Exhibit X
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SKYTERRA LP
and
SKYTERRA FINANCE CO.,
as Issuers,
the GUARANTORS named herein
and
The Bank of New York Mellon, as Trustee
---------------------
INDENTURE
Dated as of January 7, 2009
---------------------
18.0% Senior Notes due 2013
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions................................................. -1-
Section 1.02 Other Definitions...........................................-26-
Section 1.03 Incorporation by Reference of Trust Indenture Act...........-27-
Section 1.04 Rules of Construction.......................................-27-
ARTICLE II
THE NOTES
Section 2.01 Form and Dating.............................................-28-
Section 2.02 Execution and Authentication................................-29-
Section 2.03 Registrar and Paying Agent..................................-30-
Section 2.04 Paying Agent to Hold Money in Trust.........................-30-
Section 2.05 Holder Lists................................................-31-
Section 2.06 Transfer and Exchange.......................................-31-
Section 2.07 Replacement Notes...........................................-41-
Section 2.08 Outstanding Notes...........................................-42-
Section 2.09 Temporary Notes.............................................-42-
Section 2.10 Cancellation................................................-42-
Section 2.11 Defaulted Interest..........................................-42-
Section 2.12 Deposit of Moneys...........................................-43-
Section 2.13 CUSIP Number................................................-43-
ARTICLE III
REDEMPTION
Section 3.01 Notices to Trustee..........................................-43-
Section 3.02 Selection by Trustee of Notes to Be Redeemed................-43-
Section 3.04 Effect of Notice of Redemption..............................-44-
Section 3.05 Deposit of Redemption Price.................................-44-
Section 3.06 Notes Redeemed in Part......................................-45-
ARTICLE IV
COVENANTS
Section 4.01 Payment of Notes............................................-45-
Section 4.02 SEC Reports.................................................-45-
Section 4.03 Waiver of Stay, Extension or Usury Laws.....................-47-
Section 4.04 Compliance Certificate......................................-47-
Section 4.05 Taxes.......................................................-47-
Section 4.06 Limitation on Indebtedness..................................-47-
Section 4.07 Limitation on Issuance or Sale of Capital Stock of
Restricted Entities.........................................-51-
Section 4.08 Limitation on Restricted Payments...........................-52-
Section 4.09 Limitation on Liens.........................................-55-
Section 4.10 Limitation on Sale of Assets and Subsidiary Stock...........-56-
Section 4.11 Limitation on Transactions with Affiliates..................-59-
Section 4.12 Future Guarantors...........................................-60-
Section 4.13 Limitation on Restrictions on Distributions from
Restricted Subsidiaries and Restricted Entities.............-61-
Section 4.14 Payments for Consent........................................-62-
Section 4.15 Corporate Existence.........................................-62-
Section 4.16 Change of Control...........................................-62-
Section 4.17 Maintenance of Office or Agency.............................-63-
Section 4.18 Maintenance of Insurance....................................-64-
Section 4.19 Limitation on Business Activities of Finance Co.............-65-
Section 4.20 Certain Matters in Connection with Licenses.................-65-
Section 4.21 Limitation on Line of Business..............................-65-
Section 4.22 Calculation of Original Issue Discount......................-65-
Section 4.23 Reimbursement Offer.........................................-65-
ARTICLE V
SUCCESSOR CORPORATION
Section 5.01 Limitation on Consolidation, Merger and Sale of Property....-67-
Section 5.02 Substitution of Company.....................................-68-
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01 Events of Default...........................................-69-
Section 6.02 Acceleration................................................-70-
Section 6.03 Other Remedies..............................................-71-
Section 6.04 Waiver of Past Defaults and Events of Default...............-71-
Section 6.05 Control by Majority.........................................-71-
Section 6.06 Limitation on Suits.........................................-72-
Section 6.07 Rights of Holders to Receive Payment........................-72-
Section 6.08 Collection Suit by Trustee..................................-72-
Section 6.09 Trustee May File Proofs of Claim............................-72-
Section 6.10 Priorities..................................................-73-
Section 6.11 Undertaking for Costs.......................................-73-
ARTICLE VII
TRUSTEE
Section 7.01 Duties of Trustee...........................................-73-
Section 7.02 Rights of Trustee...........................................-75-
Section 7.03 Individual Rights of Trustee................................-76-
Section 7.05 Notice of Defaults..........................................-76-
Section 7.06 Reports by Trustee to Holders...............................-76-
Section 7.07 Compensation and Indemnity..................................-77-
Section 7.08 Replacement of Trustee......................................-78-
Section 7.09 Successor Trustee by Consolidation, Merger or Conversion....-79-
Section 7.10 Eligibility; Disqualification...............................-79-
Section 7.11 Preferential Collection of Claims Against Company...........-79-
Section 7.12 Paying Agents...............................................-79-
ARTICLE VIII
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01 Without Consent of Holders..................................-80-
Section 8.02 With Consent of Holders.....................................-81-
Section 8.03 Revocation and Effect of Consents...........................-82-
Section 8.04 Notation on or Exchange of Notes............................-82-
Section 8.05 Trustee to Sign Amendments, etc.............................-82-
ARTICLE IX
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01 Discharge of Indenture......................................-83-
Section 9.02 Legal Defeasance............................................-83-
Section 9.03 Covenant Defeasance.........................................-84-
Section 9.04 Conditions to Defeasance or Covenant Defeasance.............-84-
Section 9.05 Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions...............-85-
Section 9.06 Reinstatement...............................................-86-
Section 9.07 Moneys Held by Paying Agent.................................-86-
Section 9.08 Moneys Held by Trustee......................................-86-
ARTICLE X
GUARANTEE OF SECURITIES
Section 10.01 Guarantee...................................................-87-
Section 10.02 Execution and Delivery of Guarantees........................-87-
Section 10.03 Limitation of Guarantee.....................................-88-
Section 10.04 Additional Guarantors.......................................-88-
Section 10.05 Release of Guarantor........................................-88-
Section 10.06 Waiver of Subrogation.......................................-89-
Section 10.07 Taxes.......................................................-89-
ARTICLE XI
MISCELLANEOUS
Section 11.01 Notices.....................................................-90-
Section 11.02 Communications by Holders with Other Holders................-91-
Section 11.03 Certificate and Opinion as to Conditions Precedent..........-91-
Section 11.04 Statements Required in Certificate and Opinion..............-91-
Section 11.05 When Treasury Notes Disregarded.............................-91-
Section 11.06 Rules by Trustee and Agents.................................-92-
Section 11.07 Legal Holidays..............................................-92-
Section 11.08 Governing Law...............................................-92-
Section 11.09 No Adverse Interpretation of Other Agreements...............-92-
Section 11.10 No Recourse Against Others..................................-92-
Section 11.11 Successors..................................................-92-
Section 11.12 Multiple Counterparts.......................................-92-
Section 11.13 Table of Contents, Headings, etc............................-93-
Section 11.14 Separability................................................-93-
Section 11.15 Waiver of Jury Trial........................................-93-
Section 11.16 Force Majeure...............................................-93-
Section 11.17 Currency of Account; Conversion of Currency; Foreign
Exchange Restrictions.......................................-93-
Section 11.18 Agent for Service...........................................-95-
Section 11.19 Interest Act (Canada).......................................-95-
Section 11.20 Joint and Several Obligations...............................-95-
Exhibits
Exhibit A-1 Form of Face of Certificated Notes.............................A-1
Exhibit A-2 Form of Restricted Global Note.................................A-2
Exhibit A-3 Form of Regulation S Global Note...............................A-3
Exhibit A-4 Form of Reverse of Notes.......................................A-4
Exhibit B Form of Certificate of Transfer................................B-1
Exhibit C Form of Certificate of Exchange................................C-1
Exhibit D Form of Certificate of Acquiring Institutional
Accredited Investors........................................D-1
INDENTURE, dated as of January 7, 2009 (the "Indenture"), among
SKYTERRA LP, a Delaware limited partnership (the "Company"), SKYTERRA FINANCE
CO., a Delaware corporation ("Finance Co." and, together with the Company, the
"Issuers"), the GUARANTORS (as defined herein) parties hereto and THE BANK OF
NEW YORK MELLON, a New York banking corporation, as Trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the holders of the Issuers' 18.0% Senior
Notes due 2013 (collectively, the "Notes"): The term Notes shall include the
Notes issued on the Issue Date, any Payment-in-Kind Notes and any Notes issued
on a subsequent closing and funding date all considered as one series.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
"14% Senior Secured Notes" means the 14% Senior Secured Discount Notes
due 2013 issued by the Issuers and the Guarantors thereof.
"144A Global Note" means a Global Note substantially in the form of
Exhibit A2 and A4 hereto bearing the Global Note Legend and the Restricted Notes
Legend and deposited with or on behalf of, and registered in the name of, the
Depository or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes resold in reliance on Rule 144A.
"16.5% Senior Notes" means the 16.5% Senior Notes due 2013 issued by
the Issuers and the Guarantors thereof.
"Additional Assets" means:
(1) any property, plant, license, equipment or any other tangible
asset or any improvement thereto (including improvements to existing
assets) used or useful in a Related Business;
(2) all or substantially all of the assets of, or the Capital Stock of
a Person that becomes a Restricted Entity as a result of the acquisition of
such Capital Stock by the Company or another Restricted Entity; or
(3) Capital Stock constituting a minority interest in any Person that
at such time is a Restricted Entity;
provided, however, that any such Restricted Entity described in clause (2) or
(3) above is primarily engaged in a Related Business.
"Affiliate" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Sections 4.08, 4.10 and 4.11 only (and for the avoidance of doubt,
not Section 11.05), "Affiliate" shall also mean any beneficial owner of Capital
Stock representing 20% or more of the total voting power of the Voting Stock (on
a fully diluted basis) of the General Partner or the Capital Stock of the
Company or of rights or warrants to purchase such Capital Stock (whether or not
currently exercisable) and any Person who would be an Affiliate of any such
beneficial owner pursuant to the first sentence hereof.
"Agent" means any Registrar, Paying Agent, co-registrar or agent for
service of notices and demands.
"Applicable Currency Equivalent" means, with respect to any monetary
amount in a currency other than U.S. Dollars, at any time for the determination
thereof, the amount of U.S. Dollars obtained by converting such foreign currency
involved in such computation into U.S. Dollars at the spot rate for the purchase
of U.S. Dollars with the applicable foreign currency as quoted by Reuters at
approximately 10:00 A.M. (New York time) on the date not more than two Business
Days prior to such determination
"Applicable Premium" means, with respect to any Note on any redemption
date, the greater of:
(1) 1.0% of the then outstanding principal amount of the Note; and
(2) the excess of:
(a) the present value at such redemption date of the redemption
price of the Note at January 1, 2011, computed using a discount rate
equal to the Treasury Rate as of such redemption date plus 50 basis
points; over
(b) the then outstanding principal amount of the Note.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depository that apply to such transfer or exchange.
"Asset Disposition" means any sale, lease (other than an operating
lease entered into in the ordinary course of business), transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Entity, including any disposition by means of a
merger, consolidation or similar transaction (each referred to for the purposes
of this definition as a "disposition"), of:
(1) any shares of Capital Stock of a Restricted Entity (other than
directors' qualifying shares or shares required by applicable law to be
held by a Person other than the Company or a Restricted Entity);
(2) all or substantially all the assets of any division or line of
business of the Company or any Restricted Entity; or
(3) any other assets of the Company or any Restricted Entity outside
of the ordinary course of business of the Company or such Restricted
Entity;
other than, in the case of clauses (1), (2) and (3) above,
(A) a disposition by a Restricted Entity to the Company or by the
Company or a Restricted Entity to a Guarantor;
(B) for purposes of Section 4.10 only, (i) a disposition that
constitutes a Restricted Payment (or would constitute a Restricted Payment
but for the exclusions from the definition thereof) or a Permitted
Investment and that is not prohibited by Section 4.08, (ii) the making of
an Asset Swap and (iii) a disposition of all or substantially all the
assets of the Company in accordance with Article 5;
(C) a disposition of assets in a transaction or series of related
transactions with a fair market value of less than $10 million;
(D) a disposition of cash or Temporary Cash Investments;
(E) the creation of a Lien permitted by this Indenture (but not the
sale or other disposition of the property subject to such Lien);
(F) the licensing or sublicensing of intellectual property or other
general intangibles; provided, however, such licensing or sublicensing
shall not interfere in any material respect with the Company's continuing
use of such intellectual property or other general intangibles in its
business;
(G) disposition of damaged, obsolete or worn out property in the
ordinary course of business; or
(H) granting a Permitted Lien.
"Asset Swap" means the concurrent purchase and sale or exchange of
Related Business Assets between the Company or any of the Restricted Entities
and another Person.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means,
as at the time of determination, the present value (discounted at the interest
rate borne by the Notes, compounded annually) of the total obligations of the
lessee for rental payments during the remaining term of the lease included in
such Sale/Leaseback Transaction (including any period for which such lease has
been extended); provided, however, that if such Sale/Leaseback Transaction
results in a Capital Lease Obligation, the amount of Indebtedness represented
thereby will be determined in accordance with the definition of "Capital Lease
Obligation".
"Average Life" means, as of the date of determination, with respect to
any Indebtedness, the quotient obtained by dividing:
(1) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment
of or redemption or similar payment with respect to such Indebtedness
multiplied by the amount of such payment by
(2) the sum of all such payments.
"Board of Directors" means the Board of Directors (or similar body) of
the Company (or if the Company is a limited partnership, the general partner
thereof) or any committee thereof duly authorized to act on behalf of such
Board.
"Board Resolution" means a resolution duly adopted by the Board of
Directors, certified by the Secretary or an Assistant Secretary of the Company
(or if the Company is a limited partnership, the General Partner) to have been
duly adopted and to be in full force and effect on the date of such
certification.
"Boeing Agreement" means the agreement between the Company and Boeing
Satellite Systems, Inc. for the MSV L-Band Space Based Network, dated January 9,
2006, as amended March 9, 2006, September 11, 2006, July 3, 2008 (and the
additional amendments contemplated thereby), and from time to time in a manner
not materially more burdensome, taken as a whole, to the holders of the Notes.
"Business Day" means each day which is not a Legal Holiday.
"Canadian Guarantors" means the Canadian Joint Ventures and the
Existing Canadian Subsidiary.
"Canadian Joint Ventures" means SkyTerra Holdings (Canada) Inc. and
SkyTerra (Canada) Inc. and their successors.
"Capital Lease Obligation" means an obligation that is required to be
classified and accounted for as a capital lease for financial reporting purposes
in accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty. For purposes of Section 4.09, a Capital Lease Obligation will be deemed
to be secured by a Lien on the property being leased.
"Capital Stock" of any Person means any and all shares, interests
(including partnership interests and membership interests in a limited liability
company), rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Change of Control" means the occurrences of any of the following
events:
(1) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than one or more Permitted Holders
(individually or as a member of such group), is or becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except
that for purposes of this clause (1) such person or group shall be deemed
to have "beneficial ownership" of all shares that any such person has the
right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of (a) more than 50% of
the total voting power of the Voting Stock of the General Partner or (b)
more than 50% of the total economic or voting power of the Capital Stock of
the Company (for the purposes of this clause (1), such other person or
group shall be deemed to beneficially own any Voting Stock or Capital Stock
of a Person (the "specified person") held by any other Person (including
one or more Permitted Holders) (the "parent entity"), if such other person
or group is the beneficial owner (as defined above in this clause (1)),
directly or indirectly, of more than 50% of the voting power of the Voting
Stock or 50% of the economic or voting power of the Capital Stock, as
applicable, of such parent entity);
(2) on and after the occurrence of any Public Offering, individuals
who on the Issue Date constituted the Board of Directors (together with any
new directors whose election by such Board of Directors or whose nomination
for election by the shareholders of the Parent, the Company or the General
Partner was approved by a vote of a majority of the directors of the
Parent, the Company or the General Partner then still in office who were
either directors on the Issue Date or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors then in office;
(3) the adoption of a plan relating to the liquidation or dissolution
of the Company; or
(4) the merger or consolidation of the Company or the General Partner
with or into another Person (other than one or more Permitted Holders) or
the merger of another Person (other than one or more Permitted Holders)
with or into the Company or the General Partner, or the sale of all or
substantially all the assets of the Company or the General Partner
(determined on a consolidated basis) to another Person (other than one or
more Permitted Holders) other than a transaction following which in the
case of a merger or consolidation transaction, holders of securities that
represented 100% of the Voting Stock of the General Partner and 100% of the
Capital Stock of the Company immediately prior to such transaction (or
other securities into which such securities are converted as part of such
merger or consolidation transaction) own directly or indirectly at least a
majority of the voting power of the Voting Stock of the surviving Person of
the General Partner and at least a majority of the economic or voting power
of the Capital Stock of the surviving Person or the Company (whether or not
the surviving Person is in the same corporate form) in such merger or
consolidation transaction immediately after such transaction.
Notwithstanding the foregoing, no Change of Control will be deemed to occur as a
result of any reorganization of the Company or a Permitted Holder as
contemplated in the MCSA.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces such party pursuant to Article 5 of this
Indenture and thereafter means the successor.
"Company Request" means any written request signed in the name of the
Company by the Chief Executive Officer, the President, any Vice President, the
Chief Financial Officer, the Treasurer or the Secretary or any Assistant
Secretary of the Company (or if the Company is a limited partnership, the
general partner thereof) and delivered to the Trustee.
"Consolidated Income Tax Expense" means, with respect to the Company
for any period, the provision for federal, state, local and foreign taxes based
on income or profits (including franchise taxes) payable by the Company and the
Restricted Entities for such period and any Permitted Tax Distributions for such
period as determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and the Restricted Entities for such period,
whether paid or accrued and whether or not capitalized (including amortization
of debt issuance costs and original issue discount, non-cash interest payments,
the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations and
Attributable Debt, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings), and net of the
effect of all payments made or received pursuant to Hedging Obligations.
"Consolidated Leverage Ratio" as of any date of determination means
the ratio of (x) the aggregate amount of Indebtedness of the Company and the
Restricted Entities as of such date of determination to (y) Consolidated
Operating Cash Flow for the most recent four consecutive fiscal quarters ending
prior to such date of determination for which financial information is available
(the "Reference Period"); provided, however, that:
(1) if the transaction giving rise to the need to calculate the
Consolidated Leverage Ratio is an Incurrence of Indebtedness, the amount of
such Indebtedness shall be calculated after giving effect on a pro forma
basis to such Indebtedness;
(2) if the Company or any Restricted Entity has repaid, repurchased,
defeased or otherwise discharged any Indebtedness that was outstanding as
of the end of such fiscal quarter or if any Indebtedness is to be repaid,
repurchased, defeased or otherwise discharged on the date of the
transaction giving rise to the need to calculate the Consolidated Leverage
Ratio (other than, in each case, Indebtedness Incurred under any revolving
credit agreement), the aggregate amount of Indebtedness shall be calculated
on a pro forma basis and Consolidated Operating Cash Flow shall be
calculated as if the Company or such Restricted Entity had not earned the
interest income, if any, actually earned during the Reference Period in
respect of cash or Temporary Cash Investments used to repay, repurchase,
defease or otherwise discharge such Indebtedness;
(3) if since the beginning of the Reference Period the Company or any
Restricted Entity shall have made any Asset Disposition, the Consolidated
Operating Cash Flow for the Reference Period shall be reduced by an amount
equal to the Consolidated Operating Cash Flow (if positive) directly
attributable to the assets which are the subject of such Asset Disposition
for the Reference Period or increased by an amount equal to the
Consolidated Operating Cash Flow (if negative) directly attributable
thereto for the Reference Period;
(4) if since the beginning of the Reference Period the Company or any
Restricted Entity (by merger or otherwise) shall have made an Investment in
any Restricted Entity (or any Person which becomes a Restricted Entity) or
an acquisition of assets which constitutes all or substantially all of an
operating unit of a business, Consolidated Operating Cash Flow for the
Reference Period shall be calculated after giving pro forma effect thereto
(including the Incurrence of any Indebtedness) as if such Investment or
acquisition had occurred on the first day of the Reference Period; and
(5) if since the beginning of the Reference Period any Person (that
subsequently became a Restricted Entity or was merged with or into the
Company or any Restricted Entity since the beginning of such Reference
Period) shall have made any Asset Disposition, any Investment or
acquisition of assets that would have required an adjustment pursuant to
clause (3) or (4) above if made by the Company or a Restricted Entity
during the Reference Period, Consolidated Operating Cash Flow for the
Reference Period shall be calculated after giving pro forma effect thereto
as if such Asset Disposition, Investment or acquisition had occurred on the
first day of the Reference Period.
For purposes of this definition, whenever pro forma effect is to be
given to an acquisition of assets, the amount of income or earnings relating
thereto and the amount of Consolidated Interest Expense associated with any
Indebtedness Incurred in connection therewith, the pro forma calculations shall
be determined in accordance with GAAP in good faith by a responsible financial
or accounting Officer of the Company. If any Indebtedness bears a floating rate
of interest and is being given pro forma effect, the interest on such
Indebtedness shall be calculated as if the rate in effect on the date of
determination had been the applicable rate for the entire period (taking into
account any Hedging Obligation applicable to such Indebtedness if such Hedging
Obligation has a remaining term in excess of 12 months). If any Indebtedness is
Incurred under a revolving credit facility and is being given pro forma effect,
the interest on such Indebtedness shall be calculated based on the average daily
balance of such Indebtedness for the four fiscal quarters subject to the pro
forma calculation to the extent such Indebtedness was Incurred solely for
working capital purposes.
"Consolidated Net Income" means, for any period, the net income of the
Company and its consolidated Restricted Entities; provided, however, that there
shall not be included in such Consolidated Net Income:
(1) any net income of any Person (other than the Company) if such
Person is not a Restricted Entity, except that:
(A) subject to the exclusion contained in clauses (3), (4) and
(5) below, the Company's equity in the net income of any such Person
for such period shall be included in such Consolidated Net Income up
to the aggregate amount of cash actually distributed by such Person
during such period to the Company or a Restricted Entity as a dividend
or other distribution (subject, in the case of a dividend or other
distribution paid to a Restricted Entity, to the limitations contained
in clause (2) below); and
(B) the Company's equity in a net loss of any such Person for
such period shall be included in determining such Consolidated Net
Income to the extent such loss has been funded with cash from the
Company or a Restricted Entity;
(2) any net income of any Restricted Entity if such Restricted Entity
is subject to restrictions, directly or indirectly, on the payment of
dividends or the making of distributions by such Restricted Entity,
directly or indirectly, to the Company, except that:
(A) subject to the exclusion contained in clauses (3), (4) and
(5) below, the Company's equity in the net income of any such
Restricted Entity for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash that could
have been distributed by such Restricted Entity during such period to
the Company or another Restricted Entity as a dividend or other
distribution (subject, in the case of a dividend or other distribution
paid to another Restricted Entity, to the limitation contained in this
clause); and
(B) the Company's equity in a net loss of any such Restricted
Entity for such period shall be included in determining such
Consolidated Net Income;
(3) any gain (or loss) realized upon the sale or other disposition of
any assets of the Company or its consolidated Restricted Entities
(including pursuant to any Sale/Leaseback Transaction) which is not sold or
otherwise disposed of in the ordinary course of business and any gain (or
loss) realized upon the sale or other disposition of any Capital Stock of
any Person;
(4) extraordinary gains or losses;
(5) the cumulative effect of a change in accounting principles;
(6) all deferred financing costs written off and premiums paid in
connection with an early extinguishment of Indebtedness;
(7) any non-cash compensation charge arising from any grant of stock,
stock option, or other equity based awards; and
(8) expenses related to the offering of Notes,
in each case, for such period. Notwithstanding the foregoing, (x) for the
purposes of Section 4.08 only, there shall be excluded from Consolidated Net
Income any repurchases, repayments or redemptions of Investments, proceeds
realized on the sale of Investments or return of capital to the Company or a
Restricted Entity to the extent such repurchases, repayments, redemptions,
proceeds or returns increase the amount of Restricted Payments permitted under
Section 4.08(a)(3)(D) and (y) Consolidated Net Income shall be reduced by the
amount of Permitted Tax Distributions.
"Consolidated Operating Cash Flow" means, with respect to the Company
and the Restricted Entities on a consolidated basis, for any period, an amount
equal to Consolidated Net Income for such period increased (without duplication)
by the sum of:
(a) Consolidated Income Tax Expense accrued for such period to the
extent deducted in determining Consolidated Net Income for such period;
(b) Consolidated Interest Expense for such period to the extent
deducted in determining Consolidated Net Income for such period;
(c) transition costs for customers under contract in connection with
migrating such customers' end user equipment to end user equipment that
functions on the Company's planned network not to exceed $10.0 million in
any fiscal year; and
(d) depreciation, amortization and any other noncash items for such
period to the extent deducted in determining Consolidated Net Income for
such period (other than any noncash item which requires the accrual of, or
a reserve for, cash charges for any future period) of the Company and the
Restricted Entities (including amortization of capitalized debt issuance
costs for such period), all of the foregoing determined on a consolidated
basis in accordance with GAAP, and decreased by noncash items to the extent
they increase Consolidated Net Income (including the partial or entire
reversal of reserves taken in prior periods, but excluding reversals of
accruals or reserves for cash charges taken in prior periods) for such
period.
"Consolidated Revenues" means, for any period, the consolidated net
revenue of the Company and the Restricted Entities for such period determined in
accordance with GAAP.
"Consolidated Total Assets" means the total assets of the Company and
its consolidated Restricted Entities, as shown on the most recent balance sheet
of the Company, determined on a consolidated basis in accordance with GAAP.
"Coop Agreement" means that certain Cooperation Agreement, dated as of
December 20, 2007, by and among the Company, SkyTerra (Canada) Inc., SkyTerra
Communications, Inc. and Inmarsat Global Limited, as the same may be amended
from time to time.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at: 000 Xxxxxxx Xxxxxx, 0X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Division -- Corporate Finance Unit, or such other address as the Trustee may
designate from time to time by notice to the Noteholders and the Company, or the
principal corporate trust office of any successor Trustee (or such other address
as such successor Trustee may designate from time to time by notice to the
Noteholders and the Company).
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibits A-1 and A-4 hereto and such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depository" means, with respect to the Notes issued in the form of
one or more Global Notes, The Depository Trust Company or another Person
designated as Depository by the Company, which Person must be a clearing agency
registered under the Exchange Act.
"Designated Equity Contributions" means Net Cash Proceeds received by
the Company or the Parent (to the extent the net proceeds thereof are
contributed to the equity capital of the Company (other than in the form of
Disqualified Stock) or are used to purchase Capital Stock of the Company (other
than Disqualified Stock)) from the issuance or sale of its Capital Stock (other
than Disqualified Stock) subsequent to the Issue Date and designated in an
Officer's Certificate as Designated Equity Contributions executed by the
principal financial officer of the Company.
"Designated Equity Election" means the delivery to the Trustee of an
Officer's Certificate stating that the Company elects to include Designated
Equity Contributions under Section 4.08(a)(3)(B).
"Designated Noncash Consideration" means the fair market value of
noncash consideration received by the Company or a Restricted Entity in
connection with an Asset Disposition that is so designated as Designated Noncash
Consideration pursuant to an Officer's Certificate, setting forth the basis of
such valuation, executed by the principal financial officer of the Company, less
the amount of cash or cash equivalents received in connection with a subsequent
sale of such Designated Noncash Consideration.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder) or upon
the happening of any event:
(1) matures or is mandatorily redeemable (other than redeemable only
for Capital Stock of such Person which is not itself Disqualified Stock)
pursuant to a sinking fund obligation or otherwise;
(2) is convertible or exchangeable at the option of the holder for
Indebtedness or Disqualified Stock; or
(3) is mandatorily redeemable or must be purchased upon the occurrence
of certain events or otherwise (including, without limitation, at the
option of the holder thereof), in whole or in part;
in each case on or prior to the date that is 91 days after the Stated Maturity
of the Notes; provided, however, that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders thereof
the right to require such Person to purchase or redeem such Capital Stock upon
the occurrence of an "asset sale" or "change of control" shall not constitute
Disqualified Stock if:
(A) the "asset sale" or "change of control" provisions applicable to
such Capital Stock are not more favorable, taken as a whole, to the holders
of such Capital Stock than the terms applicable to the Notes and under
Sections 4.10 and 4.16; and
(B) any such requirement only becomes operative after compliance with
such terms applicable to the Notes, including the purchase of any Notes
tendered pursuant thereto.
The amount of any Disqualified Stock that does not have a fixed
redemption, repayment or repurchase price will be calculated in accordance with
the terms of such Disqualified Stock as if such Disqualified Stock were
redeemed, repaid or repurchased on any date on which the amount of such
Disqualified Stock is to be determined pursuant to this Indenture; provided,
however, that if such Disqualified Stock could not be required to be redeemed,
repaid or repurchased at the time of such determination, the redemption,
repayment or repurchase price will be the book value of such Disqualified Stock
as reflected in the most recent financial statements of such Person.
"Equity Offering" means a primary public or private offering of
Capital Stock (other than Disqualified Stock) of the Company or the Parent ((to
the extent the net proceeds thereof are contributed to the equity capital of the
Company (other than in the form of Disqualified Stock) or are used to purchase
Capital Stock (other than Disqualified Stock) of the Company)) other than
offerings with respect to the Company's or Parent's Capital Stock or options,
warrants or rights registered on Form S-4 or S-8.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended.
"Existing Canadian Subsidiary" means SkyTerra Corp., a Nova Scotia
unlimited liability company, and its successors.
"FCC" means the Federal Communications Commission or any successor
agency thereto.
"FCC License Subsidiary" means SkyTerra Subsidiary LLC, a wholly owned
Subsidiary of the Company that owns all of the Company's FCC Licenses in the
United States.
"FCC Licenses" means broadcasting and other licenses, authorizations,
waivers and permits which are issued from time to time by the FCC.
"Full In-Orbit Insurance" means insurance coverage of satellites
following the period of time that is customarily covered by launch insurance and
provides coverage against partial losses, constructive total losses and complete
losses.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Original Issue Date, including those
set forth in:
(1) the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants;
(2) statements and pronouncements of the Financial Accounting
Standards Board;
(3) such other statements by such other entity as approved by a
significant segment of the accounting profession; and
(4) the rules and regulations of the SEC governing the inclusion of
financial statements (including pro forma financial statements) in periodic
reports required to be filed pursuant to Section 13 of the Exchange Act,
including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the SEC.
"General Partner" means SkyTerra GP Inc. and its successors.
"Global Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, substantially in the
form of Exhibits A2 through A4 hereto, issued in accordance with Section 2.01,
2.06(b)(vi) or 2.06(d)(iii) hereof.
