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EXHIBIT 4.1
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GOLDEN SKY DBS, INC., as Issuer,
and
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee
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INDENTURE
Dated as of February 19, 1999
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$193,100,000 Principal Amount at Maturity
13 1/2% Senior Discount Notes due 2007, Series A
13 1/2% Senior Discount Notes due 2007, Series B
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Trust Indenture Indenture
Act Section Section
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Section 310 (a)(1)........................................................... 6.09
(a)(2)........................................................... 6.09
(a)(3)........................................................... Not Applicable
(a)(4)........................................................... Not Applicable
(b).............................................................. 6.08, 6.10
Section 311 (a).............................................................. 6.07
(b).............................................................. 6.07
(c).............................................................. Not Applicable
Section 312 (a).............................................................. 7.01
(b).............................................................. 7.02
(c).............................................................. 7.02
Section 313 (a).............................................................. 7.03
(b).............................................................. 7.03
(c).............................................................. 7.03
(d).............................................................. 7.03
Section 314 (a).............................................................. 7.04, 10.09
(b).............................................................. Not Applicable
(c)(1)........................................................... 1.04, 4.04
(c)(2)........................................................... 1.04, 4.04,
(c)(3)........................................................... Not Applicable
(d).............................................................. Not Applicable
(e).............................................................. 1.04
Section 315 (a).............................................................. 6.01(a)
(b).............................................................. 6.02
(c).............................................................. 6.01(b)
(d).............................................................. 6.01(c)
(e).............................................................. 5.14
Section 316 (a) (last sentence) ............................................. 3.14
(a)(1)(A)........................................................ 5.12
(a)(1)(B)........................................................ 5.13
(a)(2)........................................................... Not Applicable
(b).............................................................. 5.08
Section 317 (a)(1)........................................................... 5.03
(a)(2)........................................................... 5.04
(b).............................................................. 10.03
Section 318 (a).............................................................. 1.08
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
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TABLE OF CONTENTS
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PARTIES......................................................................................1
RECITALS.....................................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions................................................................ 1
Section 1.02. Other Definitions......................................................... 29
Section 1.03. Rules of Construction..................................................... 30
Section 1.04. Form of Documents Delivered
to Trustee............................................................. 31
Section 1.05. Acts of Holders........................................................... 31
Section 1.06. Notices, etc., to the Trustee and the Company............................. 32
Section 1.07. Notice to Holders; Waiver................................................. 33
Section 1.08. Conflict with Trust Indenture Act......................................... 33
Section 1.09. Effect of Headings and Table of
Contents............................................................... 34
Section 1.10. Successors and Assigns.................................................... 34
Section 1.11. Separability Clause....................................................... 34
Section 1.12. Benefits of Indenture..................................................... 34
Section 1.13. GOVERNING LAW............................................................. 34
Section 1.14. No Recourse Against Others................................................ 34
Section 1.15. Independence of Covenants................................................. 35
Section 1.16. Exhibits.................................................................. 35
Section 1.17. Counterparts.............................................................. 35
Section 1.18. Duplicate Originals....................................................... 35
ARTICLE TWO
SECURITY FORMS
Section 2.01. Form and Dating........................................................... 35
ARTICLE THREE
THE SECURITIES
Section 3.01. Title and Terms........................................................... 36
Section 3.02. Registrar and Paying Agent................................................ 37
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Section 3.03. Execution and Authentication.............................................. 37
Section 3.04. Temporary Securities...................................................... 40
Section 3.05. Transfer and Exchange..................................................... 40
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities.......................... 41
Section 3.07. Payment of Interest; Interest Rights Preserved............................ 42
Section 3.08. Persons Deemed Owners..................................................... 43
Section 3.09. Cancellation.............................................................. 44
Section 3.10. Computation of Interest................................................... 44
Section 3.11. Legal Holidays............................................................ 44
Section 3.12. CUSIP Number.............................................................. 45
Section 3.13. Paying Agent To Hold Money in Trust....................................... 45
Section 3.14. Treasury Securities....................................................... 45
Section 3.15. Deposits of Monies........................................................ 46
Section 3.16. Book-Entry Provisions for Global
Securities............................................................. 46
Section 3.17. Special Transfer Provisions............................................... 47
ARTICLE FOUR
DEFEASANCE OR COVENANT DEFEASANCE
Section 4.01. Company's Option To Effect Defeasance or Covenant Defeasance.............. 50
Section 4.02. Defeasance and Discharge.................................................. 51
Section 4.03. Covenant Defeasance....................................................... 51
Section 4.04. Conditions to Defeasance or Covenant Defeasance........................... 52
Section 4.05. Deposited Money and Government Securities To Be Held in Trust; Other
Miscellaneous Provisions............................................... 54
Section 4.06. Reinstatement............................................................. 55
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default......................................................... 56
Section 5.02. Acceleration of Maturity; Rescission and Annulment........................ 58
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee........... 59
Section 5.04. Trustee May File Proofs of Claims......................................... 60
Section 5.05. Trustee May Enforce Claims Without Possession of Securities............... 61
Section 5.06. Application of Money Collected............................................ 61
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Section 5.07. Limitation on Suits....................................................... 62
Section 5.08. Unconditional Right of Holders To Receive Principal, Premium and
Interest............................................................... 63
Section 5.09. Restoration of Rights and Remedies........................................ 63
Section 5.10. Rights and Remedies Cumulative............................................ 63
Section 5.11. Delay or Omission Not Waiver.............................................. 63
Section 5.12. Control by Majority....................................................... 64
Section 5.13. Waiver of Past Defaults................................................... 64
Section 5.14. Undertaking for Costs..................................................... 64
Section 5.15. Waiver of Stay, Extension or Usury Laws................................... 65
Section 5.16. Unconditional Right of Holders To
Institute Certain Suits................................................ 65
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities....................................... 66
Section 6.02. Notice of Defaults........................................................ 67
Section 6.03. Certain Rights of Trustee................................................. 67
Section 6.04. Trustee Not Responsible for Recitals, Dispositions of Securities or
Application of Proceeds Thereof........................................ 69
Section 6.05. Trustee and Agents May Hold
Securities; Collections; Etc........................................... 69
Section 6.06. Money Held in Trust....................................................... 69
Section 6.07. Compensation and Indemnification of Trustee and Its Prior Claim........... 70
Section 6.08. Conflicting Interests..................................................... 70
Section 6.09. Corporate Trustee Required;
Eligibility............................................................ 71
Section 6.10. Resignation and Removal; Appointment of Successor Trustee................. 71
Section 6.11. Acceptance of Appointment by
Successor.............................................................. 73
Section 6.12. Merger, Conversion, Amalgamation, Consolidation or Succession to
Business............................................................... 74
Section 6.13. Trustee's Application for Instructions
from the Company....................................................... 74
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Preservation of Information; Company To Furnish Trustee Names and
Addresses of Holders................................................... 75
Section 7.02. Communications of Holders................................................. 76
Section 7.03. Reports by Trustee........................................................ 76
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OF
ASSETS, ETC.
Section 8.01. Company May Consolidate, etc., Only on Certain Terms...................... 76
Section 8.02. Successor Substituted..................................................... 78
ARTICLE NINE
SUPPLEMENTAL INDENTURES AND WAIVERS
Section 9.01. Supplemental Indentures, Agreements
and Waivers Without Consent of Holders................................. 78
Section 9.02. Supplemental Indentures, Agreements and Waivers with Consent of Holders... 79
Section 9.03. Execution of Supplemental Indentures, Agreements and Waivers.............. 81
Section 9.04. Effect of Supplemental Indentures......................................... 81
Section 9.05. Conformity with Trust Indenture Act....................................... 81
Section 9.06. Reference in Securities to
Supplemental Indentures................................................ 81
Section 9.07. Record Date............................................................... 82
Section 9.08. Revocation and Effect of Consents......................................... 82
ARTICLE TEN
COVENANTS
Section 10.01. Payment of Principal, Premium and
Interest............................................................... 82
Section 10.02. Maintenance of Office or Agency........................................... 83
Section 10.03. Money for Security Payments To Be Held in Trust........................... 83
Section 10.04. Corporate Existence....................................................... 85
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Section 10.05. Payment of Taxes and Other Claims......................................... 85
Section 10.06. Maintenance of Properties................................................. 86
Section 10.07. Insurance................................................................. 86
Section 10.08. Books and Records......................................................... 86
Section 10.09. Reports................................................................... 86
Section 10.10. Change of Control......................................................... 87
Section 10.11. Limitation on Indebtedness of the Company................................. 90
Section 10.12. Limitation on Additional Indebtedness of Subsidiaries of the Company...... 91
Section 10.13. Statement by Officers as to Default....................................... 91
Section 10.14. Limitation on Liens....................................................... 92
Section 10.15. Designation of Unrestricted Subsidiaries.................................. 92
Section 10.16. Limitation on Restricted Payments......................................... 94
Section 10.17. Ownership of Systems...................................................... 97
Section 10.18. Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries................................................ 97
Section 10.19. Disposition of Proceeds of Asset Sales.................................... 98
Section 10.20. Limitation on Issuances and Sales of Preferred Equity Interests by
Restricted Subsidiaries................................................100
Section 10.21. Limitations on Conduct of Business
of the Company and the Restricted Subsidiaries.........................101
Section 10.22. Limitation on Transactions with
Affiliates.............................................................101
Section 10.23. Compliance Certificates and Opinions......................................102
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 11.01. Right of Redemption.......................................................103
Section 11.02. Applicability of Article..................................................103
Section 11.03. Election To Redeem; Notice to Trustee.....................................103
Section 11.04. Selection by Trustee of Securities To Be Redeemed.........................104
Section 11.05. Notice of Redemption......................................................104
Section 11.06. Deposit of Redemption Price...............................................106
Section 11.07. Securities Payable on Redemption Date.....................................106
Section 11.08. Securities Redeemed or Purchased in Part..................................106
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ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 12.01. Satisfaction and Discharge of
Indenture................................................................107
Section 12.02. Application of Trust Money................................................108
Exhibit A-1 - Form of Initial Security
Exhibit A-2 - Form of Exchange Security
Exhibit B - Form of Legend for Book-Entry Securities
Exhibit C - Form of Certificate To Be Delivered in
Connection with Transfers to Non-QIB Accredited
Investors
Exhibit D - Form of Certificate To Be Delivered in Connection with
Transfers Pursuant to Regulation S
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INDENTURE, dated as of February 19, 1999, between Golden Sky
DBS, Inc., a corporation incorporated under the laws of the State of Delaware
(the "Company"), as issuer, and United States Trust Company of New York, a New
York banking corporation, as trustee (the "Trustee").
RECITALS
The Company has duly authorized the creation of an issue of
13 1/2% Senior Discount Notes due 2007, Series A, and 13 1/2% Senior Discount
Notes due 2007, Series B, to be issued in exchange for the 13 1/2% Senior
Discount Notes due 2007, Series A, pursuant to a Registration Rights Agreement
(as defined herein), and to provide therefor the Company has duly authorized the
execution and delivery of this Indenture.
All things necessary have been done to make the Securities (as
defined herein), when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the Company
and to make this Indenture a valid agreement of each of the Company and the
Trustee in accordance with the terms hereof.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders (as hereinafter defined) of
the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
"Accreted Value" as of any date (the "Specified Date") means,
with respect to each $1,000 principal amount at maturity of Securities:
(i) if the Specified Date is one of the following dates (each
a "Semi-Annual Accreted Date"), the amount set forth opposite such date
below:
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ACCRETED
SEMI-ANNUAL ACCRETED DATE VALUE
-------------------------- -------------
February 19, 1999 518.12
September 1, 1999 555.51
March 1, 2000 593.00
September 1, 2000 633.03
March 1, 2001 675.76
September 1, 2001 721.37
March 1, 2002 770.07
September 1, 2002 822.05
March 1, 2003 877.53
September 1, 2003 936.77
March 1, 2004 1000.00
(ii) if the Specified Date occurs between two Semi-Annual
Accreted Dates, the sum of (A) the Accreted Value for the Semi-Annual
Accreted Date immediately preceding the Specified Date and (B) an
amount equal to the product of (i) the Accreted Value for the
immediately following Semi- Annual Accreted Date less the Accreted
Value for the immediately preceding Semi-Annual Accreted Date and (ii)
a fraction, the numerator of which is the number of days from the
immediately preceding Semi-Annual Accreted Date to the Specified Date,
using a 360-day year of twelve 30-day months, and the denominator of
which is 180.
"Acquired Indebtedness" means Indebtedness of a Person (a)
assumed in connection with an Acquisition from such Person or (b) existing at
the time such Person becomes a Restricted Subsidiary or is merged or
consolidated with or into the Company or any Restricted Subsidiary.
"Acquired Person" means, with respect to any specified Person,
any other Person that merges with or into or becomes a Subsidiary of such
specified Person.
"Acquisition" means (i) any capital contribution (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise) by the Company or any
Restricted Subsidiary to any other Person, or any acquisition or purchase of
Equity Interests of any other Person by the Company or any Restricted
Subsidiary, in either case pursuant to which such Person shall become a
Restricted Subsidiary or shall be consolidated or merged with or into the
Company or any Restricted Subsidiary or (ii) any acquisition by the Company or
any Restricted Subsidiary of the assets of any Person which constitute
substantially
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all of an operating unit or line of business of such Person or which is
otherwise outside of the ordinary course of business.
"Additional Interest" has the meaning provided in the
Registration Rights Agreement.
"Affiliate" means, with respect to any specified Person, any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise; provided, however, that (i) beneficial ownership of 10.0% or more of
the voting power of the then outstanding voting securities of a Person shall be
deemed to be control and (ii) no individual, other than a director of the
Company or an officer of the Company with a policy making function, shall be
deemed an Affiliate of the Company or any of the Company's Subsidiaries solely
by reason of such individual's employment, position or responsibilities by or
with respect to the Company or any of the Company's Subsidiaries.
"Asset Sale" means any direct or indirect sale, conveyance,
transfer, lease (that has the effect of a disposition) or other disposition
(including, without limitation, any merger, consolidation or sale-leaseback
transaction) to any Person other than the Company or a Restricted Subsidiary, in
one transaction or a series of related transactions, of (i) any Equity Interest
of any Restricted Subsidiary; (ii) any material license, franchise or other
authorization of the Company or any Restricted Subsidiary; (iii) any assets of
the Company or any Restricted Subsidiary that constitute substantially all of an
operating unit or line of business of the Company or any Restricted Subsidiary;
or (iv) any other property or asset of the Company or any Restricted Subsidiary
outside of the ordinary course of business (including the receipt of proceeds
paid on account of the loss of or damage to any property or asset, except to the
extent used to repurchase or repair such property or asset, and awards of
compensation for any asset taken by condemnation, eminent domain or similar
proceedings). The term "Asset Sale" shall not include (a) any transaction
consummated in compliance with Article Eight and the creation of any Lien not
prohibited by Section 10.14; provided, however, that any transaction consummated
in compliance with Article Eight involving
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a sale, conveyance, assignment, transfer, lease or other disposal of less than
all of the properties or assets of the Company and the Restricted Subsidiaries
shall be deemed to be an Asset Sale with respect to the properties or assets of
the Company and Restricted Subsidiaries that are not so sold, conveyed,
assigned, transferred, leased or otherwise disposed of in such transaction; (b)
sales of property or equipment that has become worn out, obsolete or damaged or
otherwise unsuitable for use in connection with the business of the Company or
any Restricted Subsidiary, as the case may be; and (c) any transaction
consummated in compliance with Section 10.15.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code or any
similar federal or state law relating to bankruptcy, insolvency, receivership,
winding-up, liquidation, reorganization or relief of debtors or the law of any
other jurisdiction relating to bankruptcy, insolvency, receivership, winding-up,
liquidation, reorganization or relief of debtors or any amendment to, succession
to or change in any such law.
"Bankruptcy Order" means any court order made in a proceeding
pursuant to or within the meaning of any Bankruptcy Law, containing an
adjudication of bankruptcy or insolvency, or providing for liquidation,
receivership, winding-up, dissolution, "concordate" or reorganization, or
appointing a Custodian of a debtor or of all or any substantial part of a
debtor's property, or providing for the staying, arrangement, adjustment or
composition of indebtedness or other relief of a debtor.
"Board" means the Board of Directors of the Company.
"Board of Directors" means (i) in the case of a Person that is
a corporation, the board of directors of such Person and (ii) in the case of any
other Person, the board of directors, board of managers, management committee or
similar governing body of such Person (or in the case of a limited partnership,
of such Person's general partner, or in the case of a limited liability company,
of such Person's manager), or any authorized committee thereof responsible for
the management of the business and affairs of such Person.
"Board Resolution" means a copy of a resolution delivered to
the Trustee and certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board and to be in full force and
effect on the date of such certification.
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"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City of New
York, State of New York are authorized or obligated by law, regulation or
executive order to close.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability in respect of a
capital lease that would at such time be so required to be capitalized on the
balance sheet in accordance with GAAP.
"Cash Equivalents" means (i) any evidence of Indebtedness
(with, for purposes of Section 10.19 only, a maturity of 365 days or less)
issued or directly and fully guaranteed or insured by the United States or any
agency or instrumentality thereof that (provided that the full faith and credit
of the United States is pledged in support thereof or such Indebtedness
constitutes a general obligation of such country) have maturities of not more
than six months from the date of acquisition; (ii) time deposits, certificates
of deposit or acceptances (with, for purposes of Section 10.19 only, a maturity
of 365 days or less) of any financial institution that is a member of the
Federal Reserve System, in each case having combined capital and surplus and
undivided profits (or any similar capital concept) of not less than $200.0
million and whose senior unsecured debt is rated at least "A-1" by S&P or "P-1"
by Xxxxx'x; (iii) commercial paper with a maturity of 365 days or less issued by
a corporation (other than an Affiliate of the Company) organized under the laws
of the United States or any State thereof and rated at least "A-1" by S&P or
"P-1" by Xxxxx'x and in each case maturing not more than six months after the
date of acquisition; (iv) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clause (i) above
and entered into with any bank meeting the qualifications specified in clause
(ii) above; and (v) money market funds that invest substantially all of their
assets in securities described in the preceding clauses (i) through (iv).
"Change of Control" is defined to mean the occurrence of any
of the following events: (a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), excluding Permitted Holders, is
or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person shall be deemed to have "beneficial
ownership" of all securities that such person has the right to acquire, whether
such right is exercisable immediately
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or only after the passage of time), directly or indirectly, of more than 50% of
the total Voting Equity Interests of the Company; or (b) the Company
consolidates with, or merges with or into, another person or sells, assigns,
conveys, transfers, leases or otherwise disposes of all or substantially all of
its assets to any Person, or any Person consolidates with, or merges with or
into, the Company, in any such event pursuant to a transaction in which the
outstanding Voting Equity Interests of the Company are converted into or
exchanged for cash, securities or other property, other than any such
transaction where (i) the outstanding Voting Equity Interests of the Company are
converted into or exchanged for (1) Voting Equity Interests (other than
Disqualified Equity Interests) of the surviving or transferee corporation or its
parent corporation and/or (2) cash, securities and other property in an amount
that could be paid by the Company as a Restricted Payment under this Indenture
and (ii) immediately after such transaction no "person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act), excluding the
Permitted Holders, is the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a person shall be deemed to have
"beneficial ownership" of all securities that such person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 50% of the total Voting Equity
Interests of the surviving or transferee corporation or its parent corporation,
as applicable; or (c) during any consecutive two-year period, individuals who at
the beginning of such period constituted the Board of Directors (together with
any new directors whose election by the Board of Directors or whose nomination
for election by the stockholders of the Company was approved by a vote of a
majority of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason (other than by action of the
Permitted Holders) to constitute a majority of the Board of Directors then in
office; or (d) the approval by stockholders of the Company of any liquidation or
dissolution of the Company.
"Common Stock" means, with respect to any Person, any and all
shares, interests or other participations in, and other equivalents (however
designated and whether voting or nonvoting) of, such Person's common stock
whether outstanding at the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor person
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shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by any one of its Chairman of the
Board, its Vice-Chairman, its Chief Executive Officer, its President, its Chief
Financial Officer or a Vice President, and by its Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer, 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
income taxes payable by the Company and the Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to the
Company for any period, without duplication, the sum of (i) the interest expense
of the Company and the Restricted Subsidiaries for such period as determined on
a consolidated basis in accordance with GAAP, including, without limitation, (a)
any amortization of debt discount; (b) the net cost under Interest Rate
Protection Obligations (including any amortization of discounts); (c) the
interest portion of any deferred payment obligation; (d) all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing; and (e) all capitalized interest and all accrued
interest; (ii) the interest component of Capital Lease Obligations paid, accrued
and/or scheduled to be paid or accrued by the Company and the Restricted
Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP; and (iii) dividends and distributions in respect of
Disqualified Equity Interests actually paid in cash by the Company during such
period as determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any period,
the net income of the Company and the Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, adjusted, to the
extent included in calculating such net income, by excluding, without
duplication, (a) all extraordinary gains or losses and all gains and losses from
the sales or other dispositions of assets out of the ordinary course of business
(net of taxes, fees and expenses relating to the transaction giving rise
thereto) for such period; (b) that portion of such net income derived from or in
respect
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of investments in Persons other than Restricted Subsidiaries, except to the
extent actually received in cash by the Company or any Restricted Subsidiary
(subject, in the case of any Restricted Subsidiary, to the provisions of clause
(e) of this definition); (c) the portion of such net income (or loss) allocable
to minority interests in any Person (other than a Restricted Subsidiary) for
such period, except to the extent actually received in cash by the Company or
any Restricted Subsidiary (subject, in the case of any Restricted Subsidiary, to
the provisions of clause (e) of this definition); (d) net income (or loss) of
any other Person combined with the Company or any Restricted Subsidiary on a
"pooling of interests" basis attributable to any period prior to the date of
combination; and (e) the net income of any Restricted Subsidiary to the extent
that the declaration of dividends or similar distributions by that Restricted
Subsidiary of that income is not at the time (regardless of any waiver)
permitted, directly or indirectly, by operation of the terms of its charter or
any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulations applicable to that Restricted Subsidiary or its Equity
Interest holders, except, solely for the purposes of Section 10.12 and for
determining the amount available under clause (iii) of Section 10.16 for a
proposed Restricted Payment constituting an Investment, for any restriction in
any agreement or instrument governing Indebtedness outstanding on the Issue Date
or Incurred in compliance with this Indenture.
