to others that do not materially interfere with the ordinary course of business of the Company and its Restricted Subsidiaries, taken as a whole; (viii) Liens encumbering property or assets under construction arising from progress or partial payments by a customer of the Company or its Restricted Subsidiaries relating to such property or assets; (ix) any interest or title of a lessor in the property subject to any Capitalized Lease or operating lease; (x) Liens arising from filing Uniform Commercial Code financing statements regarding leases; (xi) Liens on property of, or on shares of Capital Stock or Indebtedness of, any Person existing at the time such Person becomes, or becomes a part of, any Restricted Subsidiary; provided that such Liens do not extend to or cover any property or assets of the Company or any Restricted Subsidiary other than the property or assets acquired; (xii) Liens in favor of the Company or any Restricted Subsidiary; (xiii) Liens arising from the rendering of a final judgment or order against the Company or any Restricted Subsidiary of the Company that does not give rise to an Event of Default; (xiv) Liens securing reimbursement obligations with respect to letters of credit that encumber documents and other property relating to such letters of credit and the products and proceeds thereof; (xv) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; (xvi) Liens encumbering customary initial deposits and margin deposits, and other Liens that are within the general parameters customary in the industry and incurred in the ordinary course of business, in each case, securing Indebtedness under Interest Rate Agreements and Currency Agreements and forward contracts, options, future contracts, futures options or similar agreements or arrangements designed solely to protect the Company or any of its Restricted Subsidiaries from fluctuations in interest rates, currencies or the price of commodities; (xvii) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business in accordance with the past practices of the Company and its Restricted Subsidiaries prior to the Closing Date; (xviii) Liens on or sales of receivables; (xix) Liens (including Liens securing Prepayment Supports) on amounts of money or Temporary Cash Investments that each represent bona fide prepayments of at least $5 million on agreements for the long-term sale or lease of capacity on any satellite owned by the Company or a Restricted Subsidiary, but only to the extent that the amount of money or Temporary Cash Investments subject to any such Lien does not exceed the amount of such prepayment and reasonable interest thereon; (xx) Liens encumbering contracts between the Company or any Restricted Subsidiary and any third party customer relating to the use of a VSAT owned by the Company or any Restricted Subsidiary but only if, and so long as, the Indebtedness secured by any such Lien is also secured by a Lien permitted under clause (vi) of this definition encumbering such VSAT; and (xxi) Liens upon a satellite and components thereof during the period in which such satellite is being constructed, provided that (a) such Liens (1) are for the benefit of only the manufacturer of such satellite or components and (2) secure only the obligation of the Company or any Restricted Subsidiary to pay the purchase price for such satellite or components and (b) such Liens are actually released upon, or prior to, the completion of construction of such satellite and prior to the launch or commencement of full operations of such satellite. "Person" means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof. "Prepayment Support" means the reimbursement obligations of the Company or any Restricted Subsidiary in connection with any fully secured letter of credit or similar credit support issued by any third party in connection with the obligations of the Company or such Restricted Subsidiary to repay amounts received as bona fide prepayments of at least $5 million on agreements for the long-term sale or lease of capacity on a satellite owned by the Company or a Restricted Subsidiary. "Redemption Date," when used with respect to any Note to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. "Redemption Indebtedness" means Indebtedness of the Company which is (i) subordinated in right of payment of the Notes on terms substantially similar to the terms contained, on the Closing Date, in Article 14 of the Debenture Purchase Agreement (but excluding the terms contained, on the Closing Date, in Section 14.7 of the Debenture Purchase Agreement) and (ii) Incurred for the sole purpose of financing the redemption, repurchase or acquisition of shares of Series A Preferred Stock or Series B Preferred Stock. "Redemption Price," when used with respect to any Note to be redeemed, means the price at which such Note is to be redeemed pursuant to this Indenture. "Register" has the meaning provided in Section 2.03. "Registrar" has the meaning provided in Section 2.03. "Regular Record Date" for the interest payable on any Interest Payment Date means the [_______] or [_______] (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. "Related Person" means any holder (or any Affiliate of such holder) of 5% or more of any class of Capital Stock of the Company and any Affiliate of the Company or any Restricted Subsidiary. "Released Indebtedness" means, with respect to any Asset Sale, Indebtedness (i) which is owed by the Company or any Restricted Subsidiary (the "Obligors") prior to such Asset Sale, (ii) which is assumed by the purchaser or any affiliate thereof in connection with such Asset Sale and (iii) with respect to the Obligors receive written, unconditional releases from each creditor, no later than the closing date of such Asset Sale. "Responsible Officer," when used with respect to the Trustee, means the chairman or any vice chairman of the board of directors, the chairman or any vice chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, any assistant vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller 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 or her knowledge of and familiarity with the particular subject. "Restricted Payments" has the meaning provided in Section 4.04. "Restricted Subsidiary" means any Subsidiary of the Company other than an Unrestricted Subsidiary. "S&P" means Standard & Poor's Ratings Group and its successors. "Securities Act" means the United States Securities Act of 1933, as amended. "Separation Date" means the earliest of (i) six months after the date of issuance, (ii) such date as the Underwriters may, in their discretion, deem appropriate and (ii) in the event of an Offer to Purchase, the date the Company mails notice thereof to holders of the Notes. "Series A Preferred Stock" means the Company's Series A 8% Cumulative Redeemable Convertible Preferred Stock, par value $0.01 per share. "Series B Preferred Stock" means the Company's Series B 8% Cumulative Redeemable Convertible Preferred Stock, par value $0.01 per share. "Significant Subsidiary" means, at any date of determination, any Restricted Subsidiary that, together with its Subsidiaries, (i) for the most recent fiscal year of the Company, accounted for more than 10% of the consolidated revenues of the Company and its Restricted Subsidiaries or (ii) as of the end of such fiscal year, was the owner of more than 10% of the consolidated assets of the Company and its Restricted Subsidiaries, all as set forth on the most recently available consolidated financial statements of the Company for such fiscal year. "Specified Date" means any Redemption Date, any Payment Date for an Offer to Purchase pursuant to Section 4.11 or Section 4.13 or any date on which the Securities are due and payable after an Event of Default. "Stated Maturity" means, (i) with respect to any debt security, the date specified in such debt security as the fixed date on which the final installment of principal of such debt security is due and payable and (ii) with respect to any scheduled installment of principal of or interest on any debt security, the date specified in such debt security as the fixed date on which such installment is due and payable. "Subsidiary" means, with respect to any Person, any corporation, association or other business entity of which more than 50% of the voting power of the outstanding Voting Stock is owned, directly or indirectly, by such Person and one or more other Subsidiaries of such Person. "Subsidiary Guarantee" means the Guarantee of the Notes by any Subsidiary of the Company substantially in the form of Exhibit F hereto. "Successful Launch" means, with respect to any satellite, the placing into orbit of such satellite in its assigned orbital position with at least 40% of the transponder capacity fully operational. "Tax" means any tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and any other liabilities related thereto). "Taxing Authority" means any government or political subdivision or territory or possession of any government or any authority or agency therein or thereof having power to tax. "Temporary Cash Investment" means any of the following: (i) direct obligations of the United States of America or any agency thereof or obligations fully and unconditionally guaranteed by the United States of America or any agency thereof, (ii) time deposit accounts, certificates of deposit and money market deposits maturing within 180 days of the date of acquisition thereof issued by a bank or trust company which is organized under the laws of the United States of America, any state thereof or any foreign country recognized by the United States, and which bank or trust company has capital, surplus and undivided profits aggregating in excess of $50 million (or the foreign currency equivalent thereof) and has outstanding debt which is rated "A" (or such similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act) or any money-market fund sponsored by a registered broker dealer or mutual fund distributor, (iii) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (i) above entered into with a bank meeting the qualifications described in clause (ii) above, (iv) commercial paper, maturing not more than 90 days after the date of acquisition, issued by a corporation (other than an Affiliate of the Company) organized and in existence under the laws of the United States of America, any state thereof or any foreign country recognized by the United States of America with a rating at the time as of which any investment therein is made of "P-1" (or higher) according to Moody's or "A-1" (or higher) according to S&P, and (v) securities with maturities of six months or less from the date of acquisition issued or fully and unconditionally guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least "A" by S&P or Moody's. "TIA" or "Trust Indenture Act" means the United States Trust Indenture Act of 1939, as amended (15 U.S. Code ss.ss. 77aaa-77bbb), as in effect on the date this Indenture was executed, except as provided in Section 9.06. "Trade Payables" means, with respect to any Person, any accounts payable or any other indebtedness or monetary obligation to trade creditors created, assumed or Guaranteed by such Person or any of its Subsidiaries arising in the ordinary course of business in connection with the acquisition of goods or services. "Transaction Date" means, with respect to the Incurrence of any Indebtedness by the Company or any of its Restricted Subsidiaries, the date such Indebtedness is to be Incurred and, with respect to any Restricted Payment, the date such Restricted Payment is to be made. "TT&C Financing" means the agreement, dated November 23, 1993, between General Electric Capital Corporation and International Satellite Partners, L.P. ("Orion Atlantic"), relating to borrowings by Orion Atlantic. "Trustee" means the party named as such in the first paragraph of this Indenture until a successor replaces it in accordance with the provisions of Article Seven of this Indenture and thereafter means such successor. "Underwriters" has the meaning as set forth in the Underwriting Agreement. "Underwriting Agreement" means the Underwriting Agreement date [ ] 1997 between the Company and the Manager, for itself and the other Underwriters named therein. "Units" has the meaning provided in the recitals to this Indenture. "Unrestricted Subsidiary" means (i) any Subsidiary of the Company that at the time of determination shall be designated an Unrestricted Subsidiary by the Board of Directors in the manner provided below and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate any Restricted Subsidiary (including any newly acquired or newly formed Subsidiary of the Company) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property of, the Company or any Restricted Subsidiary; provided that (A) any Guarantee by the Company or any Restricted Subsidiary of any Indebtedness of the Subsidiary being so designated shall be deemed an "Incurrence" of such Indebtedness and an "Investment" by the Company or such Restricted Subsidiary (or both, if applicable) at the time of such designation; (B) either (I) the Subsidiary to be so designated has total assets of $1,000 or less or (II) if such Subsidiary has assets greater than $1,000, such designation would be permitted under Section 4.04 of this Indenture, and (C) if applicable, the Incurrence of Indebtedness and the Investment referred to in clause (A) of this proviso would be permitted under Section 4.03 and Section 4.04 of this Indenture. The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that immediately after giving effect to such designation (x) the Company could Incur $1.00 of additional Indebtedness under the first paragraph of Section 4.03 of this Indenture and (y) no Default or Event of Default shall have occurred and be continuing. Any such designation by the Board of Directors shall be evidenced to the Trustee by promptly filing with the Trustee a copy of the Board Resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing provisions. "Voting Stock" means, with respect to any Person, Capital Stock of any class or kind ordinarily having the power to vote for the election of directors, managers or other voting members of the governing body of such Person. "Warrants" means the warrants to purchase Common Stock of the Company issued as part of a unit with each of the Notes and the Senior Notes. "Wholly Owned" means, with respect to any Subsidiary of any Person, the ownership of all of the outstanding Capital Stock of such Subsidiary (other than any director's qualifying shares or Investments by foreign nationals mandated by applicable law) by such Person or one or more Wholly Owned Subsidiaries of such Person. SECTION 1.02. Incorporation by Reference of Trust Indenture Act . Whenever this Indenture refers to a provision of the TIA, such provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings: "indenture securities" means the Notes; "indenture security holder" means a Holder; "indenture to be qualified" means this Indenture; "indenture trustee" or "institutional trustee" means the Trustee; and "obligor" on the indenture securities means the Company or any other obligor on the Notes. All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by a rule of the Commission and not otherwise defined herein have the meanings assigned to them therein. SECTION 1.03. Rules of Construction . Unless the context otherwise requires: (i) a term has the meaning assigned to it; (ii) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (iii) "or" is not exclusive; (iv) words in the singular include the plural, and words in the plural include the singular; (v) provisions apply to successive events and transactions; (vi) "herein," "hereof" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; (vii) all references to Sections, Articles or Exhibits refer to Sections, Articles or Exhibits of this Indenture unless otherwise indicated; and (viii) references to sections of or rules under the Securities Act shall be deemed to include substitute, replacement or successor sections of the Securities Act or rules adopted by the Commission from time to time. ARTICLE TWO THE NOTES SECTION 2.01. Form and Dating . (a) Global Notes. The Notes offered and sold shall be issued in the form of one or more fully registered Notes in global form ("Global Notes"), which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Depositary at its New York corporate trust office, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Notes in definitive form ("Certificated Notes") shall not be issued except as provided in Section 2.07(a). The aggregate principal amount of each of the Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee as hereinafter provided. Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, redemptions and transfers of interests therein in accordance with the terms of this Indenture. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the principal amount of outstanding Notes represented thereby shall be made by the Trustee in accordance with instructions given by the Holder thereof as required by Section 2.07 hereof. Except as set forth in Section 2.07(a) hereof, the Global Notes may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by the nominee of the Depositary to the Depositary or another nominee of the Depositary or by the nominee of the Depositary or by the Depositary of any such nominee to a successor of the Depositary or a nominee of each successor. (b) Book-Entry Provisions. The Company shall execute and the Trustee shall, in accordance with this Section 2.01(b) and Section 2.02 hereof, authenticate and deliver the Global Notes to the Depositary. Upon receipt of each Global Note authenticated and delivered by the Trustee, the Depositary shall credit, on its internal book-entry registration and transfer system, its Participant's accounts with the respective interests owned by such Participants. Ownership of beneficial interests in the Global Notes shall be limited to Participants and Indirect Participants. So long as the Depositary is the registered holder of any Global Note, the Participants and Indirect Participants shall have no rights under this Indenture or under any Global Note with respect to such Global Note held on their behalf by the Depositary, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Note for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, interest on the Global Notes and for all other purposes. Notwithstanding the foregoing, nothing herein shall impair the operation of customary practices of the Depositary governing the exercise of the rights of an owner of a beneficial interest in any Global Note. No beneficial owner of an interest in any Global Note shall be able to transfer such interest except in accordance with the Applicable Procedures. (c) Note Forms. The provisions of the form of Global Note contained in Exhibits A hereto are incorporated herein by reference. (d) Dating. Each Note shall be dated the date of its authentication. SECTION 2.02. Execution and Authentication. Any director of the Company shall execute the Notes on behalf of the Company by manual or facsimile signature. The Company's common seal may be reproduced on the Notes and may be in facsimile form. If the director whose manual or facsimile signature is on a Note no longer holds that office at the time the Trustee authenticates the Note or at any time thereafter, the Note nevertheless shall be valid. A Note shall not be valid until an authorized officer of the Trustee manually signs the certificate of authentication on the Note. Such signature shall be conclusive evidence that the Note has been authenticated under this Indenture. The Trustee shall authenticate Notes for original issue in an aggregate principal amount at maturity not to exceed $[ ] upon receipt of a certificate signed by any Officer or attorney-in-fact therefor directing the Trustee to authenticate the Notes. The Global Notes shall be issuable only in fully registered form and the Certificated Notes shall be issuable only registered form. The Notes shall be issued without coupons and only in denominations of U.S. $1,000 principal amount at maturity or any integral multiple thereof. The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. Unless limited by the terms of such appointment, an authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. Such authenticating agent shall have the same rights as the Trustee in any dealings hereunder with the Company or with any of the Company's Affiliates. SECTION 2.03. Registrar and Paying Agent. The Company shall maintain an office or agency where Certificated Notes may be presented for registration of transfer or for exchange (the "Registrar"), an office or agency where Notes may be presented for payment (the "Paying Agent"), and an office or agency where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served, in each case, located in the Borough of Manhattan, The City of New York, State of New York. The Registrar shall keep a register containing the names and addresses of all Holders (the "Register") and of the transfer and exchange of Certificated Notes. Any notice to be given under this Indenture or under the Notes by the Trustee or the Company to Holders shall be mailed by first class mail to each Holder at its address as it appears at the time of such mailing in the Register. The Company may have one or more co-Registrars and one or more additional paying agents. The term "Paying Agent" includes any additional paying agent. Except as otherwise provided herein, the Company or any Subsidiary thereof may act as Paying Agent. The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Company will 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 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. The Company shall notify the Trustee of the name and address of any 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 Corporate Trust Office of the Trustee in the Borough of Manhattan located at the address set forth in Section 11.02 as Registrar, Paying Agent and agent for service of notices and demands in connection with the Notes and this Indenture. SECTION 2.04. Holders to Be Treated as Owners; Payments of Interest . (a) The Company, the Paying Agent, the Registrar, the Trustee and any agent of the Company, the Paying Agent, the Registrar or the Trustee may deem and treat each Holder of a Note as the absolute owner of such Note for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, and interest on such Note and for all other purposes. Neither the Company, the Paying Agent, the Registrar, the Trustee nor any agent of the Company, the Paying Agent, the Registrar or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such Person, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any Note. (b) The Holder of a Certificated Note at the close of business on the Regular Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date notwithstanding any transfer or exchange of such Certificated Note subsequent to the Regular Record Date and prior to such Interest Payment Date, except if and to the extent the Company shall default in the payment of the interest due on such Interest Payment Date, in which case such defaulted interest shall be paid in accordance with Section 2.13; provided that, in the event of an exchange of a Certificated Note for a beneficial interest in any Global Note subsequent to a Regular Record Date or any special record date and prior to or on the related Interest Payment Date, any payment of interest payable on such payment date with respect to any such Certificated Note shall be made to the Person in whose name such Certificated Note was registered on such record date. Payments of interest on the Global Notes will be made to the Holder of the Global Note on each Interest Payment Date; provided that, in the event of an exchange of all or a portion of the Global Note for Certificated Notes subsequent to the Regular Record Date or any special record date and prior to or on the related Interest Payment Date or other payment date under Section 2.13, any payment of interest payable on such payment date with respect to the Certificated Note shall be made to the Holder of the Global Note. (c) The Trustee shall pay interest to the Depositary, with respect to any Global Note the Depositary, in accordance with instructions received from the Depositary at least five business days before the applicable Interest Payment Date. SECTION 2.05. Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that such Paying Agent will hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal of or interest on the Notes (whether such money has been paid to it by the Company or any other obligor on the Notes), and the Company and the Paying Agent shall notify the Trustee of any default by the Company (or any other obligor on the Notes) in making any such payment. Unless the Company or any Subsidiary is the Paying Agent, money held in trust by the Paying Agent need not be segregated except as required by law and in no event shall the Paying Agent be liable for any interest on any money received by it hereunder. The Company at any time may require the Paying Agent to pay all money held by it to the Trustee and account for any funds disbursed and the Trustee may at any time during the continuance of any Event of Default specified in Section 6.01(a) or (b), upon written request to the Paying Agent, require such Paying Agent to pay forthwith all money so held by it to the Trustee and to account for any funds disbursed. Upon making such payment, the Paying Agent shall have no further liability for the money delivered to the Trustee. If the Company or any Subsidiary of the Company acts as Paying Agent it shall, on or before each due date of the principal of or interest on the Notes, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act. SECTION 2.06. Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it from the Registrar of the names and addresses of the Holders of Notes. If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least five 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 the Holders of Notes, if any. SECTION 2.07. Transfer and Exchange. (a) Transfer and Exchange of Global Notes. Except as provided below, transfers of the Global Notes shall be limited to transfers of such Global Notes in whole, but not in part, to the Depositary. Certificated Notes shall be transferred to all beneficial owners in exchange for their beneficial interests in the Global Notes if (i) the Depositary or Company delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary for the Global Notes or at any time ceases to be a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Company within 120 days after the date of such notice from the Depositary; or (ii) the Company in its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged for Certificated Notes and delivers a written notice to such effect to the Trustee. (i) In connection with any transfer of a portion of the beneficial interests in the Global Notes to beneficial owners pursuant to paragraph (a) above, the Registrar shall reflect on its books and records the date and a decrease in the principal amount of such Global Notes in an amount equal to the principal amount of the beneficial interest in such Global Notes to be transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Certificated Notes of like tenor and amount. (ii) In connection with the transfer of an entire Global Note to beneficial owners pursuant to paragraph (a) above, the Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in the Global Note an equal aggregate principal amount of Certificated Notes of authorized denominations. (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with this Indenture and Applicable Procedures of the Depositary therefor. (c) Transfer and Exchange of Certificated Notes. When Certificated Notes are presented by a Holder to the Registrar with a request to register the transfer of the Certificated Notes or to exchange such Certificated Notes for an equal principal amount of Certificated Notes of other authorized denominations, the Registrar shall register the transfer or make the exchange as requested only if the Certificated Notes are presented or surrendered for registration of transfer or exchange and are endorsed or accompanied by a written instrument of transfer in form satisfactory to the Registrar duly executed by such Holder or by his attorney, duly authorized in writing and upon receipt of such certificates. (d) Legends. (i) Original Issue Discount Legend. Each Note shall bear a legend in substantially the following form: "FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT; FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE ISSUE PRICE IS $[ ], THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $[ ]. FOR ADDITIONAL INFORMATION REGARDING ORIGINAL ISSUE DISCOUNT, PLEASE CONTACT ORION NEWCO SERVICES, 2440 RESEARCH BOULEVARD, SUITE 40, ROCKVILLE, MARYLAND, 20850." (ii) Global Note Legend. Each Global Note shall bear a legend in substantially the following form: "THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (III) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF ORION NEWCO SERVICES, INC." (iii) Unit Legend. Each Note issued prior to the Separation Date shall bear the following legend (the "Unit Legend") on the face thereof: "THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF $[ ] PRINCIPAL AMOUNT OF THE NOTES AND ONE WARRANT (EACH, A "WARRANT" AND COLLECTIVELY, THE "WARRANTS") INITIALLY ENTITLING THE HOLDER THEREOF TO PURCHASE [ ] SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE, (THE "COMMON STOCK")." (e) General Provisions Relating to All Transfers and Exchanges. (i) To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Global Notes and Certificated Notes upon the Company's order or at the Registrar's request. (i) No service charge shall be made to a Holder for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any stamp or transfer tax or similar governmental charge payable in connection therewith (other than any such stamp or transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.11, 3.07, 4.11, 4.13 and 9.04 hereof). (ii) All Global Notes and Certificated Notes issued upon any registration of transfer or exchange of Global Notes or Certificated Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Certificated Notes surrendered upon such registration of transfer or exchange. (iii) The Company shall not be required (A) to issue, to register the transfer of or to exchange Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.03 hereof and ending at the close of business on the day of selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part or (C) to register the transfer of or to exchange a Note between a record date and the next succeeding Interest Payment Date. (iv) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and neither the Trustee, any Agent nor the Company shall be affected by notice to the contrary. (v) The Trustee shall authenticate Global Notes and Certificated Notes in accordance with the provisions of Section 2.02 hereof. SECTION 2.08. Replacement Notes . If a mutilated Certificated Note is surrendered to the Registrar or the Trustee, if a mutilated Global Note is surrendered to the Company or the Trustee or if the Company and the Trustee receive evidence to their satisfaction that any Note has been lost, destroyed or stolen, the Company shall issue and the Trustee shall authenticate a replacement Note in such form as the Notes mutilated, lost, destroyed or wrongfully taken if (i) in the case of a lost, destroyed or stolen Note, the Holder of such Note furnishes to the Company, the Trustee and, in the case of a Certificated Note, the Registrar, evidence reasonably acceptable to them of the ownership and the destruction, loss or theft of such Note and (ii) an indemnity bond shall be posted by the Holder requesting replacement, sufficient in the judgment of each to protect the Company, the Registrar (in the case of a Certificated Note ), the Trustee or any Agent from any loss that any of them may suffer if such Note is replaced. Prior to the issuance of any such replacement Note, the Trustee shall notify the Company of any request therefor. The Company may charge such Holder for the Company's out-of-pocket expenses in replacing such Note and the Trustee may charge the Holder for the Trustee's expenses in replacing such Note. Every replacement Note shall constitute an additional obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionally with all other Notes issued hereunder. The provisions of this Section 2.08 are exclusive and shall preclude (to the extent permitted by applicable law) all other rights and remedies with respect to the replacement of mutilated, lost, destroyed or stolen Notes. SECTION 2.09. Outstanding Notes . The Notes outstanding at any time are all Notes that have been authenticated by the Trustee except for (a) those cancelled by it, (b) those delivered to it for cancellation, (c) to the extent set forth in Sections 8.01 and 8.02, on or after the date on which the conditions set forth in Section 8.01 or 8.02 have been satisfied, those Notes theretofore authenticated and delivered by the Trustee hereunder and (d) those described in this Section 2.09 as not outstanding. Subject to Section 2.10, a Note does not cease to be outstanding because the Company or one of its Affiliates holds the Note. If a Note is replaced pursuant to Section 2.08, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser in whose hands such Note is a legal, valid and binding obligation of the Company. If the principal amount of any Note is considered to be paid under Section 4.01, it ceases to be outstanding and interest thereon shall cease to accrue. If the Paying Agent holds, in its capacity as such, on the Stated Maturity of a Note, on any Redemption Date or on any Payment Date, money sufficient to pay all accrued interest and Liquidated Damages and principal with respect to such Notes payable on that date and is not prohibited from paying such money to the Holders thereof pursuant to the terms of this Indenture, then on and after that date such Notes cease to be outstanding and interest on them ceases to accrue. SECTION 2.10. Treasury Notes . In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent or any amendment, modification or other change to this Indenture, Notes owned by the Company or an Affiliate of the Company shall be disregarded as though they were not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent or any amendment, modification or other change to this Indenture, only Notes that the Trustee actually knows are so owned shall be so disregarded. SECTION 2.11. Temporary Notes . Until definitive Notes are prepared and ready for delivery, the Company may prepare and the Trustee shall, upon receipt of a Company Order, authenticate temporary Notes. Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes. Until such exchange, temporary Notes shall be entitled to the same rights, benefits and privileges as definitive Notes. SECTION 2.12. Cancellation . All Notes surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Notes previously authenticated hereunder which the Company has not issued and sold, and all Notes so delivered shall be promptly cancelled by the Trustee. If the Company shall so acquire any of the Notes, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Notes unless and until the same are surrendered to the Trustee for cancellation. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section 2.12, except as expressly permitted by this Indenture. All cancelled Notes held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures and certification of their disposal delivered to the Company unless by Company Order the Company shall direct that cancelled Notes be returned to it. SECTION 2.13. Defaulted Interest. If the Company defaults on a payment of interest on the Notes, it shall pay the defaulted interest plus (to the extent permitted by law) any interest payable on the defaulted interest in accordance with the terms hereof, to (a) the Persons who are Holders of Certificated Notes, if any, on a subsequent special record date, which date shall be at least five Business Days prior to the payment date for such defaulted interest, and (b) if any Global Notes are outstanding on such payment date, to the Holder of the Global Notes on such payment date. The Company shall fix such special record date and payment date in a manner reasonably satisfactory to the Trustee. At least 15 days before such special record date, the Company shall mail to each Holder of Certificated Notes, if any, and if the Global Notes are still outstanding, to the Holder thereof and the Depositary, a notice that states the special record date, the payment date and the amount of defaulted interest and interest payable on such defaulted interest to be paid. SECTION 2.14. CUSIP, CINS or ISIN Number. The Company in issuing the Notes may use a "CUSIP," "CINS" or "ISIN" number, and if so, such CUSIP, CINS or ISIN number shall be included in notices of redemption, repurchase or exchange as a convenience to Holders, provided, however, that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP, CINS or ISIN number printed in the notice or on the Notes, and that reliance may be placed only on the other identification numbers printed on the Notes; and provided, further that failure to use CUSIP, CINS or ISIN numbers in any notice of redemption, repurchase or exchange shall not affect the validity or sufficiency of such notice. The Company will promptly notify the Trustee of any change in the CUSIP, CINS or ISIN number. SECTION 2.15. Deposit of Moneys . Prior to 12:00 noon, New York City time, on each Interest Payment Date, at the Stated Maturity of the Notes, on each Redemption Date, on each Payment Date and on the Business Day immediately following any acceleration of the Notes pursuant to Section 6.02, the Company shall deposit with the Paying Agent in immediately available funds money (in United States dollars) sufficient to make cash payments, if any, due on such Interest Payment Date, Stated Maturity, Redemption Date, Payment Date or Business Day, as the case may be, in a timely manner which permits the Trustee to remit payment to the Holders on such Interest Payment Date, Stated Maturity, Redemption Date, Payment Date or Business Day, as the case may be. ARTICLE THREE REDEMPTION SECTION 3.01. Right of Redemption . The Notes will be redeemable, at the Company's option, in whole or in part, at any time or from time to time, on or after [ ], 2002 and prior to maturity, upon not less than 30 nor more than 60 days' prior notice mailed by first class mail to each Holders' last address as it appears in the Note Register, at the following Redemption Prices (expressed in percentages of principal amount at maturity), plus accrued and unpaid interest, if any, to the Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date that is on or prior to the Redemption Date to receive interest due on an Interest Payment Date), if redeemed during the 12-month period commencing [ ], of the years set forth below: Year Redemption Price 2002 [_____]% 2003 [_____]% 2004 and thereafter 100.000% SECTION 3.02. Notices to Trustee . If the Company elects to redeem Notes pursuant to Section 3.01, it shall notify the Trustee in writing of (i) the clause of the Indenture pursuant to which the redemption shall occur, (ii) the Redemption Date, (iii) the principal amount at Stated Maturity of Notes to be redeemed plus interest accrued thereon, if any, to the Redemption Date and (iv) the Redemption Price. The Company shall give each notice provided for in this Section 3.02 in an Officers' Certificate at least 15 days before mailing the notice to Holders referred to in Section 3.01. SECTION 3.03. Selection of Notes to Be Redeemed . In the case of any partial redemption, selection of the Notes for redemption will be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not listed on a national securities exchange, on a pro rata basis, by lot or by such other method as the Trustee in its sole discretion shall deem to be fair and appropriate; provided that no Note of $1,000 in principal amount at maturity or less shall be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption relating to such Note shall state the portion of the principal amount at maturity thereof to be redeemed. A new Note in principal amount at maturity equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Note. SECTION 3.04. Notice of Redemption . With respect to any redemption of Notes pursuant to Section 3.01, at least 30 days but not more than 60 days before a Redemption Date, the Company shall mail a notice of redemption by first class mail to each Holder whose Notes are to be redeemed at such Holder's registered address. The notice shall identify the Notes to be redeemed and shall state: (a) the Redemption Date; (b) the Redemption Price; (c) the name and address of the Paying Agent; (d) that Notes called for redemption must be surrendered to the Paying Agent in order to collect the Redemption Price; (e) the paragraph of the Notes and/or the Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; (f) that, unless the Company defaults in making the redemption payment, interest on Notes called for redemption ceases to accrue on and after the Redemption Date and the only remaining right of the Holders is to receive payment of the Redemption Price plus accrued interest to the Redemption Date upon surrender of the Notes to the Paying Agent; (g) that, if any Note is being redeemed in part, the portion of the principal amount (equal to $1,000 in principal amount or any integral multiple thereof) of such Note to be redeemed and that, on and after the Redemption Date, upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion thereof will be reissued; and (h) that, if any Note contains a CUSIP, CINS, ISIN or other identification number as provided in Section 2.14, no representation is being made as to the correctness of the CUSIP, CINS, ISIN or other identification number either as printed on the Notes or as contained in the notice of redemption and that reliance may be placed only on the other identification numbers printed on the Notes. At the Company's request contained in a Company Order (which request may be revoked by the Company at any time prior to the time at which the Trustee shall have given such notice to the Holders), made to the Trustee at least 15 days before mailing the notice to Holders referred to in Section 3.01, the Trustee shall give such notice of redemption in the name and at the expense of the Company. If, however, the Company gives such notice to the Holders, the Company shall concurrently deliver to the Trustee an Officers' Certificate stating that such notice has been given. Notice of redemption shall be deemed to be given when mailed, whether or not the Holder receives the notice. In any event, failure to give such notice, or any defect therein, shall not affect the validity of the proceedings for the redemption of Notes held by Holders to whom such notice was properly given. SECTION 3.05. Deposit of Redemption Price . On or prior to any Redemption Date, the Company shall deposit with the Paying Agent (or, if the Company is acting as its own Paying Agent, shall segregate and hold in trust as provided in section 2.05) money sufficient to pay the Redemption Price of, and accrued and unpaid interest on all Notes to be redeemed on that date other than Notes or portions thereof called for redemption on that date that have been delivered by the Company to the Trustee for cancellation. SECTION 3.06. Payment of Notes Called for Redemption . If notice of redemption has been given to Holders in the manner provided above, the Notes or portion of Notes specified in such notice to be redeemed shall become irrevocably due and payable on the Redemption Date at the Redemption Price stated therein, together with accrued interest to such Redemption Date, and on and after any such Redemption Date (unless the Company shall default in the payment of Notes to be redeemed on such date at the Redemption Price, plus accrued interest to the Redemption Date, in which case the principal, until paid, shall bear interest from the Redemption Date at the rate prescribed in the Notes), such Notes shall cease to accrue interest. Upon surrender of any Note for redemption in accordance with a notice of redemption, such Note shall be paid and redeemed by the Company at the Redemption Price, plus accrued interest to the Redemption Date, provided that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders registered as such at the close of business on the relevant Regular Record Date. SECTION 3.07. Notes Redeemed in Part . Upon cancellation of any Note that is redeemed in part, the Company shall issue and the Trustee shall authenticate and deliver to the Holder a new Note equal in principal amount to the unredeemed portion of such surrendered Note. ARTICLE FOUR COVENANTS SECTION 4.01. Payment of Notes . The Company shall pay the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes and this Indenture. An installment of principal, premium or interest shall be considered paid on the date due if the Trustee or Paying Agent (other than the Company, a Subsidiary of the Company, or any Affiliate of any of them) holds as of 10:00AM New York City time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay the installment. SECTION 4.02. Issuances of Guarantees by New Restricted Subsidiaries. The Company will provide to the Trustee, on the date that any Person becomes a Restricted Subsidiary, a supplemental indenture to this Indenture, executed by such new Restricted Subsidiary, providing for a full and unconditional guarantee on a senior basis by such new Restricted Subsidiary of the Company's obligations under the Notes and this Indenture; provided that, in the case of any new Restricted Subsidiary that becomes a Restricted Subsidiary through the acquisition of a majority of its voting Capital Stock by the Company or any other Restricted Subsidiary, such guarantee may be subordinated to the extent required by the obligations of such new Restricted Subsidiary existing on the date of such acquisition that were not incurred in contemplation of such acquisition. SECTION 4.03. Limitation on Indebtedness . (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness (other than the Notes and Indebtedness existing on the Closing Date); provided that the Company may Incur Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Consolidated Leverage Ratio would be greater than zero and less than 6 to 1. Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of the following: (i) Indebtedness outstanding at any time that is (A) Incurred to finance the purchase, construction, launch, insurance for and other costs with respect to Orion 2 and Orion 3 or (B) in an aggregate principal amount not to exceed (1) until Orion 2 or Orion 3 has been successfully delivered in orbit, $50 million, (2) after the first of Orion 2 or Orion 3 has been successfully delivered in orbit, $100 million and (3) after the second of Orion 2 or Orion 3 has been successfully delivered in orbit, $150 million, in each case under this clause (i)(B); (ii) Indebtedness owed (A) to the Company or (B) to any of its Restricted Subsidiaries; provided that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or another Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (ii); (iii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness, other than Indebtedness Incurred under clause (i)(B), (ii), (iv), (vi) or (viii) of this paragraph, and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to refinance or refund the Notes, the Note Guarantee or Indebtedness that is pari passu with, or subordinated in right of payment to, the Notes shall only be permitted under this clause (iii) if (A) in case the Notes or the Note Guarantee are refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes or the Note Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes or the Note Guarantee, as the case may be, (B) in case the Indebtedness to be refinanced is subordinated in right of payment to the Notes or the Note Guarantee, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes or the Note Guarantee at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes or the Note Guarantee, as the case may be, and (C) such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded; (iv) Indebtedness (A) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements (a) are designed solely to protect the Company or its Subsidiaries against fluctuations in foreign currency exchange rates or interest rates and (b) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder and (C) arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary of the Company for the purpose of financing such acquisition), in a principal amount not to exceed the gross proceeds actually received by the Company or any Restricted Subsidiary in connection with such disposition; (v) Indebtedness of the Company, to the extent the net proceeds thereof are promptly (A) used to purchase Notes tendered in an Offer to Purchase made as a result of a Change in Control or (B) deposited to defease the Notes as described in Section 8.02 of this Indenture; (vi) Guarantees of the Notes and Guarantees of Indebtedness of the Company by any Restricted Subsidiary provided the Guarantee of such Indebtedness is permitted by and made in accordance with Section 4.07 of this Indenture; (vii) Indebtedness Incurred to finance the cost (including the cost of design, development, construction, installation, improvement, transportation or integration) of equipment (other than Orion 2 and Orion 3) or inventory acquired by the Company or a Restricted Subsidiary after the Closing Date; (viii) Indebtedness of the Company not to exceed, at any one time outstanding, two times the Net Cash Proceeds received by the Company after the Closing Date from the issuance and sale of its Capital Stock (other than Disqualified Stock) to a Person that is not a Subsidiary of the Company (less the amount of such proceeds applied as provided in clause (C)(2) of the first paragraph or clause (iii) or (iv)of the second paragraph of Section 4.04 of this Indenture); provided that such Indebtedness does not mature prior to the Stated Maturity of the Notes and has an Average Life longer than the Notes; and (ix) Redemption Indebtedness. (b) Notwithstanding any other provision of this Section covenant, the maximum amount of Indebtedness that the Company or a Restricted Subsidiary may incur pursuant to this Section 4.03 shall not be deemed to be exceeded, with respect to any outstanding Indebtedness, due solely to the result of fluctuations in the exchange rates of currencies. (c) For purposes of determining any particular amount of Indebtedness under this Section 4.03, (1) Guarantees, Liens or obligations with respect to letters of credit supporting Indebtedness otherwise included in the determination of such particular amount shall not be included and (2) any Liens granted pursuant to the equal and ratable provisions referred to in Section 4.09 of this Indenture shall not be treated as Indebtedness. For purposes of determining compliance with this Section 4.03, in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in the above clauses, the Company, in its sole discretion, shall classify such item of Indebtedness and only be required to include the amount and type of such Indebtedness in one of such clauses. (d) In the event that the Company or any Restricted Subsidiary shall repay any Indebtedness (other than the Notes) pursuant to clause (i)(A) of Section 4.11 of this Indenture, the aggregate amount of Indebtedness which may otherwise be Incurred under clauses (i)(B) and (viii) of the second paragraph of paragraph (a) of this Section 4.03 shall be reduced by the amount of such repayment. The Company shall designate how much of such reduction shall be applied to each such clause. SECTION 4.04. Limitation on Restricted Payments . The Company will not, and will not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro rata dividends or distributions on Common Stock of Restricted Subsidiaries held by minority stockholders, provided that such dividends do not in the aggregate exceed the minority stockholders' pro rata share of such Restricted Subsidiaries' net income from the first day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other than the Company or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, any Guarantor or an Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by Persons other than the Company and its Wholly Owned Subsidiaries, (iii) make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Company that is subordinated in right of payment to the Notes or of any Guarantor that is subordinated to the Note Guarantee (other than, in each case, the purchase, repurchase or the acquisition of Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in any case due within one year of the date of acquisition) or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (i) through (iv) being collectively "Restricted Payments") if, at the time of, and after giving effect to, the proposed Restricted Payment: (A) a Default or Event of Default shall have occurred and be continuing, (B) except with respect to Investments and dividends on the Common Stock of any Guarantor, the Company could not Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03 or (C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made after the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Company or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on the first day of the fiscal quarter immediately following the Closing Date and ending on the last day of the last fiscal quarter preceding the Transaction Date for which reports have been filed pursuant to plus (2) the aggregate Net Cash Proceeds received by the Company or any Guarantor after the Closing Date from the issuance and sale permitted by the Indentures of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company or any Guarantor or from the issuance to a Person who is not a Subsidiary of the Company or any Guarantor of any options, warrants or other rights to acquire Capital Stock of the Company (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the Notes), in each case except to the extent such Net Cash Proceeds are used to Incur Indebtedness pursuant to clause (viii) of the second paragraph under Section 4.03, plus (3) an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of "Investments"), not to exceed, in each case, the amount of Investments previously made by the Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary. The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with the foregoing paragraph; (ii) the redemption, repurchase, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in right of payment to the Notes including premium, if any, and accrued and unpaid interest, with the proceeds of, or in exchange for, Indebtedness Incurred under clause (iii) of the second paragraph of part (a) of Section 4.03; (iii) the repurchase, redemption or other acquisition of Capital Stock of the Company (or options, warrants or other rights to acquire such Capital Stock) in exchange for, or out of the proceeds of a substantially concurrent offering of, shares of Capital Stock (other than Disqualified Stock) of the Company; (iv) the making of any principal payment or the repurchase, redemption, retirement, defeasance or other acquisition for value of Indebtedness of the Company which is subordinated in right of payment to the Notes in exchange for, or out of the proceeds of, a substantially concurrent offering of, shares of the Capital Stock of the Company (other than Disqualified Stock); (v) payments or distributions, to dissenting stockholders pursuant to applicable law, pursuant to or in connection with a consolidation, merger or transfer of assets that complies with the provisions of the Indentures applicable to mergers, consolidations and transfers of all or substantially all of the property and assets of the Company; (vi) the repurchase, redemption or other acquisition of outstanding shares of Series A Preferred Stock or Series B Preferred Stock, which shares either (A) were outstanding on the Closing Date or (B) are shares of Series A Preferred Stock which were issued pursuant to the exercise of options that were outstanding on the Closing Date, in exchange for, or out of the proceeds of, an issuance of Indebtedness Incurred under clause (ix) of the second paragraph of part (a) of Section 4.03; or (vii) Investments to the extent the amount invested consists solely of Net Cash Proceeds received by the Company or any Guarantor, within six months of the making of such Investment, from the issuance and sale permitted by the Indentures of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company or any Guarantor; (viii) Investments, the sum of which does not exceed $5 million at any one time outstanding; (ix) cash payments, not to exceed $3 million, in lieu of the issuance of fractional shares of Capital Stock of the Company upon the exercise of the Warrants or any other warrants to buy, or upon the conversion of any securities convertible into, Capital Stock of the Company; and (x) a one-time cash payment of up to $3.0 million to the holders of the Junior Subordinated Convertible Debentures in connection with the disposition of the Junior Subordinated Convertible Debentures in an underwritten public offering pursuant to Section 11.4 of the Debenture Purchase Agreement; provided that, except in the case of clauses (i) and (iii), no Default or Event of Default shall have occurred and be continuing or occur as a consequence of the actions or payments set forth therein. Each Restricted Payment permitted pursuant to the preceding paragraph (other than the Restricted Payment referred to in clause (ii) thereof and an exchange of Capital Stock for Capital Stock or Indebtedness referred to in clause (iii) or (iv) thereof) and the Net Cash Proceeds from any issuance of Capital Stock referred to in clauses (iii) and (iv) shall be included in calculating whether the conditions of clause (C) of the first paragraph of this Section 4.04 have been met with respect to any subsequent Restricted Payments. In the event the proceeds of an issuance of Capital Stock of the Company are used for the redemption, repurchase or other acquisition of the Notes, or Indebtedness that is pari passu with the Notes, then the Net Cash Proceeds of such issuance shall be included in clause (C) of the first paragraph of this Section 4.04 only to the extent such proceeds are not, within six months, used for such redemption, repurchase or other acquisition of Indebtedness. Any Restricted Payments made other than in cash shall be valued at fair market value. The amount of any Investment "outstanding" at any time shall be deemed to be equal to the amount of such Investment on the date made, less the return of capital to the Company and its Restricted Subsidiaries with respect to such Investment (up to the amount of such Investment on the date made). SECTION 4.05. Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries . The Company will not, and will not permit any Restricted Subsidiary to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to (i) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Company or any other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any other Restricted Subsidiary, (iii) make loans or advances to the Company or any other Restricted Subsidiary or (iv) transfer any of its property or assets to the Company or any other Restricted Subsidiary. The foregoing provisions shall not restrict any encumbrances or restrictions: (i) existing on the Closing Date in this Indenture or any other agreements in effect on the Closing Date, and any extensions, refinancings, renewals or replacements of such agreements; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced; (ii) existing under or by reason of applicable law; (iii) existing with respect to any Person or the property or assets of such Person acquired by the Company or any Restricted Subsidiary and existing at the time of such acquisition, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired; (iv) in the case of clause (iv) of the first paragraph of this Section 4.05, (A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset, (B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Company or any Restricted Subsidiary in any manner material to the Company or any Restricted Subsidiary; or (v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary. Nothing contained in this Section 4.05 shall prevent the Company or any Restricted Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of the Company or any of its Restricted Subsidiaries that secure Indebtedness of the Company or any of its Restricted Subsidiaries. SECTION 4.06. Limitation on the Issuance of Capital Stock of Restricted Subsidiaries . The Company will not sell, and will not permit any Restricted Subsidiary, directly or indirectly, to issue or sell, any shares of Capital Stock of a Restricted Subsidiary (including options, warrants or other rights to purchase shares of such Capital Stock) except: (i) to the Company or a Wholly Owned Restricted Subsidiary; (ii) issuances of director's qualifying shares or sales to foreign nationals of shares of Capital Stock of foreign Restricted Subsidiaries, to the extent required by applicable law; (iii) if, immediately after giving effect to such issuance or sale, such Restricted Subsidiary would no longer constitute a Restricted Subsidiary, provided any Investment in such Person remaining after giving effect to such issuance or sale would have been permitted to be made under Section 4.04, if made on the date of such issuance or sale; and (iv) issuances or sales of Common Stock of any Restricted Subsidiary, the Net Cash Proceeds of which are promptly applied pursuant to clause (A) or (B) of Section 4.11 of this Indenture; provided that at no time may a Restricted Subsidiary, the Common Stock of which has been issued or sold pursuant to this clause (iv), be the owner of a satellite. SECTION 4.07. Limitation on Issuances of Guarantees by Restricted Subsidiaries . The Company will not permit any Restricted Subsidiary, directly or indirectly, to Guarantee any Indebtedness of the Company which is pari passu with or subordinate in right of payment to the Notes ("Guaranteed Indebtedness"), unless such Restricted Subsidiary waives and will not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Company or any other Restricted Subsidiary as a result of any payment by such Restricted Subsidiary under its Subsidiary Guarantee; provided that this paragraph shall not be applicable to any Guarantee of any Restricted Subsidiary that existed at the time such Person became a Restricted Subsidiary and was not Incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary. If the Guaranteed Indebtedness is (A) pari passu with the Notes or the Note Guarantee, then the Guarantee of such Guaranteed Indebtedness shall be pari passu with, or subordinated to, the Subsidiary Guarantee or (B) subordinated to the Notes or the Note Guarantee, then the Guarantee of such Guaranteed Indebtedness shall be subordinated to the Subsidiary Guarantee at least to the extent that the Guaranteed Indebtedness is subordinated to the Notes or the Note Guarantee, as the case may be. SECTION 4.08. Limitation on Transactions with Shareholders and Affiliates . The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, enter into, renew or extend any transaction (including, without limitation, the purchase, sale, lease or exchange of property or assets, or the rendering of any service) with any holder (or any Affiliate of such holder) of 5% or more of any class of Capital Stock of the Company or with any Affiliate of the Company or any Restricted Subsidiary, except upon fair and reasonable terms no less favorable to the Company or such Restricted Subsidiary than could be obtained, at the time of such transaction or, if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefor, in a comparable arm's-length transaction with a Person that is not such a holder or an Affiliate. The foregoing limitation does not limit, and shall not apply to (i) transactions (A) approved by a majority of the disinterested members of the Board of Directors or (B) for which the Company or a Restricted Subsidiary delivers to the Trustees a written opinion of a nationally recognized investment banking firm stating that the transaction is fair to the Company or such Restricted Subsidiary from a financial point of view, (ii) any transaction solely between the Company and any of its Wholly Owned Restricted Subsidiaries or solely between Wholly Owned Restricted Subsidiaries, (iii) the payment of reasonable and customary regular fees to directors of the Company who are not employees of the Company, (iv) any payments or other transactions pursuant to any tax-sharing agreement between the Company and any other Person with which the Company files a consolidated tax return or with which the Company is part of a consolidated group for tax purposes, (v) any Restricted Payments not prohibited by Section 4.04 or (vii) Kingston's and Matra's rights to commissions and other payments under sales representation agreements; Matra's rights to payments, including without limitation incentive payments, under the Orion 1 Satellite Contract and Orion 2 Satellite Contract; and Kingston's rights to payments for services under network monitoring contracts, in each case as in effect on the Closing Date and with such extensions, amendments and renewals that may be entered into on terms at least as favorable to the Company as the terms of agreements in effect on the Closing Date. Notwithstanding the foregoing, any transaction covered by the first paragraph of this Section 4.08 and not covered by clauses (ii) through (v) of this paragraph, the aggregate amount of which exceeds $5 million in value, must be approved or determined to be fair in the manner provided for in clause (i)(A) or (B) above. SECTION 4.09. Limitation on Liens . The Company will not, and will not permit any Restricted Subsidiary to, create, incur, assume or suffer to exist any Lien on any of its assets or properties of any character, or any shares of Capital Stock or Indebtedness of any Restricted Subsidiary, without making effective provision for all of the Notes and all other amounts due under the Indentures to be directly secured equally and ratably with (or, if the obligation or liability to be secured by such Lien is subordinated in right of payment to the Notes, prior to) the obligation or liability secured by such Lien. The foregoing limitation does not apply to: (i) Liens existing on the Closing Date; (ii) Liens granted after the Closing Date on any assets or Capital Stock of the Company or its Restricted Subsidiaries created in favor of the Holders; (iii) Liens with respect to the assets of a Restricted Subsidiary granted by such Restricted Subsidiary to the Company or a Wholly Owned Restricted Subsidiary to secure Indebtedness owing to the Company or such other Restricted Subsidiary; (iv) Liens securing Indebtedness which is Incurred to refinance secured Indebtedness which is permitted to be Incurred under clause (iii) of the second paragraph of Section 4.03 of this Indenture; provided that such Liens do not extend to or cover any property or assets of the Company or any Restricted Subsidiary other than the property or assets securing the Indebtedness being refinanced; or (v) Permitted Liens. The Company will not, and will not permit any Restricted Subsidiary to, create, incur, assume or suffer to exist any Lien on Orion 1, Orion 2 or Orion 3 that secures Indebtedness, other than pursuant to clause (xxi) of the definition of Permitted Liens. SECTION 4.10. Limitation on Sale-Leaseback Transactions . The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, enter into any sale-leaseback transaction involving any of its assets or properties whether now owned or hereafter acquired, whereby the Company or a Restricted Subsidiary sells or transfers such assets or properties and then or thereafter leases such assets or properties or any part thereof or any other assets or properties which the Company or such Restricted Subsidiary, as the case may be, intends to use for substantially the same purpose or purposes as the assets or properties sold or transferred. The foregoing restriction does not apply to any sale-leaseback transaction if (i) the lease is for a period, including renewal rights, of not in excess of three years; (ii) the lease secures or relates to industrial revenue or pollution control bonds; (iii) the transaction is solely between the Company and any Wholly Owned Restricted Subsidiary or solely between Wholly Owned Restricted Subsidiaries; or (iv) the Company or such Restricted Subsidiary, within twelve months after the sale or transfer of any assets or properties is completed, applies an amount not less than the net proceeds received from such sale in accordance with clause (A) or (B) of the first paragraph of Section 4.11 of this Indenture. SECTION 4.11. Limitation on Asset Sales. The Company will not, and will not permit any Restricted Subsidiary to, consummate any Asset Sale unless (i) the consideration received by the Company or such Restricted Subsidiary (including the amount of any Released Indebtedness) is at least equal to the fair market value of the assets sold or disposed of and (ii) at least 85% of the consideration received (excluding the amount of any Released Indebtedness) consists of cash or Temporary Cash Investments. In the event and to the extent that the Net Cash Proceeds received by the Company or any of its Restricted Subsidiaries from one or more Asset Sales occurring on or after the Closing Date in any period of 12 consecutive months exceed 10% of Adjusted Consolidated Net Tangible Assets (determined as of the date closest to the commencement of such 12-month period for which a consolidated balance sheet of the Company and its subsidiaries has been filed pursuant to Section 4.18, then the Company shall or shall cause the relevant Restricted Subsidiary to (i) within twelve months after the date Net Cash Proceeds so received exceed 10% of Adjusted Consolidated Net Tangible Assets (A) apply an amount equal to such excess Net Cash Proceeds to permanently repay unsubordinated Indebtedness of the Company or any Restricted Subsidiary owing to a Person other than the Company or any of its Restricted Subsidiaries or (B) invest an equal amount, or the amount not so applied pursuant to clause (A) (or enter into a definitive agreement committing to so invest within twelve months after the date of such agreement), in property or assets (other than current assets) of a nature or type or that are used in a business (or in a company having property and assets of a nature or type, or engaged in a business) similar or related to the nature or type of the property and assets of, or the business of, the Company and its Restricted Subsidiaries existing on the date of such investment and (ii) apply (no later than the end of the twelve-month period referred to in clause (i)) such excess Net Cash Proceeds (to the extent not applied pursuant to clause (i)) as provided in the following paragraph of this Section 4.11. The amount of such excess Net Cash Proceeds required to be applied (or to be committed to be applied) during such twelve-month period as set forth in clause (i) of the preceding sentence and not applied as so required by the end of such period shall constitute "Excess Proceeds." If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to this Section 4.11 totals at least $10 million, the Company must commence, not later than the fifteenth Business Day of such month, and consummate an Offer to Purchase from the Holders on a pro rata basis an aggregate principal amount Notes equal to the Excess Proceeds on such date, at a purchase price equal 101% of the Accreted Value of the Notes, plus, in each case, accrued interest (if any) to the Payment Date. SECTION 4.12. Maintenance of Office or Agency. The Company will maintain an office or agency where the Notes may be surrendered for registration of transfer or exchange or for presentation for payment and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company will 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 address of the Trustee set forth in Section 11.02. The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. 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 initially designates the Corporate Trust Office of the Trustee as such office of the Company in accordance with Section 2.03. SECTION 4.13. Repurchase of Notes upon a Change of Control. The Company shall commence, within 30 days of the occurrence of a Change of Control, and consummate an Offer to Purchase for all Notes then outstanding, at a purchase price equal to 101% of the Accreted Value of the Notes, plus accrued interest (if any) to the Payment Date. SECTION 4.14. Existence . Subject to Articles Four and Five of this Indenture, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence and the existence of each Restricted Subsidiary in accordance with the respective organizational documents of the Company and each such Restricted Subsidiary and the rights (whether pursuant to charter, partnership certificate, agreement, statute or otherwise), licenses and franchises of the Company and each such Restricted Subsidiary, provided that the Company shall not be required to preserve any such right, license or franchise, or the existence of any Restricted Subsidiary (other than of the Company), if the maintenance or preservation thereof is no longer desirable in the conduct of the business of the Company and its Restricted Subsidiaries taken as a whole; and provided further, that any Restricted Subsidiary may consolidate with, merge into, or sell, convey transfer, lease, or otherwise dispose of all or part of its property and assets to the Company or any Wholly Owned Restricted Subsidiary. SECTION 4.15. Payment of Taxes and Other Claims . The Company will pay or discharge and shall cause each Restricted Subsidiary to pay or discharge, or cause to be paid or discharged, before the same shall become delinquent (i) all material taxes, assessments and governmental charges levied or imposed upon (a) the Company or any such Restricted Subsidiary, (b) the income or profits of any such Restricted Subsidiary which is a corporation or (c) the property of the Company or any such Restricted Subsidiary and (ii) all material lawful claims for labor, materials and supplies that, if unpaid, might by law become a Lien upon the property of the Company or any such Restricted Subsidiary, provided that the Company shall not be required to pay or discharge, or cause to be paid or discharged, any such tax, assessment, charge or claim the amount, applicability or validity of which is being contested in good faith by appropriate proceedings or by the Company and its Restricted Subsidiaries where the failure to effect such payment is not adverse in any material respect to the Holders. SECTION 4.16. Maintenance of Properties and Insurance . The Company will maintain (a) in-orbit insurance with respect to Orion 1 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 having at least as much transmission capacity as such satellite, and (b) with respect to Orion 2, Orion 3, each other satellite to be launched by the Company or any Restricted Subsidiary and each replacement satellite therefor, (i) launch insurance with respect to each such satellite covering the period from the launch of such satellite to 180 days following such launch 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 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 having at least as much transmission capacity as such satellite was designed to have. The in-orbit insurance required by this Section 4.16 shall provide that if 50% or more of a satellite's initial 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 initial capacity, a pro-rata portion of such insurance will become due and payable. The insurance required by this Section 4.16 shall name the Company and/or any Guarantor as the sole loss payee or payees, as the case may be, thereof. In the event that the Company (or a Guarantor) receives proceeds from insurance relating to any satellite, the Company (or a Guarantor) may use a portion of such proceeds to repay any vendor or third-party purchase money financing pertaining to such satellite (other than Orion 1) that is required to be repaid by reason of the loss giving rise to such insurance proceeds. The Company (or a Guarantor) 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) such replacement satellite is of comparable or superior technological capability as compared with the satellite being replaced and has at least as much transmission capacity as the satellite being replaced and (ii) 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, provided that such replacement satellite is scheduled to be launched within 15 months of the receipt of such proceeds. Any such proceeds not used as permitted by this Section 4.16 shall be applied, within 90 days, to reduce Indebtedness of the Company or shall constitute "Excess Proceeds" for purposes of Section 4.11. The Company shall further provide or cause to be provided, for itself and its Restricted Subsidiaries, insurance (including appropriate self-insurance) against loss or damage of the kinds considered reasonable by the Company in the conduct of its business. The Company will cause all properties owned by the Company or any Subsidiary or used or held for use in the conduct of its business or the business of any Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section 4.16 shall prevent the Company from discontinuing the maintenance of any of such properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business or the business of any Subsidiary and not disadvantageous in any material respect to the Holders. SECTION 4.17. Compliance Certificates . The Company will deliver to the Trustee, within 120 days after the end of each fiscal year, a brief certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Company's compliance with all conditions and covenants under this Indenture. For purposes of this Section 4.17, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture. SECTION 4.18. Commission Reports and Reports to Holders. Whether or not the Company is required to file reports with the Commission, the Company shall file with the Commission all such reports and other information as it would be required to file with the Commission by Sections 13(a) or 15(d) under the Notes Exchange Act of 1934 if it were subject thereto. The Company shall supply the Trustees and each Holder or shall supply to the Trustees for forwarding to each such Holder, without cost to such Holder, copies of such reports and other information. SECTION 4.19. Waiver of Stay, Extension or Usury Laws . The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of, premium, if any, or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of this Indenture, and (to the extent that it may lawfully do so) the Company hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted. SECTION 4.20. Calculation of Original Issue Discount and Certain Information Concerning Tax Reporting. The Company will deliver to the Trustee, within 40 days of the date of original issuance of the Notes, an Officers' Certificate, setting forth (i) the amount of the original issue discount on the Notes, expressed as a U.S. dollar amount per $1,000 of principal amount at Stated Maturity, (ii) the yield to maturity for the Notes, and (iii) a table of the amount of the original issue discount on the Notes, expressed as a U.S. dollar amount per $1,000 of principal amount at Stated Maturity, accrued for each day from the date of original issuance of the Notes to their Stated Maturity. On or before December 15 of each year during which any Notes are outstanding, the Company shall furnish to the Trustee such information as may be reasonably requested by the Trustee in order that the Trustee may prepare the information which it is required to report for such year on Internal Revenue Service Forms 1096 and 1099 pursuant to Section 6049 of the Internal Revenue Code of 1986, as amended. Such information shall include the amount of original issue discount includable in income for each $1,000 of principal amount at Stated Maturity of outstanding Notes during such year. ARTICLE FIVE SUCCESSOR CORPORATION SECTION 5.01. Consolidation, Merger and Sale of Assets . Each of the Company and each Guarantor will not consolidate with, merge with or into, or sell, convey, transfer, lease or otherwise dispose of all or substantially all of its property and assets (as an entirety or substantially an entirety in one transaction or a series of related transactions) to, any Person or permit any Person to merge with or into the Company or any Guarantor unless: (i) the Company or any Guarantor, as the case may be, shall be the continuing Person, or the Person (if other than the Company or Guarantor) formed by such consolidation or into which the Company or any Guarantor, as the case may be, is merged or that acquired or leased such property and assets of the Company or any Guarantor, as the case may be, shall be a corporation organized and validly existing under the laws of the United States of America or any jurisdiction thereof and shall expressly assume, by a supplemental indenture, executed and delivered to the Trustees, all of the obligations of the Company or any Guarantor, as the case may be, on all of the Notes and under the Indenture; (ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; (iii) if such transaction involves the Company or any Significant Subsidiary thereof, immediately after giving effect to such transaction on a pro forma basis, the Company, or any Person becoming the successor to the Company as obligor on the Notes shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of the Company immediately prior to such transaction; (iv) if such transaction involves the Company or any Significant Subsidiary thereof, immediately after giving effect to such transaction on a pro forma basis, the Company, or any Person becoming the successor obligor of the Notes, as the case may be, could Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03; provided that this clause (iv) shall not apply to a consolidation or merger with or into a Wholly Owned Restricted Subsidiary with a positive net worth; provided that, in connection with any such merger or consolidation, no consideration (other than Common Stock in the surviving Person or the Company) shall be issued or distributed to the stockholders of the Company; and (v) the Company or Guarantor, as the case may be, delivers to the Trustees an Officers' Certificate (attaching the arithmetic computations to demonstrate compliance with clauses (iii) and (iv)) and Opinion of Counsel, in each case stating that such consolidation, merger or transfer and such supplemental indenture complies with this provision and that all conditions precedent provided for herein relating to such transaction have been complied with; provided, however, that clauses (iii) and (iv) above do not apply if, in the good faith determination of the Board of Directors of the Company, whose determination shall be evidenced by a Board Resolution, the principal purpose of such transaction is to change the state of incorporation of the Company; and provided further that any such transaction shall not have as one of its purposes the evasion of the foregoing limitations. Notwithstanding the foregoing, the provisions of this Section 5.01 shall not apply to the Merger. SECTION 5.02. Successor Substituted . Upon any consolidation or merger, or any sale, conveyance, transfer or other disposition of all or substantially all of the property and assets of the Company in accordance with Section 5.01 of this Indenture, the successor Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Notes. ARTICLE SIX DEFAULT AND REMEDIES SECTION 6.01. Events of Default . An "Event of Default" shall occur with respect to the Notes if: (a) default in the payment of principal of (or premium, if any, on) any Note when the same becomes due and payable at maturity, upon acceleration, redemption or otherwise; (b) default in the payment of interest on any Note when the same becomes due and payable, and such default continues for a period of 30 days; provided that a failure to make any of the first six scheduled interest payments on the Notes in a timely manner will constitute an Event of Default with no grace or cure period; (c) default in the performance or breach of the provisions of Section 5.01 of this Indenture or the failure to make or consummate an Offer to Purchase in accordance with Section 4.11 or Section 4.13 of this Indenture; (d) the Company defaults in the performance of or breaches any other covenant or agreement of the Company in this Indenture or under the Notes (other than a default specified in clause (a), (b) or (c) above) and such default or breach continues for a period of 30 consecutive days after written notice by the Trustee or the Holders of 25% or more in aggregate principal amount at maturity of the Notes; (e) there occurs with respect to (A) any issue or issues of Indebtedness of the Company, any Guarantor or any Significant Subsidiary having an outstanding principal amount of $10 million or more in the aggregate for all such issues of all such Persons, whether such Indebtedness now exists or shall hereafter be created or (B) the TT&C Financing or any refinancing thereof which is secured by substantially the same collateral, (I) an event of default that has caused the holder thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity and such Indebtedness has not been discharged in full or such acceleration has not been rescinded or annulled within 30 days of such acceleration and/or (II) the failure to make a principal payment at the final (but not any interim) fixed maturity and such defaulted payment shall not have been made, waived or extended within 30 days of such payment default; (f) any final judgment or order (not covered by insurance) for the payment of money in excess of $10 million in the aggregate for all such final judgments or orders against all such Persons (treating any deductibles, self-insurance or retention as not so covered) shall be rendered against the Company, any Guarantor or any Significant Subsidiary and shall not be paid or discharged, and there shall be any period of 30 consecutive days following entry of the final judgment or order that causes the aggregate amount for all such final judgments or orders outstanding and not paid or discharged against all such Persons to exceed $10 million during which a stay of enforcement of such final judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; (g) a court having jurisdiction in the premises enters a decree or order for (A) relief in respect of the Company, any Guarantor or any Significant Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (B) appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company, any Guarantor or any Significant Subsidiary or for all or substantially all of the property and assets of the Company, any Guarantor or any Significant Subsidiary or (C) the winding up or liquidation of the affairs of the Company or any Significant Subsidiary and, in each case, such decree or order shall remain unstayed and in effect for a period of 30 consecutive days; (h) the Company, any Guarantor or any Significant Subsidiary (A) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (B) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company, any Guarantor or any Significant Subsidiary or for all or substantially all of the property and assets of the Company, any Guarantor or any Significant Subsidiary or (C) effects any general assignment for the benefit of creditors; (i) the Note Guarantee shall cease to be, or shall be asserted in writing by the Company or any Guarantor not to be, in full force and effect or enforceable in accordance with their respective terms; or (j) the occurrence of an "Event of Default" described in paragraph (i), (j), (k), (l), (m) or (n) of Section 18.1 of the Debenture Purchase Agreement. SECTION 6.02. Acceleration . If an Event of Default (other than an Event of Default specified in clause (g) or (h) above that occurs with respect to the Company) occurs and is continuing under the Indenture, the Trustee or the Holders of at least 25% in aggregate principal amount at maturity of the Notes then outstanding, by written notice to the Company (and to the Trustee if such notice is given by the Holders), may, and the Trustee at the request of such Holders shall, declare the Accreted Value of, premium, if any, and accrued interest on the Notes to be immediately due and payable. Upon a declaration of acceleration, such principal amount of, premium, if any, and accrued interest shall be immediately due and payable. In the event of a declaration of acceleration because an Event of Default set forth in clause (e) above has occurred and is continuing, such declaration of acceleration shall be automatically rescinded and annulled if the event of default triggering such Event of Default pursuant to clause (e) shall be remedied or cured by the Guarantor, the Company or the relevant Significant Subsidiary or waived by the holders of the relevant Indebtedness within 60 days after the declaration of acceleration with respect thereto. If an Event of Default specified in clause (g) or (h) above occurs with respect to the Guarantor or the Company, the Accreted Value of, premium, if any, and accrued interest on the Notes then outstanding 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. SECTION 6.03. Other Remedies . If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of Accreted Value of, premium, if any, interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. SECTION 6.04. Waiver of Past Defaults . Subject to Section 9.02, at any time after a declaration of acceleration, but before a judgment or decree for the payment of the money due has been obtained by the Trustee, the Holders of at least a majority in principal amount of the outstanding Notes at maturity, by notice to the Trustee, may waive all past Defaults and Events of Default and rescind and annul a declaration of acceleration (except a Default in the payment of Accreted Value of, premium, if any, interest on any Note as specified in clause (a) or (b) of Section 6.01 (but not as a result of such acceleration) or in respect of a covenant or provision of this Indenture which cannot be modified or amended without the consent of the holder of each outstanding Note affected) if all existing Events of Default, other than the nonpayment of Accreted Value of, premium, if any, interest on the Notes that have become due solely by such declaration of acceleration, have been cured or waived and the rescission would not conflict with any judgment or decree of a court of competent jurisdiction. 