CANADIAN SATELLITE RADIO HOLDINGS INC. AND THE GUARANTORS PARTY HERETO
Execution
Copy
EXHIBIT
4.1
CANADIAN
SATELLITE RADIO HOLDINGS INC.
AND
THE
GUARANTORS
PARTY
HERETO
12.75%
SENIOR NOTES DUE 2014
INDENTURE
Dated
as
of February 10, 0000
XXX
XXXX
XX XXXX XXXXXX TRUST COMPANY OF NEW YORK
Trustee
CROSS-REFERENCE
TABLE*
Trust
Indenture
Act
Section
|
Indenture
Section
|
310(a)(1)
|
7.10
|
(a)(2)
|
7.10
|
(a)(3)
|
N.A.
|
(a)(4)
|
N.A.
|
(a)(5)
|
7.10
|
(b)
|
7.10
|
(c)
|
N.A.
|
311(a)
|
7.11
|
(b)
|
7.11
|
(c)
|
N.A.
|
312(a)
|
2.05
|
(b)
|
12.03
|
(c)
|
12.03
|
313(a)
|
7.06
|
(b)(2)
|
7.06;
7.07
|
(c)
|
7.06;
12.02
|
(d)
|
7.06
|
314(a)
|
4.03;12.02;
12.05
|
(c)(1)
|
12.04
|
(c)(2)
|
12.04
|
(c)(3)
|
N.A.
|
(d)
|
N.A.
|
(e)
|
12.05
|
(f)
|
N.A.
|
315(a)
|
7.01
|
(b)
|
7.05;
12.02
|
(c)
|
7.01
|
(d)
|
7.01
|
(e)
|
6.11
|
316(a)
(last sentence)
|
2.09
|
(a)(1)(A)
|
6.05
|
(a)(1)(B)
|
6.04
|
(a)(2)
|
N.A.
|
(b)
|
6.07
|
(c)
|
2.12
|
317(a)(1)
|
6.08
|
(a)(2)
|
6.09
|
(b)
|
2.04
|
318(a)
|
12.01
|
(b)
|
N.A.
|
(c)
|
12.01
|
N.A.
means not applicable.
*
This
Cross Reference Table is not part of the Indenture.
2
TABLE
OF
CONTENTS
Page
ARTICLE
1
|
|||
DEFINITIONS
AND INCORPORATION
|
|||
BY
REFERENCE
|
|||
Section 1.01 | Definitions. |
1
|
|
Section 1.02 | Other Definitions. |
19
|
|
Section 1.03 | Incorporation by Reference of Trust Indenture Act. |
20
|
|
Section 1.04 | Rules of Construction. |
20
|
|
ARTICLE
2
|
|||
THE
NOTES
|
|||
Section 2.01 | Form and Dating. |
21
|
|
Section 2.02 | Execution and Authentication. |
21
|
|
Section 2.03 | Registrar and Paying Agent. |
22
|
|
Section 2.04 | Paying Agent to Hold Money in Trust. |
22
|
|
Section 2.05 | Holder Lists. |
22
|
|
Section 2.06 | Transfer and Exchange. |
22
|
|
Section 2.07 | Replacement Notes. |
34
|
|
Section 2.08 | Outstanding Notes. |
34
|
|
Section 2.09 | Treasury Notes. |
34
|
|
Section 2.10 | Temporary Notes. |
35
|
|
Section 2.11 | Cancellation. |
35
|
|
Section 2.12 | Defaulted Interest. |
35
|
|
ARTICLE
3
|
|||
REDEMPTION
AND PREPAYMENT
|
|||
Section 3.01 | Notices to Trustee. |
35
|
|
Section 3.02 | Selection of Notes to Be Redeemed or Purchased. |
36
|
|
Section 3.03 | Notice of Redemption. |
36
|
|
Section 3.04 | Effect of Notice of Redemption. |
37
|
|
Section 3.05 | Deposit of Redemption or Purchase Price. |
37
|
|
Section 3.06 | Notes Redeemed or Purchased in Part. |
37
|
|
Section 3.07 | Optional Redemption. |
37
|
|
Section 3.08 | Mandatory Redemption. |
38
|
|
Section 3.09 | Offer to Purchase by Application of Excess Proceeds. |
38
|
|
Section 3.10 | Redemption for Changes in Withholding Taxes. |
40
|
|
ARTICLE
4
|
|||
COVENANTS
|
|||
Section 4.01 | Payment of Notes. |
40
|
|
Section 4.02 | Maintenance of Office or Agency. |
40
|
|
Section 4.03 | Reports. |
41
|
|
Section 4.04 | Compliance Certificate. |
42
|
|
Section 4.05 | Taxes. |
43
|
|
Section 4.06 | Stay, Extension and Usury Laws. |
43
|
|
Section 4.07 | Restricted Payments. |
43
|
|
Section 4.08 | Dividend and Other Payment Restrictions Affecting Subsidiaries. |
46
|
|
Section 4.09 | Incurrence of Indebtedness and Issuance of Preferred Stock. |
47
|
|
Section 4.10 | Asset Sales. |
50
|
|
Section 4.11 | Transactions with Affiliates. |
52
|
|
Section 4.12 | Liens. |
53
|
|
Section 4.13 | Business Activities. |
53
|
|
Section 4.14 | Corporate Existence. |
53
|
|
Section 4.15 | Offer to Repurchase Upon Change of Control. |
54
|
|
Section 4.16 | Limitation on Sale and Leaseback Transactions. |
55
|
|
Section 4.17 | Payments for Consent. |
56
|
|
Section 4.18 | Additional Note Guarantees. |
56
|
|
Section 4.19 | Designation of Restricted and Unrestricted Subsidiaries. |
56
|
|
Section 4.20 | Payment of Additional Amounts |
57
|
|
ARTICLE
5
|
|||
SUCCESSORS
|
|||
Section 5.01 | Merger, Consolidation, or Sale of Assets. |
58
|
|
Section 5.02 | Successor Corporation Substituted. |
59
|
|
ARTICLE
6
|
|||
DEFAULTS
AND REMEDIES
|
|||
Section 6.01 | Events of Default. |
60
|
|
Section 6.02 | Acceleration. |
62
|
|
Section 6.03 | Other Remedies. |
62
|
|
Section 6.04 | Waiver of Past Defaults. |
63
|
|
Section 6.05 | Control by Majority. |
63
|
|
Section 6.06 | Limitation on Suits. |
63
|
|
Section 6.07 | Rights of Holders of Notes to Receive Payment. |
63
|
|
Section 6.08 | Collection Suit by Trustee. |
64
|
|
Section 6.09 | Trustee May File Proofs of Claim. |
64
|
|
Section 6.10 | Priorities. |
64
|
|
Section 6.11 | Undertaking for Costs. |
64
|
|
65
|
|||
ARTICLE
7
|
|||
TRUSTEE
|
|||
Section 7.01 | Duties of Trustee. |
65
|
|
Section 7.02 | Rights of Trustee. |
66
|
|
Section 7.03 | Individual Rights of Trustee. |
66
|
|
Section 7.04 | Trustee’s Disclaimer. |
67
|
|
Section 7.05 | Notice of Defaults. |
67
|
|
Section 7.06 | Reports by Trustee to Holders of the Notes. |
67
|
|
Section 7.07 | Compensation and Indemnity. |
67
|
|
Section 7.08 | Replacement of Trustee. |
68
|
|
Section 7.09 | Successor Trustee by Merger, etc. |
69
|
|
Section 7.10 | Eligibility; Disqualification. |
69
|
|
Section 7.11 | Preferential Collection of Claims Against Company. |
69
|
|
ARTICLE
8
|
|||
LEGAL
DEFEASANCE AND COVENANT
DEFEASANCE
|
|||
Section 8.01 | Option to Effect Legal Defeasance or Covenant Defeasance. |
69
|
|
Section 8.02 | Legal Defeasance and Discharge. |
70
|
|
Section 8.03 | Covenant Defeasance. |
70
|
|
Section 8.04 | Conditions to Legal or Covenant Defeasance. |
71
|
|
Section 8.05 | Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions. |
72
|
|
Section 8.06 | Repayment to Company. |
72
|
|
Section 8.07 | Reinstatement. |
73
|
|
ARTICLE
9
|
|||
AMENDMENT,
SUPPLEMENT AND
WAIVER
|
|||
|
|||
Section 9.01 | Without Consent of Holders of Notes. |
73
|
|
Section 9.02 | With Consent of Holders of Notes. |
74
|
|
Section 9.03 | Compliance with Trust Indenture Act. |
75
|
|
Section 9.04 | Revocation and Effect of Consents. |
75
|
|
Section 9.05 | Notation on or Exchange of Notes. |
75
|
|
Section 9.06 | Trustee to Sign Amendments, etc. |
76
|
|
ARTICLE
10
|
|||
NOTE
GUARANTEES
|
|||
Section 10.01 | Guarantee. |
76
|
|
Section 10.02 | Limitation on Guarantor Liability. |
77
|
|
Section 10.03 | Execution and Delivery of Note Guarantee. |
77
|
|
Section 10.04 | Guarantors May Consolidate, etc., on Certain Terms. |
78
|
|
Section 10.05 | Releases. |
78
|
|
ARTICLE
11
|
|||
SATISFACTION
AND DISCHARGE
|
|||
Section 11.01 | Satisfaction and Discharge. |
79
|
|
Section 11.02 | Application of Trust Money. |
80
|
|
ARTICLE
12
|
|||
MISCELLANEOUS
|
|||
Section 12.01 | Trust Indenture Act Controls |
80
|
|
Section 12.02 | Notices. |
80
|
|
Section 12.03 | Communication by Holders of Notes with Other Holders of Notes. |
82
|
|
Section 12.04 | Certificate and Opinion as to Conditions Precedent. |
82
|
|
Section 12.05 | Statements Required in Certificate or Opinion. |
82
|
|
Section 12.06 | Rules by Trustee and Agents. |
82
|
|
Section 12.07 | No Personal Liability of Directors, Officers, Employees and Stockholders. |
82
|
|
Section 12.08 | Governing Law. |
83
|
|
Section 12.09 | No Adverse Interpretation of Other Agreements. |
83
|
|
Section 12.10 | Successors. |
83
|
|
Section 12.11 | Severability. |
83
|
|
Section 12.12 | Counterpart Originals. |
83
|
|
Section 12.13 | Table of Contents, Headings, etc. |
83
|
|
Section 12.14 | Consent to Jurisdiction |
83
|
|
Section 12.15 | Obligation Currency |
84
|
|
EXHIBITS
|
|||
Exhibit A | FORM OF NOTE | ||
Exhibit B | FORM OF CERTIFICATE OF TRANSFER | ||
Exhibit C | FORM OF CERTIFICATE OF EXCHANGE | ||
Exhibit D | FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR | ||
Exhibit E | FORM OF NOTATION OF GUARANTEE | ||
Exhibit F | FORM OF SUPPLEMENTAL INDENTURE |
3
INDENTURE
dated as of February 10, 2006 among Canadian Satellite Radio Holdings Inc.,
a
corporation organized under the laws of the Province of Ontario, Canada, the
Guarantors (as defined) and The Bank of Nova Scotia Trust Company of New York,
as trustee.
The
Company, the Guarantors and the Trustee agree as follows for the benefit of
each
other and for the equal and ratable benefit of the Holders (as defined) of
the
12.75% Senior Notes due 2014 (the “Notes”):
ARTICLE
1
DEFINITIONS
AND INCORPORATION
BY
REFERENCE
Section
1.01 Definitions.
“144A
Global Note”
means a
Global Note substantially in the form of Exhibit A hereto bearing the Global
Note Legend and the Private Placement Legend and deposited with or on behalf
of,
and registered in the name of, the Depositary or its nominee that will be issued
in a denomination equal to the outstanding principal amount of the Notes sold
in
reliance on Rule 144A.
“Acquired
Debt”
means,
with respect to any specified Person:
(1)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, whether
or
not such Indebtedness is incurred in connection with, or in contemplation of,
such other Person merging with or into, or becoming a Restricted Subsidiary
of,
such specified Person; and
(2)
Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.
“Additional
Notes”
means
additional Notes (other than the Initial Notes) issued under this Indenture
in
accordance with Sections 2.02 and 4.09 hereof, as part of the same series as
the
Initial Notes.
“Affiliate”
of any
specified Person means any other Person directly or indirectly controlling
or
controlled by or under direct or indirect common control with such specified
Person. For purposes of this definition, “control,” 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
beneficial ownership of 10% or more of the Voting Stock of a Person will be
deemed to be control. For purposes of this definition, the terms “controlling,”
“controlled
by”
and
“under
common control with”
have
correlative meanings.
“Agent”
means
any Registrar, co-registrar, Paying Agent or additional paying
agent.
“Applicable
Procedures”
means,
with respect to any transfer or exchange of or for beneficial interests in
any
Global Note, the rules and procedures of the Depositary, Euroclear and
Clearstream that apply to such transfer or exchange.
“Asset
Sale”
means:
(1) the
sale,
lease, conveyance or other disposition of any assets or rights; provided
that the
sale, lease, conveyance or other disposition of all or substantially all of
the
assets of the Company and its Restricted Subsidiaries taken as a whole will
be
governed by the provisions of Section 4.15 hereof and/or Section 5.01 hereof
and
not by the provisions of Section 4.10 hereof; and
4
(2) the
issuance of Equity Interests in any of the Company’s Restricted Subsidiaries or
the sale of Equity Interests in any of its Restricted Subsidiaries.
Notwithstanding
the preceding, none of the following items will be deemed to be an Asset Sale:
(3) any
single transaction or series of related transactions that involves assets having
a Fair Market Value of less than US$1.0 million;
(4) a
transfer of assets between or among the Company and its Restricted Subsidiaries
(including any Persons that become a Restricted Subsidiary in connection with
such transaction);
(5) an
issuance of Equity Interests by a Restricted Subsidiary of the Company to the
Company or to a Restricted Subsidiary of the Company;
(6) the
sale
or lease of inventory, equipment, products, services or accounts receivable
in
the ordinary course of business and any sale or other disposition of damaged,
worn-out or obsolete assets in the ordinary course of business;
(7) the
sale
or maturity or other disposition of cash or Cash Equivalents;
(8) a
Restricted Payment that does not violate the provisions of Section 4.07 hereof;
(9) a
Permitted Investment; and
(10) any
sale
or disposition deemed to occur in connection with creating, granting or
enforcing any Permitted Lien.
“Attributable
Debt”
in
respect of a sale and leaseback transaction means, at the time of determination,
the present value of the obligation of the lessee for net rental payments during
the remaining term of the lease included in such sale and leaseback transaction
including any period for which such lease has been extended or may, at the
option of the lessor, be extended. Such present value shall be calculated using
a discount rate equal to the rate of interest implicit in such transaction,
determined in accordance with GAAP; provided,
however,
that if
such sale and leaseback transaction results in a Capital Lease Obligation,
the
amount of Indebtedness represented thereby will be determined in accordance
with
the definition of “Capital Lease Obligation.”
“Bankruptcy
Law”
means
the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement
Act (Canada), or Title 11, U.S. Code, each as amended, or any similar bankruptcy
or insolvency law, and other laws concerning formal or informal moratoria of
debt or compositions with creditors, and proceedings seeking reorganization,
arrangement, or other relief of debtors.
“Beneficial
Owner”
has
the
meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange
Act, except that in calculating the beneficial ownership of any particular
“person” (as that term is used in Section 13(d)(3) of the Exchange Act), such
“person” will be deemed to have beneficial ownership of all securities that such
“person” has the right to acquire by conversion or exercise of other securities,
whether such right is currently exercisable or is exercisable only after the
passage of time. The terms “Beneficially Owns” and “Beneficially Owned” have a
corresponding meaning.
5
“Board
of Directors”
means:
(1) with
respect to a corporation, the board of directors of the corporation or any
committee thereof duly authorized to act on behalf of such board;
(2)
with
respect to a partnership, the Board of Directors of the general partner of
the
partnership;
(3) with
respect to a limited liability company, the managing
member or members or any controlling committee of managing members thereof;
and
(4) with
respect to any other Person, the board or committee of such Person serving
a
similar function.
“Broker-Dealer”
has the
meaning set forth in the Registration Rights Agreement.
“Business
Day”
means
any day other than a Legal Holiday.
“Capital
Lease Obligation”
means,
at the time any determination is to be made, the amount of the liability in
respect of a capital lease that would at that time be required to be capitalized
on a balance sheet prepared in accordance with GAAP.
“Capital
Stock”
means:
(1) in
the
case of a corporation, corporate stock;
(2) in
the
case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;
(3) in
the
case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; and
(4) any
other
interest or participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, the issuing Person,
but excluding from all of the foregoing any debt securities convertible into
Capital Stock, whether or not such debt securities include any right of
participation with Capital Stock.
“Cash
Equivalents”
means,
as at any date of determination:
(1) United
States dollars;
(2) Canadian
dollars;
(3)
marketable securities (a) issued or directly and unconditionally guaranteed
as
to interest and principal by the United States or Canada and maturing within
one
year of the date of acquisition thereof or (b) issued by any agency of the
United States or Canada the obligations of which are backed by the full faith
and credit of the United States or Canada, in each case maturing within one
year
after the date of acquisition thereof;
(4) marketable
direct obligations issued by any state of the United States of America or
province of Canada or any political subdivision of any such state or province
or
any public instrumentality thereof, in each case maturing within one year after
the date of acquisition thereof and having a rating of at least A-2 from S&P
or at least P-2 from Xxxxx’x;
6
(5) commercial
paper maturing no more than one year from the date of acquisition thereof and
having a rating of at least A-2 from S&P, at least P-2 from Xxxxx’x or at
least R-2 (high) from Dominion Bond Rating Services Limited;
(6) certificates
of deposit, time deposits or bankers’ acceptances maturing within one year after
the date of acquisition thereof and issued or accepted by any commercial bank
organized under the laws of the United States of America or any state thereof
or
the District of Columbia that is at least “adequately capitalized” (as defined
in the regulations of its primary Federal banking regulator) and has Tier 1
capital (as defined in such regulations) of not less than US$100.0 million;
(7) financial
instruments maturing within one year after the date of acquisition thereof
and
issued by any Canadian chartered bank which has a long-term debt rating of
at
least A+ by S&P, A2 by Xxxxx’x or A (high) by Dominion Bond Rating Services
Limited;
(8) repurchase
agreements with a term of not more than 30 days for underlying securities of
the
types described in clause (1) or (2) entered into with any bank meeting the
qualifications specified in clause (4) or (5), which repurchase obligations
are
secured by a perfected first priority security interest in the underlying
securities; and
(9) shares
of
any money market mutual fund that has at least 95% all of its assets invested
continuously in the types of investments referred to in clauses (1) and (5)
above.
“Change
of Control”
means
the occurrence of any of the following:
(1) the
direct or indirect sale, lease, transfer, conveyance or other disposition (other
than by way of merger, amalgamation or consolidation), in one or a series of
related transactions, of all or substantially all of the properties or assets
of
the Company and its Subsidiaries taken as a whole to any “person” (as that term
is used in Section 13(d)(3) of the Exchange Act) other than a Principal or
a
Related Party of a Principal;
(2) the
adoption of a plan relating to the liquidation or dissolution of the
Company;
(3) the
consummation of any transaction (including, without limitation, any merger,
amalgamation or consolidation), the result of which is that any “person” (as
defined in clause (1) above), other than the Principals and their Related
Parties, becomes the Beneficial Owner, directly or indirectly, of more than
50%
of the Voting Stock of the Company, measured by voting power rather than number
of shares; or
(4) the
Company consolidates with, amalgamates with, or merges with or into, any Person,
or any Person consolidates with, amalgamates with, or merges with or into,
the
Company, in any such event pursuant to a transaction in which any of the
outstanding Voting Stock of the Company or such other Person is converted into
or exchanged for cash, securities or other property, other than any such
transaction where the Voting Stock of the Company outstanding immediately prior
to such transaction is converted into or exchanged for Voting Stock (other
than
Disqualified Stock) of the surviving or transferee Person constituting a
majority of the outstanding shares of such Voting Stock of such surviving or
transferee Person (immediately after giving effect to such issuance);
7
(5) the
first
day on which a majority of the members of the Board of Directors of the Company
are not Continuing Directors; or
(6) the
direct or indirect sale, lease, transfer, conveyance or other disposition of
effective control of the satellite broadcasting undertaking to any “person” (as
that term is used in Section 13(d) of the Exchange Act), or a material
change in the CRTC License, which directly results in the termination by XM
of
their obligations pursuant to the XM License Agreement or renders Holdings
or
any of its Restricted Subsidiaries incapable of conducting business as conducted
on the date hereof.
“Clearstream”
means
Clearstream Banking, S.A.
“Company”
means
Canadian Satellite Radio Holdings Inc., a corporation organized under the laws
of the Province of Ontario, Canada and any and all successors
thereto.
“Consolidated
Cash Flow”
means,
with respect to any specified Person for any period, the Consolidated Net Income
of such Person for such period plus,
without
duplication:
(1) an
amount
equal to any extraordinary loss plus any net loss realized by such Person or
any
of its Restricted Subsidiaries in connection with an Asset Sale, to the extent
such losses were deducted in computing such Consolidated Net Income;
plus
(2) provision
for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was
deducted in computing such Consolidated Net Income; plus
(3) the
Consolidated Interest Expense of such Person and its Restricted Subsidiaries
for
such period, to the extent that such Consolidated Interest Expenses were
deducted in computing such Consolidated Net Income; plus
(4) depreciation,
amortization (including amortization of goodwill and other intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior
period) and other non-cash expenses (excluding any such non-cash expense to
the
extent that it represents an accrual of or reserve for cash expenses in any
future period or amortization of a prepaid cash expense that was paid in a
prior
period) of such Person and its Restricted Subsidiaries for such period to the
extent that such depreciation, amortization and other non-cash expenses were
deducted in computing such Consolidated Net Income; minus
(5) non-cash
items increasing such Consolidated Net Income for such period, other than the
accrual of revenue in the ordinary course of business
in
each case, on an consolidated basis and determined in accordance with
GAAP
Notwithstanding
the preceding, the provision for taxes based on the income or profits of, and
the depreciation and amortization and other non-cash expenses of, a Restricted
Subsidiary of the Company shall be added to Consolidated Net Income to compute
Consolidated Cash Flow of the Company only to the extent that a corresponding
amount would be permitted at the date of determination to be dividended to
the
Company by such Restricted Subsidiary without prior governmental approval (that
has not been obtained), and without direct or indirect restriction pursuant
to
the terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to that
Restricted Subsidiary or its stockholders.
8
“Consolidated
Indebtedness”
means,
at any date of determination, with respect to any Person as of any date of
determination, the sum, without duplication, of (i) the total amount of
Indebtedness of such Person and its Restricted Subsidiaries, plus (ii) the
total
amount of Indebtedness of any other Person, to the extent that such Indebtedness
has been Guaranteed by the referent Person or one or more of its Restricted
Subsidiaries, plus (iii) the aggregate liquidation value of all Disqualified
Stock of such Person and all preferred stock of Restricted Subsidiaries of
such
Person, in each case, determined on a consolidated basis in accordance with
GAAP.
“Consolidated
Interest Expense”
means,
with respect to any Person for any period, the sum without duplication of (i)
the consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued (including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt, commissions,
discounts and other fees and charges incurred in respect of letter of credit
or
bankers’ acceptance financings, and net payments (if any) pursuant to Hedging
Obligations) and (ii) the consolidated interest expense of such Person and
its
Restricted Subsidiaries that was capitalized during such period, and (iii)
any
interest expense on Indebtedness of another Person that is guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets
of
such Person or one of its Restricted Subsidiaries (whether or not such Guarantee
or Lien is called upon) and (iv) the product of (a) all dividend payments on
any
series of preferred stock of such Person or any of its Subsidiaries, times
(b) a
fraction, the numerator of which is one and the denominator of which is one
minus the then current combined federal, provincial, state and local or other
statutory Canadian or United States tax rate of such Person, expressed as a
decimal, in each case, on a consolidated basis and in accordance with
GAAP.
“Consolidated
Leverage Ratio”
means,
as of any date of determination, the ratio of (a) the Consolidated Indebtedness
of the Company as of such date to (b) two times the Consolidated Cash Flow
of
the Company for the two most recent full fiscal quarter ending immediately
prior
to such date for which internal financial statements are available, determined
on a pro forma basis after giving effect to all acquisitions or dispositions
of
assets made by the Company and its Restricted Subsidiaries from the beginning
of
such two-quarter period through and including such date of determination
(including any related financing transactions) as if such acquisitions and
dispositions had occurred at the beginning of such two-quarter period. In
addition, for purposes of making the computation referred to above, (i)
acquisitions that have been made by the Company or any of its Subsidiaries,
including through mergers, amalgamations or consolidations and including any
related financing transactions and including increases in ownership of
Restricted Subsidiaries, during the two-quarter reference period or subsequent
to such reference period and on or prior to the Calculation Date shall be deemed
to have occurred on the first day of the reference period and Consolidated
Cash
Flow for such reference period shall be calculated without giving effect to
clause (3) of the proviso set forth in the definition of Consolidated Net
Income, and (ii) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, shall be excluded.
“Consolidated
Net Income”
means,
with respect to any specified Person for any period, the aggregate of the Net
Income of such Person and its Restricted Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP; provided
that:
(1) the
Net
Income (but not loss) of any Person that is not a Restricted Subsidiary or
that
is accounted for by the equity method of accounting will be included only to
the
extent of the amount of dividends or similar distributions paid in cash to
the
specified Person or a Restricted Subsidiary of the Person;
(2) the
Net
Income of any Restricted Subsidiary will be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary of that Net Income is not at the date of determination permitted
without any prior governmental approval (that 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 its stockholders,
members, managers or partners, as applicable;
(3) the
cumulative effect of a change in accounting principles will be excluded;
and
(4) notwithstanding
clause (1) above, the Net Income of any Unrestricted Subsidiary will be
excluded, whether or not distributed to the specified Person or one of its
Subsidiaries.
“Continuing
Directors”
means,
as of any date of determination, any member of the Board of Directors of the
Company who:
(1) was
a
member of such Board of Directors on the date of this Indenture; or
(2) was
nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of
such
Board of Directors at the time of such nomination or election.
“Corporate
Trust Office of the Trustee”
will be
at the address of the Trustee specified in Section 12.02 hereof or such other
address as to which the Trustee may give notice to the Company.
“Credit
Agreement”
means
that certain agreement dated as of November 17, 2005 between CSR, Inc., the
Company and XM Satellite Radio Holdings, Inc. as amended, extended, renewed,
restated, replaced, supplemented or otherwise modified (in whole or in part,
and
without limitation as to amount, terms, conditions, covenants and other
provisions) from time to time, and any agreement (and related document or
instrument) governing Indebtedness incurred to Refinance, in whole or in part,
the borrowings and commitments then outstanding or permitted to be outstanding
under such Credit Agreement or a successor Credit Agreement, whether by the
same
or any other lender or group of lenders.
“Credit
Facilities”
means,
one or more debt facilities (including, without limitation, the Credit
Agreement) or commercial paper facilities, in each case with banks or other
institutional lenders providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced (whether
upon or after termination or otherwise) or
refinanced
(including by means of sales of debt securities to institutional investors)
in
whole or in part from time to time.
“CRTC
License”
means
the broadcasting license to carry on a satellite subscription radio undertaking
granted to CSR pursuant to the Broadcasting Act in Broadcasting Decision CRTC
2005-246, as amended or renewed from time to time.