"Governmental Authority" means any Federal, state, provincial, local,
foreign or other governmental, quasi-governmental or administrative (including
self-regulatory) body, instrumentality, department, agency, authority, board,
bureau, commission, office of any nature whatsoever or other subdivision
thereof, or any court, tribunal, administrative hearing body, arbitration panel
or other similar dispute-resolving body, whether now or hereafter in existence,
or any officer or official thereof, having jurisdiction over either of the
Issuers.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any Person and
any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness of such 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
(2) entered into for the purpose of assuring in any other manner the
obligee of such Indebtedness of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part);
provided, however, 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.
"Guarantor" means each Subsidiary of the Company and the Canadian
Joint Ventures that guarantee the Notes under Article 10.
"Hedging Obligations" of any Person means the obligations of such
Person under:
(1) currency exchange or interest rate swap agreements, currency
exchange or interest rate cap agreements or currency exchange or interest
rate collar agreements; or
(2) other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange or interest rate prices.
"holder" or "Noteholder" means the Person in whose name a Note is
registered on the register kept by the Registrar pursuant to Section 2.03
hereof.
"Immaterial Subsidiary" means any Subsidiary of the Company that owns
less than 1.0% of the Consolidated Total Assets and generates less than 1.0% of
the Consolidated Revenues for the latest four quarters then ended for which
financial statements are available and which does not guarantee and is not an
obligor under any other Indebtedness of the Company and the Restricted Entities.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness of a Person existing at the
time such Person becomes a Restricted Entity (whether by merger, consolidation,
acquisition or otherwise) shall be deemed to be Incurred by such Person at the
time it becomes a Restricted Entity. The term "Incurrence" when used as a noun
shall have a correlative meaning. Solely for purposes of determining compliance
with Section 4.06:
(1) except in respect of Indebtedness Incurred under Section
4.06(b)(1) (under which any amortization of debt discount or accretion of
principal will be deemed an Incurrence), amortization of debt discount or
the accretion of principal with respect to a non-interest bearing or other
discount security;
(2) the payment of regularly scheduled interest in the form of
additional Indebtedness of the same instrument (such as PIK Interest) or
the payment of regularly scheduled dividends on Capital Stock in the form
of additional Capital Stock of the same class and with the same terms; and
(3) the obligation to pay a premium in respect of Indebtedness arising
in connection with the issuance of a notice of redemption or making of a
mandatory offer to purchase such Indebtedness
will not be deemed to be the Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal in respect of (A) indebtedness of such Person for
money borrowed and (B) indebtedness evidenced by notes, debentures, bonds
or other similar instruments for the payment of which such Person is
responsible or liable, including, in each case, any premium on such
indebtedness to the extent such premium has become due and payable;
(2) all Capital Lease Obligations of such Person and all Attributable
Debt in respect of Sale/ Leaseback Transactions entered into by such
Person;
(3) all obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations of such Person
and all obligations of such Person under any title retention agreement (but
excluding any accounts payable or other liability to trade creditors
arising in the ordinary course of business), in each case only if and to
the extent due more than 12 months after the delivery of property;
(4) the principal component of all obligations of such Person for the
reimbursement of any obligor on any letter of credit, bankers' acceptance
or similar credit transaction (other than obligations with respect to
letters of credit securing obligations (other than obligations described in
clauses (1) through (3) above) entered into in the ordinary course of
business of such Person to the extent such letters of credit are not drawn
upon or, if and to the extent drawn upon, such drawing is reimbursed no
later than the tenth Business Day following payment on the letter of
credit);
(5) the principal component of the amount of all obligations of such
Person with respect to the redemption, repayment or other repurchase of any
Disqualified Stock of such Person or, with respect to any Preferred Stock
of any Restricted Entity of such Person, the principal amount of such
Preferred Stock to be determined in accordance with this Indenture (but
excluding, in each case, any accrued dividends);
(6) all obligations of the type referred to in clauses (1) through (5)
of other Persons and all dividends of other Persons for the payment of
which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
Guarantee;
(7) all obligations of the type referred to in clauses (1) through (6)
of other Persons secured by any Lien on any property or asset of such
Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the fair market
value of such property or assets and the amount of the obligation so
secured; and
(8) to the extent not otherwise included in this definition, Hedging
Obligations of such Person.
Notwithstanding the foregoing, in connection with the purchase by the
Company or any Restricted Entity of any business, the term "Indebtedness" will
exclude post-closing payment adjustments to which the seller may become entitled
to the extent such payment is determined by a final closing balance sheet or
such payment depends on the performance of such business after the closing;
provided, however, that, at the time of closing, the amount of any such payment
is not determinable and, to the extent such payment thereafter becomes fixed and
determined, the amount is paid within 30 days thereafter.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all obligations as described above;
provided, however, that in the case of Indebtedness sold at a discount, the
amount of such Indebtedness at any time will be the accreted value thereof at
such time.
"Indenture" means this Indenture, as defined in the first paragraph
hereof, as may be amended from time to time in accordance with the terms hereof.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Industry Canada" means the Canadian Federal Minister of Industry and
his or her designees, including the Department of Industry and its successors."
"Industry Canada Licenses" means all licenses, approvals in principle,
permits or authorizations issued by Industry Canada to the Canadian Joint
Ventures or the Existing Canadian Subsidiary for purposes of carrying on their
respective businesses in Canada.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act (or an entity in which all of the equity owners are the
foregoing) and that is not also a QIB.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Notes.
"Investment" by any Person in any other Person means any direct or
indirect advance, loan (other than advances to customers in the ordinary course
of business that are recorded as accounts receivable on the balance sheet of the
lender) or other extensions of credit (including by way of Guarantee or similar
arrangement) 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, Indebtedness
or other similar instruments issued by such Person. If the Company or any
Restricted Entity issues, sells or otherwise disposes of any Capital Stock of a
Person that is a Restricted Entity such that, after giving effect thereto, such
Person is no longer a Restricted Entity, any Investment by the Company or any
Restricted Entity in such Person remaining after giving effect thereto will be
deemed to be a new Investment at such time. Except as otherwise provided for
herein, the amount of an Investment shall be its fair market value at the time
the Investment is made and without giving effect to subsequent changes in value;
provided that none of the following will be deemed to be an Investment:
(1) Hedging Obligations entered into in the ordinary course of
business and in compliance with this Indenture; and
(2) endorsements of negotiable instruments and documents in the
ordinary course of business; and
(3) any transaction to the extent that the consideration provided by
the Company or a Restricted Entity consists of Capital Stock of the Company
or the Parent (other than Disqualified Stock).
For purposes of the definition of "Unrestricted Entity", Section 4.08
and the definition of "Restricted Payment", "Investment" shall include:
(1) the portion (proportionate to the Company's equity interest in
such Subsidiary) of the fair market value of the net assets of any
Subsidiary of the Company at the time that such Subsidiary is designated an
Unrestricted Entity; provided, however, that upon a redesignation of such
Subsidiary as a Restricted Subsidiary, the Company shall be deemed to
continue to have a permanent "Investment" in an Unrestricted Entity equal
to an amount (if positive) equal to (A) the Company's "Investment" in such
Subsidiary at the time of such redesignation less (B) the portion
(proportionate to the Company's equity interest in such Subsidiary) of the
fair market value of the net assets of such Subsidiary at the time of such
redesignation; and
(2) any property transferred to or from an Unrestricted Entity shall
be valued at its fair market value at the time of such transfer, in each
case as determined in good faith by the Board of Directors.
"Issue Date" means the first date that the Notes are issued pursuant
to this Indenture.
"Issuers" has the meaning given such term in the first introductory
paragraph hereto.
"L-Band Spectrum" means capacity or other right to use, for a
satellite and/or ATC network, using the frequency band residing at 1626.5-1660.5
MHz (Earth to space), 1668-1675 MHz (Earth to space) and 1518-1559 MHz (space to
Earth) as allocated for mobile satellite services by the International
Telecommunications Union.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the State of New York.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Maturity Date" means July 1, 2013.
"MCSA" means the Master Contribution and Support Agreement dated July
24, 2008 among Harbinger Capital Partners Master Fund I, Ltd., Harbinger Capital
Partners Special Situation Fund, L.P., Harbinger Co-Investment Fund I, L.P.,
SkyTerra Communications, Inc. the Company and the FCC License Subsidiary, as
such agreement may be amended from time to time.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor to
its rating agency business.
"Net Available Cash" from an Asset Disposition means cash payments
received by the Company or a Restricted Entity therefrom (including any cash
payments received by way of deferred payment of principal pursuant to a note or
installment receivable or otherwise and proceeds from the sale or other
disposition of any securities received as consideration, but only as and when
received, but excluding any other consideration received in the form of
assumption by the acquiring Person of Indebtedness or other obligations relating
to such properties or assets or received in any other non-cash form), in each
case net of:
(1) all legal, title, accounting, broker and recording tax expenses,
commissions and other fees and expenses Incurred, and all Federal, state,
provincial, foreign and local taxes required to be accrued as a liability
under GAAP, as a consequence of such Asset Disposition;
(2) all payments made on any Indebtedness which is secured by any
assets subject to such Asset Disposition pursuant to a Lien that is
permitted by this Indenture prior to any Lien on such assets securing the
Notes, in accordance with the terms of any Lien upon or other security
agreement of any kind with respect to such assets;
(3) all distributions and other payments required to be made to
minority interest holders in Restricted Subsidiaries as a result of such
Asset Disposition;
(4) the deduction of appropriate amounts provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated with
the property or other assets disposed in such Asset Disposition and
retained by the Company or any Restricted Entity after such Asset
Disposition; and
(5) any portion of the purchase price from an Asset Disposition placed
in escrow, whether as a reserve for adjustment of the purchase price, for
satisfaction of indemnities in respect of such Asset Disposition or
otherwise in connection with that Asset Disposition; provided, however,
that upon the termination of that escrow, Net Available Cash will be
increased by any portion of funds in the escrow that are released to the
Company or any Restricted Entity.
"Net Available Reimbursement Proceeds", means the cash proceeds of any
rights offering of any parent of the Issuers required pursuant to Article XIX of
the MCSA, net of attorneys' fees, accountants' fees, underwriters' or placement
agents' fees, discounts or commissions and brokerage, consultant and other fees
actually incurred or payable in connection with such offering.
"Net Cash Proceeds", with respect to any issuance or sale of Capital
Stock or Indebtedness, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Non-U.S. Person" means a Person who is not a U.S. Person as defined
in Regulation S.
"Notes" has the meaning given such term in the second introductory
paragraph hereto.
"Obligations" means, with respect to any Indebtedness, all obligations
for principal, premium, interest, penalties, fees, indemnifications,
reimbursements and other amounts payable pursuant to the documentation governing
such Indebtedness.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer or the Secretary of the Company (or if the Company is a
limited partnership, of the general partner).
"Officer's Certificate" means a certificate signed by any Officer and
delivered to the Trustee.
"Old Indentures" means the indentures, dated as of March 30, 2006 and
January 7, 2008, by and among the Issuers, the Guarantors and the Trustee, as
the same may be modified, supplemented, amended, refinanced, renewed or
replaced.
"Old Notes" means (i) the 14% Senior Secured Notes and the Guarantees
thereof and any "Additional Notes" as defined in and issued pursuant to Article
2, and in compliance with, Sections 4.06 and 4.09, of the indenture, dated as of
March 30, 2006, by and among the Issuers, the Guarantors and the Trustee, after
the March 30, 2006 issue date, and (ii) the 16.5% Senior Notes and the
Guarantees thereof. The 16.5% Senior Notes will continue to constitute Old Notes
following any amendment that subordinates such Notes to other Indebtedness of
the Issuer, including, the 14% Senior Secured Notes.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company.
"Original Issue Date" means March 30, 2006.
"Parent" means SkyTerra Communications, Inc., or any other direct or
indirect parent company of the Company.
"Pari Passu Indebtedness" means the Old Notes and any other
Indebtedness of the Company or a Guarantor that is pari passu in right of
payment (and not expressly subordinated) to the Notes or, in the case of a
Guarantor, that is pari passu in right of payment (and not expressly
subordinated) to its Guarantee.
"Participant" means, with respect to the Depository, a Person who has
an account with the Depository.
"Payment-in-Kind Notes" means additional Notes issued under this
Indenture on the same terms and conditions as the Notes issued on the Issue Date
in connection with PIK Interest. For purposes of this Indenture, all references
to "Notes" shall include any related Payment-in-Kind Notes.
"Permitted Holder Change of Control" means, with respect to a
Permitted Holder, the occurrence of a Change of Control of such Permitted Holder
(with references in the definition of Change of Control (and other defined terms
referenced therein) to the General Partner or the Company being deemed to be
references to such Permitted Holder).
"Permitted Holders" means each of (i) Xxxxxxx Management Corporation,
Harbinger Capital Partners Master Fund I, Ltd., Harbinger Capital Partners
Special Situation Fund, L.P. and their Affiliates, (ii) SkyTerra Communications,
Inc. so long as a Permitted Holder Change of Control with respect to SkyTerra
Communications, Inc. shall not have occurred; and (iii) any group (as such term
is used in Section 13(d) and 14(d) of the Exchange Act) if the owner of a
majority of the shares of Voting Stock of the General Partner beneficially owned
by such group consist of one or more persons identified in the foregoing
clauses.
"Permitted Investment" means an Investment by the Company or any
Restricted Entity in:
(1) the Company, a Guarantor or a Person that will, upon the making of
such Investment, become a Guarantor; provided, however, that the primary
business of such Guarantor is a Related Business;
(2) another Person if, as a result of such Investment, such other
Person is merged or consolidated with or into, or transfers or conveys all
or substantially all its assets to, the Company or a Guarantor; provided,
however, that such Person's primary business is a Related Business;
(3) a Restricted Entity that is not organized in the United States of
America or any State thereof or the District of Columbia in an amount
outstanding not to exceed $15 million since the Issue Date;
(4) cash and Temporary Cash Investments;
(5) receivables owing to the Company or any Restricted Entity if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; provided, however,
that such trade terms may include such concessionary trade terms as the
Company or any such Restricted Entity deems reasonable under the
circumstances;
(6) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of
business;
(7) loans or advances to employees made in the ordinary course of
business consistent with past practices of the Company or such Restricted
Entity not to exceed $2.5 million at any time outstanding;
(8) stock, obligations or securities received in settlement of debts
created in the ordinary course of business and owing to the Company or any
Restricted Entity or in satisfaction of judgments or pursuant to any plan
of reorganization or similar arrangement upon the bankruptcy or insolvency
of a debtor or foreclosure of a Lien;
(9) any Person to the extent such Investment represents the non-cash
portion of the consideration received for (A) an Asset Disposition as
permitted pursuant to Section 4.10 or (B) a disposition of assets not
constituting an Asset Disposition;
(10) any Person where such Investment was acquired by the Company or
any of its Restricted Subsidiaries (A) in exchange for any other Investment
or accounts receivable held by the Company or any such Restricted Entity in
connection with or as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such other Investment or accounts
receivable or (B) as a result of a foreclosure by the Company or any of its
Restricted Subsidiaries with respect to any secured Investment or other
transfer of title with respect to any secured Investment in default;
(11) any Person to the extent such Investments consist of prepaid
expenses, negotiable instruments held for collection and lease, utility and
workers' compensation, performance and other similar deposits made in the
ordinary course of business by the Company or any Restricted Entity;
(12) any Person to the extent such Investments consist of Hedging
Obligations otherwise permitted under Section 4.06;
(13) any Person to the extent such Investment exists on the Issue
Date, and any extension, modification or renewal of any such Investments
existing on the Issue Date, but only to the extent not involving additional
advances, contributions or other Investments of cash or other assets or
other increases thereof (other than as a result of the accrual or accretion
of interest or original issue discount or the issuance of pay-in-kind
securities, in each case, pursuant to the terms of such Investment as in
effect on the Issue Date);
(14) any Person having an aggregate fair market value (measured on the
date each such Investment was made and without giving effect to subsequent
changes in value), when taken together with all other Investments made
pursuant to this clause (14) that are still outstanding, do not exceed
$10.0 million in any calendar year and $60.0 million in the aggregate since
the Issue Date;
(15) Investments in Persons for the purpose of using or selling
satellite capacity in Mexico or Latin America that is not being used by the
Company or its Restricted Subsidiaries, which Investments are in the form
of transfers to such Persons of such unutilized satellite capacity for fair
market value not to exceed $25.0 million at any time outstanding under this
clause; and
(16) Investments consisting of nonexclusive licensing of intellectual
property pursuant to joint marketing arrangements with other Persons, for
which license or contribution the Company and the Restricted Entities
receives fair market value.
"Permitted Liens" means, with respect to any Person:
(1) pledges or deposits by such Person under worker's compensation
laws, unemployment insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other than for the
payment of Indebtedness) or leases to which such Person is a party, or
deposits to secure public or statutory obligations of such Person or
deposits of cash or United States government bonds to secure surety or
appeal bonds to which such Person is a party, or deposits as security for
contested taxes or import duties or for the payment of rent, in each case
Incurred in the ordinary course of business;
(2) Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens, in each case for sums not yet due or being contested in
good faith by appropriate proceedings and as to which the Company or any of
its Restricted Subsidiaries shall have set aside on its books such reserves
as may be required pursuant to GAAP so long as any forfeiture (foreclosure)
of collateral proceedings are stayed, Liens arising solely by virtue of any
statutory or common law provision relating to banker's Liens, rights of
set-off or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution; provided, however,
that (A) such deposit account is not a dedicated cash collateral account
and is not subject to restrictions against access by the Company in excess
of those set forth by regulations promulgated by the Federal Reserve Board
and (B) such deposit account is not intended by the Company or any
Restricted Entity to provide collateral to the depository institution;
(3) judgment Liens not giving rise to an Event of Default so long as
such Lien is adequately bonded and any appropriate legal proceedings which
may have been duly initiated for the review of such judgment shall not have
been previously terminated or the period within which such proceeding may
be initiated shall not have expired;
(4) Liens for taxes, assessments or other governmental charges not yet
subject to penalties for non-payment or which are being contested in good
faith by appropriate proceedings and as to which the Company or any of its
Restricted Subsidiaries shall have set aside on its books such reserves as
may be required pursuant to GAAP so long as any forfeiture (foreclosure) of
collateral proceedings are stayed;
(5) Liens in favor of issuers of surety bonds or letters of credit
issued pursuant to the request of and for the account of such Person in the
ordinary course of its business; provided, however, that such letters of
credit do not constitute Indebtedness;
(6) minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, licenses, rights-of-way, sewers,
electric lines, telegraph and telephone lines and other similar purposes or
zoning or other restrictions as to the use of real property or Liens
incidental to the conduct of the business of such Person or to the
ownership of its properties which were not Incurred in connection with
Indebtedness and which do not in the aggregate materially adversely affect
the value or marketability of said properties or materially impair their
use in the operation of the business of such Person at the real property
affected thereby;
(7) Liens securing Indebtedness permitted by Section 4.06(b)(13)
incurred to finance the construction, purchase or lease of, or repairs,
improvements or additions to, property, plant or equipment of such Person;
provided, however, that the Lien may not extend to any other property owned
by such Person or any of their Restricted Subsidiaries at the time the Lien
is Incurred (other than assets and property affixed or appurtenant
thereto), and the Indebtedness (other than any interest thereon) secured by
the Lien may not be Incurred more than 180 days after the later of the
acquisition, completion of construction, repair, improvement, addition or
commencement of full operation of the property subject to the Lien;
(8) Liens on L-Band Spectrum in North America leased under Capital
Lease Obligations or purchased with Purchase Money Indebtedness permitted
to be incurred under Section 4.06(b)(12) and securing only such
Indebtedness;
(9) Liens existing on the Original Issue Date or incurred after the
Original Issue Date and prior to the Issue Date in compliance with the
terms of the Old Indentures;
(10) Liens on property or shares of Capital Stock of another Person at
the time such other Person becomes a Restricted Entity; provided, however,
that the Liens may not extend to any other property owned by such Person or
any of its Restricted Subsidiaries (other than assets and property affixed
or appurtenant thereto);
(11) Liens on property at the time such Person or any of its
Restricted Subsidiaries acquires the property, including any acquisition by
means of a merger or consolidation with or into such Person or a Subsidiary
of such Person; provided, however, that the Liens may not extend to any
other property owned by such Person or any of its Restricted Subsidiaries
(other than assets and property affixed or appurtenant thereto);
(12) Liens securing Hedging Obligations so long as such Hedging
Obligations are permitted to be Incurred under this Indenture;
(13) leases, licenses, subleases and sublicenses of assets (including,
without limitation, real property and intellectual property rights) which
do not materially interfere with the ordinary conduct of the business of
the Company or any of its Restricted Subsidiaries;
(14) Liens securing Indebtedness permitted to be Incurred under
Section 4.06(b)(1), including Guarantees thereof;
(15) Liens securing obligations in respect of the Old Notes;
(16) Liens arising from Uniform Commercial Code financing statement
filings regarding operating leases entered into by the Company and its
Restricted Subsidiaries in the ordinary course of business;
(17) Liens on any ownership interest of the Company or any Restricted
Entity in satellites and related assets that are being produced by Boeing
to secure amounts owing to Boeing (including under Section 4.06(b)(18)) and
that do not restrict the granting of a Lien on such satellite and related
assets to secure the Notes and the Guarantees; provided that upon the risk
of loss with respect to a satellite and related assets passing to the
Company, if the Company is current in its payment of all construction
deferrals and other payments payable with respect to the satellite being
released at such time, the Lien on such satellite and related work shall be
automatically released; and
(18) Liens to secure any Refinancing (or successive Refinancings) as a
whole, or in part, of any Indebtedness secured by any Lien referred to in
the foregoing clause (7), (9), (10), (11) or (15); provided, however, that:
(A) such new Lien shall be limited to all or part of the same
property and assets that secured or, under the written agreements
pursuant to which the original Lien arose, could secure the original
Lien (plus improvements and accessions to, such property or proceeds
or distributions thereof); and
(B) the Indebtedness secured by such Lien at such time is not
increased to any amount greater than the sum of (i) the outstanding
principal amount or, if greater, committed amount of the Indebtedness
described under clause (7), (9), (10), (11) or (15) at the time the
original Lien became a Permitted Lien and (ii) an amount necessary to
pay any fees and expenses, including premiums, related to such
refinancing, refunding, extension, renewal or replacement.
Notwithstanding the foregoing, "Permitted Liens" will not include any
Lien described in clause (7), (10) or (11) above to the extent such Lien applies
to any Additional Assets acquired directly or indirectly with Net Available Cash
pursuant to Section 4.10. For purposes of this definition, the term
"Indebtedness" shall be deemed to include interest on such Indebtedness.
Notwithstanding the foregoing, with respect to any property subject to
any mortgages, "Permitted Liens" will not include the Liens described in clause
(1) above.
"Permitted Tax Distributions" means dividends or distributions
permitted by Section 4.08(b)(11).
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"PIK Interest" means interest paid with respect to the Notes in the
form of Payment-in-Kind Notes.
"Preferred Stock", as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of
such Person.
"Principal" of a Note means the then outstanding principal amount of
the Note plus the premium, if any, payable on the Note which is due or overdue
or is to become due at the relevant time.
"Public Offering" means any Equity Offering pursuant to an effective
registration statement filed with the SEC.
"Purchase Money Indebtedness" means Indebtedness:
(1) consisting of the deferred purchase price of an asset, conditional
sale obligations, obligations under any title retention agreement and other
purchase money obligations, in each case where the maturity of such
Indebtedness does not exceed the anticipated useful life of the asset being
financed, and
(2) Incurred to finance the acquisition, lease or construction by the
Company or a Restricted Entity of such asset, including additions and
improvements;
provided, however, that such Indebtedness is Incurred within 180 days after the
acquisition by the Company or such Restricted Entity of such asset.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Redemption Date" means any date on which Notes are to be redeemed
pursuant to paragraph 5 of the Notes and the terms of this Indenture.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, purchase, redeem, defease or retire, or to
issue other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of the Company or any Restricted Entity existing on the Issue Date
or Incurred in compliance with this Indenture, including Indebtedness that
Refinances Refinancing Indebtedness; provided, however, that:
(1) such Refinancing Indebtedness has a Stated Maturity no earlier
than the Stated Maturity of the Indebtedness being Refinanced or, if such
Refinancing Indebtedness is a Subordinated Obligation, no earlier than 91
days after the Stated Maturity of the Notes;
(2) such Refinancing Indebtedness has an Average Life at the time such
Refinancing Indebtedness is Incurred that is equal to or greater than the
Average Life of the Indebtedness being Refinanced or, if such Refinancing
Indebtedness is a Subordinated Obligation, equal to or greater than the
then remaining Average Life of the Notes;
(3) such Refinancing Indebtedness has an aggregate principal amount
(or if Incurred with original issue discount, an aggregate issue price, and
including any additional Indebtedness actually issued in satisfaction of
payment in kind interest (such as Payment-in-Kind Notes)), that is equal to
or less than the aggregate principal amount (or if Incurred with original
issue discount, the aggregate accreted value including and any additional
Indebtedness actually issued in satisfaction of payment in kind interest
(such as Payment-in-Kind Notes)) then outstanding (plus fees and expenses,
including any premium and defeasance costs) under the Indebtedness being
Refinanced; and
(4) if the Indebtedness being Refinanced is subordinated in right of
payment to the Notes, such Refinancing Indebtedness (a) is subordinated in
right of payment to the Notes at least to the same extent as the
Indebtedness being Refinanced, (b) has a Stated Maturity that is at least
91 days after the later of (x) the Stated Maturity of the Notes and (y) the
Stated Maturity of the Indebtedness being Refinanced and (c) has an Average
Life at the time such Refinancing Indebtedness is Incurred that is greater
than (x) the Average Life of the Notes and (y) the Average Life of the
Indebtedness being Refinanced;
provided further, however, that Refinancing Indebtedness shall not include (A)
Indebtedness of a Subsidiary that Refinances Indebtedness of the Company or (B)
Indebtedness of the Company or a Restricted Entity that Refinances Indebtedness
of an Unrestricted Entity.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note" means the Global Note in the form of
Exhibits A3 and A4 hereto representing the Notes offered and sold outside the
United States in reliance on Regulation S.
"Reimbursement Event" has the meaning set forth in the MCSA.
"Related Business" means any business in which the Issuers or any of
the Restricted Subsidiaries was engaged on the Issue Date and the Company's next
generation business and any business related, ancillary or complementary to such
business or which is a reasonable extension thereof or any business the assets
of which, in the good faith determination of the Board of Directors, are useful
or may be used in any such business.
"Related Business Assets" means assets used or useful in a Related
Business (including acquisition of Capital Stock of another entity that will
become a Restricted Entity that only owns assets that are used or useful in a
Related Business).
"Responsible Officer," when used with respect to the Trustee, means
any officer assigned to the Corporate Trust Division -- Corporate Finance Unit
of the Trustee (or any successor unit or department of the Trustee) located at
the Corporate Trust Office of the Trustee who has direct responsibility for the
administration of this Indenture and, for the purposes of Section 7.01(c)(2) and
the second sentence of Section 7.05, shall also include any officer of the
Trustee to whom any matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the
Restricted Notes Legend.
"Restricted Entity" means any Restricted Subsidiary and any of the
Canadian Joint Ventures.
"Restricted Global Note" means a Global Note bearing the Restricted
Notes Legend.
"Restricted Notes Legend" means the legend set forth in Section
2.06(g)(i) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"Restricted Payment" with respect to any Person means:
(1) the declaration or payment of any dividends or any other
distributions of any sort in respect of its Capital Stock (including any
payment in connection with any merger or consolidation involving such
Person) or similar payment to the direct or indirect holders of its Capital
Stock (other than (A) dividends or distributions payable solely in its
Capital Stock (other than Disqualified Stock), (B) dividends or
distributions payable solely to the Issuers or a Restricted Entity and (C)
pro rata dividends or other distributions made by a Subsidiary or a
Canadian Joint Venture that is not a Wholly Owned Subsidiary to minority
stockholders (or owners of an equivalent interest in the case of a
Subsidiary that is an entity other than a corporation));
(2) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of any Capital Stock of the Company
held by any Person (other than by a Restricted Entity) or of any Capital
Stock of a Restricted Entity held by any Affiliate of the Company (other
than by a Restricted Entity), including in connection with any merger or
consolidation and including the exercise of any option to exchange any
Capital Stock (other than into Capital Stock of the Company that is not
Disqualified Stock);
(3) the purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value, prior to scheduled maturity, scheduled
repayment or scheduled sinking fund payment of any Subordinated Obligations
(other than (A) from the Company or a Guarantor or (B) the purchase,
repurchase, redemption, defeasance or other acquisition or retirement of
Subordinated Obligations purchased in anticipation of satisfying a sinking
fund obligation, principal installment or final maturity, in each case due
within one year of the date of such purchase, repurchase, redemption,
defeasance or other acquisition or retirement); or
(4) the making of any Investment (other than a Permitted Investment)
in any Person.
"Restricted Period" means the 40 consecutive days beginning on and
including the later of (i) the commencement of the offering of the Notes to
persons other than distributors (as defined in Regulation S) in reliance on
Regulation S and (ii) the date of the original issuance of the Notes (which may
include issuances after the Issue Date).
"Restricted Subsidiary" means any Subsidiary of the Company that is
not an Unrestricted Entity.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 501" means Rule 501(a)(1), (2), (3) or (7) promulgated under the
Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"Sale/Leaseback Transaction" means an arrangement relating to property
owned by the Company or a Restricted Entity on the Issue Date or thereafter
acquired by the Company or a Restricted Entity whereby the Company or a
Restricted Entity transfers such property to a Person and the Company or a
Restricted Entity leases it from such Person.
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
Securities Purchase Agreement" means the Securities Purchase Agreement
dated July 24, 2008 by and between the Issuers and Harbinger Capital Partners
Master Fund I, Ltd. and Harbinger Capital Partners Special Situation Fund, L.P.
, as such agreement may be amended from time to time.
"Significant Subsidiary" means any Restricted Subsidiary that would be
a "Significant Subsidiary" of the Issuers within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Standard & Poor's" means Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, Inc., and any successor to its rating agency business.
"Stated Maturity" means, with respect to any security or any
installment of interest thereon, the date specified in such security as the
fixed date on which the final payment of principal of such security, including
pursuant to any mandatory redemption provision (but excluding any provision
providing for the repurchase of such security at the option of the holder
thereof upon the happening of any contingency unless such contingency has
occurred) or such installment of interest is due and payable.
"Subordinated Obligation" means, with respect to the Company or a
Guarantor, any Indebtedness of such Person (whether outstanding on the Issue
Date or thereafter Incurred) which is subordinate or junior in right of payment
to the Notes (or the Guarantee of such Guarantor, as applicable) pursuant to a
written agreement to that effect.
"Subsidiary" means, with respect to any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Voting Stock is at the time owned or controlled,
directly or indirectly, by:
(1) such Person;
(2) such Person and one or more Subsidiaries of such Person; or
(3) one or more Subsidiaries of such Person.
