Exhibit 4.8
PANAMSAT CORPORATION,
as Issuer,
The GUARANTORS named herein
and
THE BANK OF NEW YORK, as Trustee
INDENTURE
Dated as of February 1, 2002
8 1/2% Senior Notes due 2012, Series A
8 1/2% Senior Notes due 2012, Series B
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
--------- ---------------------
310(a)(1)............................................. 7.10
(a)(2)............................................. 7.10
(a)(3)............................................. N.A.
(a)(4)............................................. N.A
(b)................................................ 7.08; 7.10; 11.02
(b)(1)............................................. 7.10
(b)(9)............................................. 7.10
(c)................................................ N.A.
311(a)................................................ 7.11
(b)................................................ 7.11
(c)................................................ N.A.
312(a)................................................ 2.05
(b)................................................ 11.03
(c)................................................ 11.03
313(a)................................................ 7.06
(b)(1)............................................. 7.06
(b)(2)............................................. 7.06
(c)................................................ 7.06; 11.02
(d)................................................ 7.06
314(a)................................................ 4.02; 4.08; 11.02
(b)................................................ N.A.
(c)(1)............................................. 11.04; 11.05
(c)(2)............................................. 11.04; 11.05
(c)(3)............................................. N.A.
(d)................................................ N.A.
(e)................................................ 11.05
(f)................................................ N.A.
315(a)................................................ 7.01; 7.02
(b)................................................ 7.05; 11.02
(c)................................................ 7.01
(d)................................................ 6.05; 7.01; 7.02
(e)................................................ 6.11
316(a) (last sentence)................................ 2.09
(a)(1)(A).......................................... 6.05
(a)(1)(B).......................................... 6.04
(a)(2)............................................. 8.02
(b)................................................ 6.07
(c)................................................ 8.04
317(a)(1)............................................. 6.08
(a)(2)............................................. 6.09
(b)................................................ 2.04
318(a)................................................ 11.01
N.A. means Not Applicable
--------------------
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions..................................................1
Section 1.02. Other Definitions...........................................26
Section 1.03. Incorporation by Reference of Trust Indenture Act...........27
Section 1.04. Rules of Construction.......................................27
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating.............................................28
Section 2.02. Execution and Authentication................................28
Section 2.03. Registrar and Paying Agent..................................29
Section 2.04. Paying Agent to Hold Assets in Trust........................29
Section 2.05. Noteholder Lists............................................30
Section 2.06. Transfer and Exchange.......................................30
Section 2.07. Replacement Notes...........................................30
Section 2.08. Outstanding Notes...........................................31
Section 2.09. Treasury Notes..............................................31
Section 2.10. Temporary Notes.............................................31
Section 2.11. Cancellation................................................31
Section 2.12. Defaulted Interest..........................................32
Section 2.13. Deposit of Moneys...........................................32
Section 2.14. CUSIP Number................................................32
Section 2.15. Book-Entry Provisions for Global Notes......................33
Section 2.16. Registration of Transfers and Exchanges.....................33
Section 2.17. Restrictive Legends.........................................37
Section 2.18. Issuance of Additional Notes................................38
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee..........................................39
Section 3.02. Selection of Notes to Be Redeemed...........................39
Section 3.03. Notice of Redemption........................................39
Section 3.04. Effect of Notice of Redemption..............................40
Section 3.05. Deposit of Redemption Price.................................40
Section 3.06. Notes Redeemed in Part......................................41
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes............................................41
Page
Section 4.02. Reports.....................................................41
Section 4.03. Waiver of Stay, Extension or Usury Laws.....................42
Section 4.04. Compliance Certificate; Notice of Default; Tax
Information.................................................42
Section 4.05. Payment of Taxes and Other Claims...........................43
Section 4.06. Corporate Existence.........................................43
Section 4.07. Maintenance of Office or Agency.............................43
Section 4.08. Compliance with Laws........................................43
Section 4.09. Maintenance of Properties...................................44
Section 4.10. Limitation on Indebtedness..................................44
Section 4.11. Limitation on Restricted Payments...........................46
Section 4.12. Designation of Unrestricted Subsidiaries....................48
Section 4.13. Limitation on Asset Sales...................................48
Section 4.14. Limitation on Transactions with Affiliates..................51
Section 4.15. Limitation on Liens.........................................53
Section 4.16. Maintenance of Insurance....................................53
Section 4.17. Change of Control...........................................55
Section 4.18. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries.........................56
Section 4.19. Limitation on Business Activities of the
Company and the Restricted Subsidiaries.....................58
Section 4.20. Limitation on Creation of Subsidiaries......................58
Section 4.21. Limitation on Sale and Lease-Back Transactions..............59
Section 4.22. Payments for Consent........................................59
Section 4.23. Escrow of Proceeds of Notes on Issue Date...................59
Section 4.24. Suspension of Certain Covenants in Event of
Investment Grade Rating.....................................60
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Merger or Sales of Assets...................................61
Section 5.02. Successor Person Substituted................................62
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default...........................................63
Section 6.02. Acceleration................................................65
Section 6.03. Other Remedies..............................................65
Section 6.04. Waiver of Past Defaults and Events of Default...............66
Section 6.05. Control by Majority.........................................66
Section 6.06. Limitation on Suits.........................................66
Section 6.07. Rights of Holders to Receive Payment........................67
Section 6.08. Collection Suit by Trustee..................................67
Section 6.09. Trustee May File Proofs of Claim............................67
Section 6.10. Priorities..................................................67
Section 6.11. Undertaking for Costs.......................................68
Page
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee...........................................68
Section 7.02. Rights of Trustee...........................................69
Section 7.03. Individual Rights of Trustee................................70
Section 7.04. Trustee's Disclaimer........................................70
Section 7.05. Notice of Defaults..........................................70
Section 7.06. Reports by Trustee to Holders...............................70
Section 7.07. Compensation and Indemnity..................................71
Section 7.08. Replacement of Trustee......................................72
Section 7.09. Successor Trustee by Consolidation, Merger or
Conversion..................................................72
Section 7.10. Eligibility; Disqualification...............................72
Section 7.11. Preferential Collection of Claims Against Company...........73
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders..................................73
Section 8.02. With Consent of Holders.....................................74
Section 8.03. Compliance with TIA.........................................75
Section 8.04. Revocation and Effect of Consents...........................75
Section 8.05. Notation on or Exchange of Notes............................75
Section 8.06. Trustee to Sign Amendments, etc.............................76
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Satisfaction and Discharge of Indenture.....................76
Section 9.02. Legal Defeasance............................................77
Section 9.03. Covenant Defeasance.........................................77
Section 9.04. Conditions to Legal Defeasance or Covenant
Defeasance..................................................78
Section 9.05. Application of Trust Money..................................79
Section 9.06. Repayment to the Company....................................80
Section 9.07. Reinstatement...............................................80
ARTICLE 10
GUARANTEE
Section 10.01. Unconditional Guarantee....................................80
Section 10.02. Severability...............................................81
Section 10.03. Limitation on Guarantor's Liability; Contribution..........81
Section 10.04. Successors and Assigns.....................................82
Section 10.05. No Waiver..................................................82
Section 10.06. Release of Guarantor.......................................82
Section 10.07. Execution of Supplemental Indenture for Future Guarantors..82
Section 10.08. Execution and Delivery of Guarantee........................82
Page
Section 10.09. Subordination of Subrogation and Other Rights..............83
ARTICLE 11
MISCELLANEOUS
Section 11.01. TIA Controls...............................................83
Section 11.02. Notices....................................................83
Section 11.03. Communications by Holders with Other Holders...............84
Section 11.04. Certificate and Opinion as to Conditions Precedent.........84
Section 11.05. Statements Required in Certificate and Opinion.............85
Section 11.06. Rules by Trustee and Agents................................85
Section 11.07. Business Days; Legal Holidays..............................85
Section 11.08. Governing Law..............................................85
Section 11.09. No Adverse Interpretation of Other Agreements..............85
Section 11.10. No Recourse Against Others.................................86
Section 11.11. Successors.................................................86
Section 11.12. Multiple Counterparts......................................86
Section 11.13. Table of Contents, Headings, etc. .........................86
Section 11.14. Separability...............................................86
EXHIBITS
Exhibit A. Form of Series A Note........................................A-1
Exhibit B. Form of Series B Note........................................B-1
Exhibit C. Form of Certificate to Be Delivered upon Exchange or
Registration of Transfer of Notes..........................C-1
Exhibit D. Form of Transferee Letter of Representation..................D-1
Exhibit E. Form of Certificate to Be Delivered in Connection
with Regulation S Transfers...............................E-1
Exhibit F. Form of Supplemental Indenture...............................F-1
INDENTURE, dated as of February 1, 2002, among PanAmSat
Corporation, a Delaware corporation (the "Company"), each of the Guarantors (as
defined herein) and The Bank of New York, a New York banking corporation, as
Trustee (the "Trustee").
The Company has duly authorized the creation of an issue of
Series A 8 1/2% Senior Notes due 2012 (the "Initial Notes") and Series B 8 1/2%
Senior Notes due 2012 (the "Exchange Notes"), and such Additional Notes that the
Company may from time to time choose to issue pursuant to this Indenture, and,
to provide therefor, the Company and each Guarantor has duly authorized the
execution and delivery of this Indenture. All things necessary to make the
Notes, when duly issued and executed by the Company, and authenticated and
delivered hereunder, the valid obligations of the Company, and to make this
Indenture a valid and binding agreement of the Company and the Guarantors, have
been done.
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"Acceptable Exclusions" means
(i) war or hostile or warlike action in time of peace or war,
including action in hindering, combating or defending against an
actual, impending or expected attack,
(ii) any anti-satellite device or device employing atomic or
nuclear fission or fusion or device employing laser or directed energy
beams,
(iii) insurrection, strikes, riots, civil commotion,
rebellion, revolution, civil war, usurpation or action taken by a
government or governmental authority in hindering, combating or
defending against such an occurrence, whether there be a declaration of
war or not,
(iv) confiscation by order of any government, governmental
authority or agent,
(v) nuclear reaction, nuclear radiation or radioactive
contamination of any nature, whether such loss or damage be direct or
indirect,
(vi) electromagnetic or radio frequency interference, except
for physical damage to a satellite resulting from such interference,
(vii) willful or intentional acts of the insured, its
directors and officers or its contractors intended to cause loss or
failure of a satellite,
(viii) third party liability,
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(ix) loss of market, loss of revenue and extra expenses and,
except as contemplated in the insuring agreement, incidental damages
and consequential damages,
(x) actions (including any unlawful seizure or wrongful
exercise of control of the satellite or launch vehicle) taken by one or
more Persons, whether or not agents of a sovereign power, for political
or terrorist purposes and whether the loss, damage or failure resulting
therefrom is accidental or intentional, and
(xi) such other exclusions as may be customary for policies of
such type as of the date of issuance or renewal of such coverage.
"Acquired Indebtedness" means Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary or assumed in
connection with an Asset Acquisition from such Person and not Incurred in
connection with, or in anticipation of, such Person becoming a Restricted
Subsidiary or such Asset Acquisition.
"Additional Interest" has the meaning provided for such term
in the Registration Rights Agreement.
"Additional Notes" means any newly issued Notes issued after
the Issue Date from time to time in accordance with the terms of this Indenture,
including the provisions of Section 4.10.
"Adjusted Net Assets" of any Person at any date shall mean the
lesser of the amount by which
(1) the fair value of the Property of such Person exceeds the
total amount of liabilities, including contingent liabilities (after
giving effect to all other fixed and contingent liabilities), but
excluding liabilities under the Guarantee of such Person at such date;
and
(2) the present fair salable value of the assets of such
Person at such date exceeds the amount that will be required to pay the
probable liability of such Person on its debts (after giving effect to
all other fixed and contingent liabilities and after giving effect to
any collection from any Subsidiary of such Person in respect of the
obligations of such Person under the Guarantee of such Person),
excluding Indebtedness in respect of the Guarantee of such Person, as
they become absolute and matured.
"Affiliate" means, with respect to any specific Person, any
other Person that directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such specified
Person. For the 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; provided that, for purposes of Section
4.14, beneficial ownership of at least 10% of the voting securities of a Person,
either directly or indirectly, shall be deemed to be control.
"Agent" means any Registrar, Paying Agent, co-Registrar,
Authenticating Agent or agent for service of notices and demands.
"Asset Acquisition" means (1) an Investment by the Company or
any Restricted Subsidiary in any other Person pursuant to which such Person
becomes a Restricted Subsidiary or shall be consolidated or merged with or into
the Company or any Restricted Subsidiary, or (2) any acquisition by the Company
or any
-3-
Restricted Subsidiary of the assets of any Person which constitute substantially
all of an operating unit, a division or a line of business of such Person or
which is otherwise outside of the ordinary course of business.
"Asset Sale" means any direct or indirect sale, conveyance,
transfer, lease (that has the effect of a disposition) or other disposition
(including any merger, consolidation or sale-leaseback transaction) to any
Person other than the Company or any Restricted Subsidiary in one transaction or
a series of related transactions, of:
(i) any Equity Interest in any Restricted Subsidiary; or
(ii) any other Property or assets of the Company or any
Restricted Subsidiary.
For the purposes of this definition, the term "Asset Sale"
shall not include:
(a) any Investment (including in connection with any asset
sold for other than cash) or Restricted Payment consummated in
compliance with Section 4.11 and any transaction consummated in
compliance with Section 5.01;
(b) the sale of inventory (including the sale or leasing,
including by way of sales-type lease, of transponder capacity and the
leasing or licensing of teleports) in the ordinary course of business;
(c) a transaction or series of related transactions for which
the Company or the Restricted Subsidiaries receive aggregate
consideration of less than $10,000,000;
(d) (i) the sale or factoring of accounts receivable and
related assets on customary market terms pursuant to Credit Facilities
or (ii) sales of accounts receivable (including in respect of
sales-type leases) and related assets (including contract rights) of
the type specified in the definition of the term "Qualified
Securitization Transaction" to a Securitization Entity for the fair
market value thereof; provided that any cash and Cash Equivalents
received in connection therewith shall be treated as Asset Sale
Proceeds of an Asset Sale and shall be applied as provided for in
Section 4.13;
(e) transfers of accounts receivable (including in respect of
sales-type leases) and related assets (including contract rights) of
the type specified in the definition of the term "Qualified
Securitization Transaction," or a fractional undivided interest
therein, by a Securitization Entity in a Qualified Securitization
Transaction;
(f) any disposition of (i) Property or assets that in the
reasonable judgment of the Company have become uneconomic, obsolete or
worn out or (ii) rights to construct or launch satellites;
(g) the disposition of cash or Cash Equivalents;
(h) the sale of Equity Interests in Unrestricted Subsidiaries;
(i) any exchange of Productive Assets (including transponders
or transponder capacity) for other Productive Assets owned by a Person
other than the Company and its Restricted Subsidiaries; provided that
any cash proceeds of any such exchange in excess of the amount in
clause (3) above are applied in accordance with Section 4.13 as if they
were Asset Sale Proceeds;
(j) any Event of Loss;
-4-
(k) any Sale and Lease-Back Transaction in respect of the
PAS-10 satellite; and
(l) any sale of an Excluded Satellite; provided that any cash
and Cash Equivalents received in connection with the sale of an
Excluded Satellite shall be treated as Asset Sale Proceeds of an Asset
Sale and shall be applied as provided for in Section 4.13.
For purposes of clause (d)(ii) of this definition, sale
proceeds received for the assets described in that clause shall include the fair
market value, as determined in good faith by management of the Company, of any
Equity Interest or Purchase Money Note issued by the Securitization Entity in
exchange for such assets and not in turn sold for cash proceeds by the entity
that received such Property in exchange for such assets.
"Asset Sale Proceeds" means, with respect to any Asset Sale:
(i) cash received by the Company or any Restricted Subsidiary
from such Asset Sale (including cash received as consideration for the
assumption of liabilities incurred in connection with or in
anticipation of such Asset Sale), after
(a) provision for all income or other taxes measured
by or resulting from such Asset Sale,
(b) payment of all reasonable brokerage commissions,
underwriting, legal, accounting and other reasonable fees and
expenses related to such Asset Sale,
(c) provision for minority interest holders in any
Restricted Subsidiary as a result of such Asset Sale by such
Restricted Subsidiary,
(d) payment of amounts required to be applied to the
repayment of Indebtedness secured by a Lien on the asset or
assets that were the subject of such Asset Sale, and
(e) deduction of appropriate amounts to be provided
by the Company or such Restricted Subsidiary as a reserve, in
accordance with GAAP, against any liabilities associated with
the assets sold or disposed of in such Asset Sale and retained
by the Company or such Restricted Subsidiary after such Asset
Sale, including pension and other post-employment benefit
liabilities and liabilities related to environmental matters
or against any indemnification obligations associated with the
assets sold or disposed of in such Asset Sale; and
(ii) promissory notes and other non-cash consideration
received by the Company or any Restricted Subsidiary from such Asset
Sale or other disposition upon the liquidation or conversion of such
notes or non-cash consideration into cash.
"Board of Directors" means the board of directors of the
Company or any duly authorized committee thereof.
"Board Resolution" means, with respect to the Company, a duly
adopted resolution of the Board of Directors of the Company or any committee
thereof.
"Capitalized Lease Obligations" means Indebtedness represented
by obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
-5-
"Cash Equivalents" means
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality thereof having maturities of not more than one year
from the date of acquisition;
(3) certificates of deposit and eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year or less from the
date of acquisition and overnight bank deposits, in each case with any
commercial bank or trust company having capital and surplus in excess
of $500,000,000;
(4) repurchase obligations with a term of not more than 30
days 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 maturing no more than one year from the
date of creation thereof and at the time of acquisition having a rating
of at least P-1 from Xxxxx'x or a rating of at least A-1 from S&P;
(6) readily marketable direct obligations issued by any state
of the United States of America or any political subdivision thereof
having a rating of at least "A" from either Xxxxx'x or S&P; and
(7) money market mutual or similar funds having assets in
excess of $500,000,000, substantially all of the assets of which are
comprised of assets specified in clauses (1) through (6) above.
"Certificated Notes" means one or more certificated Notes in
registered form.
A "Change of Control" means the occurrence of any of the
following events:
(i) any person (as such term is used in Sections 13(d) and
14(d) of the Exchange Act, 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 one or more
Permitted Holders, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 and 13d-5 under the Exchange Act, except that a person (as
so defined) shall be deemed to have "beneficial ownership" of all
shares that any such person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 40% of the total voting power of
the then outstanding Voting Equity Interests in the Company and the
Permitted Holders beneficially own, in the aggregate, a lesser
percentage of the total voting power of the Voting Equity Interests of
the Company than such other person and do not have the right or ability
by voting power, contract or otherwise to elect or designate for
election a majority of the Board of Directors of the Company (for
purposes of this clause (i) and clause (ii) below, the Permitted
Holders shall be deemed to beneficially own all Voting Equity Interests
of an entity (including the Company or any surviving or transferee
person referred to in clause (ii) below) held by a direct or indirect
parent entity so long as (1) no other person beneficially owns,
directly or indirectly, (a) more than 40% of the total voting power of
the then outstanding Voting Equity Interests of the parent entity and
(b) a greater percentage of the total voting power of the then
outstanding Voting Equity Interests of the parent entity than the
Permitted Holders, or (2) the Permitted
-6-
Holders shall have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the Board of
Directors of such parent entity);
(ii) the Company consolidates with, or merges with or into,
another person (as so defined, other than a Restricted Subsidiary or a
Permitted Holder), or the Company or any of its Subsidiaries sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of the assets of the Company and its Subsidiaries
(determined on a consolidated basis) to any person (as so defined,
other than the Company, any Restricted Subsidiary or a Permitted
Holder) and immediately after such transaction any person (as such term
is used in Sections 13(d) and 14(d) of the Exchange Act, 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 the Permitted Holders) "beneficially owns" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person
shall be deemed to have "beneficial ownership" of all shares that any
such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time, and subject to the
foregoing clause (i)) more than 40% of the total voting power of the
then outstanding Voting Equity Interests in the surviving or transferee
person;
(iii) the Company is liquidated or dissolved or adopts a plan
of liquidation or dissolution (whether or not otherwise in compliance
with the provisions of this Indenture); or
(iv) a majority of the members of the Board of Directors of
the Company shall consist of Persons who are not Continuing Members.
For the avoidance of doubt, and without limitation, the
formation, by merger or otherwise, of a parent entity of the Company shall not
constitute a Change of Control if, under the provisions of the parenthetical of
clause (i) above, all Voting Equity Interests of the Company held by such parent
entity are deemed beneficially owned by the Permitted Holders.
"Commission" means the United States Securities and Exchange
Commission.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces such party pursuant to Article 5
and thereafter means the successor.
"Consolidated Income Tax Expense" means, with respect to the
Company for any period, the provision for federal, state, local and foreign
taxes based on income or profits (including franchise taxes) payable by the
Company and the Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to the
Company and the Restricted Subsidiaries for any period, without duplication, the
sum of:
(i) the interest expense of the Company and the Restricted
Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP, including amortization of original issue discount
on any Indebtedness and the interest portion of any deferred payment
obligation and after taking into account the effect of elections made
under any Hedging Agreements, however denominated, with respect to such
Indebtedness, but excluding amortization of debt issuance costs;
(ii) the interest component of Capitalized Lease Obligations
paid or accrued by the Company and the Restricted Subsidiaries during
such period as determined on a consolidated basis in accordance with
GAAP; and
-7-
(iii) dividends and distributions in respect of Disqualified
Equity Interests actually paid in cash by the Company and the
Restricted Subsidiaries and dividends and distributions in respect of
Preferred Equity Interests actually paid in cash by any Restricted
Subsidiary, in each case, during such period as determined on a
consolidated basis in accordance with GAAP.
For purposes of this definition, interest on a Capitalized
Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined by the Company to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP.
"Consolidated Net Income" means, with respect to any period,
the net income (loss) of the Company and the Restricted Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP, adjusted, to
the extent included in calculating such net income (loss), by excluding, without
duplication:
(i) all extraordinary, unusual or nonrecurring items of income
or expense and of gains or losses and all gains and losses from the
sale or other disposition of assets out of the ordinary course of
business or from Events of Loss or other casualties or condemnations
(net of taxes, fees and expenses relating to the transaction giving
rise thereto) for such period;
(ii) that portion of such net income (loss) derived from or in
respect of Investments in Persons other than any Restricted Subsidiary,
except to the extent actually received in cash by the Company or any
Restricted Subsidiary;
(iii) the portion of such net income (loss) allocable to
minority interests in unconsolidated Persons for such period, except to
the extent actually received in cash by the Company or any Restricted
Subsidiary;
(iv) except for purposes of determining the Debt to Operating
Cash Flow Ratio, net income (loss) of any other Person combined with
the Company or any Restricted Subsidiary on a "pooling of interests"
basis attributable to any period prior to the date of combination;
(v) net income (loss) of any Restricted Subsidiary to the
extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that net income (loss)
is not at the date of determination permitted without any prior
governmental approval (which has not been obtained) or, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or the holders of
its Equity Interests;
(vi) the cumulative effect of a change in accounting
principles after the Issue Date;
(vii) net income (loss) attributable to discontinued
operations;
(viii) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time following the Issue Date;
and
(ix) except for purposes of determining the Debt to Operating
Cash Flow Ratio, in the case of a successor to the Company by
consolidation or merger or as a transferee of the Company's assets, any
earnings of the successor corporation prior to such consolidation,
merger or transfer of assets.
-8-
"Consolidated Tangible Assets" means, as at any date of
determination, the total assets, less goodwill and other intangibles, shown on
the balance sheet of the Company and the Restricted Subsidiaries as of the most
recent date for which such a balance sheet is available, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Total Indebtedness" means, as at any date of
determination, an amount equal to the sum of (i) the aggregate amount of all
outstanding Indebtedness of the Company and the Restricted Subsidiaries and (ii)
the aggregate amount of all outstanding Disqualified Equity Interests in the
Company and all Preferred Equity Interests in the Restricted Subsidiaries, with
the amount of such Disqualified Equity Interests and Preferred Equity Interests
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 Equity Interest or Preferred Equity Interest that does not have
a fixed repurchase price shall be calculated in accordance with the terms of
such Disqualified Equity Interest or Preferred Equity Interest as if such
Disqualified Equity Interest or Preferred Equity Interest 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 Equity Interest or Preferred Equity
Interest, such fair market value shall be determined reasonably and in good
faith by the Board of Directors.
"Continuing Member" means, as of the date of determination,
any Person who:
(1) was a member of the Board of Directors of the Company on
the Issue Date;
(2) was nominated for election or elected to the Board of
Directors of the Company with the affirmative vote of a majority of the
Continuing Members who were members of the Board of Directors at the
time of such nomination or election; or
(3) is a representative of, or was approved by, a Permitted
Holder.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 0 Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Credit Facilities" means, with respect to the Company and the
Restricted Subsidiaries, one or more debt facilities (including the Senior
Credit Facility) or commercial paper facilities with banks, insurance companies
or other institutional lenders providing for revolving credit loans, term loans,
notes, factoring or other receivables financing (including through the sale or
factoring of receivables to such lenders or by way of a Qualified Securitization
Transaction) or letters of credit or other credit facilities, in each case, as
amended, restated, modified, renewed, refunded, replaced or refinanced in whole
or in part from time to time.
"Cumulative Credit" means the sum of:
(i) the aggregate Net Cash Proceeds, and the fair market value
of any Property other than cash (as determined in good faith by the
Board of Directors), received by the Company from the issue or sale
(other than to a Restricted Subsidiary) of any class of Equity
Interests in the Company after the Issue Date, other than (A)
Disqualified Equity Interests or (B) Equity Interests to the extent the
Net Cash Proceeds therefrom are applied as provided for in clause (i)
of the definition of "Specified Affiliate Payments"; plus
-9-
(ii) the principal amount (or accreted amount (determined in
accordance with GAAP), if less) of any Indebtedness, or the liquidation
preference or maximum fixed repurchase price, as the case may be, of
any Disqualified Equity Interests, of the Company issued after the
Issue Date (other than any such Indebtedness or Disqualified Equity
Interests to the extent issued to a Restricted Subsidiary), which has
been converted into or exchanged for Equity Interests in the Company
(other than Disqualified Equity Interests); plus
(iii) cumulative Operating Cash Flow from and after the first
day of the fiscal quarter during which the Issue Date occurs, to the
end of the fiscal quarter immediately preceding the date of the
proposed Restricted Payment, or, if cumulative Operating Cash Flow for
such period is negative, minus the amount by which cumulative Operating
Cash Flow is less than zero; plus
(iv) to the extent not already included in Operating Cash
Flow, 100% of the aggregate net cash proceeds received by the Company
or a Restricted Subsidiary since the Issue Date from (i) Investments
(other than Permitted Investments), whether through interest payments,
principal payments, dividends or other distributions and payments, or
the sale or other disposition (other than to the Company or a
Restricted Subsidiary) thereof made by the Company and the Restricted
Subsidiaries and (ii) a cash dividend from, or the sale (other than to
the Company or a Restricted Subsidiary) of the stock of, an
Unrestricted Subsidiary; plus
(v) if any Unrestricted Subsidiary is redesignated as a
Restricted Subsidiary, the fair market value of all Investments by the
Company and the Restricted Subsidiaries in such Subsidiary as
determined in good faith by the Board of Directors.
Notwithstanding anything to the contrary above, any repayments
of Restricted Payments made pursuant to clause (6) of the second paragraph of
Section 4.11 shall be excluded from the calculation of Cumulative Credit.
"Cumulative Interest Expense" means, in respect of any
Restricted Payment, the aggregate amount of Consolidated Interest Expense of the
Company and the Restricted Subsidiaries for the period from and after the first
day of the fiscal quarter during which the Issue Date occurs, to the end of the
fiscal quarter immediately preceding the proposed Restricted Payment.