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 Event of Default or impair any right consequent thereto SECTION 6.05. Control by Majority . The Holders of at least a majority in aggregate principal amount at maturity of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture, that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of Notes not joining in the giving of such direction and may take any other action it deems proper that is not inconsistent with any such direction received from Holders of Notes. SECTION 6.06. Limitation on Suits . A Holder may not pursue any remedy with respect to this Indenture or the Notes unless: (i) the Holder gives the Trustee written notice of a continuing Event of Default; (ii) the Holders of at least 25% in aggregate principal amount at maturity of outstanding Notes make a written request to the Trustee to pursue the remedy; (iii) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee against any costs, liability or expense; (iv) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and (v) during such 60-day period, the Holders of a majority in aggregate principal amount at maturity of the outstanding Notes do not give the Trustee a direction that is inconsistent with the request. SECTION 6.07. Rights of Holders to Receive Payment . Subject to Sections 6.04 and 9.02, notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of Accreted Value of, premium, if any, or interest on, such Note or to bring suit for the enforcement of any such payment or after the due date expressed in the Notes shall not be impaired or affected without the consent of such Holder provided, however, that no recourse for the payment of the Accreted Value of, premium, if any, or interest on any of the Notes or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indentures or in any of the Notes or because of the creation of any Indebtedness represented thereby, shall be had against any incorporator, stockholder, officer, director, employee or controlling person of the Company or of any successor Person thereof. Each Holder, by accepting the Notes, waives and releases all such liability. SECTION 6.08. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if (a) default is made in the payment of any installment of interest on any Note when such interest becomes due and payable and such default continues for a period of 30 days, or (b) default is made in the payment of the principal of (or premium, if any, on) any Note at the Maturity thereof, the Company will, upon demand of the Trustee, pay to the Trustee for the benefit of the Holders of such Notes, the whole amount then due and payable on such Notes for principal (and premium, if any) and interest, and interest on any overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installment of interest, at the rate borne by the Notes, and, in addition thereto, 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. If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon the Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Notes, wherever situated. If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. SECTION 6.09. Trustee May File Proofs of Claim . In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Notes or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal, premium, if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, (i) to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Notes and to file such 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 of the Holders allowed in such judicial proceeding, and (ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay the Trustee any amount due 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. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. SECTION 6.10. Priorities . If the Trustee collects any money pursuant to this Article Six, it shall pay out the money in the following order: First: to the Trustee for all amounts due under Section 7.07; Second: to Holders for amounts then due and unpaid for principal of, premium, if any, and interest, if any, on the Notes in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Notes for principal, premium, if any, and interest, if any, respectively; and Third: the balance, if any, to the Person or Persons entitled thereto. The Trustee, upon prior written notice to the Company, may fix a record date and payment date for any payment to Holders pursuant to this Section 6.10. [SECTION 6.11. Undertaking for Costs . In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of the suit, and the court may assess reasonable costs, including reasonable attorneys' fees, against any party litigant in the suit having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 of this Indenture, or a suit by Holders of more than 10% in principal amount of the outstanding Notes.] [SECTION 6.12. Restoration of Rights and Remedies . If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then, and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Company, the Trustee and the Holders shall continue as though no such proceeding had been instituted.] SECTION 6.13. Rights and Remedies Cumulative . Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.08, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. SECTION 6.14. Delay or Omission Not Waiver . No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article Six or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. ARTICLE SEVEN TRUSTEE SECTION 7.01. General . The duties and responsibilities of the Trustee shall be as provided by the TIA and as set forth herein. Whether or not herein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article Seven. SECTION 7.02. Certain Rights of Trustee . Subject to TIA Sections 315(a) through (d): (a) except during the continuance of an Event of Default, the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee and in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth and correctness of the statements and certificates or opinions furnished to it and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture; (b) in case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs; (c) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; (d) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers Certificate; (e) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (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 pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; (g) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; (8) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; and (9) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture. The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. SECTION 7.03. Individual Rights of Trustee . The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not the Trustee. Any Agent may do the same with like rights. However, the Trustee is subject to TIA Sections 310(b) and 311. SECTION 7.04. Trustee's Disclaimer . The Trustee (i) makes no representation as to the validity or adequacy of this Indenture or the Notes, (ii) shall not be accountable for the Company's use or application of the proceeds from the Notes and (iii) shall not be responsible for any statement contained herein or in the Notes other than its certificate of authentication. The Trustee shall not be charged with knowledge of any Default or Event of Default unless (i) a Responsible Officer of the Trustee assigned to its Corporate Trustee Administration Department (or successor department or group) shall have actual knowledge thereof or (ii) the Trustee shall have received written notice thereof at its Corporate Trust office from the Company or any Holder. No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. SECTION 7.05. Notice of Default . If any Default or any Event of Default occurs and is continuing and if such Default or Event of Default is known to a trust officer of the Trustee, the Trustee shall mail to each Holder in the manner and to the extent provided in TIA Section 313(c) notice of such Default or Event of Default within 90 days after it occurs, unless such Default or Event of Default has been cured; provided, however, that, except in the case of a default in the payment of the principal of, premium, if any, or interest on any Note, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders. SECTION 7.06. Reports by Trustee to Holders . To the extent required by TIA Section 313(a), within 60 days after May 15 of each year commencing with 1997 and for as long as there are Notes outstanding hereunder, the Trustee shall mail to each Holder the Trustee's brief report dated as of such date that complies with TIA Section 313(a). The Trustee also shall comply with TIA Section 313(b) and TIA Section 313(c) and (d). A copy of such report at the time of its mailing to Holders shall be filed with the Commission, if required, and each stock exchange, if any, on which the Notes are listed. The Company shall promptly notify the Trustee if the Notes become listed on any stock exchange, and the Trustee shall comply with TIA Section 313(d). SECTION 7.07. Compensation and Indemnity . The Company shall pay to the Trustee from time to time such reasonable compensation as shall be agreed upon in writing for its services. The reasonable compensation of the Trustee shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses and advances incurred or made by the Trustee. Such expenses shall include the reasonable compensation and expenses of the Trustee's agents and counsel. The Company shall indemnify the Trustee for, and hold it harmless against, any loss or liability or expense incurred by it without negligence or bad faith on its part in connection with the acceptance or administration of this Indenture and its duties under this Indenture and the Notes, including, without limitation, the costs and expenses of defending itself against any claim or liability and of complying with any process served upon it or any of its officers in connection with the exercise or performance of any of its powers or duties under this Indenture and the Notes. To secure the Company's payment obligations in this Section 7.07, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee, in its capacity as Trustee, except money or property held in trust to pay principal of, premium, if any, and interest on particular Notes. Without prejudice to any other rights available to the Trustee under applicable law, if the Trustee incurs expenses or renders services after the occurrence of an Event of Default specified in clause (g) or (h) of Section 6.01, the expenses and the compensation for the services will be intended to constitute expenses of administration under Title 11 of the United States Bankruptcy Code or any applicable federal or state law for the relief of debtors. 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 at any time by so notifying the Company in writing at least 30 days prior to the date of the proposed resignation. The Holders of a majority in principal amount of the outstanding Notes may remove the Trustee by so notifying the Trustee in writing and may appoint a successor Trustee with the consent of the Company. The Company may at any time remove the Trustee, by Issuer Order given at least 30 days prior to the date of the proposed removal; provided that at such date no Event of Default shall have occurred and be continuing. Except as provided in the second sentence of the preceding paragraph, 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 outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company. If the successor Trustee does not deliver its written acceptance required by the next succeeding paragraph of this Section 7.08 within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in principal amount of the outstanding Notes may petition any court of competent jurisdiction for 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. Immediately after the delivery of such written acceptance, subject to the lien provided in Section 7.07, (i) the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee, (ii) the resignation or removal of the retiring Trustee shall become effective and (iii) the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. A successor Trustee shall mail notice of its succession to each Holder. Subject to Section 6.11, if the Trustee is no longer qualified or eligible under Section 7.10, any Holder who satisfies the requirements of TIA Section 310(b) may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. The Company shall give notice of any resignation and any removal of the Trustee and each appointment of a successor Trustee to all Holders. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company's obligations under Section 7.07 shall continue indefinitely for the benefit of the retiring Trustee. SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or national banking association, the resulting, surviving or transferee corporation or national banking association without any further act shall be the successor Trustee with the same effect as if the successor Trustee had been named as the Trustee herein. SECTION 7.10. Eligibility . This Indenture shall always have a Trustee that satisfies the requirements of TIA Section 310(a)(1) and (5). The Trustee shall have a combined capital and surplus of at least $100,000,000 as set forth in its most recent published annual report of condition. The Trustee shall be subject to TIA Section 310(b), subject to the penultimate paragraph thereof. SECTION 7.11. Money Held in Trust . 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, and except for money held in trust under Article Eight of this Indenture. SECTION 7.12. Withholding Taxes . The Trustee, as agent for the Company, shall exclude and withhold from each payment of principal and interest and other amounts due hereunder or under the Notes any and all U.S. withholding taxes applicable thereto as required by law. The Trustee agrees to act as such withholding agent and, in connection therewith, whenever any present or future taxes or similar charges are required to be withheld with respect to any amounts payable in respect of the Notes, to withhold such amounts and timely pay the same to the appropriate authority in the name of and on behalf of the Holders of the Notes, that it will file any necessary withholding tax returns or statements when due, and that, as promptly as possible after the payment thereof, it will deliver to each Holder of a Note appropriate documentation showing the payment thereof, together with such additional documentary evidence as such Holders may reasonably request from time to time. ARTICLE EIGHT DISCHARGE OF INDENTURE SECTION 8.01. Termination of Company's Obligations . Except as otherwise provided in this Section 8.01, each of the Company may terminate its obligations under the Notes and this Indenture if: (a) all Notes previously authenticated and delivered (other than destroyed, lost or stolen Notes that have been replaced or Notes for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Company, as provided in Section 8.05) have been delivered to the Trustee for cancellation and the Company has paid all sums payable by it hereunder; or (b) (i) all such Notes mature within one year or all of them are to be called for redemption within one year under arrangements satisfactory to the Trustee for giving the notice of redemption, (ii) the Company irrevocably deposits in trust with the Trustee during such one-year period, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee, as trust funds solely for the benefit of the Holders of such Notes for that purpose, money or U.S. Government Obligations sufficient (in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee), without consideration of any reinvestment of any interest thereon, to pay Accreted Value, premium, if any, and interest on such Notes to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder, (iii) no Default or Event of Default with respect to the Notes shall have occurred and be continuing on the date of such deposit, (iv) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound [, (v) if at such time the Notes are listed on a national securities exchange, the Notes will not be delisted as a result of such deposit, defeasance and discharge,] [and] [(v)] [(vi)] the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with. With respect to the foregoing clause (a), the Company's obligations under Section 7.07 shall survive. With respect to the foregoing clause (b), the Company's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until the Notes have matured or have been redeemed. Thereafter, only the Company's obligations in Sections 7.07, 8.05 and 8.06 shall survive. After any such irrevocable deposit, the Trustee upon request shall acknowledge in writing the discharge of the Company's obligations under the Notes and this Indenture, and the Guarantor's obligations under the Guarantee and this Indenture, except for those surviving obligations specified above. SECTION 8.02. Defeasance and Discharge of Indenture. The Company will be deemed to have paid and will be discharged from any and all obligations in respect of the Notes on the 123rd day after the date of the deposit referred to in clause (a) of this Section 8.02 if: (a) with reference to this Section 8.02, the Company has irrevocably deposited or caused to be irrevocably deposited with the Trustee and has conveyed all right, title and interest for the benefit of the Holders, under the terms of an irrevocable trust agreement in form satisfactory to the Trustee as trust funds in trust, specifically pledged to the Trustee for the benefit of the Holders as security for payment of the Accreted Value of, premium, if any, and interest, if any, on the Notes, and dedicated solely to, the benefit of the Holders, in and to (i) money in an amount, (ii) U.S. Government Obligations that, through the payment of interest, premium, if any, and Accreted Value in respect thereof in accordance with their terms, will provide, not later than one day before the due date of any payment referred to in this clause (a), money in an amount or (iii) a combination thereof in an amount 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, without consideration of the reinvestment of such interest and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, the Accreted Value of, premium, if any, and accrued interest on the outstanding Notes at the Stated Maturity of such Accreted Value or interest or upon earlier redemption; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such U.S. Government Obligations to the payment of such Accreted Value, premium, if any, and interest with respect to the Notes and to give any related notice of redemption; (b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; (c) immediately after giving effect to such deposit on a pro forma basis, no Default or Event of Default, or event that after the giving of notice or lapse of time or both could become a Default or Event of Default, shall have occurred and be continuing on the date of such deposit or during the period ending on the 123rd day after the date of such deposit; (d) the Company shall have delivered to the Trustee (i) either (A) a ruling directed to the Trustee received from the Internal Revenue Service to the effect that the Holders will not recognize additional income, gain or loss for federal income tax purposes as a result of the Company's exercise of its option under this Section 8.02 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such option had not been exercised or (B) an Opinion of Counsel to the same effect as the ruling described in clause (A) above accompanied by a ruling to that effect published by the Internal Revenue Service, unless there has been a change in the applicable federal income tax law since the date of this Indenture such that a ruling from the Internal Revenue Service is no longer required and (ii) an Opinion of Counsel to the effect that (A) the creation of the defeasance trust does not violate the Investment Company Act of 1940 and (B) after the passage of 123 days following the deposit (except, with respect to any trust funds for the account of any Holder who may be deemed to be "connected" with the Company for purposes of the Insolvency Act 1986 after two years following the deposit), the trust funds will not be subject to the effect of Section 547 of the United States Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law and either (I) the trust funds will no longer remain the property of the Company (and therefore will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally) or (II) if a court were to rule under any such law in any case or proceeding that the trust funds remained property of the Company (a) assuming such trust funds remained in the possession of the Trustee prior to such court ruling to the extent not paid to the Holders, the Trustee will hold, for the benefit of the Holders, a valid and perfected security interest in such trust funds that is not avoidable in bankruptcy or otherwise and (b) no property, rights in property or other interests granted to the Trustee or the Holders in exchange for, or with respect to, such trust funds will be subject to any prior rights of holders of other Indebtedness of the Company or any of its Notes; (e) if at such time the Notes are listed on a national securities exchange, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Notes will not be delisted as a result of the Company's exercise of its opinion under this Section 8.02; and (f) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02 have been complied with. Notwithstanding the foregoing, prior to the end of the post deposit period referred to in clause (d)(ii)(B) of this Section 8.02, none of the Company's obligations under this Indenture shall be discharged. Subsequent to the end of such period with respect to this Section 8.02, the Company's obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until the Notes mature or are redeemed. Thereafter, only the Company's obligations in Sections 7.07, 8.05 and 8.06 shall survive. If and when a ruling from the Internal Revenue Service or an Opinion of Counsel referred to in clause (d)(i) of this Section 8.02 may be provided specifically without regard to, and not in reliance upon, the continuance of the Company's obligations under the first sentence of Section 4.01, then the Company's obligations under such sentence shall cease upon delivery to the Trustee of such ruling or Opinion of Counsel and compliance with the other conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.02. After any such irrevocable deposit, the Trustee upon request shall acknowledge in writing the discharge of the Company's obligations under the Notes, any Subsidiary Guarantee, if any, and this Indenture except for those surviving obligations in the immediately preceding paragraph. SECTION 8.03. Defeasance of Certain Obligations . The Company may omit to comply with any term, provision or condition set forth in clauses (iii) and (iv) of Section 5.01 and Sections 4.03 through 4.17 (except for any covenant otherwise required by the TIA), and clauses (c) and (d) of Section 6.01 with respect to clauses (iii) and (iv) of Section 5.01, clause (e) of Section 6.01 with respect to Sections 4.03 through 4.17, except as aforesaid, and clause (f) of Section 6.01 shall be deemed not to be Events of Default, in each case with respect to the outstanding Notes if: (a) with reference to this Section 8.03, the Company has irrevocably deposited or caused to be irrevocably deposited with the Trustee and conveyed all right, title and interest to the Trustee for the benefit of the Holders, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee as trust funds in trust, specifically pledged to the Trustee for the benefit of the Holders as security for payment of the Accreted Value of, premium, if any, and interest, if any, on the Notes, and dedicated solely to, the benefit of the Holders, in and to (i) money in an amount, (ii) U.S. Government Obligations that, through the payment of interest and Accreted Value in respect thereof in accordance with their terms, will provide, not later than one day before the due date of any payment referred to in this clause (a), money in an amount or (iii) a combination thereof in an amount 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, without consideration of the reinvestment of such interest and after payment of all federal, state and local taxes or other charges and assessments in respect thereof payable by the Trustee, the Accreted Value of, premium, if any, and interest on the outstanding Notes on the Stated Maturity or upon earlier redemption of such Accreted Value or interest; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such U.S. Government Obligations to the payment of such Accreted Value, premium, if any, and interest with respect to the Notes and to give any related notice of redemption; (b) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; (c) immediately after giving effect to such deposit or a pro forma basis, no Default or Event of Default, or event that after the giving of notice or lapse of time or both would become a Default or Event of Default, shall have occurred and be continuing on the date of such deposit or during the period ending on the 123rd day after the day of such deposit; (d) the Company has delivered to the Trustee an Opinion of Counsel to the effect that (i) the creation of the defeasance trust does not violate the Investment Company Act of 1940, (ii) the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance of the obligations referred to in the first paragraph of this Section 8.03 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred and (iii) after the passage of 123 days following the deposit (except with respect to any trust funds for the account of any Holder who may be deemed to be "connected" with the Company for purposes of the Insolvency Act 1986 after two years following the deposit), the trust funds will not be subject to the effect of Section 547 of the United States Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law, and either (A) the trust funds will no longer remain the property of the Company (and therefore will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditor's rights generally) or (B) if a court were to rule under any such law in any case or proceeding that the trust funds remained property of the Company (1) assuming such trust funds remained in the possession of the Trustee prior to such court ruling to the extent not paid to the Holders, the Trustee will hold, for the benefit of the Holders, a valid and perfected security interest in such trust funds that is not avoidable in bankruptcy or otherwise and (2) no property, rights in property or other interests granted to the Trustee or the Holders in exchange for, or with respect to, such trust funds will be subject to any prior rights or holders of other Indebtedness of the Company or any of its Notes; (e) if at such time the Notes are listed on a national securities exchange, the Company has delivered to the Trustee an Opinion of Counsel to the effect that the Notes will not be delisted as a result of the Company's exercise of its option under Section 8.03; and (f) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance contemplated by this Section 8.03 have been complied with. SECTION 8.04. Application of Trust Money. Subject to Section 8.06, the Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the case may be, and shall apply the deposited money and the money from U.S. Government Obligations in accordance with the Notes and this Indenture to the payment of Accreted Value of, premium, if any, and interest on the Notes; but such money need not be segregated from other funds except to the extent required by law. SECTION 8.05. Repayment to Company . Subject to Sections 7.07, 8.01, 8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the Company upon request set forth in an Officers' Certificate any excess money held by them at any time and thereupon shall be relieved from all liability with respect to such money. The Trustee and the Paying Agent shall pay to the Company any money held by them for the payment of Accreted Value, premium, if any, or interest that remains unclaimed for two years; provided that the Trustee or such Paying Agent before being required to make any payment may cause to be published at the expense of the Company once in a newspaper of general circulation in the City of New York or mail to each Holder entitled to such money notice that such money remains unclaimed and that after a date specified therein (which shall be at least 30 days from the date of such publication or mailing) any unclaimed balance of such money then remaining will be repaid to the Company. After payment to the Company, Holders entitled to such money must look to the Company for payment as general creditors unless an applicable law designates another Person, and all liability of the Trustee and such Paying Agent with respect to such money shall cease. SECTION 8.06. Reinstatement . If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 8.01, 8.02 or 8.03, as the case may be, by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company's obligations under this Indenture, the Guarantee, and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.01, 8.02 or 8.03, as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with Section 8.01, 8.02 or 8.03, as the case may be; provided that, if the Company has made any payment of Accreted Value of, premium, if any, or interest on any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent. ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS SECTION 9.01. Without Consent of Holders . The Company, when authorized by Board Resolution, and the Trustee may amend or supplement this Indenture, and the Notes without notice to, or the consent of, any Holder: (a) to cure any ambiguity, defect or inconsistency in this Indenture; provided that such amendments or supplements shall not adversely affect the interests of the Holders in any material respect; (b) to comply with Article Five; (c) to add to the covenants of the Company for the benefit of the Holders or to surrender any right or power herein conferred upon the Company; or ; (d) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Notes; (e) to add any additional Events of Default; or (f) to add a Guarantor. SECTION 9.02. With Consent of Holders . Subject to Sections 6.04 and 6.07 and without prior notice to the Holders, the Company, when authorized by its Board of Directors (as evidenced by a Board Resolution), and the Trustee may amend this Indenture and the Notes with the consent of the Holders of not less than a majority in aggregate principal amount at maturity of the Notes then outstanding. Notwithstanding the provisions of this Section 9.02, without the consent of each Holder affected, an amendment or waiver, including a waiver pursuant to Section 6.04, may not: (i) change the Stated Maturity of the principal at maturity of, or any installment of interest on, any Note; (ii) reduce the Accreted Value of, or premium, if any, or interest on, any Note; (iii) change the place or currency of payment of principal at maturity of, or premium, if any, or interest on, any Note; (iv) impair the right to institute suit for the enforcement of any payment on or after the Stated Maturity (or, in the case of a redemption, on or after the Redemption Date) of any Note; (v) reduce the above-stated percentage of outstanding Notes the consent of whose Holders is necessary to modify or amend the Indenture; (vi) waive a default in the payment of principal at maturity of, premium, if any, or interest on the Notes; (vii) reduce the percentage or aggregate principal at maturity amount at maturity of outstanding Notes the consent of whose Holders is necessary for waiver of compliance with certain provisions of the Indenture or for waiver of certain defaults; or (viii) release the Guarantors from their Note Guarantees. It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof. After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company shall mail to the Holders affected thereby a notice briefly describing such amendment, supplement or waiver. The Company will mail supplemental indentures to Holders upon request. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver. SECTION 9.03. Revocation and Effect of Consent . Until an amendment or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the Note of the consenting Holder, even if notation of the consent is not made on any Note. However, any such Holder or subsequent Holder may revoke the consent as to its Note or portion of its Note. Such revocation shall be effective only if the Trustee receives the notice of revocation before the date any such amendment, supplement or waiver becomes effective. An amendment, supplement or waiver shall become effective on receipt by the Trustee of written consents from the Holders of the requisite percentage in principal amount of the outstanding Notes. The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders of Certificated Notes entitled to consent to any amendment, supplement or waiver. If a record date is fixed, then, notwithstanding the last two sentences of the immediately preceding paragraph, those persons who were Holders of Certificated Notes at such record date (or their duly designated proxies) and only those persons shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously given, whether or not such persons continue to be Holders of such Certificated Notes after such record date. No such consent shall be valid or effective for more than 90 days after such record date. After an amendment, supplement or waiver becomes effective, it shall bind every Holder unless it is of the type described in any of clauses (a) through (h) of Section 9.02. In case of an amendment or waiver of the type described in clauses (a) through (h) of Section 9.02, the amendment or waiver shall bind each Holder who has consented to it and every subsequent Holder of a Note that evidences the same indebtedness as the Note of such consenting Holder. SECTION 9.04. Notation on or Exchange of Notes . If an amendment, supplement or waiver changes the terms of a Note, the Trustee may require the Holder to deliver such Note to the Trustee. The Trustee may place an appropriate notation on the Note about the changed terms and return it to the Holder and the Trustee may place an appropriate notation on any Note thereafter authenticated. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Note shall issue and the Trustee shall authenticate a new Note that reflects the changed terms. SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article Nine is authorized or permitted by this Indenture. The Trustee shall execute any such amendment, supplement or waiver upon satisfaction of the conditions precedent thereto contained herein, unless such amendment, supplement or waiver adversely affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. SECTION 9.06. Conformity with Trust Indenture Act . Every supplemental indenture executed pursuant to this Article Nine shall conform to the requirements of the TIA as then in effect. ARTICLE TEN GUARANTEE OF NOTES SECTION 10.01. Guarantee . Subject to the provisions of this Article Eleven, the Guarantors hereby fully, unconditionally and irrevocably guarantee to each Holder and to the Trustee on behalf of the Holders: (i) the due and punctual payment of the Accreted Value of, premium, if any, and accrued interest on each Note, when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise, the due and punctual payment of interest on the overdue Accreted Value of and interest, if any, on the Notes, to the extent lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee, all in accordance with the terms of such Note and this Indenture [and (ii) in the case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, at Stated Maturity, by acceleration or otherwise]. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company, the benefit of discussion, protest or notice with respect to any such Note or the debt evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged as to any such Note except by payment in full of the principal thereof and interest thereon and as provided in Section 8.01 and Section 8.02 (subject to Section 8.06). The maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six for the purposes of this Article Eleven. In the event of any declaration of acceleration of such obligations as provided in Article Six, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Article Eleven. In addition, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article Six, the Trustee shall promptly make a demand for payment on the Notes under the Guarantee provided for in this Article Eleven. If the Trustee or the Holder of any Note is required by any court or otherwise to return to the Company or the Guarantor, or any custodian, receiver, liquidator, trustee, sequestrator or other similar official acting in relation to the Company or the Guarantor, any amount paid to the Trustee or such Holder in respect of a Note, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. The Guarantor further agrees, to the fullest extent that it may lawfully do so, that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Six hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition extant under any applicable bankruptcy law preventing such acceleration in respect of the obligations guaranteed hereby. The Guarantor hereby irrevocably waives any claim or other rights which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of its obligations under this Guarantee and this Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, any right to participate in any claim or remedy of the Holders against the Company or any collateral which any such Holder or the Trustee on behalf of such Holder hereafter acquires, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Company, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim or other rights. If any amount shall be paid to the Guarantor in violation of the preceding sentence and the Accreted Value of, premium, if any, and accrued interest on the Notes shall not have been paid in full, such amount shall be deemed to have been paid to the Guarantor for the benefit of, and held in trust for the benefit of, the Holders, and shall forthwith be paid to the Trustee for the benefit of the Holders to be credited and applied upon the Accreted Value of, premium, if any, and accrued interest on the Notes. The Guarantor acknowledges that it will receive direct and indirect benefits from the issuance of the Notes pursuant to this Indenture and that the waivers set forth in this Section 10.01 are knowingly made in contemplation of such benefits. The Guarantee set forth in this Section 10.01 shall not be valid or become obligatory for any purpose with respect to a Note until the certificate of authentication on such Note shall have been signed by or on behalf of the Trustee. SECTION 10.02. Obligations Unconditional . Subject to Section 10.05, nothing contained in this Article Eleven or elsewhere in this Indenture or in the Notes is intended to or shall impair, as among the Guarantor and the holders of the Notes, the obligation of the Guarantor, which is absolute and unconditional, upon failure by the Company, to pay to the holders of the Notes the Accreted Value of, premium, if any, and interest on the Notes as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the holders of the Notes and creditors of the Guarantor, nor shall anything herein or therein prevent the holder of any Notes or the Trustee on their behalf from exercising all remedies otherwise permitted by applicable law upon default under this Indenture. Without limiting the foregoing, nothing contained in this Article Eleven will restrict the right of the Trustee or the holders of the Notes to take any action to declare the Guarantee to be due and payable prior to the Stated Maturity of the Notes pursuant to Section 6.02 or to pursue any rights or remedies hereunder. SECTION 10.03. Notice to Trustee . The Guarantor shall give prompt written notice to the Trustee of any fact known to the Guarantor which would prohibit the making of any payment to or by the Trustee in respect of the Guarantee pursuant to the provisions of this Article Eleven. SECTION 10.04. This Article Not to Prevent Events of Default . The failure to make a payment on account of Accreted Value of, premium, if any, or accrued interest on the Notes by reason of any provision of this Article will not be construed as preventing the occurrence of an Event of Default. SECTION 10.05. Net Worth Limitation . Notwithstanding any other provision of this Indenture or the Notes, the Guarantee shall not be enforceable against the Guarantor in an amount in excess of the net worth of the Guarantor at the time that determination of such net worth is, under applicable law, relevant to the enforceability of the Guarantee. Such net worth shall include any claim of the Guarantor against the Company for reimbursement and any claim against any grantor of a Guarantee for contribution. ARTICLE ELEVEN MISCELLANEOUS SECTION 11.01. Trust Indenture Act of 1939 . This Indenture shall be subject to the provisions of the TIA that are required to be a part of this Indenture and shall, to the extent applicable, be governed by such provisions. SECTION 11.02. Notices . Any notice or communication shall be sufficiently given if in writing and delivered in person or mailed by first class mail or telecopier communication, addressed as follows, and received by the addressee: if to the Company: Orion Newco Services, Inc. 2440 Research Boulevard Suite 40 Rockville, Maryland 20850 Telecopier No: (301) 258-8101 Attention: [________] with a copy to: Hogan & Hartson, L.L.P. Columbia Square 555 Thirteenth Street, N.W. Washington, D.C. 20004 Telecopier No.: (202) 637-5910 Attention: [________] if to the Trustee: Bankers Trust Company 4 Albany Street Mailstop 5041 New York, N.Y. 10006 Telecopier No.: (212) 250-6392 Attention: Corporate Trustee Administration Department with a copy to: Leboeuf, Lamb, Greene & MacRae, L.L.P. 125 West 55th Street New York, N.Y. 10019 Telecopier No.: (212) 424-8500 Attention: Joan Monahan The Company, the Trustee or the Depositary by notice to the other may designate additional or different addresses for subsequent notices or communications. Any notice or communication mailed to a Holder of a Certificated Note shall be mailed to him at his address as it appears on the Register by first class mail and shall be sufficiently given to him if so mailed within the time prescribed. Copies of any such communication or notice to a Holder shall also be mailed to the Trustee and each Agent at the same time. Failure to mail a notice or communication to a Holder as provided herein or any defect in it shall not affect its sufficiency with respect to other Holders. Except for a notice to the Trustee, which is deemed given only when received, and except as otherwise provided in this Indenture, if a notice or communication is mailed in the manner provided in this Section 11.02, it is duly given, whether or not the addressee receives it. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. SECTION 11.03. 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 stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and (b) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with. SECTION 11.04. Statements Required in Certificate or Opinion . Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (a) a statement that each person signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statement or opinion contained in such certificate or opinion is based; (c) a statement that, in the opinion of each 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 complied with; and (d) a statement as to whether or not, in the opinion of each such person, such condition or covenant has been complied with; provided, however, that, with respect to matters of fact, an Opinion of Counsel may rely on an Officers' Certificate or certificates of public officials. SECTION 11.05. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 10.05. (b) The ownership of Notes shall be proved by the Register. (c) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future Holder of the same Note or the Holder of every Note issued upon the transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done, suffered or omitted to be done by the Trustee, any Paying Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Note. (d) If the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver of other act, the Company may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of such Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other act, but the Company shall have no obligation to do so. Notwithstanding Trust Indenture Act Section 316(c), any such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not more than 30 days prior to the first solicitation of Holders generally in connection therewith and no later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for purposes of determining whether Holders of the requisite proportion of Notes then outstanding have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other act, and for this purpose the Notes then outstanding shall be computed as of such record date; provided that no such request, demand, authorization, direction, notice, consent, waiver or other act by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date. SECTION 11.06. Rules by Trustee, Paying Agent or Registrar. The Trustee may make reasonable rules for action by or at a meeting of Holders. The Paying Agent or Registrar may make reasonable rules for its functions. SECTION 11.07. Agent for Service; Submission to Jurisdiction; Waiver of Immunities . By the execution and delivery of this Indenture, each of the Company and the Guarantor (i) acknowledges that it has designated and appointed [ ], as its authorized agent upon which process may be served in any suit, action or proceeding arising out of or relating to the Notes or this Indenture that may be instituted in any federal or state court in the State of New York, Borough of Manhattan, or brought under federal or state securities laws or brought by the Trustee (whether in its individual capacity or in its capacity as Trustee hereunder), and acknowledges that [ ] has accepted such designation, (ii) submits to the non-exclusive jurisdiction of any such court in any such suit, action or proceeding, and (iii) agrees that service of process upon [ ] and written notice of said service to the Company (mailed or delivered to its General Counsel at its principal office as specified in Section 11.02) shall be deemed in every respect effective service of process upon it in any such suit or proceeding. The Company further agrees to take any and all action, including the execution and filing of any and all such documents and instruments as may be necessary to continue such designation and appointment of [ ] in full force and effect so long as this Indenture shall be in full force and effect or any of the Notes shall be outstanding. To the extent that the Company has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Company hereby irrevocably waives such immunity in respect of its obligations under this Indenture and the Notes, to the extent permitted by law. SECTION 11.08. Payment Date Other Than a Business Day. If an Interest Payment Date, Redemption Date, Payment Date or Stated Maturity of any Note shall not be a Business Day, then payment of Accreted Value of, premium, if any, or interest on such Note, as the case may be, need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date, Payment Date or Redemption Date, or at the Stated Maturity of such Note, provided that no interest shall accrue for the period from and after such Interest Payment Date, Payment Date, Redemption Date or Stated Maturity, as the case may be. SECTION 11.09. Governing Law . This Indenture and the Notes shall be governed by the laws of the State of New York excluding (to the greatest extent permissible by law) any rule of law that would cause the application of the laws of any jurisdiction other than the State of New York. SECTION 11.10. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or any Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture. SECTION 11.10. No Recourse Against Others. No recourse for the payment of the Accreted Value of, premium, if any, or interest on any of the Notes, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company contained in this Indenture or in any of the Notes, or because of the creation of any Indebtedness represented thereby, shall be had against any incorporator, stockholder, officer, director, employee or controlling person, as such, of the Company or the Guarantor or of any successor Person thereof, either directly or through the Company or any successor Person, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Notes. SECTION 11.11. Successors . All agreements of the Company in this Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors. SECTION 11.12. Duplicate 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. Separability. In case any provision in this Indenture or in the Notes 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 11.14. 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 hereof and shall in no way modify or restrict any of the terms and provisions hereof. SIGNATURES IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the date first written above. ORION NEWCO SERVICES, INC. BANKERS TRUST COMPANY By: _____________________________ By: ___________________________ Name: ___________________________ Name: _________________________ Title: ___________________________ Title: ________________________ ORION NETWORK SYSTEMS, INC. ORION SATELLITE CORPORATION By: _____________________________ By: ___________________________ Name: ___________________________ Name: _________________________ Title: ___________________________ Title: ________________________ ORIONNET, INC. ORION ATLANTIC EUROPE, INC. By: _____________________________ By: ___________________________ Name: ___________________________ Name: _________________________ Title: ___________________________ Title: ________________________ ORION ASIA PACIFIC CORPORATION ORIONNET FINANCE CORPORATION By: _____________________________ By: ___________________________ Name: ___________________________ Name: _________________________ Title: ___________________________ Title: ________________________ ASIA PACIFIC SPACE AND INTERNATIONAL PRIVATE SATELLITE COMMUNICATIONS, LTD. PARTNERS, L.P. By: _____________________________ By: ___________________________ Name: ___________________________ Name: _________________________ Title: ___________________________ Title: ________________________ EXHIBIT A FORM OF GLOBAL NOTE [FACE OF NOTE] THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF ONE NOTE WITH A PRINCIPAL AMOUNT AT MATURITY OF [ ] AND ONE WARRANT INITIALLY ENTITLING THE HOLDER THEREOF TO PURCHASE [ ] SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE, OF ORION NEWCO SERVICES, INC. (THE "COMMON STOCK"). PRIOR TO THE CLOSE OF BUSINESS UPON THE EARLIEST TO OCCUR OF (i) [ ], 1997, (ii) SUCH DATE AS THE UNDERWRITES MAY, IN THEIR DISCRETION DEEM APPROPRIATE OR (iii) IN THE EVENT OF AN OFFER TO PURCHASE, THE DATE THE COMPANY MAILS NOTICE THEREOF TO THE HOLDERS OF THE NOTES, THE NOTES EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE WARRANTS. THIS NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (III) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF ORION NEWCO SERVICES, INC. FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT; FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE ISSUE PRICE IS $[ ], THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $[ ]. FOR ADDITIONAL INFORMATION REGARDING ORIGINAL ISSUE DISCOUNT, PLEASE CONTACT ORION NEWCO SERVICES, 2440 RESEARCH BOULEVARD, SUITE 40, ROCKVILLE, MARYLAND, 20850 ORION NEWCO SERVICES, INC. [___]% Senior Discount Note Due 2007 CUSIP [ ________] No. __________ Issue Date: ______________________ ORION NEWCO SERVICES, INC., a Delaware corporation, with registration number [_______] (the "Company", which term includes any successor under the Indenture hereinafter referred to), for value received, promises to pay to the bearer upon surrender hereof the principal sum of _________________________________ United States Dollars (U.S.$________________) on 2007. Interest Payment Dates: [ ] and [ ], commencing [ ] 2002. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which provisions shall have the same effect as if set forth hereon. IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officer. Date: ORION NEWCO SERVICES, INC. By: ___________________________ Name: _________________________ Title: ________________________ This is one of the [___]% Senior Discount Notes due 2007 described in the within-mentioned Indenture. BANKERS TRUST COMPANY, as Trustee By: _________________________________ Authorized Officer [REVERSE SIDE OF NOTE] ORION NEWCO SERVICES, INC. [___]% Senior Discount Note due 2007 1. Principal and Interest. Orion Newco Services, Inc. (the "Company") will pay the principal of this Note on [_________________], 2007. The Company promises to pay interest on the principal amount of this Note on each Interest Payment Date, as set forth below, at the rate per annum shown above. Interest on the Notes shall accrue at the rate of [___]% per annum (the "Interest Rate") and shall be payable in U.S. dollars in cash semi-annually in arrears on [ ] and [ ] (each an "Interest Payment Date"); provided that no interest shall accrue or be prior to [ ], 2002. Interest on the Notes will accrue from the most recent date to which interest has been paid or duly provided for, or if no interest has been paid or duly provided for, from the date of original issuance hereof. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. The Company shall pay interest on overdue principal and premium, if any, and (to the extent lawful) interest on overdue installments of interest at the rate of [___]% per annum. 2. Method of Payment. The Company will pay interest and principal to the Depositary, with respect to any Global Note held by the Depositary. The Company will pay principal, premium, if any, and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. However, the Company may pay principal, premium, if any, and interest by check payable in such money. If a payment date is a date other than a Business Day at a place of payment, payment may be made at that place on the next succeeding day that is a Business Day and no interest shall accrue for the intervening period. 3. Paying Agent and Registrar. Initially, the Trustee will act as Paying Agent and Registrar. The Company may change any Paying Agent and Registrar without notice in accordance with the Indenture. The Company, any Affiliate or any Subsidiary thereof may act as the Paying Agent or Registrar. 4. Indenture; Limitations. The Company issued the Notes under an Indenture dated as of [__________], 1997 (the "Indenture"), between the Company, Orion Network Systems, Inc., Orion Satellite Corporation, International Private Satellite Partners, L.P., OrionNet, Inc., Orion Asia Pacific Corporation, Asia Pacific Space and Communications, Ltd., Orion Atlantic Europe, Inc. and OrionNet Finance Corporation, as guarantors, and the Bankers Trust Company, as trustee (the "Trustee"). Capitalized terms herein are used as defined in the Indenture unless otherwise indicated. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act. The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Note and the terms of the Indenture, the terms of the Indenture shall control. The Notes are unsecured senior indebtedness of the Company. The Indenture limits the aggregate principal amount of the Notes to $[ ]. 5. Optional Redemption. The Notes will be redeemable, at the Company's option, in whole or in part, at any time or from time to time on or after [ ], 2002 and prior to maturity, upon not less than 30 nor more than 60 days' prior notice, at the following Redemption Prices (expressed in percentages of their principal amount), plus accrued and unpaid interest, if any, to the Redemption Date if redeemed during the 12-month period commencing on October [__] of the applicable years set forth below: Year Redemption Price 2002 [_____]% 2003 [_____]% 2004 and thereafter 100.000% 6. Selection of Notes for Partial Redemption; Effect of Redemption Notice. In the case of any partial redemption, selection of the Notes for redemption will be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not listed on a national securities exchange, on a pro rata basis, by lot or by such method as the Trustee in its sole discretion shall deem to be fair and appropriate; provided that no Note of $1,000 in principal amount or less shall be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption relating to such Note shall state the portion of the principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Note. Upon the giving of any redemption notice, interest on Notes called for redemption will cease to accrue from and after the date fixed for redemption (unless the Company defaults in providing the funds for such redemption) and such Notes will then cease to be outstanding. 7. Notice of Redemption. Notice of any optional redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holders of Notes to be redeemed at such Holder's registered address as it appears in the Register. 8. Repurchase upon Change of Control. Upon the occurrence of any Change of Control, the Company will be obligated to make an offer to purchase all outstanding Notes pursuant to the Offer to Purchase described in the Indenture at a purchase price equal to 101% of the aggregate Accreted Value thereof plus accrued and unpaid interest, if any, to the date of purchase (the "Change of Control Payment"). A notice of such Change of Control will be mailed within 30 days after any Change of Control occurs to each Holder of Notes at such Holder's registered address as it appears in the Register. Notes in original denominations larger than $1,000 may be sold to the Company in part; provided that Notes will only be issued in denominations of $1,000 principal amount at maturity or integral multiples thereof. On and after the Payment Date, interest ceases to accrue on Notes or portions of Notes surrendered for purchase by the Company, unless the Company defaults in the payment of the Change of Control Payment. 9. Denomination. This Global Note is in fully registered form without coupons and is denominated in an amount equal to $1,000 of principal amount at maturity or an integral multiple thereof and is transferable by delivery. This Note is a Global Note. 10. Persons Deemed Owners. The holder of this Note shall be treated as the owner of this Note for all purposes. 11. Unclaimed Money. If money for the payment of principal, premium, if any, and interest remains unclaimed for two years, the Trustee and the Paying Agent will pay the money back to the Company at its request. After that, Holders entitled to the money must look to the Company for payment, unless an applicable law designates another Person, and all liability of the Trustee and such Paying Agent with respect to such money shall cease. 12. Discharge Prior to Redemption or Maturity. If the Company deposits with the Trustee money or U.S. Government Obligations sufficient to pay the then outstanding principal of, premium, if any, and accrued interest on the Notes (a) to redemption or Stated Maturity, the Company will be discharged from the Indenture and the Notes, except in certain circumstances for certain sections thereof, or (b) the Company will be discharged from certain covenants set forth in the Indenture. 13. Amendment; Supplement; Waiver. Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding, and any existing default or compliance with any provision may be waived with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding. Without notice to or the consent of any Holder, the parties thereto may amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency and make any change that does not materially and adversely affect the rights of any Holder. 14. Restrictive Covenants. The Indenture imposes certain limitations on the ability of the Company and the Restricted Subsidiaries, among other things, to Incur additional Indebtedness; create Liens; pay dividends or make distributions in respect of their Capital Stock; make Investments or make certain other Restricted Payments; engage in Asset Sales; issue or sell stock of Restricted Subsidiaries; enter into transactions with stockholders or Affiliates; or, with respect to the Company, consolidate, merge or sell all or substantially all of its assets. Within 90 days after the end of the last fiscal quarter of each year, the Company must report to the Trustee on compliance with such limitations. 15. Successor Persons. Generally, when a successor person or other entity assumes all the obligations of its predecessor under the Notes and the Indenture, the predecessor person will be released from those obligations. 16. Defaults and Remedies. The following events will be defined as "Events of Default" in the Indenture: (a) default in the payment of principal of (or premium, if any, on) any Note when the same becomes due and payable at maturity, upon acceleration, redemption or otherwise; (b) default in the payment of interest on any Note when the same becomes due and payable, and such default continues for a period of 30 days; provided that a failure to make any of the first six scheduled interest payments on the Notes in a timely manner will constitute an Event of Default with no grace or cure period; (c) defaults in the performance or breach of the provisions of Section 5.01 of the Indenture or the failure to make or consummate an Offer to Purchase in accordance with Section 4.11 or Section 4.13 of the Indenture; (d) the Company defaults in the performance of or breaches any other covenant or agreement of the Company in the Indenture or under the Notes (other than a default specified in clause (a), (b) or (c) above) and such default or breach continues for a period of 30 consecutive days after written notice by the Trustee or the Holders of 25% or more in aggregate principal amount at maturity of the Notes; (e) there occurs with respect to any issue or issues of Indebtedness of the Company or any Significant Subsidiary having an outstanding principal amount of $10 million or more in the aggregate for all such issues of all such Persons, whether such Indebtedness now exists or shall hereafter be created, (I) an event of default that has caused the holder thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity and such Indebtedness has not been discharged in full or such acceleration has not been rescinded or annulled within 30 days of such acceleration and/or (II) the failure to make a principal payment at the final (but not any interim) fixed maturity and such defaulted payment shall not have been made, waived or extended within 30 days of such payment default; (f) any final judgment or order (not covered by insurance) for the payment of money in excess of $10 million in the aggregate for all such final judgments or orders against all such Persons (treating any deductibles, self-insurance or retention as not so covered) shall be rendered against the Company or any Significant Subsidiary and shall not be paid or discharged, and there shall be any period of 30 consecutive days following entry of the final judgment or order that causes the aggregate amount for all such final judgments or orders outstanding and not paid or discharged against all such Persons to exceed $10 million during which a stay of enforcement of such final judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; (g) a court having jurisdiction in the premises enters a decree or order for (A) relief in respect of the Company or any Significant Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (B) appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or any Significant Subsidiary or for all or substantially all of the property and assets of the Company or any Significant Subsidiary or (C) the winding up or liquidation of the affairs of the Company or any Significant Subsidiary and, in each case, such decree or order shall remain unstayed and in effect for a period of 30 consecutive days; or (h) the Company or any Significant Subsidiary (A) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (B) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or any Significant Subsidiary or for all or substantially all of the property and assets of the Company or any Significant Subsidiary or (C) effects any general assignment for the benefit of creditors. If an Event of Default (other than an Event of Default specified in clause (g) or (h) above that occurs with respect to the Company) occurs and is continuing under the Indenture, the Trustee or the Holders of at least 25% in aggregate accreted value outstanding, by written notice to the Company (and to the Trustee if such notice is given by the Holders), may, and the Trustee at the request of such Holders shall, declare the principal amount of, premium, if any, and accrued interest on the Notes to be immediately due and payable. Upon a declaration of acceleration, such principal amount of, premium, if any, and accrued interest shall be immediately due and payable. In the event of a declaration of acceleration because an Event of Default set forth in clause (e) above has occurred and is continuing, such declaration of acceleration shall be automatically rescinded and annulled if the event of default triggering such Event of Default pursuant to clause (e) shall be remedied or cured by the Company or the relevant Significant Subsidiary or waived by the holders of the relevant Indebtedness within 60 days after the declaration of acceleration with respect thereto. If an Event of Default specified in clause (g) or (h) above occurs with respect to the Company, the principal amount of, premium, if any, and accrued interest on the Notes then outstanding 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 at least a majority in principal amount at maturity of the outstanding Notes by written notice to the Company and to the Trustee, may waive all past defaults and rescind and annul a declaration of acceleration and its consequences if (i) all existing Events of Default, other than the nonpayment of the principal of, premium, if any, and interest on the Notes that have become due solely by such declaration of acceleration, have been cured or waived and (ii) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction. The Holders of at least a majority in aggregate principal amount at maturity of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or the Indenture, that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of Notes not joining in the giving of such direction and may take any other action it deems proper that is not inconsistent with any such direction received from Holders of Notes. A Holder may not pursue any remedy with respect to the Indenture or the Notes unless: (i) the Holder gives the Trustee written notice of a continuing Event of Default; (ii) the Holders of at least 25% in aggregate principal amount at maturity of outstanding Notes make a written request to the Trustee to pursue the remedy; (iii) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee against any costs, liability or expense; (iv) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and (v) during such 60-day period, the Holders of a majority in aggregate principal amount at maturity of the outstanding Notes do not give the Trustee a direction that is inconsistent with the request. However, such limitations do not apply to the right of any Holder of a Note to receive payment of the principal of, premium, if any, or interest on, such Note or to bring suit for the enforcement of any such payment, on or after the due date expressed in the Notes, which right shall not be impaired or affected without the consent of the Holder. 17. Trustee Dealings with Company. The Trustee under the Indenture, in its individual or any other capacity, may become owner or pledgee of Notes and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not the Trustee. 18. No Recourse Against Others. No recourse for the payment of the principal of, premium, if any, or interest on any of the Notes or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture, or in any of the Notes or because of the creation of any Indebtedness represented thereby, shall be had against any incorporator, stockholder, officer, director, employee or controlling person of the Company or of any successor Person thereof. Each Holder, by accepting the Notes, waives and releases all such liability. 19. Authentication. This Note shall not be valid until the Trustee or authenticating agent signs the certificate of authentication on the other side of this Note. 20. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS NOTE WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to Orion Newco Services, Inc., 2440 Research Boulevard, Suite 40, Rockville, Maryland 20850, Attention: [____________]. SCHEDULE A SCHEDULE OF PRINCIPAL AMOUNT OF INDEBTEDNESS EVIDENCED BY THIS NOTE The initial principal amount of indebtedness evidenced by this Note shall be $ , , . The following decreases/increases in the principal amount evidenced by this Note have been made:
Decrease in Increase in Total Principal Amount of Principal Principal this Global Note Following Notation Made Date of Decrease/ Amount of this Amount of this such Decrease/Increase by or on Increase Global Note Global Note Behalf of Trustee
OPTION OF HOLDER TO ELECT PURCHASE If you wish to have this Note purchased by the Company pursuant to Section 4.11 or Section 4.13 of the Indenture, check the box: If you wish to have a portion of this Note purchased by the Company pursuant to Section 4.11 or Section 4.13 of the Indenture, state the amount (in principal amount): $___________________ ($1000 or integral multiple thereof). Date: Your Signature: Signature Guarantee: ______________________________ EXHIBIT B FORM OF CERTIFICATED NOTE [FACE OF NOTE] THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF ONE NOTE WITH AMOUNT AT MATURITY OF $[____] AND ONE WARRANT INITIALLY ENTITLING THE HOLDER THEREOF TO PURCHASE AN EQUAL NUMBER OF SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE, OF ORION NEWCO SERVICES, INC. (THE "COMMON STOCK"). PRIOR TO THE CLOSE OF BUSINESS UPON THE EARLIEST TO OCCUR OF (i) [ ], 1997, (ii) SUCH DATE AS THE UNDERWRITES MAY, IN THEIR DISCRETION DEEM APPROPRIATE OR (iii) IN THE EVENT OF AN OFFER TO PURCHASE, THE DATE THE COMPANY MAILS NOTICE THEREOF TO THE HOLDERS OF THE NOTES, THE NOTES EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE WARRANTS. FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT; FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE ISSUE PRICE IS $[ ], THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $[ ]. FOR ADDITIONAL INFORMATION REGARDING ORIGINAL ISSUE DISCOUNT, PLEASE CONTACT ORION NEWCO SERVICES, 2440 RESEARCH BOULEVARD, SUITE 40, ROCKVILLE, MARYLAND, 20850 ORION NEWCO SERVICES, INC. [___]% Senior Discount Note Due 2007 CUSIP [ ________] No. __________ Issue Date: ______________________ ORION NEWCO SERVICES, INC., a Delaware corporation, with registration number [_______] (the "Company", which term includes any successor under the Indenture hereinafter referred to), for value received, promises to pay to the bearer upon surrender hereof the principal sum of _________________________________ United States Dollars (U.S.$________________) on 2007. Interest Payment Dates: [ ] and [ ], commencing [ ] 2002. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which provisions shall have the same effect as if set forth hereon. IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officer. Date: ORION NEWCO SERVICES, INC. By: ___________________________________ Name: _________________________________ Title:_________________________________ This is one of the [___]% Senior Discount Notes due 2007 described in the within-mentioned Indenture. BANKERS TRUST COMPANY, as Trustee By: _______________________________ Authorized Officer [REVERSE SIDE OF NOTE] ORION NEWCO SERVICES, INC. [___]% Senior Note due 2007 1. Principal and Interest. Orion Newco Services, Inc. (the "Company") will pay the principal of this Note on [_______________], 2007. The Company promises to pay interest on the principal amount of this Note on each Interest Payment Date, as set forth below, at the rate per annum shown above. Interest on the Notes shall accrue at the rate of [___]% per annum (the "Interest Rate") and shall be payable in U.S. dollars in cash semi-annually in arrears on [ ] and [ ] (each an "Interest Payment Date"); provided that no interest shall accure prior to [ ], 2002. Interest on the Notes will accrue from the most recent date to which interest has been paid or duly provided for, or if no interest has been paid or duly provided for, from the date of original issuance hereof. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. The Company shall pay interest on overdue principal and premium, if any, and (to the extent lawful) interest on overdue installments of interest at the rate of [___]% per annum. 2. Method of Payment. The Company will pay interest on the Notes to the Holder of this Note upon presentment hereof at the office of the Paying Agent of the Company maintained for that purpose in the Borough of Manhattan, the City of New York. Holders must surrender Notes to such Paying Agent to collect principal payments. The Company will pay principal, premium, if any, and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. However, the Company may pay principal, premium, if any, and interest by check payable in such money. If a payment date is a date other than a Business Day at a place of payment, payment may be made at that place on the next succeeding day that is a Business Day and no interest shall accrue for the intervening period. 3. Paying Agent and Registrar. Initially, the Trustee will act as Paying Agent and Registrar. The Company may change any Paying Agent and Registrar without notice in accordance with the Indenture. The Company, any Affiliate or any Subsidiary thereof may act as the Paying Agent or Registrar. 4. Indenture; Limitations. The Company issued the Notes under an Indenture dated as of [__________], 1997 (the "Indenture"), between the Company, Orion Network Systems, Inc., Orion Satellite Corporation, International Private Satellite Partners, L.P., OrionNet, Inc., Orion Asia Pacific Corporation, Asia Pacific Space and Communications, Ltd., Orion Atlantic Europe, Inc. and OrionNet Finance Corporation, as guarantors, and the Bankers Trust Company, as trustee (the "Trustee"). Capitalized terms herein are used as defined in the Indenture unless otherwise indicated. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act. The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Note and the terms of the Indenture, the terms of the Indenture shall control. The Notes are unsecured senior indebtedness of the Company. The Indenture limits the aggregate principal amount of the Notes to $[ ]. 5. Optional Redemption. The Notes will be redeemable, at the Company's option, in whole or in part, at any time or from time to time on or after [ ], 2002 and prior to maturity, upon not less than 30 nor more than 60 days' prior notice, at the following Redemption Prices (expressed in percentages of their principal amount), plus accrued and unpaid interest, if any, to the Redemption Date if redeemed during the 12-month period commencing on October [__] of the applicable years set forth below: Year Redemption Price 2002 [_____]% 2003 [_____]% 2004 and thereafter 100.000% 6. Selection of Notes for Partial Redemption; Effect of Redemption Notice. In the case of any partial redemption, selection of the Notes for redemption will be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not listed on a national securities exchange, on a pro rata basis, by lot or by such method as the Trustee in its sole discretion shall deem to be fair and appropriate; provided that no Note of $1,000 in principal amount or less shall be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption relating to such Note shall state the portion of the principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Note. Upon the giving of any redemption notice, interest on Notes called for redemption will cease to accrue from and after the date fixed for redemption (unless the Company defaults in providing the funds for such redemption) and such Notes will then cease to be outstanding. 7. Notice of Redemption. Notice of any optional redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Holders of Notes to be redeemed at such Holder's registered address as it appears in the Register. 8. Repurchase upon Change of Control. Upon the occurrence of any Change of Control, the Company will be obligated to make an offer to purchase all outstanding Notes pursuant to the Offer to Purchase described in the Indenture at a purchase price equal to 101% of the aggregate Accreted Value thereof plus accrued and unpaid interest, if any, to the date of purchase (the "Change of Control Payment"). A notice of such Change of Control will be mailed within 30 days after any Change of Control occurs to each Holder of Notes at such Holder's registered address as it appears in the Register. Notes in original denominations larger than $1,000 may be sold to the Company in part; provided that Notes will only be issued in denominations of $1,000 principal amount at maturity or integral multiples thereof. On and after the Payment Date, interest ceases to accrue on Notes or portions of Notes surrendered for purchase by the Company, unless the Company defaults in the payment of the Change of Control Payment. 9. Denomination. This Certificated Note is in fully registered form without coupons and is denominated in an amount equal to $1,000 of principal amount at maturity or an integral multiple thereof and is transferable by presentation or surrender to the registrar for registration of transfer either endorsed or accompanied by a written instrument of transfer in form satisfactory to the registrar. 10. Persons Deemed Owners. The holder of this Note shall be treated as the owner of this Note for all purposes. 11. Unclaimed Money. If money for the payment of principal, premium, if any, and interest remains unclaimed for two years, the Trustee and the Paying Agent will pay the money back to the Company at its request. After that, Holders entitled to the money must look to the Company for payment, unless an applicable law designates another Person, and all liability of the Trustee and such Paying Agent with respect to such money shall cease. 12. Discharge Prior to Redemption or Maturity. If the Company deposits with the Trustee money or U.S. Government Obligations sufficient to pay the then outstanding principal of, premium, if any, and accrued interest on the Notes (a) to redemption or Stated Maturity, the Company will be discharged from the Indenture and the Notes, except in certain circumstances for certain sections thereof, or (b) the Company will be discharged from certain covenants set forth in the Indenture. 13. Amendment; Supplement; Waiver. Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding, and any existing default or compliance with any provision may be waived with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding. Without notice to or the consent of any Holder, the parties thereto may amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency and make any change that does not materially and adversely affect the rights of any Holder. 14. Restrictive Covenants. The Indenture imposes certain limitations on the ability of the Company and the Restricted Subsidiaries, among other things, to Incur additional Indebtedness; create Liens; pay dividends or make distributions in respect of their Capital Stock; make Investments or make certain other Restricted Payments; engage in Asset Sales; issue or sell stock of Restricted Subsidiaries; enter into transactions with stockholders or Affiliates; or, with respect to the Company, consolidate, merge or sell all or substantially all of its assets. Within 90 days after the end of the last fiscal quarter of each year, the Company must report to the Trustee on compliance with such limitations. 15. Successor Persons. Generally, when a successor person or other entity assumes all the obligations of its predecessor under the Notes and the Indenture, the predecessor person will be released from those obligations. 