"Temporary Cash Investments" means any of the following:
(1) any investment in direct obligations of the United States of
America or any agency thereof or obligations guaranteed by the United
States of America or any agency thereof;
(2) investments in demand and time deposit accounts, certificates of
deposit and money market deposits maturing within 365 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 of America, and which bank
or trust company has capital, surplus and undivided profits aggregating in
excess of $50.0 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;
(3) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (1) above entered
into with a bank meeting the qualifications described in clause (2) above;
(4) investments in commercial paper, maturing not more than 365 days
after the date of acquisition, issued by a corporation (other than an
Affiliate of the Issuers) organized and in existence under the laws of the
United States of America 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-2" (or higher) according to Moody's or "A-2" (or
higher) according to Standard & Poor's;
(5) investments in securities with maturities of twelve months or less
from the date of acquisition issued or fully 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 Standard & Poor's or "A" by Moody's; and
(6) investments in money market funds that, in the aggregate, have at
least $1,000 million in assets.
"Treasury Rate" means, as of any redemption date, the yield to
maturity as of such redemption date of United States Treasury securities with a
constant maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least two
business days prior to the redemption date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from the redemption date to April 1, 2011; provided,
however that if the period from the redemption date to April 1, 2011 is less
than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year will be used.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
(15 U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the Issue Date.
"Trustee" means The Bank of New York Mellon, as trustee, until a
successor replaces it and, thereafter, means the successor.
"Unrestricted Definitive Note" means one or more Definitive Notes that
do not bear and are not required to bear the Restricted Notes Legend.
"Unrestricted Entity" means:
(1) any Subsidiary of the Company (other than Finance Co.) that at the
time of determination shall be designated an Unrestricted Entity by the
Board of Directors in the manner provided below; and
(2) any Subsidiary of an Unrestricted Entity.
The Board of Directors may designate any Subsidiary of the Company
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Entity unless such Subsidiary or any of its Subsidiaries owns any Capital Stock
or Indebtedness of, or holds any Lien on any property of, the Company or any
other Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be
so designated; provided, however, that either (A) the Subsidiary to be so
designated has total assets of $1,000 or less or (B) if such Subsidiary has
assets greater than $1,000, such designation would be permitted under Section
4.08; provided further that neither the FCC License Subsidiary nor the Canadian
Joint Ventures nor any other Subsidiary that holds or owns a similar
telecommunications license nor Finance Co. may be designated an Unrestricted
Entity.
The Board of Directors may designate any Unrestricted Entity to be a
Restricted Entity; provided, however, that immediately after giving effect to
such designation the Consolidated Leverage Ratio is equal to or better than the
Consolidated Leverage Ratio immediately prior to such transaction. Any such
designation by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the resolution of the Board of
Directors giving effect to such designation and an Officer's Certificate
certifying that such designation complied with the foregoing provisions.
"Unrestricted Global Note" means a permanent Global Note substantially
in the form of Exhibits A2 through A4 attached hereto that bears the Global Note
Legend and that has the "Schedule of Exchanges of Interests in the Global Note"
attached thereto, and that is deposited with or on behalf of and registered in
the name of the Depository, representing a series of Notes that do not bear the
Restricted Notes Legend.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock of such
Person then outstanding and normally entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees
thereof.
"Wholly Owned Subsidiary" means a Restricted Entity all the Capital
Stock of which (other than directors' qualifying shares) is owned by the Issuers
or one or more other Wholly Owned Subsidiaries.
Section 1.02 Other Definitions.
The definitions of the following terms may be found in the sections
indicated as follows:
Term Defined in Section
---- ------------------
"Affiliate Transaction"................................. 4.11
"Bankruptcy Law"........................................ 6.01
"Change of Control Offer"............................... 4.17
"Covenant Defeasance"................................... 9.03
"Custodian"............................................. 6.01
"Event of Default"...................................... 6.01
"IAI Global Note"....................................... 2.01
"Legal Defeasance"...................................... 9.02
"Offer"................................................. 4.10(c)
"Offer Amount".......................................... 4.10(c)
"Offer Period".......................................... 4.10(c)
"Paying Agent".......................................... 2.03
"Purchase Date"......................................... 4.10(c)
"Reimbursement Offer"................................... 4.23(a)
"Reimbursement Offer Amount"............................ 4.23(a)
"Reimbursement Offer Period"............................ 4.23(a)
"Reimbursement Offer Period............................. 4.23(a)
"Reimbursement Purchase Price".......................... 4.23(a)
"Registrar"............................................. 2.03
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the portion
of such provision referred to is incorporated by reference in and made a part of
this Indenture as if and to the extent this Indenture were qualified under the
TIA. The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes.
"indenture securityholder" means a Noteholder.
"indenture to be qualified" means this Indenture (it being understood
that this Indenture shall not be qualified under the TIA).
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor on the indenture securities" means the Company, the
Guarantors or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by SEC rule have
the meanings therein assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) words used herein implying any gender shall apply to every gender;
(6) the term "aggregate principal amount" or "principal amount" means
in each case "aggregate principal amount at maturity" or "principal amount
at maturity";
(7) the words "herein," "hereof," and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(8) references to sections herein are references to Sections of this
Indenture, unless the context otherwise requires.
ARTICLE II
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibits A1-A4 hereto. The Notes will be
offered and sold by the Issuers pursuant to the Securities Purchase Agreement.
The Securities Purchase Agreement contemplates the issuance of (i) $150 million
aggregate principal amount of Notes on the Issue Date, (ii) $175 million
aggregate principal amount of Notes on April 1, 2009, (iii) $75 million
aggregate principal amount of Notes on July 1, 2009, and (iv) $100 million
aggregate principal amount of Notes on January 4, 2010, or at such other times
as more fully described in the Securities Purchase Agreement. The Notes will
initially be issued as Restricted Definitive Notes. Upon request of any of the
holders of the outstanding Restricted Definitive Notes and in accordance with
the provisions set forth in Section 2.06(d), the Restricted Definitive Notes may
be exchanged in whole for one or more Global Notes, registered in the name of
the Depository or its nominee; provided, however, if any Notes are not
"fungible" under applicable federal tax or securities laws, they will be
represented by separate Global Notes. The Trustee shall have no responsibility
to determine whether or not any Notes are or are not "fungible" under any
applicable tax or securities laws or to take any action in respect thereof
unless and until the Trustee shall have been furnished by the Company with an
Officer's Certificate stating that any particular Notes are or are not so
"fungible." The Trustee shall have no duty in inquire into any such certificate
and may conclusively presume its correctness and shall be protected in relying
thereon. Following the Issue Date, all such Notes may be transferred to, among
others, QIBs, purchasers in reliance on Regulation S and, as set forth below,
Institutional Accredited Investors. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Note shall be
dated the date of its authentication. The Notes shall be in denominations of
$1,000 and integral multiples thereof, or, in the case of Payment-in-Kind Notes,
such other denominations as may be required.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Issuers and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
(b) Global Notes. Any Notes subsequently issued in global form,
without interest coupons, shall be substantially in the form of Exhibits A2-A4
attached hereto (including the Global Note Legend thereon and the "Schedule of
Exchanges of Interests in the Global Note" attached thereto).
(i) Following the Issue Date and the exchange of the Restricted
Definitive Notes for Global Notes in the manner set forth herein, the Notes
resold or otherwise transferred to QIBs in reliance on Rule 144A shall be
issued in the form of one or more 144A Global Notes, which shall be
deposited with, or on behalf of, the Depository or will remain in the
custody of the Trustee, as custodian, pursuant to an agreement between the
Depository and the Trustee.
(ii) Following the Issue Date and the exchange of the Restricted
Definitive Notes for Global Notes in the manner set forth herein, the Notes
resold or otherwise transferred in reliance on Regulation S shall be issued
in the form of one or more Regulation S Global Notes, which shall be
deposited with, or on behalf of, the Trustee as custodian for the
Depository.
(iii) Following the Issue Date and the exchange of the Restricted
Definitive Notes for Global Notes in the manner set forth herein, Notes
resold or otherwise transferred to Institutional Accredited Investors, may
be exchanged for a separate note in registered form, without interest
coupons (the "IAI Global Note"), which will be deposited with, or on behalf
of, a custodian for the Depository, as described in (i) and (ii) above.
(iv) Following the Issue Date and the exchange of the Restricted
Definitive Notes for Global Notes in the manner set forth herein,
Unrestricted Global Notes shall be issued in accordance with Sections
2.06(b)(vi), 2.06(d)(ii) and 2.06(d)(iii) and shall be deposited, duly
executed by the Issuers and authenticated by the Trustee as hereinafter
provided.
(v) Notes issued in definitive form shall be substantially in the form
of Exhibit A-1 and A-4 attached hereto (without the Global Note Legend
thereon and without the "Schedule of Exchanges of Interests in the Global
Note" attached thereto).
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 and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the
custodian, at the direction of the Trustee, in accordance with instructions
given by the holder thereof as required by Section 2.06 hereof.
Section 2.02 Execution and Authentication.
The Notes shall be executed on behalf of the Issuers by two Officers
of each Issuer or an Officer and an Assistant Secretary of each Issuer. Such
signature may be either manual or facsimile.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until 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 (i) Notes for original issue in an
amount not to exceed $500,000,000 aggregate principal amount upon one or more
Company Requests and pursuant to the dates and amounts set forth in the
Securities Purchase Agreement and herein, and (ii) any Payment-in-Kind Notes as
a result of PIK Interest for an aggregate principal amount specified in such
Company Request for such Payment-in-Kind Notes issued hereunder. Each such
Company Request shall specify the amount of Notes to be authenticated and the
date on which the Notes are to be authenticated, whether the Notes are to be
Payment-in-Kind Notes and whether the Notes or Payment-in-Kind Notes, as
applicable, are to be issued as Definitive Notes or Global Notes or such other
information as the Trustee may reasonably request.
The Trustee may appoint an authenticating agent to authenticate Notes.
An authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same right as an
Agent to deal with the Issuers or an Affiliate.
The Trustee shall have the right to decline to authenticate and
deliver any Notes under this Section if the Trustee, being advised by counsel,
reasonably determines that such action may not lawfully be taken, if its own
rights, duties or immunities under the Notes and this Indenture are affected in
a manner that is not reasonably acceptable to the Trustee or if the Trustee in
good faith shall determine that such action would expose the Trustee to personal
liability to existing Noteholders.
Section 2.03 Registrar and Paying Agent.
The Issuers shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar"), an office
or agency located in the Borough of Manhattan, The City of New York, State of
New York where Notes may be presented for payment ("Paying Agent") and an office
or agency where notices and demands to or upon the Issuers in respect of the
Notes and this Indenture may be served. The Registrar shall keep a register of
the Notes and of their transfer and exchange. The Issuers may have one or more
co-registrars and one or more additional paying agents. Neither the Company nor
any Affiliate of the Company may act as Paying Agent. The Issuers may change any
Paying Agent, Registrar or co-registrar without notice to any Noteholder.
The Issuers shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Issuers shall notify the Trustee of the name and address of any such Agent. If
the Issuers fail to maintain a Registrar or Paying Agent, or agent for service
of notices and demands, or fail to give the foregoing notice, the Trustee shall
act as such. The Issuers initially appoint the Trustee as Registrar, Paying
Agent, and agent for service of notices and demands in connection with the
Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
On or before each due date of the principal of and interest on any
Notes, the Issuers shall deposit with the Paying Agent a sum sufficient to pay
such principal and interest so becoming due. The Issuers at any time may require
a Paying Agent to pay all money held by it to the Trustee and the Trustee may at
any time during the continuance of any Default, upon written request to a Paying
Agent, require such Paying Agent to forthwith pay to the Trustee all sums so
held in trust by such Paying Agent together with a complete accounting of such
sums. Upon doing so, the Paying Agent shall have no further liability for the
money.
Section 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Noteholders and shall otherwise comply with TIA ss. 312(a). If the Trustee
is not the Registrar, the Issuers shall furnish to the Trustee at least seven
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the holders of
Notes and the Issuers shall otherwise comply with TIA ss. 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository,
by a nominee of the Depository to the Depository or to another nominee of the
Depository, or by the Depository or any such nominee to a successor Depository
or a nominee of such successor Depository. Global Notes will be exchanged by the
Issuers for Definitive Notes if, and only if, (i) the Company delivers to the
Trustee notice from the Depository that it is unwilling or unable to continue to
act as Depository or that it ceases to be a clearing agency registered under the
Exchange Act and, in either case, a successor Depository is not appointed by the
Company, (ii) the Company, at its option, notifies the Trustee in writing that
it elects to cause the issuance of the Definitive Notes or (iii) an Event of
Default has occurred or is continuing and the Registrar has received a request
from the Depository to issue Definitive Notes. Upon the occurrence of any of the
preceding events in clauses (i), (ii) or (iii) above, Definitive Notes shall be
issued in such names as the Depository shall instruct the Trustee. Global Notes
also may be exchanged or replaced, in whole or in part, as provided in Sections
2.07 and 2.09 hereof. Every Note authenticated and delivered in exchange for, or
in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06
or Section 2.07 or 2.09 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Note. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.06(a); however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.06(b) hereof.
(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 Depository, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
subparagraphs (i) through (v) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Restricted Notes Legend. Beneficial interests
in any Unrestricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(i) above, the transferor
of such beneficial interest must deliver to the Registrar either (A)(1) a
written order from a Participant given to the Depository in accordance with
the Applicable Procedures directing the Depository to credit or cause to be
credited a beneficial interest in another Global Note in an amount equal to
the beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or
(B)(1) a written order from a Participant or an Indirect Participant given
to the Depository in accordance with the Applicable Procedures directing
the Depository to cause to be issued a Definitive Note in an amount equal
to the beneficial interest to be transferred or exchanged and (2)
instructions given by the Depository to the Registrar containing
information regarding the Person in whose name such Definitive Note shall
be registered to effect the transfer or exchange referred to in (1) above.
Upon satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Indenture and the
Notes or otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Note(s) pursuant to
Section 2.06(h) hereof. Transfers by an owner of a beneficial interest in
the Rule 144A Global or the IAI Global Note to a transferee who takes
delivery of such interest through the Regulation S Global Note, shall be
made only upon receipt by the Trustee of a certification from the
transferor to the effect that such transfer is being made in accordance
with Regulation S or (if available) Rule 144 under the Securities Act. In
the case of a transfer of a beneficial interest in either the Regulation S
Global Note or the Rule 144A Global Note for an interest in the IAI Global
Note, the transferee must furnish to the Trustee a signed letter
substantially in the form of Exhibit D.
(iii) Restrictions on Transfer of Regulation S Global Note.
(A) Prior to the expiration of the Restricted Period, transfers by an
owner of a beneficial interest in the Regulation S Global Note to a
transferee who takes delivery of such interest through the 144A Global Note
or the IAI Global Note shall be made only in accordance with Applicable
Procedures and upon receipt by the Trustee of a written certification from
the transferor of the beneficial interest in the form provided by Exhibit B
or as otherwise provided by the Issuers in accordance with applicable law
to the effect that such transfer is being made to (i) a person whom the
transferor reasonably believes is a QIB in a transaction meeting the
requirements of Rule 144A or (ii) an IAI purchasing for its own account, or
for the account of such an IAI. Such written certification shall not be
required after the expiration of the Restricted Period. In the case of a
transfer of a beneficial interest in the Regulation S Global Note for an
interest in the IAI Global Note, the transferee must furnish to the Trustee
a signed letter substantially in the form of Exhibit D.
(B) Upon the expiration of the Restricted Period, beneficial ownership
interests in the Regulation S Global Note shall be transferable in
accordance with applicable law and the other terms of this Indenture.
(iv) Other Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
transferor delivers a certificate in the form of Exhibit B hereto.
(v) Transfer and Exchange of Beneficial Interests in Global Notes to
Definitive Notes. In the event that a Global Note is exchanged for
Restricted Definitive Notes in accordance with the terms of this Indenture,
such Notes may be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of Sections 2.06(c), (d) and
(e) (including the certification requirements set forth therein intended to
ensure that such transfers comply with Rule 144A, Regulation S or such
other applicable exemption from registration under the Securities Act, as
the case may be) and such other procedures as may from time to time be
adopted by the Issuers reasonably necessary to comply with applicable law.
(vi) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in an Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above and
the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Note, a certificate from
such holder in the form of Exhibit C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in item (4)
thereof;
and if the Company or the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably acceptable
to the Company and the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Restricted Notes Legend are no
longer required in order to maintain compliance with the Securities Act.
If any such transfer is effected at a time when an Unrestricted Global
Note has not yet been issued, the Issuers shall issue and, upon receipt of a
Company Request in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate principal
amount equal to the aggregate principal amount of beneficial interests so
transferred.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Restricted Definitive Note, then,
if such exchange complies with Section 2.06(a), and upon receipt by the
Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Restricted
Definitive Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a Non-U.S.
Person in an offshore transaction and in accordance with Rule 903 or Rule
904, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in
accordance with Rule 144, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications, certificates and Opinion
of Counsel required by item (3)(d) thereof, if applicable;
(F) if such beneficial interest is being transferred to the Issuers or
any of their Subsidiaries, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant to an
effective registration statement under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications in
item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Issuers shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depository and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.06(c)(i) shall bear the Restricted Notes Legend and shall be
subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes. A holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest for an Unrestricted Definitive
Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note if such
transfer and exchange complies with Section 2.06(a) and if the Registrar
receives the following:
(1) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Definitive Note
that does not bear the Restricted Notes Legend, a certificate from such
holder in the form of Exhibit C hereto, including the certifications in
item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a Definitive Note that does not bear
the Restricted Notes Legend, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;
and if the Company or the Registrar so requests or if the Applicable Procedures
so require, an Opinion of Counsel in form reasonably acceptable to the Company
and the Registrar to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained herein
and in the Restricted Notes Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for
a Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Definitive Note, then, if such
transfer and exchange complies with Section 2.06(a) and, upon satisfaction
of the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee
shall cause the aggregate principal amount of the applicable Global Note to
be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuers
shall execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iii) shall be registered in such
name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depository and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Notes to the Persons
in whose names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(iii)
shall not bear the Restricted Notes Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(i) Restricted Definitive Notes to Beneficial Interests in Restricted
Global Notes. If any holder of a Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note or
to transfer such Restricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Note,
then, upon receipt by the Registrar of the following documentation:
(A) if the holder of such Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB
in accordance with Rule 144A, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a
Non-U.S. Person in an offshore transaction and in accordance with Rule 903
or Rule 904, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred pursuant
to an exemption from the registration requirements of the Securities Act in
accordance with Rule 144, a certificate to the effect set forth in Exhibit
B hereto, including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications, certificates and Opinion
of Counsel required by item (3)(d) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred to the
Issuers or any of their Subsidiaries, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(b) thereof;
or
(G) if such Restricted Definitive Note is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note and increase or cause to
be increased the aggregate principal amount of the Restricted Global Note;
provided, however, if any such exchange or transfer from a Definitive Note to a
beneficial interest in a Restricted Global Note is effected at a time when a
Restricted Global Note has not yet been issued, the Issuers shall issue and,
upon receipt of a Company Request in accordance with Section 2.02 hereof, the
Trustee shall authenticate one or more Restricted Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred; provided, further, that the Trustee shall have no duty to take any
action to secure eligibility of the Restricted Global Note for deposit with the
Depository.
(ii) Restricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. If and to the extent permitted by, and upon
compliance with, the Applicable Procedures, a holder of a Restricted
Definitive Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Restricted Definitive Note to a
Person who takes delivery thereof in the form of a beneficial interest in
an Unrestricted Global Note only if the Registrar receives the following:
(1) if the holder of such Definitive Notes proposes to exchange such
Notes for a beneficial interest in the Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if the holder of such Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note, a certificate from
such holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and if the Issuers or the Registrar so requests or if the Applicable Procedures
so require, an Opinion of Counsel in form reasonably acceptable to the Registrar
to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and in the
Restricted Notes Legend are no longer required in order to maintain compliance
with the Securities Act.
Upon satisfaction of the conditions of this Section 2.06(d)(ii), the
Trustee shall cancel the Definitive Notes and increase or cause to be increased
the aggregate principal amount of the Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. If and to the extent permitted by, and upon
compliance with, the Applicable Procedures, a holder of an Unrestricted
Definitive Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for such an
exchange or transfer, the Trustee shall cancel the applicable Unrestricted
Definitive Note and increase or cause to be increased the aggregate
principal amount of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraph (ii) or (iii) above at
a time when an Unrestricted Global Note has not yet been issued, the Issuers
shall issue and, upon receipt of a Company Request in accordance with Section
2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of
Definitive Notes so transferred; provided, however, that the Trustee shall have
no duty to take any action to secure eligibility of the Unrestricted Global Note
for deposit with the Depository.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a holder of Definitive Notes and such holder's compliance with
the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such holder or
by its attorney, duly authorized in writing. In addition, the requesting holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e):
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the name
of Persons who take delivery thereof in the form of a Restricted Definitive
Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A, then the
transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule 904,
then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any other exemption,
including any such transfer to an Institutional Accredited Investor, from
the registration requirements of the Securities Act, then the transferor
must deliver a certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any
Restricted Definitive Note may be exchanged by the holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if the
Registrar receives the following:
(1) if the holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate
from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(2) if the holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a certificate from such
holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and if the Issuers or the Registrar so requests, an Opinion of Counsel in form
reasonably acceptable to the Issuers to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Restricted Notes Legend are no longer
required in order to maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes.
A holder of Unrestricted Definitive Notes may transfer such Notes to a
Person who takes delivery thereof in the form of an Unrestricted Definitive
Note. Upon receipt of a request to register such a transfer, the Registrar
shall register the Unrestricted Definitive Notes pursuant to the
instructions from the holder thereof.
(f) [intentionally omitted]
(g) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Restricted Notes Legend.
(A) Except as permitted by subparagraph (B) below, each Global Note
and each Definitive Note (and all Notes issued in exchange therefor or
substitution thereof) shall bear the legend in substantially the following
form:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). BY
ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501 (a)(1), (2), (3), OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (OR AN ENTITY IN WHICH ALL
OF THE EQUITY OWNERS ARE THE FOREGOING) (AN "INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS ACQUIRING THIS NOTE IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT. THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN
OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (3) TO AN INSTITUTIONAL
ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT THAT IS ACQUIRING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A
CERTIFICATE WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE
IS DELIVERED BY THE TRANSFEREE TO THE COMPANY AND TRUSTEE AND, IF
REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE)
OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES. AN
INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THIS SECURITY AGREES
THAT IT WILL FURNISH TO THE COMPANY AND THE TRUSTEE SUCH
CERTIFICATES, LEGAL OPINIONS AND OTHER INFORMATION AS THEY MAY
REASONABLY REQUIRE TO CONFIRM THAT TRANSFER TO IT OF THIS
SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS AND APPLICABLE
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS
(1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A OR (2)(a) PURCHASING FROM A PERSON NOT PARTICIPATING IN THE
INITIAL DISTRIBUTION OF THIS SECURITY (OR ANY PREDECESSOR
SECURITY), (b) AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS
DEFINED UNDER THE SECURITIES ACT AND (c) HOLDING THIS SECURITY
FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) A
NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
(OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2)(i)
OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT."
(B) Notwithstanding the foregoing, any Global Note or Definitive Note
issued pursuant to subparagraph (b)(vi), (c)(ii), (c)(iii), (d)(ii),
(d)(iii), (e)(ii) or (e)(iii) of this Section 2.06 (and all Notes issued in
exchange therefor or substitution thereof) shall not bear the Restricted
Notes Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
THIS GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE
TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE
MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTION 2.01(a) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.10 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
(h) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.10 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depository at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depository at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges to the extent
permitted hereunder, the Issuers shall execute and the Trustee shall
authenticate Global Notes and Definitive Notes upon the Company's order or
at the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a holder of a Definitive Note for any
registration of transfer or exchange, but the Issuers may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.09, 4.10, 4.16, 4.18 and 8.04 hereof).
(iii) The Registrar shall not be required to register the transfer of
or exchange any Note selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Issuers, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Global Notes
or Definitive Notes surrendered upon such registration of transfer or
exchange.
(v) The Issuers shall not be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close of business on
the day of selection or (B) to register the transfer of or to exchange a
Note between a record date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Issuers 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 none of the Trustee, any Agent
or the Issuers shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive Notes
in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
(ix) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or
among Participants or beneficial owners of interests in any Global Note)
other than to require delivery of such certificates and other documentation
or evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the same
to determine substantial compliance as to form with the express
requirements hereof.
(x) None of the Trustee or any Agent shall have any responsibility or
obligation to any beneficial owner in a Global Note, a member of, or a
Participant in the Depository or other Person with respect to the accuracy
of the records of the Depository or its nominee or of any Participant or
member thereof, with respect to any ownership interest in the Notes or with
respect to the delivery to any Participant, member, beneficial owner or
other Person (other than the Depository) of any notice (including any
notice of redemption) or the payment of any amount, under or with respect
to such Notes. All notices and communications to be given to the
Noteholders and all payments to be made to Noteholders under the Notes and
this Indenture shall be given or made only to or upon the order of the
registered holders (which shall be the Depository or its nominee in the
case of the Global Note). The rights of beneficial owners in the Global
Note shall be exercised only through the Depository subject to the
Applicable Procedures. The Trustee and each Agent shall be entitled to rely
and shall be fully protected in relying upon information furnished by the
Depository with respect to its members, Participants and any beneficial
owners. The Trustee and each Agent shall be entitled to deal with any
depositary (including the Depository), and any nominee thereof, that is the
registered holder of any Global Note for all purposes of this Indenture
relating to such Global Note (including the payment of principal, premium,
if any, and interest and additional amounts, if any, and the giving of
instructions or directions by or to the owner or holder of a beneficial
ownership interest in such Global Note) as the sole holder of such Global
Note and shall have no obligations to the beneficial owners thereof. None
of the Trustee or any Agent shall have any responsibility or liability for
any acts or omissions of any such depositary with respect to such Global
Note, for the records of any such depositary, including records in respect
of beneficial ownership interests in respect of any such Global Note, for
any transactions between such depositary and any Participant in such
depositary or between or among any such depositary, any such Participant
and/or any holder or owner of a beneficial interest in such Global Note, or
for any transfers of beneficial interests in any such Global Security.
Notwithstanding the foregoing, with respect to any Global Note,
nothing herein shall prevent the Issuers, the Trustee, or any agent of the
Issuers or the Trustee (including any Agent), from giving effect to any written
certification, proxy or other authorization furnished by any depositary
(including the Depository), as a Noteholder, with respect to such Global Note or
impair, as between such depositary and owners of beneficial interests in such
Global Note, the operation of customary practices governing the exercise of the
rights of such depositary (or its nominee) as Holder of such Global Note.
Section 2.07 Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the holder of
a Note presents evidence to the satisfaction of the Issuers and the Trustee that
the Note has been lost, destroyed or wrongfully taken, the Issuers shall issue
and the Trustee shall authenticate a replacement Note if the requirements of
Section 8-405 of the New York Uniform Commercial Code as in effect on the date
of this Indenture are met. An indemnity bond or other security shall be required
that is sufficient in the judgment of the Issuers and the Trustee to protect the
Issuers, the Trustee or any Agent from any loss which any of them may suffer if
a Note is replaced. In every case of destruction, loss or theft, the applicant
shall also furnish to the Issuers and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Note and the ownership
thereof. The Issuers and the Trustee may charge for their expenses in replacing
a Note. Every replacement Note is an additional obligation of the Issuers.
Section 2.08 Outstanding Notes.
Notes outstanding at any time are all Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation,
and those described in this Section 2.08 as not outstanding.
If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding until the Issuers and the Trustee receive proof satisfactory to each
of them that the replaced Note is held by a bona fide purchaser.
If a Paying Agent holds on a Redemption Date or Maturity Date money
sufficient to pay the principal of, premium, if any, and accrued interest on
Notes payable on that date, then on and after that date such Notes cease to be
outstanding and interest on them ceases to accrue.
Subject to Section 11.05, a Note does not cease to be outstanding
solely because the Issuers or an Affiliate holds the Note.
Section 2.09 Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Issuers may prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form, and shall carry all rights,
of Definitive Notes but may have variations that the Issuers consider
appropriate for temporary Notes. Without unreasonable delay, the Issuers shall
prepare and the Trustee shall authenticate Definitive Notes in exchange for
temporary Notes presented to it.
Section 2.10 Cancellation.
The Issuers at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee
shall cancel and retain in accordance with its normal practice or, upon written
request of the Issuers, may return to the Issuers, all Notes surrendered for
transfer, exchange, payment or cancellation. Subject to Section 2.07 hereof, the
Issuers may not issue new Notes to replace Notes in respect of which it has
previously paid all principal, premium and interest accrued thereon, or
delivered to the Trustee for cancellation.
Section 2.11 Defaulted Interest.
If the Issuers default in a payment of interest on the Notes, they
shall pay the defaulted amounts, plus any interest payable on defaulted amounts
pursuant to Section 4.01 hereof, to the persons who are holders on a subsequent
special record date. The Issuers shall fix the special record date and payment
date in a manner satisfactory to the Trustee and provide the Trustee at least 20
days notice of the proposed amount of default interest to be paid and the
special payment date. At least 15 days before the special record date, the
Issuers shall mail or cause to be mailed to each holder a notice that states the
special record date, the payment date (which shall be not less than five nor
more than ten days after the special record date), and the amount to be paid. In
lieu of the foregoing procedures, the Issuers may pay defaulted interest in any
other lawful manner satisfactory to the Trustee.
Section 2.12 Deposit of Moneys.
Prior to 10:00 a.m., New York City time, on each Interest Payment Date
(other than an Interest Payment Date for which PIK Interest shall be paid), each
Redemption Date and the Maturity Date, the Issuers shall have deposited with the
Paying Agent in immediately available funds money sufficient to make cash
payments, if any, due on such Interest Payment Date, Redemption Date or Maturity
Date, as the case may be, in a timely manner which permits the Trustee to remit
payment to the holders on such Interest Payment Date or Maturity Date, as the
case may be.
Section 2.13 CUSIP Number.
The Issuers in issuing the Notes (including any Notes issued as a
result of any Notes not being fungible under applicable federal tax or
securities laws) may, but shall not be obligated to, use one or more "CUSIP,"
"ISIN" or other similar number(s), and if so, the Trustee shall use the CUSIP,
ISIN or other similar number(s) in notices of redemption or exchange as a
convenience to holders, provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP, ISIN or
other similar number(s) printed in the notice or on the Notes, and that reliance
may be placed only on the other identification numbers printed on the Notes. The
Issuers shall promptly inform the Trustee of any change in the CUSIP, ISIN or
other similar number(s). The Trustee shall have no responsibility to determine
whether or not any Notes are or are not "fungible" under any applicable tax or
securities laws or to take any action in respect thereof unless and until the
Trustee shall have been furnished by the Company with an Officer's Certificate
stating that any particular Notes are or are not so "fungible." The Trustee
shall have no duty in inquire into any such certificate and may conclusively
presume its correctness and shall be protected in relying thereon.
ARTICLE III
REDEMPTION
Section 3.01 Notices to Trustee.