"Debt to Operating Cash Flow Ratio" means the ratio of (i) the
Consolidated Total Indebtedness as of the date of calculation (the
"Determination Date") to (ii) the Operating Cash Flow for the four full
consecutive fiscal quarters immediately preceding such Determination Date for
which financial information is available (the "Measurement Period"). For
purposes of calculating Operating Cash Flow for the Measurement Period ending
immediately prior to the relevant Determination Date:
(a) any Person that is a Restricted Subsidiary on the
Determination Date (or would become a Restricted Subsidiary on such
Determination Date in connection with the transaction that requires the
determination of such Operating Cash Flow) will be deemed to have been
a Restricted Subsidiary at all times during such Measurement Period;
(b) any Person that is not a Restricted Subsidiary on such
Determination Date (or would cease to be a Restricted Subsidiary on
such Determination Date in connection with the transaction that
requires the determination of such Operating Cash Flow) will be deemed
not to have been a Restricted Subsidiary at any time during such
Measurement Period; and
(c) if since the beginning of the Measurement Period, the
Company, any Restricted Subsidiary or any Person that subsequently
became a Restricted Subsidiary or was merged with or into
-10-
the Company or any Restricted Subsidiary since the beginning of the
Measurement Period, shall have in any manner (x) acquired (including
through an Asset Acquisition or the commencement of activities
constituting such operating business) or (y) disposed of (including by
way of an Asset Sale or the termination or discontinuance of activities
constituting such operating business) any operating business in each
case during such Measurement Period or after the end of such period and
on or prior to such Determination Date, such calculation will be made
on a pro forma basis in accordance with GAAP and giving effect to any
increase or reduction of any associated Operating Cash Flow
attributable thereto (including any pro forma adjustments (including
cost-savings adjustments) calculated on a basis consistent with
Regulation S-X under the Securities Act), as if, in the case of an
Asset Acquisition or the commencement of activities constituting such
operating business, all such transactions had been consummated on the
first day of such Measurement Period, and, in the case of an Asset Sale
or termination or discontinuance of activities constituting such
operating business, all such transactions had been consummated prior to
the first day of such Measurement Period.
For purposes of this definition, whenever pro forma effect is
to be given to a transaction, the pro forma calculations shall be made in good
faith by a financial or accounting officer of the Company.
"Default" means an event or condition the occurrence of which
is, or with the lapse of time or the giving of notice or both would be, an Event
of Default.
"Depository" means, with respect to the Notes issued in the
form of one or more Global Notes, The Depository Trust Company or another Person
designated as Depository by the Company, which Person must be a clearing agency
registered under the Exchange Act.
"Disqualified Equity Interest" means any Equity Interest
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof (except, in each such case, upon the
occurrence of a change of control) in whole or in part, or is exchangeable into
Indebtedness, on or prior to the earlier of the Maturity Date of the Notes or
the date on which no Notes remain outstanding.
"EchoStar" means EchoStar Communications Corporation, a Nevada
corporation, and its successors and assigns.
"Escrow Account" means the escrow account created pursuant to
the Escrow Agreement.
"Escrow Agreement" means the Escrow and Pledge Agreement dated
as of the Issue Date among the Company, The Bank of New York, as Securities
Intermediary (as defined therein), and as Trustee, as the same may be amended
from time to time.
"Equity Interest" in any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) corporate stock or other
equity participations, including partnership interests, whether general or
limited, and membership interests in such Person, including any Preferred Equity
Interests.
"Event of Loss Proceeds" means, with respect to any Event of
Loss, all satellite insurance proceeds received by the Company or any of the
Restricted Subsidiaries in connection with such Event of Loss, after
(i) provision for all income or other taxes measured by or
resulting from such Event of Loss,
-11-
(ii) payment of all reasonable legal, accounting and other
reasonable fees and expenses related to such Event of Loss,
(iii) 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,
(iv) provision for payments to Persons who own an interest in
the satellite (including any transponder thereon) in accordance with
terms of the agreement(s) governing the ownership of such interest by
such Person (other than payments to insurance carriers required to be
made based on the future revenues generated from such satellite), and
(v) deduction of appropriate amounts to be provided by the
Company 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.
"Excess Proceeds" means any Asset Sale Proceeds (or Event of
Loss Proceeds) that are not applied or invested (or committed to be invested) as
provided in clause (iii)(a) of the first paragraph of Section 4.13.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" has the meaning provided in the preamble to
this Indenture.
"Excluded Satellite" means (a) the satellites of the Company
and the Restricted Subsidiaries identified as XXX-0, XXX-0, XXX-0, XXX-0, Xxxxxx
IIIR and Galaxy VIIIi and (b) any other satellite that (i) is not expected or
intended, in the good faith determination of the Board of Directors of the
Company and evidenced by a Board Resolution delivered to the Trustee, to earn
future revenues from the operation of such satellite in excess of $10,000,000 in
any fiscal year, and (ii) has suffered loss or damage such that (1) the
procurement of in-orbit insurance therefor in the amount 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) such
in-orbit insurance would be subject to exclusions or limitations of coverage
that would make the terms of the insurance commercially unreasonable, in either
case, as determined in good faith by the Board of Directors and evidenced by a
Board Resolution delivered to the Trustee.
"Existing Notes" means each of the (i) 6% Notes due 2003, (ii)
6 1/8% Notes due 2005, (iii) 6 3/8% Notes due 2008 and (iv) 6 7/8% Debentures
due 2028 of the Company issued pursuant to the Existing Notes Indenture and
outstanding on the Issue Date.
"Existing Notes Indenture" means the Indenture dated as of
January 16, 1998 by and between the Company and The Chase Manhattan Bank, as
trustee, pursuant to which the Existing Notes were issued.
"fair market value" means, unless otherwise indicated, with
respect to any asset or Property, the price which could be negotiated in an
arm's length, free market transaction, between a willing seller and a willing
and able buyer, neither of whom is under undue pressure or compulsion to
complete the transaction. Fair market value shall, unless otherwise indicated,
be determined by the Board of Directors of the Company acting reasonably and in
good faith and shall be evidenced by a Board Resolution.
"Foreign Restricted Subsidiary" means a Restricted Subsidiary
that is incorporated in a jurisdiction other than the United States or a state
thereof or the District of Columbia and with respect to which
-12-
more than 80% of any of its sales, earnings or assets (determined on a
consolidated basis in accordance with GAAP) are located in or generated or
derived from operations located in jurisdictions outside of the United States of
America.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, which are in effect from time to
time.
"Guarantee" means the guarantee by each Guarantor of the
obligations of the Company with respect to the Notes.
"Guarantor" means any Restricted Subsidiary of the Company
that guarantees the Company's obligations under this Indenture and the Notes.
"Hedging Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, foreign exchange
contract, currency swap agreement or other similar agreement providing for the
transfer or mitigation of interest rate or currency risks either generally or
under specific contingencies.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under any Hedging Agreement.
"Holder" or "Noteholder" means a Person in whose name a Note
is registered on the Registrar's books.
"Holding Company" means (i) the Company following the
consummation of the transaction contemplated by clause (B)(2) of the second
paragraph of Section 5.01, following which a Restricted Subsidiary shall succeed
to all or substantially all of the assets of the Company and the Company shall
be released from all of its obligations under the Notes and this Indenture, and
(ii) any Person formed primarily for the purpose of acting as a parent holding
company for the Company and which has no significant assets or operations other
than through its ownership of the Company.
"Xxxxxx Electronics" means Xxxxxx Electronics Corporation, a
Delaware corporation, and its successors and assigns.
"Incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (including by conversion,
exchange or otherwise), assume, guarantee or otherwise become liable in respect
of such Indebtedness or other obligation (and "Incurrence," "Incurred" and
"Incurring" shall have the meanings correlative to the foregoing). Indebtedness
of any Person or any of its Subsidiaries existing at the time such Person
becomes a Restricted Subsidiary (or is merged into or consolidates with the
Company or any Restricted Subsidiary), whether or not such Indebtedness was
incurred in connection with, or in contemplation of such Person becoming a
Restricted Subsidiary (or being merged into or consolidated with the Company or
any Restricted Subsidiary), shall be deemed Incurred at the time any such Person
becomes a Restricted Subsidiary or merges into or consolidates with the Company
or any Restricted Subsidiary.
"Indebtedness" means, with respect to any Person, without
duplication, any indebtedness, secured or unsecured, contingent or otherwise, in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), or evidenced
by bonds, notes, debentures or similar instruments or letters of credit or
representing the deferred and unpaid balance of the
-13-
purchase price of Property or services (but excluding trade payables and other
accrued liabilities arising in the ordinary course of business) if and to the
extent any of the foregoing indebtedness would appear as a liability upon a
balance sheet of such Person prepared in accordance with GAAP, and shall also
include, to the extent not otherwise included (but without duplication):
(i) any Capitalized Lease Obligations;
(ii) obligations secured by a Lien to which any Property or
asset owned or held by such Person, other than Equity Interests of any
Unrestricted Subsidiary, is subject, whether or not the obligation or
obligations secured thereby shall have been assumed;
(iii) obligations for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction;
(iv) guarantees of items of other Persons which would be
included within this definition for such other Persons (whether or not
such items would appear upon the balance sheet of the guarantor); and
(v) Hedging Obligations of such Person in respect of any of
the foregoing (if and only to the extent any amount due in respect of
such Hedging Obligations would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP).
Notwithstanding the foregoing, Indebtedness shall not include:
(a) obligations and liabilities in respect of synthetic lease
facilities that are accounted for as operating leases in accordance
with GAAP (including guarantees of loans then outstanding by the
lenders under any such facility to the lessor thereunder);
(b) obligations of such Person arising from agreements of such
Person providing for indemnification, adjustment of purchase price or
similar obligations, in each case, incurred or assumed in connection
with the disposition of any business, assets or a Subsidiary, 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; provided, however, that:
(i) such obligations are not reflected on the balance
sheet of such Person (contingent obligations referred to in a
footnote to financial statements and not otherwise reflected
on the balance sheet will not be deemed to be reflected on
such balance sheet for purposes of this definition); and
(ii) the maximum assumable liability in respect of
all such obligations shall at no time exceed the gross
proceeds including non-cash proceeds (the fair market value of
such non-cash proceeds being measured at the time received and
without giving effect to any subsequent changes in value)
actually received by such Person in connection with such
disposition;
(c) deferred or prepaid revenues;
(d) purchase price holdbacks in connection with purchasing in
the ordinary course of business of such Person;
-14-
(e) Standard Securitization Undertakings;
(f) 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 revenues 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; or
(g) any obligations to make progress or incentive 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.
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Initial Notes" has the meaning provided in the preamble to
this Indenture.
"Initial Purchasers" refers to Credit Suisse First Boston
Corporation, Deutsche Banc Alex. Xxxxx Inc., ABN AMRO Incorporated and XX Xxxxx
Securities Corporation.
"In-orbit Spare Satellite" means a satellite that:
(i) shall meet or exceed the performance requirements to which
the customer would be entitled pursuant to its service agreement with
respect to each satellite being protected (or the C-band or Ku-band
payloads separately on a hybrid C/Ku-band satellite; provided both
payloads on such satellite are so protected or insured by insurance in
accordance with Section 4.16); and
(ii) to the extent necessary to serve the present and future
intended customer base for the satellite being protected (or the C-band
or Ku-band payloads separately on a hybrid C/Ku-band satellite;
provided both payloads on such satellite are so protected or insured by
insurance in accordance with Section 4.16), shall have a similar or
better footprint coverage and power levels and similar operating radio
frequencies when compared to each satellite (or the C-band or Ku-band
payloads separately on a hybrid C/Ku-band satellite; provided both
payloads on such satellite are so protected or insured by insurance in
accordance with Section 4.16) for which it shall be maintained as an
In-orbit Spare Satellite;
provided that a satellite that has both C-band and Ku-band payloads shall be
deemed to be an "In-orbit Spare Satellite" with respect to each payload as to
which it meets the foregoing criteria as applied to such payload separately.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) promulgated under the Securities Act.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"Investment" means, directly or indirectly, any advance, loan
or other extension of credit (but excluding guarantees of Indebtedness permitted
to be Incurred under this Indenture) or capital contribution to (by means of
transfers of Property to others, payments for Property or services for the
account or use of others or otherwise), or the acquisition, by purchase or
otherwise, of any stock, bonds, notes, debentures, partnership, membership or
joint venture interests or other securities or other evidence of beneficial
interest of any Person. If
-15-
the Company or any Restricted Subsidiary sells or otherwise disposes of any
Voting Equity Interest in any direct or indirect Restricted Subsidiary such
that, after giving effect to such sale or disposition, the Company no longer
owns, directly or indirectly, greater than 50% of the outstanding Voting Equity
Interests in such Restricted Subsidiary, the Company shall be deemed to have
made an Investment on the date of any such sale or disposition equal to the fair
market value of the Equity Interests in such former Restricted Subsidiary not
sold or disposed of. Notwithstanding the foregoing, payments made under
contracts to construct, launch, operate or insure satellites which contracts are
entered into in the ordinary course of business shall not constitute
Investments.
"Investment Grade Rating" means a rating equal to or higher
than "Baa3" (or the equivalent) by Moody's and "BBB-" (or the equivalent) by
S&P.
"Issue Date" means February 1, 2002.
"Lien" means any mortgage, pledge, lien, charge, security
interest, hypothecation, assignment for security or encumbrance of any kind
(including any conditional sale or capital lease or other title retention
agreement, any lease in the nature thereof or any agreement to give a security
interest).
"Maturity Date" means February 1, 2012.
"Moody's" means Xxxxx'x Investors Service, Inc. or its
successors.
"Net Cash Proceeds" means, with respect to any issuance or
sale of Equity Interests, the proceeds in the form of cash or Cash Equivalents
received by the Company of such issuance or sale and net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof; provided, however, if such proceeds are from the issuance or
sale of Equity Interests of any direct or indirect parent holding company, of
the Company such cash proceeds shall only constitute "Net Cash Proceeds" to the
extent received by the Company as a contribution to its common equity capital.
"Net Transponder Capacity" means the aggregate transponder
transmission capacity for all in-orbit transponders then owned by the Company
and the Restricted Subsidiaries less the amount of capacity relating to
transponders which are not at such time available for use whether due to legal,
regulatory, technical or contractual restrictions or otherwise.
"Non-Guarantor Subsidiary" means any Restricted Subsidiary
that is not, and is not required to be, a Guarantor of the Notes.
"Non-Recourse Indebtedness" means Indebtedness of a Person (i)
as to which neither the Company nor any of the Restricted Subsidiaries (a)
provides any guarantee or direct or indirect credit support of any kind
(including any undertaking, guarantee, indemnity, agreement or instrument that
would constitute Indebtedness) or (b) is directly or indirectly liable (as a
guarantor or otherwise); and (ii) the Incurrence of which will not result in any
recourse against any of the assets of either the Company or any Restricted
Subsidiary; provided, however, that (1) the Company or any Restricted Subsidiary
may make a loan to an Unrestricted Subsidiary, or guarantee a loan made to an
Unrestricted Subsidiary, if such loan or guarantee is permitted by Section 4.11
at the time of the making of such loan or guarantee, and such loan or guarantee
shall not constitute Indebtedness which is not Non-Recourse Indebtedness, and
(2) no Indebtedness shall fail to constitute Non-Recourse Indebtedness as a
result of any Standard Securitization Undertaking.
-16-
"Notes" means the Initial Notes, the Exchange Notes and the
Additional Notes, if any, treated as a single class of securities, as amended or
supplemented from time to time in accordance with the terms hereof, that are
issued pursuant to this Indenture.
"Off-Balance Sheet Financing Amount" means at any date, with
respect to any Qualified Securitization Transaction, that portion of the
Non-Recourse Indebtedness of the related Securitization Entity (other than
Standard Securitization Undertakings) that is attributable to assets of the type
described in the definition of the term "Qualified Securitization Transaction"
transferred to such Securitization Entity by or on behalf of the Company and its
Subsidiaries.
"Offering Circular" means the offering circular dated January
25, 2002 pursuant to which the Notes were originally offered.
"Officers" means any of the following: Chairman, President,
Chief Executive Officer, Treasurer, any Assistant Treasurer, Chief Financial
Officer, any Executive Vice President, any Senior Vice President, any Vice
President, any Assistant Vice President, Secretary or any Assistant Secretary.
"Officers' Certificate" means a certificate signed by two
Officers, solely in their capacity as such.
"Operating Cash Flow" means, with respect to the Company and
the Restricted Subsidiaries on a consolidated basis, for any period, an amount
equal to Consolidated Net Income for such period
(1) increased (without duplication) by the sum of:
(i) Consolidated Income Tax Expense accrued for such period to
the extent deducted in determining Consolidated Net Income for such
period;
(ii) Consolidated Interest Expense for such period to the
extent deducted in determining Consolidated Net Income for such period;
(iii) depreciation, amortization and any other non-cash items
for such period to the extent deducted in determining Consolidated Net
Income for such period (other than any non-cash item which requires the
accrual of, or a reserve for, cash charges for any future period) of
the Company and the Restricted Subsidiaries (including amortization of
capitalized debt issuance costs for such period and any non-cash
compensation expense realized for grants of stock options or other
rights to officers, directors and employees), all of the foregoing
determined on a consolidated basis in accordance with GAAP, and
decreased by non-cash items (other than items referred to in clause (2)
below) to the extent they increase Consolidated Net Income (including
the partial or entire reversal of reserves taken in prior periods but
excluding reversals of accruals or reserves for cash charges taken in
prior periods) for such period;
(iv) collections on investments in sales-type leases during
such period, to the extent not otherwise included in Consolidated Net
Income for such period; and
(v) an amount equal to the reduction or elimination of the tax
loss carry-forward available to the Company as a result of the tax
sharing arrangements between the Company and Xxxxxx Electronics which
reduction or elimination results from the consummation of the pending
acquisition by EchoStar of Xxxxxx Electronics and/or the
-17-
Company to the extent such amount is deducted in determining
Consolidated Net Income for such period; and
(2) decreased by any gross profit on sales-type leases
included in Consolidated Net Income for such period.
"Opinion of Counsel" means a written opinion from legal
counsel who may be an employee of or counsel to the Company or the Trustee. As
to matters of fact, an Opinion of Counsel may conclusively rely on an Officers'
Certificate, without any independent investigation.
"Other Permitted Liens" means:
(i) Liens imposed by law, such as carriers', warehousemen's
and mechanics' Liens and other similar Liens arising in the ordinary
course of business which secure payment of obligations that are not yet
delinquent or that are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted and for which
any appropriate reserve or provision shall have been made in accordance
with GAAP;
(ii) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good
faith by appropriate proceedings promptly instituted and diligently
conducted and for which any appropriate reserve or provision shall have
been made in accordance with GAAP;
(iii) Liens related to Capitalized Lease Obligations,
Indebtedness under a Sale and Lease-Back Transaction or Purchase Money
Indebtedness, in each case Incurred for the purpose of financing or
refinancing all or any part of the lease, purchase price or cost of
acquisition, construction, installation or improvement of property,
plant or equipment used or useful in the business of the Company or any
Restricted Subsidiary (whether through the direct purchase of assets or
the Equity Interests of any Person owning such assets and whether such
Indebtedness is owed to the seller or the Person carrying out such
construction, installation or improvement); provided that any such Lien
encumbers only the asset or assets so financed, refinanced, leased,
purchased, acquired, constructed, installed or improved (including
assets owned by the Person whose Equity Interests are being purchased);
(iv) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation obligations and
general liability exposure, unemployment insurance and other types of
social security;
(v) bankers' Liens, right of setoff and Liens to secure the
performance of statutory obligations, surety or appeal bonds,
performance bonds, deposits to secure the performance of bids, trade
contracts, government contracts, leases or licenses or other
obligations of a like nature incurred in the ordinary course of
business (including landlord Liens on leased properties);
(vi) deposits made in the ordinary course of business to
secure liability to insurance carriers;
(vii) Liens securing reimbursement obligations with respect to
letters of credit which encumber documents, the goods covered by such
documents and other Property relating to such letters of credit and the
products and proceeds thereof;
-18-
(viii) Liens arising by reason of a judgment, decree or court
order, to the extent not otherwise resulting in an Event of Default,
and any Liens that are required to protect or enforce any rights in any
administrative, arbitration or other court proceedings in the ordinary
course of business;
(ix) Liens securing Hedging Obligations entered into in
respect of Indebtedness permitted to be secured in accordance with the
terms of this Indenture;
(x) any provision for the retention of title to an asset by
the vendor or transferor of such asset which asset is acquired by the
Company or any Restricted Subsidiary in a transaction entered into in
the ordinary course of business of the Company or such Restricted
Subsidiary;
(xi) Liens that secure Indebtedness (A) of Foreign Restricted
Subsidiaries or (B) of the Company or any of its Restricted
Subsidiaries in respect of guarantees of Indebtedness of Foreign
Restricted Subsidiaries or foreign joint ventures or other entities in
which the Company or any of its Subsidiaries has an Investment;
provided that the aggregate principal amount of such Indebtedness
(including any such Indebtedness guaranteed) does not exceed
$20,000,000 at any one time outstanding;
(xii) Liens securing Acquired Indebtedness (and any
Indebtedness which Refinances such Acquired Indebtedness) Incurred in
accordance with Section 4.10; provided that
(A) such Liens secured the Acquired Indebtedness at
the time of and prior to the Incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary and
were not granted in connection with, or in anticipation of,
the Incurrence of such Acquired Indebtedness by the Company or
a Restricted Subsidiary, and
(B) such Liens do not extend to or cover any Property
or assets of the Company or of any of the Restricted
Subsidiaries other than the Property or assets that secured
the Acquired Indebtedness prior to the time such Indebtedness
became Acquired Indebtedness of the Company or a Restricted
Subsidiary (including any Property or assets acquired
thereafter by a Restricted Subsidiary the Equity Interests of
which are acquired in the relevant transaction if the
provisions of such Indebtedness in effect prior to such
transaction required the grant of Liens on such Property or
assets);
(xiii) Liens arising in connection with Qualified
Securitization Transactions;
(xiv) Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed $5,000,000 at any one time outstanding
and that (A) are not incurred in connection with the borrowing of money
or the obtaining of advances or credit (other than trade credit in the
ordinary course of business) and (B) do not in the aggregate materially
detract from the value of the Property or materially impair the use
thereof in the operation of business by the Company or such Restricted
Subsidiary; and
(xv) additional Liens on any asset of the Company or any
Restricted Subsidiary securing Indebtedness in an amount not to exceed
$25,000,000.
"Pari Passu Indebtedness" means any Indebtedness of the
Company or any Guarantor that ranks pari passu with the Notes or the relevant
Guarantee of such Guarantor.
-19-
"Partial Loss" means the loss of available communications
capacity on the satellite resulting from the failure of transponders thereon to
meet the requirements of the satellite's performance specifications such that
the Company, using reasonable business judgment and after use of all available
redundancy and spare components of the satellite, determines that such
transponders cannot or would not be able to be used for their intended
commercial communications purposes.
"Permitted Business" means the business of developing, owning,
engaging in and dealing with all or any part of the business of domestic and
international media, entertainment, electronics or communications, and
reasonably related extensions thereof or any business complementary thereto,
including the purchase, ownership, operation, leasing and selling of, and
generally dealing in or with, one or more communications satellites and the
transponders thereon, and communication uplink centers.
"Permitted Holder" means each of (i) General Motors
Corporation or Xxxxxx Electronics Corporation, (ii) EchoStar Communications
Corporation, (iii) Xxxxxxx X. Xxxxx, his spouse, children and other lineal
descendants and any trust the sole beneficiaries of which are one or more such
individuals, and (iv) any Subsidiary or any other Person, directly or
indirectly, controlled by, and any successor of, any of the foregoing.
"Permitted Investments" means:
(i) (a) Cash Equivalents or (b) to the extent determined by
the Company in good faith to be necessary for local currency working
capital requirements of a Foreign Restricted Subsidiary, other cash
equivalents; provided in the case of clause (b), the Investment is made
by the Foreign Restricted Subsidiary having such operations;
(ii) Investments in prepaid expenses, negotiable instruments
held for collection and lease, utility and workers' compensation,
performance and other similar deposits and stock, obligations or
securities received in satisfaction of judgments, foreclosure of liens
or settlement of debts (whether pursuant to a plan of reorganization or
similar arrangement or otherwise);
(iii) the extension of credit to vendors, suppliers and
customers in the ordinary course of business, including items that are
recorded as accounts receivable, investments in sales-type leases,
prepaid expenses, insurance claim receivables or similar items on the
balance sheet of the Company and the Restricted Subsidiaries and
including extensions of credit to Foreign Restricted Subsidiaries or
other foreign Subsidiaries of the Company in the ordinary course of
business in connection with the sale of transponder capacity or
services to third party customers;
(iv) Investments existing or legally committed to as of the
Issue Date (provided that Investments after the Issue Date pursuant to
such legal commitments do not exceed $75,000,000 at any one time
outstanding), and any amendment, modification, extension or renewal
thereof after the Issue Date to the extent such amendment,
modification, extension or renewal does not require the Company or any
Restricted Subsidiary of the Company to make any additional Investments
in connection therewith;
(v) Investments in Hedging Agreements;
(vi) any Investment in consideration of Equity Interests
(other than Disqualified Equity Interests) of the Company or any parent
company of the Company (including the Holding Company);
(vii) Investments in the Company, any Guarantor or any Person
that, as a result of or in connection with such Investment, becomes a
Guarantor or is merged with or into or consolidated with the Company or
a Guarantor;
-20-
(viii) Investments in respect of loans and advances to
officers, directors and employees of the Company and the Restricted
Subsidiaries (or loans to the Holding Company the proceeds of which are
used to make loans or advances to officers, directors and employees of
the Holding Company) in the ordinary course of business;
(ix) any Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to and
in compliance with Section 4.13 or in connection with any other
disposition of assets not constituting an Asset Sale;
(x) (a) Investments in Foreign Restricted Subsidiaries;
provided that all such Investments in Foreign Restricted Subsidiaries
do not exceed $20,000,000 in an aggregate amount at any one time
outstanding, and (b) Investments by Foreign Restricted Subsidiaries in
other Foreign Restricted Subsidiaries;
(xi) 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
Company and its Restricted Subsidiaries which Investments are in the
form of transfers to such Subsidiaries or joint ventures for fair
market value of 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;
(xii) any Investment in a Permitted Business having an
aggregate fair market value, taken together with all other Investments
made pursuant to this clause (xii), not to exceed $50,000,000 in an
aggregate amount at any one time outstanding (with the fair market
value of each Investment being measured at the time made and without
giving effect to subsequent changes in value);
(xiii) any Investment by the Company or a Restricted
Subsidiary of the Company in a Securitization Entity or any Investment
by a Securitization Entity in any other Person in connection with a
Qualified Securitization Transaction, so long as any Investment in a
Securitization Entity is in the form of a Purchase Money Note, an
Equity Interest or a capital contribution; and
(xiv) other Investments made pursuant to this clause (xiv) at
any time, and from time to time, after the Issue Date, in addition to
any Permitted Investments described in clauses (i) through (xiii)
above, in an aggregate amount not to exceed $10,000,000 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 agency or political
subdivision thereof or any other entity.
"Preferred Equity Interest" means, in any Person, an Equity
Interest of any class or classes, however designated, which is preferred as to
the payment of dividends or distributions, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over Equity Interests of any other class in such Person.
"Productive Assets" means assets of a kind used or useful in a
Permitted Business.
"Property" of any Person means all types of real, personal,
tangible, intangible or mixed property owned by such Person whether or not
included in the most recent consolidated balance sheet of such Person and its
Subsidiaries under GAAP.
-21-
"Public Equity Offering" means an underwritten public offering
pursuant to an effective registration statement by the Company or any direct or
indirect parent holding company for cash of its Equity Interests (other than
Disqualified Equity Interests) or options, warrants or rights with respect to
such Equity Interests.
"Purchase Money Indebtedness" means Indebtedness of any Person
Incurred for the purpose of financing or refinancing all or any part of the
purchase price or cost of acquisition (including obligations to pay insurance
premiums and orbital incentive payments), or the cost of construction,
installation or improvement, of any Property or asset, whether such Indebtedness
is owed to the seller or the Person carrying out such construction, installation
or improvement or to any third party.
"Purchase Money Note" means a promissory note of a
Securitization Entity to the Company or any Subsidiary of the Company in
connection with a Qualified Securitization Transaction, which note must be
repaid from cash available to the Securitization Entity, other than amounts
required to be established as reserves pursuant to agreements, amounts paid to
investors in respect of interest, principal and other amounts owing to such
investors and amounts paid in connection with the purchase of newly generated
receivables (including in respect of sales-type leases).
"Qualified Institutional Buyer" shall have the meaning
specified in Rule 144A promulgated under the Securities Act.