16. Defaults and Remedies. The following events will be defined as "Events of Default" in the Indenture: (a) default in the payment of principal of (or premium, if any, on) any Note when the same becomes due and payable at maturity, upon acceleration, redemption or otherwise; (b) default in the payment of interest on any Note when the same becomes due and payable, and such default continues for a period of 30 days; provided that a failure to make any of the first six scheduled interest payments on the Notes in a timely manner will constitute an Event of Default with no grace or cure period; (c) defaults in the performance or breach of the provisions of Section 5.01 of the Indenture or the failure to make or consummate an Offer to Purchase in accordance with Section 4.11 or Section 4.13 of the Indenture; (d) the Company defaults in the performance of or breaches any other covenant or agreement of the Company in the Indenture or under the Notes (other than a default specified in clause (a), (b) or (c) above) and such default or breach continues for a period of 30 consecutive days after written notice by the Trustee or the Holders of 25% or more in aggregate principal amount at maturity of the Notes; (e) there occurs with respect to any issue or issues of Indebtedness of the Company or any Significant Subsidiary having an outstanding principal amount of $10 million or more in the aggregate for all such issues of all such Persons, whether such Indebtedness now exists or shall hereafter be created, (I) an event of default that has caused the holder thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity and such Indebtedness has not been discharged in full or such acceleration has not been rescinded or annulled within 30 days of such acceleration and/or (II) the failure to make a principal payment at the final (but not any interim) fixed maturity and such defaulted payment shall not have been made, waived or extended within 30 days of such payment default; (f) any final judgment or order (not covered by insurance) for the payment of money in excess of $10 million in the aggregate for all such final judgments or orders against all such Persons (treating any deductibles, self-insurance or retention as not so covered) shall be rendered against the Company or any Significant Subsidiary and shall not be paid or discharged, and there shall be any period of 30 consecutive days following entry of the final judgment or order that causes the aggregate amount for all such final judgments or orders outstanding and not paid or discharged against all such Persons to exceed $10 million during which a stay of enforcement of such final judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; (g) a court having jurisdiction in the premises enters a decree or order for (A) relief in respect of the Company or any Significant Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (B) appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or any Significant Subsidiary or for all or substantially all of the property and assets of the Company or any Significant Subsidiary or (C) the winding up or liquidation of the affairs of the Company or any Significant Subsidiary and, in each case, such decree or order shall remain unstayed and in effect for a period of 30 consecutive days; or (h) the Company or any Significant Subsidiary (A) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (B) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company or any Significant Subsidiary or for all or substantially all of the property and assets of the Company or any Significant Subsidiary or (C) effects any general assignment for the benefit of creditors. If an Event of Default (other than an Event of Default specified in clause (g) or (h) above that occurs with respect to the Company) occurs and is continuing under the Indenture, the Trustee or the Holders of at least 25% in aggregate accreted value outstanding, by written notice to the Company (and to the Trustee if such notice is given by the Holders), may, and the Trustee at the request of such Holders shall, declare the principal amount of, premium, if any, and accrued interest on the Notes to be immediately due and payable. Upon a declaration of acceleration, such principal amount of, premium, if any, and accrued interest shall be immediately due and payable. In the event of a declaration of acceleration because an Event of Default set forth in clause (e) above has occurred and is continuing, such declaration of acceleration shall be automatically rescinded and annulled if the event of default triggering such Event of Default pursuant to clause (e) shall be remedied or cured by the Company or the relevant Significant Subsidiary or waived by the holders of the relevant Indebtedness within 60 days after the declaration of acceleration with respect thereto. If an Event of Default specified in clause (g) or (h) above occurs with respect to the Company, the principal amount of, premium, if any, and accrued interest on the Notes then outstanding 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 at least a majority in principal amount at maturity of the outstanding Notes by written notice to the Company and to the Trustee, may waive all past defaults and rescind and annul a declaration of acceleration and its consequences if (i) all existing Events of Default, other than the nonpayment of the principal of, premium, if any, and interest on the Notes that have become due solely by such declaration of acceleration, have been cured or waived and (ii) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction. The Holders of at least a majority in aggregate principal amount at maturity of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or the Indenture, that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of Notes not joining in the giving of such direction and may take any other action it deems proper that is not inconsistent with any such direction received from Holders of Notes. A Holder may not pursue any remedy with respect to the Indenture or the Notes unless: (i) the Holder gives the Trustee written notice of a continuing Event of Default; (ii) the Holders of at least 25% in aggregate principal amount at maturity of outstanding Notes make a written request to the Trustee to pursue the remedy; (iii) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee against any costs, liability or expense; (iv) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and (v) during such 60-day period, the Holders of a majority in aggregate principal amount at maturity of the outstanding Notes do not give the Trustee a direction that is inconsistent with the request. However, such limitations do not apply to the right of any Holder of a Note to receive payment of the principal of, premium, if any, or interest on, such Note or to bring suit for the enforcement of any such payment, on or after the due date expressed in the Notes, which right shall not be impaired or affected without the consent of the Holder. 17. Trustee Dealings with Company. The Trustee under the Indenture, in its individual or any other capacity, may become owner or pledgee of Notes and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not the Trustee. 18. No Recourse Against Others. No recourse for the payment of the principal of, premium, if any, or interest on any of the Notes or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture, or in any of the Notes or because of the creation of any Indebtedness represented thereby, shall be had against any incorporator, stockholder, officer, director, employee or controlling person of the Company or of any successor Person thereof. Each Holder, by accepting the Notes, waives and releases all such liability. 19. Authentication. This Note shall not be valid until the Trustee or authenticating agent signs the certificate of authentication on the other side of this Note. 20. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. The internal laws of the State of New York shall govern this Note without regard to principles of conflict of laws. The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to Orion Newco Services, Inc., 2440 Research Boulevard, Suite 40, Rockville, Maryland 20850, Attention: [____________]. SCHEDULE A SCHEDULE OF PRINCIPAL AMOUNT OF INDEBTEDNESS EVIDENCED BY THIS NOTE The initial principal amount of indebtedness evidenced by this Note shall be $ , , . The following decreases/increases in the principal amount evidenced by this Note have been made:
Decrease in Increase in Total Principal Amount of Principal Principal this Global Note Following Notation Made Date of Decrease/ Amount of this Amount of this such Decrease/Increase by or on Increase Global Note Global Note Behalf of Trustee
OPTION OF HOLDER TO ELECT PURCHASE If you wish to have this Note purchased by the Company pursuant to Section 4.11 or Section 4.13 of the Indenture, check the box: If you wish to have a portion of this Note purchased by the Company pursuant to Section 4.11 or Section 4.13 of the Indenture, state the amount (in principal amount): $___________________ ($1000 or integral multiple thereof). Date: _______________________ Your Signature: ___________________________________ Signature Guarantee: ______________________________ EX-4.3 19 EXHIBIT 4.3 EXHIBIT C COLLATERAL PLEDGE AND SECURITY AGREEMENT This COLLATERAL PLEDGE AND SECURITY AGREEMENT (this "Pledge Agreement") is made and entered into as of [_________], 1997 by ORION NEWCO SERVICES, INC., a Delaware corporation (the "Pledgor"), having its principal office at 2440 Research Boulevard, Suite 40, Rockville, Maryland, 20850, in favor of BANKERS TRUST COMPANY, a banking corporation duly organized and existing under the laws of the State of New York, having an office at 4 Albany Street, New York, New York, 10006, Attention: Corporate Trustee Administration Department, as trustee (the "Trustee") for the holders (the "Holders") of the Notes (as defined herein) issued by the Pledgor under the Indenture referred to below. W I T N E S S E T H WHEREAS, the Pledgor, each of the Pledgor's Restricted Subsidiaries, as guarantors, and Bankers Trust Company, as Trustee, have entered into that certain indenture dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the "Indenture"), pursuant to which the Pledgor is issuing on the date hereof $[_________] in aggregate principal amount of [____]% Senior Notes due 2007 (the "Notes"); capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in the Indenture; and WHEREAS, the Pledgor has agreed, pursuant to the Indenture, to (i) purchase Government Securities (the "Pledged Securities") in an amount that will be sufficient upon receipt of scheduled interest and principal payments in respect thereof, in the opinion of a nationally recognized firm of independent accountants selected by the Pledgor and delivered to the Trustee, to provide for payment of the first six scheduled interest payments due on the Notes and (ii) place the Pledged Securities in an account held by the Trustee for the benefit of Holders of the Notes; and WHEREAS, upon the purchase of the Pledged Securities, the Pledgor will be the beneficial owner of the Pledged Securities; and WHEREAS, to secure the obligation of the Pledgor under the Indenture and the Notes to pay in full the first six scheduled interest payments on the Notes and to secure repayment of the Notes in the event that the Notes become due and payable prior to such time as the first six scheduled interest payments thereon shall have been paid in full (the "Obligations"), the Pledgor has agreed to (i) pledge to the Trustee for its benefit and the ratable benefit of the Holders of the Notes, a security interest in the Pledged Securities, all book-entry interests therein and the Pledge Account (as defined herein) and (ii) execute and deliver this Pledge Agreement in order to secure the payment and performance by the Pledger of all the Obligations. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises herein contained, and in order to induce the Holders of the Notes to purchase the Notes, the Pledgor hereby agrees with the Trustee, for the benefit of the Trustee and for the ratable benefit of the Holders of the Notes, as follows: SECTION 1. Pledge and Grant of Security Interest. The Pledgor hereby pledges to the Trustee for its benefit and for the ratable benefit of the Holders of the Notes, and grants to the Trustee for its benefit and for the ratable benefit of the Holders of the Notes, a continuing first priority security interest in and to (a) all of Pledgor's right, title and interest in the Pledged Securities and the Pledge Account, (b) all book-entry interests in the Pledged Securities and any certificates or other evidence of ownership representing the Pledged Securities and the Pledge Account, and (c) except as otherwise provided herein, all products and proceeds of any of the Pledged Securities and the Pledge Account, including, without limitation, all dividends, interest, principal payments, cash, options, warrants, rights, instruments, subscriptions and other property or proceeds from time to time received, receivable or otherwise distributed or distributable in respect of or in exchange for any or all of the Pledged Securities (collectively, the "Collateral"). SECTION 2. Security for Obligation. This Pledge Agreement secures the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of all the Obligations. SECTION 3. Delivery of Collateral; Pledge Account; Interest. (a) All certificates or instruments, if any, representing or evidencing the Collateral shall be delivered to and held by or on behalf of the Trustee pursuant hereto and shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank, all in form reasonably satisfactory to the Trustee, and all book-entry interests in the Pledged Securities shall be transferred to the Pledge Account through the individual account of the Trustee at the Federal Reserve Bank of New York. The Trustee in its individual capacity shall confirm in writing (such confirmation to be in the form of Exhibit A hereto) to the Pledgor and to the Trustee in its capacity as Trustee hereunder that it is holding the book-entry Pledged Securities for the benefit of the Trustee in its capacity as Trustee hereunder and the ratable benefit of the Holders of Notes and the Trustee shall duly record in its books and records that the Pledgor has pledged and granted a security interest in such book-entry interests in the Pledged Securities and in the Pledge Account to the Trustee on behalf of itself and the holders of the Notes. (b) Concurrently with the execution and delivery hereof and prior to the delivery of any certificates or instruments representing or evidencing the Collateral or transfer of book-entry interests in the Pledged Securities as provided in subsection (a) of this Section 3, the Trustee shall establish an account segregated from all other custodial or collateral accounts for the deposit of the Pledged Securities (the "Pledge Account") at its office at 4 Albany Street, New York, New York, 10006, Attention: Corporate Trustee Administration Department. Subject to the other terms and conditions of this Pledge Agreement, all funds or other property accepted by the Trustee pursuant to this Pledge Agreement shall be held in the Pledge Account for the benefit of the Trustee and for the ratable benefit of the Holders of the Notes and segregated from all other funds or other property otherwise held by the Trustee and all book-entry interests in the Pledged Securities shall be transferred to and held in the Pledge Account for the benefit of the Trustee and for the ratable benefit of the Holders of the Notes. (c) All interest earned on any Collateral shall be retained in the Pledge Account for the benefit of the Pledgor, pending disbursement pursuant to the terms hereof. SECTION 4. Disbursements. (a) Immediately prior to the due date of any of the first six scheduled interest payments on the Notes, the Pledgor may, pursuant to an Issuer Order, direct the Trustee to release from the Pledge Account proceeds sufficient to provide for payment in full of such interest then due on the Notes. Upon receipt of an Issuer Order, the Trustee will take any action necessary to provide for the payment of the interest on the Notes in accordance with the payment provisions of the Indenture to the Holders of the Notes from (and to the extent of) proceeds of the Pledged Securities in the Pledge Account. Nothing in this Section 4 shall affect the Trustee's rights to apply the Pledged Securities to the payments of amounts due on the Notes upon acceleration thereof. (b) If the Pledgor makes any interest payment or portion of an interest payment for which the Pledged Securities are collateral from a source of funds other than the Pledge Account ("Pledgor Funds"), the Pledgor may, after payment in full of such interest payment or portion thereof from proceeds of the Pledged Securities or such Pledgor Funds or both, direct the Trustee to release to the Pledgor or to another party at the direction of the Pledgor (the "Pledgor's Designee") proceeds from the Pledge Account in an amount less than or equal to the amount of Pledgor Funds applied to such interest payment. Upon receipt of an Issuer Order by the Trustee and any other documentation reasonably satisfactory to the Trustee to substantiate such use of Pledgor Funds by the Pledgor (including the certificate described in the following sentence), the Trustee will pay over to the Pledgor or the Pledgor's Designee, as the case may be, the requested amount from proceeds in the Pledge Account. Concurrently with any release of funds to the Pledgor pursuant to this Section 4(b), the Pledgor will deliver to the Trustee an Officers' Certificate stating that such release has been duly authorized by the Pledgor and will not contravene any provision of applicable law or the Certificate of Incorporation of the Pledgor or any material agreement or other material instrument binding upon the Pledgor or any of its subsidiaries or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Pledgor or any of its subsidiaries or result in the creation or imposition of any Lien on any assets of the Pledgor, except for the security interest granted under the Pledge Agreement. (c) If at any time the principal of and interest on the Pledged Securities held in the Pledge Account exceeds 100% of the amount sufficient, in the written opinion of a nationally recognized firm of independent accountants selected by the Pledgor and delivered to the Trustee, to provide for payment in full of the first six scheduled interest payments due on the Notes (or, in the event one or more interest payments have been made thereon, an amount sufficient to provide for the payment in full of any and all interest payments on the Notes then remaining, up to and including the sixth scheduled interest payment), the Pledgor may direct the Trustee to release any such overfunded amount to the Pledgor or to such other party as the Pledgor may direct. Upon receipt of an Issuer Order and any other documentation reasonably satisfactory to the Trustee to substantiate such excess, the Trustee shall pay over to the Pledgor or the Person designated by the Pledgor, as the case may be, any such overfunded amount. (d) Upon payment in full of the first six scheduled interest payments on the Notes in a timely manner, the security interest in the Collateral evidenced by this Pledge Agreement will automatically terminate and be of no further force and effect. Furthermore, upon the release of any Collateral from the Pledge Account in accordance with the terms of this Pledge Agreement, whether upon release of Collateral to Holders as payment of interest or otherwise, the security interest evidenced by this Pledge Agreement in such released Collateral will automatically terminate and be of no further force and effect. (e) The Pledgor covenants to give the Trustee at least one Business Day's notice (by Issuer Order) as to whether payment of interest will be made pursuant to Section 4(a) or 4(b) and as to the respective amounts of interest that will be paid pursuant to Section 4(a) or 4(b). If no such notice is given, the Trustee will act pursuant to Section 4(a) as if it had received an Issuer Order pursuant thereto for the payment in full of the interest then due. (f) The Trustee shall not be required to liquidate any Pledged Security in order to make any scheduled payment of interest or any release hereunder unless instructed to do so by Issuer Order. SECTION 5. Representations and Warranties. The Pledgor hereby represents and warrants that: (a) The execution and delivery by the Pledgor of, and the performance by the Pledgor of its obligations under, this Pledge Agreement will not contravene any provision of applicable law or the Certificate of Incorporation of the Pledgor or any material agreement or other material instrument binding upon the Pledgor or any of its subsidiaries or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Pledgor or any of its subsidiaries, or result in the creation or imposition of any Lien on any assets of the Pledgor, except for the security interest granted under this Pledge Agreement; no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for (i) the performance by the Pledgor of its obligations under this Pledge Agreement, (ii) the pledge by the Pledgor of the Collateral pursuant to this Pledge Agreement or (iii) the exercise by the Trustee of the rights provided for in this Pledge Agreement or the remedies in respect of the Collateral pursuant to this Pledge Agreement. (b) The Pledgor is the beneficial owner of the Collateral, free and clear of any Lien or claims of any person or entity (except for the security interests granted under this Pledge Agreement). No financing statement covering the Pledged Securities is on file in any public office other than the financing statements, if any, filed pursuant to this Pledge Agreement. (c) This Pledge Agreement has been duly authorized, validly executed and delivered by the Pledgor and (assuming the due authorization and valid execution and delivery of this Pledge Agreement by the Trustee and enforceability of the Pledge Agreement against the Trustee in accordance with its terms) constitutes a valid and binding agreement of the Pledgor, enforceable against the Pledgor in accordance with its terms, except as (i) the enforceability hereof may be limited by bankruptcy, insolvency, fraudulent conveyance, preference, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting creditors' rights or remedies generally, (ii) the availability of equitable remedies may be limited by equitable principles of general applicability and the discretion of the court before which any proceeding therefor may be brought, (iii) rights to indemnification hereunder may be limited by U.S. federal and state securities laws and public policy considerations and (iv) the waiver of rights and defenses contained in Section 12(b), Section 15.11 and Section 15.16 hereof may be limited by applicable law. (d) Upon the delivery to the Trustee of the certificates or instruments, if any, representing or evidencing the Pledged Securities, the filing of financing statements, if any, required by the Uniform Commercial Code (the "UCC") in the appropriate offices in the State of New York, and upon the transfer by the Trustee in its individual capacity and the due recording in the books and records of the Trustee in its capacity as trustee hereunder of interests in the Pledged Securities to and in the name of the Trustee for its benefit and the ratable benefit of the Holders of the Notes and the due recording by the Trustee in its books and records that the Pledgor has pledged and granted a security interest in such interests in the Pledged Securities to the Trustee on behalf of itself and the holders of the Notes and receipt by the Trustee and the Pledgor of written confirmation thereof in the form of Exhibit A hereto, the pledge of and grant of a security interest in the Collateral securing the payment of the Obligations for the benefit of the Trustee and the Holders of the Notes will constitute a first priority perfected security interest in such Collateral, enforceable as such against all creditors of the Pledgor and any persons purporting to purchase any of the Collateral from the Pledgor, other than as permitted by the Indenture. (e) There are no legal or governmental proceedings pending or, to the best of the Pledgor's knowledge, threatened to which the Pledgor or any of its subsidiaries is a party or to which any of the properties of the Pledgor or any such subsidiary is subject that would materially adversely affect the power or ability of the Pledgor to perform its obligations under this Pledge Agreement or to consummate the transactions contemplated hereby. (f) The pledge of the Collateral pursuant to this Pledge Agreement is not prohibited by any applicable law or governmental regulation, release, interpretation or opinion of the Board of Governors of the Federal Reserve System or other regulatory agency (including, without limitation, Regulations G, T, U and X of the Board of Governors of the Federal Reserve System). (g) No Event of Default exists. SECTION 6. Further Assurances. The Pledgor will, promptly upon request by the Trustee, execute and deliver or cause to be executed and delivered, or use its reasonable best efforts to procure, all stock powers, proxies, assignments, instruments and other documents, all in form and substance reasonably satisfactory to the Trustee, deliver any instruments to the Trustee and take any other actions that are necessary or, in the reasonable opinion of the Trustee, desirable to perfect, continue the perfection of, or protect the first priority of the Trustee's security interest in and to the Collateral, to protect the Collateral against the rights, claims, or interests of third persons or to effect the purposes of this Pledge Agreement. The Pledgor also hereby authorizes the Trustee to file any financing or continuation statements in the United States with respect to the Collateral without the signature of the Pledgor (to the extent permitted by applicable law). The Pledgor will promptly pay all reasonable costs incurred in connection with any of the foregoing within 45 days of receipt of an invoice therefor. The Pledgor also agrees, whether or not requested by the Trustee, to take all actions that are necessary to perfect or continue the perfection of, or to protect the first priority of, the Trustee's security interest in and to the Collateral, including the filing of all necessary financing and continuation statements, and to protect the Collateral against the rights, claims or interests of third persons. SECTION 7. Covenants. The Pledgor covenants and agrees with the Trustee and the Holders of the Notes from and after the date of this Pledge Agreement until the earlier of payment in full in cash of (x) each of the first six scheduled interest payments due on the Notes under the terms of the Indenture or (y) all obligations due and owing under the Indenture and the Notes in the event such obligations become due and payable prior to the payment of the first six scheduled interest payments on the Notes: (a) that it will not (i) sell or otherwise dispose of, or grant any option or warrant with respect to, any of the Collateral or (ii) create or permit to exist any Lien upon or with respect to any of the Collateral (except for the Lien created pursuant to this Pledge Agreement) and at all times will be the sole beneficial owner of the Collateral; or (b) that it will not (i) enter into any agreement or understanding that purports to or may restrict or inhibit the Trustee's rights or remedies hereunder, including, without limitation, the Trustee's right to sell or otherwise dispose of the Collateral or (ii) fail to pay or discharge any tax, assessment or levy of any nature with respect to the Collateral not later than five days prior to the date of any proposed sale under any judgment, writ or warrant of attachment with respect to the Collateral. SECTION 8. Power of Attorney. In addition to all of the powers granted to the Trustee pursuant to the Indenture, the Pledgor hereby appoints and constitutes the Trustee as the Pledgor's attorney-in-fact (with full power of substitution) to exercise to the fullest extent permitted by law all of the following powers upon and at any time after the occurrence and during the continuance of an Event of Default; (a) collection of proceeds of any Collateral; (b) conveyance of any item of Collateral to any purchaser thereof; (c) giving of any notices or recording of any Liens under Section 6 hereof: (d) making of any payments or taking any acts under Section 9 hereof and (e) paying or discharging taxes or Liens levied or placed upon the Collateral, the legality or validity thereof and the amounts necessary to discharge the same to be determined by the Trustee in its sole reasonable discretion, and such payments made by the Trustee to become part of the Obligations of the Pledgor to the Trustee, due and payable immediately upon demand. The Trustee's authority under this Section 8 shall include, without limitation, the authority to endorse and negotiate any checks or instruments representing proceeds of Collateral in the name of the Pledgor, execute and give receipt for any certificate of ownership or any document constituting Collateral, transfer title to any item of Collateral, sign the Pledgor's name on all financing statements (to the extent permitted by applicable law) or any other documents deemed necessary or appropriate by the Trustee to preserve, protect or perfect the security interest in the Collateral and to file the same, prepare, file and sign the Pledgor's name on any notice of Lien, and to take any other actions arising from or incident to the powers granted to the Trustee in this Pledge Agreement. This power of attorney is coupled with an interest and is irrevocable by the Pledgor. SECTION 9. Trustee May Perform. If the Pledgor fails to perform any agreement contained herein, the Trustee may itself perform, or cause the performance of, such agreement, and the reasonable expenses of the Trustee incurred in connection therewith shall be payable by the Pledgor under Section 13 hereof. SECTION 10. No Assumption of Duties; Reasonable Care. The rights and powers granted to the Trustee hereunder are being granted in order to preserve and protect the Trustee's and the Holders' of the Notes security interest in and to the Collateral granted hereby and shall not be interpreted to, and shall not impose any duties on the Trustee in connection therewith other than those expressly provided herein or imposed under applicable law. Except as provided by applicable law, the Trustee shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which the Trustee accords similar property in similar situations, it being understood that the Trustee shall not have any responsibility for (a) ascertaining or taking action with respect to calls, conversions, exchanges, maturities or other matters relative to any Collateral, whether or not the Trustee has or is deemed to have knowledge of such matters, (b) taking any necessary steps to preserve rights against any parties with respect to any Collateral or (c) investing or reinvesting any of the Collateral. SECTION 11. Indemnity. The Pledgor shall indemnify, hold harmless and defend the Trustee and its directors, officers, agents and employees, from and against any and all claims, actions, obligations, liabilities and expenses, including reasonable defense costs, reasonable investigative fees and costs, and reasonable legal fees and damages arising from the Trustee's performance under this Pledge Agreement, except to the extent that such claim, action, obligation, liability or expense is directly attributable to the bad faith, gross negligence or wilful misconduct of such indemnified person. SECTION 12. Remedies Upon Event of Default. If any Event of Default under the Indenture or default hereunder (any such Event of Default or default being referred to in this Pledge Agreement as an "Event of Default") shall have occurred and be continuing: (a) The Trustee and the Holders of the Notes shall have, in addition to all other rights given by law or by this Pledge Agreement or the Indenture, all of the rights and remedies with respect to the Collateral of a secured party under the UCC in effect in the State of New York at that time. In addition, with respect to any Collateral that shall then be in or shall thereafter come into the possession or custody of the Trustee, the Trustee may sell or cause the same to be sold at any broker's board or at public or private sale, in one or more sales or lots, at such price or prices as the Trustee may deem best, for cash or on credit or for future delivery, without assumption of any credit risk. The purchaser of any or all Collateral so sold shall thereafter hold the same absolutely, free from any claim, encumbrance or right of any kind whatsoever created by or through the Pledgor. Unless any of the Collateral threatens, in the reasonable judgment of the Trustee, to decline speedily in value or is or becomes of a type sold on a recognized market, the Trustee will give the Pledgor reasonable notice of the time and place of any public sale thereof, or of the time after which any private sale or other intended disposition is to be made. Any sale of the Collateral conducted in conformity with reasonable commercial practices of banks, insurance companies, commercial finance companies, or other financial institutions disposing of property similar to the Collateral shall be deemed to be commercially reasonable. Any requirements of reasonable notice shall be met if such notice is mailed to the Pledgor as provided in Section 15.1 hereof at least ten (10) days before the time of the sale or disposition. The Trustee or any Holder of Notes may, in its own name or in the name of a designee or nominee, buy any of the Collateral at any public sale and, if permitted by applicable law, at any private sale. All expenses (including court costs and reasonable attorneys' fees, expenses and disbursements) of, or incident to, the enforcement of any of the provisions hereof shall be recoverable from the proceeds of the sale or other disposition of the Collateral. (b) The Pledgor further agrees to use its reasonable best efforts to do or cause to be done all such other acts as may be necessary to make such sale or sales of all or any portion of the Collateral pursuant to this Section 12 valid and binding and in compliance with any and all other applicable requirements of law. The Pledgor further agrees that a breach of any of the covenants contained in this Section 12 will cause irreparable injury to the Trustee and the Holders of the Notes, that the Trustee and the Holders of the Notes have no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section 12 shall be specifically enforceable against the Pledgor, and the Pledgor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no Event of Default has occurred. SECTION 13. Expenses. The Pledgor will upon demand pay to the Trustee the amount of any and all reasonable expenses, including, without limitation, the reasonable fees, expenses and disbursements of its counsel, experts and agents retained by the Trustee, that the Trustee may incur in connection with (a) the review, negotiation and administration of this Pledge Agreement, (b) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, (c) the exercise or enforcement of any of the rights of the Trustee and the Holders of the Notes hereunder or (d) the failure by the Pledgor to perform or observe any of the provisions hereof. The lien in favor of the Trustee created by Section 10.01 of the Indenture shall in addition to securing the Pledgor's payment obligations under such Section 10.01 secure the Pledgor's payment obligations under Section 11 and 13 hereof. SECTION 14. Security Interest Absolute. All rights of the Trustee and the Holders of the Notes and security interests hereunder, and all obligations of the Pledgor hereunder, shall be absolute and unconditional irrespective of: (a) any lack of validity or enforceability of the Indenture or any other agreement or instrument relating thereto; (b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any departure from the Indenture; (c) any exchange, surrender, release or non-perfection of any Liens on any other collateral for all or any of the Obligations; or (d) to the extent permitted by applicable law, any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Pledgor in respect of the Obligations or of this Pledge Agreement. SECTION 15. Miscellaneous Provisions. Section 15.1. Notices. All notices, approvals, consents or other communications required or desired to be given hereunder shall be in the form and manner, and delivered to each of the parties hereto at their respective addresses, as set forth or provided for in Section 12.02 of the Indenture. Section 15.2. No Adverse Interpretation of Other Agreements. This Pledge Agreement may not be used to interpret another pledge, security or debt agreement of the Pledgor or any subsidiary thereof. No such pledge, security or debt agreement may be used to interpret this Pledge Agreement. Section 15.3. Severability. The provisions of this Pledge Agreement are severable, and if any clause or provision shall be held invalid, illegal or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability shall affect in that jurisdiction only such clause or provision, or part thereof, and shall not in any manner affect such clause or provision in any other jurisdiction or any other clause or provision of this Pledge Agreement in any jurisdiction. Section 15.4. Headings. The headings in this Pledge Agreement have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof. Section 15.5. Counterpart Originals. This Pledge Agreement may be signed in two or more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same agreement. Section 15.6. Benefits of Pledge Agreement. Nothing in this Pledge Agreement, express or implied, shall give to any person, other than the parties hereto and their successors hereunder, and the Holders of the Notes, any benefit or any legal or equitable right, remedy or claim under this Pledge Agreement. Section 15.7. Amendments, Waivers and Consents. Any amendment or waiver of any provision of this Pledge Agreement and any consent to any departure by the Pledgor from any provision of this Pledge Agreement shall be effective only if made or duly given in compliance with all of the terms and provisions of the Indenture, and neither the Trustee nor any Holder of Notes shall be deemed, by any act, delay, indulgence, omission or otherwise, to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default or in any breach of any of the terms and conditions hereof. Failure of the Trustee or any Holder of Notes to exercise, or delay in exercising, any right, power or privilege hereunder shall not preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Trustee or any Holder of Notes of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy that the Trustee or such Holder of Notes would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any rights or remedies provided by law. Section 15.8. Interpretation of Agreement. All terms not defined herein or in the Indenture shall have the meaning set forth in the applicable UCC, except where the context otherwise requires. To the extent a term or provision of this Pledge Agreement conflicts with the Indenture, the Indenture shall control with respect to the subject matter of such term or provision. Acceptance of or acquiescence in a course of performance rendered under this Pledge Agreement shall not be relevant to determine the meaning of this Pledge Agreement even though the accepting or acquiescing party had knowledge of the nature of the performance and opportunity for objection. Section 15.9. Continuing Security Interest; Termination. (a) This Pledge Agreement shall create a continuing security interest in and to the Collateral and shall, unless otherwise provided in the Indenture or in this Pledge Agreement, remain in full force and effect until the earlier of payment in full in cash of (i) each of the first six scheduled interest payments due on the Notes under the terms of the Indenture or (ii) all obligations due and owing under the Indenture and the Notes in the event such obligations become payable prior to the payment of the first six scheduled interest payments on the Notes. This Pledge Agreement shall be binding upon the Pledgor, its transferees, successors and assigns, and shall inure, together with the rights and remedies of the Trustee hereunder, to the benefit of the Trustee, the Holders of the Notes and their respective successors, transferees and assigns. (b) Subject to the provisions of Section 15.10 hereof, this Pledge Agreement shall terminate upon the earlier of payment in full in cash of (i) each of the first six scheduled interest payments due on the Notes under the terms of the Indenture or (ii) all obligations due and owing under the Indenture and the Notes in the event such obligations become payable prior to the payment of the first six scheduled interest payments on the Notes. At such time, the Trustee shall, pursuant to an Issuer Order, reassign and redeliver to the Pledgor all of the Collateral hereunder that has not been sold, disposed of, retained or applied by the Trustee in accordance with the terms of this Pledge Agreement and the Indenture. Such reassignment and redelivery shall be without warranty by or recourse to the Trustee, except as to the absence of any prior assignments by the Trustee of its interest in the Collateral, and shall be at the reasonable expense of the Pledgor. Section 15.10. Survival Provisions. All representations, warranties and covenants of the Pledgor contained herein shall survive the execution and delivery of this Pledge Agreement, and shall terminate only upon the termination of this Pledge Agreement. The obligations of the Pledgor under Sections 11 and 13 hereof shall survive the termination of this Agreement. Section 15.11. Waivers. The Pledgor waives presentment and demand for payment of any of the Obligations, protest and notice of dishonor or default with respect to any of the Obligations, and all other notices to which the Pledgor might otherwise be entitled, except as otherwise expressly provided herein or in the Indenture. Section 15.12. Authority of the Trustee. (a) The Trustee shall have and be entitled to exercise all powers hereunder that are specifically granted to the Trustee by the terms hereof, together with such powers as are reasonably incident thereto. The Trustee may perform any of its duties hereunder or in connection with the Collateral by or through agents or employees and shall be entitled to retain counsel and to act in reliance upon the advice of counsel concerning all such matters. Neither the Trustee nor any director, officer, employee, attorney or agent of the Trustee shall be liable to the Pledgor for any action taken or omitted to be taken by it hereunder, except for its own bad faith, gross negligence or wilful misconduct, and the Trustee shall not be responsible for the validity, effectiveness or sufficiency hereof or of any document or security furnished pursuant hereto. The Trustee and its directors, officers, employees, attorneys and agents shall be entitled to rely on any communication, instrument or document believed by it or them to be genuine and correct and to have been signed or sent by the proper person or persons. (b) The Pledgor acknowledges that the rights and responsibilities of the Trustee under this Pledge Agreement with respect to any action taken by the Trustee or the exercise or non-exercise by the Trustee of any option, right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Pledge Agreement shall, as between the Trustee and the Holders of the Notes, be governed by the Indenture and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Trustee and the Pledgor, the Trustee shall be conclusively presumed to be acting as agent for the Holders of the Notes with full and valid authority so to act or refrain from acting, and the Pledgor shall not be obligated or entitled to make any inquiry respecting such authority. Section 15.13. Limitation by Law. All rights, remedies and powers provided herein may be exercised only to the extent that they will not render this Pledge Agreement not entitled to be recorded, registered or filed under provisions of any applicable law. Section 15.14. Final Expression. This Pledge Agreement, together with any other agreement executed in connection herewith, is intended by the parties as a final expression of this Pledge Agreement and is intended as a complete and exclusive statement of the terms and conditions thereof. Section 15.15. Rights of Holders of the Notes. No Holder of Notes shall have any independent rights hereunder other than those rights granted to individual Holders of the Notes pursuant to Section 6.06 of the Indenture; provided that nothing in this subsection shall limit any rights granted to the Trustee under the Notes or the Indenture. Section 15.16. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL; WAIVER OF DAMAGES. (a) THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED UNDER THE LAWS OF THE STATE OF NEW YORK, AND ANY DISPUTE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE PLEDGOR, THE TRUSTEE AND THE HOLDERS OF THE NOTES IN CONNECTION WITH THIS PLEDGE AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. (b) THE PLEDGOR HAS APPOINTED [NAME OF AGENT FOR SERVICE OF PROCESS], [ADDRESS OF AGENT FOR SERVICE OF PROCESS], AS ITS AGENT FOR SERVICE OF PROCESS IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT AND FOR ACTIONS BROUGHT UNDER U.S. FEDERAL OR STATE SECURITIES LAWS BROUGHT IN ANY FEDERAL OR STATE COURT LOCATED IN THE CITY OF NEW YORK AND AGREES TO SUBMIT TO THE JURISDICTION OF ANY SUCH COURT. (c) THE PLEDGOR AGREES THAT THE TRUSTEE SHALL, IN ITS CAPACITY AS TRUSTEE OR IN THE NAME AND ON BEHALF OF ANY HOLDER OF NOTES, HAVE THE RIGHT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST THE PLEDGOR OR ITS PROPERTY IN A COURT IN ANY LOCATION REASONABLY SELECTED IN GOOD FAITH (AND HAVING PERSONAL OR IN REM JURISDICTION OVER THE PLEDGOR OR ITS PROPERTY, AS THE CASE MAY BE) TO ENABLE THE TRUSTEE TO REALIZE ON SUCH PROPERTY, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE TRUSTEE. THE PLEDGOR AGREES THAT IT WILL NOT ASSERT ANY COUNTERCLAIMS, SETOFFS OR CROSSCLAIMS IN ANY PROCEEDING BROUGHT BY THE TRUSTEE TO REALIZE ON SUCH PROPERTY OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE TRUSTEE, EXCEPT FOR SUCH COUNTERCLAIMS, SETOFFS OR CROSSCLAIMS WHICH, IF NOT ASSERTED IN ANY SUCH PROCEEDING, COULD NOT OTHERWISE BE BROUGHT OR ASSERTED. THE PLEDGOR WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN THE CITY OF NEW YORK ONCE THE TRUSTEE HAS COMMENCED A PROCEEDING DESCRIBED IN THIS PARAGRAPH INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS. (d) THE PLEDGOR AND THE TRUSTEE EACH WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS PLEDGE AGREEMENT. INSTEAD, ANY DISPUTES RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY. (e) THE PLEDGOR AGREES THAT NEITHER THE TRUSTEE NOR ANY HOLDER OF NOTES SHALL HAVE ANY LIABILITY TO THE PLEDGOR (WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY THE PLEDGOR IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO, THE TRANSACTIONS CONTEMPLATED AND THE RELATIONSHIP ESTABLISHED BY THIS PLEDGE AGREEMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, UNLESS IT IS DETERMINED BY A FINAL AND NONAPPEALABLE JUDGMENT OF A COURT THAT IS BINDING ON THE TRUSTEE OR SUCH HOLDER OF NOTES, AS THE CASE MAY BE, THAT SUCH LOSSES WERE THE RESULT OF ACTS OR OMISSIONS ON THE PART OF THE TRUSTEE OR SUCH HOLDERS OF NOTES, AS THE CASE MAY BE, CONSTITUTING BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. (f) TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS OTHERWISE PROVIDED IN THIS PLEDGE AGREEMENT, THE PLEDGOR WAIVES ALL RIGHTS OF NOTICE AND HEARING OF ANY KIND PRIOR TO THE EXERCISE BY THE TRUSTEE OR ANY HOLDER OF NOTES OF ITS RIGHTS DURING THE CONTINUANCE OF ALL EVENTS OF DEFAULT TO REPOSSESS THE COLLATERAL WITH JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY UPON THE COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLEDGOR WAIVES THE POSTING OF ANY BOND OTHERWISE REQUIRED OF THE TRUSTEE OR ANY HOLDER OF NOTES IN CONNECTION WITH ANY JUDICIAL PROCESS OR PROCEEDING TO OBTAIN POSSESSION OF REPLEVY, ATTACH OR LEVY UPON THE COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS, TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE TRUSTEE OR ANY HOLDER OF NOTES, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER OR PRELIMINARY OR PERMANENT INJUNCTION, THIS PLEDGE AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN THE PLEDGOR ON THE ONE HAND AND THE TRUSTEE AND/OR THE HOLDERS OF THE NOTES ON THE OTHER HAND. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, the Pledgor and the Trustee have each caused this Pledge Agreement to be duly executed and delivered as of the date first above written. Pledgor: ORION NEWCO SERVICES, INC. By:____________________________ Name:__________________________ Title:_________________________ Trustee: BANKERS TRUST COMPANY, as Trustee By:____________________________ Name:__________________________ Title:_________________________ EXHIBIT A TO THE COLLATERAL PLEDGE AND SECURITY AGREEMENT Orion Newco Services, Inc. 2440 Research Boulevard Suite 40 Rockville, Maryland 20850 Attention: [___________________] Bankers Trust Company, as Trustee 4 Albany Street New York, New York 10006 Attention: Corporate Trustee Administration Department Ladies and Gentlemen: Reference is made to the Indenture dated as [__________], 1997 between Orion Newco Services, Inc., as issuer (the "Issuer"), each of the Issuer's Restricted Subsidiaries (as defined in the Indenture), as guarantors, and Bankers Trust Company, as trustee thereunder (the "Trustee"), relating to the [___]% Senior Notes due 2007 of the Issuer (the "Notes") and the Collateral Pledge and Security Agreement dated as of [__________], 1997 (the "Pledge Agreement") between the Issuer and the Trustee, for the benefit of the Trustee and the ratable benefit of the holders of the Notes. We hereby confirm that we are holding the Pledged Securities (as defined in the Pledge Agreement) in account no. [Account Number] (the "Account") at our office at 4 Albany Street, New York, New York, 10006, for the benefit of the Trustee and the ratable benefit of the holders of the Notes as provided in the Pledge Agreement and that we have indicated the same in our books and records relating to the Pledged Securities and the Account. Very truly yours, BANKERS TRUST COMPANY, in its individual capacity By:____________________________ Name:__________________________ Title:_________________________ EX-4.5 20 EXHIBIT 4.5 S&S DRAFT 01/20/97 WARRANT AGREEMENT between ORION NEWCO SERVICES, INC. and BANKERS TRUST COMPANY, Warrant Agent Dated as of [___________], 1997