If the Issuers elect to redeem Notes pursuant to paragraph 5 of the
Notes, (i) at least 45 days prior to the Redemption Date in the case of a
partial redemption, (ii) at least 45 days prior to the Redemption Date in the
case of a total redemption or (iii) during such other period as the Trustee may
agree to, the Issuers shall notify the Trustee in writing of the Redemption
Date, the principal amount of Notes to be redeemed and the redemption price, and
deliver to the Trustee an Officer's Certificate stating that such redemption
will comply with the conditions contained in paragraph 5 of the Notes.
Section 3.02 Selection by Trustee of Notes to Be Redeemed.
In the event that fewer than all of the Notes are to be redeemed, the
Trustee shall select the Notes to be redeemed on either a pro rata basis or by
lot, or such other method as it shall deem fair and equitable. The Trustee shall
promptly notify the Issuers of the Notes selected for redemption and, in the
case of any Notes selected for partial redemption, the principal amount thereof
to be redeemed. The Trustee may select for redemption portions of the principal
of Notes that have denominations larger than $1,000. Notes and portions thereof
the Trustee selects shall be redeemed in amounts of $1,000 or whole multiples of
$1,000 and, if Payment-in-Kind Notes are issued, a minimum of $1.00 and an
integral multiple of $1.00 (in aggregate principal amount). For all purposes of
this Indenture unless the context otherwise requires, provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption.
Section 3.03 Notice of Redemption.
At least 30 but not more than 60 days before a Redemption Date, the
Issuers shall mail, or cause to be mailed, a notice of redemption by first-class
mail to the Trustee and to each holder of Notes to be redeemed at its address as
the same appears on the registry books maintained by the Registrar pursuant to
Section 2.03 hereof.
The notice shall identify the Notes to be redeemed (including the
CUSIP number(s) thereof) and shall state:
(1) the Redemption Date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption
Date and upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(6) that unless the Issuers default in making the redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
Redemption Date;
(7) the subparagraph of the Notes pursuant to which the Notes are
being redeemed; and
(8) the aggregate principal amount of Notes that are being redeemed.
At the Issuers' request (and upon at least five (5) days prior written
notice), the Trustee shall give the notice of redemption in the Issuers' names
and at the Issuers' sole expense.
Section 3.04 Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is mailed,
Notes called for redemption become due and payable on the Redemption Date and at
the redemption price, including any premium, plus interest accrued to the
Redemption Date, if any. Upon surrender to the Paying Agent, such Notes shall be
paid at the redemption price, including any premium, plus interest accrued to
the Redemption Date, if any; provided that if the Redemption Date is after a
regular interest payment record date and on or prior to the Interest Payment
Date, the accrued interest shall be payable to the holder of the redeemed Notes
registered on the relevant record date, and provided, further, that if a
Redemption Date is a Legal Holiday, payment shall be made on the next succeeding
Business Day and no interest shall accrue for the period from such Redemption
Date to such succeeding Business Day.
Section 3.05 Deposit of Redemption Price.
On or prior to 10:00 A.M., New York City time, on each Redemption
Date, the Issuers shall deposit with the Paying Agent in immediately available
funds money sufficient to pay the redemption price of and accrued interest on
all Notes to be redeemed on that date other than Notes or portions thereof
called for redemption on that date which have been delivered by the Issuers to
the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay the
redemption price of and accrued interest on Notes called for redemption shall
have been made available in accordance with the preceding paragraph, the Notes
called for redemption will cease to accrue or accrete interest and the only
right of the holders of such Notes will be to receive payment of the redemption
price of and, subject to the first proviso in Section 3.04, accrued and unpaid
interest on such Notes to the Redemption Date. If any Note called for redemption
shall not be so paid, interest will be paid, from the Redemption Date until such
redemption payment is made, on the unpaid principal of the Note and any interest
not paid on such unpaid principal, in each case, at the rate and in the manner
provided in the Notes.
Section 3.06 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Trustee shall
authenticate for a holder a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.
ARTICLE IV
COVENANTS
Section 4.01 Payment of Notes.
The Issuers shall pay the principal of and interest on the Notes on
the dates and in the manner provided in the Notes and this Indenture. An
installment of principal of or interest on the Notes shall be considered paid on
the date it is due if the Trustee or any Paying Agent holds on that date money
designated for and sufficient to pay the installment. PIK Interest shall be
considered paid on the date due, unless interest is otherwise paid in cash, if
the Trustee is directed on or prior to such date to issue Payment-in-Kind Notes
in an amount equal to the amount of the applicable PIK Interest. Interest will
be computed on the basis set forth in the Notes.
The Issuers shall pay interest on overdue principal (including
post-petition interest in a proceeding under any Bankruptcy Law), and overdue
interest, to the extent lawful, at the rate specified in the Notes.
No provision of this Section 4.01 shall be deemed to impose any duty
or obligation on the Trustee to calculate the installment of principal of or
interest on the Notes on any Interest Payment Date or to monitor the calculation
thereof by the Issuers.
Section 4.02 SEC Reports.
(a) If and for so long as the Company is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act and any Notes are
outstanding, the Company shall file with the SEC and provide the Trustee and
holders of Notes with such annual reports and such information, documents and
other reports as are specified in Sections 13 and 15(d) of the Exchange Act and
applicable to a U.S. person subject to such Sections, such information,
documents and reports to be so filed and provided at the times specified for the
filing of such information, documents and reports under such Sections; provided,
however, that (i) the Company shall not be so obligated to file such
information, documents and reports with the SEC if the SEC does not permit such
filings and (ii) the Company shall not be required to include the separate
financial statements of any Guarantor in any such filing.
(b) At any time when the Company is not subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act and any Notes are
outstanding, the Company will provide to the Trustees and the holders of Notes:
(1) within 90 days after the end of the Company's fiscal year,
financial statements and a Management's Discussion and Analysis of
Financial Condition and Results of Operations substantially equivalent to
that which would be required to be included in an Annual Report on Form
10-K of the Company were the Company subject to an obligation to file such
a report under the Exchange Act;
(2) within 45 days after the end of each of the first three fiscal
quarters in each fiscal year of the Company, financial statements and a
Management's Discussion and Analysis of Financial Condition and Results of
Operations substantially equivalent to that which would be required to be
included in a Quarterly Report on Form 10-Q of the Company were the Company
subject to an obligation to file such a report under the Exchange Act; and
(3) within the time periods required by the SEC for issuers subject to
the reporting requirements of Section 13(d) or 15(d) of the Exchange Act,
the information that would be required to be filed with the SEC in Current
Reports on Form 8-K (other than in respect of Items 1.01, 2.02, 3.01, 3.02,
3.03, 5.02 (in the case of entry into material definitive agreements,
management compensation and similar agreements only), 5.03, 5.04, 5.05,
7.01, 8.01 and 9.01 (or any successor items) under Form 8-K) if the Company
were subject to such reporting requirements;
provided, however, that the reports set forth in clauses (1), (2) and (3) above
shall not be required to: (a) contain any certification required by any such
form or the Xxxxxxxx-Xxxxx Act of 2002, (b) include the separate financial
statements of any Guarantor in any such filing or (c) include any exhibit.
Additionally, substantially concurrently with the delivery to the Trustee and
the holders of the Notes of the reports specified in (1), (2) and (3) above, the
Company shall (i) post copies of such reports on its website and (ii) in the
case of clauses (1) and (2) above, commencing with the report covering the
fiscal quarter ending March 31, 2009, hold a conference call with holders of
Notes covering such matters as are reasonably customary for companies with
publicly traded debt or equity securities. For the avoidance of doubt, the
financial statements required herein may be financial statements of the Parent
if the Parent holds no other material assets other than cash and the Capital
Stock of the Issuers and equity securities in any Person that Parent does not
control and whose financial results are not consolidated with the Parent,
including the Common Stock of TerreStar Networks, Inc., and such financial
statements are accompanied by an explanation as to the differences between the
Parent's financial statements and the financial statements that would have been
provided by the Company.
(c) The Company shall cause information, documents and reports
required to be provided to the Trustee and to the holders to be mailed at the
Company's expense to the Trustee at its address set forth in this Indenture and
to the holders at their addresses appearing in the register of Notes maintained
by the Registrar.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
(d) For so long as any Notes remain outstanding, the Company shall
make available upon request, to any holder, any holder of a beneficial interest
in a Note and, upon request of any holder or any such holder, any prospective
purchaser of a Note or a beneficial interest therein, the information required
pursuant to Rule 144A(d)(4) under the Securities Act during any period in which
the Company is not subject to Section 13 or 15(d) of the Exchange Act.
Section 4.03 Waiver of Stay, Extension or Usury Laws.
The Issuers and the Guarantors covenant (to the extent that they may
lawfully do so) that they will not at any time insist upon, or plead (as a
defense or otherwise) 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 which
would prohibit or forgive the Issuers or the Guarantors from paying all or any
portion of the principal of, premium, if any, and/or interest on the Notes, as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture; and (to the
extent that they may lawfully do so) the Issuers and the Guarantors hereby
expressly waive all benefit or advantage of any such law, and covenant that they
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
Section 4.04 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year, an Officer's Certificate stating that a review of
the activities of the Company and its Subsidiaries during such fiscal year has
been made under the supervision of the signing Officers with a view to
determining whether each has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge each has
kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions hereof and thereof (or, if a Default or
Event of Default shall have occurred, describing all of such Defaults or Events
of Default of which he or she may have knowledge and what action each is taking
or proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action each is taking or proposes to take with respect thereto.
(b) The Company will, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith within 30 days after any event which would
constitute a Default or Event of Default, an Officer's Certificate specifying
such Default or Event of Default, its status and what action the Company is
taking or proposes to take with respect thereto.
Section 4.05 Taxes.
The Company shall, and shall cause each of the Restricted Subsidiaries
to, and the Restricted Entities shall, pay prior to delinquency all material
taxes, assessments, and governmental levies except as contested in good faith
and by appropriate proceedings.
Section 4.06 Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, and each Restricted Entity shall not, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Issuers and the
Guarantors shall be entitled to Incur Indebtedness if, on the date of such
Incurrence and after giving effect thereto on a pro forma basis, the
Consolidated Leverage Ratio would be less than 6.00 to 1.
(b) Notwithstanding the foregoing paragraph (a), the Company and the
Restricted Entities shall be entitled to Incur any or all of the following
Indebtedness:
(1) Indebtedness Incurred by the Issuers or any Guarantor under this
clause (1) that, after giving effect to any such Incurrence and assuming
all amortization of debt discount, accretion of principal and payment of
interest in kind over the life of such Indebtedness has occurred at the
time of initial Incurrence, does not exceed $250.0 million in principal
amount at any one time outstanding; provided that, prior to any Incurrence
of Indebtedness under this clause (1), the Company shall have received at
least $1.0 billion of Net Cash Proceeds after the Original Issue Date from
the issue or sale of Capital Stock of the Company or cash contributed to
the capital of the Company (in each case other than proceeds of
Disqualified Stock or sales of Capital Stock to the Company or any of its
Subsidiaries); provided, further, however, that any Net Cash Proceeds
received by the Company or cash contributions to the Company's capital and
used to Incur Indebtedness pursuant to this clause (1) shall be excluded
from the calculation of amounts under Section 4.08(a)(3)(B);
(2) Indebtedness Incurred by the Issuers or any Guarantor in an
aggregate principal amount which, when taken together with all other
Indebtedness Incurred pursuant to this clause (2) and then outstanding,
does not exceed the greater of (a) $500 million and (b) an amount equal to
125% of the Net Cash Proceeds received by the Company since the Original
Issue Date from the issue or sale of Capital Stock of the Company or cash
contributed to the capital of the Company (in each case other than proceeds
of Disqualified Stock or sales of Capital Stock to the Company or any of
its Subsidiaries); provided, however, that, any Indebtedness Incurred under
this clause (2) shall have a weighted Average Life that is greater than the
then remaining weighted Average Life of the Notes; provided further,
however, that any Net Cash Proceeds received by the Company or cash
contributions to the Company's capital and used to Incur Indebtedness
pursuant to this clause (2) shall be excluded from the calculation of
amounts under Section 4.08(a)(3)(B);
(3) Indebtedness owed to and held by the Company or a Restricted
Entity (including intercompany indebtedness); provided, however, that (A)
any subsequent issuance or transfer of any Capital Stock which results in
any such Restricted Entity ceasing to be a Restricted Entity or any
subsequent transfer of such Indebtedness (other than to the Company or a
Restricted Entity) shall be deemed, in each case, to constitute the
Incurrence of such Indebtedness by the obligor thereon and (B) if the
Company or Finance Co. is the obligor on such Indebtedness, such
Indebtedness is expressly subordinated to the prior payment in full in cash
of all obligations with respect to the Notes and if a Guarantor is an
obligor under such Indebtedness or such Indebtedness is owed to a
Restricted Entity that is not a Guarantor, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all obligations with
respect to the Guarantee of such Guarantor;
(4) the Old Notes and Guarantees thereof (including any future
guarantees thereof);
(5) Indebtedness outstanding on the Issue Date;
(6) Indebtedness of a Restricted Entity Incurred and outstanding on or
prior to the date on which such Restricted Entity was acquired by the
Company or a Restricted Entity (other than Indebtedness Incurred in
connection with, or to provide all or any portion of the funds or credit
support utilized to consummate, the transaction or series of related
transactions pursuant to which such Subsidiary became a Subsidiary or was
acquired by the Company); provided, however, that on the date of such
acquisition and after giving pro forma effect thereto, the Company would
have been entitled to Incur at least $1.00 of additional Indebtedness
pursuant to paragraph (a) of this Section 4.06;
(7) Refinancing Indebtedness in respect of Indebtedness Incurred
pursuant to paragraph (a) or pursuant to clause (4), (5) or (6) or this
clause (7); provided, however, that such Refinancing Indebtedness shall not
include Refinancing Indebtedness of the Issuers or a Guarantor that
refinances Indebtedness of a Subsidiary that is not a Guarantor or
co-issuer of the Notes;
(8) Hedging Obligations entered into in the ordinary course of
business and not for speculative purposes;
(9) obligations with respect to letters of credit and bank guarantees,
including without limitation, letters of credit in respect of workers'
compensation claims, health, disability or other benefits to former
employees or their families or property, casualty or liability or
self-insurance obligations, performance, bid and surety bonds and
completion guarantees provided by the Company or any Restricted Entity in
the ordinary course of business;
(10) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business; provided, however,
that such Indebtedness is extinguished within five Business Days of its
Incurrence;
(11) Subordinated Obligations Incurred by the Issuers or any of the
Guarantors to finance the purchase, lease or improvement of property (real
or personal) or equipment that is used or useful in a Related Business
(whether through the direct purchase of assets or the Capital Stock of any
Person owning such assets) within 180 days of such purchase, lease or
improvement, and any Refinancing Indebtedness Incurred to Refinance such
Indebtedness, which, when added together with the amount of all other
Subordinated Obligations Incurred pursuant to this clause (11) and then
outstanding, does not exceed $250 million; provided, however, that any
Indebtedness Incurred under this clause (11) shall have a weighted Average
Life that is greater than the then remaining weighted Average Life of the
Notes and a final maturity date that is later than the date that is 91 days
after the Stated Maturity of the Notes;
(12) Capital Lease Obligations or Purchase Money Indebtedness of the
Company or any Guarantor Incurred to finance the lease or purchase of
L-Band Spectrum in North America; provided that in the case of Capital
Lease Obligations, the rights of the lessor under such Capital Lease
Obligations shall be limited to the L-Band Spectrum leased and, in the case
of Purchase Money Indebtedness, the lenders of such Purchase Money
Indebtedness shall only have recourse to the L-Band Spectrum purchased and
shall have no other claim against the Company and the Restricted Entities;
provided, further, that the Company shall have received at least $500.0
million of Designated Equity Contributions prior to any Incurrence under
this clause (12) and shall not have made a Designated Equity Election;
(13) Purchase Money Indebtedness and Capital Lease Obligations of the
Company or any Guarantor in an aggregate principal amount not in excess of
$50 million outstanding at any time;
(14) Indebtedness arising from agreements of the Company or any of the
Restricted Entities providing for indemnification, adjustment of purchase
price or similar obligations, in each case, Incurred or assumed in
connection with the disposition of any business, assets or Capital Stock of
a Restricted Entity, provided, however, the maximum aggregate liability in
respect of all such Indebtedness shall at no time exceed the gross proceeds
actually received by the Company and the Restricted Entities in connection
with such disposition;
(15) Indebtedness of the Company or of any of the Restricted Entities
in an aggregate principal amount which, when taken together with all other
Indebtedness of the Company and the Restricted Entities Incurred pursuant
to this clause (15) and then outstanding does not exceed $50 million;
(16) Guarantees by the Issuers or any Guarantor of Indebtedness of the
Issuers or the Guarantors so long as such Indebtedness is otherwise
permitted to be incurred hereunder;
(17) Indebtedness representing the financing of installments of
insurance premiums; and
(18) Indebtedness of the Company and the Guarantors to Boeing
Satellite Systems, Inc. ("Boeing") and its Affiliates incurred to finance
the purchase of one or more satellites from Boeing or such Affiliate in an
aggregate principal amount not to exceed at any one time $110.0 million.
(c) Notwithstanding the foregoing, neither the Issuers nor any
Guarantor shall be entitled to Incur any Indebtedness (1) senior in right of
payment to the Notes or pari passu in right of payment to the Notes, but without
limiting the ability to Incur any Indebtedness pursuant to clauses (4), (5),
(6), (7) (insofar as the indebtedness being refinanced was senior or pari passu
in right of payment to the Notes), (8), (9), (10), (12), (13), (14), (16)
(insofar as the indebtedness being Guaranteed was senior or pari passu in right
of payment to the Notes, (17) and (18) of paragraph (b) above; or (2) pursuant
to the foregoing paragraph (b) if the proceeds thereof are used, directly or
indirectly, to Refinance any Subordinated Obligations unless such Indebtedness
shall be subordinated to the Notes or the Guarantee of such Guarantor, as
applicable, to at least the same extent as such Subordinated Obligations. The
foregoing shall not prevent the Issuers from Issuing additional Notes or the
Guarantors from guaranteeing such Notes after the Issue Date in accordance with
the Securities Purchase Agreement. Additionally, notwithstanding anything to the
contrary contained herein, clause (1) of this paragraph shall cease to be of
further effect in the event the Notes contemplated to be issued on the Second
Closing Date (as such term is defined in the Securities Purchase Agreement) are
not issued in accordance with the terms of the Securities Purchase Agreement,
except pursuant to a failure by the Parent, the Issuers or their Subsidiaries to
act in good faith to satisfy the closing conditions specified in the Securities
Purchase Agreement for the First Closing Date or the Second Closing Date.
(d) For purposes of determining compliance with this Section 4.06:
(1) in the event that an item of Indebtedness (or any portion thereof)
meets the criteria of more than one of the types of Indebtedness described
above, the Company, in its sole discretion, will classify such item of
Indebtedness (or any portion thereof) at the time of Incurrence and will
only be required to include the amount and type of such Indebtedness in one
of the above clauses;
(2) the Company will be entitled to divide and classify (and later
reclassify) an item of Indebtedness in more than one of the types of
Indebtedness described above, including under paragraph (a) above;
(3) Guarantees of, or obligations in respect of letters of credit
relating to, Indebtedness which is otherwise included in the determination
of a particular amount of Indebtedness shall not be included;
(4) the principal amount of any Disqualified Stock of the Company or
Preferred Stock of a Restricted Entity, will be equal to the greater of the
maximum mandatory redemption or repurchase price (not including, in either
case, any redemption or repurchase premium) or the liquidation preference
thereof; and
(5) increases in the amount of Indebtedness outstanding solely as a
result of fluctuations in the exchange rate of currencies shall not be
deemed to be an Incurrence of Indebtedness for purposes of this covenant.
For purposes of this Section 4.06, all outstanding Indebtedness under
the Notes and the Guarantees thereof issued on the Issue Date and the Notes and
the Guarantees thereof subsequently issued in accordance with the Securities
Purchase Agreement will be deemed to have been Incurred pursuant to clause (2)
of paragraph (b) of this Section 4.06.
Section 4.07 Limitation on Issuance or Sale of Capital Stock of Restricted
Entities.
The Company:
(a) shall not, and shall not permit any Restricted Subsidiary to, and
each Restricted Entity shall not, sell, lease, transfer or otherwise dispose of
any Capital Stock of any Restricted Entity to any Person (other than the Company
or a Wholly Owned Subsidiary; provided that Capital Stock owned by the Company
or a Guarantor may only be issued or transferred to the Company or another
Guarantor), and
(b) shall not permit any Restricted Subsidiary to, and each Restricted
Entity shall not, issue any of its Capital Stock (other than, if necessary,
shares of its Capital Stock constituting directors' or other legally required
qualifying shares) to any Person (other than to the Company or a Wholly Owned
Subsidiary; provided that Capital Stock owned by the Company or a Guarantor may
only be issued or transferred to the Company or another Guarantor),
unless:
(1) immediately after giving effect to such issuance, sale or other
disposition, neither the Company nor any of their Subsidiaries own any
Capital Stock of such Restricted Entity; or
(2) such issuance, sale or other disposition is treated as an Asset
Disposition and immediately after giving effect to such issuance, sale or
other disposition, such Restricted Entity would continue to be a Restricted
Entity; or
(3) immediately after giving effect to such issuance, sale or other
disposition, such Restricted Entity would no longer constitute a Restricted
Entity and any Investment in such Person remaining after giving effect
thereto is treated as a new Investment by the Company and such Investment
would be permitted to be made under Section 4.08 if made on the date of
such issuance, sale or other disposition.
For purposes of this Section 4.07, the creation of a Lien on any
Capital Stock of a Restricted Entity to secure Indebtedness of the Company or
any of its Restricted Subsidiaries shall not be deemed to be a violation of this
Section 4.07; provided, however, that any sale or other disposition by the
secured party of such Capital Stock following foreclosure of its Lien shall be
subject to this Section 4.07.
Section 4.08 Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, and each Restricted Entity shall not, directly or indirectly,
make a Restricted Payment if at the time the Company or such Restricted Entity
makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would result
therefrom);
(2) the Company is not entitled to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.06(a) after giving effect, on a pro
forma basis, to such Restricted Payment; or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments since the Original Issue Date would exceed the sum of
(without duplication):
(A) 100% of Consolidated Operating Cash Flow accrued during the period
(treated as one accounting period) from the beginning of the first fiscal
quarter during which the Company generates positive Consolidated Operating
Cash Flow following the Original Issue Date to the end of the most recent
fiscal quarter for which internal financial statements are available less
1.4 times the Consolidated Interest Expense for the same period (if such
amount in this clause (A) is a negative amount, minus the amount by which
such amount is less than zero); plus
(B) 100% of the aggregate Net Cash Proceeds received by the Company
from the issuance or sale of its Capital Stock (other than Disqualified
Stock) subsequent to the Original Issue Date (other than an issuance or
sale to a Subsidiary of the Company or to the Canadian Joint Ventures and
other than an issuance or sale to an employee stock ownership plan) and
100% of any cash capital contribution received by the Company subsequent to
the Original Issue Date; provided, however, that there shall be excluded
from the calculation of Net Cash Proceeds and cash capital contributions
under this clause (B) any Net Cash Proceeds received by the Company from
the issue or sale of its Capital Stock or cash capital contributions
received by the Company and which is deemed to be used to Incur
Indebtedness pursuant to Section 4.06(b)(1) or (b)(2) until and to the
extent any such Indebtedness Incurred pursuant to Section 4.06(b)(1) or
(b)(2) in respect of such Net Cash Proceeds or cash capital contributions
has been redesignated to another subclause of Section 4.06(b) or Section
4.06(a); provided, further, however, that Designated Equity Contributions
shall not be permitted to be included in this clause (3)(B) unless the
Company has made a Designated Equity Election, in which case the amount by
which such Designated Equity Contributions exceeds the net present value of
all payments to be made under Capital Lease Obligations and Purchase Money
Indebtedness Incurred pursuant to Section 4.06(b)(12) shall be permitted to
be included in this clause (3)(B); plus
(C) the amount by which Indebtedness of the Company or any Restricted
Entity is reduced on the Company's balance sheet upon the conversion or
exchange subsequent to the Original Issue Date of any Indebtedness
convertible or exchangeable for Capital Stock (other than Disqualified
Stock) of the Company (less the amount of any cash, or the fair value of
any other property, distributed by the Company upon such conversion or
exchange); plus
(D) an amount equal to the sum of (i) the net reduction in the
Investments (other than Permitted Investments) made by the Company or any
Restricted Entity in any Person resulting from repurchases, repayments or
redemptions of such Investments by such Person, proceeds realized on the
sale of such Investment and proceeds representing the return of capital
(excluding dividends and distributions to the extent included in
Consolidated Operating Cash Flow), in each case received by the Company or
any Restricted Entity, and (ii) to the extent such Person is an
Unrestricted Entity, the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of
such Unrestricted Entity at the time such Unrestricted Entity is designated
a Restricted Entity; provided, however, that the foregoing sum shall not
exceed, in the case of any such Person or Unrestricted Entity, the amount
of Investments (excluding Permitted Investments) previously made (and
treated as a Restricted Payment) by the Company or any Restricted Entity in
such Person or Unrestricted Entity.
(b) The preceding provisions shall not prohibit:
(1) any Restricted Payment in an amount equal to the Net Cash Proceeds
of the substantially concurrent sale of, or made by exchange for, Capital
Stock of the Company (other than Disqualified Stock and other than Capital
Stock issued or sold to a Subsidiary of the Company or a Canadian Joint
Venture or an employee stock ownership plan) or a substantially concurrent
cash capital contribution received by the Company; provided, however, that
(A) such Restricted Payment shall be excluded from subsequent calculations
of the amount of Restricted Payments and (B) the Net Cash Proceeds from
such sale or such cash capital contribution (to the extent so used for such
Restricted Payment) shall be excluded from the calculation of amounts under
clause (3)(B) of paragraph (a) above and shall be excluded from the
calculation of amounts under Section 4.06(b)(2);
(2) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations made by
exchange for, or out of the proceeds of the substantially concurrent
Incurrence of, Subordinated Obligations that are permitted to be Incurred
pursuant to Section 4.06 that have, at the time of Incurrence, a weighted
Average Life that is greater than the then remaining weighted Average Life
of the Notes and a Stated Maturity that is later than the date that is 91
days after the Stated Maturity of the Notes; provided, however, that such
purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value shall be excluded from subsequent calculations of the
amount of Restricted Payments;
(3) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with this covenant; provided, however, that such dividend shall be included
in subsequent calculations of the amount of Restricted Payments;
(4) so long as no Default has occurred and is continuing, the
purchase, redemption or other acquisition of shares of Capital Stock of the
Company or any of its Subsidiaries from employees, former employees,
consultants, directors or former directors of the Company or any of its
Subsidiaries (or permitted transferees of such employees, former employees,
former consultants, directors or former directors), pursuant to the terms
of the agreements (including employment agreements) or plans (or amendments
thereto) under which such individuals purchase or sell or are granted the
option to purchase or sell, shares of such Capital Stock; provided,
however, that the aggregate amount of such Restricted Payments (excluding
amounts representing cancellation of Indebtedness) shall not exceed $2.5
million in the aggregate since the Original Issue Date; provided further,
however, that such repurchases and other acquisitions shall be excluded
from subsequent calculations of the amount of Restricted Payments;
(5) the declaration or payment of dividends on Disqualified Stock
issued in compliance with Section 4.06; provided, however, that at the time
of declaration of such dividend, no Default shall have occurred and be
continuing (or result therefrom); provided further, however, that such
dividends shall be excluded from subsequent calculations of the amount of
Restricted Payments;
(6) repurchases of Capital Stock deemed to occur upon exercise of
options to purchase limited partnership interests, stock options, warrants
or other convertible securities if such Capital Stock represents a portion
of the exercise price thereof; provided, however, that such Restricted
Payments shall be excluded from subsequent calculations of the amount of
Restricted Payments;
(7) cash payments not to exceed $2.5 million since the Original Issue
Date in lieu of the issuance of fractional shares in connection with a
reverse stock split of the Capital Stock of the Company or the exercise of
warrants, options, or other securities convertible into or exchangeable for
Capital Stock of the Company; provided, however, that any such cash payment
shall not be for the purpose of evading the limitation of the covenant
described under this subheading; provided further, however, that such
payments shall be excluded in subsequent calculations of the amount of
Restricted Payments;
(8) in the event of a Change of Control or to the extent permitted by
Section 4.10, and if no Default shall have occurred and be continuing, the
payment, purchase, redemption, defeasance or other acquisition or
retirement of Subordinated Obligations, in each case, at a purchase price
not greater than 101% of the principal amount of such Subordinated
Obligations, plus any accrued and unpaid interest thereon; provided,
however, that prior to such payment, purchase, redemption, defeasance or
other acquisition or retirement, the Issuers (or a third party to the
extent permitted by this Indenture) have made a Change of Control Offer, or
sale of assets offer, with respect to the Notes and has repurchased all
Notes validly tendered and not withdrawn in connection with such Change of
Control Offer, or sale of assets offer; provided further, however, that
such payments, purchases, redemptions, defeasances or other acquisitions or
retirements shall be excluded from subsequent calculations of the amount of
Restricted Payments;
(9) payments of intercompany subordinated Indebtedness, the Incurrence
of which was permitted under Section 4.06(b)(3); provided, however, that
such payments shall be excluded from subsequent calculations of the amount
of Restricted Payments;
(10) other Restricted Payments in an amount not to exceed $5.0 million
in the aggregate since the Original Issue Date; provided, however, that no
Default has occurred and is continuing or would otherwise result therefrom;
provided further, however, that such payments shall be excluded from
subsequent calculations of the amount of Restricted Payments;
(11) the payment of dividends, or distributions or amounts by the
Company to its direct parents or to the limited partners or the General
Partner in amounts required to pay the tax obligations of any such direct
parent, limited partners or the General Partner that are solely
attributable to the income of the Company and its Subsidiaries by virtue of
the Company being a pass-through entity for Federal, state or foreign
income tax purposes; provided, however, that (a) the amount of dividends or
distributions paid pursuant to this clause (11) to enable any of the
Company's direct parents, limited partners or the General Partner to pay
Federal, state or foreign income taxes at any time will not exceed the
amount of such Federal, state or foreign income taxes actually owing by any
such direct parent or the General Partner or the Company's limited partners
at such time for the respective period (excluding any tax liability or tax
benefit of any such direct parent or the General Partner or the Company's
limited partners not attributable to the Company or its Subsidiaries)
(provided that the Company may make periodic payments based on an estimate
of such tax liability with an annual reconciliation at the end of each tax
year) and (b) any refunds received by or on behalf of, or any overpayment
based on the annual reconciliation to, any of the Company's direct parents,
limited partners or the General Partner attributable to the Company and its
Subsidiaries shall promptly be returned by any such direct parent or the
General Partner or the Company's limited partners to the Company; and
provided further, however, that such payments shall be excluded from
subsequent calculations of the amount of Restricted Payments;
(12) the dividend or distribution of all of the shares of SkyTerra
International, LLC to the equity holders of the Company or the designation
of SkyTerra International, LLC as an Unrestricted Entity; provided that all
Investments in SkyTerra International, LLC made since the Original Issue
Date and all payments made under the Boeing Agreement on behalf of any
satellite to be transferred or assigned to SkyTerra International, LLC
shall have either been reimbursed in cash in full to the Company or be
deemed to be a permanent Investment by the Company in SkyTerra
International, LLC (provided that such Investment is otherwise permitted by
this Indenture); provided, however, that no Default has occurred and is
continuing or would otherwise result therefrom; and provided further,
however, that such dividend or distribution shall be excluded from
subsequent calculations of the amount of Restricted Payments;
(13) the payment of dividends or distributions by the Company to
Parent or the making of loans by the Company to Parent for Parent to pay
fees and expenses related to (a) Parent's corporate existence and expenses
of Parent as a public company, and (b) general corporate overhead expense
of Parent and customary compensation payable to officers, employees and
directors of Parent in the case of (b) to the extent such fees and expenses
relate to the ownership of the Company; provided, however, that amounts
paid under this clause (13) shall not exceed $2.5 million during any
calendar year, provided, further, however, that no Default has occurred and
is continuing or would otherwise result therefrom; provided further,
however, that such payments shall be excluded from subsequent calculations
of the amount of Restricted Payments;
(14) the payment of costs and expenses incurred by the General Partner
on behalf of the Company or the Restricted Entities in the ordinary course
of business and administrative and corporate fees and expenses of the
General Partner in the ordinary course of business not to exceed in the
aggregate under this clause (14) $1.0 million per year; provided further,
however, that such payments shall be excluded from subsequent calculations
of the amount of Restricted Payments; and
(15) the distribution, as a dividend or otherwise, of shares of
Capital Stock of, or Indebtedness owed to, the Company or a Restricted
Entity by, an Unrestricted Entity.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of such Restricted Payment of the asset(s) or
securities proposed to be paid, transferred or issued by the Company or such
Restricted Entity, as the case may be, pursuant to such Restricted Payment. The
fair market value of any cash Restricted Payment shall be its face amount and
any non-cash Restricted Payment shall be determined conclusively by the Board of
Directors acting in good faith.