“CSR
Inc.” means
Canadian Satellite Radio Inc., a corporation organized under the laws of the
Province of Ontario, Canada.
“Custodian”
means
the Trustee, as custodian with respect to the Notes in global form, or any
successor entity thereto.
9
“Default”
means
any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.
“Definitive
Note”
means a
certificated Note registered in the name of the Holder thereof and issued in
accordance with Section 2.06 hereof, substantially in the form of Exhibit A
hereto except that such Note shall not bear the Global Note Legend and shall
not
have the “Schedule of Exchanges of Interests in the Global Note” attached
thereto.
“Depositary”
means,
with respect to the Notes issuable or issued in whole or in part in global
form,
the Person specified in Section 2.03 hereof as the Depositary with respect
to
the Notes, and any and all successors thereto appointed as depositary hereunder
and having become such pursuant to the applicable provision of this
Indenture.
“Disqualified
Stock”
means
any Capital Stock that, by its terms (or by the terms of any security into
which
it is convertible, or for which it is exchangeable, in each case, at the option
of the holder of the Capital Stock), or upon the happening of any event, matures
or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder of the Capital Stock,
in
whole or in part, on or prior to the date that is 91 days after the date on
which the Notes mature. Notwithstanding the preceding sentence, any Capital
Stock that would constitute Disqualified Stock solely because the holders of
the
Capital Stock have the right to require the Company to repurchase such Capital
Stock upon the occurrence of a change of control or an asset sale will not
constitute Disqualified Stock if the terms of such Capital Stock provide that
the Company may not repurchase or redeem any such Capital Stock pursuant to
such
provisions unless such repurchase or redemption complies with Section 4.07
hereof. The amount of Disqualified Stock deemed to be outstanding at any time
for purposes of this Indenture will be the maximum amount that the Company
and
its Restricted Subsidiaries may become obligated to pay upon the maturity of,
or
pursuant to any mandatory redemption provisions of, such Disqualified Stock,
exclusive of accrued dividends.
“Equity
Interests”
means
Capital Stock and all warrants, options or other rights to acquire Capital
Stock
(but excluding any debt security that is convertible into, or exchangeable
for,
Capital Stock).
“Euroclear”
means
Euroclear Bank, S.A./N.V., as operator of the Euroclear system.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Exchange
Notes”
means
the Notes issued in the Exchange Offer pursuant to Section 2.06(f) hereof.
“Exchange
Offer”
has the
meaning set forth in the Registration Rights Agreement.
“Exchange
Offer Registration Statement”
has the
meaning set forth in the Registration Rights Agreement.
“Existing
Indebtedness”
means
Indebtedness of the Company and its Subsidiaries in existence on the date of
this Indenture, until such amounts are repaid.
“Fair
Market Value” means
the
value that would be paid by a willing buyer to an unaffiliated willing seller
in
a transaction not involving distress or necessity of either party, determined
in
good faith by the Board of Directors of the Company (unless otherwise provided
in this Indenture).
10
“GAAP”
means
generally accepted accounting principles consistently applied as in effect
in
Canada as of the date of this Indenture
“Global
Note Legend”
means
the legend set forth in Section 2.06(g)(2) hereof, which is required to be
placed on all Global Notes issued under this Indenture.
“Global
Notes”
means,
individually and collectively, each of the Restricted Global Notes and the
Unrestricted Global Notes deposited with or on behalf of and registered in
the
name of the Depository or its nominee, substantially in the form of Exhibit
A
hereto and that bears the Global Note Legend and that has the “Schedule of
Exchanges of Interests in the Global Note” attached thereto, issued in
accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4), 2.06(d)(2) or 2.06(f)
hereof.
“Government
Securities”
means
direct obligations of, or obligations guaranteed by, the United States of
America (including any agency or instrumentality thereof) for the payment of
which obligations or guarantees the full faith and credit of the United States
of America is pledged and which are not callable or redeemable at the issuer’s
option.
“Guarantee”
means a
guarantee other than by endorsement of negotiable instruments for collection
in
the ordinary course of business, direct or indirect, in any manner including,
without limitation, by way of a pledge of assets or through letters of credit
or
reimbursement agreements in respect thereof, of all or any part of any
Indebtedness (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services,
to
take or pay or to maintain financial statement conditions or
otherwise).
“Guarantors”
means
each of:
(1) Canadian
Satellite Radio Inc. and
(2) any
other
Subsidiary of the Company that executes a Note Guarantee in accordance with
the
provisions of this Indenture,
and
their
respective successors and assigns, in each case, until the Note Guarantee of
such Person has been released in accordance with the provisions of this
Indenture.
“Hedging
Obligations”
means,
with respect to any specified Person, the obligations of such Person
under:
(1) interest
rate swap agreements (whether from fixed to floating or from floating to fixed),
interest rate cap agreements and interest rate collar agreements;
(2) other
agreements or arrangements designed to manage interest rates or interest rate
risk; and
(3) other
agreements or arrangements designed to protect such Person against fluctuations
in currency exchange rates.
“Holder”
means a
Person in whose name a Note is registered.
“IAI
Global Note”
means a
Global Note substantially in the form of Exhibit A hereto bearing the Global
Note Legend and the Private Placement Legend and deposited with or on behalf
of
and registered in the name of the Depositary or its nominee that will be issued
in a denomination equal to the outstanding principal amount of the Notes sold
to
Institutional Accredited Investors.
11
“Immaterial
Subsidiary”
means,
as of any date, any Restricted Subsidiary whose total assets, as of that date,
are less than US$250,000 and whose total revenues for the most recent 12-month
period for which financial statements are available do not exceed US$250,000;
provided
that a
Restricted Subsidiary will not be considered to be an Immaterial Subsidiary
if
it, directly or indirectly, guarantees or otherwise provides direct credit
support for any Indebtedness of the Company.
“Indebtedness”
means,
with respect to any specified Person, any indebtedness of such Person (excluding
accrued expenses and trade payables), whether or not contingent:
(1) in
respect of borrowed money;
(2) evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof);
(3) in
respect of banker’s acceptances;
(4) representing
Capital Lease Obligations or Attributable Debt in respect of sale and leaseback
transactions;
(5) representing
the balance deferred and unpaid of the purchase price of any property or
services due more than six months after such property is acquired or such
services are completed, except any such balance that constitutes an accrued
exposure or trade payable; or
(6) representing
any Hedging Obligations,
if
and to
the extent any of the preceding items (other than letters of credit,
Attributable Debt and Hedging Obligations) would appear as a liability upon
a
balance sheet of the specified Person prepared in accordance with GAAP. In
addition, the term “Indebtedness” includes all Indebtedness of others secured by
a Lien on any asset of the specified Person (whether or not such Indebtedness
is
assumed by the specified Person) and, to the extent not otherwise included,
the
Guarantee by the specified Person of any Indebtedness of any other Person.
“Indenture”
means
this Indenture, as amended or supplemented from time to time.
“Indirect
Participant”
means a
Person who holds a beneficial interest in a Global Note through a
Participant.
“Initial
Notes”
means
the first $100,000,000 aggregate principal amount of Notes issued under this
Indenture on the date hereof.
“Institutional
Accredited Investor”
means an
institution that is an “accredited investor” as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act, who are not also QIBs.
“Interest
Reserve Account”
has the
meaning set forth in the Interest Reserve and Security Agreement.
“Interest
Reserve Agent”
has the
meaning set forth in the Interest Reserve and Security Agreement.
12
“Interest
Reserve and Security Agreement”
means
the Interest Reserve and Security Agreement, dated as of the date hereof, among
the Company, the Guarantor, the Trustee and the Interest Reserve Agent, as
such
agreement may be amended, modified or supplemented from time to
time.
“Interest
Reserve Property”
has the
meaning set forth in the Interest Reserve and Security Agreement.
“Investments”
means,
with respect to any Person, all direct or indirect investments by such Person
in
other Persons (including Affiliates) in the forms of loans (including Guarantees
or other obligations), advances or capital contributions (excluding commission,
travel and similar advances to officers, directors and employees made in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities, together with all items
that are or would be classified as investments on a balance sheet prepared
in
accordance with GAAP. If the Company or any Restricted Subsidiary of the Company
sells or otherwise disposes of any Equity Interests of any direct or indirect
Restricted Subsidiary of the Company such that, after giving effect to any
such
sale or disposition, such Person is no longer a Restricted Subsidiary of the
Company, the Company will be deemed to have made an Investment on the date
of
any such sale or disposition equal to the Fair Market Value of the Company’s
Investments in such Restricted Subsidiary that were not sold or disposed of
in
an amount determined as provided in the final paragraph of Section 4.07 hereof.
The acquisition by the Company or any Restricted Subsidiary of the Company
of a
Person that holds an Investment in a third Person will be deemed to be an
Investment by the Company or such Restricted Subsidiary in such third Person
in
an amount equal to the Fair Market Value of the Investments held by the acquired
Person in such third Person in an amount determined as provided in the final
paragraph of Section 4.07 hereof. Except as otherwise provided in this
Indenture, the amount of an Investment will be determined at the time the
Investment is made and without giving effect to subsequent changes in
value.
“Legal
Holiday”
means a
Saturday, a Sunday or a day on which banking institutions in the City of New
York or at a place of payment are authorized by law, regulation or executive
order to remain closed. 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 on such payment for the
intervening period.
“Letter
of Transmittal”
means
the letter of transmittal to be prepared by the Company and sent to all Holders
of the Notes for use by such Holders in connection with the Exchange
Offer.
“Lien”
means,
with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law, including any conditional
sale or other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and any filing
of or agreement to give any financing statement under the Uniform Commercial
Code (or equivalent statutes) of any jurisdiction.
“Liquidated
Damages”
means
all liquidated damages then owing pursuant to the Registration Rights
Agreement.
“Moody’s”
means
Xxxxx’x Investors Service, Inc.
“Net
Income”
means,
with respect to any specified Person, the net income (loss) of such Person,
determined in accordance with GAAP and before any reduction in respect of
preferred stock dividends, excluding, however:
13
(1) any
gain
or loss, together with any related provision for taxes on such gain or loss,
realized in connection with:
(a) any
Asset
Sale; or
(b) the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any
of
its Restricted Subsidiaries; and
(2) any
extraordinary gain or loss, together with any related provision for taxes on
such extraordinary gain or loss.
“Net
Proceeds”
means
the aggregate cash proceeds received by the Company or any of its Restricted
Subsidiaries in respect of any Asset Sale (including, without limitation, any
cash received upon the sale or other disposition of any non-cash consideration
received in any Asset Sale), net of the direct costs relating to such Asset
Sale, including, without limitation, legal, accounting and investment banking
fees, and sales commissions, and any relocation or severance expenses incurred
as a result of the Asset Sale, taxes paid or payable as a result of the Asset
Sale, in each case, after taking into account any available tax credits or
deductions and any tax sharing arrangements, and 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 or other transaction and any reserve for
adjustment in respect of the sale price of such asset or assets established
in
accordance with GAAP.
“Non-Recourse
Debt”
means
Indebtedness:
(1) as
to
which neither the Company nor any of its Restricted Subsidiaries (a) provides
credit support of any kind (including any undertaking, agreement or instrument
that would constitute Indebtedness), (b) is directly or indirectly liable as
a
guarantor or otherwise, or (c) constitutes the lender;
(2) no
default with respect to which (including any rights that the holders of the
Indebtedness may have to take enforcement action against an Unrestricted
Subsidiary) would permit upon notice, lapse of time or both any holder of any
other Indebtedness of the Company or any of its Restricted Subsidiaries to
declare a default on such other Indebtedness or cause the payment of the
Indebtedness to be accelerated or payable prior to its Stated Maturity;
and
(3) as
to
which the lenders have been notified in writing that they will not have any
recourse to the stock or assets of the Company or any of its Restricted
Subsidiaries.
“Non-U.S.
Person”
means a
Person who is not a U.S. Person.
“Note
Guarantee”
means
the Guarantee by each Guarantor of the Company’s obligations under this
Indenture and the Notes, executed pursuant to the provisions of this
Indenture.
“Notes”
has the
meaning assigned to it in the preamble to this Indenture. The Initial Notes
and
the Additional Notes shall be treated as a single class for all purposes under
this Indenture, and unless the context otherwise requires, all references to
the
Notes shall include the Initial Notes and any Additional Notes.
“Obligations”
means
any principal, interest, penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable under the documentation governing any
Indebtedness.
14
“Officer”
means,
with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary
or any Vice-President of such Person.
“Officers’
Certificate”
means a
certificate signed on behalf of the Company by two Officers of the Company,
one
of whom must be the principal executive officer, the principal financial
officer, the treasurer or the principal accounting officer of the Company,
that
meets the requirements of Section 12.05 hereof.
“Operating
Documents”
means
the XM License Agreement, XM Programming Agreement, XM Repeater Purchase
Agreement, XM Technical Services Agreement, XM Trademark License Agreement,
XM
Operational Letter Agreement and the GMCL Distribution Agreement, as the same
may by amended or modified from time to time, in each case on terms that are
not
materially adverse to the Holders of Notes.
“Opinion
of Counsel”
means an
opinion from legal counsel who is reasonably acceptable to the Trustee, that
meets the requirements of Section 12.05 hereof. The counsel may be an employee
of or counsel to the Company, any Subsidiary of the Company or the
Trustee.
“Participant”
means,
with respect to the Depositary, Euroclear or Clearstream, a Person who has
an
account with the Depositary, Euroclear or Clearstream, respectively (and, with
respect to DTC, shall include Euroclear and Clearstream).
“Permitted
Business” means
any
business conducted by the Company or any Restricted Subsidiary on the date
of
this Indenture and any businesses that, in the good faith judgment of the Board
of Directors of the Company, are similar, reasonably related, ancillary or
complementary thereto, or reasonable extensions or expansions thereof, including
in connection with the Company existing and future technology, trademarks,
patents or licenses.
“Permitted
Investments”
means:
(1) any
Investment in the Company or in a Restricted Subsidiary of the
Company;
(2) any
Investment in Cash Equivalents;
(3) any
Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment:
(a) such
Person becomes a Restricted Subsidiary of the Company; or
(b) such
Person is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, the Company
or a Restricted Subsidiary of the Company;
(4) 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
4.10;
(5) any
acquisition of assets or Capital Stock solely in exchange for the issuance
of
Equity Interests (other than Disqualified Stock) of the Company;
15
(6) any
Investments received in compromise or resolution of (A) obligations of trade
creditors or customers that were incurred in the ordinary course of business
of
the Company or any of its Restricted Subsidiaries, including pursuant to any
plan of reorganization or similar arrangement upon the bankruptcy or insolvency
of any trade creditor or customer; or (B) litigation, arbitration or other
disputes with Persons who are not Affiliates;
(7) Investments
represented by Hedging Obligations;
(8) loans
or
advances to officers, directors and employees of the Company or any Restricted
Subsidiary of the Company made in the ordinary course of business in an
aggregate principal amount not to exceed US$2.0 million at any one time
outstanding;
(9) repurchases
of the Notes;
(10) Investments
in existence on the date of this Indenture and modifications thereof, including
investments made or to be made pursuant to the Operating Documents; and
(11) other
Investments in any Person having an aggregate Fair Market Value (measured on
the
date each such Investment was made and without giving effect to subsequent
changes in value), when taken together with all other Investments made pursuant
to this clause (11) that are at the time outstanding not to exceed US$10.0
million.
“Permitted
Liens”
means:
(1) Liens
in
favor of the Company or the Guarantors;
(2) Liens
on
property, or on shares of Stock or Indebtedness, of a Person existing at the
time such Person is merged with or into, amalgamated with, or consolidated
with
the Company or any Subsidiary of the Company; provided
that
such Liens were in existence prior to the contemplation of such merger,
amalgamation or consolidation and do not extend to any assets other than those
of the Person merged into, amalgamated with, or consolidated with the Company
or
the Subsidiary;
(3) Liens
on
property (including Capital Stock) existing at the time of acquisition of the
property by the Company or any Subsidiary of the Company; provided
that
such Liens were in existence prior to, and not incurred in contemplation of,
such acquisition;
(4) Liens
to
secure the performance of bids, tenders, leases, statutory obligations, surety
or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;
(5) Liens
to
secure Indebtedness (including Capital Lease Obligations) permitted by Section
4.09(b)(7);
(6) Liens
existing on the date of this Indenture;
(7) 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 concluded; provided
that any
reserve or other appropriate provision as is required in conformity with GAAP
has been made therefor;
16
(8) Liens
imposed by law, such as carriers’, warehousemen’s, landlord’s and mechanics’
Liens, in each case, incurred in the ordinary course of business;
(9) survey
exceptions, easements or reservations of, or rights of others for, licenses,
rights-of-way, sewers, electric lines, telegraph and telephone lines and other
similar purposes, or zoning or other restrictions as to the use of real property
that were not incurred in connection with Indebtedness and that do not in the
aggregate materially adversely affect the value of said properties or materially
impair their use in the operation of the business of such Person;
(10) Liens
created for the benefit of (or to secure) the Notes or the Note
Guarantees;
(11) Liens
to
secure any Permitted Refinancing Indebtedness permitted to be incurred under
this Indenture; provided,
however,
that:
(a) the
new
Lien shall be limited to all or part of the same property and assets that
secured or, under the written agreements pursuant to which the original Lien
arose, could secure the original Lien (plus improvements and accessions to,
such
property or proceeds or distributions thereof); and
(b) the
Indebtedness secured by the new Lien is not increased to any amount greater
than
the sum of (x) the outstanding principal amount, or, if greater, committed
amount, of the Permitted Refinancing Indebtedness and (y) an amount necessary
to
pay any fees and expenses, including premiums, related to such renewal,
refunding, refinancing, replacement, defeasance or discharge;
(12) Liens
to
secure Indebtedness permitted by Section 4.09(b)(4) covering only the assets
acquired with or financed by such Indebtedness
(13) Liens
to
secure Indebtedness (including Hedging Obligations) permitted by Section
4.09(b)(11);
(14) Liens
in
connection with sale and leaseback transactions permitted by Section 4.16
hereof.
(15) Liens
incurred in the ordinary course of business of the Company or any Subsidiary
of
the Company with respect to obligations that do not exceed US$5.0 million at
any
one time outstanding.
“Permitted
Refinancing Indebtedness”
means
any Indebtedness of the Company or any of its Restricted Subsidiaries issued
in
exchange for, or the net proceeds of which are used to extend, renew, refund,
refinance, replace, defease or discharge other Indebtedness of the Company
or
any of its Restricted Subsidiaries (other than intercompany Indebtedness);
provided
that:
(1) the
principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness extended, renewed, refunded,
refinanced, replaced, defeased or discharged (plus all accrued interest on
the
Indebtedness and the amount of all fees and expenses, including premiums,
incurred in connection therewith);
(2) such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to
or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, renewed, refunded, refinanced, replaced, defeased or discharged;
17
(3) if
the
Indebtedness being extended, renewed, refunded, refinanced, replaced, defeased
or discharged is subordinated in right of payment to the Notes, such Permitted
Refinancing Indebtedness is subordinated in right of payment to, the Notes
on
terms at least as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, renewed, refunded,
refinanced, replaced, defeased or discharged; and
(4) such
Indebtedness is incurred either by the Company or by the Restricted Subsidiary
who is the obligor on the Indebtedness being extended, renewed, refunded,
refinanced, replaced, defeased or discharged.
“Person”
means
any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability
company or government or other entity.
“Principals”
means XM
Satellite Radio Holdings, Inc., General Motors of Canada Limited, Xxxx X. Xxxxxx
and CSR Investments Inc.
“Private
Placement Legend”
means
the legend set forth in Section 2.06(g)(1) hereof to be placed on all Notes
issued under this Indenture except where otherwise permitted by the provisions
of this Indenture.
“QIB”
means a
“qualified institutional buyer” as defined in Rule 144A.
“Registration
Rights Agreement”
means
the Registration Rights Agreement, dated as of February __, 2006, among the
Company, the Guarantor party thereto and the other parties named on the
signature pages thereof, as such agreement may be amended, modified or
supplemented from time to time and, with respect to any Additional Notes, one
or
more registration rights agreements among the Company, the Guarantors and the
other parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Company to
the
purchasers of Additional Notes to register such Additional Notes under the
Securities Act.
“Regulation
S”
means
Regulation S promulgated under the Securities Act.
“Regulation
S Global Note”
means a
Global Note substantially in the form of Exhibit A hereto bearing the Global
Note Legend and the Private Placement Legend and deposited with or on behalf
of
and registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Notes sold in
reliance on Rule 903 of Regulation S.
“Refinance”
means,
in respect of any Indebtedness, to refinance, extend, renew, refund, repay,
prepay, redeem, replace, defease or retire, or to issue other Indebtedness
in
exchange or replacement for, such Indebtedness. “Refinanced” and “Refinancing”
shall have correlative meanings.
“Related
Party” means:
(1) any
controlling stockholder, 80% (or more) owned Subsidiary, or immediate family
member (in the case of an individual) of any Principal; or
18
(2) any
trust, corporation, partnership, limited liability company or other entity,
the
beneficiaries, stockholders, partners, members, owners or Persons beneficially
holding an 80% or more controlling interest of which consist of any one or
more
Principals and/or such other Persons referred to in the immediately preceding
clause (1).
“Responsible
Officer,”
when
used with respect to the Trustee, means any officer within the Corporate Trust
Administration of the Trustee (or any successor group of the Trustee) or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is
referred because of his knowledge of and familiarity with the particular
subject.
“Restricted
Definitive Note”
means a
Definitive Note bearing the Private Placement Legend.
“Restricted
Global Note”
means a
Global Note bearing the Private Placement Legend.
“Restricted
Investment”
means an
Investment other than a Permitted Investment.
“Restricted
Subsidiary”
of
a
Person means any Subsidiary of the referent Person that is not an Unrestricted
Subsidiary.
“Rule
144”
means
Rule 144 promulgated under the Securities Act.
“Rule
144A”
means
Rule 144A promulgated under the Securities Act.
“Rule
903”
means
Rule 903 promulgated under the Securities Act.
“Rule
904”
means
Rule 904 promulgated under the Securities Act.
“S&P”
means Standard & Poor’s Ratings Group.
“SEC”
means
the Securities and Exchange Commission.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Shelf
Registration Statement”
means
the Shelf Registration Statement as defined in the Registration Rights
Agreement.
“Significant
Subsidiary”
means
any Subsidiary that would be a “significant subsidiary” as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as
such
Regulation is in effect on the date of this Indenture.
“Stated
Maturity”
means,
with respect to any installment of interest or principal on any series of
Indebtedness, the date on which the payment of interest or principal was
scheduled to be paid in the documentation governing such Indebtedness as of
the
date of this Indenture, and will not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
“Subsidiary”
means,
with respect to any specified Person:
(1) any
corporation, association or other business entity of which more than 50% of
the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency and after giving effect to any voting agreement
or
stockholders’ agreement that effectively transfers voting power) to vote in the
election of directors, managers or trustees of the corporation, association
or
other business entity is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person (or a combination thereof); and
19
(2) any
partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general
partners of which are that Person or one or more Subsidiaries of that Person
(or
any combination thereof).
“TIA”
means
the Trust Indenture Act of 1939, as amended (15 U.S.C.
§§ 77aaa-77bbbb).
“Total
Incremental Equity”
means
100% of the aggregate net cash proceeds received by the Company since the date
of this Indenture as a contribution to its common equity capital or from the
issue or sale of Equity Interests (other than Disqualified Stock) of the Company
or from the issue or sale of convertible or exchangeable Disqualified Stock
or
convertible or exchangeable debt securities or other debt obligations of the
Company or CSR Inc. that have been converted into or exchanged for such Equity
Interests (other than Disqualified Stock) (other than Equity Interests (other
than Disqualified Stock) (or Disqualified Stock or debt securities) sold to
a
Subsidiary of the Company) or the Fair Market Value of the consideration (if
other than cash) from the issue or sale of Equity Interests (other than
Disqualified Stock) of the Company.
“Trustee”
means
The Bank of Nova Scotia Trust Company of New York until a successor replaces
it
in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
“Unrestricted
Definitive Note”
means a
Definitive Note that does not bear and is not required to bear the Private
Placement Legend.
“Unrestricted
Global Note”
means a
Global Note that does not bear and is not required to bear the Private Placement
Legend.
“Unrestricted
Subsidiary”
means
any Subsidiary of the Company that is designated by the Board of Directors
of
the Company as an Unrestricted Subsidiary pursuant to a resolution of the Board
of Directors, but only to the extent that such Subsidiary:
(1) has
no
Indebtedness other than Non-Recourse Debt;
(2) except
as
permitted by Section 4.11 hereof, is not party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary
of
the Company unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Restricted Subsidiary
than those that might be obtained at the time from Persons who are not
Affiliates of the Company;
(3) is
a
Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for
additional Equity Interests or (b) to maintain or preserve such Person’s
financial condition or to cause such Person to achieve any specified levels
of
operating results; and
(4) has
not
guaranteed or otherwise directly or indirectly provided credit support for
any
Indebtedness of the Company or any of its Restricted Subsidiaries.
20
“U.S.
Person”
means a
U.S. Person as defined in Rule 902(k) promulgated under the Securities
Act.
“Voting
Stock”
of any
specified Person as of any date means the Capital Stock of such Person that
is
at the time entitled to vote in the election of the Board of Directors of such
Person.
“Weighted
Average Life to Maturity”
means,
when applied to any Indebtedness at any date, the number of years obtained
by
dividing:
(1) the
sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect of the Indebtedness,
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
(2) the
then
outstanding principal amount of such Indebtedness.
Section
1.02 Other
Definitions.
|
|
Term
|
Defined
in
Section
|
“Additional
Amounts”
|
4.20
|
“Affiliate
Transaction”
|
4.11
|
“Asset
Sale Offer”
|
3.09
|
“Authentication
Order”
|
2.02
|
“Authorized
Agent”
|
12.14
|
“Change
in Law”
|
3.10
|
“Change
of Control Offer”
|
4.15
|
“Change
of Control Payment”
|
4.15
|
“Change
of Control Payment Date”
|
4.15
|
“Covenant
Defeasance”
|
8.03
|
“Documentary
Taxes”
|
4.20
|
“DTC”
|
2.03
|
“Event
of Default”
|
6.01
|
“Excess
Proceeds”
|
4.10
|
“Excluded
Taxes”
|
4.20
|
“incur”
|
4.09
|
“Legal
Defeasance”
|
8.02
|
“Offer
Amount”
|
3.09
|
“Offer
Period”
|
3.09
|
“owner”
|
4.20
|
“Paying
Agent”
|
2.03
|
“Permitted
Debt”
|
4.09
|
“Payment
Default”
|
6.01
|
“Purchase
Date”
|
3.09
|
“Related
Proceedings”
|
12.14
|
“Related
Judgment”
|
12.14
|
“Relevant
Taxing Jurisdiction”
|
4.20
|
“Registrar”
|
2.03
|
“Restricted
Payments”
|
4.07
|
“Specified
Courts”
|
12.14
|
“Taxes”
|
4.20
|
21
Section
1.03 Incorporation
by Reference of Trust Indenture Act.
Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.
The
following TIA terms used in this Indenture have the following
meanings:
“indenture
securities”
means
the Notes;
“indenture
security Holder”
means a
Holder of a Note;
“indenture
to be qualified”
means
this Indenture;
“indenture
trustee”
or
“institutional
trustee”
means
the Trustee; and
“obligor”
on the
Notes and the Note Guarantees means the Company and the Guarantors,
respectively, and any successor obligor upon the Notes and the Note Guarantees,
respectively.
All
other
terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule under the TIA have the
meanings so assigned to them.