"Consolidated Operating Cash Flow" means, with respect to any
period, Consolidated Net Income for such period increased (without duplication)
by the sum of (a) Consolidated Income Tax Expense 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) all dividends on
Preferred Equity Interests to the extent taken into account for computing
Consolidated Net Income for that period; and (d) depreciation, amortization and
any other non-cash items for such period to the extent deducted in determining
Consolidated Net Income for such period (other than any non-cash item that
requires the accrual of, or a reserve for, cash charges for any future period)
of the Company and the Restricted Subsidiaries, including, without limitation,
amortization of capitalized debt issuance costs for such period, all of the
foregoing determined on a consolidated basis in accordance with GAAP minus
non-cash items to the extent they increase Consolidated Net Income (including
the partial or entire reversal of reserves taken in prior periods, except to the
extent any such reserves were not permitted to be added back in the calculation
of Consolidated Operating Cash Flow for a prior period pursuant to clause (d)
above) for such period.
17
-9-
"control" means, with respect to any specified Person, the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of Voting Stock, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"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 Xxxx 00xx Xxxxxx, Xxxx: Xxxxxxxxx Xxxxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx
00000.
"Credit Facility" means the Amended and Restated Credit
Agreement dated as of July 7, 1997, amended and restated as of May 8, 1998,
amended as of February 10, 1999, among Holdings, Systems, the banks party
thereto from time to time, Paribas (formerly known as Banque Paribas), as
Syndication Agent, Fleet National Bank, as Administrative Agent, and General
Electric Capital Corporation, as Documentation Agent, including any deferrals,
renewals, extensions, replacements, refinancings or refundings thereof, or
amendments, modifications or supplements thereto (including, without limitation,
any such deferrals, renewals, extensions, replacements, refinancings,
refundings, amendments, modifications or supplements that increase the aggregate
amount of commitments or borrowings thereunder or add Subsidiaries of the
Company as additional borrower or guarantor thereunder), and any agreements
providing therefor, whether by or with the same or any other lender, creditor or
group of lenders or creditors, and including related notes, guarantees, security
agreements, pledge agreements, mortgages, note agreements, other collateral
documents and note agreements and other instruments and agreements executed in
connection therewith.
"Cumulative Operating Cash Flow" means, as at any date of
determination, the positive cumulative Consolidated Operating Cash Flow realized
during the period commencing on the Issue Date and ending on the last day of the
most recent fiscal quarter immediately preceding the date of determination for
which consolidated financial information of the Company is available or, if such
cumulative Consolidated Operating Cash Flow for such period is negative, the
negative amount by which cumulative Consolidated Operating Cash Flow is less
than zero.
18
-10-
"Custodian" means any receiver, interim receiver, receiver and
manager, receiver-manager, trustee, assignee, liquidator, sequestrator or
similar official under any Bankruptcy Law or any other law respecting secured
creditors and the enforcement of their security or any other person with like
powers whether appointed judicially or out of court and whether pursuant to an
interim or final appointment.
"DBS" means direct broadcast satellite.
"Debt to Operating Cash Flow Ratio" means the ratio of (a) an
amount equal to the Total Consolidated Indebtedness as of the date of
calculation (the "Determination Date") to (b) four times the Consolidated
Operating Cash Flow for the latest fiscal quarter for which financial
information is available immediately preceding such Determination Date (the
"Measurement Period"). For purposes of calculating Consolidated Operating Cash
Flow for the Measurement Period immediately prior to the relevant Determination
Date, (I) any Person that is a Restricted Subsidiary on the Determination Date
(or would become a Restricted Subsidiary on such Determination Date in
connection with the transaction that requires the determination of such
Consolidated Operating Cash Flow) will be deemed to have been a Restricted
Subsidiary at all times during such Measurement Period, (II) any Person that is
not a Restricted Subsidiary on such Determination Date (or would cease to be a
Restricted Subsidiary on such Determination Date in connection with the
transaction that requires the determination of such Consolidated Operating Cash
Flow) will be deemed not to have been a Restricted Subsidiary at any time during
such Measurement Period, and (III) if the Company or any Restricted Subsidiary
shall have in any manner (x) acquired (including through an Acquisition or the
commencement of activities constituting such operating business) or (y) disposed
of (including by way of an Asset Sale or the termination or discontinuance of
activities constituting such operating business) any operating business during
such Measurement Period or after the end of such period and on or prior to such
Determination Date, such calculation will be made on a pro forma basis in
accordance with GAAP as if, in the case of an Acquisition or the commencement of
activities constituting such operating business, all such transactions had been
consummated on the first day of such Measurement Period and, in the case of an
Asset Sale or termination or discontinuance of activities constituting such
operating business, all such transactions had been consummated prior to the
first day of such Measurement Period; provided, however, that such pro forma
adjustment shall not give effect to the Operating Cash Flow of any Acquired
Person
19
-11-
to the extent that such Person's net income would be excluded pursuant to clause
(e) of the definition of Consolidated Net Income.
"Default" means any event that is or with the passage of time
or the giving of notice or both would be an Event of Default.
"Default Amount" means, (i) prior to March 1, 2004, the
Accreted Value of the Securities as of the payment date, and (ii) after March 1,
2004, the principal amount at maturity thereof, plus, in the case of clause
(ii), accrued and unpaid interest thereon, if any, to the payment date.
"Depository" means The Depository Trust Company, its nominees
and successors.
"DIRECTV Services" means DBS television services and all other
video, audio, data packages, "a la carte" programming services and other
services offered by DIRECTV, Inc., the predecessor-in-interest of Xxxxxx
Communications Galaxy, Inc., or its successors or assigns.
"Disinterested Director" means, with respect to any
transaction or series of related transactions, a member of the Board other than
a director who (i) has any material direct or indirect financial interest in or
with respect to such transaction or series of related transactions or (ii) is an
employee or officer of the Company or an Affiliate that is itself a party to
such transaction or series of transactions or an Affiliate of a party to such
transactions or series of related transactions.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets.
"Disqualified Equity Interest" means any Equity Interest
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
thereof), or upon the happening of any event (other than a Change of Control),
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable, at the option of the holder thereof, in whole or in
part, or exchangeable into Indebtedness on or prior
20
-12-
to the earlier of the maturity date of the Securities or the date on which no
Securities remain outstanding.
"Eligible Institution" means a commercial banking institution
that has combined capital and surplus of not less than $500.0 million or its
equivalent in foreign currency, whose debt is rated Investment Grade at the time
as of which any investment or rollover therein is made.
"Equity Interest" in any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) corporate stock or other
equity participations, including partnership interests, whether general or
limited, or member interests in such Person, including any Preferred Equity
Interests.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Exchange Securities" means 13 1/2% Senior Discount Notes due
2007, Series B (the terms of which are identical to the Initial Securities
except that the Exchange Securities shall be registered under the Securities Act
and shall not contain the restrictive legend on the face of the form of Initial
Securities), issued pursuant to this Indenture.
"Existing Indebtedness" means any Indebtedness of the Company
and the Restricted Subsidiaries in existence on the Issue Date until such
amounts are repaid.
"Fair Market Value" means, with respect to any asset, the
price (after taking into account any liabilities relating to such assets) that
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of which is under
any compulsion to complete the transaction; provided, however, that the Fair
Market Value of any such asset or assets shall be determined conclusively by the
Board acting in good faith, and shall be evidenced by resolutions of the Board
delivered to the Trustee.
"GAAP" means, at any date of determination, generally accepted
accounting principles in effect in the United States that are applicable at the
date of determination and that are consistently applied for all applicable
periods.
21
-13-
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States of
America are pledged.
"guarantee" means, as applied to any obligation, (i) a
guarantee (other than by endorsement of negotiable instruments for collection in
the ordinary course of business), direct or indirect, in any manner, of any part
or all of such obligation and (ii) an agreement, direct or indirect, contingent
or otherwise, the practical effect of which is to assure in any way the payment
or performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit. A guarantee shall include,
without limitation, any agreement to maintain or preserve any other Person's
financial condition or to cause any other Person to achieve certain levels of
operating results.
"High Power Satellite Transmission Business" means the
business of the acquisition, transmission or sale of programming in the high
power DBS business utilizing broadcast satellite service (including any
provision of such services to cable operators or other media providers), which
may utilize all or part of satellites owned by DIRECTV, Inc. or Xxxxxx
Communications Galaxy, Inc., and all other activities relating thereto or
arising therefrom.
"Holder" means the Person in whose name a Security is
registered on the Registrar's books, as the context requires.
"Holdings" means Golden Sky Holdings, Inc. or any successor or
assign thereof that owns 100% of the Equity Interests of the Company.
"Incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (including by conversion,
exchange or otherwise), assume, guarantee or otherwise become liable in respect
of such Indebtedness or other obligation or the recording, as required pursuant
to GAAP or otherwise, of any such Indebtedness or other obligation on the
balance sheet of such Person (and "Incurrence," "Incurred" and "Incurring" shall
have meanings correlative to the foregoing).
"Indebtedness" means (without duplication), with respect to
any Person, whether recourse is to all or a portion of the assets of such Person
and whether or not contingent, (a)
22
-14-
every obligation of such Person for money borrowed; (b) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (c) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (d) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable incurred in the ordinary course of business and payable
in accordance with industry practices, or other accrued liabilities arising in
the ordinary course of business that are not overdue or that are being contested
in good faith); (e) every Capital Lease Obligation of such Person; (f) every net
obligation under Interest Rate Protection Obligations; (g) every obligation of
the type referred to in clauses (a) through (f) of another Person and all
dividends of another Person the payment of which, in either case, such Person
has guaranteed or is responsible or liable for, directly or indirectly, as
obligor, guarantor or otherwise; and (h) any and all deferrals, renewals,
extensions and refundings of, or amendments, modifications or supplements to,
any liability of the kind described in any of the preceding clauses (a) through
(g) above. Indebtedness (a) shall never be calculated taking into account any
cash and Cash Equivalents held by such Person; (b) shall not include obligations
of any Person (x) arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently drawn against
insufficient funds in the ordinary course of business, provided that such
obligations are extinguished within two Business Days of their incurrence unless
covered by an overdraft line, (y) resulting from the endorsement of negotiable
instruments for collection in the ordinary course of business and consistent
with past business practices and (z) under standby letters of credit to the
extent collateralized by cash or Cash Equivalents; (c) that provides that an
amount less than the principal amount thereof shall be due upon any declaration
of acceleration thereof shall be deemed to be incurred or outstanding in an
amount equal to the accreted value thereof at the date of determination; (d)
shall include the liquidation preference and any mandatory redemption payment
obligations in respect of any Disqualified Equity Interests of the Company or
any Restricted Subsidiary; and (e) shall not include obligations under
performance bonds, performance guarantees, surety bonds and appeal bonds,
letters of credit or similar obligations Incurred in the ordinary course of
business (including standby letters of credit securing obligations to the NRTC
Incurred in the ordinary course of business that are not overdue or that are
being contested in good faith
23
-15-
by appropriate proceedings) (other than obligations under or in respect of any
direct or indirect credit support for obligations of any Unrestricted
Subsidiary).
"Indenture" means this instrument as originally executed
(including all exhibits and schedules hereto) and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.
"Indenture Obligations" means the obligations of the Company
and any other obligor under this Indenture, the Securities or the Registration
Rights Agreement to pay principal of, premium, if any, and interest on the
Securities when due and payable (including, without limitation, Additional
Interest), whether at maturity, by acceleration, call for redemption or
repurchase or otherwise, and all other amounts due or to become due under or in
connection with this Indenture or the Securities and the performance of all
other obligations to the Trustee (including, but not limited to, payment of all
amounts due the Trustee under Section 6.07 hereof), and the Holders of the
Securities under this Indenture and the Securities, according to the terms
thereof.
"Independent Financial Advisor" means a nationally recognized
accounting, appraisal or investment banking firm or consultant with experience
advising DBS businesses that is, in the judgment of the Board, qualified to
perform the task for which it has been engaged (i) that does not, and whose
directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in the Company and (ii) that, in the judgment of the
Board, is otherwise independent and qualified to perform the task for which it
is to be engaged.
"Initial Purchasers" means Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, NationsBanc Xxxxxxxxxx Securities LLC, Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation and Fleet Securities, Inc.
"Initial Securities" means the 13 1/2% Senior Discount Notes
due 2007, Series A, for so long as such securities constitute Restricted
Securities.
"Insolvency or Liquidation Proceeding" means, with respect to
any Person, any liquidation, dissolution or winding up of such Person, or any
bankruptcy, reorganization, insolvency,
24
-16-
receivership or similar proceeding with respect to such Person, whether
voluntary or involuntary.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"interest" means, with respect to the Securities, the sum of
any cash interest and any Additional Interest on the Securities.
"Interest Payment Date" means, when used with respect to any
Security, the Stated Maturity of an installment of interest on such Security, as
set forth in such Security.
"Interest Rate Protection Obligations" means, with respect to
any Person, the Obligations of such Person under (i) interest rate swap
agreements, interest rate cap agreements and interest rate collar agreements,
and (ii) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates.
"Investment" means, with respect to any Person, any direct or
indirect loan, advance, guarantee or other extension of credit or capital
contribution to (by means of transfers of cash or other property or assets to
others or payments for property or services for the account or use of others, or
otherwise), or purchase or acquisition of capital stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued by, any other
Person. In no event will the issuance by the Company of Qualified Equity
Interests of the Company in exchange for any such capital stock, bonds, notes,
debentures or other securities or evidences of Indebtedness constitute an
Investment. The amount of any Investment shall be the original cost of such
Investment, plus the cost of all additions thereto, and minus the amount of any
portion of such Investment repaid to such Person in cash or other property or
assets that would not otherwise constitute an Investment as a repayment of
principal or a return of capital, as the case may be, but without any other
adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment. In determining the amount of any
Investment or any repayment in respect of an Investment involving a transfer of
any property or asset other than cash, such property shall be valued at its Fair
Market Value at the time of such transfer, as determined in good faith by the
Board of Directors (or comparable body) of the Person making such transfer or
receiving such repayment.
25
-17-
"Investment Grade" means, with respect to a security, that
such security is rated by at least two nationally recognized statistical rating
organizations in one of each such organization's four highest generic rating
categories.
"Issue Date" means the original issue date of the Securities.
"Lien" means any lien, mortgage, charge, security interest,
hypothecation, assignment for security or encumbrance of any kind (including any
conditional sale or capital lease or other title retention agreement, any lease
in the nature thereof, and any agreement to give any security interest).
"Marketable Securities" means: (a) Government Securities; (b)
any certificate of deposit maturing not more than 365 days after the date of
acquisition issued by, or time deposit of, an Eligible Institution; (c)
commercial paper maturing not more than 365 days after the date of acquisition
issued by a corporation (other than an Affiliate of the Company) with an
Investment Grade rating, at the time as of which any investment therein is made,
issued or offered by an Eligible Institution; (d) any bankers' acceptances or
money market deposit accounts issued or offered by an Eligible Institution; and
(e) any fund investing substantially in investments of the types described in
clauses (a) through (d) above.
"Maturity Date" means the date, which is set forth on the face
of the Securities, on which the Securities will mature.
"Net Cash Proceeds" means the aggregate proceeds in the form
of cash or Cash Equivalents received by the Company or any Restricted Subsidiary
in respect of any Asset Sale, including all cash or Cash Equivalents received
upon any sale, liquidation or other exchange of proceeds of Asset Sales received
in a form other than cash or Cash Equivalents, net of (a) the direct costs
relating to such Asset Sale (including, without limitation, legal, accounting
and investment banking fees and sales commissions) and any relocation expenses
incurred as a result thereof; (b) taxes paid or payable as a result thereof
(after taking into account any available tax credits or deductions and any tax
sharing arrangements); (c) amounts required to be applied to the repayment of
Indebtedness secured by a Lien on the asset or assets that were the subject of
such Asset Sale; (d) amounts deemed, in good faith, appropriate by the Board of
Directors of the Company to be provided as a reserve, in accordance with GAAP,
against any liabilities associated with such assets that are the subject of such
Asset Sale (provided
26
-18-
that the amount of any such reserves shall be deemed to constitute Net Cash
Proceeds at the time such reserves shall have been released or are not otherwise
required to be retained as a reserve); and (e) with respect to Asset Sales by
Restricted Subsidiaries, the portion of such cash payments attributable to
Persons holding a minority interest in such Restricted Subsidiary.
"NRTC" means the National Rural Telecommunications Cooperative
and any successor entity to it.
"Obligations" means any principal, interest, premium,
penalties, fees, indemnifications, reimbursement obligations, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Offer" has the meaning set forth under Section 10.19.
"Offering Memorandum" means the Offering Memorandum dated
February 11, 1999 pursuant to which the Initial Securities were offered, and any
supplement thereto.
"Officer" means, with respect to the Company, the Chairman of
the Board, a Vice Chairman, the Chief Executive Officer, the President, the
Chief Financial Officer, a Vice President, the Secretary, an Assistant
Secretary, the Treasurer or an Assistant Treasurer.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Chief Executive Officer, a Vice Chairman, the Chief
Financial Officer, the President or a Vice President, and by the Secretary, an
Assistant Secretary, the Treasurer or an Assistant Treasurer, of the Company and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel who
may be counsel for the Company or the Trustee, and who shall be reasonably
acceptable to the Trustee.
"Outstanding" means, as of the date of determination, all
Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
27
-19-
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company or any
Affiliate thereof) in trust or set aside and segregated in trust by the
Company or any Affiliate thereof (if the Company or Affiliate shall act
as Paying Agent) for the Holders of such Securities; provided, however,
that if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities with respect to which the Company has
effected defeasance or covenant defeasance as provided in Article Four,
to the extent provided in Sections 4.02 and 4.03; and
(iv) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands the
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities that a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. The Company shall notify
the Trustee, in writing, when it repurchases or otherwise acquires Securities,
of the aggregate principal amount of such Securities so repurchased or otherwise
acquired. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor. If the Paying Agent holds, in
its capacity as such, on any Maturity Date or on any optional redemption date
money sufficient to pay all accrued interest and principal with respect to such
Securities payable
28
-20-
on that date and is not prohibited from paying such money to the Holders thereof
pursuant to the terms of this Indenture, then on and after that date such
Securities cease to be Outstanding and interest on them ceases to accrue.
Securities may also cease to be outstanding to the extent expressly provided in
Article Four.
"Permitted Acquisition Deposits" means any advance or payment
of funds, whether as consideration for an option to purchase or as a deposit,
binder or xxxxxxx money, whether or not refundable, and whether or not made into
escrow, made pursuant to any written agreement, term sheet, letter of intent or
other instrument providing for the Acquisition of any High Power Satellite
Transmission Business.
"Permitted Business" means those businesses in which the
Company and the Restricted Subsidiaries are engaged on the Issue Date or
business reasonably related thereto (including, without limitation, the High
Power Satellite Transmission Business and the business of satellite data
transmission).
"Permitted Holders" any of (i) means Burr, Egan, Deleage &
Co., Spectrum Equity Investors, L.P., BancBoston Ventures Inc., Norwest Equity
Partners and HarbourVest Partners, LLC and (ii) their respective Affiliates.
"Permitted Indebtedness" means the following Indebtedness
(each of which shall be given independent effect):
(a) Indebtedness of any Restricted Subsidiary outstanding on
the Issue Date;
(b) (1) Indebtedness under the Credit Facility of any
Restricted Subsidiary, and, without duplication, any guarantee thereof
by any other Restricted Subsidiary, Incurred in an aggregate principal
amount at any one time outstanding not to exceed $150.0 million, which
amount shall be reduced by (x) any permanent reduction of commitments
thereunder and (y) any other repayment accompanied by a permanent
reduction of commitments thereunder (other than in connection with any
refinancing thereof where the aggregate principal amount outstanding
and commitments thereunder immediately prior thereto are not greater
than such amounts immediately thereafter); and (2) Indebtedness of any
Restricted Subsidiary, and, without duplication, any guarantee thereof
by any other Restricted Subsidiary, Incurred to fund Acquisitions of
Permitted Businesses, Capital Lease Obligations, Investments permitted
under
29
-21-
this Indenture and working capital to support a Permitted Business in
an aggregate principal amount at any one time outstanding not to exceed
$65.0 million, which amount shall be reduced by any permanent reduction
of commitments thereunder;
(c) Indebtedness of Systems such that, at the time of and
after giving effect to the Incurrence thereof, the total aggregate
principal amount of Indebtedness Incurred under this clause (c) and any
refinancing thereof (whether initial or successive) Incurred pursuant
to and otherwise Incurred in compliance with this Indenture would not
exceed 200% of Total Incremental Invested Equity (which includes the
contributed proceeds from the issuance of the Notes);
(d) Indebtedness of any Restricted Subsidiary owed to and held
by the Company or any Restricted Subsidiary; provided, however, that an
Incurrence of Indebtedness that is not permitted by this clause (d)
shall be deemed to have occurred upon (i) any sale or other disposition
of any Indebtedness of any Restricted Subsidiary referred to in this
clause (d) to a Person (other than the Company or any other Restricted
Subsidiary) or (ii) the Designation of a Restricted Subsidiary that
holds Indebtedness of any other Restricted Subsidiary as an
Unrestricted Subsidiary;
(e) Interest Rate Protection Obligations of any Restricted
Subsidiary relating to Indebtedness of a Restricted Subsidiary (which
Indebtedness (i) bears interest at fluctuating interest rates and (ii)
is otherwise permitted to be Incurred under this covenant) and
guarantees by any Restricted Subsidiary thereof; provided, however,
that the notional principal amount of such Interest Rate Protection
Obligations does not exceed the principal amount of the Indebtedness to
which such Interest Rate Protection Obligations relate;
(f) indemnification obligations of any Restricted Subsidiary
and guarantees thereof under agreements providing for the disposition
of assets or one or more businesses or Restricted Subsidiaries;
provided, however, that such obligations do not exceed at any time the
Fair Market Value of the gross proceeds received by the Restricted
Subsidiaries for such disposition;
(g) Indebtedness to the extent representing a replacement,
renewal, refinancing or extension (collectively,
30
-22-
a "refinancing") of outstanding Indebtedness Incurred in compliance
with the Debt to Operating Cash Flow Ratio of Section 10.12 or clause
(a), (b)(2), (h) or (j) of this definition; provided, however, that (i)
any such refinancing shall not exceed the sum of the principal amount
(or, if such Indebtedness provides for a lesser amount to be due and
payable upon a declaration of acceleration thereof at the time of such
refinancing, an amount no greater than such lesser amount) of the
Indebtedness being refinanced, plus the amount of accrued interest or
dividends thereon, plus the amount of an reasonably determined
prepayment premium necessary to accomplish such refinancing and such
reasonable fees and expenses incurred in connection therewith, (ii)
Indebtedness representing a refinancing of Indebtedness shall have a
Weighted Average Life to Maturity equal to or greater than the Weighted
Average Life to Maturity of the Indebtedness being refinanced, and
(iii) with respect to any refinancing of Indebtedness Incurred pursuant
to subparagraph (h) or (i) of this definition, such refinancing
pursuant to this clause (g) shall also be deemed to be Incurred
pursuant to clause (h) or (i), as the case may be, of this paragraph
(for the avoidance of doubt, the result of which is that a refinancing
does not create new debt incurrence capacity under such clauses);
(h) Indebtedness of any Restricted Subsidiary Incurred to
finance the acquisition of the exclusive right to distribute DIRECTV
Services within designated Rural DIRECTV Markets; provided, however,
that such Indebtedness shall be Permitted Indebtedness under this
subparagraph (h) in an amount not greater than the face amount of any
letter of credit issued under the Credit Facility to support such
Indebtedness, it being understood that the issuance of such letter of
credit (but only for so long as such letter of credit remains
outstanding) constitutes a reduction in the amount of Permitted
Indebtedness available to be Incurred under clause (b) of this
definition; and;
(i) in addition to the items referred to in subparagraphs (a)
through (h) above, Indebtedness of any of the Restricted Subsidiaries
(including any Indebtedness under the Credit Facility that utilizes
this clause (i)) having an aggregate principal amount for the
Restricted Subsidiaries not to exceed $25.0 million at any time
outstanding.