Section 4.09 Limitation on Liens.
The Company shall not, and shall not permit any Restricted Subsidiary
to, and each Restricted Entity shall not, directly or indirectly, Incur or
permit to exist any Lien of any nature whatsoever on any of its properties
(including Capital Stock of a Subsidiary), whether owned at the Issue Date or
thereafter acquired, securing any Indebtedness, other than Permitted Liens,
unless:
(1) in the case of Liens securing Subordinated Obligations of the
Company or a Guarantor, the Notes are or such Guarantor's Guarantee is, as
the case may be, secured by a Lien on such property that is senior in
priority to such Liens; and
(2) in all other cases, the Notes are or such Guarantor's Guarantee
is, as the case may be, equally and ratably secured by a Lien on such
property.
Section 4.10 Limitation on Sale of Assets and Subsidiary Stock.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, and each Restricted Entity shall not, directly or indirectly,
consummate any Asset Disposition unless:
(1) the Company or such Restricted Entity receives consideration at
the time of such Asset Disposition at least equal to the fair market value
(including as to the value of all non-cash consideration), as determined in
good faith by the Board of Directors, of the shares and assets subject to
such Asset Disposition;
(2) at least 75% of the consideration thereof received by the Company
or such Restricted Entity is in the form of cash, Temporary Cash
Investments or Designated Noncash Consideration; provided, however, that
the amount of any Designated Noncash Consideration received by the Company
or any Restricted Entity in such Asset Disposition having an aggregate fair
market value, taken together with all other Designated Noncash
Consideration received pursuant to this clause (2) at the time of
determination, shall not exceed an amount equal to the greater of (x) $25
million and (y) 2.5% of Consolidated Total Assets at the time of the
receipt of such Designated Noncash Consideration, with the fair market
value of each item of Designated Noncash Consideration being measured at
the time received and without giving effect to subsequent changes in value;
provided further that the amount of:
(a) any liabilities of the Company or any Restricted Entity of
the Issuer (other than Subordinated Obligations) that are assumed by
the transferee of any such assets,
(b) any notes or other obligations or other securities or assets
received by the Company or such Restricted Entity of the Company from
such transferee that are converted by the Company or such Restricted
Entity of the Company into cash within 180 days of the receipt thereof
(to the extent of the cash received), and
(c) any Indebtedness of a Restricted Entity (other than
Subordinated Obligations) that is no longer a Restricted Entity as a
result of the Asset Disposition
shall be deemed to be cash for the purposes of this provision;
(3) an amount equal to 100% of the Net Available Cash from such Asset
Disposition is applied by the Company or such Restricted Entity, as the
case may be:
(A) first, to the extent the Company or such Restricted Entity elects,
to acquire Additional Assets or improve Additional Assets within one year
from the later of the date of such Asset Disposition or the receipt of such
Net Available Cash; provided, however, that the Company shall have an
additional six months to apply such Net Available Cash pursuant to this
clause (A) if it shall have entered into a binding acquisition or purchase
contract in respect of Additional Assets prior to the expiration of such
one-year period; provided further that if the Net Available Cash from any
Asset Disposition of an FCC License, Industry Canada License or any similar
telecommunications license or any Capital Stock of the FCC License
Subsidiary, SkyTerra Canada Inc. or any other entity holding a
telecommunications license is in excess of $10.0 million, the Net Available
Cash from such Asset Disposition may not be applied as provided in this
clause (A) and shall be immediately applied as required in clause (b)
below; and
(B) second, to the extent of the balance of such Net Available Cash
after application in accordance with clause (A) above:
(1) to the extent required by the terms of the 14% Senior Secured
Notes or any other secured Indebtedness of either Issuer or any
Restricted Entity, make an offer to the holders of the 14% Senior
Secured Notes and the holders of such other secured Indebtedness that
requires such an offer to purchase, prepay or repay the 14% Senior
Secured Notes and such other secured Indebtedness pursuant to the
terms thereof; and
(2) to the extent that such Net Available Cash is remaining after
application in accordance with Section 4.10(a)(3)(B)(1) above, to make
an offer to holders of the Notes (and to holders of other Pari Passu
Indebtedness that requires such an offer) to purchase Notes (and such
other Pari Passu Indebtedness that require such an offer) pursuant to
and subject to the conditions contained in this Indenture; provided,
that such offer to holders of Notes is for no less than the
Noteholders' pro rata amount of such Net Available Cash (based on the
then outstanding principal amount of the Notes outstanding and the
principal amount (or accreted value if issued with discount) of such
other Pari Passu Indebtedness);
provided, however, that in connection with any prepayment, repayment or
purchase of Indebtedness pursuant to clause (3)(B) above, the Issuers or
such Restricted Entity shall permanently retire such Indebtedness and shall
cause the related loan commitment (if any) to be permanently reduced in an
amount equal to the principal amount so prepaid, repaid or purchased;
provided, however, that the prior proviso shall not affect the ability of
the Company of the Restricted Entities to incur Indebtedness under Section
4.06(b).
Pending application of Net Available Cash pursuant to this covenant,
such Net Available Cash shall be invested in Temporary Cash Investments or
applied to temporarily reduce revolving credit indebtedness, unless required to
do otherwise pursuant to the terms of the 14% Senior Secured Notes or any other
outstanding secured Indebtedness of either Issuer or Restricted Entity.
(b) In the event of an Asset Disposition that requires the Issuers to
make an offer to purchase the Notes (and other Indebtedness) pursuant to Section
4.10(a)(3)(B)(2) the Issuers shall purchase Notes tendered pursuant to an offer
by the Issuers for the Notes (and such other Indebtedness) (the "Offer") at a
purchase price of 100% of their then outstanding principal amount (such other
Indebtedness at a purchase price of 100% of its principal amount or, in the
event such other Indebtedness was issued with significant original issue
discount, 100% of the accreted value thereof) without premium, plus accrued but
unpaid interest (or, in respect of such other Indebtedness, such lesser price,
if any, as may be provided for by the terms of such Indebtedness) in accordance
with the procedures set forth in Section 4.10(c). If the aggregate purchase
price of the Notes (and such other Indebtedness) tendered exceeds the Net
Available Cash allotted to their purchase, the Trustee will select the Notes and
such other Indebtedness to be purchased on a pro rata basis but in round
denominations, which in the case of the Notes will be denominations of $1,000
principal amount or multiples thereof. The Company shall not be required to make
such an Offer to purchase Notes (and other Indebtedness) pursuant to Section
4.10(a)(3)(B)(2) if the Net Available Cash available therefrom is less than
$15.0 million (which lesser amount shall be carried forward for purposes of
determining whether such an Offer is required with respect to the Net Available
Cash from any subsequent Asset Disposition). To the extent that the aggregate
amount of Notes and other Indebtedness tendered is less than the Net Available
Cash required to be used to make an Offer to the holders of Notes and such
Indebtedness, the Company may use such excess Net Available Cash for any other
purpose not prohibited by this Indenture.
(c) Promptly, and in any event within 10 days after the Company
becomes obligated to make an Offer pursuant to Section 4.10(a)(3)(B)(2), the
Company shall deliver to the Trustee and send, by first-class mail to each
holder, a written notice stating that the holder may elect to have its Notes
purchased by the Issuers either in whole or in part (subject to prorating as
described in Section 4.10(b) in the event the Offer is oversubscribed) in
integral multiples of $1,000 principal amount, at the applicable purchase price
set forth in Section 4.10(b). The notice shall specify a purchase date not less
than 30 days nor more than 60 days after the date of such notice (the "Purchase
Date") and shall contain such information concerning the business of the Issuers
which the Issuers in good faith believe will enable such holders to make an
informed decision and all instructions and materials necessary to tender Notes
pursuant to the Offer, together with the information contained in clause (3).
(1) Not later than the date upon which written notice of an Offer is
delivered to the Trustee as provided below, the Company shall deliver to
the Trustee an Officer's Certificate as to (A) the amount of the Offer (the
"Offer Amount"), including information as to any Pari Passu Indebtedness
included in the Offer, (B) the allocation of the Net Available Cash from
the Asset Dispositions pursuant to which such Offer is being made and (C)
the compliance of such allocation with the provisions of Section 4.10(a)
and (b). On such date, the Company shall irrevocably deposit with the
Trustee or with a Paying Agent in Temporary Cash Investments, maturing on
the last day prior to the Purchase Date or on the Purchase Date if funds
are immediately available by open of business, an amount equal to the Offer
Amount to be held for payment in accordance with the provisions of this
Section. If the Offer includes other Pari Passu Indebtedness, the portion
of the deposit described in the preceding sentence that is applicable to
such other Pari Passu Indebtedness may be made with any other paying agent
pursuant to arrangements satisfactory to the Trustee. Upon the expiration
of the period for which the Offer remains open (the "Offer Period"), the
Company shall deliver to the Trustee for cancellation the Notes or portions
thereof which have been properly tendered to and are to be accepted by the
Company. The Trustee shall, on the Purchase Date, mail or deliver payment
(or cause the delivery of payment) to each tendering holder in the amount
of the purchase price. In the event that the aggregate purchase price of
the Notes delivered by the Company to the Trustee is less than the Offer
Amount applicable to the Notes, the Trustee shall deliver the excess to the
Company immediately after the expiration of the Offer Period for
application in accordance with this Section 4.10.
(2) Holders electing to have Notes purchased shall be required to
surrender the Notes, with an appropriate form duly completed, to the
Company at the address specified in the notice at least three Business Days
prior to the Purchase Date. Holders shall be entitled to withdraw their
election if the Trustee or the Company receives not later than one Business
Day prior to the Purchase Date, a facsimile transmission or letter setting
forth the name of the holder, the principal amount of the Notes which were
delivered for purchase by the holder and a statement that such holder is
withdrawing his election to have such Notes purchased. Holders whose Notes
are purchased only in part shall be issued new Notes equal in principal
amount to the unpurchased portion of the Notes surrendered.
(3) At the time the Company delivers Notes to the Trustee which are to
be accepted for purchase, the Company shall also deliver an Officer's
Certificate stating that such Notes are to be accepted by the Company
pursuant to and in accordance with the terms of this Section. Notes shall
be deemed to have been accepted for purchase at the time the Trustee,
directly or through an agent, mails or delivers payment therefor to the
surrendering holder.
(d) The Company will not, and will not permit any Restricted
Subsidiary to, and each Restricted Entity will not, engage in any Asset Swaps,
unless:
(1) at the time of entering into such Asset Swap and immediately after
giving effect to such Asset Swap, no Default or Event of Default shall have
occurred and be continuing or would occur as a consequence thereof;
(2) the Related Business Assets that are the subject of such Asset
Swap have a substantially comparable fair market value;
(3) in the event such Asset Swap involves the transfer by the Company
or any Restricted Entity of assets having an aggregate fair market value,
as determined by the Board of Directors in good faith, in excess of $10
million, the terms of such Asset Swap have been approved by a majority of
the members of the Board of Directors; and
(4) any cash received shall be applied in accordance with Section
4.10(a)(3).
(e) To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.10, the Issuers will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations hereunder and this Section 4.10 by
virtue of its compliance with such securities laws or regulations.
Section 4.11 Limitation on Transactions with Affiliates.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, and each Restricted Entity shall not, enter into or permit to
exist any transaction (including the purchase, sale, lease or exchange of any
property, employee compensation arrangements or the rendering of any service)
with, or for the benefit of, any Affiliate of the Company (an "Affiliate
Transaction") involving (together with any related Affiliate Transactions)
aggregate consideration in excess of $10 million, unless:
(1) the terms of the Affiliate Transaction are not materially less
favorable taken as a whole to the Company or such Restricted Entity than
those that could be obtained at the time of the Affiliate Transaction in
arm's-length dealings with a Person who is not an Affiliate; and
(2) if such Affiliate Transaction (together with any related Affiliate
Transactions) involves an amount in excess of $15.0 million, the terms of
the Affiliate Transaction are set forth in writing and a majority of the
non-employee directors of the General Partner disinterested with respect to
such Affiliate Transaction have determined in good faith that the criteria
set forth in clause (1) are satisfied and have approved the relevant
Affiliate Transaction.
(b) The provisions of the preceding paragraph (a) shall not prohibit:
(1) Restricted Payments, in each case permitted to be made pursuant to
Section 4.08, and Permitted Investments;
(2) any issuance of securities, or other payments, awards or grants in
cash, securities or otherwise pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans approved by the Board
of Directors;
(3) loans or advances to employees in the ordinary course of business
in accordance with the past practices of the Company or the Restricted
Entities, but in any event not to exceed $2.5 million in the aggregate
outstanding at any one time;
(4) the payment of reasonable and customary fees to, and indemnity
provided on behalf of, officers, directors, employees or consultants of the
Company or the Restricted Entities;
(5) transactions between or among the Company and the Restricted
Entities;
(6) the issuance or sale of any Capital Stock (other than Disqualified
Stock) of the Company and the granting and the performance of registration
rights;
(7) any agreement as in effect on the Issue Date, as these agreements
may be amended, modified, supplemented, extended or renewed from time to
time (so long as any amendment, modification, supplement, extension or
renewal is not materially less favorable, taken as a whole, to the Company
and the Restricted Entities) and the transactions evidenced or contemplated
thereby or as these agreements may be extended or renewed in accordance
with this clause (7);
(8) transactions with customers, clients, suppliers, or purchasers or
sellers of goods or services, in each case in the ordinary course of
business and otherwise in compliance with the terms of this Indenture which
are fair to the Company and the Restricted Entities, in the reasonable
determination of the Board of Directors or the senior management of the
Company, or are on terms at least as favorable as might reasonably have
been obtained at such time from an unaffiliated party;
(9) the entering into agreements with equity holders of the Company
including, without limitation, the entering into and performance of
shareholder agreements and registration rights agreements and amendments to
existing similar agreements;
(10) Affiliate Transactions with a Person solely in its capacity as a
holder of debt or equity securities where such Person is treated no more
favorably in such transaction than any other security holders who are not
Affiliates; and
(11) Transactions pursuant to, contemplated by or in connection with
(i) the Coop Agreement, (ii) the MCSA, and/or (iii) the Securities Purchase
Agreement.
Section 4.12 Future Guarantors.
If the Company or any of the Restricted Entities acquires or creates
another domestic Subsidiary after the date of this Indenture, then that newly
acquired or created domestic Subsidiary shall become a Guarantor and execute a
supplemental indenture within 10 Business Days of the date on which it was
acquired or created; provided that all Subsidiaries that are Immaterial
Subsidiaries or that have properly been designated as Unrestricted Entities
under this Indenture shall not become Guarantors for so long as they continue to
constitute Immaterial Subsidiaries or Unrestricted Entities, as the case may be.
Additionally, the Company shall deliver to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that such supplemental Indenture
complies with the applicable provisions of this Indenture, that all conditions
precedent in this Indenture relating to such transaction have been satisfied and
that such supplemental Indenture is enforceable, subject to customary
qualifications.
Section 4.13 Limitation on Restrictions on Distributions from Restricted
Subsidiaries and Restricted Entities.
The Company shall not, and shall not permit any Restricted Subsidiary
to, and each Restricted Entity shall not, create or otherwise cause or permit to
exist or become effective any consensual encumbrance or consensual restriction
on the ability of any Restricted Entity to (a) pay dividends or make any other
distributions on its Capital Stock to the Company or a Restricted Entity or pay
any Indebtedness owed to the Company or any Restricted Entity, (b) make any
loans or advances to the Company or any Restricted Entity or (c) transfer any of
its property or assets to the Company or any Restricted Entity, except:
(1) with respect to clauses (a), (b) and (c),
(A) any encumbrance or restriction pursuant to an agreement in effect
at or entered into on the Issue Date;
(B) any encumbrance or restriction with respect to a Restricted Entity
pursuant to an agreement relating to any Capital Stock or Indebtedness
Incurred by such Restricted Entity on or prior to the date on which such
Restricted Entity was acquired by the Company (other than Indebtedness
Incurred as consideration in, or to provide all or any portion of the funds
or credit support utilized to consummate, the transaction or series of
related transactions pursuant to which such Restricted Entity became a
Restricted Entity or was acquired by the Company) and outstanding on such
date;
(C) any encumbrance or restriction pursuant to an agreement effecting
a Refinancing of Indebtedness Incurred pursuant to an agreement referred to
in clause (A) or (B) of clause (1) of this Section 4.13 or this clause (C)
or contained in any amendment supplement, restatement, renewal or
modification to an agreement referred to in clause (A) or (B) of clause (1)
of this Section 4.13 or this clause (C); provided, however, that the
encumbrances and restrictions with respect to such Restricted Entity
contained in any such refinancing agreement or amendment are not materially
more restrictive, taken as a whole, to the Company and the Restricted
Entities than encumbrances and restrictions with respect to such Restricted
Entity contained in such predecessor agreements on the Issue Date or the
date such Restricted Entity became a Restricted Entity, whichever is
applicable;
(D) any encumbrance or restriction with respect to a Restricted Entity
(or any of its property or assets) imposed pursuant to an agreement entered
into for the sale or disposition of all or substantially all the Capital
Stock or assets of such Restricted Entity (or the property or assets that
are subject to such restriction) pending the closing of such sale or
disposition;
(E) any encumbrance or restriction consisting of net worth provisions
in leases and other agreements entered into by the Company or any
Restricted Entity in the ordinary course of business;
(F) any encumbrance or restriction consisting of customary provisions
in joint venture agreements relating to joint ventures that are not
Restricted Entities and other similar agreements entered into in the
ordinary course of business;
(G) customary non-assignment provisions in contracts, licenses and
leases entered into in the ordinary course of business; and
(H) restrictions contained in any agreement related to property
acquired after the Issue Date and which is not applicable to any other
property and which were not put in place in contemplation of the
acquisition of such property;
(2) with respect to clause (c) only,
(A) any encumbrance or restriction consisting of customary
nonassignment provisions in leases governing leasehold interests to the
extent such provisions restrict the assignment or transfer of the lease or
the property leased thereunder; and
(B) Liens securing Indebtedness that are permitted hereunder that
limit the right of the debtor to dispose of the assets subject to such
Lien.
Section 4.14 Payments for Consent.
The Company shall not, and shall not permit any Restricted Subsidiary
or Affiliate to, and each Restricted Entity and Affiliate shall not, directly or
indirectly, pay or cause to be paid any consideration, whether by way of cash,
securities, interest, fee or otherwise, to any holder of any Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
or agreed to be paid to all holders of the Notes which so consent, waive or
agree to amend in the time frame set forth in solicitation documents relating to
such consent, waiver or agreement.
Section 4.15 Corporate Existence.
Subject to Article 5 hereof, the Company and each Restricted Entity
shall do or cause to be done all things necessary to preserve and keep in full
force and effect (i) its existence in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company and each Restricted Entity and the rights (charter and statutory),
licenses and franchises of the Company and its Restricted Entities; provided,
however, that, except as otherwise required by this Indenture, the Company and
each Restricted Entity shall not be required to preserve any such right, license
or franchise, or the corporate, partnership or other existence of any of its
Restricted Entities, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Entities, taken as a whole. Notwithstanding
anything to the contrary contained in this Section 4.15 the Company or any
Restricted Entity may change its partnership, corporate or other existence to
another form of existence; provided, that for so long as the Company or any
successor or obligor under the Notes is a limited liability company, partnership
or trust there shall be a co-issuer of the Notes that is a Wholly Owned
Subsidiary of the Company and that is a corporation organized and existing under
the laws of the United States or any state thereof or the District of Columbia.
Section 4.16 Change of Control.
(a) Upon the occurrence of a Change of Control, each holder shall have
the right to require that the Issuers repurchase such holder's Notes at a
purchase price in cash equal to 101% of the then outstanding principal amount
thereof on the date of purchase plus accrued and unpaid interest, if any, to
(but excluding) the date of purchase (subject to the right of holders of record
on the relevant record date to receive interest due on the relevant interest
payment date), in accordance with the terms contemplated in this Section 4.16.
(b) Within 30 days following any Change of Control, the Company shall
mail a notice to each holder with a copy to the Trustee (the "Change of Control
Offer") stating:
(1) that a Change of Control has occurred and that such holder has the
right to require us to purchase such holder's Notes at a purchase price in
cash equal to 101% of the then outstanding principal amount thereof on the
date of purchase, plus accrued and unpaid interest, if any, to (but
excluding) the date of purchase (subject to the right of holders of record
on the relevant record date to receive interest on the relevant interest
payment date);
(2) the circumstances and relevant facts regarding such Change of
Control;
(3) the purchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); and
(4) the instructions, as determined by the Company, consistent with
this Section 4.16 that a holder must follow in order to have its Notes
purchased.
(c) Holders electing to have Notes purchased will be required to
surrender the Notes, with an appropriate form duly completed, to the Company at
the address specified in the notice at least three Business Days prior to the
purchase date. Holders will be entitled to withdraw their election if the
Trustee or the Company receives not later than one Business Day prior to the
purchase date, a telegram, facsimile transmission or letter setting forth the
name of the holder, the principal amount of the Notes which was delivered for
purchase by the holder and a statement that such holder is withdrawing his
election to have such Notes purchased.
(d) On the purchase date, all Notes purchased by the Issuers under
this Section shall be delivered by the Company to the Trustee for cancellation,
and the Issuers shall pay the purchase price specified in paragraph (a) plus
accrued and unpaid interest, if any, to the holders entitled thereto.
(e) Notwithstanding the foregoing, the Issuers shall not be required
to make a Change of Control Offer following a Change of Control if a third party
makes the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Section 4.16 applicable to a
Change of Control Offer made by us and purchases all Notes validly tendered and
not withdrawn under such Change of Control Offer. In addition, the Issuers shall
not be required to make a Change of Control Offer following a Change of Control
if the Issuers have exercised their right to redeem all, but not less than all,
of the Notes.
(f) The Issuers will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to a Change
of Control Offer. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.16, the Issuers will
comply with the applicable securities laws and regulations and will be deemed
not to have breached its obligations under this Section 4.16 by virtue of such
compliance.
Section 4.17 Maintenance of Office or Agency.
The Issuers shall maintain an office or agency where 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
Notes and this Indenture may be served. The Issuers shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Issuers shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the address of the Trustee as set forth in Section 11.01.
The Issuers may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations. The
Issuers shall give prompt written notice to the Trustee of such designation or
rescission and of any change in the location of any such other office or agency.
The Issuers hereby initially designate the Corporate Trust Office of
the Trustee set forth in Section 11.01 as such office of the Company.
Section 4.18 Maintenance of Insurance.
(a) The Company shall obtain, and shall cause the Restricted
Subsidiaries to obtain, and the Restricted Entities shall obtain, prior to the
launch of each satellite and shall maintain launch insurance with respect to
each satellite launch covering the period from the launch to 180 days following
the launch of each satellite on such terms (including coverage period,
exclusions, limitations on coverage, co-insurance, deductibles and coverage
amount) as is customary in the industry for similar persons at the time of such
launch. In the event that the Company constructs a spare satellite ("ground
spare"), the amount of coverage may be reduced if it is in the best interest of
the Company, but in no event to an amount less than the cost to launch and
insure the launch for the ground spare.
(b) The Company shall, and shall cause the Restricted Subsidiaries to,
and the Restricted Entities shall, procure and maintain Full In-orbit Insurance,
with respect to each satellite they own (other than satellites that were in
orbit as of the Original Issue Date) unless at the time of securing such Full
In-Orbit Insurance there has occurred and is continuing a material adverse
change in market conditions for the obtaining of Full In-orbit Insurance since
the Issue Date such that it would be commercially unreasonable for the Company
and the Restricted Entities to maintain such Full In-orbit Insurance. Such Full
In-Orbit Insurance shall be on such terms (including exclusions, limitations on
coverage, coinsurance, deductibles and coverage amount) as is customary in the
industry for similar persons at the time of procurement; provided, however, that
with the exception of the initial procurement of Full In-Orbit Insurance for a
satellite that experienced a loss that either occurred during the launch
insurance coverage period or was otherwise covered by launch insurance, in no
event shall the coverage amount be less than the net book value of the
satellite, assuming straight-line depreciation over the life of the satellite,
as adjusted for impairment. In the event that the expiration and non-renewal of
Full In-Orbit Insurance for such a satellite resulting from a claim of loss
under such policy causes a failure to comply with the proviso to the immediately
preceding sentence the Company shall be deemed to be in compliance with the
proviso to the immediately preceding sentence for the 120 days immediately
following such expiration or non-renewal, provided that the Company procures
such Full In-Orbit Insurance as necessary to comply with the preceding proviso
within 120 day period.
Insurance policies obtained or renewed after the Issue Date required
by the foregoing paragraphs (a) and (b) shall:
(1) contain no exclusions other than exclusions as may be customary
for policies of such type and such other exclusions or limitations of
coverage as may be applicable to a substantial portion of satellites of the
same model or relating to systemic failures or anomalies as are then
customary in the satellite insurance market; and
(2) provide coverage for all risks of loss and damage to the
satellite.
Section 4.19 Limitation on Business Activities of Finance Co.
Finance Co. shall not hold any material assets, become liable for any
material obligations, engage in any trade or business, or conduct any business
activity, other than the issuance of its Capital Stock to the Company or any
Wholly Owned Subsidiary, the Incurrence of Indebtedness as a co-obligor or
guarantor of Indebtedness Incurred by the Company, including the Notes and the
Old Notes, that is permitted to be Incurred by the Company under Section 4.06
and activities incidental thereto. For so long as the Company or any successor
or obligor under the Notes is a limited liability company, partnership or trust
there shall be a co-issuer of the Notes that is a Wholly Owned Subsidiary of the
Company and that is a corporation organized and existing under the laws of the
United States or any state thereof or the District of Columbia.
Section 4.20 Certain Matters in Connection with Licenses.
The Company shall maintain direct ownership of all of the Capital
Stock of the FCC License Subsidiary. All FCC Licenses in existence on the Issue
Date or acquired after the Issue Date shall be held by the FCC License
Subsidiary except as required by law or administrative action; provided that
SkyTerra International LLC is permitted to own the FCC License with respect to
the operation of a satellite in Latin America that it owned as of the Original
Issue Date. The Company shall not transfer or dispose of any Capital Stock it
directly or indirectly owns in SkyTerra (Canada) Inc. All Industry Canada
Licenses in existence on the Issue Date or acquired after the Issue Date shall
be held by SkyTerra Corp. or SkyTerra (Canada) Inc., as the case may be, except
as required by law or administrative action.
Section 4.21 Limitation on Line of Business.
The Company shall not, and shall not permit any Restricted Subsidiary
to, and each Restricted Entity shall not, engage in any business other than a
Related Business.
Section 4.22 Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on outstanding
Notes as of the end of such year and (ii) such other specific information
relating to such original issue discount as may be required to be provided to
the Trustee or to the holders of the Notes pursuant to the Internal Revenue Code
of 1986, as amended, and the regulations issued thereunder.
Section 4.23 Reimbursement Offer.
(a) In the event of a Reimbursement Event, the Issuers shall make an
offer to holders of the Notes (a "Reimbursement Offer") to purchase the Notes
tendered pursuant to the Reimbursement Offer at a purchase price of 100% of
their then outstanding principal amount plus accrued and unpaid interest to the
date of the purchase (collectively, the "Reimbursement Purchase Price"), in
accordance with the procedures set forth in Section 4.23(b). If the aggregate
Reimbursement Purchase Price of the Notes tendered exceeds the Net Available
Reimbursement Proceeds, the Trustee will select the Notes to be purchased on a
pro rata basis, in minimum denominations of $1,000 principal amount and
multiples of $1,000 principal amount in excess thereof, in such principal
amounts such that the aggregate Reimbursement Purchase Price of such Notes to be
purchased is the maximum aggregate Reimbursement Purchase Price that can be
obtained without exceeding the Net Available Reimbursement Proceeds applicable
to such Reimbursement Offer. To the extent that the Reimbursement Purchase Price
of Notes required to be purchased pursuant to a Reimbursement Offer is less than
the Net Available Reimbursement Proceeds applicable to a Reimbursement Offer,
the Trustee shall remit any Net Available Reimbursement Proceeds in excess of
such aggregate Reimbursement Purchase Price to the Company, and the Company may
use such excess Net Available Reimbursement Proceeds for any other purpose not
prohibited by this Indenture.
(b) Promptly, and in any event within 10 days after the Company
becomes obligated to make a Reimbursement Offer pursuant to Section 4.23, the
Company shall deliver to the Trustee and send, by first-class mail to each
holder, a written notice stating that the holder may elect to have its Notes
purchased by the Issuers either in whole or in part (subject to prorating as
described in Section 4.23(a) in the event the Reimbursement Offer is
oversubscribed) in integral multiples of $1,000 principal amount, at the
applicable Reimbursement Purchase Price set forth in Section 4.23(a). The notice
shall specify a purchase date not less than 30 days nor more than 60 days after
the date of such notice (the "Reimbursement Purchase Date") and shall contain
all instructions and materials necessary to tender Notes pursuant to the
Reimbursement Offer, together with the information contained in clause (3).