Section
1.04 Rules
of Construction.
Unless
the context otherwise requires:
(1) a
term
has the meaning assigned to it;
(2) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(3) “or”
is
not exclusive;
(4) words
in
the singular include the plural, and in the plural include the
singular;
(5) “will”
shall be interpreted to express a command;
(6) provisions
apply to successive events and transactions; and
(7) references
to sections of or rules under the Securities Act will be deemed to include
substitute, replacement of successor sections or rules adopted by the SEC from
time to time.
22
ARTICLE
2
THE
NOTES
Section
2.01 Form
and Dating.
(a) General.
The
Notes and the Trustee’s certificate of authentication will be substantially in
the form of Exhibit A hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Note will
be
dated the date of its authentication. The Notes shall be in minimum
denominations of US$2,000 and integral multiples of US$1,000.
The
terms
and provisions contained in the Notes will constitute, and are hereby expressly
made, a part of this Indenture and the Company, the Guarantors and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such
terms
and provisions and to be bound thereby. However, to the extent any provision
of
any Note conflicts with the express provisions of this Indenture, the provisions
of this Indenture shall govern and be controlling.
(b) Global
Notes.
Notes
issued in global form will be substantially in the form of Exhibit A hereto
(including the Global Note Legend thereon and the “Schedule of Exchanges of
Interests in the Global Note” attached thereto). Notes issued in definitive form
will be substantially in the form of Exhibit A hereto (but without the Global
Note Legend thereon and without the “Schedule of Exchanges of Interests in the
Global Note” attached thereto). Each Global Note will represent such of the
outstanding Notes as will be specified therein and each shall provide that
it
represents the aggregate principal amount of outstanding Notes from time to
time
endorsed thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby will be made by the
Trustee or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06
hereof.
Section
2.02 Execution
and Authentication.
At
least
one Officer must sign the Notes for the Company by manual or facsimile
signature.
If
an
Officer whose signature is on a Note no longer holds that office at the time
a
Note is authenticated, the Note will nevertheless be valid.
A
Note
will not be valid until authenticated by the manual signature of the Trustee.
The signature will be conclusive evidence that the Note has been authenticated
under this Indenture.
The
Trustee will, upon receipt of a written order of the Company signed by at least
one Officer (an “Authentication
Order”),
authenticate Notes for original issue that may be validly issued under this
Indenture, including any Additional Notes. The aggregate principal amount of
Notes outstanding at any time may not exceed the aggregate principal amount
of
Notes authorized for issuance by the Company pursuant to one or more
Authentication Orders, except as provided in Section 2.07 hereof.
The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes. An authenticating agent may authenticate Notes whenever
the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has
the
same rights as an Agent to deal with Holders or an Affiliate of the
Company.
23
Section
2.03 Registrar
and Paying Agent.
The
Company will maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”)
and an
office or agency where Notes may be presented for payment (“Paying
Agent”).
The
Registrar will keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term “Registrar” includes any co-registrar and the term
“Paying Agent” includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company will notify
the Trustee in writing of the name and address of any Agent not a party to
this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any
of
its Subsidiaries may act as Paying Agent or Registrar.
The
Company initially appoints The Depository Trust Company (“DTC”)
to act
as Depositary with respect to the Global Notes.
The
Company initially appoints the Trustee to act as the Registrar and Paying Agent
and to act as Custodian with respect to the Global Notes.
Section
2.04 Paying
Agent to Hold Money in Trust.
The
Company will require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent will hold in trust for the benefit of Holders
or
the Trustee all money held by the Paying Agent for the payment of principal,
premium or Liquidated Damages, if any, or interest on the Notes, and will notify
the Trustee of any default by the Company in making any such payment. While
any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent
to
pay all money held by it to the Trustee. Upon payment over to the Trustee,
the
Paying Agent (if other than the Company or a Subsidiary) will have no further
liability for the money. If the Company or a Subsidiary acts as Paying Agent,
it
will segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Company, the Trustee will serve as Paying Agent
for
the Notes.
Section
2.05 Holder
Lists.
The
Trustee will preserve in as current a form as is reasonably practicable the
most
recent list available to it of the names and addresses of all Holders and shall
otherwise comply with TIA § 312(a). If the Trustee is not the Registrar,
the Company will furnish to the Trustee at least seven Business Days before
each
interest payment date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of the Holders of Notes and the Company
shall
otherwise comply with TIA § 312(a).
Section
2.06 Transfer
and Exchange.
(a) Transfer
and Exchange of Global Notes.
A
Global Note may not be transferred except as a whole by the Depositary to a
nominee of the Depositary, by a nominee of the Depositary to the Depositary
or
to another nominee of the Depositary, or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary. All Global
Notes will be exchanged by the Company for Definitive Notes if:
(1) the
Company delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of
such notice from the Depositary;
24
(2) the
Company in its sole discretion determines that the Global Notes (in whole but
not in part) should be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee; or
(3) there
has
occurred and is continuing a Default or Event of Default with respect to the
Notes.
Upon
the
occurrence of either of the preceding events in (1) or (2) above, Definitive
Notes shall be issued in such names as the Depositary shall instruct the
Trustee. Global Notes also may be exchanged or replaced, in whole or in part,
as
provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as provided in
this
Section 2.06(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b), (c) or (f)
hereof.
(b) Transfer
and Exchange of Beneficial Interests in the Global Notes.
The
transfer and exchange of beneficial interests in the Global Notes will be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes will be subject to restrictions on transfer comparable to those
set
forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also will require compliance with
either subparagraph (1) or (2) below, as applicable, as well as one or more
of
the other following subparagraphs, as applicable:
(1) Transfer
of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in the same
Restricted Global Note in accordance with the transfer restrictions set forth
in
the Private Placement Legend. Beneficial interests in any Unrestricted Global
Note may be transferred to Persons who take delivery thereof in the form of
a
beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect the
transfers described in this Section 2.06(b)(1).
(2) All
Other Transfers and Exchanges of Beneficial Interests in Global
Notes.
In
connection with all transfers and exchanges of beneficial interests that are
not
subject to Section 2.06(b)(1) above, the transferor of such beneficial interest
must deliver to the Registrar either:
(A) both:
(i) a
written
order from a Participant or an Indirect Participant given to the Depositary
in
accordance with the Applicable Procedures directing the Depositary to credit
or
cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged;
and
(ii) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase; or
25
(B) both:
(i) a
written
order from a Participant or an Indirect Participant given to the Depositary
in
accordance with the Applicable Procedures directing the Depositary to cause
to
be issued a Definitive Note in an amount equal to the beneficial interest to
be
transferred or exchanged; and
(ii) instructions
given by the Depositary to the Registrar containing information regarding the
Person in whose name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (1) above;
Upon
consummation of an Exchange Offer by the Company in accordance with Section
2.06(f) hereof, the requirements of this Section 2.06(b)(2) shall be deemed
to
have been satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes
contained in this Indenture and the Notes or otherwise applicable under the
Securities Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.06(h) hereof.
(3) Transfer
of Beneficial Interests to Another Restricted Global Note.
A
beneficial interest in any Restricted Global Note may be transferred to a Person
who takes delivery thereof in the form of a beneficial interest in another
Restricted Global Note if the transfer complies with the requirements of Section
2.06(b)(2) above and the Registrar receives the following:
(A) if
the
transferee will take delivery in the form of a beneficial interest in the 144A
Global Note, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1) thereof;
(B) if
the
transferee will take delivery in the form of a beneficial interest in the
Regulation S Global Note, then the transferor must deliver a certificate in
the
form of Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if
the
transferee will take delivery in the form of a beneficial interest in the IAI
Global Note, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(4) Transfer
and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial
Interests in an Unrestricted Global Note.
A
beneficial interest in any Restricted Global Note may be exchanged by any holder
thereof for a beneficial interest in an Unrestricted Global Note or transferred
to a Person who takes delivery thereof in the form of a beneficial interest
in
an Unrestricted Global Note if the exchange or transfer complies with the
requirements of Section 2.06(b)(2) above and:
(A) such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the holder of the beneficial interest
to be transferred, in the case of an exchange, or the transferee, in the case
of
a transfer, certifies in the applicable Letter of Transmittal that it is not
(i)
a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the
Company;
26
(B) such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C) such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
or
(D) the
Registrar receives the following:
(i) if
the
holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a beneficial interest in an Unrestricted
Global Note, a certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (1)(a) thereof; or
(ii) if
the
holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in
the form of a beneficial interest in an Unrestricted Global Note, a certificate
from such holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and,
in
each such case set forth in this subparagraph (D), if the Registrar so requests
or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions
on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
If
any
such transfer is effected pursuant to subparagraph (B) or (D) above at a time
when an Unrestricted Global Note has not yet been issued, the Company shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global
Notes in an aggregate principal amount equal to the aggregate principal amount
of beneficial interests transferred pursuant to subparagraph (B) or (D)
above.
Beneficial
interests in an Unrestricted Global Note cannot be exchanged for, or transferred
to Persons who take delivery thereof in the form of, a beneficial interest
in a
Restricted Global Note.
(c) Transfer
or Exchange of Beneficial Interests for Definitive Notes.
(1) Beneficial
Interests in Restricted Global Notes to Restricted Definitive
Notes.
If any
holder of a beneficial interest in a Restricted Global Note proposes to exchange
such beneficial interest for a Restricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Restricted Definitive Note, then, upon receipt by the Registrar of the following
documentation:
(A) if
the
holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if
such
beneficial interest is being transferred to a QIB in accordance with Rule 144A,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
27
(C) if
such
beneficial interest is being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if
such
beneficial interest is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144,
a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if
such
beneficial interest is being transferred to an Institutional Accredited Investor
in reliance on an exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)
thereof, if applicable;
(F) if
such
beneficial interest is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if
such
beneficial interest is being transferred pursuant to an effective registration
statement under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the
Trustee shall cause the aggregate principal amount of the applicable Global
Note
to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company
shall execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate principal
amount. Any Definitive Note issued in exchange for a beneficial interest in
a
Restricted Global Note pursuant to this Section 2.06(c) shall be registered
in
such name or names and in such authorized denomination or denominations as
the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect Participant.
The Trustee shall deliver such Definitive Notes to the Persons in whose names
such Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this Section
2.06(c)(1) shall bear the Private Placement Legend and shall be subject to
all
restrictions on transfer contained therein.
(2) Beneficial
Interests in Restricted Global Notes to Unrestricted Definitive
Notes.
A holder
of a beneficial interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Definitive Note or may transfer such
beneficial interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note only if:
(A) such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the holder of such beneficial
interest, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not
(i) a
Broker-Dealer, (ii) a Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
28
(C) such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
or
(D) the
Registrar receives the following:
(i) if
the
holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(ii) if
the
holder of such beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in
the form of an Unrestricted Definitive Note, a certificate from such holder
in
the form of Exhibit B hereto, including the certifications in item (4)
thereof;
and,
in
each such case set forth in this subparagraph (D), if the Registrar so requests
or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions
on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
(3) Beneficial
Interests in Unrestricted Global Notes to Unrestricted Definitive
Notes.
If any
holder of a beneficial interest in an Unrestricted Global Note proposes to
exchange such beneficial interest for a Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Definitive Note, then, upon satisfaction of the conditions set forth in Section
2.06(b)(2) hereof, the Trustee will cause the aggregate principal amount of
the
applicable Global Note to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Company will execute and the Trustee will authenticate and
deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(3) will be registered
in
such name or names and in such authorized denomination or denominations as
the
holder of such beneficial interest requests through instructions to the
Registrar from or through the Depositary and the Participant or Indirect
Participant. The Trustee will deliver such Definitive Notes to the Persons
in
whose names such Notes are so registered. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.06(c)(3) will not bear
the
Private Placement Legend.
(d) Transfer
and Exchange of Definitive Notes for Beneficial Interests.
(1) Restricted
Definitive Notes to Beneficial Interests in Restricted Global
Notes.
If any
Holder of a Restricted Definitive Note proposes to exchange such Note for a
beneficial interest in a Restricted Global Note or to transfer such Restricted
Definitive Notes to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if
the
Holder of such Restricted Definitive Note proposes to exchange such Note for
a
beneficial interest in a Restricted Global Note, a certificate from such Holder
in the form of Exhibit C hereto, including the certifications in item (2)(b)
thereof;
29
(B) if
such
Restricted Definitive Note is being transferred to a QIB in accordance with
Rule
144A, a certificate to the effect set forth in Exhibit B hereto, including
the
certifications in item (1) thereof;
(C) if
such
Restricted Definitive Note is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904, a certificate
to
the effect set forth in Exhibit B hereto, including the certifications in item
(2) thereof;
(D) if
such
Restricted Definitive Note is being transferred pursuant to an exemption from
the registration requirements of the Securities Act in accordance with Rule
144,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if
such
Restricted Definitive Note is being transferred to an Institutional Accredited
Investor in reliance on an exemption from the registration requirements of
the
Securities Act other than those listed in subparagraphs (B) through (D) above,
a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3)
thereof, if applicable;
(F) if
such
Restricted Definitive Note is being transferred to the Company or any of its
Subsidiaries, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
(G) if
such
Restricted Definitive Note is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate to the effect
set
forth in Exhibit B hereto, including the certifications in item (3)(c)
thereof,
the
Trustee will cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the Regulation S Global
Note,
and in all other cases, the IAI Global Note.
(2) Restricted
Definitive Notes to Beneficial Interests in Unrestricted Global
Notes.
A Holder
of a Restricted Definitive Note may exchange such Note for a beneficial interest
in an Unrestricted Global Note or transfer such Restricted Definitive Note
to a
Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if:
(A) such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange Notes or (iii) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C) such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
or
30
(D) the
Registrar receives the following:
(i) if
the
Holder of such Definitive Notes proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a certificate from such Holder in
the
form of Exhibit C hereto, including the certifications in item (1)(c) thereof;
or
(ii) if
the
Holder of such Definitive Notes proposes to transfer such Notes to a Person
who
shall take delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in the form of Exhibit
B hereto, including the certifications in item (4) thereof;
and,
in
each such case set forth in this subparagraph (D), if the Registrar so requests
or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions
on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
Upon
satisfaction of the conditions of any of the subparagraphs in this Section
2.06(d)(2), the Trustee will cancel the Definitive Notes and increase or cause
to be increased the aggregate principal amount of the Unrestricted Global
Note.
(3) Unrestricted
Definitive Notes to Beneficial Interests in Unrestricted Global
Notes.
A Holder
of an Unrestricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Definitive Notes to
a
Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for such an
exchange or transfer, the Trustee will cancel the applicable Unrestricted
Definitive Note and increase or cause to be increased the aggregate principal
amount of one of the Unrestricted Global Notes.
If
any
such exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to subparagraphs (2)(B), (2)(D) or (3) above at a time when
an
Unrestricted Global Note has not yet been issued, the Company will issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee will authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of Definitive Notes
so
transferred.
(e) Transfer
and Exchange of Definitive Notes for Definitive Notes.
Upon
request by a Holder of Definitive Notes and such Holder’s compliance with the
provisions of this Section 2.06(e), the Registrar will register the transfer
or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder must present or surrender to the Registrar
the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder
or
by its attorney, duly authorized in writing. In addition, the requesting Holder
must provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(1) Restricted
Definitive Notes to Restricted Definitive Notes.
Any
Restricted Definitive Note may be transferred to and registered in the name
of
Persons who take delivery thereof in the form of a Restricted Definitive Note
if
the Registrar receives the following:
31
(A) if
the
transfer will be made pursuant to Rule 144A, then the transferor must deliver
a
certificate in the form of Exhibit B hereto, including the certifications in
item (1) thereof;
(B) if
the
transfer will be made pursuant to Rule 903 or Rule 904, then the transferor
must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if
the
transfer will be made pursuant to any other exemption from the registration
requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable.
(2) Restricted
Definitive Notes to Unrestricted Definitive Notes.
Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange Notes or (iii) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) any
such
transfer is effected pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C) any
such
transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement;
or
(D) the
Registrar receives the following:
(i) if
the
Holder of such Restricted Definitive Notes proposes to exchange such Notes
for
an Unrestricted Definitive Note, a certificate from such Holder in the form
of
Exhibit C hereto, including the certifications in item (1)(d) thereof;
or
(ii) if
the
Holder of such Restricted Definitive Notes proposes to transfer such Notes
to a
Person who shall take delivery thereof in the form of an Unrestricted Definitive
Note, a certificate from such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and,
in
each such case set forth in this subparagraph (D), if the Registrar so requests,
an Opinion of Counsel in form reasonably acceptable to the Registrar to the
effect that such exchange or transfer is in compliance with the Securities
Act
and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with
the
Securities Act.
(3) Unrestricted
Definitive Notes to Unrestricted Definitive Notes.
A Holder
of Unrestricted Definitive Notes may transfer such Notes to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt
of
a request to register such a transfer, the Registrar shall register the
Unrestricted Definitive Notes pursuant to the instructions from the Holder
thereof.
32
(f) Exchange
Offer.
Upon the
occurrence of the Exchange Offer in accordance with the Registration Rights
Agreement, the Company will issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee will
authenticate:
(1) one
or
more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes
accepted for exchange in the Exchange Offer by Persons that certify in the
applicable Letters of Transmittal that (A) they are not Broker-Dealers, (B)
they
are not participating in a distribution of the Exchange Notes and (C) they
are
not affiliates (as defined in Rule 144) of the Company; and
(2) Unrestricted
Definitive Notes in an aggregate principal amount equal to the principal amount
of the Restricted Definitive Notes accepted for exchange in the Exchange Offer
by Persons that certify in the applicable Letters of Transmittal that (A) they
are not Broker-Dealers, (B) they are not participating in a distribution of
the
Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of
the
Company.
Concurrently
with the issuance of such Notes, the Trustee will cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly,
and
the Company will execute and the Trustee will authenticate and deliver to the
Persons designated by the Holders of Definitive Notes so accepted Unrestricted
Definitive Notes in the appropriate principal amount. Unrestricted Global Notes
and Unrestricted Definitive Notes evidence the same continuing indebtedness
as
evidenced by the Restricted Global Notes and the Restricted Definitive Notes,
and the consummation of the Exchange Offer is not a discharge, rescission,
extinguishment, repayment, novation or substitution of such
indebtedness.
(g) Legends.
The
following legends will appear on the face of all Global Notes and Definitive
Notes issued under this Indenture unless specifically stated otherwise in the
applicable provisions of this Indenture.
(1) Private
Placement Legend.
(A) Except
as
permitted by subparagraph (B) below, each Global Note and each Definitive Note
(and all Notes issued in exchange therefor or substitution thereof) shall bear
the legend in substantially the following form:
“THE
SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (1) (a) IN THE UNITED STATES TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE
144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (b) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 904 UNDER THE SECURITIES ACT, (c) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL
“ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”) THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT
OF
NOTES LESS THAN US$250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY
THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT OR (e) IN ACCORDANCE
WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND
BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY
OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.”
33
(B) Notwithstanding
the foregoing, any Global Note or Definitive Note issued pursuant to
subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f)
of
this Section 2.06 (and all Notes issued in exchange therefor or substitution
thereof) will not bear the Private Placement Legend.
(2) Global
Note Legend.
Each
Global Note will bear a legend in substantially the following form:
“THIS
GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING
THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS GLOBAL
NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11
OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM,
THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) (“DTC”), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
34
(h) Cancellation
and/or Adjustment of Global Notes.
At such
time as all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been redeemed, repurchased
or canceled in whole and not in part, each such Global Note will be returned
to
or retained and canceled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who will take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note will be
reduced accordingly and an endorsement will be made on such Global Note by
the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note will be increased accordingly
and
an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such
increase.
(i) General
Provisions Relating to Transfers and Exchanges.
(1) To
permit
registrations of transfers and exchanges, the Company will execute and the
Trustee will authenticate Global Notes and Definitive Notes upon receipt of
an
Authentication Order in accordance with Section 2.02 hereof or at the
Registrar’s request.
(2) No
service charge will be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover
any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer taxes or similar governmental charge payable
upon
exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.15 and
9.05
hereof).
(3) The
Registrar will not be required to register the transfer of or exchange of any
Note selected for redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part.
(4) All
Global Notes and Definitive Notes issued upon any registration of transfer
or
exchange of Global Notes or Definitive Notes will be the valid obligations
of
the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(5) Neither
the Registrar nor the Company will be required:
(A) to
issue,
to register the transfer of or to exchange any Notes during a period beginning
at the opening of business 15 days before the day of any selection of Notes
for
redemption under Section 3.02 hereof and ending at the close of business on
the
day of selection;
(B) to
register the transfer of or to exchange any Note selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed
in
part; or
(C) to
register the transfer of or to exchange a Note between a record date and the
next succeeding interest payment date.
35
(6) Prior
to
due presentment for the registration of a transfer of any Note, the Trustee,
any
Agent and the Company may deem and treat the Person in whose name any Note
is
registered as the absolute owner of such Note for the purpose of receiving
payment of principal of and interest on such Notes and for all other purposes,
and none of the Trustee, any Agent or the Company shall be affected by notice
to
the contrary.
(7) The
Trustee will authenticate Global Notes and Definitive Notes in accordance with
the provisions of Section 2.02 hereof.
(8) All
certifications, certificates and Opinions of Counsel required to be submitted
to
the Registrar pursuant to this Section 2.06 to effect a registration of transfer
or exchange may be submitted by facsimile.
Section
2.07 Replacement
Notes.
If
any
mutilated Note is surrendered to the Trustee or the Company and the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of
any
Note, the Company will issue and the Trustee, upon receipt of an Authentication
Order, will authenticate a replacement Note if the Trustee’s requirements are
met. If required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee and
the
Company to protect the Company, the Trustee, any Agent and any authenticating
agent from any loss that any of them may suffer if a Note is replaced. The
Company may charge for its expenses in replacing a Note.
Every
replacement Note is an additional obligation of the Company and will be entitled
to all of the benefits of this Indenture equally and proportionately with all
other Notes duly issued hereunder.
Section
2.08 Outstanding
Notes.
The
Notes
outstanding at any time are all the Notes authenticated by the Trustee except
for those canceled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this Section
2.08
as not outstanding. Except as set forth in Section 2.09 hereof, a Note does
not
cease to be outstanding because the Company or an Affiliate of the Company
holds
the Note; however, Notes held by the Company or a Subsidiary of the Company
shall not be deemed to be outstanding for purposes of Section 3.07(a)
hereof.
If
a Note
is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held
by
a protected purchaser.
If
the
principal amount of any Note is considered paid under Section 4.01 hereof,
it
ceases to be outstanding and interest on it ceases to accrue.
If
the
Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a redemption date or maturity date, money sufficient to
pay
Notes payable on that date, then on and after that date such Notes will be
deemed to be no longer outstanding and will cease to accrue
interest.
Section
2.09 Treasury
Notes.
In
determining whether the Holders of the required principal amount of Notes have
concurred in any direction, waiver or consent, Notes owned by the Company or
any
Guarantor, or by any Person directly or indirectly controlling or controlled
by
or under direct or indirect common control with the Company or any Guarantor
will be disregarded and considered as though not outstanding, except that for
the purposes of determining whether the Trustee will be protected in relying
on
any such direction, waiver or consent, only Notes that the Trustee actually
knows are so owned will be so disregarded.
36
Section
2.10 Temporary
Notes.
Until
certificates representing Notes are ready for delivery, the Company may prepare
and the Trustee, upon receipt of an Authentication Order, will authenticate
temporary Notes. Temporary Notes will be substantially in the form of
certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company will prepare and the Trustee
will authenticate definitive Notes in exchange for temporary Notes.
Holders
of temporary Notes will be entitled to all of the benefits of this
Indenture.
Section
2.11 Cancellation.
The
Company at any time may deliver Notes to the Trustee for cancellation. The
Registrar and Paying Agent will forward to the Trustee any Notes surrendered
to
them for registration of transfer, exchange or payment. The Trustee and no
one
else will cancel all Notes surrendered for registration of transfer, exchange,
payment, replacement or cancellation and will destroy canceled Notes (subject
to
the record retention requirement of the Exchange Act). Certification of the
destruction of all canceled Notes will be delivered to the Company. The Company
may not issue new Notes to replace Notes that it has paid or that have been
delivered to the Trustee for cancellation.
Section
2.12 Defaulted
Interest.
If
the
Company defaults in a payment of interest on the Notes, it will pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company will notify the Trustee in writing
of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company will fix or cause to be fixed each such
special record date and payment date; provided
that no
such special record date may be less than 10 days prior to the related payment
date for such defaulted interest. At least 15 days before the special record
date, the Company (or, upon the written request of the Company, the Trustee
in
the name and at the expense of the Company) will mail or cause to be mailed
to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.
ARTICLE
3
REDEMPTION
AND PREPAYMENT
Section
3.01 Notices
to Trustee.
If
the
Company elects to redeem Notes pursuant to the optional redemption provisions
of
Section 3.07 hereof, it must furnish to the Trustee, at least 10 days but not
more than 60 days before a redemption date, an Officers’ Certificate setting
forth:
(1) the
clause of this Indenture pursuant to which the redemption shall
occur;
(2) the
redemption date;
37
(3) the
principal amount of Notes to be redeemed; and
(4) the
redemption price.
Section
3.02 Selection
of Notes to Be Redeemed or Purchased.
If
less
than all of the Notes are to be redeemed or purchased in an offer to purchase
at
any time, the Trustee will select Notes for redemption or purchase on a
pro
rata
basis
unless otherwise required by law or applicable stock exchange
requirements.
In
the
event of partial redemption or purchase by lot, the particular Notes to be
redeemed or purchased will be selected, unless otherwise provided herein, not
less than 30 nor more than 60 days prior to the redemption or purchase date
by
the Trustee from the outstanding Notes not previously called for redemption
or
purchase.
The
Trustee will promptly notify the Company in writing of the Notes selected for
redemption or purchase and, in the case of any Note selected for partial
redemption or purchase, the principal amount thereof to be redeemed or
purchased. Notes and portions of Notes selected will be in amounts of $1,000
or
whole multiples of $1,000; except that if all of the Notes of a Holder are
to be
redeemed or purchased, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except
as provided in the preceding sentence, provisions of this Indenture that apply
to Notes called for redemption or purchase also apply to portions of Notes
called for redemption or purchase.
Section
3.03 Notice
of Redemption.
Subject
to the provisions of Section 3.07 and 3.09 hereof, at least 10 days but not
more
than 60 days before a redemption date, the Company will mail or cause to be
mailed, by first class mail, a notice of redemption to each Holder whose Notes
are to be redeemed at its registered address, except that redemption notices
may
be mailed more than 60 days prior to a redemption date if the notice is issued
in connection with a defeasance of the Notes or a satisfaction and discharge
of
this Indenture pursuant to Articles 8 or 11 hereof.
The
notice will identify the Notes to be redeemed and will state:
(1) the
redemption date;
(2) the
redemption price;
(3) if
any
Note is being redeemed in part, the portion of the principal amount of such
Note
to be redeemed and that, after the redemption date upon surrender of such Note,
a new Note or Notes in principal amount equal to the unredeemed portion will
be
issued upon cancellation of the original Note;
(4) the
name
and address of the Paying Agent;
(5) that
Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;
(6) that,
unless the Company defaults in making such redemption payment, interest on
Notes
called for redemption ceases to accrue on and after the redemption
date;
38
(7) the
paragraph of the Notes and/or Section of this Indenture pursuant to which the
Notes called for redemption are being redeemed; and
(8) that
no
representation is made as to the correctness or accuracy of the CUSIP number,
if
any, listed in such notice or printed on the Notes.
At
the
Company’s request, the Trustee will give the notice of redemption in the
Company’s name and at its expense; provided,
however,
that
the Company has delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers’ Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
Section
3.04 Effect
of Notice of Redemption.
Once
notice of redemption is mailed in accordance with Section 3.03 hereof, Notes
called for redemption become irrevocably due and payable on the redemption
date
at the redemption price. A notice of redemption may not be
conditional.
Section
3.05 Deposit
of Redemption or Purchase Price.
One
Business Day prior to the redemption or purchase date, the Company will deposit
with the Trustee or with the Paying Agent money sufficient to pay the redemption
or purchase price of and accrued interest and Liquidated Damages, if any, on
all
Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent
will promptly return to the Company any money deposited with the Trustee or
the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption or purchase price of, and accrued interest and Liquidated Damages,
if
any, on, all Notes to be redeemed or purchased.
If
the
Company complies with the provisions of the preceding paragraph, on and after
the redemption or purchase date, interest will cease to accrue on the Notes
or
the portions of Notes called for redemption or purchase. If a Note is redeemed
or purchased on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to
the
Person in whose name such Note was registered at the close of business on such
record date. If any Note called for redemption or purchase is not so paid upon
surrender for redemption or purchase because of the failure of the Company
to
comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption or purchase date until such principal is paid,
and to the extent lawful on any interest not paid on such unpaid principal,
in
each case at the rate provided in the Notes and in Section 4.01
hereof.
Section
3.06 Notes
Redeemed or Purchased in Part.
Upon
surrender of a Note that is redeemed or purchased in part, the Company will
issue and, upon receipt of an Authentication Order, the Trustee will
authenticate for the Holder at the expense of the Company a new Note equal
in
principal amount to the unredeemed or unpurchased portion of the Note
surrendered.
Section
3.07 Optional
Redemption.
(a) At
any
time prior to February 15, 2009, the Company may on any one or more occasions
redeem up to 25% of the aggregate principal amount of Notes issued under this
Indenture at a redemption price of 112.750% of the principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages, if any, to the
redemption date, with the net cash proceeds from the sale or issuance of Equity
Interests (other than Disqualified Stock); provided
that:
39
(1) at
least
75% of the aggregate principal amount of Notes originally issued under this
Indenture (excluding Notes held by the Company and its Subsidiaries) remains
outstanding immediately after the occurrence of such redemption; and
(2) the
redemption occurs within 90 days of the date of the closing of such sale or
issuance of Equity Interests (other than Disqualified Stock).
(b) Except
pursuant to the preceding paragraph and as described in Section 3.10 hereof,
the
Notes will not be redeemable at the Company’s option prior to February 15,
2010.
(c) On
or
after February 15, 2010, the Company may redeem all or a part of the Notes
upon
not less than 30 nor more than 60 days’ notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued
and
unpaid interest and Liquidated Damages, if any, on the Notes redeemed to the
applicable redemption date, if redeemed during the twelve-month period beginning
on February 15 of the years indicated below, subject to the rights of Holders
on
the relevant record date to receive interest on the relevant interest payment
date:
Year
|
Percentage
|
|||
2010
|
106.375
|
%
|
||
2011
|
103.188
|
%
|
||
2012
and thereafter
|
100.000
|
%
|
Unless
the Company defaults in the payment of the redemption price, interest will
cease
to accrue on the Notes or portions thereof called for redemption on the
applicable redemption date.
(d) Any
redemption pursuant to this Section 3.07 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
Section
33.08 Mandatory
Redemption.
The
Company is not required to make mandatory redemption or sinking fund payments
with respect to the Notes.
Section
3.09 Offer
to Purchase by Application of Excess Proceeds.
In
the
event that, pursuant to Section 4.10 hereof, the Company is required to commence
an offer to all Holders to purchase Notes (an “Asset
Sale Offer”),
it
will follow the procedures specified below.
The
Asset
Sale Offer shall be made to all Holders and all holders of other Indebtedness
that is pari
passu
with the
Notes containing provisions similar to those set forth in this Indenture with
respect to offers to purchase or redeem with the proceeds of sales of assets.
The Asset Sale Offer will remain open for a period of at least 20 Business
Days
following its commencement and not more than 30 Business Days, except to the
extent that a longer period is required by applicable law (the “Offer
Period”).
No
later than three Business Days after the termination of the Offer Period (the
“Purchase
Date”),
the
Company will apply all Excess Proceeds (the “Offer
Amount”)
to the
purchase of Notes and such other pari
passu
Indebtedness (on a pro
rata
basis,
if applicable) or, if less than the Offer Amount has been tendered, all Notes
and other Indebtedness tendered in response to the Asset Sale Offer. Payment
for
any Notes so purchased will be made in the same manner as interest payments
are
made.
40
If
the
Purchase Date is on or after an interest record date and on or before the
related interest payment date, any accrued and unpaid interest and Liquidated
Damages, if any, will be paid to the Person in whose name a Note is registered
at the close of business on such record date, and no additional interest will
be
payable to Holders who tender Notes pursuant to the Asset Sale
Offer.
Upon
the
commencement of an Asset Sale Offer, the Company will send, by first class
mail,
a notice to the Trustee and each of the Holders, with a copy to the Trustee.
The
notice will contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which
will
govern the terms of the Asset Sale Offer, will state:
(1) that
the
Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10
hereof and the length of time the Asset Sale Offer will remain
open;
(2) the
Offer
Amount, the purchase price and the Purchase Date;
(3) that
any
Note not tendered or accepted for payment will continue to accrue
interest;
(4) that,
unless the Company defaults in making such payment, any Note accepted for
payment pursuant to the Asset Sale Offer will cease to accrue interest after
the
Purchase Date;
(5) that
Holders electing to have a Note purchased pursuant to an Asset Sale Offer may
elect to have Notes purchased in integral multiples of $1,000 only;
(6) that
Holders electing to have Notes purchased pursuant to any Asset Sale Offer will
be required to surrender the Note, with the form entitled “Option of Holder to
Elect Purchase” attached to the Notes completed, or transfer by book-entry
transfer, to the Company, a Depositary, if appointed by the Company, or a Paying
Agent at the address specified in the notice at least three days before the
Purchase Date;
(7) that
Holders will be entitled to withdraw their election if the Company, the
Depositary or the Paying Agent, as the case may be, receives, not later than
the
expiration of the Offer Period, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the Note
the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;
(8) that,
if
the aggregate principal amount of Notes and other pari
passu
Indebtedness surrendered by holders thereof exceeds the Offer Amount, the
Company will select the Notes and other pari
passu
Indebtedness to be purchased on a pro
rata
basis
based on the principal amount of Notes and such other pari
passu
Indebtedness surrendered (with such adjustments as may be deemed appropriate
by
the Company so that only Notes in denominations of $1,000, or integral multiples
thereof, will be purchased); and
(9) that
Holders whose Notes were purchased only in part will be issued new Notes equal
in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer).
On
or
before the Purchase Date, the Company will, to the extent lawful, accept for
payment, on a pro
rata
basis to
the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, and will deliver or cause to be delivered to
the
Trustee the Notes properly 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 3.09. The Company, the
Depositary or the Paying Agent, as the case may be, will promptly (but in any
case not later than five days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered
by
such Holder and accepted by the Company for purchase, and the Company will
promptly issue a new Note, and the Trustee, upon written request from the
Company, will authenticate and mail or deliver (or cause to be transferred
by
book entry) such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall
be
promptly mailed or delivered by the Company to the Holder thereof. The Company
will publicly announce the results of the Asset Sale Offer on the Purchase
Date.
41
Other
than as specifically provided in this Section 3.09, any purchase pursuant to
this Section 3.09 shall be made pursuant to the provisions of Sections 3.01
through 3.06 hereof.
Section
3.10 Redemption
for Changes in Withholding Taxes.
The
Company may redeem all, but not less than all, of the Notes at any time, upon
not less than 30 nor more than 60 days’ notice, at 100% of the aggregate
principal amount of the Notes, together with accrued and unpaid interest and
Liquidated Damages, if any, on the Notes redeemed to the redemption date, if
the
Company has become or would become obligated to pay, on the next date on which
any amount would be payable with respect to the Notes, any Additional Amounts
as
a result of a change in the laws or treaties (including any regulations
promulgated thereunder) of a Relevant Taxing Jurisdiction, or any change in
any
official position of any governmental agency, taxing authority or regulatory
authority regarding the application or interpretation of such laws or
regulations, which change is announced or becomes effective on or after the
date
of this offering memorandum (a “Change
in Law”).
ARTICLE
4
COVENANTS
Section
4.01 Payment
of Notes.
The
Company will pay or cause to be paid the principal of, premium, if any, and
interest and Liquidated Damages, if any, on, the Notes on the dates and in
the
manner provided in the Notes. Principal, premium, if any, and interest and
Liquidated Damages, if any will be considered paid on the date due if the Paying
Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00
a.m.
Eastern Time on the due date money deposited by the Company in immediately
available funds and designated for and sufficient to pay all principal, premium,
if any, and interest then due. The Company will pay all Liquidated Damages,
if
any, in the same manner on the dates and in the amounts set forth in the
Registration Rights Agreement.
The
Company will pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal at the rate equal to 1% per
annum
in excess of the then applicable interest rate on the Notes to the extent
lawful; it will pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest and Liquidated
Damages (without regard to any applicable grace period) at the same rate to
the
extent lawful.
Section
4.02 Maintenance
of Office or Agency.
The
Company will maintain in the Borough of Manhattan, the City of New York, an
office or agency (which may be an office of the Trustee or an affiliate of
the
Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served.
The
Company will give prompt written notice to the Trustee of the location, and
any
change in the location, of such office or agency. If at any time the Company
fails to maintain any such required office or agency or fails to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the
Trustee.
42
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; provided,
however,
that no
such designation or rescission will in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, the
City
of New York for such purposes. The Company will give prompt written notice
to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
The
Company hereby designates the Corporate Trust Office of the Trustee as one
such
office or agency of the Company in accordance with Section 2.03 hereof.
Section
4.03 Reports.
(a) Whether
or not required by the rules and regulations of the SEC, so long as any Notes
are outstanding, the Company will furnish to the Trustee and the Holders of
Notes or cause the Trustee to furnish to the Holders of Notes, within the time
periods specified in the SEC’s rules and regulations:
(1) (a)
all
annual financial and other information that would be required to be contained
in
a filing with the SEC on Forms 20-F or 40-F, as applicable (or any successor
forms), containing the information required therein (or required in such
successor form); and
(b) for
the
first three quarters of each year, all quarterly financial and other information
that would be required to be contained in a filing with the SEC on Form 6-K
(or
any successor form) containing, at a minimum, the information that would be
required to be provided in quarterly reports under the laws of Ontario to
securityholders of a company with securities listed on the Toronto Stock
Exchange, whether or not the Company has any of its securities so listed, in
each case 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’ certified
independent accountants; and
(2) all
current reports that would otherwise be required to be filed with the SEC on
Form 6-K if the Company were required to file such reports.
In
addition, following the consummation of the Exchange Offer contemplated by
the
Registration Rights Agreement, the Company will file a copy of each of the
reports referred to in clauses (1) and (2) above with the SEC for public
availability within the time periods specified in the rules and regulations
applicable to such reports (unless the SEC will not accept such a filing) and
will post the reports on its website within those time periods. The Company
will
at all times comply with TIA § 314(a).
If,
at
any time after consummation of the Exchange Offer contemplated by the
Registration Rights Agreement, the Company is no longer subject to the periodic
reporting requirements of the Exchange Act for any reason, the Company will
nevertheless continue filing a copy of each of the reports referred to in
clauses (1) and (2) above with the SEC for public availability within the time
periods specified in the rules and regulations applicable to such reports
(unless the SEC will not accept such a filing) . The Company will not take
any
action for the purpose of causing the SEC not to accept any such filings. If,
notwithstanding the foregoing, the SEC will not accept the Company’s filings for
any reason, the Company will post the reports referred to in clauses (1) and
(2)
above on its website within the time periods that would apply if the Company
were required to file those reports with the SEC. The Company will at all times
comply with TIA § 314(a).
43
(b) If
the
Company has designated any of its Subsidiaries as Unrestricted Subsidiaries,
then the quarterly and annual financial information required by paragraph (a)
of
this Section 4.03 will include a reasonably detailed presentation, either on
the
face of the financial statements or in the footnotes thereto, and in
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.
(c) For
so
long as any Notes remain outstanding, if at any time it is not required to
file
with the SEC the reports required by paragraphs (a) and (b) of this Section
4.03, the Company will furnish to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(d) If
at any
time the Notes are Guaranteed by a parent company of the Company, the
obligations of the Company set forth in this Section 4.03 will be deemed
satisfied if such parent company complies instead with the terms of this Section
4.03 by providing all reports and information (including, without limitation,
financial information on a consolidated basis) that would otherwise be required
to be provided by the Company.
(e) Delivery
of reports, information and documents as required by this Section 4.03 to the
Trustee is for informational purposes only and the Trustee’s receipt of such
shall not constitute constructive notice of any information contained therein
or
determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates).
Section
4.04 Compliance
Certificate.
(a) The
Company and each Guarantor (to the extent that such Guarantor is so required
under the TIA) shall deliver to the Trustee, within 90 days after the end of
each fiscal year, an Officers’ Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal
year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled
its
obligations under this Indenture and the Interest Reserve and Security
Agreement, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and the Interest Reserve and Security Agreement and is not in default
in the performance or observance of any of the terms, provisions and conditions
of this Indenture and the Interest Reserve and Security Agreement (or, if a
Default or Event of Default has occurred, describing all such Defaults or Events
of Default of which he or she may have knowledge and what action the Company
is
taking or proposes to take with respect thereto) and that to the best of his
or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect
thereto.
44
(b) So
long
as not contrary to the then current recommendations of the American Institute
of
Certified Public Accountants, the year-end financial statements delivered
pursuant to Section 4.03 above shall be accompanied by a written statement
of
the Company’s independent public accountants (who shall be a firm of established
national reputation) that in making the examination necessary for certification
of such financial statements, nothing has come to their attention that would
lead them to believe that the Company has violated any provisions of Article
4
or Article 5 hereof 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.
(c) So
long
as any of the Notes are outstanding, the Company will promptly deliver to the
Trustee, forthwith upon any Officer becoming aware of any Default or Event
of
Default, an Officers’ Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto.
Section
4.05 Taxes.
The
Company will pay, and will cause each of its Subsidiaries to pay, prior to
delinquency, all material taxes, assessments, and governmental levies except
such as are contested in good faith and by appropriate proceedings or where
the
failure to effect such payment is not adverse in any material respect to the
Holders of the Notes.
Section
4.06 Stay,
Extension and Usury Laws.
The
Company and each of the Guarantors covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company
and
each of the Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
it
will not, by resort to any such law, 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 has been enacted.
Section
4.07 Restricted
Payments.
(a) The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly:
(1) declare
or pay any dividend or make any other payment or distribution on account of
the
Company’s or any of its Restricted Subsidiaries’ Equity Interests (including,
without limitation, any payment in connection with any merger, amalgamation
or
consolidation involving the Company or any of its Restricted Subsidiaries)
or to
the direct or indirect holders of the Company’s or any of its Restricted
Subsidiaries’ Equity Interests in their capacity as such (other than dividends
or distributions payable in Equity Interests (other than Disqualified Stock)
of
the Company and other than dividends or distributions payable to the Company
or
a Restricted Subsidiary of the Company);
(2) purchase,
redeem or otherwise acquire or retire for value (excluding, for the avoidance
of
doubt, any exchange of Class B Voting Shares of the Company for Class A Voting
Shares of the Company, but including without limitation, in connection with
any
merger, amalgamation or consolidation involving the Company) any Equity
Interests of the Company or any direct or indirect parent of the Company (other
than any such Equity Interests owned by the Company or any Restricted Subsidiary
of the Company);
45
(3) make
any
payment on or with respect to, or purchase, redeem, defease or otherwise acquire
or retire for value any Indebtedness of the Company or any Guarantor that is
contractually subordinated to the Notes or to any Note Guarantee (excluding
any
intercompnay Indebtedness between or among the Company and any of its Restricted
Subsidiaries), except a payment of interest or principal at the Stated Maturity
thereof; or
(4) make
any
Restricted Investment
all
such
payments and other actions set forth in these clauses (1) through (4) above
being collectively
referred to as “Restricted
Payments”),
unless,
at the time of and after giving effect to such Restricted Payment:
(1) no
Default or Event of Default has occurred and is continuing or would occur as
a
consequence of such Restricted Payment;
(2) the
Company would, at the
time of such Restricted Payment and after giving pro forma effect thereto as
if
such Restricted Payment had been made at the beginning of the applicable
two-quarter period, have been permitted to incur at least US$1.00 of additional
Indebtedness pursuant to the Consolidated Leverage Ratio test set forth in
Section 4.09(a) hereof; and
(3) such
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries since the date
of
this Indenture (excluding Restricted Payments permitted by clauses (2), (3),
(4), (5), (6) and (7) of paragraph (b) of this Section 4.07), is less than
the
sum, without duplication of:
(A) the
difference between (i) Consolidated Cash Flow of the Company for the period
(taken as one accounting period) from the beginning of the first fiscal quarter
commencing after the date of this Indenture to the end of the Company’s most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment and (ii) 200% of the
Consolidated Interest Expense of the Company for the period (taken as one
accounting period) from the beginning of the first fiscal quarter commencing
after the date of this Indenture to the end of the Company’s most recently ended
fiscal quarter for which internal financial statements are available at the
time
of such Restricted Payment; plus
(B) Total
Incremental Equity; plus
(C) to
the
extent that any Restricted Investment that was made after the date of this
Indenture is sold for cash or otherwise liquidated or repaid for cash, the
cash
return of capital with respect to such Restricted Investment (less the cost
of
disposition, if any); plus
(D) 50%
of
any dividends received by the Company or a Restricted Subsidiary of the Company
after the date of this Indenture from an Unrestricted Subsidiary of the Company,
to the extent that such dividends were not otherwise included in the
Consolidated Net Income of the Company for such period; plus
(E) to
the
extent that any Unrestricted Subsidiary of the Company designated as such after
the date of this Indenture is redesignated as a Restricted Subsidiary after
the
date of this Indenture, the Fair Market Value of the Company’ Investment in such
Subsidiary as of the date of such redesignation; minus
46
(F) 100%
of
the aggregate principal amount of Indebtedness then outstanding, which was
incurred pursuant to Section 4.09(b)(2) hereof.
(b) So
long
as no Default has occurred and is continuing or would be caused thereby, the
provisions of Section 4.07(a) hereof will not prohibit:
(1) the
payment of any dividend or distribution or the consummation of any irrevocable
redemption within 60 days after the date of declaration of the dividend,
distribution or giving of the redemption notice, as the case may be, if at
the
date of declaration or notice, the dividend, distribution or redemption payment
would have complied with the provisions of this Indenture;
(2) the
making of any Restricted Payment in exchange for, or out of the net cash
proceeds of the substantially concurrent sale (other than to a Subsidiary of
the
Company) of Equity Interests of the Company (other than Disqualified Stock)
or
from the substantially concurrent contribution of common equity capital to
the
Company; provided
that the
amount of any such net cash proceeds that are utilized for any such Restricted
Payment will be excluded from clause (3)(B) of Section 4.07(a) hereof;
(3) the
repurchase, repayment, prepayment, redemption, defeasance or other acquisition
or retirement for value of Indebtedness of the Company or any Guarantor that
is
contractually subordinated to the Notes or to any Note Guarantee with the net
cash proceeds from a substantially concurrent incurrence of Permitted
Refinancing Indebtedness;
(4) the
payment of any dividend (or, in the case of any partnership or limited liability
company, any similar distribution) by a Restricted Subsidiary of the Company
to
the holders of its Equity Interests on a pro
rata
basis;
(5) the
repurchase, redemption or other acquisition or retirement for value of any
Equity Interests of the Company or any Restricted Subsidiary of the Company
held
by any current or former officer, director or employee of the Company or any
of
its Restricted Subsidiaries pursuant to any equity subscription agreement,
stock
option agreement, shareholders’ agreement or similar agreement; provided
that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests may not exceed US$1,000,000 in any twelve-month
period;
(6) the
repurchase of Equity Interests deemed to occur upon the exercise of stock
options to the extent such Equity Interests represent a portion of the exercise
price of those stock options;
(7) payments
made to purchase, redeem, defease or otherwise acquire or retire for value
any
Indebtedness of the Company or a Guarantor that is contractually subordinated
to
the Notes or to any Guarantee, in each case, pursuant to provisions requiring
such Person to offer to purchase, redeem, defease or otherwise acquire or retire
for value such subordinated Indebtedness upon the occurrence of a “change of
control” or with the proceeds of “asset sales” as defined in the agreements or
instruments governing such subordinated Indebtedness; provided
however,
that a Change of Control Offer or Asset Sale Offer, as applicable, has been
made
and the Company has purchased all Notes validly tendered in connection with
that
Change of Control Offer or Asset Sale Offer;
47
(8) the
declaration and payment of regularly scheduled or accrued dividends to holders
of any class or series of Disqualified Stock of the Company or any Restricted
Subsidiary of the Company issued on or after the date of this Indenture in
accordance with the Consolidated Leverage Ratio test described in Section 4.09
hereof;
(9) payments
or distributions to dissenting stockholders pursuant to applicable law pursuant
to or in connection with a consolidation, merger or transfer of assets that
complies with the provisions of this Indenture applicable to mergers,
consolidations and transfers of all or substantially all of our property or
assets; and
(10) other
Restricted Payments in an aggregate amount not to exceed US$5.0 million since
the date of this Indenture.
The
amount of all Restricted Payments (other than cash) will 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. The Fair
Market Value of any assets or securities that are required to be valued by
this
Section 4.07 will be determined in good faith (a) in the case of assets or
securities valued at US$5.0 million or less, by a senior financial officer
of
the Company set forth in a certificate to the Trustee from such officer, and
(b)
in the case of assets or securities valued at more than US $10.0 million, by
the
Company’s Board of Directors and set forth in an Officers’ Certificate delivered
to the Trustee. The Board of Directors’ determination must be based upon an
opinion or appraisal issued by an accounting, appraisal or investment banking
firm of national standing if the Fair Market Value exceeds US$20.0 million.
Section
4.08 Dividend
and Other Payment Restrictions Affecting Subsidiaries.
(a) The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to:
(1) pay
dividends or make any other distributions on its Capital Stock to the Company
or
any of its Restricted Subsidiaries or, with respect to any other interest or
participation in, or measured by, its profits, or pay any indebtedness owed
to
the Company or any of its Restricted Subsidiaries;
(2) make
loans or advances to the Company or any of its Restricted Subsidiaries;
or
(3) sell,
lease or transfer any of its properties or assets to the Company or any of
its
Restricted Subsidiaries.
(b) However,
the restrictions in Section 4.08(a) hereof will not apply to encumbrances or
restrictions existing under or by reason of:
(1) agreements
governing Existing Indebtedness as in effect on the date of this Indenture
and
any amendments, restatements, modifications, renewals, supplements, refundings,
replacements or refinancings of those agreements; provided
that the
amendments, restatements, modifications, renewals, supplements, refundings,
replacements or refinancings are not materially more restrictive, taken as
a
whole, with respect to such dividend and other payment restrictions than those
contained in those agreements on the date of this Indenture;
48
(2) this
Indenture, the Notes and the Note Guarantees;
(3) applicable
law, rule, regulation or order;
(4) any
agreement or instrument governing Indebtedness or Capital Stock of a Person
acquired by, or merged, consolidated or otherwise combined with or into, the
Company or any of its Restricted Subsidiaries as in effect at the time of such
acquisition, merger, consolidation or other combination (except to the extent
such Indebtedness or Capital Stock was incurred in connection with or in
contemplation of such acquisition), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other
than
the Person, or the property or assets of the Person, so acquired; provided
that, in
the case of Indebtedness, such Indebtedness was permitted by the terms of this
Indenture to be incurred;
(5) customary
non-assignment provisions in leases, contracts and licenses or related documents
entered into in the ordinary course of business;
(6) purchase
money obligations for property acquired in the ordinary course of business
and
Capital Lease Obligations that impose restrictions on the property purchased
or
leased of the nature described in clause (3) of Section 4.08(a)
hereof;
(7) any
agreement for the sale or other disposition of a Restricted Subsidiary that
restricts distributions by that Restricted Subsidiary pending the sale or other
disposition;
(8) Permitted
Refinancing Indebtedness; provided
that the
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are not materially more restrictive, taken as a whole, than those
contained in the agreements governing the Indebtedness being
refinanced;
(9) Liens
permitted to be incurred under the provisions of Section 4.12 hereof that limit
the right of the debtor to dispose of the assets subject to such
Liens;
(10) provisions
limiting the disposition or distribution of assets or property in joint venture
agreements, asset sale agreements, sale-leaseback agreements, stock sale
agreements and other similar agreements entered into with the approval of the
Company’s Board of Directors, which limitation is applicable only to the assets
that are the subject of such agreements; and
(11) restrictions
on cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business.
Section 4.09 Incurrence
of Indebtedness and Issuance of Preferred Stock.
(a) The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect
to
(collectively, “incur”)
any
Indebtedness (including Acquired Debt), and the Company will not issue any
Disqualified Stock and will not permit any of its Restricted Subsidiaries to
issue any shares of preferred stock; provided,
however,
that
the Company may incur Indebtedness (including Acquired Debt) or issue
Disqualified Stock, and any Guarantor may incur Indebtedness (including Acquired
Debt) or issue shares of preferred stock, if the Company’s Consolidated Leverage
Ratio at the time of incurrence of such Indebtedness or the issuance of such
Disqualified Stock or preferred stock, after giving pro forma effect to such
incurrence or issuance as of such date and to the use of proceeds therefrom
as
if the same had occurred at the beginning of the most recently ended two full
fiscal quarters of the Company for which internal financial statements are
available, would have been no greater than 5.5 to 1.
49
(b) The
provisions of Section 4.09(a) hereof will not prohibit the incurrence of any
of
the following items of Indebtedness (collectively, “Permitted
Debt”):
(1) the
incurrence by the Company or any Guarantor of additional Indebtedness, including
under the Credit Agreement, in an aggregate principal amount at any one time
outstanding under this clause (1) not to exceed US$50.0 million;
(2) the
incurrence by the Company and any Guarantor of Indebtedness in an aggregate
principal amount at any one time outstanding under this clause (2) of up to
200%
of Total Incremental Equity; provided
that the
total amount of Indebtedness outstanding at any one time under this clause
(2)
may not exceed US$50.0 million; provided
further
that
the amount of any such net cash proceeds that are utilized for purposes of
incurring Indebtedness under this clause (2) will be excluded from clause (3)(B)
of Section 4.07(a).