"Qualified Securitization Transaction" means any transaction
or series of transactions that may be entered into by the Company or any of its
Subsidiaries pursuant to which the Company or any of its Subsidiaries may sell,
convey or otherwise transfer (or cause to be transferred) to (a) a
Securitization Entity, in the case of a transfer by or on behalf of the Company
or any of its Subsidiaries, or (b) any other Person, in the case of a transfer
initially to a Subsidiary of the Company that constitutes a Securitization
Entity and then a second transfer to such other Person, or may grant a security
interest in, any accounts receivable (including in respect of sales-type
leases), whether now existing or arising or acquired in the future, of the
Company or any of its Subsidiaries, and any assets related thereto, including
all collateral securing such accounts receivable (including in respect of
sales-type leases), all contracts and contract rights and all guarantees or
other obligations in respect of such accounts receivable (including in respect
of sales-type leases), proceeds of such accounts receivable (including in
respect of sales-type leases) and other assets, including contract rights which
are customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving accounts receivable (including in respect of sales-type leases).
"Rating Agencies" means Moody's and S&P.
"Record Date" for interest payable on any Interest Payment
Date (except a date for payment of default interest) means the January 15 and
July 15 (whether or not a Business Day), as the case may be, immediately
preceding such Interest Payment Date.
"Redemption Date" when used with respect to any Note to be
redeemed means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price" when used with respect to any Note to be
redeemed means the price fixed for such redemption pursuant to this Indenture.
"Refinance" means in respect of any security or Indebtedness,
to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire,
or to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
-22-
"Refinancing Indebtedness" means any Refinancing by the
Company or any Restricted Subsidiary of Indebtedness Incurred in accordance with
Section 4.10 (other than Indebtedness Incurred pursuant to clause (c), (d), (e),
(f), (g), (j), (k) or (l) of the definition of the term "Permitted
Indebtedness"), in each case that does not:
(1) result in an increase in the aggregate principal amount of
any Indebtedness of such Person as of the date of such proposed
Refinancing (plus the amount of any premium required to be paid under
the terms of the instrument governing such Indebtedness and plus the
amount of fees and expenses incurred by the Company in connection with
such Refinancing); or
(2) create Indebtedness with (A) a Weighted Average Life to
Maturity that is less than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced (or, if less, the Weighted Average Life
to Maturity of the Notes) or (B) a final maturity earlier than the
final maturity of the Indebtedness being Refinanced (or, if earlier,
the final maturity of the Notes); provided that (x) if such
Indebtedness being Refinanced is Indebtedness of the Company, then such
Refinancing Indebtedness shall be Indebtedness solely of the Company
and (y) if such Indebtedness being Refinanced is subordinate or junior
to the Notes, then such Refinancing Indebtedness shall be subordinate
to the Notes at least to the same extent and in the same manner as the
Indebtedness being Refinanced.
The Company may incur Refinancing Indebtedness not more than
60 days prior to the application of the proceeds thereof to repay the
Indebtedness to be Refinanced; provided that (i) upon the incurrence of such
Refinancing Indebtedness, the Company shall provide written notice thereof to
the Trustee, specifically identifying the Indebtedness to be refinanced as
Refinancing Indebtedness, and (ii) the proceeds of such Refinancing Indebtedness
shall be placed in escrow and governed by an escrow agreement and to the extent
such proceeds are not applied within such 60 day period to Refinance the
Indebtedness to which such Refinancing Indebtedness relates, such Indebtedness
shall be deemed to no longer constitute Refinancing Indebtedness under this
Indenture.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of January 25, 2002 among the Company, the Guarantors and the
Initial Purchasers.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Restricted Payment" means:
(i) any dividend (whether made in cash, Property or
securities) on or with respect to any Equity Interests in the Company
or of any Restricted Subsidiary (other than any dividend made to the
Company or another Restricted Subsidiary (and, in the case of any
Restricted Subsidiary, pro rata dividends made to the other holders of
Equity Interests in such Restricted Subsidiary) or any dividend payable
in Equity Interests (other than Disqualified Equity Interests) in the
Company);
(ii) any distribution (whether made in cash, Property or
securities) on or with respect to any Equity Interests in the Company
or of any Restricted Subsidiary (other than any distribution made to
the Company or another Restricted Subsidiary (and, in the case of any
Restricted Subsidiary, pro rata distributions to the other holders of
Equity Interests in such Restricted Subsidiary) or any distribution
payable in Equity Interests (other than Disqualified Equity Interests)
in the Company);
(iii) any redemption, repurchase, retirement or other direct
or indirect acquisition of any Equity Interests in the Company or any
securities exchangeable for or convertible into any such Equity
Interests;
-23-
(iv) any redemption, repurchase, retirement or other direct or
indirect acquisition for value or other payment of principal, prior to
any scheduled final maturity scheduled repayment or scheduled sinking
fund payment, of any Subordinated Obligations; or
(v) any Investment (other than a Permitted Investment).
For the avoidance of doubt, any distribution described in
clause (ii) above and any redemption, repurchase, retirement or other direct or
indirect acquisition of any Equity Interests in the Company described in clause
(iii) above that is made in connection with a merger or consolidation will not
constitute a Restricted Payment to the extent that no cash, Property or
securities of the Company or any Restricted Subsidiary are used to make such
payment; and provided that neither the Company nor any Restricted Subsidiary
shall be or become directly or indirectly obligated to reimburse, repay, refund
or return such cash, Property or securities or to make any other payment in
respect thereof to any Person.
"Restricted Security" has the meaning set forth in Rule
144(a)(3) promulgated under the Securities Act; provided that the Trustee shall
be entitled to request and conclusively rely upon an Opinion of Counsel with
respect to whether any Note is a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company
that has neither been designated by the Board of Directors of the Company by a
Board Resolution delivered to the Trustee as an Unrestricted Subsidiary pursuant
to Section 4.12 nor constitutes a Subsidiary of an Unrestricted Subsidiary. Any
such Designation may be Revoked by a Board Resolution delivered to the Trustee,
subject to the provisions of such covenant.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"Sale and Lease-Back Transaction" means any arrangement with
any Person providing for the leasing by the Company or any Restricted Subsidiary
of any real or tangible personal property, which property has been or is to be
sold or transferred by the Company or such Restricted Subsidiary to such Person
in contemplation of such leasing.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Securitization Entity" means (i) a Subsidiary of the Company
or (ii) a Subsidiary of another Person in which the Company or any Subsidiary of
the Company makes an Investment and/or to which the Company or any Subsidiary of
the Company transfers accounts receivable (including in respect of sales-type
leases) and related assets, in each case (a) which engages in no activities
other than in connection with the financing of accounts receivable (including in
respect of sales-type leases) and related assets, (b) which is designated by the
Board of Directors of the Company, as provided below, as a Securitization
Entity, and (c):
(1) all of the Indebtedness of which is Non-Recourse
Indebtedness (other than Standard Securitization Undertakings),
(2) with which neither the Company nor any Subsidiary of the
Company has any material contract, agreement, arrangement or
understanding other than on terms no less favorable to the Company or
such Subsidiary than those that might be obtained at the time from
Persons that are not
-24-
Affiliates of the Company, other than fees payable in the ordinary course
of business in connection with servicing receivables of such entity and
the Investment referred to in clause (ii) above, and
(3) to which neither the Company nor any Subsidiary of the Company
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 Company must
be evidenced to the Trustee by filing with the Trustee a certified copy of the
Board Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions.
"Senior Credit Facility" means the Credit Agreement among the
Company, the Restricted Subsidiaries, the lenders party thereto in their
capacities as lenders thereunder and Credit Suisse First Boston, as
administrative agent, together with the related documents thereto (including any
guarantee agreements and security documents), in each case as such agreements
may be amended (including any amendment and restatement thereof), supplemented
or otherwise modified from time to time, including any agreement extending the
maturity of, Refinancing or otherwise restructuring (including increasing the
amount of available borrowings thereunder (provided that such increase in
borrowings is permitted by Section 4.10) or adding Subsidiaries of the Company
as additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders.
"Senior Officer" means the Chief Executive Officer or the
Chief Financial Officer of the Company.
"Significant Subsidiary" means any Restricted Subsidiary which
at the time of determination is a "significant subsidiary" as defined in Rule
1-02(w) of Regulation S-X under the Securities Act.
"Specified Affiliate Payments" means:
(i) the direct or indirect repurchase, redemption or other
acquisition or retirement for value of any Equity Interests of the Company
or any of its Restricted Subsidiaries or amounts paid to the Holding
Company on account of any such acquisition or retirement for value of any
Equity Interests of the Holding Company held by any future, present or
former employee, director, officer or consultant of the Holding Company or
the Company (or any of its Restricted Subsidiaries) pursuant to any
defined contribution plan, stock incentive plan, non-full-time employee
directors retainer, non-employee directors fee plan, stock option
agreement, management equity subscription agreement, stock ownership plan,
put agreement, stockholder agreement or similar agreement that may be in
effect from time to time; provided that the aggregate price paid for all
such repurchased, redeemed, acquired or retired Equity Interests shall not
exceed $5,000,000 in any calendar year (with unused amounts in any
calendar year being carried over to succeeding calendar years subject to a
maximum amount of repurchases, redemptions or other acquisitions or
retirements pursuant to this clause (i) (without giving effect to the
immediately following proviso) of $10,000,000 in any calendar year);
provided, further, that such amount in any calendar year may be increased
by an amount not to exceed the net cash proceeds received by the Company
(including by way of capital contribution) since the Issue Date from the
sale of Equity Interests of the Holding Company or the Company to
employees, directors, officers or consultants of the Holding Company or
the Company or its Subsidiaries that occurs in such calendar year (other
than to the extent that such proceeds have been used to calculate the
Cumulative Credit); and provided, further, that cancellation of
Indebtedness owing to the Company from employees, directors, officers or
consultants of the Company or any of its Subsidiaries in connection with a
-25-
repurchase of Equity Interests of the Company will not be deemed to
constitute a Restricted Payment for purposes of this Indenture;
(ii) repurchases of Equity Interests deemed to occur upon exercise
of stock options or warrants as a result of the payment of all or a
portion of the exercise price of such options or warrants with Equity
Interests;
(iii) the payment of dividends, other distributions or other amounts
by the Company to Xxxxxx Electronics or any other Person with which the
Company is included in a consolidated tax return in amounts equal to the
amount of federal, state and local income taxes payable in respect of the
income of the Company and its Subsidiaries (without regard to any tax
credits, loss carry-forwards or the like held by Xxxxxx Electronics or
such other Person); and
(iv) dividends, other distributions or other amounts paid by the
Company to the Holding Company (a) in amounts equal to amounts required
for the Holding Company to pay franchise taxes and other expenses required
to maintain its corporate existence and provide for other operating costs
of up to $3,000,000 per fiscal year or (b) to pay, or reimburse the
Holding Company for, the costs, fees and expenses incident to a private
placement or public offering of any of the Equity Interests of the Holding
Company, so long as the net proceeds of such offering (if it is completed)
are contributed to, or otherwise used for the benefit of, the Company.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Subsidiary of the Company which are reasonably customary in an accounts
receivable securitization transaction.
"Subordinated Obligations" means with respect to the Company
or any Guarantor, any Indebtedness of the Company or such Guarantor which
is expressly subordinated in right of payment to the Notes or the
Guarantee of such Guarantor, as the case may be.
"Subsidiary" means, with respect to any Person, a Person the
majority of whose voting stock, membership interests or other Voting
Equity Interests is or are owned by such Person or another Subsidiary of
such Person. Unless otherwise specified, "Subsidiary" refers to a
Subsidiary of the Company.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 (15 U.S. Code sections 77aaa-77bbbb) as in effect on the date of
this Indenture (except as provided in Section 8.03 hereof).
"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 party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter
means the successor.
"Unrestricted Subsidiary" means any Subsidiary of the Company
designated as such pursuant to the provisions of Section 4.12, and any
Subsidiary of an Unrestricted Subsidiary. Any such Designation may be
Revoked by a Board Resolution delivered to the Trustee, subject to the
provisions of such covenant.
-26-
"U.S. Government Obligations" means (a) securities that
are direct obligations of the United States of America for the
payment of which its full faith and credit are pledged or (b)
obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
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 Obligation or a
specific payment of principal of or interest on any such U.S.
Government Obligation 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
Obligation or a specific payment of principal or interest on any
such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt.
"Voting Equity Interests" means Equity Interests in any
Person with voting power under ordinary circumstances entitling the
holders thereof to elect the Board of Directors or other governing
body of such Person.
"Weighted Average Life to Maturity" means, when applied
to any Indebtedness at any date, the number of years obtained by
dividing
(i) the sum of the products obtained by multiplying (a) the amount
of each then remaining installment, sinking fund, serial maturity or other
required scheduled payment of principal, including payment at final
maturity, in respect thereof, by (b) the number of years (calculated to
the nearest one-twelfth) that will elapse between such date and the making
of such payment, by
(ii) the then outstanding aggregate principal amount of such
Indebtedness.
Section 1.02. Other Definitions.
The definitions of the following terms may be found in the sections
indicated as follows:
Term Defined in Section
---- ------------------
"Affiliate Transaction".......................... 4.14
"Agent Members".................................. 2.15
"Authenticating Agent"........................... 2.02
"Bankruptcy Law"................................. 6.01
"Business Day"................................... 11.07
"Change of Control Offer"........................ 4.17
"Change of Control Payment"...................... 4.17
"Change of Control Payment Date"................. 4.17
"Covenant Defeasance"............................ 9.03
"Covenant Suspension Event"...................... 4.24
"Custodian"...................................... 6.01
"Designation".................................... 4.12
"Event of Default"............................... 6.01
"Event of Loss".................................. 4.16
"Excess Proceeds Offer".......................... 4.13
"Excess Proceeds Payment Date"................... 4.13
"Funding Guarantor".............................. 10.03
"Global Notes"................................... 2.01
-27-
"Legal Defeasance"............................... 9.02
"Legal Holiday".................................. 11.07
"Offering Proceeds".............................. 4.23
"Paying Agent"................................... 2.03
"payment default"................................ 6.01
"Permitted Indebtedness"......................... 4.10
"Private Placement Legend"....................... 2.17
"Registrar"...................................... 2.03
"Regulation S Global Note"....................... 2.01
"Reinvestment Date".............................. 4.13
"Resale Restriction Termination Date"............ 2.16
"Revocation"..................................... 4.12
"Rule 144A Global Note".......................... 2.01
"Special Redemption"............................. 3.01
"Suspended Covenants"............................ 4.24
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and made
a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings:
"indenture securities" means the Notes.
"indenture securityholder" 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 Company, the
Guarantors or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by Commission rule
have the meanings therein assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether
defined expressly or by reference;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
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(5) words used herein implying any gender shall apply to every
gender; and
(6) "including" means "including without limitation."
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating.
The Initial Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Exchange Notes and
the Trustee's certificate of authentication shall be substantially in the form
of Exhibit B hereto. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or Depository rule or usage. The form of
the Notes and any notation, legend or endorsement on them shall be satisfactory
to both the Company and the Trustee. Each Note shall be dated the date of its
authentication.
The terms and provisions contained in the Notes, annexed hereto as
Exhibits A and B, shall constitute, and are hereby expressly made, a part of
this Indenture and, to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
The Notes shall be issued initially in the form of two or more
permanent global Notes (the "Global Notes"). Notes offered and sold (i) in
reliance on Rule 144A shall be issued initially in the form of one or more
permanent Global Notes in registered form, substantially in the form set forth
in Exhibit A (the " Rule 144A Global Note") and (ii) in offshore transactions in
reliance on Regulation S shall be issued initially in the form of one or more
permanent global Notes in registered form, substantially in the form set forth
in Exhibit A (the "Regulation S Global Note"), and in each case shall be
deposited with the Trustee, as custodian for the Depository, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of any Global Note may from time to time be increased
or decreased by adjustments made on the records of the Trustee, as custodian for
the Depository, as hereinafter provided.
Section 2.02. Execution and Authentication.
The Notes shall be executed on behalf of the Company by two Officers
of the Company or an Officer and the Secretary of the Company. Such signature
may be either manual or facsimile. The Company's seal may be impressed, affixed,
imprinted or reproduced on the Notes and may be in facsimile form.
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 signs the certificate of authentication on the Note. Such signature may
be either manual or facsimile. Such signature shall be conclusive evidence that
the Note has been authenticated under this Indenture.
The Trustee or an authentication agent (the "Authenticating Agent")
shall authenticate (i) Initial Notes for original issue on the date of this
Indenture in the aggregate principal amount not to exceed $800,000,000, (ii)
Exchange Notes from time to time for issue only in exchange for a like principal
amount of
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Initial Notes and (iii) Additional Notes (including in the form of additional
Exchange Notes) from time to time issued in compliance with Section 2.18, in
each case upon written orders of the Company in the form of an Officers'
Certificate. The Officers' Certificate shall specify the amount of Notes to be
authenticated, the date on which the Notes are to be authenticated and the
aggregate principal amount of Notes outstanding on the date of authentication,
whether the Notes are to be Initial Notes, Exchange Notes or Additional Notes,
and shall further specify the amount of such Notes to be issued as the Global
Note or Certificated Notes. The aggregate principal amount of Notes outstanding
at any time may not exceed such amount except as provided in Section 2.07.
Notwithstanding the foregoing, all Notes issued under this Indenture
shall vote and consent together on all matters (as to which any of such Notes
may vote or consent) as one class and no series of Notes will have the right to
vote or consent as a separate class on any matter.
The Trustee may appoint an Authenticating Agent to authenticate
Notes. Any such appointment shall be evidenced by an instrument signed by a
Trust Officer, a copy of which shall be furnished to the Company. 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 Authenticating Agent. An Authenticating Agent has the
same right as an Agent to deal with the Company and Affiliates of the Company.
The Notes shall be issuable only in registered form without coupons
and only in denominations of $1,000 and integral multiples thereof.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar"), an office
or agency located in the Borough of Manhattan, City of New York, State of New
York where Notes may be presented for payment ("Paying Agent") and an office or
agency where notices and demands to or upon the Company in respect of the Notes
and this Indenture may be served. The Registrar shall keep a register of the
Notes and of their transfer and exchange. The Registrar shall provide the
Company a current copy of such register from time to time upon request of the
Company. The Company may have one or more co-Registrars and one or more
additional Paying Agents. Either the Company or any domestic Wholly Owned
Restricted Subsidiary may act as Paying Agent. The Company may change any Paying
Agent, Registrar or co-Registrar without notice to any Holder.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee of the name and address of any such Agent. If the Company fails to
maintain a Registrar or Paying Agent, or agent for service of notices and
demands, or fails to give the foregoing notice, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar, Paying Agent and agent
for service of notices and demands in connection with the Notes.
Section 2.04. Paying Agent to Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that each Paying Agent shall hold in trust for the benefit
of the Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of, premium, if any, or interest (including Additional
Interest) on Notes (whether such assets have been distributed to it by the
Company or any other obligor on the Notes), and shall notify the Trustee in
writing of any Default in making any such payment. If the Company or a Wholly
Owned Restricted Subsidiary acts as Paying Agent, it shall segregate the money
held by it as Paying Agent and hold it as a separate trust fund. The Company at
any time may require a Paying Agent to distribute all assets held by it to the
Trustee and account for any assets disbursed and the Trustee may at any time
during the continuance of
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any payment default, upon written request to a Paying Agent, require such Paying
Agent to forthwith distribute to the Trustee all assets so held in trust by such
Paying Agent together with a complete accounting of such sums. Upon distribution
to the Trustee of all assets that shall have been delivered by the Company to
the Paying Agent, the Paying Agent shall have no further liability for such
assets.
Section 2.05. Noteholder 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 Company shall furnish or cause
the Registrar to furnish to the Trustee on or before each January 15 and July 15
in each year, 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 which list may be conclusively relied on by
the Trustee.
Section 2.06. Transfer and Exchange.
Subject to the provisions of Sections 2.15 and 2.16, when Notes are
presented to the Registrar or a co-Registrar with a request to register the
transfer of such Notes or to exchange such Notes for an equal principal amount
of Notes of other authorized denominations of the same series, the Registrar or
co-Registrar shall register the transfer or make the exchange as requested if
its requirements for such transaction are met; provided, however, that the Notes
presented or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer in form satisfactory
to the Company and the Registrar or co-Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing. To permit registrations of
transfer and exchanges, the Company shall execute and the Trustee shall
authenticate Notes at the Registrar's or co-Registrar's request. No service
charge shall be made for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge in connection therewith payable by the transferor of
such Notes (other than any such transfer taxes or similar governmental charge
payable upon exchanges or transfers pursuant to Section 2.10, 3.06, 4.13, 4.16
or 4.17, in which event the Company shall be responsible for the payment of such
taxes).
The Registrar or co-Registrar shall not be required to register the
transfer of or exchange of any Note (i) during a period beginning 15 Business
Days before the mailing of a notice of redemption of Notes and ending at the
close of business on the day of such mailing and (ii) selected for redemption in
whole or in part pursuant to Article 3, except the unredeemed portion of any
Note being redeemed in part.
Any Holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Notes may be
effected only through a book entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in the
Note shall be required to be reflected in a book entry.
Prior to due presentment for the registration of a transfer of any
Note, the Trustee, any Agent and the Company may deem and treat the Person in
whose name any Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on such Note and for
all other purposes, and none of the Trustee, any Agent or the Company shall be
affected by notice to the contrary.
Section 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder
presents evidence to the satisfaction of the Company and the Trustee that the
Note has been mutilated, lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee shall authenticate a replacement Note. An indemnity bond
may be required by the Company or the Trustee that is sufficient in the judgment
of the Company and the Trustee to
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protect the Company, the Trustee or any Agent from any loss which any of them
may suffer if a Note is replaced. In every case of mutilation, loss, destruction
or theft, the applicant shall also furnish to the Company and to the Trustee
evidence to their satisfaction of the mutilation, loss, destruction or theft of
such Note and the ownership thereof. Each of the Company and the Trustee may
charge for its expenses in replacing a Note. In the event any such mutilated,
lost, destroyed or wrongfully taken Note has become due and payable, the Company
in its discretion may pay such Note instead of issuing a new Note in replacement
thereof. The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to replacement
or payment of mutilated, lost, destroyed or wrongfully taken Notes.
Every replacement Note is an additional obligation of the Company.
Section 2.08. Outstanding Notes.
Notes outstanding at any time are all Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation,
and those described in this Section 2.08 as not outstanding.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding until
the Company and the Trustee receive proof satisfactory to each of 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 2.07.
If on a Redemption Date or the Maturity Date, the Paying Agent holds
U.S. legal tender sufficient to pay all of the principal and interest (including
Additional Interest) due on the Notes payable on that date and is not prohibited
from paying such money to the Holders thereof pursuant to the terms of this
Indenture, then on and after that date such Notes cease to be outstanding and
interest on them ceases to accrue.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver, consent or notice, Notes owned
by the Company or any of its Affiliates shall be considered as though they are
not outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver, consent or notice,
only Notes which a Trust Officer of the Trustee actually knows are so owned
shall be so considered. The Company shall notify the Trustee, in writing, when
it or any of its Affiliates repurchases or otherwise acquires Notes, of the
aggregate principal amount of such Notes so repurchased or otherwise acquired.
Section 2.10. Temporary Notes.
Until definitive Notes and Global Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Notes upon
receipt of a written order of the Company in the form of an Officers'
Certificate. The Officers' Certificate shall specify the amount of temporary
Notes to be authenticated and the date on which the temporary Notes are to be
authenticated. Temporary Notes shall be substantially in the form of definitive
Notes but may have variations that the Company considers appropriate for
temporary Notes. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate upon receipt of a written order of the Company
pursuant to Section 2.02 definitive Notes in exchange for temporary Notes.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer,
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exchange or payment. The Trustee, or at the direction of the Trustee, the
Registrar or the Paying Agent, and no one else, shall cancel all Notes
surrendered for registration of transfer, exchange, payment or cancellation and
deliver canceled Notes to the Company in accordance with the Trustee's customary
procedures. The Company may not issue new Notes to replace Notes that it has
paid or delivered to the Trustee for cancellation. If the Company shall acquire
any of the Notes, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation pursuant to this Section
2.11.
Section 2.12. Defaulted Interest.
The Company shall pay interest on overdue principal (including
post-petition interest in a proceeding under Bankruptcy Law) at the rate of
interest then borne by the Notes. The Company shall, to the extent lawful, pay
interest on overdue installments of interest (without regard to any applicable
grace periods) at the rate of interest then borne by the Notes.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest to the Persons who are Holders on a subsequent
special record date, which date shall be the 15th day next preceding the date
fixed by the Company for the payment of defaulted interest or the next
succeeding Business Day if such date is not a Business Day. At least 15 days
before the subsequent special record date, the Company shall mail to each
Holder, as of a recent date selected by the Company, with a copy to the Trustee,
a notice that states the subsequent special record date, the payment date and
the amount of defaulted interest, and interest payable on such defaulted
interest, if any, to be paid.
Notwithstanding the foregoing, any interest which is paid prior to
the expiration of the 30-day period set forth in Section 6.01(b) shall be paid
to Holders as of the Record Date for the Interest Payment Date for which
interest has not been paid.
Section 2.13. Deposit of Moneys.
Prior to 11:00 a.m., New York City time, on each Interest Payment
Date, Redemption Date, Change of Control Payment Date, Excess Proceeds Payment
Date and Maturity Date, the Company shall have deposited with the Paying Agent
in immediately available funds U.S. legal tender sufficient to make payments, if
any, due on such Interest Payment Date, Redemption Date, Change of Control
Payment Date, Excess Proceeds Payment Date or Maturity Date, as the case may be,
to permit the Trustee to remit payment to the Holders on such Interest Payment
Date, Redemption Date, Change of Control Payment Date, Excess Proceeds Payment
Date or Maturity Date, as the case may be. The principal and interest (including
Additional Interest) on Global Notes shall be payable to the Depository or its
nominee, as the case may be, as the sole registered owner and the sole Holder of
the Global Notes represented thereby. The principal and interest (including
Additional Interest) on Notes in certificated form shall be payable at the
office of the Paying Agent.
Section 2.14. CUSIP Number.
The Company in issuing the Notes may use one or more "CUSIP"
numbers, and if so, the Trustee shall use such CUSIP numbers in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP numbers printed in the notice or on the Notes, and that
reliance may be placed only on the other identification numbers printed on the
Notes. The Company shall promptly notify the Trustee of any change in the CUSIP
number.
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Section 2.15. Book-Entry Provisions for Global Notes.
(a) The Global Notes initially shall (i) be registered in the name
of the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Section 2.17.
Members of, or participants in, the Depository ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depository or under such Global Note, and the Depository
may be treated by the Company, the Guarantors, the Trustee and any agent of the
Company or the Trustee as the absolute owner of the Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Guarantors, the Trustee or any agent of the Company, the Guarantors
or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder.
(b) Interests of beneficial owners in the Global Notes may be
transferred or exchanged for Certificated Notes in accordance with the rules and
procedures of the Depository and the provisions of Section 2.16. In addition,
Certificated Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in Global Notes if (i) the Depository (x) notifies
the Company that it is unwilling or unable to continue as Depository for any
Global Note or (y) has ceased to be a clearing company registered under the
Exchange Act and, in each case, a successor depositary is not appointed by the
Company within 90 days of such notice or (ii) a Default or an Event of Default
has occurred and is continuing and the Registrar has received a written request
from the Depository to issue Certificated Notes.
(c) In connection with the transfer of Global Notes as an entirety
to beneficial owners pursuant to paragraph (b), the Global Notes shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall, upon receipt of an authentication order from the
Company in the form of an Officers' Certificate, authenticate and deliver, to
each beneficial owner identified by the Depository in writing in exchange for
its beneficial interest in the Global Notes, an equal aggregate principal amount
of Certificated Notes of authorized denominations.
(d) Any Certificated Note constituting a Restricted Security
delivered in exchange for an interest in a Global Note pursuant to paragraph (b)
or (c) shall, except as otherwise provided by Section 2.16, bear the Private
Placement Legend.
(e) 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.