(1) Not later than the date upon which written notice of a
Reimbursement Offer is delivered to the Trustee as provided below, the
Company shall deliver to the Trustee an Officer's Certificate as to the
amount of the Reimbursement Offer (the "Reimbursement Offer Amount"). On
the Reimbursement Purchase Date, the Company shall irrevocably deposit with
the Trustee or with a Paying Agent in Temporary Cash Investments, maturing
on the last day prior to the Reimbursement Purchase Date or on the
Reimbursement Purchase Date if funds are immediately available by open of
business, an amount equal to the Reimbursement Offer Amount to be held for
payment in accordance with the provisions of this Section. Upon the
expiration of the period for which the Reimbursement Offer remains open
(the "Reimbursement Offer Period"), the Company shall deliver to the
Trustee for cancellation the Notes or portions thereof which have been
properly tendered to and are to be accepted by the Company. The Trustee
shall, on the Reimbursement Purchase Date, mail or deliver payment (or
cause the delivery of payment) to each tendering holder in the amount of
the Reimbursement Purchase Price. In the event that the aggregate
Reimbursement Purchase Price of the Notes delivered by the Company to the
Trustee is less than the Reimbursement Offer Amount applicable to the
Notes, the Trustee shall deliver the excess to the Company immediately
after the expiration of the Reimbursement Offer Period for application in
accordance with this Section 4.23.
(2) Holders electing to have Notes purchased shall be required to
surrender the Notes, with an appropriate form duly completed, to the
Company at the address specified in the notice at least three Business Days
prior to the Reimbursement Purchase Date. Holders shall be entitled to
withdraw their election if the Company receives not later than one Business
Day prior to the Reimbursement Purchase Date, a facsimile transmission or a
letter setting forth the name of the holder, the principal amount of the
Notes which were delivered for purchase by the holder and a statement that
such holder is withdrawing his election to have such Notes purchased.
Holders whose Notes are purchased only in part shall be issued new Notes
equal in principal amount to the unpurchased portion of the Notes
surrendered.
(3) At the time the Company delivers Notes to the Trustee which are to
be accepted for purchase, the Company shall also deliver an Officer's
Certificate stating that such Notes are to be accepted by the Company
pursuant to and in accordance with the terms of this Section. Notes shall
be deemed to have been accepted for purchase at the time the Trustee,
directly or through an agent, mails or delivers payment therefor to the
surrendering holder.
(c) To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.23, the Issuers will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations hereunder and this Section 4.23 by
virtue of its compliance with such securities laws or regulations.
Notwithstanding the foregoing, the Issuers shall not be required to make a
Reimbursement Offer following a Reimbursement Event if a third party makes the
Reimbursement Offer in a manner, at the times and otherwise in compliance with
this Section 4.23.
ARTICLE V
SUCCESSOR CORPORATION
Section 5.01 Limitation on Consolidation, Merger and Sale of Property.
(a) The Company shall not consolidate with or merge with or into, or
convey, transfer or lease, in one transaction or a series of transactions,
directly or indirectly, all or substantially all of its assets to, any Person,
unless:
(1) the resulting, surviving or transferee Person (the "Successor
Company") shall be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and
the Successor Company (if not the Company) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form reasonably satisfactory to the Trustee, all the obligations of the
Company under the Notes and this Indenture;
(2) immediately after giving pro forma effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any Subsidiary as a result of such transaction as having been
Incurred by such Successor Company or such Subsidiary at the time of such
transaction), no Default shall have occurred and be continuing;
(3) immediately after giving pro forma effect to such transaction, the
Successor Company would have a Consolidated Leverage Ratio equal to or
better than immediately prior to the transaction; and
(4) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture;
provided, however, that clause (3) will not be applicable to (A) a Restricted
Entity consolidating with, merging into or transferring all or part of its
properties and assets to the Company (so long as no Capital Stock of the Company
is distributed to any Person) or (B) the Company merging with an Affiliate of
the Company solely for the purpose and with the sole effect of reincorporating
the Company in another jurisdiction.
For purposes of this Section 5.01, the sale, lease, conveyance,
assignment, transfer or other disposition of all or substantially all of the
properties and assets of one or more Subsidiaries of the Company or Canadian
Joint Ventures, which properties and assets, if held by the Company instead of
such Subsidiaries or Canadian Joint Ventures, would constitute all or
substantially all of the properties and assets of the Company on a consolidated
basis, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
The Successor Company will be the successor to the Company and shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture, and the predecessor Company, except in the
case of a lease, shall be released from the obligation to pay the principal of
and interest on the Notes.
(b) No Guarantor shall consolidate with or merge with or into, or
convey, transfer or lease, in one transaction or a series of transactions,
directly or indirectly, all or substantially all its assets to, any Person,
unless:
(1) the Person formed by, resulting from or surviving any such
consolidation or merger (if other than such Guarantor):
(a) expressly assumes, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form reasonably satisfactory
to the Trustee, all the obligations of such Guarantor under its
Guarantee and this Indenture; and
(b) delivers to the Trustee an Officer's Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or
transfer and such supplemental indenture (if any) comply with this
Indenture; and
(2) immediately after giving pro forma effect to such transaction (and
treating any Indebtedness which becomes an obligation of such Person as a
result of such transaction as having been Incurred by such Person at the
time of such transaction), no Default shall have occurred and be
continuing. The provisions of this Section 5.01(b) shall not apply to the
merger of any Guarantors with or into each other or with or into the
Company, provided, however, that such transaction shall otherwise comply
with this Indenture.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of any Guarantor in accordance with Section
5.01(b), the successor Person formed by such consolidation or into which the
such Guarantor is merged or to which such transfer (other than by way of lease)
is made shall succeed to, and be substituted for, and may exercise every right
of, such Guarantor under this Indenture with the same effect as if such
successor Person had been named as such Guarantor herein, and thereafter the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Notes.
Section 5.02 Substitution of Company.
The Company may substitute the Parent in respect of all of the
Company's obligations under the Notes and this Indenture on an unsecured and
unsubordinated basis if:
(1) the Parent shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company under the Notes and this
Indenture;
(2) immediately after giving pro forma effect to such substitution
(and assuming the covenants of this Indenture would apply to the Parent on
the same basis that they apply to the Company immediately prior to such
substitution and treating all Indebtedness of the Parent and its
Subsidiaries as Incurred at the time of substitution), no Default shall
have occurred and be continuing;
(3) immediately after giving pro forma effect to such substitution,
the Parent would have a Consolidated Leverage Ratio equal to or better than
that of the Company immediately prior to such substitution;
(4) the Parent shall comply with Section 4.12; and
(5) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such substitution
and such supplemental indenture comply with this Indenture and stating that
this Indenture and the Notes are the legal valid and binding obligation of
the Parent and enforceable against the Parent in accordance with their
terms.
In the event the Parent is substituted for the Company pursuant to the
terms hereof, the Parent will be the successor to the Company and shall succeed
to, and be substituted for, and may exercise every right and power of, and will
be subject to all of the obligations and covenants of, the Company and the
General Partner under this Indenture, all obligations of the Guarantors under
this Indenture and the Guarantees shall remain unchanged and the Company shall
be deemed a Restricted Subsidiary of the Parent and shall immediately become a
Guarantor hereunder.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following is an Event of Default (each, an "Event of
Default"):
(1) a default in the payment of any interest on any Note when the same
becomes due and the default continues for a period of 30 days;
(2) a default in the payment of any principal of, or premium, if any,
on the Notes when the same becomes due at its Stated Maturity, upon any
optional redemption, upon required repurchase, upon declaration of
acceleration or otherwise;
(3) the Issuers or any Guarantor defaults in the observation or
performance of its obligations under the provisions of Article 5 above;
(4) the Issuers or any Guarantor defaults in the observance or
performance of any other covenant or agreement in the Notes or this
Indenture (other than a default that is the subject of the foregoing
clauses (1), (2) or (3)) for 60 days after the Company receives written
notice thereof specifying the default from the Trustee, or the Company and
the Trustee receive written notice thereof specifying the default from the
holders of not less than 25% of the aggregate principal amount of the Notes
then outstanding;
(5) Indebtedness of the Issuers or any Restricted Entity is not paid
within any applicable grace period after final maturity or is accelerated
by the holders thereof because of a default and the total amount of such
Indebtedness unpaid or accelerated exceeds $10 million;
(6) any final, nonappealable judgment or decree for the payment of
money which, when taken together with all other final, nonappealable
judgments or decrees for the payment of money, causes the aggregate amount
of such judgments or decrees entered against the Issuers or any Restricted
Entity to exceed $10 million (net of any amounts with respect to which a
reputable and creditworthy insurance company has acknowledged liability),
remains outstanding for a period of 60 consecutive days following such
judgment and is not discharged, waived or stayed;
(7) either Issuer or any Significant Subsidiary or any Canadian Joint
Venture that would constitute a Significant Subsidiary if such entity was a
Subsidiary of the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(D) makes a general assignment for the benefit of its creditors, or
(E) generally is not paying its debts as they become due;
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against either Issuer or any Significant Subsidiary
or any Canadian Joint Venture that would constitute a Significant
Subsidiary if such entity was a Subsidiary of the Company in an involuntary
case or comparable involuntary bankruptcy proceeding,
(B) appoints a Custodian of either Issuer or any Significant
Subsidiary or any Canadian Joint Venture that would constitute a
Significant Subsidiary if such entity was a Subsidiary of the Company or
for all or substantially all of the property of either Issuer or any
Significant Subsidiary or any Canadian Joint Venture that would constitute
a Significant Subsidiary if such entity was a Subsidiary of the Company, or
(C) orders the liquidation of either Issuer or any Significant
Subsidiary or any Canadian Joint Venture that would constitute a
Significant Subsidiary if such entity was a Subsidiary of the Company,
and the order or decree remains unstayed and in effect for 60 days; or
(9) any Guarantee of a Guarantor that is a Significant Subsidiary or
Canadian Joint Venture that would constitute a Significant Subsidiary if
such entity was a Subsidiary of the Company ceases to be in full force and
effect or becomes unenforceable or invalid or is declared null and void
(other than in accordance with the terms of such Guarantee) or any
Guarantor denies or disaffirms its obligations under its Guarantee.
The term "Bankruptcy Law" means Title 11, U.S. Code, the Bankruptcy
and Insolvency Act (Canada), Companies Creditors' Arrangements Act (Canada) and
the Winding-Up and Restructuring Act (Canada) or any similar Federal, state or
non-U.S. law or statute for the supervision, administration or relief of
debtors, including, without limitation, bankruptcy or insolvency laws. The term
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
Section 6.02 Acceleration.
If an Event of Default occurs and is continuing, the Trustee, by
notice to the Issuers, or the holders of not less than 25% in aggregate
principal amount of the Notes, by written notice to the Issuers and the Trustee,
may declare to be immediately due and payable the outstanding principal amount
of all the Notes then outstanding, plus premium, if any, and accrued but unpaid
interest to the date of acceleration, in which event such amounts shall become
immediately due and payable. In case an Event of Default specified in Section
6.01(7) or (8) with respect to either Issuer occurs, such then outstanding
principal amount, premium, if any, and interest with respect to all of the Notes
shall be due and payable immediately without any declaration or other act on the
part of the Trustee or the holders of the Notes. After any such acceleration but
before a judgment or decree based on acceleration is obtained by the Trustee,
the holders of a majority in aggregate principal amount of outstanding Notes by
notice to the Trustee may rescind and cancel such acceleration and its
consequences if (i) all existing Events of Default, other than the nonpayment of
accelerated then outstanding principal amount, premium, if any, or interest that
has become due solely because of the acceleration, have been cured or waived,
(ii) to the extent the payment of such interest is lawful, interest (at the same
rate specified in the Notes) on overdue installments of interest and overdue
then outstanding principal amount, premium, if any, or interest, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iii) the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee its expenses, disbursements and advances, (iv) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction and (v) in the event of the cure or waiver of a Default
or Event of Default described in Section 6.01(7) or (8), the Trustee has
received an Officer's Certificate and an Opinion of Counsel that such Default or
Event of Default has been cured or waived. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
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 then outstanding principal amount or premium, if any, and interest on
the Notes or to enforce the performance of any provision of the Notes or this
Indenture and may take any necessary action requested of it as Trustee to
settle, compromise, adjust or otherwise conclude any proceedings to which it is
a party.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any holder of Notes in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 6.04 Waiver of Past Defaults and Events of Default.
Subject to Sections 6.02, 6.07 and 8.02 hereof, the holders of a
majority in aggregate principal amount of the Notes then outstanding have the
right to waive any existing Default or Event of Default or compliance with any
provision of this Indenture or the Notes. 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 a majority in aggregate principal amount of the Notes
then outstanding 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 by this Indenture. The Trustee may refuse to
follow any direction that conflicts with law or this Indenture or that the
Trustee determines may be unduly prejudicial to the rights of another holder not
taking part in such direction, and the Trustee shall have the right to decline
to follow any such direction if the Trustee, being advised by counsel,
determines that the action so directed may not lawfully be taken or if the
Trustee in good faith shall, by a Responsible Officer, determine that the
proceedings so directed may involve it in personal liability; provided that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 6.06 Limitation on Suits.
Subject to Section 6.07 below, a holder may not institute any
proceeding with respect to this Indenture, or for the appointment of a receiver
or trustee, or pursue any remedy with respect to this Indenture or the Notes
unless:
(1) such holder has previously given to the Trustee written notice of
a continuing Event of Default;
(2) the registered holders of at least 25% in aggregate principal
amount of the Notes then outstanding, have made written request and offered
indemnity to the Trustee reasonably satisfactory to the Trustee to
institute such proceeding as trustee; and
(3) the Trustee shall not have received from the registered holders of
a majority in aggregate principal amount of the Notes then outstanding a
direction inconsistent with such request and shall have failed to institute
such proceeding within 60 days.
A holder may not use this Indenture to prejudice the rights of another
holder or to obtain a preference or priority over another holder.
Section 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any holder of a Note to receive payment of principal of or premium, if any, and
interest on the Note on or after the respective due dates expressed in the Note,
or to bring suit for the enforcement of any such payment on or after such
respective dates, is absolute and unconditional and shall not be impaired or
affected without the consent of the holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or interest
specified in Section 6.01(l) or (2) hereof occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Issuers or the Guarantors (or any other obligor on the Notes) for the whole
amount of unpaid principal, premium and accrued interest remaining unpaid,
together with interest on overdue principal, premium and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest, in each case at the rate then borne by the Notes, and such further
amounts as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee and its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
holders allowed in any judicial proceedings relative to the Issuers or the
Guarantors (or any other obligor upon the Notes), its creditors or its property
and the Trustee shall be entitled and empowered to collect and receive any
monies or other property payable or deliverable on any such claims and to
distribute the same after deduction of its charges and expenses to the extent
that any such charges and expenses are not paid out of the estate in any such
proceedings and each custodian 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 to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof.
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.
Any money collected by the Trustee pursuant to this Article 6, or,
after an Event of Default, any money or other property distributable in respect
of the Issuers' or Guarantors' obligations under this Indenture, shall be paid
in the following order:
(1) FIRST: to the Trustee for all amounts due under Section 7.07
hereof;
(2) SECOND: to Noteholders for due and unpaid amounts of principal,
premium, if any, and interest on the Notes, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes
held by each holder;
(3) THIRD: to the Company or as a court of competent jurisdiction may
direct.
The Trustee may fix a record date and payment date for any payment to
holders pursuant to this Section 6.10.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, 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 hereof or a suit by holders of more than 10% in
aggregate principal amount of the Notes then outstanding.
ARTICLE VII
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise under the same circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform those duties and only those duties that
are specifically set forth in this Indenture and no others shall be
inferred or implied, nor shall any implied covenants or obligations be read
into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
it and conforming to the applicable 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 (but need not confirm or
investigate the accuracy of mathematical calculations or other facts, or
the statements or opinions stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraphs (b) and (d)
of this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that such Person
was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.02 or 6.05 hereof.
(d) Notwithstanding anything to the contrary contained herein, 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 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 satisfactory to it against such risk or liability is not reasonably
assured to it.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity reasonably satisfactory to it against any
loss, liability, expense or fee.
(f) The Trustee shall not be liable for interest on, or for the
investment of, any money or other property received by it except as the Trustee
may agree in writing with the Company, Finance Co. or any Guarantor. Money held
in trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(g) No provision of this Indenture shall be deemed to impose any duty
or obligation on the Trustee to perform any act or acts, receive or obtain any
interest in property or exercise any interest in property, or exercise any
right, power, duty or obligation conferred or imposed on it in any jurisdiction
in which it shall be illegal, or in which the Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts,
to receive or obtain any such interest in property or to exercise any such
right, power, duty or obligation; and no permissive or discretionary power or
authority available to the Trustee shall be construed to be a duty.
(h) Whether or not therein 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
Section.
Section 7.02 Rights of Trustee.
Subject to Section 7.01 hereof:
(1) The Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note or any other document reasonably
believed by it to be genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any fact or matter stated
in the document.
(2) Any request or direction of the Issuers mentioned herein shall be
sufficiently evidenced by a Company Request or an Officer's Certificate and
any resolution of the Board of Directors of the applicable Issuer or any
committee thereof (or committee of officers or other representatives of the
Issuers, to the extent any such committee or committees have been so
authorized by the Board of Directors) may be sufficiently evidenced by a
certified copy thereof.
(3) Before the Trustee acts or refrains from acting, it may require an
Officer's Certificate or an Opinion of Counsel, or both, which shall
conform to the provisions of Section 11.04 hereof. The Trustee shall be
protected and shall not be liable for any action it takes or omits to take
in good faith in reliance on such certificate or opinion.
(4) The Trustee may act through agents and counsel and shall not be
responsible for the misconduct or negligence of any agent or counsel
appointed by it with due care.
(5) The Trustee shall not be liable for any action it takes, suffers
or omits to take in good faith which it reasonably believes to be
authorized or within its discretion, rights or powers.
(6) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any
action taken, omitted or suffered by the Trustee hereunder in good faith
and in reliance thereon.
(7) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in the Trustee by this Indenture at the request or
direction of any of the holders of Notes pursuant to this Indenture, unless
such holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by the Trustee in compliance with such request or
direction.
(8) 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, appraisal, 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
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole
cost of the Company, and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation.
(9) The Trustee shall not be deemed to have notice or be charged with
knowledge of any Default or Event of Default unless a Responsible Officer
of the Trustee has received at the Corporate Trust Office of the Trustee
from an Issuer, any Guarantor or any Noteholder written notice of such
Default or Event of Default, and such notice references the Notes and this
Indenture.
(10) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, the Trustee's right to
be indemnified, are extended to, and shall be enforceable by, the Trustee
in such capacity hereunder, and each agent (including each Agent),
custodian and other Person employed to act hereunder.
(11) The Trustee may request that the Company deliver an Officer's
Certificate setting forth the names of individuals and titles of officers
authorized at such time to take specified actions pursuant to this
Indenture, which Officer's Certificate may be signed by any person
authorized to sign an Officer's Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded.
(12) In no event shall the Trustee be responsible or liable for
special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of
whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
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 make loans to, accept deposits from, perform
services for or otherwise deal with any Issuer or any Guarantor, or any
Affiliates thereof, with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. The Trustee, however, shall be
subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee's Disclaimer.
The Trustee does not make any representation as to the validity or
adequacy of this Indenture or the Notes, and the Trustee shall not be
accountable for the Issuers' use of the proceeds from the sale of Notes or any
money paid to the Issuers pursuant to the terms of this Indenture or be
responsible for any statement in the Notes other than its certificate of
authentication.
Section 7.05 Notice of Defaults.
If a Default occurs and is continuing and if it is known to a
Responsible Officer of the Trustee, the Trustee shall mail to each holder notice
of the Default within 60 days after the Trustee first has knowledge of such
Default. Except in the case of a Default in payment of principal of, or premium,
if any, or interest on any Note, the Trustee may withhold the notice if and so
long as the executive committee or any trust committee of the board of directors
of the Trustee and/or its Responsible Officers in good faith determine(s) that
withholding the notice is in the interests of the holders.
Section 7.06 Reports by Trustee to Holders.
If required by TIA ss. 313(a), within 60 days after May 15 of any
year, commencing the May 15 following the date of this Indenture, the Trustee
shall mail to each holder a brief report dated as of such May 15 that complies
with TIA ss. 313(a). The Trustee also shall comply with TIA ss. 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA ss. 313 (c)
and TIA ss. 313(d).
Reports pursuant to this Section 7.06 shall be transmitted by mail:
(a) to all registered holders of Notes, as the names and addresses of
such holders appear on the Registrar's books; and
(b) to such holder of Notes as have, within the two years preceding
such transmission, filed their names and addresses with the Trustee for that
purpose.
A copy of each report at the time of its mailing to holders shall be
filed with the SEC to the extent the SEC will accept such filing.
Section 7.07 Compensation and Indemnity.
The Company and the Guarantors shall pay to the Trustee from time to
time such compensation as shall be agreed in writing between the Company and the
Trustee for its services hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust). The Company and the Guarantors shall also reimburse the Trustee upon
request for all reasonable disbursements, expenses and advances incurred or made
by the Trustee in connection with its duties under this Indenture, including the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Company and the Guarantors, jointly and severally, shall indemnify
the Trustee and any predecessor Trustee and their respective officers,
employees, directors and agents (each an "Indemnified Party") for, and hold them
harmless against, any and all loss, damage, claim, liability or reasonable
expense, including taxes (other than taxes based on the income of the Trustee)
incurred, arising out of or in connection with this Indenture, including in
connection with the acceptance or administration of the trusts and the
performance of their duties under this Indenture, including the reasonable costs
and expenses of defending themselves against any claim or liability in
connection with enforcement of this provision or the exercise or performance of
any of their powers or duties hereunder or thereunder (including, without
limitation, settlement costs). The Trustee shall notify the Company and the
Guarantors in writing promptly of any claim asserted against the Trustee of
which a Responsible Officer has received a written notice for which it may seek
indemnity. However, the failure by the Trustee to so notify the Company shall
not relieve the Company of its obligations hereunder except to the extent the
Company is prejudiced thereby.
Notwithstanding the foregoing, the Company and the Guarantors need not
reimburse the Trustee for any expense or indemnify it against any loss or
liability incurred by the Trustee through its own negligence or willful
misconduct.
As security for the performance of the obligations of the Company and
the Guarantors under this Section 7.07, the Trustee shall have a lien prior to
the Notes upon all property and funds held or collected by the Trustee as such,
except funds paid by the Issuer or any Guarantor and held in trust to pay
principal of and interest on particular Notes for the benefit of the holders of
particular Notes under this Indenture. The Trustee shall be entitled to file a
proof of claim in any bankruptcy proceeding as a secured creditor for any
indemnification costs and for its reasonable compensation, fees and expenses
under this Section 7.07.
In addition and without prejudice to the rights provided to the
Trustee under any of the provisions of this Indenture, when the Trustee incurs
expenses or renders services in connection with an Event of Default specified in
Section 6.01(7) or Section 6.01(8), the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any applicable
Bankruptcy Law or comparable expenses in the case of an Event of Default
specified in Section 6.01(8).
The Company's obligations under this Section 7.07 and the lien
referred to in this Section 7.07 shall survive the resignation or removal of the
Trustee, the satisfaction and discharge of this Indenture and/or the termination
of this Indenture for any reason.
"Trustee" for purposes of this Section 7.07 shall include any
co-trustee, separate trustee, and any predecessor Trustee and the Trustee in
each of its capacities hereunder and to each agent, custodian and other Person
employed to act hereunder; provided, however, that the negligence, bad faith or
willful misconduct of any Trustee, co-trustee, separate trustee, or any such
agent, custodian or other Person hereunder shall not affect the rights of any
other Trustee or any such other agent, custodian or other Person hereunder.
Section 7.08 Replacement of Trustee.
The Trustee may resign by so notifying the Company and the Guarantors
in writing. The holders of a majority in principal amount of the outstanding
Notes may remove the Trustee by notifying the removed Trustee in writing and may
appoint a successor Trustee with the Company's written consent, which consent
shall not be unreasonably withheld. The Company may remove the Trustee at its
election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property;
(4) the Trustee otherwise becomes incapable of acting; or
(5) a successor corporation becomes successor Trustee pursuant to
Section 7.09 below.
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.
If a successor Trustee does not take office within 30 days after such
retiring Trustee resigns or is removed, the retiring Trustee (at the expense of
the Company), 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.
If the Trustee fails to comply with Section 7.10 hereof, any holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following
such delivery, the retiring Trustee shall, subject to its rights, including its
lien, under Section 7.07 hereof and payment of its charges hereunder, transfer
all property held by it as Trustee to its successor, the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. A
successor Trustee shall mail notice of its succession to each holder.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
lien and the Company's obligations under Section 7.07 hereof shall continue for
the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Consolidation, Merger or Conversion.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
Person, subject to Section 7.10 hereof, the successor corporation without any
further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee that satisfies the
requirements of TIA ss. 310(a)(1) and (2) in every respect. The Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA ss. 310(b), including the provision in ss. 310(b)(1).
If the Trustee has or shall acquire a conflicting interest within the
meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall
eliminate such interest within 90 days, apply to the SEC for permission to
continue as trustee or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture. To the
extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture or under
any other indenture or indentures under which other securities, or certificates
of interest or participation in other securities, of the Issuers or any
Guarantor are outstanding. Nothing herein shall prevent the Trustee from filing
with the SEC the application referred to in the second to last paragraph of
Section 310(b) of the Trust Indenture Act.
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311 (b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
Section 7.12 Paying Agents.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 7.12:
(A) that it will hold all sums held by it as agent for the payment of
principal of, premium, if any, or interest on, the Notes (whether such sums
have been paid to it by the Company or by any obligor on the Notes) in
trust for the benefit of holders of the Notes or the Trustee;
(B) that it will at any time during the continuance of any Event of
Default, upon written request from the Trustee, deliver to the Trustee all
sums so held in trust by it together with a full accounting thereof; and
(C) that it will give the Trustee written notice within three (3)
Business Days of any failure of the Company (or by any obligor on the
Notes) in the payment of any installment of the principal of, premium, if
any, or interest on, the Notes when the same shall be due and payable.
ARTICLE VIII
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01 Without Consent of Holders.
The Company, Finance Co. and the Guarantors, when authorized by a
Board Resolution of each of them and delivered to the Trustee, and the Trustee
may amend or supplement this Indenture or the Notes or take any of the actions
below without notice to or consent of any holder:
(1) to cure any ambiguity, manifest error, omission, defect, mistake
or inconsistency or, in the case of any provision or covenant herein (or
any portion thereof) that is identical to the indenture, dated as of March
30, 2006, to conform this Indenture to the "Description of Notes" section
in the Offering Memorandum, dated March 26, 2006, of the Issuers relating
to the offering of the 14% Senior Secured Notes; (with such changes to
reflect the fact that the Notes are unsecured, and to reflect the potential
issuance of the Payment-in-Kind Notes).
(2) to provide for the assumption by a successor corporation of the
obligations of the Issuers or any Guarantor under this Indenture;
(3) to provide for uncertificated Notes in addition to or in place of
certificated Notes (provided that the uncertificated Notes are issued in
registered form for purposes of Section 163(f) of the Code, or in a manner
such that the uncertificated Notes are described in Section 163(f)(2)(B) of
the Code);
(4) to add Guarantees with respect to the Notes, including any
subsidiary guarantees;
(5) to add to the covenants of the Company or any of the Restricted
Entities for the benefit of the holders of the Notes or to surrender any
right or power conferred upon the Company or any of the Restricted
Entities;
(6) to make any change that does not materially adversely affect the
rights, taken as a whole, of any holder of the Notes;
(7) to comply with any requirement of the SEC in connection with the
qualification of this Indenture under the Trust Indenture Act and to
provide for a successor Trustee;
(8) to make any amendment to the provisions of this Indenture relating
to the transfer, exchange and legending of Notes; provided, however, that
(a) compliance with this Indenture as so amended would not result in Notes
being transferred in violation of the Securities Act or any other
applicable securities law and (b) such amendment does not materially and
adversely affect the rights of holders to transfer Notes;
(9) to confirm and evidence the release, termination or discharge of
any Guarantee or Lien with respect to or securing the Notes when such
release, termination or discharge is provided for under this Indenture and
to release a Guarantor from its obligations under its Guarantee or this
Indenture in accordance with the applicable provisions of this Indenture;
or
(10) to make any amendments to the provisions of this Indenture
relating to the issuance of the Notes in the form of Definitive Notes
and/or in the form of Global Notes or such other amendments as may be
necessary to register the Notes in the name of the Depository or its
successor or nominee.
Section 8.02 With Consent of Holders.
Subject to Section 6.04, the Company, Finance Co., the Trustee and the
Guarantors, with the consent of the registered holders of a majority in
aggregate principal amount of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange offer for the Notes), may
amend this Indenture and may waive any past default or compliance with any
provisions. Without the consent of each holder, however, an amendment,
supplement or waiver, including a waiver pursuant to Section 6.04 may not:
(1) reduce the amount of Notes whose holders must consent to an
amendment;
(2) reduce the rate of or extend the time for payment of interest on
any Note;
(3) reduce the principal of or change the Stated Maturity of any Note;
(4) reduce the amount payable upon the redemption of any Note or make
earlier the time at which any Note may be redeemed under Article 3 hereto
or paragraph 5 of the Notes;
(5) make any Note payable in money other than that stated in the Note;
(6) impair the right of any holder of the Notes to receive payment of
principal of and interest on such holder's Notes on or after the due dates
therefor or to institute suit for the enforcement of any payment on or with
respect to such holder's Notes;
(7) make any change in the amendment provisions which require each
holder's consent or in the waiver provisions;
(8) make any change in the ranking or priority of any Note that would
adversely affect the Noteholders; or
(9) release any Guarantor from its Guarantee that is not otherwise
permitted by this Indenture.
After an amendment, supplement or waiver under this Section 8.02 or
Section 8.01 becomes effective, the Company shall mail to the holders notice
briefly describing the amendment, supplement or waiver; provided, however, the
failure to give such notice to all holders of the Notes, or any defect therein,
will not impair or affect the validity of the amendment, supplement or waiver.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
receipt by the Trustee of evidence reasonably satisfactory to the Trustee of the
consent of the holders as aforesaid and upon receipt by the Trustee of the
documents described above or in Section 8.05 hereof, the Trustee shall join with
the Issuers and the Guarantors in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the holders on such record date,
or their duly designated proxies, and only such Persons shall be entitled to
consent to such supplemental indenture, whether or not such holders remain
holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any holder be
canceled and of no further effect.