TABLE OF CONTENTS Page ARTICLE I CERTAIN DEFINITIONS ARTICLE II ORIGINAL ISSUE OF WARRANTS Section 2.1. Form of Warrant Certificates................................................................ 5 Section 2.2. Legends..................................................................................... 6 Section 2.3. Execution and Delivery of Warrant Certificates.............................................. 7 Section 2.4. Transfer and Exchange....................................................................... 7 Section 2.5. Surrender of Warrant Certificates........................................................... 10 ARTICLE III EXERCISE PRICE; EXERCISE AND REPURCHASE OF WARRANTS Section 3.1. Exercise Price.............................................................................. 10 Section 3.2. Exercise; Restrictions on Exercise.......................................................... 10 Section 3.3. Method of Exercise; Payment of Exercise Price............................................... 11 Section 3.4. Repurchase Offers........................................................................... 12 ARTICLE IV ADJUSTMENTS Section 4.1. Adjustments................................................................................. 15 Section 4.2. Notice of Adjustment........................................................................ 22 Section 4.3. Statement on Warrants....................................................................... 22 Section 4.4. Notice of Consolidation, Merger, Etc........................................................ 22 Section 4.5. Fractional Interests........................................................................ 23 ARTICLE V DECREASE IN EXERCISE PRICE ARTICLE VI LOSS OR MUTILATION ARTICLE VII AUTHORIZATION AND RESERVATION OF COMMON SHARES ii Page ARTICLE VIII WARRANT HOLDERS Section 8.1. Warrant Holder Not Deemed a Stockholder..................................................... 24 Section 8.2. Right of Action............................................................................. 25 ARTICLE IX REMEDIES Section 9.1. Defaults.................................................................................... 25 Section 9.2. Payment Obligations......................................................................... 25 Section 9.3. Remedies; No Waiver......................................................................... 25 ARTICLE X THE WARRANT AGENT Section 10.1. Duties and Liabilities..................................................................... 26 Section 10.2. Right to Consult Counsel................................................................... 27 Section 10.3. Compensation; Indemnification.............................................................. 27 Section 10.4. No Restrictions on Actions................................................................. 27 Section 10.5. Discharge or Removal; Replacement Warrant Agent............................................ 28 Section 10.6. Successor Warrant Agent.................................................................... 29 ARTICLE XI REGISTRATION Section 11.1. Effectiveness and Availability of Registration Statement................................... 29 Section 11.2. Suspension................................................................................. 29 Section 11.3. Blue Sky................................................................................... 29 Section 11.4. Accuracy of Disclosure..................................................................... 30 Section 11.5. Indemnity.................................................................................. 30 Section 11.6. Expenses................................................................................... 30 Section 11.7. Additional Acts............................................................................ 30 ARTICLE XII MISCELLANEOUS Section 12.1. Money Deposited with the Warrant Agent..................................................... 31 Section 12.2. Payment of Taxes........................................................................... 31 Section 12.3. No Merger, Consolidation or Sale of Assets of Newco........................................ 31 iii Page Section 12.4. Reports to Holders......................................................................... 31 Section 12.5. Notices.................................................................................... 32 Section 12.6. Governing Law.............................................................................. 32 Section 12.7. Binding Effect............................................................................. 33 Section 12.8. Counterparts............................................................................... 33 Section 12.9. Amendments................................................................................. 33 Section 12.10. Headings.................................................................................. 33 Section 12.11. Common Shares Legend...................................................................... 33 Section 12.12. Third Party Beneficiaries................................................................. 34 Section 12.13. Submission to Jurisdiction; Appointment of Agent for Service.............................. 34 EXHIBIT A FORM OF WARRANT CERTIFICATE.................................A-1 APPENDIX A LIST OF FINANCIAL EXPERTS
2 WARRANT AGREEMENT WARRANT AGREEMENT, dated as of [_____________], 1997 (this "Agreement"), between ORION NEWCO SERVICES, INC., a Delaware corporation ("Newco"), and BANKERS TRUST COMPANY, a banking corporation duly organized and existing under the laws of the State of New York, as warrant agent (the "Warrant Agent"). Pursuant to the terms of an Underwriting Agreement dated as of [______________], 1997 (the "Underwriting Agreement"), between Newco and Orion Network Systems, Inc., a Delaware corporation ("Orion"), on the one hand, and Morgan Stanley & Co. Incorporated ("Morgan Stanley") and Merrill Lynch & Co., as Underwriters (collectively, the "Underwriters"), on the other hand, Newco has agreed to issue and sell to the Underwriters _____ Senior Note Units (collectively, the "Senior Note Units") and _____ Senior Discount Note Units (collectively, the "Senior Discount Note Units"; and, together with the Senior Note Units, the "Units"). Each Senior Note Unit will consist of (i) one ____% Senior Note due 2007 with a principal amount of $1,000 (collectively, the "Senior Notes") to be issued pursuant to the provisions of a Senior Note Indenture (the "Senior Note Indenture") to be dated as of the Closing Date (as defined below) between Newco, the subsidiaries of Orion, as guarantors (the "Guarantors") and Bankers Trust Company, as trustee and (ii) a Warrant (collectively, the "Warrants"), each Warrant entitling the holder thereof to purchase ______ Common Shares of Newco at a price of $[___] per share, subject to adjustment as provided herein. Each Senior Discount Note Unit will consist of (i) one ___% Senior Unsecured Discount Note due 2007 with a principal amount of maturity of $1,000 (collectively, the "Senior Discount Notes"; and, together with the Senior Notes, the "Notes") to be issued pursuant to the provisions of a Senior Discount Note Indenture to be dated as of the Closing Date (the "Senior Discount Note Indenture"; and, together with the Senior Note Indenture, the "Indentures") between Newco, the Guarantors, as guarantors, and the Trustee, as trustee and (ii) a Warrant. The Notes and Warrants included in each Unit will become separately transferable at the close of business upon the earliest of (i) the date that is six months after the Closing Date, (ii) such date as the Underwriters may, in their discretion, deem appropriate and (iii) in the event of an Offer to Purchase, the date Newco mails notice thereof to holders of the Notes. In consideration of the foregoing and of the agreements contained in the Underwriting Agreement and for the purpose of defining the terms and provisions of the Warrants and the respective rights and obligations thereunder of Newco and the record holders of the Warrants (the "Holders"), Newco and the Warrant Agent hereby agree as follows: ARTICLE I CERTAIN DEFINITIONS "Affiliate" of any Person means any Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. For purposes of this definition, "control", when used with respect to any Person, means the power to direct the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise, and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Agent Members" has the meaning specified in Section 2.4 hereof. "Business Day" means any day which is not a Saturday, a Sunday, or any other day on which banking institutions are authorized or required to be closed in the State of New York or the state in which the principal corporate trust office of the Warrant Agent is located. "Certificated Warrants" has the meaning specified in Section 2.4 hereof. "Closing Date" means [____________], 1997. "Commission" means the Securities and Exchange Commission. "Common Shares" means the common stock, par value $.01 per share, of Newco and any other capital stock into which such shares may be converted or reclassified or that may be issued in respect of, in exchange for, or in substitution of, such Common Shares by reason of any stock splits, stock dividends, distributions, mergers, consolidations or other like events. "Current Market Value" has the meaning specified in Section 4.1(f) hereof. "Default" has the meaning specified in Article IX hereof. "Depositary" means The Depository Trust Company, its nominees and their respective successors. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Exercise Price" has the meaning specified in Section 3.1 hereof. "Expiration Date" means [________________], 2007. "Expiration Time" has the meaning specified in Section 4.1(e) hereof. "Financial Expert" means one of the Persons listed in Appendix A hereto. "Global Warrant" has the meaning specified in Section 2.1 hereof. "Guarantors" has the meaning specified in the recitals to this Agreement. "Holders" has the meaning specified in the recitals to this Agreement. "Indentures" has the meaning specified in the recitals to this Agreement. "Independent Financial Expert" means a Financial Expert that does not (and whose directors, executive officers or 5% stockholders do not) have a direct or indirect financial interest in Newco or any of its subsidiaries, which has not been for at least five years, and, at the time it is called upon to give independent financial advice to Newco is not (and none of its directors, executive officers or 5% stockholders is) a promoter, director, or officer of Newco or any of its subsidiaries. The Independent Financial Expert may be compensated and indemnified by Newco for opinions or services it provides as an Independent Financial Expert. "Newco" has the meaning specified in the recitals to this Agreement. "Notes" has the meaning specified in the recitals to this Agreement. "Notice Date" has the meaning specified in Section 3.4(b) hereof. "Offer Notice" has the meaning specified in Section 3.4(f) hereof. "Offer to Purchase" means an offer to purchase Notes by Newco from the Holders commenced by mailing a notice to the relevant trustee and each Holder stating: (i) the covenant of the Indenture pursuant to which the offer is being made and that all Notes validly tendered will be accepted for payment on a pro rata basis; (ii) the purchase price and the date of purchase (which shall be a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed) (the "Payment Date"); (iii) that any Note not tendered will continue to accrue interest (or original issue discount) pursuant to its terms; (iv) that, unless Newco defaults in the payment of the purchase price, any Note accepted for payment pursuant to the Offer to Purchase shall cease to accrue interest (or original issue discount) on and after the Payment Date; (v) that Holders electing to have a Note purchased pursuant to the Offer to Purchase will be required to surrender the Note, together with the form entitled "Option of the Holder to Elect Purchase" on the reverse side of the Note completed, to the Paying Agent (as defined in the Indentures) at the address specified in the notice prior to the close of business on the Business Day immediately preceding the Payment Date; (vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the third Business Day immediately preceding the Payment Date, a telegram, facsimile transmission or letter setting forth the name of such Holder, the principal amount at maturity of Notes delivered for purchase and a statement that such Holder is withdrawing his election to have such Notes purchased; and (vii) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount at maturity to the unpurchased portion of the Notes surrendered; provided that each Note purchased and each new Note issued shall be in a principal amount at maturity of $1,000 or an integral multiple thereof. "Orion" has the meaning specified in the recitals to this Agreement. "Person" means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Registration Statement" has the meaning specified in Section 11.1 hereof. "Relevant Value" has the meaning specified in Section 3.4(d) hereof. "Repurchase Event" means, and shall be deemed to occur on, any date prior to the Expiration Date when Newco (i) consolidates or merges into or with another Person (but only where the holders of Common Shares receive consideration in exchange for all or part of such Common Shares) if the Common Shares (or other securities) thereafter issuable upon exercise of the Warrants are not registered under the Exchange Act or (ii) sells all or substantially all of its assets to another Person if the Common Shares (or other securities) thereafter issuable upon exercise of the Warrants is not registered under the Exchange Act; provided that in each case a "Repurchase Event" will not be deemed to have occurred if the consideration for the Common Shares in such transaction consists solely of cash. "Repurchase Notice" has the meaning specified in Section 3.4(a) hereof. "Repurchase Obligation" has the meaning specified in Section 9.2 hereof. "Repurchase Offer" has the meaning specified in Section 3.4(b) hereof. "Repurchase Price" has the meaning specified in Section 3.4(d) hereof. "Securities Act" means the Securities Act of 1933, as amended. "Senior Discount Note Indenture" has the meaning specified in the recitals to this Agreement. "Senior Discount Notes" has the meaning specified in the recitals to this Agreement. "Senior Discount Notes Units" has the meaning specified in the recitals to this Agreement. "Senior Note Indenture" has the meaning specified in the recitals to this Agreement. "Senior Notes" has the meaning specified in the recitals to this Agreement. "Senior Note Units" has the meaning specified in the recitals to this Agreement. "Separation Date" means the close of business upon the earliest of (i) the date that is six months after the Closing Date, (ii) such date as the Underwriters may, in their discretion, deem appropriate and (iii) in the event of an Offer to Purchase, the date Newco mails notice thereof to holders of the Notes. "Spread" means, with respect to any Warrant, the Current Market Value of the Underlying Securities issuable upon exercise of such Warrant, less the Exercise Price of such Warrant, in each case as adjusted as provided herein. "Underlying Securities" means the Common Shares or other securities or property issuable upon exercise of the Warrants. "Underwriting Agreement" has the meaning specified in the recitals to this Agreement. "Units" has the meaning specified in the recitals to this Agreement. "Valuation Date" means the date five Business Days prior to the Notice Date. "Value Certificate" has the meaning specified in Section 3.4(d)(ii)(1) hereof. "Value Report" means the value report prepared by an Independent Financial Expert in accordance with Section 3.4(d)(ii)(2) hereof. "Warrant" has the meaning specified in the recitals to this Agreement. "Warrant Agent" has the meaning specified in the preamble to this Agreement. "Warrant Certificates" has the meaning specified in Section 2.1 hereof. ARTICLE II ORIGINAL ISSUE OF WARRANTS Section 2.1. Form of Warrant Certificates. Certificates representing the Warrants (the "Warrant Certificates") shall be issued in registered form only, shall be substantially in the form attached hereto as Exhibit A, shall be dated the date on which countersigned by the Warrant Agent and shall have such insertions as are appropriate or required or permitted by this Agreement and may have such letters, numbers or other marks of identification and such legends and endorsements stamped, printed, lithographed or engraved thereon as Newco may deem appropriate and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation pursuant thereto or with any rule or regulation of any securities exchange on which the Warrants may be listed, or to conform to usage. The Warrants shall be issued initially in the form of one or more permanent global Warrant Certificates in definitive, fully registered form, substantially in the form set forth in Exhibit A (the "Global Warrant"), deposited with the Warrant Agent, as custodian for the Depositary, duly executed by Newco and countersigned by the Warrant Agent as hereinafter provided. The definitive Warrant Certificates shall be typed, printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any securities exchange on which the Warrants may be listed, all as determined by the officers executing such Warrant Certificates, as evidenced by their execution of such Warrant Certificates. Section 2.2. Legends. (a) Each Global Warrant shall also bear the following legend on the face thereof: UNLESS THIS WARRANT CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO NEWCO OR THE WARRANT AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR REPURCHASE AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE II OF THE WARRANT AGREEMENT. (b) Each Warrant Certificate issued prior to the Separation Date shall bear the following legend on the face thereof: THE WARRANTS EVIDENCED BY THIS CERTIFICATE WERE INITIALLY ISSUED AS PART OF AN ISSUANCE OF SENIOR NOTE UNITS (CUSIP NO. [______]) AND SENIOR DISCOUNT NOTE UNITS (CUSIP NO. [_______]), EACH SENIOR NOTE UNIT OF WHICH CONSISTS OF $[_______] PRINCIPAL AMOUNT OF [__]% SENIOR NOTES DUE 2007 OF NEWCO (THE "SENIOR NOTES") AND A WARRANT, AND EACH SENIOR DISCOUNT NOTE UNIT OF WHICH CONSISTS OF $[_____] PRINCIPAL AMOUNT AT MATURITY OF SENIOR DISCOUNT NOTES DUE 2007 (TOGETHER WITH THE SENIOR NOTES, THE "NOTES") AND A WARRANT. PRIOR TO THE CLOSE OF BUSINESS UPON THE EARLIEST OF (I) THE DATE THAT IS SIX MONTHS AFTER THE CLOSING DATE, (II) SUCH DATE AS THE UNDERWRITERS MAY, IN THEIR DISCRETION, DEEM APPROPRIATE AND (III) THE DATE NEWCO MAILS NOTICE OF AN OFFER TO REPURCHASE THE NOTES TO HOLDERS OF THE NOTES PURSUANT TO THE INDENTURES, THE WARRANTS EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE NOTES. Section 2.3. Execution and Delivery of Warrant Certificates. Warrant Certificates evidencing Warrants to purchase initially an aggregate of up to [__________] Common Shares may be executed, on or after the date of this Agreement, by Newco and delivered to the Warrant Agent for countersignature, and the Warrant Agent shall thereupon countersign and deliver such Warrant Certificates upon the written order and at the direction of Newco to the purchasers thereof on the date of issuance. The Warrant Agent is hereby authorized to countersign and deliver Warrant Certificates as required by this Section 2.3 or by Section 2.4, Section 3.3, Section 3.4 or Article VI hereof. The Warrant Certificates shall be executed on behalf of Newco by its Chairman of the Board, Chief Executive Officer or President or by a Vice President, either manually or by facsimile signature printed thereon. The Warrant Certificates shall be countersigned by manual or facsimile signature of the Warrant Agent and shall not be valid for any purpose unless so countersigned. In case any officer of Newco whose signature shall have been placed upon any of the Warrant Certificates shall cease to be such officer of Newco before countersignature by the Warrant Agent and the issuance and delivery thereof, such Warrant Certificates may, nevertheless, be countersigned by the Warrant Agent and issued and delivered with the same force and effect as though such person had not ceased to be such officer of Newco. Section 2.4. Transfer and Exchange. Newco shall cause to be kept at the office of the Warrant Agent a register in which, subject to such reasonable regulations as it may prescribe, Newco shall provide for the registration of Warrant Certificates and transfers and exchanges of Warrant Certificates as herein provided. A Holder may transfer its Warrants only by written application to the Warrant Agent stating the name of the proposed transferee and otherwise complying with the terms of this Agreement. No such transfer shall be effected until, and such transferee shall succeed to the rights of a Holder only upon, final acceptance and registration of the transfer by the Warrant Agent in the register in accordance with this Agreement. Prior to the registration of any transfer of Warrants by a Holder as provided herein, Newco, the Warrant Agent and any agent of Newco may treat the person in whose name the Warrants are registered as the owner thereof for all purposes and as the person entitled to exercise the rights represented thereby, any notice to the contrary notwithstanding. Furthermore, any holder of a Global Warrant shall, by acceptance of such Global Warrant, agree that transfers of beneficial interests in such Global Warrant may be effected only through a book-entry system maintained by the Holder of such Global Warrant (or its agent), and that ownership of a beneficial interest in the Warrants represented thereby shall be required to be reflected in a book entry. When Warrants are presented to the Warrant Agent with a request to register the transfer thereof or to exchange them for an equal number of Warrants of other authorized denominations, the Warrant Agent shall register the transfer or make the exchange as requested if the requirements of this Agreement for such transaction are met. To permit registrations of transfers and exchanges, Newco shall execute Warrant Certificates at the Warrant Agent's request. No service charge shall be made for any registration of transfer or exchange of Warrants, but Newco may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection with any registration of transfer or exchange of Warrants. The Warrants will initially be issued as part of the issuance of the Units. Prior to the Separation Date, the Warrants may not be transferred or exchanged separately from, but may be transferred or exchanged only together with, the Notes issued as part of such Units. Notwithstanding any other provisions of this Section 2.4, unless and until it is exchanged in whole or in part for Warrants in definitive registered form ("Certificated Warrants"), a Global Warrant representing all or a portion of the Warrants may not be transferred except as a whole by the Depositary to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. Interests of beneficial owners in the Global Warrant may be transferred in accordance with the rules and procedures of the Depositary. Members of, or participants in, the Depositary ("Agent Members") shall have no rights under this Agreement with respect to the Global Warrant held on their behalf by the Depositary or the Warrant Agent as its custodian, and the Depositary may be treated by Newco, the Warrant Agent and any agent of Newco or the Warrant Agent as the absolute owner of such Global Warrant for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent Newco, the Warrant Agent or any agent of Newco or the Warrant Agent from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Warrants. The registered holder of the Global Warrant may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Agreement or the Warrants. If the Depositary notifies Newco that it is unwilling or unable to continue as Depositary for the Global Warrant or Warrants or if at any time the Depositary shall no longer be eligible under the next sentence of this paragraph, Newco shall appoint a successor Depositary with respect to the Warrants. Each Depositary appointed pursuant to this Section 2.4 must, at the time of its appointment and at all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation. Newco will execute, and the Warrant Agent, upon receipt of written instructions from Newco, will countersign and deliver, Warrants in definitive registered form in any authorized denominations, in an aggregate amount equal to the amount of the Global Warrant or Warrants representing such Warrants in exchange for such Global Warrant or Warrants if the Depositary notifies Newco that it is unwilling or unable to continue as Depositary for the Global Warrant or Warrants or if at any time the Depositary shall no longer be eligible to serve as Depositary and a successor Depositary for the Warrants is not appointed by Newco within 60 days after Newco receives such notice or becomes aware of such ineligibility. Newco may at any time and in its sole discretion determine that the Warrants shall no longer be represented by a Global Warrant or Warrants. In such event Newco will execute, and the Warrant Agent, upon receipt of written instructions from Newco, will countersign and deliver, Certificated Warrants in any authorized denominations, in an aggregate amount equal to the amount of Warrants represented by the Global Warrant or Warrants in exchange for such Global Warrant or Warrants. Upon the exchange of a Global Warrant for Certificated Warrants, such Global Warrant shall be cancelled by the Warrant Agent. Certificated Warrants issued in exchange for a Global Warrant pursuant to this Section 2.4 shall be registered in such names and in such authorized denominations as the Depositary for such Global Warrant, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Warrant Agent. The Warrant Agent shall deliver such Certificated Warrants to or as directed by the Persons in whose names such Warrants are so registered. All Warrant Certificates issued upon any registration of transfer or exchange of Warrants shall be the valid obligations of Newco, evidencing the same obligations, and entitled to the same benefits under this Agreement, as the Warrant Certificates surrendered for registration of transfer or exchange. Section 2.5. Surrender of Warrant Certificates. Any Warrant Certificate surrendered for registration of transfer, exchange, exercise or repurchase of the Warrants represented thereby shall, if surrendered to Newco, be delivered to the Warrant Agent, and all Warrant Certificates surrendered or so delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent and shall not be reissued by Newco and, except as provided in this Article II in case of an exchange, Article III hereof in case of the exercise or repurchase of less than all the Warrants represented thereby or Article VI in case of a mutilated Warrant Certificate, no Warrant Certificate shall be issued hereunder in lieu thereof. The Warrant Agent shall destroy all cancelled Warrant Certificates in accordance with its normal procedures. ARTICLE III EXERCISE PRICE; EXERCISE AND REPURCHASE OF WARRANTS Section 3.1. Exercise Price. Each Warrant Certificate shall, when countersigned by the Warrant Agent, entitle the Holder thereof, subject to the provisions of this Agreement, to purchase [___________] Common Shares for each Warrant represented thereby at a purchase price (the "Exercise Price") of $[_____] per share, subject to adjustment as provided in Section 4.1 and Article V hereof, provided that, at the option of the Holder thereof, payment of the Exercise Price may be satisfied through the delivery and cancellation of additional Warrants having an aggregate Spread equal to the Exercise Price of the Warrants being exercised. Section 3.2. Exercise; Restrictions on Exercise. (a) At any time after six months from the Closing Date and on or before the Expiration Date, any outstanding Warrants may be exercised on any Business Day; provided that the Registration Statement is, at the time of exercise, effective and available or the exercise of such Warrants is exempt from the registration requirements of the Securities Act. Any Warrants not exercised by 5:00 p.m., New York City time, on the Expiration Date shall expire and all rights of the Holders of such Warrants shall terminate. Additionally, pursuant to Section 4.1(i)(ii) hereof, the Warrants may expire and all rights of the Holders of such Warrants shall terminate in the event Newco merges or consolidates with, or sells all or substantially all of its property and assets to, a Person (other than an Affiliate of Newco) if the consideration payable to holders of Common Shares in exchange for their Common Shares in connection with such merger, consolidation or sale consists solely of cash or in the event of the dissolution, liquidation or winding up of Newco. (b) In the event a Holder exercises its Warrants at a time when the Registration Statement is not effective and available, such Holder must furnish to the Warrant Agent and Newco such certifications, legal opinions or other information as either of them may reasonably require to confirm that such exercise is being made pursuant to an exemption from the registration requirements of the Securities Act. Section 3.3. Method of Exercise; Payment of Exercise Price. In order to exercise all or any of the Warrants represented by a Warrant Certificate, the Holder thereof must surrender for exercise the Warrant Certificate to the Warrant Agent at its corporate trust office set forth in Section 12.5 hereof, with the Subscription Form set forth in the Warrant Certificate duly executed, together with payment in full of the Exercise Price then in effect for each Common Share or other securities or property issuable upon exercise of the Warrants as to which a Warrant is exercised; such payment may be made (x) in the form of cash or by certified or official bank check payable to the order of Newco or (y) as permitted pursuant to the proviso in Section 3.1. All payments received upon exercise of Warrants shall be delivered to Newco by the Warrant Agent as instructed in writing by Newco. If less than all the Warrants represented by a Warrant Certificate are exercised, such Warrant Certificate shall be surrendered and a new Warrant Certificate of the same tenor and for the number of Warrants which were not exercised shall be executed by Newco and delivered to the Warrant Agent and the Warrant Agent shall countersign the new Warrant Certificate, registered in such name or names as may be directed in writing by the Holder, and shall deliver the new Warrant Certificate to the Person or Persons entitled to receive the same. Upon exercise of any Warrants following surrender of a Warrant Certificate in conformity with the foregoing provisions, the Warrant Agent shall instruct Newco to transfer promptly to or upon the written order of the Holder of such Warrant Certificate appropriate evidence of ownership of any Common Shares or other securities or property (including money) to which it is entitled, registered or otherwise placed in such name or names as may be directed in writing by the Holder, and to deliver such evidence of ownership and any other securities or property (including money) to the Person or Persons entitled to receive the same, together with an amount in cash in lieu of any fractional shares as provided in Section 4.5 hereof; provided that the Holder of such Warrant shall be responsible for the payment of any transfer taxes required as the result of any change in ownership of such Warrants or the issuance of such Common Shares or other securities or property other than to the registered owner of such Warrants. Upon exercise of a Warrant or Warrants, the Warrant Agent is hereby authorized and directed to requisition from any transfer agent of the Common Shares (and all such transfer agents are hereby irrevocably authorized to comply with all such requests) certificates (bearing the legend set forth in Section 12.11, if applicable) for the necessary number of shares to which the Holder of the Warrant or Warrants may be entitled. A Warrant shall be deemed to have been exercised immediately prior to the close of business on the date of the surrender for exercise, as provided above, of the Warrant Certificate representing such Warrant and, for all purposes of this Agreement, the Person entitled to receive any Common Shares or other securities or property deliverable upon such exercise shall, as between such Person and Newco, be deemed to be the Holder of such Common Shares or other securities or property of record as of the close of business on such date and shall be entitled to receive, and the Warrant Agent shall deliver to such Person, any money, Common Shares or other securities or property to which he would have been entitled had he been the record holder on such date. Without limiting the foregoing, if, at the date referred to above, the transfer books for the Common Shares or other securities purchasable upon the exercise of the Warrants shall be closed, the certificates for the Common Shares or securities in respect of which such Warrants are then exercised shall be issuable as of the date on which such books shall next be opened, and until such date Newco shall be under no duty to deliver any certificate for such Common Shares or other securities; provided further that the transfer books or records, unless required by law, shall not be closed at any one time for a period longer than 20 days. Section 3.4. Repurchase Offers. (a) Notice of Repurchase Event. Within five Business Days following the occurrence of a Repurchase Event, Newco shall give notice (a "Repurchase Notice") to all Holders of the Warrants and the Warrant Agent that such event has occurred. (b) Repurchase Offers Generally. Following the occurrence of a Repurchase Event, Newco shall offer to repurchase for cash all outstanding Warrants pursuant to the provisions of this Section 3.4 (a "Repurchase Offer"). Newco shall give notice of a Repurchase Offer in accordance with Section 3.4(f) hereof. The date on which Newco gives any such notice with respect to a Repurchase Offer is referred to as the "Notice Date". The Repurchase Offer shall commence on the Notice Date for such Repurchase Offer and shall expire at 5:00 p.m., New York City time, on a date determined by Newco (the "expiration date") that is at least 30 but not more than 60 calendar days after the Notice Date. Once a Repurchase Event has occurred, there is no limit on the number of Repurchase Offers that Newco may make. (c) Repurchase Offers. (i) In any Repurchase Offer, Newco shall offer to purchase for cash at the Repurchase Price (as defined below) all Warrants outstanding on the Notice Date for such Repurchase Offer that are properly tendered to the Warrant Agent on or prior to the expiration date for such Repurchase Offer. (ii) Each Holder may, but shall not be obligated to, accept such Repurchase Offer by tendering to the Warrant Agent, on or prior to the expiration date for such Repurchase Offer, the Warrant Certificates evidencing the Warrants such Holder desires to have repurchased in such offer, together with a completed Certificate for Surrender in substantially the form attached to the Warrant Certificate. A Holder may withdraw all or a portion of the Warrants tendered to the Warrant Agent at any time prior to the expiration date for such Repurchase Offer. If less than all the Warrants represented by a Warrant Certificate shall be tendered, such Warrant Certificate shall be surrendered and a new Warrant Certificate of the same tenor and for the number of Warrants which were not tendered shall be executed by Newco and delivered to the Warrant Agent and the Warrant Agent shall countersign the new Warrant Certificate, registered in such name or names as may be directed in writing by the Holder, and shall deliver the new Warrant Certificate to the Person or Persons entitled to receive the same; provided that the Holder of such Warrants shall be responsible for the payment of any transfer taxes required as the result of any change in ownership of such Warrants. (d) Repurchase Price. (i) The purchase price (the "Repurchase Price") for each Warrant properly tendered to the Warrant Agent pursuant to a Repurchase Offer shall be equal to the value (the "Relevant Value") on the Valuation Date of the Common Shares issuable, and other securities or property which would have been delivered, upon exercise of Warrants had the Warrants been exercised (regardless of whether the Warrants are then exercisable), less the Exercise Price then in effect. (ii) The Relevant Value of the Common Shares and other securities or property issuable upon exercise of the Warrants, on any Valuation Date, shall be: (1) (A) If the Common Shares (or other securities) are registered under the Exchange Act, deemed to be the average of the daily market prices (on the stock exchange that is the primary trading market for the Common Shares) of the Common Shares (or other securities) for the 20 consecutive trading days immediately preceding such Valuation Date or (B) if the Common Shares (or other securities) have been registered under the Exchange Act for less than 20 consecutive trading days before such date, then the average of the daily market prices for all of the trading days before such date for which daily market prices are available, in the case of each of (A) and (B), as certified to the Warrant Agent by the President, any Vice President or the Chief Financial Officer of Newco (the "Value Certificate"). The Warrant Agent shall have no duty with respect to the Value Certificate, except to keep it on file and available for inspection by the Holders and the Warrant Agent shall have no duty or responsibility in determining the accuracy or correctness of the calculations in such certificate. The market price for each such trading day shall be: (A) in the case of a security listed or admitted to trading on any national securities exchange, the closing sales price, regular way, on such day, or if no sale takes place on such day, the average of the closing bid and asked prices on such day, (B) in the case of a security not then listed or admitted to trading on any national securities exchange, the last reported sale price on such day, or if no sale takes place on such day, the average of the closing bid and asked prices on such day, as reported by a reputable quotation source designated by Newco, (C) in the case of a security not then listed or admitted to trading on any national securities exchange and as to which no such reported sale price or bid and asked prices are available, the average of the reported high bid and low asked prices on such day, as reported by a reputable quotation service, or a newspaper of general circulation in the Borough of Manhattan, City and State of New York customarily published on each Business Day, designated by Newco, or, if there shall be no bid and asked prices on such day, the average of the high bid and low asked prices, as so reported, on the most recent day (not more than 30 days prior to the date in question) for which prices have been so reported and (D) if there are not bid and asked prices reported during the 30 days prior to the date in question, the Relevant Value shall be determined as if the Common Shares (or other securities) were not registered under the Exchange Act; or (2) If the Common Shares (or other securities) are not registered under the Exchange Act or if the value cannot be computed under clause (1) above, deemed to be equal to the value set forth in the Value Report (as defined below) as determined by an Independent Financial Expert, which shall be selected by the Board of Directors of Newco in accordance with Section 3.4(e) hereof, and retained on customary terms and conditions, using one or more valuation methods that the Independent Financial Expert, in its best professional judgment, determines to be most appropriate but without giving effect to any discount for lack of liquidity, the fact that Newco has no class of equity securities registered under the Exchange Act or the fact that the Common Shares and other securities or property issuable upon exercise of the Warrants represent a minority interest in Newco. Newco shall cause the Independent Financial Expert to deliver to Newco, with a copy to the Warrant Agent, within 45 days of the appointment of the Independent Financial Expert in accordance with Section 3.4(e) hereof, a value report (a "Value Report") stating the Relevant Value of the Common Shares and other securities or property, if any, being valued as of the Valuation Date and containing a brief statement as to the nature and scope of the examination or investigation upon which the determination of Relevant Value was made. The Warrant Agent shall have no duty with respect to the Value Report of any Independent Financial Expert, except to keep it on file and available for inspection by the Holders and the Warrant Agent shall have no duty or responsibility in determining the accuracy or correctness of the calculations in such report. The determination as to Relevant Value in accordance with the provisions of this Section 3.4(d) shall be conclusive on all Persons. The Independent Financial Expert shall consult with management of Newco in order to allow management to comment on the proposed Relevant Value prior to delivery to Newco of any Value Report of the Independent Financial Expert. (e) Selection of Independent Financial Expert. If clause (d)(ii)(2) is applicable, the Board of Directors of Newco shall select an Independent Financial Expert not more than five Business Days following a Repurchase Event. Within two calendar days after such selection of the Independent Financial Expert, Newco shall deliver to the Warrant Agent a notice setting forth the name of such Independent Financial Expert. (f) Notice of Repurchase Offer. Each notice of a Repurchase Offer (an "Offer Notice") given by Newco pursuant to Section 3.4(b) shall (i) be given by Newco directly to all Holders of the Warrants, with a copy to the Warrant Agent; (ii) be given simultaneously with the Repurchase Notice (or, in the event that the Relevant Value of the Common Shares or other securities or property issuable upon exercise of all the Warrants cannot be determined pursuant to Section 3.4(d)(ii)(1), then such Offer Notice shall be given within five Business Days after Newco receives the Value Report with respect to such offer); and (iii) specify (A) the expiration date for such Repurchase Offer, (B) the manner in which Warrants may be surrendered to the Warrant Agent for repurchase by Newco, (C) the Repurchase Price at which the Warrants will be repurchased by Newco, (D) if applicable, the name of the Independent Financial Expert whose valuation of the Common Shares or other securities or property was utilized in connection with determining such Repurchase Price and (E) that payment of the Repurchase Price will be made by the Warrant Agent. Each such notice shall be accompanied by a Certificate for Surrender for Repurchase Offer in substantially the form attached to the Warrant Certificate and a copy of the Value Report, if any. (g) Payment for Warrants. Upon surrender for repurchase of any Warrants in conformity with the provisions of this Section 3.4, the Warrant Agent shall thereupon promptly notify Newco of such surrender. Before 10:00 A.M., New York City time, on the expiration date for any Repurchase Offer, Newco shall deposit with the Warrant Agent funds sufficient to make payment for the Warrants tendered to the Warrant Agent and not withdrawn. After receipt of such deposit from Newco, the Warrant Agent shall make payment, by delivering a check in such amount as is appropriate, to such Person or Persons as it may be directed in writing by the Holder surrendering such Warrants, net of any transfer taxes required to be paid in the event payment is made to a Person other than the Holder. (h) Compliance with Laws. Notwithstanding anything contained in this Section 3.4, if Newco is required to comply with laws or regulations in connection with making any Repurchase Offer, such laws or regulations shall govern the making of such Repurchase Offer. ARTICLE IV ADJUSTMENTS Section 4.1. Adjustments. The Exercise Price and the number of Common Shares issuable upon exercise of each Warrant shall be subject to adjustment from time to time as follows: (a) Stock Dividends; Stock Splits; Reverse Stock Splits; Reclassifications. In the event Newco shall (i) declare or pay a dividend or make any other distribution with respect to its Common Shares in shares of any class or series of its capital stock, (ii) subdivide its outstanding Common Shares, (iii) combine its outstanding Common Shares into a smaller number of shares, or (iv) issue any shares of its capital stock in a reclassification of the Common Shares (other than a reclassification in connection with a merger, consolidation or other business combination which will be governed by Section 4.1(j)), the number of Common Shares purchasable upon exercise of each Warrant immediately prior to the record date for such dividend or distribution or the effective date of such subdivision, or combination or reclassification shall be adjusted so that the Holder of each Warrant shall thereafter be entitled to receive the kind and number of Common Shares or other securities of Newco which such Holder would have been entitled to receive after the happening of any of the events described above had such Warrant been exercised immediately prior to the happening of such event or any record date with respect thereto (with any record date requirement being deemed to have been satisfied). An adjustment made pursuant to this Section 4.1(a) shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event. (b) Rights; Options; Warrants. In the event Newco shall issue rights, options, warrants or convertible or exchangeable securities (other than a convertible or exchangeable security subject to Section 4.1(a)) to all holders of its Common Shares, entitling them to subscribe for or purchase Common Shares at a price per share (determined in the case of such rights, options, warrants or convertible or exchangeable securities, by dividing (x) the total amount receivable by Newco in consideration of the issuance of such rights, options, warrants or convertible or exchangeable securities, if any, plus the total consideration payable to Newco upon exercise, conversion or exchange thereof, by (y) the total number of Common Shares covered by such rights, options, warrants or convertible or exchangeable securities) which is lower (at the record date for such issuance) than the then Current Market Value per Common Share, the number of Common Shares thereafter purchasable upon the exercise of each Warrant shall be determined by multiplying the number of Common Shares theretofore purchasable upon exercise of each Warrant by a fraction, the numerator of which shall be the number of Common Shares outstanding immediately prior to the issuance of such rights, options, warrants or convertible or exchangeable securities plus the number of additional Common Shares offered for subscription or purchase or issuable upon conversion or exchange, and the denominator of which shall be the number of Common Shares outstanding immediately prior to the issuance of such rights, options, warrants or convertible or exchangeable securities plus the number of shares which the aggregate offering price of the total number of Common Shares so offered would purchase at the then Current Market Value per Common Share. Such adjustment shall be made whenever such rights, options, warrants or convertible or exchangeable securities are issued, and shall become effective retroactively immediately after the record date for the determination of shareholders entitled to receive such rights, options, warrants or convertible or exchangeable securities. (c) Issuance of Common Shares at Lower Values. In the event Newco shall sell and issue any Common Shares or Right (excluding (i) any Right issued in any of the transactions described in Section 4.1(a) or (b) above, (ii) any Common Shares issued pursuant to (x) any Rights outstanding on the date of this Agreement and (y) a Right, if on the date such Right was issued, the exercise, conversion or exchange price per Common Share with respect thereto was at least equal to the then Current Market Value per Common Share and (iii) any Right issued as consideration when any corporation or business is acquired, merged into or becomes part of Newco or a subsidiary of Newco in an arm's-length transaction between Newco and a Person other than an Affiliate of Newco) at a price per Common Share (determined in the case of such Right, by dividing (x) the total amount receivable by Newco in consideration of the sale and issuance of such Right, plus the total consideration payable to Newco upon exercise, conversion or exchange thereof, by (y) the total number of Common Shares covered by such Right) that is lower than the Current Market Value per Common Share in effect immediately prior to such sale or issuance, then the number of Common Shares thereafter purchasable upon the exercise of each Warrant shall be determined by multiplying the number of Common Shares theretofore purchasable upon exercise of such Warrant by a fraction, the numerator of which shall be the number of Common Shares outstanding immediately after such sale or issuance and the denominator of which shall be the number of Common Shares outstanding immediately prior to such sale or issuance plus the number of Common Shares which the aggregate consideration received (determined as provided below) for such sale or issuance would purchase at such Current Market Value per Common Share. For purposes of this Section 4.1(c), the Common Shares which the holder of any such Right shall be entitled to subscribe for or purchase shall be deemed to be issued and outstanding as of the date of such sale and issuance and the consideration received by Newco therefor shall be deemed to be the consideration received by Newco for such Right, plus the consideration or premiums stated in such Right to be paid for the Common Shares covered thereby. In case Newco shall sell and issue Common Shares or any Right, for a consideration consisting, in whole or in part, of property other than cash or its equivalent, then in determining the "price per Common Share" and the "consideration received by Newco" for purposes of the first sentence of this Section 4.1(c), the Board of Directors of Newco shall determine, in good faith, the fair value of said property, which determination shall be evidenced by a resolution of the Board of Directors of Newco. In case Newco shall sell and issue any Right together with one or more other securities as part of a unit at a price per unit, then in determining the "price per Common Share" and the "consideration received by Newco" for purposes of the first sentence of this Section 4.1(c), the Board of Directors of Newco shall determine, in good faith, the fair value of the Right then being sold as part of such unit, which determination shall be evidenced by a resolution of the Board of Directors of Newco. For purposes of this paragraph, a "Right" shall mean any right, option, warrant or convertible or exchangeable security containing the right to subscribe for or acquire one or more Common Shares, excluding the Warrants. (d) Distributions of Debt, Assets, Subscription Rights or Convertible Securities. In the event Newco shall fix a record date for the making of a distribution to all holders of its Common Shares of evidences of its indebtedness, assets, cash dividends or distributions (excluding dividends or distributions referred to in Section 4.1(a) above and excluding distributions in connection with the dissolution, liquidation or winding up of Newco which will be governed by Section 4.1(j)(ii) below) or securities (excluding those referred to in Section 4.1(a), Section 4.1(b) or Section 4.1(c) above), then in each case the number of Common Shares purchasable after such record date upon the exercise of each Warrant shall be determined by multiplying the number of Common Shares purchasable upon the exercise of such Warrant immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Value per Common Share immediately prior to the record date for such distribution and the denominator of which shall be the Current Market Value per Common Share immediately prior to the record date for such distribution less the then fair value (as determined in good faith by the Board of Directors of Newco) of the portion of the assets, evidence of indebtedness, cash dividends or distributions or securities so distributed applicable to one Common Share. Such adjustment shall be made whenever any such distribution is made, and shall become effective on the date of distribution retroactive to the record date for the determination of shareholders entitled to receive such distribution. (e) Self-Tenders. In case of the consummation of an issuer bid or a tender or exchange offer (other than an odd-lot tender offer or a normal course issuer bid) made by Newco or any subsidiary of Newco for all or any portion of the Common Shares to the extent that the cash and value of any other consideration included in such payment per Common Share exceeds the Current Market Price per share of Common Shares on the trading day next succeeding the Expiration Time (as defined below), the Exercise Price shall be reduced so that the same shall equal the price determined by multiplying the Exercise Price in effect immediately prior to the last time tenders or exchanges were made pursuant to such issuer bid or tender or exchange offer (the "Expiration Time") by a fraction of which the numerator shall be the number of Common Shares outstanding (including any tendered or exchanged shares) on the Expiration Time multiplied by the Current Market Price of the Common Shares on the trading day next succeeding the Expiration Time, and the denominator shall be the sum of (A) the fair market value (determined by the Board of Directors of Newco, whose determination shall be conclusive and described in a resolution of the Board of Directors) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the issuer bid or tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as the Expiration Time (the shares deemed so accepted, up to any such maximum, as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and (B) the product of the number of Common Shares outstanding (less any Purchased Shares) on the Expiration Time and the Current Market Price of the Common Shares on the trading day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. (f) Expiration of Rights, Options and Conversion Privileges. Upon the expiration of any rights, options, warrants or conversion or exchange privileges that have previously resulted in an adjustment hereunder, if any thereof shall not have been exercised, the Exercise Price and the number of Common Shares issuable upon the exercise of each Warrant shall, upon such expiration, be readjusted and shall thereafter, upon any future exercise, be such as they would have been had they been originally adjusted (or had the original adjustment not been required, as the case may be) as if (i) the only Common Shares so issued were the Common Shares, if any, actually issued or sold upon the exercise of such rights, options, warrants or conversion or exchange rights and (ii) such Common Shares, if any, were issued or sold for the consideration actually received by Newco upon such exercise plus the consideration, if any, actually received by Newco for issuance, sale or grant of all such rights, options, warrants or conversion or exchange rights whether or not exercised; provided that no such readjustment shall have the effect of increasing the Exercise Price by an amount, or decreasing the number of shares issuable upon exercise of each Warrant by a number, in excess of the amount or number of the adjustment initially made in respect to the issuance, sale or grant of such rights, options, warrants or conversion or exchange rights. (g) Current Market Value. For the purposes of any computation under this Article IV, the Current Market Value per Common Share or of any other security (herein collectively referred to as a "security") at any date herein specified shall be: (i) if the security is not registered under the Exchange Act, the value of the security (1) most recently determined as of a date within the six months preceding such date by an Independent Financial Expert selected by Newco in accordance with the criteria for such valuation set out in Section 4.1(l), or (2) if no such determination shall have been made within such six-month period or if Newco so chooses, determined as of such date by an Independent Financial Expert selected by Newco in accordance with the criteria for such valuation set out in Section 4.1(l), or (ii) if the security is registered under the Exchange Act, the average of the daily market prices of the security for the 20 consecutive trading days immediately preceding such date or, if the security has been registered under the Exchange Act for less than 20 consecutive trading days before such date, then the average of the daily market prices for all of the trading days before such date for which daily market prices are available. The market price for each such trading day shall be: (A) in the case of a security listed or admitted to trading on any national securities exchange, the closing sales price, regular way, on such day, or if no sale takes place on such day, the average of the closing bid and asked prices on such day on the principal national securities exchange on which such security is listed or admitted, as determined by the Board of Directors of Newco, in good faith, (B) in the case of a security not then listed or admitted to trading on any national securities exchange, the last reported sale price on such day, or if no sale takes place on such day, the average of the closing bid and asked prices on such day, as reported by a reputable quotation source designated by Newco, (C) in the case of a security not then listed or admitted to trading on any national securities exchange and as to which no such reported sale price or bid and asked prices are available, the average of the reported high bid and low asked prices on such day, as reported by a reputable quotation service, or a newspaper of general circulation in the Borough of Manhattan, City and State of New York customarily published on each Business Day, designated by Newco, or, if there shall be no bid and asked prices on such day, the average of the high bid and low asked prices, as so reported, on the most recent day (not more than 30 days prior to the date in question) for which prices have been so reported and (D) if there are no bid and asked prices reported during the 30 days prior to the date in question, the Current Market Value of the security shall be determined as if the security were not registered under the Exchange Act. (h) De Minimis Adjustments. No adjustment in the number of Common Shares purchasable hereunder shall be required unless such adjustment would require an increase or decrease of at least one percent (1%) in the number of Common Shares purchasable upon the exercise of each Warrant; provided, however, that any adjustments which by reason of this Section 4.1(h) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations shall be made to the nearest one-thousandth of a share. (i) Adjustment of Exercise Price. Whenever the number of Common Shares purchasable upon the exercise of each Warrant is adjusted, as herein provided, the Exercise Price per Common Share payable upon exercise of such Warrant shall be adjusted (calculated to the nearest $.0001) so that it shall equal the price determined by multiplying such Exercise Price immediately prior to such adjustment by a fraction the numerator of which shall be the number of Common Shares purchasable upon the exercise of each Warrant immediately prior to such adjustment and the denominator of which shall be the number of Common Shares so purchasable immediately thereafter. (j) Consolidation, Merger, Etc. (i) Subject to the provisions of subsection (ii) below of this Section 4.1(j), in case of the consolidation of Newco with, or merger of Newco with or into, or of the sale of all or substantially all of the properties and assets of Newco to, any Person, and in connection therewith consideration is payable to holders of Common Shares (or other securities or property purchasable upon exercise of Warrants) in exchange therefor, the Warrants shall remain subject to the terms and conditions set forth in this Agreement and each Warrant shall, after such consolidation, merger or sale, entitle the Holder to receive upon exercise the number of shares of capital stock or other securities or property (including cash) of Newco, or of such Person resulting from such consolidation or surviving such merger or to which such sale shall be made, as the case may be, that would have been distributable or payable on account of the Common Shares (or other securities or property purchasable upon exercise of Warrants) if such Holder's Warrants had been exercised immediately prior to such merger, consolidation or sale (or, if applicable, the record date therefor); and in any such case the provisions of this Agreement with respect to the rights and interests thereafter of the Holders of Warrants shall be appropriately adjusted by the Board of Directors of Newco in good faith so as to be applicable, as nearly as may reasonably be, to any shares of stock or other securities or any property thereafter deliverable on the exercise of the Warrants. (ii) Notwithstanding the foregoing, (x) if Newco merges or consolidates with, or sells all or substantially all of its property and assets to, another Person (other than an Affiliate of Newco) and consideration is payable to holders of Common Shares in exchange for their Common Shares in connection with such merger, consolidation or sale which consists solely of cash, or (y) in the event of the dissolution, liquidation or winding up of Newco, then the Holders of Warrants shall be entitled to receive distributions on the date of such event on an equal basis with holders of Common Shares (or other securities issuable upon exercise of the Warrants) as if the Warrants had been exercised immediately prior to such event, less the Exercise Price. Notwithstanding the foregoing, if Newco has made, or is required to make, a Repurchase Offer pursuant to Section 3.4 hereof and such Repurchase Offer has not expired at the time of such transaction, the Holders of the Warrants shall be entitled to receive the higher of (i) the amount payable to the holders of the Warrants as described in the preceding sentence and (ii) the Repurchase Price payable to the Holders of the Warrants pursuant to such Repurchase Offer. Upon receipt of such payment, if any, the rights of a Holder shall terminate and cease and such Holder's Warrants shall expire. In case of any such merger, consolidation or sale of assets, the surviving or acquiring Person and, in the event of any dissolution, liquidation or winding up of Newco, Newco shall deposit promptly with the Warrant Agent the funds, if any, necessary to pay the Holders of the Warrants. After receipt of such deposit from such Person or Newco and after receipt of surrendered Warrant Certificates, the Warrant Agent shall make payment by delivering a check in such amount as is appropriate (or, in the case of consideration other than cash, such other consideration as is appropriate) to such Person or Persons as it may be directed in writing by the Holder surrendering such Warrants. (k) In addition to the foregoing adjustments, the Board of Directors of Newco may make any other adjustment to increase the number of Common Shares issuable upon exercise of Warrants or to decrease the Exercise Price as it may, in good faith, deem desirable to protect the rights and benefits of Holders. (l) If required pursuant to Section 4.1(g)(i), the Current Market Value shall be deemed to be equal to the value set forth in the Value Report (as defined below) as determined by an Independent Financial Expert, which shall be selected by the Board of Directors of Newco, and retained on customary terms and conditions, using one or more valuation methods that the Independent Financial Expert, in its best professional judgment, determines to be most appropriate. Newco shall cause the Independent Financial Expert to deliver to Newco, with a copy to the Warrant Agent, within 45 days of the appointment of the Independent Financial Expert, a value report (the "Value Report") stating the value of the Common Shares and other securities or property of Newco, if any, being valued as of the Valuation Date and containing a brief statement as to the nature and scope of the examination or investigation upon which the determination of value was made. The Warrant Agent shall have no duty with respect to the Value Report of any Independent Financial Expert, except to keep it on file and available for inspection by the Holders and the Warrant Agent shall have no duty or responsibility in determining the accuracy or correctness of the calculations in such report. The determination as to value in accordance with the provisions of this Section 4.1(l) shall be conclusive on all Persons. The Independent Financial Expert shall consult with management of Newco in order to allow management to comment on the proposed value prior to delivery to Newco of any Value Report of the Independent Financial Expert. Section 4.2. Notice of Adjustment. Whenever the number of Common Shares or other stock or property purchasable upon the exercise of each Warrant or the Exercise Price is adjusted, as herein provided, Newco shall cause the Warrant Agent promptly to mail, at the expense of Newco, to each Holder notice of such adjustment or adjustments and shall deliver to the Warrant Agent a certificate of a firm of independent public accountants selected by the Board of Directors of Newco (who may be the regular accountants employed by Newco) setting forth the number of Common Shares or other stock or property purchasable upon the exercise of each Warrant and the Exercise Price after such adjustment, setting forth a brief statement of the facts requiring such adjustment and setting forth the computation by which such adjustment was made. Such certificate shall be conclusive evidence of the correctness of such adjustment. The Warrant Agent shall be entitled to rely on such certificate and shall be under no duty or responsibility with respect to any such certificate, except to exhibit the same, from time to time, to any Holder desiring an inspection thereof during reasonable business hours. The Warrant Agent shall not at any time be under any duty or responsibility to any Holders to determine whether any facts exist which may require any adjustment of the Exercise Price or the number of Common Shares or other securities or property purchasable on exercise of the Warrants, or with respect to the nature or extent of any such adjustment when made, or with respect to the method employed in making such adjustment, or the validity or value (or the kind or amount) of any Common Shares or other securities or property which may be purchasable on exercise of the Warrants. The Warrant Agent shall not be responsible for any failure of Newco to make any cash payment or to issue, transfer or deliver any Common Shares or other securities or property upon the exercise of any Warrant. Section 4.3. Statement on Warrants. Irrespective of any adjustment in the Exercise Price or the number or kind of shares purchasable upon the exercise of the Warrants, Warrants theretofore or thereafter issued may continue to express the same price and number and kind of shares as are stated in the Warrants initially issuable pursuant to this Agreement. Section 4.4. Notice of Consolidation, Merger, Etc. In case at any time after the date hereof and prior to 5:00 p.m., New York City time, on the Expiration Date, there shall be any (i) consolidation or merger involving Newco or sale, transfer or other disposition of all or substantially all of Newco's property, assets or business (except a merger or other reorganization in which Newco shall be the surviving corporation and holders of Common Shares (or other securities or property purchasable upon exercise of the Warrants) receive no consideration in respect of their shares) or (ii) any other transaction contemplated by Section 4.1(i)(ii) above, then in any one or more of such cases, Newco shall cause to be mailed to the Warrant Agent and each Holder of a Warrant, at the earliest practicable time (and, in any event, not less than 20 calendar days before any date set for definitive action), notice of the date on which such reorganization, sale, consolidation, merger, dissolution, liquidation or winding up shall take place, as the case may be. Such notice shall also set forth such facts as shall indicate the effect of such action (to the extent such effect may be known at the date of such notice) on the Exercise Price and the kind and amount of Common Shares and other securities, money and other property deliverable upon exercise of the Warrants. Such notice shall also specify the date as of which the holders of record of the Common Shares or other securities or property issuable upon exercise of the Warrants shall be entitled to exchange their shares for securities, money or other property deliverable upon such reorganization, sale, consolidation, merger, dissolution, liquidation or winding up, as the case may be. Section 4.5. Fractional Interests. If more than one Warrant shall be presented for exercise in full at the same time by the same Holder, the number of full Common Shares which shall be issuable upon such exercise thereof shall be computed on the basis of the aggregate number of Common Shares purchasable on exercise of the Warrants so presented. If any fraction of an Common Share would, except for the provisions of this Section 4.5, be issuable on the exercise of any Warrant (or specified portion thereof), Newco shall pay an amount in cash calculated by it to be equal to the then Current Market Value per Common Share multiplied by such fraction computed to the nearest whole cent. ARTICLE V DECREASE IN EXERCISE PRICE The Board of Directors of Newco, in its sole discretion, shall have the right at any time, or from time to time, to decrease the Exercise Price of the Warrants, such reduction of the Exercise Price to be effective for a period or periods to be determined by it, but in no event for a period of less than 30 calendar days. Any exercise by the Board of Directors of Newco of any rights granted in this Article V must be preceded by a written notice from Newco to each Holder of the Warrants and to the Warrant Agent setting forth the reduction in the Exercise Price, which notice shall be mailed at least 30 calendar days prior to the effective date of such decrease in the Exercise Price. Any reduction of the Exercise Price pursuant to provisions of this Article V shall not alter or adjust the number of Common Shares or other securities or property issuable upon the exercise of the Warrants. ARTICLE VI LOSS OR MUTILATION Upon receipt by Newco and the Warrant Agent of evidence satisfactory to them of the ownership and the loss, theft, destruction or mutilation of any Warrant Certificate and of indemnity satisfactory to them and (in the case of mutilation) upon surrender and cancellation thereof, then, in the absence of notice to Newco or the Warrant Agent that the Warrants represented thereby have been acquired by a bona fide purchaser, Newco shall execute and the Warrant Agent shall countersign and deliver to the registered Holder of the lost, stolen, destroyed or mutilated Warrant Certificate, in exchange for or in lieu thereof, a new Warrant Certificate of the same tenor and for a like aggregate number of Warrants. Upon the issuance of any new Warrant Certificate under this Article VI, Newco may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and other expenses (including the fees and expenses of the Warrant Agent) in connection therewith. Every new Warrant Certificate executed and delivered pursuant to this Article VI in lieu of any lost, stolen or destroyed Warrant Certificate shall constitute a contractual obligation of Newco, whether or not the allegedly lost, stolen or destroyed Warrant Certificates shall be at any time enforceable by anyone, and shall be entitled to the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly executed and delivered hereunder. The provisions of this Article VI are exclusive and shall preclude (to the extent lawful) all other rights or remedies with respect to the replacement of mutilated, lost, stolen, or destroyed Warrant Certificates. ARTICLE VII AUTHORIZATION AND RESERVATION OF COMMON SHARES Newco shall at all times reserve and keep available for issue upon the exercise of Warrants such number of its authorized but unissued Common Shares or other securities of Newco deliverable upon exercise of Warrants as will be sufficient to permit the exercise in full of all outstanding Warrants and will cause appropriate evidence of ownership of such Common Shares or other securities of Newco to be delivered to the Warrant Agent upon its request for delivery upon the exercise of Warrants, and all such Common Shares will, at all times, be duly approved for listing subject to official notice of issuance on each securities exchange, if any, on which such Common Shares are then listed. Newco covenants that all Common Shares or other securities of Newco that may be issued upon the exercise of the Warrants will, upon issuance, be duly authorized, validly issued, fully paid and not subject to any calls for funds and nonassessable, and free from preemptive or similar rights (other than those validly and effectively waived) and all taxes, liens, charges and security interests. ARTICLE VIII WARRANT HOLDERS Section 8.1. Warrant Holder Not Deemed a Stockholder. Newco and the Warrant Agent may deem and treat the registered Holder(s) of the Warrant Certificates as the absolute owner(s) thereof (notwithstanding any notation of ownership or other writing thereon made by anyone), for the purpose of any exercise thereof and for all other purposes, and neither Newco nor the Warrant Agent shall be affected by any notice to the contrary. Prior to the exercise of the Warrants, no Holder of a Warrant Certificate, as such, shall be entitled to any rights of a stockholder of Newco, including, without limitation, the right to vote or to consent to any action of the stockholders, to receive dividends or other distributions, to exercise any preemptive right or to receive any notice of meetings of stockholders and, except as otherwise provided in this Agreement, shall not be entitled to receive any notice of any proceedings of Newco. Section 8.2. Right of Action. All rights of action with respect to this Agreement are vested in the Holders of the Warrants, and any Holder of any Warrant, without the consent of the Warrant Agent or the Holders of any other Warrant, may, in his own behalf and for his own benefit, enforce, and may institute and maintain any suit, action or proceeding against Newco suitable to enforce, or otherwise in respect of, his right to exercise his Warrants in the manner provided in the Warrant Certificate representing his Warrants and in this Agreement. ARTICLE IX REMEDIES Section 9.1. Defaults. It shall be deemed to be a "Default" with respect to Newco's (or its successor's) obligations under this Agreement if: (a) a Repurchase Event occurs and Newco (or its successor) shall fail to make a Repurchase Offer pursuant to Section 3.4 hereof; or (b) Newco (or its successor) shall fail to purchase the Warrants pursuant to the Repurchase Offer in accordance with the provisions of Section 3.4 hereof. Section 9.2. Payment Obligations. Upon the happening of a Default under this Agreement, Newco shall be obligated to increase the amount otherwise payable pursuant to Section 3.4(d) hereof in respect of the Repurchase Offer to which such Default relates by an amount equal to interest thereon at a rate per annum equal to [__]% from the date of the Default to the date of payment, which interest shall compound quarterly (all such payment obligations in respect of such Repurchase Offer, together with all such increased amounts, being the "Repurchase Obligation"). Section 9.3. Remedies; No Waiver. Notwithstanding any other provision of this Warrant Agreement, if a Default occurs and is continuing, the Holders of the Warrants may pursue any available remedy to collect the Repurchase Obligation or to enforce the performance of any provision of this Warrant Agreement. A delay or omission by any Holder of a Warrant in exercising, or a failure to exercise, any right or remedy arising out of a Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Default. All remedies are cumulative to the extent permitted by law. ARTICLE X THE WARRANT AGENT Section 10.1. Duties and Liabilities. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth, by all of which Newco and the Holders of Warrants, by their acceptance thereof, shall be bound. The Warrant Agent shall not, by countersigning Warrant Certificates or by any other act hereunder, be deemed to make any representations as to the validity or authorization of the Warrants or the Warrant Certificates (except as to its countersignature thereon) or of any securities or other property delivered upon exercise or repurchase of any Warrant, or as to the accuracy of the computation of the Exercise Price or the number or kind or amount of stock or other securities or other property deliverable upon exercise or repurchase of any Warrant, or as to the independence of any Independent Financial Expert or the correctness of the representations of Newco made in the certificates that the Warrant Agent receives. The Warrant Agent shall not be accountable for the use or application by Newco of the proceeds of the exercise of any Warrant. The Warrant Agent shall not have any duty to calculate or determine any adjustments with respect to either the Exercise Price or the kind and amount of shares or other securities or any property receivable by Holders upon the exercise or repurchase of Warrants required from time to time and the Warrant Agent shall have no duty or responsibility in determining the accuracy or correctness of such calculation. The Warrant Agent shall not be (a) liable for any recital or statement of fact contained herein or in the Warrant Certificates or for any action taken, suffered or omitted by it in good faith in the belief that any Warrant Certificate or any other documents or any signatures are genuine or properly authorized, (b) responsible for any failure on the part of Newco to comply with any of its covenants and obligations contained in this Agreement or in the Warrant Certificates or (c) liable for any act or omission in connection with this Agreement except for its own gross negligence or willful misconduct. The Warrant Agent is hereby authorized to accept instructions with respect to the performance of its duties hereunder from the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer or the Secretary or Treasurer of Newco and to apply to any such officer for instructions (which instructions will be promptly given in writing when requested) and the Warrant Agent shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the instructions of any such officer; however, in its discretion, the Warrant Agent may in lieu thereof accept other evidence of such or may require such further or additional evidence as it may deem reasonable. The Warrant Agent shall not be liable for any action taken with respect to any matter in the event it requests instructions from Newco as to that matter and does not receive such instructions within a reasonable period of time after the request therefor. The Warrant Agent may execute and exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, agents or employees, and the Warrant Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorneys, agents or employees, provided reasonable care has been exercised in the selection and in the continued employment of any such attorney, agent or employee. The Warrant Agent shall not be under any obligation or duty to institute, appear in or defend any action, suit or legal proceeding in respect hereof, unless first indemnified to its satisfaction, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may consider proper, whether with or without such indemnity. The Warrant Agent shall promptly notify Newco in writing of any claim made or action, suit or proceeding instituted against it arising out of or in connection with this Agreement. Newco will perform, execute, acknowledge and deliver or cause to be delivered all such further acts, instruments and assurances as are consistent with this Agreement and as may reasonably be required by the Warrant Agent in order to enable it to carry out or perform its duties under this Agreement. The Warrant Agent shall act solely as agent of Newco hereunder. The Warrant Agent shall not be liable except for the failure to perform such duties as are specifically set forth herein, and no implied covenants or obligations shall be read into this Agreement against the Warrant Agent, whose duties and obligations shall be determined solely by the express provisions hereof. Section 10.2. Right to Consult Counsel. The Warrant Agent may at any time consult with legal counsel (who may be legal counsel for Newco), and the opinion or advice of such counsel shall be full and complete authorization and protection to the Warrant Agent and the Warrant Agent shall incur no liability or responsibility to Newco or to any Holder for any action taken, suffered or omitted by it in good faith in accordance with the opinion or advice of such counsel. Section 10.3. Compensation; Indemnification. Newco agrees promptly to pay the Warrant Agent from time to time, on demand of the Warrant Agent, compensation for its services hereunder as Newco and the Warrant Agent may agree from time to time, and to reimburse it for reasonable expenses and counsel fees incurred in connection with the execution and administration of this Agreement, and further agrees to indemnify the Warrant Agent and save it harmless against any losses, liabilities or expenses arising out of or in connection with the acceptance and administration of this Agreement, including the costs and expenses of investigating or defending any claim of such liability, except that Newco shall have no liability hereunder to the extent that any such loss, liability or expense results from the Warrant Agent's own gross negligence or willful misconduct. The obligations of Newco under this Section shall survive the exercise and the expiration of the Warrants and the resignation or removal of the Warrant Agent. Section 10.4. No Restrictions on Actions. The Warrant Agent and any stockholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of Newco or become pecuniarily interested in transactions in which Newco may be interested, or contract with or lend money to Newco or otherwise act as fully and freely as though it were not the Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for Newco or for any other legal entity. Section 10.5. Discharge or Removal; Replacement Warrant Agent. The Warrant Agent may resign from its position as such and be discharged from all further duties and liabilities hereunder (except liability arising as a result of the Warrant Agent's own gross negligence or willful misconduct), after giving one month's prior written notice to Newco. Newco may remove the Warrant Agent upon one month's written notice specifying the date when such discharge shall take effect, and the Warrant Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder, except as aforesaid. Newco shall cause to be mailed to each Holder of a Warrant a copy of said notice of resignation or notice of removal, as the case may be. Upon such resignation or removal Newco shall appoint in writing a new warrant agent. If Newco shall fail to make such appointment within a period of 30 calendar days after it has been notified in writing of such resignation by the resigning Warrant Agent or after such removal, then the resigning Warrant Agent or the Holder of any Warrant may apply to any court of competent jurisdiction for the appointment of a new warrant agent. Pending appointment of a successor to the original Warrant Agent, either by Newco or by such a court, the duties of the Warrant Agent shall be carried out by Newco. Any new warrant agent, whether appointed by Newco or by such a court, shall be a bank or trust company doing business under the laws of the United States or any state thereof, in good standing and having a combined capital and surplus of not less than $25,000,000. The combined capital and surplus of any such new warrant agent shall be deemed to be the combined capital and surplus as set forth in the most recent annual report of its condition published by such warrant agent prior to its appointment, provided that such reports are published at least annually pursuant to law or to the requirements of a federal or state supervising or examining authority. After acceptance in writing of such appointment by the new warrant agent, it shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; however, the original Warrant Agent shall in all events deliver and transfer to the successor Warrant Agent all property, if any, at the time held hereunder by the original Warrant Agent and if for any reason it shall be necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the expense of Newco and shall be legally and validly executed and delivered by the resigning or removed Warrant Agent. Not later than the effective date of any such appointment, Newco shall file notice thereof with the resigning or removed Warrant Agent and shall forthwith cause a copy of such notice to be mailed to each Holder of a Warrant. Failure to give any notice provided for in this Section 10.5, however, or any defect therein, shall not affect the legality or validity of the resignation of the Warrant Agent or the appointment of a new warrant agent, as the case may be. Section 10.6. Successor Warrant Agent. Any corporation into which the Warrant Agent or any new warrant agent may be merged, or any corporation resulting from any consolidation to which the Warrant Agent or any new warrant agent shall be a party, shall be a successor Warrant Agent under this Agreement without any further act, provided that such corporation would be eligible for appointment as successor to the Warrant Agent under the provisions of Section 10.5 hereof. Any such successor Warrant Agent shall promptly cause notice of its succession as Warrant Agent to be mailed to each Holder of a Warrant. ARTICLE XI REGISTRATION Section 11.1. Effectiveness and Availability of Registration Statement. (a) Newco shall use its best efforts to maintain the effectiveness of the registration statement covering the issuance of the Underlying Securities (the "Registration Statement") until the earlier of (i) such time as all Warrants have been exercised and (ii) [__________], 2007. Prior to filing any amendment to the Registration Statement, Newco shall provide a copy thereof to Morgan Stanley and its counsel and afford them a reasonable time to comment thereon. Newco will furnish the Warrant Agent with current prospectuses meeting the requirements of the Securities Act and the rules and regulations of the Commission thereunder in sufficient quantity to permit the Warrant Agent to deliver, at Newco's expense, a prospectus to each Holder of a Warrant upon the exercise thereof. Newco shall promptly inform the Warrant Agent of any change in the status of the effectiveness or availability of the Registration Statement. (b) Newco shall use its best efforts to register the Underlying Securities on the Nasdaq Stock Market by [__________], 1997. Section 11.2. Suspension. Notwithstanding the foregoing, during any consecutive 365-day period, Newco shall have the privilege to suspend availability of the Registration Statement for up to two 15-consecutive-day periods, except during the 30-day period immediately prior to the Expiration Date, if Newco's Board of Directors determines in good faith that there is a valid business purpose for such suspension and provides notice of such determination to the Holders at their addresses appearing in the register of Warrants maintained by the Warrant Agent. Section 11.3. Blue Sky. Newco shall use its best efforts to register or qualify the Underlying Securities under all applicable securities or "blue sky" laws of all jurisdictions in the United States and Canada and shall use its best efforts to maintain such registration or qualification through the earlier of the date upon which all Warrants have been exercised and [__________], 2007; provided, however, that Newco shall not be required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify but for this Section 11.3, (ii) file any general consent to service of process or (iii) subject itself to taxation in any jurisdiction if it is not otherwise so subject. Section 11.4. Accuracy of Disclosure. Newco represents and warrants to each Holder and agrees for the benefit of each Holder that (i) the Registration Statement and the documents incorporated by reference therein will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading; and (ii) the prospectus delivered to such Holder upon its exercise of Warrants and the documents incorporated by reference therein will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Section 11.5. Indemnity. Newco hereby indemnifies each beneficial owner of a Warrant (whether or not it is, at the time the indemnity provided for in this Section 11.5 is sought, such a beneficial owner) against all losses, damages or liabilities which such beneficial owner suffers as a result of any breach, on the date of any exercise of a Warrant by such beneficial owner, of the representations, warranties or agreements contained in Section 11.4. Section 11.6. Expenses. All expenses incident to Newco's performance of or compliance with its obligations under this Agreement will be borne by Newco, regardless of whether a Registration Statement becomes effective, including without limitation: (i) all Commission, stock exchange or National Association of Securities Dealers, Inc. registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with state securities or "blue sky" laws, (iii) all expenses of any Persons incurred by or on behalf of Newco in preparing or assisting in preparing, word processing, printing and distributing any registration statement, any prospectus, any amendments or supplements thereto and other documents relating to the performance of and compliance with this Agreement, (iv) the fees and disbursements of the Warrant Agent, (v) the fees and disbursements of counsel for Newco and the Warrant Agent and (vi) the fees and disbursements of the independent public accountants of Newco, including the expenses of any special audits or "cold comfort" letters required by or incident to such performance and compliance. Section 11.7. Additional Acts. If the issuance or sale of any Common Shares or other securities issuable upon the exercise of the Warrants require registration or approval of any governmental authority (other than the registration requirements under the Securities Act), or the taking of any other action under the laws of the United States of America or any political subdivision thereof before such securities may be validly offered or sold in compliance with such laws, then Newco covenants that it will, in good faith and as expeditiously as reasonably practicable, endeavor to secure and maintain such registration or approval or to take such other action, as the case may be. ARTICLE XII MISCELLANEOUS Section 12.1. Money Deposited with the Warrant Agent. The Warrant Agent shall not be required to pay interest on any moneys deposited pursuant to the provisions of this Agreement except such as it shall agree in writing with Newco to pay thereon. Any moneys, securities or other property which at any time shall be deposited by Newco or on its behalf with the Warrant Agent pursuant to this Agreement shall be and are hereby assigned, transferred and set over to the Warrant Agent in trust for the purpose for which such moneys, securities or other property shall have been deposited; but such moneys, securities or other property need not be segregated from other funds, securities or other property except to the extent required by law. Any money, securities or other property deposited with the Warrant Agent for payment or distribution to the Holders that remains unclaimed for two years after the date the money, securities or other property was deposited with the Warrant Agent shall be delivered to Newco upon its request therefor. Section 12.2. Payment of Taxes. All Common Shares or other securities issuable upon the exercise of Warrants shall be validly issued, fully paid and not subject to any calls for funds, and Newco shall pay any taxes and other governmental charges that may be imposed under the laws of the United States of America or any political subdivision or taxing authority thereof or therein in respect of the issue or delivery thereof or of other securities deliverable upon exercise of Warrants or in respect of any Repurchase Offer (other than income taxes imposed on the Holders). Newco shall not be required, however, to pay any tax or other charge imposed in connection with any transfer involved in the issue of any certificate for Common Shares or other securities or property issuable upon the exercise of the Warrants or in respect of a Repurchase Offer or payment of cash to any Person other than the Holder of a Warrant Certificate surrendered upon the exercise or repurchase of a Warrant and in case of such transfer or payment, the Warrant Agent and Newco shall not be required to issue any stock certificate or pay any cash until such tax or charge has been paid or it has been established to the Warrant Agent's and Newco's satisfaction that no such tax or charge is due. Section 12.3. No Merger, Consolidation or Sale of Assets of Newco. Except as otherwise provided herein, Newco will not merge into or consolidate with any other Person, or sell or otherwise transfer its property, assets and business substantially as an entirety to a successor of Newco, unless the Person resulting from such merger or consolidation, or such successor of Newco, shall expressly assume, by supplemental agreement satisfactory in form to the Warrant Agent and executed and delivered to the Warrant Agent, the due and punctual performance and observance of each and every covenant and condition of this Agreement to be performed and observed by Newco. Section 12.4. Reports to Holders. Newco shall file with the Commission the annual, quarterly and other reports required by Section 13(a), 13(c) or 15(d) of the Exchange Act, regardless of whether such Sections of the Exchange Act are applicable to Newco, and shall, at its expense, provide copies of such reports to each Holder, without cost to such Holder, and the Warrant Agent within seven days after the date it would have been required to file such reports or other information with the Commission had it been subject to such sections. Section 12.5. Notices. (a) Except as otherwise provided in Section 12.5(b) hereof, any notice, demand or delivery authorized by this Agreement shall be sufficiently given or made when mailed, if sent by first class mail, postage prepaid, addressed to any Holder of a Warrant at such Holder's last known address appearing on the register of Newco maintained by the Warrant Agent and to Newco or the Warrant Agent as follows: To Newco: Orion Newco Services, Inc. 2440 Research Boulevard, Suite 40 Rockville, MD 20850 Attention: [Chief Financial Officer] To the Warrant Agent: Bankers Trust Company 4 Albany Street New York, New York 10006 Attention: Corporate Trust and Agency Group or such other address as shall have been furnished to the party giving or making such notice, demand or delivery. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given when mailed, whether or not the Holder receives the notice. (b) Any notice required to be given by Newco to the Holders pursuant to Section 3.4(b) hereof shall be made by mailing by registered mail, return receipt requested, to the Holders at their last known addresses appearing on the register maintained by the Warrant Agent. Newco hereby irrevocably authorizes the Warrant Agent, in the name and at the expense of Newco, to mail any such notice upon receipt thereof from Newco. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given when mailed, whether or not the Holder receives the notice. Section 12.6. Governing Law. This Agreement shall be governed by the laws of the State of New York. Section 12.7. Binding Effect. This Agreement shall be binding upon and inure to the benefit of Newco and the Warrant Agent and their respective successors and assigns, and the Holders from time to time of the Warrants. Nothing in this Agreement is intended or shall be construed to confer upon any Person, other than Newco, the Warrant Agent and the Holders of the Warrants, any right, remedy or claim under or by reason of this Agreement or any part hereof. Section 12.8. Counterparts. This Agreement may be executed manually or by facsimile in any number of counterparts, each of which shall be deemed an original, but all of which together constitute one and the same instrument. Section 12.9. Amendments. The Warrant Agent may, without the consent or concurrence of the Holders of the Warrants, by supplemental agreement or otherwise, join with Newco in making any changes or corrections in this Agreement that (a) are required to cure any ambiguity or to correct any defective or inconsistent provision or clerical omission or mistake or manifest error herein contained or (b) add to the covenants and agreements of Newco in this Agreement further covenants and agreements of Newco thereafter to be observed, or surrender any rights or power reserved to or conferred upon Newco in this Agreement; provided that in either case such changes or corrections do not and will not adversely affect, alter or change the rights, privileges or immunities of the Holders of Warrants. Amendments or supplements which do not meet the requirements of the preceding sentence shall require the written consent of the Holders of a majority of the then outstanding Warrants; provided, however, that the consent of each Holder is required for any amendment or supplement pursuant to which the Exercise Price would be increased or the number of Common Shares purchasable upon exercises of Warrants would be decreased (other than pursuant to adjustments as provided in Article IV of this Agreement). Section 12.10. Headings. The descriptive headings of the several Sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions hereof. Section 12.11. Common Shares Legend. In the event a Holder exercises its Warrants at a time when the Registration Statement is not effective and available pursuant to an exemption from the registration requirements of the Securities Act, any Common Shares or other securities of Newco issuable upon exercise of such Warrants shall bear the following legend: THE COMMON SHARES [OR OTHER SECURITIES] EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND ACCORDINGLY MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER AGREES THAT (1) IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) IF APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT WITH RESPECT TO THE TRANSFER OF THE COMMON SHARES [OR OTHER SECURITIES] EVIDENCED HEREBY, RESELL OR OTHERWISE TRANSFER THE COMMON SHARES [OR OTHER SECURITIES] EVIDENCED HEREBY EXCEPT (A) TO NEWCO OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) INSIDE THE UNITED STATES TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a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ection 12.12. Third Party Beneficiaries. The Holders shall be third party beneficiaries to the agreements made hereunder between Newco, on the one hand, and the Warrant Agent, on the other hand, and each Holder shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of Holders hereunder. Section 12.13. Submission to Jurisdiction; Appointment of Agent for Service. By the execution and delivery of this Agreement, Newco (i) acknowledges that it has, by separate written instrument, irrevocably designated and appointed [NAME AND ADDRESS OF AGENT] (together with any successor, the "Authorized Agent"), as its authorized agent upon which process may be served in any suit or proceeding arising out of or relating to this Agreement, the Warrants or the Underlying Securities that may be instituted in any federal or state court in the State of New York, Borough of Manhattan, or brought under federal or state securities laws, and acknowledges that the Authorized Agent has accepted such designation, (ii) submits to the non-exclusive jurisdiction of any such court in any such suit or proceeding, and waives any objection which it may now or hereafter have to the laying of venue of any such proceeding or any claim of inconvenient forum and (iii) agrees that service of process upon the Authorized Agent and written notice of said service to Newco (mailed or delivered to [its Chief Financial Officer] at the address provided in Section 12.5, shall be deemed in every respect effective service of process upon Newco in any such suit or proceeding. Newco further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of the Authorized Agent in full force and effect so long as any of the Warrants or Underlying Securities shall be outstanding. To the extent that Newco has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, it hereby irrevocably waives such immunity in respect of its obligations under the above-referenced documents, to the extent permitted by law. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed, as of the day and year first above written. ORION NEWCO SERVICES, INC. By: ----------------------------------- Name: Title: BANKERS TRUST COMPANY, as Warrant Agent By: ----------------------------------- Name: Title: EXHIBIT A FORM OF WARRANT CERTIFICATE [THE WARRANTS EVIDENCED BY THIS CERTIFICATE WERE INITIALLY ISSUED AS PART OF AN ISSUANCE OF SENIOR NOTE UNITS (CUSIP NO. [______]) AND SENIOR DISCOUNT NOTE UNITS (CUSIP NO. [_______]), EACH SENIOR NOTE UNIT OF WHICH CONSISTS OF $[_______] PRINCIPAL AMOUNT OF [__]% SENIOR NOTES DUE 2007 OF NEWCO (THE "SENIOR NOTES") AND A WARRANT, AND EACH SENIOR DISCOUNT NOTE UNIT OF WHICH CONSISTS OF $[_____] PRINCIPAL AMOUNT AT MATURITY OF SENIOR DISCOUNT NOTES DUE 2007 (TOGETHER WITH THE SENIOR NOTES, THE "NOTES") AND A WARRANT. PRIOR TO THE CLOSE OF BUSINESS UPON THE EARLIEST OF (I) THE DATE THAT IS SIX MONTHS AFTER THE CLOSING DATE, (II) SUCH DATE AS THE UNDERWRITERS MAY, IN THEIR DISCRETION, DEEM APPROPRIATE AND (III) THE DATE NEWCO MAILS NOTICE OF AN OFFER TO REPURCHASE THE NOTES TO HOLDERS OF THE NOTES PURSUANT TO THE INDENTURES, THE WARRANTS EVIDENCED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY FROM, BUT MAY BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE NOTES.]* [UNLESS THIS WARRANT CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO NEWCO OR THE WARRANT AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR REPURCHASE AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE II OF THE WARRANT AGREEMENT.]** - ----------------------------- * To be included on Warrants issued prior to the Separation Date. ** To be included on any Global Warrant. A-2 ORION NEWCO SERVICES, INC. No. _____ CUSIP No. [_______] WARRANTS TO PURCHASE COMMON SHARES This certifies that _____________, or its registered assigns, is the owner of the number of Warrants set forth above, each of which represents the right to purchase, after [_____], 1997, from ORION NEWCO SERVICES, INC., a Delaware corporation ("Newco"), one share of common stock, par value $.01 per share (collectively, the "Common Shares"), of Newco at the purchase price (the "Exercise Price") of $[___] per Common Share (subject to adjustment as provided in the Warrant Agreement hereinafter referred to), upon surrender hereof at the office of Bankers Trust Company or to its successor as the warrant agent under the Warrant Agreement hereinafter referred to (any such warrant agent being herein called the "Warrant Agent"), with the Subscription Form on the reverse hereof duly executed, with signature guaranteed as therein specified and simultaneous payment in full (by cash or by certified or official bank or bank cashier's check payable to the order of Newco, or by the surrender of Warrants having an aggregate Spread (as defined in the Warrant Agreement) equal to the Exercise Price of the Warrants being exercised) of the purchase price for the share(s) as to which the Warrant(s) represented by this Warrant Certificate are exercised, all subject to the terms and conditions hereof and of the Warrant Agreement. Notwithstanding the foregoing, Newco shall have the right to not allow an exercise of any Warrants in the event the Registration Statement is not effective and available at the time Warrants are exercised, unless prior to the exercise of such Warrants, the Holder thereof furnishes to the Warrant Agent and Newco such certifications, legal opinions or other information as either of them may reasonably require to confirm that such exercise is being made pursuant to an exemption from the registration requirements of the Securities Act. This Warrant Certificate is issued under and in accordance with a Warrant Agreement dated as of [_______], 1997 (the "Warrant Agreement"), between Newco and Bankers Trust Company, as Warrant Agent, and is subject to the terms and provisions contained therein, to all of which terms and provisions the Holder of this Warrant Certificate consents by acceptance hereof. The Warrant Agreement is hereby incorporated herein by reference and made a part hereof. Reference is hereby made to the Warrant Agreement for a full description of the rights, limitations of rights, obligations, duties and immunities thereunder of Newco and the Holders of the Warrants. The summary of the terms of the Warrant Agreement contained in this Warrant Certificate is qualified in its entirety by express reference to the Warrant Agreement. All terms used in this Warrant Certificate that are defined in the Warrant Agreement shall have the meanings assigned to them in the Warrant Agreement. A-3 Copies of the Warrant Agreement are on file at the office of the Warrant Agent and may be obtained by writing to the Warrant Agent at the following address: Bankers Trust Company 4 Albany Street New York, New York 10006 Attention: Corporate Trust and Agency Group A "Repurchase Event", as defined in the Warrant Agreement, shall be deemed to occur on any date prior to [________], 2007 when Newco (i) consolidates or merges into or with another Person (but only where the holders of Common Shares receive consideration in exchange for all or part of such Common Shares) if the Common Shares (or other securities) thereafter issuable upon exercise of the Warrants are not registered under the Exchange Act or (ii) sells all or substantially all of its assets to another Person if the Common Shares (or other securities) thereafter issuable upon exercise of the Warrants is not registered under the Exchange Act; provided that in each case a "Repurchase Event" will not be deemed to have occurred if the consideration for the Common Shares in such transaction consists solely of cash. Following a Repurchase Event, Newco must make an offer to repurchase all outstanding Warrants (a "Repurchase Offer"). If Newco makes a Repurchase Offer, Holders may, until the expiration date of such offer, surrender all or part of their Warrants for repurchase by Newco. Warrants received by the Warrant Agent in proper form during a Repurchase Offer will, except as otherwise provided in the Warrant Agreement, be repurchased by Newco at a price in cash (the "Repurchase Price") equal to the value on the Valuation Date relating thereto of the Common Shares and other securities or property which would have been delivered upon exercise of the Warrants had the Warrants been exercised, less the Exercise Price (whether or not the Warrants are then exercisable). The value of such Common Shares and other securities will be (i) if the Common Shares (or other securities) are registered under the Exchange Act, determined based upon the average of the closing sales prices of the Common Shares (or other securities) for the 20 consecutive trading days immediately preceding such Valuation Date or, if the Common Shares (or other securities) have been registered under the Exchange Act for less than 20 consecutive trading days before such date, then the average of the closing sales prices for all of the trading days before such date for which closing sales prices are available or (ii) if the Common Shares (or other securities) are not registered under the Exchange Act or if the value cannot be computed under clause (i) above, determined by the Independent Financial Expert (as defined in the Warrant Agreement), in each case as set forth in the Warrant Agreement. The "Valuation Date" with respect to a Repurchase Offer is the date five Business Days prior to the date notice of such Repurchase Offer is first given. A-4 If Newco fails to make or complete a Repurchase Offer (a "Default") as required by the Warrant Agreement, it shall be obligated to increase the amount otherwise payable pursuant to the Warrant Agreement in respect of the Repurchase Offer by an amount equal to interest thereon at a rate per annum of [__]% from the date of the Default to the date of payment, which interest shall compound quarterly. If Newco merges or consolidates with or into, or sells all or substantially all of its property and assets to, another Person solely for cash, or in the event of the dissolution, liquidation or winding-up of Newco, the Holders of Warrants shall be entitled to receive distributions on the date of such event on an equal basis with holders of Common Shares (or other securities issuable upon exercise of the Warrants) as if the Warrants had been exercised immediately prior to such event (less the Exercise Price) or the amount payable pursuant to an outstanding Repurchase Offer if a Repurchase Offer is then outstanding or required, if higher. The number of Common Shares purchasable upon the exercise of each Warrant and the price per share are subject to adjustment as provided in the Warrant Agreement. Except as stated in the immediately preceding paragraph, in the event Newco merges or consolidates with, or sells all or substantially all of its assets to, another Person, each Warrant will, upon exercise, entitle the Holder thereof to receive the number of shares of capital stock or other securities or the amount of money and other property which the holder of a Common Share (or other securities or property issuable upon exercise of a Warrant) is entitled to receive upon completion of such merger, consolidation or sale. As to any final fraction of a share which the same Holder of one or more Warrants would otherwise be entitled to purchase upon exercise thereof in the same transaction, Newco shall pay the cash value thereof determined as provided in the Warrant Agreement. All Common Shares or other securities issuable by Newco upon the exercise of Warrants shall be validly issued, fully paid and not subject to any calls for funds, and Newco shall pay all taxes and other governmental charges that may be imposed under the laws of the United States of America or any political subdivision or taxing authority thereof or therein in respect of the issue or delivery of such shares or of other securities deliverable upon exercise of Warrants. Newco shall not be required, however, to pay any tax or other charge imposed in connection with any transfer involved in the issue of any certificate for Common Shares, and in such case Newco shall not be required to issue or deliver any stock certificate until such tax or other charge has been paid or it has been established to the Warrant Agent's and Newco's satisfaction that no tax or other charge is due. This Warrant Certificate and all rights hereunder are transferable by the registered Holder hereof, in whole or in part, on the register of Newco maintained by the Warrant Agent for such purpose at its office in New York, New York, upon surrender of this Warrant Certificate duly endorsed, or accompanied by a written instrument of transfer in form A-5 satisfactory to Newco and the Warrant Agent duly executed, with signatures guaranteed as specified in the attached Form of Assignment, by the registered Holder hereof or his attorney duly authorized in writing and upon payment of any necessary transfer tax or other governmental charge imposed upon such transfer. Upon any partial transfer, Newco will issue and the Warrant Agent will deliver to such Holder a new Warrant Certificate or Certificates with respect to any portion not so transferred. Each taker and Holder of this Warrant Certificate, by taking and holding the same, consents and agrees that prior to the registration of transfer as provided in the Warrant Agreement, Newco and the Warrant Agent may treat the person in whose name the Warrants are registered as the absolute owner hereof for any purpose and as the Person entitled to exercise the rights represented hereby, any notice to the contrary notwithstanding. This Warrant Certificate may be exchanged at the office of the Warrant Agent maintained for such purpose in New York, New York for Warrant Certificates representing the same aggregate number of Warrants, each new Warrant Certificate to represent such number of Warrants as the Holder hereof shall designate at the time of such exchange. Prior to the exercise of the Warrants represented hereby, the Holder of this Warrant Certificate, as such, shall not be entitled to any rights of a stockholder of Newco, including, without limitation, the right to vote or to consent to any action of the stockholders, to receive dividends or other distributions, to exercise any preemptive right or to receive any notice of meetings of stockholders, and shall not be entitled to receive any notice of any proceedings of Newco except as provided in the Warrant Agreement. This Warrant Certificate shall be void and all rights evidenced hereby shall cease on [________], 2007, unless sooner terminated by the liquidation, dissolution or winding-up of Newco or as otherwise provided in the Warrant Agreement upon the consolidation or merger of Newco with, or sale of Newco to, another Person or unless such date is extended as provided in the Warrant Agreement. A-6 This Warrant Certificate shall not be valid for any purpose until it shall have been countersigned by the Warrant Agent. Dated: ORION NEWCO SERVICES, INC. By: ---------------------- Name: Title: Countersigned: BANKERS TRUST COMPANY, as Warrant Agent By: --------------------- Authorized Signatory A-7 FORM OF REVERSE OF WARRANT CERTIFICATE SUBSCRIPTION FORM (To be executed only upon exercise of Warrant) To: The undersigned irrevocably exercises ________ of the Warrants represented by the Warrant Certificate for the purchase of [_____] (subject to adjustment) Common Shares, par value $.01 per share, of ORION NEWCO SERVICES, INC. and herewith makes payment of $_______ (such payment being by cash or by certified or official bank or bank cashier's check payable to the order or at the direction of Newco, or by the surrender of Warrants having an aggregate Spread (as defined in the Warrant Agreement) equal to the Exercise Price of the Warrants being exercised), all at the exercise price and on the terms and conditions specified in the within Warrant Certificate and the Warrant Agreement therein referred to, surrenders this Warrant Certificate and all right, title and interest therein to and directs that the Common Shares deliverable upon the exercise of such Warrants be registered or placed in the name and at the address specified below and delivered thereto. Dated: ------------------------------------ (Signature of Owner) ------------------------------------ (Street Address) ------------------------------------ (City) (State) (Zip Code) Signature Guaranteed By:1 ------------------------------------ - ---------- 1 The Holder's signature must be guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc., a commercial bank or trust company having an office or correspondent in the United States or an "eligible guarantor institution" as defined by Rule 17Ad-15 under the Exchange Act. Securities and/or check to be issued to: Please insert social security or identifying number: Name: A-8 Securities and/or check to be issued to: Please insert social security or identifying number: Name: Street Address: City, State and Zip Code: FORM OF CERTIFICATE FOR SURRENDER FOR REPURCHASE OFFER (To be executed only upon repurchase of Warrant by Newco) To: The undersigned, having received prior notice of the consideration for which ORION NEWCO SERVICES, INC. will repurchase the Warrants represented by the within Warrant Certificate, hereby surrenders this Warrant Certificate for repurchase by ORION NEWCO SERVICES, INC. of the number of Warrants specified below for the consideration set forth in such notice. Dated: ----------------------------------- (Number of Warrants to be Repurchased) ----------------------------------- (Signature of Owner) ----------------------------------- (Street Address) ----------------------------------- (City) (State) (Zip Code) Signature Guaranteed By:1 ----------------------------------- - ---------- 1 The Holder's signature must be guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc., a commercial bank or trust company having an office or correspondent in the United States or an "eligible guarantor institution" as defined by Rule 17Ad-15 under the Exchange Act. Securities and/or check to be issued to: Please insert social security or identifying number: Name: A-10 Securities and/or check to be issued to: Please insert social security or identifying number: Name: Street Address: City, State and Zip Code: FORM OF ASSIGNMENT FOR VALUE RECEIVED the undersigned registered holder of the within Warrant Certificate hereby sells, assigns, and transfers unto the Assignee(s) named below (including the undersigned with respect to any Warrants constituting a part of the Warrants evidenced by the within Warrant Certificate not being assigned hereby) all of the right of the undersigned under the within Warrant Certificate, with respect to the number of Warrants set forth below: Name(s) of Assignee(s): _____________________________________ Address: __________________________________________________ No. of Warrants: ___________________________________________ Please insert social security or other identifying number of assignee(s): and does hereby irrevocably constitute and appoint ________________________ the undersigned's attorney to make such transfer on the books of __________________ maintained for the purposes, with full power of substitution in the premises. Dated: ------------------------------------- (Signature of Owner) ------------------------------------- (Street Address) ------------------------------------- (City) (State) (Zip Code) Signature Guaranteed By:* ------------------------------------- - ---------- 1 The Holder's signature must be guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc., a commercial bank or trust company having an office or correspondent in the United States or an "eligible guarantor institution" as defined by Rule 17Ad-15 under the Exchange Act. Securities and/or check to be issued to: Please insert social security or identifying number: Name: APPENDIX A LIST OF FINANCIAL EXPERTS - ------------------------- [Alex. Brown & Sons Bear, Stearns & Co., Inc. Dillon, Read & Co. Inc. Donaldson, Lufkin & Jenrette Securities Corporation Goldman, Sachs & Co. Lazard Freres & Co. Merrill Lynch, Pierce, Fenner & Smith Incorporated Morgan Stanley & Co. Incorporated PaineWebber Incorporated Prudential Securities Inc. Salomon Brothers Inc Lehman Brothers] - -------- 11 The Holder's signature must be guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc., a commercial bank or trust company having an office or correspondent in the United States or an "eligible guarantor institution" as defined by Rule 17Ad-15 under the Exchange Act. 11 The Holder's signature must be guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc., a commercial bank or trust company having an office or correspondent in the United States or an "eligible guarantor institution" as defined by Rule 17Ad-15 under the Exchange Act. * The Holder's signature must be guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc., a commercial bank or trust company having an office or correspondent in the United States or an "eligible guarantor institution" as defined by Rule 17Ad-15 under the Exchange Act. EX-12.1 21 EXHIBIT 12.1
Exhibit 12.1-Statement Re: Computation of Ratio of Earnings to Fixed Charges Year Ended December 31, ------------------------------------------------------------------------------------------------- 1991 1992 1993 1994 1995 1995 Pro Forma ------------------------------------------------------------------------------------------------- EARNINGS Net loss $(2,573,226) $(3,294,863) $ (7,886,071) $ (7,964,918) $(26,915,178) $(103,156,070) Interest 455,987 5,636,736 16,280,888 27,291,040 26,049,216 52,893,581 Interest capitalized during the period -- (5,457,139) (16,148,019) (27,230,481) (1,310,770) (2,256,781) Interest portion of rental Expense 79,774 108,720 838,644 1,037,149 1,326,206 1,326,206 ------------------------------------------------------------------------------------------------- $(2,037,465) $(3,006,546) $ (6,914,558) $ (6,867,210) $ (850,526) $ (51,193,064) ================================================================================================= FIXED CHARGES $ 455,987 $ 5,636,736 $ 16,280,888 $ 27,291,040 $ 26,049,216 $ 52,893,581 Interest Interest portion of rental expense 79,774 108,720 838,644 1,037,149 1,326,206 1,326,206 ------------------------------------------------------------------------------------------------- $ 535,761 $ 5,745,456 $ 17,119,532 $ 28,328,189 $ 27,375,422 $ 54,219,787 ================================================================================================= DEFICIENCY $(2,573,226) $(8,752,002) $(24,034,090) $(35,195,399) $(28,225,948) $(105,412,851) =================================================================================================
Nine months ended September 30, ------------------------------------------------------- 1995 1996 1996 Pro Forma ------------------------------------------------------- EARNINGS $(19,985,085) $(19,807,287) $(67,262,637) Net loss Interest 18,390,916 20,228,519 42,763,127 Interest capitalized during the period (1,310,770) -- (3,241,875) Interest portion of rental Expense 993,099 962,637 962,637 ------------------------------------------------------- $ (1,911,840) $ 1,383,869 $(26,778,748) ======================================================= FIXED CHARGES Interest $ 18,390,916 $ 20,228,519 $ 42,763,127 Interest portion of rental expense 993,099 962,637 962,637 ------------------------------------------------------- $ 19,384,015 $ 21,191,156 $ 43,725,764 ======================================================= DEFICIENCY $(21,295,855) $(19,807,287) $(70,504,512) ======================================================= -----END PRIVACY-ENHANCED MESSAGE-----