(3) the
incurrence by the Company and any Guarantor of Indebtedness that is
contractually subordinated in right of payment to the Notes;
(4) the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness,
incurred for the purpose of financing all or any part of the purchase price
or
cost of inventory used in the business of the Company or any of its Restricted
Subsidiaries, in an aggregate principal amount, including all Permitted
Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease
or discharge any Indebtedness incurred pursuant to this clause (4), not to
exceed US$5.0 million at any time outstanding;
(5) the
incurrence by the Company and its Restricted Subsidiaries of the Existing
Indebtedness;
(6) the
incurrence by the Company and the Guarantors of Indebtedness represented by
the
Notes and the related Note Guarantees to be issued on the date of this Indenture
and continued to be represented by the exchange Notes and the related Note
Guarantees to be issued pursuant to the Registration Rights
Agreement;
(7) the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money
obligations, in each case, incurred for the purpose of financing all or any
part
of the purchase price or cost of design, construction, installation or
improvement of property, plant or equipment used in the business of the Company
or any of its Restricted Subsidiaries, in an aggregate principal amount,
including all Permitted Refinancing Indebtedness incurred to renew, refund,
refinance, replace, defease or discharge any Indebtedness incurred pursuant
to
this clause (7), not to exceed US$5.0 million at any time
outstanding;
(8) the
incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are
used
to renew, refund, refinance, replace, defease or discharge any Indebtedness
(other than intercompany Indebtedness) that was permitted by this Indenture
to
be incurred under the first paragraph of this covenant or clauses (4), (5),
(6),
(7) or (15) of this paragraph;
50
(9) the
incurrence by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness between or among the Company and any of its Restricted
Subsidiaries; provided,
however,
that:
(a) if
the
Company or any Guarantor is the obligor on such Indebtedness and the payee
is
not the Company or a Guarantor, such Indebtedness must be expressly subordinated
to the prior payment in full in cash of all Obligations then due with respect
to
the Notes, in the case of the Company, or the Note Guarantee, in the case of
a
Guarantor; and
(b) (i)
any
subsequent issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary of the Company and (ii) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Restricted
Subsidiary of the Company, will be deemed, in each case, to constitute an
incurrence of such Indebtedness by the Company or such Restricted Subsidiary,
as
the case may be, that was not permitted by this clause (9);
(10) the
issuance by any of the Company’s Restricted Subsidiaries to the Company or to
any of its Restricted Subsidiaries of shares of preferred stock; provided,
however,
that:
(a) any
subsequent issuance or transfer of Equity Interests that results in any such
preferred stock being held by a Person other than the Company or a Restricted
Subsidiary of the Company; and
(b) any
sale
or other transfer of any such preferred stock to a Person that is not either
the
Company or a Restricted Subsidiary of the Company,
will
be
deemed, in each case, to constitute an issuance of such preferred stock by
such
Restricted Subsidiary that was not permitted by this clause (10);
(11) the
incurrence by the Company or any of its Restricted Subsidiaries of Hedging
Obligations in the ordinary course of business;
(12) the
Guarantee by the Company or any of the Guarantors of Indebtedness of the Company
or a Restricted Subsidiary of the Company that was permitted to be incurred
by
another provision of this covenant; provided
that if
the Indebtedness being guaranteed is subordinated to or pari
passu
with the
Notes, then the Guarantee shall be subordinated or pari
passu,
as
applicable, to the same extent as the Indebtedness guaranteed;
(13) the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
in respect of workers’ compensation claims, self-insurance obligations, bankers’
acceptances, performance or surety bonds or other reimbursement obligations
in
the ordinary course of business;
(14) the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently drawn against insufficient funds,
so
long as such Indebtedness is covered within five Business Days; and
51
(15) the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
to the extent the net proceeds thereof are promptly deposited to defease all
outstanding Notes as described in Article 8 hereof.
The
Company will not incur, and will not permit any Guarantor to incur, any
Indebtedness (including Permitted Debt) that is contractually subordinated
in
right of payment to any other Indebtedness of the Company or such Guarantor
unless such Indebtedness is also contractually subordinated in right of payment
to the Notes and the applicable Note Guarantee on substantially identical terms;
provided,
however,
that no
Indebtedness will be deemed to be contractually subordinated in right of payment
to any other Indebtedness solely by virtue of being unsecured or by virtue
of
being secured on a first or junior Lien basis.
For
purposes of determining compliance with this Section 4.09, in the event that
an
item of proposed Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (1) through (15) above or
is
entitled to be incurred pursuant to Section 4.09(a) hereof, the Company will
be
permitted to classify such item of Indebtedness on the date of its incurrence,
or later reclassify all or a portion of such item of Indebtedness, in any manner
that complies with this Section 4.09, including by allocation to more than
one
other type of Indebtedness. Other Indebtedness ranking equal in right of payment
with the Notes outstanding on the date on which Notes are first issued and
authenticated under this Indenture will initially be deemed to have been
incurred on such date in reliance on the exception provided by clause (1) of
the
definition of Permitted Debt. The outstanding principal amount of any particular
Indebtedness shall be counted only once and any obligations arising under any
Guarantee, Lien, letter of credit or similar instrument supporting such
Indebtedness shall not be double counted. Notwithstanding any other provision
of
this Section 4.09(b), the maximum amount of Indebtedness that the Company or
any
Restricted Subsidiary may incur pursuant to this Section 4.09(b) shall not
be
deemed to be exceeded solely as a result of fluctuations in exchange rates
or
currency values.
The
amount of any Indebtedness outstanding as of any date will be:
(1) the
accreted value of the Indebtedness, in the case of any Indebtedness issued
with
original issue discount;
(2) the
principal amount of the Indebtedness, in the case of any other Indebtedness;
and
(3) in
respect of Indebtedness of another Person secured by a Lien on the assets of
the
specified Person, the lesser of:
(A) the
Fair
Market Value of such assets at the date of determination; and
(B) the
amount of the Indebtedness of the other Person.
Section 4.10 Asset
Sales.
The
Company will not, and will not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless:
(1) the
Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the Fair Market
Value of the assets or Equity Interests issued or sold or otherwise disposed
of;
and
52
(2) at
least
75% of the consideration received in the Asset Sale by the Company or such
Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes
of this provision, each of the following will be deemed to be cash:
(A) any
liabilities, as shown on the Company’s most recent consolidated balance sheet,
of the Company or any Restricted Subsidiary (other than contingent liabilities
and liabilities that are by their terms subordinated to the Notes or any Note
Guarantee) that are assumed by the transferee of any such assets pursuant to
a
customary novation agreement that releases the Company or such Restricted
Subsidiary from further liability;
(B) any
securities, Notes or other obligations received by the Company or any such
Restricted Subsidiary from such transferee that are within 60 days converted
by
the Company or such Restricted Subsidiary into cash or Cash Equivalents, to
the
extent of the cash or Cash Equivalents received in that conversion;
and
(C) any
stock
or assets of the kind referred to in clauses (2) or (4) of the next paragraph
of
this Section 4.10.
Within
360 days after the receipt of any Net Proceeds from an Asset Sale, the Company
(or the applicable Restricted Subsidiary, as the case may be):
(x) may
apply
such Net Proceeds at its option:
(3) to
acquire all or substantially all of the assets of, or any Capital Stock of,
another Permitted Business, if, after giving effect to any such acquisition
of
Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary
of
the Company;
(4) to
make a
capital expenditure; or
(5) to
acquire other assets that are not classified as current assets under GAAP and
that are used or useful in a Permitted Business.
(y) to
repay
secured Indebtedness; or
(z) enter
into a legally binding agreement to apply such Net Proceeds as described in
the
preceding clause (x) within six months after such agreement is entered into
and
apply such Net Proceeds in accordance with the terms of such agreement or the
provisions of clause (x) above; provided that if such agreement terminates
the
Company shall have until the earlier of (i) 90 days after the date of such
termination and (ii) six months after the date of the Asset Sale resulting
in
such Net Proceeds to effect such an application.
Pending
the final application of any Net Proceeds, the Company or any Restricted
Subsidiary may temporarily reduce revolving credit borrowings or otherwise
invest the Net Proceeds in any manner that is not prohibited by this Indenture.
Any
Net
Proceeds from Asset Sales that are not applied or invested as provided in the
second paragraph of this Section 4.10 will constitute “Excess
Proceeds.”
When
the aggregate amount of Excess Proceeds exceeds US$10.0 million, within five
days thereof, the Company will make an Asset Sale Offer to all Holders of Notes
and all holders of other Indebtedness that is pari
passu
with the
Notes containing provisions similar to those set forth in this Indenture with
respect to offers to purchase or redeem with the proceeds of sales of assets
in
accordance with Section 3.09 hereof to purchase the maximum principal amount
of
Notes and such other pari
passu Indebtedness
that may be purchased out of the Excess Proceeds. The offer price in any Asset
Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid
interest and Liquidated Damages, if any, to the date of purchase, and will
be
payable in cash. If any Excess Proceeds remain after consummation of an Asset
Sale Offer, the Company or any Restricted Subsidiary may use those Excess
Proceeds for any purpose not otherwise prohibited by this Indenture. If the
aggregate principal amount of Notes and other pari
passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Trustee will select the Notes and such other pari
passu
Indebtedness to be purchased on a pro
rata
basis.
Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will
be
reset at zero.
53
The
Company will comply with the requirements of Rule 14e-1 under the Exchange
Act
and any other securities laws and regulations thereunder to the extent such
laws
and regulations are applicable in connection with each repurchase of Notes
pursuant to an Asset Sale Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of Section 3.09
hereof or this Section 4.10, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under Section 3.09 hereof or this Section 4.10 by virtue of such
compliance.
Section 4.11 Transactions
with Affiliates.
(a) The
Company will not, and will not permit any of its Restricted Subsidiaries to,
make any payment to, or sell, lease, transfer or otherwise dispose of any of
its
properties or assets to, or purchase any property or assets from, or enter
into
or make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate of the Company
(each an “Affiliate
Transaction”),
unless:
(1) the
Affiliate Transaction is on terms that are no less favorable to the Company
or
the relevant Restricted Subsidiary than those that would have been obtained
in a
comparable transaction by the Company or such Restricted Subsidiary with an
unrelated Person; and
(2) the
Company delivers to the Trustee:
(A) with
respect to any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of US$5.0 million, a resolution
of
the Board of Directors of the Company set forth in an Officers’ Certificate
certifying that such Affiliate Transaction complies with clause (1) of this
Section 4.11(a) and, if an opinion meeting the requirements set forth in clause
(b) below has not been obtained, that such Affiliate Transaction has been
approved by a majority of the members of the Board of Directors of the Company
who have no direct financial interest in such Affiliate Transaction (other
than
as a stockholder of the Company and the Guarantor);
(B) with
respect to (x) any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of US$20.0 million,
(y)
an Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of US$5.0 million where none of the members
of
the Board of Directors qualify as having no direct financial interest in such
Affiliate Transaction (other than as a stockholder of the Company), an opinion
as to the fairness to the Company or such Subsidiary of such Affiliate
Transaction from a financial point of view issued by an accounting, appraisal
or
investment banking firm of national standing in the United States or
Canada.
54
(b) The
following items will not be deemed to be Affiliate Transactions and, therefore,
will not be subject to the provisions of Section 4.11(a) hereof:
(1) Any
transaction by the Company or any Restricted Subsidiary with an Affiliate
related to the purchase, sale or distribution of products in the ordinary course
of business, which as been approved by a majority of the members of the Board
of
Directors who are disinterested with respect to such transaction;
(2) any
employment agreement, employee benefit plan, officer or director indemnification
agreement or any similar arrangement entered into by the Company or any of
its
Restricted Subsidiaries in the ordinary course of business and payments pursuant
thereto;
(3) transactions
between or among the Company and/or its Restricted Subsidiaries;
(4) transactions
with a Person (other than an Unrestricted Subsidiary of the Company) that is
an
Affiliate of the Company solely because the Company owns, directly or through
a
Restricted Subsidiary, an Equity Interest in, or controls, such
Person;
(5) payment
of reasonable compensation or fees to directors or officers of the Company
and
its Subsidiaries;
(6) any
sale
or issuance of Equity Interests (other than Disqualified Stock) of the Company
to Affiliates of the Company;
(7) Restricted
Payments that do not violate Section 4.07 hereof; and
(8) transactions
or agreements in existence on the date of this Indenture, including pursuant
to
the Operating Documents (and extensions or amendments thereof on terms which
are
not materially less favorable to the Company than the terms of any such
transaction or agreement as in existence on the date of this
Indenture).
In
addition, arms length transactions with XM Satellite Radio Holdings, Inc. and
General Motors of Canada Limited, and any of their respective affiliates,
undertaken in the ordinary course of business will not be subject to provisions
of Section 4.11(a)(2)(B) set forth above.
Section 4.12 Liens.
The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly create, incur, assume or suffer to exist any Lien of
any
kind securing Indebtedness on any asset now owned or hereafter acquired, except
Permitted Liens.
Section 4.13 Business
Activities.
The
Company will not, and will not permit any of its Restricted Subsidiaries to,
engage in any business other than Permitted Businesses, except to such extent
as
would not be material to the Company and its Restricted Subsidiaries taken
as a
whole.
Section 4.14 Corporate
Existence.
Subject
to Article 5 hereof, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect:
55
(1) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Company or any such
Subsidiary; and
(2) the
rights (charter and statutory), licenses and franchises of the Company and
its
Subsidiaries; provided,
however,
that the
Company shall not be required to preserve any such right, license or franchise,
or the corporate, partnership or other existence of any of its Subsidiaries,
if
the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in
any
material respect to the Holders of the Notes.
Section 4.15 Offer
to Repurchase Upon Change of Control.
(a) Upon
the
occurrence of a Change of Control, the Company will make an offer (a
“Change
of Control Offer”)
to each
Holder to repurchase all or any part (equal to a minimum of US$1,000 or an
integral multiple of US$1,000) of that Holder’s Notes at a purchase price in
cash equal to 101% of the aggregate principal amount of Notes repurchased plus
accrued and unpaid interest and Liquidated Damages, if any, on the Notes
repurchased to the date of purchase, subject to the rights of Holders on the
relevant record date to receive interest due on the relevant interest payment
date the (“Change
of Control Payment”).
Within
30 days following any Change of Control, the Company will mail a notice to
each
Holder describing the transaction or transactions that constitute the Change
of
Control and stating:
(1) that
the
Change of Control Offer is being made pursuant to this Section 4.15 and that
all
Notes tendered will be accepted for payment;
(2) the
purchase price and the purchase date, which shall be no earlier than 10 days
and
no 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;
(4) that,
unless the Company defaults in the payment of the Change of Control Payment,
all
Notes accepted for payment pursuant to the Change of Control Offer will cease
to
accrue interest after the Change of Control Payment Date;
(5) that
Holders electing to have any Notes purchased pursuant to a Change of Control
Offer will be required to surrender the Notes, with the form entitled “Option of
Holder to Elect Purchase” attached to the Notes completed, or transfer by
book-entry transfer, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day preceding the Change
of
Control Payment Date;
(6) that
Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the second Business Day
preceding the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing his election to have the Notes purchased; and
(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,
which unpurchased portion must be equal to $1,000 in principal amount or an
integral multiple thereof.
56
The
Company will comply with the requirements of Rule 14e-1 under the Exchange
Act
and any other securities laws and regulations thereunder to the extent those
laws and regulations are applicable in connection with the repurchase of the
Notes as a result of a Change in Control. To the extent that the provisions
of
any securities laws or regulations conflict with the provisions of Sections
3.09
or 4.15 hereof, the Company will comply with the applicable securities laws
and
regulations and will not be deemed to have breached its obligations under
Section 3.09 hereof or this Section 4.15 by virtue of such
compliance.
(b) On
the
Change of Control Payment Date, the Company will, to the extent
lawful:
(1) accept
for payment all Notes or portions of Notes properly tendered pursuant to the
Change of Control Offer;
(2) deposit
with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions of Notes properly tendered; and
(3) deliver
or cause to be delivered to the Trustee the Notes properly accepted together
with an Officers’ Certificate stating the aggregate principal amount of Notes or
portions of Notes being purchased by the Company.
The
Paying Agent will promptly mail (but in any case not later than five days after
the Change of Control Payment Date) to each Holder of Notes properly tendered
the Change of Control Payment for such Notes, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder
a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any. The Company will publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
(c) Notwithstanding
anything to the contrary in this Section 4.15, the Company will not be required
to make a Change of Control Offer upon a Change of Control if (1) a third party
makes the Change of Control Offer in the manner, at the times and otherwise
in
compliance with the requirements set forth in this Section 4.15 and Section
3.09
hereof and purchases all Notes properly tendered and not withdrawn under the
Change of Control Offer, or (2) notice of redemption has been given pursuant
to
Section 3.07 hereof, unless and until there is a default in payment of the
applicable redemption price.
Section 4.16 Limitation
on Sale and Leaseback Transactions.
The
Company will not, and will not permit any of its Restricted Subsidiaries to,
enter into any sale and leaseback transaction; provided
that the
Company and any Guarantor may enter into a sale and leaseback transaction
if:
(1) the
Company or that Guarantor, as applicable, could have (a) incurred Indebtedness
in an amount equal to the Attributable Debt relating to such sale and leaseback
transaction under the Consolidated Leverage Ratio test in Section 4.09(a) hereof
and (b) incurred a Lien to secure such Indebtedness pursuant to the provisions
of Section 4.12 hereof; and
(2) the
transfer of assets in that sale and leaseback transaction is permitted by,
and
the Company applies the proceeds of such transaction in compliance with, Section
4.10 hereof.
57
Section 4.17 Payments
for Consent.
The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration to or for
the
benefit of any Holder of Notes for or as an inducement to any consent, waiver
or
amendment of any of the terms or provisions of this Indenture or the Notes
unless such consideration is offered to be paid and is paid to all Holders
of
the Notes that consent, waive or agree to amend in the time frame set forth
in
the solicitation documents relating to such consent, waiver or
agreement.
Section 4.18 Additional
Note Guarantees.
If
the
Company or any of its Restricted Subsidiaries acquires or creates another
Restricted Subsidiary after the date of this Indenture, then that newly acquired
or created Restricted Subsidiary will become a Guarantor and execute a
supplemental indenture in form and substance satisfactory to the Trustee and
deliver an Opinion of Counsel to the Trustee to the effect that such
supplemental indenture has been duly authorized, executed and delivered by
that
Restricted Subsidiary and constitutes a legal, valid, binding and enforceable
obligation of that Domestic Subsidiary, within 10 business days of the date
on
which it was acquired or created; provided
that
any
Restricted Subsidiary that constitutes an Immaterial Subsidiary need not become
a Guarantor until such time as it ceases to be an Immaterial Subsidiary. The
form of such Note Guarantee is attached as Exhibit E hereto.
Section 4.19 Designation
of Restricted and Unrestricted Subsidiaries.
The
Board
of Directors of the Company may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if that designation would not cause a Default. If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate
Fair Market Value of all outstanding Investments owned by the Company and its
Restricted Subsidiaries in the Subsidiary designated as Unrestricted will be
deemed to be an Investment made as of the time of the designation and will
reduce the amount available for Restricted Payments under Section 4.07 hereof
or
under one or more clauses of the definition of Permitted Investments, as
determined by the Company. That designation will only be permitted if the
Investment would be permitted at that time and if the Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary. The Board of
Directors of the Company may redesignate any Unrestricted Subsidiary to be
a
Restricted Subsidiary if that redesignation would not cause a
Default.
Any
designation of a Subsidiary of the Company as an Unrestricted Subsidiary will
be
evidenced to the Trustee by filing with the Trustee a certified copy of a
resolution of the Board of Directors giving effect to such designation and
an
Officers’ Certificate certifying that such designation complied with the
preceding conditions and was permitted by Section 4.07 hereof. If, at any time,
any Unrestricted Subsidiary would fail to meet the preceding requirements as
an
Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company will be in
default of such covenant. The Board of Directors of the Company may at any
time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary of the
Company; provided
that
such
designation will be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation will only be permitted if (1) such Indebtedness
is permitted under Section 4.09 hereof, calculated on a pro forma basis as
if
such designation had occurred at the beginning of the two-quarter reference
period; and (2) no Default or Event of Default would be in existence following
such designation.
58
Section 4.20 Payment
of Additional Amounts
(a) All
amounts paid or credited by the Company under or with respect to the Notes,
or
by any Guarantor pursuant to the Guarantees, will be made free and clear of
and
without withholding or deduction for or on account of any present or future
tax,
duty, levy, impost, assessment or other governmental charge (including
penalties, interest and other liabilities or expenses related thereto)
(hereinafter, “Taxes”)
imposed or levied by or on behalf of the Government of Canada or the United
States or of any province, territory, state or other political subdivision
thereof or by any authority or agency therein or thereof having power to tax
(each, a “Relevant
Taxing Jurisdiction”),
unless the Company or such Guarantor, as the case may be, is required to
withhold or deduct any amount for or on account of Taxes by law or by the
interpretation or administration thereof. If the Company or any Guarantor is
required to withhold or deduct any amount for or on account of any such Taxes
from any amount paid or credited under or with respect to the Notes or the
Guarantees, the Company or such Guarantor will pay such additional amounts
(the
“Additional
Amounts”)
as may
be necessary so that the net amount received by each owner of a beneficial
interest in the Notes (an “owner”
for
the
purposes of this Section 4.20) (including Additional Amounts) after such
withholding or deduction (including any withholding or deduction in respect
of
Additional Amounts) will not be less than the amount such owner would have
received if such Taxes had not been withheld or deducted; provided,
however,
that
Additional Amounts will not be payable to an owner or Holder of Notes with
respect to any Taxes to the extent such Taxes (“Excluded
Taxes”)
would
not have been imposed but for such owner or Holder being an owner or
Holder:
(1) in
the
case of Canadian Taxes, with which the Company or such Guarantor does not deal
at arm’s length (within the meaning of the Income Tax Act (Canada)) at the time
of making a payment;
(2) which
is
subject to such Taxes by reason of such owner or Holder being connected with
the
Relevant Taxing Jurisdiction other than solely by reason of the mere acquisition
or holding of Notes, the receipt of payments thereunder or the enforcement
of
the Holder’s or owner’s rights thereunder;
(3) which
failed to duly and timely comply with a timely and reasonable request of the
Company to provide information, documents, certification or other evidence
concerning such owner’s or Holder’s nationality, residence, entitlement to
treaty benefits, identity or connection with a Relevant Taxing Authority, but
only if such owner or Holder is legally entitled to comply with such request
and
only to the extent that due and timely compliance with such request would have
resulted in the reduction or elimination of the Taxes in question;
or
(4) which
is
a fiduciary, a partnership or other Holder that is not the beneficial owner
of a
note, if and to the extent that any beneficiary or settlor of such fiduciary,
any partner in such partnership or the beneficial owner of such note (as the
case may be) would not have been entitled to receive Additional Amounts with
respect to the payment in question if such beneficiary, settlor, partner or
beneficial owner had been the Holder of such Note (but only if there is no
material cost or expense associated with transferring such note to such
beneficiary, settlor, partner or beneficial owner and no restriction on such
transfer that is outside the control of such beneficiary, settlor, partner
or
beneficial owner).
(b) The
Company or such Guarantor will also (a) make such withholding or deduction
and
(b) remit the full amount deducted or withheld to the relevant authority in
accordance with and in the time required under applicable law.
59
(c) The
Company or the Guarantor will furnish the Holders of the Notes, within 30 days
after the date the payment of any Taxes is due pursuant to applicable law,
evidence of such payment by the Company or such Guarantor. The Company and
the
Guarantors will indemnify and hold harmless each Holder and owner from and
against (x) any Taxes (other than Excluded Taxes) levied or imposed on such
Holder or owner as a result of payments or credits made under or with respect
to
the Notes or the Guarantees, and (y) any Taxes (other than Excluded Taxes)
so
levied or imposed with respect to any indemnification payments under the
foregoing clause (x) or this clause (y) such that the net amount received by
such Holder or owner after such indemnification payments will not be less than
the net amount the Holder or owner would have received if the Taxes described
in
clauses (x) and (y) above had not been imposed.
(d) At
least
30 days prior to each date on which any payment under or with respect to the
Notes is due and payable, if the Company or any Guarantor will be obligated
to
pay Additional Amounts with respect to such payment, the Company or such
Guarantor will deliver to the Trustee an Officer’s Certificate stating the fact
that such Additional Amounts will be payable and the amounts so payable and
will
set forth such other information necessary to enable the Trustee to pay such
Additional Amounts to Holders or owners on the payment date. Whenever in this
Indenture or in this “Description of Notes” there is mentioned, in any context,
the payment of principal, premium, if any, redemption price, Change of Control
Payment, Asset Sale Offer purchase price, interest or any other amount payable
under or with respect to any note, such mention shall be deemed to include
mention of the payment of Additional Amounts or indemnification payments to
the
extent that, in such context, Additional Amounts or indemnification payments
are, were or would be payable in respect thereof.
(e) The
Company and the Guarantors will pay any present or future stamp, court,
documentary or other excise or property Taxes, charges or similar levies that
arise in any Relevant Taxing Jurisdiction from the execution, delivery or
registration of, or enforcement of rights under, the Notes, this Indenture,
any
Guarantee or any related document (“Documentary
Taxes”).
(f) The
obligation to pay any Additional Amounts (and any associated indemnification
payments) and Documentary Taxes under the terms and conditions described in
this
Section 4.20 will survive any termination, defeasance or discharge of this
Indenture.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger,
Consolidation, or Sale of Assets.
The
Company shall not, directly or indirectly: (i) consolidate, amalgamate or merge
with or into another Person (whether or not the Company is the surviving
corporation); or (2) sell, assign, transfer, convey or otherwise dispose of
all
or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries taken as a whole, in one or more related transactions,
to another Person, unless:
(1) either:
(A) the
Company is the surviving corporation; or
(B) the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, conveyance or other
disposition has been made is a corporation organized or existing under the
laws
of Canada, the United States, any province, territory or any state thereof
or
the District of Columbia;
60
(2) the
Person formed by or surviving any such consolidation, amalgamation or merger
(if
other than the Company) or the Person to which such sale, assignment, transfer,
conveyance or other disposition has been made assumes all the obligations of
the
Company under the Notes, this Indenture, the Registration Rights Agreement
and
the Interest Reserve and Security Agreement, pursuant to agreements reasonably
satisfactory to the Trustee;
(3) immediately
after such transaction, no Default or Event of Default exists; and
(4) the
Company or the Person formed by or surviving any such consolidation,
amalgamation or merger (if other than the Company), or to which such sale,
assignment, transfer, conveyance or other disposition has been made would,
on
the date of such transaction after giving pro forma effect thereto and any
related financing transactions as if the same had occurred at the beginning
of
the applicable two-quarter period, either
(A) be
permitted to incur at least US$1.00 of additional Indebtedness pursuant to
the
Consolidated Leverage Ratio test set forth in the Section 4.09(a) hereof;
or
(B) have
a
Consolidated Leverage Ratio equal to or less than the Consolidated Leverage
Ratio of the Company immediately preceding such transaction.
In
addition, the Company will not, directly or indirectly, lease all or
substantially all of the properties and assets of it and its Restricted
Subsidiaries taken as a whole, in one or more related transactions, to any
other
Person.
This
Section 5.01 will not apply to:
(1) a
merger
of the Company with an Affiliate solely for the purpose of reincorporating
the
Company in another jurisdiction; or
(2) any
consolidation, amalgamation or merger, or any sale, assignment, transfer,
conveyance, lease or other disposition of assets between or among the Company
and its Restricted Subsidiaries.
Section 5.02 Successor
Corporation Substituted.
Upon
any
consolidation or merger, or any sale, assignment, transfer, lease, conveyance
or
other disposition of all or substantially all of the properties or assets of
the
Company in a transaction that is subject to, and that complies with the
provisions of, Section 5.01 hereof, the successor Person formed by such
consolidation or into or with which the Company is merged or to which such
sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition, the provisions of this Indenture referring to the “Company” shall
refer instead to the successor Person and not to the Company), and may exercise
every right and power of the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein; provided,
however,
that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a sale of all
of
the Company’s assets in a transaction that is subject to, and that complies with
the provisions of, Section 5.01 hereof.
61
ARTICLE 6
DEFAULTS
AND REMEDIES
Section 6.01 Events
of Default.
Each
of
the following is an “Event
of Default”:
(1) default
for 30 days in the payment when due of interest on, or Liquidated Damages,
if
any, with respect to, the Notes;
(2) default
in the payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on, the Notes;
(3) failure
by the Company or any of its Restricted Subsidiaries to comply with the
provisions of Sections 4.15, 4.20 or 5.01 hereof;
(4) failure
by the Company or any of its Restricted Subsidiaries for 60 days after notice
to
the Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes including any Additional Notes, if any then outstanding
voting as a single class to comply with any of the other agreements in this
Indenture or the Interest Reserve and Security Agreement or the Notes;
(5) default
under any mortgage, indenture or instrument under which there may be issued
or
by which there may be secured or evidenced any Indebtedness for money borrowed
by the Company or any of its Restricted Subsidiaries (or the payment of which
is
guaranteed by the Company or any of its Restricted Subsidiaries), whether such
Indebtedness or Guarantee now exists, or is created after the date of this
Indenture, if that default:
(A) is
caused
by a failure to pay principal of, or interest or premium, if any, on, such
Indebtedness prior to the expiration of the 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,
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, aggregates
US$10.0 million or more;
(6) failure
by the Company or any of its Restricted Subsidiaries to pay final non-appealable
judgments for the payment of money entered by a court or courts of competent
jurisdiction aggregating in excess of US$10.0 million, which judgments are
not
paid, discharged or stayed for a period of 60 days;
(7) the
Company or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company that, taken together,
would constitute a Significant Subsidiary pursuant to or within the meaning
of
Bankruptcy Law:
(A) commences
a voluntary case,
62
(B) consents
to the entry of an order for relief against it in an involuntary
case,
(C) consents
to the appointment of a custodian of it or for all or substantially all of
its
property,
(D) makes
a
general assignment for the benefit of its creditors, or
(E) generally
is not paying its debts as they become due;
(8) a
court
of competent jurisdiction enters an order or decree under any Bankruptcy Law
that:
(A) is
for
relief against the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary in an
involuntary case;
(B) appoints
a custodian of the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary or for all
or
substantially all of the property of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary; or
(C) orders
the liquidation of the Company or any of its Restricted Subsidiaries that is
a
Significant Subsidiary or any group of Restricted Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary;
and
the
order or decree remains unstayed and in effect for 60 consecutive days;
or
(9) breach
by
the Company or any of its Restricted Subsidiaries of any material representation
or warranty or agreement in the Interest Reserve and Security Agreement, the
repudiation by the Company or any of its Restricted Subsidiaries of any of
its
obligations under the Interest Reserve and Security Agreement or the
unenforceability of the Interest Reserve and Security Agreement against the
Company or any of its Restricted Subsidiaries for any reason;
(10) except
as
permitted by this Indenture, any Note Guarantee is held in any judicial
proceeding to be unenforceable or invalid or ceases for any reason to be in
full
force and effect, or any Guarantor, or any Person acting on behalf of any
Guarantor, denies or disaffirms its obligations under its Note
Guarantee;
(11) failure
by the Company to comply with any material term of the Interest Reserve
Agreement that is not cured within 10 days; and
(12) the
Interest Reserve and Security Agreement or any other securities document or
Lien
purported to be granted thereby on the interest reserve account or the case
or
Government Securities there is held in any judicial proceeding to be
unenforceable or invalid, in whole or in part, or ceases for any reasons (other
than pursuant to a release that is delivered or becomes effective as set forth
in this Indenture) to be fully enforceable and perfected.
63
Section 6.02 Acceleration.
In
the
case of an Event of Default specified in clause (7) or (8) of
Section 6.01 hereof, with respect to the Company, any Restricted Subsidiary
of
the Company that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes will become due and payable immediately
without further action or notice. If any other Event of Default occurs and
is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately.
Upon
any
such declaration, the Notes shall become due and payable immediately.
The
Holders of a majority in aggregate principal amount of the then outstanding
Notes by written notice to the Trustee may, on behalf of all of the Holders,
rescind an acceleration and its consequences, if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium or Liquidated Damages,
if
any, that has become due solely because of the acceleration) have been cured
or
waived.
If
an
Event of Default occurs on or after February 15, 2010 by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding payment of the premium that the Company would have
had
to pay if the Company then had elected to redeem the Notes pursuant to Section
3.07 hereof, then, upon acceleration of the Notes, an equivalent premium shall
also become and be immediately due and payable, to the extent permitted by
law,
anything in this Indenture or in the Notes to the contrary notwithstanding.
If
an Event of Default occurs prior to February 15, 2010 by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding the prohibition on redemption of the Notes prior
to
such date, then, upon acceleration of the Notes, an additional premium shall
also become and be immediately due and payable, to the extent permitted by
law,
in an amount, for each of the years beginning on February 15 of the years set
forth below, as set forth below (expressed as a percentage of the principal
amount of the Notes on the date of payment that would otherwise be due but
for
the provisions of this sentence):
Year
|
Percentage
|
|||
2006
|
12.750
|
%
|
||
2007
|
11.156
|
%
|
||
2008
|
9.562
|
%
|
||
2009
|
7.968
|
%
|
Section 6.03 Other
Remedies.
If
an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy to collect the payment of principal, premium and Liquidated Damages,
if
any, and interest on the Notes or to enforce the performance of any provision
of
the Notes or this Indenture.
The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any Holder of a Note 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. All remedies are cumulative to
the
extent permitted by law.
64
Section 6.04 Waiver
of Past Defaults.
Holders
of not less than a majority in aggregate principal amount of the then
outstanding Notes by notice to the Trustee may on behalf of the Holders of
all
of the Notes waive an existing Default or Event of Default and its consequences
hereunder, except a continuing Default or Event of Default in the payment of
the
principal of, premium and Liquidated Damages, if any, or interest on, the Notes
(including in connection with an offer to purchase); provided,
however,
that
the Holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration. 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 impair any right
consequent thereon.
Section 6.05 Control
by Majority.
Holders
of a majority in aggregate principal amount of the then outstanding Notes may
direct the time, method and place of conducting any proceeding for exercising
any remedy available to the Trustee or exercising any trust or power conferred
on it. However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture that the Trustee determines may be unduly prejudicial
to the rights of other Holders of Notes or that may involve the Trustee in
personal liability.
Section 6.06 Limitation
on Suits.
A
Holder
may pursue a remedy with respect to this Indenture or the Notes only
if:
(1) such
Holder gives to the Trustee written notice that an Event of Default is
continuing;
(2) Holders
of at least 25% in aggregate principal amount of the then outstanding Notes
make
a written request to the Trustee to pursue the remedy;
(3) such
Holder or Holders offer and, if requested, provide to the Trustee security
or
indemnity reasonably satisfactory to the Trustee against any loss, liability
or
expense;
(4) the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer of security or indemnity; and
(5) during
such 60-day period, Holders of a majority in aggregate principal amount of
the
then outstanding Notes do not give the Trustee a direction inconsistent with
such request.
A
Holder
of a Note may not use this Indenture to prejudice the rights of another Holder
of a Note or to obtain a preference or priority over another Holder of a
Note.
Section 6.07 Rights
of Holders of Notes to Receive Payment.
Notwithstanding
any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal, premium and Liquidated Damages, if any, and
interest on the Note, on or after the respective due dates expressed in the
Note
(including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not
be
impaired or affected without the consent of such Holder.
65
Section 6.08 Collection
Suit by Trustee.
If
an
Event of Default specified in Section 6.01(1) or (2) hereof occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and
as
Trustee of an express trust against the Company for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on, the Notes and interest on overdue principal and, to the extent
lawful, interest and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel.
Section 6.09 Trustee
May File Proofs of Claim.
The
Trustee is authorized to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders of the
Notes 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, receive and distribute any money or other property payable
or deliverable on any such claims 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 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and
any other amounts due the Trustee under Section 7.07 hereof out of the estate
in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any
plan
of reorganization or arrangement or otherwise. Nothing herein contained shall
be
deemed to authorize the Trustee to authorize or consent to or accept or adopt
on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize
the
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.10 Priorities.
If
the
Trustee collects any money pursuant to this Article 6, it shall pay out the
money in the following order:
First: to
the
Trustee, its agents and attorneys for amounts due under Section 7.07 hereof,
including payment of all compensation, expenses and liabilities incurred, and
all advances made, by the Trustee and the costs and expenses of
collection;
Second: to
Holders of Notes for amounts due and unpaid on the Notes for principal, premium
and Liquidated Damages, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes
for
principal, premium and Liquidated Damages, if any and interest, respectively;
and
Third: to
the
Company or to such party as a court of competent jurisdiction shall
direct.
The
Trustee may fix a record date and payment date for any payment to Holders of
Notes pursuant to this Section 6.10.
66
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 a 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, 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 any suit by the Trustee, any suit by a Holder of a Note pursuant to
Section 6.07 hereof, or any suit by Holders of more than 10% in aggregate
principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section
7.01 Duties
of Trustee.
(a) If
an
Event of Default has occurred and is continuing, the Trustee will exercise
such
of the rights and powers vested in it by this Indenture, and use the same degree
of care and skill in its exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person’s own
affairs.
(b) Except
during the continuance of an Event of Default:
(1) the
duties of the Trustee will be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
and
(2) in
the
absence of bad faith on its part, the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee will examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein).
(c) The
Trustee may not be relieved from liabilities 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;
(2) the
Trustee will not be liable for any error of judgment made in good faith by
a
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the
Trustee will 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 hereof.
Subparagraphs (c)(1),
(2) and (3) shall be in lieu of Sections 315(d)(1), 315(d)(2) and 315(d)(3)
of the TIA and such Sections 315(d)(1), 315(d)(2) and 315(d)(3) are hereby
expressly excluded from this Indenture, as permitted by the TIA.
67
(d) Whether
or not therein expressly so provided, every provision of this Indenture that
in
any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of
this Section 7.01.
(e) No
provision of this Indenture will require the Trustee to expend or risk its
own
funds or incur any liability. The Trustee will be under no obligation to
exercise any of its rights and powers under this Indenture at the request of
any
Holders, unless such Holder has offered to the Trustee security and indemnity
satisfactory to it against any loss, liability or expense.
(f) The
Trustee will not be liable for interest on any money received by it except
as
the Trustee may agree in writing with the Company. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required
by
law.
Section 7.02 Rights
of Trustee.
(a) The
Trustee may conclusively rely upon any document believed by it to be genuine
and
to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel or both. The Trustee will not be liable
for
any action it takes or omits to take in good faith in reliance on such Officers’
Certificate or Opinion of Counsel. The Trustee may consult with counsel and
the
written advice of such counsel or any Opinion of Counsel will be full and
complete authorization and protection from liability in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(c) The
Trustee may act through its attorneys and agents and will not be responsible
for
the misconduct or negligence of any agent appointed with due care.
(d) The
Trustee will not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers conferred
upon it by this Indenture.
(e) Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Company will be sufficient if signed by an Officer
of the Company.
(f) The
Trustee will 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
unless such Holders have offered to the Trustee reasonable indemnity or security
against the losses, liabilities and expenses that might be incurred by it in
compliance with such request or direction.
(g) The
permissive rights of the Trustee to do things enumerated in this Indenture
shall
not be construed as a duty.
Section
7.03 Individual
Rights of Trustee.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Company or any Affiliate of the Company
with the same rights it would have if it were not Trustee. However, in the
event
that the Trustee acquires any conflicting interest it must eliminate such
conflict within 90 days, apply to the SEC for permission to continue as Trustee
(if this Indenture has been qualified under the TIA) or resign. Any Agent may
do
the same with like rights and duties. The Trustee is also subject to Sections
7.10 and 7.11 hereof.
68
Section
7.04 Trustee’s
Disclaimer.
The
Trustee will 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 Notes or any money paid to the
Company or upon the Company’s direction under any provision of this Indenture,
it will not be responsible for the use or application of any money received
by
any Paying Agent other than the Trustee, and it will not be responsible for
any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.
Section
7.05 Notice
of Defaults.
If
a
Default or Event of Default occurs and is continuing and if it is actually
known
to the Trustee, the Trustee will mail to Holders of Notes a notice of the
Default or Event of Default within 90 days after it occurs unless such Default
or Event of Default shall have been cured or waived before the giving of such
notice. Except in the case of a Default or Event of Default in payment of
principal of, premium or Liquidated Damages, if any, or interest on, any Note,
the Trustee may withhold the notice if and so long as a committee of its
directors and/or Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes. The second sentence
of this Section 7.05 shall be in lieu of the proviso to Section 315(b) of the
TIA and such proviso is hereby expressly excluded from this Indenture, as
permitted by the TIA.
Section
7.06 Reports
by Trustee to Holders of the Notes.
(a) Within
60
days after each May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee will mail
to
the Holders of the Notes a brief report dated as of such reporting date that
complies with TIA § 313(a) (but if no event described in TIA § 313(a)
has occurred within the twelve months preceding the reporting date, no report
need be transmitted). The Trustee also will comply with TIA § 313(b)(2).
The Trustee will also transmit by mail all reports as required by TIA
§ 313(c).
(b) A
copy of
each report at the time of its mailing to the Holders of Notes will be mailed
by
the Trustee to the Company and filed by the Trustee with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA § 313(d). The
Company will promptly notify the Trustee when the Notes are listed on any stock
exchange.
Section
7.07 Compensation
and Indemnity.
(a) The
Company will pay to the Trustee from time to time reasonable compensation for
its acceptance of this Indenture and services hereunder as shall be agreed
to in
writing between the Company and the Trustee. The Trustee’s compensation will not
be limited by any law on compensation of a trustee of an express trust. The
Company will reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to
the
compensation for its services. Such expenses will include the reasonable
compensation, disbursements and expenses of the Trustee’s agents and
counsel.
(b) The
Company and the Guarantors will jointly and severally indemnify the Trustee,
or
any predecessor Trustee, (and its officers, agents, directors and employees)
against any and all losses, liabilities or expenses incurred by it arising
out
of or in connection with the acceptance or administration of its duties under
this Indenture, including the costs and expenses of enforcing this Indenture
against the Company and the Guarantors (including this Section 7.07) and
defending itself against any claim (whether asserted by the Company, the
Guarantors, any Holder or any other Person) or liability in connection with
the
exercise or performance of any of its powers or duties hereunder, except to
the
extent any such loss, liability or expense may be attributable to its negligence
or bad faith. The Trustee will notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company
will not relieve the Company or any of the Guarantors of their obligations
hereunder. The Company or such Guarantor will defend the claim and the Trustee
will cooperate in the defense. The Trustee may have separate counsel and the
Company will pay the reasonable fees and expenses of such counsel. Neither
the
Company nor any Guarantor need pay for any settlement made without its consent,
which consent will not be unreasonably withheld.
69
(c) The
obligations of the Company and the Guarantors under this Section 7.07 will
survive the satisfaction and discharge of this Indenture.
(d) To
secure
the Company’s and the Guarantors’ payment obligations in this Section 7.07, the
Trustee will have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien will survive the satisfaction and
discharge of this Indenture.
(e) When
the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(7) or (8) hereof occurs, the expenses and the compensation
for
the services (including the fees and expenses of its agents and counsel) are
intended to constitute expenses of administration under any Bankruptcy
Law.
(f) The
Trustee will comply with the provisions of TIA § 313(b)(2) to the extent
applicable.
Section
7.08 Replacement
of Trustee.
(a) A
resignation or removal of the Trustee and appointment of a successor Trustee
will become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section 7.08.
(b) The
Trustee may resign in writing at any time and be discharged from the trust
hereby created by so notifying the Company. The Holders of a majority in
aggregate principal amount of the then outstanding Notes may remove the Trustee
by so notifying the Trustee and the Company in writing. The Company may remove
the Trustee if:
(1) the
Trustee fails to comply with Section 7.10 hereof;
(2) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered
with respect to the Trustee under any Bankruptcy Law;
(3) a
custodian or public officer takes charge of the Trustee or its property;
or
(4) the
Trustee becomes incapable of acting.
(c) If
the
Trustee resigns or is removed or if a vacancy exists in the office of Trustee
for any reason, the Company will promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority
in
aggregate principal amount of the then outstanding Notes may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
70
(d) 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 aggregate principal amount of the then outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(e) If
the
Trustee, after written request by any Holder who has been a Holder for at least
six months, fails to comply with Section 7.10 hereof, such Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(f) A
successor Trustee will deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Thereupon, the resignation or removal
of
the retiring Trustee will become effective, and the successor Trustee will
have
all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee will mail a notice of its succession to Holders. The retiring
Trustee will promptly transfer all property held by it as Trustee to the
successor Trustee; provided
all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company’s obligations under Section 7.07 hereof will
continue for the benefit of the retiring Trustee.
Section
7.09 Successor
Trustee by Merger, etc.
If
the
Trustee consolidates, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the successor
corporation without any further act will be the successor Trustee.
Section
7.10 Eligibility;
Disqualification.
There
will at all times be a Trustee hereunder that is a corporation organized and
doing business under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate trust powers,
that is subject to supervision or examination by federal or state authorities
and that has a combined capital and surplus of at least $100.0 million as set
forth in its most recent published annual report of condition.
This
Indenture will always have a Trustee who satisfies the requirements of TIA
§ 310(a)(1), (2) and (5). The Trustee is subject to TIA
§ 310(b).
Section
7.11 Preferential
Collection of Claims Against Company.
The
Trustee is subject to TIA § 311(a), excluding any creditor relationship
listed in TIA § 311(b). A Trustee who has resigned or been removed shall be
subject to TIA § 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL
DEFEASANCE AND COVENANT DEFEASANCE
Section
8.01 Option
to Effect Legal Defeasance or Covenant Defeasance.
The
Company may at any time, at the option of its Board of Directors evidenced
by a
resolution set forth in an Officers’ Certificate, elect to have either Section
8.02 or 8.03 hereof be applied to all outstanding Notes upon compliance with
the
conditions set forth below in this Article 8.
71
Section
8.02 Legal
Defeasance and Discharge.
Upon
the
Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.02, the Company and each of the Guarantors will, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed
to
have been discharged from their obligations with respect to all outstanding
Notes (including the Note Guarantees) on the date the conditions set forth
below
are satisfied (hereinafter, “Legal
Defeasance”).
For
this purpose, Legal Defeasance means that the Company and the Guarantors will
be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes (including the Note Guarantees), which will thereafter be
deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the
other Sections of this Indenture referred to in clauses (1) and (2) below,
and
to have satisfied all their other obligations under such Notes, the Note
Guarantees and this Indenture (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 will survive until otherwise terminated
or
discharged hereunder:
(1) the
rights of Holders of outstanding Notes to receive payments in respect of the
principal of, or interest or premium and Liquidated Damages, if any, on, such
Notes when such payments are due from the trust referred to in Section 8.04
hereof;
(2) the
Company’s obligations with respect to such Notes under Article 2 and Section
4.02 hereof;
(3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and
the
Company’s and the Guarantors’ obligations in connection therewith;
and
(4) this
Article 8.
Subject
to compliance with this Article 8, the Company may exercise its option under
this Section 8.02 notwithstanding the prior exercise of its option under Section
8.03 hereof.
Section
8.03 Covenant
Defeasance.
Upon
the
Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, the Company and each of the Guarantors will, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from each of their obligations under the covenants contained in Sections 4.07,
4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19 and 4.20 hereof
and clause (4) of Section 5.01 hereof with respect to the outstanding Notes
on
and after the date the conditions set forth in Section 8.04 hereof are satisfied
(hereinafter, “Covenant
Defeasance”),
and
the Notes will 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 will
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Notes will not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to
the
outstanding Notes and Note Guarantees, the Company and the Guarantors may omit
to comply with and will 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 will not constitute a Default or an Event
of Default under Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes and Note Guarantees will be
unaffected thereby. In addition, upon the Company’s exercise under Section 8.01
hereof of the option applicable to this Section 8.03, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections
[6.01(3) through 6.01(5)] hereof will not constitute Events of
Default.
72
Section
8.04 Conditions
to Legal or Covenant Defeasance.
In
order
to exercise either Legal Defeasance or Covenant Defeasance under either Section
8.02 or 8.03 hereof:
(1) the
Company must irrevocably deposit with the Trustee, in trust, for the benefit
of
the Holders, cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient, in the opinion
of a
nationally recognized investment bank in the United States or Canada, appraisal
firm, or firm of independent public accountants, to pay the principal of,
premium and Liquidated Damages, if any, and interest on, the outstanding Notes
on the stated date for payment thereof or on the applicable redemption date,
as
the case may be, and the Company must specify whether the Notes are being
defeased to such stated date for payment or to a particular redemption
date;
(2) in
the
case of an election under Section 8.02 hereof, the Company must deliver to
the
Trustee an Opinion of Counsel confirming that:
(A) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling; or
(B) since
the
date of this Indenture, there has been a change in the applicable U.S. federal
income tax law,
in
either
case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the outstanding Notes will not recognize income, gain
or
loss for U.S. federal income tax purposes as a result of such Legal Defeasance
and will be subject to U.S. federal income tax on the same amounts, in the
same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(3) in
the
case of an election under Section 8.03 hereof, the Company must deliver to
the
Trustee an Opinion of Counsel confirming that the Holders of the outstanding
Notes will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such Covenant Defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner and at the same
times
as would have been the case if such Covenant Defeasance had not
occurred;
(4) in
the
case of Legal Defeasance or Covenant Defeasance, the Company must deliver to
the
Trustee an Opinion of Counsel confirming that the Holders and beneficial owners
of the outstanding Notes will not recognize income, gain or loss for Canadian
federal, provincial, territorial income tax or other tax purposes as a result
of
such Legal Defeasance or Covenant Defeasance, as applicable, and will be subject
to Canadian federal, provincial or territorial income tax and other tax on
the
same amounts, if any, in the same manner and at the same times as would have
been the case if such Legal Defeasance or Covenant Defeasance, as the case
may
be, had not occurred (which condition may not be waived by any Holder of
outstanding Notes or the Trustee);
(5) no
Default or Event of Default shall have occurred and be continuing on the date
of
such deposit (other than a Default or Event of Default resulting from the
borrowing of funds to be applied to such deposit) and the deposit will not
result in a breach or violation of, or constitute a default under, any other
instrument to which the Company or any Guarantor is a party or by which the
Company or any Guarantor is bound;
73
(6) such
Legal Defeasance or Covenant Defeasance will 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;
(7) the
Company must deliver to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders
of
Notes over the other creditors of the Company with the intent of defeating,
hindering, delaying or defrauding any creditors of the Company or others;
and
(8) the
Company must deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
Section
8.05 Deposited
Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions.
Subject
to Section 8.06 hereof, all money and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the “Trustee”)
pursuant to Section 8.04 hereof in respect of the outstanding Notes will 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 and Liquidated Damages, if any, and
interest, but such money need not be segregated from other funds except to
the
extent required by law.
The
Company will pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash or non-callable Government Securities
deposited pursuant to Section 8.04 hereof or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law
is
for the account of the Holders of the outstanding Notes.
Notwithstanding
anything in this Article 8 to the contrary, the Trustee will deliver or pay
to
the Company from time to time upon the request of the Company any money or
non-callable Government Securities held by it as provided in Section 8.04 hereof
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.04(1) hereof),
are
in excess of the amount thereof that would then be required to be deposited
to
effect an equivalent Legal Defeasance or Covenant Defeasance.
Section
8.06 Repayment
to Company.
Any
money
deposited with the Trustee or any Paying Agent, or then held by the Company,
in
trust for the payment of the principal of, premium or Liquidated Damages, if
any, or interest on, any Note and remaining unclaimed for two years after such
principal, premium or Liquidated Damages, if any, or interest has become due
and
payable shall be paid to the Company on its request or (if then held by the
Company) will be discharged from such trust; and the Holder of such Note will
thereafter be permitted to look only to the Company for payment thereof, and
all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, will thereupon cease;
provided,
however,
that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
the
New York Times and The Wall Street Journal (national edition), notice that
such
money remains unclaimed and that, after a date specified therein, which will
not
be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the
Company.
74
Section
8.07 Reinstatement.
If
the
Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable
Government Securities in accordance with Section 8.02 or 8.03 hereof, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then
the Company’s and the Guarantors’ obligations under this Indenture and the Notes
and the Note Guarantees will be revived and reinstated as though no deposit
had
occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03 hereof, as the case may be; provided,
however,
that,
if the Company makes any payment of principal of, premium or Liquidated Damages,
if any, or interest on, any Note following the reinstatement of its obligations,
the Company will be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE 9
AMENDMENT,
SUPPLEMENT AND WAIVER
Section
9.01 Without
Consent of Holders of Notes.
Notwithstanding
Section 9.02 of this Indenture, the Company, the Guarantors and the Trustee
may
amend or supplement this Indenture or the Notes or the Note Guarantees without
the consent of any Holder of Note:
(1) to
cure
any ambiguity, defect or inconsistency;
(2) to
provide for uncertificated Notes in addition to or in place of certificated
Notes;
(3) to
provide for the assumption of the Company’s or a Guarantor’s obligations to the
Holders of the Notes and Note Guarantees by a successor to the Company or such
Guarantor pursuant to Article 5 or Article 10 hereof;
(4) to
make
any change that would provide any additional rights or benefits to the Holders
of the Notes or that does not adversely affect the legal rights hereunder of
any
Holder;
(5) to
comply
with requirements of the SEC in order to effect or maintain the qualification
of
this Indenture under the TIA;
(6) to
conform the text of this Indenture, the Note Guarantees, the Interest Reserve
and Security Agreement or the Notes to any provision of the “Description of
Notes” section of the Company’s Offering Memorandum dated February 7, 2006,
relating to the initial offering of the Notes, to the extent that such provision
in that “Description of Notes” was intended to be a verbatim recitation of a
provision of this Indenture, the Note Guarantees, the Interest and Security
Agreement or the Notes;
(7) to
provide for the issuance of Additional Notes in accordance with the limitations
set forth in this Indenture as of the date hereof; or
75
(8) to
allow
any Guarantor to execute a supplemental indenture and/or a Note Guarantee with
respect to the Notes.
Upon
the
request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and
upon receipt by the Trustee of the documents described in Section 7.02 hereof,
the Trustee will join with the Company and the Guarantors in the execution
of
any amended or supplemental indenture authorized or permitted by the terms
of
this Indenture and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee will not be obligated to enter
into such amended or supplemental indenture that affects its own rights, duties
or immunities under this Indenture or otherwise.
Section
9.02 With
Consent of Holders of Notes.
Except
as
provided below in this Section 9.02, the Company and the Trustee may amend
or
supplement this Indenture (including, without limitation, Section 3.09, 4.10
and
4.15 hereof) and the Notes and the Note Guarantees with the consent of the
Holders of at least a majority in aggregate principal amount of the then
outstanding Notes (including, without limitation, Additional Notes, if any)
voting as a single class (including, without limitation, consents obtained
in
connection with a tender offer or exchange offer for, or purchase of, the
Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default
or
Event of Default (other than a Default or Event of Default in the payment of
the
principal of, premium or Liquidated Damages, if any, or interest on, the Notes,
except a payment default resulting from an acceleration that has been rescinded)
or compliance with any provision of this Indenture or the Notes or the Note
Guarantees may be waived with the consent of the Holders of a majority in
aggregate principal amount of the then outstanding Notes (including, without
limitation, Additional Notes, if any) voting as a single class (including,
without limitation, consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes). Section
2.08 hereof shall determine which Notes are considered to be “outstanding” for
purposes of this Section 9.02.
Upon
the
request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of
the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee
of
the documents described in Section 7.02 hereof, the Trustee will join with
the
Company and the Guarantors in the execution of such amended or supplemental
indenture unless such amended or supplemental indenture directly affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion, but will not be obligated to,
enter into such amended or supplemental Indenture.
It
is not
be necessary for the consent of the Holders of Notes under this Section 9.02
to
approve the particular form of any proposed amendment, supplement or waiver,
but
it is sufficient if such consent approves the substance thereof.
After
an
amendment, supplement or waiver under this Section 9.02 becomes effective,
the
Company will mail to the Holders of Notes affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company
to
mail such notice, or any defect therein, will not, however, in any way impair
or
affect the validity of any such amended or supplemental indenture or waiver.
Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate
principal amount of the Notes then outstanding voting as a single class may
waive compliance in a particular instance by the Company with any provision
of
this Indenture or the Notes or the Note Guarantees. However, without the consent
of each Holder affected, an amendment, supplement or waiver under this Section
9.02 may not (with respect to any Notes held by a non-consenting
Holder):
76
(1) reduce
the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;
(2) reduce
the principal of or change the fixed maturity of any Note or alter or waive
any
of the provisions with respect to the redemption of the Notes (except as
provided above with respect to Sections 3.09, 4.10 and 4.15
hereof);
(3) reduce
the rate of or change the time for payment of interest, including default
interest, on any Note;
(4) waive
a
Default or Event of Default in the payment of principal of, or premium or
Liquidated Damages, if any, or interest on, the Notes (except a rescission
of
acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes and a waiver of the payment
default that resulted from such acceleration);
(5) make
any
Note payable in money other than that stated in the Notes;
(6) make
any
change in the provisions of this Indenture relating to waivers of past Defaults
or the rights of Holders of Notes to receive payments of principal of, or
interest or premium or Liquidated Damages, if any, on, the Notes;
(7) waive
a
redemption payment with respect to any Note (other than a payment required
by
Sections 3.09, 4.10 or 4.15 hereof);
(8) release
any Guarantor from any of its obligations under its Note Guarantee or this
Indenture, except in accordance with the terms of this Indenture;
(9) release
any Interest Reserve Property as contemplated by the Interest Reserve and
Security Agreement; or
(10) make
any
change in the preceding amendment and waiver provisions.
Section
9.03 Compliance
with Trust Indenture Act.
Every
amendment or supplement to this Indenture or the Notes will be set forth in
an
amended or supplemental indenture that complies with the TIA as then in
effect.
Section
9.04 Revocation
and Effect of Consents.
Until
an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
of a Note is a continuing consent by the Holder of a Note and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder’s Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section
9.05 Notation
on or Exchange of Notes.
The
Trustee may place an appropriate notation about an amendment, supplement or
waiver on any Note thereafter authenticated. The Company in exchange for all
Notes may issue and the Trustee shall, upon receipt of an Authentication Order,
authenticate new Notes that reflect the amendment, supplement or
waiver.
77
Failure
to make the appropriate notation or issue a new Note will not affect the
validity and effect of such amendment, supplement or waiver.
Section
9.06 Trustee
to Sign Amendments, etc.
The
Trustee will sign any amended or supplemental indenture authorized pursuant
to
this Article 9 if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. The Company may not
sign an amended or supplemental indenture until the Board of Directors of the
Company approves it. In executing any amended or supplemental indenture, the
Trustee will be entitled to receive and (subject to Section 7.01 hereof) will
be
fully protected in relying upon, in addition to the documents required by
Section 12.04 hereof, an Officers’ Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental indenture is authorized
or
permitted by this Indenture.
ARTICLE 10
NOTE
GUARANTEES
Section
10.01 Guarantee.
(a) Subject
to this Article 10, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of this Indenture, the Notes or the
obligations of the Company hereunder or thereunder, that:
(1)
the
principal of, premium and Liquidated Damages, if any, and interest on, the
Notes
will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest
on the Notes, if any, if lawful, and all other obligations of the Company to
the
Holders or the Trustee hereunder or thereunder will be promptly paid in full
or
performed, all in accordance with the terms hereof and thereof; and
(2) in
case
of any extension of time of payment or renewal of any Notes or any of such
other
obligations, that same will be promptly paid in full when due or performed
in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.
Failing
payment when due of any amount so guaranteed or any performance so guaranteed
for whatever reason, the Guarantors will be jointly and severally obligated
to
pay the same immediately. Each Guarantor agrees that this is a guarantee of
payment and not a guarantee of collection.
(b) The
Guarantors hereby agree that their obligations hereunder are 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 of the Notes 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 covenant
that this Note Guarantee will not be discharged except by complete performance
of the obligations contained in the Notes and this Indenture.
(c) If
any
Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or the Guarantors, any amount
paid by either to the Trustee or such Holder, this Note Guarantee, to the extent
theretofore discharged, will be reinstated in full force and
effect.
(d) Each
Guarantor agrees that it will not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. Each Guarantor further
agrees that, as between the Guarantors, on the one hand, and the Holders and
the
Trustee, on the other hand, (1) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 hereof for the purposes
of
this Note Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (2) in the event of any declaration of acceleration of such obligations
as
provided in Article 6 hereof, such obligations (whether or not due and payable)
will forthwith become due and payable by the Guarantors for the purpose of
this
Note Guarantee. The Guarantors will have the right to seek contribution from
any
non-paying Guarantor so long as the exercise of such right does not impair
the
rights of the Holders under the Note Guarantee.
Section
10.02 Limitation
on Guarantor Liability.
Each
Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that
it
is the intention of all such parties that the Note Guarantee of such Guarantor
not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act
or any similar federal or state law to the extent applicable to any Note
Guarantee. To effectuate the foregoing intention, the Trustee, the Holders
and
the Guarantors hereby irrevocably agree that the obligations of such Guarantor
will be limited to the maximum amount that will, after giving effect to such
maximum amount and all other contingent and fixed liabilities of such Guarantor
that are relevant under such laws, and after giving effect to any collections
from, rights to receive contribution from or payments made by or on behalf
of
any other Guarantor in respect of the obligations of such other Guarantor under
this Article 10, result in the obligations of such Guarantor under its Note
Guarantee not constituting a fraudulent transfer or conveyance.
Section
10.03 Execution
and Delivery of Note Guarantee.
To
evidence its Note Guarantee set forth in Section 10.01 hereof, each Guarantor
hereby agrees that a notation of such Note Guarantee substantially in the form
attached as Exhibit E hereto will be endorsed by an Officer of such Guarantor
on
each Note authenticated and delivered by the Trustee and that this Indenture
will be executed on behalf of such Guarantor by one of its
Officers.
Each
Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01
hereof will remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Note Guarantee.
If
an
Officer whose signature is on this Indenture or on the Note Guarantee no longer
holds that office at the time the Trustee authenticates the Note on which a
Note
Guarantee is endorsed, the Note Guarantee will be valid
nevertheless.
The
delivery of any Note by the Trustee, after the authentication thereof hereunder,
will constitute due delivery of the Note Guarantee set forth in this Indenture
on behalf of the Guarantors.
78
In
the
event that the Company or any of its Restricted Subsidiaries creates or acquires
any Domestic Subsidiary after the date of this Indenture, if required by Section
4.18 hereof, the Company will cause such Domestic Subsidiary to comply with
the
provisions of Section 4.18 hereof and this Article 10, to the extent
applicable.
Section
10.04 Guarantors
May Consolidate, etc., on Certain Terms.
Except
as
otherwise provided in Section 10.05 hereof, no Guarantor may sell or otherwise
dispose of all or substantially all of its assets to, or consolidate with,
amalgamate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, other than the Company or another Guarantor,
unless:
(1) immediately
after giving effect to such transaction, no Default or Event of Default exists;
and
(2) either:
(a) subject
to Section 10.05 hereof, the Person acquiring the property in any such sale
or
disposition or the Person formed by or surviving any such consolidation or
merger unconditionally assumes all the obligations of that Guarantor under
this
Indenture, its Note Guarantee, the Registration Rights Agreement and the
Interest Reserve and Security Agreement on the terms set forth herein or
therein, pursuant to a supplemental indenture in form and substance reasonably
satisfactory to the Trustee; or
(b) the
Net
Proceeds of such sale or other disposition are applied in accordance with the
applicable provisions of this Indenture, including without limitation, Section
4.10 hereof.
In
case
of any such consolidation, merger, sale, amalgamation or conveyance and upon
the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the Note
Guarantee endorsed upon the Notes and the due and punctual performance of all
of
the covenants and conditions of this Indenture to be performed by the Guarantor,
such successor Person will succeed to and be substituted for the Guarantor
with
the same effect as if it had been named herein as a Guarantor. Such successor
Person thereupon may cause to be signed any or all of the Note Guarantees to
be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Note
Guarantees so issued will in all respects have the same legal rank and benefit
under this Indenture as the Note Guarantees theretofore and thereafter issued
in
accordance with the terms of this Indenture as though all of such Note
Guarantees had been issued at the date of the execution hereof.
Except
as
set forth in Articles 4 and 5 hereof, and notwithstanding clauses 2(a) and
(b)
above, nothing contained in this Indenture or in any of the Notes will prevent
any consolidation or merger of a Guarantor with or into the Company or another
Guarantor, or will prevent any sale or conveyance of the property of a Guarantor
as an entirety or substantially as an entirety to the Company or another
Guarantor.
Section
10.05 Releases.
(a) In
the
event of any sale or other disposition of all or substantially all of the assets
of any Guarantor, by way of merger, consolidation or otherwise, or a sale or
other disposition of all of the Capital Stock of any Guarantor, in each case
to
a Person that is not (either before or after giving effect to such transactions)
the Company or a Restricted Subsidiary of the Company, then such Guarantor
(in
the event of a sale or other disposition, by way of merger, consolidation or
otherwise, of all of the Capital Stock of such Guarantor) or the corporation
acquiring the property (in the event of a sale or other disposition of all
or
substantially all of the assets of such Guarantor) will be released and relieved
of any obligations under its Note Guarantee; provided
that the
Net Proceeds of such sale or other disposition are applied in accordance with
the applicable provisions of this Indenture, including without limitation
Section 4.10 hereof. Upon delivery by the Company to the Trustee of an Officers’
Certificate and an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the provisions of this
Indenture, including without limitation Section 4.10 hereof, the Trustee will
execute any documents reasonably required in order to evidence the release
of
any Guarantor from its obligations under its Note Guarantee.
79
(b) Upon
designation of any Guarantor as an Unrestricted Subsidiary in accordance with
the terms of this Indenture, such Guarantor will be released and relieved of
any
obligations under its Note Guarantee.
(c) Upon
Legal Defeasance in accordance with Article 8 hereof or satisfaction and
discharge of this Indenture in accordance with Article 11 hereof, each Guarantor
will be released and relieved of any obligations under its Note
Guarantee.
Any
Guarantor not released from its obligations under its Note Guarantee as provided
in this Section 10.05 will remain liable for the full amount of principal of
and
interest and premium and Liquidated Damages, if any, on the Notes and for the
other obligations of any Guarantor under this Indenture as provided in this
Article 10.
ARTICLE 11
SATISFACTION
AND DISCHARGE
Section
11.01 Satisfaction
and Discharge.
This
Indenture will be discharged and will cease to be of further effect as to all
Notes issued hereunder, when:
(1) either:
(a) all
Notes
that have been authenticated, except lost, stolen or destroyed Notes that have
been replaced or paid and Notes for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company, have been delivered
to
the Trustee for cancellation; or
(b) all
Notes
that have not been delivered to the Trustee for cancellation have become due
and
payable by reason of the mailing of a notice of redemption or otherwise or
will
become due and payable within one year and the Company or any Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust solely for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such amounts
as
will be sufficient, without consideration of any reinvestment of interest,
to
pay and discharge the entire Indebtedness on the Notes not delivered to the
Trustee for cancellation for principal, premium and Liquidated Damages, if
any,
and accrued interest to the date of maturity or redemption;
(2) no
Default or Event of Default has occurred and is continuing on the date of such
deposit (other than a Default or Event of Default resulting from the borrowing
of funds to be applied to such deposit) and the deposit will not result in
a
breach or violation of, or constitute a default under, any other instrument
to
which the Company or any Guarantor is a party or by which the Company or any
Guarantor is bound;
80
(3) the
Company or any Guarantor has paid or caused to be paid all sums payable by
it
under this Indenture; and
(4) the
Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at
maturity or on the redemption date, as the case may be.
In
addition, the Company must deliver an Officers’ Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction
and
discharge have been satisfied.
Notwithstanding
the satisfaction and discharge of this Indenture, if money has been deposited
with the Trustee pursuant to subclause (b) of clause (1) of this Section 11.01,
the provisions of Sections 11.02 and 8.06 hereof will survive. In addition,
nothing in this Section 11.01 will be deemed to discharge those provisions
of
Section 7.07 hereof, that, by their terms, survive the satisfaction and
discharge of this Indenture.
Section
11.02 Application
of Trust Money.
Subject
to the provisions of Section 8.06 hereof, all money deposited with the Trustee
pursuant to Section 11.01 hereof shall be held in trust and applied by it,
in
accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal (and premium and Liquidated Damages, if any) and interest
for
whose payment such money has been deposited with the Trustee; but such money
need not be segregated from other funds except to the extent required by
law.
If
the
Trustee or Paying Agent is unable to apply any money or Government Securities
in
accordance with Section 11.01 hereof by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company’s
and any Guarantor’s obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section
11.01 hereof; provided
that if
the Company has made any payment of principal of, premium or Liquidated Damages,
if any, or interest on, any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or Government Securities
held
by the Trustee or Paying Agent.
ARTICLE 12
MISCELLANEOUS
Section
12.01 Trust
Indenture Act Controls.
If
any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by TIA §318(c), the imposed duties will control.
Section
12.02 Notices.
Any
notice or communication by the Company, any Guarantor or the Trustee to the
others is duly given if in writing and delivered in Person or by first class
mail (registered or certified, return receipt requested), facsimile transmission
or overnight air courier guaranteeing next day delivery, to the others’
address:
81
If
to the
Company and/or any Guarantor:
Canadian
Satellite Radio Holdings Inc.
Xxxxx
0000, Xxxxxx Trust Tower
BCE
Place, 000 Xxx Xxxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Xxxxxx
Facsimile
No.: (000) 000-0000
Attention:
Chief Financial Officer
With
a
copy to:
Stikeman
Elliott LLP
0000
Xxxxxxxx Xxxxx Xxxx
000
Xxx
Xxxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Xxxxxx
Facsimile
No.: (000) 000-0000
Attention:
Xxx Xxxxxx
If
to the
Trustee:
The
Bank
of Nova Scotia Trust Company of New York
Xxx
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Facsimile
No.: (000) 000-0000
Attention:
Corporate Trust Administration
The
Company, any Guarantor or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or
communications.
All
notices and communications (other than those sent to Holders) will be deemed
to
have been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid, if
mailed; when receipt acknowledged, if transmitted by facsimile; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any
notice or communication to a Holder will be mailed by first class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept by
the
Registrar. Any notice or communication will also be so mailed to any Person
described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it will not affect
its sufficiency with respect to other Holders.
If
a
notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives
it.
If
the
Company mails a notice or communication to Holders, it will mail a copy to
the
Trustee and each Agent at the same time.
82
Section
12.03 Communication
by Holders of Notes with Other Holders of Notes.
Holders
may communicate pursuant to TIA § 312(b) with other Holders with respect to
their rights under this Indenture or the Notes. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA
§ 312(c).
Section
12.04 Certificate
and Opinion as to Conditions Precedent.
Upon
any
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee:
(1) an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 12.05 hereof)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(2) an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which must include the statements set forth in Section 12.05 hereof) stating
that, in the opinion of such counsel, all such conditions precedent and
covenants have been satisfied.
Section
12.05 Statements
Required in Certificate or Opinion.
Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant
to
TIA § 314(a)(4)) must comply with the provisions of TIA § 314(e) and
must include:
(1) a
statement that the Person making such certificate or opinion has read such
covenant or condition;
(2) a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(3) a
statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express
an
informed opinion as to whether or not such covenant or condition has been
satisfied; and
(4) a
statement as to whether or not, in the opinion of such Person, such condition
or
covenant has been satisfied.
Section
12.06 Rules
by Trustee and Agents.
The
Trustee may make reasonable rules for action by or at a meeting of Holders.
The
Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.
Section
12.07 No
Personal Liability of Directors, Officers, Employees and
Stockholders.
No
past,
present or future director, officer, employee, incorporator or stockholder
of
the Company or any Guarantor, as such, will have any liability for any
obligations of the Company or the Guarantors under the Notes, this Indenture,
the Note Guarantees, the Interest Reserve and Security Agreement or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note waives and releases all
such
liability. The waiver and release are part of the consideration for issuance
of
the Notes. The waiver may not be effective to waive liabilities under the
federal securities laws.
83
Section
12.08 Governing
Law.
THE
INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS
INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section
12.09 No
Adverse Interpretation of Other Agreements.
This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other Person. Any such
indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section
12.10 Successors.
All
agreements of the Company in this Indenture and the Notes will bind its
successors. All agreements of the Trustee in this Indenture will bind its
successors. All agreements of each Guarantor in this Indenture will bind its
successors, except as otherwise provided in Section 10.05 hereof.
Section
12.11 Severability.
In
case
any provision in this Indenture or in the Notes is invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.
Section
12.12 Counterpart
Originals.
The
parties may sign any number of copies of this Indenture. Each signed copy will
be an original, but all of them together represent the same
agreement.
Section
12.13 Table
of Contents, Headings, etc.
The
Table
of Contents, Cross-Reference Table and Headings of the Articles and Sections
of
this Indenture have been inserted for convenience of reference only, are not
to
be considered a part of this Indenture and will in no way modify or restrict
any
of the terms or provisions hereof.
Section
12.14 Consent
to Jurisdiction
Each
of
the Company and the Guarantors irrevocably agree that any legal suit, action
or
proceeding arising out of or based upon this Indenture or the transactions
contemplated hereby (“Related
Proceedings”)
may be
instituted in the federal courts of the United States of America located in
the
City of New York or the courts of the State of New York in each case located
in
the Borough of Manhattan in the City of New York (collectively, the
“Specified
Courts”),
and
irrevocably submits to the exclusive jurisdiction (except for proceedings
instituted in regard to the enforcement of a judgment of any such court (a
“Related
Judgment”),
as to
which such jurisdiction is non-exclusive) of such courts in any such suit,
action or proceeding. The Company and the Guarantors further agree that service
of any process, summons, notice or document by mail to such party’s address set
forth above shall be effective service o f process for any
lawsuit, action or other proceeding brought in any such court.
The Company and the Guarantors hereby irrevocably and unconditionally
84
waive
any
objection to the laying of venue of any lawsuit, action or other proceeding
in
the Specified Courts, and hereby further irrevocably and unconditionally
waive
and agree not to plead or claim in any such court that any such lawsuit,
action
or other proceeding brought in any such court has been brought in an
inconvenient forum. Each of the Company and the Guarantors not located in
the
United States hereby irrevocably appoints CT Corporation System of New York,
New
York, which currently maintains a New York City office at 000 Xxxxxx Xxxxxx,
Xxx
Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx of America, as its authorized agent (the
“Authorized
Agent”)
to
receive service of process or other legal summons for purposes of any such
action or proceeding that may be instituted in any state or federal court
in the
City and State of New York. The Company and each of the Guarantors agree
that
service of process upon the Authorized Agent and written notice of such service
to the Company shall be deemed, in every respect, effective service of process
upon the Company and/or the Guarantors, as the case may be.
Section
12.15 Obligation
Currency
The
obligation of the Company or the Guarantors in respect of any sum due to any
Holder shall, notwithstanding any judgment in a currency other than U.S.
dollars, not be discharged until the first Business Day, following receipt
by
such Holder of any sum adjudged to be so due in such other currency, on which
(and only to the extent that) such Holder may in accordance with normal banking
procedures purchase U.S. dollars with such other currency; if the U.S. dollars
so purchased are less than the sum originally due to such Holder hereunder,
the
Company and the Guarantors agree, as a separate obligation and notwithstanding
any such judgment, to indemnify such Holder against such loss.
[Signature
Pages Follow]
85
SIGNATURES
Dated
as
of February 10, 2006
CANADIAN
SATELLITE RADIO HOLDINGS INC.
By: /s/
Xxxxxxx Xxxxxxxxxx
Name:
Xxxxxxx Xxxxxxxxxx
Title:
Chief Financial Officer
By: /s/
Xxxxxxx Xxxxxxxxxx
Name:
Xxxxxxx Xxxxxxxxxx
Title:
Chief Financial Officer
THE
BANK
OF NOVA SCOTIA TRUST COMPANY OF NEW YORK
By: /s/
Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President
86
EXHIBIT
A
[Face
of Note]
CUSIP/CINS
____________
12.75%
Senior Notes due 2014
No.
___$____________
CANADIAN
SATELLITE RADIO HOLDINGS INC.
promises
to pay to [ ]
or
registered assigns,
the
principal sum of __________________________________________________________
DOLLARS on _____________, 20___.
Interest
Payment Dates: ____________ and ____________
Record
Dates: ____________ and ____________
Dated:
_______________, 200_
CANADIAN
SATELLITE RADIO HOLDINGS INC.
By:____________________________________________
Name:
Title:
This
is
one of the Notes referred to
in
the
within-mentioned Indenture:
THE
BANK
OF NOVA SCOTIA
TRUST
COMPANY OF NEW YORK,
as
Trustee
By:
___________________________________
Authorized
Signatory
87
[Back
of
Note]
12.75%
Senior Notes due 2014
[Insert
the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert
the Private Placement Legend, if applicable pursuant to the provisions of the
Indenture]
Capitalized
terms used herein have the meanings assigned to them in the Indenture referred
to below unless otherwise indicated.
(1) Interest.
Canadian Satellite Radio Holdings Inc., a corporation organized under the laws
of the Province of Ontario, Canada (the “Company”),
promises to pay interest on the principal amount of this Note at 12.75% per
annum from ________________, 20__ until maturity and shall pay the Liquidated
Damages, if any, payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company will pay interest and Liquidated
Damages, if any, semi-annually in arrears on February 15 and August 15 of each
year, or if any such day is not a Business Day, on the next succeeding Business
Day (each, an “Interest
Payment Date”).
Interest on the Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from the date of issuance;
provided
that if
there is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the
next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided
further
that the
first Interest Payment Date shall be _____________, 20__ The Company will pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time
on
demand at a rate that is 1% per annum in excess of the rate then in effect
to
the extent lawful; it will pay interest (including post-petition interest in
any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages, if any, (without regard to any applicable grace periods)
from time to time on demand at the same rate to the extent lawful. Interest
will
be computed on the basis of a 360-day year of twelve 30-day months.
(2) Method
of Payment.
The
Company will pay interest on the Notes (except defaulted interest) and
Liquidated Damages, if any, to the Persons who are registered Holders of Notes
at the close of business on the February 1 and August 1 next preceding the
Interest Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in Section
2.12
of the Indenture with respect to defaulted interest. The Notes will be payable
as to principal, premium and Liquidated Damages, if any, and interest at the
office or agency of the Company maintained for such purpose within or without
the City and State of New York, or, at the option of the Company, payment of
interest and Liquidated Damages, if any, may be made by check mailed to the
Holders at their addresses set forth in the register of Holders; provided
that
payment by wire transfer of immediately available funds will be required with
respect to principal of and interest, premium and Liquidated Damages, if any,
on, all Global Notes and all other Notes the Holders of which will have provided
wire transfer instructions to the Company or the Paying Agent. Such payment
will
be in such coin or currency of the United States of America as at the time
of
payment is legal tender for payment of public and private debts.
(3) Paying
Agent and Registrar.
Initially The Bank of Nova Scotia Trust Company of New York, the Trustee under
the Indenture, will act as Paying Agent and Registrar. The Company may change
any Paying Agent or Registrar without notice to any Holder. The Company or
any
of its Subsidiaries may act in any such capacity.
88
(4) Indenture.
The
Company issued the Notes under an Indenture dated as of February 10, 2006 (the
“Indenture”)
among
the Company, the Guarantors and the Trustee. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the TIA. The Notes are subject to all such terms, and Holders are referred
to
the Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. Except to
the
extent provided in the Interest Reserve and Security Agreement dated as of
February 10, 2006 (the “Interest
Reserve and Security Agreement”),
among
the Company, CSR Inc., the Trustee and the Interest Reserve Agent, the Notes
are
the unsecured obligations of the Company. The Interest Reserve and Security
Agreement provides that funds will be deposited in an account in the United
States and invested in U.S. government securities, for which the Company is
the
beneficial owner, and such funds will be pledged to secure the payment and
performance when due of the Company’s obligations under the Indenture and will
also grant to the Trustee for the benefit of itself and then Holders of the
Notes a first priority security interest in the such account. Such funds will
be
used for the first six payments of interest on the Notes. The Indenture does
not
limit the aggregate principal amount of Notes that may be issued
thereunder.
(5) Optional
Redemption.
(a) Except
as
set forth in subparagraph (b) of this Paragraph 5, the Company will not have
the
option to redeem the Notes prior to February 15, 2010. On or after February
15,
2010, the Company will have the option to redeem all or a part of the Notes
upon
not less than 30 nor more than 60 days’ notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued
and
unpaid interest and Liquidated Damages, if any, on the Notes redeemed to the
applicable redemption date, if redeemed during the twelve-month period beginning
on February 15 of the years indicated below, subject to the rights of Holders
on
the relevant record date to receive interest on the relevant interest payment
date:
Year
|
Percentage
|
|||
2010
|
106.375
|
%
|
||
2011
|
103.188
|
%
|
||
2012
and thereafter
|
100.000
|
%
|
Unless
the Company defaults in the payment of the redemption price, interest will
cease
to accrue on the Notes or portions thereof called for redemption on the
applicable redemption date.
(b) Notwithstanding
the provisions of subparagraph (a) of this Paragraph 5, at any time prior to
February 15, 2009, the Company may on any one or more occasions redeem up to
25%
of the aggregate principal amount of Notes issued under the Indenture with
the
net cash proceeds from the sale or issuance of Equity Interests (other than
Disqualified Stock) at a redemption price equal to 112.750% of the aggregate
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, to the redemption date; provided
that at
least 75% of the aggregate principal amount of the Notes originally issued
under
the Indenture (excluding Notes held by the Company and its Subsidiaries) remains
outstanding immediately after the occurrence of such redemption and that such
redemption occurs within 90 days of the date of the closing of such sale or
issuance of Equity Interests (other than Disqualified Stock).
89
(6) Mandatory
Redemption.
The
Company is not be required to make mandatory redemption or sinking fund payments
with respect to the Notes.
(7) Repurchase
at
the Option of Holder.
(a) If
there
is a Change of Control, each Holder of Notes will have the right to require
the
Company to make an offer (a “Change
of Control Offer”)
to
such Holder to repurchase all or any part (equal to US$1,000 or an integral
multiple thereof) of such Holder’s Notes at a purchase price in cash equal to
101% of the aggregate principal amount thereof plus accrued and unpaid interest
and Liquidated Damages, if any, thereon to the date of purchase, subject to
the
rights of Holders on the relevant record date to receive interest due on the
relevant interest payment date (the “Change
of Control Payment”).
Within 30 days following any Change of Control, the Company will mail a notice
to each Holder setting forth the procedures governing the Change of Control
Offer as required by the Indenture.