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Indebtedness of any Person or any of its Subsidiaries existing
at the time such Person becomes a Restricted Subsidiary (or is merged into or
consolidated with the Company or any Restricted Subsidiary), whether or not such
Indebtedness was Incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary (or being merged into or consolidated
with the Company or any Restricted Subsidiary), shall be deemed Incurred at the
time any such Person becomes a Restricted Subsidiary or merges into or
consolidates with the Company or any Restricted Subsidiary.
"Permitted Investments" means (a) Cash Equivalents; (b)
Investments by the Company or any Restricted Subsidiary in any Person that is or
will become immediately after such Investment a Restricted Subsidiary or that
will merge or consolidate into the Company or a Restricted Subsidiary; (c)
Investments in the Company by any Restricted Subsidiary; (d) Investments in
prepaid expenses, negotiable instruments held for collection and lease, utility
and workers' compensation, performance and other similar deposits; (e) loans and
advances to employees made in the ordinary course of business not to exceed $1.0
million in the aggregate at any one time outstanding; (f) Interest Rate
Protection Obligations; (g) bonds, notes, debentures or other securities
received as a result of Asset Sales permitted under Section 10.19 not to exceed
25% of the total consideration for such Asset Sales (determined and computed as
set forth under Section 10.19); (h) transactions with officers, directors and
employees of the Company or any Restricted Subsidiary entered into in the
ordinary course of business (including compensation or employee benefit
arrangements with any such director or employee) and consistent with past
business practices; (i) Investments existing as of the Issue Date and any
amendment, extension, renewal or modification thereof to the extent that any
such amendment, extension, renewal or modification does not require the Company
or any Restricted Subsidiary to make any additional cash or non-cash payments or
provide additional services in connection therewith; and (j) Permitted
Acquisition Deposits.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, limited
liability limited partnership, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Predecessor Security" means, with respect to any particular
Security, every previous Security evidencing all or a portion of the same debt
as that evidenced by such particular
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Security; and, for the purposes of this definition, any Security authenticated
and delivered under Section 3.06 hereof in exchange for a mutilated Security or
in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Security.
"Preferred Equity Interest," in any Person, means an Equity
Interest of any class or classes (however designated) that 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 Equity Interests of any other class in such Person.
"principal amount at maturity" means $1,000 per $1,000 face
amount of the Securities.
"Private Exchange Securities" shall have the meaning set forth
in the Registration Rights Agreement.
"Private Placement Legend" shall mean the first paragraph of
the legend initially set forth in the Securities in the form set forth on
Exhibit A-1.
"Public Equity Offering" means an underwritten public offering
of Equity Interests (other than Disqualified Equity Interests) of the Company
made on a primary basis by the Company pursuant to a registration statement
filed with and declared effective by the SEC in accordance with the Securities
Act.
"Purchase Money Indebtedness" means Indebtedness of any
Restricted Subsidiary Incurred for the purpose of financing all or any part of
the purchase price or the cost of construction or improvement of any property;
provided, however, that the aggregate principal amount of such Indebtedness does
not exceed the lesser of the Fair Market Value of such property or such purchase
price or cost, including any refinancing of such Indebtedness that does not
increase the aggregate principal amount (or accreted amount, if less) thereof as
of the date of refinancing.
"Qualified Equity Interest" in any Person means any Equity
Interest in such Person other than any Disqualified Equity Interest.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A under the Securities Act.
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"Redemption Date" means, with respect to any Security to be
redeemed, the date fixed by the Company for such redemption pursuant to this
Indenture and Securities.
"Redemption Price" means, with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture and
the terms of the Securities.
"Registered Exchange Offer" means the registration by the
Company under the Securities Act of all Exchange Securities pursuant to a
registration statement under which the Company offers each Holder of Initial
Securities the opportunity to exchange all Initial Securities held by such
Holder for Exchange Securities in an aggregate principal amount equal to the
aggregate principal amount of Initial Securities held by such Holder, all in
accordance with the terms and conditions of the Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of February 19, 1999 by and among the Company and the Initial
Purchasers, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the terms thereof.
"Regular Record Date" means the Regular Record Date specified
in the Securities.
"Regulation S" means Regulation S under the Securities Act.
"Responsible Officer" means, with respect to the Trustee, any
vice president, any assistant vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer, or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer of the Trustee to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Restricted Payment" means any of the following: (i) the
declaration or payment of any dividend or any other distribution on Equity
Interests of the Company or any payment made to the direct or indirect holders
(in their capacities as such) of Equity Interests of the Company (other than
dividends or distributions payable solely in Equity Interests (other than
Disqualified Equity Interests) of the Company) or in options,
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warrants or other rights to purchase Equity Interests (other than Disqualified
Equity Interests) of the Company; (ii) the purchase, redemption or other
acquisition or retirement for value of any Equity Interests of the Company
(other than any such Equity Interests owned by the Company or a Wholly Owned
Restricted Subsidiary); (iii) the purchase, redemption, defeasance or other
acquisition or retirement for value prior to any scheduled repayment, sinking
fund or maturity of any Subordinated Indebtedness (other than any Subordinated
Indebtedness held by a Wholly Owned Restricted Subsidiary); or (iv) the making
by the Company or any Restricted Subsidiary of any Investment (other than a
Permitted Investment) in any Person.
"Restricted Security" shall have the meaning specified in Rule
144(a)(3) under the Securities Act; provided that the Trustee shall be entitled
to request and conclusively rely upon an Opinion of Counsel with respect to
whether a Security is a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company
that has not been designated by the Board, by a resolution of the Board
delivered to the Trustee, as an Unrestricted Subsidiary pursuant to Section
10.15. Any such designation may be revoked by a resolution of the Board
delivered to the Trustee, subject to the provisions of such covenant.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities" means, collectively the Initial Securities, the
Exchange Securities and the Private Exchange Securities, if any, treated a
single class of securities, as amended or supplemented from time to time in
accordance with the terms of this Indenture, that are issued pursuant to this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securityholder" means the Person in whose name a Security is
registered on the Registrar's books, as the context requires.
"Seller Notes" means any promissory notes issued by a
Restricted Subsidiary to any Person selling any assets or properties to the
Company or any Restricted Subsidiary in an Acquisition, including those
outstanding on the Issue Date.
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"Significant Restricted Subsidiary" means, at any date of
determination, (a) any Restricted Subsidiary that, together with its
Subsidiaries that constitute Restricted Subsidiaries, (i) for the most recent
fiscal year of the Company accounted for more than 5.0% of the consolidated
revenues of the Company and the Restricted Subsidiaries or (ii) as of the end of
such fiscal year owned more than 5.0% of the consolidated assets of the Company
and the Restricted Subsidiaries, all as set forth on the consolidated financial
statements of the Company and the Restricted Subsidiaries for such year prepared
in conformity with GAAP, and (b) any Restricted Subsidiary that, when aggregated
with all other Restricted Subsidiaries that are not otherwise Significant
Restricted Subsidiaries and as to which any event described in Section 5.01 (v),
(vii) or (viii) has occurred, would constitute a Significant Restricted
Subsidiary under clause (a) of this definition.
"Special Record Date" means, with respect to the payment of
any Defaulted Interest, a date fixed by the Trustee pursuant to Section 3.07
hereof.
"Stated Maturity," when used with respect to any Security or
any installment of interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subordinated Indebtedness" means with respect to the Company,
Indebtedness of the Company that is expressly subordinated in right of payment
to the Securities.
"Subsidiary" means, with respect to any Person, (a) any
corporation of which the outstanding Voting Equity Interests having at least a
majority of the votes entitled to be cast in the election of directors shall at
the time be owned, directly or indirectly, by such Person, or (b) any other
Person of which at least a majority of Voting Equity Interests are at the time,
directly or indirectly, owned by such first named Person.
"Systems" means Golden Sky Systems, Inc., a Wholly Owned
Restricted Subsidiary.
"Total Consolidated Indebtedness" means, as at any date of
determination, an amount equal to the aggregate amount of all Indebtedness and
Disqualified Equity Interests of the Company and the Restricted Subsidiaries
outstanding as of such date of determination.
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"Total Incremental Invested Equity" means, at any date of
determination, the sum of, without duplication, (a) the aggregate net cash
proceeds received by Systems either (x) as capital contributions to Systems on
or after the Issue Date, including any capital contributions made out of the
proceeds from the issuance of the Securities or (y) from the issue and sale
(other than to a Subsidiary of Systems by Systems) of its Qualified Equity
interests after the Issue Date, plus (b) the aggregate net proceeds received by
Systems or any Restricted Subsidiary after the Issue Date from the issuance
(other than to a Subsidiary of Systems) of Qualified Equity Interests upon the
conversion of, or in exchange for, Indebtedness of the Company or a Restricted
Subsidiary that has been converted into or exchanged for Qualified Equity
Interests of Systems, minus (c) the aggregate amount of all Restricted Payments
made on or after the Issue Date and all Designation Amounts arising after the
Issue Date, but only to the extent the amount set forth in this clause (c) would
exceed the amount determined under subclause (a) of clause (iii) of the first
paragraph under Section 10.16, plus (d) in the case of the disposition or
repayment of any Investment which has been deducted pursuant to clause (c) of
this definition, an amount equal to the lesser of the return of capital with
respect to such Investment and the amount of such Investment which has been
deducted pursuant to such clause (c), plus (e) in the case of any Revocation
with respect to any Subsidiary that was made the subject of Designation after
the Issue Date and as to which a Designation Amount has been deducted pursuant
to clause (c) of this definition, an amount equal to the lesser of such
Designation Amount or the Fair Market Value of the Investment of Systems and the
other Restricted Subsidiaries in such Subsidiary at the time of Revocation.
"12 3/8% Notes" means the $195,000,000 aggregate principal
amount of 12 3/8% Senior Subordinated Notes due 2006 of Systems.
"12 3/8% Notes Indenture" means the indenture dated July 31,
1998 governing the 12 3/8% Notes.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
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"Unrestricted Subsidiary" means any Subsidiary of the Company
designated as such pursuant to Section 10.15. Any such designation may be
revoked by a resolution of the Board of Directors of the Company delivered to
the Trustee, subject to the provisions of Section 10.15.
"Voting Equity Interests" means Equity Interests in a
corporation or other Person with voting power under ordinary circumstances
entitling the holders thereof to elect the Board of Directors or other governing
body of such corporation or such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payment
of principal, including payment of final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (b) the then outstanding
aggregate principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" means any Restricted
Subsidiary all of the outstanding Voting Equity Interests (other than directors'
qualifying shares) of which are owned, directly or indirectly, by the Company.
Section 1.02. Other Definitions.
Defined in
Term Section
---- ----------
"Act" 1.05
"Affiliate Transaction" 10.22
"Agent Member" 3.16
"Change of Control Date" 10.10
"Change of Control Offer" 10.10
"Change of Control Payment Date" 10.10
"Change of Control Purchase Price" 10.10
"covenant defeasance" 4.03
"Defaulted Interest" 3.07
"defeasance" 4.02
"Defeased Securities" 4.01
"Designation" 10.15
"Designation Amount" 10.15
"Global Security" 3.03
"insolvent person" 4.04
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Defined in
Term Section
---- ----------
"Non-Global Purchasers" 3.03
"Offer to Purchase" 10.19
"Offshore Physical Securities" 3.03
"Paying Agent" 3.02
"Physical Security" 3.03
"Securities Register" 3.05
"Securities Registrar" 3.02
"Surviving Entity" 8.01
"Unutilized Net Cash Proceeds" 10.19
Section 1.03. Rules of Construction.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d) 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;
(e) all references to "$" or "dollars" shall refer to the
lawful currency of the United States of America; and
(f) the words "include," "included" and "including" as used
herein shall be deemed in each case to be followed by the phrase
"without limitation."
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Section 1.04. Form of Documents Delivered
to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated,
with proper identification of each matter covered therein, and form one
instrument.
Section 1.05. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution
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(as provided below in subsection (b) of this Section 1.05) of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.01 hereof) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any person of any
such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind every
future Holder of the same Security or the Holder of every Security issued upon
the transfer thereof or in exchange therefor or in lieu thereof to the same
extent as the original Holder, in respect of anything done, suffered or omitted
to be done by the Trustee, any Paying Agent or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
Section 1.06. Notices, etc., to the Trustee
and the Company
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed, in writing, to or with the Trustee at 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Corporate Business Unit, or at any
other address previously furnished in writing to the Holders the
Company by the Trustee; or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose (except as otherwise expressly provided
herein) hereunder if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at Golden Sky DBS, Inc., 000
Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention:
Chief Executive Officer, or at any other address previously furnished
in writing to the Trustee by the Company.
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Section 1.07. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise expressly
provided herein) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at the address of such Holder as it appears in
the Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice when mailed
to a Holder in the aforesaid manner shall be conclusively deemed to have been
received by such Holder whether or not actually received by such Holder. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause, it shall be impracticable to mail notice of any
event as required by any provision of this Indenture, then any method of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Section 1.08. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act or another provision which is required
or deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision or requirement of the Trust Indenture Act shall
control.
If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
excluded, as the case may be.
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Section 1.09. Effect of Headings and Table of
Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its respective successors and assigns, whether so expressed or not.
Section 1.11. Separability Clause.
In case any provision in this Indenture or in the Securities
issued pursuant hereto 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 1.12. Benefits of Indenture.
Nothing in this Indenture or in the Securities or issued
pursuant hereto, express or implied, shall give to any person (other than the
parties hereto and their successors hereunder, any Paying Agent and the Holders)
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 1.13. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
Section 1.14. No Recourse Against Others.
A director, officer, employee, Subsidiary or stockholder, as
such, of the Company shall not have any liability for any obligations of the
Company under the Securities or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. The Trustee and
the Holders agree that they will not seek in any proceeding to cause the assets
of any Subsidiary of the Company to be made available to satisfy any claims
based on, in respect of, or by reason of obligations of the Company under the
Securities or
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this Indenture, including without limitation, by asserting claims of substantive
consolidation.
Section 1.15. Independence of Covenants.
All covenants and agreements in this Indenture shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default if such action is taken or condition exists.
Section 1.16. Exhibits.
All exhibits attached hereto are by this reference made a part
hereof with the same effect as if herein set forth in full.
Section 1.17. Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
Section 1.18. Duplicate Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
ARTICLE TWO
SECURITY FORMS
Section 2.01. Form and Dating.
The Initial Securities and the Exchange Securities and the
Trustee's certificate of authentication with respect thereto shall be in
substantially the forms set forth, or referenced, in Exhibit A-1 and Exhibit
A-2, respectively, annexed hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon
44
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as may be required to comply with any applicable law or with the rules of the
Depository, any clearing agency or any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution thereof.
The definitive Securities shall be printed, typewritten,
lithographed or engraved or produced by any combination of these methods or may
be produced in any other manner permitted by the rules of any securities
exchange on which the Securities may be listed, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
Each Security shall be dated the date of its authentication.
The terms and provisions contained in the Securities shall constitute, and are
expressly made, a part of this Indenture.
ARTICLE THREE
THE SECURITIES
Section 3.01. Title and Terms.
The aggregate principal amount at maturity of Securities which
may be authenticated and delivered under this Indenture is limited to
$193,100,000, except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 3.03, 3.04, 3.05, 3.06, 9.06, 10.10, 10.19 or 11.08.
The Securities will mature on March 1, 2007. The Securities
shall be issued at a discount to yield gross proceeds of $100,048,972. The
Securities shall not accrue cash interest prior to March 1, 2004. Commencing on
March 1, 2004, interest on the Securities will accrue at a rate of 13 1/2% per
annum and will be payable semi-annually in arrears from the most recent Interest
Payment Date to which interest has been paid or, if no interest has been paid,
from September 1, 2004.
The Securities shall be redeemable as provided in Article
Eleven and as provided in the Securities.
At the election of the Company, the entire Indebtedness on the
Securities or certain of the Company's obligations
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and covenants and certain Events of Default thereunder may be defeased as
provided in Article Four.
Section 3.02. Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in The City of New York, State of New York)
where Securities may be presented for registration of transfer or for exchange
(the "Security Registrar"), an office or agency (which shall be located in the
Borough of Manhattan in The City of New York, State of New York) where
Securities may be presented for payment (the "Paying Agent") and an office or
agency where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Registrar shall keep a register
of the Securities and of their transfer and exchange. The Company may have one
or more co-registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent. The Company may act as its own
Paying Agent, except for the purposes of payments on account of principal on the
Securities pursuant to Sections 10.10 and 10.19.
The Company shall enter into an appropriate agency agreement
with any Paying Agent not a party to this Indenture, which shall incorporate the
provisions of the Trust Indenture Act. The agreement shall implement the
provisions of this Indenture that relate to such Paying Agent. The Company shall
notify the Trustee of the name and address of any such Paying Agent. If the
Company fails to maintain a Security Registrar or Paying Agent, or fails to give
the foregoing notice, the Trustee shall act as such and shall be entitled to
appropriate compensation in accordance with Section 6.07 hereof.
The Company initially appoints the Trustee as the Security
Registrar and Paying Agent and agent for service of notices and demands in
connection with the Securities.
Section 3.03. Execution and Authentication.
Two Officers shall execute the Securities on behalf of the
Company by either manual or facsimile signature.
Securities bearing the manual or facsimile signature of
individuals who were at any time the proper Officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices on the date of such Securities.
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At any time and from time to time after the execution and
delivery of this Indenture, the Company many deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as
provided in this Indenture and not otherwise.
A Security shall not be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose until the Trustee manually
signs the certificate of authentication on the Security. The Trustee's signature
on such certificate shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate Initial Securities for original
issue in an aggregate principal amount at maturity not to exceed $193,100,000,
upon receipt of a Company Order. In addition, on or prior to the date of the
Registered Exchange Offer, the Trustee or an authenticating agent shall
authenticate Exchange Securities (including any Private Exchange Securities
which will be in the form of Exhibit A-2 but which shall have the restrictive
legend contained in Exhibit A-1) to be issued at the time of the Registered
Exchange Offer in the aggregate principal amount at maturity of up to
$193,100,000 upon receipt of a Company Order of the Company. In each case, the
Company Order shall specify the amount of Securities to be authenticated, the
names of the persons in which such Securities shall be registered and the date
on which such Securities are to be authenticated and direct the Trustee to
authenticate such Securities together with an Officer's Certificate certifying
that all conditions precedent to the issuance of such Securities contained
herein have been complied with. The aggregate principal amount at maturity of
Securities outstanding at any time may not exceed $193,100,000, except as
provided in Section 3.04 hereof.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities on behalf of the Trustee.
Unless limited by the terms of such appointment, an authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. Such authenticating agent shall have the same authenticating rights and
duties as the Trustee in any dealings hereunder with the Company or with any
Affiliate of the Company.
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The certificates representing the Securities will be issued in
fully registered form, without coupons and only in denominations of $1,000
principal amount at maturity and any integral multiple thereof. Except as
described below, the Securities will be deposited with, or on behalf of, the
Depository, and registered in the name of Cede & Co. as the Depository's nominee
in the form of a global note certificate substantially in the form of Exhibit
A-1 (the "Global Security").
Securities purchased by or transferred to (i) Institutional
Accredited Investors who are not Qualified Institutional Buyers, (ii) except as
described below, persons outside the United States pursuant to sales in
accordance with Regulation S under the Securities Act or (iii) any other persons
who are not Qualified Institutional Buyers (collectively, "Non-Global
Purchasers") will be issued in registered form without coupons substantially in
the form of Exhibit A-1 (the "U.S. Physical Securities"). Upon the transfer to a
Qualified Institutional Buyer of U.S. Physical Securities initially issued to a
Non-Global Purchaser, such U.S. Physical Security will be exchanged for an
interest in the Global Security or in the Securities in the custody of the
Trustee representing the principal amount at maturity of Securities being
transferred.
Securities purchased by persons outside the United States
pursuant to sales in accordance with Regulation S under the Securities Act will
be represented upon issuance by a temporary global note certificate
substantially in the form of Exhibit A-1 (the "Offshore Physical Securities"
and, together with the U.S. Physical Securities, the "Physical Securities")
which will not be exchangeable for U.S. Physical Securities until the expiration
of the "40-day restricted period" within the meaning of Rule 903(c)(3) of
Regulation S under the Securities Act. The Offshore Physical Securities will be
registered in the name of, and be held by, an offshore physical security holder
(the "Offshore Physical Security Holder") until the expiration of such 40-day
period, at which time the Offshore Physical Securities will be delivered to the
Trustee in exchange for Securities registered in the names requested by the
Offshore Physical Security Holder. In addition, until the expiration of such
40-day period, transfers of interests in the Offshore Physical Securities can
only be effected through the Offshore Physical Security Holder in accordance
with the requirements of Section 3.17 hereof.