It shall not be necessary for the consent of the holders under this
Section 8.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
Section 8.03 Revocation and Effect of Consents.
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a holder of a Note is a continuing consent
conclusive and binding upon such holder and every subsequent holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such holder or subsequent holder, however, may revoke
the consent as to its Note or portion of a Note, if the Trustee receives the
notice of revocation, before the date the amendment, supplement, waiver or other
action becomes effective.
Subject to the approval requirements of Section 8.02, after an
amendment, supplement, waiver or other action becomes effective, it shall bind
every holder. In the case of any amendment, supplement or waiver specified in
clauses (1) through (9) of the first paragraph of Section 8.02, the amendment,
supplement, waiver or other action shall bind each holder of a Note who has
consented to it and every subsequent holder of a Note or portion of a Note that
evidences the same debt as the consenting holder's Note.
Section 8.04 Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a Note,
the Trustee may request the holder of the Note to deliver it to the Trustee. In
such case, the Trustee shall place an appropriate notation on the Note about the
changed terms and return it to the holder. Alternatively, if the Company or the
Trustee so determines, the Issuers in exchange for the Note shall issue and the
Trustee shall authenticate a new security that reflects the changed terms.
Failure to make the appropriate notation or issue a new Note shall not affect
the validity and effect of such amendment, supplement or waiver.
Section 8.05 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 8 if the amendment, supplement or waiver does not
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing or refusing to sign such
amendment, supplement or waiver the Trustee shall be provided with and, subject
to Section 7.01 hereof, shall be fully protected in relying upon an Officer's
Certificate and an Opinion of Counsel stating that such amendment, supplement or
waiver is authorized or permitted by this Indenture. Neither Issuer nor any
Guarantor may sign an amendment or supplement until the Board of Directors, the
Board of Directors of Finance Co. or the Board of Directors or Board of Managers
of such Guarantor, as appropriate, approves it.
ARTICLE IX
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01 Discharge of Indenture.
The Indenture will be discharged and will cease to be of further
effect (except as to rights of registration of transfer or exchange of Notes
which shall survive until all Notes have been canceled) as to all outstanding
Notes when either
(i) all Notes that have been authenticated and delivered (except lost,
stolen or destroyed Notes which have been replaced or paid and any such
Notes for the payment of which money has been deposited in trust or
segregated and held in trust by the Issuers and thereafter repaid to the
Issuers or discharged from this trust) have been delivered to the Trustee
for cancellation, or
(ii) the following conditions are met:
(A) all Notes not delivered to the Trustee for cancellation otherwise
(i) have become due and payable, (ii) will become due and payable, or may
be called for redemption, within one year or (iii) have been called for
redemption pursuant to paragraph 5 of the Notes and, in any case, the
Issuers have irrevocably deposited or caused to be deposited with the
Trustee as trust funds, in trust solely for the benefit of the holders of
outstanding Notes, U.S. legal tender, U.S. Government Obligations or a
combination thereof, in such amounts as will be sufficient (without
consideration of any reinvestment of interest) to pay and discharge the
entire Debt (including all principal and accrued interest) on any Notes not
theretofore delivered to the Trustee for cancellation,
(B) the Issuers have paid all sums payable with respect to the Notes,
(C) the Issuers have delivered irrevocable instructions to the Trustee
to apply the deposited money toward the payment of the Notes or on the date
of redemption, as the case may be, and
(D) the Company has delivered an Officer's Certificate and an Opinion
of Counsel to the Trustee stating that the conditions to satisfaction and
discharge of this Indenture set forth above have been complied with.
After such delivery the Trustee upon request shall acknowledge in
writing the discharge of the Issuers' and the Guarantors' obligations under the
Notes, the Guarantees and this Indenture except for those surviving obligations
specified below.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuers in Sections 7.07, 9.05 and 9.06 hereof shall survive
such satisfaction and discharge.
Section 9.02 Legal Defeasance.
The Issuers may at their option, by Board Resolution delivered to the
Trustee, be discharged from their obligations with respect to the Notes and the
Guarantors discharged from their obligations under the Guarantees on the date
the conditions set forth in Section 9.04 below are satisfied (hereinafter,
"Legal Defeasance"). For this purpose, such Legal Defeasance means that the
Issuers shall be deemed to have paid and discharged the entire indebtedness
represented by the Notes and to have satisfied all its other obligations under
such Notes and this Indenture insofar as such Notes are concerned (and the
Trustee, at the expense of the Issuers, shall, subject to Section 9.06 hereof,
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (A) the
rights of holders of outstanding Notes to receive solely from the trust funds
described in Section 9.04 hereof and as more fully set forth in such Section,
payments in respect of the principal of, premium, if any, and interest on such
Notes when such payments are due, (B) the Issuers' obligations with respect to
the Notes under Sections 2.1 through 2.10 hereof, Section 2.13 hereof and
Section 4.17 hereof, (C) the rights, powers, trusts, duties, and immunities of
the Trustee hereunder (including claims of, or payments to, the Trustee under or
pursuant to Section 7.07 hereof) and (D) this Article 9. If the Issuers
exercises their Legal Defeasance option, payment of the Notes may not be
accelerated because of an Event of Default with respect thereto and each
Guarantor will be released from all of its obligations under its Guarantee.
Subject to compliance with this Article 9, the Issuers may exercise their option
under this Section 9.02 with respect to the Notes notwithstanding the prior
exercise of its option under Section 9.03 below with respect to the Notes.
Section 9.03 Covenant Defeasance.
At the option of the Company, pursuant to a Board Resolution delivered
to the Trustee, the Issuers and the Guarantors shall be released from (A) their
respective obligations under Sections 4.02, 4.04 through 4.14, inclusive, 4.16
and 4.18 through 4.21, inclusive, (B) the operation of Sections 6.01(5), (6),
(7) and (8) (only as such clauses (7) and (8) apply to Significant Subsidiaries)
and (9), and (C) the Company's obligations under Section 5.01(a)(3) with respect
to the outstanding Notes on and after the date the conditions set forth in
Section 9.04 hereof are satisfied (hereinafter, "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that the Issuers and the Guarantors may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section or portion
thereof, whether directly or indirectly by reason of any reference elsewhere
herein to any such specified section or portion thereof or by reason of any
reference in any such specified Section or portion thereof to any other
provision herein or in any other document, but the remainder of this Indenture
and the Notes shall be unaffected thereby. If the Company exercises its Covenant
Defeasance option, each Guarantor will be released from all its obligations
under its Guarantee.
Section 9.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 9.02
or Section 9.03 hereof to the outstanding Notes:
(1) the Issuers shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.10 hereof who shall agree to comply with the provisions of
this Article 9 applicable to it) as funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the holders of the Notes, (A) money in
an amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than the due date of any payment, money
in an amount sufficient, in the opinion of a firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, the principal of,
premium, if any, and accrued interest on the outstanding Notes at the
maturity date of such principal, premium, if any, or interest, or on dates
for payment and redemption of such principal, premium, if any, and interest
selected in accordance with the terms of this Indenture and of the Notes,
without reinvestment on the deposited U.S. Government Obligations and
without reinvestment of any deposited money;
(2) no Event of Default or Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit or after giving
effect to such deposit, or shall have occurred and be continuing at any
time during the period ending on the 123rd day after the date of such
deposit or, if longer, ending on the day following the expiration of the
longest preference period under any Bankruptcy Law applicable to the
Issuers in respect of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period);
(3) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute default under any other agreement or
instrument to which the Issuers is a party or by which it is bound;
(4) in the case of an election under Section 9.02 above, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling to the effect that or (ii) there has been a change
in any applicable Federal income tax law with the effect that, and such
opinion shall confirm that, the holders of the outstanding Notes or persons
in their positions will not recognize income, gain or loss for Federal
income tax purposes as a result of such Legal Defeasance and will be
subject to Federal income tax on the same amounts, in the same manner, and
at the same times as would have been the case if such Legal Defeasance had
not occurred;
(5) in the case of an election under Section 9.03 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the holders of the outstanding Notes will not recognize income, gain
or loss for Federal income tax purposes as a result of such Covenant
Defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred;
(6) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance under
Section 9.02 above or the Covenant Defeasance under Section 9.03 hereof (as
the case may be) have been complied with; and
(7) the Company shall have paid or duly provided for payment under
terms mutually satisfactory to the Company and the Trustee all amounts then
due to the Trustee pursuant to Section 7.07 hereof.
Section 9.05 Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.04 hereof in respect
of the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent as the Trustee may determine, to the
holders of such Notes, of all sums due and to become due thereon in respect of
principal, premium, if any, and accrued interest, but such money need not be
segregated from other funds except to the extent required by law.
The Issuers and the Guarantors shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 9.04 hereof or the
principal, premium, if any, and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the holders
of the outstanding Notes.
Anything in this Article 9 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 9.04 hereof which, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 9.06 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 9.01, 9.02 or 9.03 hereof 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 Issuers' and each Guarantor's obligations under this
Indenture, the Notes and the Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to this Article 9 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 9.01 hereof; provided, however, that if
the Issuers or the Guarantors have made any payment of principal of, premium, if
any, or accrued interest on any Notes because of the reinstatement of their
obligations, the Issuers or the Guarantors, as the case may be, 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.
Section 9.07 Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee, or if sufficient
moneys have been deposited pursuant to Section 9.01 hereof, to the Issuers (or,
if such moneys had been deposited by the Guarantors, to such Guarantors), and
thereupon such Paying Agent shall be released from all further liability with
respect to such moneys.
Section 9.08 Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or then held
by the Issuers or the Guarantors in trust for the payment of the principal of or
premium, if any, or interest on any Note that are not applied but remain
unclaimed by the holder of such Note for two years after the date upon which the
principal of, or premium, if any, or interest on such Note shall have
respectively become due and payable shall be repaid to the Company (or, if
appropriate, Finance Co. or the Guarantors) upon Company Request, or if such
moneys are then held by the Issuers or the Guarantors in trust, such moneys
shall be released from such trust; and the holder of such Note entitled to
receive such payment shall thereafter, as an unsecured general creditor, look
only to the Issuers and the Guarantors for the payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided, however, that the Trustee or any such Paying
Agent, before being required to make any such repayment, may, at the expense of
the Company and the Guarantors, either mail to each holder affected, at the
address shown in the register of the Notes maintained by the Registrar pursuant
to Section 2.03 hereof, or cause to be published once a week for two successive
weeks, in a newspaper published in the English language, customarily published
each Business Day and of general circulation in The City of New York, New York,
a notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing or
publication, any unclaimed balance of such moneys then remaining will be repaid
to the Company. After payment to the Company, Finance Co. or the Guarantors or
the release of any money held in trust by the Company, Finance Co. or any
Guarantors, as the case may be, holders entitled to the money must look only to
the Company and the Guarantors for payment as general creditors unless
applicable abandoned property law designates another Person.
ARTICLE X
GUARANTEE OF SECURITIES
Section 10.01 Guarantee.
Subject to the provisions of this Article 10, each Guarantor hereby
jointly and severally unconditionally guarantees to each holder and to the
Trustee, on behalf of the holders, (i) the due and punctual payment of the
principal, and, premium, if any, and interest on the Notes 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
premium, if any, and interest on the Notes, including PIK Interest, to the
extent lawful, and the due and punctual performance of all other Obligations of
the Issuers to the holders or the Trustee all in accordance with the terms of
this Indenture, and (ii) in the case of any extension of time of payment or
renewal of the 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. Each
Guarantor hereby agrees that its obligations hereunder shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any such Note or this Indenture, any failure
to enforce the provisions of any such Note or this Indenture, any waiver,
modification or indulgence granted to the Issuers with respect thereto by the
holder of such Note or the Trustee, or any other circumstances which may
otherwise constitute a legal or equitable discharge of a surety or such
Guarantor.
Each Guarantor hereby waives diligence, presentment, filing of claims
with a court in the event of merger or bankruptcy of the Issuers, any right to
require a proceeding first against the Issuers, protest or notice with respect
to any such Note or the Indebtedness 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, premium if any,
and interest thereon and as provided in Section 9.01 hereof. Each Guarantor
further agrees that, as between such Guarantor, on the one hand, and the holders
and the Trustee, on the other hand, (i) the maturity of the Obligations
guaranteed hereby may be accelerated as provided in Article 6 hereof for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (ii) in the event of any declaration of acceleration of
such Obligations as provided in Article 6 hereof, such Obligations (whether or
not due and payable) shall forthwith become due and payable by each Guarantor
for the purpose of this Guarantee. In addition, without limiting the foregoing
provisions, upon the effectiveness of an acceleration under Article 6 hereof,
the Trustee shall promptly make a demand for payment on all Obligations under
the Guarantee provided for in this Article 10 and not discharged.
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 Execution and Delivery of Guarantees.
To evidence the Guarantee set forth in this Article 10, each Guarantor
hereby agrees that a notation of such Guarantee may be placed on each Note
authenticated and made available for delivery by the Trustee and that this
Guarantee shall be executed on behalf of each Guarantor by the manual or
facsimile signature of an Officer of each Guarantor.
Each Guarantor hereby agrees that the Guarantee set forth in Section
10.01 shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on the Guarantee no
longer holds that office at the time the Trustee authenticates the Note on which
the Guarantee is endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of each Guarantor.
Section 10.03 Limitation of Guarantee.
The obligations of each Guarantor pursuant to Section 10.01 are
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee hereunder
or pursuant to its contribution obligations under this Indenture, result in the
obligations of such Guarantor under the Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state or provincial law. Each
Guarantor that makes a payment or distribution under a Guarantee shall be
entitled to a contribution from each other Guarantor and the Company in a pro
rata amount based on the proportion that the net worth of the Company or the
relevant Guarantor represents relative to the aggregate net worth of the Company
and all of the Guarantors combined.
Section 10.04 Additional Guarantors.
Each of the Issuers covenants and agrees that it will cause any Person
which becomes obligated to guarantee the Notes, pursuant to the terms of Section
4.12 hereof, to execute a supplemental indenture pursuant to which such
Guarantor shall guarantee the obligations of the Company under this Indenture
with respect to the Notes in accordance with this Article 10 with the same
effect and to the same extent as if such Person had been named herein as a
Guarantor.
Section 10.05 Release of Guarantor.
A Guarantor shall be released from all of its obligations under its
Guarantee hereunder upon:
(i) the sale, disposition or other transfer (including through merger,
amalgamation or consolidation) of the Capital Stock (including any sale,
disposition or other transfer following which an applicable Guarantor is no
longer a Restricted Entity), or all or substantially all the assets, of the
applicable Guarantor if such sale, disposition or other transfer is made in
compliance with this Indenture;
(ii) the Issuers designating a Guarantor to be an Unrestricted Entity
in accordance with Section 4.08 and the definition of "Unrestricted
Entity"; or
(iii) the Issuers' exercise of their legal defeasance option or
covenant defeasance option set forth in Section 9.02 and Section 9.03, or
if the Issuers' obligations under the Indenture are discharged in
accordance with the terms of the Indenture;
and in each such case, the Guarantor delivering to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with.
Notwithstanding the foregoing, upon designation of a Restricted
Subsidiary as an Unrestricted Entity, such Restricted Subsidiary shall, by
execution and delivery of a supplemental indenture, be released from any
Guarantee previously made by such Restricted Subsidiary.
Section 10.06 Waiver of Subrogation.
Until this Indenture is discharged and all of the Notes are discharged
and paid in full, each Guarantor hereby irrevocably waives and agrees not to
exercise any claim or other rights which it may now or hereafter acquire against
the Issuers that arise from the existence, payment, performance or enforcement
of the Issuers' obligations under the Notes or this Indenture and such
Guarantor's obligations under its Guarantee hereunder and this Indenture, in any
such instance including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, and any right to
participate in any claim or remedy of the holders against the Issuers, whether
or not such claim, remedy or right arises in equity, or under contract, statute
or common law, including, without limitation, the right to take or receive from
the Issuers, directly or indirectly, in cash or other property or by set-off or
in any other manner, payment or security on account of such claim or other
rights. If any amount shall be paid to any Guarantor in violation of the
preceding sentence and any amounts owing to the Trustee or the Noteholders under
the Notes, this Indenture, or any other document or instrument delivered under
or in connection with such agreements or instruments, shall not have been paid
in full, such amount shall have been deemed to have been paid to such Guarantor
for the benefit of, and held in trust for the benefit of, the Trustee or the
Noteholders and shall forthwith be paid to the Trustee for the benefit of itself
or such Noteholders to be credited and applied to the obligations in favor of
the Trustee or the Noteholders, as the case may be, whether matured or
unmatured, in accordance with the terms of this Indenture. Each Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the waiver set
forth in this Section 10.06 is knowingly made in contemplation of such benefits.
Section 10.07 Taxes.
All payments by the Canadian Guarantors under their Guarantees
hereunder will be made free and clear of and without deduction or withholding
for any and all Taxes, unless such Taxes are required by applicable law to be
deducted or withheld. If the Canadian Guarantors are required by applicable law
to deduct or withhold any such Taxes from or in respect of any amount payable
under its Guarantee (i) the amount payable shall be increased (and for greater
certainty, in the case of interest, the amount of interest shall be increased)
as may be necessary so that after making all required deductions or withholdings
(including deductions or withholdings applicable to any additional amounts paid
under this Section 10.07), the Noteholder receives an amount equal to the amount
they would have received if no such deduction or withholding had been made, (ii)
the Canadian Guarantors will make such deductions or withholdings, and (iii) the
Canadian Guarantors will immediately pay the full amount deducted or withheld to
the relevant Governmental Authority in accordance with applicable law.
ARTICLE XI
MISCELLANEOUS
Section 11.01 Notices.
Any notice or other communication shall be given in writing and
delivered in person, sent by facsimile, delivered by commercial courier service
or mailed by first-class mail, postage prepaid, addressed as follows:
If to the Issuers or any Guarantor:
SkyTerra LP
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000-0000
Attention: Chief Financial Officer and General Counsel
Facsimile: (000) 000-0000
If to the Trustee:
The Bank of New York Mellon
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, XX 00000
Attention: Corporate Trust Division -- Corporate Finance Unit
Facsimile: (000) 000-0000
Such notices or communications shall be effective when received and
shall be sufficiently given if so given within the time prescribed in this
Indenture.
The Issuers, the Guarantors or the Trustee by written notice to the
others may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a holder shall be mailed to him
by first-class mail, postage prepaid, at his address shown on the register kept
by the Registrar.
Failure to mail a notice or communication to a holder or any defect in
it shall not affect its sufficiency with respect to other holders. If a notice
or communication to a holder is mailed in the manner provided above, it shall be
deemed duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
Anything herein to the contrary notwithstanding, no notice or
communication given to the Trustee shall be effective unless and until it is
actually received by the Trustee at its Corporate Trust Office.
Section 11.02 Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA ss. 312(b) with other holders
with respect to their rights under this Indenture or the Notes. The Issuers, the
Guarantors, the Trustee, the Registrar and anyone else shall have the protection
of TIA ss. 312(c).
Section 11.03 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers or any Guarantor to the
Trustee to take any action under this Indenture, the Company shall furnish to
the Trustee:
(1) an Officer's Certificate (which shall include the statements set
forth in Section 11.04 below) 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
(2) except in the case of the issuance of the Notes on the Issue Date
or on a subsequent issue date as contemplated by the Securities Purchase
Agreement or the Payment-in-Kind Notes on any Interest Payment Date, an
Opinion of Counsel (which shall include the statements set forth in Section
11.04 below) stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Section 11.04 Statements Required in Certificate and Opinion.
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, it or he has made
such examination or investigation as is necessary to enable it or him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such covenant or condition has been complied with.
Section 11.05 When Treasury Notes Disregarded.
In determining whether the holders of the required aggregate principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Issuers, any Guarantor or any other obligor on the Notes shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which a Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded. Notes so owned which have been pledged in good faith
shall not be disregarded if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to the Notes and that the
pledgee is not an Issuer, a Guarantor or any other obligor upon the Notes.
Section 11.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or meetings of
holders. The Registrar and Paying Agent may make reasonable rules for their
functions.
Section 11.07 Legal Holidays.
If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
Section 11.08 Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES
HERETO, AND THE HOLDERS BY THEIR ACCEPTANCE OF THE NOTES, AGREES TO SUBMIT TO
THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
Section 11.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 11.10 No Recourse Against Others.
No director, officer, employee, incorporator, shareholder, parent
company, partner or controlling entities of the Company, Finance Co., the
Guarantors, the General Partner, the Parent or any of their respective
Subsidiaries (including, without limitation, 4371593 Canada Inc. and its
successors and assigns) will have any liability for any obligations of the
Issuers or any of their Subsidiaries under the Notes or the Indenture or for any
claim based on, in respect of, or by reason of such obligations or their
creation. Each holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver and release may not be effective to waive
liabilities under the U.S. Federal securities laws, and it is the view of the
SEC that such a waiver is against public policy.
Section 11.11 Successors.
All agreements of the Issuers and the Guarantors in this Indenture and
the Notes shall bind their respective successors. All agreements of the Trustee,
any additional trustee and any Paying Agents in this Indenture shall bind their
successors.
Section 11.12 Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 11.13 Table of Contents, Headings, etc.
The table of contents, cross-reference sheet 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 or provisions hereof.
Section 11.14 Separability.
Each provision of this Indenture shall be considered separable and if
for any reason any provision which is not essential to the effectuation of the
basic purpose of this Indenture or 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 11.15 Waiver of Jury Trial.
EACH OF THE ISSUERS, THE GUARANTORS, EACH HOLDER OF A NOTE BY ITS
ACCEPTANCE THEREOF AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTION CONTEMPLATED HEREBY.
Section 11.16 Force Majeure.
In no event shall the Trustee be responsible or liable for any failure
or delay in the performance of its obligations hereunder arising out of or
caused by, directly or indirectly, forces beyond its control, including, without
limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.
Section 11.17 Currency of Account; Conversion of Currency; Foreign Exchange
Restrictions.
(a) U.S. Dollars are the sole currency of account and payment for all
sums payable by the Company and the Guarantors under or in connection with the
Notes, the Guarantees of the Notes or this Indenture to the extent it relates to
the Notes, including damages related thereto. Any amount received or recovered
in a currency other than U.S. Dollars by a holder of Notes (whether as a result
of, or of the enforcement of, a judgment or order of a court of any
jurisdiction, in the winding-up or dissolution of the Issuers or otherwise) in
respect of any sum expressed to be due to it from the Issuers shall only
constitute a discharge to the Issuers to the extent of the U.S. Dollar amount,
which the recipient is able to purchase with the amount so received or recovered
in that other currency on the date of that receipt or recovery (or, if it is not
practicable to make that purchase on that date, on the first date on which it is
practicable to do so). If that U.S. Dollar amount is less than the U.S. Dollar
amount expressed to be due to the recipient under the Notes, the Issuers and the
Guarantors shall indemnify it against any loss sustained by it as a result as
set forth in Section 11.17(b). In any event, the Company and the Guarantors
shall indemnify the recipient against the cost of making any such purchase. For
the purposes of this Section 11.17, it will be sufficient for the holder of a
Note to certify in a satisfactory manner (indicating sources of information
used) that it would have suffered a loss had an actual purchase of U.S. Dollars
been made with the amount so received in that other currency on the date of
receipt or recovery (or, if a purchase of U.S. Dollars on such date had not been
practicable, on the first date on which it would have been practicable, it being
required that the need for a change of date be certified in the manner mentioned
above). The indemnities set forth in this Section 11.17 constitute separate and
independent obligations from other obligations of the Issuers and the
Guarantors, shall give rise to a separate and independent cause of action, shall
apply irrespective of any indulgence granted by any holder of the Notes and
shall continue in full force and effect despite any other judgment, order, claim
or proof for a liquidated amount in respect of any sum due under the Notes.
(b) The Issuers and the Guarantors, jointly and severally, covenant
and agree that the following provisions shall apply to conversion of currency in
the case of the Notes, the Guarantees and this Indenture:
(1) (A) If for the purpose of obtaining judgment in, or enforcing the
judgment of, any court in any country, it becomes necessary to convert into
a currency (the "Judgment Currency") an amount due in any other currency
(the "Base Currency"), then the conversion shall be made at the rate of
exchange prevailing on the Business Day before the day on which the
judgment is given or the order of enforcement is made, as the case may be
(unless a court shall otherwise determine).
(B) If there is a change in the rate of exchange prevailing between
the Business Day before the day on which the judgment is given or an order
of enforcement is made, as the case may be (or such other date as a court
shall determine), and the date of receipt of the amount due, the Issuers
and the Guarantors will pay such additional (or, as the case may be, such
lesser) amount, if any, as may be necessary so that the amount paid in the
Judgment Currency when converted at the rate of exchange prevailing on the
date of receipt will produce the amount in the Base Currency originally
due.
(2) In the event of the winding-up of the Issuers or any Guarantor at
any time while any amount or damages owing under the Notes, the Guarantees
and this Indenture, or any judgment or order rendered in respect thereof,
shall remain outstanding, the Issuers and the Guarantors shall indemnify
and hold the Noteholders and the Trustee harmless against any deficiency
arising or resulting from any variation in rates of exchange between (i)
the date as of which the Applicable Currency Equivalent of the amount due
or contingently due under the Notes, the Guarantees and this Indenture
(other than under this subsection (b)(2)) is calculated for the purposes of
such winding-up and (ii) the final date for the filing of proofs of claim
in such winding-up. For the purpose of this subsection (b)(2), the final
date for the filing of proofs of claim in the winding-up of the Issuers or
any Guarantor shall be the date fixed by the liquidator or otherwise in
accordance with the relevant provisions of applicable law as being the
latest practicable date as at which liabilities of the Issuers or such
Guarantor may be ascertained for such winding-up prior to payment by the
liquidator or otherwise in respect thereto.
(c) The obligations contained in subsections (a), (b)(1)(B) and (b)(2)
of this Section 11.17 shall constitute separate and independent obligations from
the other obligations of the Issuers and the Guarantors under this Indenture,
shall give rise to separate and independent causes of action against the Issuers
and the Guarantors, shall apply irrespective of any waiver or extension granted
by any Noteholder or the Trustee or either of them from time to time and shall
continue in full force and effect notwithstanding any judgment or order or the
filing of any proof of claim in the winding-up of the Issuers or any Guarantor
for a liquidated sum in respect of amounts due hereunder (other than under
subsection (b)(2) above) or under any such judgment or order. Any such
deficiency as aforesaid shall be deemed to constitute a loss suffered by the
Noteholders or the Trustee, as the case may be, and no proof or evidence of any
actual loss shall be required by the Issuers or any Guarantor or the liquidator
or otherwise or any of them. In the case of subsection (b)(2) above, the amount
of such deficiency shall not be deemed to be reduced by any variation in rates
of exchange occurring between the said final date and the date of any
liquidating distribution.
(d) The term "rate(s) of exchange" shall mean the rate of exchange
quoted by Reuters at 10:00 a.m. (New York time) for spot purchases of the Base
Currency with the Judgment Currency other than the Base Currency referred to in
subsections (b)(1) and (b)(2) above and includes any premiums and costs of
exchange payable.
Section 11.18 Agent for Service.
By the execution and delivery of this Indenture, each Canadian
Guarantor (i) acknowledges that it has irrevocably designated and appointed CT
Corporation System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (and any
successor entity) as its authorized agent upon which process may be served in
any suit or proceeding arising out of or relating to this Indenture, the Notes
and the Guarantees that may be instituted in any Federal or state court in the
State of New York, The City of New York, the Borough of Manhattan or brought
under Federal or state securities laws, and acknowledges that CT Corporation
System has accepted such designation, (ii) irrevocably submits to the
jurisdiction of any such court in any such suit or proceeding and (iii) agrees
that service of process upon CT Corporation System and written notice of said
service to the Canadian Guarantors in accordance with this Section 11.18 shall
be deemed in every respect effective service of process upon the Canadian
Guarantors, if any, in any such suit or proceeding. Each Canadian Guarantor
further agrees to take any and all such 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 CT Corporation System 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; provided, however, that any Canadian Guarantor
may, by written notice to the Trustee, designate such additional or alternative
agent for service of process under this Section 11.18 that (i) maintains an
office located in the Borough of Manhattan, The City of New York, the State of
New York, (ii) is a corporate service company which acts as agent for service of
process for other Persons in the ordinary course of its business and (iii)
agrees to act as agent for service of process in accordance with this Section
11.18. Such notice shall identify the name of such agent for process and the
address of such agent for process in the Borough of Manhattan, The City of New
York, the State of New York.
Section 11.19 Interest Act (Canada).
The Canadian Guarantors acknowledge that certain of the rates of
interest applicable to their obligations may be computed on the basis of a year
of 360 days or 365 days, as the case may be, and be paid for the actual number
of days elapsed. For purposes of the Interest Act (Canada), whenever any
interest is calculated using a rate based on a year of 360 days or 365 days, as
the case may be, such rate determined pursuant to such calculation, when
expressed as an annual rate, is equivalent to (i) the applicable rate based on a
year of 360 days or 365 days, as the case may be, (ii) multiplied by the actual
number of days in the calendar year in respect of which such interest is
payable, and (iii) divided by 360 or 365, as the case may be.
Section 11.20 Joint and Several Obligations.
All of the obligations of the Issuers under the Notes shall be joint
and several obligations of the Issuers.
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date and year first written above.
SKYTERRA LP
(a Delaware limited partnership) by its general
partner, SkyTerra GP, Inc.
By:
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President and Chief
Financial Officer
SKYTERRA FINANCE CO.
(a Delaware corporation)
By:
------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President and Chief
Financial Officer
ATC TECHNOLOGIES, LLC
(a Delaware limited liability company)
By:
------------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President, General Counsel
and Secretary
SKYTERRA SUBSIDIARY LLC
(a Delaware limited liability company)
By:
------------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President, General Counsel
and Secretary
SKYTERRA INTERNATIONAL, LLC
(a Delaware limited liability company)
By:
------------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President, General Counsel
and Secretary
Signature Page to Indenture
SKYTERRA INC. OF VIRGINIA
(a Virginia corporation)
By:
------------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President, General Counsel
and Secretary
SKYTERRA CORP.
(a Nova Scotia unlimited liability company)
By:
------------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President, General Counsel
and Secretary
Signature Page to Indenture
SKYTERRA HOLDINGS (CANADA) INC.
(an Ontario corporation)
By:
------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Secretary
SKYTERRA (CANADA) INC.
(an Ontario corporation)
By:
------------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President, Corporate Counsel and
Secretary
Signature Page to Indenture
THE BANK OF NEW YORK MELLON,
as Trustee
By:
------------------------------------------
Name:
Title:
Signature Page to Indenture
EXHIBIT A-1
FORM OF FACE OF CERTIFICATED NOTE
SKYTERRA LP
SKYTERRA FINANCE CO.