(b) If
the
Company or a Restricted Subsidiary of the Company consummates any Asset Sales,
within five days of each date on which the aggregate amount of Excess Proceeds
exceeds US$10.0 million, the Company will commence an offer to all Holders
of
Notes and all holders of other Indebtedness that is pari
passu
with the
Notes containing provisions similar to those set forth in the Indenture with
respect to offers to purchase or redeem with the proceeds of sales of assets
(an
“Asset
Sale Offer”)
pursuant to Section 3.09 of the Indenture to purchase the maximum principal
amount of Notes (including any Additional Notes) and such other pari
passu
Indebtedness that may be purchased out of the Excess Proceeds at an offer price
in cash in an amount equal to 100% of the principal amount thereof plus accrued
and unpaid interest and Liquidated Damages, if any, thereon to the date of
purchase, in accordance with the procedures set forth in the Indenture. To
the
extent that the aggregate amount of Notes (including any Additional Notes)
and
other pari
passu
Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company (or such Restricted Subsidiary) may use such deficiency
for any purpose not otherwise prohibited by the Indenture. If the aggregate
principal amount of Notes and other pari
passu
Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and such other pari
passu
Indebtedness to be purchased on a pro
rata
basis.
Holders of Notes that are the subject of an offer to purchase will receive
an
Asset Sale Offer from the Company prior to any related purchase date and may
elect to have such Notes purchased by completing the form entitled “Option
of Holder to Elect Purchase”
attached to the Notes.
(8) Notice
of Redemption.
Notice
of redemption will be mailed at least 10 days but not more than 60 days before
the redemption date to each Holder whose Notes are to be redeemed at its
registered address, except that redemption notices may be mailed more than
60
days prior to a redemption date if the notice is issued in connection with
a
defeasance of the Notes or a satisfaction or discharge of the Indenture. Notes
in denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed.
(9) Denominations,
Transfer, Exchange.
The
Notes are in registered form without coupons in denominations of $2,000 and
integral multiples of $1,000. The transfer of Notes may be registered and Notes
may be exchanged as provided in the Indenture. The Registrar and the Trustee
may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected
for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, the Company need not exchange or register the transfer of any Notes
for a period of 15 days before a selection of Notes to be redeemed or during
the
period between a record date and the corresponding Interest Payment
Date.
90
(10) Persons
Deemed Owners.
The
registered Holder of a Note may be treated as its owner for all
purposes.
(11) Amendment,
Supplement and Waiver.
Subject
to certain exceptions, the Indenture or the Notes or the Note Guarantees may
be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the then outstanding Notes including Additional
Notes, if any, voting as a single class, and any existing Default or Event
or
Default or compliance with any provision of the Indenture or the Notes or the
Note Guarantees may be waived with the consent of the Holders of a majority
in
aggregate principal amount of the then outstanding Notes including Additional
Notes, if any, voting as a single class. Without the consent of any Holder
of a
Note, the Indenture or the Notes or the Note Guarantees may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company’s or a Guarantor’s obligations to
Holders of the Notes and Note Guarantees in case of a merger or consolidation,
to make any change that would provide any additional rights or benefits to
the
Holders of the Notes or that does not adversely affect the legal rights under
the Indenture of any such Holder, to comply with the requirements of the SEC
in
order to effect or maintain the qualification of the Indenture under the TIA,
to
conform the text of the Indenture, the Interest Reserve and Security Agreement
or the Notes to any provision of the “Description of Notes” section of the
Company’s Offering Memorandum dated February 7, 2006, relating to the initial
offering of the Notes, to the extent that such provision in that “Description of
Notes” was intended to be a verbatim recitation of a provision of the Indenture,
the Note Guarantees, the Interest Reserve and Security Agreement or the Notes;
to provide for the issuance of Additional Notes in accordance with the
limitations set forth in the Indenture, or to allow any Guarantor to execute
a
supplemental indenture to the Indenture and/or a Note Guarantee with respect
to
the Notes.
(12) Defaults
and Remedies.
Events
of Default include: (i) default for 30 days in the payment when due of interest
on, or Liquidated Damages, if any, with respect to the Notes; (ii) default
in
the payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on, the Notes; (iii) failure by the Company
or
any of its Restricted Subsidiaries to comply with the provisions of Sections
4.15, 4.20 or 5.01 of the Indenture; (iv) failure by the Company or any of
its
Restricted Subsidiaries for 60 days after notice to the Company by the Trustee
or the Holders of at least 25% in aggregate principal amount of the Notes,
including any Additional Notes, if any then outstanding voting as a single
class
to comply with any of the other agreements in the Indenture or the Notes; (v)
default under certain other agreements relating to Indebtedness of the Company
which default results in the acceleration of such Indebtedness prior to its
express maturity; (vi) certain final judgments for the payment of money that
remain undischarged for a period of 60 days; (vii) certain events of bankruptcy
or insolvency with respect to the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted Subsidiaries that,
taken together, would constitute a Significant Subsidiary; (viii) the breach
of
certain covenants or any material representation or warranty or agreement in
the
Interest Reserve and Security Agreement or failure by the Company to comply
with
any material term in the Interest Reserve and Security Agreement that is not
cured within 10 days or the Interest Reserve and Security Agreement is held
in
any judicial proceeding to be unenforceable or invalid or ceases for any reason
to be in full force and effect; (ix) the Interest Reserve and Security Agreement
or any other securities document or Lien purported to be granted thereby is
held
in any judicial proceeding to be unenforceable or invalid, in whole or in part,
or ceases for any other reason to be fully enforceable and perfected and (x)
except as permitted by the Indenture, any Note Guarantee is held in any judicial
proceeding to be unenforceable or invalid or ceases for any reason to be in
full
force and effect or any Guarantor or any Person acting on its behalf denies
or
disaffirms its obligations under such Guarantor’s Note Guarantee. If any Event
of Default occurs and is continuing, the Trustee or the Holders of at least
25%
in aggregate principal amount of the then outstanding Notes may declare all
the
Notes to be due and payable immediately. Notwithstanding the foregoing, in
the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable immediately
without further action or notice. Holders may not enforce the Indenture or
the
Notes except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default or
Event
of Default (except a Default or Event of Default relating to the payment of
principal or interest or premium or Liquidated Damages, if any,) if it
determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount of the then outstanding Notes by notice
to the Trustee may, on behalf of the Holders of all of the Notes, rescind an
acceleration or waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default
in the payment of interest or premium or Liquidated Damages, if any, on, or
the
principal of, the Notes. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company
is
required, upon becoming aware of any Default or Event of Default, to deliver
to
the Trustee a statement specifying such Default or Event of
Default.
91
(13) Additional
Amounts.
Any
reference in this Note to the payment of principal, premium or Liquidated
Damages, if any, redemption price, Change of Control Payment, purchase price,
interest or any other amount payable under or with respect to such Note,
will be
deemed to including mention of the payment of Additional Amounts to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof. The Company’s obligation to make payments of Additional Amounts
will survive any termination of this Note or the defeasance of any rights
thereunder.
(14) Trustee
Dealings with Company.
The
Trustee, in its individual or any other capacity, or its affiliates or ultimate
parent may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.
(15) No
Recourse Against Others.
A
director, officer, employee, incorporator or stockholder of the Company or
any
of the Guarantors, as such, will not have any liability for any obligations
of
the Company or the Guarantors under the Notes, the Note Guarantees 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. The waiver and release are part of the
consideration for the issuance of the Notes.
(16) Authentication.
This
Note will not be valid until authenticated by the manual signature of the
Trustee or an authenticating agent.
92
(17) Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee,
such
as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT
TEN
(= joint tenants with right of survivorship and not as tenants in common),
CUST
(= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
(18) Additional
Rights of Holders of Restricted Global Notes and Restricted Definitive
Notes.
In
addition to the rights provided to Holders of Notes under the Indenture, Holders
of Restricted Global Notes and Restricted Definitive Notes will have all the
rights set forth in the Registration Rights Agreement dated as of February
10,
2006, among the Company, the Guarantors and the other parties named on the
signature pages thereof or, in the case of Additional Notes, Holders of
Restricted Global Notes and Restricted Definitive Notes will have the rights
set
forth in one or more registration rights agreements, if any, among the Company,
the Guarantors and the other parties thereto, relating to rights given by the
Company and the Guarantors to the purchasers of any Additional Notes
(collectively, the “Registration
Rights Agreement”).
(19) CUSIP
Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Company has caused CUSIP numbers to be printed
on
the Notes, and the Trustee may use CUSIP numbers in notices of redemption as
a
convenience to Holders. No representation is made as to the accuracy of such
numbers either as printed on the Notes or as contained in any notice of
redemption, and reliance may be placed only on the other identification numbers
placed thereon.
(20) GOVERNING
LAW. THE
INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE
INDENTURE, THIS NOTE AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
(21) Obligation
Currency.
The
obligation of the Company in respect of any sum due to any Holder shall,
notwithstanding any judgment in a currency other than U.S. dollars, not be
discharged until the first business day, following receipt by such Holder of
any
sum adjudged to be so due in such other currency, on which (and only to the
extent that) such Holder may in accordance with normal banking procedures
purchase U.S. dollars with such other currency; if the U.S. dollars so purchased
are less than the sum originally due to such Holder hereunder, the Company
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify such Holder against such loss.
The
Company will furnish to any Holder upon written request and without charge
a
copy of the Indenture and/or the Registration Rights Agreement. Requests may
be
made to:
Canadian
Satellite Radio Holdings Inc.
Xxxxx
0000, Xxxxxx Trust Tower
BCE
Place, 000 Xxx Xxxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Xxxxxx
Attention:
Chief Financial Officer
93
Assignment
Form
To
assign
this Note, fill in the form below:
(I)
or
(we) assign and transfer this Note to:
___________________________________________________________________________________________________________
(Insert
assignee’s legal name)
(Insert
assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and
irrevocably appoint
_________________________________________________________________________________________________________________________
to
transfer this Note on the books of the Company. The agent may substitute another
to act for him.
Date:
_______________
Your
Signature: _______________________________________________
(Sign
exactly as your name appears on the face of this Note)
Signature
Guarantee*: _________________________
* Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).
94
Option
of
Holder to Elect Purchase
If
you
want to elect to have this Note purchased by the Company pursuant to Section
4.10 or 4.15 of the Indenture, check the appropriate box below:
ØSection
4.10 ØSection
4.15
If
you
want to elect to have only part of the Note purchased by the Company pursuant
to
Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to
have purchased:
$_______________
Date:
_______________
Your
Signature: _______________________________________________
(Sign
exactly as your name appears on the face of this Note)
Tax
Identification No.: _________________________________
Signature
Guarantee*: _________________________
* Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).
95
Schedule
of Exchanges of Interests in the Global Note *
The
following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest in this Global Note, have been
made:
Date
of Exchange
|
Amount
of decrease in Principal Amount of
this
Global Note
|
Amount
of increase in Principal Amount of
this
Global Note
|
Principal
Amount of this Global Note following such decrease
(or
increase)
|
Signature
of authorized officer of Trustee or Custodian
|
* This
schedule should be included only if the Note is issued in global
form.
96
EXHIBIT
B
FORM
OF
CERTIFICATE OF TRANSFER
Canadian
Satellite Radio Holdings Inc.
Xxxxx
0000, Xxxxxx Trust Tower
BCE
Place, 000 Xxx Xxxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Xxxxxx
[Registrar
address block]
Re:
__%
Senior Notes due 2014
Reference
is hereby made to the Indenture, dated as of February __, 2006 (the
“Indenture”),
among
Canadian Satellite Radio Holdings Inc., as issuer (the “Company”),
the
Guarantors party thereto and The Bank of Nova Scotia Trust Company of New York,
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
___________________,
(the “Transferor”)
owns
and proposes to transfer the Note[s] or interest in such Note[s] specified
in
Annex A hereto, in the principal amount of $___________ in such Note[s] or
interests (the “Transfer”),
to
___________________________ (the “Transferee”),
as
further specified in Annex A hereto. In connection with the Transfer, the
Transferor hereby certifies that:
[CHECK
ALL THAT APPLY]
1.r Check
if Transferee will take delivery of a beneficial interest in the 144A Global
Note or a Restricted Definitive Note pursuant to Rule
144A.
The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the Securities Act of 1933, as amended (the “Securities
Act”),
and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note
for
its own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account
is a
“qualified institutional buyer” within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A, and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United States.
Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the 144A Global Note and/or the Restricted Definitive Note
and
in the Indenture and the Securities Act.
2.r Check
if Transferee will take delivery of a beneficial interest in the Regulation
S
Global Note or a Restricted Definitive Note pursuant to Regulation
S.
The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a Person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities
of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer
in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation
S
under the Securities Act and, (iii) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note and/or the Restricted Definitive
Note and in the Indenture and the Securities Act.
97
3.
r Check
and complete if Transferee will take delivery of a beneficial interest in the
IAI Global Note or a Restricted Definitive Note pursuant to any provision of
the
Securities Act other than Rule 144A or Regulation S.
The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act
and
any applicable blue sky securities laws of any state of the United States,
and
accordingly the Transferor hereby further certifies that (check
one):
(a)r
such
Transfer is being effected pursuant to and in accordance with Rule 144 under
the
Securities Act;
or
(b)r
such
Transfer is being effected to the Company or a subsidiary thereof;
or
(c)
r
such
Transfer is being effected pursuant to an effective registration statement
under
the Securities Act and in compliance with the prospectus delivery requirements
of the Securities Act;
or
(d)
r
such
Transfer is being effected to an Institutional Accredited Investor and pursuant
to an exemption from the registration requirements of the Securities Act other
than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby
further certifies that it has not engaged in any general solicitation within
the
meaning of Regulation D under the Securities Act and the Transfer complies
with
the transfer restrictions applicable to beneficial interests in a Restricted
Global Note or Restricted Definitive Notes and the requirements of the exemption
claimed, which certification is supported by (1) a certificate executed by
the
Transferee in the form of Exhibit D to the Indenture and (2) if such Transfer
is
in respect of a principal amount of Notes at the time of transfer of less than
$250,000, an Opinion of Counsel provided by the Transferor or the Transferee
(a
copy of which the Transferor has attached to this certification), to the effect
that such Transfer is in compliance with the Securities Act. Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed
on
the IAI Global Note and/or the Restricted Definitive Notes and in the Indenture
and the Securities Act.
4.
r
Check
if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note.
(a) r
Check
if Transfer is pursuant to Rule 144.
(i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under
the
Securities Act and in compliance with the transfer restrictions contained in
the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and
the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
98
(b)
r Check
if Transfer is Pursuant to Regulation S.
(i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained
in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed
on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c)
r Check
if Transfer is Pursuant to Other Exemption.
(i) The
Transfer is being effected pursuant to and in compliance with an exemption
from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained
in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.
_____________________________
[Insert
Name of Transferor]
By:
_____________________________________________
Name:
Title:
Dated:
_______________________
99
ANNEX
A
TO CERTIFICATE OF TRANSFER
1. The
Transferor owns and proposes to transfer the following:
[CHECK
ONE OF (a) OR (b)]
(a) ¨
a
beneficial interest in the:
(i) r
144A
Global Note (CUSIP _________), or
(ii) r
Regulation
S Global Note (CUSIP _________), or
(iii)
rI AI Global Note (CUSIP _________);
or
(br)
a
Restricted Definitive Note.
2. After
the
Transfer the Transferee will hold:
[CHECK
ONE]
(a)ra
beneficial interest in the:
(i)r
144A
Global Note (CUSIP _________), or
(ii)r
Regulation
S Global Note (CUSIP _________), or
(iii)r
IAI
Global Note (CUSIP _________); or
(iv)r
Unrestricted
Global Note (CUSIP _________); or
(b)r
a
Restricted Definitive Note; or
(c)r
an
Unrestricted Definitive Note,
in
accordance with the terms of the Indenture.
100
EXHIBIT
C
FORM
OF
CERTIFICATE OF EXCHANGE
Canadian
Satellite Radio Holdings Inc.
Xxxxx
0000, Xxxxxx Trust Tower
BCE
Place, 000 Xxx Xxxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Xxxxxx
[Registrar
address block]
Re:
__%
Senior Notes due 2014
(CUSIP
____________)
Reference
is hereby made to the Indenture, dated as of February __, 2006 (the
“Indenture”),
among
Canadian Satellite Radio Holdings Inc., as issuer (the “Company”),
the
Guarantors party thereto and The Bank of Nova Scotia Trust Company of New York,
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
__________________________,
(the “Owner”)
owns
and proposes to exchange the Note[s] or interest in such Note[s] specified
herein, in the principal amount of $____________ in such Note[s] or interests
(the “Exchange”).
In
connection with the Exchange, the Owner hereby certifies that:
1.r Exchange
of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an
Unrestricted Global Note
(a)rCheck
if Exchange is from beneficial interest in a Restricted Global Note to
beneficial interest in an Unrestricted Global Note.
In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an
equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to
the
Global Notes and pursuant to and in accordance with the Securities Act of 1933,
as amended (the “Securities
Act”),
(iii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest in an Unrestricted Global Note
is being acquired in compliance with any applicable blue sky securities laws
of
any state of the United States.
(b)rCheck
if Exchange is from beneficial interest in a Restricted Global Note to
Unrestricted Definitive Note.
In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for an Unrestricted Definitive Note, the Owner hereby certifies
(i)
the Definitive Note is being acquired for the Owner’s own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and
in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order
to
maintain compliance with the Securities Act and (iv) the Definitive Note is
being acquired in compliance with any applicable blue sky securities laws of
any
state of the United States.
101
(c)rCheck
if Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note.
In
connection with the Owner’s Exchange of a Restricted Definitive Note for a
beneficial interest in an Unrestricted Global Note, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner’s own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant
to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required
in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
(d)
rCheck
if Exchange is from Restricted Definitive Note to Unrestricted Definitive
Note.
In
connection with the Owner’s Exchange of a Restricted Definitive Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted
Definitive Note is being acquired for the Owner’s own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Notes and pursuant to and
in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order
to
maintain compliance with the Securities Act and (iv) the Unrestricted Definitive
Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
2. Exchange
of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted
Global Notes
(a)rCheck
if Exchange is from beneficial interest in a Restricted Global Note to
Restricted Definitive Note.
In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a Restricted Definitive Note with an equal principal amount,
the
Owner hereby certifies that the Restricted Definitive Note is being acquired
for
the Owner’s own account without transfer. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Note and in the Indenture and the Securities Act.
(b)rCheck
if Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note.
In
connection with the Exchange of the Owner’s Restricted Definitive Note for a
beneficial interest in the [CHECK ONE] 144A
Global Note, Regulation
S Global Note, IAI
Global Note with an equal principal amount, the Owner hereby certifies (i)
the
beneficial interest is being acquired for the Owner’s own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant
to
and in accordance with the Securities Act, and in compliance with any applicable
blue sky securities laws of any state of the United States. Upon consummation
of
the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the relevant Restricted
Global Note and in the Indenture and the Securities Act.
This
certificate and the statements contained herein are made for your benefit and
the benefit of the Company.
_______________________________________
[Insert
Name of Transferor]
By:___________________________________________
Name:
Title:
Dated:
______________________
102
EXHIBIT
D
FORM
OF
CERTIFICATE FROM
ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
Canadian
Satellite Radio Holdings Inc.
Xxxxx
0000, Xxxxxx Trust Tower
BCE
Place, 000 Xxx Xxxxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Xxxxxx
[Registrar
address block]
Re:
__%
Senior Notes due 2014
Reference
is hereby made to the Indenture, dated as of February __, 2006 (the
“Indenture”)
among
Canadian Satellite Radio Holdings Inc., as issuer (the “Company”),
the
guarantors party thereto and The Bank of Nova Scotia Trust Company of New York,
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
In
connection with our proposed purchase of $____________ aggregate principal
amount of:
(a)
a
beneficial interest in a Global Note, or
(b)
a
Definitive Note,
we
confirm that:
1. We
understand that any subsequent transfer of the Notes or any interest therein
is
subject to certain restrictions and conditions set forth in the Indenture and
the undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes or any interest therein except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the
“Securities
Act”).
2. We
understand that the offer and sale of the Notes have not been registered under
the Securities Act, and that the Notes and any interest therein may not be
offered or sold except as permitted in the following sentence. We agree, on
our
own behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell the Notes or any interest therein, we will do
so
only (A) to the Company or any subsidiary thereof, (B) in accordance with Rule
144A under the Securities Act to a “qualified institutional buyer” (as defined
therein), (C) to an institutional “accredited investor” (as defined below) that,
prior to such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you and to the Company a signed letter substantially in the
form of this letter and, if such transfer is in respect of a principal amount
of
Notes, at the time of transfer of less than $250,000, an Opinion of Counsel
in
form reasonably acceptable to the Company to the effect that such transfer
is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any Person purchasing the Definitive Note or beneficial interest
in a Global Note from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
103
3. We
understand that, on any proposed resale of the Notes or beneficial interest
therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company
may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear
a
legend to the foregoing effect.
4. We
are an
institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and
experience in financial and business matters as to be capable of evaluating
the
merits and risks of our investment in the Notes, and we and any accounts for
which we are acting are each able to bear the economic risk of our or its
investment.
5. We
are
acquiring the Notes or beneficial interest therein purchased by us for our
own
account or for one or more accounts (each of which is an institutional
“accredited investor”) as to each of which we exercise sole investment
discretion.
You
and
the 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.
_____________________________________
[Insert
Name of Accredited Investor]
By:______________________________________
Name:
Title:
Dated:
_______________________
104
EXHIBIT
E
FORM
OF
NOTATION OF GUARANTEE
For
value
received, each Guarantor (which term includes any successor Person under the
Indenture) has, jointly and severally, unconditionally guaranteed, to the extent
set forth in the Indenture and subject to the provisions in the Indenture dated
as of February __, 2006 (the “Indenture”)
among
Canadian Satellite Radio Holdings Inc., (the “Company”),
the
Guarantors party thereto and The Bank of Nova Scotia Trust Company of New York,
as trustee (the “Trustee”),
(a)
the due and punctual payment of the principal of, premium and Liquidated Damages
and Additional Amounts, if any, and interest on, the Notes, whether at maturity,
by acceleration, redemption or otherwise, the due and punctual payment of
interest on overdue principal of and interest on the Notes, if any, if lawful,
and the due and punctual performance of all other obligations of the Company
to
the Holders or the Trustee all in accordance with the terms of the Indenture
and
(b) in case of any extension of time of payment or renewal of any Notes or
any
of such other obligations, that the same will be promptly paid in full when
due
or performed in accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise. The obligations of the
Guarantors to the Holders of Notes and to the Trustee pursuant to the Note
Guarantee and the Indenture are expressly set forth in Article 10 of the
Indenture and reference is hereby made to the Indenture for the precise terms
of
the Note Guarantee. Capitalized terms used but not defined herein have the
meanings given to them in the Indenture.
[Name
of
Guarantor(s)]
By:________________________________________
Name:
Title:
105
EXHIBIT
F
FORM
OF
SUPPLEMENTAL INDENTURE
TO
BE
DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental
Indenture
(this
“Supplemental
Indenture”),
dated
as of ________________, 20__, among __________________ (the “Guaranteeing
Subsidiary”),
a
subsidiary of ____________________ (or its permitted successor), a [Delaware]
corporation (the “Company”),
the
Company, the other Guarantors (as defined in the Indenture referred to herein)
and The Bank of Nova Scotia Trust Company 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
(the “Indenture”),
dated
as of February 10, 2006 providing for the issuance of 12.75% Senior Notes due
2014 (the “Notes”);
WHEREAS,
the Indenture provides that under certain circumstances the Guaranteeing
Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee
all of the Company’s Obligations under the Notes and the Indenture on the terms
and conditions set forth herein (the “Note
Guarantee”);
and
WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is 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 Guaranteeing
Subsidiary and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
1. Capitalized
Terms.
Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.
2. Agreement
to Guarantee.
The
Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee
on
the terms and subject to the conditions set forth in the Note Guarantee and
in
the Indenture including but not limited to Article 10 thereof.
4. No
Recourse Against Others.
No
past, present or future director, officer, employee, incorporator, stockholder
or agent of the Guaranteeing Subsidiary, as such, shall have any liability
for
any obligations of the Company or any Guaranteeing Subsidiary under the Notes,
any Note Guarantees, the Indenture or this Supplemental Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases
all
such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a
waiver is against public policy.
5. NEW
YORK
LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS
OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
106
6. Counterparts.
The
parties may sign any number of copies of this Supplemental Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
7. Effect
of
Headings.
The
Section headings herein are for convenience only and shall not affect the
construction hereof.
8. The
Trustee.
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 recitals are made solely by
the
Guaranteeing Subsidiary and the Company.
9. Consent
to Jurisdiction.
Each of
the Company, the Guarantors and the Guaranteeing Subsidiary irrevocably agree
that any legal suit, action or proceeding arising out of or based upon this
Supplemental Indenture or the transactions contemplated hereby (“Related
Proceedings”)
may be
instituted in the federal courts of the United States of America located in
the
City of New York or the courts of the State of New York in each case located
in
the Borough of Manhattan in the City of New York (collectively, the
“Specified
Courts”),
and
irrevocably submits to the exclusive jurisdiction (except for proceedings
instituted in regard to the enforcement of a judgment of any such court (a
“Related
Judgment”),
as to
which such jurisdiction is non-exclusive) of such courts in any such suit,
action or proceeding. The Company, the Guarantors and the Guaranteeing
Subsidiary further agree that service of any process, summons, notice or
document by mail to such party’s address set forth above shall be effective
service of process for any lawsuit, action or other proceeding brought in any
such court. The Company, Guarantors and the Guaranteeing Subsidiary hereby
irrevocably and unconditionally waive any objection to the laying of venue
of
any lawsuit, action or other proceeding in the Specified Courts, and hereby
further irrevocably and unconditionally waive and agree not to plead or claim
in
any such court that any such lawsuit, action or other proceeding brought in
any
such court has been brought in an inconvenient forum. Each of the Company,
the
Guarantors and the Guaranteeing Subsidiary not located in the United States
hereby irrevocably appoints CT Corporation System of New York, New York, which
currently maintains a New York City office at 000 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx
Xxxx 00000, Xxxxxx Xxxxxx of America, as its authorized agent (the “Authorized
Agent”)
to
receive service of process or other legal summons for purposes of any such
action or proceeding that may be instituted in any state or federal court in
the
City and State of New York. The Company, the Guarantors and the Guaranteeing
Subsidiary agree that service of process upon the Authorized Agent and written
notice of such service to the Company, the Guarantors and the Guaranteeing
Subsidiary shall be deemed, in every respect, effective service of process
upon
the Company, the Guarantors and the Guaranteeing Subsidiary.
10. Obligation
Currency.
The
obligation of the Guaranteeing Subsidiary in respect of any sum due to any
Holder shall, notwithstanding any judgment in a currency other than U.S.
dollars, not be discharged until the first business day, following receipt
by
such Holder of any sum adjudged to be so due in such other currency, on which
(and only to the extent that) such Holder may in accordance with normal banking
procedures purchase U.S. dollars with such other currency; if the U.S. dollars
so purchased are less than the sum originally due to such Holder hereunder,
the
Guaranteeing Subsidiary agree, as a separate obligation and notwithstanding
any
such judgment, to indemnify such Holder against such loss.
107
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be duly executed and attested, all as of the date first above
written.
Dated:
_______________, 20___
[Guaranteeing
Subsidiary]
By:
_______________________________
Name:
Title:
[Company]
By:
_______________________________
Name:
Title:
[Existing
Guarantors]
By:
_______________________________
Name:
Title:
[Trustee],
as
Trustee
By:
_______________________________
Authorized
Signatory