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Section 3.04. Temporary Securities.
Until definitive Securities are prepared and ready for
delivery, the Company may execute and upon a Company Order the Trustee shall
authenticate and deliver temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities, in any authorized
denominations, but may have variations that the Company reasonably considers
appropriate for temporary Securities as conclusively evidenced by the Company's
execution of such temporary Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay but in no event
later than the date that the Registered Exchange Offer is consummated. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 10.02, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of like tenor and of authorized
denominations. Until so exchanged the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities.
Section 3.05. Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 10.02 being sometimes
referred to herein as the "Securities Register") in which, subject to such
reasonable regulations as the Securities Registrar may prescribe, the Company
shall provide for the registration of Securities and of transfers and exchanges
of Securities. The Trustee is hereby initially appointed Security Registrar for
the purpose of registering Securities and transfers of Securities as herein
provided.
When Securities are presented to the Registrar or a
co-Registrar with a request from the Holder of such Securities to register the
transfer or exchange for an equal principal amount of Securities of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested; provided that every Security presented or surrendered for
registration of transfer or exchange shall be duly
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endorsed or be accompanied by a written instrument of transfer or exchange in
form satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing. Whenever any Securities are
so presented for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive. No service charge shall be made to the Securityholder for
any registration of transfer or exchange. The Company may require from the
Securityholder payment of a sum sufficient to cover any transfer taxes or other
governmental charge that may be imposed in relation to a transfer or exchange,
but this provision shall not apply to any exchange pursuant to Section 9.06 or
10.10, hereof (in which events the Company will be responsible for the payment
of all such taxes which arise solely as a result of the transfer or exchange and
do not depend on the tax status of the Holder). The Trustee shall not be
required to exchange or register the transfer of any Security for a period of 15
days immediately preceding the first mailing of notice of redemption of
Securities to be redeemed or of any Security selected, called or being called
for redemption except, in the case of any Security where public notice has been
given that such Security is to be redeemed in part, the portion thereof not to
be redeemed.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same Indebtedness, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or exchange.
Section 3.06. Mutilated, Destroyed, Lost and Stolen
Securities.
If a mutilated Security is surrendered to the Trustee or if
the Holder of a Security of any series claims that the Security has been lost,
destroyed or wrongfully taken, the Company shall execute and upon a Company
Order, the Trustee shall authenticate and deliver a replacement Security of like
tenor and principal amount at maturity bearing a number not contemporaneously
outstanding, if the Holder of such Security furnishes to the Company and to the
Trustee evidence reasonably acceptable to them of the ownership and the
destruction, loss or theft of such Security and an indemnity bond shall be
posted, sufficient in the judgment of the Company or the Trustee, as the case
may be, to protect the Company, the Trustee or the Paying Agent from any loss
that any of them may suffer if such Security is replaced. The Company may charge
such Holder for
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the Company's expenses in replacing such Security (including expenses of the
Trustee charged to the Company) and the Trustee may charge the Company for the
Trustee's expenses (including the reasonable fees and expenses of its agents and
counsel) in replacing such Security.
Every replacement Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.07. Payment of Interest; Interest Rights
Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date and interest
on such defaulted interest at the then applicable interest rate borne by the
Securities, to the extent lawful (such defaulted interest and interest thereon
herein collectively called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the Regular Record Date; and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in
subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall
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deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the persons entitled to such
Defaulted Interest as in this subsection (a) provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the actual receipt by a Responsible Officer of the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company in writing of such Special Record Date. In
the name and at the expense of the Company, the Trustee shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at its address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid
to the persons in whose names the Securities (or their respective
Predecessor Securities) are registered on such Special Record Date and
shall no longer be payable pursuant to the following subsection (b).
(b) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, if, after written
notice given by the Company to the Trustee of the proposed payment
pursuant to this subsection (b), such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 3.08. Persons Deemed Owners.
Prior to and at the time of due presentment for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the person in whose
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name any Security is registered in the Security Register as the owner of such
Security for the purpose of receiving payment of principal of, premium, if any,
and (subject to Section 3.07) interest on such Security and for all other
purposes whatsoever, whether or not such Security shall be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 3.09. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange shall be delivered to the Trustee and, if
not already cancelled, shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly cancelled
by the Trustee. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer or exchange,
redemption or payment. The Trustee and no one else shall cancel all Securities
surrendered for registration of transfer, exchange, payment, replacement or
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section 3.09, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall
be returned to the Company.
Section 3.10. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 3.11. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
date established for the payment of Defaulted Interest or Stated Maturity of any
Security shall not be a Business Day, then (notwithstanding any other provision
of this Indenture or of the Securities) payment of principal, premium, if any,
or interest need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date, date established
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for the payment of Defaulted Interest or at the Stated Maturity, as the case may
be, and no interest shall accrue with respect to such payment for the period
from and after such Interest Payment Date, Redemption Date, date established for
the payment of Defaulted Interest or Stated Maturity, as the case may be, to the
next succeeding Business Day.
Section 3.12. CUSIP Number.
The Company in issuing the Securities may use a "CUSIP" number
(if then generally in use), and if so, the Trustee may use the CUSIP numbers in
notices of redemption or exchange as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number printed in the notice or on the
Securities, and that reliance may be placed only on the other identification
numbers printed on the Securities. The Company shall promptly notify the Trustee
in writing of any change in the CUSIP number of either series of Securities.
Section 3.13. Paying Agent To Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of, premium, if any, or interest on the Securities, and
shall notify the Trustee of any default by the Company in making any such
payment. Money held in trust by the Paying Agent need not be segregated except
as required by law and in no event shall the Paying Agent be liable for any
interest on any money received by it hereunder. The Company at any time may
require the Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed and the Trustee may at any time during the continuance
of any Event of Default, upon a Company Order to the Paying Agent, require such
Paying Agent to pay forthwith all money so held by it to the Trustee and to
account for any funds disbursed. Upon making such payment, the Paying Agent
shall have no further liability for the money delivered to the Trustee.
Section 3.14. Treasury Securities.
In determining whether the Holders of the required aggregate
principal amount at maturity of Securities have concurred in any direction,
waiver, consent or notice, Securities owned by the Company or an Affiliate of
the Company shall be considered as though they are not outstanding, except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Securities which a
Responsible Officer of the Trustee actually knows are so owned shall be so
considered. The Company shall notify the Trustee, in writing, when it or any of
its Affiliates repurchases or otherwise acquires Securities, of the
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aggregate principal amount at maturity of such Securities so repurchased or
otherwise acquired.
Section 3.15. Deposits of Monies.
Prior to 10:30 a.m. New York City time on each Interest
Payment Date, maturity date and Change of Control Payment Date, the Company
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,
maturity date and Change of Control Payment Date, as the case may be, in a
timely manner which permits the Paying Agent to remit payment to the Holders on
such Interest Payment Date, maturity date and Change of Control Payment Date, as
the case may be.
Section 3.16. Book-Entry Provisions for Global
Securities.
(a) The Global Securities initially shall (i) be registered in
the name of the Depository or the nominee of such Depository, (ii) be delivered
to the Trustee as custodian for such Depository and (iii) bear legends as set
forth in Exhibit B.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Security, and the Depository may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(b) Transfers of Global Securities shall be limited to
transfers in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the Global Securities may
be transferred or exchanged for Physical Securities in accordance with the rules
and procedures of the Depository and the provisions of Section 3.17. In
addition, Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in Global Securities if (i) the
Depository notifies the
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Company that it is unwilling or unable to continue as Depository for any Global
Security and a successor Depository is not appointed by the Company within 90
days of such notice or (ii) an Event of Default has occurred and is continuing
and the Registrar has received a written request from the Depository to issue
Physical Securities.
(c) In connection with any transfer or exchange of a portion
of the beneficial interest in any Global Security to beneficial owners pursuant
to paragraph (b), the Registrar shall (if one or more Physical Securities are to
be issued) reflect on its books and records the date and a decrease in the
principal amount at maturity of the Global Security in an amount equal to the
principal amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more Physical Securities of like tenor and principal amount
of authorized denominations.
(d) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to paragraph (b), the Global Securities
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in exchange for its beneficial
interest in the Global Securities, an equal aggregate principal amount at
maturity of Physical Securities of like tenor of authorized denominations.
(e) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to
subparagraphs (b) or (c) of this Section 3.16 shall, except as otherwise
provided by paragraphs (a)(l)(x) and (c) of Section 3.17, bear the legend
regarding transfer restrictions applicable to the Physical Securities set forth
in Exhibit A-1.
(f) The Holder of any Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
Section 3.17. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors
and Non-U.S. persons. The following provisions shall apply with respect to the
registration of any proposed transfer
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of a Security constituting a Restricted Security to any Institutional Accredited
Investor which is not a QIB or to any non-U.S. person:
(1) the Registrar shall register the transfer of any Security
constituting a Restricted Security, whether or not such Security bears
the Private Placement Legend, if (x) the requested transfer is not
prior to the date which is two years (or such shorter period as may be
prescribed by Rule 144(k) under the Securities Act or any successor
provision thereunder) after the later of the original Issue Date of
such Security (or of any Predecessor Security) or the last day on which
the Company or any Affiliate of the Company was the owner of such
Security or any Predecessor Security or (y) (1) in the case of a
transfer to a person purporting to be an Institutional Accredited
Investor which is not a QIB (excluding non-U.S. persons), the proposed
transferee has delivered to the Registrar a certificate substantially
in the form of Exhibit C hereto or (2) in the case of a transfer to a
person purporting to be a non-U.S. person, the proposed transferee has
delivered to the Registrar a certificate substantially in the form of
Exhibit D hereto; and
(2) if the proposed transferor is an Agent Member holding a
beneficial interest in a Global Security, upon receipt by the Registrar
of (x) the certificate, if any, required by paragraph (1) above and (y)
instructions given in accordance with the Depository's and the
Registrar's procedures;
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of Outstanding Physical Securities)
a decrease in the principal amount at maturity of a Global Security in an amount
equal to the principal amount at maturity of the beneficial interest in a Global
Security to be transferred, and (b) the Company shall execute and the Trustee
shall authenticate and deliver one or more Physical Securities of like tenor and
principal amount at maturity of authorized denominations.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Security constituting
a Restricted Security to a person purporting to be a QIB (excluding transfers to
non-U.S. persons):
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(1) the Registrar shall register the transfer if such transfer
is being made by a proposed transferor who has checked the box provided
for on the form of Security stating, or has otherwise advised the
Company and the Registrar in writing, that the transfer has been made
in compliance with the exemption from registration under the Securities
Act provided under Rule 144A to a transferee who has signed the
certification provided for on the form of Security stating, or has
otherwise advised the Company and the Registrar in writing, that such
transferee represents and warrants that it is purchasing the Security
for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a QIB
within the meaning of Rule 144A, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A; and
(2) if the proposed transferee is an Agent Member, and the
Securities to be transferred consist of Physical Securities which after
transfer are to be evidenced by an interest in the Global Security,
upon receipt by the Registrar of instructions given in accordance with
the Depository's and the Registrar's procedures, the Registrar shall
reflect on the Security Register the date and an increase in the
principal amount at maturity of the Global Security in an amount equal
to the principal amount at maturity of the Physical Securities to be
transferred, and the Trustee shall cancel the Physical Securities so
transferred.
(c) Private Placement Legend. Upon the registration of
transfer, exchange or replacement of Securities not bearing the Private
Placement Legend, the Registrar shall deliver Securities that do not bear the
Private Placement Legend. Upon the registration of transfer, exchange or
replacement of Securities bearing the Private Placement Legend, the Registrar
shall deliver only Securities that bear the Private Placement Legend unless (i)
the circumstances contemplated by paragraph (a)(l)(x) of this Section 3.17
exist, (ii) there is delivered to the Registrar an Opinion of Counsel
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act
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or (iii) such Security has been sold pursuant to an effective registration
statement under the Securities Act.
(d) Other Transfers. If a Holder proposes to transfer a
Security constituting a Restricted Security pursuant to any exemption from the
registration requirements of the Securities Act other than as provided for by
Section 3.17(a) and (b), the Registrar shall only register such transfer or
exchange if such transferor delivers an Opinion of Counsel satisfactory to the
Company and the Registrar that such transfer is in compliance with the
Securities Act and the terms of this Indenture; provided that the Company may,
based upon the opinion of its counsel, instruct the Registrar by a Company Order
not to register such transfer in any case where the proposed transferee is not a
QIB, non-U.S. person or Institutional Accredited Investor.
(e) General. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Security only as
provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 3.16 or this Section
3.17 for a period of two years at which time such letters, notices and other
written communications shall be delivered to the Company. The Company shall have
the right to inspect and make copies of all such letters, notices or other
written communications at any time during normal business hours upon the giving
of reasonable prior written notice to the Registrar.
ARTICLE FOUR
DEFEASANCE OR COVENANT DEFEASANCE
Section 4.01. Company's Option To Effect Defeasance
or Covenant Defeasance.
The Company may, at its option by Board Resolution, at any
time, with respect to the Securities, elect to have either Section 4.02 or
Section 4.03 be applied to all of the Outstanding Securities (the "Defeased
Securities"), upon compliance with the conditions set forth below in this
Article Four.
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Section 4.02. Defeasance and Discharge.
Upon the Company's exercise under Section 4.01 of the option
applicable to this Section 4.02, the Company shall be deemed to have been
discharged from its obligations with respect to the Defeased Securities on the
date the conditions set forth below are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Defeased
Securities, which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 4.05 and the other Sections of this Indenture referred to in
(a) and (b) below, and to have satisfied all its other Obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company and upon Company Request, shall execute
proper instruments acknowledging the same), except for the following, which
shall survive until otherwise terminated or discharged hereunder: (a) the rights
of Holders of Defeased Securities to receive, solely from the trust fund
described in Section 4.04 and as more fully set forth in such Section, payments
in respect of the principal of, premium, if any, and interest on such Securities
when such payments are due, (b) the Company's Obligations with respect to such
Defeased Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder,
including, without limitation, the Trustee's rights under Section 6.07, and (d)
this Article Four. Subject to compliance with this Article Four, the Company may
exercise its option under this Section 4.02 notwithstanding the prior exercise
of its option under Section 4.03 with respect to the Securities.
Section 4.03. Covenant Defeasance.
Upon the Company's exercise under Section 4.01 of the option
applicable to this Section 4.03, the Company shall be released from its
obligations under any covenant or provision contained in Sections 10.06 through
10.23 and the provisions of Articles Eight and Eleven shall not apply, with
respect to the Defeased Securities on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and the Defeased
Securities shall thereafter be deemed not to be "Outstanding" for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Defeased
Securities, the Company may
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omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or Article, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or Article or by reason of any reference in any such Section or Article
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
5.01(iii)-(vi), but, except as specified above, the remainder of this Indenture
and such Defeased Securities shall be unaffected thereby.
Section 4.04. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions to application of either
Section 4.02 or Section 4.03 to the Defeased Securities:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.09 who shall agree to comply with the
provisions of this Article Four applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (a) U.S. dollars in an amount, or (b)
Government Securities which through the scheduled payment of principal,
premium, if any, and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (c) a combination thereof, in any
such case, sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of, premium, if any, and interest on the
Defeased Securities upon redemption or at the Stated Maturity of such
principal or installment of principal, premium, if any, or interest;
provided, however, that the Trustee shall have been irrevocably
instructed in writing to apply such money or the proceeds of such
Government Securities to said payments with respect to the Securities;
(2) No Default shall have occurred and be continuing on the
date of such deposit;
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(3) Neither the Company nor any Subsidiary of the Company is
an "insolvent person" within the meaning of any applicable Bankruptcy
Law on the date of such deposit or at any time during the period ending
on the ninety-first day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(4) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest in violation of Section 6.08 and
for purposes of the Trust Indenture Act with respect to any securities
of the Company;
(5) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Company is a party or
by which it is bound;
(6) In the case of an election under Section 4.02, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (y) since the date hereof, there
has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm
that, the Holders of the Outstanding Securities will not recognize
income, gain or loss for Federal income tax purposes as a result of
such 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 defeasance had not occurred;
(7) In the case of an election under Section 4.03, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities 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;
(8) The Company shall have delivered to the Trustee, an
Opinion of Counsel to the effect that immediately following the
ninety-first day after the deposit, the trust funds established
pursuant to this Article will not be subject to the effect of any
applicable bankruptcy, insolvency,
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reorganization or similar laws affecting creditors' rights generally
under any applicable U.S. Federal or state law;
(9) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit made by the Company
pursuant to its election under Section 4.02 or 4.03 was not made by the
Company with the intent of preferring the Holders over the other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others; and
(10) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that (i)
all conditions precedent (other than conditions requiring the passage
of time) provided for relating to either the defeasance under Section
4.02 or the covenant defeasance under Section 4.03 (as the case may be)
have been complied with as contemplated by this Section 4.04 and (ii)
if any other Indebtedness of the Company shall then be outstanding or
committed, such defeasance or covenant defeasance will not violate the
provisions of the agreements or instruments evidencing such
Indebtedness.
Opinions required to be delivered under this Section may have
such qualifications as are customary for opinions of the type required and
acceptable to the Trustee.
Section 4.05. Deposited Money and Government
Securities To Be Held in Trust; Other
Miscellaneous Provisions.
Subject to the proviso of the last paragraph of Section 10.03,
all money and Government Securities (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 4.05, the "Trustee") pursuant to Section 4.04 in respect of the Defeased
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (other than the Company) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent required by law.
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The Company shall pay and indemnify the Trustee and hold it
harmless against any tax, fee or other charge imposed on or assessed against the
Government Securities deposited pursuant to Section 4.04 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
Defeased Securities.
Anything in this Article Four to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Securities held by it as provided in Section
4.04 which, in the opinion of an internationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to a
Responsible Officer of the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent defeasance or
covenant defeasance.
Section 4.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 4.02 or 4.03, as the case may
be, by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
obligations of the Company under this Indenture, the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 4.02 or
4.03, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money and Government Securities in accordance with
Section 4.02 or 4.03, as the case may be; provided, however, that if the Company
makes any payment of principal, premium, if any, or interest on any Security
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money and Government Securities held by the Trustee or Paying Agent.
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ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of
any administrative or governmental body):
(i) default in the payment of interest on the Securities
issued thereunder when it becomes due and payable and continuance of
such default for a period of 30 days or more; or
(ii) default in the payment of (a) if prior to March 1,
2004, the Accreted Value of, and (b) if on or after March 1, 2004, the
principal amount at maturity of and premium, if any, on the Securities
when due (including the failure to make a payment to purchase
Securities pursuant to a Change of Control Offer); or
(iii) default in the performance, or breach, of any covenant
described under Section 10.19 or Article Eight; or
(iv) default in the performance, or breach, of any covenant
in this Indenture (other than defaults specified in clause (i), (ii) or
(iii) above) and continuance of such default or breach for a period of
30 days or more after written notice to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount at maturity of the outstanding Securities
(in each case, when such notice is deemed received in accordance with
this Indenture); or
(v) failure to perform any term, covenant, condition or
provision of one or more classes or issues of Indebtedness in an
aggregate principal amount of $15.0 million or more under which the
Company or a Restricted Subsidiary is obligated, and either (a) such
Indebtedness is already due and payable in full and has not been paid
in full (and such failure continues for a period of 30 days or more) or
(b) such failure results in the acceleration of the final
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maturity of such Indebtedness (which acceleration has not been
rescinded prior to any declaration of acceleration of the Securities);
or
(vi) one or more judgments, orders or decrees, not subject to
appeal, for the payment of money of $15.0 million or more, either
individually or in the aggregate (in all cases net of amounts covered
by insurance for which coverage is not being challenged or denied),
shall be entered against the Company or any of the Company's
Significant Restricted Subsidiaries or any of their respective
properties and shall not be discharged, paid or stayed within 60 days
after the right of appeal has expired; or
(vii) the Company or any Significant Restricted Subsidiary of
the Company pursuant to or under or within the meaning of any
Bankruptcy Law:
(a) commences a voluntary case or proceeding;
(b) consents to the making of a Bankruptcy Order in an
involuntary case or proceeding or the commencement of any case against
it;
(c) consents to the appointment of a Custodian of it or
for any substantial part of its property;
(d) makes a general assignment for the benefit of
its creditors;
(e) files an answer or consent seeking reorganization
or relief;
(f) shall admit in writing its inability to pay its debts
generally; or
(g) consents to the filing of a petition in bankruptcy; or
(viii) a court of competent jurisdiction in any involuntary
case or proceeding enters a Bankruptcy Order against the Company or any
Significant Restricted Subsidiary, and such Bankruptcy Order remains
unstayed and in effect for 60 consecutive days; or
(ix) a Custodian shall be appointed out of court with
respect to the Company or any Significant Restricted Subsidiary or with
respect to all or any substantial part
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of the assets or properties of the Company or any Significant
Restricted Subsidiary.
Section 5.02. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to the Securities (other
than an Event of Default with respect to the Company described in clause (vii)
of the preceding paragraph) occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount at maturity of the outstanding
Securities by notice in writing to the Company may declare the Default Amount of
all the outstanding Securities to be due and payable immediately and, upon any
such declaration, such Default Amount will become immediately due and payable.
If an Event of Default specified in clause (vi) of the preceding paragraph with
respect to the Company occurs under the Indenture, the outstanding Securities
will ipso facto become immediately due and payable without any declaration or
other act on the part of the Trustee or any holder of the Securities.
Notwithstanding the foregoing, in the event of a declaration
of acceleration in respect of the Securities because an Event of Default
specified in clause (v) above shall have occurred and be continuing, such
declaration of acceleration shall be automatically annulled if the Indebtedness
that is the subject of such Event of Default has been discharged or paid or such
Event of Default shall have been cured or waived by the holders of such
Indebtedness and written notice of such discharge, cure or waiver, as the case
may be, shall have been given to the Trustee by the Company or by the requisite
holders of such Indebtedness or a trustee, fiduciary or agent for such holders,
within 30 days after such declaration of acceleration in respect of the
Securities, and no other Event of Default shall have occurred which has not been
cured or waived during such 30-day period.