18.0% SENIOR NOTES DUE 2013
THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF OID, ISSUE DATE
AND YIELD TO MATURITY OF THIS NOTE MAY BE OBTAINED AT ANY TIME BEGINNING [ ] BY
WRITING TO: SKYTERRA LP OR SKYTERRA FINANCE CO., X/X XXXXXXXX XX, 00000
XXXXXXXXX XXXXXXXXX, XXXXXX, XXXXXXXX 00000, ATTENTION: CHIEF FINANCIAL OFFICER.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE SECURITIES ACT), AND ACCORDINGLY, THIS NOTE MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER
(1) REPRESENTS THAT:
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT); OR
(B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501 (a)(1), (2), (3), OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (OR
AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE THE FOREGOING) (AN
INSTITUTIONAL ACCREDITED INVESTOR); OR
(C) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT; AND
(2) AGREES THAT IT WILL NOT WITHIN THE TIME PERIOD REFERRED TO IN RULE
144(d) UNDER THE SECURITIES ACT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT:
(A) TO SKYTERRA LP, SKYTERRA FINANCE CO. 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 AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT;
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE);
(F) PURSUANT TO ANY AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT (PROVIDED THAT AS A CONDITION TO THE
REGISTRATION OF TRANSFER OF ANY NOTES OTHERWISE THAN AS DESCRIBED HEREIN,
THE COMPANY OR THE TRUSTEE MAY, IN CIRCUMSTANCES THAT ANY OF THEM DEEMS
APPROPRIATE, REQUIRE EVIDENCE AS TO COMPLIANCE WITH ANY SUCH EXEMPTION);
AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD
REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," AND "UNITED STATES" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
No.
US$ [o]
SKYTERRA LP
SKYTERRA FINANCE CO.
18.0% SENIOR NOTES DUE 2013
Certificated Note
SkyTerra LP, a Delaware limited partnership, and SkyTerra Finance Co., a
Delaware Corporation (the "Issuers"), for value received, hereby promise to pay
to [o] upon surrender hereof the principal sum of [o] UNITED STATES DOLLARS
(U.S. $ [o]) on July 1, 2013, or on such earlier date as the principal hereof
may become due in accordance with the provisions hereof.
Interest Rate: 18.0% per annum.
Interest Payment Dates: July 1 and January 1 of each year, commencing [ ].
Interest Record Dates: June 15 and December 15.
PIK Period: On or prior to January 1, 2011, interest on the
Notes will be payable semi-annually, at the
election of the Issuers, in cash, in the form of
Payment-in-Kind Notes in an amount reflecting the
applicable PIK Interest, or in combination of cash
and Payment-In-Kind Notes reflecting the
applicable PIK Interest. After January 1, 2011,
all payments of interest must be in cash for the
remainder of the term of the Notes.
Reference is hereby made to the further provisions set forth on the reverse
hereof. Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Note shall not be valid or obligatory until it shall have been duly
signed by the Trustee acting under the Indenture.
IN WITNESS WHEREOF, the Issuers have caused this Note to be signed
manually or by facsimile by their duly authorized officers.
SKYTERRA LP by its general partner, SkyTerra GP, Inc.
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
SKYTERRA FINANCE CO.
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
This is one of the Notes
referred to in the
within-mentioned Indenture:
Dated: [ ], [ ]
,
as Trustee
By:
----------------------------------
Authorized Signatory
EXHIBIT A-2
FORM OF FACE OF RESTRICTED GLOBAL NOTE
SKYTERRA LP
SKYTERRA FINANCE CO.
18.0% SENIOR NOTES DUE 2013
THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF OID, ISSUE DATE
AND YIELD TO MATURITY OF THIS NOTE MAY BE OBTAINED AT ANY TIME BEGINNING [],
2009 BY WRITING TO: SKYTERRA LP OR SKYTERRA FINANCE CO., X/X XXXXXXXX XX, 00000
XXXXXXXXX XXXXXXXXX, XXXXXX, XXXXXXXX 00000, ATTENTION: CHIEF FINANCIAL OFFICER.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, THIS NOTE MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER
(1) REPRESENTS THAT:
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT); OR
(B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501 (a)(1), (2), (3), OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (OR
AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE THE FOREGOING) (AN
"INSTITUTIONAL ACCREDITED INVESTOR"); OR
(C) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT; AND
(2) AGREES THAT IT WILL NOT WITHIN THE TIME PERIOD REFERRED TO IN RULE
144(d) UNDER THE SECURITIES ACT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT:
(A) TO SKYTERRA LP, SKYTERRA FINANCE CO. 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 AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT;
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE);
(F) PURSUANT TO ANY AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT (PROVIDED THAT AS A CONDITION TO THE
REGISTRATION OF TRANSFER OF ANY NOTES OTHERWISE THAN AS DESCRIBED HEREIN,
THE COMPANY OR THE TRUSTEE MAY, IN CIRCUMSTANCES THAT ANY OF THEM DEEMS
APPROPRIATE, REQUIRE EVIDENCE AS TO COMPLIANCE WITH ANY SUCH EXEMPTION);
AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD
REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," AND "UNITED STATES" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY (THE "DEPOSITORY"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.01(a) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.10 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
No. 1 CUSIP:
Common Code:
ISIN Number:
SKYTERRA LP
SKYTERRA FINANCE CO.
RESTRICTED GLOBAL NOTE
US$ [o]
SKYTERRA LP
SKYTERRA FINANCE CO.
18.0% SENIOR NOTES DUE 2013
Restricted Global Note
SkyTerra LP, a Delaware limited partnership, and SkyTerra Finance Co., a
Delaware corporation, (the "Issuers"), for value received, hereby promises to
pay to CEDE & CO., or registered assigns, upon surrender hereof the principal
sum of UNITED STATES DOLLARS (U.S. $ [o]) on July 1, 2013, or on such earlier
date as the principal hereof may become due in accordance with the provisions
hereof.
Interest Rate: 18.0% per annum.
Interest Payment Dates: July 1 and January 1 of each year, commencing [ ].
Interest Record Dates: June 15 and December 15.
PIK Period: On or prior to January 1, 2011, interest on the
Notes will be pay-able semi-annually, at the
election of the Issuers, in cash, in the form of
Payment-in-Kind Notes in an amount reflecting the
applicable PIK Interest, or in combination of cash
and Payment-In-Kind Notes reflecting the
applicable PIK Interest. After January 1, 2011,
all payments of interest must be in cash for the
remainder of the term of the Notes.
Reference is hereby made to the further provisions set forth on the reverse
hereof. Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Note shall not be valid or obligatory until it shall have been duly
signed by the Trustee acting under the Indenture.
IN WITNESS WHEREOF, the Issuers have caused this Note to be signed
manually or by facsimile by their duly authorized officers.
SKYTERRA LP by its general partner, SkyTerra GP, Inc.
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
SKYTERRA FINANCE CO.
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
This is one of the Notes
referred to in the
within-mentioned Indenture:
Dated: [ ], [ ]
,
as Trustee
By:
----------------------------------
Authorized Signatory
EXHIBIT A-3
FORM OF FACE OF REGULATION S GLOBAL NOTE
SKYTERRA LP
SKYTERRA FINANCE CO.
18.0% SENIOR NOTES DUE 2013
THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF OID, ISSUE DATE
AND YIELD TO MATURITY OF THIS NOTE MAY BE OBTAINED AT ANY TIME BEGINNING [],
2009 BY WRITING TO: SKYTERRA LP OR SKYTERRA FINANCE CO., X/X XXXXXXXX XX, 00000
XXXXXXXXX XXXXXXXXX, XXXXXX, XXXXXXXX 00000, ATTENTION: CHIEF FINANCIAL OFFICER.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, THIS NOTE MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER
(1) REPRESENTS THAT:
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT); OR
(B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501 (a)(1), (2), (3), OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (OR
AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE THE FOREGOING) (AN
"INSTITUTIONAL ACCREDITED INVESTOR"); OR
(C) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT; AND
(2) AGREES THAT IT WILL NOT WITHIN THE TIME PERIOD REFERRED TO IN RULE
144(k) UNDER THE SECURITIES ACT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT:
(A) TO SKYTERRA LP, SKYTERRA FINANCE CO. 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 AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT;
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE);
(F) PURSUANT TO ANY AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT (PROVIDED THAT AS A CONDITION TO THE
REGISTRATION OF TRANSFER OF ANY NOTES OTHERWISE THAN AS DESCRIBED HEREIN,
THE COMPANY OR THE TRUSTEE MAY, IN CIRCUMSTANCES THAT ANY OF THEM DEEMS
APPROPRIATE, REQUIRE EVIDENCE AS TO COMPLIANCE WITH ANY SUCH EXEMPTION);
AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD
REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," AND "UNITED STATES" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY (THE "DEPOSITORY"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.01(a) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.10 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
No. 2 CUSIP:
Common Code:
ISIN Number:
SKYTERRA LP
SKYTERRA FINANCE CO.
REGULATION S GLOBAL NOTE
US$ [o]
SKYTERRA LP
SKYTERRA FINANCE CO.
18.0% SENIOR NOTES DUE 2013
Regulation S Global Note
SkyTerra LP, a Delaware limited partnership, and SkyTerra Finance Co., a
Delaware corporation (the "Issuers"), for value received, hereby promises to pay
to CEDE & CO., or registered assigns, upon surrender hereof the principal sum of
[o] UNITED STATES DOLLARS (U.S. $ [o]) on July 1, 2013, or on such earlier date
as the principal hereof may become due in accordance with the provisions hereof.
Interest Rate: 18.0% per annum.
Interest Payment Dates: July 1 and January 1 of each year, commencing [ ].
Interest Record Dates: June 15 and December 15.
PIK Period: On or prior to January 1, 2011, interest on the
Notes will be pay-able semi-annually, at the
election of the Issuers, in cash, in the form of
Payment-in-Kind Notes in an amount reflecting the
applicable PIK Interest, or in combination of cash
and Payment-In-Kind Notes reflecting the
applicable PIK Interest. After January 1, 2011,
all payments of interest must be in cash for the
remainder of the term of the Notes.
Reference is hereby made to the further provisions set forth on the reverse
hereof. Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Note shall not be valid or obligatory until it shall have been duly
signed by the Trustee acting under the Indenture.
IN WITNESS WHEREOF, the Issuers have caused this Note to be signed
manually or by facsimile by their duly authorized officers.
SKYTERRA LP by its general partner, SkyTerra GP, Inc.
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
SKYTERRA FINANCE CO.
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
This is one of the Notes
referred to in the
within-mentioned Indenture:
Dated: [ ], [ ]
,
as Trustee
By:
----------------------------------
Authorized Signatory
EXHIBIT A-4
[Reverse of Note]
18.0% Senior Notes due 2013
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the Restricted Notes Legend, if applicable pursuant to the provisions of
the Indenture]
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. Interest. The Issuers jointly and severally promise to pay interest
on this Note at the rate of 18.0% per annum. For any interest period through
January 1, 2011, the Issuers may elect to pay interest on the Notes, at their
option, (a) in cash ("Cash Interest"), (b) by issuing new Notes
("Payment-in-Kind Notes") in an amount equal to the amount of PIK Interest for
the applicable interest period (rounded up to the nearest whole dollar) on the
applicable interest payment date, or (c) in a combination of Cash Interest and
Payment-in-Kind Notes. Payment of any Cash Interest on the relevant Interest
Payment Date shall be made to the holder of this Note on the relevant record
date. The Issuers shall elect the form of interest payment with respect to each
interest period by giving notice to the Trustee at least five Business Days
prior to the beginning of the applicable interest period. In the absence of such
an election, interest will be payable in Payment-in-Kind Notes. The first
interest payment shall be paid in the form of Payment-in-Kind Notes. After
January 1, 2011, the Issuers must pay all interest on the Notes entirely in the
form of cash.
The Issuers will pay interest semi-annually in arrears on July 1 and
January 1 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, an "Interest Payment Date"). Interest on the
Notes will accrue from the most recent Interest Payment Date to which interest
has been paid, as Cash Interest, Payment-in-Kind Notes or a combination thereof,
or, if no interest has been paid, from the date of issuance; provided that if
there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided further that the first Interest
Payment Date shall be [], 2009. Interest will be computed on the basis of a
360-day year of twelve 30-day months. The Issuers shall pay interest on overdue
principal at the rate borne by the Notes, and shall pay interest on overdue
installments of Cash Interest at the same rate to the extent lawful.
2. Method of Payment. The Issuers shall pay interest on the Notes to
the Persons who are registered holders at the close of business on the June 15
and December 15 (whether or not a Business Day) next preceding the Interest
Payment Date even if Notes are canceled after the record date and on or before
the Interest Payment Date. The holders must surrender Notes to a Paying Agent to
collect principal payments. The Issuers shall 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. Payments in
respect of the Notes represented by a Global Note (including principal, premium,
if any, and interest) shall be made by wire transfer of immediately available
funds to the accounts specified by the Depository. The Issuers will make all
payments in respect of a certificated Note (including principal, premium, if
any, and interest), at the office of each Paying Agent, except that, at the
option of the Issuers, payment of interest may be made by mailing a check to the
registered address of each holder thereof; provided, however, that payments on
the Notes may also be made by wire transfer to a U.S. dollar account maintained
by the payee with a bank in the United States if such holder elects payment by
wire transfer by giving written notice to the Trustee or a Paying Agent to such
effect designating such account no later than 10 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
3. Paying Agent and Registrar. Initially, The Bank of New York Mellon,
the Trustee under the Indenture, will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any holder.
Neither the Company nor any of its Subsidiaries or Affiliates may act as Paying
Agent but they may act as Registrar or co-registrar.
4. Indenture; Guarantees; Restrictive Covenants. The Issuers issued
the Notes under an Indenture dated as of [], 2009 (the "Indenture"), among the
Company, Finance Co., the Guarantors and the Trustee. The Notes are treated as a
single class of securities under the Indenture. The terms of this Note include
those stated in the Indenture to be applicable by reference to the Trust
Indenture Act of 1939 (15 U.S. Code xx.xx. 77aaa-77bbbb) as in effect on the
date of the Indenture. This Note is subject to all such terms, and the holder of
this Note is referred to the Indenture for a statement of them.
The Indenture imposes certain limitations on, among other things,
indebtedness, issuance and sale of capital stock of Restricted Entities,
restricted payments, liens, asset sales, transactions with affiliates, and
restrictions on distributions from Restricted Entities.
5. Optional Redemption.
After January 1, 2011, the Issuers are entitled to redeem all or, from
time to time, a portion of the Notes upon not less than 30 nor more than 60
days' notice, at the redemption prices (expressed in percentages of then
outstanding principal amount on the redemption date), plus accrued interest, if
any, to the redemption date (subject to the right of holders of record on the
relevant record date to receive interest due on the relevant interest payment
date), if redeemed during the 12-month period commencing on January 1 of the
years set forth below:
Period Redemption Price
------ ----------------
2011.................................. 109.000%
2012.................................. 104.500%
2013 and thereafter................... 100.000%
Prior to January 1, 2011, the Issuers are entitled on one or more
occasions to redeem Notes in an aggregate principal amount not to exceed 35% of
the originally issued aggregate principal amount of the Notes (including any
Payment-in-Kind Notes issued to the date of redemption) at a redemption price
(expressed as a percentage of then outstanding principal amount on the
redemption date) of 118.0%, plus accrued and unpaid interest thereon, if any, to
(but excluding) the redemption date (subject to the right of holders of record
on the relevant record date to receive interest due on the relevant interest
payment date), with the net cash proceeds from one or more Equity Offerings by
the Company or the Parent (to the extent the net proceeds thereof are
contributed to the equity capital of the Company (other than in the form of
Disqualified Stock) or are used to purchase Capital Stock of the Company (other
than Disqualified Stock)); provided, however, that
(1) at least 65% of the originally issued aggregate principal amount
of Notes remains outstanding immediately after the occurrence of each such
redemption (other than Notes held, directly or indirectly, by the Issuers
or its Affiliates); and
(2) each such redemption occurs within 180 days after the closing of
the related Equity Offering. The foregoing shall not impact the terms of
any Reimbursement Offer.
At any time prior to January 1, 2011, the Issuers may also redeem on
one or more occasions all or a portion of the Notes upon not less than 30 nor
more than 60 days' notice, at a redemption price equal to 100% of the then
outstanding principal amount of Notes redeemed plus the Applicable Premium
(calculated as of a date no more than three Business Days prior to the relevant
redemption notice) as of the date of redemption.
On and after any Redemption Date, if money sufficient to pay the
redemption price of and accrued interest on Notes called for redemption shall
have been made available in accordance with the terms of the Indenture, the
Notes called for redemption will cease to accrue interest and the only right of
the holders of such Notes will be to receive payment of the redemption price of
and, subject to the terms of the Indenture, accrued and unpaid interest on such
Notes to the redemption date.
"Applicable Premium" means, with respect to any Note on any redemption
date, the greater of:
(1) 1.0% of the then outstanding principal amount of the Note; and
(2) the excess of:
(a) the present value at such redemption date of the redemption
price of the Note at January 1, 2011, computed using a discount rate
equal to the Treasury Rate as of such redemption date plus 50 basis
points; over
(b) the then outstanding principal amount of the Note.
6. No Mandatory Redemption. The Company shall not be required to make
mandatory redemption payments with respect to the Notes.
7. Offers to Purchase. The Indenture requires that certain proceeds
from Asset Dispositions be used, subject to further limitations contained
therein, to make an offer to purchase certain amounts of Notes in accordance
with the procedures set forth in the Indenture. The Company may also be required
to make an offer to purchase Notes pursuant to Section 4.16 of the Indenture.
8. Denominations; Transfer; Exchange. The Notes are in registered
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000, or, in the case of Payment-in-Kind Notes, such other denominations as
may be required. A holder shall register the transfer or exchange of Notes in
accordance with the Indenture. The Registrar may require a holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
certain transfer taxes or similar governmental charges in connection therewith
as permitted by the Indenture. The Registrar need not register the transfer or
exchange of any Notes during a period beginning 15 days before the mailing of a
redemption notice for any Notes or portions thereof selected for redemption.
9. Persons Deemed Owners. The registered holder of this Note shall be
treated as the owner of it for all purposes.
10. Unclaimed Money. If money for the payment of principal, premium or
interest on any Note 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 money must look to the Company for payment as general creditors
unless an "abandoned property" law designates another person.
11. Amendment, Supplement and Waiver. Subject to certain exceptions,
the Indenture or the Notes may be modified, amended or supplemented by the
Company, Finance Co., the Guarantors and the Trustee with the consent of the
holders of at least a majority in principal amount of the Notes then outstanding
and any existing default or compliance with any provision may be waived in a
particular instance with the consent of the holders of a majority in principal
amount of the Notes then outstanding. Without the consent of holders, the
Company, Finance Co., the Guarantors and the Trustee may amend the Indenture for
certain specified purposes including providing for uncertificated Notes in
addition to or in place of certificated Notes, and curing any ambiguity,
omission, defect or inconsistency, or making any other change that does not
materially adversely affect the rights, taken as a whole, of any holder.
12. Successor Entity. When a successor entity assumes all the
obligations of its predecessors under the Notes and the Indenture and
immediately before and thereafter no Default exists and certain other conditions
are satisfied, the predecessor entity will be released from those obligations.
13. Defaults and Remedies. Events of Default are set forth in the
Indenture. If an Event of Default occurs and is continuing, the Trustee, by
notice to the Issuers, or the holders of not less than 25% in aggregate
principal amount of the Notes, by written notice to the Issuers and the Trustee,
may declare to be immediately due and payable the principal amount of all the
Notes then outstanding plus premium, if any, and accrued but unpaid interest to
the date of acceleration and such amounts shall become immediately due and
payable. In case an Event of Default specified in Section 6.01(7) or (8) with
respect to either Issuer occurs, such principal, premium, if any, and interest
with respect to all of the Notes shall be due and payable immediately without
any declaration or other act on the part of the Trustee or the holders of the
Notes. After any such acceleration but before a judgment or decree based on
acceleration is obtained by the Trustee, the holders of a majority in aggregate
principal amount of outstanding Notes (by notice to the Trustee) may rescind and
cancel such acceleration and its consequences if (i) all existing Events of
Default, other than the nonpayment of accelerated principal, premium, if any, or
interest that has become due solely because of the acceleration, have been cured
or waived, (ii) to the extent the payment of such interest is lawful, interest
(at the same rate specified in the Notes) on overdue installments of interest
and overdue outstanding principal amount, premium, if any, or interest, which
has become due otherwise than by such declaration of acceleration, has been
paid, (iii) the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee its expenses, disbursements and advances, (iv) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction and (v) in the event of the cure or waiver of a Default
or Event of Default described in Section 6.01(7) or (8), the Trustee has
received an Officer's Certificate and an Opinion of Counsel that such Default or
Event of Default has been cured or waived. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
14. Trustee Dealings with the Issuers. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Issuers, any Guarantor or their
Affiliates, and may otherwise deal with the Issuers, any Guarantor or their
Affiliates as if it were not Trustee.
15. No Recourse Against Others. No director, officer, employee,
incorporator, shareholder, parent company, partner or controlling entities of
the Company, Finance Co., the Guarantors, the General Partner, the Parent or any
of their respective Subsidiaries (including, without limitation, 4371593 Canada
Inc. and its successors and assigns) will have any liability for any obligations
of the Issuers or any of their Subsidiaries under this Note or the Indenture or
for any claim based on, in respect of, or by reason of such obligations or their
creation. The holder of this Note by accepting this Note waives and releases all
such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver and release may not be effective to waive
liabilities under the U.S. Federal securities laws, and it is the view of the
SEC that such a waiver is against public policy.
16. Defeasance and Covenant Defeasance. The Indenture contains
provisions for defeasance of the entire debt represented by the Notes and for
defeasance of certain covenants in the Indenture upon compliance by the Company
in each case with certain conditions set forth in the Indenture.
17. Abbreviations. Customary abbreviations may be used in the name of
a holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(Uniform Gifts to Minors Act).
18. CUSIP Numbers. The Company has caused CUSIP Numbers to be printed
on the Notes, if applicable, and has directed the Trustee to use CUSIP numbers
in notices of redemption as a convenience to holders of the Notes. 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.
19. Governing Law. THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THE INDENTURE OR THE NOTES.
20. Authentication. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
The Company will furnish to any holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
SkyTerra LP
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000-0000
Attention: Chief Financial Officer
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint______________________________________________________ to
transfer this Note on the books of the Company. The agent may substitute another
to act for him.
Date:____________
Your Signature:__________________________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee*:__________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10, 4.16, or 4.23 of the Indenture, check the appropriate
box below:
Section 4.10 |_| Section 4.16 |_| Section 4.23 |_|
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.10, 4.16, 4.18 or 4.23 of the Indenture, state the
aggregate principal amount you elect to have purchased:
$_______________
Date:____________
Your Signature:__________________________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee*:__________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
FORM OF NOTATION ON NOTE
RELATING TO GUARANTEE
Each Guarantor (a "Guarantor," which term includes any successor
Person under the Indenture) has unconditionally guaranteed, on a senior
unsecured basis, jointly and severally, to the extent set forth in the Indenture
and subject to the provisions of the Indenture, (a) the due and punctual payment
of the principal, premium if any, and interest on the Notes 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, premium,
if any, and interest on the Notes, to the extent lawful, and the due and
punctual performance of all other Obligations of the Company with respect to the
Notes to the holders or the Trustee, all in accordance with the terms of the
Notes and the Indenture, and (b) in the case of any extension of time for
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 obligations of each Guarantor to the holders and to the Trustee
pursuant to such Guarantee and the Indenture are expressly set forth in Article
10 of the Indenture and reference is hereby made to the Indenture for the
precise terms of such Guarantee.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which such Guarantee is noted
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized signatories.
ATC TECHNOLOGIES, LLC
(a Delaware limited liability company)
By:
------------------------------------------
Name:
Title:
SKYTERRA SUBSIDIARY LLC
(a Delaware limited liability company)
By:
------------------------------------------
Name:
Title:
SKYTERRA INTERNATIONAL, LLC
(a Delaware limited liability company)
By:
------------------------------------------
Name:
Title:
SKYTERRA INC. OF VIRGINIA
(a Virginia corporation)
By:
------------------------------------------
Name:
Title:
SKYTERRA CORP.
(a Nova Scotia unlimited liability company)
By:
------------------------------------------
Name:
Title:
SKYTERRA HOLDINGS (CANADA) INC.
(an Ontario corporation)
By:
------------------------------------------
Name:
Title:
SKYTERRA (CANADA) INC.
(an Ontario corporation)
By:
------------------------------------------
Name:
Title:
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(1)
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Amount Signature of
Amount of decrease in Amount of increase in of this Global Note authorized officer of
Principal Amount Principal Amount following such decrease Trustee or Note
Date of Exchange of this Global Note of this Global Note (or increase) Custodian
---------------- ------------------- ------------------- ------------- ---------
----------
(1) This schedule should be included only if the Note is issued in global form.
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
SkyTerra LP
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000-0000
Attention: Treasurer
[Trustee]
as Trustee
Attention:
(SkyTerra LP and SkyTerra Finance Co.
18.0% Senior Notes due 2013)
Re: 18.0% Senior Notes due 2013
Reference is hereby made to the Indenture, dated as of [], 2009 (the
"Indenture"), among SkyTerra LP, SkyTerra Finance Co., the Guarantors named
therein and , as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
___________________ (the "Transferor") owns and proposes to transfer
the Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to ___________________________ (the "Transferee"), as further specified in Annex
A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. |_| Check if Transferee will take delivery of a beneficial interest
in the 144A Global Note or a Definitive Note Pursuant to Rule 144A. The Transfer
is being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "Securities Act"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Restricted
Notes Legend printed on the 144A Global Note and/or the Definitive Note and in
the Indenture and the Securities Act.
2. |_| Check if Transferee will take delivery of a beneficial interest
in the Regulation S Global Note or Definitive Note pursuant to Regulation S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, and (iii) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on Transfer enumerated in the Restricted Notes
Legend printed on the Regulation S Global Note and/or Definitive Note and in the
Indenture and the Securities Act.
3. |_| Check and complete if Transferee will take delivery of a
beneficial interest in a Global Note or a Definitive Note pursuant to any
provision of the Securities Act other than Rule 144A or Regulation S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) |_| such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) |_| such Transfer is being effected to the Company or a Subsidiary
thereof;
or
(c) |_| such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) |_| such Transfer is being effected to an Institutional Accredited
Investor for its own account or for the account of such an Institutional
Accredited Investor, pursuant to an exemption from the registration requirements
of the Securities Act other than Rule 144A, Rule 144 or Rule 904, and the
Transferor hereby further certifies that it has not engaged in any general
solicitation within the meaning of Regulation D under the Securities Act and the
Transfer complies with the transfer restrictions applicable to beneficial
interests in a Restricted Global Note or Restricted Definitive Notes and the
requirements of the exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in the form of Exhibit D to the Indenture
and (2) an Opinion of Counsel satisfactory to the Company provided by the
Transferor or the Transferee (a copy of which the Transferor has attached to
this certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on transfer enumerated in the
Restricted Notes Legend printed on the Definitive Notes and in the Indenture and
the Securities Act.
4. |_| Check if Transferee will take delivery of a beneficial interest
in an Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) |_| Check if Transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the
Restricted Notes Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Restricted Notes Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) |_| Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Restricted Notes Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Restricted Notes Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) |_| Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any state of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Restricted Notes Legend are not required in order to maintain compliance
with the Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Restricted Notes Legend printed on the Restricted Global Notes
or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.
--------------------------------------------------
[Insert Name of Transferor]
By:
------------------------------------------
Name:
Title:
Dated:
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE]
(a) |_| a beneficial interest in the:
(i) |_| 144A Global Note (CUSIP _________________), or
(ii) |_| IAI Global Note (CUSIP _________________), or
(iii) |_| Regulation S Global Note (CUSIP ________________),
or
(iv) |_| Unrestricted Global Note (CUSIP ________________), or
(b) |_| a Restricted Definitive Note; or
(c) |_| an Unrestricted Definitive Note,
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) |_| a beneficial interest in the:
(i) |_| 144A Global Note (CUSIP _________________), or
(ii) |_| IAI Global Note (CUSIP _________________), or
(iii) |_| Regulation S Global Note (CUSIP ________________), or
(iv) |_| Unrestricted Global Note (CUSIP ________________), or
(b) |_| a Restricted Definitive Note; or
(c) |_| an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
SkyTerra LP
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000-0000
Attention: Treasurer
[Trustee]
as Trustee
Attention:
(SkyTerra LP and SkyTerra Finance Co.
18.0% Senior Notes due 2013)
Re: 18.0% Senior Notes due 2013
Reference is hereby made to the Indenture, dated as of [], 2009 (the
"Indenture"), among SkyTerra LP, SkyTerra Finance Co., the Guarantors named
therein and , as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
__________________________ (the "Owner") owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of $____________ in such Note[s] or interests (the "Exchange"). In
connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in
a Restricted Global Note for Unrestricted Definitive Notes or Beneficial
Interests in an Unrestricted Global Note.
(a) |_| Check if Exchange is from beneficial interest in a Restricted
Global Note to beneficial interest in an Unrestricted Global Note. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the United States Securities Act of
1933, as amended (the "Securities Act"), (iii) the restrictions on transfer
contained in the Indenture and the Restricted Notes Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(b) |_| Check if Exchange is from beneficial interest in a Restricted
Global Note to Unrestricted Definitive Note. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Restricted Notes Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
(c) |_| Check if Exchange is from Restricted Definitive Note to
beneficial interest in an Unrestricted Global Note. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Restricted Notes Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) |_| Check if Exchange is from Restricted Definitive Note to
Unrestricted Definitive Note. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Restricted Notes Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes.
(a) |_| Check if Exchange is from beneficial interest in a Restricted
Global Note to Restricted Definitive Note. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Restricted Notes
Legend printed on the Restricted Definitive Note and in the Indenture and the
Securities Act.
(b) |_| Check if Exchange is from Restricted Definitive Note to
beneficial interest in a Restricted Global Note. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in a
Restricted Global Note with an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Notes and
pursuant to and in accordance with the Securities Act, and in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions on
transfer enumerated in the Restricted Notes Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
--------------------------------------------------
[Insert Name of Transferor]
By:
------------------------------------------
Name:
Title:
Dated:
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
SkyTerra LP
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000-0000
Attention: Treasurer
[Trustee]
as Trustee
Attention:
(SkyTerra LP and SkyTerra Finance Co.
18.0% Senior Notes due 2013)
Re: 18.0% Senior Notes due 2013
Reference is hereby made to the Indenture, dated as of January 7, 2009
(the "Indenture"), among SkyTerra LP and SkyTerra Finance Co., the Guarantors
named therein and , as trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) |_| a beneficial interest in a Global Note, or
(b) |_| a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any Subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and an Opinion of Counsel in form
reasonably acceptable to the Company to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing the Definitive Note or beneficial interest
in a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by us
will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) or an
entity in which all of the equity owners are the foregoing and have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Notes, and we and any
accounts for which we are acting are each able to bear the economic risk of our
or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased
by us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
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[Insert Name of Transferor]
By:
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Name:
Title:
Dated:
