EXECUTION COPY
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PANAMSAT CORPORATION
as Issuer
and the SUBSIDIARY GUARANTORS named herein
9% Senior Notes due 2016
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INDENTURE
Dated as of July 3, 2006
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XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
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TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS....................................................1
SECTION 1.02. OTHER DEFINITIONS.............................................39
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.............41
SECTION 1.04. RULES OF CONSTRUCTION.........................................41
ARTICLE 2
THE SECURITIES
SECTION 2.01. AMOUNT OF NOTES; ISSUABLE IN SERIES...........................42
SECTION 2.02. FORM AND DATING...............................................43
SECTION 2.03. EXECUTION AND AUTHENTICATION..................................43
SECTION 2.04. REGISTRAR AND PAYING AGENT....................................44
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST...........................45
SECTION 2.06. HOLDER LISTS..................................................45
SECTION 2.07. TRANSFER AND EXCHANGE.........................................45
SECTION 2.08. REPLACEMENT NOTES.............................................46
SECTION 2.09. OUTSTANDING NOTES.............................................46
SECTION 2.10. TEMPORARY NOTES...............................................47
SECTION 2.11. CANCELLATION..................................................47
SECTION 2.12. DEFAULTED INTEREST............................................47
SECTION 2.13. CUSIP NUMBERS, ISINS, ETC.....................................47
SECTION 2.14. CALCULATION OF PRINCIPAL AMOUNT OF NOTES......................48
ARTICLE 3
REDEMPTION
SECTION 3.01. REDEMPTION....................................................48
SECTION 3.02. APPLICABILITY OF ARTICLE......................................48
SECTION 3.03. NOTICES TO TRUSTEE............................................48
SECTION 3.04. SELECTION OF NOTES TO BE REDEEMED.............................48
SECTION 3.05. NOTICE OF OPTIONAL REDEMPTION.................................49
SECTION 3.06. EFFECT OF NOTICE OF REDEMPTION................................50
SECTION 3.07. DEPOSIT OF REDEMPTION PRICE...................................50
SECTION 3.08. NOTES REDEEMED IN PART........................................50
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ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES..............................................50
SECTION 4.02. REPORTS AND OTHER INFORMATION.................................51
SECTION 4.03. LIMITATION ON INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
DISQUALIFIED STOCK AND PREFERRED STOCK......................52
SECTION 4.04. LIMITATION ON RESTRICTED PAYMENTS.............................57
SECTION 4.05. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES................................................64
SECTION 4.06. ASSET SALES...................................................66
SECTION 4.07. TRANSACTIONS WITH AFFILIATES..................................69
SECTION 4.08. CHANGE OF CONTROL.............................................72
SECTION 4.09. COMPLIANCE CERTIFICATE........................................74
SECTION 4.10. FURTHER INSTRUMENTS AND ACTS..................................74
SECTION 4.11. FUTURE GUARANTORS.............................................74
SECTION 4.12. LIENS.........................................................74
SECTION 4.13. MAINTENANCE OF OFFICE OR AGENCY...............................75
SECTION 4.14. MAINTENANCE OF INSURANCE......................................75
SECTION 4.15. MATTERS RELATING TO GOVERNMENT BUSINESS SUBSIDIARIES..........76
SECTION 4.16. SUSPENSION OF COVENANTS.......................................76
ARTICLE 5
SUCCESSOR COMPANY
SECTION 5.01. WHEN ISSUER MAY MERGE OR TRANSFER ASSETS......................78
SECTION 5.02. SUCCESSOR COMPANY SUBSTITUTED.................................80
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.............................................80
SECTION 6.02. ACCELERATION..................................................82
SECTION 6.03. OTHER REMEDIES................................................82
SECTION 6.04. WAIVER OF PAST DEFAULTS.......................................83
SECTION 6.05. CONTROL BY MAJORITY...........................................83
SECTION 6.06. LIMITATION ON SUITS...........................................83
SECTION 6.07. RIGHTS OF THE HOLDERS TO RECEIVE PAYMENT......................84
SECTION 6.08. COLLECTION SUIT BY TRUSTEE....................................84
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM..............................84
SECTION 6.10. PRIORITIES....................................................84
SECTION 6.11. UNDERTAKING FOR COSTS.........................................85
SECTION 6.12. WAIVER OF STAY OR EXTENSION LAWS..............................85
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ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.............................................85
SECTION 7.02. RIGHTS OF TRUSTEE.............................................86
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE..................................87
SECTION 7.04. TRUSTEE'S DISCLAIMER..........................................87
SECTION 7.05. NOTICE OF DEFAULTS............................................87
SECTION 7.06. REPORTS BY TRUSTEE TO THE HOLDERS.............................88
SECTION 7.07. COMPENSATION AND INDEMNITY....................................88
SECTION 7.08. REPLACEMENT OF TRUSTEE........................................89
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER...................................90
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.................................90
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER..............90
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. DISCHARGE OF LIABILITY ON NOTES; DEFEASANCE...................91
SECTION 8.02. CONDITIONS TO DEFEASANCE......................................92
SECTION 8.03. APPLICATION OF TRUST MONEY....................................93
SECTION 8.04. REPAYMENT TO ISSUER...........................................93
SECTION 8.05. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS.....................94
SECTION 8.06. REINSTATEMENT.................................................94
ARTICLE 9
AMENDMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF THE HOLDERS................................94
SECTION 9.02. WITH CONSENT OF THE HOLDERS...................................95
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT...........................96
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS.................96
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES..............................96
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS....................................96
SECTION 9.07. PAYMENT FOR CONSENT...........................................97
SECTION 9.08. ADDITIONAL VOTING TERMS.......................................97
ARTICLE 10
GUARANTEES
SECTION 10.01. GUARANTEES....................................................97
SECTION 10.02. LIMITATION ON LIABILITY.......................................99
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SECTION 10.03. SUCCESSORS AND ASSIGNS.......................................100
SECTION 10.04. NO WAIVER....................................................100
SECTION 10.05. MODIFICATION.................................................100
SECTION 10.06. EXECUTION OF SUPPLEMENTAL INDENTURE FOR FUTURE GUARANTORS....101
SECTION 10.07. NON-IMPAIRMENT...............................................101
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.................................101
SECTION 11.02. NOTICES......................................................101
SECTION 11.03. COMMUNICATION BY THE HOLDERS WITH OTHER HOLDERS..............102
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT...........102
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION................103
SECTION 11.06. WHEN NOTES DISREGARDED.......................................103
SECTION 11.07. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR.................103
SECTION 11.08. LEGAL HOLIDAYS...............................................103
SECTION 11.09. GOVERNING LAW................................................103
SECTION 11.10. NO RECOURSE AGAINST OTHERS...................................104
SECTION 11.11. SUCCESSORS...................................................104
SECTION 11.12. MULTIPLE ORIGINALS...........................................104
SECTION 11.13. TABLE OF CONTENTS; HEADINGS..................................104
SECTION 11.14. INDENTURE CONTROLS...........................................104
SECTION 11.15. SEVERABILITY.................................................104
SECTION 11.16. JURISDICTION.................................................104
SECTION 11.17. CURRENCY OF ACCOUNT; CONVERSION OF CURRENCY; FOREIGN EXCHANGE
RESTRICTIONS...............................................104
Appendix A - Provisions Relating to Initial Notes, Additional Notes and
Exchange Notes
EXHIBIT INDEX
Exhibit A - Form of Initial Note
Exhibit B - Form of Exchange Note
Exhibit C - Form of Transferee Letter of Representation
Exhibit D - Form of Supplemental Indenture
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CROSS-REFERENCE TABLE
TIA SECTION INDENTURE SECTION
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310 (a)(1).................................................... 7.10; 7.11
(a)(2).................................................... 7.10; 7.11
(a)(3).................................................... N.A.
(a)(4).................................................... N.A.
(a)(5).................................................... 7.10
(b)....................................................... 7.08; 7.10
(c)....................................................... N.A.
311 (a)....................................................... 7.11
(b)....................................................... 7.11
(c)....................................................... N.A.
312 (a)....................................................... 2.06
(b)....................................................... 11.03
(c)....................................................... 11.03
313 (a)....................................................... 7.06
(b)(1).................................................... N.A.
(b)(2).................................................... 7.06
(c)....................................................... 7.06
(d)....................................................... 4.02; 4.09; 7.06
314 (a)....................................................... 4.02; 4.09
(b)....................................................... N.A.
(c)(1).................................................... 11.04
(c)(2).................................................... 11.04
(c)(3).................................................... N.A.
(d)....................................................... N.A.
(e)....................................................... 11.05
(f)....................................................... 4.10
315 (a)....................................................... 7.01
(b)....................................................... 7.05
(c)....................................................... 7.01
(d)....................................................... 7.01
(e)....................................................... 6.11
316 (a) (last sentence)....................................... 11.06
(a)(1)(A)................................................. 6.05
(a)(1)(B)................................................. 6.04
(a)(2).................................................... N.A.
(b)....................................................... 6.07
(c)....................................................... 2.06
317 (a)(1).................................................... 6.08
(a)(2).................................................... 6.09
(b)....................................................... 2.05
318 (a)....................................................... 11.01
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purposes, be deemed to be
part of this Indenture.
INDENTURE dated as of July 3, 2006 among PANAMSAT CORPORATION, a
Delaware corporation (the "ISSUER"), the Subsidiary Guarantors named herein, and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as
trustee (the "TRUSTEE").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders (as defined herein) of (a)
$575.0 million aggregate principal amount of 9% senior notes due 2016 (the
"ORIGINAL NOTES") issued on the date hereof, (b) any Additional Notes (as
defined herein) that may be issued after the date hereof in the form of EXHIBIT
A (the "INITIAL NOTES") and (c) if and when issued as provided in the
Registration Rights Agreement (as defined in APPENDIX A hereto (the "APPENDIX"))
or otherwise registered under the Securities Act (as defined herein) and issued,
the Issuer's 9% senior notes due 2016 (the "EXCHANGE NOTES" and, together with
the Initial Notes and the Original Notes, the "NOTES") issued in the Registered
Exchange Offer (as defined in the Appendix) in exchange for any Initial Notes or
otherwise registered under the Securities Act and issued in the form of EXHIBIT
B. The Original Notes shall be issued in the form of Initial Notes and
references herein to Initial Notes shall include the Original Notes. Subject to
the conditions and compliance with the covenants set forth herein, the Issuer
may issue an unlimited aggregate principal amount of Additional Notes.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"ACQUIRED INDEBTEDNESS" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other
Person is merged with or into or becomes a Restricted Subsidiary of such
specified Person, and
(2) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person,
in each case, other than Indebtedness Incurred as consideration in, in
contemplation of, or to provide all or any portion of the funds or credit
support utilized to consummate, the transaction or series of related
transactions pursuant to which such Restricted Subsidiary became a Restricted
Subsidiary or was otherwise acquired by such Person, or such asset was acquired
by such Person, as applicable.
"ACQUISITION" means the transactions pursuant to which Intelsat
(Bermuda), Ltd. became the owner of all of the outstanding share capital of
PanAmSat Holdco pursuant to the Transaction Agreement.
"ACQUISITION DOCUMENTS" means the Transaction Agreement, the Credit
Agreement, the New Intelsat Bermuda Indebtedness, the New PanAmSat Indebtedness,
the Specified Intercompany Agreements and, in each case, any other document
entered into in connection therewith, in each case as amended, supplemented or
modified from time to time.
"ADDITIONAL NOTES" means 9% senior notes due 2016 issued under the
terms of this Indenture subsequent to the Issue Date.
"ADJUSTED EBITDA" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period plus, without
duplication, to the extent the same was deducted in calculating Consolidated Net
Income:
(1) Consolidated Taxes; PLUS
(2) Consolidated Interest Expense; PROVIDED that (i) any interest
expense set forth in clause (4)(i) of the definition of Consolidated
Interest Expense shall be included in the calculation of Adjusted EBITDA
solely for purposes of calculating Cumulative Credit, unless the same was
deducted in calculating Consolidated Net Income and (ii) any interest
expense set forth in clause (4)(ii) of the definition of Consolidated
Interest Expense shall be excluded from Adjusted EBITDA, unless the same
was deducted in calculating Consolidated Net Income; PLUS
(3) Consolidated Non-cash Charges; PLUS
(4) the amount of any restructuring charges or expenses (which, for
the avoidance of doubt, shall include retention, severance, systems
establishment costs, facility closure costs, leasehold termination costs or
excess pension charges); PLUS
(5) (a) the amount of any fees or expenses incurred or paid in such
period for transition services related to satellites or other assets or
businesses acquired and (b) the amount of management, monitoring,
consulting and advisory fees and related expenses paid to the Sponsors or
any other Permitted Holder (or any accruals relating to such fees and
related expenses) during such period; PROVIDED that such amount pursuant to
subclause (b) shall not exceed in any four-quarter period the greater of
(x) $6.25 million and (y) 1.25% of Adjusted EBITDA of such Person and its
Restricted Subsidiaries; PLUS
(6) reversals of allowance for customer credits, including any
amounts receivable for such period in connection with contracts that are
attributable to Globo Comunicacoes e Participaoes, Ltda.'s involvement in
arrangements with Sky Multi-Country Partners; PLUS
(7) collections on investments in sales-type leases during such
period, to the extent not otherwise included in Consolidated Net Income for
such period; PLUS
(8) lease-back expenses net of deferred gain;
LESS, without duplication,
(9) any gross profit (loss) on sales-type leases included in
Consolidated Net Income for such period; and
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(10) non-cash items increasing Consolidated Net Income for such
period (excluding any items which represent the reversal of any accrual of,
or cash reserve for, anticipated cash charges in any prior period and any
items for which cash was received in any prior period).
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "CONTROL"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, means 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.
"APPLICABLE PREMIUM" means, with respect to any Note on any applicable
redemption date, the greater of:
(1) 1.0% of the then outstanding principal amount of such Note;
and
(2) the excess of:
(a) the present value at such redemption date of (i) the
redemption price of such Note at June 15, 2011 (such redemption
price being set forth in the table appearing in Paragraph 5 on
the reverse side of the Note attached as an Exhibit hereto), plus
(ii) all required interest payments due on such Note through June
15, 2011 (excluding accrued but unpaid interest), computed using
a discount rate equal to the Treasury Rate as of such redemption
date plus 50 basis points; over
(b) the then outstanding principal amount of such Note.
"ASSET SALE" means:
(1) the sale, conveyance, transfer or other disposition (whether in
a single transaction or a series of related transactions) of property or
assets (including by way of a Sale/Leaseback Transaction) of the Issuer or
any Restricted Subsidiary of the Issuer (each referred to in this
definition as a "DISPOSITION") or
(2) the issuance or sale of Equity Interests (other than directors'
qualifying shares or shares or interests required to be held by foreign
nationals) of any Restricted Subsidiary (other than to the Issuer or
another Restricted Subsidiary of the Issuer) (whether in a single
transaction or a series of related transactions),
in each case other than:
(a) a disposition of Cash Equivalents or Investment Grade Securities
or obsolete or worn out property or equipment in the ordinary course of
business including the
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sale or leasing (including by way of sales-type lease) of transponders or
transponder capacity and the leasing or licensing of teleports;
(b) the disposition of all or substantially all of the assets of the
Issuer in a manner permitted pursuant to Section 5.01 or any disposition
that constitutes a Change of Control;
(c) any Restricted Payment or Permitted Investment that is permitted
to be made, and is made, under Section 4.04;
(d) any disposition of assets or issuance or sale of Equity
Interests of any Restricted Subsidiary with an aggregate Fair Market Value
of less than $35.0 million;
(e) any disposition of property or assets or the issuance of
securities by a Restricted Subsidiary of the Issuer to the Issuer or by the
Issuer or a Restricted Subsidiary of the Issuer to a Restricted Subsidiary
of the Issuer;
(f) any exchange of assets for assets (including a combination of
assets and Cash Equivalents) of reasonably comparable or greater market
value or usefulness to the business of the Issuer and its Restricted
Subsidiaries as a whole, as determined in good faith by the Issuer, which
in the event of an exchange of assets with a Fair Market Value in excess of
(1) $25.0 million shall be evidenced by an Officers' Certificate, and (2)
$50.0 million shall be set forth in a resolution approved in good faith by
at least a majority of the Board of Directors of the Issuer;
(g) foreclosures on assets or property of the Issuer or its
Subsidiaries;
(h) any sale of Equity Interests in, or Indebtedness or other
securities of, an Unrestricted Subsidiary;
(i) any disposition of inventory or other assets (including
transponders, transponder capacity and teleports) in the ordinary course of
business;
(j) the lease, assignment or sublease of any real or personal
property in the ordinary course of business;
(k) a sale of accounts receivable (including in respect of sales-type
leases) and related assets (including contract rights) of the type
specified in the definition of "Receivables Financing" to a Receivables
Subsidiary in a Qualified Receivables Financing or in factoring or similar
transactions;
(l) a transfer of accounts receivable and related assets of the type
specified in the definition of "Receivables Financing" (or a fractional
undivided interest therein) by a Receivables Subsidiary in a Qualified
Receivables Financing;
(m) the grant in the ordinary course of business of any license of
patents, trademarks, know-how and any other intellectual property;
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(n) any Event of Loss;
(o) any sale or other disposition of assets or property in connection
with a Specified Sale/Leaseback Transaction;
(p) any sale of an Excluded Satellite; PROVIDED, that for purposes of
this clause (p) of this definition of "Asset Sale," references in the
definition of "Excluded Satellite" to $75.0 million shall be deemed to be
$50.0 million; PROVIDED, FURTHER, that any cash and Cash Equivalents
received in connection with the sale of an Excluded Satellite shall be
treated as Net Proceeds of an Asset Sale and shall be applied as provided
for in Section 4.06;
(q) any disposition of assets, equity or property of the Issuer or
any Restricted Subsidiary of the Issuer pursuant to the Specified
Intercompany Agreements; and
(r) any disposition of assets in connection with the Transactions.
"BANK INDEBTEDNESS" means any and all amounts payable under or in
respect of any Credit Agreement or any other Senior Credit Documents, as
amended, restated, supplemented, waived, replaced, restructured, repaid,
refunded, refinanced or otherwise modified from time to time (including after
termination of any Credit Agreement), including principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Issuer whether or not a claim
for post-filing interest is allowed in such proceedings), fees, charges,
expenses, reimbursement obligations, guarantees and all other amounts payable
thereunder or in respect thereof.
"BOARD OF DIRECTORS" means as to any Person, the board of directors or
managers, as applicable, of such Person (or, if such Person is a partnership,
the board of directors or other governing body of the general partner of such
Person) or any duly authorized committee thereof.
"BUSINESS DAY" means a day other than a Saturday, Sunday or other day
on which banking institutions are authorized or required by law to close in New
York City.
"CAPITAL STOCK" means:
(1) in the case of a corporation or a company, corporate stock or
shares;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"CAPITALIZED 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 re-
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quired to be capitalized and reflected as a liability on a balance sheet
(excluding the footnotes thereto) in accordance with GAAP.
"CASH CONTRIBUTION AMOUNT" means the aggregate amount of cash
contributions made to the capital of the Issuer or any Guarantor described in
the definition of "Contribution Indebtedness."
"CASH EQUIVALENTS" means:
(1) U.S. Dollars, pounds sterling, Euros, national currency of any
participating member state in the European Union or, in the case of any
Foreign Subsidiary that is a Restricted Subsidiary, such local currencies
held by it from time to time in the ordinary course of business;
(2) securities issued or directly and fully guaranteed or insured by
the government of the United States or any country that is a member of the
European Union or any agency or instrumentality thereof, in each case with
maturities not exceeding two years from the date of acquisition;
(3) certificates of deposit, time deposits and eurodollar time
deposits with maturities of one year or less from the date of acquisition,
bankers' acceptances, in each case with maturities not exceeding one year
and overnight bank deposits, in each case with any commercial bank having
capital and surplus in excess of $250.0 million, or the foreign currency
equivalent thereof, and whose long-term debt is rated "A" or the equivalent
thereof by Moody's or S&P (or reasonably equivalent ratings of another
internationally recognized ratings agency);
(4) repurchase obligations for underlying securities of the types
described in clauses (2) and (3) above entered into with any financial
institution meeting the qualifications specified in clause (3) above;
(5) commercial paper issued by a corporation (other than an Affiliate
of the Issuer) rated at least "A-1" or the equivalent thereof by Moody's or
S&P (or reasonably equivalent ratings of another internationally recognized
ratings agency) and in each case maturing within one year after the date of
acquisition;
(6) readily marketable direct obligations issued by any state of the
United States of America or any political subdivision thereof having one of
the two highest rating categories obtainable from either Moody's or S&P (or
reasonably equivalent ratings of another internationally recognized ratings
agency) in each case with maturities not exceeding two years from the date
of acquisition;
(7) Indebtedness issued by Persons (other than the Sponsors or any of
their Affiliates) with a rating of "A" or higher from S&P or "A-2" or
higher from Moody's (or reasonably equivalent ratings of another
internationally recognized ratings agency) in each case with maturities not
exceeding two years from the date of acquisition; and
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(8) investment funds investing at least 95% of their assets in
securities of the types described in clauses (1) through (7) above.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person for
any period, the sum, without duplication, of:
(1) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, to the extent such expense was deducted in
computing Consolidated Net Income (including amortization of original issue
discount, the interest component of Capitalized Lease Obligations, and net
payments and receipts (if any) pursuant to interest rate Hedging
Obligations and excluding amortization of deferred financing fees,
expensing of any bridge or other financing fees and any interest under
Satellite Purchase Agreements);
(2) consolidated capitalized interest of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued;
(3) commissions, discounts, yield and other fees and charges Incurred
in connection with any Receivables Financing which are payable to Persons
other than the Issuer and its Restricted Subsidiaries; and
(4) with respect to the Issuer, (i) consolidated interest expense of
Intelsat, Ltd. for such period with respect to the Existing Intelsat Notes
or any refinancing thereof to the extent cash interest is paid thereon
pursuant to Section 4.04(b)(xiii)(C) hereof and (ii) consolidated interest
expense of PanAmSat Holdco and Intelsat Bermuda for such period with
respect to the Existing PanAmSat Holdco Notes, the Intelsat Bermuda
Intercompany Loan and the New Intelsat Bermuda Indebtedness or any
refinancing thereof to the extent cash interest is paid thereon pursuant to
Section 4.04(b)(xiii)(C) hereof;
LESS interest income for such period;
PROVIDED that, for purposes of calculating Consolidated Interest Expense, no
effect shall be given to the effect of any purchase accounting adjustments in
connection with the Transactions; PROVIDED, FURTHER, that for purposes of
calculating Consolidated Interest Expense, no effect shall be given to the
discount and/or premium resulting from the bifurcation of derivatives under
Statement of Financial Accounting Standards No. 133 and related interpretations
as a result of the terms of the Indebtedness to which such Consolidated Interest
Expense relates.
"CONSOLIDATED NET INCOME" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis; PROVIDED, HOWEVER, that:
(1) any net after-tax extraordinary or nonrecurring or unusual gains
or losses (less all fees and expenses relating thereto), or income or
expense or charge (including, without limitation, any severance, relocation
or other restructuring costs) and fees, ex-
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penses or charges related to any offering of equity interests, Investment,
acquisition, disposition, recapitalization or Indebtedness permitted to be
Incurred by this Indenture (in each case, whether or not successful),
including any such fees, expenses, charges or change in control payments
related to the Transactions, in each case, shall be excluded;
(2) any increase in amortization or depreciation or any one-time
non-cash charges resulting from purchase accounting in connection with the
Transactions or any acquisition shall be excluded;
(3) the Net Income for such period shall not include the cumulative
effect of a change in accounting principles during such period;
(4) any net after-tax income or loss from discontinued operations and
any net after-tax gains or losses on disposal of discontinued operations
shall be excluded;
(5) any net after-tax gains or losses (less all fees and expenses or
charges relating thereto) attributable to business dispositions or asset
dispositions other than in the ordinary course of business (as determined
in good faith by the Board of Directors of the Issuer) shall be excluded;
(6) any net after-tax gains or losses (less all fees and expenses or
charges relating thereto) attributable to the early extinguishment of
indebtedness shall be excluded;
(7) the Net Income for such period of any Person that is not a
Subsidiary of such Person, or is an Unrestricted Subsidiary, or that is
accounted for by the equity method of accounting, shall be excluded;
PROVIDED that the Consolidated Net Income of the referent Person shall be
increased by the amount of dividends or distributions or other payments
paid in cash (or to the extent converted into cash) to the referent Person
or a Restricted Subsidiary thereof in respect of such period;
(8) solely for the purpose of determining the amount of Cumulative
Credit, the Net Income for such period of any Restricted Subsidiary (other
than any Subsidiary Guarantor) shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by such
Restricted Subsidiary of its Net Income is not at the date of determination
permitted by the operation of the terms of any agreement applicable to such
Restricted Subsidiary, unless (x) such restrictions with respect to the
payment of dividends or similar distributions have been legally waived or
(y) such restriction is permitted by Section 4.05 hereof; PROVIDED that the
Consolidated Net Income of such Person shall be increased by the amount of
dividends or other distributions or other payments actually paid in cash
(or converted into cash) by any such Restricted Subsidiary to such Person,
to the extent not already included therein;
(9) (a) any non-cash impairment charge or asset write-off resulting
from the application of Statement of Financial Accounting Standards No. 142
and 144, and the amortization of intangibles arising pursuant to No. 141,
shall be excluded and (b) the effects of adjustments in any line item in
such Person's consolidated financial statements required or permitted by
the Financial Accounting Standards Board Statement Nos. 141
-8-
and 142 resulting from the application of purchase accounting, net of
taxes, shall be excluded;
(10) any non-cash expenses realized or resulting from employee
benefit plans or post-employment benefit plans, grants of stock
appreciation or similar rights, stock options or other rights to officers,
directors and employees of such Person or any of its Restricted
Subsidiaries shall be excluded;
(11) any (a) severance or relocation costs or expenses, (b) one-time
non-cash compensation charges, (c) solely for purposes of calculating the
Debt to Adjusted EBITDA Ratio, the costs and expenses related to employment
of terminated employees, (d) costs or expenses realized in connection with,
resulting from or in anticipation of the Transactions or (e) costs or
expenses realized in connection with or resulting from stock appreciation
or similar rights, stock options or other rights of officers, directors and
employees, in each case of such Person or any of its Restricted
Subsidiaries, shall be excluded;
(12) accruals and reserves that are established within twelve months
after the Issue Date and that are so required to be established in
accordance with GAAP shall be excluded;
(13) (a) (i) the non-cash portion of "straight-line" rent expense
shall be excluded and (ii) the cash portion of "straight-line" rent expense
which exceeds the amount expensed in respect of such rent expense shall be
included and (b) non-cash gains, losses, income and expenses resulting from
fair value accounting required by Statement of Financial Accounting
Standards No. 133 and related interpretations shall be excluded;
(14) an amount equal to the amount of tax distributions actually made
to the holders of Capital Stock of such Person or any Parent of such Person
in respect of such period in accordance with Section 4.04(b)(xii) shall be
included as though such amounts had been paid as income taxes directly by
such Person for such period;
(15) any net loss resulting from currency exchange risk Hedging
Obligations shall be excluded;
(16) any reserves for long-term receivables and sales type lease
adjustments, including customer-related long-term receivables evaluated as
uncollectable shall be excluded;
(17) non-operating expenses, including transaction related fees and
expenses related to acquisitions and due diligence for acquisitions shall
be excluded;
(18) minority interest expenses (less cash dividends actually paid to
the holders of such minority interests) shall be excluded; and
-9-
(19) expenses in respect of payments prior to the Issue Date to
sponsors and investors and their respective affiliates for management,
monitoring, consulting and advisory fees and related expenses shall be
excluded.
Notwithstanding the foregoing, for the purpose of Section 4.04 only,
there shall be excluded from the calculation of Consolidated Net Income any
dividends, repayments of loans or advances or other transfers of assets from
Unrestricted Subsidiaries to such Person or a Restricted Subsidiary of such
Person in respect of or that originally constituted Restricted Investments to
the extent such dividends, repayments or transfers increase the amount of
Restricted Payments permitted under Section 4.04 pursuant to clause (5) or (6)
of the definition of "Cumulative Credit."
"CONSOLIDATED NON-CASH CHARGES" means, with respect to any Person for
any period, the aggregate depreciation, amortization, impairment, compensation,
rent and other non-cash expenses of such Person and its Restricted Subsidiaries
for such period on a consolidated basis and otherwise determined in accordance
with GAAP, but excluding (i) any such charge which consists of or requires an
accrual of, or cash reserve for, anticipated cash charges for any future period
and (ii) the non-cash impact of recording the change in fair value of any
embedded derivatives under Statement of Financial Accounting Standards No. 133
and related interpretations as a result of the terms of any agreement or
instrument to which such Consolidated Non-Cash Charges relate.
"CONSOLIDATED TAXES" means, with respect to any Person and its
Restricted Subsidiaries on a consolidated basis for any period, provision for
taxes based on income, profits or capital, including, without limitation, state
franchise and similar taxes, withholding taxes paid or accrued and including an
amount equal to the amount of tax distributions actually made to the holders of
Capital Stock of such Person or any Parent of such Person in respect of such
period in accordance with Section 4.04(b)(xii), which shall be included as
though such amounts had been paid as income taxes directly by such Person.
"CONSOLIDATED TOTAL INDEBTEDNESS" means, as at any date of
determination, an amount equal to the sum of (1) the aggregate amount of all
outstanding Indebtedness of such Person and its Restricted Subsidiaries and (2)
the aggregate amount of all outstanding Disqualified Stock of such Person and
all Preferred Stock of its Restricted Subsidiaries, with the amount of such
Disqualified Stock and Preferred Stock equal to the greater of their respective
voluntary or involuntary liquidation preferences and maximum fixed repurchase
prices, in each case determined on a consolidated basis in accordance with GAAP.
For purposes hereof, the "MAXIMUM FIXED REPURCHASE PRICE" of any
Disqualified Stock or Preferred Stock that does not have a fixed price shall be
calculated in accordance with the terms of such Disqualified Stock or Preferred
Stock as if such Disqualified Stock or Preferred Stock were purchased on any
date on which Consolidated Total Indebtedness shall be required to be determined
pursuant to this Indenture, and if such price is based upon, or measured by, the
fair market value of such Disqualified Stock or Preferred Stock, such fair
market value shall be determined reasonably and in good faith by the Board of
Directors of the Issuer.
-10-
"CONTINGENT OBLIGATIONS" means, with respect to any Person, any
obligation of such Person guaranteeing any leases, dividends or other
obligations that do not constitute Indebtedness ("PRIMARY OBLIGATIONS") of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent:
(1) to purchase any such primary obligation or any property
constituting direct or indirect security therefor;
(2) to advance or supply funds:
(a) for the purchase or payment of any such primary obligation;
or
(b) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the
primary obligor; or
(3) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability
of the primary obligor to make payment of such primary obligation against
loss in respect thereof.
"CONTRIBUTION INDEBTEDNESS" means Indebtedness of the Issuer or any
Guarantor in an aggregate principal amount not greater than twice the aggregate
amount of cash contributions (other than Excluded Contributions) made (without
duplication) to the capital of the Issuer or such Guarantor after August 20,
2004 (other than any cash contributions from any Parent of the Issuer in
connection with the Transactions); PROVIDED that:
(1) if the aggregate principal amount of such Contribution
Indebtedness is greater than the aggregate amount of such cash
contributions to the capital of the Issuer or such Guarantor, as
applicable, the amount in excess shall be Indebtedness (other than Secured
Indebtedness) that ranks subordinate to the Notes with a Stated Maturity
later than the Stated Maturity of the Notes, and
(2) such Contribution Indebtedness (a) is Incurred within 210 days
after the making of such cash contributions and (b) is so designated as
Contribution Indebtedness pursuant to an Officers' Certificate on the date
of Incurrence thereof.
"CREDIT AGREEMENT" means (i) the credit agreement entered into on or
prior to, the consummation of the Acquisition, among the Issuer, the
subsidiaries of the Issuer party thereto, the financial institutions named
therein and Citicorp North America, Inc. (or an affiliate thereof), as
Administrative Agent, as amended, restated, supplemented, waived, replaced
(whether or not upon termination, and whether with the original lenders or
otherwise), restructured, repaid, refunded, refinanced or otherwise modified
from time to time, including any one or more agreements or indentures extending
the maturity thereof, refinancing, replacing or otherwise restructuring all or
any portion of the Indebtedness under such agreement or agreements or indenture
or indentures or any successor or replacement agreement or agreements or
indenture or indentures or increasing the amount loaned or issued thereunder or
altering the maturity thereof and (ii) whether or not the credit agreement
referred to in clause (i) remains outstanding, if desig-
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nated by the Issuer to be included in the definition of "Credit Agreement," one
or more (A) debt facilities or commercial paper facilities, providing for
revolving credit loans, term loans, receivables financing (including through the
sale of receivables to lenders or to special purpose entities formed to borrow
from lenders against such receivables) or letters of credit, (B) debt
securities, indentures or other forms of debt financing (including convertible
or exchangeable debt instruments or bank guarantees or bankers' acceptances), or
(C) instruments or agreements evidencing any other Indebtedness, in each case,
with the same or different borrowers or issuers and, in each case, as amended,
supplemented, modified, extended, restructured, renewed, refinanced, restated,
replaced or refunded in whole or in part from time to time.
"CUMULATIVE CREDIT" means the sum of (without duplication):
(1) cumulative Adjusted EBITDA of the Issuer for the period (taken as
one accounting period) from and after July 1, 2004 to the end of the
Issuer's most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment (or, in the
case such Adjusted EBITDA for such period is a negative, minus the amount
by which cumulative Adjusted EBITDA is less than zero), PLUS
(2) 100% of the aggregate net proceeds, including cash and the Fair
Market Value (as determined in accordance with the next succeeding
sentence) of property other than cash, received by the Issuer after August
20, 2004 from the issue or sale of Equity Interests of the Issuer or any
Parent of the Issuer (excluding (without duplication) Refunding Capital
Stock, Designated Preferred Stock, Excluded Contributions, Disqualified
Stock and the Cash Contribution Amount), including Equity Interests issued
upon conversion of Indebtedness or upon exercise of warrants or options
(other than an issuance or sale to a Restricted Subsidiary of the Issuer or
an employee stock ownership plan or trust established by the Issuer or any
of its Subsidiaries), PLUS
(3) 100% of the aggregate amount of contributions to the capital of
the Issuer received in cash and the Fair Market Value (as determined in
accordance with the next succeeding sentence) of property other than cash
after August 20, 2004 (other than Excluded Contributions, Refunding Capital
Stock, Designated Preferred Stock, Disqualified Stock and the Cash
Contribution Amount), PLUS
(4) the principal amount of any Indebtedness, or the liquidation
preference or maximum fixed repurchase price, as the case may be, of any
Disqualified Stock, of the Issuer or any Restricted Subsidiary thereof
issued after August 20, 2004 (other than Indebtedness or Disqualified Stock
issued to a Restricted Subsidiary) which has been converted into or
exchanged for Equity Interests in the Issuer or any Parent of the Issuer
(other than Disqualified Stock), PLUS
(5) 100% of the aggregate amount received by the Issuer or any
Restricted Subsidiary in cash and the Fair Market Value (as determined in
accordance with the next succeeding sentence) of property other than cash
received by the Issuer or any Restricted Subsidiary from:
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(A) the sale or other disposition (other than to the Issuer or a
Restricted Subsidiary of the Issuer) of Restricted Investments made by
the Issuer and its Restricted Subsidiaries and from repurchases and
redemptions of such Restricted Investments from the Issuer and its
Restricted Subsidiaries by any Person (other than the Issuer or any of
its Restricted Subsidiaries) and from repayments of loans or advances
which constituted Restricted Investments (other than in each case to
the extent that the Restricted Investment was made pursuant to Section
4.04(b)(vii) or (x)),
(B) the sale (other than to the Issuer or a Restricted
Subsidiary of the Issuer) of the Capital Stock of an Unrestricted
Subsidiary or
(C) a distribution, dividend or other payment from an
Unrestricted Subsidiary, PLUS
(6) in the event any Unrestricted Subsidiary of the Issuer has been
redesignated as a Restricted Subsidiary or has been merged, consolidated or
amalgamated with or into, or transfers or conveys its assets to, or is
liquidated into, the Issuer or a Restricted Subsidiary of the Issuer, the
Fair Market Value (as determined in accordance with the next succeeding
sentence) of the Investments of the Issuer in such Unrestricted Subsidiary
at the time of such redesignation, combination or transfer (or of the
assets transferred or conveyed, as applicable) (other than in each case to
the extent that the designation of such Subsidiary as an Unrestricted
Subsidiary was made pursuant to Section 4.04(b)(vii) or (x) or constituted
a Permitted Investment).
The Fair Market Value of property other than cash covered by clauses (2), (3),
(4), (5) and (6) above shall be determined in good faith by the Issuer and
(A) in the event of property with a Fair Market Value in excess of
$25.0 million, shall be set forth in an Officers' Certificate or
(B) in the event of property with a Fair Market Value in excess of
$50.0 million, shall be set forth in a resolution approved by at least a
majority of the Board of Directors of the Issuer.
"CUMULATIVE INTEREST EXPENSE" means, in respect of any Restricted
Payment, the sum of the aggregate amount of Consolidated Interest Expense of the
Issuer and the Restricted Subsidiaries for the period from and after July 1,
2004 to the end of the Issuer's most recently ended fiscal quarter for which
internal financial statements are available and immediately preceding the
proposed Restricted Payment.
"DEBT TO ADJUSTED EBITDA RATIO" means, with respect to any Person for
any period, the ratio of (i) Consolidated Total Indebtedness as of the date of
calculation (the "CALCULATION DATE") to (ii) Adjusted EBITDA of such Person for
the four consecutive fiscal quarters immediately preceding such Calculation
Date. In the event that such Person or any of its Restricted Subsidiaries Incurs
or redeems any Indebtedness (other than in the case of revolving credit
borrowings, in which case interest expense shall be computed based upon the
average daily balance
-13-
of such Indebtedness during the applicable period) or issues or redeems
Disqualified Stock or Preferred Stock subsequent to the commencement of the
period for which the Debt to Adjusted EBITDA Ratio is being calculated but prior
to the Calculation Date, then the Debt to Adjusted EBITDA Ratio shall be
calculated giving pro forma effect to such Incurrence or redemption of
Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred
Stock, as if the same had occurred at the beginning of the applicable
four-quarter period.
For purposes of making the computation referred to above, Investments,
acquisitions, dispositions, mergers, amalgamations, consolidations and
discontinued operations (as determined in accordance with GAAP), in each case
with respect to an operating unit of a business, and other operational changes
that such Person or any of its Restricted Subsidiaries has both determined to
make and made after August 20, 2004 and during the four-quarter reference period
or subsequent to such reference period and on or prior to or simultaneously with
the Calculation Date shall be calculated on a pro forma basis assuming that all
such Investments, acquisitions, dispositions, mergers, amalgamations,
consolidations, discontinued operations and other operational changes (and the
change of any associated fixed charge obligations and the change in Adjusted
EBITDA resulting therefrom) had occurred on the first day of the four-quarter
reference period. If since the beginning of such period any Person that
subsequently became a Restricted Subsidiary or was merged with or into such
Person or any Restricted Subsidiary since the beginning of such period shall
have made any Investment, acquisition, disposition, merger, amalgamation,
consolidation, discontinued operation or operational change, in each case with
respect to an operating unit of a business, that would have required adjustment
pursuant to this definition, then the Debt to Adjusted EBITDA Ratio shall be
calculated giving pro forma effect thereto for such period as if such
Investment, acquisition, disposition, discontinued operation, merger,
amalgamation, consolidation or operational change had occurred at the beginning
of the applicable four-quarter period.
For purposes of this definition, whenever pro forma effect is to be
given to any transaction, the pro forma calculations shall be made in good faith
by a responsible financial or accounting officer of the Issuer. If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in
effect on the Calculation Date had been the applicable rate for the entire
period (taking into account any Hedging Obligations applicable to such
Indebtedness if such Hedging Obligation has a remaining term in excess of 12
months). Interest on a Capitalized Lease Obligation shall be deemed to accrue at
an interest rate reasonably determined by a responsible financial or accounting
officer of the Issuer to be the rate of interest implicit in such Capitalized
Lease Obligation in accordance with GAAP. For purposes of making the computation
referred to above, interest on any Indebtedness under a revolving credit
facility computed on a pro forma basis shall be computed based upon the average
daily balance of such Indebtedness during the applicable period. Interest on
Indebtedness that may optionally be determined at an interest rate based upon a
factor of a prime or similar rate, a eurocurrency interbank offered rate, or
other rate, shall be deemed to have been based upon the rate actually chosen,
or, if none, then based upon such optional rate chosen as the Issuer may
designate. Any such pro forma calculation may include adjustments appropriate,
in the reasonable determination of the Issuer as set forth in an Officers'
Certificate, to reflect, among other things, (1) operating expense reductions
and other operating improvements or synergies reasonably expected to result from
any acquisition, amalgamation, merger or
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operational change (including, to the extent applicable, from the Transactions)
and (2) all adjustments used in connection with the calculation of "Adjusted
EBITDA" as set forth in footnote 4 to the "Summary Historical and Pro Forma
Consolidated Financial Data" under "Offering Memorandum Summary" in the Offering
Memorandum to the extent such adjustments, without duplication, continue to be
applicable to such four-quarter period.
"DEFAULT" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"DESIGNATED NON-CASH CONSIDERATION" means the Fair Market Value
of non-cash consideration received by the Issuer or one of its Restricted
Subsidiaries in connection with an Asset Sale that is so designated as
Designated Non-cash Consideration pursuant to an Officers' Certificate, setting
forth the basis of such valuation, less the amount of Cash Equivalents received
in connection with a subsequent sale of such Designated Non-cash Consideration.
"DESIGNATED PREFERRED STOCK" means Preferred Stock of the Issuer
or any Parent of the Issuer, as applicable (other than Disqualified Stock), that
is issued for cash (other than to the Issuer or any of its Subsidiaries or an
employee stock ownership plan or trust established by the Issuer or any of its
Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an
Officers' Certificate, on the issuance date thereof, the cash proceeds of which
are excluded from the calculation set forth in the definition of "Cumulative
Credit."
"DISQUALIFIED STOCK" means, with respect to any Person, any
Capital Stock of such Person which, by its terms (or by the terms of any
security into which it is convertible or for which it is redeemable or
exchangeable), or upon the happening of any event:
(1) matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise (other than as a result of a change of control or
asset sale; PROVIDED that the relevant asset sale or change of control
provisions, taken as a whole, are no more favorable in any material respect
to holders of such Capital Stock than the asset sale and change of control
provisions applicable to the Notes and any purchase requirement triggered
thereby may not become operative until compliance with the asset sale and
change of control provisions applicable to the Notes (including the
purchase of any Notes tendered pursuant thereto)),
(2) is convertible or exchangeable for Indebtedness or Disqualified
Stock, or
(3) is redeemable at the option of the holder thereof, in whole or in
part, in each case prior to 91 days after the maturity date of the Notes;
PROVIDED, HOWEVER, that only the portion of Capital Stock which so matures or is
mandatorily redeemable, is so convertible or exchangeable or is so redeemable at
the option of the holder thereof prior to such date shall be deemed to be
Disqualified Stock; PROVIDED, FURTHER, HOWEVER, that if such Capital Stock is
issued to any employee or to any plan for the benefit of employees of the Issuer
or its Subsidiaries or by any such plan to such employees, such Capital Stock
shall not constitute Disqualified Stock solely because it may be required to be
repurchased by the Issuer in order to satisfy applicable statutory or regulatory
obligations or as a result of such em-
-15-
ployee's termination, death or disability; PROVIDED, FURTHER, that any class of
Capital Stock of such Person that by its terms authorizes such Person to satisfy
its obligations thereunder by delivery of Capital Stock that is not Disqualified
Stock shall not be deemed to be Disqualified Stock.
"EMPLOYEE TRANSFER AGREEMENT" means the intercompany agreement
regarding transfer of employees, if any, dated on or about the Issue Date, among
Intelsat Global Service Corporation and the Issuer, and the other parties
thereto, if any, as amended from time to time (PROVIDED that no such amendment
materially affects the ability of the Issuer to make anticipated principal or
interest payments on the Notes).
"EQUITY INTERESTS" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"EQUITY OFFERING" means any public or private sale after the
Issue Date of common stock or ordinary shares or Preferred Stock of the Issuer
or any Parent of the Issuer, as applicable (other than Disqualified Stock),
other than:
(1) public offerings with respect to the Issuer's or such Parent's
common stock or ordinary shares registered on Form S-8; and
(2) any such public or private sale that constitutes an Excluded
Contribution.
"EVENT OF LOSS" means any event that results in the Issuer or its
Restricted Subsidiaries receiving proceeds from any insurance covering any
Satellite, or in the event that the Issuer or any of its Restricted Subsidiaries
receives proceeds from any insurance maintained for it by any Satellite
Manufacturer or any launch provider covering any of such Satellites.
"EVENT OF LOSS PROCEEDS" means, with respect to any proceeds from
any Event of Loss, all Satellite insurance proceeds received by the Issuer or
any of the Restricted Subsidiaries in connection with such Event of Loss, after
(1) provision for all income or other taxes measured by or resulting
from such Event of Loss,
(2) payment of all reasonable legal, accounting and other reasonable
fees and expenses related to such Event of Loss,
(3) payment of amounts required to be applied to the repayment of
Indebtedness secured by a Lien on the Satellite that is the subject of such
Event of Loss,
(4) provision for payments to Persons who own an interest in the
Satellite (including any transponder thereon) in accordance with the terms
of the agreement(s) governing the ownership of such interest by such Person
(other than provision for payments to insurance carriers required to be
made based on projected future revenues expected to
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be generated from such Satellite in the good faith determination of the
Issuer as evidenced by an Officers' Certificate), and
(5) deduction of appropriate amounts to be provided by the Issuer or
such Restricted Subsidiary as a reserve, in accordance with GAAP, against
any liabilities associated with the Satellite that was the subject of the
Event of Loss.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"EXCHANGE OFFER REGISTRATION STATEMENT" means the registration
statement filed with the SEC in connection with the Registered Exchange Offer.
"EXCLUDED CONTRIBUTIONS" means the Cash Equivalents or other
assets (valued at their Fair Market Value as determined by the Issuer in good
faith) received by the Issuer after the Issue Date from:
(1) contributions to its common equity capital, and
(2) the sale (other than to a Subsidiary of the Issuer or pursuant to
any management equity plan or stock option plan or any other management or
employee benefit plan or agreement of the Issuer or any of its
Subsidiaries) of Capital Stock (other than Disqualified Stock and
Designated Preferred Stock) of the Issuer,
in each case designated as Excluded Contributions pursuant to an Officers'
Certificate, which are excluded from the calculation set forth in the definition
of "Cumulative Credit."
"EXCLUDED SATELLITE" means any Satellite (or, if the entire
Satellite is not owned by the Issuer or any Restricted Subsidiary, as the case
may be, the portion of the Satellite it owns or for which it has risk of loss)
(i) that is not expected or intended, in the good faith determination of the
Issuer, to earn revenue from the operation of such Satellite (or portion, as
applicable) in excess of $75.0 million for the immediately succeeding 12-month
calendar period or (ii) that has a net book value not in excess of $200.0
million or (iii) that (1) the procurement of In-Orbit Insurance therefor in the
amounts and on the terms required by this Indenture would not be available for a
price that is, and on other terms and conditions that are, commercially
reasonable or (2) the procurement of such In-Orbit Insurance therefor would be
subject to exclusions or limitations of coverage that would make the terms of
the insurance commercially unreasonable, in either case, in the good faith
determination of the Issuer, or (iv) for which In-Orbit Contingency Protection
is available or (v) whose primary purpose is to provide In-Orbit Contingency
Protection for the Issuer's or its Subsidiaries' other Satellites (or portions)
and otherwise that is not expected or intended, in the good faith determination
of the Issuer, to earn revenue from the operation of such Satellite (or portion,
as applicable) in excess of $75.0 million for the immediately succeeding
12-month calendar period.
"EXISTING INTELSAT NOTES" means the 5 1/4% Senior Notes due 2008,
the 7 5/8% Senior Notes due 2012 and the 6 1/2% Senior Notes due 2013, in each
case, of Intelsat, Ltd.
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"EXISTING PANAMSAT HOLDCO NOTES" means the 10 3/8% Senior Discount
Notes due 2014 of PanAmSat Holdco.
"EXISTING PANAMSAT NOTES" means the Existing PanAmSat Holdco
Notes, and the Secured 6 3/8% Senior Notes due 2008, the Secured 6 7/8% Senior
Debentures due 2028, the 9% Senior Notes due 2014 and the 8 1/2% Senior Notes
due 2012, in each case, of the Issuer.
"EXISTING PARENT INDEBTEDNESS" means the Existing Intelsat
Notes, the Existing PanAmSat Holdco Notes, the Intelsat Bermuda Intercompany
Loan and the New Intelsat Bermuda Indebtedness.
"FAIR MARKET VALUE" means, with respect to any asset or
property, the price which 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 whom is under undue pressure or compulsion to complete the
transaction.
"FCC LICENSES" shall mean all authorizations, licenses and
permits issued by the Federal Communications Commission or any governmental
authority substituted therefor to the Issuer or any of its Subsidiaries, under
which the Issuer or any of its Subsidiaries is authorized to launch and operate
any of its Satellites or to operate any of its TT&C Earth Stations (other than
authorizations, orders, licenses or permits that are no longer in effect).
"FLOW THROUGH ENTITY" means an entity that is treated as a
partnership not taxable as a corporation, a grantor trust or a disregarded
entity for U.S. federal income tax purposes or subject to treatment on a
comparable basis for purposes of state, local or foreign tax law.
"FOREIGN SUBSIDIARY" means a Restricted Subsidiary not organized
or existing under the laws of the United States of America or any state or
territory thereof or the District of Columbia and any direct or indirect
subsidiary of such Restricted Subsidiary.
"G2 TRANSFER AGREEMENT" means the Agreement and Plan of Merger,
dated on or about the Issue Date, among Intelsat General Corporation and the
Issuer, and the other parties thereto, as amended from time to time (PROVIDED
that no such amendment materially affects the ability of the Issuer to make
anticipated principal or interest payments on the Notes), and the other
agreements entered into in connection therewith on or prior to the Issue Date.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect on August 20, 2004. For the
purposes of this Indenture, the term "CONSOLIDATED" with respect to any Person
shall mean such Person consolidated with its Restricted Subsidiaries, and shall
not include any Unrestricted Subsidiary, but the interest of such Person in an
Unrestricted Subsidiary will be accounted for as an Investment.
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"GOVERNMENT BUSINESS SUBSIDIARY" means any Restricted Subsidiary
of the Issuer that (i) is engaged primarily in the business of providing
services to customers similar to the services provided on the Issue Date by
Intelsat General Corporation and services or activities that are reasonably
similar thereto or a reasonable extension, development or expansion thereof, or
is complementary, incidental, ancillary or related thereto and (ii) is subject
to a Proxy Agreement.
"GUARANTEE" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness or other obligations.
"GUARANTEE" means any guarantee of the obligations of the Issuer
under this Indenture and the Notes by any Person in accordance with the
provisions of this Indenture.
"GUARANTOR" means any Person that Incurs a Guarantee; PROVIDED
that upon the release or discharge of such Person from its Guarantee in
accordance with this Indenture, such Person ceases to be a Guarantor.
"HEDGING OBLIGATIONS" means, with respect to any Person, the
obligations of such Person under:
(1) currency exchange or interest rate swap agreements, cap agreements
and collar agreements; and
(2) other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange or interest rates.
"HOLDER" means the Person in whose name a Note is registered on
the registrar's books.
"INCUR" means issue, assume, guarantee, incur or otherwise become
liable for; PROVIDED, HOWEVER, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
amalgamation, consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Person at the time it becomes a Subsidiary.
"INDEBTEDNESS" means, with respect to any Person:
(1) the principal and premium (if any) of any indebtedness of such
Person, whether or not contingent, (a) in respect of borrowed money, (b)
evidenced by bonds, notes, debentures or similar instruments or letters of
credit or bankers' acceptances (or, without duplication, reimbursement
agreements in respect thereof), (c) representing the deferred and unpaid
purchase price of any property, except any such balance that constitutes a
current account payable, trade payable or similar obligation Incurred, (d)
in respect of Capitalized Lease Obligations, or (e) representing any
Hedging Obligations, if and to the extent that any of the foregoing
indebtedness (other than letters of credit and Hedging Obligations) would
appear as a liability on a balance sheet (excluding the footnotes thereto)
of such Person prepared in accordance with GAAP;
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(2) to the extent not otherwise included, any obligation of such
Person to be liable for, or to pay, as obligor, guarantor or otherwise, the
Indebtedness of another Person (other than by endorsement of negotiable
instruments for collection in the ordinary course of business);
(3) to the extent not otherwise included, Indebtedness of another
Person secured by a Lien on any asset owned by such Person (whether or not
such Indebtedness is assumed by such Person); PROVIDED, HOWEVER, that the
amount of such Indebtedness will be the lesser of: (a) the Fair Market
Value of such asset at such date of determination, and (b) the amount of
such Indebtedness of such other Person; and
(4) to the extent not otherwise included, with respect to the Issuer
and its Restricted Subsidiaries, the amount then outstanding (I.E.,
advanced, and received by, and available for use by, the Issuer or any of
its Restricted Subsidiaries) under any Receivables Financing (as set forth
in the books and records of the Issuer or any Restricted Subsidiary and
confirmed by the agent, trustee or other representative of the institution
or group providing such Receivables Financing);
PROVIDED, HOWEVER, that notwithstanding the foregoing, Indebtedness shall be
deemed not to include (1) Contingent Obligations incurred in the ordinary course
of business and not in respect of borrowed money; (2) deferred or prepaid
revenues; (3) purchase price holdbacks in respect of a portion of the purchase
price of an asset to satisfy warranty or other unperformed obligations of the
respective seller; (4) obligations to make payments to one or more insurers
under satellite insurance policies in respect of premiums or the requirement to
remit to such insurer(s) a portion of the future revenue generated by a
satellite which has been declared a constructive total loss, in each case in
accordance with the terms of the insurance policies relating thereto; (5)
Obligations under or in respect of any Qualified Receivables Financing; or (6)
any obligations to make progress or incentive payments or risk money payments
under any satellite manufacturing contract or to make payments under satellite
launch contracts in respect of launch services provided thereunder, in each
case, to the extent not overdue by more than 90 days.
Notwithstanding anything in this Indenture, Indebtedness shall
not include, and shall be calculated without giving effect to, the effects of
Statement of Financial Accounting Standards No. 133 and related interpretations
to the extent such effects would otherwise increase or decrease an amount of
Indebtedness for any purpose under this Indenture as a result of accounting for
any embedded derivatives created by the terms of such Indebtedness; and any such
amounts that would have constituted Indebtedness under this Indenture but for
the application of this sentence shall not be deemed an Incurrence of
Indebtedness under this Indenture.
"INDENTURE" means this Indenture as amended or supplemented from
time to time.
"INDEPENDENT FINANCIAL ADVISOR" means an accounting, appraisal or
investment banking firm or consultant to Persons engaged in a Similar Business,
in each case of nationally recognized standing that is, in the good faith
determination of the Issuer, qualified to perform the task for which it has been
engaged.
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"INITIAL PURCHASERS" means such initial purchasers party to the
purchase agreement entered into in connection with the offer and sale of the
Original Notes.
"IN-ORBIT CONTINGENCY PROTECTION" means transponder capacity that
in the good faith determination of the Issuer, is available on a contingency
basis by the Issuer or its Subsidiaries or any Subsidiary of any Parent of the
Issuer, directly or by another satellite operator pursuant to a contractual
arrangement, to accommodate the transfer of traffic representing at least 25% of
the revenue-generating capacity with respect to any Satellite (or, if the entire
Satellite is not owned by the Issuer or any Restricted Subsidiary, as the case
may be, the portion of the Satellite it owns or for which it has risk of loss)
that may suffer actual or constructive total loss and that meets or exceeds the
contractual performance specifications for the transponders that had been
utilized by such traffic; it being understood that the Satellite (or portion, as
applicable) shall be deemed to be insured for a percentage of the Satellite's
(or applicable portion's) net book value for which In-Orbit Contingency
Protection is available.
"IN-ORBIT INSURANCE" means, with respect to any Satellite (or, if
the entire Satellite is not owned by the Issuer or any Restricted Subsidiary, as
the case may be, the portion of the Satellite it owns or for which it has risk
of loss), insurance (subject to a right of co-insurance in an amount up to
$150.0 million) or other contractual arrangement providing for coverage against
the risk of loss of or damage to such Satellite (or portion, as applicable)
attaching upon the expiration of the launch insurance therefor (or, if launch
insurance is not procured, upon the initial completion of in-orbit testing) and
attaching, during the commercial in-orbit service of such Satellite (or portion,
as applicable), upon the expiration of the immediately preceding corresponding
policy or other contractual arrangement, as the case may be, subject to the
terms and conditions set forth in this Indenture.
"INTELSAT BERMUDA" means Intelsat (Bermuda), Ltd., until a successor
replaces it, and thereafter means such successor.
"INTELSAT BERMUDA FACILITY" means the senior unsecured credit
agreement entered into on or prior to, the consummation of the Acquisition,
among Intelsat Bermuda, the financial institutions named therein and Deutsche
Bank AG Cayman Islands Branch (or an affiliate thereof), as Administrative
Agent, as amended, restated, supplemented, waived, replaced (whether or not upon
termination, and whether with the original lenders or otherwise), restructured,
repaid, refunded, refinanced or otherwise modified from time to time, including
any one or more agreements or indentures extending the maturity thereof,
refinancing, replacing or otherwise restructuring all or any portion of the
Indebtedness under such agreement or agreements or indenture or indentures or
any successor or replacement agreement or agreements or indenture or indentures
or altering the maturity thereof, and any documents in connection with the
foregoing, including any guarantees, and including any exchange notes issued on
the one-year anniversary of the date of such agreement pursuant to the terms of
such agreement as in effect on the Issue Date.
"INTELSAT BERMUDA INTERCOMPANY LOAN" means one or more loans by
Intelsat Bermuda to one or more of its Subsidiaries to fund, if applicable, the
payment of a portion of the purchase price of the Acquisition and to fund the
purchase price of the Existing PanAmSat Holdco Notes and, in each case, any fees
and expenses related thereto.
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"INTELSAT, LTD." means Intelsat, Ltd., until a successor replaces it,
and thereafter means such successor.
"INVESTMENT GRADE RATING" means a rating equal to or higher than
Baa3 (or equivalent) by Xxxxx'x or BBB- (or equivalent) by S&P, or an equivalent
rating by any other Rating Agency.
"INVESTMENT GRADE SECURITIES" means:
(1) securities issued or directly and fully guaranteed or insured by
the U.S. government or any agency or instrumentality thereof (other than
Cash Equivalents),
(2) securities that have an Investment Grade Rating, but excluding any
debt securities or loans or advances between and among the Issuer and its
Subsidiaries,
(3) investments in any fund that invests exclusively in investments of
the type described in clauses (1) and (2) which fund may also hold
immaterial amounts of cash pending investment and/or distribution, and
(4) corresponding instruments in countries other than the United
States customarily utilized for high quality investments and in each case
with maturities not exceeding two years from the date of acquisition.
"INVESTMENTS" means, with respect to any Person, all investments
by such Person in other Persons (including Affiliates) in the form of loans
(including guarantees), advances or capital contributions (excluding accounts
receivable, trade credit and advances to customers and commission, travel and
similar advances to officers, employees and consultants made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities issued by any other Person
and investments that are required by GAAP to be classified on the balance sheet
of the Issuer in the same manner as the other investments included in this
definition to the extent such transactions involve the transfer of cash or other
property. For purposes of the definition of "Unrestricted Subsidiary" and
Section 4.04:
(1) "Investments" shall include the portion (proportionate to the
Issuer's equity interest in such Subsidiary) of the Fair Market Value of
the net assets of a Subsidiary of the Issuer at the time that such
Subsidiary is designated an Unrestricted Subsidiary; PROVIDED, HOWEVER,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary,
the Issuer shall be deemed to continue to have a permanent "Investment" in
an Unrestricted Subsidiary equal to an amount (if positive) equal to:
(a) the Issuer's "Investment" in such Subsidiary at the time of
such redesignation less
(b) the portion (proportionate to the Issuer's equity interest in
such Subsidiary) of the Fair Market Value of the net assets of such
Subsidiary at the time of such redesignation; and
-22-
(2) any property transferred to or from an Unrestricted Subsidiary
shall be valued at its Fair Market Value at the time of such transfer, in
each case as determined in good faith by the Board of Directors of the
Issuer.
"ISSUE DATE" means July 3, 2006, the date on which the Original
Notes are originally issued.
"ISSUER" means the party named as such in the Preamble to this
Indenture until a successor replaces it and, thereafter, means the successor.
"JOINT VENTURE" means any Person, other than an individual or a
Subsidiary of the Issuer, (i) in which the Issuer or a Restricted Subsidiary of
the Issuer holds or acquires an ownership interest (whether by way of Capital
Stock or otherwise) and (ii) which is engaged in a Similar Business.
"LICENSE SUBSIDIARY" shall mean one or more wholly-owned Restricted
Subsidiaries of the Issuer (i) that holds, was formed for the purpose of holding
or is designated to hold FCC Licenses for the launch and operation of Satellites
or for the operation of any TT&C Earth Station and (ii) all of the shares of
capital stock and other ownership interests of which are held directly by the
Issuer or a Subsidiary Guarantor.
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any other agreement to give a security interest and
any filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction); PROVIDED that in
no event shall an operating lease be deemed to constitute a Lien.
"MASTER INTERCOMPANY SERVICES AGREEMENT" means the Master
Intercompany Services Agreement, dated on or about the Issue Date, among the
Issuer and certain direct and indirect Parent companies and Subsidiaries of the
Issuer, and the other parties thereto, as amended from time to time (PROVIDED
that no such amendment materially affects the ability of the Issuer to make
anticipated principal or interest payments on the Notes).
"MOODY'S" means Xxxxx'x Investors Service, Inc. or any successor to
the rating agency business thereof.
"NET INCOME" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of Preferred Stock dividends.
"NET PROCEEDS" means the aggregate cash proceeds received by the
Issuer or any of its Restricted Subsidiaries in respect of any Asset Sale,
including, without limitation, any cash received in respect of or upon the sale
or other disposition of any Designated Non-cash Consideration received in any
Asset Sale, net of the direct costs relating to such Asset Sale and the sale or
disposition of such Designated Non-cash Consideration (including, without
limitation, legal,
-23-
accounting and investment banking fees, and brokerage and sales commissions),
and any relocation expenses Incurred as a result thereof, taxes paid or payable
as a result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements related thereto), amounts required
to be applied to the repayment of principal, premium (if any) and interest on
Indebtedness required (other than pursuant to Section 4.06(b)) to be paid as a
result of such transaction (including to obtain any consent therefor), and any
deduction of appropriate amounts to be provided by the Issuer as a reserve in
accordance with GAAP against any liabilities associated with the asset disposed
of in such transaction and retained by the Issuer after such sale or other
disposition thereof, including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with such
transaction.
"NET TRANSPONDER CAPACITY" means the aggregate transponder
capacity for all in-orbit transponders then owned by the Issuer and its
Restricted Subsidiaries.
"NEW INTELSAT BERMUDA INDEBTEDNESS" means (i) the Senior Notes of
Intelsat Bermuda issued on the Issue Date and, if applicable, issued after the
Issue Date to fund the purchase, repayment or refinancing of the 9% Senior Notes
of the Issuer and/or the 10 3/8% Senior Discount Notes due 2014 of PanAmSat
Holdco, and in each case including any exchange notes issued in exchange
therefor and (ii) Indebtedness under the Intelsat Bermuda Facility.
"NEW PANAMSAT INDEBTEDNESS" means (i) the 9% Senior Notes due
2016 of the Issuer issued on the Issue Date, and including any exchange notes
issued in exchange therefor and (ii) the Intelsat Bermuda Intercompany Loan.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements (including, without limitation, reimbursement
obligations with respect to letters of credit and bankers' acceptances), damages
and other liabilities payable under the documentation governing any
Indebtedness; PROVIDED that Obligations with respect to the Notes shall not
include fees or indemnifications in favor of the Trustee and other third parties
other than the Holders of the Notes.
"OFFERING MEMORANDUM" means the offering memorandum relating to
the offering of the Original Notes dated June 19, 2006.
"OFFICER" means the Chairman of the Board, Chief Executive
Officer, Chief Financial Officer, President, any Executive Vice President,
Senior Vice President or Vice President, the Treasurer or the Secretary of the
Issuer, any Parent of the Issuer or any of the Issuer's Restricted Subsidiaries.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of
the Issuer by two Officers of the Issuer, any Parent of the Issuer or any of the
Issuer's Restricted Subsidiaries, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Issuer, any Parent of the Issuer or any of the
Issuer's Restricted Subsidiaries, that meets the requirements set forth in this
Indenture.
-24-
"OPINION OF COUNSEL" means a written opinion from legal counsel
who is acceptable to the Trustee. The counsel may be an employee of or counsel
to the Issuer or the Trustee.
"PANAMSAT HOLDCO" means PanAmSat Holding Corporation, a company
organized under the laws of Delaware, until a successor replaces it, and
thereafter means such successor.
"PARENT" means, with respect to any Person, any direct or
indirect parent company of such Person.
"PARI PASSU INDEBTEDNESS" means:
(1) with respect to the Issuer, the Notes and any Indebtedness which
ranks pari passu in right of payment with the Notes; and
(2) with respect to any Guarantor, its Guarantee and any Indebtedness
which ranks pari passu in right of payment with such Guarantor's Guarantee.
"PERMITTED HOLDERS" means, at any time, the Sponsors. Any person
or group whose acquisition of beneficial ownership constitutes a Change of
Control in respect of which a Change of Control Offer is made in accordance with
the requirements of this Indenture will thereafter, together with its
Affiliates, constitute an additional Permitted Holder.
"PERMITTED INVESTMENTS" means:
(1) any Investment in the Issuer or any Restricted Subsidiary;
(2) any Investment in Cash Equivalents or Investment Grade Securities;
(3) any Investment by the Issuer or any Restricted Subsidiary of the
Issuer in a Person that is primarily engaged in a Similar Business if as a
result of such Investment (a) such Person becomes a Restricted Subsidiary
of the Issuer, or (b) such Person, in one transaction or a series of
related transactions, is merged, consolidated or amalgamated with or into,
or transfers or conveys all or substantially all of its assets to, or is
liquidated into, the Issuer or a Restricted Subsidiary of the Issuer;
(4) any Investment in securities or other assets not constituting Cash
Equivalents and received in connection with an Asset Sale made pursuant to
the provisions of Section 4.06 or any other disposition of assets not
constituting an Asset Sale;
(5) any Investment existing on the Issue Date and any Investments made
pursuant to binding commitments in effect on the Issue Date;
(6) advances to employees not in excess of $25.0 million outstanding
at any one time in the aggregate;
(7) any Investment acquired by the Issuer or any of its Restricted
Subsidiaries (a) in exchange for any other Investment or accounts
receivable held by the Issuer or any
-25-
such Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer of
such other Investment or accounts receivable, or (b) as a result of a
foreclosure by the Issuer or any of its Restricted Subsidiaries with
respect to any secured Investment or other transfer of title with respect
to any secured Investment in default;
(8) Hedging Obligations permitted under Section 4.03(b)(x);
(9) any Investment by the Issuer or any of its Restricted Subsidiaries
in a Similar Business having an aggregate Fair Market Value, taken together
with all other Investments made pursuant to this clause (9) that are at
that time outstanding, not to exceed the greater of (x) $275.0 million and
(y) 4.5% of Total Assets of the Issuer at the time of such Investment (with
the Fair Market Value of each Investment being measured at the time made
and without giving effect to subsequent changes in value); PROVIDED,
HOWEVER, that if any Investment pursuant to this clause (9) is made in any
Person that is not a Restricted Subsidiary of the Issuer at the date of the
making of such Investment and such Person becomes a Restricted Subsidiary
of the Issuer after such date, such Investment shall thereafter be deemed
to have been made pursuant to clause (1) above and shall cease to have been
made pursuant to this clause (9) for so long as such Person continues to be
a Restricted Subsidiary;
(10) additional Investments by the Issuer or any of its Restricted
Subsidiaries having an aggregate Fair Market Value, taken together with all
other Investments made pursuant to this clause (10) that are at that time
outstanding, not to exceed the greater of (x) $150.0 million and (y) 2.25%
of Total Assets of the Issuer at the time of such Investment (with the Fair
Market Value of each Investment being measured at the time made and without
giving effect to subsequent changes in value);
(11) loans and advances to officers, directors and employees for
business-related travel expenses, moving and relocation expenses and other
similar expenses, in each case Incurred in the ordinary course of business;
(12) Investments the payment for which consists of Equity Interests of
the Issuer or any Parent of the Issuer (other than Disqualified Stock);
PROVIDED, HOWEVER, that such Equity Interests will not increase the amount
available for Restricted Payments under the calculation set forth in the
definition of the term "Cumulative Credit";
(13) any transaction to the extent it constitutes an Investment that
is permitted by and made in accordance with the provisions of Section
4.07(b) (except transactions described in clauses (ii)(a), (vi), (vii) and
(xi)(B) of such Section);
(14) Investments consisting of the licensing or contribution of
intellectual property pursuant to joint marketing arrangements with other
Persons;
(15) guarantees not prohibited by or required pursuant to, as the case
may be, Sections 4.03 and 4.11; PROVIDED that the proceeds of the
Indebtedness being guaranteed
-26-
would be applied in a manner that would otherwise comply with Section
4.04(a) (other than Section 4.04(a)(iv));
(16) any Investments by Subsidiaries that are not Restricted
Subsidiaries in other Subsidiaries that are not Restricted Subsidiaries of
the Issuer;
(17) Investments consisting of purchases and acquisitions of
inventory, supplies, materials and equipment or purchases of contract
rights or licenses or leases of intellectual property, in each case in the
ordinary course of business;
(18) any Investment in a Receivables Subsidiary or any Investment by a
Receivables Subsidiary in any other Person in connection with a Qualified
Receivables Financing, including Investments of funds held in accounts
permitted or required by the arrangements governing such Qualified
Receivables Financing or any related Indebtedness; PROVIDED, HOWEVER, that
any Investment in a Receivables Subsidiary is in the form of a Purchase
Money Note, contribution of additional receivables or an equity interest;
(19) Investments resulting from the receipt of non-cash consideration
in a sale of assets or property that does not constitute an Asset Sale or
in an Asset Sale received in compliance with Section 4.06;
(20) additional Investments in Joint Ventures of the Issuer or any of
its Restricted Subsidiaries existing on the Issue Date in an aggregate
amount not to exceed $20.0 million outstanding at any one time;
(21) Investments of a Restricted Subsidiary of the Issuer acquired
after the Issue Date or of an entity merged into, amalgamated with, or
consolidated with a Restricted Subsidiary of the Issuer in a transaction
that is not prohibited by Section 5.01 after the Issue Date to the extent
that such Investments were not made in contemplation of such acquisition,
merger, amalgamation or consolidation and were in existence on the date of
such acquisition, merger, amalgamation or consolidation;
(22) Investments in Subsidiaries or Joint Ventures formed for the
purpose of selling or leasing transponders or transponder capacity to
third-party customers in the ordinary course of business of the Issuer and
its Restricted Subsidiaries which investments are in the form of transfers
to such Subsidiaries or Joint Ventures for fair market value transponders
or transponder capacity sold or to be sold or leased or to be leased by
such Subsidiaries or Joint Ventures; PROVIDED that all such Investments in
Subsidiaries and Joint Ventures do not exceed 10% of Net Transponder
Capacity; and
(23) any Investment in the Notes.
"PERMITTED LIENS" means with respect to any Person:
(1) pledges or deposits by such Person under workmen's compensation
laws, unemployment insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other than for the
payment of Indebtedness) or leases to
-27-
which such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or U.S. government bonds to
secure surety or appeal bonds to which such Person is a party, or deposits
as security for contested taxes or import duties or for the payment of
rent, in each case Incurred in the ordinary course of business;
(2) Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens, in each case for sums not yet due or being contested in
good faith by appropriate proceedings or other Liens arising out of
judgments or awards against such Person with respect to which such Person
shall then be proceeding with an appeal or other proceedings for review;
(3) Liens for taxes, assessments or other governmental charges not yet
due or payable or subject to penalties for nonpayment or which are being
contested in good faith by appropriate proceedings;
(4) Liens in favor of issuers of performance and surety bonds or bid
bonds or with respect to other regulatory requirements or letters of credit
issued at the request of and for the account of such Person in the ordinary
course of its business;
(5) minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, licenses, rights-of-way, sewers,
electric lines, telegraph and telephone lines and other similar purposes,
or zoning or other restrictions as to the use of real properties or Liens
incidental to the conduct of the business of such Person or to the
ownership of its properties which were not Incurred in connection with
Indebtedness and which do not in the aggregate materially adversely affect
the value of said properties or materially impair their use in the
operation of the business of such Person;
(6) (A) Liens securing an aggregate principal amount of Pari Passu
Indebtedness not to exceed the greater of (x) the aggregate principal
amount of Pari Passu Indebtedness permitted to be Incurred pursuant to
Section 4.03(b)(i) and (y) the maximum principal amount of Indebtedness
that, as of such date, and after giving effect to the Incurrence of such
Indebtedness and the application of the proceeds therefrom on such date,
would not cause the Secured Indebtedness Leverage Ratio of the Issuer to
exceed 4.50 to 1.00 and (B) Liens securing Indebtedness permitted to be
Incurred pursuant to the Non-Guarantor Exception and Sections 4.03(b)(ii),
(iv) (PROVIDED that such Liens do not extend to any property or assets that
are not property being purchased, leased, constructed or improved with the
proceeds of such Indebtedness being Incurred pursuant to Section
4.03(b)(iv)), (xii) or (xx); PROVIDED that in the case of the Non-Guarantor
Exception and Section 4.03(b)(xx), such Lien does not extend to the
property or assets of the Issuer or any Subsidiary of the Issuer other than
a Restricted Subsidiary of the Issuer that is not a Guarantor;
(7) Liens existing on the Issue Date;
(8) Liens on assets, property or shares of stock of a Person at the
time such Person becomes a Subsidiary; PROVIDED, HOWEVER, that such Liens
are not created or Incurred in connection with, or in contemplation of,
such other Person becoming such a
28
Subsidiary; PROVIDED, FURTHER, HOWEVER, that such Liens may not extend to
any other property owned by the Issuer or any Subsidiary Guarantor of the
Issuer;
(9) Liens on assets or property at the time the Issuer or a Restricted
Subsidiary of the Issuer acquired the assets or property, including any
acquisition by means of a merger, amalgamation or consolidation with or
into the Issuer or any Restricted Subsidiary of the Issuer; PROVIDED,
HOWEVER, that such Liens are not created or Incurred in connection with, or
in contemplation of, such acquisition; PROVIDED, FURTHER, HOWEVER, that the
Liens may not extend to any other assets or property owned by the Issuer or
any Restricted Subsidiary of the Issuer;
(10) Liens securing Indebtedness or other obligations of a Restricted
Subsidiary owing to the Issuer or another Restricted Subsidiary of the
Issuer permitted to be Incurred in accordance with Section 4.03;
(11) Liens securing Hedging Obligations permitted to be Incurred under
Section 4.03(b)(x);
(12) Liens on specific items of inventory or other goods and proceeds
of any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person to facilitate
the purchase, shipment or storage of such inventory or other goods;
(13) leases and subleases of real property which do not materially
interfere with the ordinary conduct of the business of the Issuer or any of
its Restricted Subsidiaries;
(14) Liens arising from Uniform Commercial Code financing statement
filings regarding operating leases entered into by the Issuer and its
Restricted Subsidiaries in the ordinary course of business;
(15) Liens in favor of the Issuer or any Restricted Subsidiary;
(16) Liens on equipment of the Issuer or any Restricted Subsidiary
granted in the ordinary course of business to the Issuer's client at which
such equipment is located;
(17) Liens on accounts receivable and related assets of the type
specified in the definition of "Receivables Financing" Incurred in
connection with a Qualified Receivables Financing;
(18) deposits made in the ordinary course of business to secure
liability to insurance carriers;
(19) Liens on the Equity Interests of Unrestricted Subsidiaries;
(20) grants of software and other technology licenses in the ordinary
course of business;
-29-
(21) Liens to secure any refinancing, refunding, extension, renewal or
replacement (or successive refinancings, refundings, extensions, renewals
or replacements) as a whole, or in part, of any Indebtedness secured by any
Lien referred to in the foregoing clauses (6)(B), (7), (8), (9), (10), (11)
and (15); PROVIDED, HOWEVER, that (x) such new Lien shall be limited to all
or part of the same property that secured the original Lien (plus
improvements on such property), and (y) the Indebtedness secured by such
Lien at such time is not increased to any amount greater than the sum of
(A) the outstanding principal amount or, if greater, committed amount of
the Indebtedness described under clauses (6)(B), (7), (8), (9), (10), (11)
and (15) at the time the original Lien became a Permitted Lien under this
Indenture, and (B) an amount necessary to pay any fees and expenses,
including premiums, related to such refinancing, refunding, extension,
renewal or replacement; and
(22) other Liens securing obligations Incurred in the ordinary course
of business which obligations do not exceed $50.0 million at any one time
outstanding.
"PERSON" means any individual, corporation, partnership, limited
liability company, Joint Venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"PREFERRED STOCK" means any Equity Interest with preferential
right of payment of dividends or upon liquidation, dissolution or winding up.