After a declaration of acceleration, the Holders of a majority
in aggregate principal amount at maturity of the outstanding Securities may, by
notice to the Trustee, rescind such declaration of acceleration if all existing
Events of Default have been cured or waived, other than nonpayment of principal
of, premium, if any, and accrued interest on the Securities that has become due
solely as a result of the acceleration thereof, and if the rescission of
acceleration would not conflict with any judgment or decree. Past defaults under
this Indenture (except a default in the payment of the principal of, premium, if
any, or interest on any Security issued thereunder or in respect
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of a covenant or a provision which cannot be modified or amended without the
consent of all Holders of such Securities) may be waived by the Holders of a
majority in aggregate principal amount of the outstanding Securities.
Section 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if an Event of Default specified in
Section 5.01(i), 5.01(ii) or 5.01(iii) (to the extent relating to the payment
required by Section 10.19) shall have occurred and be continuing, the Company
will, upon demand of the Trustee, pay to the Trustee, for the benefit of the
Holders, the whole amount then due and payable on such Securities for principal,
premium, if any, and interest, with interest upon the overdue principal,
premium, if any, and, to the extent that payment of such interest shall be
legally enforceable, upon overdue installments of interest, at the rate then
borne by the Securities; and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may,
but is not obligated under this paragraph to, at the expense of the Company,
institute a judicial proceeding for the collection of the sums so due and unpaid
and may, but is not obligated under this paragraph to, prosecute such proceeding
to judgment or final decree, and may, but is not obligated under this paragraph
to, enforce the same against the Company or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion, but is not obligated under this paragraph to, (i) proceed
to protect and enforce its rights and the rights of the Holders under this
Indenture by such appropriate private or judicial proceedings as the Trustee
shall deem most effectual to protect and enforce such rights, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or
in aid of the exercise of any power granted herein, or (ii) proceed to protect
and enforce any other proper remedy. No recovery of any such judgment upon any
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property of the Company shall affect or impair any rights, powers or remedies of
the Trustee or the Holders.
Section 5.04. Trustee May File Proofs of Claims.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities, including the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, fees, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any 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 the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07 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
Securities 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.
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Section 5.05. Trustee May Enforce Claims Without Possession
of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, fees,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders in respect of which such judgment has
been recovered.
Section 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article,
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal,
premium, if any, or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: to the Trustee for amounts due under Section 6.07;
Second: to Holders for interest accrued on the Securities,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities for interest;
Third: to Holders for principal and premium, if any, amounts
owing under the Securities, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Securities
for principal and premium, if any; and
Fourth: the balance, if any, to the Company.
The Trustee, upon prior written notice to the Company, may fix
a record date and payment date for any payment to Securityholders pursuant to
this Section 5.06.
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Section 5.07. Limitation on Suits.
No Holder of any Security will have any right to institute any
proceeding with respect to this Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default thereunder and unless the Holders of at least 25% of
the aggregate principal amount of the outstanding Securities under this
Indenture shall have made written request, and offered reasonable indemnity, to
the Trustee to institute such proceeding as Trustee, and the Trustee shall have
not received from the Holders of a majority in aggregate principal amount at
maturity of outstanding Securities a direction inconsistent with such request
and shall have failed to institute such proceeding within 45 days. However, such
limitations do not apply to a suit instituted by a holder of a Security for
enforcement of payment of the principal of and premium, if any, or interest on
such Security on or after the respective due dates expressed in such Security.
During the existence of an Event of Default under this
Indenture, the Trustee is required to exercise such rights and powers vested in
it under this Indenture and use the same degree of care and skill in its
exercise thereof as a prudent Person would exercise under the circumstances in
the conduct of such Person's own affairs. Subject to the provisions of this
Indenture relating to the duties of the Trustee, in case an Event of Default
shall occur and be continuing, the Trustee is not under any obligation to
exercise any of its rights or powers under this Indenture at the request or
direction of any of the Holders, unless such Holders shall have offered to such
Trustee security or indemnity satisfactory to it. Subject to certain provisions
of this Indenture concerning the rights of the Trustee, the Holders of a
majority in aggregate principal amount of the applicable issue of outstanding
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee under this Indenture, or
exercising any trust, or power conferred on the Trustee.
It is understood and intended that no one or more Holders
shall have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture or any Security to affect, disturb or prejudice the
rights of any other Holders, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this Indenture
or any Security, except in the manner provided in this Indenture and for the
equal and ratable benefit of all the Holders.
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Section 5.08. Unconditional Right of Holders To Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive cash payment of the principal of, premium, if any, and
(subject to Section 3.07 hereof) interest on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on
the respective Redemption Date) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the consent of such
Holder.
Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture or any Security and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as provided in Section 3.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article Five or by law to the Trustee or to the Holders may be
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exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
Section 5.12. Control by Majority.
The Holders of a majority in aggregate principal amount at
maturity of the Outstanding Securities shall have the right to 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, provided,
however, that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture or any Security or expose the Trustee to
personal liability; and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount at maturity of the Outstanding Securities may on behalf of the Holders of
all the Securities waive any past Default hereunder and its consequences, except
a Default
(a) in the payment of the principal of, premium, if any, or
interest on any Security or
(b) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
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
thereon.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action
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taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount at maturity of the Outstanding
Securities, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of, premium, if any, or interest on any Security on or
after the respective Stated Maturities expressed in such Security (or, in the
case of redemption, on or after the respective Redemption Dates).
Section 5.15. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury or other law wherever enacted, now or at any time hereafter in
force, which would prohibit or forgive the Company from paying all or any
portion of the principal of, premium, if any, or interest on the Securities
contemplated herein or in the Securities or which may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it 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 5.16. Unconditional Right of Holders To Institute
Certain Suits.
Notwithstanding any other provision in this Indenture and any
other provision of any Security, the right of any Holder of any Security to
receive payment of the principal of, premium, if any, and interest on such
Security on or after the respective Stated Maturities (or the respective
Redemption Dates, in the case of redemption) expressed in such Security, or
after such respective dates, shall not be impaired or affected without the
consent of such Holder.
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ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(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 the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by 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 stated therein).
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own gross negligent action, its own
gross negligent failure to act, or its own willful misconduct, except that no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
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(d) 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 6.01.
Section 6.02. Notice of Defaults.
Within 90 days after the occurrence of any Default or Event of
Default with respect to the outstanding Securities, the Trustee shall give the
Holders notice of all uncured Defaults or Events of Default known to it;
provided, however, that, except in the case of an Event of Default in payment
with respect to such Securities or a Default or Event of Default in complying
with Article Eight, the Trustee shall be protected in withholding such notice if
and so long as a committee of its trust officers in good faith determines that
the withholding of such notice is in the interest of the Holders.
Section 6.03. Certain Rights of Trustee.
Subject to Section 6.01 hereof and the provisions of Section
315 of the Trust Indenture Act:
(a) 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, other evidence of
indebtedness or other paper or document (whether in its original or
facsimile form) believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution thereof;
(c) the Trustee may consult with counsel of its selection and
any advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the
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Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities which might be incurred by the
Trustee in compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture other than any liabilities arising out of its own gross
negligence;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, approval, appraisal, bond, debenture, note, coupon,
security, other evidence of indebtedness or other paper or document
unless requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities then
Outstanding; provided, however, that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee
may require indemnity satisfactory to it against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of
every such investigation shall be paid by the Company or, if paid by
the Trustee or any predecessor Trustee, shall be repaid by the Company
upon demand; provided, further, the Trustee in its discretion may make
such further inquiry or investigation into such facts or matters as it
may deem fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney
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; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
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Section 6.04. Trustee Not Responsible for Recitals,
Dispositions of Securities or Application of
Proceeds Thereof.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by
it in a Statement of Eligibility and Qualification on Form T-1, if any, to be
supplied to the Company are true and accurate subject to the qualifications set
forth therein. The Trustee shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
Section 6.05. Trustee and Agents May Hold Securities;
Collections; Etc.
The Trustee, any Paying Agent, Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities, with the same rights it would have if it were
not the Trustee, Paying Agent, Security Registrar or such other agent and,
subject to Sections 6.08 and 6.13 hereof and Sections 310 and 311 of the Trust
Indenture Act, may otherwise deal with the Company and receive, collect, hold
and retain collections from the Company with the same rights it would have if it
were not the Trustee, Paying Agent, Security Registrar or such other agent.
Section 6.06. Money Held in Trust.
All moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required herein or by law. The Trustee shall not be under any liability for
interest on any moneys received by it hereunder.
Section 6.07. Compensation and Indemnification of Trustee and
Its Prior Claim.
The Company covenants and agrees: (a) to pay to the Trustee
from time to time, and the Trustee shall be entitled to, compensation for all
services rendered by it hereunder
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(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) as the Company and the Trustee
shall, from time to time, agree in writing; (b) to reimburse the Trustee and
each predecessor Trustee upon its request for all reasonable expenses, fees,
disbursements and advances incurred or made by or on behalf of it in accordance
with any of the provisions of this Indenture (including the reasonable
compensation, fees, and the expenses and disbursements of its counsel and of all
agents and other persons not regularly in its employ), except any such expense,
disbursement or advance as may arise from its gross negligence, bad faith or
willful misconduct; and (c) to indemnify the Trustee (which for purposes of this
Section 6.07 shall include its officers, directors, employees and agents) and
each predecessor Trustee for, and to hold it harmless against, any and all loss,
liability, claim, damage, or expense (including taxes other than taxes based
upon the income of the Trustee) incurred without negligence, bad faith or
willful misconduct on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including enforcement of this Section 6.07. The obligations of
the Company under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for such expenses, fees, disbursements and advances shall constitute an
additional obligation hereunder and shall survive the satisfaction and discharge
of this Indenture and the resignation or removal of the Trustee. To secure the
obligations of the Company to the Trustee under this Section 6.07, the Trustee
shall have a prior Lien upon all property and funds held or collected by the
Trustee as such, except funds and property paid by the Company held in trust for
the benefit of the Holders of Securities.
Section 6.08. Conflicting Interests.
The Trustee shall be subject to and comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Trust Indenture Act Sections 310(a)(1) and (2)
and which shall have or be wholly owned by an entity having a combined capital
and surplus of at least $50,000,000, and have a Corporate Trust Office in the
Borough of Manhattan in The City of New York, State of New
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York. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of any Federal, state, territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 6.10. Resignation and Removal; Appointment of
Successor Trustee.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 6.11.
(b) The Trustee, or any trustee or trustees hereinafter
appointed, may at any time resign by giving written notice thereof to the
Company at least 20 Business Days prior to the date of such proposed
resignation. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee by written instrument executed by authority
of the Board of Directors of the Company, a copy of which shall be delivered to
the resigning Trustee and a copy to the successor Trustee. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within 20 Business Days after the giving of such notice of resignation, the
resigning Trustee may, or any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee. Such court may thereupon, after such notice,
if any, as it may deem proper, appoint a successor Trustee.
(c) The Trustee may be removed at any time by an Act of the
Holders of a majority in principal amount at maturity of the Outstanding
Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act in
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accordance with Section 6.08 hereof after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09
hereof and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose
or rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the Trustee,
or (ii) subject to Section 5.14, the Holder of any Security who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution of its Board of Directors, shall
promptly appoint a successor Trustee. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and supersede the
successor Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders of the Securities and accepted
appointment in the manner hereinafter provided, the Holder of any Security who
has been a bona fide Holder for at least six months may, subject to Section
5.14, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by
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first-class mail, postage prepaid, to the Holders of Securities as their names
and addresses appear in the Security Register. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee as if originally named as
Trustee hereunder; but, nevertheless, on the written request of the Company or
the successor Trustee, upon payment of any and all amounts due it pursuant to
Section 6.07, such retiring Trustee shall duly assign, transfer and deliver to
the successor Trustee all moneys and property at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
Trustee all the rights, powers, duties and obligations of the retiring Trustee.
Upon request of any such successor Trustee, the Company shall execute any and
all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights and powers. Any Trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such Trustee to secure any amounts then due it pursuant to the provisions of
Section 6.07.
No successor Trustee with respect to the Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor Trustee shall be eligible to act as Trustee under this
Article.
Upon acceptance of appointment by any successor Trustee as
provided in this Section 6.11, the successor shall give notice thereof to the
Holders of the Securities, by mailing such notice to such Holders at their
addresses as they shall appear on the Security Register. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 6.10. If the Company fails to give such notice within 10
days after acceptance of appointment by the successor Trustee, the successor
Trustee shall cause such notice to be given at the expense of the Company.
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Section 6.12. Merger, Conversion, Amalgamation, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated or amalgamated, or any
corporation resulting from any merger, conversion, amalgamation or consolidation
to which the Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder without the execution or filing of any paper
or any further act on the part of any of the parties hereto, provided such
corporation shall be eligible under this Article to serve as Trustee hereunder.
In case at the time such successor to the Trustee under this
Section 6.12 shall succeed to the trusts created by this Indenture any of the
Securities shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that time
any of the Securities shall not have been authenticated, any successor to the
Trustee under this Section 6.12 may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee; and
in all such cases such certificate shall have the full force which it is
anywhere in the Securities or in this Indenture provided that the certificate of
the Trustee shall have been authenticated.
Section 6.13. Trustee's Application for Instructions from the
Company.
Any application by the Trustee for written instructions from
the Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application concerning the action to be taken or omitted.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Preservation of Information; Company To Furnish
Trustee Names and Addresses of Holders.
(a) The Trustee shall preserve the names and addresses of the
Securityholders and otherwise comply with Section 312(a) of the Trust Indenture
Act. If the Trustee is not the Registrar, the Company shall furnish or cause the
Registrar to furnish to the Trustee 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 Securityholders. Neither the Company nor the Trustee shall be under any
responsibility with regard to the accuracy of such list.
(b) The Company will furnish or cause to be furnished to the
Trustee:
(i) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular
Record Date; and
(ii) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished pursuant to this Subsection 7.01(b).
Section 7.02. Communications of Holders.
Holders may communicate with other Holders with respect to
their rights under this Indenture or under the Securities pursuant to Section
312(b) of the Trust Indenture Act. The Company and the Trustee and any and all
other persons
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benefited by this Indenture shall have the protection afforded by Section 312(c)
of the Trust Indenture Act.
Section 7.03. Reports by Trustee.
Within 60 days after June 1 of each year commencing with the
first June 1 following the date of this Indenture, the Trustee shall mail to all
Holders, as their names and addresses appear in the Security Register, a brief
report dated as of such June 1, in accordance with, and to the extent required
under Section 313 of the Trust Indenture Act. At the time of its mailing to
Holders, a copy of each such report shall be filed by the Trustee with the
Company, the SEC and with each stock exchange on which the Securities are
listed. The Company shall notify the Trustee when the Securities are listed on
any stock exchange or delisted therefrom.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OF
ASSETS, ETC.
Section 8.01. Company May Consolidate, etc., Only on Certain
Terms.
The Company shall not consolidate with or merge with or into
(whether or not the Company is the Surviving Person) any other entity and the
Company shall not, and shall not cause or permit any Restricted Subsidiary to,
sell, convey, assign, transfer, lease or otherwise dispose of all or
substantially all of the Company's properties and assets (determined on a
consolidated basis for the Company and the Restricted Subsidiaries) to any
entity in a single transaction or series of related transactions, unless: (i)
either (x) the Company shall be the Surviving Person or (y) the Surviving Person
(if other than the Company) shall be a corporation, partnership or limited
liability company organized and validly existing under the laws of the United
States of America or any State thereof or the District of Columbia, and shall
expressly assume by a supplemental indenture the due and punctual payment of the
principal of, premium, if any, and interest on all the Securities and the
performance and observance of every covenant of this Indenture and the
Registration Rights Agreement to be performed or observed on the part of the
Company; (ii) immediately thereafter, no Default shall have occurred and be
continuing; (iii) immediately after giving effect to any such transaction
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involving the Incurrence by the Company or any Restricted Subsidiary, directly
or indirectly, of additional Indebtedness (and treating any Indebtedness not
previously an obligation of the Company or any Restricted Subsidiary in
connection with or as a result of such transaction as having been Incurred at
the time of such transaction), the Company or the Surviving Person, as
applicable, could Incur, on a pro forma basis after giving effect to such
transaction as if it had occurred at the beginning of the latest fiscal quarter
for which consolidated financial statements of the Company are available, at
least $1.00 of additional Indebtedness under the proviso in Section 10.12; and
(iv) the Company has delivered to the Trustee an opinion of counsel to the
effect that the Holders will not recognize gain or loss for federal income tax
purposes as a result of such transaction; provided, however, that the Company
may consolidate with or merge with or into Holdings without complying with
clause (iii) of this Section 8.01.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all the properties and assets of one or
more Restricted Subsidiaries the Equity Interests of which constitute all or
substantially all the properties and assets of the Company shall be deemed to be
the transfer of all or substantially all the properties and assets of the
Company.
The meaning of the phrase "all or substantially all" as used
above varies according to the facts and circumstances of the subject
transaction, has no clearly established meaning under relevant law and is
subject to judicial interpretation. Accordingly, in certain circumstances, there
may be a degree of uncertainty in ascertaining whether a particular transaction
would involve a disposition of "all or substantially all" of the assets of the
Company, and therefore it may be unclear whether the foregoing provisions are
applicable.
Section 8.02. Successor Substituted.
In the event of any transaction (other than a lease) described
in and complying with the conditions listed above in which the Company is not
the Surviving Person and the Surviving Person is to assume all of the
Obligations of the Company under the Securities, this Indenture and the
Registration Rights Agreement pursuant to a supplemental indenture, such
Surviving Person shall succeed to, and be substituted for, and may exercise
every right and power of, the Company and the Company
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shall be discharged from its Obligations under this Indenture and the
Securities.
For all purposes of this Indenture and the Securities
(including the provision of this Section 8.02 and the covenants described in
Sections 10.11, 10.14 and 10.16), Subsidiaries of any Surviving Entity shall,
upon such transaction or series of related transactions, become Restricted
Subsidiaries unless and until designated as Unrestricted Subsidiaries pursuant
to and in accordance with Section 10.15.
ARTICLE NINE
SUPPLEMENTAL INDENTURES AND WAIVERS
Section 9.01. Supplemental Indentures, Agreements and Waivers
Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form and
substance satisfactory to the Trustee, or waiver for any of the following
purposes:
(a) to evidence the succession of another person to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Securities;
(b) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company, as applicable, herein, in the Securities, as the case may
be;
(c) to cure any ambiguity, to correct or supplement any
provision herein, in the Securities which may be defective or
inconsistent with any other provision herein or to make any other
provisions with respect to matters or questions arising under this
Indenture and the Securities; provided, however, that, in each case,
such provisions shall not materially adversely affect the interests of
the Holders;
(d) to comply with the requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 9.05 hereof or otherwise;
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(e) to evidence and provide the acceptance of the appointment
of a successor Trustee hereunder;
(f) to mortgage, pledge, hypothecate or grant a security
interest in any property or assets in favor of the Trustee for the
benefit of the Holders as security for the payment and performance of
this Indenture Obligations; or
(g) to increase the rate of interest on the Securities or
otherwise amend its indenture in a manner benefiting the Holders;
provided, however, that the Company has delivered to the Trustee an Opinion of
Counsel stating that such change, agreement or waiver does not materially
adversely affect the interests or legal rights of any Holders.
Section 9.02. Supplemental Indentures, Agreements and Waivers
with Consent of Holders.
With the written consent of the Holders of not less than a
majority in aggregate principal amount at maturity of the Outstanding Securities
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto satisfactory to the Trustee for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or the Securities, or of modifying in any manner the rights of
the Holders under this Indenture or the Securities. The Holders of not less than
a majority in aggregate principal amount at maturity of the Outstanding
Securities may waive compliance by the Company with any provision of this
Indenture or the Securities. However, no such supplemental indenture, agreement
or instrument, including any waiver pursuant to Section 5.13, shall, without the
written consent or waiver of the Holder of each Outstanding Security affected
thereby:
(a) reduce the principal amount at maturity of, change the
fixed maturity of, or alter the redemption provisions of, the
Securities;
(b) change the currency in which any Securities or amounts
owing thereon are payable;
(c) reduce the percentage of the aggregate principal amount at
maturity outstanding of Securities which must
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consent to an amendment, supplement or waiver or consent to take any
action under this Indenture or the Securities;
(d) impair the right to institute suit for the enforcement of
any payment on or with respect to the Securities;
(e) waive a default in payment with respect to the Securities;
(f) reduce the rate or extend the time for payment of interest
on the Securities;
(g) following the occurrence of a Change of Control or an
Asset Sale, alter the Company's obligation to purchase the Securities
in accordance with this Indenture or waive any default in the
performance thereof; or
(h) affect the ranking of the Securities in a manner adverse
to the Holder.
Upon the written request of the Company accompanied by a copy
of a Board Resolution authorizing the execution of any such supplemental
indenture or other agreement, instrument or waiver, and upon the filing with the
Trustee of evidence of the consent of Holders as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture or other
agreement, instrument or waiver.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture or
other agreement, instrument or waiver, but it shall be sufficient if such Act
shall approve the substance thereof.
Section 9.03. Execution of Supplemental Indentures,
Agreements and Waivers.
In executing, or accepting the additional trusts created by,
any supplemental indenture, agreement, instrument or waiver permitted by this
Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01 hereof) shall be fully protected in relying upon, an Opinion of Counsel and
an Officers' Certificate from each obligor under the Securities entering into
such supplemental indenture, agreement, instrument or waiver, each stating that
the execution of such supplemental indenture, agreement, instrument or
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waiver (a) is authorized or permitted by this Indenture and (b) does not violate
the provisions of any agreement or instrument evidencing any other Indebtedness
of the Company or any Subsidiary of the Company. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture, agreement,
instrument or waiver which affects the Trustee's own rights, duties or
immunities under this Indenture, the Securities or otherwise.
Section 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article Nine, this Indenture and/or the Securities shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture and/or the Securities, as the case may be, for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
Nine shall conform to the requirements of the Trust Indenture Act as then in
effect.
Section 9.06. Reference in Securities to Supplemental
Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors of the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee upon a Company Order in exchange for Outstanding Securities.
Section 9.07. Record Date.
The Company may, but shall not be obligated to, fix, a record
date for the purpose of determining the Holders entitled to consent to any
supplemental indenture, agreement or instrument or any waiver, and shall
promptly notify the Trustee of any such record date. If a record date is fixed
those persons who were Holders at such record date (or their duly designated
proxies), and only those persons, shall be entitled to
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consent to such supplemental indenture, agreement or instrument or waiver or to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
Section 9.08. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to
it by a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if a notation of the consent is
not made on any Security. However, any such Holder, or subsequent Holder, may
revoke the consent as to his Security or portion of a Security if the Trustee
receives the notice of revocation before the date the amendment or waiver
becomes effective. An amendment or waiver shall become effective in accordance
with its terms and thereafter bind every Holder.
ARTICLE TEN
COVENANTS
Section 10.01. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of,
premium, if any, and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
Section 10.02. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan in The
City of New York, State of New York, an office or agency where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
office of the Trustee at its Corporate Trust Office will be such office or
agency of the Company, unless the Company shall designate and maintain some
other office or agency for one or more of such purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or
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shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York, State of New
York) where the Securities may be presented or surrendered for any or all such
purposes, and may from time to time rescind such designation; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in The City of New York, State
of New York for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and any change in the location
of any such other office or agency.
Section 10.03. Money for Security Payments To Be Held in
Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of, premium, if any, or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Holders entitled thereto a sum sufficient to pay the principal, premium,
if any, or interest so becoming due until such sums shall be paid to such
persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee of its action or failure so to act.
If the Company is not acting as Paying Agent, the Company
will, on or before each due date of the principal of, premium, if any, or
interest on, any Securities, deposit with a Paying Agent a sum in same day funds
sufficient to pay the principal, premium, if any, or interest so becoming due,
such sum to be held in trust for the benefit of the Holders entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of such action or any failure so to
act.
If the Company is not acting as Paying Agent, the Company will
cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent will agree with the Trustee,
subject to the provisions of this Section 10.03, that such Paying Agent will:
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(a) hold all sums held by it for the payment of the principal
of, premium, if any, or interest on Securities in trust for the benefit
of the Holders entitled thereto until such sums shall be paid to such
Holders or otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company (or
any other obligor upon the Securities) in the making of any payment of
principal of, premium, if any, or interest on the Securities;
(c) at any time during the continuance of any such Default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects
with the provisions of this Indenture relating to the duties, rights
and liabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent will be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Security and remaining unclaimed for two years after
such principal, premium, if any, or interest has become due and payable shall be
paid to the Company upon receipt of a Company Request therefor, or (if then held
by the Company) will be discharged from such trust; and the Holder of such
Security will thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, will thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and the
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the
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date of such notification or publication, any unclaimed balance of such money
then remaining shall be repaid to the Company.
Section 10.04. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect the
corporate existence, rights (charter and statutory), licenses and franchises of
the Company and each of the Restricted Subsidiaries; provided, however, that the
Company will not be required to preserve any such right, license or franchise if
the Board of Directors of the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
the Restricted Subsidiaries as a whole and that the loss thereof is not adverse
in any material respect to the Holders; provided, further, that the foregoing
will not prohibit a sale, transfer or conveyance of a Subsidiary of the Company
or any of its assets in compliance with the terms of this Indenture.
Section 10.05. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all material taxes,
assessments and governmental charges levied or imposed (i) upon the Company or
any of its Subsidiaries or (ii) upon the income, profits or property of the
Company or any of the Restricted Subsidiaries and (b) all material lawful claims
for labor, materials and supplies, which, if unpaid, could reasonably be
expected to become a Lien upon the property of the Company or any of the
Restricted Subsidiaries; provided, however, that the Company will not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings properly instituted and
diligently conducted.
Section 10.06. Maintenance of Properties.
The Company will cause all material properties owned by the
Company or any of the Restricted Subsidiaries or used or held for use in the
conduct of their respective businesses to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in
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connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section 10.06 will prevent the Company
from discontinuing the maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any of the Restricted Subsidiaries and is not
disadvantageous in any material respect to the Holders.
Section 10.07. Insurance.
The Company will at all times keep all of its and the
Restricted Subsidiaries' properties which are of an insurable nature insured
with insurers, believed by the Company in good faith to be financially sound and
responsible, against loss or damage to the extent that property of similar
character is usually and customarily so insured by corporations similarly
situated and owning like properties.
Section 10.08. Books and Records.
The Company will, and will cause each of the Restricted
Subsidiaries to, keep proper books of record and account, in which full and
correct entries will be made of all financial transactions and the assets and
business of the Company and each Restricted Subsidiary of the Company in
accordance with GAAP.
Section 10.09. Reports.
Whether or not the Company has a class of securities
registered under the Exchange Act, the Company will furnish without cost to each
holder of Securities and file with the Trustee and, following the effectiveness
of any Exchange Offer Registration Statement or a Shelf Registration Statement,
file with the SEC (i) within the applicable time period required under the
Exchange Act, after the end of each fiscal year of the Company, the information
required by Form 10-K (or any successor form thereto) under the Exchange Act
with respect to such period, (ii) within the applicable time period required
under the Exchange Act after the end of each of the first three fiscal quarters
of each fiscal year of the Company, the information required by Form 10-Q (or
any successor form thereto) under the Exchange Act with respect to such period
and (iii) any current reports on Form 8-K (or any successor forms) required to
be filed under the Exchange Act.
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Section 10.10. Change of Control.
In the event of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Company will be obligated,
within 30 days after the Change of Control Date, to make an offer to purchase (a
"Change of Control Offer") on a business day not later than the 60th day
following the Change of Control Date (the "Change of Control Payment Date") all
of the then outstanding Securities at a purchase price (the "Change of Control
Purchase Price") in cash equal to 101% of the Accreted Value of the Securities
on the Change of Control Payment Date, unless the Change of Control Payment Date
is on or after March 1, 2004, in which case such Change of Control Purchase
Price shall be equal to 101% of the principal amount at maturity thereof, plus
accrued and unpaid interest thereon, if any, to the Change of Control Payment
Date. The Company will be required to purchase all Securities properly tendered
and not withdrawn pursuant to the Change of Control Offer.
Prior to the mailing of the notice, referred to below, but in
any event within 30 days following any Change of Control, the Company covenants
to either (i) repay in full and terminate all commitments under all Indebtedness
under the Credit Facility or offer to repay in full and terminate all
commitments under all Indebtedness under the Credit Facility and to repay the
Indebtedness owed to each lender which has accepted such offer or (ii) obtain
the requisite consents under the Credit Facility to permit the repurchase of the
Securities as provided below. The Company shall first comply with the covenant
in the immediately preceding sentence before it shall be required to repurchase
Securities pursuant to the provisions described herein. The Company's failure to
comply with the two immediately preceding sentences shall constitute an Event of
Default described in clause (iv) and not in clause (ii) under Section 5.01.
In order to effect such Change of Control Offer, the Company
will, not later than the 30th day after the Change of Control Date, be obligated
to mail to each Holder of Securities notice of the Change of Control Offer,
which notice will govern the terms of the Change of Control Offer and will
state, among other things, the procedures that Holders must follow to accept the
Change of Control Offer. The Change of Control Offer will be required to be kept
open for a period of at least 20 business days.
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The notice, which shall govern the terms of the Change of
Control Offer, shall include such disclosures as are required by law and shall
state:
(a) that the Change of Control Offer is being made pursuant to
this Section 10.10 and that all Securities tendered into the Change of
Control Offer will be accepted for payment;
(b) the purchase price (including the amount of accrued
interest, if any) for each Security, the Change of Control Purchase
Date and the date on which the Change of Control Offer expires;
(c) that any Security not tendered for payment will continue
to accrue interest in accordance with the terms thereof;
(d) that, unless the Company shall default in the payment of
the purchase price, any Security accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change
of Control Purchase Date;
(e) that Holders electing to have Securities purchased
pursuant to a Change of Control Offer will be required to surrender
their Securities to the Paying Agent at the address specified in the
notice prior to 5:00 p.m., New York City time, on the Change of Control
Purchase Date and must complete any form letter of transmittal proposed
by the Company and acceptable to the Trustee and the Paying Agent;
(f) that Holders of Securities will be entitled to withdraw
their election if the Paying Agent receives, not later than 5:00 p.m.,
New York City time, on the Change of Control Purchase Date, a facsimile
transmission or letter setting forth the name of the Holders, the
principal amount of Securities the Holders delivered for purchase, the
Security certificate number (if any) and a statement that such Holder
is withdrawing his election to have such Securities purchased;
(g) that Holders whose Securities are purchased only in part
will be issued Securities of like tenor equal in principal amount to
the unpurchased portion of the Securities surrendered;
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(h) the instructions that Holders must follow in order to
tender their Securities; and
(i) information concerning the business of the Company, the
most recent annual and quarterly reports of the Company filed with the
SEC pursuant to the Exchange Act (or, if the Company is not required to
file any such reports with the SEC, the comparable reports prepared
pursuant to Section 10.09), a description of material developments in
the Company's business, information with respect to pro forma
historical financial information after giving effect to such Change of
Control and such other information concerning the circumstances and
relevant facts regarding such Change of Control and Change of Control
Offer as would, in the good faith judgment of the Company, be material
to a Holder of Securities in connection with the decision of such
Holder as to whether or not it should tender Securities pursuant to the
Change of Control Offer.
On the Change of Control Payment Date, the Company will (i)
accept for payment Securities or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent money, in
immediately available funds, sufficient to pay the purchase price of all
Securities or portions thereof so tendered and accepted and (iii) deliver to the
Trustee the Securities so accepted together with an Officers' Certificate
setting forth the Securities or portions thereof tendered to and accepted for
payment by the Company. The Paying Agent will promptly mail or deliver to the
Holders of Securities so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and mail or deliver to such
Holders a new Security of like tenor equal in principal amount to any
unpurchased portion of the Security surrendered. Any Securities not so accepted
shall be promptly mailed or delivered by the Company to the Holder thereof. The
Company will publicly announce the results of the Change of Control Offer not
later than the first Business Day following the Change of Control Purchase Date.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act, and any other applicable
securities laws or regulations in connection with the repurchase of Securities
pursuant to a Change of Control Offer. To the extent that the provisions of any
securities laws or regulations and any applicable requirements of any securities
exchange on which the Securities are listed conflict with the provisions of this
Section 10.10, the Company will comply with the applicable securities laws and
regulations
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and requirements and shall not be deemed to have breached its obligations under
this Section 10.10 by virtue thereof.
Section 10.11. Limitation on Indebtedness of the Company.
The Company will not, directly or indirectly, Incur,
contingently or otherwise, any Indebtedness (including any Acquired
Indebtedness), except that the Company may Incur each and all of the following:
(a) Indebtedness of the Company evidenced by the Securities
and this Indenture;
(b) Indebtedness represented by a guarantee of (1) the
Company's obligations of amounts outstanding under the Credit Facility
and (2) Indebtedness of a Restricted Subsidiary Incurred under clauses
(b)(2), (e), (h) and (i) of the definition of "Permitted Indebtedness,"
and any refinancing thereof under clause (g) of such definition,
pursuant to Section 10.12; and
(c) Indebtedness of the Company the proceeds of which are used
solely to refinance Indebtedness Incurred under clause (a) above;
provided that (i) the principal amount of Indebtedness incurred
pursuant to this clause (c) (or, if such Indebtedness provides for an
amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the maturity thereof, the
original issue price of such Indebtedness) shall not exceed the sum of
(x) if prior to March 1, 2004, the total Accreted Value or, if on or
after March 1, 2004, the aggregate principal amount at maturity of the
Securities refinanced, plus (y) the amount of any premium reasonably
determined by the Company as necessary to accomplish such refinancing
by means of a tender offer or privately negotiated purchase, plus (z)
the amount of expenses in connection therewith, (ii) the new
Indebtedness refinancing such Indebtedness shall have an Weighted
Average Life to Stated Maturity that is equal to or greater than the
remaining Weighted Average Life Stated Maturity of such Indebtedness
and shall have no scheduled principal payment prior to the 91st day
after the Stated Maturity for the final scheduled principal payment of
such Indebtedness, and (iii) in the case of any partial refinancing of
the Securities, such new Indebtedness shall be unsecured.
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Section 10.12. Limitation on Additional Indebtedness of
Subsidiaries of the Company.
The Company will not permit any Restricted Subsidiary to,
directly or indirectly, Incur, contingently or otherwise, any Indebtedness
(including any Acquired Indebtedness), except for Permitted Indebtedness;
provided that the Restricted Subsidiaries will be permitted to Incur
Indebtedness (including Acquired Indebtedness), if, at the time of and
immediately after giving pro forma effect to such Incurrence (including the
application of the net proceeds therefrom), the Debt to Operating Cash Flow
Ratio of the Company would be less than or equal to 6.5 to 1.0.
Section 10.13. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, within 95 days
after the end of each fiscal year of the Company ending after the date hereof, a
written statement signed by the chairman or a chief executive officer, the
principal financial officer or principal accounting officer of the Company,
stating (i) that a review of the activities of the Company during the preceding
fiscal year has been made under the supervision of the signing officers with a
view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture and (ii) that, to the knowledge
of each officer signing such certificate, the Company has kept, observed,
performed and fulfilled each and every covenant and condition contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions, conditions and covenants hereof (or, if a Default shall have
occurred, describing all such Defaults of which such officers may have
knowledge, their status and what action the Company is taking or proposes to
take with respect thereto).
(b) When any Default under this Indenture has occurred and is
continuing, or if the Trustee or any Holder or the trustee for or the holder of
any other evidence of Indebtedness of the Company or any Restricted Subsidiary
gives any notice or takes any other action with respect to a claimed default
(other than with respect to Indebtedness (other than Indebtedness evidenced by
the Securities) in the principal amount of less than $5,000,000), the Company
will promptly notify a Responsible Officer of the Trustee of such Default,
notice or action and will deliver to the Trustee by registered or certified mail
or by telegram, or facsimile transmission followed by hard copy by registered or
certified mail an Officers' Certificate specifying such event, notice or other
action within five
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Business Days after the Company becomes aware of such occurrence and what action
the Company is taking or proposes to take with respect thereto.
Section 10.14. Limitation on Liens.
The Company will not, directly or indirectly, create, incur,
assume or suffer to exist any Lien of any kind upon any of its property or
assets, whether now owned or acquired after the Issue Date, or any proceeds
therefrom, or assign or convey any right to receive income therefrom to secure
either (i) Subordinated Indebtedness, unless the Securities are secured by a
Lien on such property, assets or proceeds that is senior in priority to the
Liens securing such Subordinated Indebtedness, or (ii) any Indebtedness of the
Company that is not Subordinated Indebtedness, unless the Securities are equally
and ratably secured with the Liens securing such other Indebtedness, except, in
either case for Liens to secure Indebtedness on cash representing the proceeds
of such Indebtedness or Government Securities acquired with such cash and
pledged for the purpose of providing for the payment of interest on such
Indebtedness and except for Liens to secure the Company's guarantee of the
Credit Facility and Interest Rate Protection Obligations of a Restricted
Subsidiary.
Section 10.15. Designation of Unrestricted Subsidiaries.
(a) The Company may designate after the Issue Date any
Subsidiary of the Company (other than Systems) as an "Unrestricted
Subsidiary" under this Section 10.15 (a "Designation") only if:
(i) no Default or Event of Default shall have
occurred and be continuing at the time of or after giving
effect to such Designation;
(ii) at the time of and after giving effect to such
Designation, Systems could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under the
proviso in Section 10.12; and
(iii) the Company would be permitted to make an
Investment (other than a Permitted Investment) at the time of
Designation (assuming the effectiveness of such Designation)
pursuant to the first paragraph or subclause (iv) of the
second paragraph of Section 10.16 in an amount (the
"Designation Amount") equal
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to the Fair Market Value of the Company's proportionate
interest of the Company and the Restricted Subsidiaries in
such Subsidiary on such date.
Notwithstanding the above, no Subsidiary of the Company shall
be designated an Unrestricted Subsidiary if such Subsidiary distributes,
directly or indirectly, DIRECTV Services pursuant to an agreement with the NRTC
or has any right, title or interest in the revenue or profits in, or holds any
Lien in respect of, any such agreement.
Neither the Company nor any Restricted Subsidiary shall at any
time (x) provide credit support for, subject any of its property or assets
(other than the Equity Interests of any Unrestricted Subsidiary) to the
satisfaction of, or guarantee, any Indebtedness of any Unrestricted Subsidiary
(including any undertaking, agreement or instrument evidencing such
Indebtedness), (y) be directly or indirectly liable for any Indebtedness of any
Unrestricted Subsidiary, or (z) be directly or indirectly liable for any
Indebtedness that provides that the Holder thereof may (upon notice, lapse of
time or both) declare a default thereon or cause the payment thereof to be
accelerated or payable prior to its final scheduled maturity upon the occurrence
of a default with respect to any Indebtedness of any Unrestricted Subsidiary,
except, in the case of clause (x) or (y), to the extent otherwise permitted
under the terms of this Indenture, including, without limitation, pursuant to
Sections 10.16 and 10.19.
(b) The Company may revoke any Designation of a Subsidiary as
an Unrestricted Subsidiary (a "Revocation") if:
(i) no Default or Event of Default shall have
occurred and be continuing at the time of and after giving
effect to such Revocation; and
(ii) all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately following such Revocation
would, if incurred at such time, have been permitted to be
incurred for all purposes of this Indenture.
All Designations and Revocations must be evidenced by a Board
Resolution, delivered to the Trustee certifying compliance with the foregoing
provisions.
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Section 10.16. Limitation on Restricted Payments.
The Company will not, and will not permit any of the
Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment
unless:
(i) no Default shall have occurred and be continuing at the
time of or after giving effect to such Restricted Payment;
(ii) immediately after giving effect to such Restricted
Payment, a Restricted Subsidiary would be able to Incur $1.00 of
Indebtedness under the Debt to Operating Cash Flow Ratio set forth in
Section 10.12; and
(iii) immediately after giving effect to such Restricted
Payment, the aggregate amount of all Restricted Payments and
Designation Amounts declared or made on or after the Issue Date does
not exceed an amount equal to the sum of, without duplication, (a) the
difference between (x) the Cumulative Operating Cash Flow determined
for the period commencing on the Issue Date and ending on the last day
of the most recent fiscal quarter immediately preceding the date of
such Restricted Payment and (y) 150% of Cumulative Consolidated
Interest Expense determined for the period commencing on the Issue Date
and ending on the last day of the most recent fiscal quarter
immediately preceding the date of such Restricted Payment, plus (b) the
aggregate net cash proceeds received by the Company either (x) as
capital contributions to the Company after the Issue Date or (y) from
the issue and sale (other than to a Subsidiary of the Company) of its
Qualified Equity Interests after the Issue Date, plus (c) the aggregate
net cash proceeds received by the Company or any Restricted Subsidiary
after the Issue Date upon the conversion of, or exchange for,
Indebtedness of the Company or a Restricted Subsidiary that has been
converted into or exchanged for Qualified Equity Interests of the
Company, plus (d) in the case of the disposition or repayment of any
Investment constituting a Restricted Payment (other than an Investment
made pursuant to clause (iv) of the following paragraph) made after the
Issue Date, an amount (to the extent not included in the computation of
Cumulative Operating Cash Flow) equal to the lesser of: (i) the return
of capital with respect to such Investment and (ii) the amount of such
Investment that was treated as a Restricted Payment, plus (e) so long
as the Designation thereof was treated as a Restricted Payment made
after the Issue Date,
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with respect to any Unrestricted Subsidiary that has been redesignated
as a Restricted Subsidiary after the Issue Date in accordance with
Section 10.15, the Company's proportionate interest equal to the Fair
Market Value of any Unrestricted Subsidiary that has been redesignated
as a Restricted Subsidiary after the Issue Date in accordance with
Section 10.15 not to exceed in any case the Designation Amount with
respect to such Restricted Subsidiary upon its Designation, minus (f)
the greater of (i) $0 and (ii) the Designation Amount (measured as of
the date of Designation) with respect to any Subsidiary of the Company
that has been Designated as an Unrestricted Subsidiary after the Issue
Date in accordance with Section 10.15 and minus (g) 50% of the
aggregate principal amount of outstanding Indebtedness included in the
calculation of clause (c) of the definition of Permitted Indebtedness
at the time of such Restricted Payment to the extent funded with the
net cash proceeds received by the Company either (x) as capital
contributions to the Company after the Issue Date or (y) from the issue
and sale (other than to a Subsidiary of the Company) of its Qualified
Equity Interests after the Issue Date. For purposes of the preceding
clauses (b) and (c) and without duplication and for purposes of the
definition of Total Incremental Invested Equity, the value of the
aggregate net cash proceeds received by the Company upon the issuance
of Qualified Equity Interests either upon the conversion of convertible
Indebtedness or in exchange for outstanding Indebtedness or upon the
exercise of options, warrants or rights will be the net cash proceeds
received upon the issuance of such Indebtedness, options, warrants or
rights plus the incremental cash received by the Company upon the
conversion, exchange or exercise thereof.
The provisions of this Section 10.16 shall not prohibit: (i)
the payment of any dividend or other distribution within 60 days after the date
of declaration thereof, if at such date of declaration such payment would comply
with the provisions of this Indenture; (ii) so long as no Default shall have
occurred and be continuing, the purchase, redemption, retirement or other
acquisition of any Equity Interests of the Company (A) in exchange for or
conversion into or (B) out of the net cash proceeds of the substantially
concurrent issue and sale (other than to a Subsidiary of the Company) of Equity
Interests of the Company (other than Disqualified Equity Interests); provided
that any such net cash proceeds pursuant to the immediately preceding subclause
(B) are excluded from clause (iii)(b) of the preceding paragraph; (iii) so long
as no
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Default shall have occurred and be continuing, the purchase, redemption,
defeasance or other acquisition or retirement for value of Subordinated
Indebtedness made by exchange for (including any such exchange pursuant to the
exercise of a conversion right or privilege in which cash is paid in lieu of
fractional shares or scrip), or out of the net cash proceeds of a substantially
concurrent issue or sale (other than to a Subsidiary of the Company) of, (A)
Equity Interests (other than Disqualified Equity Interests) of the Company;
provided that any such net cash proceeds, to the extent so used, are excluded
from clause (iii) of the preceding paragraph, and/or (B) other Subordinated
Indebtedness, having a Weighted Average Life to Maturity that is equal to or
greater than the Weighted Average Life to Maturity of the Subordinated
Indebtedness being purchased, redeemed, defeased or otherwise acquired or
retired; (iv) Investments constituting Restricted Payments in Persons engaged
primarily in a Permitted Business in an amount not to exceed $10.0 million
outstanding at any time; (v) the making of any Investment in or payment of any
dividend or distribution by the Company to Holdings for bona fide costs and
operating expenses of Holdings directly related to the operations of Holdings
and its Subsidiaries; and (vi) the payment of any dividend or distribution by
the Company to Holdings to enable it to purchase, redeem, or otherwise acquire
or retire for value Equity Interests of Holdings held by employees or former
employees of the Company, or any Subsidiary of the Company (or their estates or
beneficiaries under their estates) upon death, disability, retirement or
termination of employment, not to exceed $1.0 million in any year or $3.0
million in the aggregate since the Issue Date plus, in each case, the amount of
the net proceeds received by the Company or any such Subsidiary from life
insurance policies on the life of the employee whose Equity Interests are being
purchased, redeemed or otherwise acquired or retired for value.