Section 2.16. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Certificated Notes. When Certificated
Notes are presented to the Registrar or co-Registrar with a request:
(i) to register the transfer of the Certificated Notes; or
(ii) to exchange such Certificated Notes for an equal principal
amount of Certificated Notes of other authorized denominations,
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the Registrar or co-Registrar shall register the transfer or make the exchange
as requested if the requirements under this Indenture as set forth in this
Section 2.16 for such transactions are met; provided, however, that the
Certificated Notes presented or surrendered for registration of transfer or
exchange:
(I) shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing;
and
(II) in the case of Certificated Notes the offer and sale of which
have not been registered under the Securities Act and are presented for
transfer or exchange prior to (x) the date which is two years after the
later of the date of original issue and the last date on which the Company
or any Affiliate of the Company was the owner of such Note, or any
predecessor thereto and (y) such later date, if any, as may be required by
any subsequent change in applicable law (the "Resale Restriction
Termination Date"), such Certificated Notes shall be accompanied, in the
sole discretion of the Company, by the following additional information
and documents, as applicable:
(A) if such Certificated Note is being delivered to the
Registrar or co-Registrar by a Holder for registration in the name
of such Holder, without transfer, a certification to that effect
(substantially in the form of Exhibit C hereto); or
(B) if such Certificated Note is being transferred to a
Qualified Institutional Buyer in accordance with Rule 144A, a
certification to that effect (substantially in the form of Exhibit C
hereto); or
(C) if such Certificated Note is being transferred in reliance
on Regulation S, delivery of a certification to that effect
(substantially in the form of Exhibit C hereto) and a transferor
certificate for Regulation S transfers substantially in the form of
Exhibit E hereto; or
(D) if such Certificated Note is being transferred to an
Institutional Accredited Investor, delivery of certification to that
effect (substantially in the form of Exhibit C hereto), certificates
of the transferee in substantially the form of Exhibit D and, at the
option of the Company, an Opinion of Counsel reasonably satisfactory
to the Company to the effect that such transfer is in compliance
with the Securities Act; or
(E) if such Certificated Note is being transferred in reliance
on Rule 144 under the Securities Act, delivery of a certification to
that effect substantially in the form of Exhibit C hereto and, at
the option of the Company, an Opinion of Counsel reasonably
satisfactory to the Company to the effect that such transfer is in
compliance with the Securities Act; or
(F) if such Certificated Note is being transferred in reliance
on another exemption from the registration requirements of the
Securities Act, a certification to that effect (substantially in the
form of Exhibit C hereto) and, at the option of the Company, an
Opinion of Counsel reasonably satisfactory to the Company to the
effect that such transfer is in compliance with the Securities Act.
(b) Restrictions on Transfer of a Certificated Note for a
Beneficial Interest in a Global Note. A Certificated Note may not be exchanged
for a beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Registrar or co-Registrar of a
Certificated Note, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Registrar or co-Registrar, together with:
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(A) in the case of Certificated Notes, the offer and sale of which
have not been registered under the Securities Act and which are presented
for transfer prior to the Resale Restriction Termination Date,
certification, substantially in the form of Exhibit C hereto, that such
Certificated Note is being transferred (I) to a Qualified Institutional
Buyer or (II) in an offshore transaction in reliance on Regulation S (and,
in the case of this clause II, the Company shall have received a
transferor certificate for Regulation S transfers substantially in the
form of Exhibit E hereto and, at the option of the Company, an Opinion of
Counsel reasonably satisfactory to the Company to the effect that such
transaction is in compliance with the Securities Act); and
(B) written instructions from the Holder thereof directing the
Registrar or co-Registrar to make, or to direct the Depository to make, an
endorsement on the applicable Global Note to reflect an increase in the
aggregate amount of the Notes represented by the Global Note,
then the Registrar or co-Registrar shall cancel such Certificated Note and
cause, or direct the Depository to cause, in accordance with the standing
instructions and procedures existing between the Depository and the Registrar or
co-Registrar, the principal amount of Notes represented by the applicable Global
Note to be increased accordingly. If no Global Note representing Notes held by
Qualified Institutional Buyers or Persons acquiring Notes in offshore
transactions in reliance on Regulation S, as the case may be, is then
outstanding, the Company shall issue and the Trustee shall, upon receipt of an
authentication order in the form of an Officers' Certificate in accordance with
Section 2.02, authenticate such a Global Note in the appropriate principal
amount.
(c) Transfer and Exchange of Global Notes. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depository in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depository
therefor. Upon receipt by the Registrar or co-Registrar of written instructions,
or such other instruction as is customary for the Depository, from the
Depository or its nominee on behalf of any person having a beneficial interest
in a Global Note, requesting the registration of transfer of an interest in a
U.S. Global Note or Regulation S Global Note, as the case may be, to another
type of Global Note, together with the applicable Global Notes (or, if the
applicable type of Global Note required to represent the interest as requested
to be transferred is not then outstanding, only the Global Note representing the
interest being transferred), the Registrar or Co-Registrar shall cancel such
Global Notes (or Global Note) and the Company shall issue and the Trustee shall,
upon receipt of an authentication order in the form of an Officers' Certificate
in accordance with Section 2.02, authenticate new Global Notes of the types so
canceled (or the type so canceled and applicable type required to represent the
interest as requested to be transferred) reflecting the applicable increase and
decrease of the principal amount of Notes represented by such types of Global
Notes, giving effect to such transfer. If the applicable type of Global Note
required to represent the interest as requested to be transferred is not
outstanding at the time of such request, the Company shall issue and the Trustee
shall, upon written instructions from the Company in accordance with Section
2.02, authenticate a new Global Note of such type in principal amount equal to
the principal amount of the interest requested to be transferred.
(d) Transfer of a Beneficial Interest in a Global Note for a
Certificated Note. (i) Any Person having a beneficial interest in a Global Note
may upon request exchange such beneficial interest for a Certificated Note. Upon
receipt by the Registrar or co-Registrar of written instructions, or such other
form of instructions as is customary for the Depository, from the Depository or
its nominee on behalf of any Person having a beneficial interest in a Global
Note and upon receipt by the Trustee of a written order or such other form of
instructions as is customary for the Depository or the Person designated by the
Depository as having such a beneficial interest containing registration
instructions and, in the case of any such transfer or exchange of a beneficial
interest in Notes the offer and sale of which have not been registered under the
Securities Act and which Notes are presented for transfer or exchange prior to
the Resale Restriction Termination Date, the following additional information
and documents:
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(A) if such beneficial interest is being transferred to the Person
designated by the Depository as being the beneficial owner, a
certification from such Person to that effect (substantially in the form
of Exhibit C hereto); or
(B) if such beneficial interest is being transferred to a Qualified
Institutional Buyer in accordance with Rule l44A, a certification to that
effect (substantially in the form of Exhibit C hereto); or
(C) if such beneficial interest is being transferred in reliance on
Regulation S, delivery of a certification to that effect (substantially in
the form of Exhibit C hereto) and a transferor certificate for Regulation
S transfers substantially in the form of Exhibit E hereto; or
(D) if such beneficial interest is being transferred to an
Institutional Accredited Investor, delivery of certification
(substantially in the form of Exhibit C hereto), a certificate of the
transferee in substantially the form of Exhibit D and, at the option of
the Company, an Opinion of Counsel reasonably satisfactory to the Company
to the effect that such transfer is in compliance with the Securities Act;
or
(E) if such beneficial interest is being transferred in reliance on
Rule 144 under the Securities Act, delivery of a certification to that
effect (substantially in the form of Exhibit C hereto) and, at the option
of the Company, an Opinion of Counsel reasonably satisfactory to the
Company to the effect that such transfer is in compliance with the
Securities Act; or
(F) if such beneficial interest is being transferred in reliance on
another exemption from the registration requirements of the Securities
Act, a certification to that effect (substantially in the form of Exhibit
C hereto) and, at the option of the Company, an Opinion of Counsel
reasonably satisfactory to the Company to the effect that such transfer is
in compliance with the Securities Act,
then the Registrar or co-Registrar will cause, in accordance with the standing
instructions and procedures existing between the Depository and the Registrar or
co-Registrar, the aggregate principal amount of the applicable Global Note to be
reduced and, following such reduction, the Company will execute and, upon
receipt of an authentication order in the form of an Officers' Certificate in
accordance with Section 2.02, the Trustee will authenticate and deliver to the
transferee a Certificated Note in the appropriate principal amount.
(ii) Certificated Notes issued in exchange for a beneficial interest
in a Global Note pursuant to this Section 2.16(d) shall be registered in such
names and in such authorized denominations as the Depository, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Registrar or co-Registrar in writing. The Registrar or co-Registrar
shall deliver such Certificated Notes to the Persons in whose names such
Certificated Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture, a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar or
co-Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Registrar or co-Registrar shall deliver only Notes that
bear the Private Placement Legend unless, and the Trustee is hereby authorized
to deliver Notes without the Private Placement Legend if, (i) the Resale
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Restriction Termination Date shall have occurred, (ii) there is delivered to the
Trustee an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the
Securities Act or (iii) such Note has been sold pursuant to an effective
registration statement under the Securities Act.
(g) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
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 Agent Members or
beneficial owners of interest 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.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or this Section 2.16.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
Section 2.17. Restrictive Legends.
Each Global Note and Certificated Note that constitutes a Restricted
Security shall bear the following legend (the "Private Placement Legend") on the
face thereof until the Resale Restriction Termination Date, unless otherwise
agreed to by the Company and the Holder thereof:
THIS NOTE 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) AGREES THAT IT WILL NOT, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUANCE OF THIS NOTE AND THE LAST DATE ON WHICH THE
COMPANY, OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR
ANY PREDECESSOR OF THIS NOTE), RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO THE COMPANY 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 INSTITUTIONAL
ACCREDITED INVESTOR WITHIN THE MEANING OF SUBPARAGRAPH 501(a)(1), (2),
(3), or (7) UNDER THE SECURITIES ACT 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 NOTE (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS NOTE), (D) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (2) WILL
GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
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SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS NOTE PRIOR TO THE RESALE RESTRICTION TERMINATION DATE, IF
THE PROPOSED TRANSFER IS BEING MADE PURSUANT TO CLAUSE (C) OR (E) ABOVE,
PRIOR TO SUCH TRANSFER, THE HOLDER WILL BE REQUIRED TO FURNISH TO THE
TRUSTEE AND THE COMPANY 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 MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
Each Global Note shall also bear the following legend:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS NOTE IS NOT
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS
NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, AND TRANSFERS OF INTERESTS IN THIS GLOBAL NOTE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 2.16 OF THE INDENTURE.
Section 2.18. Issuance of Additional Notes.
The Company shall be entitled to issue Additional Notes under this
Indenture which shall have substantially identical terms as the Notes, other
than with respect to the date of issuance, issue price, amount of interest
payable on the first payment date applicable thereto or upon a registration
default as provided under a registration rights agreement related thereto, if
any (and if such Additional Notes shall be issued in the form of Exchange Notes,
other than with respect to transfer restrictions); provided that such issuance
shall be made in compliance with Section 4.10; provided, however, that no
Additional Notes may be issued at a price that would cause such Additional Notes
to have "original issue discount" within the meaning of Section 1273 of the
Internal Revenue Code of 1986, as amended. The Initial Notes issued on the date
of this Indenture, any Additional Notes and all Exchange Notes or Private
Exchange Notes issued in exchange therefor shall be treated as a single class
for all purposes under this Indenture.
With respect to any Additional Notes, the Company shall set forth in
an Officers' Certificate, a copy of which shall be delivered to the Trustee, the
following information:
(1) the aggregate principal amount of Notes outstanding
immediately prior to the issuance of such Additional Notes;
(2) the aggregate principal amount of such Additional Notes to
be authenticated and delivered pursuant to this Indenture;
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(3) the issue price and the issue date of such Additional Notes and
the amount of interest payable on the first payment date applicable
thereto;
(4) the "CUSIP", "ISIN" or "Common Code" number, as applicable, of
such Additional Notes; and
(5) whether such Additional Notes shall be Restricted Securities and
issued in the form of Initial Notes or shall be registered securities
issued in the form of Exchange Notes, substantially in the form as set
forth in Exhibit A hereto.
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to paragraph 6 of the
Notes, at least 60 days prior to the Redemption Date (other than a redemption
pursuant to paragraph 6(c) of the Notes ("Special Redemption")) or during such
other period as the Trustee may agree to, the Company shall notify the Trustee
in writing of the Redemption Date, the principal amount of Notes to be redeemed
and the Redemption Price, and deliver to the Trustee an Officers' Certificate
stating that such redemption will comply with the conditions contained herein
and in the Notes, as appropriate. In the event of a Special Redemption, the
Company shall notify the Trustee as soon as practicable but in any event before
notice of the Special Redemption is to be mailed to any Holder (unless a shorter
notice shall be satisfactory to the Trustee).
Section 3.02. Selection of Notes to Be Redeemed.
In the event that less than all of the Notes are to be redeemed at
any time, selection of the Notes to be redeemed shall be made by the Trustee in
compliance with the requirements of the principal securities exchange, if any,
on which such Notes are listed or, if such Notes are not then listed on a
national securities exchange, on a pro rata basis, by lot or by such method as
the Trustee shall deem appropriate; provided, however, that no Notes of a
principal amount of $1,000 or less shall be redeemed in part; provided, further,
that if a partial redemption is made with the proceeds of any Public Equity
Offering, selection of the Notes or portions thereof for redemption shall be
made by the Trustee only on a pro rata basis or on as nearly a pro rata basis as
is practicable (subject to the procedures of the Depository). A new Note in a
principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon delivery of the original Note to the Paying
Agent and cancellation of the original Note. On and after the Redemption Date,
interest will cease to accrue on Notes or portions thereof called for redemption
as long as the Company has deposited with the Paying Agents for the Notes funds
in U.S. legal tender in satisfaction of the applicable Redemption Price pursuant
to this Indenture.
Section 3.03. Notice of Redemption.
Notice of redemption shall be mailed by first class mail at least 30
but not more than 60 calendar days before the Redemption Date (other than in
connection with a Special Redemption) to each Holder to be redeemed at its
registered address. If any Note is to be redeemed in part only, the notice of
redemption that relates to such Note shall state the portion of the principal
amount thereof to be redeemed.
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In the event of a Special Redemption, notice of redemption shall be
given at least five days before a Special Redemption by first class mail to each
Holder as such Holder's address appears in the Register.
The notice shall identify the Notes to be redeemed (including the
CUSIP number(s) thereof) and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if any,
to be paid;
(3) that, if any Note is being redeemed in part, the portion of the
principal amount (equal to $1,000 in principal amount or any integral
multiple thereof) of such Note to be redeemed and that, on and after the
Redemption Date, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion thereof will be issued;
(4) the name, address and telephone number of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent at the address specified to collect the Redemption Price plus
accrued interest, if any;
(6) that, unless the Company defaults in making the redemption
payment, interest on Notes (or portion thereof) called for redemption
ceases to accrue on and after the Redemption Date and the only remaining
right of the Holders is to receive payment of the Redemption Price plus
accrued interest to the Redemption Date upon surrender of the Notes to the
Paying Agent;
(7) the subparagraph of the Notes pursuant to which the Notes called
for redemption are being redeemed; and
(8) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption.
Section 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is mailed,
Notes called for redemption become due and payable on the Redemption Date and at
the Redemption Price, including any premium, plus accrued interest to the
Redemption Date, if any. Upon surrender to the Paying Agent, such Notes shall be
paid at the Redemption Price, including any premium, plus accrued interest to
the Redemption Date, if any; provided that if the Redemption Date is after a
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.
Section 3.05. Deposit of Redemption Price.
On or prior to 11:00 a.m., New York City time, on each Redemption
Date, the Company shall have deposited with the Paying Agent (or, if the Company
or a Wholly Owned Restricted Subsidiary is the Paying Agent, shall segregate and
hold in trust) in immediately available funds U.S. legal tender sufficient to
pay the Redemption Price of and accrued interest on all Notes to be redeemed on
that date other than Notes or portions of Notes called for redemption that have
been delivered by the Company to the Trustee for cancellation.
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On and after any Redemption Date, if U.S. legal tender sufficient to
pay the Redemption Price of and accrued interest on Notes called for redemption
shall have been made available in accordance with the preceding paragraph, the
Notes called for redemption will cease to accrue interest and the only right of
the Holders of such Notes will be to receive payment of the Redemption Price of
and, subject to the proviso in Section 3.04, accrued and unpaid interest on such
Notes to the Redemption Date. If any Note called for redemption shall not be so
paid, interest will continue to accrue and be paid, from the Redemption Date
until such redemption payment is made, on the unpaid principal of the Note and
any interest not paid on such unpaid principal, in each case, at the rate and in
the manner provided for in Section 2.12.
Section 3.06. Notes Redeemed in Part.
Subject to the last paragraph of Section 2.02, upon surrender of a
Note that is redeemed in part, the Trustee shall authenticate for a Holder a new
Note equal in principal amount to the unredeemed portion of the Note
surrendered.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay the principal of and interest (including all
Additional Interest) on the Notes on the dates and in the manner provided in the
Notes and this Indenture. An installment of principal or interest shall be
considered paid on the date it is due if the Trustee or Paying Agent holds, for
the benefit of the Holders, on that date U.S. legal tender designated for and
sufficient to pay such installment in full and is not prohibited from paying
such money to the Holders pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal and interest on
overdue interest, to the extent lawful as provided for in Section 2.12.
Section 4.02. Reports.
(A) Whether or not required by the Commission, so long as any
Notes are outstanding, the Company will furnish to the Holders, within the time
periods specified in the Commission's rules and regulations:
(1) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and
10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results
of Operations" and, with respect to the annual information only, a report
on the annual financial statements by the Company's certified independent
accountants; and
(2) all current reports that would be required to be filed with the
Commission on Form 8-K if the Company were required to file such reports.
If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by the preceding paragraph will include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes
thereto, and in
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Management's Discussion and Analysis of Financial Condition and Results of
Operations, of the financial condition and results of operations of the Company
and its Restricted Subsidiaries separate from the financial condition and
results of operations of the Unrestricted Subsidiaries of the Company.
(B) In addition, whether or not required by the Commission, the
Company will file a copy of all of the information and reports referred to in
clauses (A)(1) and (A)(2) above with the Commission for public availability
within the time periods specified in the Commission's rules and regulations
(unless the Commission will not accept such a filing) and make such information
available to securities analysts and prospective investors upon request. The
Company will also furnish to Holders and prospective investors upon request the
information required to be delivered pursuant to Rule 144 and Rule 144A(d)(4)
under the Securities Act. The Company shall also comply with the provisions of
TIA Section 314(a).
Section 4.03. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead (as a defense or otherwise)
or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law or any usury law or other law which would prohibit or forgive
the Company from paying all or any portion of the principal of, premium, if any,
and/or interest (including Additional Interest) on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that they may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
Section 4.04. Compliance Certificate; Notice of Default; Tax Information.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of the Company's fiscal year an Officers' Certificate (one of the
signers of which shall be the principal executive officer, principal financial
officer or principal accounting officer of the Company) indicating whether the
signers thereof actually know of any Default that occurred during such fiscal
year and listing all Restricted Payments for such fiscal year. The Officers'
Certificate shall also notify the Trustee should the Company elect to change the
manner in which it fixes its fiscal year end.
(b) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Notes, the Company
shall deliver to the Trustee, at its address set forth in Section 11.02, by
registered or certified mail or by telegram, telex or facsimile transmission
followed by hard copy by registered or certified mail an Officers' Certificate
specifying such Default or Event of Default, notice or other action, the status
thereof and what action the Company is taking or proposes to take, in each case,
within ten Business Days of a Senior Officer obtaining actual knowledge of such
occurrence.
(c) The annual financial statements delivered pursuant to Section
4.02 shall be accompanied by a written report addressed to the Trustee of the
Company's independent accountants (who shall be a firm of established national
reputation) that in conducting their audit of such financial statements nothing
has come to their attention that would lead them to believe that a Default or
Event of Default has occurred under this Indenture insofar as they relate to
accounting matters or, if any such violation has occurred, specifying the nature
and period of existence thereof, it being understood that such accountants shall
not be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(d) The Company shall calculate and deliver to the Trustee all
original issue discount information to be reported by the Trustee to Holders as
required by applicable law.
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Section 4.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all material taxes,
assessments and governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon it or any of
its Restricted Subsidiaries or Properties of it or any of its Restricted
Subsidiaries and (ii) all lawful claims for labor, materials and supplies that,
if unpaid, might by law become a Lien upon the Property of it or any of its
Restricted Subsidiaries; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings for which adequate reserves,
to the extent required under GAAP, have been set aside.
Section 4.06. Corporate Existence.
Subject to Article 5, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or limited liability company or other
existence of each Restricted Subsidiary, in accordance with the respective
organizational documents (as the same may be amended from time to time) of each
Restricted Subsidiary and (ii) the material rights (charter and statutory),
licenses and franchises of the Company and its Restricted Subsidiaries except
where the failure to preserve and keep in full force and effect any such rights,
licenses and franchise shall not have a material adverse effect on the financial
condition, business, operations or prospects of the Company and its Restricted
Subsidiaries taken as a whole; and provided that the Company shall not be
required to preserve any such right, license or franchise, or the corporate,
limited liability company, partnership or other existence of any of its
Subsidiaries, if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries, taken as a whole, and that the loss thereof is
not adverse in any material respect to the Holders; and provided, further, that
the foregoing shall not require the preservation, renewal or maintenance of any
rights, licenses, orders, permits or authorizations issued by the Federal
Communications Commission for a satellite that is yet to be launched.
Section 4.07. Maintenance of Office or Agency.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York where Notes may be surrendered for registration
of transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee as set forth in Section 11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations. The
Company shall give prompt written notice to the Trustee of such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby initially designates the Corporate Trust Office
of the Trustee set forth in Section 11.02 as such office of the Company.
Section 4.08. Compliance with Laws.
The Company shall comply, and shall cause each of its Restricted
Subsidiaries to comply, with all applicable statutes, rules, regulations and
orders of the United States of America, all states and municipalities
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thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except for such noncompliances as would not in the aggregate have a
material adverse effect on the financial condition or results of operations of
the Company and its Restricted Subsidiaries taken as a whole; it being
understood that any failure as it may relate to any rights, licenses, orders,
permits or authorizations issued by the Federal Communications Commission for a
satellite that has yet to be launched shall not, in itself, be considered or
deemed to result in a material adverse effect on the financial condition or
results of operations of the Company and its Restricted Subsidiaries taken as a
whole.
Section 4.09. Maintenance of Properties.
The Company shall, and shall cause each of its Restricted
Subsidiaries to keep and maintain all Properties material to the conduct of the
Company's business in good working order and condition, ordinary wear and tear
excepted; provided, however, that nothing in this Section 4.09 shall prevent the
Company or any of its Restricted Subsidiaries from discontinuing the use,
operation or maintenance of any of such properties, or disposing of any of them,
if such discontinuance or disposal is, in the judgment of the Board of Directors
of the Company or of the Board of Directors of any Restricted Subsidiary of the
Company concerned, or of an officer (or other agent employed by the Company or
of any of its Restricted Subsidiaries) of the Company or any of its Restricted
Subsidiaries having managerial responsibility for any such Property, desirable
in the conduct of the business of the Company or any Restricted Subsidiary of
the Company, and if such discontinuance or disposal is not adverse in any
material respect to the Holders.
Section 4.10. Limitation on Indebtedness.
The Company shall not, directly or indirectly, Incur any
Indebtedness (including Acquired Indebtedness) or issue any Disqualified Equity
Interests, and shall not permit any Restricted Subsidiary to, directly or
indirectly, Incur any Indebtedness (including Acquired Indebtedness) or issue
any Preferred Equity Interests except, in each case, for Permitted Indebtedness;
provided, however, that the Company may Incur Indebtedness (including Acquired
Indebtedness) or issue Disqualified Equity Interests and any Guarantor may Incur
Indebtedness (including Acquired Indebtedness) or issue Preferred Equity
Interests if, at the time of and immediately after giving pro forma effect to
such Incurrence of Indebtedness or issuance of Disqualified Equity Interests or
Preferred Equity Interests, as the case may be, and the application of the
proceeds therefrom, the Company's Debt to Operating Cash Flow Ratio would be
less than or equal to 5.0 to 1.0.
The foregoing limitations will not apply to the Incurrence of any of
the following (collectively, "Permitted Indebtedness"), each of which shall be
given independent effect:
(a) Indebtedness under (i) the Notes issued on the Issue Date in an
aggregate principal amount not to exceed $800,000,000, (ii) this Indenture
and (iii) the Guarantees of the Guarantors;
(b) (i) Indebtedness and Disqualified Equity Interests in the
Company and Indebtedness and Preferred Equity Interests in the Restricted
Subsidiaries of the Company outstanding on the Issue Date, other than
Indebtedness described in clause (a) or (c) of this paragraph, reduced by
the amount of any scheduled payments or mandatory repayments when actually
paid or permanent reductions therein and (ii) Indebtedness arising from
any Sale and Lease-Back Transaction in respect of the PAS-10 satellite in
an aggregate principal amount not to exceed $180,000,000;
(c) Indebtedness of the Company and the Restricted Subsidiaries
(other than the Foreign Restricted Subsidiaries except to the extent a
Guarantor) under Credit Facilities in an aggregate principal amount for
all such Indebtedness, together with the aggregate Off-Balance Sheet
Financing Amount attributable to Qualified Securitization Transactions,
not to exceed $1,250,000,000 at any one
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time outstanding, less the amount of Asset Sale Proceeds applied to
permanently repay Indebtedness under Credit Facilities;
(d) Indebtedness of and Disqualified Equity Interests in (x) any
Restricted Subsidiary owed to or issued to and held by the Company or any
other Restricted Subsidiary and (y) the Company owed to and held by any
Restricted Subsidiary which is unsecured and subordinated in right of
payment, pursuant to a written agreement, to the payment and performance
of the Company's obligations under this Indenture and the Notes;
(e) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished within five Business Days
after Incurrence;
(f) Hedging Agreements of the Company or any Restricted Subsidiary
relating to any Indebtedness of the Company or such Restricted Subsidiary,
as the case may be, Incurred in accordance with the provisions of this
Indenture; provided that such Hedging Agreements have been entered into
for bona fide business purposes and not for speculation;
(g) Indebtedness of the Company or any of the Restricted
Subsidiaries in respect of letters of credit, performance bonds, bankers'
acceptances, workers' compensation claims, surety or appeal bonds and
payment obligations in connection with self-insurance or similar
obligations, in each case, in the ordinary course of business;
(h) Refinancing Indebtedness;
(i) Indebtedness (or guarantees thereof) of the Company or a
Restricted Subsidiary (including Capitalized Lease Obligations,
Indebtedness under a Sale and Lease-Back Transaction and Purchase Money
Indebtedness) Incurred for the purpose of financing or refinancing all or
any part of the lease, purchase price or cost of acquisition,
construction, installation or improvement of property, plant or equipment
used or useful in the business of the Company or such Restricted
Subsidiary (whether through the direct purchase of assets or of the Equity
Interests of any Person owning such assets and whether such Indebtedness
is owed to the seller or the Person carrying out such construction,
installation or improvement or to any third party) not to exceed 100% of
the cost of such acquisition, construction, installation or improvement of
such property, plant or equipment (or Equity Interests) to which such
Indebtedness relates; provided that the amount of Indebtedness Incurred
pursuant to this clause (i) shall not exceed 10% of Consolidated Tangible
Assets;
(j) Indebtedness of Foreign Restricted Subsidiaries; provided that
the aggregate principal amount of such Indebtedness does not exceed
$5,000,000 at any one time outstanding;
(k) a guarantee by the Company or any Restricted Subsidiary of
Indebtedness of the Company or a Restricted Subsidiary that was permitted
to be Incurred by another provision of this Section 4.10; provided that
the obligations of the Company and the Guarantors under guarantees of
Indebtedness of Non-Guarantor Subsidiaries under this clause (k) shall not
exceed $5,000,000 at any one time outstanding; and
(l) in addition to any Indebtedness described in clauses (a) through
(k) above, Indebtedness or Disqualified Equity Interests of the Company or
Indebtedness or Preferred Equity Interests of any of the Restricted
Subsidiaries so long as the principal amount of all such Indebtedness
incurred, and the amount of Disqualified Equity Interests and Preferred
Equity Interests issued, in the aggregate, pursuant to this clause (l)
does not exceed $100,000,000 at any one time outstanding.
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For purposes of determining compliance with this Section 4.10, (1)
the outstanding principal amount of any particular Indebtedness shall be counted
only once and any obligation arising under any guarantee, Lien, letter of credit
or similar instrument supporting such Indebtedness incurred in compliance with
the terms of this Section 4.10 shall be disregarded and (2) if an item of
Indebtedness meets the criteria of more than one of the categories of Permitted
Indebtedness described in clauses (a) through (l) above or is permitted to be
Incurred pursuant to the first paragraph of this Section 4.10 and also meets the
criteria of one or more of the categories of Permitted Indebtedness described in
clauses (a) through (l) above, the Company shall, in its sole discretion,
classify such item of Indebtedness in any manner that complies with this Section
4.10 and may from time to time reclassify such item of Indebtedness in any
manner in which such item could be Incurred at the time of such
reclassification. Notwithstanding any other provision in this Section 4.10, the
maximum amount of Indebtedness that the Company or any Restricted Subsidiary may
Incur pursuant to this covenant shall not be deemed to be exceeded as a result
of fluctuations in the exchange rates of currencies.
Accrual of interest, the accretion of original issue discount and
the payment of interest in the form of additional Indebtedness of the same class
will not be deemed to be an Incurrence of Indebtedness for purposes of this
Section 4.10 and the payment of dividends on Disqualified Equity Interests (or
Preferred Equity Interests in the case of any Restricted Subsidiary) in the form
of additional shares of the same class of Disqualified Equity Interests will not
be deemed to be an issuance of Disqualified Equity Interests (or Preferred
Equity Interests in the case of any such Restricted Subsidiary).
Section 4.11. Limitation on Restricted Payments.
The Company shall not, and shall not permit any Restricted
Subsidiary to, make any Restricted Payment if:
(1) at the time of such proposed Restricted Payment, a Default or
Event of Default shall have occurred and be continuing or shall occur as a
consequence of such Restricted Payment;
(2) immediately after giving effect to such proposed Restricted
Payment, the Company would not be able to incur $1.00 of additional
Indebtedness under the Debt to Operating Cash Flow Ratio of the first
paragraph of Section 4.10; or
(3) immediately after giving effect to any such Restricted Payment,
the aggregate of all Restricted Payments (excluding Restricted Payments
made pursuant to clause (3)(A)(ii) below, but including Permitted
Investments referred to in clauses (x)(a), (xii) and (xiv) of the
definition of the term "Permitted Investments" as if they were Restricted
Payments, to the extent made after the Issue Date) which shall have been
made on or after the Issue Date would exceed an amount equal to the
difference between (a) the Cumulative Credit and (b) 1.4 times Cumulative
Interest Expense.
The provisions of the first paragraph of this covenant shall not
prevent:
(1) the retirement of any of the Company's Equity Interests in
exchange for, or out of the proceeds of, the substantially concurrent sale
(other than to a Restricted Subsidiary) of Equity Interests (other than
Disqualified Equity Interests) in the Company;
(2) the payment of any dividend or distribution on, or redemption of
Equity Interests within 60 days after the date of declaration of such
dividend or distribution or the giving of formal notice of such
redemption, if at the date of such declaration or giving of such formal
notice such payment or redemption would comply with the provisions of this
Indenture;
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(3) the redemption, repurchase, retirement, defeasance or other
acquisition of any Subordinated Obligations of the Company or any
Guarantor (A) in exchange for, or out of net cash proceeds of the
substantially concurrent sale (other than to a Restricted Subsidiary) of
(i) Equity Interests (other than Disqualified Equity Interests) in the
Company or (ii) Subordinated Obligations of the Company or any Guarantor
which constitute Refinancing Indebtedness or (B) upon a Change of Control,
Asset Sale or Event of Loss to the extent required by the agreement
governing such Subordinated Obligations but only if the Company shall have
complied with Sections 4.13 and 4.17 and purchased all Notes validly
tendered pursuant to the relevant offer prior to purchasing or repaying
such Subordinated Obligations;
(4) payments or distributions to dissenting stockholders under
applicable law or in connection with a consolidation, merger or transfer
of assets;
(5) to the extent constituting Restricted Payments, Specified
Affiliate Payments; and
(6) additional Restricted Payments in an aggregate amount (net of
repayments) not to exceed $25,000,000 at any one time outstanding;
provided, however, that in the case of clause (6) of this paragraph, no Default
or Event of Default shall have occurred and be continuing at the time of such
Restricted Payment or as a result thereof. In determining the aggregate amount
of Restricted Payments made on or after the Issue Date, Restricted Payments made
pursuant to clauses (1), (2), (3) (other than (3)(A)(ii)), (4), (5) and (6)
shall be included in such calculation.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment,
without regard to subsequent changes in value. The fair market value of any
non-cash Restricted Payment shall be determined in good faith by the Board of
Directors.
In making the computations required by this Section 4.11:
(a) the Company or the relevant Restricted Subsidiary may use
audited financial statements for the portions of the relevant period for
which audited financial statements are available on the date of
determination and unaudited financial statements and other current
financial data based on the books and records of the Company for the
remaining portion of such period; and
(b) the Company or the relevant Restricted Subsidiary will be
permitted to rely in good faith on the financial statements and other
financial data derived from the books and records of the Company and the
Restricted Subsidiary that are available on the date of determination.
If the Company or a Restricted Subsidiary makes a Restricted Payment
that, at the time of the making of such Restricted Payment, would in the good
faith determination of the Company or any Restricted Subsidiary be permitted
under the requirements of this Indenture, such Restricted Payment will be deemed
to have been made in compliance with this Indenture notwithstanding any
subsequent adjustments made in good faith to the Company's or any Restricted
Subsidiary's financial statements, affecting Cumulative Credit or Consolidated
Interest Expense of the Company for any period. For the avoidance of doubt, it
is expressly agreed that no payment or other transaction permitted by clauses
(ii), (iv), (v), (ix) and (x) of the third paragraph of Section 4.14 shall be
considered a Restricted Payment for purposes of, or otherwise restricted by,
this Indenture.
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Section 4.12. Designation of Unrestricted Subsidiaries.
The Company may designate any Subsidiary (including any newly
acquired or newly formed Subsidiary or a Person becoming a Subsidiary through
merger or consolidation or Investment therein) as an "Unrestricted Subsidiary"
hereunder (a "Designation") only if:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Designation; and
(b) the Company would be permitted to make a Permitted Investment or
Restricted Payment at the time of Designation (assuming the effectiveness
of such Designation) in an amount equal to the Company's proportionate
interest in the fair market value of such Subsidiary on such date (as
determined in good faith by the Board of Directors whose determination
shall be evidenced by a Board Resolution).
At the time of Designation all of the Indebtedness of such Unrestricted
Subsidiary, to the extent guaranteed by the Company or any Restricted
Subsidiary, shall be deemed an Incurrence of the guarantee of such Indebtedness
at the time of such Designation and such Designation shall only be permissible
if such Indebtedness is then permitted to be Incurred under Section 4.10.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Revocation; and
(b) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if Incurred at
such time, have been permitted to be Incurred for all purposes of this
Indenture.
All Designations and Revocations must be evidenced by Board Resolutions
delivered to the Trustee certifying compliance with the foregoing provisions.
Section 4.13. Limitation on Asset Sales.
The Company shall not, and shall not permit any Restricted
Subsidiary to, consummate an Asset Sale unless:
(i) the Company or such Restricted Subsidiary, as the case may be,
receives consideration at the time of such sale or other disposition at
least equal to the fair market value thereof (as determined in good faith
by the Board of Directors whose determination shall be evidenced by a
Board Resolution);
(ii) not less than 75% of the consideration received by the Company
or such Restricted Subsidiary, as the case may be, is in the form of cash
or Cash Equivalents; provided, however, that up to $40,000,000 of assets
at any one time may be considered to be cash for purposes of this clause
(ii) so long as the provisions of clause (iii) below are complied with as
such non-cash assets are converted to cash; and
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(iii) the Asset Sale Proceeds (together with any Event of Loss
Proceeds required to be applied as provided in Section 4.16) received by
the Company or such Restricted Subsidiary are applied (a) first, (i) to
the extent the Company elects, or is required, to prepay or repay debt
(other than debt owed to the Company or a Subsidiary of the Company) under
the Senior Credit Facility, any other secured Indebtedness, Indebtedness
of any Non-Guarantor Subsidiary (but only to the extent such Asset Sale
Proceeds or Event of Loss Proceeds are from an Asset Sale of or an Event
of Loss affecting such Non-Guarantor Subsidiary) or Pari Passu
Indebtedness; provided that if the Company shall so reduce Pari Passu
Indebtedness, it will equally and ratably make an Excess Proceeds Offer to
all holders) within 360 days following the receipt of the Asset Sale
Proceeds from any Asset Sale (and any Event of Loss Proceeds from an Event
of Loss), and/or (ii) to the extent the Company elects, to purchase assets
(including Equity Interests or other securities purchased in connection
with the acquisition of Equity Interests or Property of another Person)
used or useful in a Permitted Business of the Company or any of its
Restricted Subsidiaries; provided that either (y) such purchase occurs and
such Asset Sale Proceeds (and Event of Loss Proceeds) are so applied or
(z) the Company enters into a binding agreement committing to make such
purchase (subject to customary conditions precedent), in each case, within
360 days following the receipt of such Asset Sale Proceeds (and Event of
Loss Proceeds) (the "Reinvestment Date"), and (b) second, if on the
Reinvestment Date with respect to any Asset Sale Proceeds (and Event of
Loss Proceeds) the Excess Proceeds exceed $30,000,000, the Company shall
(i) make an offer to all Holders and (ii) prepay, purchase or redeem (or
make an offer to do so) any other Pari Passu Indebtedness of the Company
in accordance with provisions governing such Indebtedness requiring the
Company to prepay, purchase or redeem such Indebtedness with the proceeds
from any Asset Sales (or offer to do so) pro rata in proportion to the
respective principal amounts of the Notes and such other Indebtedness
required to be prepaid, purchased or redeemed or tendered for, in the case
of the Notes pursuant to such offer to purchase the maximum principal
amount of Notes that may be purchased out of such pro rata portion of the
Excess Proceeds, at an offer price in cash in an amount equal to 100% of
the principal amount thereof plus accrued and unpaid interest and
Additional Interest, if any, thereon to the date of repurchase (an "Excess
Proceeds Offer") subject to the right of Holders of record on a Record
Date to receive interest on the relevant Interest Payment Date in
accordance with the procedures set forth in this Indenture. Pending the
final application of any Asset Sale Proceeds (or Event of Loss Proceeds),
the Company or any Restricted Subsidiary may temporarily reduce borrowings
under a Credit Facility or otherwise invest such Asset Sale Proceeds (or
Event of Loss Proceeds) in any manner that is not prohibited by this
Indenture.
To the extent that the aggregate principal amount of Notes and Pari
Passu Indebtedness tendered pursuant to an Excess Proceeds Offer or other offer
is less than the Excess Proceeds, the Company may use any remaining Excess
Proceeds for any purpose not otherwise prohibited by this Indenture. For
purposes of determining in clause (ii) above the percentage of cash
consideration received by the Company or any Restricted Subsidiary, (1) the
amount of any (x) liabilities (other than liabilities that are by their terms
subordinated to the Notes)(as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet) of the Company or any Restricted
Subsidiary that are actually assumed by the transferee in such Asset Sale and
from which the Company and the Restricted Subsidiaries are fully released shall
be deemed to be cash, and (y) securities, notes or other similar obligations
received by the Company or such Restricted Subsidiary from such transferee that
are immediately converted (or are converted within 30 days of the related Asset
Sale) by the Company or such Restricted Subsidiary into cash shall be deemed to
be cash in an amount equal to the net cash proceeds realized upon such
conversion, and (2) a lease entered into in connection with a Sale and
Lease-Back Transaction shall not be considered as consideration received in
connection with such transaction.
If the Company is required to make an Excess Proceeds Offer, within
30 days following the Reinvestment Date, the Company shall send by first class
mail, postage prepaid, to the Trustee and to each Holder, at the address
appearing in the register of the Notes maintained by the Registrar, a notice
stating, among other things:
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(1) that such Holders have the right to require the Company to apply
the pro rata portion of the Excess Proceeds to repurchase such Notes at a
purchase price in cash equal to 100% of the principal amount thereof plus
accrued and unpaid interest and Additional Interest, if any, thereon to
the date of repurchase;
(2) the purchase date, which shall be a Business Day no earlier than
30 days nor later than 60 days from the date such notice is mailed
("Excess Proceeds Payment Date");
(3) that any Note not tendered or accepted for payment will continue
to accrue interest;
(4) that any Notes accepted for payment pursuant to the Excess
Proceeds Offer shall cease to accrue interest after the Excess Proceeds
Payment Date;
(5) that Holders accepting the offer to have their Notes purchased
pursuant to an Excess Proceeds Offer will be required to surrender the
Notes, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the Business Day
preceding the Excess Proceeds Payment Date;
(6) that Holders will be entitled to withdraw their acceptance of
the Excess Proceeds Offer if the Paying Agent receives, not later than the
close of business on the third Business Day preceding the Excess Proceeds
Payment Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Notes delivered
for purchase, and a statement that such Holder is withdrawing his election
to have such Notes purchased;
(7) that if the aggregate principal amount of Notes surrendered by
Holders exceeds the amount of Excess Proceeds, the Trustee shall select
the Notes to be purchased on a pro rata basis or by lot or by such other
method that the Trustee deems fair and equitable to the Holders (with such
adjustments as may be deemed appropriate by the Company so that only Notes
in denominations of $1,000 or integral multiples thereof, shall be
purchased);
(8) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered, provided that each Note purchased and each such
new Note issued shall be in an original principal amount in denominations
of $1,000 and integral multiples thereof;
(9) the calculations used in determining the amount of Excess
Proceeds to be applied to the purchase of such Notes;
(10) any other procedures that a Holder must follow to accept an
Excess Proceeds Offer or effect withdrawal of such acceptance; and
(11) the name and address of the Paying Agent.
On the Excess Proceeds Payment Date, the Company shall, to the
extent lawful, (1) accept for payment, on a pro rata basis to the extent
necessary, Notes or portions thereof tendered pursuant to the Excess Proceeds
Offer, (2) deposit with the Paying Agent U.S. legal tender sufficient to pay the
purchase price plus accrued and unpaid interest, if any, on the Notes to be
purchased or portions thereof, (3) deliver or cause to be delivered to the
Trustee Notes so accepted together with an Officers' Certificate stating that
such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 4.13.
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The Paying Agent shall promptly mail to each Holder so accepted payment in an
amount equal to the purchase price for such Notes, and the Company shall execute
and issue, and the Trustee shall promptly authenticate and make available for
delivery to such Holder, a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered; provided that each such new Note shall be
issued in an original principal amount in denominations of $1,000 and integral
multiples thereof. The Company shall publicly announce the results of the Excess
Proceeds Offer as soon as practicable after the Excess Proceeds Payment Date.
To the extent that the provisions of any securities laws or
regulations conflict with this Section 4.13, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.13 by virtue thereof. Upon
completion of the Excess Proceeds Offer, the amount of Excess Proceeds shall be
reset to zero.
In the event of the transfer of substantially all of the Property
and assets of the Company and its Restricted Subsidiaries as an entirety to a
Person in a transaction permitted under Section 5.01, the successor Person shall
be deemed to have sold the Properties and assets of the Company and its
Restricted Subsidiaries not so transferred for purposes of this Section 4.13,
and shall comply with the provisions of this Section 4.13 with respect to such
deemed sale as if it were an Asset Sale.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.13.
Section 4.14. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into, amend or suffer to exist
any transaction or series of related transactions (including the sale, purchase,
exchange or lease of assets, Property or services) with or for the benefit of
any Affiliate (each an "Affiliate Transaction") or extend, renew, waive or
otherwise amend or modify the terms of any Affiliate Transaction entered into
prior to the Issue Date unless
(1) such Affiliate Transaction is between or among the Company and
one or more of its Restricted Subsidiaries; or
(2) the terms of such Affiliate Transaction are fair and reasonable
to the Company or such Restricted Subsidiary, as the case may be, and the
terms of such Affiliate Transaction are at least as favorable as the terms
which could be obtained by the Company or such Restricted Subsidiary, as
the case may be, in a comparable transaction made on an arm's-length basis
between unaffiliated parties.
In any Affiliate Transaction (or any series of related Affiliate
Transactions which are similar or part of a common plan) involving an amount or
having a fair market value in excess of $25,000,000 which is not permitted under
clause (1) above, the Company must obtain a Board Resolution (which Board
Resolution shall also have been approved by a majority of the disinterested
members of the Board of Directors, if any) certifying that such Affiliate
Transaction complies with clause (2) above.
The foregoing provisions will not apply to
(i) any Restricted Payment or Permitted Investment permitted in
accordance with the terms of this Indenture (other than an Investment in a
Person in which an Affiliate of the Company (other than a Restricted
Subsidiary) owns any Equity Interest);
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(ii) any employment agreements, consulting agreements,
non-competition agreements, stock purchase or option agreements,
collective bargaining agreements, employee benefit plans or arrangements
(including vacation plans, health and life insurance plans, deferred
compensation plans, stock loan plans, directors' and officers'
indemnification agreements and retirement, savings or similar plans),
related trust agreements or any similar arrangements, in each case in
respect of employees, officers or directors of the Company or any
Restricted Subsidiary and entered into in the ordinary course of business,
any payments, indemnification provided under, or other transactions
contemplated by, any of the foregoing and any other payments of
compensation to employees, officers, directors or consultants of the
Company or any Restricted Subsidiary in the ordinary course of business as
determined in good faith by the Company's Board of Directors or senior
management;
(iii) transactions between or among the Company and/or one or more of
its Restricted Subsidiaries and any joint venture; provided no Affiliate
of the Company (other than a Restricted Subsidiary) owns any of the Equity
Interests of any such joint venture;
(iv) any agreement or arrangement as in effect as of the Issue Date
(including any tax sharing agreement or arrangement) or any amendment
thereto or any transaction contemplated thereby (including pursuant to any
amendment thereto) or any replacement agreement or arrangement or any
transaction pursuant thereto so long as any such amendment or replacement
agreement or arrangement is not more disadvantageous to the Holders in any
material respect than the original agreement or arrangement as in effect
on the Issue Date;
(v) transactions with customers, clients, suppliers, or purchasers
or sellers of goods or services, in each case in the ordinary course of
business and otherwise in compliance with the terms of this Indenture
which are fair to the Company or its Restricted Subsidiaries, or are on
terms at least as favorable as might reasonably have been obtained at such
time from an unaffiliated party, in each case in the reasonable
determination of the Company's Board of Directors or senior management;
(vi) any transaction on arm's-length terms with non-affiliates that
become Affiliates as a result of such transaction;
(vii) the issuance of Equity Interests (other than Disqualified
Equity Interests) of the Company;
(viii) transactions effected as part of a Qualified Securitization
Transaction;
(ix) loans or advances to officers, directors, employees and
consultants (or guarantees of third-party loans to officers, directors,
employees and consultants) of the Company or the Holding Company in the
ordinary course of business; and
(x) without limiting clause (v) above, the provision of services to
any Permitted Holder and its Affiliates by the Company or any of its
Restricted Subsidiaries, on the one hand, or to the Company and its
Restricted Subsidiaries by any Permitted Holder or any of its Affiliates,
on the other hand, so long as no cash or other assets are transferred by
the Company or any Restricted Subsidiary in connection with such
transactions (other than up to $10,000,000 in cash in any fiscal year and
other than nonmaterial assets used in the operations of the business in
the ordinary course pursuant to the agreement governing the provision of
services), and so long as such transaction or agreement is determined by a
majority of the members of the Board of Directors of the Company to be
fair to the Company and its Restricted Subsidiaries when taken together
with all other such transactions and agreements entered into with such
Permitted Holder and its Affiliates.
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Section 4.15. Limitation on Liens.
The Company shall not, and shall not permit any Restricted
Subsidiary to, Incur any Indebtedness secured by a Lien against or on any of its
Property or assets now owned or hereafter acquired by the Company or any such
Restricted Subsidiary, unless:
(1) in the case of Liens securing Indebtedness that is a
Subordinated Obligation, the Notes or such Guarantee of such Guarantor are
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 or such guarantee of such
Guarantor are equally and ratably secured; provided that any Lien which is
granted to secure the Notes under this covenant shall be discharged at the
same time as the discharge of the Lien that gave rise to the obligation to
so secure the Notes.
This restriction does not, however, apply to:
(i) Liens, if any, in effect on the Issue Date to the extent and in
the manner such Liens are in effect on the Issue Date;
(ii) Liens securing the Notes or the Guarantee of a Guarantor;
(iii) Liens securing the Existing Notes to the extent and in the
manner provided for in or required under the Existing Notes Indenture as
in effect on the Issue Date;
(iv) Liens securing obligations under the Credit Facilities to the
extent permitted by clauses (c) and (l) of the second paragraph under
Section 4.10;
(v) Liens in favor of the Company or a Restricted Subsidiary;
(vi) Liens, or amendments or renewals of such Liens, securing
Refinancing Indebtedness which is incurred to Refinance any Indebtedness
secured by a Lien permitted under this Indenture; provided, however, that
such Liens do not extend to or cover any Property or assets of the Company
or any of the Restricted Subsidiaries not securing the Indebtedness so
Refinanced; and
(vii) Other Permitted Liens.
Section 4.16. Maintenance of Insurance.
At all times the Company and each Restricted Subsidiary will
maintain (i) with respect to each satellite to be launched by the Company or any
Restricted Subsidiary, launch insurance with respect to each such satellite
covering the launch of such satellite and a period thereafter, but only to the
extent, if at all, and on such terms (including period, exclusions, limitations
on coverage and coverage amount) as is determined by the Board of Directors of
the Company to be in the best interests of the Company and evidenced by a Board
Resolution delivered to the Trustee, (ii) with respect to each satellite it
currently owns or has risk of loss for, other than any Excluded Satellite or any
In-orbit Spare Satellite (but only to the extent that such In-orbit Spare
Satellite is not expected or intended, in the good faith determination of the
Board of Directors of the Company and evidenced by a Board Resolution delivered
to Trustee, to earn revenues in excess of $15,000,000 for the immediately
succeeding twelve calendar months), in-orbit insurance in an amount at least
equal to the book value of such satellite and (iii) at all times subsequent to
the coverage period of the launch insurance described
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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
other than in the case of any such satellite that is an Excluded Satellite or an
In-orbit Spare Satellite (but only to the extent that such In-orbit Spare
Satellite is not expected or intended, in the good faith determination of the
Board of Directors of the Company and evidenced by a Board Resolution delivered
to the Trustee, to earn revenues in excess of $15,000,000 for the immediately
succeeding twelve calendar months), in-orbit insurance in an amount as provided
for in clause (ii) above; provided, however, that at any time with respect to a
satellite that the Company or any Restricted Subsidiary owns or has risk of loss
for,
(1) the Company and each Restricted Subsidiary may at its option in
lieu of procuring or maintaining the in-orbit insurance described in
clauses (ii) and (iii) above elect to provide an In-orbit Spare Satellite
for one or more satellites (or the C-band or Ku-band payloads separately
on a hybrid C/Ku-band satellite, provided both payloads on such satellite
are protected by In-orbit Spare Satellites or by in-orbit insurance in
accordance with this covenant); provided that
(y) no more than two satellites protected by the same In-orbit
Spare Satellite may, at any time, each be subject to a Partial Loss
exceeding 37.5% of each such satellite's commercial communications
capacity; provided, however, that up to three satellites protected
by the same In-orbit Spare Satellite may, at any time, each be
subject to a Partial Loss exceeding 37.5% of each such satellite's
commercial communications capacity if such In-orbit Spare Satellite
is at such time functioning as an In-orbit Spare Satellite for six
satellites and the Company or the applicable Restricted Subsidiary
shall maintain or procure within 120 days in-orbit insurance
complying with the provisions of clause (ii) or (iii) above, as
applicable, on the three satellites not subject to a Partial Loss
exceeding 37.5% of commercial communications capacity; and
(z) at no single time shall any satellite act as an In-orbit
Spare Satellite for more than six satellites and in no event shall
such satellites be within a geostationary orbital arc of greater
than 60 contiguous degrees of longitude; and
(2) for such time as the Company and its Restricted Subsidiaries
shall own or retain risk of loss for and maintain at least 10 satellites
(other than Excluded Satellites) in commercial operation in orbit, the
Company and its Restricted Subsidiaries shall not be required to maintain
in-orbit insurance in excess of 60% of the aggregate book value of all
satellites insured pursuant to clause (i) above (but included in such
calculation only to the extent such satellite has successfully completed
its in-orbit testing phase) and otherwise required to be insured pursuant
to clauses (ii) and (iii) above (with the allocation of such insurance
among such satellites being in the Company's discretion). In the event
that fewer than 10 satellites (other than Excluded Satellites) are in
commercial operation in-orbit, the Company shall have 120 days to have in
effect in-orbit insurance complying with clause (ii) or (iii) of the first
paragraph above, as applicable; provided that the Company and its
Restricted Subsidiaries shall be considered in compliance with this
insurance covenant for such 120-day period.
The insurance policies required by the foregoing paragraph shall
(i) contain no exclusions other than
(A) Acceptable Exclusions and such other exclusions or
limitations of coverage as may be applicable to all satellites of
the same model or relating to systemic anomalies as are then
customary in the satellite insurance market and
(B) such specific exclusions applicable to the performance of
the satellite being insured as are reasonably accepted by the Board
of Directors of the Company in order to
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obtain insurance for a price that is, and on other terms and
conditions that are, commercially reasonable; and
(ii) provide coverage for all risks of loss of and damage to the
satellite, including for Partial Loss, constructive total loss and total
loss.
The insurance required by this covenant shall name the Company or the applicable
Restricted Subsidiary as the named insured.
In the event of (i) a total loss or constructive total loss of an
uninsured in-orbit satellite (or either of the C-band or Ku-band payloads on a
hybrid C/Ku-band satellite thereon) covered by an In-orbit Spare Satellite or
(ii) the unavailability of an In-orbit Spare Satellite for any reason, the
Company shall, subject to clause (2) of the proviso to the first paragraph
above, within 120 days of such loss or unavailability, be required to have in
effect in-orbit insurance complying with clause (ii) or (iii) of the first
paragraph above, as applicable, with respect to all satellites that the In-orbit
Spare Satellite was intended to protect (and in the case of clause (i) of this
paragraph, also the In-orbit Spare Satellite which replaces the satellite
subject to such total loss or constructive total loss) so long as an In-orbit
Spare Satellite is unavailable, provided that the Company and its Restricted
Subsidiaries shall be considered in compliance with this insurance covenant for
the 120 days immediately following such loss or unavailability, as the case may
be.
In the event that the Company or its Restricted Subsidiaries receive
proceeds from any satellite insurance covering any satellite owned by the
Company or any of its Restricted Subsidiaries, or in the event that the Company
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 (the event resulting in the payment of such proceeds, an
"Event of Loss"), all Event of Loss Proceeds in respect of such Event of Loss
shall be applied in the manner provided for in clause (iii) of the first
paragraph of Section 4.13.
Section 4.17. Change of Control.
(A) Upon the occurrence of a Change of Control, each Holder shall
have the right to require the Company to repurchase all or any part of such
Holder's Notes pursuant to an offer described below (the "Change of Control
Offer") at a purchase price equal to 101% of the principal amount thereof plus
accrued and unpaid interest and Additional Interest, if any, thereon to the date
of repurchase (the "Change of Control Payment").
(B) Within 30 days of the occurrence of a Change of Control, the
Company shall send by first class mail, postage prepaid, to the Trustee and to
each Holder, at the address appearing in the register of Notes maintained by the
Registrar, a notice stating:
(1) that the Change of Control Offer is being made pursuant to this
covenant and that all Notes tendered will be accepted for payment;
(2) the purchase price and the purchase date, which shall be a
Business Day no earlier than 30 days nor later than 60 days from the date
such notice is mailed (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue interest;
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(4) that, unless the Company defaults in the payment of the Change
of Control Payment, any Notes accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(5) that Holders accepting the offer to have their Notes purchased
pursuant to a Change of Control Offer will be required to surrender the
Notes to the Paying Agent at the address specified in the notice prior to
the close of business on the Business Day preceding the Change of Control
Payment Date;
(6) that Holders will be entitled to withdraw their acceptance if
the Paying Agent receives, not later than the close of business on the
third Business Day preceding the Change of Control Payment Date, a
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Notes delivered for purchase, and a statement that
such Holder is withdrawing its election to have such Notes purchased;
(7) that Holders whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered, provided that each Note purchased and each such
new Note issued shall be in an original principal amount in denominations
of $1,000 and integral multiples thereof;
(8) any other procedures that a Holder must follow to accept a
Change of Control Offer or effect withdrawal of such acceptance; and
(9) the name and address of the Paying Agent.
(C) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (i) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent
money sufficient to pay the purchase price of all Notes or portions thereof so
tendered and (iii) deliver or cause to be delivered to the Trustee Notes so
accepted together with an Officers' Certificate stating the Notes or portions
thereof tendered to the Company. The Paying Agent shall promptly mail to each
Holder so accepted payment in an amount equal to the purchase price for such
Notes, and the Company shall execute and issue, and the Trustee shall promptly
authenticate and mail to such Holder, a new Note equal in principal amount to
any unpurchased portion of the Notes surrendered; provided that each such new
Note shall be issued in an original principal amount in denominations of $1,000
and integral multiples thereof. The Company shall publicly announce the results
of the Change of Control Offer as soon as practicable after the Change of
Control Payment Date.
(D) The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.17.
Section 4.18. Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any Restricted Subsidiary to:
(a) pay dividends or make any other distributions to the Company or
any other Restricted Subsidiary on its Equity Interests;
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(b) pay any Indebtedness owed to the Company or any other Restricted
Subsidiary;
(c) make loans or advances to the Company or any other Restricted
Subsidiary; and
(d) transfer any of its properties or assets to the Company or any
other Restricted Subsidiary
except for encumbrances and restrictions:
(i) existing under or by reason of Acquired Indebtedness of any
Restricted Subsidiary existing at the time such Person became a Restricted
Subsidiary; provided that such encumbrances or restrictions were not
created in anticipation of such Person becoming a Restricted Subsidiary
and are not applicable to the Company or any other Restricted Subsidiary,
(ii) arising under Refinancing Indebtedness permitted by clause (h)
of the second paragraph under Section 4.10; provided that the terms and
conditions of any such restrictions are no less favorable to the Holders
than those under the Indebtedness being Refinanced,
(iii) contained in this Indenture or under the Notes and any other
agreement entered into after the Issue Date; provided that the
encumbrances and restrictions in such agreements are not materially more
restrictive than those contained in this Indenture and the Notes,
(iv) existing under or by reason of the Senior Credit Facility and
the related documentation to the extent and in the manner such
encumbrances and restrictions are in effect on the Issue Date,
(v) existing under or by reason of customary non-assignment
provisions of any contract or any lease governing a leasehold interest of
any Restricted Subsidiary,
(vi) existing under or by reason of agreements existing on the Issue
Date to the extent and in the manner such agreements are in effect on the
Issue Date,
(vii) in customary form on the transfer of any Property or assets
arising under a security agreement or mortgage governing a Lien permitted
under this Indenture,
(viii) existing under or by reason of any agreement governing the
sale or disposition of assets or Equity Interests in any Restricted
Subsidiary which restricts dividends and distributions or transfers of
assets pending such sale or disposition,
(ix) existing under or by reason of Indebtedness or other
contractual requirements of a Securitization Entity in connection with a
Qualified Securitization Transaction so long as such restrictions apply
only to such Securitization Entity,
(x) existing under or by reason of Purchase Money Indebtedness
(including Capitalized Lease Obligations) for Property acquired in the
ordinary course of business that impose restrictions of the nature
described in clause (d) above on the Property so acquired,
(xi) in the case of clause (d) above, (i) that restrict in a
customary manner the subletting, assignment, or transfer of any Property
or asset that is subject to a lease, license or similar contract or (ii)
by virtue of any transfer of, agreement to transfer, option or right with
respect to, or Lien on, any
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Property or assets of the Company or any Restricted Subsidiary not
otherwise prohibited by this Indenture,
(xii) on cash or other deposits or net worth imposed by leases,
credit agreements or other agreements entered into in the ordinary course
of business,
(xiii) created with respect to Indebtedness or Preferred Equity
Interests of Foreign Restricted Subsidiaries permitted to be Incurred or
issued subsequent to the Issue Date pursuant to Section 4.10; provided
that the Board of Directors of the Company determines in good faith at the
time such encumbrances or restrictions are created that such encumbrances
or restrictions would not reasonably be expected to impair the ability of
the Company to make payments of interest and scheduled payments of
principal on the Notes as and when due,
(xiv) in customary form under joint venture agreements and other
similar agreements that limit the ability of the Person to which such
agreements relate to undertake the actions described in clauses (a)
through (d) above, and
(xv) by reason of or under any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements
or refinancings of the contracts, instruments or obligations referred to
in clauses (i) through (xiv) above; provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings, taken as a whole, are, in the good faith
judgment of the Company, not materially more restrictive with respect to
such encumbrances or restrictions than those contained in the contracts,
instruments or obligations prior to such amendment, modification,
restatement, renewal, increase, supplement, refunding, replacement or
refinancing.
Section 4.19. Limitation on Business Activities of the Company and the
Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any businesses other than a Permitted Business.
Section 4.20. Limitation on Creation of Subsidiaries.
The Company shall not create or acquire, and shall not permit any
Restricted Subsidiary to create or acquire, any Subsidiary other than
(i) a Restricted Subsidiary existing as of the Issue Date;
(ii) a Restricted Subsidiary that is acquired or created after the
Issue Date; provided, however, that each Restricted Subsidiary (other than
a Foreign Restricted Subsidiary or a Securitization Entity) shall execute
a Guarantee, satisfactory in form and substance to the Trustee (and with
such documentation relating thereto as the Trustee may reasonably require,
including a supplement or amendment to this Indenture, pursuant to which
such Restricted Subsidiary shall become a Guarantor; or
(iii) an Unrestricted Subsidiary.
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Section 4.21. Limitation on Sale and Lease-Back Transactions.
The Company shall not, and shall not permit any Restricted
Subsidiary to, enter into any Sale and Lease-Back Transaction (other than the
Sale and Lease-Back Transaction relating to the PAS-10 satellite); provided that
the Company or any Restricted Subsidiary may enter into a Sale and Lease-Back
Transaction if:
(a) the Company or such Restricted Subsidiary could have:
(i) Incurred any Indebtedness relating to such Sale and
Lease-Back Transaction under Section 4.10; and
(ii) incurred a Lien to secure such Indebtedness pursuant to
Section 4.15;
(b) the consideration received by the Company or such Restricted
Subsidiary in that Sale and Lease-Back Transaction is at least equal to
the fair market value of the Property sold and otherwise complies with
Section 4.13; and
(c) the transfer of assets in that Sale and Lease-Back Transaction
is permitted by, and the Company applies the proceeds of such transaction
in compliance with Section 4.13.
Section 4.22. Payments for Consent.
The Company shall not, and shall not permit any Subsidiary to,
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 or agreed 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
amendment.
Section 4.23. Escrow of Proceeds of Notes on Issue Date.
(a) On the Issue Date, the Company shall enter into the Escrow
Agreement and deposit (or cause to be deposited) into the Escrow Account the
proceeds from the issuance of the Notes (the "Offering Proceeds") and such other
amount of additional funds as, when added to the Offering Proceeds, equals
$813,222,222.22, which amount represents the maximum amount which may be payable
to Holders in connection with the Special Redemption of the Notes. The Trustee
is hereby authorized and directed to execute and deliver the Escrow Agreement
and to perform its duties and obligations thereunder.
(b) The Company will, pursuant to the Escrow Agreement, grant a
first priority security interest in the Collateral (as such term is defined in
the Escrow Agreement) to the Trustee for its benefit and the benefit of the
Holders, in order to secure all monetary obligations of the Company under the
Notes and any other monetary obligation, now or hereafter arising, of every kind
and nature, owed by the Company under this Indenture to the Holders or to the
Trustee for the benefit of the Holders. The Company shall comply with its
obligations under the Escrow Agreement.
(c) Each Holder, by its acceptance of a Note, consents and agrees to
the terms of the Escrow Agreement (including the provisions providing for
foreclosure and release of the Collateral) as the same may be in effect or may
be amended from time to time in accordance with its terms, and authorizes and
directs the Trustee to enter into the Escrow Agreement and to perform its
obligations and exercise its rights thereunder in accordance therewith.
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(d) The release of any Collateral pursuant to the Escrow Agreement
shall not be deemed to impair the security under this Indenture in contravention
of the provisions hereof.
(e) The Trustee, in its sole discretion and without the consent of
the Holders, may take all actions it deems necessary or appropriate in order to
(i) enforce any of the terms of the Escrow Agreement and (ii) collect and
receive any and all amounts payable in respect of the monetary obligations of
the Company thereunder. The Trustee shall have power to institute and to
maintain such suits and proceedings as the Trustee may deem expedient to
preserve or protect its interests and the interests of the Holders in the
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid if the enforcement of, or compliance with, such enactment, rule or order
would impair the security interest under the Escrow Agreement or be prejudicial
to the interest of the Holders or of the Trustee).
Section 4.24. Suspension of Certain Covenants in Event of Investment Grade
Rating.
During any period of time that: (i) the Notes have Investment Grade
Ratings from both Rating Agencies and (ii) no Default or Event of Default has
occurred and is continuing under this Indenture (the occurrence of the events
described in the foregoing clauses (i) and (ii) being collectively referred to
as a "Covenant Suspension Event"), the Company and the Restricted Subsidiaries
will not be subject to the following provisions of the Indenture:
(1) Section 4.11;
(2) Section 4.10;
(3) Section 4.14;
(4) clause (b) of the first and third paragraphs of Section 4.12;
(5) Section 4.18;
(6) Section 4.19;
(7) clause (a)(i) and (b) of Section 4.21;
(8) Section 4.13;
(9) clause (iv) of the first paragraph Section 5.01; and
(10) Section 4.16
(collectively, the "Suspended Covenants"). Upon the occurrence of a Covenant
Suspension Event, the amount of Excess Proceeds from Asset Sale Proceeds (and
Event of Loss Proceeds) shall be set at zero.
In the event that the Company and the Restricted Subsidiaries are
not subject to the Suspended Covenants for any period of time as a result of the
preceding sentence and, subsequently, either of the Rating Agencies withdraws
its rating or downgrades the ratings assigned to the Notes below the required
Investment Grade Ratings such that both Rating Agencies at such time shall not
have assigned to the Notes an Investment Grade Rating or a Default or Event of
Default occurs and is continuing, then the Company and the Restricted
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Subsidiaries will thereafter again be subject to the Suspended Covenants and
compliance with the Suspended Covenants with respect to the Restricted Payments
made after the time of such withdrawal, downgrade, Default or Event of Default
will be calculated in accordance with the terms of Section 4.11 as though such
covenant had been in effect during the entire period of time from the Issue
Date; provided, however, that there will not be deemed to have occurred a
Default or Event of Default with respect to the Suspended Covenants during the
time that the Company and its Restricted Subsidiaries were not subject to the
Suspended Covenants (or upon termination of the suspension period or after that
time based solely on events that occurred during the suspension period).
Upon the occurrence of a Covenant Suspension Event, the Company
shall deliver to the Trustee an Officers' Certificate stating that the
conditions to the effectiveness of such Covenant Suspension Event have been
satisfied.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Merger or Sales of Assets.
The Company shall not consolidate or merge with or into, or transfer
all or substantially all of its assets to, another Person unless:
(i) either (A) the Company shall be the surviving Person, or (B) the
Person formed by or surviving any such consolidation or merger (if other
than the Company), or to which any such transfer shall have been made, is
a corporation organized and existing under the laws of the United States,
any State thereof or the District of Columbia;
(ii) the surviving Person (if other than the Company) expressly
assumes by supplemental indenture all the obligations of the Company under
the Notes and this Indenture;
(iii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving effect to such transaction, the
surviving Person would be able to Incur $1.00 of additional Indebtedness
under the Debt to Operating Cash Flow Ratio of the first paragraph of
Section 4.10; and
(v) the Company shall have delivered to the Trustee prior to the
proposed transaction an Officers' Certificate and an Opinion of Counsel,
each stating that the proposed consolidation, merger or transfer and such
supplemental indenture will comply with this Indenture.
Notwithstanding the foregoing clauses (iii) and (iv): (A) any
Restricted Subsidiary may consolidate with, merge into or transfer all or part
of its properties and assets to the Company; and (B) the Company may (1) merge
with an Affiliate incorporated solely for the purpose of reincorporating the
Company in another jurisdiction, (2) consolidate or merge with or into or
transfer all or substantially all of its assets to a Restricted Subsidiary so
long as all or substantially all of the assets of the Company immediately prior
to such transaction are owned by the surviving Person or such Restricted
Subsidiary immediately after the consummation of such transaction, or (3) merge
with any direct or indirect wholly owned Subsidiary of
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EchoStar pursuant to Section 3.1 of the Stock Purchase Agreement dated as of
October 28, 2001 among EchoStar, Xxxxxx Electronics, Xxxxxx Communications
Galaxy, Inc., Xxxxxx Communications Satellite Services, Inc. and Xxxxxx
Communications Inc.; provided that each such transaction otherwise complies with
the other provisions of this Indenture.
To the extent a transfer contemplated by this covenant is for less
than all of the assets of the Company, the Company shall be deemed to have sold
the assets not so transferred for cash in an amount equal to the fair market
value thereof and shall apply such amount in accordance with Section 4.13.
No Guarantor shall consolidate or merge with or into, or transfer
all or substantially all of its assets to, another Person unless either the
Guarantee of such Guarantor is being released in accordance with Section 10.06
or:
(i) either (A) such Guarantor shall be the continuing Person, or (B)
the Person formed by or surviving any such consolidation or merger (if
other than such Guarantor), or to which any such transfer shall have been
made, is a corporation organized and existing under the laws of the United
States, any State thereof or the District of Columbia;
(ii) the surviving Person (if other than such Guarantor) expressly
assumes by supplemental indenture all the obligations of such Guarantor
under its Guarantee of the Notes and this Indenture;
(iii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and
(iv) the Company shall have delivered to the Trustee prior to the
proposed transaction an Officers' Certificate and an Opinion of Counsel,
each stating that the proposed consolidation, merger or transfer and such
supplemental indenture will comply with this Indenture.
Notwithstanding the foregoing clause (iii), any Guarantor may
consolidate with, merge into or transfer all or part of its properties and
assets to the Company or another Guarantor.
In connection with any consolidation, merger or transfer of assets
contemplated by this provision, the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an opinion of counsel, each stating that
such consolidation, merger or transfer and the supplemental indenture in respect
thereto comply with this provision and that all conditions precedent herein
provided for relating to such transaction or transactions have been complied
with.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the assets of one or more Restricted Subsidiaries of the
Company the Equity Interests of which constitute all or substantially all of the
assets of the Company, shall be deemed to be the transfer of all or
substantially all of the assets of the Company.
Section 5.02. Successor Person Substituted.
Upon any consolidation, merger, conveyance or any transfer of all or
substantially all of the assets of the Company in accordance with Section 5.01
above (including pursuant to clause (2) of the second paragraph of Section
5.01), the successor entity formed by such consolidation or into which the
Company or any such Restricted Subsidiary is merged or to which such transfer is
made shall succeed to, and be substituted for,
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and may exercise every right and power of, the Company or such Restricted
Subsidiary, as the case may be, under this Indenture with the same effect as if
such successor entity had been named as the Company or such Restricted
Subsidiary, as the case may be herein, and thereafter the predecessor entity
shall be relieved of all obligations and covenants under this Indenture and the
Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if
(a) there is a default in the payment of any principal of, or
premium, if any, on the Notes when the same becomes due and payable at
maturity, upon redemption, required purchase or otherwise;
(b) there is a default in the payment of any interest or Additional
Interest, if any, on any Note when the same becomes due and payable and
the default continues for a period of 30 days;
(c) there is a default by the Company or any Restricted Subsidiary
in the observance or performance of Sections 4.13, 4.17 or 5.01;
(d) there is a default by the Company or any Restricted Subsidiary
in the observance or performance of any other covenant in the Notes or
this Indenture for 45 days after written notice thereof by the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Notes then outstanding;
(e) there is a default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness of the Company or of any Significant Subsidiary
or any group of Restricted Subsidiaries which, if merged into each other,
would constitute a Significant Subsidiary (or the payment of which is
guaranteed by the Company or any Significant Subsidiary or any group of
Restricted Subsidiaries which, if merged into each other, would constitute
a Significant Subsidiary), whether such Indebtedness now exists or is
created after the Issue Date, which default (A) is caused by a failure to
pay principal of such Indebtedness at final maturity after the expiration
of any applicable grace period provided in such Indebtedness on the date
of such default (a "payment default") or (B) results in the acceleration
of such Indebtedness prior to its express maturity (and such acceleration
is not rescinded, or such Indebtedness is not repaid, within 20 days) and,
in each case, the principal amount of any such Indebtedness, together with
the principal amount of any other such Indebtedness under which there has
been a payment default or the maturity of which has been so accelerated
(and such acceleration is not rescinded, or such Indebtedness is not
repaid, within such 20 day period), aggregates $50,000,000;
(f) any final judgment or judgments for the payment of money in
excess of $50,000,000 (net of amounts covered by insurance) shall be
rendered against the Company or any Significant Subsidiary or any group of
Restricted Subsidiaries which, if merged into each other, would constitute
a Significant Subsidiary, and shall not be discharged for any period of 60
consecutive days, during which a stay of enforcement of such judgment
shall not be in effect;
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(g) the Company or any Significant Subsidiary or any group of
Restricted Subsidiaries which, if merged into each other, would constitute
a Significant Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its Property,
(D) makes a general assignment for the benefit of its
creditors,
(E) generally is not able to pay its debts as they become due,
or
(F) takes any corporate action to authorize or effect any of
the foregoing;
(h) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary or any group of Restricted Subsidiaries which, if merged
into each other, would constitute a Significant Subsidiary in an
involuntary case,
(B) appoints a Custodian of the Company or any Significant
Subsidiary or any group of Restricted Subsidiaries which, if merged
into each other, would constitute a Significant Subsidiary or for
all or substantially all of the Property of the Company or any
Significant Subsidiary or any group of Restricted Subsidiaries
which, if merged into each other, would constitute a Significant
Subsidiary, or
(C) orders the liquidation of the Company or any Significant
Subsidiary or any group of Restricted Subsidiaries which, if merged
into each other, would constitute a Significant Subsidiary,
and the order or decree remains unstayed and in effect for 60 days;
(i) the Guarantee of any Guarantor that is a Significant Subsidiary
ceases, or the Guarantees of any group of Guarantors which, if merged into
each other, would constitute a Significant Subsidiary cease, as the case
may be, to be in full force and effect (except as contemplated by the
terms of this Indenture) or any Guarantor that is a Significant Subsidiary
or any group of Guarantors which, if merged into each other, would
constitute a Significant Subsidiary, shall deny or disaffirm its, or their
respective, obligations under this Indenture or its, or their respective,
Guarantee;
(j) any failure to perform or comply with the Special Redemption
provisions of this Indenture or the Escrow Agreement.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
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Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
paragraph (g) or (h) of Section 6.01) shall occur and be continuing, the Trustee
or the Holders of at least 25% in principal amount of outstanding Notes may
declare the principal of, premium, if any, and accrued interest and Additional
Interest, if any, on all the Notes to be due and payable by notice in writing to
the Company and (if given by the Holders) the Trustee specifying the respective
Events of Default and that it is a "notice of acceleration," and the same shall
become immediately due and payable. If an Event of Default specified in
paragraph (g) or (h) of Section 6.01 occurs and is continuing, then all unpaid
principal of, premium, if any, and accrued and unpaid interest and Additional
Interest, if any, on all of the outstanding 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 Holder.
At any time after a declaration of acceleration with respect to the
Notes as described in the preceding paragraph, the Holders of a majority in
principal amount of the then outstanding Notes may rescind and cancel such
declaration and its consequences:
(1) if the rescission would not conflict with any judgment or
decree;
(2) if all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due solely
because of the acceleration;
(3) to the extent the payment of such interest is lawful, if
interest on overdue installments of interest and overdue principal, which
has become due otherwise than by such declaration of acceleration, has
been paid;
(4) if the Company has paid the Trustee its reasonable compensation
and reimbursed the Trustee for its expenses, disbursements and
advances; and
(5) in the event of the cure or waiver of an Event of Default of the
type described in paragraph (g) or (h) of Section 6.01, if the Trustee
shall have received an Officers' Certificate and an Opinion of Counsel
that such Event of Default has been cured or waived.
No such rescission shall affect any subsequent Default or Event of
Default or impair any right consequent thereto.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest (including Additional
Interest) on the Notes or to enforce the performance of any provision of the
Notes or this Indenture and may take any necessary action requested of it as
Trustee to settle, compromise, adjust or otherwise conclude any proceedings to
which it is a party.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder 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 to the extent permitted by
law.
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Section 6.04. Waiver of Past Defaults and Events of Default.
Subject to Sections 2.09, 6.02, 6.07 and 8.02, the Holders of a
majority in principal amount of the Notes then outstanding have the right to
waive any existing Default or Event of Default under this Indenture, and its
consequences, except a default in the payment of the principal of or premium, if
any, or interest (including Additional Interest) on any Note (other than
nonpayment of principal or interest that has become due solely because of a
declaration of acceleration which has been rescinded). The Company shall deliver
to the Trustee an Officers' Certificate stating that the requisite percentage of
Holders have consented to such waiver and attaching copies of such consents. In
case of any such waiver, the Company, the Trustee and the Holders shall be
restored to their former positions and rights hereunder and under the Notes,
respectively. This paragraph of this Section 6.04 shall be in lieu of Section
316(a)(1)(B) of the TIA and such Section 316(a)(1)(B) of the TIA is hereby
expressly excluded from this Indenture and the Notes, as permitted by the TIA.
Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
Section 6.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in principal
amount of the outstanding Notes have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee by this Indenture. The
Trustee, however, may refuse to follow any direction that conflicts with law or
this Indenture or that the Trustee determines may be unduly prejudicial to the
rights of another Holder not taking part in such direction, and the Trustee
shall have the right to decline to follow any such direction if the Trustee,
being advised by counsel, determines that the action so directed may not
lawfully be taken or if the Trustee in good faith shall, by a Trust Officer,
determine that the proceedings so directed may involve it in personal liability;
provided that the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction. In the event the Trustee takes
any action or follows any direction pursuant to this Indenture, the Trustee
shall be entitled to indemnification reasonably satisfactory to it against any
loss or expense caused by taking such action or following such direction. This
Section 6.05 shall be in lieu of Section 316(a)(1)(A) of the TIA, and such
Section 316(a)(1)(A) of the TIA is hereby expressly excluded from this Indenture
and the Notes, as permitted by the TIA.
Section 6.06. Limitation on Suits.
Subject to Section 6.07, no Holder shall have any right to institute
any proceeding with respect to this Indenture or any remedy thereunder unless:
(1) such Holder has given the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
outstanding Notes have made a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer to the Trustee indemnity reasonably
satisfactory to the Trustee against any loss, liability or expense
which may be incurred in compliance with such request;
(4) the Trustee fails to institute such proceeding within 60
calendar days after receipt of such notice and the offer of indemnity;
and
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(5) the Trustee has not received directions inconsistent with such
written request during such 60-day period by the Holders of a majority
in aggregate principal amount of the outstanding Notes.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of, or premium, if any, or accrued
interest (including Additional Interest) of any Note held by such Holder on or
after the respective due dates expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, is absolute
and unconditional and shall not be impaired or affected without the consent of
the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default occurs and is continuing and the obligations
of the Company hereunder have been accelerated to the extent required by Section
6.02, the Trustee may recover judgment in its own name and as trustee of an
express trust against the Company for the whole amount of unpaid principal,
premium and accrued interest (including Additional Interest) remaining unpaid,
together with, to the extent that payment of such interest is lawful, interest
on overdue principal and interest on overdue installments of interest, in each
case at the rate set forth in Section 4.01, and such further amounts as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim under Section 7.07) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor upon the
Notes), its creditors or its Property and shall be entitled and empowered to
collect and receive any monies or other Property payable or deliverable on any
such claims and to distribute the same after deduction of its charges and
expenses to the extent that any such charges and expenses are not paid out of
the estate in any such proceedings and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan or
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceedings.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6, it
shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
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SECOND: if the Holders are forced to proceed against the Company or
any Guarantor directly without the Trustee, to Holders for their collection
costs;
THIRD: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest (including Additional Interest) as to
each, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Notes; and
FOURTH: to the Company or, to the extent the Trustee collects any
amounts from any Guarantor, to such Guarantor.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this Section
6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
thereof 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 a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are specifically
set forth in this Indenture and no covenants or obligations shall be
implied in this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
(c) Notwithstanding anything to the contrary herein contained, the
Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
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(2) 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.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture.
(e) Whether or not herein expressly provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with the
Company. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
Section 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may conclusively rely on any document reasonably
believed by it to be genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any fact or matter stated
in the document.
(b) Before the Trustee acts or refrains from acting with respect to
any matters contemplated by this Indenture or the Notes it may consult
with counsel and may require an Officers' Certificate or an Opinion of
Counsel, or both, to be provided to it by the Company which shall conform
to the provisions of Section 11.05. The Trustee shall be fully protected
and shall not be liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion.
(c) The Trustee may act through attorneys and agents and shall not
be responsible for the misconduct or negligence of any attorney or agent
(other than an agent who is an employee of the Trustee) so long as the
appointment of such agent was made with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee 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.
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(g) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Trust Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture.
(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.
(i) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to
this Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person
specified as so authorized in any such certificate previously delivered
and not superseded.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may make loans to, accept deposits from, perform
services for or otherwise deal with the Company, or any Affiliates thereof, with
the same rights it would have if it were not Trustee. Any Agent may do the same
with like rights. The Trustee, however, shall be subject to Sections 7.10 and
7.11.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the sale of Notes or any
money paid to the Company pursuant to the terms of this Indenture and it shall
not be responsible for any statement of the Company in this Indenture or the
Notes other than the Trustee's certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or an Event of Default occurs and is continuing and if
a Trust Officer of the Trustee has actual knowledge of such Default or Event of
Default, the Trustee shall mail to each Holder notice of the uncured Default or
Event of Default within 30 days after such Default or Event of Default occurs.
Except in the case of a Default or an Event of Default in payment of principal
of, premium or interest (including Additional Interest) on, any Note, including
an accelerated payment and the failure to make payment on the Change of Control
Payment Date pursuant to a Change of Control Offer or on the Excess Proceeds
Payment Date pursuant to an Excess Proceeds Offer and, except in the case of a
failure to comply with Article 5, the Trustee may withhold the notice if and so
long as its Board of Directors, the executive committee of its Board of
Directors or a committee of its directors and/or Trust Officers in good faith
determines that withholding the notice is in the interest of the Holders. This
Section 7.05 shall be in lieu of the proviso to Section 315(b) of the TIA, and
such proviso of Section 315(b) of the TIA is hereby expressly excluded from this
Indenture and the Notes, as permitted by the TIA.
Section 7.06. Reports by Trustee to Holders.
If required by TIA Section 313(a), within 60 days after May 15 of
any year, commencing the May 15 following the date of this Indenture, the
Trustee shall mail to each Holder a brief report dated as of such May 15 that
complies with TIA Section 313(a). The Trustee also shall comply with TIA Section
313(b), (c) and (d).
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Reports pursuant to this Section 7.06 shall be transmitted by mail:
(1) to all registered Holders, as the names and addresses of such
Holders appear on the Registrar's books; and
(2) to such Holders as have, within the two years preceding such
transmission, filed their names and addresses with the Trustee for that
purpose.
A copy of each report at the time of its mailing to Holders shall be
filed with the Commission and each stock exchange, if any, on which the Notes
are listed. The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange or of any delisting thereof.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed in writing between the Company and the Trustee
for the Trustee's services. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable fees and expenses,
including out-of-pocket expenses incurred or made by it in connection with the
performance of its duties under this Indenture or in connection with the
collection of any funds. Such expenses shall include the reasonable fees and
expenses of the Trustee's agents and counsel.
The Company and the Guarantors, jointly and severally, shall fully
indemnify each of the Trustee and its agents, employees, stockholders and
directors and officers for, and hold them harmless against, any and all loss,
liability, claim, damage or expense incurred by them except for such actions
determined by a court of competent jurisdiction to have been caused by any
negligence, bad faith or willful misconduct on their part, arising out of or in
connection with the administration of this trust including the reasonable costs
and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their rights, powers or
duties hereunder. The Trustee shall notify the Company promptly, in writing, of
any claim asserted against the Trustee of which a Trust Officer actually
receives written notice for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall cooperate and may participate in the
defense; provided that any settlement of a claim shall be approved in writing by
the Trustee. The Company need not pay for any settlement made without its
written consent, which consent shall not be unreasonably withheld. The Company
need not reimburse any expense or indemnify against any loss or liability to the
extent determined by a court of competent jurisdiction to have been caused by
the Trustee's own negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Notes on all assets or money held or
collected by the Trustee, in its capacity as Trustee, except assets or money
held in trust to pay principal of, premium or interest (including Additional
Interest) on particular Notes.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(g) or (h) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
The obligation of the Company under this Section 7.07 shall survive
the resignation or removal of the Trustee and the satisfaction and discharge of
this Indenture.
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Section 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company in
writing. The Holders of a majority in principal amount of the outstanding Notes
may remove the Trustee by so notifying the Trustee and the Company in writing
and may appoint a successor Trustee. The Company may remove the Trustee at its
election if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of the Trustee
or its Property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.07, all Property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Notes may
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, subject to this Article 7, the successor corporation without any
further act shall be the successor Trustee; provided that such Person shall be
qualified and eligible under this Article 7.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be eligible
to act as Trustee under TIA Sections 310(a)(1) and 310(a)(2). The Trustee shall
have a combined capital and surplus of at least
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$100,000,000 as set forth in its most recent published annual report of
condition. If the Trustee has or shall acquire any "conflicting interest" within
the meaning of TIA Section 310(b), the Trustee and the Company shall comply with
the provisions of TIA Section 310(b); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or indentures
under which other securities or certificates of interest or participation in
other securities of the Company are outstanding if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
7.10, the Trustee shall resign immediately in the manner and with the effect
hereinbefore specified in this Article 7.
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein. The provisions of TIA Section 311 shall apply to the Company as
obligors of the Notes.
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.
The Company and the Guarantors, when authorized by a Board
Resolution, and the Trustee may amend or supplement this Indenture, the Notes or
the Guarantees without notice to or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency; provided that
such amendment or supplement does not, in the opinion of the Trustee,
adversely affect the rights of any Holder in any material respect;
(2) to provide for uncertificated Notes in addition to or in place
of Certificated Notes;
(3) to comply with Article 5;
(4) to comply with any requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA;
(5) to make any change that would provide any additional benefit or
rights to the Holders;
(6) to add to the covenants of the Company or a Guarantor for the
benefit of the Holders, or to surrender any right or power herein
conferred upon the Company or any Guarantor;
(7) to secure the Notes pursuant to the requirements of Section 4.15
or otherwise;
(8) to reflect the release of a Guarantor from its obligations with
respect to its Guarantee pursuant to Section 10.06 or to add a Guarantor
pursuant to Section 4.20; or
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(9) to make any other change that does not adversely affect the
rights of any Holder under this Indenture.
Section 8.02. With Consent of Holders.
Subject to Section 6.07, the Company, and the Guarantors, when each
is authorized by a Board Resolution of their respective Boards of Directors, and
the Trustee may amend or supplement this Indenture or the Notes or the
Guarantees with the written consent of the Holders of at least a majority in
principal amount of the outstanding Notes (including consents obtained in
connection with a purchase of, or tender offer or exchange offer for, Notes).
Subject to Sections 6.04 and 6.07, the Holders of a majority in principal amount
of the outstanding Notes may waive any existing Default or Event of Default or
compliance by the Company, or any Guarantor with any provision of this
Indenture, the Notes, or the Guarantees. However, without the consent of each
Holder affected, an amendment, supplement or waiver, including a waiver pursuant
to Section 6.04, may not:
(1) change or extend the fixed maturity of any Notes, reduce the
rate of or extend the time of payment of interest or Additional Interest,
if any, thereon, reduce the principal amount thereof or premium, if any,
thereon or change the currency in which the Notes are payable;
(2) reduce the premium upon any redemption of Notes in accordance
with the optional redemption provisions of the Notes or change the time
before which no such redemption may be made;
(3) waive a Default in the payment of the principal of, or interest
(including Additional Interest) or premium on, any Note (except a
rescission of acceleration of the Notes by the Holders as provided in
Section 6.02 and a waiver of the payment default that resulted from such
acceleration) or alter the rights of Holders to waive Defaults;
(4) affect the ranking of the Notes or any Guarantee in a manner
adverse to the Holders;
(5) reduce the percentage in principal amount of outstanding Notes
whose Holders must consent to any amendment, supplement or waiver, or
consent to take any action under this Indenture or the Notes;
(6) release any Guarantor from any of its obligations under its
Guarantee or this Indenture otherwise than in accordance with the terms
of this Indenture;
(7) impair the rights of Holders to receive payment of principal of
or premium, if any, or interest or Additional Interest on the Notes on or
after the respective due dates expressed in such Notes, or to bring suit
for the enforcement of any such payment on or after such respective dates
without consent of such Holders;
(8) make any changes in this sentence of Section 8.02; or
(9) make any change to the provisions of this Indenture relating to
any Special Redemption of the Notes which would adversely affect the
rights of any Holder.
After an amendment, supplement or waiver under this Section 8.02
becomes effective, the Company shall mail to the Holders a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture.
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Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
receipt by the Trustee of evidence reasonably satisfactory to the Trustee of the
consent of the Holders as aforesaid and upon receipt by the Trustee of the
documents described in Section 8.06, the Trustee shall join with the Company and
the Guarantors in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture, in which case the Trustee may in its discretion, but shall
not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section 8.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
Section 8.03. Compliance with TIA.
Every amendment to or supplement of this Indenture, the Notes or the
Guarantees shall comply with the TIA as then in effect.
Section 8.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note or the portion thereof to which the consent
relates, even if notation of the consent is not made on any Note. Subject to the
following paragraph, any such Holder or subsequent Holder may revoke the consent
as to such Holder's Note or portion of such Note by notice to the Trustee or the
Company received before the date on which the Trustee receives an Officers'
Certificate certifying that the Holders of the requisite principal amount of
Notes have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders (or beneficial owners) entitled to
consent to any amendment, supplement or waiver. If a record date is fixed, then
notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders (or beneficial owners) at such record date (or their
duly designated proxies), and only those Persons, shall be entitled to revoke
any consent previously given, whether or not such Persons continue to be Holders
(or beneficial owners) after such record date. No such consent shall be valid or
effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes a change described in any of clauses (1)
through (9) of Section 8.02, in which case, the amendment, supplement or waiver
shall bind only each Holder who has consented to it and every subsequent Holder
of a Note or portion of a Note that evidences the same debt as the consenting
Holder's Note; provided that any such waiver shall not impair or affect the
right of any Holder to receive payment of principal of and interest (including
Additional Interest) on a Note, on or after the respective due dates expressed
in such Note, or to bring suit for the enforcement of any such payment on or
after such respective dates without the consent of such Holder.
Section 8.05. Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a Note,
the Trustee may request the Holder to deliver it to the Trustee. In such case,
the Trustee shall place an appropriate notation on the Note about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determine, in exchange for the Note the Company shall issue and the Trustee
shall authenticate a new Note that reflects the
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changed terms. Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment supplement or waiver.
Section 8.06. Trustee to Sign Amendments, etc.
The Trustee shall be entitled to receive, and (subject to Section
7.01) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of any amendment, supplement or waiver authorized pursuant to
this Article 8 is authorized or permitted by this Indenture and that such
amendment, supplement or waiver constitutes the legal, valid and binding
obligation of the Company and any Guarantors, enforceable in accordance with its
terms (subject to customary exceptions). The Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Satisfaction and Discharge of Indenture.
This Indenture shall be discharged and shall cease to be of further
effect (except as to surviving rights of transfer or exchange of the Notes, as
expressly provided for herein or pursuant hereto) and the Trustee, on written
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, the Guarantees, the
Registration Rights Agreement and the Notes:
(1) either:
(a) all Notes theretofore authenticated and delivered (other than
(i) Notes which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.07 and (ii) Notes that have been
subject to defeasance under this Article 9) have been delivered to the
Trustee for cancellation; or
(b) all Notes not theretofore delivered to the Trustee for
cancellation; (i) have become due and payable; (ii) will become due and
payable at maturity within one year; or (iii) 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 Company and the Company has irrevocably deposited or
caused to be deposited with the Trustee in trust an amount of U.S. legal
tender or U.S. Government Obligations sufficient to pay and discharge the
entire Indebtedness on such Notes not theretofore delivered to the Trustee
for cancellation, for the principal (and premium, if any, on) and interest
on the Notes to the date of such deposit (in the case of Notes that have
become due and payable) or to the stated maturity or Redemption Date, as
the case may be and any Additional Interest thereon; (iii) no Default or
Event of Default with respect to this Indenture or the Notes shall have
occurred and be continuing on the date of such deposit (other than a
Default resulting from the borrowing of funds to be applied to such
deposit and the grant of any Lien securing such borrowing) or shall occur
as a result of such deposit and such deposit will not result in a breach
or violation of, or constitute a default under, any other instrument to
which the Company is a party or by which it is bound;
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(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee (A) irrevocable
instructions to apply the deposited money toward payment of the Notes at
the maturity or redemption thereof, and (B) an Officers' Certificate and
an Opinion of Counsel (which Opinion of Counsel may be subject to
customary assumptions and exclusions) each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture, the Guarantees, the Registration Rights Agreement and
the Notes have been complied with and that such satisfaction and discharge
does not result in a default under any Credit Facility (if then in effect)
or any other agreement or instrument then known to such counsel which
binds or affects the Company.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company under Section 7.07 and 9.07 and, if money shall
have been deposited with the Trustee pursuant to clause (1)(b) of this Section,
the obligations of the Trustee and the Paying Agent under Section 9.05 and
Section 2.04 shall survive such satisfaction and discharge.
After such delivery or irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's and each Guarantor's
obligations under the Notes, the Guarantees and this Indenture except for those
surviving obligations specified above.
Section 9.02. Legal Defeasance.
(a) The Company may, at its option by Board Resolution of the Board
of Directors of the Company, at any time, elect to have this section be applied
to all outstanding Notes upon compliance with the conditions set forth in
Section 9.04.
(b) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (b), the Company and each Guarantor shall,
subject to the satisfaction of the conditions set forth in Section 9.04, be
deemed to have been discharged from their respective obligations with respect to
all outstanding Notes and the Guarantees on the date the conditions set forth
below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company and each Guarantor shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding Notes
and the Guarantees, which shall thereafter be deemed to be "outstanding" only
for the purposes of Section 9.05 and the other Sections of this Indenture
referred to in (i) and (ii) below, and to have satisfied all their other
respective obligations under such Notes, the Guarantees, this Indenture and the
Registration Rights Agreement (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging the same), except
for the following provisions, which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of outstanding Notes, to receive
solely from the trust fund described in Section 9.05, and as more fully set
forth in such Section, payments in respect of the principal of, premium, if any,
and interest (including Additional Interest) on such Notes when such payments
are due, (ii) the Company's obligations with respect to such Notes under Article
2, Section 4.07, Section 7.07 and this Article 9, which shall survive until the
Notes have been paid in full (thereafter the Company's obligations in Section
7.07 shall survive). Subject to compliance with this Article 9, the Company may
exercise its option under this Section 9.02 notwithstanding the prior exercise
of its option under Section 9.03 below with respect to the Notes.
Section 9.03. Covenant Defeasance.
(a) The Company may, at its option by Board Resolution of the Board
of Directors of the Company, at any time, elect to have this Section be applied
to all outstanding Notes upon compliance with the conditions set forth in
Section 9.04.
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(b) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (b), the Company and each Guarantor shall,
subject to the satisfaction of the conditions set forth in Section 9.04 hereof,
be released from their respective obligations under the covenants contained in
Sections 4.05, 4.09 and 4.10 through 4.24, inclusive, and Article 5 with respect
to the outstanding Notes and the Guarantees on and after the date the conditions
set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the
Notes and the Guarantees shall thereafter be deemed not "outstanding" for the
purposes of any direction, waiver, consent or declaration or act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes and the Guarantees shall not be deemed outstanding
for accounting purposes). For this purpose, such Covenant Defeasance means that,
with respect to the outstanding Notes and the Guarantees, the Company and each
Guarantor may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event or Default under Section 6.01(c) or (d), but, except as
specified above, the remainder of this Indenture, such Notes and the Guarantees
shall be unaffected thereby. In addition, upon the Company's exercise under
paragraph (a) hereof of the option applicable to this paragraph (b), subject to
the satisfaction of the conditions set forth in Section 9.04 and paragraphs (c),
(d), (e), (f), (g), (h) and (i) of Section 6.01 shall not constitute Events of
Default.
Section 9.04. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 9.02 or 9.03 hereof to the outstanding Notes and the Guarantees:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee (or other
qualifying trustee), in trust, for the benefit of the Holders, U.S. legal
tender or U.S. Government Obligations, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of, premium,
if any, and interest (including Additional Interest) on the Notes on the
scheduled due dates or on the applicable Redemption Date, as the case may
be; provided that the Trustee shall have received an irrevocable written
order from the Company instructing the Trustee to apply such U.S. legal
tender or the proceeds of such U.S. Government Obligations to said
payments with respect to the Notes;
(b) in the case of an election under Section 9.02, the Company shall
have delivered to the Trustee an Opinion of Counsel reasonably acceptable
to the Trustee confirming that (i) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (ii) since
the date of 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, Legal Defeasance and discharge and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit, Legal Defeasance and
discharge had not occurred;
(c) in the case of an election under Section 9.03, the Company shall
have delivered to the Trustee an Opinion of Counsel confirming that the
Holders will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit, Covenant Defeasance and discharge
and will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such deposit,
Covenant Defeasance and discharge had not occurred;
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(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default resulting
from the borrowing of funds to be applied to such deposit and the grant of
any Lien securing such borrowing);
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of or constitute a default under any material
agreement or instrument (other than this Indenture) to which the Company
or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company
or with the intent of defeating, hindering, delaying or defrauding any
other creditors of the Company or others;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with;
(h) the Company shall have delivered to the Trustee an Opinion of
Counsel (along with other customary assumptions and exceptions) to the
effect that, assuming no intervening event of the type described in
paragraphs (g) and (h) of Section 6.01 between the date of deposit and the
91st day following the deposit or, if longer, ending on the day following
the expiration of the longest preference period under any Bankruptcy Law
(it being understood that this condition shall not be deemed to be
satisfied until the expiration of such period) and further assuming that
no Holder is an insider of the Company, after the 91st day following the
deposit or, if longer, ending on the day following the expiration of the
longest preference period under any Bankruptcy Law (it being understood
that this condition shall not be deemed to be satisfied until the
expiration of such period), the trust funds will not be subject to the
effect of any applicable Bankruptcy Law; and
(i) the Company shall have delivered to the Trustee an Opinion of
Counsel stating that, as a result of such Legal Defeasance or Covenant
Defeasance, neither the trust nor the Trustee will be required to register
as an investment company under the Investment Company Act of 1940, as
amended.
Section 9.05. Application of Trust Money.
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.01 or 9.04 in respect
of the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes, of all
sums due and to become due thereon in respect of principal, premium, if any, and
accrued interest (including Additional Interest), but such money need not be
segregated from other funds except to the extent required by law.
The Company and the Guarantors shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 9.01 or 9.04 hereof or the
principal, premium, if any, and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the
Holders.
Anything in this Article 9 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon a written
request of the Company in the form of an Officers' Certificate
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any money or U.S. Government Obligations held by it as provided in Section 9.01
or 9.04 which, in the opinion of a nationally-recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 9.06. Repayment to the Company.
Subject to Sections 9.01, 9.02, 9.03, 9.04, 9.05 and 9.07, the
Trustee and the Paying Agent shall promptly pay to the Company upon request any
excess U.S. legal tender or U.S. Government Obligations held by them at any time
and thereupon shall be relieved from all liability with respect to such money.
The Trustee and the Paying Agent shall pay to the Company upon request any money
held by them for the payment of principal, premium, if any, or interest that
remains unclaimed for two years; provided that the Trustee or such Paying Agent,
before being required to make any payment, may at the expense of the Company
cause to be published once in a newspaper of general circulation in the City of
New York or mail to each Holder entitled to such money notice that such money
remains unclaimed, and that after a date specified therein which shall be at
least 30 days from the date of such publication or mailing, any unclaimed
balance of such money then remaining will be repaid to the Company. If such
money is then held by the Company or a permitted Wholly Owned Restricted
Subsidiary, such money shall be discharged from such trust. After such discharge
or such payment to the Company, Holders entitled to such money must look to the
Company for payment as general unsecured creditors unless an applicable law
designates another Person and all liability of the Paying Agent with respect to
such money, and all liability of the Company or such permitted Wholly Owned
Restricted Subsidiary as trustee thereof, shall thereupon cease.
Section 9.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 9.01, 9.02 or 9.03 by reason
of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's and each Guarantor's obligations under this
Indenture, the Notes and the Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to this Article 9 until such time as the
Trustee or Paying Agent is permitted to apply all such U.S. legal tender or U.S.
Government Obligations in accordance with Section 9.01, 9.02 or 9.03; provided,
however, that if the Company or the Guarantors have made any payment of
principal of, premium, if any, or accrued interest (including Additional
Interest) on any Notes because of the reinstatement of their obligations, the
Company and each such Guarantor shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE 10
GUARANTEE
Section 10.01. Unconditional Guarantee.
Each Guarantor hereby unconditionally, jointly and severally,
guarantees to each Holder of a Note authenticated by the Trustee and to the
Trustee and its successors and assigns that the principal of, premium thereon
(if any) and interest (including Additional Interest) on the Notes will be
promptly paid in full when due, subject to any applicable grace period, whether
at maturity, by acceleration or otherwise, and interest on the overdue principal
and interest on any overdue interest on the Notes and all other obligations of
the Company to the Holders or the Trustee hereunder or under the Notes will be
promptly paid in full or performed,
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all in accordance with the terms hereof and thereof; subject, however, to the
limitations set forth in Section 10.03. Each Guarantor hereby agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder with respect to
any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a Guarantor.
Each Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice and
all demands whatsoever and covenants that the Guarantee will not be discharged
except by complete performance of the obligations contained in the Notes and
this Indenture. If any Holder or the Trustee is required by any court or
otherwise to return to the Company, any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or any
Guarantor, any amount paid by the Company or any Guarantor to the Trustee or
such Holder, each Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor further agrees that, as
between a Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations Guaranteed hereby may be
accelerated as provided in Article 6 for the purpose of each Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article 6, such
obligations (whether or not due and payable) shall become due and payable by
each Guarantor for the purpose of each Guarantee.
Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or any Holder in
enforcing any rights under this Article 10.
Section 10.02. Severability.
In case any provision of this Article 10 shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 10.03. Limitation on Guarantor's Liability; Contribution.
Each Guarantor, and by its acceptance hereof, each Holder and the
Trustee, hereby confirm that it is the intention of all such parties that the
Guarantee does not constitute a fraudulent transfer or conveyance for purposes
of Title 11 of the United States Code, as amended, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar U.S. Federal
or state or other applicable law. To effectuate the foregoing intention, each
Holder and each Guarantor hereby irrevocably agree that the obligations of a
Guarantor under its Guarantee shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such
Guarantor, and after giving effect to any collections from or payments made by
or on behalf of such Guarantor in respect of the obligations of such Guarantor
pursuant to the second paragraph of Section 10.03, result in the obligations of
such Guarantor not constituting such a fraudulent transfer or conveyance.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under a Guarantee
such Funding Guarantor shall be entitled to a contribution from all other
Guarantors in a pro rata amount, based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor), determined in accordance with GAAP,
subject to the first paragraph of this Section 10.03, for all payments, damages
and expenses incurred by such Funding Guarantor in discharging the Company's
obligations with respect to the Notes or any other Guarantor's obligations under
a Guarantee.
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Section 10.04. Successors and Assigns.
This Article 10 shall be binding upon each Guarantor and its
successors and assigns and shall ensure 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 10.05. 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 10
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 10 at law, in
equity, by statute or otherwise.
Section 10.06. Release of Guarantor.
A Guarantor shall be released from all of its obligations under its
Guarantee if:
(i) (a) (1) all of its assets or Equity Interests are sold,
including by way of merger, consolidation or otherwise or (2) Equity
Interests in such Guarantor are sold or otherwise disposed of and as a
result of such disposition, such Person ceases to be a Subsidiary of the
Company, in each case in a transaction in compliance with Section 4.13 and
such portion of the Asset Sale Proceeds as is applied on or before the
date of such release is applied in accordance with clauses (i) and (ii) of
Section 4.13, or (b) such Guarantor is designated an Unrestricted
Subsidiary in compliance with clause (iii) of Section 4.12; and
(ii) such Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transaction have been
complied with.
Section 10.07. Execution of Supplemental Indenture for Future Guarantors.
Each Subsidiary which is required to become a Guarantor pursuant to
Section 4.20 shall, and the Company shall cause each such Subsidiary to,
promptly execute and deliver to the Trustee a supplemental indenture
substantially in the form of Exhibit F hereto pursuant to which such Subsidiary
shall become a Guarantor under this Article 10 and shall guarantee the
obligations of the Company under the Notes and this Indenture. Concurrently with
the execution and delivery of such supplemental indenture, the Company shall
deliver to the Trustee an Opinion of Counsel to the effect that such
supplemental indenture has been duly authorized, executed and delivered by such
Subsidiary and that, subject to 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.
Section 10.08. Execution and Delivery of Guarantee.
To evidence the Guarantee set forth in this Article 10, each
Guarantor hereby agrees that a notation of such Guarantee shall be placed on
each Note authenticated and made available for delivery by the
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Trustee and that this Guarantee shall be executed on behalf of each Guarantor by
the manual or facsimile signature of two Officers or an Officer and the
Secretary of each Guarantor. Each Guarantor hereby agrees that the Guarantee set
forth in Section 10.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee. If an Officer of a
Guarantor whose signature is on the Guarantee no longer holds that office at the
time the Trustee authenticates the Note on which the Guarantee is endorsed, the
Guarantee shall be valid nevertheless. The delivery of any Note by the Trustee,
after the authentication thereof hereunder, shall constitute due delivery of the
Guarantee set forth in this Indenture on behalf of each Guarantor.
Section 10.09. Subordination of Subrogation and Other Rights.
Each Guarantor hereby agrees that any claim against the Company that
arises from the payment, performance or enforcement of such Guarantor's
obligations under the Guarantee or this Indenture, including, without
limitation, any right of subrogation, shall be subject and subordinate to, and
no payment with respect to any such claim of such Guarantor shall be made
before, the payment in full in cash of all outstanding Notes in accordance with
the provisions provided therefor in this Indenture.
ARTICLE 11
MISCELLANEOUS
Section 11.01. TIA Controls.
If any provision of this Indenture limits, qualifies or conflicts
with another provision which is required to be included in this Indenture by the
TIA, the required provision shall control.
Section 11.02. Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
If to the Company or any Guarantor:
PanAmSat Corporation
00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
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Copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Trustee:
The Bank of New York
0 Xxxx Xxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Administration
Tel: (000) 000-0000
Fax: (000) 000-0000
The Company, any Guarantor or the Trustee by written notice to the
others may designate additional or different addresses for subsequent notices or
communications. Any notice or communication to the Company, any Guarantors or
the Trustee, shall be deemed to have been given or made as of the date so
delivered if personally delivered; when answered back, if telexed; when receipt
is acknowledged, if telecopied; and five (5) calendar days after mailing if sent
by registered or certified mail, postage prepaid (except that a notice of change
of address shall not be deemed to have been given until actually received by the
addressee).
Any notice or communication mailed to a Holder shall be mailed to
him by first-class mail, postage prepaid, at his address shown on the register
kept by the Registrar.
Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. If a
notice or communication to a Holder is mailed in the manner provided above, it
shall be deemed duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
Section 11.03. Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Guarantors, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Guarantor to
the Trustee to take any action under this Indenture, the Company or such
Guarantor, as the case may be, shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 11.05 below) stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
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(2) an Opinion of Counsel (which shall include the statements set
forth in Section 11.05 below) stating that, in the opinion of such
counsel, all such conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with.
Section 11.05. Statements Required in Certificate and Opinion.
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition and the definitions relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, it or he has
made such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such covenant or condition has been complied with.
Section 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at meetings
of Holders. The Registrar and Paying Agent may make reasonable rules for their
functions.
Section 11.07. Business Days; Legal Holidays.
A "Business Day" is a day that is not a Legal Holiday. A "Legal
Holiday" is a Saturday, a Sunday, a federally recognized holiday or a day on
which banking institutions are not required to be open in the State of New York.
If a payment date is a Legal Holiday at a place of payment, payment may be made
at that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
Section 11.08. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
Section 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
-86-
Section 11.10. No Recourse Against Others.
A past, present or future director, officer, employee, shareholder,
incorporator, agent or Affiliate, as such, of the Company or any Subsidiary
shall not have any liability for any obligations of the Company or any Guarantor
under the Notes, the Guarantees or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creations, or with respect
to any asset held by them that arises by, or represents an application of
proceeds of the Notes. Each Holder by accepting a Note waives and releases all
such liabilities or claims. Such waiver and release are part of the
consideration for the issuance of the Notes and the Guarantees.
Section 11.11. Successors.
All agreements of each of the Company and each Guarantor in this
Indenture and the Notes shall bind their respective successors. All agreements
of the Trustee, any additional trustee and any Paying Agents in this Indenture
shall bind its successor.
Section 11.12. Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 11.13. Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 11.14. Separability.
Each provision of this Indenture shall be considered separable and
if for any reason any provision which is not essential to the effectuation of
the basic purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
-87-
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed all as of the date and year first written above.
PANAMSAT CORPORATION
By:
----------------------------------------
Name:
Title:
-88-
Guarantors:
NET/36, INC.
PANAMSAT COMMUNICATIONS CARRIER SERVICES, INC.
PANAMSAT COMMUNICATIONS JAPAN, INC.
PANAMSAT COMMUNICATIONS SERVICES, INC.
PANAMSAT INTERNATIONAL HOLDINGS, INC.
USHI, INC.
PANAMSAT MARKETING CORPORATION
PANAMSAT INTERNATIONAL SYSTEMS, INC. (PISI)
PANAMSAT ASIA CARRIER SERVICES, INC.
PANAMSAT CAPITAL CORPORATION
PANAMSAT CARRIER SERVICES, INC.
PANAMSAT INDIA, INC.
PANAMSAT INDIA, MARKETING, LLC
PAS INTERNATIONAL EMPLOYMENT, INC.
PANAMSAT LICENSEE CORP.
PANAMSAT INTERNATIONAL SALES, INC.
PANAMSAT INTERNATIONAL SYSTEMS, L.L.C.
PANAMSAT INTERNATIONAL SYSTEMS MARKETING, LLC
SERVICE AND EQUIPMENT CORPORATION
SOUTHERN SATELLITE CORP.
SOUTHERN SATELLITE LICENSEE CORPORATION
By:
----------------------------------------------
Name:
Title:
-00-
XXX XXXX XX XXX XXXX,
as Trustee
By:
----------------------------------------------
Name:
Title:
-90-
EXHIBIT A
CUSIP No.:
PANAMSAT CORPORATION
8 1/2% SENIOR NOTE DUE 2012
No. $
PanAmSat Corporation, a Delaware corporation (the "Company," which
term includes any successor entity), for value received promises to pay to
or registered assigns, the principal sum of DOLLARS
on February 1, 2012.
Interest Payment Dates: February 1 and August 1, commencing August
1, 2002.
Record Dates: January 15 and July 15.
Reference is made to the further provisions of this Note contained
herein and the Indenture (as defined), which will for all purposes have the same
effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
A-1
PANAMSAT CORPORATION
By:
----------------------------------------------
Name:
Title:
By:
----------------------------------------------
Name:
Title:
A-2
CERTIFICATE OF AUTHENTICATION
This is one of the 8 1/2% Senior Notes due 2012 referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
--------------------------------------------
Authorized Signatory
Dated:
-----------------------------------------
A-3
(REVERSE OF SECURITY)
8 1/2% SENIOR NOTE DUE 2012
1. Interest. PanAmSat Corporation, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at the
rate per annum shown above. Interest on the Notes will accrue from the most
recent date on which interest has been paid or, if no interest has been paid,
from the date of the original issuance of the Notes. The Company will pay
interest semi-annually in arrears on each Interest Payment Date, commencing
August 1, 2002. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
The Company shall pay interest on overdue principal and on overdue
installments of interest (without regard to any applicable grace periods) to the
extent lawful from time to time on demand at the rate borne by the Notes.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are the registered Holders at the
close of business on January 15 or July 15 immediately preceding the Interest
Payment Date (whether or not such day is a Business Day) even if the Notes are
canceled on registration of transfer or registration of exchange after such
Record Date. Holders must surrender Notes to a Paying Agent to collect principal
payments. Payments of principal and premium, if any, will be made (on
presentation of such Notes if in certificated form) in money of the United
States that at the time of payment is legal tender for payment of public and
private debts; provided, however, that the Company may pay principal, premium,
if any, and interest by check payable in such money; provided that all payments
with respect to Global Notes and Certificated Notes the Holders of which have
given written transfer instructions to the Trustee by no later than five
Business Days prior to the relevant payment date will be required to be made by
wire transfer of immediately available funds to the accounts of the Holders
thereof.
3. Paying Agent and Registrar. Initially, The Bank of New York (the
"Trustee") will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders. Either
the Company or any domestic Wholly Owned Restricted Subsidiary may act as Paying
Agent, Registrar or co-Registrar.
4. Indenture. The Company issued this Note under an Indenture, dated
as of February 1, 2002 (the "Indenture"), by and among the Company, the
Guarantors and the Trustee. This Note is one of a duly authorized issue of
Initial Notes of the Company designated as its 8 1/2% Senior Notes due 2012 (the
"Notes"). The Notes include the Initial Notes and the Exchange Notes (as defined
below) issued in exchange for the Initial Notes pursuant to the Indenture as
well as any Additional Notes issued pursuant to Section 2.18 of the Indenture.
The Initial Notes, the Exchange Notes and Additional Notes, if any, are treated
as a single class of securities under the Indenture. Capitalized terms herein
are used as defined in the Indenture unless otherwise defined herein. 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. Code Sections
77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Notes are subject to all
such terms, and Holders are referred to the Indenture and the TIA for a
statement of them. The Notes are general unsecured obligations of the Company.
5. Guarantee. The obligations of the Company hereunder are
guaranteed on a senior basis by the Guarantors.
6. Redemption.
(a) Optional Redemption. The Company may redeem the Notes, at its
option, in whole at any time or in part from time to time, on and after February
1, 2007 at the following Redemption Prices
A-4
(expressed as percentages of the principal amount thereof) if redeemed during
the twelve-month period commencing on February 1 of the year set forth below,
plus, in each case, accrued and unpaid interest thereon, if any, to the date of
redemption.
Year Percentage
---- ----------
2007.................................... 104.250%
2008.................................... 102.833%
2009.................................... 101.417%
2010 and thereafter..................... 100.000%
(b) Optional Redemption upon Equity Offerings. In addition, at any
time and from time to time on or prior to February 1, 2005, the Company may
redeem up to 35% of the principal amount of the Notes (calculated to give effect
to any issuance of Additional Notes) with the Net Cash Proceeds of one or more
Public Equity Offerings, at a redemption price in cash equal to 108.500% of the
principal to be redeemed plus accrued and unpaid interest and Additional
Interest, if any, thereon to the date of redemption; provided that at least 65%
of the original principal amount of Notes remains outstanding immediately after
each such redemption. Any such redemption will be required to occur within 90
days following the closing of any such Public Equity Offering.
(c) Special Mandatory Redemption. On the earlier to occur of (x)
April 1, 2002 if the Company has not entered into and borrowed funds under the
Senior Credit Facility on or before such date or (y) at any time if the Company
determines that the Senior Credit Facility is unlikely to be entered into in a
manner consistent in all material respects with the description of the Senior
Credit Facility contained in the Offering Circular, the Company shall on such
date redeem all of the outstanding Notes at a Redemption Price equal to 100% of
the principal amount thereof plus accrued and unpaid interest, if any, to the
Redemption Date. Any such redemption shall occur no later than (i) April 11,
2002 in the case of clause (x) above and (ii) the 10th day following the
Company's determination in the case of a redemption pursuant to clause (y)
above.
7. Notice of Redemption. Notice of redemption under paragraphs 6(a)
and 6(b) of this Note will be mailed at least 30 days but not more than 60 days
before the Redemption Date to each Holder to be redeemed at such Holder's
registered address. Notice of redemption under paragraph 6(c) of this Note shall
be given at least five days before a Special Redemption (as defined in the
Indenture) by first class mail to each Holder to be redeemed at such Holder's
registered address.
Except as set forth in the Indenture, if monies for the redemption
of the Notes called for redemption shall have been deposited with the Paying
Agent for redemption on such Redemption Date, then, unless the Company defaults
in the payment of such Redemption Price plus accrued interest, if any, the Notes
called for redemption will cease to bear interest from and after such Redemption
Date and the only right of the Holders of such Notes will be to receive payment
of the Redemption Price plus accrued interest, if any.
8. Offers to Purchase. The Indenture provides that, after certain
Asset Sales (as defined in the Indenture), Events of Loss (as defined in the
Indenture) and upon the occurrence of a Change of Control (as defined in the
Indenture), and subject to further limitations contained therein, the Company
will make an offer to purchase certain amounts of the Notes in accordance with
the procedures set forth in the Indenture.
9. Registration Rights. Pursuant to the Registration Rights
Agreement by and among the Company, the Guarantors and the Initial Purchasers,
the Company will be obligated to consummate an exchange offer pursuant to which
the Holder of this Note shall have the right to exchange this Note for the
Company's Series B 8 1/2% Senior Notes due 2012 (the "Exchange Notes"), which
have been registered under the Securities Act, in like principal amount and
having terms identical in all material respects to the Initial Notes. The
Holders of the Initial Notes shall be entitled to receive certain Additional
Interest payments in the event
A-5
such exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
10. Denominations; Transfer; Exchange. The Notes are in registered
form, without coupons, in denominations of $1,000 and integral multiples
thereof. A Holder shall register the transfer or exchange of Notes in accordance
with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay certain
transfer taxes or similar governmental charges payable in connection therewith
as permitted by the Indenture. The Registrar need not register the transfer of
or exchange of any Notes or portions thereof selected for redemption.
11. Persons Deemed Owners. The registered holder of a Note shall be
treated as the owner of it for all purposes.
12. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company. After that, Holders entitled to money must
look to the Company for payment as general creditors unless an "abandoned
property" law designates another person.
13. Legal Defeasance and Covenant Defeasance. If the Company at any
time deposits with the Trustee U.S. legal tender or U.S. Government Obligations
sufficient to pay the principal of and interest on the Notes to redemption or
maturity and complies with the other provisions of the Indenture relating to
defeasance, the Company will be discharged from certain provisions of the
Indenture and the Notes (including certain covenants, but excluding its
obligation to pay the principal of and interest on the Notes).
14. Amendments, Supplements, and Waivers. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Notes then outstanding, and any existing Default or Event of
Default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency, provide for uncertificated
Notes in addition to or in place of certificated Notes or make any other change
that does not adversely affect in any material respect the rights of any Holder.
15. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Company and its Subsidiaries to, among other things, incur
additional Indebtedness, make payments in respect of its Equity Interests, enter
into transactions with Affiliates, create dividend or other payment restrictions
affecting Restricted Subsidiaries, sell assets, create liens, issue capital
stock, enter into sale and lease-back transactions, make certain Investments,
merge or consolidate with any other Person, or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its assets. Such
limitations are subject to a number of important qualifications and exceptions.
The Company must quarterly report to the Trustee on compliance with such
limitations.
16. Successor Entity. When a successor entity assumes, in accordance
with the Indenture, all the obligations of its predecessor under the Notes and
the Indenture, and immediately before and thereafter no Default or Event of
Default exists and certain other conditions are satisfied, the predecessor
entity will be released from those obligations.
17. Defaults and Remedies. Events of Default are set forth in the
Indenture. If an Event of Default (other than an Event of Default pursuant to
Section 6.01(g) or (h) of the Indenture) shall have occurred and be continuing,
the Trustee or the Holders of at least 25% in principal amount of outstanding
Notes may declare the principal of, premium, if any, and accrued interest and
Additional Interest, if any, on all the Notes to be due and payable by notice in
writing to the Company and (if given by the Holders) the Trustee specifying the
respective Events of Default and that it is a "notice of acceleration," and the
same shall become
A-6
immediately due and payable. If an Event of Default specified in Sections
6.01(g) and (h) of the Indenture occurs and is continuing, then all unpaid
principal of, premium, if any, and accrued and unpaid interest and Additional
Interest, if any, on all of the outstanding 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 Holder.
18. Trustee Dealings with Company. The Trustee under the Indenture,
in its individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company, and may otherwise deal with the
Company, its Subsidiaries or their respective Affiliates as if it were not the
Trustee.
19. No Recourse Against Others. As more fully described in the
Indenture, no director, officer, employee, stockholder or incorporator, as such,
of the Company shall have any liability for any obligation of the Company 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 by accepting a Note waives
and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
20. Authentication. This Note shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on this
Note.
21. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES TO THE INDENTURE HAS AGREED TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE.
22. Abbreviations and Defined Terms. 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
right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
23. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes as a convenience to the Holders. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
24. Indenture. Each Holder, by accepting a Note, agrees to be bound
by all of the terms and provisions of the Indenture, as the same may be amended
from time to time.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture, which has the text of this Note in
larger type. Requests may be made to: PanAmSat Corporation, 00 Xxxxxxxx Xxxx,
Xxxxxx, Xxxxxxxxxxx 00000, Attention: Secretary.
A-7
FORM OF GUARANTEE
Each Guarantor (capitalized terms used herein have the meanings
given such terms in the Indenture referred to in the Note upon which this
notation is endorsed) hereby unconditionally guarantees on a senior basis (such
guarantee being referred to herein as the "Guarantee") the due and punctual
payment of the principal of, premium, if any, and interest on the Notes, whether
at maturity, by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal, premium and interest on the Notes, and the
due and punctual performance of all other obligations of the Company to the
Holders or the Trustee, all in accordance with the terms set forth in Article 10
of the Indenture.
This Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Notes upon which this Guarantee
is noted shall have been executed by the Trustee under the Indenture by the
manual signature of one of its authorized officers.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflicts of
law.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
A-8
[ ]
By:
---------------------------------------
Name:
Title:
A-9
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint
-------------------------------------------------------,
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date: Signed:
----------------------------------- -------------------------------
(Sign exactly as your name
appears on the other side of
this Note)
Medallion Guarantee:
--------------------------------
A-10
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company
pursuant to Sections 4.13, 4.16 or 4.17 of the Indenture, check the appropriate
box:
Section 4.13 [ ]
Section 4.16 [ ]
Section 4.17 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Sections 4.13, 4.16 or 4.17 of the Indenture, state the
amount you elect to have purchased:
$ ------------------
---------------------------- -------------------------------------------
Date: NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Note in every
particular without alteration or enlargement
or any change whatsoever and be guaranteed
by the endorser's bank or broker.
Medallion Guarantee:
-------------------------------
A-11
EXHIBIT B
CUSIP No.:
PANAMSAT CORPORATION
SERIES B 8 1/2% SENIOR NOTE DUE 2012
No. $
PanAmSat Corporation, a Delaware corporation (the "Company," which
term includes any successor entity), for value received promises to pay to
or registered assigns, the principal sum of
DOLLARS on February 1, 2012.
Interest Payment Dates: February 1 and August 1, commencing August
1, 2002.
Record Dates: January 15 and July 15.
Reference is made to the further provisions of this Note contained
herein and the Indenture (as defined), which will for all purposes have the same
effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
B-1
PANAMSAT CORPORATION
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
B-2
CERTIFICATE OF AUTHENTICATION
This is one of the Series B 8 1/2% Senior Notes due 2012 referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
------------------------------------
Authorized Signatory
Dated:
---------------------------------
B-3
(REVERSE OF SECURITY)
8 1/2% SENIOR NOTE DUE 2012
1. Interest. PanAmSat Corporation, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at the
rate per annum shown above. Interest on the Notes will accrue from the most
recent date on which interest has been paid or, if no interest has been paid,
from the date of the original issuance of the Notes. The Company will pay
interest semi-annually in arrears on each Interest Payment Date, commencing
August 1, 2002. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
The Company shall pay interest on overdue principal and on overdue
installments of interest (without regard to any applicable grace periods) to the
extent lawful from time to time on demand at the rate borne by the Notes.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are the registered Holders at the
close of business on January 15 or July 15 immediately preceding the Interest
Payment Date (whether or not such day is a Business Day) even if the Notes are
canceled on registration of transfer or registration of exchange after such
Record Date. Holders must surrender Notes to a Paying Agent to collect principal
payments. Payments of principal and premium, if any, will be made (on
presentation of such Notes if in certificated form) in money of the United
States that at the time of payment is legal tender for payment of public and
private debts; provided, however, that the Company may pay principal, premium,
if any, and interest by check payable in such money; provided that all payments
with respect to Global Notes and Certificated Notes the Holders of which have
given written transfer instructions to the Trustee by no later than five
Business Days prior to the relevant payment date will be required to be made by
wire transfer of immediately available funds to the accounts of the Holders
thereof.
3. Paying Agent and Registrar. Initially, The Bank of New York (the
"Trustee"), will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders. Either
the Company or any domestic Wholly Owned Restricted Subsidiary may act as Paying
Agent, Registrar or co-Registrar.
4. Indenture. The Company issued this Note under an Indenture, dated
as of February 1, 2002 (the "Indenture"), by and among the Company, the
Guarantors and the Trustee. This Note is one of a duly authorized issue of Notes
of the Company designated as its Series B 8 1/2% Senior Notes due 2012 (the
"Exchange Notes") issued in exchange for the initial 8 1/2% Senior Notes due
2012 (the "Initial Notes" and, together with the Exchange Notes, the "Notes").
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. 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. Code Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of
the Indenture. Notwithstanding anything to the contrary herein, the Notes are
subject to all such terms, and Holders are referred to the Indenture and the TIA
for a statement of them. The Notes are general unsecured obligations of the
Company.
5. Guarantee. The obligations of the Company hereunder are
guaranteed on a senior basis by the Guarantors.
6. Redemption.
(a) Optional Redemption. The Company may redeem the Notes, at its
option, in whole at any time or in part from time to time, on and after February
1, 2007 at the following Redemption Prices (expressed as percentages of the
principal amount thereof) if redeemed during the twelve-month period
B-4
commencing on February 1 of the year set forth below, plus, in each case,
accrued and unpaid interest thereon, if any, to the date of redemption.
Year Percentage
---- ----------
2007.................................................. 104.250%
2008.................................................. 102.833%
2009.................................................. 101.417%
2010 and thereafter................................... 100.000%
(b) Optional Redemption upon Equity Offerings. In addition, at any
time and from time to time on or prior to February 1, 2005, the Company may
redeem up to 35% of the principal amount of the Notes (calculated to give effect
to any issuance of Additional Notes) with the Net Cash Proceeds of one or more
Public Equity Offerings, at a redemption price in cash equal to 108.500% of the
principal to be redeemed plus accrued and unpaid interest and Additional
Interest, if any, thereon to the date of redemption; provided that at least 65%
of the original principal amount of Notes remains outstanding immediately after
each such redemption. Any such redemption will be required to occur within 90
days following the closing of any such Public Equity Offering.
(c) Special Mandatory Redemption. On the earlier to occur of (x)
April 1, 2002 if the Company has not entered into and borrowed funds under the
Senior Credit Facility on or before such date or (y) at any time if the Company
determines that the Senior Credit Facility is unlikely to be entered into in a
manner consistent in all material respects with the description of the Senior
Credit Facility contained in the Offering Circular, the Company shall on such
date redeem all of the outstanding Notes at a Redemption Price equal to 100% of
the principal amount thereof plus accrued and unpaid interest, if any, to the
Redemption Date. Any such redemption shall occur no later than (i) April 11,
2002 in the case of clause (x) above and (ii) the 10th day following the
Company's determination in the case of a redemption pursuant to clause (y)
above.
7. Notice of Redemption. Notice of redemption under paragraphs 6(a)
and 6(b) of this Note will be mailed at least 30 days but not more than 60 days
before the Redemption Date to each Holder to be redeemed at such Holder's
registered address. Notice of redemption under paragraph 6(c) of this Note shall
be given at least five days before a Special Redemption (as defined in the
Indenture) by first class mail to each Holder to be redeemed at such Holder's
registered address.
Except as set forth in the Indenture, if monies for the redemption
of the Notes called for redemption shall have been deposited with the Paying
Agent for redemption on such Redemption Date, then, unless the Company defaults
in the payment of such Redemption Price plus accrued interest, if any, the Notes
called for redemption will cease to bear interest from and after such Redemption
Date and the only right of the Holders of such Notes will be to receive payment
of the Redemption Price plus accrued interest, if any.
8. Offers to Purchase. The Indenture provides that, after certain
Asset Sales (as defined in the Indenture), Events of Loss (as defined in the
Indenture) and upon the occurrence of a Change of Control (as defined in the
Indenture), and subject to further limitations contained therein, the Company
will make an offer to purchase certain amounts of the Notes in accordance with
the procedures set forth in the Indenture.
9. Denominations; Transfer; Exchange. The Notes are in registered
form, without coupons, in denominations of $1,000 and integral multiples
thereof. A Holder shall register the transfer or exchange of Notes in accordance
with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay certain
transfer taxes or similar governmental charges payable in connection therewith
as permitted by the Indenture. The Registrar need not register the transfer of
or exchange of any Notes or portions thereof selected for redemption.
B-5
10. Persons Deemed Owners. The registered holder of a 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 the Paying Agent will
pay the money back to the Company. After that, Holders entitled to money must
look to the Company for payment as general creditors unless an "abandoned
property" law designates another person.
12. Legal Defeasance and Covenant Defeasance. If the Company at any
time deposits with the Trustee U.S. legal tender or U.S. Government Obligations
sufficient to pay the principal of and interest on the Notes to redemption or
maturity and complies with the other provisions of the Indenture relating to
defeasance, the Company will be discharged from certain provisions of the
Indenture and the Notes (including certain covenants, but excluding its
obligation to pay the principal of and interest on the Notes).
13. Amendments, Supplements, and Waivers. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Notes then outstanding, and any existing Default or Event of
Default or noncompliance with any provision may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the Notes
then outstanding. Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency, provide for uncertificated
Notes in addition to or in place of certificated Notes or make any other change
that does not adversely affect in any material respect the rights of any Holder.
14. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Company and its Subsidiaries to, among other things, incur
additional Indebtedness, make payments in respect of its Equity Interests, enter
into transactions with Affiliates, create dividend or other payment restrictions
affecting Restricted Subsidiaries, sell assets, create liens, issue capital
stock, enter into sale and lease-back transactions, make certain Investments,
merge or consolidate with any other Person, or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its assets. Such
limitations are subject to a number of important qualifications and exceptions.
The Company must annually report to the Trustee on compliance with such
limitations.
15. Successor Entity. When a successor entity assumes, in accordance
with the Indenture, all the obligations of its predecessor under the Notes and
the Indenture, and immediately before and thereafter no Default or Event of
Default exists and certain other conditions are satisfied, the predecessor
entity will be released from those obligations.
16. Defaults and Remedies. Events of Default are set forth in the
Indenture. If an Event of Default (other than an Event of Default pursuant to
Section 6.01(g) or (h) of the Indenture) shall have occurred and be continuing,
the Trustee or the Holders of at least 25% in principal amount of outstanding
Notes may declare the principal of, premium, if any, and accrued interest and
Additional Interest, if any, on all the Notes to be due and payable by notice in
writing to the Company and (if given by the Holders) the Trustee specifying the
respective Events of Default and that it is a "notice of acceleration," and the
same shall become immediately due and payable. If an Event of Default specified
in Sections 6.01(g) and (h) of the Indenture occurs and is continuing, then all
unpaid principal of, premium, if any, and accrued and unpaid interest and
Additional Interest, if any, on all of the outstanding 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 Holder.
17. Trustee Dealings with Company. The Trustee under the Indenture,
in its individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Company, and may otherwise deal with the
Company, its Subsidiaries or their respective Affiliates as if it were not the
Trustee.
B-6
18. No Recourse Against Others. As more fully described in the
Indenture, no director, officer, employee, stockholder or incorporator, as such,
of the Company shall have any liability for any obligation of the Company 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 by accepting a Note waives
and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
19. Authentication. This Note shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on this
Note.
20. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES TO THE INDENTURE HAS AGREED TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE.
21. Abbreviations and Defined Terms. 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
right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
22. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes as a convenience to the Holders. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
23. Indenture. Each Holder, by accepting a Note, agrees to be bound
by all of the terms and provisions of the Indenture, as the same may be amended
from time to time.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture, which has the text of this Note in
larger type. Requests may be made to: PanAmSat Corporation, 00 Xxxxxxxx Xxxx,
Xxxxxx, Xxxxxxxxxxx 00000, Attention: Secretary.
B-7
FORM OF GUARANTEE
Each Guarantor (capitalized terms used herein have the meanings
given such terms in the Indenture referred to in the Note upon which this
notation is endorsed) hereby unconditionally guarantees on a senior basis (such
guarantee being referred to herein as the "Guarantee") the due and punctual
payment of the principal of, premium, if any, and interest on the Notes, whether
at maturity, by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal, premium and interest on the Notes, and the
due and punctual performance of all other obligations of the Company to the
Holders or the Trustee, all in accordance with the terms set forth in Article 10
of the Indenture.
This Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Notes upon which this Guarantee
is noted shall have been executed by the Trustee under the Indenture by the
manual signature of one of its authorized officers.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflicts of
law.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
B-8
[ ]
By:
------------------------------------
Name:
Title:
B-9
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ,
-------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date: Signed:
---------------------------- ---------------------------------
(Sign exactly as your name appears
on the other side of this Note)
Medallion Guarantee:
--------------------------------
B-10
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company
pursuant to Sections 4.13, 4.16 or 4.17 of the Indenture, check the appropriate
box:
Section 4.13 [ ]
Section 4.16 [ ]
Section 4.17 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Sections 4.13, 4.16 or 4.17 of the Indenture, state the
amount you elect to have purchased:
$
------------------
Date:
------------------------------ ----------------------------------------
NOTICE: The signature on this assignment
must correspond with the name as it
appears upon the face of the within Note
in every particular without alteration
or enlargement or any change whatsoever
and be guaranteed by the endorser's bank
or broker.
Medallion Guarantee:
--------------------------------
B-11
EXHIBIT C
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF NOTES
Re: PanAmSat Corporation (the "Company")
8 1/2% Senior Notes due 2012 (the "Notes")
This Certificate relates to $_______ principal amount of Notes held
in the form of* ___ a beneficial interest in a Global Note or* _______
Certificated Notes by ______ (the "Transferor").
The Transferor:
[ ] has requested by written order that the Registrar deliver in
exchange for its beneficial interest in the Global Note held by the Depository a
Certificated Note or Certificated Notes in definitive, registered form of
authorized denominations and an aggregate number equal to its beneficial
interest in such Global Note (or the portion thereof indicated above); or
[ ] has requested by written order that the Registrar exchange or
register the transfer of a Certificated Note or Certificated Notes.
In connection with such request and in respect of each such Note,
the Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above captioned Notes and the restrictions on
transfers thereof as provided in Section 2.16 of such Indenture, and that the
transfer of the Notes does not require registration under the Securities Act of
1933, as amended (the "Securities Act"), because*:
[ ] Such Note is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.16 of the Indenture).
[ ] Such Note is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act), in reliance on Rule
144A.
[ ] Such Note is being transferred to an institutional "accredited
investor" (within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule
501 under the Securities Act) which delivers a certificate to the Trustee in the
form of Exhibit D to the Indenture.
[ ] Such Note is being transferred in reliance on Regulation S under
the Securities Act and a transfer certificate for Regulation S transfers in the
form of Exhibit E to the Indenture accompanies this certification. [An Opinion
of Counsel to the effect that such transfer does not require registration under
the Securities Act accompanies this certification.]
[ ] Such Note is being transferred in reliance on Rule 144 under the
Securities Act. [An Opinion of Counsel to the effect that such transfer does not
require registration under the Securities Act accompanies this certification.]
C-1
[ ] Such Note is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Securities Act other
than Rule 144A or Rule 144 under the Securities Act to a person other than an
institutional "accredited investor." [An Opinion of Counsel to the effect that
such transfer does not require registration under the Securities Act accompanies
this certification.]
----------------------------------------
[INSERT NAME OF TRANSFEROR]
By:
-------------------------------------
[Authorized Signatory]
Date:
-----------------------------
*Check applicable box.
C-2
EXHIBIT D
Form of Transferee Letter of Representation
The Bank of New York
0 Xxxx Xxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Division
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $________
principal amount of the 8 1/2% Senior Notes due 2012 of PanAmSat Corporation
(the "Company") and any guarantee thereof (the "Notes"). 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 (the "Securities
Act")) purchasing Notes for our own account or for the account of such an
institutional "accredited investor" 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 risk of our
investment in the Notes and we invest in or purchase securities 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 acknowledge that we have had access to such financial and
other information, and have been afforded the opportunity to ask such questions
of representatives of the Company and receive answers thereto, as we deem
necessary.
3. 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 that we will not prior to the date
(the "Resale Restriction Termination Date") that is two years after the later of
the original issuance of the Notes and the last date on which the Company or any
affiliate of the Company was the owner of such Notes (or any predecessor
thereto) offer, sell or otherwise transfer such Notes except (a) to the Company
or any subsidiary of the Company, (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 "institutional accredited investor" as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
the Trustee a signed letter substantially in the form of this letter, (d)
outside the United States in an offshore transaction in compliance with Rule 904
under the Securities Act, (e) pursuant to any other available exemption from the
registration requirements of the Securities Act or (f) pursuant to an effective
registration statement under the Securities Act. We acknowledge that the Company
and the Trustee reserve the right prior to any offer, sale or other transfer
prior to the Resale Restriction Termination Date of the applicable Notes
pursuant to clause (c) or (e) above to require the delivery of an opinion of
counsel, certification and/or other information satisfactory to the Company and
the Trustee.
We understand that the Trustee will not be required to accept for
registration of transfer any Notes acquired by us, except upon presentation of
evidence satisfactory to the Company and the Trustee that the foregoing
restrictions on transfer have been complied with. We further understand that any
Notes purchased by us will be in the form of definitive physical certificates
and that such certificates will bear a legend reflecting the substance of
paragraph 3 of this letter. We further agree to provide to any person acquiring
any of the Notes
D-1
from us a notice advising such person that transfers of such Notes are
restricted as stated herein and that certificates representing such Notes will
bear a legend to that effect.
We represent that the Company and the Trustee and others are
entitled to rely upon the truth and accuracy of our acknowledgments,
representations and agreements set forth herein, and we agree to notify you
promptly in writing if any of our acknowledgments, representations or agreements
herein cease to be accurate and complete. You are also irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
We represent to you that we have full power to make the foregoing
acknowledgments, representations and agreements on our own behalf and on behalf
of any investor account for which we are acting as fiduciary agent.
As used herein, the terms "offshore transaction," "United States"
and "U.S. person" have the respective meanings given to them in Regulation S
under the Securities Act.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
Dated: TRANSFEREE:
-----------------
By:
-------------------------------------
D-2
EXHIBIT E
Form of Certificate To Be
Delivered in Connection
with Regulation S Transfers
---------------, ----
The Bank of New York
0 Xxxx Xxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Division
Re: PanAmSat Corporation 8 1/2% Senior
Notes due 2012 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $__________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(a) or Rule 904(a) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Defined terms used herein without
definition have the respective meanings provided in Regulation S.
Very truly yours,
[Name of Transferor]
By:
-------------------------------------
E-1
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
[ ], among [ ] (the "New Guarantor"), a subsidiary of PanAmSat Corporation
(or its successor), a Delaware corporation (the "Company"), the Guarantors (the
"Existing Guarantors") under the Indenture referred to below, and The Bank of
New York, as trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H :
WHEREAS the Company has heretofore executed and delivered to the
Trustee an Indenture (as such may be amended from time to time, the
"Indenture"), dated as of February 1, 2002, providing for the issuance of its
8 1/2% Senior Notes due 2012 (the "Notes");
WHEREAS Section 4.20 of the Indenture provides that under certain
circumstances the Company 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 of the Company's obligations under
the Notes pursuant to a Guarantee on the terms and conditions set forth herein;
and
WHEREAS pursuant to Section 8.01 of the Indenture, the Trustee, the
Company and Existing Guarantors 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 Company, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders as follows:
1. Definitions. (a) Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
(b) For all purposes of this Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires:
(i) the terms and expressions used herein shall have the same meanings as
corresponding terms and expressions used in the Indenture; and (ii) 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 other Guarantors, to Guarantee the Company'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. From and after the date hereof, the New Guarantor shall be a
Guarantor for all purposes under the Indenture and the Notes.
3. Ratification of Indenture; Supplemental Indenture 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 heretofore or hereafter
authenticated and delivered shall be bound hereby.
4. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE
F-1
PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
SUPPLEMENTAL INDENTURE.
5. Trustee Makes No Representation. The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or for or in respect of the recitals
contained herein, all of which are made solely by the Company.
6. Multiple Counterparts. The parties may sign multiple counterparts
of this Supplemental Indenture. Each signed counterpart shall be deemed an
original, but all of them together represent one and the same agreement.
7. Headings. The headings of this Supplemental Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
F-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date and year first above written.
[NEW GUARANTOR]
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
PANAMSAT CORPORATION
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
F-3
EXISTING GUARANTORS:
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
-------------------------------------
Name:
Title:
F-4