"PRESUMED TAX RATE" means the highest effective marginal
statutory combined U.S. federal, state and local income tax rate prescribed for
an individual residing in New York City (taking into account (i) the
deductibility of state and local income taxes for U.S. federal income tax
purposes, assuming the limitation of Section 68(a)(2) of the Code applies and
taking into account any impact of Section 68(f) of the Code, and (ii) the
character (long-term or short-term capital gain, dividend income or other
ordinary income) of the applicable income).
"PROXY AGREEMENT" means that certain proxy agreement among
Intelsat General Corporation and the other parties thereto, or any substantially
similar agreement substantially restricting the Issuer's control of a Restricted
Subsidiary.
"PURCHASE MONEY NOTE" means a promissory note of a Receivables
Subsidiary evidencing a line of credit, which may be irrevocable, from the
Issuer or any Subsidiary of the Issuer to a Receivables Subsidiary in connection
with a Qualified Receivables Financing, which note is intended to finance that
portion of the purchase price that is not paid by cash or a contribution of
equity.
"QUALIFIED RECEIVABLES FINANCING" means any Receivables Financing
of a Receivables Subsidiary that meets the following conditions:
(1) the Board of Directors of the Issuer shall have determined in good
faith that such Qualified Receivables Financing (including financing terms,
covenants, termination events and other provisions) is in the aggregate
economically fair and reasonable to the Issuer and the Receivables
Subsidiary,
-30-
(2) all sales of accounts receivable and related assets to the
Receivables Subsidiary are made at Fair Market Value (as determined in good
faith by the Issuer), and
(3) the financing terms, covenants, termination events and other
provisions thereof shall be market terms (as determined in good faith by
the Issuer) and may include Standard Securitization Undertakings.
The grant of a security interest in any accounts receivable of
the Issuer or any of its Restricted Subsidiaries (other than a Receivables
Subsidiary) to secure Bank Indebtedness shall not be deemed a Qualified
Receivables Financing.
"RATING AGENCY" means (1) each of Xxxxx'x and S&P and (2) if
Xxxxx'x or S&P ceases to rate the Notes for reasons outside of the Issuer's
control, a "nationally recognized statistical rating organization" within the
meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the
Issuer or any Parent of the Issuer as a replacement agency for Xxxxx'x or S&P,
as the case may be.
"RECEIVABLES FEES" means distributions or payments made directly
or by means of discounts with respect to any participation interest issued or
sold in connection with, and other fees paid to a Person that is not a
Restricted Subsidiary in connection with, any Receivables Financing.
"RECEIVABLES FINANCING" means any transaction or series of
transactions that may be entered into by the Issuer or any of its Subsidiaries
pursuant to which the Issuer or any of its Subsidiaries may sell, convey or
otherwise transfer to (a) a Receivables Subsidiary (in the case of a transfer by
the Issuer or any of its Subsidiaries), and (b) any other Person (in the case of
a transfer by a Receivables Subsidiary), or may grant a security interest in,
any accounts receivable (whether now existing or arising in the future) of the
Issuer or any of its Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts receivable, all
contracts and all guarantees or other obligations in respect of such accounts
receivable, proceeds of such accounts receivable and other assets which are
customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving accounts receivable and any Hedging Obligations entered into by the
Issuer or any such Subsidiary in connection with such accounts receivable.
"RECEIVABLES REPURCHASE OBLIGATION" means any obligation of a
seller of receivables in a Qualified Receivables Financing to repurchase
receivables arising as a result of a breach of a representation, warranty or
covenant or otherwise, including as a result of a receivable or portion thereof
becoming subject to any asserted defense, dispute, off-set or counterclaim of
any kind as a result of any action taken by, any failure to take action by or
any other event relating to the seller.
"RECEIVABLES SUBSIDIARY" means a Wholly Owned Restricted
Subsidiary of the Issuer (or another Person formed for the purposes of engaging
in a Qualified Receivables Financing with the Issuer in which the Issuer or any
Subsidiary of the Issuer makes an Investment and to which the Issuer or any
Subsidiary of the Issuer transfers accounts receivable and related assets) which
engages in no activities other than in connection with the financing of accounts
re-
-31-
ceivable of the Issuer and its Subsidiaries, all proceeds thereof and all
rights (contractual or other), collateral and other assets relating thereto, and
any business or activities incidental or related to such business, and which is
designated by the Board of Directors of the Issuer (as provided below) as a
Receivables Subsidiary and:
(a) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which (i) is guaranteed by the Issuer or any
other Subsidiary of the Issuer (excluding guarantees of obligations (other
than the principal of, and interest on, Indebtedness) pursuant to Standard
Securitization Undertakings), (ii) is recourse to or obligates the Issuer
or any other Subsidiary of the Issuer in any way other than pursuant to
Standard Securitization Undertakings, or (iii) subjects any property or
asset of the Issuer or any other Subsidiary of the Issuer, directly or
indirectly, contingently or otherwise, to the satisfaction thereof, other
than pursuant to Standard Securitization Undertakings,
(b) with which neither the Issuer nor any other Subsidiary of the
Issuer has any material contract, agreement, arrangement or understanding
other than on terms which the Issuer reasonably believes to be no less
favorable to the Issuer or such Subsidiary than those that might be
obtained at the time from Persons that are not Affiliates of the Issuer,
and
(c) to which neither the Issuer nor any other Subsidiary of the Issuer
has any obligation to maintain or preserve such entity's financial
condition or cause such entity to achieve certain levels of operating
results.
Any such designation by the Board of Directors of the Issuer shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the
resolution of the Board of Directors of the Issuer giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions.
"RELEVANT TAX JURISDICTION" means Bermuda, or another jurisdiction in
which the Issuer or a Guarantor, or a successor of any of them, is organized, is
resident or engaged in business for tax purposes or through which payments are
made on or in connection with the Notes.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED SUBSIDIARY" means, with respect to any Person, any
Subsidiary of such Person other than an Unrestricted Subsidiary of such Person.
Unless otherwise indicated in this Indenture, all references to Restricted
Subsidiaries shall mean Restricted Subsidiaries of the Issuer.
"S&P" means Standard & Poor's Ratings Group or any successor to the
rating agency business thereof.
"SALE/LEASEBACK TRANSACTION" means an arrangement relating to property
now owned or hereafter acquired by the Issuer or a Restricted Subsidiary whereby
the Issuer or a Restricted Subsidiary transfers such property to a Person and
the Issuer or such Restricted Subsidi-
-32-
ary leases it from such Person, other than leases between the Issuer and a
Restricted Subsidiary of the Issuer or between Restricted Subsidiaries of the
Issuer.
"SATELLITE" means any satellite owned by the Issuer or any of its
Restricted Subsidiaries and any satellite purchased by the Issuer or any of its
Restricted Subsidiaries pursuant to the terms of a Satellite Purchase Agreement,
whether such satellite is in the process of manufacture, has been delivered for
launch or is in orbit (whether or not in operational service).
"SATELLITE MANUFACTURER" means, with respect to any Satellite, the
prime contractor and manufacturer of such Satellite.
"SATELLITE PURCHASE AGREEMENT" means, with respect to any Satellite,
the agreement between the applicable Satellite Purchaser and the applicable
Satellite Manufacturer relating to the manufacture, testing and delivery of such
Satellite.
"SATELLITE PURCHASER" means the Issuer or Restricted Subsidiary that
is a party to a Satellite Purchase Agreement.
"SEC" means the Securities and Exchange Commission.
"SECURED INDEBTEDNESS" means any Indebtedness secured by a Lien.
"SECURED INDEBTEDNESS LEVERAGE RATIO" means, with respect to any
Person, at any date the ratio of (1) Secured Indebtedness of such Person and its
Restricted Subsidiaries as of such date of calculation (determined on a
consolidated basis in accordance with GAAP) to (2) Adjusted EBITDA of such
Person for the four full fiscal quarters for which internal financial statements
are available immediately preceding such date on which such additional
Indebtedness is Incurred. In the event that such Person or any of its Restricted
Subsidiaries Incurs or redeems any Indebtedness subsequent to the commencement
of the period for which the Secured Indebtedness Leverage Ratio is being
calculated but prior to the event for which the calculation of the Secured
Indebtedness Leverage Ratio is made (the "SECURED LEVERAGE CALCULATION DATE"),
then the Secured Indebtedness Leverage Ratio shall be calculated giving pro
forma effect to such Incurrence or redemption of Indebtedness as if the same had
occurred at the beginning of the applicable four-quarter period.
For purposes of making the computation referred to above, Investments,
acquisitions, dispositions, mergers, amalgamations, consolidations and
discontinued operations (as determined in accordance with GAAP), in each case
with respect to an operating unit of a business, and other operational changes
that such Person or any of its Restricted Subsidiaries has both determined to
make and made after August 20, 2004 and during the four-quarter reference period
or subsequent to such reference period and on or prior to or simultaneously with
the Secured Leverage Calculation Date shall be calculated on a pro forma basis
assuming that all such Investments, acquisitions, dispositions, mergers,
consolidations, discontinued operations and other operational changes (and the
change in Adjusted EBITDA resulting therefrom) had occurred on the first day of
the four-quarter reference period. If since the beginning of such period any
Person that subsequently became a Restricted Subsidiary or was merged with or
into such Person or any Restricted Subsidiary since the beginning of such period
shall have made any Investment,
-33-
acquisition, disposition, merger, amalgamation, consolidation, discontinued
operation or operational change, in each case with respect to an operating unit
of a business, that would have required adjustment pursuant to this definition,
then the Secured Indebtedness Leverage Ratio shall be calculated giving pro
forma effect thereto for such period as if such Investment, acquisition,
disposition, discontinued operation, merger, consolidation or operational change
had occurred at the beginning of the applicable four-quarter period.
For purposes of this definition, whenever pro forma effect is to be
given to any transaction, the pro forma calculations shall be made in good faith
by a responsible financial or accounting officer of the Issuer. Any such pro
forma calculation may include adjustments appropriate, in the reasonable
determination of the Issuer as set forth in an Officers' Certificate, to
reflect, among other things, (1) operating expense reductions and other
operating improvements or synergies reasonably expected to result from any
acquisition, merger or operational change (including, to the extent applicable,
from the Transactions) and (2) all adjustments used in connection with the
calculation of "Adjusted EBITDA" as set forth in footnote 4 to the "Summary
Historical and Pro Forma Consolidated Financial Data" under "Offering Memorandum
Summary" in the Offering Memorandum, to the extent such adjustments, without
duplication, continue to be applicable to such four-quarter period.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"SENIOR CREDIT DOCUMENTS" means the collective reference to any Credit
Agreement, the notes issued pursuant thereto and the guarantees thereof, and the
collateral documents relating thereto, as amended, supplemented or otherwise
modified from time to time.
"SIGNIFICANT SUBSIDIARY" means any Restricted Subsidiary that would be
a "Significant Subsidiary" of the Issuer within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC or any successor provision.
"SIMILAR BUSINESS" means any business or activity of the Issuer or any
of its Subsidiaries currently conducted or proposed as of the Issue Date, or any
business or activity that is reasonably similar thereto or a reasonable
extension, development or expansion thereof, or is complementary, incidental,
ancillary or related thereto.
"SPECIFIED INTERCOMPANY AGREEMENTS" means the Master Intercompany
Services Agreement, the Employee Transfer Agreement, the G2 Transfer Agreement
and the agreements or promissory notes evidencing the Intelsat Bermuda
Intercompany Loan and, in each case, agreements in connection therewith.
"SPECIFIED SALE/LEASEBACK TRANSACTION" means one Sale/Leaseback
Transaction pursuant to which the Issuer or its Restricted Subsidiaries sell one
Satellite and related assets that is designated as a Specified Sale/Leaseback
Transaction pursuant to an Officers' Certificate.
"SPONSORS" means (1) one or more investment funds advised, managed or
controlled by Apax Partners Worldwide LLP and Apax Partners, L.P., (2) one or
more investment funds advised, managed or controlled by Apollo Management V,
L.P., (3) one or more invest-
-34-
ment funds advised, managed or controlled by Madison Dearborn Partners and (4)
one or more investment funds advised, managed or controlled by Permira Advisers
LLC and, in each case, (whether individually or as a group) their Affiliates.
"STANDARD SECURITIZATION UNDERTAKINGS" means representations,
warranties, covenants, indemnities and guarantees of performance entered into by
the Issuer or any Subsidiary of the Issuer which the Issuer has determined in
good faith to be customary in a Receivables Financing including, without
limitation, those relating to the servicing of the assets of a Receivables
Subsidiary, it being understood that any Receivables Repurchase Obligation shall
be deemed to be a Standard Securitization Undertaking.
"STATED MATURITY" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
"SUBORDINATED INDEBTEDNESS" means (a) with respect to the Issuer, any
Indebtedness of the Issuer which is by its terms subordinated in right of
payment to the Notes, and (b) with respect to any Guarantor, any Indebtedness of
such Guarantor which is by its terms subordinated in right of payment to its
Guarantee.
"SUBSIDIARY" means, with respect to any Person, (1) any corporation,
association or other business entity (other than a partnership, joint venture or
limited liability company) of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time of determination owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of such Person or a
combination thereof, (2) any partnership, joint venture or limited liability
company of which (x) more than 50% of the capital accounts, distribution rights,
total equity and voting interests or general and limited partnership interests,
as applicable, are owned or controlled, directly or indirectly, by such Person
or one or more of the other Subsidiaries of that Person or a combination
thereof, whether in the form of membership, general, special or limited
partnership interests or otherwise, and (y) such Person or any Restricted
Subsidiary of such Person is a controlling general partner or otherwise controls
such entity and (3) any Person that is consolidated in the consolidated
financial statements of the specified Person in accordance with GAAP.
"SUBSIDIARY GUARANTOR" means each Subsidiary of the Issuer that is a
Guarantor.
"SUBSIDIARY TRANSFER TRANSACTIONS" means the transfer of all or a
portion of the equity, assets and liabilities of any of Intelsat Bermuda or any
of its Subsidiaries between or among any of Intelsat Bermuda and/or of its
Subsidiaries.
"TAX-AFFECTED INVESTOR" means any holder of capital stock in any
Parent of the Issuer that is subject (or if such holder is a Flow-Through
Entity, any partner in which is subject) to a tax regime (for example, as a
United States shareholder within the meaning of section 951(b) of the Code) that
requires such person to recognize on a current basis taxable income attributable
-35-
to earnings and profits of the Issuer, or its Subsidiaries in advance of any
distribution of such earnings and profits.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of this Indenture.
"TOTAL ASSETS" means, with respect to any Person, the total
consolidated assets of such Person and its Restricted Subsidiaries, as shown on
the most recent balance sheet; PROVIDED, that until the Issuer files a Form 10-Q
following the date of the Acquisition, such calculation shall be on a pro forma
basis after giving effect to the Transactions.
"TRANSACTION AGREEMENT" means the Merger Agreement, dated as of August
28, 2005, among Intelsat (Bermuda), Ltd. and PanAmSat Holdco, and the other
parties thereto, as amended, supplemented or modified from time to time.
"TRANSACTIONS" means the Acquisition and the transactions related
thereto as contemplated by the Acquisition Documents (including any Equity
Interest payments made in connection therewith (whether on the Issue Date or
thereafter)), the incurrence of the New PanAmSat Indebtedness, amendments and
borrowings made pursuant to the Credit Agreement and the Intelsat Bermuda
Facility at the time of closing (and any issuance of exchange notes issued under
the Intelsat Bermuda Facility after the Issue Date), if any, the execution and
performance of the Specified Intercompany Agreements, the purchase of the 9%
Senior Notes due 2014 of the Issuer and the funding thereof, the Subsidiary
Transfer Transactions, and the other transactions in connection with the
foregoing.
"TREASURY RATE" means with respect to the Notes, as of the applicable
redemption date, the yield to maturity as of such redemption date of United
States Treasury securities with a constant maturity (as compiled and published
in the most recent Federal Reserve Statistical Release H.15(519) that has become
publicly available at least two business days prior to such redemption date (or,
if such Statistical Release is no longer published, any publicly available
source of similar market data)) most nearly equal to the period from such
redemption date to June 15, 2011; PROVIDED, HOWEVER, that if the period from
such redemption date to June 15, 2011, is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted to a
constant maturity of one year will be used.
"TRUST OFFICER" means any officer within the corporate trust
department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject, and who shall have
direct responsibility for the administration of this Indenture.
"TRUSTEE" means the respective party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
-36-
"TT&C EARTH STATION" shall mean any earth station licensed for
operation by the FCC or by any international, federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body,
authority, agency or commission or legislative body or other governmental entity
outside of the United States used for the provision of TT&C Services that is
owned and operated by the Issuer or any of its Subsidiaries.
"TT&C SERVICES" shall mean the provision of tracking, telemetry and
command services for the purposes of operational control of any Satellite.
"UNIFORM COMMERCIAL CODE" means the New York Uniform Commercial Code
as in effect from time to time.
"UNRESTRICTED SUBSIDIARY" means:
(1) any Subsidiary of the Issuer that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of Directors of
such Person in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Issuer may designate any Subsidiary of
the Issuer (including any newly acquired or newly formed Subsidiary of the
Issuer) to be an Unrestricted Subsidiary unless such Subsidiary or any of its
Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any
Lien on any property of, the Issuer or any other Subsidiary of the Issuer that
is not a Subsidiary of the Subsidiary to be so designated; PROVIDED, HOWEVER,
that the Subsidiary to be so designated and its Subsidiaries do not at the time
of designation have and do not thereafter Incur any Indebtedness pursuant to
which the lender has recourse to any of the assets of the Issuer or any of its
Restricted Subsidiaries (other than Equity Interests of Unrestricted
Subsidiaries); PROVIDED, FURTHER, HOWEVER, that either:
(a) the Subsidiary to be so designated has total consolidated assets
of $1,000 or less; or
(b) if such Subsidiary has consolidated assets greater than $1,000,
then such designation would be permitted under Section 4.04.
The Board of Directors of the Issuer may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; PROVIDED, HOWEVER, that immediately
after giving effect to such designation (x) (1) the Issuer could Incur $1.00 of
additional Indebtedness pursuant to the Debt to Adjusted EBITDA Ratio test
described in Section 4.03(a) or (2) the Debt to Adjusted EBITDA Ratio for the
Issuer and its Restricted Subsidiaries would be less than such ratio for the
Issuer and its Restricted Subsidiaries immediately prior to such designation, in
each case on a pro forma basis taking into account such designation and (y) no
Event of Default shall have occurred and be continuing.
Any such designation by the Board of Directors of the Issuer shall be
evidenced to the Trustee by promptly filing with the Trustee a copy of the
resolution of the Board of Directors
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of the Issuer giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
"U.S. DOLLAR EQUIVALENT" means, with respect to any monetary amount in
a currency other than U.S. Dollars, at any time for the determination thereof,
the amount of U.S. Dollars obtained by converting such foreign currency involved
in such computation into U.S. Dollars at the spot rate for the purchase of U.S.
Dollars with the applicable foreign currency as quoted by Reuters at
approximately 10:00 A.M. (New York City time) on such date of determination (or
if no such quote is available on such date, on the immediately preceding
Business Day for which such a quote is available).
"U.S. GOVERNMENT OBLIGATIONS" means securities that are:
(1) direct obligations of the United States of America for the timely
payment of which its full faith and credit is pledged, or
(2) obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the timely
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America,
which, in each case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with respect to
any such U.S. Government Obligations or a specific payment of principal of or
interest on any such U.S. Government Obligations held by such custodian for the
account of the holder of such depository receipt; PROVIDED that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligations or the specific
payment of principal of or interest on the U.S. Government Obligations evidenced
by such depository receipt.
"VOTING STOCK" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness or Disqualified Stock, as the case may be, at any date, the
quotient obtained by dividing (1) the sum of the products of the number of years
from the date of determination to the date of each successive scheduled
principal payment of such Indebtedness or redemption or similar payment with
respect to such Disqualified Stock multiplied by the amount of such payment, by
(2) the sum of all such payments.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" is any Wholly Owned Subsidiary
that is a Restricted Subsidiary.
"WHOLLY OWNED SUBSIDIARY" of any Person means a Subsidiary of such
Person 100% of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares or shares or interests required
to be held by foreign nationals) shall at the
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time be owned by such Person or by one or more Wholly Owned Subsidiaries of such
Person and one or more Wholly Owned Subsidiaries of such Person.
SECTION 1.02. OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
---- ----------
"Additional Interest"......................................... Appendix A
"Affiliate Transaction"....................................... 4.07(a)
"Appendix".................................................... Preamble
"Asset Sale Offer"............................................ 4.06(b)
"Authorized Agent"............................................ 11.16
"Bankruptcy Law".............................................. 6.01
"Base Currency"............................................... 11.18(b)
"Calculation Date"............................................ 1.01
"Change of Control"........................................... 4.08(a)
"Change of Control Offer"..................................... 4.08(b)
"Clearstream"................................................. Appendix A
"control"..................................................... 1.01
"consolidated"................................................ 1.01
"covenant defeasance option".................................. 8.01(c)
"Covenant Suspension Event"................................... 4.16
"Custodian"................................................... 6.01
"Deadline".................................................... 4.18
"Definitive Note"............................................. Appendix A
"Depository".................................................. Appendix A
"disposition"................................................. 1.01
"Euroclear"................................................... Appendix A
"Event of Default"............................................ 6.01
"Excess Proceeds"............................................. 4.06(b)
"Exchange Notes".............................................. Preamble
"Global Notes Legend"......................................... Appendix A
"Guaranteed Obligations"...................................... 10.01(a)
"IAI"......................................................... Appendix A
"incorporated provision"...................................... 11.01
"Initial Notes"............................................... Preamble
"Initial Purchasers".......................................... 1.01 and
Appendix A
"Intelsat General"............................................ 4.15
"Interest Period"............................................. Exhibit C
"Issuer"...................................................... Preamble
"Judgment Currency"........................................... 11.18(b)
"legal defeasance option"..................................... 8.01
"maximum fixed repurchase price".............................. 1.01
"Net Payment"................................................. 4.17
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DEFINED IN
TERM SECTION
---- ----------
"Non-Guarantor Exception"..................................... 4.03(a)
"Notes"....................................................... Preamble
"Offer Period"................................................ 4.06(d)
"Original Notes".............................................. Preamble
"Paying Agent"................................................ 2.04
"Permitted Debt".............................................. 4.03(b)
"primary obligations"......................................... 1.01
"primary obligor"............................................. 1.01
"protected purchaser"......................................... 2.08
"Proxy Agreement"............................................. 4.15
"Purchase Agreement".......................................... Appendix A
"QIB"......................................................... Appendix A
"rate(s) of exchange"......................................... 11.18(d)
"Refinancing Indebtedness".................................... 4.03(b)
"Refunding Capital Stock...................................... 4.04(b)
"Registered Exchange Offer"................................... Appendix A
"Registrar"................................................... 2.04
"Registration Rights Agreement"............................... Appendix A
"Regulation S"................................................ Appendix A
"Regulation S Notes".......................................... Appendix A
"Restricted Notes Legend"..................................... Appendix A
"Restricted Payments"......................................... 4.04(a)
"Restricted Period"........................................... Appendix A
"Retired Capital Stock"....................................... 4.04(b)
"Reversion Date".............................................. 4.16
"Rule 144A"................................................... Appendix A
"Rule 144A Notes"............................................. Appendix A
"Rule 501".................................................... Appendix A
"Secured Leverage Calculation Date"........................... 1.01
"Securities Custodian"........................................ Appendix A
"Shelf Registration Statement"................................ Appendix A
"Specified Merger/Transfer Transaction"....................... 5.01(a)
"Successor Company"........................................... 5.01(a)
"Successor Guarantor"......................................... 5.01(b)
"Suspended Covenants"......................................... 4.16
"Suspension Date"............................................. 4.16
"Suspension Period"........................................... 4.16
"Transfer Restricted Notes"................................... Appendix A
"Trustee"..................................................... Preamble
"Unrestricted Definitive Note"................................ Appendix A
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SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. This
Indenture incorporates by reference certain provisions of the TIA. The following
TIA terms have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Notes and the Guarantees.
"INDENTURE SECURITY HOLDER" means a Holder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Issuer, the Guarantors
and any other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the plural
include the singular;
(f) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(g) unless otherwise specified herein, the principal amount of any
non-interest bearing or other discount security at any date shall be the
principal amount thereof that would be shown on a balance sheet of the
issuer dated such date prepared in accordance with GAAP;
(h) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater;
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(i) unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall
be made, and all financial statements required to be delivered hereunder
shall be prepared in accordance with GAAP;
(j) "$" and "U.S. DOLLARS" each refer to United States dollars, or
such other money of the United States of America that at the time of
payment is legal tender for payment of public and private debts;
(k) "(EURO)" and "EUROS" each refer to the lawful currency of the
member states of the European Union that adopt the single currency in
accordance with the Treaty establishing the European Communities;
(l) whenever in this Indenture there is mentioned, in any context,
principal, interest or any other amount payable under or with respect to
any Notes, such mention shall be deemed to include mention of the payment
of Additional Interest, to the extent that, in such context, Additional
Interest is, was or would be payable in respect thereof;
(m) for any periods or dates which the Issuer does not have historical
financial statements available, it shall be entitled to use and rely on the
financial statements of its predecessor or successor (as the case may be).
ARTICLE 2
THE SECURITIES
SECTION 2.01. AMOUNT OF NOTES; ISSUABLE IN SERIES. The aggregate
principal amount of Original Notes which may be authenticated and delivered
under this Indenture on the Issue Date is $575.0 million. The Notes may be
issued in one or more series. All Notes of any one series shall be substantially
identical except as to denomination.
The Issuer may from time to time after the Issue Date issue Additional
Notes under this Indenture in an unlimited principal amount, so long as (i) the
Incurrence of the Indebtedness represented by such Additional Notes is at such
time permitted by Section 4.03 and (ii) such Additional Notes are issued in
compliance with the other applicable provisions of this Indenture. With respect
to any Additional Notes issued after the Issue Date (except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 2.07, 2.08, 2.09, 2.10,
3.06, 4.06(g), 4.08(c) or the Appendix), there shall be (a) established in or
pursuant to a resolution of the Board of Directors and (b) (i) set forth or
determined in the manner provided in an Officers' Certificate or (ii)
established in one or more indentures supplemental hereto, prior to the issuance
of such Additional Notes:
(1) whether such Additional Notes shall be issued as part of a new or
existing series of Notes and the title of such Additional Notes (which
shall distinguish the Additional Notes of the series from Notes of any
other series);
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(2) the aggregate principal amount of such Additional Notes which may
be authenticated and delivered under this Indenture,
(3) the issue price and issuance date of such Additional Notes,
including the date from which interest on such Additional Notes shall
accrue;
(4) if applicable, that such Additional Notes shall be issuable in
whole or in part in the form of one or more Global Notes and, in such case,
the respective depositaries for such Global Notes, the form of any legend
or legends which shall be borne by such Global Notes in addition to or in
lieu of those set forth in EXHIBIT A hereto and any circumstances in
addition to or in lieu of those set forth in Section 2.2 of the Appendix in
which any such Global Note may be exchanged in whole or in part for
Additional Notes registered, or any transfer of such Global Note in whole
or in part may be registered, in the name or names of Persons other than
the depositary for such Global Note or a nominee thereof; and
(5) if applicable, that such Additional Notes that are not Transfer
Restricted Notes shall not be issued in the form of Initial Notes as set
forth in EXHIBIT A, but shall be issued in the form of Exchange Notes as
set forth in EXHIBIT B.
If any of the terms of any Additional Notes are established by action
taken pursuant to a resolution of the Board of Directors, a copy of an
appropriate record of such action shall be certified by the Secretary or
Director or any Assistant Secretary or Assistant Director of the Issuer and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate or the indenture supplemental hereto setting forth the terms of the
Additional Notes.
SECTION 2.02. FORM AND DATING. Provisions relating to the Initial
Notes and the Exchange Notes are set forth in the Appendix, which is hereby
incorporated in and expressly made a part of this Indenture. The Original Notes
and any Additional Notes (if issued as Transfer Restricted Notes) and the
Trustee's certificate of authentication for each shall each be substantially in
the form of EXHIBIT A hereto, which is hereby incorporated in and expressly made
a part of this Indenture. The Exchange Notes, any Additional Notes issued other
than as Transfer Restricted Notes and the Trustee's certificate of
authentication for each shall each be substantially in the form of EXHIBIT B
hereto, which is hereby incorporated in and expressly made a part of this
Indenture. The Notes may have notations, legends or endorsements required by
law, stock exchange rule, agreements to which the Issuer or any Guarantor is
subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Issuer). Each Note shall be dated the
date of its authentication. The Notes shall be issuable only in registered form
without interest coupons and only in minimum denominations of $2,000 and any
integral multiple of $1,000.
SECTION 2.03. EXECUTION AND AUTHENTICATION. The Trustee shall
authenticate and make available for delivery upon a written order of the Issuer
signed by one Officer (a) Original Notes for original issue on the date hereof
in an aggregate principal amount of $575.0 million, (b) subject to the terms of
this Indenture, Additional Notes in an aggregate principal amount to be
determined at the time of issuance and specified therein and (c) the Exchange
Notes for issue in a Registered Exchange Offer pursuant to the Registration
Rights Agreement
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for a like principal amount of Initial Notes exchanged pursuant thereto or
otherwise pursuant to an effective registration statement under the Securities
Act. Such order shall specify the amount of the Notes to be authenticated, the
date on which the original issue of Notes is to be authenticated and whether the
Notes are to be Initial Notes or Exchange Notes. Notwithstanding anything to the
contrary in this Indenture or the Appendix, any issuance of Additional Notes
after the Issue Date shall be in a minimum principal amount of $2,000 and any
integral multiple of $1,000, whether such Additional Notes are of the same or a
different series than the Original Notes.
One Officer shall sign the Notes for the Issuer by manual or facsimile
signature.
If an Officer whose signature is on a Note no longer holds that office
at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee may appoint one or more authenticating agents reasonably
acceptable to the Issuer to authenticate the Notes. Any such appointment shall
be evidenced by an instrument signed by a Trust Officer, a copy of which shall
be furnished to the Issuer. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as any
Registrar, Paying Agent or agent for service of notices and demands.
The Trustee is hereby authorized to enter into a letter of
representations with the Depository in the form provided by the Issuer and to
act in accordance with such letter.
SECTION 2.04. REGISTRAR AND PAYING AGENT.
(a) The Issuer shall maintain (i) an office or agency where Notes may
be presented for registration of transfer or for exchange (the "REGISTRAR"), and
(ii) an office or agency where Notes may be presented for payment (the "PAYING
AGENT"). The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Issuer may have one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrars. The
term "Paying Agent" includes the Paying Agent and any additional paying agents.
The Issuer initially appoints the Trustee as (i) Registrar and Paying Agent in
connection with the Notes and (ii) the Securities Custodian with respect to the
Global Notes.
(b) The Issuer shall enter into an appropriate agency agreement with
any Registrar or Paying Agent not a party to this Indenture, which shall
incorporate the terms of the TIA. The agreement shall implement the provisions
of this Indenture that relate to such agent. The Issuer shall notify the Trustee
of the name and address of any such agent. If the Issuer fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 7.07. The Issuer or any
of its Wholly Owned Subsidiaries organized in the United States may act as
Registrar or Paying Agent.
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(c) The Issuer may remove any Registrar or Paying Agent upon written
notice to such Registrar or Paying Agent and to the Trustee; PROVIDED, HOWEVER,
that no such removal shall become effective until (i) if applicable, acceptance
of an appointment by a successor as evidenced by an appropriate agreement
entered into by the Issuer and such successor Registrar or Paying Agent, as the
case may be, and delivered to the Trustee or (ii) notification to the Trustee
that the Trustee shall serve as Registrar or Paying Agent until the appointment
of a successor in accordance with clause (i) above. The Registrar or Paying
Agent may resign at any time upon written notice to the Issuer and the Trustee;
PROVIDED, HOWEVER, that the Trustee may resign as Registrar or Paying Agent only
if the Trustee also resigns as Trustee in accordance with Section 7.08.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST. Prior to 11:00
a.m., New York City time, on each due date of the principal of and interest on
any Note, the Issuer shall deposit with each Paying Agent (or if the Issuer or a
Wholly Owned Subsidiary is acting as Paying Agent, segregate and hold in trust
for the benefit of the Persons entitled thereto) a sum sufficient to pay such
principal and interest when so becoming due. The Issuer shall require each
Paying Agent (other than the Trustee) to agree in writing that a Paying Agent
shall hold in trust for the benefit of Holders or the Trustee all money held by
a Paying Agent for the payment of principal of and interest on the Notes, and
shall notify the Trustee of any default by the Issuer in making any such
payment. If the Issuer or a Wholly Owned Subsidiary of the Issuer acts as Paying
Agent, it shall segregate the money held by it as Paying Agent and hold it in
trust for the benefit of the Persons entitled thereto. The Issuer at any time
may require a Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed by such Paying Agent. Upon complying with this
Section, a Paying Agent shall have no further liability for the money delivered
to the Trustee.
SECTION 2.06. HOLDER LISTS. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders. If the Trustee is not the Registrar, the Issuer
shall furnish, or cause the Registrar to furnish, to the Trustee, in writing at
least five Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Holders.
SECTION 2.07. TRANSFER AND EXCHANGE. The Notes shall be issued in
registered form and shall be transferable only upon the surrender of a Note for
registration of transfer and in compliance with the Appendix. When a Note is
presented to the Registrar with a request to register a transfer, the Registrar
shall register the transfer as requested if its requirements therefor are met.
When Notes are presented to the Registrar with a request to exchange them for an
equal principal amount of Notes of other denominations, the Registrar shall make
the exchange as requested if the same requirements are met. To permit
registration of transfers and exchanges, the Issuer shall execute and the
Trustee shall authenticate Notes at the Registrar's request. The Issuer may
require payment of a sum sufficient to pay all taxes, assessments or other
governmental charges in connection with any transfer or exchange pursuant to
this Section. The Issuer shall not be required to make, and the Registrar need
not register, transfers or exchanges of Notes selected for redemption (except,
in the case of Notes to be redeemed in part,
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the portion thereof not to be redeemed) or of any Notes for a period of 15 days
before a selection of Notes to be redeemed.
Prior to the due presentation for registration of transfer of any
Note, the Issuer, the Guarantors, the Trustee, each Paying Agent and the
Registrar may deem and treat the Person in whose name a Note is registered as
the absolute owner of such Note for the purpose of receiving payment of
principal of and interest, if any, on such Note and for all other purposes
whatsoever, whether or not such Note is overdue, and none of the Issuer, any
Guarantor, the Trustee, a Paying Agent or the Registrar shall be affected by
notice to the contrary.
Any Holder of a beneficial interest in a Global Note shall, by
acceptance of such beneficial interest, agree that transfers of beneficial
interests in such Global Note may be effected only through a book-entry system
maintained by (a) the Holder of such Global Note (or its agent) or (b) any
Holder of a beneficial interest in such Global Note, and that ownership of a
beneficial interest in such Global Note shall be required to be reflected in a
book entry.
All Notes issued upon any transfer or exchange pursuant to the terms
of this Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Notes surrendered upon such transfer or
exchange.
SECTION 2.08. REPLACEMENT NOTES. If a mutilated Note is surrendered to
the Registrar or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall
authenticate a replacement Note if the requirements of Section 8-405 of the
Uniform Commercial Code are met, such that the Holder (a) satisfies the Issuer
or the Trustee within a reasonable time after such Holder has notice of such
loss, destruction or wrongful taking and the Registrar does not register a
transfer prior to receiving such notification, (b) makes such request to the
Issuer or the Trustee prior to the Note being acquired by a protected purchaser
as defined in Section 8-303 of the Uniform Commercial Code (a "PROTECTED
PURCHASER") and (c) satisfies any other reasonable requirements of the Trustee.
If required by the Trustee or the Issuer, such Holder shall furnish an indemnity
bond sufficient in the judgment of the Trustee to protect the Issuer, the
Trustee, a Paying Agent and the Registrar from any loss that any of them may
suffer if a Note is replaced. The Issuer and the Trustee may charge the Holder
for their expenses in replacing a Note (including, without limitation,
attorneys' fees and disbursements in replacing such Note). In the event any such
mutilated, lost, destroyed or wrongfully taken Note has become or is about to
become due and payable, the Issuer in its discretion may pay such Note instead
of issuing a new Note in replacement thereof.
Every replacement Note is an additional obligation of the Issuer.
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, lost, destroyed or wrongfully taken Notes.
SECTION 2.09. OUTSTANDING NOTES. Notes outstanding at any time are all
Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. Subject to Section 11.06, a Note does not cease to be outstanding
because the Issuer or an Affiliate of the Issuer holds the Note.
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If a Note is replaced pursuant to Section 2.08 (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding unless the
Trustee and the Issuer receive proof satisfactory to them that the replaced Note
is held by a protected purchaser. A mutilated Note ceases to be outstanding upon
surrender of such Note and replacement thereof pursuant to Section 2.08.
If a Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal and interest payable on that date with respect to the Notes (or
portions thereof) to be redeemed or maturing, as the case may be, and no Paying
Agent is prohibited from paying such money to the Holders on that date pursuant
to the terms of this Indenture, then on and after that date such Notes (or
portions thereof) cease to be outstanding and interest on them ceases to accrue.
SECTION 2.10. TEMPORARY NOTES. In the event that Definitive Notes are
to be issued under the terms of this Indenture, until such Definitive Notes are
ready for delivery, the Issuer may prepare and the Trustee shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
Definitive Notes but may have variations that the Issuer considers appropriate
for temporary Notes. Without unreasonable delay, the Issuer shall prepare and
the Trustee shall authenticate Definitive Notes and make them available for
delivery in exchange for temporary Notes upon surrender of such temporary Notes
at the office or agency of the Issuer, without charge to the Holder. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as Definitive Notes.
SECTION 2.11. CANCELLATION. The Issuer at any time may deliver Notes
to the Trustee for cancellation. The Registrar and each Paying Agent shall
forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, payment or
cancellation and shall dispose of canceled Notes in accordance with its
customary procedures. The Issuer may not issue new Notes to replace Notes it has
redeemed, paid or delivered to the Trustee for cancellation. The Trustee shall
not authenticate Notes in place of canceled Notes other than pursuant to the
terms of this Indenture.
SECTION 2.12. DEFAULTED INTEREST. If the Issuer defaults in a payment
of interest on the Notes, the Issuer shall pay the defaulted interest then borne
by the Notes (plus interest on such defaulted interest to the extent lawful), in
any lawful manner. The Issuer may pay the defaulted interest to the Persons who
are Holders on a subsequent special record date. The Issuer shall fix or cause
to be fixed any such special record date and payment date to the reasonable
satisfaction of the Trustee and shall promptly mail or cause to be mailed to
each affected Holder a notice that states the special record date, the payment
date and the amount of defaulted interest to be paid.
SECTION 2.13. CUSIP NUMBERS, ISINS, ETC. The Issuer in issuing the
Notes may use CUSIP numbers, ISINs and "Common Code" numbers (if then generally
in use) and, if so, the Trustee shall use CUSIP numbers, ISINs and "Common Code"
numbers in notices of redemption as a convenience to Holders; PROVIDED, HOWEVER,
that any such notice may state that no representation is made as to the
correctness of such numbers, either as printed on the Notes or as contained in
any notice of a redemption, that reliance may be placed only on the other
identifica-
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tion numbers printed on the Notes and that any such redemption shall not be
affected by any defect in or omission of such numbers. The Issuer shall advise
the Trustee of any change in the CUSIP numbers, ISINs and "Common Code" numbers.
SECTION 2.14. CALCULATION OF PRINCIPAL AMOUNT OF NOTES. The aggregate
principal amount of the Notes, at any date of determination, shall be the
principal amount of the Notes at such date of determination. With respect to any
matter requiring consent, waiver, approval or other action of the Holders of a
specified percentage of the principal amount of all the Notes, such percentage
shall be calculated, on the relevant date of determination, by dividing (a) the
principal amount, as of such date of determination, of Notes, the Holders of
which have so consented by (b) the aggregate principal amount, as of such date
of determination, of the Notes then outstanding, in each case, as determined in
accordance with the preceding sentence, Section 2.09 and Section 11.06 of this
Indenture. Any such calculation made pursuant to this Section shall be made by
the Issuer and delivered to the Trustee pursuant to an Officers' Certificate.
ARTICLE 3
REDEMPTION
SECTION 3.01. REDEMPTION. The Notes may be redeemed, at any time in
whole, or from time to time in part, subject to the conditions and at the
redemption prices set forth in Paragraph 5 of the form of Notes set forth in
EXHIBIT A and EXHIBIT B hereto, which are hereby incorporated by reference and
made a part of this Indenture, together with accrued and unpaid interest to the
redemption date.
SECTION 3.02. APPLICABILITY OF ARTICLE. Redemption of Notes at the
election of the Issuer or otherwise, as permitted or required by any provision
of this Indenture, shall be made in accordance with such provision and this
Article.
SECTION 3.03. NOTICES TO TRUSTEE. If the Issuer elects to redeem Notes
pursuant to the optional redemption provisions of Paragraph 5 of the applicable
Note, it shall notify the Trustee in writing of (i) the Section of this
Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Notes to be redeemed and (iv) the redemption
price. The Issuer shall give notice to the Trustee provided for in this
paragraph at least 45 days (unless a shorter period is acceptable to the
Trustee) but not more than 60 days before a redemption date if the redemption is
pursuant to Paragraph 5 of the applicable Note, unless a shorter period is
acceptable to the Trustee. Such notice shall be accompanied by an Officers'
Certificate and Opinion of Counsel from the Issuer to the effect that such
redemption will comply with the conditions herein. The record date relating to
any redemption shall be selected by the Issuer and given to the Trustee, which
record date shall be not fewer than 15 days after the date of notice to the
Trustee. Any such notice may be canceled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
SECTION 3.04. SELECTION OF NOTES TO BE REDEEMED. In the case of any
partial redemption, selection of the Notes for redemption will be made by the
Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which such Notes
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are listed, or if such Notes are not so listed, on a pro rata basis, by lot or
by such other method as the Trustee shall deem fair and appropriate (and in such
manner as complies with applicable legal requirements); PROVIDED that no Notes
of $2,000 or less shall be redeemed in part. The Trustee shall make the
selection from outstanding Notes not previously called for redemption. The
Trustee may select for redemption portions of the principal of Notes that have
denominations larger than $2,000. Notes and portions of them the Trustee selects
shall be in amounts of $2,000 or a whole multiple of $1,000. Provisions of this
Indenture that apply to Notes called for redemption also apply to portions of
Notes called for redemption. The Trustee shall notify the Issuer promptly of the
Notes or portions of Notes to be redeemed.
SECTION 3.05. NOTICE OF OPTIONAL REDEMPTION.
(a) At least 30 days but not more than 60 days before a redemption
date pursuant to Paragraph 5 of the applicable Note, the Issuer shall mail or
cause to be mailed by first-class mail a notice of redemption to each Holder
whose Notes are to be redeemed.
Any such notice shall identify the Notes to be redeemed and shall
state:
(i) the redemption date;
(ii) the redemption price and the amount of accrued interest to the
redemption date;
(iii) the name and address of a Paying Agent;
(iv) that Notes called for redemption must be surrendered to a Paying
Agent to collect the redemption price, plus accrued interest;
(v) if fewer than all the outstanding Notes are to be redeemed, the
certificate numbers and principal amounts of the particular Notes to be
redeemed, the aggregate principal amount of Notes to be redeemed and the
aggregate principal amount of Notes to be outstanding after such partial
redemption;
(vi) that, unless the Issuer defaults in making such redemption
payment or any Paying Agent is prohibited from making such payment pursuant
to the terms of this Indenture, interest on Notes (or portion thereof)
called for redemption ceases to accrue on and after the redemption date;
(vii) the CUSIP number, ISIN and/or "Common Code" number, if any,
printed on the Notes being redeemed;
(viii) that no representation is made as to the correctness or
accuracy of the CUSIP number or ISIN and/or "Common Code" number, if any,
listed in such notice or printed on the Notes; and
(ix) the record date.
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(b) At the Issuer's request, the Trustee shall give the notice of
redemption in the Issuer's name and at the Issuer's expense. In such event, the
Issuer shall provide the Trustee with the information required by this Section,
at least 45 days (unless a shorter period is acceptable to the Trustee) prior to
the proposed redemption date.
(c) Notice of any redemption may be given prior to the completion
thereof, and any such redemption or notice may, at the Issuer's discretion, be
subject to one or more conditions precedent, including, but not limited to, in
the case of any Equity Offering, completion of the related Equity Offering.
SECTION 3.06. EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is mailed in accordance with Section 3.05, Notes called for
redemption become due and payable on the redemption date and at the redemption
price stated in the notice. Upon surrender to any Paying Agent, such Notes shall
be paid at the redemption price stated in the notice, plus accrued interest to
the redemption date; PROVIDED, HOWEVER, that if the redemption date is after a
regular record date and on or prior to the interest payment date, the accrued
interest shall be payable to the Holder of the redeemed Notes registered on the
relevant record date. Failure to give notice or any defect in the notice to any
Holder shall not affect the validity of the notice to any other Holder.
SECTION 3.07. DEPOSIT OF REDEMPTION PRICE(a) . Prior to 10:00 a.m.,
New York City time, on the redemption date, the Issuer shall deposit with the
Paying Agent (or, if the Issuer or a Wholly Owned Subsidiary is a Paying Agent,
shall segregate and hold in trust) money sufficient to pay the redemption price
of and accrued interest on all Notes or portions thereof to be redeemed on that
date other than Notes or portions of Notes called for redemption that have been
delivered by the Issuer to the Trustee for cancellation. On and after the
redemption date, interest shall cease to accrue on Notes or portions thereof
called for redemption so long as the Issuer has deposited with the Paying Agent
funds sufficient to pay the principal of, plus accrued and unpaid interest on,
the Notes to be redeemed, unless a Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture.
SECTION 3.08. NOTES REDEEMED IN PART. Upon cancellation of a Note that
is redeemed in part, the Issuer shall execute and the Trustee shall authenticate
for the Holder (at the Issuer's expense) a new Note equal in principal amount to
the unredeemed portion of the Note surrendered.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF NOTES. The Issuer shall promptly pay the
principal of and interest on the Notes on the dates and in the manner provided
in the Notes and in this Indenture. An installment of principal of or interest
on the Notes shall be considered paid on the date due if on such date the
Trustee or any Paying Agent holds in accordance with this Indenture money
sufficient to pay all principal and interest then due and the Trustee or any
Paying Agent,
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as the case may be, are not prohibited from paying such money to the Holders on
that date pursuant to the terms of this Indenture.
The Issuer shall pay interest on overdue principal at the rate
specified therefor in the Notes, and it shall pay interest on overdue
installments of interest at the same rate borne by the Notes to the extent
lawful.
SECTION 4.02. REPORTS AND OTHER INFORMATION.
(a) Notwithstanding that the Issuer may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise
report on an annual and quarterly basis on forms provided for such annual and
quarterly reporting pursuant to rules and regulations promulgated by the SEC,
the Issuer shall file with the SEC (unless the SEC will not accept such a
filing), and provide the Trustee and Holders with copies thereof, without cost
to each Holder, within 15 days after it files or, in the case of a Form 6-K,
furnishes (or attempts to file or furnish) them with the SEC,
(i) within 90 days after the end of each fiscal year (or such longer
period as may be permitted by the SEC if the Issuer were then subject to
such SEC reporting requirements as a required filer, voluntary filer or
otherwise), an annual report (which, if permitted under applicable rules of
the SEC, may be the annual report of Intelsat, Ltd. or another Parent of
the Issuer) on Form 10-K or 20-F (or any successor or comparable forms)
containing the information required to be contained therein (or required in
such successor or comparable form) and
(ii) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year (or such longer period as may be permitted by
the SEC if the Issuer were then subject to such SEC reporting requirements
as a required filer, voluntary filer or otherwise), a quarterly report
(which, if permitted under applicable rules of the SEC, may be the
quarterly report of Intelsat, Ltd. or another Parent of the Issuer) on Form
10-Q or 6-K (or any successor or comparable forms), including a
Management's Discussion and Analysis of Financial Condition and Results of
Operations or substantially similar section (whether or not required by
such form).
(b) The Issuer shall make the information required by Section 4.02(a)
available to prospective investors upon request. In addition, the Issuer shall,
for so long as any Notes remain outstanding during any period when it is not
subject to Section 13 or 15(d) of the Exchange Act, or otherwise permitted to
furnish the SEC with certain information pursuant to Rule 12g3-2(b) of the
Exchange Act, furnish to Holders of the Notes and prospective investors, upon
their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
(c) Notwithstanding the foregoing Sections 4.02(a) and (b), the Issuer
will be deemed to have furnished the reports required by Sections 4.02(a) and
(b) to the Trustee and the Holders if it or PanAmSat Holdco or another Parent of
the Issuer has filed (or, in the case of a Form 6-K, furnished) such reports
with the SEC via the XXXXX filing system and such reports are publicly
available. In addition, such requirements shall be deemed satisfied prior to the
com-
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commencement of the exchange offer contemplated by the Registration Rights
Agreement or the effectiveness of the Shelf Registration Statement by the filing
with the SEC of the Exchange Offer Registration Statement and/or Shelf
Registration Statement in accordance with the provisions of the Registration
Rights Agreement, and any amendments thereto, with such financial information
that satisfies Regulation S-X of the Securities Act and such registration
statement and/or amendments thereto are filed at times that otherwise satisfy
the time requirements set forth in Section 4.02(a) hereof.
(d) In the event that any Parent of the Issuer is or becomes a
Guarantor or a co-obligor of the Notes, the Issuer may satisfy its obligations
under this Section with respect to financial information relating to the Issuer
by furnishing financial information relating to such Parent; PROVIDED that if
required by Regulation S-X under the Securities Act, the same is accompanied by
consolidating information that explains in reasonable detail the differences
between the information relating to such Parent and any of its Subsidiaries
other than the Issuer and its Subsidiaries, on the one hand, and the information
relating to the Issuer, the Subsidiary Guarantors, if any, and the other
Subsidiaries of the Issuer on a stand-alone basis, on the other hand.
(e) In the event that the Issuer changes its fiscal year end from the
fiscal year end used by the Issuer as of the Issue Date, the Issuer shall
promptly give notice of such change to the Trustee.
SECTION 4.03. LIMITATION ON INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF
DISQUALIFIED STOCK AND PREFERRED STOCK.
(a) (i) The Issuer shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness
(including Acquired Indebtedness) or issue any shares of Disqualified Stock; and
(ii) the Issuer shall not permit any of its Restricted Subsidiaries to issue any
shares of Preferred Stock; PROVIDED, HOWEVER, that the Issuer and any Restricted
Subsidiary may Incur Indebtedness (including Acquired Indebtedness) or issue
shares of Disqualified Stock and any Restricted Subsidiary may issue shares of
Preferred Stock, in each case if the Debt to Adjusted EBITDA Ratio of the Issuer
for the most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on which such
additional Indebtedness is Incurred or such Disqualified Stock or Preferred
Stock is issued would be less than or equal to 6.75 to 1.00 determined on a pro
forma basis (including a pro forma application of the net proceeds therefrom),
as if the additional Indebtedness had been Incurred, or the Disqualified Stock
or Preferred Stock had been issued, as the case may be, and the application of
proceeds therefrom had occurred at the beginning of such four-quarter period;
PROVIDED that the amount of Indebtedness that may be Incurred and Disqualified
Stock or Preferred Stock that may be issued pursuant to the foregoing by
Restricted Subsidiaries that are not Guarantors shall not exceed $250.0 million
at any one time outstanding (the "NON-GUARANTOR EXCEPTION").
(b) The limitations set forth in Section 4.03(a) shall not apply to
(collectively, "PERMITTED DEBT"):
(i) the Incurrence by the Issuer or its Restricted Subsidiaries of
Indebtedness under any Credit Agreement and the issuance and creation of
letters of credit and bank-
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ers' acceptances thereunder (with letters of credit and bankers'
acceptances being deemed to have a principal amount equal to the face
amount thereof) up to an aggregate principal amount of $3,210.0 million
outstanding at any one time;
(ii) the Incurrence by the Issuer and the Guarantors of Indebtedness
represented by the Notes (not including any Additional Notes) and the
Guarantees, as applicable (and any Exchange Notes and Guarantees thereof);
(iii) Indebtedness of the Issuer and its Restricted Subsidiaries
existing on the Issue Date, including any Indebtedness Incurred on the
Issue Date (other than Indebtedness described in clauses (i) and (ii) of
this Section 4.03(b));
(iv) Indebtedness (including Capitalized Lease Obligations) Incurred
by the Issuer or any of its Restricted Subsidiaries, Disqualified Stock
issued by the Issuer or any of its Restricted Subsidiaries and Preferred
Stock issued by any Restricted Subsidiaries of the Issuer to finance
(whether prior to or within 270 days after) the purchase, lease,
construction or improvement of property (real or personal) or equipment
(whether through the direct purchase of assets or the Capital Stock of any
Person owning such assets) in an aggregate principal amount which, when
aggregated with the principal amount of all other Indebtedness,
Disqualified Stock and Preferred Stock then outstanding that was Incurred
pursuant to this clause (iv), does not exceed the greater of (x) $250.0
million and (y) 4.5% of Total Assets of the Issuer at the time of
Incurrence;
(v) Indebtedness Incurred by the Issuer or any of its Restricted
Subsidiaries constituting reimbursement obligations with respect to letters
of credit and bank guarantees issued in the ordinary course of business,
including, without limitation, letters of credit in respect of workers'
compensation claims, health, disability or other benefits to employees or
former employees or their families or property, casualty or liability
insurance or self-insurance, or other Indebtedness with respect to
reimbursement type obligations regarding workers' compensation claims;
(vi) Indebtedness arising from agreements of the Issuer or a
Restricted Subsidiary providing for indemnification, adjustment of purchase
price or similar obligations, in each case, Incurred in connection with the
Transactions or the disposition of any business, assets or a Subsidiary of
the Issuer in accordance with the terms of this Indenture, other than
guarantees of Indebtedness Incurred by any Person acquiring all or any
portion of such business, assets or Subsidiary for the purpose of financing
such acquisition;
(vii) Indebtedness of the Issuer to a Restricted Subsidiary; PROVIDED
that any such Indebtedness is subordinated in right of payment to the
obligations of the Issuer under the Notes; PROVIDED, FURTHER, that any
subsequent issuance or transfer of any Capital Stock or any other event
which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any other subsequent transfer of any such Indebtedness
(except to the Issuer or another Restricted Subsidiary) shall be deemed, in
each case, to be an Incurrence of such Indebtedness;
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(viii) shares of Preferred Stock of a Restricted Subsidiary issued to
the Issuer or another Restricted Subsidiary; PROVIDED that any subsequent
issuance or transfer of any Capital Stock or any other event that results
in any Restricted Subsidiary that holds such shares of Preferred Stock of
another Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
other subsequent transfer of any such shares of Preferred Stock (except to
the Issuer or another Restricted Subsidiary) shall be deemed, in each case,
to be an issuance of shares of Preferred Stock;
(ix) Indebtedness of a Restricted Subsidiary to the Issuer or another
Restricted Subsidiary; PROVIDED that if a Guarantor incurs such
Indebtedness, and such Indebtedness is owed to a Restricted Subsidiary that
is not a Guarantor, such Indebtedness is subordinated in right of payment
to the Guarantee of such Guarantor; PROVIDED, FURTHER, that any subsequent
issuance or transfer of any Capital Stock or any other event which results
in any Restricted Subsidiary holding such Indebtedness ceasing to be a
Restricted Subsidiary or any other subsequent transfer of any such
Indebtedness (except to the Issuer or another Restricted Subsidiary) shall
be deemed, in each case, to be an Incurrence of such Indebtedness;
(x) Hedging Obligations (other than for speculative purposes): (1) for
the purpose of fixing or hedging interest rate risk with respect to any
Indebtedness that is permitted by the terms of this Indenture to be
outstanding; or (2) for the purpose of fixing or hedging currency exchange
rate risk with respect to any currency exchanges;
(xi) obligations (including reimbursement obligations with respect to
letters of credit and bank guarantees) in respect of performance, bid,
appeal and surety bonds and completion guarantees provided by the Issuer or
any Restricted Subsidiary in the ordinary course of business;
(xii) Indebtedness or Disqualified Stock of the Issuer or any
Restricted Subsidiary of the Issuer and Preferred Stock of any Restricted
Subsidiary of the Issuer not otherwise permitted hereunder in an aggregate
principal amount which, when aggregated with the principal amount or
liquidation preference of all other Indebtedness and Disqualified Stock
then outstanding and Incurred pursuant to this clause (xii), does not
exceed the greater of (x) $275.0 million and (y) 4% of Total Assets of the
Issuer at any one time outstanding (it being understood that any
Indebtedness, Disqualified Stock or Preferred Stock Incurred or issued
under this clause (xii) shall cease to be deemed Incurred or outstanding
for purposes of this clause (xii) but shall be deemed Incurred for purposes
of Section 4.03(a) from and after the first date on which the Issuer or the
Restricted Subsidiary, as the case may be, could have Incurred or issued
such Indebtedness, Disqualified Stock or Preferred Stock under Section
4.03(a) without reliance upon this clause (xii));
(xiii) any guarantee by the Issuer or a Restricted Subsidiary of
Indebtedness or other obligations of the Issuer or any of its Restricted
Subsidiaries so long as the Incurrence of such Indebtedness or other
Obligations by the Issuer or such Restricted Subsidiary is permitted under
the terms of this Indenture; PROVIDED that if such Indebtedness is by its
express terms subordinated in right of payment to the Notes or the
Guarantee of such Restricted Subsidiary, as applicable, any such guarantee
of such guarantor with re-
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spect to such Indebtedness shall be subordinated in right of payment to the
Notes or such Guarantor's Guarantee, as applicable, substantially to the
same extent as such Indebtedness is subordinated to the Notes or the
Guarantee of such Restricted Subsidiary, as applicable;
(xiv) the Incurrence by the Issuer or any of its Restricted
Subsidiaries of Indebtedness or Disqualified Stock or Preferred Stock of a
Restricted Subsidiary of the Issuer which serves to refund or refinance or
defease any Indebtedness Incurred or Disqualified Stock or Preferred Stock
as permitted under Section 4.03(a) and clauses (ii), (iii), (iv), (xiv),
(xv), (xix), (xx), (xxii) and (xxiii) of this Section 4.03(b) or any
Indebtedness, Disqualified Stock or Preferred Stock Incurred to so refund
or refinance such Indebtedness, Disqualified Stock or Preferred Stock,
including any Indebtedness, Disqualified Stock or Preferred Stock Incurred
to pay premiums and fees in connection therewith (subject to the following
proviso, "REFINANCING INDEBTEDNESS") prior to its respective maturity;
PROVIDED, HOWEVER, that such Refinancing Indebtedness:
(1) has a Weighted Average Life to Maturity at the time such
Refinancing Indebtedness is Incurred which is not less than the
shorter of (x) the remaining Weighted Average Life to Maturity of the
Indebtedness, Disqualified Stock or Preferred Stock being refunded or
refinanced and (y) the Weighted Average Life to Maturity that would
result if all payments of principal on the Indebtedness, Disqualified
Stock and Preferred Stock being refunded or refinanced that was due on
or after the date one year following the last maturity date of any
Notes then outstanding were instead due on such date one year
following the last date of maturity of any Notes then outstanding;
(2) to the extent such Refinancing Indebtedness refinances (a)
Indebtedness junior to the Notes or the Guarantee of such Restricted
Subsidiary, as applicable, such Refinancing Indebtedness is junior to
the Notes or the guarantee of such Restricted Subsidiary, as
applicable, or (b) Disqualified Stock or Preferred Stock, such
Refinancing Indebtedness is Disqualified Stock or Preferred Stock;
(3) is Incurred in an aggregate principal amount (or if issued
with original issue discount, an aggregate issue price) that is equal
to or less than the aggregate principal amount (or if issued with
original issue discount, the aggregate accreted value) then
outstanding of the Indebtedness being refinanced plus premium and fees
Incurred in connection with such refinancing;
(4) shall not include (x) Indebtedness of a Restricted Subsidiary
of the Issuer that is not a Subsidiary Guarantor that refinances
Indebtedness of the Issuer or a Restricted Subsidiary that is a
Subsidiary Guarantor, or (y) Indebtedness of the Issuer or a
Restricted Subsidiary that refinances Indebtedness of an Unrestricted
Subsidiary; and
(5) in the case of any Refinancing Indebtedness Incurred to
refinance Indebtedness outstanding under clause (iv) or (xx) of this
Section 4.03(b), shall be deemed to have been Incurred and to be
outstanding under such clause (iv) or (xx)
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of this Section 4.03(b), as applicable, and not this clause (xiv) for
purposes of determining amounts outstanding under such clauses (iv)
and (xx) of this Section 4.03(b);
and PROVIDED, FURTHER, that subclause (1) of this clause (xiv) shall not
apply to any refunding, refinancing or defeasance of (A) the Notes or (B)
any Secured Indebtedness;
(xv) Indebtedness, Disqualified Stock or Preferred Stock of Persons
that are acquired by the Issuer or any of its Restricted Subsidiaries or
merged or amalgamated into the Issuer or a Restricted Subsidiary in
accordance with the terms of this Indenture; PROVIDED, HOWEVER, that such
Indebtedness, Disqualified Stock or Preferred Stock is not Incurred in
contemplation of such acquisition, merger or amalgamation; PROVIDED,
FURTHER, HOWEVER, that after giving effect to such acquisition, merger or
amalgamation:
(1) the Issuer would be permitted to Incur at least $1.00 of
additional Indebtedness pursuant to the Debt to Adjusted EBITDA Ratio
test set forth in Section 4.03(a); or
(2) the Debt to Adjusted EBITDA Ratio of the Issuer would be less
than or equal to such ratio immediately prior to such acquisition;
(xvi) Indebtedness Incurred by a Receivables Subsidiary in a Qualified
Receivables Financing that is not recourse (except for Standard
Securitization Undertakings) to the Issuer or any Restricted Subsidiary
other than a Receivables Subsidiary;
(xvii) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business; PROVIDED that such
Indebtedness is extinguished within five Business Days of its Incurrence;
(xviii) Indebtedness of the Issuer or any Restricted Subsidiary
supported by a letter of credit or bank guarantee issued pursuant to any
Credit Agreement, in a principal amount not in excess of the stated amount
of such letter of credit or bank guarantee;
(xix) Contribution Indebtedness;
(xx) (A) if the Issuer could Incur $1.00 of additional Indebtedness
pursuant to Section 4.03(a) after giving effect to such borrowing,
Indebtedness of Restricted Subsidiaries that are not Guarantors not
otherwise permitted hereunder or (B) if the Issuer could not Incur $1.00 of
additional Indebtedness pursuant to Section 4.03(a) after giving effect to
such borrowing, Indebtedness of Restricted Subsidiaries that are not
Guarantors Incurred for working capital purposes; PROVIDED, HOWEVER, that
the aggregate principal amount of Indebtedness Incurred under this clause
(xx), when aggregated with the principal amount of all other Indebtedness
then outstanding and Incurred pursuant to this clause (xx), does not exceed
the greater of (x) $50.0 million and (y) 10% of the Total Assets of the
Restricted Subsidiaries that are not Guarantors;
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(xxi) Indebtedness of the Issuer or any Restricted Subsidiary
consisting of (x) the financing of insurance premiums or (y) take-or-pay
obligations contained in supply arrangements, in each case, in the ordinary
course of business;
(xxii) Indebtedness of the Issuer or its Restricted Subsidiaries to
Subsidiaries of any Parent of the Issuer pursuant to the Specified
Intercompany Agreements; and
(xxiii) Indebtedness of the Issuer or any of its Restricted
Subsidiaries incurred to repurchase or refinance any 9% Senior Notes due
2014 of the Issuer.
(c) For purposes of determining compliance with this Section, in the
event that an item of Indebtedness, Disqualified Stock or Preferred Stock meets
the criteria of one or more of the categories of permitted Indebtedness,
Disqualified Stock or Preferred Stock described in clauses (b)(i) through
(xxiii) above or is entitled to be Incurred pursuant to Section 4.03(a), the
Issuer shall, in its sole discretion divide, classify or reclassify or later
divide, classify or reclassify such item of Indebtedness, Disqualified Stock or
Preferred Stock in any manner that complies with this Section and such item of
Indebtedness, Disqualified Stock or Preferred Stock shall be treated as having
been Incurred pursuant to one or more of such clauses or pursuant to Section
4.03(a); PROVIDED that all Indebtedness under the Credit Agreement outstanding
on the Issue Date shall be deemed to have been Incurred pursuant to Section
4.03(b)(i). Accrual of interest, the accretion of accreted value, amortization
or original issue discount, the payment of interest in the form of additional
Indebtedness with the same terms, the payment of dividends on Preferred Stock in
the form of additional shares of Preferred Stock of the same class, the
accretion of liquidation preference and increases in the amount of Indebtedness
outstanding solely as a result of fluctuations in the exchange rate of
currencies shall not be deemed to be an Incurrence of Indebtedness for purposes
of this Section. Guarantees of, or obligations in respect of letters of credit
relating to, Indebtedness which is otherwise included in the determination of a
particular amount of Indebtedness shall not be included in the determination of
such amount of Indebtedness; PROVIDED that the Incurrence of the Indebtedness
represented by such guarantee or letter of credit, as the case may be, was in
compliance with this Section.
For purposes of determining compliance with any U.S. dollar-
denominated restriction on the Incurrence of Indebtedness, the U.S. Dollar
Equivalent principal amount of Indebtedness denominated in a foreign currency
shall be calculated based on the relevant currency exchange rate in effect on
the date such Indebtedness was Incurred, in the case of term debt, or first
committed or first Incurred (whichever yields the lower U.S. Dollar Equivalent),
in the case of revolving credit debt; PROVIDED that if such Indebtedness is
Incurred to refinance other Indebtedness denominated in a foreign currency, and
such refinancing would cause the applicable U.S. dollar-denominated restriction
to be exceeded if calculated at the relevant currency exchange rate in effect on
the date of such refinancing, such U.S. dollar-denominated restriction shall be
deemed not to have been exceeded so long as the principal amount of such
refinancing Indebtedness does not exceed the principal amount of such
Indebtedness being refinanced.
SECTION 4.04. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Issuer shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:
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(i) declare or pay any dividend or make any distribution on account of
the Issuer's or any of its Restricted Subsidiaries' Equity Interests,
including any payment with respect to such Equity Interests made in
connection with any merger, amalgamation or consolidation involving the
Issuer (other than (A) dividends or distributions by the Issuer payable
solely in Equity Interests (other than Disqualified Stock) of the Issuer;
or (B) dividends or distributions by a Restricted Subsidiary so long as, in
the case of any dividend or distribution payable on or in respect of any
class or series of securities issued by a Restricted Subsidiary other than
a Wholly Owned Restricted Subsidiary, the Issuer or a Restricted Subsidiary
receives at least its pro rata share of such dividend or distribution in
accordance with its Equity Interests in such class or series of
securities);
(ii) purchase or otherwise acquire or retire for value any Equity
Interests of the Issuer or any Parent of the Issuer;
(iii) make any principal payment on, or redeem, repurchase, defease or
otherwise acquire or retire for value, in each case prior to any scheduled
repayment or scheduled maturity, any Subordinated Indebtedness of the
Issuer or any Restricted Subsidiary (other than the payment, redemption,
repurchase, defeasance, acquisition or retirement of (A) Subordinated
Indebtedness in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year
of the date of such payment, redemption, repurchase, defeasance,
acquisition or retirement and (B) Indebtedness permitted under clauses
(vii) and (ix) of Section 4.03(b)); or
(iv) make any Restricted Investment
(all such payments and other actions set forth in clauses (i) through (iv) above
being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the time of
such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(2) immediately after giving effect to such transaction on a pro forma
basis, the Issuer would have a Debt to Adjusted EBITDA Ratio of less than
or equal to 5.5 to 1.0; and
(3) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Issuer and its Restricted
Subsidiaries after August 20, 2004 (including Restricted Payments permitted
by clauses (i), (iv) (only to the extent of one-half of the amounts paid
pursuant to such clause), (vi) and (viii) of Section 4.04(b), but excluding
all other Restricted Payments permitted by Section 4.04(b)), is less than
the amount equal to the difference between (1) the Cumulative Credit and
(2) 1.4 times Cumulative Interest Expense.
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(b) The provisions of Section 4.04(a) shall not prohibit:
(i) the payment of any dividend or distribution within 60 days after
the date of declaration thereof, if at the date of declaration such payment
would have complied with the provisions of this Indenture;
(ii) (A) the repurchase, retirement or other acquisition of any Equity
Interests ("RETIRED CAPITAL STOCK") of the Issuer or any Parent of the
Issuer or Subordinated Indebtedness of the Issuer or any Subsidiary
Guarantor in exchange for, or out of the proceeds of the substantially
concurrent sale (other than the sale of any Disqualified Stock or any
Equity Interests sold to a Restricted Subsidiary of the Issuer or to an
employee stock ownership plan or any trust established by the Issuer or any
of its Subsidiaries) of Equity Interests of the Issuer or any Parent of the
Issuer or contributions to the equity capital of the Issuer (collectively,
including any such contributions, "REFUNDING CAPITAL STOCK") and (B) the
declaration and payment of accrued dividends on the Retired Capital Stock
out of the proceeds of the substantially concurrent sale (other than to a
Subsidiary of the Issuer or to an employee stock ownership plan or any
trust established by the Issuer or any of its Subsidiaries) of Refunding
Capital Stock;
(iii) the redemption, repurchase or other acquisition or retirement of
Subordinated Indebtedness of the Issuer or any Subsidiary Guarantor made by
exchange for, or out of the proceeds of the substantially concurrent sale
of, new Indebtedness of the Issuer or any Subsidiary Guarantor which is
Incurred in accordance with Section 4.03 so long as
(A) the principal amount of such new Indebtedness does not exceed
the principal amount of the Subordinated Indebtedness being so
redeemed, repurchased, acquired or retired for value (plus the amount
of any premium required to be paid under the terms of the instrument
governing the Subordinated Indebtedness being so redeemed,
repurchased, acquired or retired plus any fees incurred in connection
therewith),
(B) such Indebtedness is subordinated to the Notes or the related
Guarantee, as the case may be, at least to the same extent as such
Subordinated Indebtedness so purchased, exchanged, redeemed,
repurchased, acquired or retired for value,
(C) such Indebtedness has a final scheduled maturity date equal
to or later than the earlier of (x) final scheduled maturity date of
the Subordinated Indebtedness being so redeemed, repurchased, acquired
or retired or (y) one year following the last maturity date of any
Notes then outstanding, and
(D) such Indebtedness has a Weighted Average Life to Maturity at
the time Incurred which is not less than the shorter of (x) the
remaining Weighted Average Life to Maturity of the Subordinated
Indebtedness being so redeemed, repurchased, acquired or retired and
(y) the Weighted Average Life to Maturity that would result if all
payments of principal on the Subordinated Indebtedness being redeemed,
repurchased, acquired or retired that were due on or after the
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date one year following the last maturity date of any Notes then
outstanding were instead due on such date one year following the last
date of maturity of any Notes then outstanding;
(iv) the repurchase, retirement or other acquisition (or
dividends to any Parent of the Issuer to finance any such repurchase,
retirement or other acquisition) for value of Equity Interests of the
Issuer or any Parent of the Issuer held by any future, present or
former employee, director or consultant of the Issuer, any Parent of
the Issuer or any Subsidiary of the Issuer pursuant to any management
equity plan or stock option plan or any other management or employee
benefit plan or other agreement or arrangement; PROVIDED, HOWEVER,
that the aggregate amounts paid under this clause (iv) do not exceed
$35.0 million in any calendar year (with unused amounts in any
calendar year being permitted to be carried over to succeeding
calendar years subject to a maximum payment (without giving effect to
the following proviso) of $70.0 million in any calendar year);
PROVIDED, FURTHER, HOWEVER, that such amount in any calendar year may
be increased by an amount not to exceed:
(A) the cash proceeds received by the Issuer or any of its
Restricted Subsidiaries from the sale of Equity Interests (other
than Disqualified Stock) of the Issuer or any Parent of the
Issuer (to the extent contributed to the Issuer) to members of
management, directors or consultants of the Issuer and its
Restricted Subsidiaries or any Parent of the Issuer that occurs
after August 20, 2004 (PROVIDED that the amount of such cash
proceeds utilized for any such repurchase, retirement, other
acquisition or dividend shall not increase the amount available
for Restricted Payments under Section 4.04(a)(3)); PLUS
(B) the cash proceeds of key man life insurance policies
received by the Issuer, any Parent of the Issuer (to the extent
contributed to the Issuer) or the Issuer's Restricted
Subsidiaries after August 20, 2004;
PROVIDED that the Issuer may elect to apply all or any portion of the aggregate
increase contemplated by clauses (A) and (B) above in any calendar year; and
PROVIDED, FURTHER, that the cancellation of Indebtedness owing to the Issuer
from members of management of the Issuer, of any direct or indirect Parent of
the Issuer or of any Restricted Subsidiary of the Issuer in connection with a
repurchase of Equity Interests of the Issuer or any Parent of the Issuer will
not be deemed to constitute a Restricted Payment for purposes of this covenant
or any other provision of the Indenture;
(v) the declaration and payment of dividends or distributions to
holders of any class or series of Disqualified Stock of the Issuer or any
of its Restricted Subsidiaries issued or incurred in accordance with
Section 4.03;
(vi) the declaration and payment of dividends or distributions (a) to
holders of any class or series of Designated Preferred Stock (other than
Disqualified Stock) issued after August 20, 2004, (b) to any Parent of the
Issuer, the proceeds of which will be used to fund the payment of dividends
to holders of any class or series of Designated Preferred Stock (other than
Disqualified Stock) of any Parent of the Issuer issued after August 20,
2004
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and (c) on Refunding Capital Stock in excess of amounts permitted pursuant
to clause (2) of this paragraph; PROVIDED, HOWEVER, that (A) in the case of
(a), (b) and (c) of this clause (vi), for the most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date of issuance of such Designated Preferred
Stock, or the declaration of such dividends on Refunding Capital Stock,
after giving effect to such issuance (and the payment of dividends or
distributions) on a pro forma basis, the Issuer would have a Debt to
Adjusted EBITDA Ratio pursuant to the test in Section 4.03(a) of less than
or equal to 5.5 to 1.0 and (B) the aggregate amount of dividends declared
and paid pursuant to subclauses (a) and (b) of this clause (vi) does not
exceed the net cash proceeds actually received by the Issuer from any such
sale of Designated Preferred Stock (other than Disqualified Stock) issued
after August 20, 2004;
(vii) Investments in Unrestricted Subsidiaries having an aggregate
Fair Market Value, taken together with all other Investments made pursuant
to this clause (vii) that are at that time outstanding, not to exceed $75.0
million at the time of such Investment (with the Fair Market Value of each
Investment being measured at the time made and without giving effect to
subsequent changes in value);
(viii) the payment of dividends on the Issuer's ordinary shares or
common stock (or the payment of dividends to any Parent of the Issuer, as
the case may be, to fund the payment by any Parent of the Issuer of
dividends on such entity's ordinary shares or common stock) of up to 7.5%
per annum of the net proceeds received by the Issuer from any public
offering of ordinary shares or common stock or contributed to the Issuer by
any Parent of the Issuer from any public offering of ordinary shares or
common stock;
(ix) Investments that are made with Excluded Contributions;
(x) other Restricted Payments in an aggregate amount not to exceed
$125.0 million;
(xi) the distribution, as a dividend or otherwise, of shares of
Capital Stock of, or Indebtedness owed to the Issuer or a Restricted
Subsidiary of the Issuer by, Unrestricted Subsidiaries;
(xii) (A) with respect to any tax year or portion thereof that a
Tax-affected Investor would be required to recognize on a current basis
taxable income attributable to earnings and profits of the Issuer or its
Subsidiaries in advance of any distribution of such earnings and profits by
the Issuer, an amount equal to the product of (i) the amount of the income
so required to be included and (ii) the Presumed Tax Rate; PROVIDED that in
the case of any such distribution other than a distribution solely on
account of any Parent of the Issuer qualifying as a Flow Through Entity,
the Trustee shall have received an opinion of nationally recognized tax
counsel to the effect that the earnings and profits of the Issuer and its
Subsidiaries are subject to inclusion in income of a Tax-affected Investor
on a current basis in advance of any distribution of such earnings and
profits; and (B) for any taxable year, payment of dividends or other
distributions to any Parent of the Issuer if any Parent of the Issuer is
required to file a consolidated, unitary or similar tax return reflecting
income of the Issuer or its Restricted Subsidiaries in an amount equal to
the por-
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tion of such taxes attributable to the Issuer and/or its Restricted
Subsidiaries that are not payable directly by the Issuer or its Restricted
Subsidiaries, but not to exceed the amount that the Issuer or such
Restricted Subsidiaries would have been required to pay in respect of taxes
if the Issuer and such Restricted Subsidiaries had been required to pay
such taxes directly as standalone taxpayers (or a standalone group separate
from such Parent);
(xiii) the payment of dividends, other distributions or other amounts
by the Issuer to, or the making of loans to, any Parent, in amounts
required for such Parent to:
(A) pay amounts equal to the amounts required for any Parent of
the Issuer to pay fees and expenses (including franchise or similar
taxes) required to maintain its corporate existence, customary salary,
bonus and other benefits payable to, and indemnities provided on
behalf of, officers and employees of any Parent of the Issuer and
general corporate overhead expenses of any Parent of the Issuer, in
each case to the extent such fees, expenses, salaries, bonuses,
benefits and indemnities are attributable to the ownership or
operation of the Issuer and its Subsidiaries;
(B) pay amounts equal to amounts required for any Parent of the
Issuer to pay interest and/or principal on Indebtedness the proceeds
of which have been contributed to the Issuer or any of its Restricted
Subsidiaries and that has been guaranteed by, or is otherwise
considered Indebtedness of, the Issuer Incurred in accordance with
Section 4.03; and
(C) pay cash interest on the Existing Parent Indebtedness
pursuant to the terms of the agreements governing such Existing Parent
Indebtedness as in effect on the Issue Date (or such later date as
initially issued or incurred) and to pay any cash interest on any
Indebtedness refinancing the Existing Parent Indebtedness; PROVIDED
that such Indebtedness remains the primary obligation of the original
issuer of such Indebtedness (other than with respect to the Intelsat
Bermuda Intercompany Loan), and the principal amount of any such
Indebtedness redeeming, refinancing or replacing the Existing Parent
Indebtedness does not exceed the principal amount of the Indebtedness
refinanced, plus any premiums, fees and expenses payable in connection
with such refinancing PROVIDED, further that the aggregate cash
interest with respect to the New Intelsat Bermuda Indebtedness and the
Intelsat Bermuda Intercompany Loan permitted to be paid pursuant to
this clause (xiii)(C) shall not exceed the cash interest payable with
respect to the New Intelsat Bermuda Indebtedness;
(xiv) any Restricted Payment used to fund the Transactions and the
fees and expenses related thereto or made in connection with the
consummation of the Transactions (including pursuant to or as contemplated
by the Acquisition Documents, whether on the Issue Date or thereafter), or
owed by the Issuer or any Parent of the Issuer or Restricted Subsidiaries
of the Issuer to Affiliates, in each case to the extent permitted by
Section 4.07;
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(xv) repurchases of Equity Interests deemed to occur upon exercise of
stock options or warrants if such Equity Interests represent a portion of
the exercise price of such options or warrants;
(xvi) purchases of receivables pursuant to a Receivables Repurchase
Obligation in connection with a Qualified Receivables Financing and the
payment or distribution of Receivables Fees;
(xvii) the payment, purchase, redemption, defeasance or other
acquisition or retirement of Subordinated Indebtedness, Disqualified Stock
or Preferred Stock of the Issuer and its Restricted Subsidiaries, pursuant
to provisions similar to those described under Sections 4.06 and 4.08;
PROVIDED that, prior to such payment, purchase, redemption, defeasance or
other acquisition or retirement, the Issuer (or a third party to the extent
permitted by the indenture) has made a Change of Control Offer or Asset
Sale Offer, as the case may be, with respect to the Notes as a result of
such Change of Control or Asset Sale, as the case may be, and has
repurchased all Notes validly tendered and not withdrawn in connection with
such Change of Control Offer or Asset Sale Offer, as the case may be;
(xviii) any payments made in connection with the consummation of the
Transactions or as contemplated by the Acquisition Documents (other than
payments to any Permitted Holder or any Affiliate thereof that is not
Intelsat Bermuda or a Subsidiary thereof);
(xix) the repurchase, redemption or other acquisition or retirement
for value (including repayment at maturity) of Intelsat, Ltd.'s 5 1/4%
Senior Notes due 2008 (including any payments to any Parent of the Issuer
to effect the foregoing); PROVIDED that any Indebtedness Incurred in
connection with any such redemption, repurchase or other acquisition is
Incurred in accordance with Section 4.03;
(xx) the repurchase, redemption or other acquisition or retirement for
value of any of the Existing Intelsat Notes from the proceeds of a
Specified Sale/Leaseback Transaction (including any payments to any Parent
of the Issuer to effect the foregoing);
(xxi) the payment of dividends, other distributions or other amounts
by the Issuer to, or the making of loans by the Issuer or any of its
Restricted Subsidiaries to, any Parent of the Issuer to the extent that
amounts equal to such dividends, distributions, other amounts or loans are
promptly contributed to the capital of the Issuer by such Parent or
otherwise promptly repaid by such Parent to the Issuer or any Restricted
Subsidiary of the Issuer (whether in the form of interest or principal or
other payment on debt existing on the Issue Date); PROVIDED, that any
amounts contributed to the capital of the Issuer or otherwise repaid
pursuant to this clause (xxi) shall be excluded from the calculation set
forth in the definition of the term "Cumulative Credit"; and
(xxii) the payment of dividends, other distributions or other amounts,
or the making of loans, to any Parent of the Issuer with the net proceeds
received by the Issuer from the sale of the Original Notes on the Issue
Date;
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PROVIDED, HOWEVER, that at the time of, and after giving effect to, any
Restricted Payment permitted under clauses (v), (vi), (vii), (x), (xi),
(xiii)(C), (xvii) and (xix) of this Section 4.04(b), no Default or Event of
Default shall have occurred and be continuing or would occur as a consequence
thereof.
(c) As of the Issue Date, all of the Issuer's Subsidiaries shall be
Restricted Subsidiaries. The Issuer shall not permit any Unrestricted Subsidiary
to become a Restricted Subsidiary except pursuant to the definition of
"Unrestricted Subsidiary." For purposes of designating any Restricted Subsidiary
as an Unrestricted Subsidiary, all outstanding Investments by the Issuer and its
Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so
designated shall be deemed to be Restricted Payments or Permitted Investments in
an amount determined as set forth in the last sentence of the definition of
"Investments." Such designation shall only be permitted if Restricted Payments
or Permitted Investments in such amount would be permitted at such time and if
such Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
SECTION 4.05. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES. The Issuer shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or consensual restriction
on the ability of any Restricted Subsidiary to:
(a) (i) pay dividends or make any other distributions to the Issuer or
any of its Restricted Subsidiaries (1) on its Capital Stock; or (2) with
respect to any other interest or participation in, or measured by, its
profits; or (ii) pay any Indebtedness owed to the Issuer or any of its
Restricted Subsidiaries;
(b) make loans or advances to the Issuer or any of its Restricted
Subsidiaries; or
(c) sell, lease or transfer any of its properties or assets to the
Issuer or any of its Restricted Subsidiaries;
except in each case for such encumbrances or restrictions existing under or by
reason of:
(1) contractual encumbrances or restrictions in effect on the Issue
Date, including pursuant to the Credit Agreement and the other Senior
Credit Documents, and pursuant to documents and agreements relating to the
Specified Intercompany Agreements, the Existing Intelsat Notes, the New
Intelsat Bermuda Indebtedness, the Existing PanAmSat Notes and the New
PanAmSat Indebtedness (including any exchange notes therefor);
(2) this Indenture and the Notes (and any Exchange Notes and
guarantees thereof);
(3) applicable law or any applicable rule, regulation or order;
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(4) any agreement or other instrument of a Person acquired by the
Issuer or any Restricted Subsidiary which was in existence at the time of
such acquisition (but not created in contemplation thereof), which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the property
or assets of the Person, so acquired;
(5) contracts or agreements for the sale of assets, including
customary restrictions with respect to a Subsidiary pursuant to an
agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of such Subsidiary;
(6) Secured Indebtedness otherwise permitted to be Incurred pursuant
to Sections 4.03 and 4.12 that limit the right of the debtor to dispose of
the assets securing such Indebtedness;
(7) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
(8) customary provisions in joint venture agreements and other similar
agreements (including customary provisions in agreements relating to any
Joint Venture);
(9) purchase money obligations for property acquired and Capitalized
Lease Obligations in the ordinary course of business that impose
restrictions of the nature discussed in clause (c) above on the property so
acquired;
(10) customary provisions contained in leases, licenses, contracts and
other similar agreements entered into in the ordinary course of business
that impose restrictions of the type described in clause (c) above on the
property subject to such lease;
(11) any encumbrance or restriction of a Receivables Subsidiary
effected in connection with a Qualified Receivables Financing that, in the
good faith judgment of the Issuer, are necessary or advisable in connection
therewith; PROVIDED, HOWEVER, that such restrictions apply only to such
Receivables Subsidiary;
(12) agreements and instruments, including agreements and instruments
governing Indebtedness, Disqualified Stock or Preferred Stock of any
Restricted Subsidiary of the Issuer that is Incurred subsequent to the
Issue Date and permitted pursuant to Section 4.03; PROVIDED that either (A)
the provisions relating to such encumbrance or restriction contained in
such agreements or instruments are no less favorable to the Issuer, taken
as a whole, as determined by the Board of Directors of the Issuer in good
faith, than the provisions contained in any Credit Agreement and the other
Senior Credit Documents or in an indenture or agreement governing the
Existing Intelsat Notes, the New Intelsat Bermuda Indebtedness, the New
PanAmSat Indebtedness or the Existing PanAmSat Notes, in each case as in
effect on the Issue Date or (B) such encumbrances and restrictions
contained in any agreement or instrument will not materially affect the
Issuer's ability to make anticipated principal or interest payments on the
Notes (as determined by the Issuer in good faith);
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(13) any Restricted Investment not prohibited by Section 4.04 and any
Permitted Investment; or
(14) any encumbrances or restrictions of the type referred to in
clauses (a), (b) and (c) above imposed by any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings of the contracts, instruments or obligations referred to in
clauses (1) through (13) above; PROVIDED that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are, in the good faith judgment of the Issuer,
no more restrictive as a whole with respect to such encumbrances and
restrictions than those prior to such amendment, modification, restatement,
renewal, increase, supplement, refunding, replacement or refinancing.
For purposes of determining compliance with this covenant, (i) the
priority of any Preferred Stock in receiving dividends or liquidating
distributions prior to dividends or liquidating distributions being paid on
ordinary shares shall not be deemed a restriction on the ability to make
distributions on Capital Stock and (ii) the subordination of loans or advances
made to the Issuer or a Restricted Subsidiary of the Issuer to other
Indebtedness Incurred by the Issuer or any such Restricted Subsidiary shall not
be deemed a restriction on the ability to make loans or advances.
SECTION 4.06. ASSET SALES.
(a) The Issuer shall not, and shall not permit any of its Restricted
Subsidiaries to, cause or make an Asset Sale, unless (x) the Issuer or any of
its Restricted Subsidiaries, as the case may be, receives consideration at the
time of such Asset Sale at least equal to the Fair Market Value (as determined
in good faith by the Issuer) of the assets sold or otherwise disposed of and (y)
at least 75% of the consideration therefor received by the Issuer or such
Restricted Subsidiary, as the case may be, is in the form of Cash Equivalents;
PROVIDED that the amount of:
(i) any liabilities (as shown on the Issuer's or such Restricted
Subsidiary's most recent balance sheet or in the notes thereto) of the
Issuer or any Restricted Subsidiary of the Issuer (other than liabilities
that are by their terms subordinated to the Notes) that are assumed by the
transferee of any such assets,
(ii) any notes or other obligations or other securities or assets
received by the Issuer or such Restricted Subsidiary of the Issuer from
such transferee that are converted by the Issuer or such Restricted
Subsidiary of the Issuer into cash within 180 days of the receipt thereof
(to the extent of the cash received), and
(iii) any Designated Non-cash Consideration received by the Issuer or
any of its Restricted Subsidiaries in such Asset Sale having an aggregate
Fair Market Value, taken together with all other Designated Non-cash
Consideration received pursuant to this clause (iii) that is at that time
outstanding, not to exceed 7.5% of Total Assets of the Issuer at the time
of the receipt of such Designated Non-cash Consideration (with the Fair
Market Value of each item of Designated Non-cash Consideration being
measured at the time received and without giving effect to subsequent
changes in value)
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shall be deemed to be Cash Equivalents for the purposes of this Section 4.06(a).
(b) Within 455 days after the Issuer's or any Restricted Subsidiary of
the Issuer's receipt of the Net Proceeds of any Asset Sale (or Event of Loss
Proceeds), the Issuer or such Restricted Subsidiary of the Issuer may apply the
Net Proceeds from such Asset Sale together with any Event of Loss Proceeds, at
its option:
(i) to permanently reduce Obligations under Secured Indebtedness or
Pari Passu Indebtedness (PROVIDED that if the Issuer or any Guarantor shall
so reduce Obligations under Pari Passu Indebtedness (other than Pari Passu
Indebtedness that is Secured Indebtedness), the Issuer shall equally and
ratably reduce Obligations under the Notes if the Notes are then prepayable
or, if the Notes may not then be prepaid, by making an offer (in accordance
with the procedures set forth below for an Asset Sale Offer) to all Holders
to purchase at a purchase price equal to 100% of the principal amount
thereof, plus accrued and unpaid interest and additional interest, if any,
the pro rata principal amount of Notes that would otherwise be prepaid) or
Indebtedness of a Restricted Subsidiary that is not a Guarantor, in each
case other than Indebtedness owed to the Issuer or an Affiliate of the
Issuer; PROVIDED that if an offer to purchase any Indebtedness of any of
the Issuer or its Restricted Subsidiaries is made in accordance with the
terms of such Indebtedness, the obligation to permanently reduce
Indebtedness of the Issuer or a Restricted Subsidiary, as the case may be,
will be deemed to be satisfied to the extent of the amount of the offer,
whether or not accepted by the holders thereof, and no Net Proceeds in the
amount of such offer will be deemed to exist following such offer,
(ii) to an investment in any one or more businesses (PROVIDED that if
such investment is in the form of the acquisition of Capital Stock of a
Person, such acquisition results in such Person becoming a Restricted
Subsidiary of the Issuer), or capital expenditures or assets, in each case
used or useful in a Similar Business, and/or
(iii) to make an investment in any one or more businesses (PROVIDED
that if such investment is in the form of the acquisition of Capital Stock
of a Person, such acquisition results in such Person becoming a Restricted
Subsidiary of the Issuer), properties or assets that replace the properties
and assets that are the subject of such Asset Sale or Event of Loss;
PROVIDED that in the case of clauses (ii) and (iii) above, a binding commitment
shall be treated as a permitted application of the Net Proceeds from the date of
such commitment and, in the event such binding commitment is later canceled or
terminated for any reason before such Net Proceeds are so applied, the Issuer or
such Restricted Subsidiary enters into another binding commitment within nine
months of such cancellation or termination of the prior binding commitment.
Pending the final application of any such Net Proceeds (or Event of Loss
Proceeds), the Issuer or such Restricted Subsidiary of the Issuer may
temporarily reduce Indebtedness under a revolving credit facility, if any, or
otherwise invest such Net Proceeds (or Event of Loss Proceeds) in Cash
Equivalents or Investment Grade Securities. Any Net Proceeds from any Asset Sale
(or Event of Loss Proceeds) that are not applied as provided and within the time
period set forth in the first sentence of this Section 4.06(b) (it being
understood that any portion of such Net Proceeds (or Event of Loss Proceeds)
used to make an offer to purchase Notes, as described in
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clause (i) above, shall be deemed to have been invested whether or not such
offer is accepted) shall be deemed to constitute "EXCESS PROCEEDS." When the
aggregate amount of Excess Proceeds exceeds $30.0 million, the Issuer shall make
an offer to all Holders of Notes and, at the option of the Issuer, to holders of
any Pari Passu Indebtedness (an "ASSET SALE OFFER") to purchase the maximum
principal amount of Notes (and such Pari Passu Indebtedness) that is an integral
multiple of $1,000 that may be purchased out of the Excess Proceeds at an offer
price in cash in an amount equal to 100% of the principal amount thereof (or, in
the event such Pari Passu Indebtedness was issued with significant original
issue discount, 100% of the accreted value thereof), plus accrued and unpaid
interest and additional interest, if any (or, in respect of such Pari Passu
Indebtedness, such lesser price, if any, as may be provided for by the terms of
such Pari Passu Indebtedness), to the date fixed for the closing of such offer,
in accordance with the procedures set forth in this Section. The Issuer shall
commence an Asset Sale Offer with respect to Excess Proceeds within ten Business
Days after the date that Excess Proceeds exceed $30.0 million by mailing the
notice required pursuant to the terms of Section 4.06(f), with a copy to the
Trustee. To the extent that the aggregate amount of Notes (and such Pari Passu
Indebtedness) tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate
purposes. If the aggregate principal amount of Notes surrendered by Holders
thereof exceeds the amount of Excess Proceeds, the Trustee shall select the
Notes (and such Pari Passu Indebtedness) to be purchased in the manner described
in Section 4.06(e). Upon completion of any such Asset Sale Offer, the amount of
Excess Proceeds shall be reset at zero.
(c) The Issuer shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations to the extent
such laws or regulations are applicable in connection with the repurchase of the
Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Indenture,
the Issuer shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations described in this Indenture
by virtue thereof.
(d) Not later than the date upon which written notice of an Asset Sale
Offer is delivered to the Trustee as provided above, the Issuer shall deliver to
the Trustee an Officers' Certificate as to (i) the amount of the Excess
Proceeds, (ii) the allocation of the Net Proceeds from the Asset Sales pursuant
to which such Asset Sale Offer is being made and (iii) the compliance of such
allocation with the provisions of Section 4.06(b). On such date, the Issuer
shall also irrevocably deposit with the Trustee or with a Paying Agent (or, if
the Issuer or a Wholly Owned Restricted Subsidiary is acting as a Paying Agent,
segregate and hold in trust) an amount equal to the Excess Proceeds to be
invested in Cash Equivalents, as directed in writing by the Issuer, and to be
held for payment in accordance with the provisions of this Section. Upon the
expiration of the period for which the Asset Sale Offer remains open (the "OFFER
PERIOD"), the Issuer shall deliver to the Trustee for cancellation the Notes or
portions thereof that have been properly tendered to and are to be accepted by
the Issuer. The Trustee (or a Paying Agent, if not the Trustee) shall, on the
date of purchase, mail or deliver payment to each tendering Holder in the amount
of the purchase price. In the event that the Excess Proceeds delivered by the
Issuer to the Trustee is greater than the purchase price of the Notes tendered,
the Trustee shall deliver the excess to the Issuer immediately after the
expiration of the Offer Period for application in accordance with this Section.
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(e) Holders electing to have a Note purchased shall be required to
surrender the Note, with an appropriate form duly completed, to the Issuer at
the address specified in the notice at least three Business Days prior to the
purchase date. Holders shall be entitled to withdraw their election if the
Trustee or the Issuer receives not later than one Business Day prior to the
purchase date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note which was delivered by
the Holder for purchase and a statement that such Holder is withdrawing his
election to have such Note purchased. If at the end of the Offer Period more
Notes (and such Pari Passu Indebtedness) are tendered pursuant to an Asset Sale
Offer than the Issuer is required to purchase, the principal amount of the Notes
(and Pari Passu Indebtedness) to be purchased will be determined pro rata based
on the principal amount so tendered and the selection of the actual Notes for
purchase shall be made by the Trustee on a pro rata basis to the extent
practicable; PROVIDED, HOWEVER, that no Notes (or Pari Passu Indebtedness) of
$2,000 or less shall be purchased in part.
(f) Notice of an Asset Sale Offer shall be mailed by first class mail,
postage prepaid, at least 30 but not more than 60 days before the purchase date
to each Holder of Notes at such Holder's registered address. If any Note is to
be purchased in part only, any notice of purchase that relates to such Note
shall state the portion of the principal amount thereof that has been or is to
be purchased.
(g) A new Note in principal amount equal to the unpurchased portion of
any Note purchased in part shall be issued in the name of the Holder thereof
upon cancellation of the original Note. On and after the purchase date, unless
the Issuer defaults in payment of the purchase price, interest shall cease to
accrue on Notes or portions thereof purchased.
SECTION 4.07. TRANSACTIONS WITH AFFILIATES.
(a) The Issuer shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or purchase
any property or assets from, or enter into or make or amend any transaction or
series of transactions, contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate of the Issuer (each of the
foregoing, an "AFFILIATE TRANSACTION") involving aggregate consideration in
excess of $10.0 million, unless:
(i) such Affiliate Transaction is on terms that are not materially
less favorable to the Issuer or the relevant Restricted Subsidiary than
those that could have been obtained in a comparable transaction by the
Issuer or such Restricted Subsidiary with an unrelated Person; and
(ii) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $20.0
million, the Issuer delivers to the Trustee a resolution adopted in good
faith by the majority of the Board of Directors of the Issuer or any Parent
of the Issuer approving such Affiliate Transaction and set forth in an
Officers' Certificate certifying that such Affiliate Transaction complies
with clause (i) above.
(b) The provisions of Section 4.07(a) shall not apply to the
following:
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(i) (A) transactions between or among the Issuer and/or any of its
Restricted Subsidiaries and (B) any merger or amalgamation of the Issuer
and any direct parent company of Issuer; PROVIDED that such parent company
shall have no material liabilities and no material assets other than cash,
Cash Equivalents and the Capital Stock of the Issuer and such merger or
amalgamation is otherwise in compliance with the terms of this Indenture
and effected for a bona fide business purpose;
(ii) (a) Restricted Payments permitted by Section 4.04 and (b)
Investments under the definition of "Permitted Investments";
(iii) the entering into of any agreement to pay, and the payment of,
management, consulting, monitoring and advisory fees and expenses to the
Sponsors in an aggregate amount in any fiscal year not to exceed the
greater of (x) $6.25 million and (y) 1.25% of Adjusted EBITDA of the Issuer
and its Restricted Subsidiaries for the immediately preceding fiscal year;
(iv) the payment of reasonable and customary fees to, and indemnity
provided on behalf of officers, directors, employees or consultants of the
Issuer or any Restricted Subsidiary of the Issuer or any Parent of the
Issuer;
(v) payments by the Issuer or any of its Restricted Subsidiaries to
the Sponsors made for any financial advisory, financing, underwriting or
placement services or in respect of other investment banking activities,
including, without limitation, in connection with acquisitions or
divestitures, which payments are (x) approved by a majority of the Board of
Directors of the Issuer in good faith or (y) made pursuant to any agreement
described under the caption "Certain Relationships and Related Party
Transactions" in the Offering Memorandum;
(vi) transactions in which the Issuer or any of its Restricted
Subsidiaries, as the case may be, delivers to the Trustee a letter from an
Independent Financial Advisor stating that such transaction is fair to the
Issuer or such Restricted Subsidiary from a financial point of view or
meets the requirements of clause (i) of Section 4.07(a);
(vii) payments or loans (or cancellation of loans) to employees or
consultants that are approved by a majority of the Board of Directors of
the Issuer in good faith;
(viii) any agreement as in effect as of the Issue Date and any
amendment thereto (so long as any such agreement together with all
amendments thereto, taken as a whole, is not more disadvantageous to the
Holders of the Notes in any material respect than the original agreement as
in effect on the Issue Date) or any transaction contemplated thereby;
(ix) the existence of, or the performance by the Issuer or any of its
Restricted Subsidiaries of its obligations under the terms of, the
Acquisition Documents and any amendment thereto or similar agreements which
it may enter into thereafter; PROVIDED, HOWEVER, that the existence of, or
the performance by the Issuer or any of its Restricted Subsidiaries of its
obligations under, any future amendment to any such existing agree-
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ment or under any similar agreement entered into after the Issue Date shall
only be permitted by this clause (ix) to the extent that the terms of any
such existing agreement together with all amendments thereto, taken as a
whole, or new agreement are not otherwise more disadvantageous to the
Holders of the Notes in any material respect than the original agreement as
in effect on the Issue Date;
(x) transactions to effect the Transactions and the payment of all
fees and expenses related to the Transactions, as described in the Offering
Memorandum or contemplated by the Acquisition Documents;
(xi) (A) transactions with customers, clients, suppliers or purchasers
or sellers of goods or services, in each case in the ordinary course of
business and otherwise in compliance with the terms of this Indenture,
which are fair to the Issuer and its Restricted Subsidiaries, in the
reasonable judgment of the Issuer, or are on terms at least as favorable as
might reasonably have been obtained at such time from an unaffiliated party
and (B) transactions with Joint Ventures or Unrestricted Subsidiaries
entered into in the ordinary course of business;
(xii) any transaction effected as part of a Qualified Receivables
Financing;
(xiii) the issuance of Equity Interests (other than Disqualified
Stock) of the Issuer to any Permitted Holder or to any director, officer,
employee or consultant of the Issuer or any Parent of the Issuer;
(xiv) the issuances of securities or other payments, awards or grants
in cash, securities or otherwise pursuant to, or the funding of, employment
arrangements, stock option and stock ownership plans or similar employee
benefit plans approved by the Board of Directors of the Issuer or any
Parent of the Issuer or of a Restricted Subsidiary of the Issuer, as
appropriate, in good faith;
(xv) the entering into of any tax sharing agreement or arrangement and
any payments permitted by clause (xii) of Section 4.04(b);
(xvi) any contribution to the capital of the Issuer;
(xvii) transactions permitted by, and complying with, the provisions
of Section 5.01;
(xviii) transactions between the Issuer or any of its Restricted
Subsidiaries and any Person, a director of which is also a director of the
Issuer or any Parent of the Issuer; PROVIDED, HOWEVER, that such director
abstains from voting as a director of the Issuer or such Parent, as the
case maybe, on any matter involving such other Person;
(xix) pledges of Equity Interests of Unrestricted Subsidiaries;
(xx) any employment agreements entered into by the Issuer or any of
its Restricted Subsidiaries in the ordinary course of business; and
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(xxi) any transaction pursuant to or in connection with the Specified
Intercompany Agreements.
SECTION 4.08. CHANGE OF CONTROL.
(a) Upon the occurrence of any of the following events (each, a
"CHANGE OF CONTROL"), each Holder shall have the right to require the Issuer to
repurchase all or any part of such Holder's Notes at a purchase price in cash
equal to 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, to the date of repurchase (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date), except to the extent the Issuer has previously elected to redeem
Notes in accordance with Article 3 of this Indenture:
(i) the sale, lease or transfer, in one or a series of related
transactions, of all or substantially all the assets of the Issuer and its
Subsidiaries, taken as a whole, to a Person other than any of the Permitted
Holders, and other than any transaction in compliance with Article 5 where
the Successor Company is a Wholly-Owned Subsidiary of a Parent of the
Issuer; or
(ii) the Issuer becomes aware (by way of a report or any other filing
pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice
or otherwise) of the acquisition by any Person or group (within the meaning
of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any
successor provision), including any group acting for the purpose of
acquiring, holding or disposing of securities (within the meaning of Rule
13d-5(b)(1) under the Exchange Act), other than any of the Permitted
Holders, in a single transaction or in a related series of transactions, by
way of merger, amalgamation, consolidation or other business combination or
purchase of beneficial ownership (within the meaning of Rule 13d-3 under
the Exchange Act, or any successor provision), of more than 50% of the
total voting power of the Voting Stock of the Issuer or any Parent of the
Issuer.
Notwithstanding the foregoing, neither (i) the Acquisition (and any
related change in the composition of the Board of Directors of PanAmSat Holdco
in connection therewith) nor (ii) any Specified Merger/Transfer Transaction,
shall constitute a Change of Control.
(b) Within 30 days following any Change of Control, except to the
extent that the Issuer has exercised its right to redeem the Notes in accordance
with Article 3 of this Indenture, the Issuer shall mail a notice (a "CHANGE OF
CONTROL OFFER") to each Holder with a copy to the Trustee stating:
(i) that a Change of Control has occurred and that such Holder has the
right to require the Issuer to purchase such Holder's Notes at a purchase
price in cash equal to 101% of the principal amount thereof, plus accrued
and unpaid interest and additional interest, if any, to the date of
purchase (subject to the right of Holders of record on a record date to
receive interest on the relevant interest payment date);
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(ii) the circumstances and relevant facts and financial information
regarding such Change of Control;
(iii) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); and
(iv) the instructions determined by the Issuer, consistent with this
Section, that a Holder must follow in order to have its Notes purchased.
A Change of Control Offer may be made in advance of a Change of
Control, and conditioned upon such Change of Control, if a definitive agreement
is in place for the Change of Control at the time of making the Change of
Control Offer.
(c) Holders electing to have a Note purchased shall be required to
surrender the Note, with an appropriate form duly completed, to the Issuer at
the address specified in the notice at least three Business Days prior to the
purchase date. The Holders shall be entitled to withdraw their election if the
Trustee or the Issuer receives not later than one Business Day prior to the
purchase date a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note which was delivered for
purchase by the Holder and a statement that such Holder is withdrawing his
election to have such Note purchased. Holders whose Notes are purchased only in
part shall be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered.
(d) On the purchase date, all Notes purchased by the Issuer under this
Section shall be delivered to the Trustee for cancellation, and the Issuer shall
pay the purchase price plus accrued and unpaid interest to the Holders entitled
thereto.
(e) Notwithstanding the foregoing provisions of this Section, the
Issuer shall not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the
times and otherwise in compliance with the requirements set forth in Section
4.08(b) applicable to a Change of Control Offer made by the Issuer and purchases
all Notes validly tendered and not withdrawn under such Change of Control Offer.
(f) At the time the Issuer delivers Notes to the Trustee which are to
be accepted for purchase, the Issuer shall also deliver an Officers' Certificate
stating that such Notes are to be accepted by the Issuer pursuant to and in
accordance with the terms of this Section. A Note shall be deemed to have been
accepted for purchase at the time the Trustee, directly or through an agent,
mails or delivers payment therefor to the surrendering Holder.
(g) Prior to any Change of Control Offer, the Issuer shall deliver to
the Trustee an Officers' Certificate stating that all conditions precedent
contained herein to the right of the Issuer to make such offer have been
complied with.
(h) The Issuer shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section. To the extent that the provisions of any
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securities laws or regulations conflict with provisions of this Section, the
Issuer shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Section by
virtue thereof.
SECTION 4.09. COMPLIANCE CERTIFICATE. If a Default occurs and is
continuing and is known to the Trustee, the Trustee shall mail to each Holder of
the Notes a notice of Default within the earlier of 90 days after the Default
occurs or 30 days after the Default is known to a Trust Officer or written
notice of the Default is received by the Trustee. In addition, the Issuer shall
deliver to the Trustee within 120 days after the end of each fiscal year of the
Issuer an Officers' Certificate stating that in the course of the performance by
the signers of their duties as Officers of the Issuer they would normally have
knowledge of any Default and whether or not the signers know of any Default that
occurred during such fiscal year. If they do, the certificate shall describe the
Default, its status and what action the Issuer is taking or proposes to take
with respect thereto. The Issuer also shall comply with Section 314(a)(4) of the
TIA.
SECTION 4.10. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Trustee, the Issuer shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.11. FUTURE GUARANTORS. The Issuer shall not permit any of
its Restricted Subsidiaries (other than (i) any Receivables Subsidiary formed in
connection with a Qualified Receivables Financing and (ii) any License
Subsidiary in connection with any guarantee of any Credit Agreement) that is not
a Subsidiary Guarantor to, directly or indirectly, guarantee the payment of any
Indebtedness of the Issuer or any other Restricted Subsidiary of the Issuer that
is a Subsidiary Guarantor other than:
(a) Indebtedness Incurred pursuant to the Non-Guarantor Exception and
(b) Permitted Debt of a Restricted Subsidiary of the Issuer,
unless such Subsidiary executes and delivers to the Trustee a Guarantee or a
supplemental indenture substantially in the form of EXHIBIT D (together with
such opinions or certificates reasonably requested in connection therewith)
pursuant to which such Subsidiary will guarantee payment of the Notes. Each
Guarantee shall be limited to an amount not to exceed the maximum amount that
can be guaranteed by that Restricted Subsidiary without rendering the Guarantee,
as it relates to such Restricted Subsidiary, voidable under applicable law
relating to fraudulent conveyance, financial assistance or fraudulent transfer
or similar laws affecting the rights of creditors generally.
SECTION 4.12. LIENS.
(a) The Issuer shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, Incur or suffer to exist any
Lien (other than Permitted Liens) that secures any obligations under
Indebtedness of the Issuer or any Subsidiary Guarantor against or on any asset
or property now owned or hereafter acquired by the Issuer or any such Subsidiary
Guarantor, or any income or profits therefrom, unless:
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(1) in the case of Liens securing Indebtedness that is Subordinated
Indebtedness, the Notes are, or such Guarantee of such Subsidiary Guarantor
is, secured by a Lien on such property or assets that is senior in priority
to such Liens; and
(2) in all other cases, the Notes are, or such Guarantee of such
Subsidiary Guarantor is, equally and ratably secured;
PROVIDED that any Lien which is granted to secure the Notes or such Guarantee
under this covenant shall be automatically released and discharged at the same
time as the release of the Lien that gave rise to the obligation to secure the
Notes or such Guarantee under this covenant.
SECTION 4.13. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Issuer shall maintain an office or agency (which may be an
office of the Trustee or an affiliate of the Trustee or Registrar) where Notes
may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. The Issuer shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Issuer shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
corporate trust office of the Trustee as set forth in Section 11.02.
(b) The Issuer may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve the
Issuer of its obligation to maintain an office or agency for such purposes. The
Issuer shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
(c) The Issuer hereby designates the corporate trust office of the
Trustee or its Agent as such office or agency of the Issuer in accordance with
Section 2.04.
SECTION 4.14. MAINTENANCE OF INSURANCE. The Issuer shall, and
shall cause each Restricted Subsidiary to, obtain, maintain and keep in full
force and effect at all times (i) with respect to each Satellite procured by the
Issuer or any Restricted Subsidiary for which the risk of loss passes to the
Issuer or such Restricted Subsidiary at or before launch, and for which launch
insurance or commitments with respect thereto are not in place as of the Issue
Date, launch insurance with respect to each such Satellite covering the launch
of such Satellite and a period of time thereafter, but only to the extent, if at
all, and on such terms (including coverage period, exclusions, limitations on
coverage, co-insurance, deductibles and coverage amount) as is determined by the
Issuer to be in the best interests of the Issuer, (ii) with respect to each
Satellite it currently owns or for which it has risk of loss (or, if the entire
Satellite is not owned, the portion it owns or for which it has risk of loss),
other than any Excluded Satellite, In-Orbit Insurance and (iii) at all times
subsequent to the coverage period of the launch insurance described in clause
(i) above, if any, or if launch insurance is not procured, at all times
subsequent to the initial completion of in-orbit testing, in each case with
respect to each Satellite it then owns or for which it has risk of loss (or
portion, as applicable), other than any Excluded Satellite, In-Orbit
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Insurance; PROVIDED, HOWEVER, that at any time with respect to a Satellite that
is not an Excluded Satellite, neither the Issuer nor any Restricted Subsidiary
shall be required to maintain In-Orbit Insurance in excess of 33% of the
aggregate net book value of all in-orbit Satellites (and portions it owns or for
which it has risk of loss) insured (it being understood that any Satellite (or
portion, as applicable) protected by In-Orbit Contingency Protection shall be
deemed to be insured for a percentage of its net book value as set forth in the
definition of "IN-ORBIT CONTINGENCY PROTECTION").
(b) In the event that the expiration and non-renewal of In-Orbit
Insurance for such a Satellite (or portion, as applicable) resulting from a
claim of loss under such policy causes a failure to comply with the proviso to
Section 4.14(a), the Issuer and its Restricted Subsidiaries shall be deemed to
be in compliance with the proviso to Section 4.14(a) for the 120 days
immediately following such expiration or non-renewal, PROVIDED that the Issuer
or a Restricted Subsidiary, as the case may be, procures such In-Orbit Insurance
or provides such In-Orbit Contingency Protection as necessary to comply with the
preceding proviso within such 120-day period.
(c) The insurance required by this Section shall name the Issuer or
the applicable Restricted Subsidiary as the named insured.
(d) In the event of the unavailability of any In-Orbit Contingency
Protection for any reason, the Issuer or a Restricted Subsidiary, as the case
may be, shall, subject to the proviso to Section 4.14(a), within 120 days of
such unavailability, be required to have in effect In-Orbit Insurance complying
with Section 4.14(a)(ii) or (iii), as applicable, with respect to all Satellites
(or portions, as applicable), other than Excluded Satellites that the
unavailable In-Orbit Contingency Protection was intended to protect and for so
long as such In-Orbit Contingency Protection is unavailable, PROVIDED that the
Issuer and its Restricted Subsidiaries shall be considered in compliance with
this Section for the 120 days immediately following such unavailability.
(e) In the event that the Issuer or any of its Restricted Subsidiaries
receives any Event of Loss Proceeds in respect of an Event of Loss, such Event
of Loss Proceeds shall be applied in the manner provided for in Section 4.06.
SECTION 4.15. MATTERS RELATING TO GOVERNMENT BUSINESS SUBSIDIARIES.
The Issuer shall use its commercially reasonable efforts (as may be permitted
under any applicable Proxy Agreement) and shall use its commercially reasonable
efforts (as may be permitted under any applicable Proxy Agreement) to cause its
Restricted Subsidiaries (other than any Government Business Subsidiary), not to
allow or permit, directly or indirectly, any Government Business Subsidiary, to
take, or fail to take, any action that would violate the covenants and terms of
this Indenture.
SECTION 4.16. SUSPENSION OF COVENANTS.
(a) During any period of time that: (i) the Notes have Investment
Grade Ratings from two Rating Agencies and (ii) no Default or Event of Default
has occurred and is continuing (the occurrence of the events described in the
foregoing clauses (i) and (ii) being collectively referred to as a "COVENANT
SUSPENSION EVENT"), the Issuer and the Restricted Subsidiaries
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shall not be subject to the provisions of Sections 4.03, 4.04, 4.05, 4.06, 4.07,
5.01(a)(iv), 4.11, and 4.14 (collectively, the "SUSPENDED COVENANTS").
(b) Upon the occurrence of a Covenant Suspension Event, the Guarantees
of the Subsidiary Guarantors will also be suspended as of such date (the
"SUSPENSION DATE").
(c) In the event that the Issuer and the Restricted Subsidiaries are
not subject to the Suspended Covenants for any period of time as a result of the
foregoing, and on any subsequent date (the "REVERSION DATE") one or both of the
Rating Agencies withdraws its Investment Grade Rating or downgrades the rating
assigned to the Notes below an Investment Grade Rating, then the Issuer and the
Restricted Subsidiaries will thereafter again be subject to the Suspended
Covenants with respect to future events and the Guarantees of the Subsidiary
Guarantors will be reinstated if such guarantees are then required by the terms
of this Indenture. The period of time between the Suspension Date and the
Reversion Date is referred to in this Indenture as the "SUSPENSION PERIOD."
(d) Notwithstanding that the Suspended Covenants may be reinstated, no
Default or Event of Default will be deemed to have occurred as a result of a
failure to comply with the Suspended Covenants during the Suspension Period (or
upon termination of the Suspension Period or after that time based solely on
events that occurred during the Suspension Period).
(e) On the Reversion Date, all Indebtedness Incurred, or Disqualified
Stock or Preferred Stock issued, during the Suspension Period will be classified
as having been Incurred or issued pursuant to Section 4.03(a) or Section 4.03(b)
(to the extent such Indebtedness or Disqualified Stock or Preferred Stock would
be permitted to be Incurred or issued thereunder as of the Reversion Date and
after giving effect to Indebtedness Incurred or issued prior to the Suspension
Period and outstanding on the Reversion Date). To the extent such Indebtedness
or Disqualified Stock or Preferred Stock would not be so permitted to be
Incurred or issued pursuant to Sections 4.03(a) or (b), such Indebtedness or
Disqualified Stock or Preferred Stock will be deemed to have been outstanding on
the Issue Date, so that it is classified as permitted under Section
4.03(b)(iii). Calculations made after the Reversion Date of the amount available
to be made as Restricted Payments under Section 4.04 will be made as though
under Section 4.04 had been in effect since the Issue Date and throughout the
Suspension Period. For the avoidance of doubt, Restricted Payments made during
the Suspension Period shall reduce the amount available to be made as Restricted
Payments under Section 4.04(a). No Default or Event of Default shall be deemed
to have occurred on the Reversion Date as a result of any actions taken by the
Issuer or its Restricted Subsidiaries during the Suspension Period.
(f) The Issuer shall deliver promptly to the Trustee an Officer's
Certificate notifying the Trustee of any Covenant Suspension Event or Reversion
Date, as the case may be, pursuant to this Section.
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ARTICLE 5
SUCCESSOR COMPANY
SECTION 5.01. WHEN ISSUER MAY MERGE OR TRANSFER ASSETS.
(a) The Issuer shall not consolidate, amalgamate or merge with or into
or wind up into (whether or not the Issuer is the surviving corporation), or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions (other than the Acquisition) to, any Person unless:
(i) the Issuer is a surviving Person or the Person formed by or
surviving any such consolidation, amalgamation or merger (if other than the
Issuer) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation, partnership or
limited liability company organized or existing under the laws of the
United States, any state thereof, the District of Columbia, or any
territory thereof, under the laws of the jurisdiction of organization of
the Issuer or any Subsidiary or Parent of the Issuer or under the laws of
Bermuda or any country that is a member of the European Union (the Issuer
or such Person, as the case may be, being herein called the "SUCCESSOR
COMPANY");
(ii) the Successor Company (if other than the Issuer) expressly
assumes all the obligations of the Issuer under this Indenture and the
Notes pursuant to supplemental indentures or other documents or instruments
in form reasonably satisfactory to the Trustee;
(iii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iv) immediately after giving pro forma effect to such transaction, as
if such transaction had occurred at the beginning of the applicable
four-quarter period (and treating any Indebtedness which becomes an
obligation of the Successor Company or any of its Restricted Subsidiaries
as a result of such transaction as having been Incurred by the Successor
Company or such Restricted Subsidiary at the time of such transaction),
either
(a) the Successor Company would be permitted to Incur at least
$1.00 of additional Indebtedness pursuant to the Debt to Adjusted
EBITDA Ratio test set forth in Section 4.03(a); or
(b) the Debt to Adjusted EBITDA Ratio for the Successor Company
and its Restricted Subsidiaries would be equal to or less than such
ratio for the Issuer and its Restricted Subsidiaries immediately prior
to such transaction;
(v) each Guarantor, unless it is the other party to the transactions
described above, shall have by supplemental indenture confirmed that its
Guarantee shall apply to such Person's obligations under this Indenture and
the Notes; and
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(vi) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, amalgamation, merger or transfer and such supplemental
indentures (if any) comply with this Indenture.
Notwithstanding the foregoing clauses (iii) and (iv) of this Section
5.01(a), (A) the Issuer or any Restricted Subsidiary may consolidate or
amalgamate with, merge into, sell, assign or transfer, lease, convey or
otherwise dispose of all or part of its properties and assets to the Issuer or
to another Restricted Subsidiary and (B) the Issuer may merge, amalgamate or
consolidate with an Affiliate incorporated solely for the purpose of
reincorporating the Issuer in a (or another) state of the United States, the
District of Columbia, any territory of the United States, Bermuda or any country
that is a member of the European Union so long as the amount of Indebtedness of
the Issuer and its Restricted Subsidiaries is not increased thereby (any
transaction described in this sentence a "SPECIFIED MERGER/TRANSFER
TRANSACTION").
(b) Subject to the provisions of Section 10.02(b) (which, among other
things, govern the release of a Guarantee upon the sale or disposition of a
Restricted Subsidiary of the Issuer that is a Subsidiary Guarantor), each
Subsidiary Guarantor shall not, and the Issuer shall not permit any Subsidiary
Guarantor to, consolidate, amalgamate or merge with or into or wind up into
(whether or not such Subsidiary Guarantor is the surviving Person), or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets in one or more related transactions to, any Person
(other than any such sale, assignment, transfer, lease, conveyance or
disposition in connection with the Transactions described in the Offering
Memorandum) unless:
(i) such Subsidiary Guarantor is a surviving Person or the Person
formed by or surviving any such consolidation, amalgamation or merger (if
other than such Subsidiary Guarantor) or to which such sale, assignment,
transfer, lease, conveyance or other disposition is made is a corporation,
partnership or limited liability company organized or existing under the
laws of the United States, any state thereof, the District of Columbia, or
any territory thereof, under the laws of the jurisdiction of organization
of the Issuer or any Subsidiary or Parent of the Issuer or under the laws
of Bermuda or any country that is a member of the European Union (such
Subsidiary Guarantor or such Person, as the case may be, being herein
called the "SUCCESSOR GUARANTOR");
(ii) the Successor Guarantor (if other than such Subsidiary Guarantor)
expressly assumes all the obligations of such Subsidiary Guarantor under
this Indenture and such Subsidiary Guarantor's Guarantee pursuant to a
supplemental indenture or other documents or instruments in form reasonably
satisfactory to the Trustee;
(iii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Guarantor or any of its Subsidiaries as a result of such transaction as
having been Incurred by the Successor Guarantor or such Subsidiary at the
time of such transaction) no Default or Event of Default shall have
occurred and be continuing; and
(iv) the Successor Guarantor (if other than such Subsidiary Guarantor)
shall have delivered or caused to be delivered to the Trustee an Officers'
Certificate and an
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Opinion of Counsel, each stating that such consolidation, amalgamation,
merger or transfer and such supplemental indenture (if any) comply with
this Indenture.
Subject to the limitations described in this Indenture, the Successor
Guarantor shall succeed to, and be substituted for, such Subsidiary Guarantor
under this Indenture and such Subsidiary Guarantor's Guarantee, and such
Subsidiary Guarantor will automatically be released and discharged from its
obligations under this Indenture and such Subsidiary Guarantor's guarantee.
Notwithstanding the foregoing, (1) a Subsidiary Guarantor may merge, amalgamate
or consolidate with an Affiliate incorporated solely for the purpose of
reincorporating such Subsidiary Guarantor in a (or another) state of the United
States, the District of Columbia, any territory of the United States, Bermuda or
any country that is a member of the European Union or the jurisdiction of
organization of the Issuer, so long as the amount of Indebtedness of the
Subsidiary Guarantor is not increased thereby and (2) a Subsidiary Guarantor may
merge, amalgamate or consolidate with another Subsidiary Guarantor or the
Issuer.
SECTION 5.02. SUCCESSOR COMPANY SUBSTITUTED.
Upon any consolidation, merger or amalgamation, or any sale, lease,
conveyance or other disposition of all or substantially all of the assets of the
Issuer in accordance or permitted by with Section 5.01 hereof, the Successor
Company (if other than the Issuer) shall succeed to and be substituted for, and
may exercise every right and power of, the Issuer under this Indenture with the
same effect as if such Successor Company had been named as the Issuer herein and
the Issuer (if not the Successor Company) will automatically be released and
discharged from its obligations under this Indenture and the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "EVENT OF DEFAULT" occurs if:
(a) the Issuer defaults in any payment of interest on any Note when
the same becomes due and payable, and such default continues for a period
of 30 days,
(b) the Issuer defaults in the payment of principal or premium, if
any, of any Note when due at its Stated Maturity, upon optional redemption,
upon required repurchase, upon declaration or otherwise,
(c) the Issuer or any of its Restricted Subsidiaries fails to comply
with any of its agreements in the Notes or this Indenture (other than those
referred to in (a) or (b) above) and such failure continues for 60 days
after the notice specified below; PROVIDED, HOWEVER, that to the extent
such failure relates solely to an action or inaction by a Government
Business Subsidiary and the Issuer and its Restricted Subsidiaries have
otherwise complied with Section 4.15, no Event of Default shall occur,
(d) the Issuer or any Significant Subsidiary fails to pay any
Indebtedness (other than Indebtedness owing to a Parent of the Issuer or a
Restricted Subsidiary of the
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Issuer) within any applicable grace period after final maturity or the
acceleration of any such Indebtedness by the holders thereof because of a
default, in each case, if the total amount of such Indebtedness unpaid or
accelerated exceeds $50.0 million or its foreign currency equivalent,
(e) the Issuer or any Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in
an involuntary case;
(iii) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(iv) makes a general assignment for the benefit of its creditors
or takes any comparable action under any foreign laws relating to
insolvency,
(f) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Issuer or any Significant
Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Issuer or any Significant
Subsidiary or for any substantial part of its property; or
(iii) orders the winding up or liquidation of the Issuer or any
Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days,
(g) the Issuer or any Significant Subsidiary fails to pay final
judgments aggregating in excess of $50.0 million or its foreign currency
equivalent (net of any amounts which are covered by enforceable insurance
policies issued by solvent carriers), which judgments are not discharged, waived
or stayed for a period of 60 days following the entry thereof, or
(h) any Guarantee of a Significant Subsidiary ceases to be in full
force and effect (except as contemplated by the terms hereof or thereof) or any
Guarantor that qualifies as a Significant Subsidiary denies or disaffirms its
obligations under this Indenture or any Guarantee and such Default continues for
10 days.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or
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pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body.
The term "BANKRUPTCY LAW" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar U.S. Federal, state or any foreign law for the relief of debtors. The
term "CUSTODIAN" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (c) above shall not constitute an Event of
Default until the Trustee or the Holders of at least 25% in principal amount of
the outstanding Notes notify the Issuer of the Default and the Issuer does not
cure such Default within the time specified in clause (c) above after receipt of
such notice. Such notice must specify the Default, demand that it be remedied
and state that such notice is a "Notice of Default". The Issuer shall deliver to
the Trustee, within thirty days after the occurrence thereof, written notice in
the form of an Officers' Certificate of any event which is, or with the giving
of notice or the lapse of time or both would become, an Event of Default, its
status and what action the Issuer is taking or proposes to take with respect
thereto.
SECTION 6.02. ACCELERATION. If an Event of Default (other than an
Event of Default specified in Section 6.01(e) or (f) with respect to the Issuer)
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of outstanding Notes by notice to the Issuer, may declare the
principal of, premium, if any, and accrued but unpaid interest on all the Notes
to be due and payable. Upon such a declaration, such principal and interest
shall be due and payable immediately. If an Event of Default specified in
Section 6.01(e) or (f) with respect to the Issuer occurs, the principal of,
premium, if any, and interest on all the Notes shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders. The Holders of a majority in principal amount of the
Notes by notice to the Trustee may rescind an acceleration and its consequences
if the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of acceleration. No
such rescission shall affect any subsequent Default or impair any right
consequent thereto.
In the event of any Event of Default specified in Section 6.01(d),
such Event of Default and all consequences thereof (excluding, however, any
resulting payment default) shall be annulled, waived and rescinded,
automatically and without any action by the Trustee or the Holders of the Notes,
if within 30 days after such Event of Default arose the Issuer delivers an
Officers' Certificate to the Trustee stating that (x) the Indebtedness or
guarantee that is the basis for such Event of Default has been discharged or (y)
the holders thereof have rescinded or waived the acceleration, notice or action
(as the case may be) giving rise to such Event of Default or (z) the default
that is the basis for such Event of Default has been cured, it being understood
that in no event shall an acceleration of the principal amount of the Notes as
described above be annulled, waived or rescinded upon the happening of any such
events.
SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy at law or in equity to
collect the payment of principal of or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
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The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. No remedy is exclusive of any
other remedy. All available remedies are cumulative.
SECTION 6.04. WAIVER OF PAST DEFAULTS. Provided the Notes are not then
due and payable by reason of a declaration of acceleration, the Holders of a
majority in principal amount of the Notes by notice to the Trustee may waive an
existing Default and its consequences except (a) a Default in the payment of the
principal of or interest on a Note, (b) a Default arising from the failure to
redeem or purchase any Note when required pursuant to the terms of this
Indenture or (c) a Default in respect of a provision that under Section 9.02
cannot be amended without the consent of each Holder affected. When a Default is
waived, it is deemed cured and the Issuer, the Trustee and the Holders will be
restored to their former positions and rights under this Indenture, but no such
waiver shall extend to any subsequent or other Default or impair any consequent
right.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority in
principal amount of the outstanding Notes may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of any other Holder or that would involve the Trustee in personal
liability; PROVIDED, HOWEVER, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action under this Indenture, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion against all losses and
expenses caused by taking or not taking such action.
SECTION 6.06. LIMITATION ON SUITS.
(a) Except to enforce the right to receive payment of principal,
premium (if any) or interest when due, no Holder may pursue any remedy with
respect to this Indenture or the Notes unless:
(i) the Holder gives to the Trustee written notice stating that
an Event of Default is continuing;
(ii) the Holders of at least 25% in principal amount of the
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(iii) such Holder or Holders offer to the Trustee reasonable
security or indemnity satisfactory to it against any loss, liability
or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity;
and
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(v) the Holders of a majority in principal amount of the
outstanding Notes do not give the Trustee a direction inconsistent
with the request during such 60-day period.
(b) A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. RIGHTS OF THE HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Notes held by such
Holder, on or after the respective due dates expressed or provided for in the
Notes, or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default
specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Issuer or any other obligor on the Notes for the whole amount then due and owing
(together with interest on overdue principal and (to the extent lawful) on any
unpaid interest at the rate provided for in the Notes) and the amounts provided
for in Section 7.07.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation, expenses, disbursements and advances of the Trustee
(including counsel, accountants, experts or such other professionals as the
Trustee deems necessary, advisable or appropriate)) and the Holders allowed in
any judicial proceedings relative to the Issuer or any Guarantor, their
creditors or their property, shall be entitled to participate as a member,
voting or otherwise, of any official committee of creditors appointed in such
matters and, unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial proceeding
is hereby authorized by each Holder to make payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.07.
SECTION 6.10. PRIORITIES. If the Trustee collects any money or
property pursuant to this Article, it shall pay out the money or property in the
following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes
for principal and interest, respectively; and
THIRD: to the Issuer or, to the extent the Trustee collects any amount
from any Subsidiary Guarantor, to such Subsidiary Guarantor.
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The Trustee may fix a record date and payment date for any payment to
the Holders pursuant to this Section. At least 15 days before such record date,
the Trustee shall mail to each Holder and the Issuer a notice that states the
record date, the payment date and amount to be paid.
SECTION 6.11. UNDERTAKING FOR COSTS. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by
Holders of more than 10% in principal amount of the outstanding Notes.
SECTION 6.12. WAIVER OF STAY OR EXTENSION LAWS. Neither the Issuer nor
any Guarantor (to the extent it may lawfully do so) shall 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 wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Issuer and each Guarantor (to the extent that it may lawfully
do so) hereby expressly waive all benefit or advantage of any such law, and
shall not hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise 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.
(b) Except during the continuance of an Event of Default:
(i) 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
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
in the case of certificates or opinions required by any provision hereof to
be provided to it, the Trustee shall examine the certificates and opinions
to determine whether or not they conform to the requirements of this
Indenture.
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(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05; and
(iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Issuer.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) 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 and to the provisions of the TIA.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely on any document believed by it
to be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; PROVIDED, HOWEVER, that the Trustee's conduct does not constitute
willful misconduct or negligence.
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(e) The Trustee may consult with counsel of its own selection and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect of any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(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, consent, order, approval, bond, debenture,
note or other paper or document unless requested in writing to do so by the
Holders of not less than a majority in principal amount of the Notes at the time
outstanding, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Issuer, personally
or by agent or attorney, at the expense of the Issuer and shall incur no
liability of any kind by reason of such inquiry or investigation.
(g) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
(h) The rights, privileges, protections, immunities and benefits given
to the Trustee, including its right to be indemnified, are extended to, and
shall be enforceable by, the Trustee in each of its capacities hereunder, and
each agent, custodian and other Person employed to act hereunder.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuer or its Affiliates with the same rights it
would have if it were not Trustee. Any Paying Agent or Registrar may do the same
with like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture, any Guarantee or the Notes, it shall not be accountable for the
Issuer's use of the proceeds from the Notes, and it shall not be responsible for
any statement of the Issuer or any Guarantor in this Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Trustee's certificate of authentication. The Trustee shall not be
charged with knowledge of any Default or Event of Default under Section 6.01(c),
(d), (e), (f), (g) or (h) or of the identity of any Significant Subsidiary
unless either (a) a Trust Officer shall have actual knowledge thereof or (b) the
Trustee shall have received notice thereof in accordance with Section 11.02
hereof from the Issuer, any Guarantor or any Holder.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default occurs and is
continuing and if it is actually known to the Trustee, the Trustee shall mail to
each Holder notice of the Default within the earlier of 90 days after it occurs
or 30 days after it is actually known to a Trust Officer
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or written notice of it is received by the Trustee. Except in the case of a
Default in the payment of principal of, premium (if any) or interest on any
Note, the Trustee may withhold the notice if and so long as a committee of its
Trust Officers in good faith determines that withholding the notice is in the
interests of the Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO THE HOLDERS. As promptly as
practicable after the end of each fiscal year of the Issuer beginning with end
of the fiscal year following the date of this Indenture, and in any event within
12 months of the last such report, the Trustee shall mail to each Holder a brief
report dated as of such fiscal year end that complies with Section 313(a) of the
TIA if and to the extent required thereby. The Trustee shall also comply with
Section 313(b) of the TIA.
A copy of each report at the time of its mailing to the Holders
shall be filed with the SEC and each stock exchange (if any) on which the Notes
are listed. The Issuer agrees to notify promptly the Trustee whenever the Notes
become listed on any stock exchange and of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Issuer shall pay to the
Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuer shall reimburse the Trustee upon request
for all reasonable out-of-pocket expenses incurred or made by it, including
costs of collection, in addition to the compensation for its services. Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Trustee's agents, counsel, accountants and experts. The
Issuer and each Guarantor, jointly and severally shall indemnify the Trustee
against any and all loss, liability, claim, damage or expense (including
reasonable attorneys' fees and expenses) incurred by or in connection with the
acceptance or administration of this trust and the performance of its duties
hereunder, including the costs and expenses of enforcing this Indenture or
Guarantee against the Issuer or a Guarantor (including this Section) and
defending itself against or investigating any claim (whether asserted by the
Issuer, any Guarantor, any Holder or any other Person). The Trustee shall notify
the Issuer of any claim for which it may seek indemnity promptly upon obtaining
actual knowledge thereof; PROVIDED, HOWEVER, that any failure so to notify the
Issuer shall not relieve the Issuer or any Guarantor of its indemnity
obligations hereunder. The Issuer shall defend the claim and the indemnified
party shall provide reasonable cooperation at the Issuer's expense in the
defense. Such indemnified parties may have separate counsel and the Issuer and
the Guarantors, as applicable shall pay the fees and expenses of such counsel;
PROVIDED, HOWEVER, that the Issuer shall not be required to pay such fees and
expenses if it assumes such indemnified parties' defense and, in such
indemnified parties' reasonable judgment, there is no conflict of interest
between the Issuer and the Guarantors, as applicable, and such parties in
connection with such defense. The Issuer need not reimburse any expense or
indemnify against any loss, liability or expense incurred by an indemnified
party through such party's own willful misconduct, negligence or bad faith.
To secure the Issuer's and the Guarantors' payment obligations in this
Section, the Trustee shall have a Lien prior to the Notes on all money or
property held or collected by the
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Trustee other than money or property held in trust to pay principal of and
interest on particular Notes.
The Issuer's and the Guarantors' payment obligations pursuant to this
Section shall survive the satisfaction or discharge of this Indenture, any
rejection or termination of this Indenture under any bankruptcy law or the
resignation or removal of the Trustee. Without prejudice to any other rights
available to the Trustee under applicable law, when the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.01(e) or (f) with
respect to Holdings or the Issuer, the expenses are intended to constitute
expenses of administration under the Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
(a) The Trustee may resign at any time by so notifying the Issuer. The
Holders of a majority in principal amount of the Notes may remove the Trustee by
so notifying the Trustee and may appoint a successor Trustee. The Issuer may
remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the TIA, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provide by, and subject to the provisions of,
the TIA and this Indenture. To the extent permitted by the TIA, the Trustee
shall not be deemed to have a conflicting interest by virtue of being a Trustee
under this Indenture with respect to Notes of more than one series.
(b) If the Trustee resigns, is removed by the Issuer or by the Holders
of a majority in principal amount of the Notes and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Issuer shall promptly appoint a successor
Trustee.
(c) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to the
Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the Lien provided for in Section
7.07.
(d) If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee or the Holders
of 10% in principal amount of
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the Notes may petition at the expense of the Issuer any court of competent
jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, unless the
Trustee's duty to resign is stayed as provided in Section 310(b) of the TIA, any
Holder who has been a bona fide Holder of a Note for at least six months may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to this
Section, the Issuer's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Notes 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 Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to
the Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or
in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of Section 310(a) of the TIA. The Trustee shall
have a combined capital and surplus of at least $100,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
Section 310(b) of the TIA, subject to its right to apply for a stay of its duty
to resign under the penultimate paragraph of Section 310(b) of the TIA;
PROVIDED, HOWEVER, that there shall be excluded from the operation of Section
310(b)(1) of the TIA any series of securities issued under this Indenture and
any indenture or indentures under which other securities or certificates of
interest or participation in other securities of the Issuer are outstanding if
the requirements for such exclusion set forth in Section 310(b)(1) of the TIA
are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER. The
Trustee shall comply with Section 311(a) of the TIA, excluding any creditor
relationship listed in Section 311(b) of the TIA. A Trustee who has resigned or
been removed shall be subject to Section 311(a) of the TIA to the extent
indicated.
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ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. DISCHARGE OF LIABILITY ON NOTES; DEFEASANCE. This
Indenture shall be discharged and shall cease to be of further effect (except as
to surviving rights of registration or transfer or exchange of Notes, as
expressly provided for in this Indenture) as to all outstanding Notes when:
(a) either (i) all the Notes theretofore authenticated and delivered
(other than Notes pursuant to Section 2.08 which have been replaced or paid
and Notes for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from such trust) have been delivered to the Trustee
for cancellation or (ii) all of the Notes (a) have become due and payable,
(b) will become due and payable at their Stated Maturity within one year or
(c) if redeemable at the option of the Issuer, are to be called for
redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at
the expense, of the Issuer, and the Issuer has irrevocably deposited or
caused to be deposited with the Trustee cash in U.S. Dollars, U.S.
Government Obligations or a combination thereof in an amount sufficient in
the written opinion of a firm of independent public accountants delivered
to the Trustee (which delivery shall only be required if U.S. Government
Obligations have been so deposited) to pay and discharge the entire
Indebtedness on the Notes not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest on the Notes
to the date of deposit together with irrevocable instructions from the
Issuer directing the Trustee to apply such funds to the payment thereof at
maturity or redemption, as the case may be;
(b) the Issuer and/or the Guarantors have paid all other sums payable
under this Indenture; and
(c) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel stating that all conditions precedent under this
Indenture relating to the satisfaction and discharge of this Indenture have
been complied with.
Subject to Sections 8.01(c) and 8.02, the Issuer at any time may
terminate (i) all of its obligations under the Notes and this Indenture (with
respect to such Notes) ("LEGAL DEFEASANCE OPTION") or (ii) its obligations under
Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12 and 4.14 and the
operation of Section 5.01 and Sections 6.01(d), 6.01(e) (with respect to
Significant Subsidiaries of the Issuer only), 6.01(f) (with respect to
Significant Subsidiaries of the Issuer only), 6.01(g) and 6.01(h) ("COVENANT
DEFEASANCE OPTION"). The Issuer may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option. In the
event that the Issuer terminates all of its obligations under the Notes and this
Indenture (with respect to such Notes) by exercising its legal defeasance option
or its covenant defeasance option, the obligations of each Guarantor under its
Guarantee of such Notes shall be terminated simultaneously with the termination
of such obligations.
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If the Issuer exercises its legal defeasance option, payment of the
Notes may not be accelerated because of an Event of Default with respect
thereto. If the Issuer exercises its covenant defeasance option, payment of the
Notes so defeased may not be accelerated because of an Event of Default
specified in Section 6.01(c), 6.01(d), 6.01(e) (with respect to Significant
Subsidiaries of the Issuer only), 6.01(f) (with respect to Significant
Subsidiaries of the Issuer only), 6.01(g) or 6.01(h) or because of the failure
of the Issuer to comply with Section 4.08 or Section 5.01.
Upon satisfaction of the conditions set forth herein and upon request
of the Issuer, the Trustee shall acknowledge in writing the discharge of those
obligations that the Issuer terminates.
Notwithstanding clauses (a) and (b) above, the Issuer's obligations in
Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 7.07, 7.08 and in this Article
shall survive until the Notes have been paid in full. Thereafter, the Issuer's
obligations in Sections 7.07, 8.05 and 8.06 shall survive such satisfaction and
discharge.
SECTION 8.02. CONDITIONS TO DEFEASANCE.
(a) The Issuer may exercise its legal defeasance option or its
covenant defeasance option only if:
(i) the Issuer irrevocably deposits in trust with the Trustee cash in
U.S. Dollars or U.S. Government Obligations, the principal of and the
interest on which will be sufficient, or a combination thereof sufficient,
to pay the principal of, and premium (if any) and interest on the
applicable Notes when due at maturity or redemption, as the case may be,
including interest thereon to maturity or such redemption date;
(ii) the Issuer delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations, plus any
deposited money without investment, will provide cash at such times and in
such amounts as will be sufficient to pay principal, premium, if any, and
interest when due on all the Notes to maturity or redemption, as the case
may be;
(iii) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 6.01(e) or (f) with respect to the
Issuer occurs which is continuing at the end of the period;
(iv) the deposit does not constitute a default under any other
agreement binding on the Issuer;
(v) the Issuer delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940, as amended;
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(vi) in the case of the legal defeasance option, the Issuer shall have
delivered to the Trustee an Opinion of Counsel stating that (1) the Issuer
has received from, or there has been published by, the U.S. Internal
Revenue Service a ruling, or (2) since the date of this Indenture there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and defeasance and will be
subject to Federal income tax on the same amount, in the same manner and at
the same times as would have been the case if such deposit and defeasance
had not occurred; PROVIDED, HOWEVER, that such Opinion of Counsel need not
be delivered if all Notes not theretofore delivered to the Trustee for
cancellation (x) have become due and payable or (y) will become due and
payable at their Stated Maturity within one year under arrangements
satisfactory to the Trustee for the giving notice of redemption by the
Trustee in the name, and at the expense, of the Issuer;
(vii) in the case of the covenant defeasance option, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders will not recognize income, gain or loss for U.S. Federal income tax
purposes as a result of such deposit and defeasance and will be subject to
U.S. Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such deposit and defeasance had
not occurred; and
(viii) the Issuer delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Notes to be so defeased and discharged as
contemplated by this Article have been complied with.
(b) The Issuer shall not be deemed to have breached its obligations
under Section 4.03 to the extent the net proceeds from any Indebtedness,
Preferred Stock or Disqualified Stock incurred is used in accordance with
Section 8.02(a)(i) above for the Issuer to exercise its legal defeasance or
covenant defeasance option.
(c) Before or after a deposit, the Issuer may make arrangements
satisfactory to the Trustee for the redemption of such Notes at a future date in
accordance with Article 3.
SECTION 8.03. APPLICATION OF TRUST MONEY. The Trustee shall hold in
trust money or U.S. Government Obligations (including proceeds thereof)
deposited with it pursuant to this Article. It shall apply the deposited money
and the money from U.S. Government Obligations through each Paying Agent and in
accordance with this Indenture to the payment of principal of and interest on
the Notes so discharged or defeased.
SECTION 8.04. REPAYMENT TO ISSUER. Each of the Trustee and each Paying
Agent shall promptly turn over to the Issuer upon request any money or U.S.
Government Obligations held by it as provided in this Article which, in the
written opinion of a nationally recognized firm of independent public
accountants delivered to the Trustee (which delivery shall only be required if
U.S. Government Obligations have been so deposited), are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
discharge or defeasance in accordance with this Article.
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Subject to any applicable abandoned property law, the Trustee and each
Paying Agent shall pay to the Issuer upon written request any money held by them
for the payment of principal or interest that remains unclaimed for two years,
and, thereafter, Holders entitled to the money must look to the Issuer for
payment as general creditors, and the Trustee and each Paying Agent shall have
no further liability with respect to such monies.
SECTION 8.05. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The Issuer
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.
SECTION 8.06. REINSTATEMENT. If the Trustee or any Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article by reason of any legal proceeding or by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Issuer's obligations under this Indenture and
the Notes so discharged or defeased shall be revived and reinstated as though no
deposit had occurred pursuant to this Article until such time as the Trustee or
any Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article; PROVIDED, HOWEVER, that, if the
Issuer has made any payment of principal of or interest on, any such Notes
because of the reinstatement of its obligations, the Issuer shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money or U.S. Government Obligations held by the Trustee or any Paying Agent.
ARTICLE 9
AMENDMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF THE HOLDERS. The Issuer and the
Trustee may amend this Indenture or the Notes without notice to or consent of
any Holder:
(i) to cure any ambiguity, omission, defect or inconsistency;
(ii) to comply with Article 5;
(iii) to provide for uncertificated Notes in addition to or in place
of certificated Notes; PROVIDED that the uncertificated Notes are issued in
registered form for purposes of Section 163(f) of the Code or in a manner
such that the uncertificated Notes are described in Section 163(f)(2)(B) of
the Code;
(iv) to add Guarantees with respect to the Notes or to secure the
Notes;
(v) to add to the covenants of the Issuer or any Parent of the Issuer
for the benefit of the Holders or to surrender any right or power herein
conferred upon the Issuer or any Parent of the Issuer;
(vi) to comply with any requirement of the SEC in connection with
qualifying this Indenture under the TIA;
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(vii) to effect any provision of this Indenture (including to release
any Guarantees in accordance with the terms of this Indenture);
(viii) to make any change that does not adversely affect the rights of
any Holder;
(ix) to provide for the issuance of the Exchange Notes or Additional
Notes; or
(x) to release the Guarantee of any Parent of the Issuer.
After an amendment under this Section becomes effective, the Issuer
shall mail to Holders a notice briefly describing such amendment. The failure to
give such notice to all Holders, or any defect therein, shall not impair or
affect the validity of an amendment under this Section.
SECTION 9.02. WITH CONSENT OF THE HOLDERS.
(a) The Issuer and the Trustee may amend this Indenture or the Notes
with the written consent of the Holders of at least a majority in principal
amount of the Notes then outstanding voting as a single class (including
consents obtained in connection with a tender offer or exchange for the Notes).
However, without the consent of each Holder of an outstanding Note affected, an
amendment may not:
(i) reduce the amount of Notes whose Holders must consent to an
amendment,
(ii) reduce the rate of or extend the time for payment of interest on
any Note,
(iii) reduce the principal of or change the Stated Maturity of any
Note,
(iv) reduce the premium payable upon the redemption of any Note or
change the time at which any Note may be redeemed in accordance with
Article 3,
(v) make any Note payable in money other than that stated in such
Note,
(vi) make any change in Section 6.04 or 6.07 or the second sentence of
this Section,
(vii) expressly subordinate the Notes or any Guarantee to any other
Indebtedness of the Issuer or any Guarantor, or
(viii) modify the Guarantees in any manner materially adverse to the
Holders (other than the release of a Guarantee from any Parent of the
Issuer).
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance thereof.
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(b) After an amendment under this Section becomes effective, the
Issuer shall mail to the Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders entitled to receive such notice, or
any defect therein, shall not impair or affect the validity of an amendment
under this Section.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. From the date on
which this Indenture is qualified under the TIA, every amendment, waiver or
supplement to this Indenture or the Notes shall comply with the TIA as then in
effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS.
(a) A consent to an amendment or a waiver by a Holder of a Note shall
bind the Holder and every subsequent Holder of that Note or portion of the Note
that evidences the same debt as the consenting Holder's Note, even if notation
of the consent or waiver is not made on the Note. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder's Note or
portion of the Note if the Trustee receives the notice of revocation before the
date on which the Trustee receives an Officers' Certificate from the Issuer
certifying that the requisite principal amount of Notes have consented. After an
amendment or waiver becomes effective, it shall bind every Holder. An amendment
or waiver becomes effective upon the (i) receipt by the Issuer or the Trustee of
consents by the Holders of the requisite principal amount of securities, (ii)
satisfaction of conditions to effectiveness as set forth in this Indenture and
any indenture supplemental hereto containing such amendment or waiver and (iii)
execution of such amendment or waiver (or supplemental indenture) by the Issuer
and the Trustee.
(b) The Issuer may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES. If an amendment,
supplement or waiver changes the terms of a Note, the Issuer may require the
Holder of the Note to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Note regarding the changed terms and return it to
the Holder. Alternatively, if the Issuer or the Trustee so determines, the
Issuer in exchange for the Note shall issue and the Trustee shall authenticate a
new Note that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Note shall not affect the validity of such amendment,
supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS. The Trustee shall sign any
amendment, supplement or waiver authorized pursuant to this Article if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may but need not sign it. In
signing such amendment, the Trustee shall be entitled to receive indemnity
reasonably satisfactory to it and shall be provided with, and (subject to
Section 7.01) shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel stat-
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ing that such amendment, supplement or waiver is authorized or permitted by this
Indenture and that such amendment, supplement or waiver is the legal, valid and
binding obligation of the Issuer and the Guarantors, enforceable against them in
accordance with its terms, subject to customary exceptions, and complies with
the provisions hereof (including Section 9.03).
SECTION 9.07. PAYMENT FOR CONSENT. Neither the Issuer nor any
Affiliate of the Issuer shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Notes unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
SECTION 9.08. ADDITIONAL VOTING TERMS. All Notes issued under this
Indenture shall vote and consent together on all matters (as to which any of
such Notes may vote) as one class and no series of Notes will have the right to
vote or consent as a separate class on any matter.
ARTICLE 10
GUARANTEES
SECTION 10.01. GUARANTEES.
(a) Each Guarantor hereby jointly and severally, irrevocably and
unconditionally guarantees, as a primary obligor and not merely as a surety, to
each Holder and to the Trustee and its successors and assigns (i) the full and
punctual payment when due, whether at Stated Maturity, by acceleration, by
redemption or otherwise, of all obligations of the Issuer under this Indenture
(including obligations to the Trustee) and the Notes, whether for payment of
principal of, premium, if any, or interest or additional interest in respect of
the Notes and all other monetary obligations of the Issuer under this Indenture
and the Notes and (ii) the full and punctual performance within applicable grace
periods of all other obligations of the Issuer whether for fees, expenses,
indemnification or otherwise under this Indenture and the Notes (all the
foregoing being hereinafter collectively called the "GUARANTEED OBLIGATIONS").
Each Guarantor further agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice or further assent from each such
Guarantor, and that each such Guarantor shall remain bound under this Article
notwithstanding any extension or renewal of any Guaranteed Obligation.
(b) Each Guarantor waives presentation to, demand of payment from and
protest to the Issuer of any of the Guaranteed Obligations and also waives
notice of protest for nonpayment. Each Guarantor waives notice of any default
under the Notes or the Guaranteed Obligations. The obligations of each Guarantor
hereunder shall not be affected by (i) the failure of any Holder or the Trustee
to assert any claim or demand or to enforce any right or remedy against the
Issuer or any other Person under this Indenture, the Notes or any other
agreement or otherwise; (ii) any extension or renewal of this Indenture, the
Notes or any other agreement; (iii) any rescission, waiver, amendment or
modification of any of the terms or provisions of this
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Indenture, the Notes or any other agreement; (iv) the release of any security
held by any Holder or the Trustee for the Guaranteed Obligations or any
Guarantor; (v) the failure of any Holder or Trustee to exercise any right or
remedy against any other guarantor of the Guaranteed Obligations; or (vi) any
change in the ownership of such Guarantor, except as provided in Section
10.02(b).
(c) Each Guarantor hereby waives any right to which it may be entitled
to have its obligations hereunder divided among the Guarantors, such that such
Guarantor's obligations would be less than the full amount claimed. Each
Guarantor hereby waives any right to which it may be entitled to have the assets
of the Issuer first be used and depleted as payment of the Issuer's or such
Guarantor's obligations hereunder prior to any amounts being claimed from or
paid by such Guarantor hereunder. Each Guarantor hereby waives any right to
which it may be entitled to require that the Issuer be sued prior to an action
being initiated against such Guarantor.
(d) Each Guarantor further agrees that its Guarantee herein
constitutes a guarantee of payment, performance and compliance when due (and not
a guarantee of collection) and waives any right to require that any resort be
had by any Holder or the Trustee to any security held for payment of the
Guaranteed Obligations.
(e) Except as expressly set forth in Sections 8.01, 9.01, 10.02 and
10.06, the obligations of each Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Guaranteed Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Guarantor herein shall not be discharged or
impaired or otherwise affected by the failure of any Holder or the Trustee to
assert any claim or demand or to enforce any remedy under this Indenture, the
Notes or any other agreement, by any waiver or modification of any thereof, by
any default, failure or delay, willful or otherwise, in the performance of the
obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
any Guarantor or would otherwise operate as a discharge of any Guarantor as a
matter of law or equity.
(f) Except as expressly set forth in Sections 8.01, 9.01 and 10.02,
each Guarantor agrees that its Guarantee shall remain in full force and effect
until payment in full of all the Guaranteed Obligations. Except as expressly set
forth in Sections 8.01, 9.01 and 10.02, each Guarantor further agrees that its
Guarantee herein shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of principal of or interest
on any Guaranteed Obligation is rescinded or must otherwise be restored by any
Holder or the Trustee upon the bankruptcy or reorganization of the Issuer or
otherwise.
(g) In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any
Guarantor by virtue hereof, upon the failure of the Issuer to pay the principal
of or interest on any Guaranteed Obligation when and as the same shall become
due, whether at maturity, by acceleration, by redemption or otherwise, or to
perform or comply with any other Guaranteed Obligation, each Guarantor
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hereby promises to and shall, upon receipt of written demand by the Trustee,
forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an
amount equal to the sum of (i) the unpaid principal amount of such Guaranteed
Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations
(but only to the extent not prohibited by applicable law) and (iii) all other
monetary obligations of the Issuer to the Holders and the Trustee in respect of
the Guaranteed Obligations.
(h) Each Guarantor agrees that it shall not be entitled to any right
of subrogation in relation to the Holders in respect of any Guaranteed
Obligations guaranteed hereby until payment in full of all Guaranteed
Obligations. Each Guarantor further agrees that, as between it, on the one hand,
and the Holders and the Trustee, on the other hand, (i) the maturity of the
Guaranteed Obligations guaranteed hereby may be accelerated as provided in
Article 6 for the purposes of any Guarantee herein, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
Guaranteed Obligations guaranteed hereby, and (ii) in the event of any
declaration of acceleration of such Guaranteed Obligations as provided in
Article 6, such Guaranteed Obligations (whether or not due and payable) shall
forthwith become due and payable by such Guarantor for the purposes of this
Section.
(i) Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees and expenses) incurred by the Trustee or
any Holder in enforcing any rights under this Section.
(j) Upon request of the Trustee, each Guarantor shall execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purpose of this Indenture.
(k) Any Guarantee given by any Parent of the Issuer may be released at
any time upon written notice to the Trustee from such Parent of the Issuer.
SECTION 10.02. LIMITATION ON LIABILITY.
(a) Any term or provision of this Indenture to the contrary
notwithstanding, the maximum aggregate amount of the Guaranteed Obligations
guaranteed hereunder by any Guarantor shall not exceed the maximum amount that
can be hereby guaranteed without rendering the Guarantee, as it relates to such
Guarantor, voidable under applicable law relating to fraudulent conveyance,
financial assistance or fraudulent transfer or similar laws affecting the rights
of creditors generally.
(b) A Guarantee as to any Subsidiary Guarantor shall terminate and be
of no further force or effect and such Subsidiary Guarantor shall be deemed to
be automatically released from all obligations under this Article upon:
(i) (A) the sale, disposition or other transfer (including through
merger, amalgamation or consolidation) of the Capital Stock (including any
sale, disposition or other transfer following which the applicable
Subsidiary Guarantor is no longer a Restricted Subsidiary), or all or
substantially all the assets, of the applicable Subsidiary Guarantor if
such sale, disposition or other transfer is made in compliance with this
Indenture and (B)
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such Subsidiary Guarantor being released from its guarantees, if any, of,
and all pledges and security, if any, granted in connection with, the
Credit Agreement and any other Indebtedness of the Issuer or any Restricted
Subsidiary of the Issuer, or
(ii) the Issuer designating such Subsidiary Guarantor to be an
Unrestricted Subsidiary in accordance with the provisions set forth under
Section 4.04 and the definition of "Unrestricted Subsidiary," or
(iii) in the case of any Restricted Subsidiary which after the
Acquisition Date is required to guarantee the Notes pursuant to Section
4.11, the release or discharge of the guarantee by such Restricted
Subsidiary of Indebtedness of the Issuer or any Restricted Subsidiary of
the Issuer or such Restricted Subsidiary or the repayment of the
Indebtedness or Disqualified Stock, in each case, which resulted in the
obligation to guarantee the Notes, or
(iv) the Issuer's exercise of its legal defeasance option or covenant
defeasance option pursuant to Article 8, or if the Issuer's obligations
under this Indenture are discharged in accordance with the terms of this
Indenture.
A Guarantee also shall be automatically released and discharged upon
the applicable Subsidiary ceasing to be a Subsidiary as a result of any
foreclosure of any pledge or security interest securing Bank Indebtedness or
other exercise of remedies in respect thereof. In addition, the Guarantees of
the Subsidiary Guarantors shall be suspended during any Suspension Period, as
provided in Section 4.16 hereof. Further, the Issuer may, upon notice to the
Trustee, automatically release and discharge the Guarantee of any Guarantor that
was not obligated to become a Guarantor pursuant to the terms of this Indenture.
SECTION 10.03. SUCCESSORS AND ASSIGNS. This Article shall be binding
upon each Guarantor and its successors and assigns and shall inure to the
benefit of the successors and assigns of the Trustee and the Holders and, in the
event of any transfer or assignment of rights by any Holder or the Trustee, the
rights and privileges conferred upon that party in this Indenture and in the
Notes shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions of this Indenture.
SECTION 10.04. NO WAIVER. Neither a failure nor a delay on the part of
either the Trustee or the Holders in exercising any right, power or privilege
under this Article shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article at law, in
equity, by statute or otherwise.
SECTION 10.05. MODIFICATION. No modification, amendment or waiver of
any provision of this Article, nor the consent to any departure by any Guarantor
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Trustee, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for
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which given. No notice to or demand on any Guarantor in any case shall entitle
such Guarantor to any other or further notice or demand in the same, similar or
other circumstances.
SECTION 10.06. EXECUTION OF SUPPLEMENTAL INDENTURE FOR FUTURE
GUARANTORS. Each Subsidiary and other Person which is required to become a
Guarantor pursuant to Section 4.11 shall promptly execute and deliver to the
Trustee a supplemental indenture in the form of EXHIBIT D hereto pursuant to
which such Subsidiary or other Person shall become a Guarantor under this
Article and shall guarantee the Guaranteed Obligations. Concurrently with the
execution and delivery of such supplemental indenture, the Issuer shall deliver
to the Trustee an Opinion of Counsel and an Officers' Certificate to the effect
that such supplemental indenture has been duly authorized, executed and
delivered by such Subsidiary or other Person and that, subject to customary
exception including the application of bankruptcy, insolvency, moratorium,
fraudulent conveyance or transfer and other similar laws relating to creditors'
rights generally and to the principles of equity, whether considered in a
proceeding at law or in equity, the Guarantee of such Guarantor is a legal,
valid and binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms and/or to such other matters as the
Trustee may reasonably request.
SECTION 10.07. NON-IMPAIRMENT. The failure to endorse a Guarantee on
any Note shall not affect or impair the validity thereof.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by, or with another provision (an "INCORPORATED PROVISION") included in
this Indenture by operation of, Sections 310 to 318 of the TIA, inclusive, such
imposed duties or incorporated provision shall control.
SECTION 11.02. NOTICES.
(a) Any notice or communication required or permitted hereunder shall
be in writing and delivered in person, via facsimile or mailed by first-class
mail addressed as follows:
if to the Issuer or a Guarantor:
PanAmSat Corporation
c/o Intelsat (Bermuda), Ltd.
Xxxxxxxxx Xxxxx Xxxxx, 0xx Xxxxx
90 Xxxxx Bay Road
Pembroke, HM 08 Bermuda
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with a copy to:
Intelsat Global Service Corporation
0000 Xxxxxxxxxxxxx Xxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attention: General Counsel
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, III.
if to the Trustee:
Xxxxx Fargo Bank, National Association
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention of: Corporate Trust Department
Facsimile: 000-000-0000
The Issuer or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
(b) Any notice or communication mailed to a Holder shall be mailed,
first class mail, to the Holder at the Holder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
(c) Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it, except that notices to the
Trustee are effective only if received.
SECTION 11.03. COMMUNICATION BY THE HOLDERS WITH OTHER HOLDERS. The
Holders may communicate pursuant to Section 312(b) of the TIA with other Holders
with respect to their rights under this Indenture or the Notes. The Issuer, the
Trustee, the Registrar and other Persons shall have the protection of Section
312(c) of the TIA.
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Issuer to the Trustee to take or refrain
from taking any action under this Indenture, the Issuer shall furnish to the
Trustee at the request of the Trustee:
(a) an Officers' Certificate in form reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
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(b) an Opinion of Counsel in form reasonably satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture (other than pursuant to Section 4.09) shall
include:
(a) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with; PROVIDED,
HOWEVER, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 11.06. WHEN NOTES DISREGARDED. In determining whether the
Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Issuer, any Guarantor or by any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any Guarantor shall be disregarded
and deemed not to be outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Notes which the Trustee knows are so owned shall be so
disregarded. Subject to the foregoing, only Notes outstanding at the time shall
be considered in any such determination.
SECTION 11.07. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. The
Trustee may make reasonable rules for action by or a meeting of the Holders. The
Registrar and a Paying Agent may make reasonable rules for their functions.
SECTION 11.08. LEGAL HOLIDAYS. If a payment date is not a Business
Day, payment shall be made on the next succeeding day that is a Business Day,
and no interest shall accrue on any amount that would have been otherwise
payable on such payment date if it were a Business Day for the intervening
period. If a regular record date is not a Business Day, the record date shall
not be affected.
SECTION 11.09. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
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SECTION 11.10. NO RECOURSE AGAINST OTHERS. No director, officer,
employee, incorporator or holder of any Equity Interests in the Issuer or any
Parent of the Issuer, as such, shall have any liability for any obligations of
the Issuer under the Notes or this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of
Notes by accepting a Note waives and releases all such liability.
SECTION 11.11. SUCCESSORS. All agreements of the Issuer and each
Guarantor in this Indenture and the Notes shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 11.12. MULTIPLE 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. One signed copy is enough to prove this
Indenture.
SECTION 11.13. TABLE OF CONTENTS; HEADINGS. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
SECTION 11.14. INDENTURE CONTROLS. If and to the extent that any
provision of the Notes limits, qualifies or conflicts with a provision of this
Indenture, such provision of this Indenture shall control.
SECTION 11.15. SEVERABILITY. In case any provision in this Indenture
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 and such provision shall be ineffective only to the extent of
such invalidity, illegality or unenforceability.
SECTION 11.16. JURISDICTION. The Issuer and each Guarantor agrees that
any suit, action or proceeding against the Issuer or any Guarantor arising out
of or based upon this Agreement or the transactions contemplated hereby may be
instituted in the Supreme Court of the State of New York sitting in New York
County and the United States District Court of the Southern District of New
York, and any appellate court from any thereof, and waives any objection which
it may now or hereafter have to the laying of venue of any such proceeding, and
irrevocably submits to the non-exclusive jurisdiction of such courts in any
suit, action or proceeding.
SECTION 11.17. CURRENCY OF ACCOUNT; CONVERSION OF CURRENCY; FOREIGN
EXCHANGE RESTRICTIONS.
(a) U.S. Dollars are the sole currency of account and payment for all
sums payable by the Issuer and the Guarantors under the Notes, the Guarantees of
Notes or this Indenture, including damages related thereto. Any amount received
or recovered in a currency other than U.S. Dollars by a Holder of Notes (whether
as a result of, or of the enforcement of, a judgment or order of a court of any
jurisdiction, in the winding-up or dissolution of the Issuer or otherwise) in
respect of any sum expressed to be due to it from the Issuer shall only
constitute a discharge to the Issuer to the extent of the U.S. Dollar amount
which the recipient is able to pur-
-104-
chase with the amount so received or recovered in that other currency on the
date of that receipt or recovery (or, if it is not practicable to make that
purchase on that date, on the first date on which it is practicable to do so).
If that U.S. Dollar amount is less than the U.S. Dollar amount expressed to be
due to the recipient under the applicable Notes, the Issuer shall indemnify it
against any loss sustained by it as a result as set forth in Section 11.17(b).
In any event, the Issuer and the Guarantors shall indemnify the recipient
against the cost of making any such purchase. For the purposes of this Section,
it will be sufficient for the Holder of a Note to certify in a satisfactory
manner (indicating sources of information used) that it would have suffered a
loss had an actual purchase of U.S. Dollars been made with the amount so
received in that other currency on the date of receipt or recovery (or, if a
purchase of U.S. Dollars on such date had not been practicable, on the first
date on which it would have been practicable, it being required that the need
for a change of date be certified in the manner mentioned above). The
indemnities set forth in this Section constitute separate and independent
obligations from other obligations of the Issuer and the Guarantors, shall give
rise to a separate and independent cause of action, shall apply irrespective of
any indulgence granted by any Holder of the Notes and shall continue in full
force and effect despite any other judgment, order, claim or proof for a
liquidated amount in respect of any sum due under the Notes.
(b) The Issuer and the Guarantors, jointly and severally, covenant and
agree that the following provisions shall apply to conversion of currency in the
case of the Notes, the Guarantees and this Indenture:
(1) (A) If for the purpose of obtaining judgment in, or enforcing the
judgment of, any court in any country, it becomes necessary to convert into
a currency (the "JUDGMENT CURRENCY") an amount due in any other currency
(the "BASE CURRENCY"), then the conversion shall be made at the rate of
exchange prevailing on the Business Day before the day on which the
judgment is given or the order of enforcement is made, as the case may be
(unless a court shall otherwise determine); and (B) if there is a change in
the rate of exchange prevailing between the Business Day before the day on
which the judgment is given or an order of enforcement is made, as the case
may be (or such other date as a court shall determine), and the date of
receipt of the amount due, the Issuer and the Guarantors will pay such
additional (or, as the case may be, such lesser) amount, if any, as may be
necessary so that the amount paid in the Judgment Currency when converted
at the rate of exchange prevailing on the date of receipt will produce the
amount in the Base Currency originally due.
(2) In the event of the winding-up of the Issuer or any Guarantor at
any time while any amount or damages owing under the Notes, the Guarantees
and this Indenture, or any judgment or order rendered in respect thereof,
shall remain outstanding, the Issuer and the Guarantors shall indemnify and
hold the Holders and the Trustee harmless against any deficiency arising or
resulting from any variation in rates of exchange between (i) the date as
of which the U.S. Dollar Equivalent of the amount due or contingently due
under the Notes, the Guarantees and this Indenture (other than under this
subsection (b)(2)) is calculated for the purposes of such winding-up and
(ii) the final date for the filing of proofs of claim in such winding-up.
For the purpose of this subsection (b)(2), the final date for the filing of
proofs of claim in the winding-up of the Issuer or
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any Guarantor shall be the date fixed by the liquidator or otherwise in
accordance with the relevant provisions of applicable law as being the
latest practicable date as at which liabilities of the Issuer or such
Guarantor may be ascertained for such winding-up prior to payment by the
liquidator or otherwise in respect thereto.
(c) The obligations contained in subsections (a), (b)(1)(B) and (b)(2)
of this Section shall constitute separate and independent obligations from the
other obligations of the Issuer and the Guarantors under this Indenture, shall
give rise to separate and independent causes of action against the Issuer and
the Guarantors, shall apply irrespective of any waiver or extension granted by
any Holder or the Trustee or either of them from time to time and shall continue
in full force and effect notwithstanding any judgment or order or the filing of
any proof of claim in the winding-up of the Issuer or any Guarantor for a
liquidated sum in respect of amounts due hereunder (other than under subsection
(b)(2) above) or under any such judgment or order. Any such deficiency as
aforesaid shall be deemed to constitute a loss suffered by the Holders or the
Trustee, as the case may be, and no proof or evidence of any actual loss shall
be required by the Issuer or any Guarantor or the liquidator or otherwise or any
of them. In the case of subsection (b)(2) above, the amount of such deficiency
shall not be deemed to be reduced by any variation in rates of exchange
occurring between the said final date and the date of any liquidating
distribution.
(d) The term "RATE(S) OF EXCHANGE" shall mean the rate of exchange
quoted by Reuters at 10:00 a.m. (New York time) for spot purchases of the Base
Currency with the Judgment Currency other than the Base Currency referred to in
subsections (b)(1) and (b)(2) above and includes any premiums and costs of
exchange payable.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date first written above.
PANAMSAT CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Secretary
S-1
AccessPas, Inc.
PanAmSat Asia Carrier Services, Inc.
PanAmSat Capital Corp.
PanAmSat Communications Carrier Services, Inc.
PanAmSat Communications Japan, Inc.
PanAmSat Communications Services, Inc.
PanAmSat Europe Corporation
PanAmSat H-2 Licensee Corp.
PanAmSat India Marketing, L.L.C.
PanAmSat India, Inc.
PanAmSat International Holdings, LLC
PanAmSat International Sales, Inc.
PanAmSat International Systems Marketing, L.L.C.
PanAmSat International Systems, LLC
PanAmSat Licensee Corp.
PanAmSat Satellite Galaxy 10R, Inc.
PanAmSat Satellite Galaxy 11, Inc.
PanAmSat Satellite Galaxy 12, Inc.
PanAmSat Satellite Galaxy 13, Inc.
PanAmSat Satellite Galaxy 14, Inc.
PanAmSat Satellite Galaxy 15, Inc.
PanAmSat Satellite Galaxy 1R, Inc.
PanAmSat Satellite Galaxy 3C, Inc.
PanAmSat Satellite Galaxy 3R, Inc.
PanAmSat Satellite Galaxy 4R, Inc.
PanAmSat Satellite Galaxy 5, Inc.
PanAmSat Satellite Galaxy 9, Inc.
PanAmSat Satellite HGS 3, Inc.
PanAmSat Satellite HGS 5, Inc.
PanAmSat Satellite Leasat F5, Inc.
PanAmSat Satellite PAS 10, Inc.
PanAmSat Satellite PAS 1R, Inc.
PanAmSat Satellite PAS 2, Inc.
PanAmSat Satellite PAS 3, Inc.
PanAmSat Satellite PAS 4, Inc.
PanAmSat Satellite PAS 5, Inc.
PanAmSat Satellite PAS 6B, Inc.
PanAmSat Satellite PAS 7, Inc.
PanAmSat Satellite PAS 8, Inc.
PanAmSat Satellite PAS 9, Inc.
PanAmSat Satellite SBS 6, Inc.
PanAmSat Services, Inc.
PAS International Employment, Inc.
PAS International, LLC
Service and Equipment Corporation
Southern Satellite Corp.
Southern Satellite Licensee Corporation
USHI, LLC
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Secretary
S-2
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxxxx X. X'Xxxxxxx
-------------------------------
Name: Xxxxxx X. X'Xxxxxxx
Title: Vice President
S-3
APPENDIX A
PROVISIONS RELATING TO INITIAL NOTES,
ADDITIONAL NOTES AND EXCHANGE NOTES
1. DEFINITIONS.
1.1 DEFINITIONS.
For the purposes of this APPENDIX A the following terms shall have the
meanings indicated below:
"ADDITIONAL INTEREST" has the meaning set forth in the Registration
Rights Agreement.
"CLEARSTREAM" means Clearstream Banking, societe anonyme, or any
successor securities clearing agency.
"DEFINITIVE NOTE" means a certificated Initial Note or Exchange Note
(bearing the Restricted Notes Legend if the transfer of such Note is restricted
by applicable law) that does not include the Global Notes Legend.
"DEPOSITORY" means The Depository Trust Company, its nominees and
their respective successors.
"EUROCLEAR" means the Euroclear Clearance System or any successor
securities clearing agency.
"GLOBAL NOTES LEGEND" means the legend set forth under that caption in
the applicable Exhibit to this Indenture.
"IAI" means an institutional "accredited investor" as described in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"INITIAL PURCHASERS" means such initial purchasers party to the
purchase agreement entered into in connection with the offer and sale of the
Original Notes.
"PURCHASE AGREEMENT" means (a) the Purchase Agreement dated June 19,
2006, among the Issuer, the Subsidiary Guarantors and the Initial Purchasers and
(b) any other similar Purchase Agreement relating to Additional Notes.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"REGISTERED EXCHANGE OFFER" means the offer by the Issuer, pursuant to
the Registration Rights Agreement, to certain Holders of Initial Notes, to issue
and deliver to such Holders, in exchange for their Initial Notes, a like
aggregate principal amount of Exchange Notes registered under the Securities
Act.
App. A-1
"REGISTRATION RIGHTS AGREEMENT" means (a) the Registration Rights
Agreement dated as of July 3, 2006 among the Issuer, the Guarantors and the
Initial Purchasers relating to the Original Notes and (b) any other similar
Registration Rights Agreement relating to Additional Notes.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S NOTES" means all Initial Notes offered and sold outside
the United States in reliance on Regulation S.
"RESTRICTED GLOBAL NOTE" means a Global Note bearing the Restricted
Notes Legend.
"RESTRICTED PERIOD", with respect to any Notes, means the period of 40
consecutive days beginning on and including the later of (a) the day on which
such Notes are first offered to persons other than distributors (as defined in
Regulation S under the Securities Act) in reliance on Regulation S, notice of
which day shall be promptly given by the Issuer to the Trustee, and (b) the
Issue Date, and with respect to any Additional Notes that are Transfer
Restricted Notes, it means the comparable period of 40 consecutive days.
"RESTRICTED NOTES LEGEND" means the legend set forth in Section
2.2(f)(i) herein.
"RULE 501" means Rule 501(a)(1), (2), (3) or (7) under the Securities
Act.
"RULE 144A" means Rule 144A under the Securities Act.
"RULE 144A NOTES" means all Initial Notes offered and sold to QIBs in
reliance on Rule 144A.
"SECURITIES CUSTODIAN" means the custodian with respect to a Global
Note (as appointed by the Depository) or any successor person thereto, who shall
initially be the Trustee.
"SHELF REGISTRATION STATEMENT" means a registration statement filed by
the Issuer in connection with the offer and sale of Initial Notes pursuant to
the Registration Rights Agreement.
"TRANSFER RESTRICTED NOTES" means Definitive Notes and any other Notes
that bear or are required to bear or are subject to the Restricted Notes Legend.
"UNRESTRICTED DEFINITIVE NOTES" means Definitive Notes and any other
Notes that are not required to bear, or are not subject to, the Restricted Notes
Legend.
"UNRESTRICTED GLOBAL NOTE" means a permanent Global Note representing
Notes that do not bear the Restricted Notes Legend.
App. A-2
1.2 OTHER DEFINITIONS.
TERM: DEFINED IN SECTION:
---- ------------------
"Agent Members"............................................ 2.1(b)
"Global Notes"............................................. 2.1(b)
"Regulation S Global Notes"................................ 2.1(b)
"Rule 144A Global Notes"................................... 2.1(b)
2. THE NOTES.
2.1 FORM AND DATING; GLOBAL NOTES. (a) The Initial Notes issued on the
date hereof will be (i) offered and sold by the Issuer pursuant to the Purchase
Agreement and (ii) resold, initially only to (1) QIBs in reliance on Rule 144A
and (2) Persons other than U.S. Persons (as defined in Regulation S) in reliance
on Regulation S. Such Initial Notes may thereafter be transferred to, among
others, QIBs, purchasers in reliance on Regulation S and, except as set forth
below, IAIs in accordance with Rule 501. Additional Notes offered after the date
hereof may be offered and sold by the Issuer from time to time in accordance
with the Indenture and applicable law.
(b) GLOBAL NOTES. (i) Rule 144A Notes initially shall be represented
by one or more Notes in definitive, fully registered, global form without
interest coupons (collectively, the "RULE 144A GLOBAL NOTES"). Regulation S
Notes initially shall be represented by one or more Notes in definitive fully
registered, global form without interest coupons (collectively, the "REGULATION
S GLOBAL NOTES"). The term "GLOBAL NOTES" means, collectively, the Rule 144A
Global Notes and the Regulation S Global Notes. The Global Notes shall bear the
Global Note Legend. The Global Notes initially shall (1) be registered in the
name of the Depository or the nominee of such Depository, in each case for
credit to an account of an Agent Member, (2) be delivered to the Trustee as
custodian for such Depository and (3) bear the Restricted Notes Legend.
Members of, or direct or indirect participants in, the Depository,
Euroclear or Clearstream ("AGENT MEMBERS") shall have no rights under this
Indenture with respect to any Global Note held on their behalf by the
Depository, or the Trustee as its custodian, or under the Global Notes. The
Depository may be treated by the Issuer, the Trustee and any agent of the Issuer
or the Trustee as the absolute owner of the Global Notes for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect
to any written certification, proxy or other authorization furnished by the
Depository or impair, as between the Depository, Euroclear or Clearstream, as
the case may be, and their respective Agent Members, the operation of customary
practices governing the exercise of the rights of a Holder of any Note.
(ii) Transfers of Global Notes shall be limited to transfer in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Notes may be transferred or
exchanged for Definitive Notes only in accordance with the applicable rules and
procedures of the Depository, Euroclear or Clearstream, as the case may be, and
the provisions of Section 2.2. In addition, a Global Note shall be exchangeable
for
App. A-3
Definitive Notes if (i) the Depository (x) notifies the Issuer that it is
unwilling or unable to continue as depository for such Global Note and the
Issuer thereupon fails to appoint a successor depository within 90 days or (y)
has ceased to be a clearing agency registered under the Exchange Act, or (ii) if
requested by a Holder of a beneficial interest in such Global Notes. In all
cases, Definitive Notes delivered in exchange for any Global Note or beneficial
interests therein shall be registered in the names, and issued in any approved
denominations, requested by or on behalf of the Depository in accordance with
its customary procedures.
(iii) In connection with the transfer of a Global Note as an entirety
to beneficial owners pursuant to subsection (i) of this Section 2.1(b), such
Global Note shall be deemed to be surrendered to the Trustee for cancellation,
and the Issuer shall execute, and the Trustee shall authenticate and make
available for delivery, to each beneficial owner identified by the Depository in
writing in exchange for its beneficial interest in such Global Note, an equal
aggregate principal amount of Definitive Notes of authorized denominations.
(iv) Any Transfer Restricted Note delivered in exchange for an
interest in a Global Note pursuant to Section 2.2 shall, except as otherwise
provided in Section 2.2, bear the Restricted Notes Legend.
(v) Notwithstanding the foregoing, through the Restricted Period, a
beneficial interest in such Regulation S Global Note may be held only through
Euroclear or Clearstream unless delivery is made in accordance with the
applicable provisions of Section 2.2.
(vi) The Holder of any Global Note 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 Notes.
2.2 TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may not be
transferred as a whole except as set forth in Section 2.1(b). Global Notes will
not be exchanged by the Issuer for Definitive Notes except under the
circumstances described in Section 2.1(b)(ii). Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.08 and
2.10 of this Indenture. Beneficial interests in a Global Note may be transferred
and exchanged as provided in Section 2.2(b) or 2.2(g).
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN GLOBAL NOTES. The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depository, in accordance with the provisions of this
Indenture and the applicable rules and procedures of the Depository. Beneficial
interests in Restricted Global Notes shall be subject to restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act. Beneficial interests in Global Notes shall be transferred or
exchanged only for beneficial interests in Global Notes. Transfers and exchanges
of beneficial interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
App. A-4
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL NOTE.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Restricted Notes Legend; PROVIDED, HOWEVER,
that prior to the expiration of the Restricted Period, transfers of
beneficial interests in a Regulation S Global Note may not be made to a
U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). A beneficial interest in an Unrestricted Global Note
may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.2(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS IN
GLOBAL NOTES. In connection with all transfers and exchanges of beneficial
interests in any Global Note that are not subject to Section 2.2(b)(i), the
transferor of such beneficial interest must deliver to the Registrar (1) a
written order from an Agent Member given to the Depository in accordance
with the applicable rules and procedures of the Depository directing the
Depository to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
applicable rules and procedures of the Depository containing information
regarding the Agent Member account to be credited with such increase. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Indenture and the
Notes or otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Note pursuant to Section
2.2(g).
(iii) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED GLOBAL
NOTE. A beneficial interest in a Restricted Global Note may be transferred
to a Person who takes delivery thereof in the form of a beneficial interest
in another Restricted Global Note if the transfer complies with the
requirements of Section 2.2(b)(ii) above and the Registrar receives the
following: if the transferee will take delivery in the form of a beneficial
interest in a Global Note, then the transferor must deliver a certificate
in the form attached to the applicable Note.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A RESTRICTED
GLOBAL NOTE FOR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE. A
beneficial interest in a Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.2(b)(ii) above and the
Registrar receives the following:
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Note, a certificate from
such holder in the form attached to the applicable Note; or
App. A-5
(B) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note, a certificate from such holder in the
form attached to the applicable Note,
and, in each such case, if the Registrar so requests or if the applicable
rules and procedures of the Depository, Euroclear or Clearstream, as
applicable, so require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Restricted Notes Legend are no longer required
in order to maintain compliance with the Securities Act. If any such
transfer or exchange is effected pursuant to this subparagraph (iv) at a
time when an Unrestricted Global Note has not yet been issued, the Issuer
shall issue and, upon receipt of an written order of the Issuer in the form
of an Officers' Certificate in accordance with Section 2.01, the Trustee
shall authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the aggregate principal amount of beneficial
interests transferred or exchanged pursuant to this subparagraph (iv).
(v) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN AN UNRESTRICTED
GLOBAL NOTE FOR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN GLOBAL NOTES FOR
DEFINITIVE NOTES. A beneficial interest in a Global Note may not be exchanged
for a Definitive Note except under the circumstances described in Section
2.1(b)(ii). A beneficial interest in a Global Note may not be transferred to a
Person who takes delivery thereof in the form of a Definitive Note except under
the circumstances described in Section 2.1(b)(ii).
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL INTERESTS
IN GLOBAL NOTES. Definitive Notes shall be transferred or exchanged only for
beneficial interests in Global Notes. Transfers and exchanges of beneficial
interests in the Global Notes also shall require compliance with either
subparagraph (i), (ii) or (iii) below, as applicable:
(i) TRANSFER RESTRICTED NOTES TO BENEFICIAL INTERESTS IN RESTRICTED
GLOBAL NOTES. If any Holder of a Transfer Restricted Note proposes to
exchange such Transfer Restricted Note for a beneficial interest in a
Restricted Global Note or to transfer such Transfer Restricted Note to a
Person who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such Transfer Restricted Note proposes to
exchange such Transfer Restricted Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the form
attached to the applicable Note;
App. A-6
(B) if such Transfer Restricted Note is being transferred to a
Qualified Institutional Buyer in accordance with Rule 144A under the
Securities Act, a certificate from such Holder in the form attached to
the applicable Note;
(C) if such Transfer Restricted Note is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904 under the Securities Act, a certificate from such Holder
in the form attached to the applicable Note;
(D) if such Transfer Restricted Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate from such Holder in the form attached to the applicable
Note;
(E) if such Transfer Restricted Note is being transferred to an
IAI in reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs (B)
through (D) above, a certificate from such Holder in the form attached
to the applicable Note; or
(F) if such Transfer Restricted Note is being transferred to the
Issuer or a Subsidiary thereof, a certificate from such Holder in the
form attached to the applicable Note;
the Trustee shall cancel the Transfer Restricted Note, and increase or
cause to be increased the aggregate principal amount of the appropriate
Restricted Global Note.
(ii) TRANSFER RESTRICTED NOTES TO BENEFICIAL INTERESTS IN UNRESTRICTED
GLOBAL NOTES. A Holder of a Transfer Restricted Note may exchange such
Transfer Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note or transfer such Transfer Restricted Note to a
Person who takes delivery thereof in the form of a beneficial interest in
an Unrestricted Global Note only if the Registrar receives the following:
(A) if the Holder of such Transfer Restricted Note proposes to
exchange such Transfer Restricted Note for a beneficial interest in an
Unrestricted Global Note, a certificate from such Holder in the form
attached to the applicable Note; or
(B) if the Holder of such Transfer Restricted Notes proposes to
transfer such Transfer Restricted Note to a Person who shall take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such Holder in the form
attached to the applicable Note,
and, in each such case, if the Registrar so requests or if the applicable
rules and procedures of the Depository, Euroclear or Clearstream, as
applicable, so require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Restricted Notes Legend are no longer required
in order to
App. A-7
maintain compliance with the Securities Act. Upon satisfaction of the
conditions of this subparagraph (ii), the Trustee shall cancel the Transfer
Restricted Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note. If any such transfer or
exchange is effected pursuant to this subparagraph (ii) at a time when an
Unrestricted Global Note has not yet been issued, the Issuer shall issue
and, upon receipt of an written order of the Issuer in the form of an
Officers' Certificate, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of Transfer Restricted Notes transferred or
exchanged pursuant to this subparagraph (ii).
(iii) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted Definitive Note may
exchange such Unrestricted Definitive Note for a beneficial interest in an
Unrestricted Global Note or transfer such Unrestricted Definitive Note to a
Person who takes delivery thereof in the form of a beneficial interest in
an Unrestricted Global Note at any time. Upon receipt of a request for such
an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes. If any
such transfer or exchange is effected pursuant to this subparagraph (iii)
at a time when an Unrestricted Global Note has not yet been issued, the
Issuer shall issue and, upon receipt of an written order of the Issuer in
the form of an Officers' Certificate, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to
the aggregate principal amount of Unrestricted Definitive Notes transferred
or exchanged pursuant to this subparagraph (iii).
(iv) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL NOTES. An Unrestricted Definitive Note cannot be
exchanged for, or transferred to a Person who takes delivery thereof in the
form of, a beneficial interest in a Restricted Global Note.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.2(e), the Registrar shall register the transfer
or exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.2(e).
(i) TRANSFER RESTRICTED NOTES TO TRANSFER RESTRICTED NOTES. A Transfer
Restricted Note may be transferred to and registered in the name of a
Person who takes delivery thereof in the form of a Transfer Restricted Note
if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the
form attached to the applicable Note;
App. A-8
(B) if the transfer will be made pursuant to Rule 903 or Rule 904
under the Securities Act, then the transferor must deliver a
certificate in the form attached to the applicable Note;
(C) if the transfer will be made pursuant to an exemption from
the registration requirements of the Securities Act in accordance with
Rule 144 under the Securities Act, a certificate in the form attached
to the applicable Note;
(D) if the transfer will be made to an IAI in reliance on an
exemption from the registration requirements of the Securities Act
other than those listed in subparagraphs (A) through (C) above, a
certificate in the form attached to the applicable Note; and
(E) if such transfer will be made to the Issuer or a Subsidiary
thereof, a certificate in the form attached to the applicable Note.
(ii) TRANSFER RESTRICTED NOTES TO UNRESTRICTED DEFINITIVE NOTES. Any
Transfer Restricted Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note if the Registrar
receives the following:
(1) if the Holder of such Transfer Restricted Note proposes to
exchange such Transfer Restricted Note for an Unrestricted Definitive
Note, a certificate from such Holder in the form attached to the
applicable Note; or
(2) if the Holder of such Transfer Restricted Note proposes to
transfer such Notes to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a certificate from such
Holder in the form attached to the applicable Note,
and, in each such case, if the Registrar so requests, an Opinion of Counsel
in form reasonably acceptable to the Issuer to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Restricted Notes
Legend are no longer required in order to maintain compliance with the
Securities Act.
(iii) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE NOTES.
A Holder of an Unrestricted Definitive Note may transfer such Unrestricted
Definitive Note to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note at any time. Upon receipt of a request to
register such a transfer, the Registrar shall register the Unrestricted
Definitive Note pursuant to the instructions from the Holder thereof.
(iv) UNRESTRICTED DEFINITIVE NOTES TO TRANSFER RESTRICTED NOTES. An
Unrestricted Definitive Note cannot be exchanged for, or transferred to a
Person who takes delivery thereof in the form of, a Transfer Restricted
Note.
App. A-9
At such time as all beneficial interests in a particular Global Note
have been exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Note shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.11 of this Indenture. At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Note or for Definitive Notes, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and an endorsement
shall be made on such Global Note by the Trustee or by the Depository at the
direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note,
such other Global Note shall be increased accordingly and an endorsement shall
be made on such Global Note by the Trustee or by the Depository at the direction
of the Trustee to reflect such increase.
(f) LEGEND.
(i) Except as permitted by the following paragraphs (ii), (iii) or
(iv), each Note certificate evidencing the Global Notes and the Definitive Notes
(and all Notes issued in exchange therefor or in substitution thereof) shall
bear a legend in substantially the following form (each defined term in the
legend being defined as such for purposes of the legend only):
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (C) IT IS AN
ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER
THE SECURITIES ACT (AN "ACCREDITED INVESTOR"), (2) AGREES THAT IT WILL NOT
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED
STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
(OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN
BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
App. A-10
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF
AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS), OR (G)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN
ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT."
Each Definitive Note shall bear the following additional legend:
"IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted Note that is a
Definitive Note, the Registrar shall permit the Holder thereof to exchange such
Transfer Restricted Note for a Definitive Note that does not bear the legends
set forth above and rescind any restriction on the transfer of such Transfer
Restricted Note if the Holder certifies in writing to the Registrar that its
request for such exchange was made in reliance on Rule 144 (such certification
to be in the form set forth on the reverse of the Initial Note).
(iii) After a transfer of any Initial Notes during the period of the
effectiveness of a Shelf Registration Statement with respect to such Initial
Notes, all requirements pertaining to the Restricted Notes Legend on such
Initial Notes shall cease to apply and the requirements that any such Initial
Notes be issued in global form shall continue to apply.
(iv) Upon the consummation of a Registered Exchange Offer with respect
to the Initial Notes pursuant to which Holders of such Initial Notes are offered
Exchange Notes in exchange for their Initial Notes, all requirements pertaining
to Initial Notes that Initial Notes be
App. A-11
issued in global form shall continue to apply, and Exchange Notes in global form
without the Restricted Notes Legend shall be available to Holders that exchange
such Initial Notes in such Registered Exchange Offer.
(v) Upon a sale or transfer after the expiration of the Restricted
Period of any Initial Note acquired pursuant to Regulation S, all requirements
that such Initial Note bear the Restricted Notes Legend shall cease to apply and
the requirements requiring any such Initial Note be issued in global form shall
continue to apply.
(vi) Any Additional Notes sold in a registered offering shall not be
required to bear the Restricted Notes Legend.
(g) CANCELLATION OR ADJUSTMENT OF GLOBAL NOTE. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 of this
Indenture. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for or transferred to a Person who will take delivery
thereof in the form of a beneficial interest in another Global Note or for
Definitive Notes, the principal amount of Notes represented by such Global Note
shall be reduced accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depository at the direction of the Trustee to
reflect such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depository at the direction of the Trustee to reflect such
increase.
(h) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF NOTES.
(i) To permit registrations of transfers and exchanges, the Issuer
shall execute and the Trustee shall authenticate, Definitive Notes and Global
Notes at the Registrar's request.
(ii) No service charge shall be made for any registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to cover any
transfer tax, assessments, or similar governmental charge payable in connection
therewith (other than any such transfer taxes, assessments or similar
governmental charge payable upon exchanges pursuant to Sections 3.06, 3.10,
4.06, 4.08 and 9.05 of this Indenture).
(iii) Prior to the due presentation for registration of transfer of
any Note, the Issuer, the Trustee, a Paying Agent or the Registrar may deem and
treat the person in whose name a Note is registered as the absolute owner of
such Note for the purpose of receiving payment of principal of and interest on
such Note and for all other purposes whatsoever, whether or not such Note is
9overdue, and none of the Issuer, the Trustee, a Paying Agent or the Registrar
shall be affected by notice to the contrary.
App. A-12
(iv) All Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture shall evidence the same debt and shall be entitled to
the same benefits under this Indenture as the Notes surrendered upon such
transfer or exchange.
(i) NO OBLIGATION OF THE TRUSTEE.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Note, a member of, or a participant in the
Depository or any other Person with respect to the accuracy of the records of
the Depository or its nominee or of any participant or member thereof, with
respect to any ownership interest in the Notes or with respect to the delivery
to any participant, member, beneficial owner or other Person (other than the
Depository) of any notice (including any notice of redemption or repurchase) or
the payment of any amount, under or with respect to such Notes. All notices and
communications to be given to the Holders and all payments to be made to the
Holders under the Notes shall be given or made only to the registered Holders
(which shall be the Depository or its nominee in the case of a Global Note). The
rights of beneficial owners in any Global Note shall be exercised only through
the Depository subject to the applicable rules and procedures of the Depository.
The Trustee may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its members, participants and any
beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Note (including any transfers between or among Depository
participants, members or beneficial owners in any Global Note) other than to
require delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
App. A-13
EXHIBIT A
[FORM OF FACE OF INITIAL NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Notes Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT OR (C) IT IS AN ACCREDITED INVESTOR (AS DEFINED IN RULE
501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT (AN "ACCREDITED INVESTOR"),
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR
ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM
A-1
OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS SECURITY), (D) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS),
OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE
OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.
Each Definitive Note shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.
A-2
[FORM OF INITIAL NOTE]
No. $__________
9% Senior Note due 2016
CUSIP No. [144A: 697933 AT 6/REG S: U69804 AG 4]
ISIN No. [144A: US697933AT69/REG S: USU69804AG40]
PANAMSAT CORPORATION, a Delaware corporation, promises to pay to
[ ], or registered assigns, the principal sum [of Dollars]
[listed on the Schedule of Increases or Decreases in Global Note attached
hereto] on June 15, 2016.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
Additional provisions of this Note are set forth on the other side of
this Note.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed.
*/ If the Note is to be issued in global form, add the Global Notes Legend
and the attachment from EXHIBIT A captioned "TO BE ATTACHED TO GLOBAL
NOTES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE."
A-3
PANAMSAT CORPORATION
By:
------------------------------
Name:
Title:
Dated: [ ]
A-4
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee, certifies that this is one
of the Notes referred to in the Indenture.
By:
---------------------------------------
Authorized Signatory
A-5
[FORM OF REVERSE SIDE OF INITIAL NOTE]
9% Senior Note due 2016
1. INTEREST
(a) PANAMSAT CORPORATION, a Delaware corporation (such company, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "ISSUER"), promises to pay interest on the principal amount of
this Note at the rate per annum shown above. The Issuer shall pay interest
semiannually on June 15 and December 15 of each year, commencing December 15,
2006.(1) Interest on the Notes shall accrue from the most recent date to which
interest has been paid or duly provided for or, if no interest has been paid or
duly provided for, from and including July 3, 2006(2) until the principal hereof
is due. Interest shall be computed on the basis of a 360-day year of twelve
30-day months. The Issuer shall pay interest on overdue principal at the rate
borne by the Notes, and it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
(b) REGISTRATION RIGHTS AGREEMENT. The Holder of this Note is entitled
to the benefits of a Registration Rights Agreement, dated as of July 3, 2006,
among the Issuer, the guarantors named therein and the Initial Purchasers.
2. METHOD OF PAYMENT
The Issuer shall pay interest on the Notes to the Persons who are
registered Holders at the close of business on the June 1 and December 1 next
preceding the interest payment date even if Notes are canceled after the record
date and on or before the interest payment date (whether or not a Business Day).
The Holders must surrender Notes to a Paying Agent to collect principal
payments. The Issuer shall pay principal, premium, if any, and interest in money
of the United States of America that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the Notes
represented by a Global Note (including principal, premium, if any, and
interest) shall be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company or any successor depositary.
The Issuer will make all payments in respect of a certificated Note (including
principal, premium, if any, and interest), at the office of each Paying Agent,
except that, at the option of the Issuer, payment of interest may be made by
mailing a check to the registered address of each Holder thereof; PROVIDED,
HOWEVER, that payments on the Notes may also be made, in the case of a Holder of
at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a
U.S. dollar account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice to the
Trustee or a Paying Agent to such effect
---------------------------
(1) In the case of the Original Notes.
(2) In the case of the Original Notes.
A-6
designating such account no later than 10 days immediately preceding the
relevant due date for payment (or such other date as the Trustee may accept in
its discretion).
3. PAYING AGENT AND REGISTRAR
Initially, Xxxxx Fargo Bank, National Association, a national banking
association (the "TRUSTEE"), will act as Paying Agent and Registrar. The Issuer
may appoint and change any Paying Agent or Registrar without notice. The Issuer
or any of its domestically incorporated Wholly Owned Subsidiaries may act as
Paying Agent or Registrar.
4. INDENTURE
The Issuer issued the Notes under an Indenture dated as of July 3,
2006 (the "INDENTURE"), among the Issuer, the Guarantors named therein and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date of the Indenture (the
"TIA"). Terms defined in the Indenture and not defined herein have the meanings
ascribed thereto in the Indenture. The Notes are subject to all terms and
provisions of the Indenture, and the Holders (as defined in the Indenture) are
referred to the Indenture and the TIA for a statement of such terms and
provisions; in the event of any conflict between this Note and the Indenture,
the terms of the Indenture shall govern.
The Notes are senior unsecured obligations of the Issuer. This Note is
one of the Initial Notes referred to in the Indenture. The Notes include the
Initial Notes and any Exchange Notes issued in exchange for Initial Notes
pursuant to the Indenture. The Initial Notes and any Exchange Notes are treated
as a single class of securities under the Indenture. The Indenture imposes
certain limitations on the ability of the Issuer and its Restricted Subsidiaries
to, among other things, make certain Investments and other Restricted Payments,
pay dividends and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by such
Restricted Subsidiaries, issue or sell shares of capital stock of the Issuer and
such Restricted Subsidiaries, enter into or permit certain transactions with
Affiliates, create or incur Liens and make asset sales. The Indenture also
imposes limitations on the ability of the Issuer and each Guarantor to
consolidate or merge with or into any other Person or convey, transfer or lease
all or substantially all of its property.
To guarantee the due and punctual payment of the principal and
interest, on the Notes and all other amounts payable by the Issuer under the
Indenture and the Notes when and as the same shall be due and payable, whether
at maturity, by acceleration or otherwise, according to the terms of the Notes
and the Indenture, the Guarantors have, jointly and severally, unconditionally
guaranteed the Guaranteed Obligations on a senior unsecured basis on the terms
set forth in the Indenture.
5. OPTIONAL REDEMPTION
Except as set forth in the following two paragraphs, the Notes shall
not be redeemable at the option of the Issuer prior to June 15, 2011.
Thereafter, the Notes shall be redeemable at the option of the Issuer, in whole
at any time or in part from time to time, upon on
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not less than 30 nor more than 60 days' prior notice, at the following
redemption prices (expressed as a percentage of principal amount), plus accrued
and unpaid interest, to the redemption date (subject to the right of the Holders
of record on the relevant record date to receive interest due on the relevant
interest payment date), if redeemed during the 12-month period commencing on
June 15 of the years set forth below:
YEAR REDEMPTION PRICE
---- ----------------
2011 104.500%
2012 103.000%
2013 101.500%
2014 and thereafter 100.000%
In addition, prior to June 15, 2011, the Issuer may redeem the Notes,
at its option, in whole at any time or in part from time to time, upon not less
than 30 nor more than 60 days' prior notice mailed by first-class mail to each
Holder's registered address, at a redemption price equal to 100% of the
principal amount of the Notes redeemed plus the Applicable Premium as of, and
accrued and unpaid interest, to, the applicable redemption date (subject to the
right of the Holders of record on the relevant record date to receive interest
due on the relevant interest payment date).
Notwithstanding the foregoing, at any time and from time to time on or
prior to June 15, 2009, the Issuer may redeem in the aggregate up to 35% of the
aggregate principal amount of the Notes (calculated after giving effect to any
issuance of Additional Notes) with the net cash proceeds of one or more Equity
Offerings by the Issuer or by any Parent of the Issuer, in each case, to the
extent the net cash proceeds thereof are contributed to the common equity
capital of the Issuer or used to purchase Capital Stock (other than Disqualified
Stock) of the Issuer from it, or from the cash contribution of equity capital to
the Issuer, at a redemption price equal to 109% of the principal amount thereof,
plus accrued and unpaid interest and additional interest, if any, to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date);
PROVIDED, HOWEVER, that at least 65% of the original aggregate principal amount
of the Notes (calculated after giving effect to any issuance of Additional
Notes) must remain outstanding after each such redemption; and PROVIDED,
FURTHER, that such redemption shall occur within 90 days after the date on which
any such Equity Offering or cash contribution of equity capital to the Issuer is
consummated upon not less than 30 nor more than 60 days' notice mailed to each
holder of Notes being redeemed and otherwise in accordance with the procedures
set forth in the Indenture.
Notice of any redemption may be given prior to the completion thereof,
and any such redemption or notice may, at the Issuer's discretion, be subject to
one or more conditions precedent, including, but not limited to, in the case of
any Equity Offering, completion of the related Equity Offering.
6. SINKING FUND
The Notes are not subject to any mandatory sinking fund.
A-8
7. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Notes to be redeemed at his, her or its registered address. Notes in
denominations larger than $2,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all Notes (or portions thereof) to be redeemed on
the redemption date is deposited with a Paying Agent on or before the redemption
date and certain other conditions are satisfied, on and after such date,
interest ceases to accrue on such Notes (or such portions thereof) called for
redemption.
8. Repurchase of Notes at the Option of Holders
UPON CHANGE OF CONTROL AND ASSET SALES
Upon the occurrence of a Change of Control, each Holder shall have the
right, subject to certain conditions specified in the Indenture, to cause the
Issuer to repurchase all or any part of such Holder's Notes at a purchase price
in cash equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of repurchase (subject to the right of the Holders
of record on the relevant record date to receive interest due on the relevant
interest payment date), as provided in, and subject to the terms of, the
Indenture.
In accordance with Section 4.06 of the Indenture, the Issuer will be
required to offer to purchase Notes upon the occurrence of certain events.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are in registered form, without coupons, in denominations of
$2,000 and whole multiples of $1,000. A Holder shall register the transfer of or
exchange of Notes in accordance with the Indenture. Upon any registration of
transfer or exchange, the Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements or transfer documents and to
pay any taxes required by law or permitted by the Indenture. The Registrar need
not register the transfer of or exchange any Notes selected for redemption
(except, in the case of a Note to be redeemed in part, the portion of the Note
not to be redeemed) or to transfer or exchange any Notes for a period of 15 days
prior to a selection of Notes to be redeemed.
10. PERSONS DEEMED OWNERS
The registered Holder of this Note shall be treated as the owner of it
for all purposes.
11. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and a Paying Agent shall pay the money back to the
Issuer at its written request, subject to any abandoned property law. After any
such payment, the Holders entitled to the money
A-9
must look to the Issuer for payment as general creditors and the Trustee and a
Paying Agent shall have no further liability with respect to such monies.
12. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Issuer at any time may terminate
some of or all its obligations under the Notes and the Indenture if the Issuer
deposits with the Trustee money or U.S. Government Obligations for the payment
of principal of, and interest on the Notes to redemption, or maturity, as the
case may be.
13. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in aggregate principal amount of the outstanding Notes
(voting as a single class) and (ii) any past default or compliance with any
provisions may be waived with the written consent of the Holders of at least a
majority in principal amount of the outstanding Notes. Subject to certain
exceptions set forth in the Indenture, without the consent of any Holder, the
Issuer and the Trustee may amend the Indenture or the Notes: (i) to cure any
ambiguity, omission, defect or inconsistency, (ii) to comply with Article 5 of
the Indenture, (iii) to provide for uncertificated Notes in addition to or in
place of certificated Notes; PROVIDED that the uncertificated Notes are issued
in registered form for purposes of Section 163(f) of the Code or in a manner
such that the uncertificated Notes are described in Section 163(f)(2)(B) of the
Code, (iv) to add Guarantees with respect to the Notes or to secure the Notes,
(v) to add to the covenants of the Issuer or any Parent of the Issuer for the
benefit of the Holders or to surrender any right or power herein conferred upon
the Issuer or any Parent of the Issuer, (vi) to comply with any requirement of
the SEC in connection with qualifying the Indenture under the TIA, (vii) to
effect any provision of the Indenture (including to release any Guarantees in
accordance with the terms of the Indenture), (viii) to make any change that does
not adversely affect the rights of any Holder, (ix) to provide for the issuance
of the Exchange Notes or Additional Notes or (x) to release the Guarantee of any
Parent of the Issuer.
14. DEFAULTS AND REMEDIES
If an Event of Default occurs (other than an Event of Default relating
to certain events of bankruptcy, insolvency or reorganization of the Issuer)
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Notes, in each case, by notice to the
Issuer, may declare the principal of, premium, if any, and accrued but unpaid
interest on all the Notes to be due and payable. If an Event of Default relating
to certain events of bankruptcy, insolvency or reorganization of the Issuer
occurs, the principal of, premium, if any, and interest on all the Notes shall
become immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders. Under certain circumstances, the Holders of
a majority in principal amount of the outstanding Notes may rescind any such
acceleration with respect to the Notes and its consequences.
If an Event of Default occurs and is continuing, the Trustee shall be
under no obligation to exercise any of the rights or powers under the Indenture
at the request or direction of any of the Holders unless such Holders have
offered to the Trustee reasonable indemnity or secu-
A-10
rity against any loss, liability or expense and certain other conditions are
complied with. Except to enforce the right to receive payment of principal,
premium (if any) or interest when due, no Holder may pursue any remedy with
respect to the Indenture or the Notes unless (i) such Holder has previously
given the Trustee notice that an Event of Default is continuing, (ii) the
Holders of at least 25% in principal amount of the outstanding Notes have
requested the Trustee in writing to pursue the remedy, (iii) such Holders have
offered the Trustee reasonable security or indemnity against any loss, liability
or expense, (iv) the Trustee has not complied with such request within 60 days
after the receipt of the request and the offer of security or indemnity and (v)
the Holders of a majority in principal amount of the outstanding Notes have not
given the Trustee a direction inconsistent with such request within such 60-day
period. Subject to certain restrictions, the Holders of a majority in principal
amount of the outstanding Notes are given the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or of exercising any trust or power conferred on the Trustee. The Trustee,
however, may refuse to follow any direction that conflicts with law or the
Indenture or, subject to Section 7.01 of the Indenture, that the Trustee
determines is unduly prejudicial to the rights of any other Holder or that would
involve the Trustee in personal liability. Prior to taking any action under the
Indenture, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.
15. TRUSTEE DEALINGS WITH THE ISSUER
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with and collect obligations
owed to it by the Issuer or its Affiliates and may otherwise deal with the
Issuer or its Affiliates with the same rights it would have if it were not
Trustee.
16. NO RECOURSE AGAINST OTHERS
No director, officer, employee, incorporator or holder of any Equity
Interests in the Issuer or any Parent of the Issuer, as such, shall have any
liability for any obligations of the Issuer under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Notes by accepting a Note waives and releases all
such liability.
17. AUTHENTICATION
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
A-11
19. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
20. CUSIP NUMBERS, ISINS AND COMMON CODES
The Issuer has caused CUSIP numbers and ISINs to be printed on the
Notes and has directed the Trustee to use CUSIP numbers and ISINs in notices of
redemption as a convenience to the Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
THE ISSUER WILL FURNISH TO ANY HOLDER OF NOTES UPON WRITTEN REQUEST
AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN IT THE
TEXT OF THIS NOTE.
A-12
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
-------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note
on the books of the Issuer. The agent may substitute another to act for him.
-------------------------------------------------------------------------------
Date: Your Signature:
---------------------- ------------------------------
-------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
Signature Guarantee:
Date:
---------------------------------- ---------------------------------
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized signature
guaranty medallion program or other
signature guarantor program reasonably
acceptable to the Trustee
A-13
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED NOTES
This certificate relates to $_________ principal amount of Notes held in (check
applicable space) ____ book-entry or _____ definitive form by the undersigned.
The undersigned (check one box below):
/ / has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Note held by the Depository a Note
in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such
Global Note (or the portion thereof indicated above);
/ / has requested the Trustee by written order to exchange or register the
transfer of a Note.
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Notes are
being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) / / to the Issuer; or
(2) / / to the Registrar for registration in the name of the
Holder, without transfer; or
(3) / / pursuant to an effective registration statement under
the Securities Act of 1933; or
(4) / / inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act
of 1933) that purchases for its own account or for the
account of a qualified institutional buyer to whom
notice is given that such transfer is being made in
reliance on Rule 144A, in each case pursuant to and in
compliance with Rule 144A under the Securities Act of
1933; or
(5) / / outside the United States in an offshore transaction
within the meaning of Regulation S under the Securities
Act in compliance with Rule 904 under the Securities Act
of 1933 and such Security shall be held immediately
after the transfer through Euroclear or Clearstream
until the expiration of the Restricted Period (as
defined in the Indenture); or
(6) / / to an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act of 1933) that has furnished to the Trustee a signed
letter containing certain representations and
agreements; or
(7) / / pursuant to another available exemption from
registration provided by Rule 144 under the Securities
Act of 1933.
A-14
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any Person other than the
registered Holder thereof; PROVIDED, HOWEVER, that if box (5), (6) or (7) is
checked, the Trustee may require, prior to registering any such transfer of the
Notes, such legal opinions, certifications and other information as the Issuer
has reasonably requested to confirm that such transfer is being made pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933.
Date:
-------------------------------- -----------------------------------
Your Signature
Signature Guarantee:
Date:
---------------------------------- --------------------------------
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized signature
guaranty medallion program or other
signature guarantor program reasonably
acceptable to the Trustee
-------------------------------------------------------------------------------
A-15
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, 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 Issuer as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
Dated:
---------------------------- ---------------------------------------
NOTICE: To be executed by an executive
officer
A-16
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $[ ]. The
following increases or decreases in this Global Note have been made:
Signature of
Amount of Amount of Principal amount authorized
decrease in increase in of this Global signatory of
Principal Amount Principal Note following Trustee or
Date of of this Global Amount of this such decrease Securities
Exchange Note Global Note or increase Custodian
-------- ---------------- -------------- ----------------- -------------
A-17
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS NOTE PURCHASED BY THE ISSUER
PURSUANT TO SECTION 4.06 (ASSET SALES) OR 4.08 (CHANGE OF CONTROL) OF THE
INDENTURE, CHECK THE BOX:
ASSET SALE / / CHANGE OF CONTROL / /
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS NOTE PURCHASED BY
THE ISSUER PURSUANT TO SECTION 4.06 (ASSET SALE) OR 4.08 (CHANGE OF CONTROL) OF
THE INDENTURE, STATE THE AMOUNT ($1,000 OR AN INTEGRAL MULTIPLE THEREOF):
$-----------------
DATE: YOUR SIGNATURE:
---------------------------- --------------------------
(SIGN EXACTLY AS YOUR NAME
APPEARS ON THE OTHER SIDE OF
THIS NOTE)
SIGNATURE GUARANTEE:
-------------------------------------------
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A RECOGNIZED
SIGNATURE GUARANTY MEDALLION PROGRAM OR OTHER SIGNATURE GUARANTOR
PROGRAM REASONABLY ACCEPTABLE TO THE TRUSTEE
A-18
EXHIBIT B
[FORM OF FACE OF EXCHANGE NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
Each Definitive Note shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.
B-1
[FORM OF EXCHANGE NOTE]
No. $__________
9% Senior Note due 2016
CUSIP No. 000000 XX 0
XXXX Xx. XX000000XX00
PANAMSAT CORPORATION, a Delaware corporation, promises to pay to
[ ], or registered assigns, the principal sum [of Dollars]
[listed on the Schedule of Increases or Decreases in Global Note attached
hereto] on June 15, 2016.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
Additional provisions of this Note are set forth on the other side of
this Note.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
duly executed.
*/ If the Note is to be issued in global form, add the Global Notes Legend
and the attachment from EXHIBIT A captioned "TO BE ATTACHED TO GLOBAL
NOTES - SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE."
B-2
PANAMSAT CORPORATION
By:
---------------------------------
Name:
Title:
Dated: [ ]
B-3
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee, certifies that this is
one of the Notes
referred to in the Indenture.
By:
---------------------------------------
Authorized Signatory
B-4
[FORM OF REVERSE SIDE OF EXCHANGE NOTE]
9% Senior Note due 2016
1. INTEREST
PANAMSAT CORPORATION, a Delaware corporation (such company, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called the "ISSUER"), promises to pay interest on the principal amount of this
Note at the rate per annum shown above. The Issuer shall pay interest
semiannually on June 15 and December 15 of each year, commencing December 15,
2006.(1) Interest on the Notes shall accrue from the most recent date to which
interest has been paid or duly provided for or, if no interest has been paid or
duly provided for, from and including July 3, 2006(2) until the principal hereof
is due. Interest shall be computed on the basis of a 360-day year of twelve
30-day months. The Issuer shall pay interest on overdue principal at the rate
borne by the Notes, and it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
2. METHOD OF PAYMENT
The Issuer shall pay interest on the Notes to the Persons who are
registered Holders at the close of business on the June 1 and December 1 next
preceding the interest payment date even if Notes are canceled after the record
date and on or before the interest payment date (whether or not a Business Day).
The Holders must surrender Notes to a Paying Agent to collect principal
payments. The Issuer shall pay principal, premium, if any, and interest in money
of the United States of America that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the Notes
represented by a Global Note (including principal, premium, if any, and
interest) shall be made by wire transfer of immediately available funds to the
accounts specified by The Depository Trust Company or any successor depositary.
The Issuer will make all payments in respect of a certificated Note (including
principal, premium, if any, and interest), at the office of each Paying Agent,
except that, at the option of the Issuer, payment of interest may be made by
mailing a check to the registered address of each Holder thereof; PROVIDED,
HOWEVER, that payments on the Notes may also be made, in the case of a Holder of
at least $1,000,000 aggregate principal amount of Notes, by wire transfer to a
U.S. dollar account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice to the
Trustee or a Paying Agent to such effect designating such account no later than
10 days immediately preceding the relevant due date for payment (or such other
date as the Trustee may accept in its discretion).
-----------------------------------------
(1) In the case of the Original Notes.
(2) In the case of the Original Notes.
B-5
3. PAYING AGENT AND REGISTRAR
Initially, Xxxxx Fargo Bank, National Association, a national banking
association (the "TRUSTEE"), will act as Paying Agent and Registrar. The Issuer
may appoint and change any Paying Agent or Registrar without notice. The Issuer
or any of its domestically incorporated Wholly Owned Subsidiaries may act as
Paying Agent or Registrar.
4. INDENTURE
The Issuer issued the Notes under an Indenture dated as of July 3,
2006 (the "INDENTURE"), among the Issuer, the Guarantors named therein and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C. xx.xx. 77aaa-77bbbb) as in effect on the date of the Indenture (the
"TIA"). Terms defined in the Indenture and not defined herein have the meanings
ascribed thereto in the Indenture. The Notes are subject to all terms and
provisions of the Indenture, and the Holders (as defined in the Indenture) are
referred to the Indenture and the TIA for a statement of such terms and
provisions; in the event of any conflict between this Note and the Indenture,
the terms of the Indenture shall govern.
The Notes are senior unsecured obligations of the Issuer. This Note is
one of the Initial Notes referred to in the Indenture. The Notes include the
Initial Notes and any Exchange Notes issued in exchange for Initial Notes
pursuant to the Indenture. The Initial Notes and any Exchange Notes are treated
as a single class of securities under the Indenture. The Indenture imposes
certain limitations on the ability of the Issuer and its Restricted Subsidiaries
to, among other things, make certain Investments and other Restricted Payments,
pay dividends and other distributions, incur Indebtedness, enter into consensual
restrictions upon the payment of certain dividends and distributions by such
Restricted Subsidiaries, issue or sell shares of capital stock of the Issuer and
such Restricted Subsidiaries, enter into or permit certain transactions with
Affiliates, create or incur Liens and make asset sales. The Indenture also
imposes limitations on the ability of the Issuer and each Guarantor to
consolidate or merge with or into any other Person or convey, transfer or lease
all or substantially all of its property.
To guarantee the due and punctual payment of the principal and
interest, on the Notes and all other amounts payable by the Issuer under the
Indenture and the Notes when and as the same shall be due and payable, whether
at maturity, by acceleration or otherwise, according to the terms of the Notes
and the Indenture, the Guarantors have, jointly and severally, unconditionally
guaranteed the Guaranteed Obligations on a senior unsecured basis on the terms
set forth in the Indenture.
5. OPTIONAL REDEMPTION
Except as set forth in the following two paragraphs, the Notes shall
not be redeemable at the option of the Issuer prior to June 15, 2011.
Thereafter, the Notes shall be redeemable at the option of the Issuer, in whole
at any time or in part from time to time, upon on not less than 30 nor more than
60 days' prior notice, at the following redemption prices (expressed as a
percentage of principal amount), plus accrued and unpaid interest, to the
redemption date (subject to the right of the Holders of record on the relevant
record date to receive interest
B-6
due on the relevant interest payment date), if redeemed during the 12-month
period commencing on June 15 of the years set forth below:
YEAR REDEMPTION PRICE
---- ----------------
2011 104.500%
2012 103.000%
2013 101.500%
2014 and thereafter 100.000%
In addition, prior to June 15, 2011, the Issuer may redeem the Notes,
at its option, in whole at any time or in part from time to time, upon not less
than 30 nor more than 60 days' prior notice mailed by first-class mail to each
Holder's registered address, at a redemption price equal to 100% of the
principal amount of the Notes redeemed plus the Applicable Premium as of, and
accrued and unpaid interest, to, the applicable redemption date (subject to the
right of the Holders of record on the relevant record date to receive interest
due on the relevant interest payment date).
Notwithstanding the foregoing, at any time and from time to time on or
prior to June 15, 2009, the Issuer may redeem in the aggregate up to 35% of the
aggregate principal amount of the Notes (calculated after giving effect to any
issuance of Additional Notes) with the net cash proceeds of one or more Equity
Offerings by the Issuer or by any Parent of the Issuer, in each case, to the
extent the net cash proceeds thereof are contributed to the common equity
capital of the Issuer or used to purchase Capital Stock (other than Disqualified
Stock) of the Issuer from it, or from the cash contribution of equity capital to
the Issuer, at a redemption price equal to 109% of the principal amount thereof,
plus accrued and unpaid interest and additional interest, if any, to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date);
PROVIDED, HOWEVER, that at least 65% of the original aggregate principal amount
of the Notes (calculated after giving effect to any issuance of Additional
Notes) must remain outstanding after each such redemption; and PROVIDED,
FURTHER, that such redemption shall occur within 90 days after the date on which
any such Equity Offering or cash contribution of equity capital to the Issuer is
consummated upon not less than 30 nor more than 60 days' notice mailed to each
holder of Notes being redeemed and otherwise in accordance with the procedures
set forth in the Indenture.
Notice of any redemption may be given prior to the completion thereof,
and any such redemption or notice may, at the Issuer's discretion, be subject to
one or more conditions precedent, including, but not limited to, in the case of
any Equity Offering, completion of the related Equity Offering.
6. SINKING FUND
The Notes are not subject to any mandatory sinking fund.
B-7
7. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Notes to be redeemed at his, her or its registered address. Notes in
denominations larger than $2,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all Notes (or portions thereof) to be redeemed on
the redemption date is deposited with a Paying Agent on or before the redemption
date and certain other conditions are satisfied, on and after such date,
interest ceases to accrue on such Notes (or such portions thereof) called for
redemption.
8. Repurchase of Notes at the Option of Holders
UPON CHANGE OF CONTROL AND ASSET SALES
Upon the occurrence of a Change of Control, each Holder shall have the
right, subject to certain conditions specified in the Indenture, to cause the
Issuer to repurchase all or any part of such Holder's Notes at a purchase price
in cash equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to the date of repurchase (subject to the right of the Holders
of record on the relevant record date to receive interest due on the relevant
interest payment date), as provided in, and subject to the terms of, the
Indenture.
In accordance with Section 4.06 of the Indenture, the Issuer will be
required to offer to purchase Notes upon the occurrence of certain events.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are in registered form, without coupons, in denominations of
$2,000 and whole multiples of $1,000. A Holder shall register the transfer of or
exchange of Notes in accordance with the Indenture. Upon any registration of
transfer or exchange, the Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements or transfer documents and to
pay any taxes required by law or permitted by the Indenture. The Registrar need
not register the transfer of or exchange any Notes selected for redemption
(except, in the case of a Note to be redeemed in part, the portion of the Note
not to be redeemed) or to transfer or exchange any Notes for a period of 15 days
prior to a selection of Notes to be redeemed.
10. PERSONS DEEMED OWNERS
The registered Holder of this Note shall be treated as the owner of it
for all purposes.
11. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and a Paying Agent shall pay the money back to the
Issuer at its written request, subject to any abandoned property law. After any
such payment, the Holders entitled to the money
B-8
must look to the Issuer for payment as general creditors and the Trustee and a
Paying Agent shall have no further liability with respect to such monies.
12. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Issuer at any time may terminate
some of or all its obligations under the Notes and the Indenture if the Issuer
deposits with the Trustee money or U.S. Government Obligations for the payment
of principal of, and interest on the Notes to redemption, or maturity, as the
case may be.
13. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in aggregate principal amount of the outstanding Notes
(voting as a single class) and (ii) any past default or compliance with any
provisions may be waived with the written consent of the Holders of at least a
majority in principal amount of the outstanding Notes. Subject to certain
exceptions set forth in the Indenture, without the consent of any Holder, the
Issuer and the Trustee may amend the Indenture or the Notes: (i) to cure any
ambiguity, omission, defect or inconsistency, (ii) to comply with Article 5 of
the Indenture, (iii) to provide for uncertificated Notes in addition to or in
place of certificated Notes; PROVIDED that the uncertificated Notes are issued
in registered form for purposes of Section 163(f) of the Code or in a manner
such that the uncertificated Notes are described in Section 163(f)(2)(B) of the
Code, (iv) to add Guarantees with respect to the Notes or to secure the Notes,
(v) to add to the covenants of the Issuer or any Parent of the Issuer for the
benefit of the Holders or to surrender any right or power herein conferred upon
the Issuer or any Parent of the Issuer, (vi) to comply with any requirement of
the SEC in connection with qualifying the Indenture under the TIA, (vii) to
effect any provision of the Indenture (including to release any Guarantees in
accordance with the terms of the Indenture), (viii) to make any change that does
not adversely affect the rights of any Holder, (ix) to provide for the issuance
of the Exchange Notes or Additional Notes or (x) to release the Guarantee of any
Parent of the Issuer.
14. DEFAULTS AND REMEDIES
If an Event of Default occurs (other than an Event of Default relating
to certain events of bankruptcy, insolvency or reorganization of the Issuer)
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Notes, in each case, by notice to the
Issuer, may declare the principal of, premium, if any, and accrued but unpaid
interest on all the Notes to be due and payable. If an Event of Default relating
to certain events of bankruptcy, insolvency or reorganization of the Issuer
occurs, the principal of, premium, if any, and interest on all the Notes shall
become immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders. Under certain circumstances, the Holders of
a majority in principal amount of the outstanding Notes may rescind any such
acceleration with respect to the Notes and its consequences.
If an Event of Default occurs and is continuing, the Trustee shall be
under no obligation to exercise any of the rights or powers under the Indenture
at the request or direction of any of the Holders unless such Holders have
offered to the Trustee reasonable indemnity or secu-
B-9
rity against any loss, liability or expense and certain other conditions are
complied with. Except to enforce the right to receive payment of principal,
premium (if any) or interest when due, no Holder may pursue any remedy with
respect to the Indenture or the Notes unless (i) such Holder has previously
given the Trustee notice that an Event of Default is continuing, (ii) the
Holders of at least 25% in principal amount of the outstanding Notes have
requested the Trustee in writing to pursue the remedy, (iii) such Holders have
offered the Trustee reasonable security or indemnity against any loss, liability
or expense, (iv) the Trustee has not complied with such request within 60 days
after the receipt of the request and the offer of security or indemnity and (v)
the Holders of a majority in principal amount of the outstanding Notes have not
given the Trustee a direction inconsistent with such request within such 60-day
period. Subject to certain restrictions, the Holders of a majority in principal
amount of the outstanding Notes are given the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or of exercising any trust or power conferred on the Trustee. The Trustee,
however, may refuse to follow any direction that conflicts with law or the
Indenture or, subject to Section 7.01 of the Indenture, that the Trustee
determines is unduly prejudicial to the rights of any other Holder or that would
involve the Trustee in personal liability. Prior to taking any action under the
Indenture, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion against all losses and expenses caused by taking or not
taking such action.
15. TRUSTEE DEALINGS WITH THE ISSUER
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Issuer or its Affiliates and may otherwise deal with the Issuer or its
Affiliates with the same rights it would have if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS
No director, officer, employee, incorporator or holder of any Equity
Interests in the Issuer or any Parent of the Issuer, as such, shall have any
liability for any obligations of the Issuer under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Notes by accepting a Note waives and releases all
such liability.
17. AUTHENTICATION
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
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19. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
20. CUSIP NUMBERS, ISINS AND COMMON CODES
The Issuer has caused CUSIP numbers and ISINs to be printed on the
Notes and has directed the Trustee to use CUSIP numbers and ISINs in notices of
redemption as a convenience to the Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
THE ISSUER WILL FURNISH TO ANY HOLDER OF NOTES UPON WRITTEN REQUEST
AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN IT THE
TEXT OF THIS NOTE.
B-11
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
-------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
-------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note
on the books of the Issuer. The agent may substitute another to act for him.
-------------------------------------------------------------------------------
Date: Your Signature:
---------------------- --------------------------
-------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
Signature Guarantee:
Date:
---------------------------------- ---------------------------------
Signature must be guaranteed by a Signature of Signature Guarantee
participant in a recognized signature
guaranty medallion program or other
signature guarantor program reasonably
acceptable to the Trustee
B-12
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $[ ]. The
following increases or decreases in this Global Note have been made:
Signature of
Amount of Amount of Principal amount authorized
decrease in increase in of this Global signatory of
Principal Amount Principal Note following Trustee or
Date of of this Global Amount of this such decrease Securities
Exchange Note Global Note or increase Custodian
-------- ---------------- -------------- ----------------- -------------
B-13
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS NOTE PURCHASED BY THE ISSUER
PURSUANT TO SECTION 4.06 (ASSET SALES) OR 4.08 (CHANGE OF CONTROL) OF THE
INDENTURE, CHECK THE BOX:
ASSET SALE / / CHANGE OF CONTROL / /
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS NOTE PURCHASED BY
THE ISSUER PURSUANT TO SECTION 4.06 (ASSET SALE) OR 4.08 (CHANGE OF CONTROL) OF
THE INDENTURE, STATE THE AMOUNT ($1,000 OR AN INTEGRAL MULTIPLE THEREOF):
$-----------------
DATE: YOUR SIGNATURE:
--------------------------- -----------------------------
(SIGN EXACTLY AS YOUR NAME
APPEARS ON THE OTHER SIDE OF
THIS NOTE)
SIGNATURE GUARANTEE:
-----------------------------------------------------------
SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A RECOGNIZED
SIGNATURE GUARANTY MEDALLION PROGRAM OR OTHER SIGNATURE GUARANTOR
PROGRAM REASONABLY ACCEPTABLE TO THE TRUSTEE
B-14
EXHIBIT C
Form of
Transferee Letter of Representation
PANAMSAT CORPORATION
c/o Wells Fargo Bank, National Association
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
This certificate is delivered to request a transfer of
$_______________ principal amount of the 9% Senior Notes due 2016 (the "NOTES")
of PANAMSAT CORPORATION (the "ISSUER").
Upon transfer, the Notes would be registered in the name of the
new beneficial owner as follows:
Name:________________________
Address:_____________________
Taxpayer ID Number:__________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"SECURITIES Act")), purchasing for our own account or for the account of such an
institutional "accredited investor" at least $[ ] principal amount of the Notes,
and we are acquiring the Notes not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act. 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 Notes, and we invest
in or purchase Notes similar to the Notes in the normal course of our business.
We, and any accounts for which we are acting, are each able to bear the economic
risk of our or its investment.
2. We understand that the Notes have not been registered under 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 Notes to offer, sell or otherwise transfer
such Notes prior to the date that is two years after the later of the date of
original issue and the last date on which the Issuer or any affiliate of the
Issuer was the owner of such Notes (or any predecessor thereto) (the "RESALE
RESTRICTION TERMINATION DATE") only (a) to the Issuer, (b) pursuant to a
registration statement that has been declared effective under the Securities
Act, (c) in a transaction complying with the requirements of Rule 144A under the
Securities Act ("RULE 144A"), to a person we reasonably believe is a qualified
C-1
institutional buyer under Rule 144A (a "QIB") that is purchasing 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 within the meaning of Regulation S
under the Securities Act, (e) to an institutional "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act 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 in compliance with any applicable state Notes 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 (e) 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 Issuer and the Trustee, which
shall provide, among other things, that the transferee is an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act and that it is acquiring such Notes for investment
purposes and not for distribution in violation of the Securities Act. Each
purchaser acknowledges that the Issuer and the Trustee reserve the right prior
to the offer, sale or other transfer prior to the Resale Restriction Termination
Date of the Notes pursuant to clause (d), (e) or (f) above to require the
delivery of an opinion of counsel, certifications or other information
satisfactory to the Issuer and the Trustee.
Dated: TRANSFEREE: ,
------------------------------ -----------------------
by
----------------------------
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EXHIBIT D
[FORM OF SUPPLEMENTAL INDENTURE]
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE") dated as of [
], among [GUARANTOR] (the "NEW GUARANTOR"), a subsidiary of PANAMSAT CORPORATION
(or its successor), a Delaware corporation (the "ISSUER"), and XXXXX FARGO BANK,
NATIONAL ASSOCIATION, a national banking association, as trustee under the
indenture referred to below (the "TRUSTEE").
W I T N E S S E T H :
WHEREAS the Issuer and the existing Guarantor(s) have heretofore
executed and delivered to the Trustee an Indenture (as amended, supplemented or
otherwise modified, the "INDENTURE") dated as of July 3, 2006, providing for the
issuance of the Issuer's 9% Senior Notes due 2016 (the "NOTES"), initially in
the aggregate principal amount of $575 million;
WHEREAS Section 4.11 of the Indenture provides that under certain
circumstances the Issuer is required to cause the New Guarantor to execute and
deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantor shall unconditionally guarantee all the Issuer's obligations under the
Notes pursuant to a Guarantee on the terms and conditions set forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee and the
Issuer are authorized to execute and deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Guarantor, the Issuer, and the Trustee mutually covenant and agree for the equal
and ratable benefit of the holders of the Notes as follows:
1. DEFINED TERMS. As used in this Supplemental Indenture, terms
defined in the Indenture or in the preamble or recital hereto are used herein as
therein defined, except that the term "HOLDERS" in this Supplemental Indenture
shall refer to the term "HOLDERS" as defined in the Indenture and the Trustee
acting on behalf of and for the benefit of such Holders. The words "herein,"
"hereof" and hereby and other words of similar import used in this Supplemental
Indenture refer to this Supplemental Indenture as a whole and not to any
particular section hereof.
2. AGREEMENT TO GUARANTEE. The New Guarantor hereby agrees, jointly
and severally with all existing Guarantors (if any), to unconditionally
guarantee the Issuer's obligations under the Notes on the terms and subject to
the conditions set forth in Article 10 of the Indenture and to be bound by all
other applicable provisions of the Indenture and the Notes applying to a
Guarantor and to perform all of the obligations and agreements of a Guarantor
under the Indenture.
D-1
3. NOTICES. All notices or other communications to the New Guarantor
shall be given as provided in Section 11.02 of the Indenture.
4. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART OF
INDENTURE. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Notes heretofore or
hereafter authenticated and delivered shall be bound hereby.
5. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
6. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
7. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
8. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not effect the construction thereof.
D-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW GUARANTOR]
By:
---------------------------------------
Name:
Title:
D-3
PANAMSAT CORPORATION
By:
---------------------------------------
Name:
Title:
D-4
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, AS TRUSTEE
By:
---------------------------------------
Name:
Title:
D-5