In no event shall a Restricted Payment made on the basis of
consolidated financial statements prepared in good faith in accordance with GAAP
be subject to rescission or constitute a Default by reason of any requisite
subsequent restatement of such financial statements which would have made such
Restricted Payment prohibited at the time that it was made.
In determining the amount of Restricted Payments permissible
under this covenant, amounts expended pursuant to clauses (i), (iv) and (vi) of
the second preceding paragraph shall be included as Restricted Payments and
amounts expended pursuant to clauses (ii), (iii) and (v) shall be excluded. The
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amount of any non-cash Restricted Payment shall be deemed to be equal to the
Fair Market Value thereof at the date of the making of such Restricted Payment.
Section 10.17. Ownership of Systems.
The Company will at all times be the legal and beneficial
owner (as defined in this Indenture) of 100% of the Capital Stock of Systems.
Section 10.18. Limitation on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries.
The Company will not, and will not cause or permit any
Restricted Subsidiary to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction on
the ability of any Restricted Subsidiary to (a) pay dividends or make any other
distributions to the Company or any other Restricted Subsidiary on its Equity
Interests or with respect to any other interest or participation in, or measured
by, its profits, or pay any Indebtedness owed to the Company or any other
Restricted Subsidiary, (b) make loans or advances to, or guarantee any
Indebtedness or other obligations of, the Company or any other Restricted
Subsidiary, or (c) transfer any of its properties or assets to the Company or
any other Restricted Subsidiary, except for such encumbrances or restrictions
existing under or by reason of (i) restrictions under the 12 3/8% Notes
Indenture, as the same may from time to time be modified or amended and
restrictions under agreements governing Indebtedness Incurred to refinance the
12 3/8% Notes (or refinancings thereof), in each case, so long as the
restrictions as modified or amended or contained in such agreements governing
such refinancing Indebtedness, as the case may be, are no less favorable to the
holders of the Securities in any material respect than the restrictions under
the 12 3/8% Notes Indenture on the Issue Date; (ii) restrictions under the
Credit Facility so long as such restrictions are no less favorable to the
holders of the Securities in any material respect than the restrictions under
the Credit Facility in effect on the Issue Date; (iii) restrictions under other
agreements governing Indebtedness Incurred in compliance with this Indenture,
provided that any such restrictions permit the payment of dividends to the
Company in amounts and at the times necessary to permit the payment of cash
interest due on the Securities on and after September 1, 2004, but no such
permission need apply when a default or event of default in respect of such
Indebtedness has occurred and is
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continuing; (iv) applicable law; (v) any instrument governing Indebtedness or
Equity Interests of an Acquired Person acquired by the Company or any Restricted
Subsidiary as in effect at the time of such acquisition (except to the extent
such Indebtedness was incurred by such Acquired Person in connection with, as a
result of or in contemplation of such acquisition); provided, however, that such
encumbrances and restrictions are not applicable to the Company or any
Restricted Subsidiary, or the properties or assets of the Company or any
Restricted Subsidiary, other than the Acquired Person; (vi) customary
non-assignment provisions in leases and other contracts entered into in the
ordinary course of business and consistent with past practices (including,
without limitation, non-assignment provisions in agreements between the Company,
Systems or any Restricted Subsidiary and the NRTC with respect to DBS services);
(vii) Purchase Money Indebtedness for property acquired in the ordinary course
of business that only imposes encumbrances and restrictions on the property so
acquired; and (viii) any agreement for the sale or disposition of the Equity
Interests or assets of any Restricted Subsidiary; provided, however, that such
encumbrances and restrictions described in this clause (viii) are only
applicable to such Restricted Subsidiary or assets, as applicable, and any such
sale or disposition is made in compliance with Section 10.19 to the extent
applicable thereto.
Section 10.19. Disposition of Proceeds of Asset Sales.
The Company will not, and will not permit any Restricted
Subsidiary to, make any Asset Sale unless (a) the Company or such Restricted
Subsidiary, as the case may be, receives consideration at the time of such Asset
Sale at least equal to the Fair Market Value of the assets sold or otherwise
disposed of and (b) at least 85% of such consideration consists of (A) cash or
Cash Equivalents, (B) properties and capital assets to be used in a Permitted
Business and/or (C) Equity Interests in one or more Persons that are primarily
engaged in a Permitted Business so long as upon the consummation of any sale in
accordance with this clause (C), such Person becomes a Wholly Owned Restricted
Subsidiary; provided, however, that, in the case of sales pursuant to clauses
(B) and (C) not involving solely an exchange of a Permitted Business and cash
(if any), if the Fair Market Value of the assets sold or otherwise disposed of
in a single transaction or series of transactions exceeds $5.0 million, the
Company shall be required to obtain the written opinion from an Independent
Financial Advisor (and file
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such opinion with the Trustee) stating that the terms of such Asset Sale are
fair, from a financial point of view, to the Company or the Restricted
Subsidiary involved in such Asset Sale. The amount of any (i) Indebtedness
(other than any Subordinated Indebtedness) of the Company or any Restricted
Subsidiary that is actually assumed by the transferee in such Asset Sale and
from which the Company and the Restricted Subsidiaries are fully released shall
be deemed to be cash for purposes of determining the percentage of cash
consideration received by the Company or the Restricted Subsidiaries and (ii)
notes or other similar obligations received by the Company or the Restricted
Subsidiaries from such transferee that are immediately converted, sold or
exchanged (or are converted, sold or exchanged within thirty days of the related
Asset Sale) by the Company or the Restricted Subsidiaries into cash shall be
deemed to be cash, in an amount equal to the net cash proceeds realized upon
such conversion, sale or exchange for purposes of determining the percentage of
cash consideration received by the Company or the Restricted Subsidiaries.
Notwithstanding the foregoing, during the term of the Securities, the Company
and the Restricted Subsidiaries may engage in Asset Sales involving up to $10.0
million without complying with clause (b) of the first sentence of this
paragraph.
Notwithstanding the foregoing, the Company or such Restricted
Subsidiary, as the case may be, may (i) apply the Net Cash Proceeds of any Asset
Sale within 365 days of receipt thereof to repay or purchase or retire
Indebtedness of Systems and permanently reduce any related commitment, (ii)
apply such Net Cash Proceeds to acquire, construct or improve properties and
capital assets to be used on a Permitted Business within 365 days after the
receipt thereof, or (iii) any combination of the foregoing.
To the extent that all or part of the Net Cash Proceeds of any
Asset Sale are not applied (or, in the case of clause (i) above, an offer to
purchase or retire such Indebtedness of Systems has not been made) within 365
days of such Asset Sale as described in clause (i) or (ii) of the immediately
preceding paragraph (such Net Cash Proceeds, the "Unutilized Net Cash
Proceeds"), the Company shall, within 20 days after such 365th day, make an
offer to purchase ("Offer to Purchase") all outstanding Securities, at a
purchase price in cash equal to 100% of the Accreted Value of the Securities on
the Purchase Date, unless the Purchase Date is on or after March 1, 2004, in
which case such purchase price shall be an amount in cash equal to 100% of the
principal amount at maturity thereof, plus accrued and unpaid interest
(including Additional Interest, if
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any) thereon, if any, to the Purchase Date; provided, however, that the Offer to
Purchase may be deferred until there are aggregate Unutilized Net Cash Proceeds
equal to or in excess of $10.0 million, at which time the entire amount of such
Unutilized Net Cash Proceeds, and not just the amount in excess of $10.0
million, shall be applied as required pursuant to this paragraph.
With respect to any Offer to Purchase effected pursuant to
this covenant, to the extent that the principal amount at maturity of the
Securities tendered pursuant to such Offer to Purchase exceeds the Net Cash
Proceeds to be applied to the purchase thereof, such Securities shall be
purchased pro rata based on the principal amount at maturity of such Securities
tendered by each holder.
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act, and any violation of the provisions of the
Indenture relating to such Offer to Purchase occurring as a result of such
compliance shall not be deemed an Event of Default or an event that with the
passing of time or giving of notice, or both, would constitute an Event of
Default.
Each holder of Securities shall be entitled to tender all or
any portion of the Securities owned by such holder pursuant to the Offer to
Purchase, subject to the requirement that any portion of a Security tendered
must be tendered in an integral multiple of $1,000 principal amount at maturity
and subject to any proration among tendering holders as described above.
Section 10.20. Limitation on Issuances and Sales of Preferred
Equity Interests by Restricted Subsidiaries.
The Company (i) will not permit any Restricted Subsidiary to
issue any Preferred Equity Interests (other than to the Company or a Restricted
Subsidiary) and (ii) will not permit any Person (other than the Company or a
Restricted Subsidiary) to own any Preferred Equity Interests of any Restricted
Subsidiary.
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Section 10.21. Limitations on Conduct of Business of the
Company and the Restricted Subsidiaries.
The Company will not, conduct any trade or business, other
than through a Subsidiary and the ownership of Common Stock of Systems, and the
Company will not permit any of the Restricted Subsidiaries to be primarily
engaged in any business, except for a Permitted Business.
Section 10.22. Limitation on Transactions with Affiliates.
The Company will not, and will not permit, cause or suffer any
Restricted Subsidiary to, conduct any business or enter into any transaction (or
series of related transactions that are similar or part of a common plan) with
or for the benefit of any of their respective Affiliates or any beneficial
holder of 10% or more of the Common Stock of the Company or any officer or
director of the Company (each, an "Affiliate Transaction"), unless the terms of
the Affiliate Transaction are set forth in writing, and are fair and reasonable
to the Company or such Restricted Subsidiary, as the case may be. Each Affiliate
Transaction involving aggregate payments or other Fair Market Value in excess of
$5.0 million shall be approved by a majority of the Board of Directors, such
approval to be evidenced by a board resolution stating that the Board of
Directors has determined that such transaction or transactions comply with the
foregoing provisions. In addition to the foregoing, each Affiliate Transaction
involving aggregate consideration of $10.0 million or more shall be approved by
a majority of the Disinterested Directors; provided that, in lieu of such
approval by the Disinterested Directors, the Company may obtain a written
opinion from an Independent Financial Advisor stating that the terms of such
Affiliate Transaction to the Company or the Restricted Subsidiary, as the case
may be, are fair from a financial point of view.
Notwithstanding the foregoing, the restrictions set forth in
this Section 10.22 shall not apply to (i) transactions with or among the Company
and any Restricted Subsidiary or between or among Restricted Subsidiaries; (ii)
customary directors' fees, indemnification and similar arrangements, consulting
fees, employee salaries, bonuses or employment agreements, compensation or
employee benefit arrangements and incentive arrangements with any officer,
director or employee of the Company entered into in the ordinary course of
business (including customary benefits thereunder) and payments under any
indemnification
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arrangements permitted by applicable law; (iii) any transactions undertaken
pursuant to any other contractual obligations in existence on the Issue Date (as
in effect on the Issue Date); (iv) any Restricted Payments made in compliance
with Section 10.16; (v) loans, advances and reimbursements to officers,
directors and employees of the Company and the Restricted Subsidiaries for
travel, entertainment, moving and other relocation expenses, in each case made
in the ordinary course of business and consistent with past business practices;
(vi) the pledge of Equity Interests of Unrestricted Subsidiaries to support the
Indebtedness thereof; (vii) the sale of products or property by any Person to
the Company or a Restricted Subsidiary, or by the Company or any Restricted
Subsidiary to any Person, in the ordinary course of business and consistent with
past practice and (viii) the issuance and sale by Systems of Qualified Equity
Interests.
Section 10.23. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company and any
other obligor on the Securities will furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture (including any covenants compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with, and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such documents,
certificates and/or opinions is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture will include:
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
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(iii) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 11.01. Right of Redemption.
If the Company elects to redeem Securities pursuant to
Paragraph 3 of the Initial Notes or Paragraph 2 of the Exchange Notes, it shall
notify the Trustee of the Redemption Date and principal amount at maturity of
Securities to be redeemed.
Section 11.02. Applicability of Article.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article.
Section 11.03. Election To Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant
to Section 11.01 shall be evidenced by a Board Resolution and an Officers'
Certificate. In case of any redemption at the election of the Company, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice period shall be satisfactory to the Trustee),
notify the Trustee in writing of such Redemption Date and of the principal
amount at maturity of Securities to be redeemed.
Section 11.04. Selection by Trustee of Securities To Be
Redeemed.
In the case of a partial redemption, selection of the
Securities for redemption will be made pro rata, by lot or such
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other method as the Trustee in its sole discretion deems appropriate and just;
provided that any redemption pursuant to the provisions relating to a Public
Equity Offering shall be made on a pro rata basis or on as nearly a pro rata
basis as practicable (subject to procedures of the Depository). No Securities of
a principal amount at maturity of $1,000 or less shall be redeemed in part.
Notice of redemption shall be mailed by first-class mail at least 30 but not
more than 60 days before the redemption date to each Holder of Securities to be
redeemed at its registered address. If any Security is to be redeemed in part
only, the notice of redemption that relates to such Security shall state the
portion of the principal amount at maturity thereof to be redeemed. A new
Security in a principal amount at maturity equal to the unredeemed portion
thereof will be issued in the name of the holder thereof upon surrender for
cancellation of the original Security. Upon giving of a redemption notice,
interest on Securities called for redemption will cease to accrue from and after
the date fixed for redemption (unless the Company defaults in providing the
funds for such redemption) and such Securities will cease to be outstanding.
The Trustee shall promptly notify the Company and each
Security Registrar in writing of the Securities selected for partial redemption
and the principal amount at maturity thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount at maturity of such Security which has been
or is to be redeemed.
Section 11.05. Notice of Redemption.
Notice of redemption will be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at the address of
such Holder appearing in the Security Register.
All notices of redemption will fully identify the Securities
and will state:
(i) the Redemption Date;
(ii) the Redemption Price;
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(iii) if less than all Outstanding Securities are to be
redeemed, the identification of the particular Securities to be
redeemed;
(iv) in the case of a Security to be redeemed in part, the
principal amount at maturity of such Security to be redeemed and that
after the Redemption Date upon surrender of such Security, a new
Security or Securities in the aggregate principal amount at maturity
equal to the unredeemed portion thereof shall be issued;
(v) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price;
(vi) that on the Redemption Date the Redemption Price shall
become due and payable upon each such Security or portion thereof, and
that (unless the Company shall default in payment of the Redemption
Price) interest thereon shall cease to accrue on and after said date;
(vii) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(viii) the CUSIP number relating to such Securities; and
(ix) the paragraph of the Securities pursuant to which the
Securities are being redeemed.
Notice of redemption of Securities to be redeemed at the
election of the Company will be given by the Company or, at the Company's
written request, by the Trustee in the name and at the expense of the Company.
The notice if mailed in the manner herein provided will be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for redemption as a whole or
in part will not affect the validity of the proceedings for the redemption of
any other Security.
Section 11.06. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company will deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold
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in trust as provided in Section 10.03) an amount of money in same day funds
sufficient to pay the Redemption Price of, and accrued interest on, all the
Securities or portions thereof which are to be redeemed on that date.
Section 11.07. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed will, on the Redemption Date, become due and
payable at the Redemption Price therein specified and from and after such date
(unless the Company shall default in the payment of the Redemption Price) such
Securities will cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security will be paid by the
Company at the Redemption Price; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such on the relevant Regular Record Dates according to
the terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate then borne by
such Security.
Section 11.08. Securities Redeemed or Purchased in Part.
Any Security which is to be redeemed or purchased only in part
shall be surrendered to the Paying Agent at the office or agency maintained for
such purpose pursuant to Section 10.02 (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to, the Company, the Security
Registrar or the Trustee duly executed by the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder in aggregate principal amount at maturity equal to, and
in exchange for, the unredeemed portion of the principal of the Security so
surrendered that is not redeemed or purchased.
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ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 12.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to surviving rights or registration of transfer or exchange of Securities herein
expressly provided for) and the Trustee, on written demand of and at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when either
(a) all Securities theretofore authenticated and delivered
(other than (A) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.06 hereof
and (B) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.03) have been delivered to the Trustee for
cancellation; or
(b) (i) all such Securities not theretofore delivered to the
Trustee for cancellation have become due and payable and the Company
has irrevocably deposited or caused to be deposited with the Trustee in
trust an amount of money in dollars sufficient to pay and discharge the
entire Indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for the principal amount at maturity of,
premium, if any, and accrued interest to the date of such deposit;
(ii) the Company has paid all other sums payable hereunder
by the Company; and
(iii) the Company has delivered to the Trustee (i)
irrevocable instructions to apply the deposited money toward payment of
the Securities at maturity or on the Redemption Dates thereof, as the
case may be, and (ii) an Officers' Certificate and an Opinion of
Counsel each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been
complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (a)(ii) of this
Section 12.01, the obligations of the Trustee under Section 12.02 and the last
paragraph of Section 10.03 shall survive such satisfaction and discharge.
Section 12.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.03, all money deposited with the Trustee pursuant to Section 12.01 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the persons entitled thereto, of the principal of,
premium, if any, and interest on the Securities for whose payment such money has
been deposited with the Trustee.
[signatures on following pages]
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
GOLDEN SKY DBS, INC.
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
By: /s/ XXXX X. XXXXX
-------------------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
118
EXHIBIT A-1
[Form of Security]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO REGULATION S, (2) AGREES
THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER
PERIOD AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF
ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY OR ANY PREDECESSOR OF
THIS SECURITY OR (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE
LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, (E) TO AN ACCREDITED
INVESTOR THAT IS ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON
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119
TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER
THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
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120
GOLDEN SKY DBS, INC.
-----------------
13 1/2% SENIOR DISCOUNT NOTES DUE 2007, SERIES A
CUSIP No. __________
No. ___________ $
This Security is issued with original issue discount for
purposes of Section 1271 et seq. of the Internal Revenue Code. For each $1,000
of principal amount of this Security, the issue price is $518.12 and the amount
of original issue discount is $886.88. The issue date of this Security is
February 19, 1999 and the yield to maturity is 13 1/2%.
GOLDEN SKY DBS, INC., a corporation incorporated under the
laws of the State of Delaware (herein called the "Company," which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _______________ or registered assigns,
the principal sum of _______________ Dollars on March 1, 2007, at the office or
agency of the Company referred to below, and to pay interest thereon on March 1
and September 1 (each an "Interest Payment Date"), of each year, commencing on
September 1, 2004, accruing from March 1, 2004 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, at the rate
of 13 1/2% per annum, until the principal hereof is paid or duly provided for.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture referred to
on the reverse hereof, be paid to the person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on
February 15 or August 15 (each a "Regular Record Date"), whether or not a
Business Day, as the case may be, next preceding such Interest Payment Date. Any
such interest not so punctually paid, or duly provided for, and interest on such
defaulted interest at the then applicable interest rate borne by the Securities,
to the extent lawful, shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the
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121
person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such defaulted interest to be fixed by the Trustee, notice of which shall be
given to Holders of Securities not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in such Indenture.
Payment of the principal of, premium, if any, and interest on
this Security will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan in The City of New York, State of New
York, or at such other office or agency of the Company as may be maintained for
such purpose, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the address of the person entitled thereto as such
address shall appear on the Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof.
A-1-4
122
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: February 19, 1999 GOLDEN SKY DBS, INC.
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
A-1-5
123
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 13 1/2% Senior Discount Notes due 2007,
Series A, referred to in the within-mentioned Indenture.
Dated: February 19, 0000 XXXXXX XXXXXX TRUST COMPANY OF
NEW YORK, as Trustee
By:
-----------------------------
Authorized Signatory
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124
[REVERSE OF SECURITY]
1. Indenture. This Security is one of a duly authorized issue
of Securities of the Company designated as its 13 1/2% Senior Discount Notes due
2007, Series A (herein called the "Initial Securities"). The Securities are
limited (except as otherwise provided in the Indenture referred to below) in
aggregate principal amount at maturity to $193,100,000, which may be issued
under an indenture (herein called the "Indenture") dated as of February 19,
1999, by and among the Company and United States Trust Company of New York, as
trustee (herein called the "Trustee," which term includes any successor Trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, obligations and immunities thereunder of the Company, the
Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The Securities
include the Initial Securities, the Private Exchange Securities and the Exchange
Securities, issued in exchange for the Initial Securities pursuant to the
Registration Rights Agreement. The Initial Securities and the Exchange
Securities are treated as a single class of securities under the Indenture.
All capitalized terms used in this Security which are defined
in the Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Indenture.
The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and Holders of Securities
are referred to the Indenture and the TIA for a statement of such terms.
No reference herein to the Indenture and no provisions of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Security at the times, place, and rate, and in the
coin or currency, herein prescribed.
A-1-7
125
2. Registration Rights. Pursuant to the Registration Rights
Agreement by and among the Company and the Initial Purchasers, the Company will
be obligated to consummate an exchange offer pursuant to which the Holder of
this Security shall have the right to exchange this Security for 13 1/2% Senior
Discount Notes due 2007, Series B, of the Company (herein called the "Exchange
Securities"), which have been registered under the Securities Act, in like
principal amount and having identical terms as the Securities (other than as set
forth in this paragraph). The Holders of Securities shall be entitled to receive
certain additional interest payments in the event such exchange offer is not
consummated and upon certain other conditions, all pursuant to and in accordance
with the terms of the Registration Rights Agreement.
3. Redemption. (a) Optional Redemption. The Securities will be
redeemable, at the option of the Company, in whole or in part, at any time on or
after March 1, 2004 upon not less than 30 nor more than 60 days' written notice
at the redemption prices (expressed as percentages of principal amount at
maturity) set forth below, plus accrued and unpaid interest thereon, if any, to
the applicable redemption date, if redeemed during the twelve-month period
beginning on March 1 of each of the years indicated below:
YEAR PERCENTAGE
---- ----------
2004....................................................... 106.750%
2005....................................................... 103.375%
2006 and thereafter........................................ 100.000%
(b) Optional Redemption upon Public Equity Offerings. On or
prior to March 1, 2002, the Company may, at its option, redeem up to 35% of the
originally issued aggregate principal amount at maturity of the Securities, at a
redemption price in cash equal to 113.5% of the Accreted Value of the Securities
at the date of redemption solely with the net proceeds of a Public Equity
Offering of the Company or Holdings yielding gross proceeds of at least $40
million and any subsequent Public Equity Offerings; provided, however, that not
less than 65% of the originally issued aggregate principal amount of the
Securities is outstanding following such redemption. Notice of any such
redemption must be given not later than 60 days after the consummation of any
sale resulting in the requisite gross proceeds.
A-1-8
126
(c) Mandatory Redemption. The Company will not be required to
make any mandatory sinking fund payments in respect of the Securities. However,
(i) following the occurrence of a Change of Control, the Company will be
required to make an offer to purchase all outstanding Securities at a price
equal to 101% of the Accreted Value thereof, or if the Change of Control occurs
on or after March 1, 2004, the principal amount at maturity thereof (in each
case determined at the date of purchase), plus accrued interest thereon, if any,
to the date of purchase and (ii) upon the occurrence of an Asset Sale, the
Company may be obligated to make an offer to purchase all or a portion of the
outstanding Securities at a price equal to 100% of the Accreted Value thereof,
or if the Asset Sale occurs on or after March 1, 2004, the principal amount at
maturity thereof (determined at the date of purchase), plus accrued and unpaid
interest, if any, to the date of purchase.
(d) Interest Payments. In the case of any redemption of Series
A Securities, interest installments whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Date referred to on the face hereof. Securities (or portions thereof) for
whose redemption and payment provision is made in accordance with the Indenture
shall cease to bear interest from and after the Redemption Date.
(e) Partial Redemption. In the event of redemption of this
Series A Security in part only, a new Series A Security or Securities for the
unredeemed portion hereof shall be issued in the name of the Holder hereof upon
the cancellation hereof.
4. Offers to Purchase. Section 10.10 and 10.19 of the
Indenture provide that upon the occurrence of a Change of Control and following
certain Asset Sales, and subject to certain conditions and limitations contained
therein, the Company shall make an offer to purchase all or a portion of the
Securities in accordance with the procedures set forth in the Indenture.
5. Defaults and Remedies. If an Event of Default occurs and is
continuing, the principal of all of the Outstanding Securities, plus all accrued
and unpaid interest, if any, to and including the date the Securities are paid,
may be declared due and payable in the manner and with the effect provided in
the Indenture.
A-1-9
127
6. Defeasance. The Indenture contains provisions (which
provisions apply to this Security) for defeasance at any time of (a) the entire
indebtedness of the Company and (b) certain restrictive covenants and related
Defaults and Events of Default, in each case upon compliance by the Company with
certain conditions set forth therein.
7. Amendments and Waivers. The Indenture permits, with certain
exceptions as provided therein, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount at maturity of
the Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount at
maturity of the Securities at the time Outstanding, on behalf of the Holders of
all the Securities, to waive compliance by the Company with certain provisions
of the Indenture and certain past Defaults under the Indenture and this Security
and their consequences. Any such consent or waiver by or on behalf of the Holder
of this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Security.
8. Denominations, Transfer and Exchange. The Securities are
issuable only in registered form without coupons in denominations of $1,000
principal amount at maturity and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set forth, the
Securities are exchangeable for a like aggregate principal amount at maturity of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable on
the Security Register of the Company, upon surrender of this Security for
registration of transfer at the office or agency of the Company maintained for
such purpose in the Borough of Manhattan in The City of New York, State of New
York, or at such other office or agency of the Company as may be maintained for
such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon
A-1-10
128
one or more new Securities, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
No service charge shall be made for any registration of
transfer or exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
9. Persons Deemed Owners. Prior to and at the time of due
presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security shall be overdue, and neither the Company, the
Trustee nor any agent shall be affected by notice to the contrary.
10. GOVERNING LAW. THE INDENTURE AND THIS SECURITY SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
The Company will furnish to any Holder of a Security upon
written request and without charge a copy of the Indenture. Requests may be made
to: Golden Sky DBS, Inc., 000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxx
00000.
A-1-11
129
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to ___________________________________
________________________________________________________________________________
(Insert assignee's social security or tax ID number)____________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code) and irrevocably appoint
________________________________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for such agent.
In connection with any transfer of this Security occurring
prior to the date which is the earlier of (i) the date of the declaration by the
SEC of the effectiveness of a registration statement under the Securities Act of
1933, as amended (the "Securities Act"), covering resales of this Security
(which effectiveness shall not have been suspended or terminated at the date of
the transfer) and (ii) the date two years (or such shorter period of time as
permitted by Rule 144 under the Securities Act or any successor provision
thereunder) after the later of the original issuance date appearing on the face
of this Security (or any Predecessor Security) or the last date on which the
Company or any Affiliate of the Company was the owner of this Security (or any
Predecessor Security), the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the transfer and
that:
A-1-12
130
[Check One]
[ ] (a) this Security is being transferred in compliance with the
exemption from registration under the Securities Act provided
by Rule 144A thereunder.
or
[ ] (b) this Security is being transferred other than in accordance
with (a) above and documents, including (i) a transferee
certificate substantially in the form of Exhibit C to the
Indenture in the case of a transfer to non-QIB Accredited
Investors or (ii) a transferor certificate substantially in
the form of Exhibit D to the Indenture in the case of a
transfer pursuant to Regulation S, are being furnished which
comply with the conditions of transfer set forth in this
Security and the Indenture.
If none of the foregoing boxes is checked and, in the case of (b) above, if the
appropriate document is not attached or otherwise furnished to the Trustee, the
Trustee or Registrar shall not be obligated to register this Security in the
name of any person other than the Holder hereof unless and until the conditions
to any such transfer of registration set forth herein and in Section 3.17 of the
Indenture shall have been satisfied.
Date: _______________________ Your signature: _________________________________
(Sign exactly as your name
appears on the other side of this
Security)
By:______________________________
NOTICE: To be executed by an
executive officer
Signature Guarantee:____________________
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional
A-1-13
131
buyer" within the meaning of Rule 144A under the Securities Act and is aware
that the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A (including the information specified in Rule
144A(d)(4)) or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Dated:_________________________________ ________________________________
NOTICE: To be executed by an
executive officer
A-1-14
132
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company
pursuant to Section 10.10 or 10.19 of the Indenture, check the appropriate box:
Section 10.10 [ ] Section 10.19 [ ]
If you wish to have a portion of this Security purchased by
the Company pursuant to Section 10.10 or 10.19 of the Indenture, state the
principal amount at maturity of such portion:
$__________________
Date:__________________________ Your signature:________________________________
(Sign exactly as your name
appears on the other side of
this Security)
By:_____________________________
NOTICE: To be executed by an
executive officer
Signature Guarantee:____________________
A-1-15
133
Exhibit A-2
GOLDEN SKY DBS, INC.
-----------------
13 1/2% SENIOR DISCOUNT NOTES DUE 2007, SERIES B
CUSIP No. __________
No. ___________ $
This Security is issued with original issue discount for
purposes of Section 1271 et seq. of the Internal Revenue Code. For each $1,000
of principal amount of this Security, the issue price is $518.12 and the amount
of original issue discount is $886.88. The issue date of this Security is
February 19, 1999 and the yield to maturity is 13 1/2%.
GOLDEN SKY DBS, INC., a corporation incorporated under the
laws of the State of Delaware (herein called the "Company," which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _______________ or registered assigns,
the principal sum of _______________ Dollars on March 1, 2007, at the office or
agency of the Company referred to below, and to pay interest thereon on March 1
and September 1 (each an "Interest Payment Date"), of each year, commencing on
September 1, 2004, accruing from March 1, 2004 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, at the rate
of 13 1/2% per annum, until the principal hereof is paid or duly provided for.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture referred to
on the reverse hereof, be paid to the person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on
February 15 or August 15 (each a "Regular Record Date"), whether or not a
Business Day, as the case may be, next preceding such Interest Payment Date. Any
such interest not so punctually paid, or duly provided for, and interest on such
defaulted interest at the then applicable interest rate borne by the Securities,
A-2-1
134
to the extent lawful, shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such defaulted interest to be fixed
by the Trustee, notice of which shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in such Indenture.
Payment of the principal of, premium, if any, and interest on
this Security will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan in The City of New York, State of New
York, or at such other office or agency of the Company as may be maintained for
such purpose, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the address of the person entitled thereto as such
address shall appear on the Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof.
A-2-2
135
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: February 19, 1999 GOLDEN SKY DBS, INC.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
A-2-3
136
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 13 1/2% Senior Discount Notes due 2007,
Series B, referred to in the within-mentioned Indenture.
Dated: February 19, 0000 XXXXXX XXXXXX TRUST COMPANY OF
NEW YORK, as Trustee
By:
-------------------------------------
Authorized Signatory
A-2-4
137
REVERSE OF SECURITY
1. Indenture. This Security is one of a duly authorized issue
of Securities of the Company designated as its 13 1/2% Senior Discount Notes due
2007, Series B (herein called the "Exchange Securities"). The Securities are
limited (except as otherwise provided in the Indenture referred to below) in
aggregate principal amount at maturity to $193,100,000, which may be issued
under an indenture (herein called the "Indenture") dated as of February 19,
1999, by and among the Company and United States Trust Company of New York, as
trustee (herein called the "Trustee," which term includes any successor Trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, obligations and immunities thereunder of the Company, the
Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The Securities
include the Initial Securities, the Private Exchange Securities and the Exchange
Securities, issued in exchange for the Initial Securities pursuant to the
Registration Rights Agreement. The Initial Securities and the Exchange
Securities are treated as a single class of securities under the Indenture.
All capitalized terms used in this Security which are defined
in the Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Indenture.
The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture. Notwithstanding anything to the contrary
herein, the Securities are subject to all such terms, and Holders of Securities
are referred to the Indenture and the TIA for a statement of such terms.
No reference herein to the Indenture and no provisions of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Security at the times, place, and rate, and in the
coin or currency, herein prescribed.
A-2-5
138
2. Redemption. (a) Optional Redemption. The Securities will be
redeemable, at the option of the Company, in whole or in part, at any time on or
after March 1, 2004 upon not less than 30 nor more than 60 days' written notice
at the redemption prices (expressed as percentages of principal amount at
maturity) set forth below, plus accrued and unpaid interest thereon, if any, to
the applicable redemption date, if redeemed during the twelve-month period
beginning on March 1 of each of the years indicated below:
YEAR PERCENTAGE
---- ----------
2004....................................................... 106.750%
2005....................................................... 103.375%
2006 and thereafter........................................ 100.000%
(b) Optional Redemption upon Public Equity Offerings. On or
prior to March 1, 2002, the Company may, at its option, redeem up to 35% of the
originally issued aggregate principal amount at maturity of the Securities, at a
redemption price in cash equal to 113.5% of the Accreted Value of the Securities
at the date of redemption solely with the net proceeds of a Public Equity
Offering of the Company or Holdings yielding gross proceeds of at least $40
million and any subsequent Public Equity Offerings; provided, however, that not
less than 65% of the originally issued aggregate principal amount of the
Securities is outstanding following such redemption. Notice of any such
redemption must be given not later than 60 days after the consummation of any
sale resulting in the requisite gross proceeds.
(c) Mandatory Redemption. The Company will not be required to
make any mandatory sinking fund payments in respect of the Securities. However,
(i) following the occurrence of a Change of Control, the Company will be
required to make an offer to purchase all outstanding Securities at a price
equal to 101% of the Accreted Value thereof, or if the Change of Control occurs
on or after March 1, 2004, the principal amount at maturity thereof (in each
case determined at the date of purchase), plus accrued interest thereon, if any,
to the date of purchase and (ii) upon the occurrence of an Asset Sale, the
Company may be obligated to make an offer to purchase all or a portion of the
outstanding Securities at a price equal to 100% of the Accreted Value thereof,
or if the Asset Sale occurs on or after March 1, 2004, the principal amount at
maturity thereof (determined at the date of purchase), plus accrued and unpaid
interest, if any, to the date of purchase.
X-0-0
000
(x) Interest Payments. In the case of any redemption of Series
B Securities, interest installments whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Date referred to on the face hereof. Securities (or portions thereof) for
whose redemption and payment provision is made in accordance with the Indenture
shall cease to bear interest from and after the Redemption Date.
(e) Partial Redemption. In the event of redemption of this
Series B Security in part only, a new Series B Security or Securities for the
unredeemed portion hereof shall be issued in the name of the Holder hereof upon
the cancellation hereof.
3. Offers to Purchase. Section 10.10 and 10.19 of the
Indenture provide that upon the occurrence of a Change of Control and following
certain Asset Sales, and subject to certain conditions and limitations contained
therein, the Company shall make an offer to purchase all or a portion of the
Securities in accordance with the procedures set forth in the Indenture.
4. Defaults and Remedies. If an Event of Default occurs and is
continuing, the principal of all of the Outstanding Securities, plus all accrued
and unpaid interest, if any, to and including the date the Securities are paid,
may be declared due and payable in the manner and with the effect provided in
the Indenture.
5. Defeasance. The Indenture contains provisions (which
provisions apply to this Security) for defeasance at any time of (a) the entire
indebtedness of the Company and (b) certain restrictive covenants and related
Defaults and Events of Default, in each case upon compliance by the Company with
certain conditions set forth therein.
6. Amendments and Waivers. The Indenture permits, with certain
exceptions as provided therein, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority in aggregate principal amount at maturity of
the Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount at
maturity of the Securities at the time Outstanding, on behalf of
A-2-7
140
the Holders of all the Securities, to waive compliance by the Company with
certain provisions of the Indenture and certain past Defaults under the
Indenture and this Security and their consequences. Any such consent or waiver
by or on behalf of the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof whether or not notation of such consent or waiver is made upon
this Security.
7. Denominations, Transfer and Exchange. The Securities are
issuable only in registered form without coupons in denominations of $1,000
principal amount at maturity and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set forth, the
Securities are exchangeable for a like aggregate principal amount at maturity of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable on
the Security Register of the Company, upon surrender of this Security for
registration of transfer at the office or agency of the Company maintained for
such purpose in the Borough of Manhattan in The City of New York, State of New
York, or at such other office or agency of the Company as may be maintained for
such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any registration of
transfer or exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
8. Persons Deemed Owners. Prior to and at the time of due
presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security shall be overdue, and neither the Company, the
Trustee nor any agent shall be affected by notice to the contrary.
A-2-8
141
9. GOVERNING LAW. THE INDENTURE AND THIS SECURITY SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
The Company will furnish to any Holder of a Security upon
written request and without charge a copy of the Indenture. Requests may be made
to: Golden Sky DBS, Inc., 000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxx
00000.
A-2-9
142
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to ___________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax ID number)____________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code) and irrevocably appoint
________________________________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for such agent.
Date:_______________________ Your signature:___________________________________
(Sign exactly as your name appears
on the other side of this Security)
By:________________________________
NOTICE: To be executed by an
executive officer
Signature Guarantee:___________________________
A-2-10
143
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company
pursuant to Section 10.10 of the Indenture, check the box: [ ]
If you wish to have a portion of this Security purchased by
the Company pursuant to Section 10.10 of the Indenture, state the principal
amount at maturity of such portion:
$______________
Date:_______________________ Your signature:___________________________________
(Sign exactly as your name appears
on the other side of this Security)
By:________________________________
NOTICE: To be executed by an
executive officer
Signature Guarantee:___________________________
A-2-11
144
EXHIBIT B
FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Global Security authenticated and delivered hereunder
shall bear a legend (which would be in addition to any other legends required in
the case of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY
BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), 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 DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
Golden Sky DBS, Inc.
000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of $193,100,000
aggregate principal amount at maturity of the 13 1/2% Senior Discount Notes due
2007 (the "Securities") of Golden Sky DBS, Inc. (the "Company"), we confirm
that:
1. We understand that the Securities have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"),
and, unless so registered, may not be sold except as permitted in the
following sentence. We agree on our own behalf and on behalf of any
investor account for which we are purchasing Securities to offer, sell
or otherwise transfer such Securities prior to (x) the date which is
two years (or such shorter period of time as permitted by Rule 144
under the Securities Act) after the later of the date of original issue
of the Securities and (y) such later date, if any, as may be required
by any subsequent change in applicable law (the "Resale Restriction
Termination Date") only (a) to the Company, (b) pursuant to a
registration statement which has been declared effective under the
Securities Act, (c) so long as the Securities are eligible for resale
pursuant to Rule 144A under the Securities Act, to a person we
reasonably believe is a "qualified institutional buyer" under Rule 144A
(a "QIB") that purchases for its own account or for the account of a
QIB and to whom notice is given that the transfer is being made in
reliance on Rule 144A, (d) pursuant to offers and sales that occur
outside the United States to "foreign purchasers" (as defined below) in
offshore transactions meeting the requirements of Rule 904 of
Regulation S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of subparagraph (a)(1), (2),
(3) or (7) of Rule 501 under the
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Securities Act (an "Accredited Investor") that is purchasing for its
own account or for the account of such an institutional "accredited
investor," or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject, in each of
the foregoing cases, to any requirement of law that the disposition of
our property or the property of such investor account or accounts be at
all times within our or their control and to compliance with any
applicable state securities laws. The foregoing restrictions on resale
will not apply subsequent to the Resale Restriction Termination Date.
If any resale or other transfer of the Notes is proposed to be made
pursuant to clause (c) above prior to the Resale Restriction
Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Trustee,
which shall provide, among other things, that the transferee is an
Accredited Investor within the meaning of subparagraph (a)(1), (2), (3)
or (7) of Rule 501 under the Securities Act and that it is acquiring
such Securities for investment purposes and not for distribution in
violation of the Securities Act. Each purchaser acknowledges that the
Company, the Trustee and the Transfer Agent and Registrar reserve the
right prior to any offer, sale or other transfer prior to the Resale
Restriction Termination Date of the Securities pursuant to clause (d),
(e) or (f) above to require the delivery of an opinion of counsel,
certification and/or other information satisfactory to the Company and
the Trustee.
2. We are an Accredited Investor or a QIB purchasing Notes for
our own account or for the account of one or more Accredited Investors,
and we are acquiring the Securities for investment purposes and not
with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act or the securities laws
of any state of the United States and we 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 Securities,
and we and any accounts for which we are acting are each able to bear
the economic risk of our or its investment in the Securities for an
indefinite period.
3. We are acquiring the Securities purchased by us for our own
account or for one or more accounts as to each of which we exercise
sole investment discretion and we and
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any such account are (a) a QIB, aware that the sale is being made in
reliance on Rule 144A under the Securities Act, (b) an Accredited
Investor, or (c) a person other than a U.S. person ("foreign
purchasers"), which term shall include dealers or other professional
fiduciaries in the United States acting on a discretionary basis for
foreign beneficial owners (other than an estate or trust) in offshore
transactions meeting the requirements of Rules 903 and 904 of
Regulation S under the Securities Act.
4. We have received a copy of the Offering Memorandum and
acknowledge that we have had access to such financial and other
information, and have been afforded the opportunity to ask such
questions of representatives of the Company and receive answers
thereto, as we deem necessary in order to verify the information
contained in the Offering Memorandum.
5. We are not purchasing the Securities for or on behalf of,
and will not transfer the Securities to, any pension or welfare plan
(as defined in Section 3 of ERISA), except as may be permitted under
ERISA and as described under "Notice to Investors" in the Offering
Memorandum.
6. In the event that we purchase any Securities, we will
acquire Securities having an outstanding principal amount of at least
$250,000 for our own account and $250,000 for each account for which we
are acting.
We understand that the Trustee and the Transfer Agent will not
be required to accept for registration of transfer any Securities acquired by
us, except upon presentation of evidence satisfactory to the Company and the
Trustee that the foregoing restrictions on transfer have been complied with. We
further understand that the Securities purchased by us will be in the form of
definitive physical certificates and that such certificates will bear a legend
reflecting the substance of this paragraph. We further agree to provide to any
person acquiring any of the Securities from us a notice advising such person
that transfers of such Securities are restricted as stated herein and that
certificates representing such Securities will bear a legend to that effect.
We represent that you, the Company, the Trustee and others are
entitled to rely upon the truth and accuracy of our acknowledgements,
representations and agreements set forth
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herein, and we agree to notify you promptly in writing if any of our
acknowledgements, representations or agreements herein cease to be accurate and
complete. You are also irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
We represent to you that we have full power to make the
foregoing acknowledgements, representations and agreements on our own behalf and
on behalf of any investor account for which we are acting as fiduciary agent.
As used herein, the terms "offshore transaction," "United
States" and "U.S. person" have the respective meanings given to them in
Regulation S under the Securities Act.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
(Name of Purchaser)
By:
--------------------------------------
Date:
------------------------------------
Upon transfer, the Securities would be registered in the name
of the new beneficial owner as follows:
Name:
------------------------------------
Address:
---------------------------------
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EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
--------------, ----
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Trustee Administration
Re: Golden Sky DBS, Inc.
(the "Company") 13 1/2% Senior Discount
Notes due 2007 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $193,100,000 aggregate
principal amount at maturity of the Securities, we confirm that such sale has
been effected pursuant to and in accordance with Regulation S under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(1) the offer of the Securities was not made to a person in
the United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through
the facilities of a designated off-shore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act;
(5) we have advised the transferee of the transfer
restrictions applicable to the Securities; and
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150
(6) if the circumstances set forth in Rule 904(c) under the
Securities Act are applicable, we have complied with the additional
conditions therein, including (if applicable) sending a confirmation or
other notice stating that the Securities may be offered and sold during
the restricted period specified in Rule 903(c)(2) or (3), as
applicable; in accordance with the provisions of Regulation S; pursuant
to registration of the Securities under the Securities Act; or pursuant
to an available exemption from the registration requirements under the
Securities Act.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
-----------------------------------
Authorized Signature
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